People v. Palomo, 09CA1095.
| Decision Date | 29 September 2011 |
| Docket Number | No. 09CA1095.,09CA1095. |
| Citation | 272 P.3d 1106 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Vincent PALOMO, Defendant–Appellant. |
| Court | Colorado Court of Appeals |
272 P.3d 1106
The PEOPLE of the State of Colorado, Plaintiff–Appellee,
v.
Vincent PALOMO, Defendant–Appellant.
No. 09CA1095.
Colorado Court of Appeals, Div. III.
Aug. 4, 2011.Rehearing Denied Sept. 29, 2011.
[272 P.3d 1108]
John W. Suthers, Attorney General, Rhonda L. White, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.
Douglas K. Wilson, Colorado State Public Defender, James S. Hardy, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.
Opinion by Judge ROY.Vincent Palomo, defendant, appeals his conviction entered on jury verdicts finding him guilty of vehicular eluding, § 18–9–116.5, C.R.S.2010 (class 5 felony), and the lesser nonincluded charge of eluding or attempting to elude a police officer, § 42–4–1413, C.R.S.2010 (class 2 traffic offense). He also appeals the assessment of costs and fees, including the costs of prosecution, in the amount of $2,379.65. We affirm his conviction, vacate the order assessing the costs of prosecution, and remand for further proceedings.
According to defendant's statement given during an interrogation following his arrest, he picked up a friend who was carrying a handgun, which he hid under the hood of the vehicle. The two men went to a bar for drinks, where they met defendant's sister, niece, and cousin to celebrate defendant's sister's birthday. Two other patrons, one of whom apparently was the victim, intruded on defendant's party, causing a confrontation in the bar.
After closing, defendant and his friend left the bar and encountered the other party in the parking lot. According to defendant, he and his friend started to drive away but his friend asked defendant to stop while they were still in the parking lot. The friend exited the vehicle and fired three shots, one of which inflicted a nonfatal head wound to the victim. The victim and others gave chase in another vehicle; they collided with defendant's vehicle, damaging it and totaling theirs.
Shortly thereafter, a sheriff's deputy, who had received a description of defendant's vehicle, saw the vehicle, activated his emergency equipment, stopped the vehicle, identified himself, ordered both occupants to put their hands outside the window, and told them they were under arrest. After initially placing his hands out the driver's window, defendant pulled them back in and drove away at a high rate of speed. With three police vehicles pursuing him, defendant ran several stop signs and drove forty-five miles an hour over the speed limit. The chase continued a considerable distance until defendant turned into a dead-end street, where he stopped at or near his girlfriend's home. Defendant and his friend were arrested.
Defendant argues that the trial court erred by (1) not granting his challenge for cause to a potential juror; (2) not instructing the jury on the affirmative defense of duress; and (3) awarding costs of prosecution that bore little, if any, relationship to the counts for which he was convicted.
Defendant first contends that the trial court erred when it denied his challenge for cause to a potential juror (TJ). We disagree.
A trial court's denial of a challenge for cause as to a prospective juror is reviewed for an abuse of discretion. Carrillo v. People, 974 P.2d 478, 485 (Colo.1999). A trial court's ruling on a challenge for cause will only be reversed if there is no evidence in the record to support it. People v. Richardson, 58 P.3d 1039, 1042 (Colo.App.2002).
A juror shall not be disqualified if the trial court is satisfied that the juror will follow the court's instructions and base his or her verdict on the evidence presented at trial. § 16–10–103(1)(j), C.R.S.2010; People v. Strean, 74 P.3d 387, 390–91 (Colo.App.2002).
Defendant asserts that TJ was biased against criminal defendants and would not hold the prosecution to its burden to prove the culpable mental state of the offenses charged. This concern arose from the following exchange between TJ and defense counsel (D) during voir dire:
D: So I just want to ask you in general then if your position is that if essentially if
[272 P.3d 1109]
a person fires a gun in the vicinity of other people, regardless of their mental state, whether it is reckless, or they are acting in a knowing manner, your position is that it is their intent to cause the death of another person? Is that your position?
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.
(Emphasis added.)
At the conclusion of voir dire, the court (C) asked TJ additional questions:
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.
(Emphasis added.)
The trial court denied defendant's challenge for cause, stating:
[TJ] indicated he can be fair and impartial, follow the law in this case. Although he has somewhat demonstrated strong opinions, certainly nothing that demonstrates bias against either party. He indicated clearly he would follow the law, so the challenge for cause as to [TJ] is denied.
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.
Defendant argues that the trial court's rehabilitation questions were leading, and that TJ was only responding to please the court. However, it is for the trial court to determine credibility and whether a person is intimidated or insincere. In the event there are inconsistent responses, only the trial court can fully appraise the true attitudes and state of mind of a potential juror. Carrillo, 974 P.2d at 487 (citing People v. Sandoval, 733 P.2d 319, 321 (Colo.1987)).
Therefore, we conclude that the trial court did not abuse its considerable discretion in denying defendant's challenge for cause.
Defendant next contends that the trial court erred when it refused to instruct the jury on the affirmative defense of duress. We are not persuaded.
[272 P.3d 1110]
A defendant is not entitled to an instruction on an affirmative defense unless he or she first presents “some credible evidence” of that defense. People v. Garcia, 113 P.3d 775, 783–84 (Colo.2005). Whether a defendant meets this burden is a question of law which we review de novo. Id. at 784. In so doing, we review the record as a whole for any evidence tending to establish the affirmative defense. Id. In determining whether a defendant was entitled to the requested instructions, we consider the evidence in the light most favorable to the defendant. Cassels v. People, 92 P.3d 951, 955 (Colo.2004).
Section 18–1–708, C.R.S.2010, which defines the affirmative defense of duress, provides in...
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