People of Michigan v. Robert Joseph Pado ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 11, 2019
Plaintiff-Appellee,
v No. 342883
Clinton Circuit Court
ROBERT JOSEPH PADO, also known as LC No. 2017-009935-FH
VINCENT ROBERT ROCX,
Defendant-Appellant.
Before: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
Defendant, Robert Pado, appeals his jury-trial conviction of operating a vehicle while
intoxicated, third offense (OWI-III), MCL 257.625(1); MCL 257.625(9)(c). The trial court
sentenced Pado as a second-offense habitual offender, MCL 769.10, to a term of 13 to 90
months’ imprisonment. Pado alleges that the trial court deprived him of his rights to due process
and to present a defense when it dispensed with oral argument before denying his motion to
dismiss or, in the alternative, to suppress evidence. We affirm.
A police officer stopped Pado for driving his pickup truck southbound in the northbound
lane of a divided highway in Clinton County. When the officer approached the truck, he saw an
open, half-empty bottle of whiskey in the driver’s side of the truck. According to the officer, he
“smelled an overwhelming odor of intoxicants” coming from Pado and his vehicle. Pado said he
had been “deejaying” at an event and that he drank two beers. He explained that he was on the
wrong side of the road because he was unfamiliar with the area and had realized his mistake just
before the officer stopped him.
The officer asked Pado to perform a series of field sobriety tests. The officer detected
nystagmus, an involuntary twitching of the eyes that can be a sign of intoxication, in both of
Pado’s eyes. Pado also failed a counting evaluation. Following the field sobriety tests, the
officer arrested Pado and drove him to jail where Pado provided two breath samples for the
breathalyzer test. The first sample indicated a blood alcohol content (BAC) of 0.15 percent and
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the second sample was “technically refused” because Pado did not provide a steady breath. Pado
was charged with operating a vehicle while intoxicated.
At the final pretrial conference nine days before the trial, defense counsel informed the
trial court that he planned to file motions that could be dispositive or would result in the
suppression of the breathalyzer test results. The trial court instructed him to file the motions no
later than five days before the trial and indicated that it would consider them on the day of the
trial. Defense counsel filed a motion to dismiss alleging the officer lacked probable cause to
arrest Pado. Further, defense counsel argued Pado’s breathalyzer results should have been
suppressed due to the improper administration of the breath test. The morning of trial, the trial
court considered and denied the motion without allowing oral argument, pursuant to MCR
2.119(E)(3).1 The trial court concluded that procedurally, relying on People v Ferguson, 376
Mich. 90, 93; 135 NW2d 357 (1965), “questions concerning the illegality of the acquisition of
evidence ought not be left for trial.” Substantively, the trial court determined that, “even
accepting the facts as alleged,” it was “satisfied there was no question the arrest here was
lawful.” During the trial, defense counsel cross-examined the certified operator of the
breathalyzer regarding the maintenance and accuracy of the test. He also questioned the
arresting officer who administered the test about whether he had observed Pado for the
appropriate length of time to allow the test to produce accurate results. After the close of
evidence, defense counsel renewed his motion to suppress the breathalyzer evidence and the trial
court denied it. The jury found Pado guilty.
Pado’s sole argument on appeal is that the trial court’s decision to dispense with oral
argument and rely only the parties’ briefing to make its ruling violated his constitutional rights to
due process and to present a defense. We disagree.
We review de novo whether a defendant was denied due process of law. People v
Francisco, 474 Mich. 82, 86; 711 NW2d 44 (2006). This Court reviews a decision to omit or
limit oral argument for an abuse of discretion. Fisher v Belcher, 269 Mich. App. 247, 252; 713
NW2d 6 (2005). “An abuse of discretion occurs when the court chooses an outcome that falls
outside the range of reasonable and principled outcomes.” People v Unger, 278 Mich. App. 210,
217, 259; 749 NW2d 272 (2008).
