Domingo-Gomez v. People

125 P.3d 1043, 2005 Colo. LEXIS 1086, 2005 WL 3455837
CourtSupreme Court of Colorado
DecidedDecember 19, 2005
Docket04SC640
StatusPublished
Cited by1,782 cases

This text of 125 P.3d 1043 (Domingo-Gomez v. People) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Domingo-Gomez v. People, 125 P.3d 1043, 2005 Colo. LEXIS 1086, 2005 WL 3455837 (Colo. 2005).

Opinions

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 [1046]*1046court 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 In an unpublished opinion, the court of appeals affirmed his convictions.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 Bal-dizan.

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 Menehaca and Juan Carlos Toledo also testified on Domingo-Gomez’ behalf. They testified that Stephanie Baldi-zan mistakenly identified Domingo-Gomez as the perpetrator. To support the misidentifi-cation 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 [1047]*1047knife wounds. Mike Fernandez helped the defendant get into a ear and then drove him to Juan Carlos Toledo’s house. Domingo-Gomez did not own a ear or have a valid driver’s license at that time.

Toledo testified that he then brought Domingo-Gomez to Norberto Menchaca’s house. Menehaca 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. Menehaca cleaned and bandaged Domingo-Gomez’ wounds. Menchaca’s friend George Bonar then gave Domingo-Gomez a pain killer. Menehaca, 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 Bal-dizan.

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.

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Cite This Page — Counsel Stack

Bluebook (online)
125 P.3d 1043, 2005 Colo. LEXIS 1086, 2005 WL 3455837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/domingo-gomez-v-people-colo-2005.