Jury Reaches a Verdict After Five-Day Trial
by Ruby Zapien
On February 3, 2017, Judge David Rosenberg presided over the fifth and final day of the People v. Paul Robert Keola. Mr. Keola was charged with attempted murder, assault with a deadly weapon, false imprisonment, infliction of corporal injury, criminal threat, and burglary. Deputy Public Defender Sally Fredricksen represented Mr. Keola and Deputy District Attorney Carolyn Palumbo represented the People. After three hours of deliberation, the jury at 11:59 A.M. reached a verdict on all six counts.
The jury found Mr. Keola guilty of the charges of assault with a deadly weapon, false imprisonment and infliction of corporal injury.
Mr. Keola was found not guilty on the charges of attempted murder, criminal threat, and burglary.
At this point, the court transitioned into phase two of the trial, where the jury was to decide, for purposes of sentencing, whether or not Mr. Keola has been previously convicted of inflicting corporal injury resulting in a traumatic condition within the past seven years under California Penal Code 273.5(f)(1). Additionally, the jury was to decide on whether or not Mr. Keola served a prison term within the past five years for a violent felony under California Penal Code 667.5(b).
Ms. Palumbo’s opening statement regarding these potential sentencing enhancements began with the presentation of Exhibit 45, a Department of Corrections prison packet from 2013. In this packet was an Abstract of Judgment that Ms. Palumbo proceeded to show the jury through image projection. Ms. Palumbo pointed out Mr. Keola’s name on the document and the charges, which stated, “Infliction of corporal injury on cohabitant.”
“It does not say traumatic injury, but it’s like radiography and X-ray, same thing,” explained Ms. Palumbo.
With no opening statement from the defense, Ms. Palumbo began and ended her closing argument in this phase of the trial with, “Read the documents I just submitted, thank you.”
Ms. Fredricksen then utilized her closing argument to thank the jury for their time, to remind them of what their job is, and to tell them to “please take this seriously.”
The jury then deliberated for about five minutes, and both enhancements were found to be true.
There was no adjustment to Mr. Keola’s bail status, and his sentencing hearing is set for March 21, 2017, at 10:00 A.M in Department 14.
Final Witness and Closing Arguments in the Trial
by Ruby Zapien
On the afternoon of February 2, 2017, Judge David Rosenberg presided over the jury trial of People v. Paul Robert Keola. Mr. Keola is facing charges that include attempted murder, assault with a deadly weapon, false imprisonment, infliction of corporal injury, criminal threat, and burglary. Mr. Keola is being represented by Deputy Public Defender Sally Fredericksen, and the People are being represented by Deputy District Attorney Carolyn Palumbo. Upon returning from break, the defense called its final witness, Ms. Elizabeth Hird, before closing arguments were to begin.
Ms. Hird is a senior forensic toxicologist at Forensic Analytical Sciences, Inc., in Hayward, California. She has over ten years of experience in the field, and her job duties focus on the analysis of biological fluids for alcohol, drugs and poison.
Ms. Fredericksen asked Ms. Hird to define “a drink.” Ms. Hird answered with three different drinks: a beer, a glass of wine, and a spirit of certain volume and alcohol content, and she explained that she used these different drinks and amounts because each drink could be compared to the others.
The defense, thereafter, asked for Ms. Hird to define and differentiate between “light drinker,” “moderate drinker” and “heavy drinker.” The defense focused on heavy drinkers, which Ms. Hird described as being physiologically dependent on alcohol – for example, someone who would wake up at 9:00 A.M and begin the day drinking. Moreover, a heavy drinker could experience withdrawal after 24 hours.
The defense specifically asked about a blood alcohol content (BAC) level of 3.82 percent, asking about the physical manifestations of a person at that level of intoxication.
Ms. Hird expressed that it would depend on whether or not the person is a light, moderate, or heavy drinker. An individual who is light to moderate would exhibit drunkenness, nausea, vomiting and possibly death. However, a heavy drinker would have a greater tolerance and could be able to carry out day-to-day activities without the public being aware that the individual is under the influence.
The defense continued to ask about how a 3.8 percent BAC could affect an individual’s memory or ability to perceive. To that question, Ms. Hird referred to literature, which states that alcohol has been shown to have an effect on memory, where an individual could fail, once alcohol has left their system, to recollect information of what occurred. Again referring to literature, Ms. Hird explained how alcohol is a central nervous system depressant and can limit the ability of the brain to think through what is going on at the moment and to follow with a response.
Ms. Hird also explained the phenomenon of elimination, and specified that the average range that encompasses the rate of elimination is 0.1 to 0.2 grams of alcohol per hour. However, for a heavy drinker or “alcoholic,” this rate is more likely to be higher – in the 0.3 grams/hour range. This is due to the fact that the body becomes more efficient at expelling the alcohol.
The defense finally asked Ms. Hird to calculate the BAC level of an individual who is 5’2″ tall, weighing 120lbs, with an average rate of elimination, at 12:30 A.M. – when their BAC level is at .38 percent by 10:10 A.M.
Ms. Hird calculated that the BAC of an individual of that description would have been around 0.46 to 0.58 grams percent at 12:30 A.M., assuming they did not have any additional drinks.
The People then cross-examined the witness.
Ms. Palumbo asked what materials were used January 27, 2017, in preparation for this case.
Ms. Hird answered that she was provided with a BAC level from a hospital sample, and a detail of the individual involved.
The People then asked if Ms. Hird had ever had any contact with the victim, “BC.” Ms. Hird confirmed she had never seen or spoken to BC, and would not know if BC is a light, moderate or heavy drinker.
