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State v. Herrera

Supreme Court of Idaho

September 7, 2018

STATE OF IDAHO, Plaintiff-Respondent,
v.
JOSEPH DUANE HERRERA, Defendant-Appellant.

          Appeal from the District Court of the First Judicial District of the State of Idaho, Benewah County. Hon. John T. Mitchell, District Judge.

         Appellant's conviction and sentence are affirmed.

          Eric D. Fredericksen, Idaho State Appellate Public Defender, attorneys for appellant. Ben P. McGreevy argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorneys for respondent. Kenneth K. Jorgensen argued.

          BEVAN, JUSTICE.

         I. Nature of the Case

         Joseph 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 sentence.

         II. Factual and Procedural Background

         The 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.

         On 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.

         III. Issues on Appeal

         1. Whether Herrera's due process rights were violated through vindictive prosecution.

         2. Whether the district court conducted a sufficient inquiry into Herrera's request for substitution of counsel.

         3. Whether the district court abused its discretion by overruling objections to Detective Berger's testimony regarding gunshot residue analysis.

         4. Whether the State committed prosecutorial misconduct during closing arguments.

         5. Whether the accumulation of errors deprived Herrera of his right to a fair trial.

         6. Whether Herrera's due process rights were violated through vindictive sentencing.

         IV. Standard of Review

         The 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.

         Alternatively, 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.

         V. Analysis

         A. The State's decision to add the sentencing enhancement did not amount to vindictive prosecution.

         After 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.

         Herrera 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 Herrera's objection.

         Herrera's 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."

         "This 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 incarceration.").

         However, "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).

         a. The State did not vindictively prosecute Herrera by requesting a sentencing enhancement.

         Herrera 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 second-degree murder."

         We do 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.

         Ultimately, 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.

         b. The State did not vindictively prosecute Herrera when the prosecutor discussed the dismissed sentencing enhancement at the sentencing hearing.

         Herrera 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.)

         B. 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.

         Prior 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 State.

         Thereafter, 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.

         This 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).

         Article 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).

         "Upon 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.

         The 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 motion."

         Regarding 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. ...


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