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United States v. Merritt.

No. 18-1146. D.Colo. Judge Eid. Driving Under the Influence—Fed. R. Evid. 404—Fed. R. Evid. 403—Harmless Error.

June 8, 2020


In August 2016, defendant crashed his car into a vehicle containing a family of three. Defendant was intoxicated and driving in the wrong lane. One passenger in the other vehicle was killed, another was seriously injured, and the driver suffered minor injuries. Defendant was charged with second degree murder and assault resulting in serious bodily injury.

At trial, the government introduced evidence of three other drunk driving incidents involving defendant. The first two preceded the subject incident and were introduced to show the requisite intent for second degree murder. The third occurred in November 2016, while defendant was out on bond, and was introduced to show extreme indifference under the doctrine of chances. The jury convicted defendant on both charges.

Defendant appealed the murder conviction, contending that the district court should not have allowed testimony about the facts and circumstances of the two prior incidents under Fed. R. Evid. 404 and 403. Under Rule 404(b), evidence of crimes, wrongs, or other acts is permitted to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” The facts and circumstances of defendant’s 2012 and 2014 convictions were offered for a proper purpose, to help establish that he acted with malice aforethought, as required for second degree murder, during his August 2016 accident. Further, the trial court did not abuse its considerable discretion under Rule 403 in finding that this evidence was highly probative of defendant’s state of mind, and any prejudice resulting from its admission would not substantially outweigh the evidence’s probative value.

Defendant also argued that the district court erred in allowing the government to present evidence of his November 2016 drunk driving arrest because this subsequent act had no relevance to his prior mental state and the potential for prejudice was extreme. The Tenth Circuit concluded that any error in admitting this incident was harmless, given the overwhelming evidence of guilt in the record stemming from the three incidents.

The second degree murder conviction was affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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