text:
    Kyree Davon HOWARD-WALKER, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 17SC595
    Supreme Court of Colorado.
    July 1, 2019
    Attorneys for Petitioner: Megan A. Ring, Public Defender, Meredith K. Rose, Deputy Public Defender, Denver, Colorado
    Attorneys for Respondent: Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney General, Denver, Colorado
    En Banc
   JUSTICE HOOD delivered the Opinion of the Court.

¶1 Two men, one carrying what seemed to be a gun, broke into an unoccupied Colorado Springs home and stole roughly $8,000 in cash and other valuables from a safe in a bedroom closet. As it happens, the homeowner had a motion-activated camera in his alarm clock. The camera captured the burglary, albeit on grainy footage.

¶2 The homeowner, who owned a video-editing business, enhanced that footage and then shared it with local television news stations, along with an offer of a reward for the "conviction" of the burglars. When the video aired on the news, someone identified the man carrying the gun in the video as the defendant, Kyree Howard-Walker.

¶3 Howard-Walker was ultimately convicted of first degree burglary and conspiracy to commit first degree burglary, after a two-day trial. On appeal, he argued that his relatively brief trial was riddled with errors that, at the very least, collectively warranted reversal.

¶4 A division of the court of appeals sifted through the many errors alleged and eventually identified eight, but also concluded that those errors did not warrant reversal individually or collectively. See People v. Howard-Walker , 2017 COA 81M, ¶ 2, 446 P.3d 843. In reaching this conclusion, the division adopted a new approach to cumulative error review. Id. at ¶¶ 118-21. Instead of relying only on our precedent in Oaks v. People , 150 Colo. 64, 371 P.2d 443 (1962), the division sought more guideposts and, in so doing, crafted a two-step, multi-factor test based on precedent from federal circuit courts. Howard-Walker , ¶¶ 120-21. After applying this new cumulative error analysis, the division determined that Howard-Walker received a fair trial despite the eight errors. Id. at ¶ 125.

¶5 We conclude that the division below erred by supplementing the Oaks standard. And under Oaks , we reverse because the cumulative effect of these errors deprived Howard-Walker of a fair trial. Because we conclude there was cumulative error, we do not address the question of whether plain error is determined at the time of appeal or the time of trial. Accordingly, we reverse the judgment of conviction and remand for a new trial.

I. Facts and Procedural History

¶6 In August 2013, D.S. spent a night away from his home in Colorado Springs. When he returned the next day, he found his home in disarray. The garage door was open, and his bed was flipped over. D.S. checked his (accidentally unlocked) safe and saw that burglars had "cleaned [it] out," taking some $8,000 in cash, numerous credit cards, watches, jewelry, and other valuables.

¶7 After verifying that the burglars had left, D.S. checked the motion-activated camera in his alarm clock. The camera had recorded the burglary. The video showed two unfamiliar men, both wearing baseball caps and sunglasses, rummaging through D.S.'s closet. One man held a black backpack. The other held what looked like a gun.

¶8 D.S. called 911. A responding officer took photos of D.S.'s bedroom and the suspected entry point in the back of the house, which featured unfamiliar shoeprints. The officer collected a copy of the video and brought it, as well as a box touched by one of the burglars, back to the precinct for further investigation.

¶9 Despite these efforts by the police, D.S. remained uneasy. Worried that someone might be trying to kill him, he used software from his video-editing business to enhance the crime video. After converting the original footage to a high definition format and editing its length, he sent it to local television news stations. He also offered a reward of $1,000 per "conviction."

¶10 Shortly thereafter, the enhanced video hit the news. Howard-Walker's girlfriend's uncle saw it and went to the police station to report that he knew one of the men in the video based on the sunglasses and hat the man wore. He identified that man as Howard-Walker, and he provided a photo of Howard-Walker wearing a hat and sunglasses like those visible in the video.

¶11 Based on that tip, Detective Mark Garcia contacted Howard-Walker's probation officer and asked him to look at still photos from the video to see whether he thought the man in the video was Howard-Walker. The probation officer said he was "95 percent sure" that it was Howard-Walker in the photos.

¶12 Police then arrested Howard-Walker and took him to a police station where Detective Garcia interviewed him. Howard-Walker denied participating in the burglary, but after the interview, as Detective Garcia walked Howard-Walker back to the holding cell area, Howard-Walker asked Detective Garcia "what [it] would ... get him if [Howard-Walker] gave [Detective Garcia] the name of the other person" in the video. Detective Garcia responded that "it would build [Howard-Walker's] credibility" with the District Attorney's Office and "it would help him." At that point, Howard-Walker became emotional and stopped talking.

¶13 Upon booking Howard-Walker at the jail, the officers took custody of the personal property he had at the time of his arrest. That property included his shoes and a pair of sunglasses. Detective Garcia thought the sunglasses resembled those in the camera footage. And he found the tread of Howard-Walker's shoes matched the shoeprints found outside D.S.'s home.

¶14 The police also executed a search warrant at Howard-Walker's apartment. The warrant included a list of items the officers were looking for-a gold medallion, a gold chain, three rings adorned with diamonds, approximately $8,000 in cash, twelve credit cards, and multiple watches. The officers found none of these items at Howard-Walker's apartment. The officers also didn't find a gun, a black backpack, or a hat and sunglasses resembling those in the video.

¶15 After the search, Detective Garcia showed Howard-Walker's girlfriend three still photos from the video. According to Detective Garcia, the girlfriend identified Howard-Walker as the man in the photos. When Detective Garcia asked how sure she was, he said she became visibly upset and responded that she was "80 percent" sure.

¶16 Armed with this information, the People charged Howard-Walker with one count of first degree burglary and one count of conspiracy to commit first degree burglary. At trial, Howard-Walker's main defense was that he was not the man in the video, and there was a "race to a conviction" that resulted in an incomplete investigation. The trial lasted less than nine hours over the course of two days, excluding voir dire and jury deliberations. The jury convicted Howard-Walker on both charges.

¶17 On appeal, a division of the court of appeals found eight errors: five resulting from Detective Garcia's testimony (including the detective's opinion about Howard-Walker's truthfulness), id. at ¶¶ 47-48, 58, 60, 70, 74, 80 ; two instructional errors (including failure to offer any instruction on the elements of the predicate crime of theft), id. at ¶ 101 ; and one instance of prosecutorial misconduct (involving the district attorney explicitly commenting on the defendant's failure to testify at trial), id. at ¶ 92. Still, it concluded that the one preserved error was harmless, id. at ¶ 63, and the other seven unpreserved errors were not plain, id. at ¶¶ 48, 72, 74, 81, 94, 102. So, the division turned to Howard-Walker's cumulative error claim.

¶18 The division cited our long-standing decision in Oaks . Id. at ¶ 119. There, we noted that "numerous formal irregularities, each of which in itself might be deemed harmless, may in the aggregate show the absence of a fair trial." Oaks , 371 P.2d at 446. Perhaps unsurprisingly, the division looked beyond that broad standard for more meaningful guidance, particularly regarding how to analyze cumulative error when a defendant has preserved some underlying errors but has failed to preserve others. See Howard-Walker , ¶¶ 118-21. The division adopted a two-step test from the Tenth Circuit. See id. at ¶ 118 (citing United States v. Caraway , 534 F.3d 1290, 1302 (10th Cir. 2008) ). First, the division stated it would review the preserved errors as a group under the harmless error standard. Id. If the preserved errors were not cumulatively harmless, then reversal would be warranted. Second, it would examine the preserved and unpreserved errors to determine whether collectively they were "sufficient to overcome the hurdles necessary to establish plain error." Id. (quoting Caraway , 534 F.3d at 1302 ). The division then looked to a nonexhaustive list of factors suggested by the Eleventh Circuit, "including: the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the district court dealt with the errors as they arose (including the efficacy of any remedial efforts); the strength of the government's case; and, the length of the trial," as further guidance. Id. at ¶ 121 (citing United States v. Baker , 432 F.3d 1189, 1223 (11th Cir. 2005), abrogated in part by Davis v. Washington , 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) ).

¶19 In applying its new test, the division first noted that "even the most serious error-the improper comment on Howard-Walker's exercise of his right against self-incrimination-was fleeting." Id. at ¶ 123. "[A]nd the less serious errors bore little relation to each other." Id. The division acknowledged that some of Detective Garcia's testimony "may have tended to undermine Howard-Walker's misidentification defense," but ultimately concluded that the impermissible testimony was "brief." Id. at ¶ 124. So, the division held that "[e]ven when considered cumulatively, these errors were relatively small events scattered over the course of a two-day trial, during which substantial evidence was presented ... from which the jury reasonably could have concluded that Howard-Walker was the man with the gun." Id. at ¶ 125. The division, therefore, affirmed Howard-Walker's judgment of conviction. Id. at ¶ 127.

¶20 We granted Howard-Walker's petition for certiorari.

II. Analysis

¶21 We begin with the standard of review. Then we address the law governing cumulative error claims. After deciding to stick with Oaks , we apply that standard to Howard-Walker's case and conclude that he did not receive a fair trial. Therefore, we reverse and remand for a new trial.

A. Standard of Review

¶22 We review questions of law de novo. See Ronquillo v. People , 2017 CO 99, ¶ 13, 404 P.3d 264, 267. Determining what the proper standard is for reviewing cumulative error claims is a legal question. See id. Therefore, we review it de novo.

B. The Right to a Fair Trial and Cumulative Error

¶23 "The [D]ue [P]rocess [C]lauses of the United States and Colorado [C]onstitutions guarantee every criminal defendant the right to a fair trial." Morrison v. People , 19 P.3d 668, 672 (Colo. 2000) ; People v. Roy , 723 P.2d 1345, 1349 (Colo. 1986) ("A defendant, although not entitled to a perfect trial, has a constitutional right to receive a fair trial." (citation omitted)); see also U.S. Const. amends. V, XIV ; Colo. Const. art. II, § 25. Encompassed in the right to a fair trial is the right to an impartial jury. See Oaks , 371 P.2d at 445-47. This "right comprehends a fair verdict, free from the influence or poison of evidence which should never have been admitted, and the admission of which arouses passions and prejudices which tend to destroy the fairness and impartiality of the jury." Id. at 447 ; see also U.S. Const. amend. VI ; Colo. Const. art. II, §§ 16, 23.