Ms. Hird was also asked to clarify what she meant earlier about a heavy drinker and such a person’s ability to function in society at a .38 percent BAC level.
“Very able to handle day-to-day tasks,” answered Ms. Hird.
After both counsel had finished examining the witness, two questions were asked from the jury.
“Would someone with a .38 BAC at 10:00 A.M have no alcohol in their system the next day at noon?”
“Yes…assuming no other alcohol was consumed,” answered Ms. Hird.
“What would someone with .40% – .50% of alcohol, physical conditions be? awake, passed out, or dead?”
Ms. Hird explained that, if the person is not unconscious, they would be probably highly tolerant to alcohol. If the individual is less tolerant, you would see signs of intoxication.
The judge then instructed the jury on the law, and expressed what is necessary for the People to prove in each charge.
On the charge of attempted murder, the People would have to show that a direct step toward killing was made and that the individual intended to kill.
On the charge of assault with a deadly weapon, the People would have to show that the defendant did an act with a deadly weapon other than a gun that would result with force, that they intended to do so, that they realized what they were doing, and that they, when acting, had the present ability.
On the charge of false imprisonment, the People would have to show that the defendant intentionally restrained, confined or detained an individual and made the individual stay or go somewhere against their physical will.
On the charge of inflicting corporal injury resulting in a traumatic condition, the People would have to show that the defendant willfully did so, and the injury resulted in a traumatic condition.
On the charge of criminal threat, the People would have to show that the defendant willfully threatened to kill or harm, did so orally, intended that the statement be seen as a threat, that it was clear, specific and direct, that it actually caused sustained fear, and that said fear was reasonable.
Finally, on the charge of burglary, the People would have to show that the defendant entered the motel room at the Crest Hotel and intended to commit at least one felony.
The People focused their closing statements on BC being “The Perfect Victim.” In previous police reports dating back to 2007, BC continually defended Mr. Keola. Ms. Palumbo quoted BC’s testimony, “He knows he could get away with it…this time it went too far.”
Addressing the issue of a motive, Ms. Palumbo stated that Mr. Keola is a jealous man. Previously, Mr. Keola was convicted of felony abuse for biting BC after he found her with another man in the room.
Ms. Palumbo defended BC, stating that she was confused during her testimony, but not lying. The woman drinks, is bipolar, and admitted to having a beer during lunch while testifying. But, “She was honest during her testimony.”
Referring back to the expert witness and Ms. Hird’s statements regarding a 3.8 BAC level for a heavy drinker, “That woman [BC] can drink her alcohol. She was positive who beat her and there is zero evidence that anyone else beat her. All evidence points to Paul Keola.”
Ms. Palumbo presented Mr. Keola’s intent with his alleged words: “I want to kill you, I want to kill you.”
In regard to an assault with a deadly weapon, the People talked about the steel pole that Mr. Keola took from BC and willfully hit her with it. To be clear, Ms. Palumbo stated, “this was no accident.”
“BC crawled for the window and was pulled back in by her hair and legs,” stated Ms. Palumbo when describing false imprisonment.
Ms. Palumbo then expressed that the infliction of injury is clear from the photos of BC in evidence.
Concerning criminal threat, Mr. Keola said he was going to kill her. Ms, Palumbo said, “I’m going to kill you, I want to kill you. It’s not an invitation to dinner.” It was a clear threat to BC, and BC said she was in fear for her safety. Ms. Palumbo said we know this fear lasted because she told the nurse the next day that she was afraid.
Finally, the People stated that a burglary was committed because Mr. Keola entered the room and BC did not want him in there.
“Hold the defendant accountable and tell him it is not okay, and find him guilty,” stated Ms. Palumbo.
Ms. Fredericksen was appalled at the lack of evidence in this case. She then went back to the prior incidents mentioned by the People in their closing arguments.
In 2007, the officer arrived and there were no injuries to BC. In 2008, BC was drunk, fell, and hit her knee. There were no charges for either incident because there was no evidence against Mr. Keola.
Mr. Keola was convicted in 2013 and acknowledged guilt.
However, in 2016, “BC lied which is a crime and the DA looked away because she is a victim in this case.” When Mr. Keola was the victim of domestic violence at the hands of BC he did not receive the same treatment.
Considering the witness, BC stated, “I don’t remember” more than a dozen times, has admitted to being untruthful in the past and could not restate the incident twice without changing facts. Moreover, she admitted to being on disability for “her brain,” and Ms. Fredericksen stated there could be some serious cognitive issues.
Returning to the issue of lack of evidence, the defense said that we do not know what happened to the former boyfriend that BC was initially drinking with. BC could not remember that she was drinking that night. Additionally, we do not even know who the man who called 911 is – we do not even know his last name.
The defense stated, “Because there is no evidence they want to tell you he [Paul Keola] could have done it [commit an assault] again.”
The People finished up their closing statement in rebuttal, reminding the jury that BC is “the perfect victim.” There is zero evidence that the former boyfriend committed the crimes. “BC told you he’s never touched her.”
Ms. Palumbo held up a poster board with multiple images of BC’s injuries, stating that this showed BC when Paul Keola is in her life. Alternatively, without Mr. Keola in her life, BC “has no bruises, is cleaned up, drinking less, and healing.
“Evidence doesn’t have to be beyond all doubt… ask yourselves, ‘do you believe her that she was abused and do you believe her that he did it,’” concluded Ms. Palumbo.
The jury was sent to deliberate and will continue to do so on February 3, 2017, in Department 14.
