Domingo-Gomez v. People

Page 1043

125 P.3d 1043

Petitioner: Victor Hugo DOMINGO-GOMEZ, v. Respondent: The PEOPLE of the State of Colorado.

No. 04SC640.

Supreme Court of Colorado.

December 19, 2005.

Rehearing Denied January 9, 2006.^*

COPYRIGHT MATERIAL OMITTED

David S. Kaplan, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, for Petitioner.

John W. Suthers, Attorney General, Karen E. Lorenz, Assistant Attorney General, Denver, for Respondent.

MARTINEZ, Justice.

The defendant, Victor Domingo-Gomez, appeals his conviction for the use of an explosive or incendiary device, first degree arson, attempted first degree assault, and the possession of an explosive or incendiary device for throwing two Molotov cocktails into the victims' residence on September 21, 2001. During the State's closing argument, the prosecution remarked that Domingo-Gomez and defense witnesses lied, testified untruthfully, and made up their stories. The trial court sustained the judge's own objection to the prosecutor's use of the word "lied" during the closing argument. During rebuttal closing, the prosecution further commented that the evidence supporting guilt was sufficient to meet the State's "screening process." Domingo-Gomez appealed his conviction on the basis that these improper statements violated his right to a fair trial by an impartial jury. In an unpublished opinion, the court of appeals affirmed his convictions. People v. Domingo-Gomez, No. 02CA1993, slip op. at 6, 2004 WL 1949852, *1 (Colo.App.2004).

We granted certiorari and now affirm the court of appeals.

I. Facts and Procedural History

The following facts are undisputed. Late in the evening on September 21, 2001, sisters Stephanie and Veronica Baldizan invited several friends over to their home. Defendant Victor Domingo-Gomez and Mike Fernandez, referred to as "Mike" by the witnesses, attended the party. Also in attendance was Paul Baldizan, who resided with his sisters, and their cousin Angelo (last name unknown). Alcoholic beverages were consumed by all of the attendees, except Veronica Baldizan.

Several hours after the party began, Angelo mistakenly accused the attendees of taking his cell phone. Paul Baldizan requested that everyone leave after the partygoers were unable to locate it. A fight then broke out between Paul Baldizan and Domingo-Gomez over the party's end. Paul Baldizan "got the best of the fight," but witnesses differed about how injured Domingo-Gomez was. After the fight, Mike Fernandez and Domingo-Gomez left the Baldizan residence.

Around six o'clock the next morning, someone threw two Molotov cocktails¹ into the Baldizan residence. One of the Molotov cocktails struck Stephanie Baldizan, and the other exploded in the back bedroom. In relation to these events, Domingo-Gomez was charged with the use of an explosive or incendiary device, section 18-12-109(4), C.R.S. (2005); first degree arson, section 18-4-102, C.R.S. (2005); attempted first degree assault, sections 18-2-101(1), 18-3-202, C.R.S. (2005); and the possession of an explosive or incendiary device, section 18-12-109(2), C.R.S. (2005).

The events occurring after Domingo-Gomez' departure from the Baldizan residence were highly contested at trial. Stephanie Baldizan testified that in the early morning hours of September 22, 2001, she was in the back room of her house when she heard a dog barking outside. She opened the window blinds to see what was going on and an unlit Molotov cocktail was thrown towards the window. The Molotov cocktail broke through the window. The bottle shattered, covering Stephanie Baldizan's body with gasoline and temporarily blinding her. As she screamed for Veronica Baldizan to call the police and take her young daughter outside, a second Molotov cocktail was thrown into the back bedroom. The second Molotov cocktail was lit and exploded upon contact, causing extensive fire damage. No fingerprints were found on the bottle remnants and no other physical evidence linked the defendant to the crime. Stephanie Baldizan positively identified Domingo-Gomez as the individual who threw the Molotov cocktail at her. No one else personally witnessed these events.

Domingo-Gomez took the stand in his own defense. Noberto Menchaca and Juan Carlos Toledo also testified on Domingo-Gomez' behalf. They testified that Stephanie Baldizan mistakenly identified Domingo-Gomez as the perpetrator. To support the misidentification theory, Domingo-Gomez and his witnesses testified that Domingo-Gomez was elsewhere at the time of the crime. Domingo-Gomez testified that after the fight, he was severely injured, potentially even having knife wounds. Mike Fernandez helped the defendant get into a car and then drove him to Juan Carlos Toledo's house. Domingo-Gomez did not own a car or have a valid driver's license at that time.