¶24 "[N]umerous formal irregularities, each of which in itself might be deemed harmless, may in the aggregate show the absence of a fair trial, in which event a reversal would be required." Oaks , 371 P.2d at 446. Though an error, when viewed in isolation, may be harmless or not affect the defendant's substantial rights, reversal will nevertheless be required when "the cumulative effect of [multiple] errors and defects substantially affected the fairness of the trial proceedings and the integrity of the fact-finding process." People v. Lucero , 200 Colo. 335, 615 P.2d 660, 666 (1980).

¶25 To be clear, cumulative error analysis should never be confused with structural error analysis. Structural error, which can require reversal without assessing prejudice, is

a limited class of errors described by the [U.S. Supreme] Court as including errors concerning rights protecting some interest other than the defendant's interest in not being erroneously convicted; errors the effects of which are too hard to measure, in the sense of being necessarily unquantifiable and indeterminate; and errors that can be said to always result in fundamental unfairness.

James v. People , 2018 CO 72, ¶ 15, 426 P.3d 336, 339-40 (citing Weaver v. Massachusetts , --- U.S. ----, 137 S. Ct. 1899, 1908, 198 L.Ed.2d 420 (2017) ; United States v. Gonzalez-Lopez , 548 U.S. 140, 148, 150, 157, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) ); People v. Novotny , 2014 CO 18, ¶ 21, 320 P.3d 1194, 1201 ("[Structural error] comprehends only those defects affecting the framework within which the trial proceeds-errors that infect the entire trial process and necessarily render a trial fundamentally unfair-rather than simply errors in the trial process itself." (emphasis added)). For reversal to occur based on cumulative error, a reviewing court must identify multiple errors that collectively prejudice the substantial rights of the defendant, even if any single error does not. Cf. Crim. P. 52 (defining harmless error and plain error). Stated simply, cumulative error involves cumulative prejudice.

¶26 For several reasons we conclude that the court of appeals erred in fashioning a cumulative error test from federal circuit court precedent. First, the parties agree that Oaks is the proper standard. Second, Oaks has been the lens through which we have analyzed cumulative error claims for nearly sixty years, and, while somewhat opaque, it provides necessary flexibility in addressing cumulative error. Finally, because we ultimately conclude that reversal is warranted under Oaks , we need not address now whether a more nuanced test is desirable. For the moment, we simply clarify that the Oaks standard governs, regardless of whether any error was preserved or unpreserved -thus, reversal is warranted when numerous errors in the aggregate show the absence of a fair trial, even if individually the errors were harmless or did not affect the defendant's substantial rights.

C. The Eight Errors

¶27 Of the many errors alleged by Howard-Walker, the division agreed there were eight. See Howard-Walker , ¶¶ 2, 117-18. But, the division concluded that none of the errors individually demanded reversal. Id. at ¶ 2. The division also concluded that the eight errors in the aggregate did not require reversal. Id. Howard-Walker, the division held, received a fair trial despite the errors. Id. at ¶ 126.

¶28 While the parties agreed that the division erred in adopting a new approach to cumulative error analysis, that's where their agreement ends. Howard-Walker argues that this was a close case and "[t]he errors infected nearly the entirety of this short trial," substantially prejudicing his right to a fair trial. Opening Br. at 64. The People counter that any errors were too "attenuated" from the main issue at trial to constitute a due process violation, and there was "overwhelming" evidence establishing the defendant's guilt.

¶29 As noted, we are not addressing whether the court of appeals correctly identified the trial court's individual errors. Thus, we presume the division below came to the correct conclusion as to those errors, and we limit our review to whether the errors arising from Detective Garcia's testimony, the two instructional errors, and the one instance of prosecutorial misconduct together constitute cumulative error.

¶30 First, we list these eight errors, as determined by the division below.

1. Improper Expert Testimony Regarding Whether the Gun in the Video Was Real

¶31 The prosecutor elicited improper expert testimony from Detective Garcia about whether the gun in the video was real. Without tendering Detective Garcia as an expert witness, the prosecutor asked: "How can you tell that's a real handgun [in the image]?" Detective Garcia responded that he could tell based on the size of the barrel of the gun, which was large enough for a "large projectile to exit the weapon." The division identified this testimony as improper expert testimony offered in the guise of lay testimony in violation of CRE 702 and Venalonzo v. People , 2017 CO 9, 388 P.3d 868. See Howard-Walker , ¶ 55. The court reasoned this was so because it "strongly doubt[ed] that a witness lacking specialized knowledge [could] determine whether a gun depicted in a video was real or fake based on its barrel size." Id.

2. Improper Speculation Regarding the Intentions of the Burglar with the Gun

¶32 The prosecutor invited improper speculation by Detective Garcia about what the burglar might have done if he had encountered the homeowner or the police. Over Howard-Walker's objection, Detective Garcia stated that the handgun was "openly displayed with the hand and the finger on the trigger ready to be utilized" and it was held in a "threatening manner." The detective also stated the man in the video was "ready to engage" if confronted by someone in the house. The division found that allowing this testimony was error because it constituted speculation-Detective Garcia didn't have any personal knowledge about what the person on the video would have done. Id. at ¶¶ 60-61 (citing People v. Jones , 907 P.2d 667, 669 (Colo. App. 1995) ). The court also noted that, even if there was sufficient foundation for Detective Garcia's testimony, it offended principles of relevancy and CRE 403. Id. at ¶ 62. "What might have happened was not an element of the offense[,]" and "[i]t was immaterial whether the perpetrator might have committed an additional crime had he encountered the homeowner or the police." Id.

3. Testimony Regarding Probable Cause

¶33 In response to the prosecutor's questions about his investigative process, Detective Garcia improperly testified that his supervisor said that there was probable cause to support a search warrant and an arrest warrant. This was error, the division reasoned, because probable cause to search or arrest was not an issue at trial. See id. at ¶ 70 (citing People v. Mullins , 104 P.3d 299, 301 (Colo. App. 2004) ). So whether a judge or a police officer believed there was probable cause to arrest the defendant was irrelevant to whether the prosecutor established the defendant's guilt at trial. Id. (citing Mullins , 104 P.3d at 301 ; CRE 401 ).

4. Testimony Explaining Why the Girlfriend Was Upset

¶34 The prosecutor elicited improper testimony from Detective Garcia about why the defendant's girlfriend grew emotional after stating she was "80 percent" sure it was her boyfriend in the stills from the camera footage. He stated that she was emotional because "[s]he recognized her boyfriend in the photos." The division explained that admitting this testimony was error because Detective Garcia didn't have any personal knowledge of why she was crying "as required by CRE 602." See id. at ¶ 74.

5. Testimony Regarding Howard-Walker's Truthfulness

¶35 The prosecutor improperly asked Detective Garcia whether he felt "in [his] training and experience" that Howard-Walker was being forthcoming during the interview. Detective Garcia said no. The prosecutor then followed up by asking "[d]id you feel like [Howard-Walker] was being truthful with you about his involvement?" To which Detective Garcia also said no. The division determined that it was "improper to ask one witness to opine on the truthfulness of another" when the testimony is not "offered to provide context for the detective's interrogation tactics and investigative decisions." Id. at ¶¶ 79-80 (citing Liggett v. People , 135 P.3d 725, 733 (Colo. 2006) ; Davis v. People , 2013 CO 57, ¶ 17, 310 P.3d 58, 62-63 ).

6. Failure to Instruct the Jury on the Predicate Crime

¶36 The trial court failed to instruct the jury on the elements of the predicate crime, theft. Both the parties and the division agreed that the "jury instructions were deficient" because the jury wasn't instructed on the elements of theft. Id. at ¶ 101 ; see also id. at ¶ 106 (citing People v. Palmer , 87 P.3d 137, 140 (Colo. App. 2003) ).

7. Failure to Define "Intent" for the Jury

¶37 The trial court failed to define the word "intent" for the jury even though "intent" was the culpable mental state for both the burglary charge and the conspiracy charge. The division concluded that this was error because, as with all elements of a crime, the culpable mental state-here, intent-must be "established with the same certainty as any other material element of the crime[s]." See id. at ¶ 113 (alteration in original) (quoting Palmer v. People , 964 P.2d 524, 527 (Colo. 1998) ). And the jury must be instructed on the meaning of the word "intent" because "it carries a 'technical or particular meaning.' " Id. (quoting Griego v. People , 19 P.3d 1, 7 (Colo. 2001) ).

8. Prosecutorial Misconduct in Closing Arguments

¶38 In closing arguments, the prosecutor engaged in misconduct when he commented on Howard-Walker's decision not to testify at trial. In discussing the still unknown whereabouts of the stolen items, the prosecutor remarked that "there is only one person in this room that could tell you where all of those items are now and he won't." The division agreed that the "prosecutor stepped over the line" in making this statement and that he was impermissibly commenting on Howard-Walker's decision not to testify. See id. at ¶¶ 91-92 ; see also Martinez v. People , 162 Colo. 195, 425 P.2d 299, 302 (1967) (defining what constitutes an impermissible reference to a defendant's exercise of his right to remain silent at trial). In making this comment, the prosecutor infringed upon Howard-Walker's Fifth Amendment rights. See Howard-Walker , ¶ 91 (citing Griffin v. California , 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) ).

D. These Eight Errors Cumulatively Warrant Reversal

¶39 We now consider whether the cumulative effect of these errors deprived Howard-Walker of a fair trial.

¶40 In its cumulative error analysis, the division emphasized how each of these errors was "brief" or "fleeting," see id. at ¶¶ 123-124, but the entire trial itself lasted less than nine hours (excluding voir dire and jury deliberations), compounding the impact on its fairness. More to the point, the question is not whether the errors were "brief" or "fleeting" but whether, viewed in the aggregate, the errors deprived the defendant of a fair trial. And, here, we conclude that they did.

