from the District Court of the First Judicial District of the
State of Idaho, Benewah County. Hon. John T. Mitchell,
conviction and sentence are affirmed.
D. Fredericksen, Idaho State Appellate Public Defender,
attorneys for appellant. Ben P. McGreevy argued.
Lawrence G. Wasden, Idaho Attorney General, Boise, attorneys
for respondent. Kenneth K. Jorgensen argued.
Nature of the Case
Herrera ("Herrera") appeals from his conviction for
second-degree murder after a second trial. On appeal, Herrera
argues that: (1) the State vindictively prosecuted him by
adding a sentencing enhancement; (2) the district court erred
when it failed to conduct a sufficient inquiry into his
request for substitution of appointed counsel; (3) the
district court abused its discretion when it overruled
objections to a detective's testimony regarding gunshot
residue analysis; (4) the State committed prosecutorial
misconduct in closing arguments; (5) the accumulation of
errors deprived him of a right to a fair trial; and (6) the
district court judge imposed a vindictive sentence after the
second trial. We affirm Herrera's conviction and
Factual and Procedural Background
underlying facts of this case are set forth in State v.
Herrera, 159 Idaho 615, 364 P.3d 1180 (2015). On
December 25, 2011, Herrera and his girlfriend, Stefanie
Comack, were arguing when she was shot and killed. A jury
convicted Herrera of second-degree murder and he was
sentenced to life in prison with twenty-two years fixed.
Herrera appealed, and this Court found that testimony from
four witnesses unfairly prejudiced Herrera; thus, we vacated
his conviction and remanded the case for further proceedings.
remand, the case was assigned to a new judge, a new
prosecutor took over the case, and Herrera was appointed new
defense counsel. Herrera was retried, and a new jury found
Herrera guilty of second-degree murder. However, this time
Herrera was sentenced to life in prison with thirty-years
fixed. Herrera timely appealed.
Issues on Appeal
Whether Herrera's due process rights were violated
through vindictive prosecution.
Whether the district court conducted a sufficient inquiry
into Herrera's request for substitution of counsel.
Whether the district court abused its discretion by
overruling objections to Detective Berger's testimony
regarding gunshot residue analysis.
Whether the State committed prosecutorial misconduct during
Whether the accumulation of errors deprived Herrera of his
right to a fair trial.
Whether Herrera's due process rights were violated
through vindictive sentencing.
Standard of Review
standard of review applied by this Court depends on whether a
contemporaneous objection was made after an error occurred at
trial. If the alleged error was followed by a contemporaneous
objection at trial, appellate courts employ the harmless
error test articulated in Chapman v. California,
which provides "[w]here the defendant meets his initial
burden of showing that a violation occurred, the State then
has the burden of demonstrating to the appellate court beyond
a reasonable doubt that the constitutional violation did not
contribute to the jury's verdict." State v.
Perry, 150 Idaho 209, 227, 245 P.3d 961, 979 (2010)
(citing Chapman v. California, 386 U.S. 18 (1967)).
"In Idaho, the harmless error test established in
Chapman is now applied to all objected-to
error." Id. at 221, 245 P.3d at 973.
when an "alleged error was not followed by a
contemporaneous objection, it shall only be reviewed by an
appellate court under Idaho's fundamental error
doctrine." Id. at 228, 245 P.3d at 980. Such a
review requires the defendant to prove that the error:
"(1) violates one or more of the defendant's
unwaived constitutional rights; (2) plainly exists (without
the need for any additional information not contained in the
appellate record, including information as to whether the
failure to object was a tactical decision); and (3) was not
harmless." Id. The defendant may satisfy the
burden of showing that the error was not harmless by
"proving there is a reasonable possibility that the
error affected the outcome of the trial." Id.
at 226, 245 P.3d at 978. "If the defendant persuades the
appellate court that the complained of error satisfies this
three-prong inquiry, then the appellate court shall vacate
and remand." Id. at 228, 245 P.3d at 980.
