Background
Scott Edward Chilleen was convicted of vehicular homicide, leaving the scene of an accident resulting in serious bodily injury and death, vehicular assault, felony DUI, and safety belt violations after a rollover crash killed Mary Murphy and seriously injured Houston Davis. Chilleen’s blood alcohol content was over the legal limit, and he maintained that Davis—not he—had driven the truck.
The felony DUI charge required proof of Chilleen’s three prior DUI convictions. Before trial, he sought to try that count separately from the other charges, arguing that the prior-conviction evidence would unfairly prejudice the jury. The district court denied the motion and gave a limiting instruction. In closing, however, the prosecutor described Chilleen as someone who “gets drunk,” was “no stranger to drunk driving,” and was a “thrice-convicted drunk driver.”
The Court’s Holding
The Colorado Court of Appeals affirmed. It held that the district court did not abuse its discretion when it denied Chilleen’s pretrial request to bifurcate the felony DUI count. The Supreme Court’s decision in People v. Kembel prohibits separating the prior-conviction element from the remaining elements of a single felony DUI charge, but does not categorically prohibit separate trials of whole counts under Criminal Procedure Rule 14. Evaluated from the pretrial perspective, the district court could reasonably rely on a limiting instruction to address anticipated prejudice.
The division assumed the court erred by overruling Chilleen’s objection to the prosecutor’s propensity argument. It explained that a limiting instruction alone is not always sufficient when the prosecution tries to use prior DUI convictions as propensity evidence; a court that denies bifurcation must protect against that misuse, including by instructing the jury to disregard an improper argument when appropriate. But the error was harmless because the properly admitted evidence overwhelmingly established that Davis was in the back seat and Murphy was the front-seat passenger, leaving Chilleen as the only possible driver. The court also upheld the denial of a new trial based on purportedly new interlock-device records because that evidence was available to the defense before trial through due diligence.
Key Takeaways
- Kembel does not bar a trial court from considering bifurcation of entire counts under Rule 14; it bars splitting elements of a single felony DUI charge.
- Prior DUI convictions admitted to prove felony DUI cannot properly be used to argue that the defendant had a propensity to drive drunk.
- Improper propensity argument did not require reversal where overwhelming independent evidence established Chilleen was the driver.
Why It Matters
The decision draws a practical line for felony DUI trials: trial courts retain discretion over whether to sever an entire felony DUI count, but they must actively enforce limits on how the prosecution uses prior-conviction evidence. A limiting instruction is an important safeguard, not a license for propensity advocacy.
For appellate prejudice review, the case also illustrates that even improper use of prior-conviction evidence will not warrant a new trial absent a reasonable likelihood that it affected the verdict.