¶41 In reaching its conclusion, the division reasoned that Detective Garcia's testimony that the gun was real and that Howard-Walker would have "engaged" the homeowner or police if he had encountered either during the burglary didn't implicate the main issue at trial-whether Howard-Walker was one of the perpetrators. See id. at ¶ 123. But both pieces of improper testimony helped to prove an element of first degree burglary that sets it apart from second degree burglary: using or threatening the use of a deadly weapon. Compare § 18-4-202(1), C.R.S. (2018) (defining first degree burglary), with § 18-4-203(1), C.R.S. (2018) (defining second degree burglary). So, this improper testimony helped establish Howard-Walker's guilt of the offenses charged and thus undermined the fairness of the trial.

¶42 Other improper testimony by Detective Garcia also undercut Howard-Walker's primary argument-that he had been misidentified. Detective Garcia's comments about his supervisor agreeing there was probable cause to believe Howard-Walker was the perpetrator could have suggested to the jury that, if a police officer and his supervisor believed there was probable cause to arrest Howard-Walker, maybe they should too. Detective Garcia's speculation about why Howard-Walker's girlfriend cried during her interview took on greater significance, because the girlfriend partially recanted her identification of the defendant at trial.

¶43 While Detective Garcia's testimony about probable cause and the girlfriend's demeanor was perhaps more garden-variety error, the prosecutor's decision to ask Detective Garcia to opine on Howard-Walker's veracity was highly prejudicial. See Liggett , 135 P.3d at 732 ("[A]sking a witness to opine on the veracity of another witness is prejudicial, argumentative, and ultimately invades the province of the fact-finder."). Because "were they lying" type questions distort the trial process, we have found them "categorically improper." Id. at 733 ; see also People v. Wittrein , 221 P.3d 1076, 1081 (Colo. 2009) ("In Colorado, neither lay nor expert witnesses may give opinion testimony that another witness was telling the truth on a specific occasion."). Allowing the prosecutor to ask, and a police detective to answer, this categorically improper question invited the jury to abdicate its responsibility to assess Howard-Walker's credibility. That invitation was inherently prejudicial.

¶44 That said, we agree with the division that the most serious error occurred during closing arguments when the prosecutor commented on Howard-Walker's exercise of his right to remain silent at trial. See Howard-Walker , ¶ 123. A comment is constitutionally impermissible if, "in context, [it] was calculated or intended to direct the attention of the jury to the defendant's neglect or failure to exercise his right to testify in his own behalf." Martinez , 425 P.2d at 302 ; see also People v. Todd , 189 Colo. 117, 538 P.2d 433, 436 (1975). And, after considering the context and content of the prosecutor's comment, there is only one conclusion to draw-it was "calculated" or "intended" to emphasize Howard-Walker's decision to remain silent.

The prosecutor stated, at the tail-end of his initial closing arguments, the following:

Now, as for where the items are now. The stolen items, where are they? As you know there was another person there. So clearly they could be anywhere. Ladies and gentlemen, there is only one person in this room that could tell you where all of those items are now and he won't . From what you have heard over the course of this trial, at this point it is proven beyond a reasonable doubt. So please find him guilty of both charges. Thank you.

(Emphasis added.) By drawing attention to the fact that the stolen goods were still missing and suggesting that the only person who knew their location was Howard-Walker, who didn't testify, the prosecutor suggested that Howard-Walker chose not to testify because he was guilty. That was blatantly prejudicial because it penalized Howard-Walker for exercising his constitutional right to remain silent. See Griffin , 380 U.S. at 615, 85 S.Ct. 1229 ; People v. Mozee , 723 P.2d 117, 123 (Colo. 1986) ("The privilege of a defendant to remain silent 'unless he chooses to speak in the unfettered exercise of his own will' is sufficiently important that the constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege at trial." (quoting Carter v. Kentucky , 450 U.S. 288, 305, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) )); cf. People v. Ortega , 198 Colo. 179, 597 P.2d 1034, 1036 (1979) ("Prosecutorial comment which has the effect of creating an inference of guilt by reference to the defendant's silence during custodial interrogation effectively penalizes the defendant for exercising a constitutional privilege.").

¶45 While the instructional errors probably didn't prejudice Howard-Walker, given the nature of his defense, the trial court's failure to define the predicate offense for the burglary, the crime of theft, not to mention its failure to completely define the requisite culpable mental state, certainly did nothing to promote confidence in the fairness of this trial. As the division reasoned, these errors didn't substantially prejudice Howard-Walker because there wasn't any dispute at trial over what the underlying crime was-both the People and Howard-Walker only discussed theft as the possible predicate crime. See Howard-Walker , ¶¶ 110-11. Similarly, the division concluded that the failure to define the word "intent" for the jury didn't substantially prejudice Howard-Walker because there was no dispute over "whether the evidence showed that the person in the video acted 'with intent' "-rather, the dispute was whether Howard-Walker was the person in the video. See id. at ¶ 114. While the division's analysis in these respects is sound, we noted in Oaks that "technical errors may have a significance requiring a reversal in a close case." 371 P.2d at 446.

¶46 And, despite the People's arguments about overwhelming evidence, this case arguably was close in several ways: First, the police never found any of the stolen items, let alone in Howard-Walker's possession. Second, the only piece of physical evidence tying Howard-Walker to the scene of the crime was a common shoeprint. Third, although Howard-Walker was identified as the man in the video by three witnesses aside from Detective Garcia, one of those witnesses partially recanted at trial, another was his probation officer who had only met Howard-Walker "probably three or four" times for about thirty minutes each time, and the third-the defense suggested-had a financial motive for identifying Howard-Walker after seeing the crime video on the news.

¶47 Perhaps the most significant piece of evidence for the prosecution is that Howard-Walker asked Detective Garcia about what he would get if he told him the name of the other man in the video. See Howard-Walker , ¶ 125. Not surprisingly, the prosecution characterized that question as tantamount to an admission of guilt. While that is a reasonable inference, it is not the only available inference. Regardless, the probative value of this piece of evidence is not enough to overcome the cumulative effect the eight errors had on Howard-Walker's trial.

¶48 We conclude that the cumulative prejudice caused by these eight errors deprived Howard-Walker of a fair trial, even though individually they were harmless or failed to affect Howard-Walker's substantial rights.

E. When to Evaluate Plain Error

¶49 Because we conclude that Howard-Walker didn't receive a fair trial due to the cumulative effect of the eight errors, we don't need to reach, and therefore do not reach, the question of whether plain error is determined at the time of appeal or the time of trial.

III. Conclusion

¶50 We conclude that the division below erred by supplementing the Oaks standard. And under Oaks , we find reversal is warranted because the cumulative effect of these errors deprived Howard-Walker of a fair trial. Because we conclude there was cumulative error, we do not address the question of whether plain error is determined at the time of appeal or the time of trial. Accordingly, we reverse the judgment of conviction and remand for a new trial.

      We agreed to review the following issues:
      1. Whether the court of appeals erroneously held that five trial errors, two instructional errors, and one instance of prosecutorial misconduct did not rise to the level of cumulative error because the court of appeals applied federal cumulative error law for the first time in Colorado, contradicting this Court's precedent.
      2. Whether the court of appeals erred in holding that the improper expert testimony was not plain even though the error was plain at the time of direct appeal.

      In pushing aside these subtleties here, we do not mean to suggest that we would refuse an invitation to take a deeper dive in another case, in which distinctions about reversibility for different kinds of error might prove more significant. Here, the errors were sufficiently prejudicial that these nuances are less significant.

      We acknowledge that the second question we granted certiorari on does ask us to review the court of appeals' determination on the reversibility of an identified error. However, because we ultimately resolve this case on cumulative error, we do not need to address that question.


source: Caselaw Access Project

license: Public Domain

text:
    Leo PHILLIPS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
    Supreme Court Case No. 17SC144
    Supreme Court of Colorado.
    July 1, 2019
    Attorneys for Petitioner: Megan A. Ring, Public Defender, Shann Jeffery, Deputy Public Defender, Denver, Colorado
    Attorneys for Respondent: Philip J. Weiser, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado
    En Banc
   JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 The prosecution charged Leo Phillips with possession of a weapon by a previous offender and driving under restraint. Before trial, defense counsel moved to suppress three pieces of evidence: (1) Phillips's statements inside a police car; (2) his subsequent statements at a police station; and (3) a handgun recovered during a search of his car. The trial court suppressed the police-car statements, but not the police-station statements or the gun. The jury found Phillips guilty as charged. On appeal, Phillips challenged the trial court's admission of both his police-station statements and the gun. However, for each claim, he relied on an argument he had not made to the trial court. A division of the court of appeals denied him relief in an unpublished opinion, ruling that he had waived the right to advance the two claims of error.

¶2 We agree with the division that Phillips failed to preserve his appellate claims. But we find that no waiver occurred. Instead, relying on People v. Rediger , 2018 CO 32, 416 P.3d 893, which we announced after the division's decision, we hold that Phillips forfeited the claims and that the claims are thus subject to plain error review. Upon conducting such review, we conclude that the trial court did not err in admitting the police-station statements and that the record does not establish that the admission of the gun was plain error. Accordingly, we affirm the division's judgment, albeit on other grounds.

I. Facts and Procedural History

¶3 Detective Christopher Fish conducted a traffic stop of Phillips's car based on information that Phillips was driving with a suspended license. After Phillips admitted that he did not have a valid driver's license, the detective ordered him out of the car. Phillips's two passengers, an adult in the front seat and a child in the back seat, remained inside.

¶4 Following a pat down for weapons, the detective placed Phillips in the back of his police car. The detective told Phillips that he was being detained and would be issued "at least a summons" for the driver's license violation. Phillips was not handcuffed. Through the sliding window dividing the front and back seats of the police car, the detective questioned Phillips without first advising him of his rights under Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, the detective asked Phillips about the suspension of his driver's license and his possible involvement in the sale of narcotics and possession of firearms. Phillips denied any such involvement, but admitted he had a felony conviction out of Illinois for possession of drugs. According to the detective, Phillips then consented to a search of his vehicle, even though he was advised that he had the right to refuse permission. The search of Phillips's car, which was conducted by another officer, yielded a gun underneath the driver's seat. The detective informed Phillips at that point that he would be transported to the police station to discuss his possession of a firearm as a convicted felon.

¶5 At the police station, the detective advised Phillips of his Miranda rights, and Phillips waived those rights and agreed to talk with the detective. During the interrogation, Phillips said that the gun recovered from his car belonged to his cousin, though he refused to identify him by name. The prosecution later charged Phillips with possession of a weapon by a previous offender and driving under restraint.