Toledo testified that he then brought Domingo-Gomez to Norberto Menchaca's house. Menchaca testified that the pair arrived at approximately 2:00 or 3:00 a.m. on September 22, 2001, and that Domingo-Gomez was severely injured and still intoxicated. Toledo brought Domingo-Gomez to Menchaca's house because the defendant refused to go to the hospital. Menchaca cleaned and bandaged Domingo-Gomez' wounds. Menchaca's friend George Bonar then gave Domingo-Gomez a pain killer. Menchaca, Toledo, and Domingo-Gomez all testified that the defendant then fell unconscious and slept until about 9:00 a.m. that morning.

The meaning of a comment made during the arrest of Domingo-Gomez was also disputed. Around 4:00 a.m. on November 19, 2001, Investigator Jason Norris of the Denver Fire Department arrested Domingo-Gomez at his residence. The defendant's younger brother, Mike, was also in the room at the time. Confusing the defendant's younger brother with Mike Fernandez, Investigator Norris believed the he may have been with Domingo-Gomez the night of the firebombing. Investigator Norris, therefore, asked to speak with him in relation to the arson. Without prompting, Domingo-Gomez stated "He wasn't even there." Investigator Norris interpreted this comment as an admission that Domingo-Gomez, and not his brother, was involved in the firebombing. The defense, however, argued this statement meant that the defendant's brother was not around during Domingo-Gomez' fight with Paul Baldizan.

Paul Baldizan also gave undisputed testimony about an event occurring in January 2002. While Paul Baldizan and a friend walked down Federal Avenue, Mike Fernandez approached him and stated that he knew where Paul Baldizan lived and challenged Baldizan to fight him. Mike Fernandez further called Paul Baldizan a snitch and stated "I will use your jersey to burn your house down." Paul Baldizan testified that he did not know exactly what Mike Fernandez meant by that comment except that "he was just stating that he would do it ... [and] [i]f it happened once, he'll do it again."

During the People's closing argument, the prosecutor stated that Domingo-Gomez and other defense witnesses lied, testified untruthfully, and/or made up their stories. The prosecutor further remarked in rebuttal closing that the State has a "screening process" that cases must go through before charges are filed and that the evidence in this case was sufficient to pass through that process.

During the jury deliberations, the jury sent several questions to the trial court. One request asked to review the transcripts of certain witnesses. The trial court responded by telling them to "rely on their own recollections." The jury sent a further question asking:

What do we do if we are split; what are the repercussions? [7 of us believe defendant is guilty 4 of us believe state hasn't met the burden of proof due to identification of defendant 1 of us is still unsure.]

The trial court answered "Please continue your deliberations."

The jury found Domingo-Gomez guilty on all counts. The trial judge merged the use of an explosive or incendiary device, attempted first degree assault, and possession of an explosive or incendiary device counts. Domingo-Gomez was sentenced to the Department of Corrections for twenty-four years for the use of an explosive or incendiary device and twenty-four years for arson, to run concurrently, with five years of mandatory parole upon release.

Domingo-Gomez appealed on the ground that the prosecutor's statements during closing argument deprived him of his right to a fair trial by an impartial jury and mandated the reversal of his convictions. In an unpublished opinion, the court of appeals affirmed Domingo-Gomez' conviction. Domingo-Gomez, slip op. at 6, at *1.

We granted certiorari and now affirm the judgment of the court of appeals.²

II. Prosecutor's Statements

Domingo-Gomez argues that the prosecutor repeatedly made improper and prejudicial remarks during her closing argument, which violated his right to a fair trial by an impartial jury. Domingo-Gomez alleges that the prosecutor's statements that he and other defense witnesses lied, testified untruthfully, made up their stories, and that his case went through a "screening process" prior to the filing of charges were so prejudicial as to warrant a reversal of his convictions.

In reviewing Domingo-Gomez' claim, we must first review whether the prosecutor's statements were improper. We then address whether the prosecutor's improper remarks warrant reversal. See Harris v. People, 888 P.2d 259, 265-67 (Colo.1995). In making this determination, we necessarily take into account the differences among the four remarks, including the language used, context, and whether a contemporaneous objection was made.

A.

We have repeatedly stated that "a prosecutor, while free to strike hard blows, is not at liberty to strike foul ones." Wilson v. People, 743 P.2d 415, 418 (Colo.1987) (internal quotations omitted) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). While a prosecutor can use every legitimate means to bring about...