The State's decision to add the sentencing enhancement
did not amount to vindictive prosecution.
the case was remanded the prosecutor moved to amend the
Information to add a sentencing enhancement for use of a
firearm under Idaho Code section 19-2520. The State provided
several reasons in support of its motion for a sentencing
enhancement in the new trial, i.e., the prosecutor was new to
the case and would have included the enhancement in the first
trial if he had been involved; as a result of the appeal
several witnesses would be prevented from testifying,
reducing the amount of evidence available to the State at
trial; the Supreme Court's decision contemplated that
Herrera could be convicted for manslaughter, a possibility
that the earlier prosecutor likely did not contemplate given
the evidence available to him at the time of trial; the
amendment would not add any new charges, but instead allowed
a higher sentence if Herrera was convicted of manslaughter;
and the State wanted the opportunity to argue for the same
determinate sentence found by the previous trial court.
objected, arguing that the enhancement was an attempt to
punish him for his successful appeal. The district court
granted the motion to amend after finding that the State was
not attempting to charge Herrera with a new or separate
crime, i.e., because there was no increase, additional
charge, or possibility of increased penalty above
second-degree murder (the crime Herrera was convicted of in
the first trial), the sentencing enhancement did not increase
the potential sentence above the original charge. After
trial, the jury found Herrera guilty of second-degree
murder-not manslaughter. Accordingly, the State dismissed the
firearm enhancement. However, the prosecutor subsequently
referred to the enhancement while making his sentencing
recommendation to the court. Herrera objected, asserting that
the State could not raise that argument after it had been
dismissed. The district court found that the prosecutor's
references to the enhancement were argument and overruled
argument that the State vindictively prosecuted him is
twofold. First, Herrera asserts that the State's request
to add a firearm sentencing enhancement in the new trial
punished him for exercising his right to challenge his
conviction. Second, Herrera argues that the State
impermissibly referenced the enhancement after it was
dismissed as a ploy to convince the district court to
increase his sentence. Herrera advances an argument that the
prosecutor violated his general duty of candor to the court
when he "lied to the district court, defense counsel and
Herrera when he claimed the firearm enhancement would only be
used to protect his original sentence, and that,
notwithstanding his dismissal of the charge after hearing the
verdict, he breached an implied promise when he argued in
favor of an increased penalty based on the intent of the
dismissed firearm enhancement at sentencing."
Court exercises free review in determining whether
'constitutional requirements have been satisfied in light
of the facts' found by the trial court." State
v. Crowe, 131 Idaho 109, 111, 952 P.2d 1245, 1247 (1998)
(quoting State v. Weber, 116 Idaho 449, 452, 776
P.2d 458, 461 (1989)). "[T]he United States Supreme
Court has held a defendant's due process rights are
violated when a prosecutor vindictively retaliates against a
defendant for exercising a legally protected right."
State v. Ostler, 161 Idaho 350, 352, 386 P.3d 491,
493 (2016) (citing Blackledge v. Perry, 417 U.S. 21,
27-28 (1974)). "The Supreme Court has reasoned that
'[t]o punish a person because he has done what the law
plainly allows him to do is a due process violation of the
most basic sort. . . .'" Id. (citing
Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978)).
Accordingly, it is not constitutionally permissible for the
State to bring a more serious charge in response to a
defendant's invocation of his statutory right to a new
trial after an appeal. Blackledge, 417 U.S. at 28
("A person convicted of an offense is entitled to pursue
his statutory right to a trial de novo, without apprehension
that the State will retaliate by substituting a more serious
charge for the original one, thus subjecting him to a
significantly increased potential period of
"the Due Process Clause is not offended by all
possibilities of increased punishment upon retrial after
appeal, but only by those that pose a realistic likelihood of
'vindictiveness.'" Blackledge, 417 U.S.
at 27. To prove prosecutorial vindictiveness, "a
defendant must show either actual vindictiveness or apparent
vindictiveness." Ostler, 161 Idaho at 352, 386
P.3d at 493 (citing United States v. Goodwin, 457
U.S. 368, 372-75 (1982)). "To show actual vindictiveness
a defendant may 'prove objectively that the
prosecutor's charging decision was motivated by a desire
to punish him for doing something that the law plainly
allowed him to do.'" Id. at 352‒53,
386 P.3d at 493‒94 (citing Goodwin, 457 U.S.
at 384). "[O]nly in a rare case would a defendant be
able to overcome the presumptive validity of the
prosecutor's actions through such a demonstration."
Id. at 353, 386 P.3d at 494 (internal quotation
omitted). Conversely, apparent vindictiveness is proven by a
"realistic likelihood of 'vindictiveness.'"
Id. (citing Blackledge, 417 U.S. at 27).