¶6 Before trial, Phillips sought to suppress (1) the statements he made in the police car, (2) his subsequent statements at the police station, and (3) the gun found in his car. The trial court suppressed the statements Phillips made in the police car, finding that they were obtained in violation of Miranda . But the court admitted into evidence both the statements Phillips made at the police station (reasoning that they were obtained after an advisement of his Miranda rights and his valid waiver of those rights) and the gun (reasoning that Phillips consented to the search of his car).

¶7 Phillips argued at trial that, while he was detained, the adult passenger in his car placed the gun under the driver's seat. A jury rejected that defense and found Phillips guilty. The court then sentenced him to probation.

¶8 On appeal, Phillips maintained that the trial court erred in admitting his police-station statements because they were the inadmissible fruit of the earlier unconstitutionally obtained statements in the police car. Additionally, he asserted that his consent to search his car was tainted and rendered involuntary by the interrogation in the police car. Although Phillips had challenged the admission of both the police-station statements and the gun at the trial court, he had not previously raised either of these arguments. The division declined to address Phillips's claims on the merits, concluding that they were unpreserved and waived.

¶9 Phillips petitioned for certiorari review, and we granted his petition.

II. Analysis

¶10 We first address whether Phillips preserved his two appellate claims. After concluding that he did not, we analyze whether he waived them. We rule that he did not and that, instead, he forfeited them, which means that they are subject to plain error review. As to the unpreserved claim related to the admission of the police-station statements, we conclude that the trial court did not err, much less plainly err. As to the unpreserved claim related to the admission of the gun, we conclude that the record does not establish that the trial court plainly erred. Accordingly, we affirm the division's judgment on other grounds.

A. Phillips Did Not Preserve His Appellate Claims

¶11 The division ruled that Phillips did not preserve his appellate claims for review. We agree.

¶12 Motions to suppress "should state with reasonable specificity the legal grounds upon which [they] are based" in order "to put the prosecution on notice of the contentions it must be prepared to meet at a suppression hearing and to inform the court of the issues to be decided." People v. Jansen , 713 P.2d 907, 912 n.8 (Colo. 1986). By requiring that the defendant set forth "the particular grounds for the objection or motion," courts ensure not only that the prosecution will have "a full and fair opportunity to present relevant evidence and argument with regard to it," but also that the court will have "an opportunity to correct any error that could otherwise jeopardize the defendant's right to a fair trial." People v. Cordova , 293 P.3d 114, 120 (Colo. App. 2011). It follows that "[t]o preserve a claim for review on appeal, the party claiming error must have supplied the right ground for the request." Novak v. Craven , 195 P.3d 1115, 1120 (Colo. App. 2008) (quoting Danco, Inc. v. Wal-Mart Stores, Inc. , 178 F.3d 8, 15 (1st Cir. 1999) ). For this reason, simply advancing "conclusory, boilerplate contention[s]" does not suffice to preserve a suppression issue for appeal. People v. Samuels , 228 P.3d 229, 238 (Colo. App. 2009). As the U.S. Court of Appeals for the First Circuit eloquently put it, "[i]t is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work ...." United States v. Zannino , 895 F.2d 1, 17 (1st Cir. 1990).

¶13 Here, Phillips argued to the trial court that his statements at the police station should be suppressed because Detective Fish's testimony was insufficient to establish that he received and then waived his Miranda rights. On appeal, though, Phillips sang a different tune: He maintained that his police-station statements should be suppressed because they were tainted and rendered inadmissible by the earlier unconstitutionally obtained statements in the police car. True enough, Phillips's motion to suppress generically alleged that the prosecution bore the burden to establish "that a derivative statement was not tainted" and was not "the fruit of a prior incriminating response resulting from [an] illegal custodial interrogation." But Phillips did not develop this boilerplate assertion, let alone apply it to the factual allegations involved in this case. Nor did he mention it later at the suppression hearing or ask the trial court to rule on its merits. Moreover, he did not cite, in his motion or at the hearing, the two watershed cases on which his appellate claim rests, Missouri v. Seibert , 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and Oregon v. Elstad , 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). Under these circumstances, we agree with the division that Phillips failed to properly preserve his claim related to the statements he made at the police station. See Feldstein v. People , 159 Colo. 107, 410 P.2d 188, 191 (Colo. 1966) ("[I]t is incumbent on the moving party to see to it that the court rules on the matter he urges"; if the trial court is not "afforded the opportunity to so rule[,] ... the matter will ordinarily not be considered on writ of error."), abrogated on other grounds by Deeds v. People , 747 P.2d 1266, 1269-72 (Colo. 1987).

¶14 We also agree with the division that Phillips failed to properly preserve his claim regarding the admission of the gun. At the trial court, Phillips maintained that the prosecution presented insufficient proof of a valid consent to search his car. But on appeal, he switched horses, arguing primarily that his consent was tainted because it was given during a custodial interrogation that violated Miranda . Thus, Phillips did not present to the trial court the contention on which he relied on appeal in challenging the admission of the gun.

¶15 Having determined that Phillips did not properly preserve either claim of error, we next explore the consequences of these failures. The question is whether Phillips waived both claims, thereby foreclosing review on appeal, or whether he forfeited them, thereby rendering them reviewable for plain error.

B. Phillips Forfeited His Claims

¶16 Rights can be waived. The doctrine of waiver is a procedural bar to appellate review based on "the intentional relinquishment of a known right or privilege." Rediger , ¶ 39, 416 P.3d at 902 (quoting Dep't of Health v. Donahue , 690 P.2d 243, 247 (Colo. 1984) ). "Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Although even fundamental rights can be waived, see Peretz v. United States , 501 U.S. 923, 936-37, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991), we "do not presume acquiescence" in the loss of such rights; to the contrary, we "indulge every reasonable presumption against waiver," Rediger , ¶ 39, 416 P.3d at 902 (quoting People v. Curtis , 681 P.2d 504, 514 (Colo. 1984) ). Here, we deal with the right to seek to exclude from trial any evidence obtained in violation of the Fourth or Fifth Amendments, a nonfundamental right that may be waived by defense counsel as "captain of the ship." Curtis , 681 P.2d at 511 (quoting Steward v. People , 179 Colo. 31, 498 P.2d 933, 934 (1972) ).

¶17 Rights can also be forfeited. When an intentional relinquishment of a known right is not present, then "the failure to make the timely assertion of a right" is a forfeiture, not a waiver. Rediger , ¶ 40, 416 P.3d at 902 (quoting Olano , 507 U.S. at 733, 113 S.Ct. 1770 ). Thus, whereas waiver requires "intent," forfeiture occurs "through neglect." United States v. Carrasco-Salazar , 494 F.3d 1270, 1272 (10th Cir. 2007) (quoting United States v. Staples , 202 F.3d 992, 995 (7th Cir. 2000) ).

¶18 The distinction between waiver and forfeiture is significant because "a waiver extinguishes error, and therefore appellate review, but a forfeiture does not." Rediger , ¶ 40, 416 P.3d at 902. We review a forfeited error under the plain error standard of review. Id.

¶19 As we do here, in Rediger we addressed a nonfundamental right which could be waived by defense counsel for strategic or other reasons. At the close of the evidence, Rediger's attorney informed the court that he was "satisfied" with the prosecution's proposed jury instructions, even though one of the elemental instructions incorrectly tracked section 18-9-109(1)(b), C.R.S. (2018), instead of the subsection actually charged in the complaint, section 18-9-109(2). Rediger , ¶¶ 8-10, 416 P.3d at 897-98. On appeal, Rediger alleged that this discrepancy amounted to a constructive amendment of the complaint. Id. at ¶ 12, 416 P.3d at 898. In a split decision, a division of the court of appeals held that Rediger's counsel had waived, through "affirmative acquiescence," the right to challenge the prosecution's constructive amendment of the complaint. Id. at ¶ 13, 416 P.3d at 898 (quoting People v. Rediger , 2015 COA 26, ¶ 60, 411 P.3d 907, 916 ).

¶20 We disagreed, explaining that "mere acquiescence to a jury instruction does not constitute a waiver without some record evidence that the defendant intentionally relinquished a known right." Id. at ¶ 3, 416 P.3d at 897. We noted that there was no basis to believe that Rediger's counsel "considered objecting to the erroneous instruction but then, 'for some tactical or other reason, rejected the idea.' " Id. at ¶ 42, 416 P.3d at 903 (quoting United States v. Perez , 116 F.3d 840, 845-46 (9th Cir. 1997) ). Because the record did not contain any evidence that Rediger's counsel "intended to relinquish" his client's "right to be tried in conformity with the charges set forth in [the] charging document," we concluded that no waiver occurred. Id. at ¶¶ 42, 44, 416 P.3d at 902-03. Thus, we were unwilling to infer an intentional relinquishment from defense counsel's general acquiescence to the erroneous instruction. See id. at ¶ 44, 416 P.3d at 903.

¶21 We acknowledge, as we did in Rediger , that a waiver need not be express; it can be implied. Id. at ¶ 42, 416 P.3d at 902. However, the mere failure to raise an issue neither amounts to "the type of unequivocal act indicative of a waiver" nor constitutes "the type of conduct that clearly manifest[s] any intent ... to relinquish [the] claim." Donahue , 690 P.2d at 247 (quoted with approval in Rediger , ¶ 42, 416 P.3d at 902-03 ). That Rediger's counsel had an opportunity to review the prosecution's proposed instructions before trial, confirmed he had done so, and stated he was "satisfied" with them was not evidence that he impliedly intended to relinquish the right to object to a constructive amendment of the complaint. See Rediger , ¶¶ 41, 45, 416 P.3d at 902-03. Rather than infer an intentional relinquishment of a known right from counsel's acquiescence, as the prosecution seemingly urged us to do, we indulged "every reasonable presumption against waiver"-even for a nonfundamental right. Id. at ¶ 46, 416 P.3d at 903 (quoting Curtis , 681 P.2d at 514 ).

