# Domingo-Gomez v. People > Supreme Court of Colorado · December 19, 2005 · 125 P.3d 1043 URL: https://www.frixlaw.com/law-library/cases/9795859 ## Case - **Full name:** Petitioner: Victor Hugo DOMINGO-GOMEZ, v. Respondent: The PEOPLE of the State of Colorado - **Court:** Supreme Court of Colorado - **Decided:** December 19, 2005 - **Citations:** 125 P.3d 1043; 2005 Colo. LEXIS 1086; 2005 WL 3455837 - **Precedential status:** Published - **Opinion:** Dissent by Bender - **Judges:** Martinez, Bender - **Cited by:** 273 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9795859 ## How later opinions describe it (automated extraction) - concluding that the prosecutor’s inartful statements to the jury that a witness “did not tell you the truth” were, in context, proper comments “on reasonable inferences stemming directly from the facts in evidence during closing argument” - holding that no plain error occurred where the prosecutor stated that “defense witnesses lied and made up their stories” and defense counsel failed to make a contemporaneous objection - stating that to determine whether a statement was improper opinion, a reviewing court must consider the language used, the context of the statement, and other relevant factors - explaining that, during closing argument, counsel may “point to different pieces of evidence and explain their significance within the case” - explaining that during closing argument, counsel may “point to different pieces of evidence and explain their significance within the case” ## Opinion text Justice BENDER, dissenting. The majority holds that the prosecutor’s conduct in this case, while improper in three of four instances, nonetheless does not warrant reversal of Domingo-Gomez’ conviction. In a close case, where the trial outcome rests upon the jury’s decision regarding whose testimony to believe and the jury is divided after some deliberation, the prosecutor’s argument assumes greater significance than it ordinarily would, and weighs heavily in the jury’s decision. Here, the prosecutor’s statements of personal opinion telling the jury that the defense witnesses were effectively lying, when combined with her statement of fact implying there existed additional evidence not presented to the jury that assured Domingo-Gomez’ guilt, cast doubt on the reliability of the jury’s verdict. Although I agree with the majority’s discussion of legal principles, I disagree with their application in this case. Hence, I respectfully dissent and would reverse Domingo-Gomez’ conviction. Discussion Prosecutors must shoulder weighty responsibilities within our jurisprudential scheme. “Prosecutors, who are enforcers of the law, have higher ethical duties than other lawyers because they are ministers of justice, not just advocates.” People v. Pautler, 35 P.3d 571, 579 (Colo.O.P.D.J.2001) (citing People v. Reichman, 819 P.2d 1035, 1038 (Colo.1991)). They have a responsibility not only to adhere to our standards of professional conduct, but they should also “strive to exceed” these standards. Id. The prosecutor’s enhanced role, which includes the additional duty to uphold our system of justice as a minister of justice, is articulated in the Colorado Rules of Professional Conduct: A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Colo. RPC 3.8 cmt. [1]. In my view, the majority fails to hold the prosecutor in this case to these high standards. The majority concludes that the prosecutor’s use of the word “lied” during closing, although an improper personal opinion, was cured by a shift in phraseology. Because the prosecutor did not say the word “lied” again, the majority concludes these statements were not unduly prejudicial. I disagree. While refraining from using the word “lied” again, the prosecutor told the jury the same thing by resorting to the synonymous phrases “did not tell you the truth” and “not truthful.” Maj. op. at 1051. I see no difference between saying Domingo-Gomez lied and saying that he didn’t tell the truth. The verb “lie” is synonymous with “be untruthful.” Roget’s International Thesaurus 260 (5th ed.1992). The average listener on the jury would not make a substantive distinction between these terms. The prosecutor’s use of the phrases “not truthful” and “did not tell you the truth” in place of “lied” constitutes an impermissible commentary on the defendant’s credibility. See, e.g., State v. Elnicki, 279 Kan. 47 , 105 P.3d 1222 (2005) (reversing defendant’s conviction for cumulative error that included prosecutor’s assertion in closing argument, through use of synonyms, that defendant lied, even though she avoided the word “lie”). The majority asserts that the word “lie” resonates more powerfully than similar words or phrases. Maj. op. at 1050. Yet, this assumption does not change the prejudicial effect that this word, once uttered, had on the jury. Though the trial court issued a *1056 curative instruction to stop using the word “lying,” as the prosecutor’s argument unfolded, the instruction just reinforced the argument’s unfair impact. Substitution of interchangeable terminology does not change the impact on the listener. By rephrasing her statement that Domingo-Gomez “lied” to the assertion that he was “not truthful,” the prosecutor was playing a game of