The State did not vindictively prosecute Herrera by
requesting a sentencing enhancement.
bears the burden of proving that the State's decision to
add the sentencing enhancement was motivated by a desire to
punish him for his appeal. See Ostler, 161 Idaho at
352-53, 386 P.3d at 493-94. Herrera argues that the
State's reasons are constitutionally infirm because: (1)
the change in prosecutor did not make the enhancement any
less vindictive, especially since the prosecutor was aware
that the 2013 conviction had been vacated, causing him to be
"burdened with the retrial of an already-convicted
defendant;" (2) by arguing that the new trial might
result in a manslaughter conviction, the prosecutor was
seeking to protect a sentence obtained through the original
prosecutor's misconduct; and (3) the prosecutor's
argument that the former prosecutor likely did not anticipate
that Herrera could be convicted of manslaughter was fictional
because the jury had been instructed on the lesser included
offenses of voluntary and involuntary manslaughter at the
first trial. Ultimately, Herrera claims that "it is
clearly malicious motives that would impel a prosecutor to
vindictively seek a sentence for second-degree murder, for
conduct the jury found did not constitute
not find Herrera's arguments to be persuasive. First, the
authority upon which Herrera relies involves the addition of
new felony charges at a new trial, not a sentencing
enhancement. See Thigpen v. Roberts, 468 U.S. 27,
28‒29 (1984) (defendant was convicted of four
misdemeanors and while his appeal was pending he was
convicted of manslaughter by a different jury); See also
Blackledge, 417 U.S. at 22-23 (defendant was convicted
of misdemeanor assault with a deadly weapon, and after filing
a notice of appeal the prosecutor obtained an indictment from
a grand jury charging the defendant with felony assault with
a deadly weapon). These cases are inapposite to the case at
hand because the district court specifically concluded that
the sentencing enhancement was not an additional charge and
that there was no possibility that Herrera would face an
increased penalty from the crime he was convicted of in the
first trial, i.e., second-degree murder. Similarly, Herrera
is off-base in suggesting that the prosecutor must have been
driven by "malicious motives" to seek a sentence
enhancement as a hedge against the possibility that Herrera
could be found guilty of a lesser offense. In order to prove
vindictive prosecution, Herrera must have been subjected to a
heavier penalty for the same act originally charged.
However, as recognized by the district court, Herrera had
already been convicted of second-degree murder; thus, even if
the jury found Herrera guilty of a lesser offense, the
sentencing enhancement could not cause a harsher penalty than
the punishment that Herrera was originally facing.
Herrera failed to demonstrate that the State added the
sentencing enhancement to punish him for his appeal. Instead,
we conclude that the prosecutor provided a legitimate
explanation, i.e., he was concerned that the reduced evidence
carried a higher probability that Herrera could be convicted
of manslaughter and he wanted the opportunity to argue for
the same determinate sentence found by the previous trial
court. Moreover, even assuming that the State committed
misconduct by requesting the sentencing enhancement, the
misconduct was harmless because the enhancement was dismissed
prior to any consideration by the jury.
The State did not vindictively prosecute Herrera when the
prosecutor discussed the dismissed sentencing enhancement at
the sentencing hearing.
also alleges that the State committed prosecutorial
misconduct by referencing the sentencing enhancement after
the enhancement had been dismissed. Indeed, at the sentencing
hearing the prosecutor noted that the State did not pursue
the enhancement, but "if separately proved" it
could provide an additional fifteen-year term. The fact that
a firearm was used in the commission of the crime was
incontrovertible. The trial court was certainly aware of it
and the prosecutor's mentioning of the dismissed
enhancement at sentencing did not impermissibly emphasize
that fact in an effort to increase the potential sentence.
See State v. Sheahan, 139 Idaho 267, 280, 77 P.3d
956, 969 (2003) (Both sides have traditionally been afforded
considerable latitude in argument to the jury and are
entitled to discuss fully, from their respective standpoints,
the evidence and the inferences to be drawn therefrom.)
Herrera failed to provide this Court with a sufficient record
to determine whether the district court abused its discretion
with regard to his request for substitute counsel.
to trial, Herrera filed a motion to replace his defense
attorney, citing concerns that: (1) his attorney was not
going to be able to sufficiently prepare for trial; (2) the
two had fundamental differences in trial strategy; and (3)
his attorney had previously represented the victim's
siblings on unrelated misdemeanor charges. The record is
sparse concerning the district court's inquiry into
Herrera's concerns. At a hearing Herrera's defense
counsel voiced his own concerns about the amount of time it
would take to get ready for trial, but indicated that he
believed he could be adequately prepared. Defense counsel
also informed the court that there were
"concerning" fundamental differences regarding
trial tactics that he did not want to discuss in open court.