¶22 Applying Rediger , we conclude that Phillips did not waive his unpreserved claims. There is no evidence that defense counsel intended to relinquish Phillips's right to challenge the admissibility of the police-station statements or the gun, including pursuant to the grounds advanced for the first time on appeal. Much like the record in Rediger , the record before us is barren of any indication that defense counsel considered raising the unpreserved contentions before the trial court but then, for a strategic or any other reason, discarded the idea. See id. at ¶ 42, 416 P.3d at 902-03. That counsel failed to raise the unpreserved assertions in the trial court, without more, is not sufficient to allow us to infer that he intended to abandon those assertions on Phillips's behalf. See id. ; Donahue , 690 P.2d at 247. Absent evidence of an intentional relinquishment, we cannot rule that Phillips's counsel waived the unpreserved claims. Therefore, we conclude that both claims were forfeited, not waived. As such, they are subject to plain error review.

¶23 We are not persuaded otherwise by the federal decisions cited by the prosecution. "[T]here is a division of authority among the circuit courts as to whether arguments not raised in a motion to suppress are waived or are merely forfeited and subject to plain-error review." United States v. Baker , 538 F.3d 324, 328 (5th Cir. 2008). The federal cases in the waiver camp carry little weight with us because they take root in Fed. R. Crim. P. 12(c)(3), see, e.g. , United States v. Vance , 893 F.3d 763, 769-70 (10th Cir. 2018), which is different than its Colorado counterparts, Crim. P. 41(e) and 41(g). As relevant here, Fed. R. Crim. P. 12(c)(3) requires a party to file suppression requests before trial and provides that when a party fails to do so, "a court may consider the ... request" if there is a showing of good cause. Crim. P. 41(e) and 41(g), on the other hand, generally require that a motion to suppress "be made and heard before trial," but state that "the court, in its discretion, may entertain the motion at the trial." Thus, unlike the federal rule, which permits a court to consider any time after trial commences, including on appeal , untimely suppression issues, the scope of our rules is limited to a court's ability to consider such issues at trial . We do not infer from our rules' silence regarding post-trial proceedings that their drafters intended to treat as "waived" any untimely suppression issues raised for the first time on appeal.

¶24 In any event, a recent amendment to Fed. R. Crim. P. 12 buttresses our conclusion that Phillips forfeited his unpreserved claims: the Advisory Committee on Criminal Rules revised and reorganized Fed. R. Crim. P. 12 in 2014; in the process, it deleted a provision from subparagraph (e) (now subparagraph (c)(3)) which stated that a party "waive[d]" a suppression issue not raised in a timely fashion before trial. The committee explained that the purpose of the deletion was to avoid possible confusion because the term "waiver" "ordinarily refers to the intentional relinquishment of a known right," and " Rule 12(e) has never required any determination that a party who failed to make a timely motion intended to relinquish a ... request that was not raised in a timely fashion." Fed. R. Crim. P. 12 advisory committee's note to 2014 amendment.

¶25 In United States v. Soto , the U.S. Court of Appeals for the Sixth Circuit recognized that "one of the primary reasons" for eliminating the term "waiver" from the rule was the committee's belief that "courts were incorrectly treating the failure to file a timely pretrial motion as an intentional relinquishment of a known right, and therefore an absolute bar to appellate review." 794 F.3d 635, 652 (6th Cir. 2015). The amendment's history bears this out. The chair of the Standing Committee who worked on the amendment, Judge Jeffrey Sutton, felt that it was "imperative to get rid of the term 'waiver,' " explaining that it was drafted before Olano was decided and "makes no sense now." Id. (quoting Advisory Committee on Criminal Rules, Minutes 6 (Apr. 25, 2013)). The Advisory Committee apparently agreed with Judge Sutton that the term "waiver" was " 'outdated in light of Olano ' " and set out "to give the rule new meaning." Id. (quoting United States v. Rose , 538 F.3d 175, 183 (3d Cir. 2008) ). Thus, "[t]he Advisory Committee's conscious decision to abandon the term 'waiver' makes its intent crystal clear: courts may no longer treat a party's failure" to raise a timely pretrial suppression claim "as an intentional relinquishment of a known right." Id.

¶26 The prosecution's reliance on Stackhouse v. People , 2015 CO 48, 386 P.3d 440, is equally unconvincing because Stackhouse is distinguishable. In Stackhouse , we followed precedent that has stood the test of time for almost half a century, see Anderson v. People , 176 Colo. 224, 490 P.2d 47, 48 (1971), and concluded that defense counsel waived the right to object to a courtroom closure. Stackhouse , ¶¶ 9-17, 386 P.3d at 443-46. In both Stackhouse and Anderson , we were willing to infer a waiver because defense counsel in each case was clearly aware of the public closure and nevertheless chose not to raise an objection to it. Stackhouse , ¶ 17, 386 P.3d at 446 ; Anderson , 490 P.2d at 48. As the trial court closed the courtroom to the public during part of the proceedings, each defense attorney stood by, obviously aware of the court's decision, and elected to remain silent and forego raising an objection. Stackhouse , ¶ 2, 386 P.3d at 442 ; Anderson , 490 P.2d at 48. That is not the situation here. There is no indication in the record that it occurred to Phillips's counsel to raise the unpreserved claims but then, after considering doing so, decided against it.

¶27 There is a second basis for inferring a waiver when defense counsel fails to object to a courtroom closure that is not applicable in this case. As we recognized in Stackhouse , there are "sound strategic reasons to waive the right to a public trial, as [was] particularly apparent in the context of Stackhouse's jury selection for his trial on charges of sexual assault on a minor." Stackhouse , ¶ 15, 386 P.3d at 445. For instance, defense counsel may favor closure to avoid prejudicing the jury through pretrial publicity, may believe that potentially biased jurors are more likely to be candid if jury selection is closed to the public, or may be inspired to go along with a courtroom closure for fear that the victim's family might intermingle with the venire and potentially turn prospective jurors against his client. Id.

¶28 In stark contrast, here, we are hard pressed to think of strategic reasons for failing to raise Phillips's unpreserved claims in the trial court. What benefit or advantage could Phillips's attorney have obtained from his failure to present additional grounds to contest the admissibility of the police-station statements and the gun? He clearly (and understandably) wanted both evidentiary items excluded from the trial. Inasmuch as he asked the trial court to suppress both articles of evidence, there is no basis to believe that he decided against raising the unpreserved arguments for strategic reasons.

¶29 The significant differences between courtroom-closure cases and this case do not end there. We expressed concern in Stackhouse that a finding of no waiver would encourage gamesmanship because a defense attorney could stand silent during a "known closure" and then "seek invalidation of an adverse verdict on that basis," thereby rendering any new trial a windfall for the defendant, a result the U.S. Supreme Court has " 'explicitly tried to prevent.' " Id. at ¶ 16, 386 P.3d at 445-46 (quoting State v. Pinno , 356 Wis.2d 106, 850 N.W.2d 207, 225 (2014) ). Indeed, our trepidation that an attorney could intentionally forego objecting to a courtroom closure "as a strategic parachute to preserve an avenue of attack on appeal" motivated the holding in Stackhouse . Id. , 386 P.3d at 446. But we perceive no real danger of sandbagging here. By failing to raise a contention related to the suppression of evidence, a defendant runs the significant risk that the factual record will be insufficiently developed to establish plain error. Phillips acknowledges this concern. And our analysis of the claim related to the gun illustrates the point.

¶30 The prosecution also leans on Hansen v. State Farm Mutual Automobile Insurance Co. , 957 P.2d 1380 (Colo. 1998), and Hinojos-Mendoza v. People , 169 P.3d 662 (Colo. 2007). Neither case alters our conclusion. The former is inapposite; the latter was impliedly supplanted by Rediger .

¶31 In Hansen , a civil case, the trial court found that one party's proposed jury instruction did not represent an accurate statement of the law. 957 P.2d at 1385. Even when the trial court suggested that the party submit a revised instruction, counsel "deliberately chose not to redraft the instruction to comport with the law." Id. Under Rediger , these circumstances reflect an intentional relinquishment of the known right to submit an amended instruction consistent with the law. No such relinquishment took place here.

¶32 In Hinojos-Mendoza , we concluded that defense counsel waived his client's right to object to the prosecution's introduction of a laboratory report without calling as a witness the technician who prepared the report. 169 P.3d at 670. We noted that the statute that permits the prosecution to introduce a laboratory report without the technician's testimony affords the defense an opportunity to request such testimony "by notifying the witness and [the prosecution] at least ten days" before trial. Id. at 665 (quoting § 16-3-309(5), C.R.S. (2006) ). In holding that Hinojos-Mendoza waived his right to confront at trial the technician who prepared the report, we pointed to his counsel's failure to make a timely request under the statute, inferring that such signified "a decision not to exercise the right at issue" because "we presume that attorneys know the applicable rules of procedure." Id. at 670.

¶33 But Hinojos-Mendoza runs headlong into Rediger . In Rediger , we disclaimed the type of waiver analysis we undertook in Hinojos-Mendoza eleven years earlier, see Rediger, ¶¶ 41-44, 416 P.3d at 902-03. As we made clear in Rediger , without any evidence that defense counsel intended to relinquish the right in question, we cannot infer that a waiver of that right occurred. See id. at ¶ 44, 416 P.3d at 903.

¶34 Nevertheless, in the companion case we decide today, the People insist that when a statute or rule includes procedural requirements, defense counsel's failure to comply with them must be deemed a waiver. See Cardman v. People , 2019 CO 73, ¶¶ 13-16, 445 P.3d 1071. We are unpersuaded. The People's position is not supported by Rediger and would lead to absurd results.

¶35 The waiver/forfeiture distinction we drew in Rediger did not turn on whether defense counsel was required to raise an objection to the incorrect instruction by a procedural rule or by substantive law. Nowhere in Rediger did we discuss the difference between procedural and substantive legal requirements. Under the People's assertion, the outcome in Rediger would have been different if a statute or rule had established procedures for objecting to inaccurate instructions. Because nothing in our Rediger rationale comports with that approach, we reject it.

