People v. Palomo - Court of Appeals criminal law decision 8-4-11

People v. Palomo – Costs of Prosecution / Challenge for Cause / Duress

Facts: Essentially, Mr. Palomo and a passenger got into a bar fight with another group of men. The bar fight continued outside, where the passenger told Mr. Palomo to stop his car. After stopping, the passenger got out of the car, and fired three rounds at the other group – grazing one person in the group in the head. The other group then jumped into their car, and chased Mr. Palomo’s car – at some point ramming Mr. Palomo’s car. The police then attempted to stop and contact Mr. Palomo, but after initially stopping, Mr. Palomo kept driving. Hence the prosecution charged him with: F2- Attempted 1˚ Murder; F4 – 2˚ Assault; F5 – Vehicular Eluding; and the sentence enhancer Crime of Violence.

During voir dire a juror, TJ, stated at no point would he take into consideration the mental state of anyone accused of using a weapon during the commission of a crime. The trial court then claimed to have rehabilitated the juror, and denied the defense challenge for cause.  Nevertheless, the jury only convicted Mr. Palomo of vehicular eluding and the lesser non-included, eluding a police officer – a traffic offense.

At sentencing and after the defense made its argument, the prosecution sought and the court granted a motion for costs of prosecution. According to the Court of Appeals, the prosecution incurred almost all of the costs prosecuting the attempted murder and 2˚ assault counts.

Issue: Whether the trial court erred in imposing the costs of prosecution?

Held: Yes.

Reasoning: Finally, an appellate court has balls to reign in these ridiculous motions for costs of prosecution. Here, the Court reasoned that the jury did not buy any of the voluminous testimony the prosecution presented in an attempt to pin the attempted 1˚ murder and 2˚ assault on Mr. Palomo. Thus, the trial court did not have the discretion or authority to impose costs of prosecution on acquitted counts. Hallelujah!

Issue: Whether the trial court abused its discretion in denying the defense’s challenge for cause on juror TJ, who stated bluntly, he would not take into consideration any evidence of mental state or lack there of?

Held: No – through the magic of buying B.S. answers and disregarding the emphatic honesty.

Reasoning: During jury selection, the following colloquy occurred between defense counsel and a juror:

TJ: My position is that it is when you put your hand on the weapon, you take full responsibility for what happens with that weapon. I believe in personal responsibility.

D: Okay. And would that position that you have, and you feel very strongly about, I can see by the way you are talking about it, that you absolutely believe

this would put you in a position where you are not going to make the Prosecution prove a person's mental state, you know what their mental state is?

TJ: No, ma‘am. I don't believe mental state, okay? I believe that the case for mental state is over used.

D: Okay.

TJ: Okay. Mental state doesn't matter. I was mad as hell and pointed a gun to scare somebody off. When I pointed at someone and pulled the trigger, you have to infer, in my opinion, that [I] intended to inflict harm.

The trial court then followed up with the same juror:

C: ... However, the culpable mental state, under the law, is as much an element and a part of the act of the crime as the act itself. Do you understand that, sir?

TJ: Uh-huh.

C: And, you know, I think there has been some issue raised in the questioning regarding mental state. This is not a case in which—in which there is an

assertion of insanity or impaired mental condition, but culpable mental state is as much an element of the offense as any other element of the offense as a matter of law. Would you follow that law or would you disregard the culpable mental state component

of the instruction?

TJ: No. I would follow the law.

The Court of Appeals, like the trial court, turned a blind eye to the obvious, “In our view, TJ's conversation with defense counsel was in the nature of an abstract discussion about personal responsibility and his conversation with the trial court was about the elements of an offense and the obligation of the jurors to follow the trial court's instructions. It is the latter subject that should be the focus of the trial court in its consideration of a challenge to a prospective juror for cause. Although TJ stated that ‘the case for mental state is over used,’ and that ‘mental state doesn't matter,’ when questioned by the court he unequivocally stated that he would both follow the law and not disregard the culpable mental state element of an offense when instructed that it needed to be proved.

Issue: Whether the trial court erred in by not instructing the jury on the affirmative defense of duress?

Held: No.

Reasoning: Bad combo here: 1) Mr. Palomo talked to the police, and 2) talked his way out of any possible chance of asserting the defense of duress. According to the Court of Appeals, “During that interrogation, defendant told police he drove away at his friend's instruction because he wanted an opportunity to dispose of the firearm. Defendant also said: ‘I got kind of scared and I just like panicked, because I was drunk, and then I just took off.’ Defendant did not say that his friend pointed the firearm at him or threatened him with it.” Thus, the CofA reasoned that the trial court committed no error in denying the defense of duress: 1) these two were friends, 2) no dispute between the two; 3) the passenger handed the gun to Mr. Palomo; 4) Mr. Palomo gave the gun back to the passenger – the very person allegedly causing him to act under duress.