The Due Process Clause of the Fourteenth Amendment “require[s] that criminal
defendants be afforded a meaningful opportunity to present a complete defense.” People v
Anstey, 476 Mich. 436, 460; 719 NW2d 579 (2006) (quotation marks and citation omitted). The
right to present a defense encompasses “[t]he right to offer the testimony of witnesses,”
Washington v Texas, 388 U.S. 14, 19; 87 S. Ct. 1920; 18 L. Ed. 2d 1019 (1967), as well as defense
counsel’s ability “to argue a reasonable inference from evidence adduced at trial,” People v
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This court rule provides: “A court may, in its discretion, dispense with or limit oral arguments
on motions, and may require the parties to file briefs in support of and in opposition to a
motion.” MCR 2.119(E)(3).
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Stokes, 312 Mich. App. 181, 207; 877 NW2d 752 (2015), vacated in part on other grounds 501
Mich. 918 (2017). The right to present a defense further protects a defendant’s ability to “put
before a jury evidence that might influence the determination of guilt,” and to have access to
exculpatory evidence. Anstey, 476 Mich. at 460.
Pado’s claim lacks merit because he had a full opportunity to brief the issue and have his
arguments considered by the trial court. First, the trial court reviewed Pado’s motion and brief in
support and ruled on it before the trial. Second, defense counsel engaged in lengthy cross-
examination of the certified operator of the breathalyzer and of the arresting officer about the test
and whether the officer observed Pado for the appropriate length of time before administering the
test. Finally, at the close of evidence Pado renewed his motion, and the trial court again denied
it. The trial court did not violate Pado’s constitutional right to due process.
Moreover, MCR 2.119(E)(3) provides that “[a] court may, in its discretion, dispense with
or limit oral arguments on motions,” and Pado raises no argument that the trial court abused its
discretion in doing so. Indeed, no abuse of discretion occurred under the circumstances of this
case. Although a trial court may abuse its discretion in limiting argument under MCR
2.119(E)(3) when a party is not afforded an adequate opportunity to present an argument by brief
or oral argument, see People v Leonard, 224 Mich. App. 569, 578-579; 569 NW2d 663 (1997),
this Court has repeatedly concluded that there is no abuse of discretion when the trial court
dispenses with oral arguments after the parties have fully briefed the issues. See Fast Air, Inc v
Knight, 235 Mich. App. 541, 550; 599 NW2d 489 (1999) (concluding that there was “no abuse of
discretion . . . where the trial court was fully apprised of the parties’ positions, by way of the
parties’ briefs, before rendering a decision”); American Transmission, Inc v Channel 7 of
Detroit, Inc, 239 Mich. App. 695, 709; 609 NW2d 607 (2000) (“Because, as the trial court noted,
the parties had thoroughly briefed the issues, we cannot find that the court abused its discretion
in dispensing with oral argument.”).
The trial court did not abuse its discretion when it ruled without hearing oral argument
because Pado submitted a brief in support of his motion and the trial court reviewed the briefing
and ruled accordingly. See Fast Air, Inc, 235 Mich. App. at 550; American Transmission, Inc,
239 Mich. App. at 709. Unlike Leonard, 224 Mich. App. at 579, this case does not involve an
especially complex issue requiring a lengthy brief. Although Pado further argues that “[t]he
problem is the record is far too scant to be adequate for appellate review,” he does not explain
how the lack of oral argument resulted in prejudice to his appeal. See Westland v Kodlowski,
298 Mich. App. 647, 662; 828 NW2d 67 (2012), rev’d in part on other grounds 495 Mich. 871
(2013) (holding that “the inability to present oral argument is not a significant detriment to
success on appeal”).
Pado does not raise any argument concerning the trial court’s substantive ruling with
respect to his motion to dismiss or suppress evidence. Instead, he merely argues that “[i]f the
judge [had] granted the motion and suppressed the breathalyzer evidence it would be outcome
determinative,” and that he “thus can show the necessary prejudice.” However, the
overwhelming evidence of Pado’s guilt, including driving on the wrong side of a divided
highway, smelling of alcohol, his admission of drinking alcohol before driving, and having an
open alcohol container in his truck, demonstrates that any error in admitting the breathalyzer
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results was harmless. See People v Mateo, 453 Mich. 203, 214; 551 NW2d 891 (1996)
(concluding that “for some types of error, such as the erroneous admission . . . of evidence,
overwhelming evidence of guilt will ordinarily lead to the conclusion that the error was
harmless”).
Affirmed.
/s/ Brock A. Swartzle
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
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