¶36 Moreover, distinguishing between procedural rules and substantive law to determine whether a claim is waived or forfeited makes little sense. For example, as relevant here, Rules 41(e) and (g) set forth the procedures for raising suppression issues in the trial court. But no one would dispute that, since a criminal defense attorney has an ethical obligation to zealously represent his client, he is required to raise suppression issues before trial when doing so is warranted by Fourth and Fifth Amendment jurisprudence. In other words, if Rules 41(e) and (g) didn't exist, defense counsel would still have a duty to advance appropriate Fourth and Fifth Amendment arguments to attempt to exclude certain evidence from trial. Yet, the People would have us hold that a defense attorney's failure to comply with a procedural rule always amounts to a waiver, but a defense attorney's failure to comply with substantive law can be a forfeiture when such failure is not an intentional relinquishment of a known right. The People forget that attorneys are also presumed to know substantive law. We see no basis to create an exception to Rediger based on Rule 41(e) or (g).

¶37 This is not to say that there aren't compelling reasons for the procedures outlined in Rules 41(e) and (g). Nor should we be understood as minimizing the importance of compliance with those rules. But the question we confront today is neither whether the rules should be in place nor whether requiring that suppression contentions be timely raised before trial is truly necessary. The issue we address is whether an appellate court should be allowed to review for plain error when defense counsel negligently fails to raise a suppression assertion at the trial court. Consistent with Rediger , we answer yes.

¶38 In sum, we conclude that the mere failure by Phillips's counsel to include the unpreserved assertions in the motions to suppress he filed does not by itself constitute a waiver. Instead, we hold that Phillips forfeited his unpreserved claims. Therefore, we next review each claim for plain error.

C. The Trial Court Did Not Err, Much Less Plainly Err, in Admitting the Police-Station Statements

¶39 Under Crim. P. 52(b), plain error occurs when there is (1) an error, (2) that is obvious, and (3) that so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. See Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116, 120. We conclude that the trial court did not err in admitting the police-station statements, even though they were made after the unconstitutionally obtained statements in the police car. Therefore, we hold that the admission of the police-station statements did not constitute plain error.

¶40 For purposes of our analysis, we assume without deciding that Phillips was in custody when he was questioned by Detective Fish in the police car, that the detective was required to read him his Miranda rights before questioning him there, and that the trial court correctly suppressed the police-car statements. With these assumptions in mind, we consider Phillips's unpreserved argument that the police-station statements should have been excluded because the detective conducted an unconstitutional "two-step interrogation."

¶41 A "two-step interrogation" takes place when officers elicit incriminating statements from an in-custody suspect without giving him his Miranda rights and then interview him again later and obtain a confession after giving him his Miranda rights and securing a waiver of those rights. Verigan v. People , 2018 CO 53, ¶ 20, 420 P.3d 247, 251. The trial court must initially assess whether the police "deliberately use[d] a two-step interrogation procedure to obtain a confession" with the goal of undermining the meaning and effect of the Miranda advisement. Id. at ¶ 34, 420 P.3d at 254 (adopting Seibert , 542 U.S. at 618-22, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment)). If the court concludes that "the police did not deliberately use a two-step technique to undermine Miranda , then it should apply" the test articulated in Oregon v. Elstad , id. , which focuses on whether the post-warning statements were "knowingly and voluntarily made," Elstad , 470 U.S. at 309, 105 S.Ct. 1285. On the other hand, if the court finds that officers deliberately engaged in a two-step procedure, it should then "determine whether curative measures ... were employed, such that the suspect would understand the import and effect of the warning at the time of the later statement." Verigan , ¶ 34, 420 P.3d at 254. Only if sufficient curative measures were used should the court deny a request to suppress the post- Miranda statements. Id.

¶42 Looking at the totality of the circumstances, including objective and subjective evidence, we conclude that the prosecution established that Detective Fish did not "deliberately engage[ ] in a two-step interrogation procedure with the intent to undermine the Miranda warnings." See id. at ¶ 42, 420 P.3d at 255-56. While in the police car, Detective Fish did not conduct a systematic and exhaustive interrogation that was managed with psychological skill, as the officers did in Seibert . Cf. Seibert , 542 U.S. at 616, 124 S.Ct. 2601. Nor was the subsequent interrogation treated as a continuation of the first. Cf. id. Finally, Phillips did not make any incriminating statements during the initial interrogation; it was only during the police-station interrogation that he reported that the gun belonged to his cousin. Cf. id.

¶43 But Phillips goes on to argue that, even if Detective Fish did not engage in a two-step interrogation, the police-station statements still should have been excluded pursuant to Elstad . We disagree.

¶44 Under Elstad , a post-warning statement is admissible if: (1) the pre-warning statement was the product of uncoercive questioning; (2) thereafter, the defendant was given his Miranda rights and voluntarily waived those rights prior to the post-warning statement; and (3) the post-warning statement was knowingly and voluntarily made. Verigan , ¶ 45, 420 P.3d at 256. Here, there is no evidence that Phillips's pre-warning statements in the police car were coerced. The circumstances on which Phillips relies-that he was patted down, that he was placed in the back of a police car and was not free to leave, that he was not read his Miranda rights or given an opportunity to consult with counsel before questioning, and that he was asked about his suspended license, his criminal convictions, and his possible involvement with guns and drugs-do not establish that the detective's conduct overcame Phillips's will to resist and brought about an involuntary confession. See People v. Klinck , 259 P.3d 489, 495 (Colo. 2011). Indeed, Phillips did not confess during the police-car interrogation, and so his will was not overborne by the detective's actions.

¶45 Further, the detective testified that he read Phillips his Miranda rights at the police station before the second interrogation and that Phillips validly waived those rights. No evidence was presented to contradict that testimony, and the trial court found the detective credible and reliable. Lastly, Phillips does not argue that his police-station statements were unknowing or involuntary despite the Miranda warnings. Accordingly, we conclude that, pursuant to Elstad , the trial court did not err, let alone plainly so, in admitting Phillips's police-station statements.

¶46 Because Detective Fish did not engage in a deliberate two-step interrogation designed to undermine Miranda , and because the admission of Phillips's police-station statements did not run afoul of Elstad , we conclude that the trial court did not err in admitting those statements. Therefore, we hold that the admission of the police-station statements did not constitute plain error.

D. The Record Does Not Establish that the Admission of the Gun Was Plain Error

¶47 Phillips contends for the first time on appeal that his consent to search the car was tainted and rendered involuntary because it was provided during a custodial interrogation conducted in violation of Miranda . Even assuming that the police-car interrogation was a custodial one requiring a Miranda advisement, the record is insufficiently developed to establish plain error.

¶48 "Whether a consent to search is sufficiently an act of free will to purge the taint of an illegal custodial interrogation depends upon the totality of the circumstances surrounding the consent." People v. Breidenbach , 875 P.2d 879, 890 (Colo. 1994). To make this determination, the court must consider "factors such as the defendant's age, education, intelligence and state of mind, ... the duration, location, and other circumstances of the search[,] ... the temporal proximity between the interrogation and the consent, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct." Id. (internal citations omitted).

¶49 A search of the record for evidence of some of the relevant factors comes up empty; a search of the record related to other factors reveals that the evidence is in conflict. As a result, there are factual disputes between the parties that remain unresolved. For example, the adult passenger testified that the interrogation lasted approximately half an hour. But the officer who searched Phillips's car implied that it took about five minutes. Similarly, Phillips maintains that his encounter with Detective Fish was confrontational, but the prosecution claims it wasn't. And the parties disagree regarding the presence of intervening factors that may have broken the causal connection between the consent to search and the police-car interrogation.

¶50 In short, our inspection of the record leads us to conclude that it does not establish plain error. There is no basis for us to determine that the trial court plainly erred in admitting the gun because the scant record does not establish that Phillips's consent to search was tainted by the police-car interrogation.

III. Conclusion

¶51 Phillips failed to preserve the two claims of error raised on appeal. But we hold that the claims were forfeited, not waived, and are thus subject to plain error review. Undertaking such review, we conclude that the trial court did not err in admitting Phillips's police-station statements and that the record does not establish that the admission of the gun was plain error. Accordingly, we affirm the division's judgment, albeit on other grounds.

JUSTICE HOOD concurs in the judgment only, and CHIEF JUSTICE COATS and JUSTICE MÁRQUEZ join in the concurrence in the judgment only.

JUSTICE HOOD, concurring in the judgment only.

¶52 Because I agree that reversal is unwarranted, but disagree as to the rationale, I respectfully concur in the judgment only. For the reasons I stated in my dissent in Cardman v. People , 2019 CO 73, 445 P.3d 1071, the majority's reasoning here is flawed. In reaching its conclusion, the majority overextends People v. Rediger , 2018 CO 32, 416 P.3d 893, and suggests it "supplant[s]" our holding in Hinojos-Mendoza v. People , 169 P.3d 662 (Colo. 2007). Maj. op. at ¶ 30. But Rediger is inapposite-there was no rule in Rediger mandating that a defendant file a motion to suppress evidence or an involuntary statement before trial. Here, we have such a rule, and thus, Hinojos-Mendoza controls: Phillips's unpreserved arguments for suppression were waived.

¶53 Colorado's Rules of Criminal Procedure allow defendants, who believe they were subjected to an "unlawful search and seizure" to file a motion to suppress evidence obtained as a result of that unlawful search. Crim. P. 41(e). But the rule mandates that the motion be brought pretrial. Crim. P. 41(e) ("The motion shall be made and heard before trial ....") (emphases added); see also Crim. P. 41(g) (same). If the "opportunity therefor did not exist or the defendant was not aware of the grounds for the motion" then the defendant may file an untimely motion. Crim. P. 41(e), (g). However, the trial court has discretion over whether to entertain the untimely motion. Crim. P. 41(e), (g).

¶54 Phillips doesn't contend that he lacked the opportunity to file a motion to suppress, or that he wasn't aware of the grounds for filing a suppression motion.

¶55 On the contrary, Phillips filed two motions to suppress-one challenging the use of evidence obtained as a result of a traffic stop, the other challenging admission of the statements he made at the police station. Phillips primarily based his suppression motions on two arguments: (1) the evidence obtained from the traffic stop should be suppressed because there was insufficient proof that he consented to the search of his car, maj. op. at ¶ 14; and (2) his statements at the police station should be suppressed because there was insufficient evidence that he received and waived his Miranda rights, id. at ¶ 13. After holding a hearing on these motions to suppress, the trial court ultimately denied both motions.