semantics and simply exchanging synonymous terms to express the very same idea — that he lied. In the words of the Kansas Supreme Court in Elnicki , although she used different terminology, the prosecutor nonetheless told the jury, using thinly disguised semantics, that Domingo-Gomez was lying. Elnicki, 105 P.3d at 1233 . To bolster its determination that the prosecutor’s use of the word “lied” and synonymous terms do not warrant reversal, the majority’s rationale rests in part on the fact that the attorneys on both sides reminded jurors to rely on their memories rather than counsels’ arguments to evaluate witness testimony. This rationale contradicts what we said in Wilson v. People, a case addressing a situation similar to this one. In Wilson, as here, there was no physical evidence tying the defendant to the crime. 743 P.2d 415, 420 (Colo.1987). Accordingly, the outcome hinged upon whether the jury believed the State’s witnesses or those for the defense. Id. During closing argument, the prosecutor repeatedly stated that the defendant and his witness had lied in their testimony. Id. at 417 . Though the court subsequently instructed the jury that it was their duty to ascertain the credibility of the witnesses, 1 we nonetheless found plain error. Id. at 420-21 . We noted that “it would defy common sense ... to believe that this instruction was sufficient to neutralize the impact of the prosecutor’s improper remarks.” Id. We further explained that, “[although jurors are obviously aware that the arguments of counsel are not evidence, we cannot ignore the fact that jurors do pay heed to the arguments of counsel in arriving at a result.” Id. at 421 . This logic undercuts the majority’s position that similar admonitions to the jury can override the prejudicial effects of the prosecutor’s charge that Domingo-Gomez lied. It may be accurate that the prejudicial remarks at issue in Wilson were more egregious than those made in this case. Maj. op. at 1053, n. 5. However, the greater degree of impropriety of the statements in Wilson does not render the statements in this case any less harmful. The majority also reasons that the prosecutor made a permissible inference regarding Domingo-Gomez’ credibility when she stated that he was not truthful. Id. at 1051-1052. Again, I disagree. The ABA Standards, relied upon by the majority, delineate between drawing a reasonable inference based on evidence and expressing an improper personal belief regarding a witness’s testimony. Id. at 1049. Subsection 3-5.8(a) states that, in closing, a prosecutor may argue reasonable inferences based on the evidence. ABA Standards for Criminal Justice § 3-5.8(a) (3d ed.1993); maj. op. at 1049. However, subsection (b) states that a prosecutor should not express her opinion as to the veracity of witness testimony. ABA Standards for Criminal Justice, supra, § 3 — 5.8(b); maj. op. at 1049. The fact that the two provisions are listed as separate subsections indicates that an opinion regarding witness credibility is different than an argument based upon reasonable inferences. The commentary to section 3-5.8 supports this distinction. While acknowledging that the “line between permissible and impermissible argument is a thin one,” the commentary explicitly states that “[ejredibility is to be determined solely by the triers of fact.” Id., cmt. The commentary explains that “an advocate may point to the fact that [evidence] give[s] support to one witness or cast[s] doubt on another.” Id. The National Prosecution Standards also bolster this rationale, stating that “[w]ith the exception of statements of personal belief, the prosecutor may comment unfavorably on witnesses, noting *1057 inconsistent accounts ... [and] possible sources of bias.” National District Attorneys Association, National Prosecution Standards 229 (2d ed.1991) (emphasis added). The line between highlighting inconsistent testimony and making improper expressions of personal opinion may be difficult to locate, but in this case, the prosecutor went beyond pointing out evidence that undermined Domingo-Gomez’ testimony. By informing the jury that Domingo-Gomez was not telling the truth, the prosecutor overtly called him a liar — safely over the line where improper expression of opinion begins. Instead of appropriately pointing out inconsistent testimony and other evidence indicating that Domingo-Gomez may not have been telling the truth, then allowing the jurors to draw their own conclusions, the prosecutor went too far. She gave the jury her opinion, several times, that Domingo-Gomez was lying, not truthful, and not telling the jury the truth. The criteria set forth by the majority to determine whether a statement is an improper expression of personal opinion — the language used and the context in which the statement was made — leads to the conclusion that the prosecutor crossed the line. By stating that Domingo-Gomez was not telling the truth when his credibility was critical to the jury’s decision, the prosecutor expressed an improper personal opinion that was highly prejudicial. The majority concludes that the prosecutor’s other two statements in question were improper, but their cumulative effect did not affect the fundamental fairness of Domingo-Gomez’ trial. Maj. op. at 