The State took no position on Herrera's motion other than
wanting to ensure Herrera's constitutional rights were
not violated, offering defense counsel the opportunity to
discuss any issues with the court outside the presence of the
before the court denied Herrera's motion, a brief
discussion took place regarding the third concern, that
defense counsel had previously represented the victim's
siblings on unrelated misdemeanor charges:
THE COURT: All right. Here's my ruling. I am denying the
motion to replace the defense attorney . . . . Mr. Herrera,
you have a right to be represented by an attorney . . . . You
don't have a right to pick and choose who represents you,
and I trust [defense counsel] to assess the conflict of
interest or lack thereof under the Idaho Rules of
Professional Conduct and he is telling me that he does not
see a conflict under that. As for these other fundamental
differences, I don't have any evidence of that, and so
without having any evidence of that I'm denying the
motion. You - well, and I'll just leave it at that. What
I haven't heard, and I'm not going to hear any more
evidence of it now because I don't have a motion to
continue, is how much time [defense counsel] has spent on Mr.
Herrera's case, and I'm here to tell you, Mr.
Herrera, that [defense counsel] is a very experienced
attorney. He has a bar number close to my father's than
it is to me and I am not a young man, so you have a very
experienced attorney representing you, and I don't have a
motion to continue in front of me, and I'm not going to
hear any more on that issue today. That's my decision.
We're done. We're moving on.
Court reviews a district court's determination as to
whether to appoint substitute counsel for an abuse of
discretion. State v. Nath, 137 Idaho 712, 715, 52
P.3d 857, 860 (2002). The test to determine whether a trial
court has abused its discretion consists of four parts, which
include whether the trial court: (1) correctly perceived the
issue as one of discretion; (2) acted within the outer
boundaries of its discretion; (3) acted consistently with the
legal standards applicable to the specific choices available
to it; and (4) reached its decision by the exercise of
reason. Lunneborg v. My Fun Life, 163 Idaho 856,
863, 421 P.3d 187, 194 (2018).
I, section 13 of the Idaho Constitution guarantees a criminal
defendant reasonably competent assistance of counsel.
Dunlap v. State, 141 Idaho 50, 58, 106 P.3d 376, 384
(2004) (citing State v. Wood, 132 Idaho 88, 95, 967
P.2d 702, 709 (1998)). However, the right to counsel does not
grant a defendant the right to an attorney of their choice.
State v. Lippert, 145 Idaho 586, 594, 181 P.3d 512,
520 (Ct. App. 2007) (citing State v. Clark, 115
Idaho 1056, 1058, 772 P.2d 263, 265 (Ct. App. 1989)).
"[M]ere lack of confidence in otherwise competent
counsel is not necessarily grounds for substitute counsel in
the absence of extraordinary circumstances." State
v. McCabe, 101 Idaho 727, 729, 620 P.2d 300, 302 (1980)
(internal citations omitted).
being made aware of a defendant's request for substitute
counsel, the trial court must afford the defendant a full and
fair opportunity to present the facts and reasons in support
of a motion for substitution of counsel." State v.
Gamble, 146 Idaho 331, 336, 193 P.3d 878, 883 (Ct. App.
2008) (citing State v. Clayton, 100 Idaho 896, 898,
606 P.2d 1000, 1002 (1980)). Compare Clayton, 100
Idaho at 898, 606 P.2d at 1002 (this Court found that the
defendant was given ample opportunity to recite any
underlying facts to give rise to his subjective beliefs
concerning appointed counsel's alleged incompetency,
noting that after the defendant "passed up the
opportunity to create his own record, he cannot now complain
that there is none."), with Nath, 137 Idaho at
715, 52 P.3d at 860 (this Court found that the defendant was
not afforded a full and fair opportunity to present the facts
when he was not permitted to speak on the subject or given
the opportunity to explain his problems.). However, the right
to present facts and reasons in support of the motion to
substitute counsel does not require the trial judge to act as
an advocate for the defendant in a criminal proceeding.
Clayton, 100 Idaho at 898, 606 P.2d at 1002.
record reflects that the district court's inquiry into
Herrera's request for substitute counsel was limited.
First, Herrera alleged that his attorney was not prepared for
trial. The district court effectively dismissed this concern
based on the fact that there was no current motion to
continue. Herrera had no opportunity to speak on this issue
because the district court directed all questions to
Herrera's counsel. Second, defense counsel raised the
issue that he and Herrera had "concerning"
fundamental differences in trial strategy. The district court
made no inquiries into this issue; rather, the judge simply
reasoned "I don't have any evidence of that, and so
without having any evidence of that I'm denying the
Herrera's third claim, the judge provided him the
opportunity to speak briefly regarding concerns that his
attorney had previously represented the victim's siblings
on unrelated misdemeanor charges. ...