¶56 Yet on appeal, Phillips advanced two different theories as to why the suppression motions should have been granted. Regarding the evidence seized as a result of the search of his car, Phillips contended that his consent was tainted by the unconstitutional interrogation that took place at the scene of the traffic stop. See id. at ¶ 8. He similarly argued that his statements at the police station were also tainted by the earlier unconstitutional interrogation. See id. The majority rightly concludes that both arguments weren't properly preserved. See id. at ¶ 11.

¶57 But the majority errs in concluding that we can review these new arguments for plain error. The plain language of Crim. P. 41 and our precedent in Hinojos-Mendoza foreclose that option. Moreover, appellate courts don't have the expertise, functionality, or capacity to undertake review of an undeveloped record. See People v. McIntyre , 789 P.2d 1108, 1110 (Colo. 1990) (discussing how the trial court "must make sufficiently clear and detailed findings of fact and conclusions of law on the record to permit meaningful appellate review"); People v. Jansen , 713 P.2d 907, 912 n.8 (Colo. 1986) (stating that motions to suppress must be sufficiently specific so "the prosecution [is] on notice of the contentions it must be prepared to meet at a suppression hearing and to inform the court of the issues to be decided").

¶58 Defendants, however, still have a remedy. As I noted in my dissent in Cardman , a defendant can challenge his counsel's failure to raise a valid argument for suppression in a postconviction proceeding by alleging ineffective assistance of counsel. Rule 35(c) allows for development of the relevant factual record. See Moore v. People , 2014 CO 8, ¶ 26, 318 P.3d 511, 517. Doing so would allow trial courts to assess why counsel didn't raise certain arguments for suppression and whether counsel's actions constituted ineffective assistance of counsel.

¶59 For all these reasons, I respectfully concur in the judgment only.

I am authorized to state that CHIEF JUSTICE COATS and JUSTICE MÁRQUEZ join this concurrence in the judgment only.

      In Cardman v. People , 2019 CO 73, 445 P.3d 1071, a companion case we announce today, we likewise determine that the unpreserved suppression claim was forfeited, not waived, and is thus reviewable for plain error. There, however, we rule that the trial court committed plain error.

      We granted certiorari to review the following two issues:
      1. Whether the court of appeals reversibly erred when it held that petitioner waived his right to challenge the admission of his police station statements on the grounds that they were tainted by his earlier unconstitutional interrogation.
      2. Whether the court of appeals reversibly erred when it held that petitioner waived his right to challenge the admission of the gun that was seized from his vehicle on voluntariness grounds.

      The rights in question are not among those fundamental rights, such as the right to counsel, the right to testify, and the right to trial by jury, which require a knowing, voluntary, and intelligent waiver to be executed personally by the accused. Curtis , 681 P.2d at 511.

      We should not be misunderstood as holding that an attorney's failure to file a suppression motion or to include an argument in a suppression motion will always be deemed a forfeiture. If there is evidence in the record that defense counsel made a conscious decision to forego raising a claim for strategic or other reasons, we will not hesitate to find an implied waiver. After all, we recognize that in some situations defense counsel will refrain from seeking the suppression of an article of evidence for strategic or other reasons.

      Rule 41(e) addresses motions for return of property and to suppress evidence, while Rule 41(g) addresses only motions to suppress confessions or admissions. The relevant parts of these two rules are identical.

      In Olano , the U.S. Supreme Court articulated a clear differentiation between "waiver" and "forfeiture." 507 U.S. at 733, 113 S.Ct. 1770. After Olano was announced, "the term 'waiver' in the context of Rule 12(e) caused great confusion among circuit courts about how the rule restricts appellate review." Soto , 794 F.3d at 649. The omission of the term "waiver" in the 2014 amendment attempted to clarify these murky waters. Id. at 650 (citing Advisory Committee on Criminal Rules , Minutes 3 (Apr. 25, 2013)).

      The Sixth Circuit is not alone. The Fifth, Seventh, and Eleventh Circuits all have taken the same view of the 2014 amendment to Fed. R. Crim. P. 12(e). See, e.g. , United States v. Vasquez , 899 F.3d 363, 372 (5th Cir. 2018) ("Taken together, the amendment and [advisory committee's] note make clear that our prior approach" interpreting "waiver" in Fed. R. Crim. P. 12 "does not endure."); United States v. Sperrazza , 804 F.3d 1113, 1119 (11th Cir. 2015) ("Under the old version of the rule, Sperrazza waived his claim ... because he did not raise it before trial," but the amended version of the rule "makes no mention of 'waiver' "; therefore, Sperrazza's claim is subject to plain error review.); United States v. McMillian , 786 F.3d 630, 636 & n.3 (7th Cir. 2015) (noting that "[t]he reference to 'waiver' was removed" from Fed. R. Crim. P. 12(e) "to clarify that the rule does not contemplate waiver as that term is traditionally used in criminal cases," but adding that there is "an antecedent good-cause requirement"). And the Fourth Circuit has cited Soto with approval in determining that "severance arguments [raised] for the first time on appeal" are reviewed "for plain error." United States v. Harlan , 714 F. App'x 220, 224 (4th Cir. 2017). But see, e.g. , Vance , 893 F.3d at 769 n.5 (indicating that, even after the amendment to Fed. R. Crim. P. 12, the Tenth Circuit continues to deem "waived" any suppression issues raised for the first time on appeal).

      The Seibert court was fractured with no clear majority. We have adopted the analysis set forth in Justice Kennedy's concurrence as Seibert 's governing rule. See Verigan , ¶¶ 31-38, 420 P.3d at 253-55.

      The prosecution argues that Briedenbach is inconsistent with Elstad and that, under Elstad , any Miranda violation did not taint the subsequent search of the car because, as the trial court found, the consent was voluntarily provided. We need not, and therefore do not, reach this question.

      We do not believe that remanding for further development of the record and further findings is appropriate in this situation. Doing so would improperly place Phillips in the same position as if he had timely raised the unpreserved claim, would strip the preservation requirement of any meaning, and would dilute the rigorous plain error standard of review governing forfeited issues.


text:
    Melchor A. PONCE, Petitioner-Appellant, v. ADMINISTRATIVE DIRECTOR OF the COURTS, State of Hawai'i, Respondent-Appellee
    NO. CAAP-17-0000032
    Intermediate Court of Appeals of Hawai'i.
    JUNE 20, 2019
    On the briefs:
    Earle A. Partington, Honolulu, for Petitioner-Appellant.
    Delanie D. Prescott-Tate, Deputy Attorney General, for Respondent-Appellee.
   GINOZA, CHIEF JUDGE, LEONARD AND CHAN, JJ.

OPINION OF THE COURT BY CHAN, J.

In this secondary appeal, Petitioner-Appellant Melchor A. Ponce (Ponce) appeals from the December 27, 2016 Decision and Order Affirming Administrative Revocation (Order) and the January 31, 2017 Judgment on Appeal (Judgment), both entered by the District Court of the First Circuit (district court). The district court affirmed the administrative revocation of Ponce's driver's license by Respondent-Appellee Administrative Director of the Courts, State of Hawai'i, acting through a hearing officer (Hearing Officer) of the Administrative Driver's License Revocation Office (ADLRO).

On appeal, Ponce argues that the district court erred in affirming the Hearing Officer's conclusion that the implied consent form read to Ponce was not misleading.

I.

On August 25, 2016, Ponce was arrested for Operating a Vehicle Under the Influence of an Intoxicant (OVUII), in violation of Hawaii Revised Statutes (HRS) § 291E-61 (Supp. 2016). After arriving at the police station, the arresting officer read to Ponce the provisions of the form titled "USE OF INTOXICANTS WHILE OPERATING A VEHICLE IMPLIED CONSENT FOR TESTING" (Implied Consent Form). The Implied Consent Form provided:

Pursuant to chapter 291E, Hawaii Revised Statutes (HRS), Use of Intoxicants While Operating a Vehicle, you are being informed of the following:
1. ___ Any person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State shall be deemed to have given consent to a test or tests for the purpose of determining alcohol concentration or drug content of the person[']s breath, blood, or urine as applicable.
2. ___ You are not entitled to an attorney before you submit to any test or test [sic] to determine your alcohol and/or drug content.
3. ___ You may refuse to submit to a breath or blood test, or both for the purpose of determining alcohol concentration and/or blood or urine test, or both for the purpose of determining drug content. If you do refuse, then none shall be given, except as provided in section 291E-21. However, if you refuse to submit to a breath, blood, or urine test, you may be subject to the sanctions of 291E-65 if you are under 21 years of age at the time of the offense. In addition, you may also be subject to the procedures and sanctions under chapter 291E, part III.

Ponce refused to submit to alcohol concentration testing and refused to initial or sign the form to indicate his acknowledgment. After Ponce refused to sign the Implied Consent Form, the arresting officer read to Ponce the provisions of an additional four-page form concerning the consequences of passing, failing, and refusing an alcohol concentration test (Sanctions Form). Ponce again refused to initial or sign the Sanctions Form. After Ponce refused to sign the Sanctions Form, the arresting officer prepared the Notice of Administrative Revocation, which Ponce again refused to sign.

On August 31, 2016, the ADLRO issued its Notice of Administrative Review Decision (Administrative Review Decision), sustaining the Notice of Administrative Revocation and revoking Ponce's license and privilege to operate a vehicle for a two-year period from September 25, 2016 through and including September 24, 2018.

On September 28, 2016, Ponce requested an administrative hearing to review the Administrative Review Decision. The ADLRO held the hearing on October 25, 2016. At the hearing, Ponce raised the argument that the last two sentences in paragraph 3 of the Implied Consent Form were misleading:

You may refuse to submit to a breath or blood test, or both for the purpose of determining alcohol concentration and/or blood or urine test, or both for the purpose of determining drug content. If you do refuse, then none shall be given, except as provided in section 291E-21. However, if you refuse to submit to a breath, blood, or urine test, you may be subject to the sanctions of 291E-65 if you are under 21 years of age at the time of the offense. In addition, you may also be subject to the procedures and sanctions under chapter 291E, part III.

(Emphasis added.) Ponce argued that the two underlined sentences are misleading because, in their given order, both sentences together appear to apply only to persons under twenty-one years of age.