1052-1053. I address the remaining two statements in turn. The majority determines that, though improper, the prosecutor’s statement that Domingo-Gomez and his witnesses collaborated to fabricate their stories does not warrant reversal of Domingo-Gomez’ conviction. The majority suggests that, because the prosecutor used “weaker language” than the word “lied,” the prejudicial effect of her statement was nullified. Id. at 1054. For the reasons I set forth above in discussing the prosecutor’s use of other synonymous terminology for “lying,” I disagree. Finally, in considering whether the prosecutor’s statement during rebuttal that Domingo-Gomez’ ease passed a “screening process” warranted reversal, the majority holds that the context in which the prosecutor delivered the statement diminished its impact. Id. at 1054. Because, as I emphasized above, the prosecutor has a higher ethical responsibility than other lawyers, I reach the opposite conclusion. The statement that the defendant’s case had to pass a “screening process” in order to get to trial creates highly prejudicial implications. Indeed, I find this the most troubling of the four improper statements made by the prosecutor. By announcing this fact to the jurors, the prosecutor generates the impression that there is additional evidence of Domingo-Gomez’ guilt that incriminates him and should be considered by them even though this additional evidence was not admitted at trial. A prosecutor’s insinuations that “additional inculpatory evidence exists that was not presented at trial ... invite[s] the jury to speculate about such phantom proof, and may be even more prejudicial than erroneously admitted specific proof.” Bennett L. Gershman, Prosecutorial Misconduct § 11:28, at 496 (2d ed.2005). The prosecutor’s multifaceted role as “an administrator of justice, an advocate, and an officer of the court” brings additional credence and weight to this unfair argument. ABA Standards for Criminal Justice, supra, § 3-1.2(b). The danger of a miscarriage of justice is especially imminent when there is no physical evidence linking the defendant to the crime. Such an unfair comment undermines the fundamental fairness of an accused’s trial. The majority reasons that this “screening” remark’s prejudicial impact was lessened by the prosecutor’s acknowledgement “that the State’s case was weak, perhaps including only the minimum amount of evidence necessary to pass the ‘screening process.” ’ Maj. op. at 1054.1 reach the polar opposite conclusion. The prosecutor told the jury that, because of the screening process, this ease was not like a case where there is only one witness who said he did it. 2 The prosecutor told *1058 the jury that “there is a screening process for charging cases, and it takes a lot more than somebody saying that the person did it. It takes the evidence that we have here. At least that.” In my view, the prosecutor was saying that this was not a weak case — that it was, in fact, a strong case — because enough evidence existed to support Domingo-Gomez’ guilt for the ease to pass the “screening process.” Put another way, this comment effectively told the jury that the evidence the jury heard, when combined with the other evidence presented in the screening process, established a strong case. The prosecutor’s use of the phrase “at least that” does not indicate the evidence against Domingo-Gomez was minimal, as the majority contends. Rather, it implies the State possessed even more evidence than it presented at trial. Consideration of the unduly prejudicial statements in isolation is inappropriate to determine plain error. Rather, the cumulative prejudicial impact of these statements conclusively establishes a serious and substantive impropriety to the extent that Domingo-Gomez’ trial cannot be said to have been fair. I suggest that we should not speculate as to why defense counsel failed to object. Possibly, it may have been due to a mistake on counsel’s part. Hence, I would not assume that defense counsel’s silence indicated that the prosecutorial misconduct here was not prejudicial. The jury’s actions support the conclusion that the prosecutor’s misconduct precluded Domingo-Gomez from receiving a fair trial. See Wilson, 743 P.2d at 420 . Their request to review witness transcripts and their subsequent difficulty in reaching a verdict suggest that, in a close case such as this, where the outcome turns on witness credibility rather than physical evidence, the prosecutor’s improprieties — opining that key witnesses lied and implying that extra inculpatory evidence existed — unduly influenced their deliberations and thwarted our system’s guarantee of a fair trial. . The majority distinguishes Wilson from this case by asserting that the instruction in Wilson may have been less effective in overriding the prejudicial effects of the prosecutor’s remarks because it came from the court instead of from counsel, as in this case. I question this assertion. In my view, an instruction from the court arguably carries more weight with the jury than statements from counsel. . In fact, there was only one witness who placed Domingo-Gomez at the crime scene. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9795859. Public record. Not legal advice.