On October 28, 2016, the Hearing Officer filed both the Notice of Administrative Hearing Decision (Administrative Hearing Decision) and the Findings of Fact, Conclusions of Law, and Decision (FOF/COL/Decision). The Administrative Hearing Decision and the FOF/COL/Decision affirmed the Administrative Review Decision and concluded: (1) reasonable suspicion existed to stop Ponce's vehicle; (2) probable cause existed to believe Ponce operated his vehicle while under the influence of an intoxicant; (3) the preponderance of the evidence shows that Ponce refused to submit to an alcohol concentration test after being informed of his right to refuse to submit to testing and of the possible sanctions for such refusal; and (4) the preponderance of the evidence shows that Ponce operated the vehicle while under the influence of an intoxicant. The Hearings Officer rejected Ponce's argument that the Implied Consent Form was misleading. The Hearings Officer also struck Ponce's refusal to submit to testing and amended the period of the administrative revocation from two years to one year because Ponce had no prior alcohol enforcement contacts, pursuant to HRS § 291E-41(b)(1) (Supp. 2016).

On November 18, 2016, Ponce filed a Petition for Judicial Review in the district court. Ponce did not raise any arguments pertaining to the Hearing Officer's findings regarding the evidence of his intoxication. Rather, the only issue Ponce raised to the district court was whether the language of the Implied Consent Form was misleading, Ponce reasserted that the order of the last two sentences in paragraph 3 of the Implied Consent Form and the use of the words "[i]n addition" is misleading because both sentences appear to apply only to persons under twenty-one years of age. Ponce argued that because he "was given materially incorrect implied consent advice, his license revocation must be set aside as [he] might have consented to testing had he been informed that an administrative license revocation proceeding was inevitable."

On December 27, 2016, the district court issued its Order affirming the Hearing Officer's decision. The district court held:

The Court does not find the warning provision to be misleading and merely advises the Petitioner of the consequences of his refusal to submit to a breath, blood or urine test. The warning addresses the subject's age if applicable under Hawaii Revised Statutes (HRS) 291E-65 and sanctions under Administration Revocation Process under HRS 291E Part III.
The Court finds none of the arguments raised by Counsel sufficient to warrant reversal, and the Court finds no reversible error in the record.

This appeal followed.

II.

We review the district court's decision under the right/wrong standard. Freitas v. Admin. Dir. of the Courts, 108 Hawai'i 31, 43, 116 P. 3d 673, 685 (2005) (quoting Soderlund v. Admin. Dir. of the Courts, 96 Hawai'i 114, 118, 26 P.3d 1214, 1218 (2001) ).

III.

Ponce argues that his decision to refuse to submit to testing was not knowing or intelligent because the Implied Consent Form contained language that was misleading. In support of his contention, Ponce relies on State v. Wilson, 92 Hawai'i 45, 49, 987 P.2d 268, 272 (1999), where the Hawai'i Supreme Court held that "Hawai'i's implied consent scheme mandates accurate warnings to enable a driver to knowingly and intelligently consent to or refuse a chemical alcohol test." (Emphasis in original.) In Wilson, the supreme court held that an arrestee did not make a knowing or intelligent decision to consent to testing where the arresting officer stated only that a "three month revocation ... would apply if you chose to take the test and failed it," when in fact the arrestee was subject to revocation of his driving privileges for three months to up to one year. Id. at 51, 987 P.2d at 274. The supreme court held that the arresting officer's statement was "inaccurate and misleading and did not fully inform [the arrestee] of the legal consequences of submitting to a blood test." Id.

Ponce contends that the following language from the Implied Consent Form was misleading and led him to refuse a chemical test:

However, if you refuse to submit to a breath, blood, or urine test, you may be subject to the sanctions of 291E-65 if you are under 21 years of age at the time of the offense. In addition, you may also be subject to the procedures and sanctions under chapter 291E, part III.

Ponce argues that the order and wording of this language suggest that both of the sentences apply only to persons under twenty-one years of age, thereby also suggesting that the referenced administrative license revocation procedure (encompassed in HRS chapter 291E, part III) also only applies to persons under twenty-one years of age. Ultimately, Ponce asserts that "[b]ecause the implied consent form informed Ponce that the administrative driver's license revocation procedure only applied to him if he was under 21 years of age (which he is not), his license revocation must be reversed."

We agree with Ponce's position that the language in the contested portion of the Implied Consent Form is misleading and confusing to the extent that the second sentence regarding sanctions under HRS chapter 291E, part III, appears to apply only to those who are under twenty-one years of age. This reading arises due to the second sentence beginning with the phrase, "[i]n addition," indicating a continuation of the previous sentence, which explicitly applies to those under twenty-one years of age. The contested language misleadingly advises arrestees that the administrative revocation procedure is inapplicable to arrestees who are over twenty-one years of age. However, the possible sanctions under HRS chapter 291E, part III, are not limited to OVUII arrestees under twenty-one years of age who refuse to submit to a breath, blood, or urine test.

The State responds, however, that when viewing the contents of the Implied Consent Form and the Sanctions Form as a whole, an arrestee is clearly advised that the administrative revocation procedures apply to "[a]ny person who operates a vehicle upon a public way, street, road, or highway or on or in the waters of the State[.]" The Sanctions Form consists of three pages of information pertaining to the consequences of passing, failing, and refusing an alcohol concentration test, including the administrative revocation procedures. The fourth and final page of the Sanctions Form is titled, "Acknowledgement [sic] of Receipt of Sanction Information and Implied Consent Testing Choice." Ponce does not challenge any aspect of the Sanctions Form and we need not review its contents in detail here. However, inasmuch as the State contends that the Implied Consent Form and Sanctions Form read together provide an arrestee with clear advisements, we conclude that although the Sanctions Form provides further information to an arrestee as to the procedures and sanctions that were referenced in the Implied Consent Form, it does not cure the misleading nature of the contested language in paragraph 3 of the Implied Consent Form.

Because Ponce was misleadingly advised, "he did not make a knowing and intelligent decision whether to exercise his statutory right of consent or refusal." Wilson, 92 Hawai'i at 51, 987 P.2d at 274 (citation omitted). We therefore conclude that the district court erred in affirming the Hearing Officer's conclusion that the Implied Consent Form was not misleading. Ponce's refusal to submit to testing cannot serve as the basis for the administrative revocation of his driver's license.

We further conclude, however, that the district court did not err in affirming the administrative revocation of Ponce's driver's license on other grounds. An administrative revocation is sustained if

[t]he evidence proves by a preponderance that:
(A) The respondent operated the vehicle while under the influence of an intoxicant; or
(B) The respondent operated the vehicle and refused to submit to a breath, blood, or urine test after being informed:
(i) That the person may refuse to submit to testing in compliance with section 291E-11; and
(ii) Of the sanctions of this part and then asked if the person still refuses to submit to a breath, blood, or urine test in compliance with the requirements of section 291E-15.

HRS § 291E-38(e) (3) (Supp. 2016) (emphasis added); see also HRS § 291E-37(d)(3) (Supp. 2016). Accordingly, an administrative revocation of a driver's license may be based on either one of the two grounds provided in HRS § 291E-38(e)(3) and HRS § 291E-37(d)(3) and either ground is "a sufficient and 'independent ground upon which to sustain revocation.' " Castro v. Admin. Dir. of the Courts, 97 Hawai'i 463, 471, 40 P.3d 865, 873 (2002) (quoting Spock v. Admin. Dir. of the Courts, 96 Hawai'i 190, 191, 29 P.3d 380, 380 (2001) ).

Here, Ponce seeks to reverse his license revocation but does not contest the Hearing Officer's conclusion that there was sufficient evidence on record to prove by a preponderance that Ponce operated the vehicle while under the influence of an intoxicant. Irrespective of Ponce's refusal to submit to testing, the evidence of intoxication provided an independent ground upon which the Hearing Officer could and did rely in upholding the administrative revocation. Thus, although the district court erred in holding that the Implied Consent Form was not misleading, we conclude that the district court correctly affirmed the Hearing Officer's decision to administratively revoke Ponce's license pursuant to HRS § 291E-38(e)(3). See Reyes v. Kuboyama, 76 Hawai'i 137, 140, 870 P.2d 1281, 1284 (1994) ("[W]here the [lower] court's decision is correct, its conclusion will not be disturbed on the ground that it gave the wrong reason for its ruling."); see also Strouss v. Simmons, 66 Haw. 32, 40, 657 P.2d 1004, 1010 (1982) ("An appellate court may affirm a judgment of the lower court on any ground in the record which supports affirmance.").

Based on the foregoing, we affirm the December 27, 2016 Decision and Order Affirming Administrative Revocation and the January 31, 2017 Judgment on Appeal, entered by the District Court of the First Circuit.

      The Honorable Lono J. Lee presided.

      The Implied Consent Form is identified as "HPD-396K (R-12/15)" at the bottom left of the form.

      Each page of the Sanctions Form is identified separately as "HPD-396B1 (R-08/12)," "HPD-396B2 (R-08/12)," "HPD-396B3 (R-11/15)," and "HPD-396B4 (R-08/12)" at the bottom left of the form.

      HRS § 291E-41 provides, in relevant part:
      § 291E-41 Effective date, conditions, and period of administrative revocation; criteria. ...
      (b) ... The periods of administrative revocation, with respect to a license and privilege to operate a vehicle, that shall be imposed under this part are as follows:
      (1) A one year revocation of license and privilege to operate a vehicle, if the respondent's record shows no prior alcohol enforcement contact or drug enforcement contact during the five years preceding the date the notice of administrative revocation was issued[.]

      As mentioned supra , in his Petition for Judicial Review, the only issue raised by Ponce to the district court was whether the Implied Consent Form contained misleading language that rendered Ponce's refusal to submit to testing invalid. Ponce did not challenge the Hearing Officer's findings regarding the evidence of his intoxication and the issue was not before the district court. Therefore the district court's decision only addressed the issue of whether the Implied Consent Form was misleading.

      In fact, the Hearings Officer, in reaching its decision, struck Ponce's refusal to submit to testing in order to reduce the revocation period from two years to one year. Thus, the primary basis for the Hearing Officer's decision to sustain the administrative revocation of Ponce's license was the evidence showing by a preponderance that Ponce was intoxicated while he was operating his vehicle.