Herrera v. Commonwealth, 2017-CA-001410-MR

CourtCourt of Appeals of Kentucky
Writing for the CourtNICKELL, JUDGE
Docket NumberNO. 2017-CA-001410-MR,2017-CA-001410-MR
Decision Date07 December 2018


NO. 2017-CA-001410-MR

Commonwealth of Kentucky Court of Appeals

DECEMBER 7, 2018


CASE NO. 14-CR-01098


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NICKELL, JUDGE: Ana Herrera appeals from the judgment and sentence of five years' imprisonment entered by the Campbell Circuit Court following her conviction of assault in the second degree1 at a two-day jury trial. Shortly after the trial, but prior to sentencing, with newly retained counsel, Herrera timely moved for a judgment of acquittal or new trial pursuant to RCr2 10.02 and 10.06, alleging

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ineffective assistance of trial counsel. Applying the two-pronged performance and prejudice standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.674 (1984), the trial court denied the motion, finding the jury's verdict was reliable because the totality of the evidence compelled a verdict of guilt regardless of trial counsel's deficient assistance. We affirm.

In the early morning hours of November 5, 2014, Michael Schroder was stabbed outside a strip club in Newport, Kentucky, and called 911 for help. He identified his assailant as a larger Hispanic woman with short hair. Officers responding to the 911 call located an inebriated Herrera walking a short distance away. She was read her Miranda3 warnings, placed in the back seat of a patrol car, and driven to where Schroder was being treated by emergency responders. Schroder positively identified Herrera as his attacker. An exhaustive search of the area of the attack failed to locate the weapon. Following a lengthy interview with detectives, Herrera was arrested and charged with assault. Subsequent scientific testing revealed blood found on Herrera's shirt matched Schroder's DNA.

Following conviction in October 2015, in a combined RCr 10.02 and 10.06 motion, Herrera claimed trial counsel had failed to: properly investigate witness statements and allegations; inform himself regarding the Commonwealth's scientific DNA evidence; move to suppress the show-up identification; conduct

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competent cross-examination; object to inadmissible testimony and evidence; and adequately consult with her regarding evidence, testimony, and trial strategy.

The Commonwealth opposed Herrera's motion, arguing "because the basis of the Defendant's motion is ineffective assistance of counsel, the defendant's motion should be made pursuant to RCr 11.42," and refuting her claim trial counsel had performed deficiently or prejudiced her defense. After hearing arguments, the trial court rejected the Commonwealth's procedural challenge and ruled the motion for relief could proceed. An evidentiary hearing was held with testimony offered by Herrera, her longtime partner, and her trial counsel.

Herrera testified to the paucity of trial counsel's communications and legal advice. She stated her contact with him was primarily limited to two short letters and brief conversations immediately before and after five court appearances. She claimed she attempted telephone contact numerous times, but counsel was always unavailable or unresponsive. About one week prior to trial, she spoke briefly with counsel by telephone and during a one-hour office conference. Counsel indicated the Commonwealth had no evidence, Schroder's injury was merely a superficial cut, Schroder's blood transferred to Herrera's clothes via contact with a police officer, and the charge would likely be dismissed. Though trial counsel gave Herrera a copy of the police report, she testified he never shared or discussed with her the videotaped statement she gave to police, Schroder's

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recorded statements or photographs of his injuries, her partner's statement, a telephonic interview with the bartender from the bar where she had been drinking earlier on the night of the attack, the statement from a cab driver who had transported her a short distance moments prior to the attack, or a surveillance video the prosecutor sought to question her about during trial. Herrera complained trial counsel failed to provide legal guidance or advice, and simply told her to be honest when she asked to discuss and practice potential courtroom testimony. Among other matters, if any meaningful opportunity had been provided to discuss trial strategy, Herrera maintained she would have asked trial counsel to ask the cab driver if he ever saw her carrying a knife and whether her clothing was sufficient to conceal a knife. Herrera also testified trial counsel never discussed with her—and apparently never considered—filing a motion to suppress any reference to the show-up identification. However, on cross-examination Herrera was unable to explain how the trial might have turned out differently had she been provided the opportunity to view and discuss these items with trial counsel.

Herrera's longtime partner, Dione Brown, testified the two were living together at the time of the incident and she attended the conference at which trial counsel advised Herrera prosecutors had no evidence. Brown confirmed trial counsel failed to provide Herrera any recorded statements or videos and neglected to discuss how their content might be addressed at trial. Brown told trial counsel

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she was willing to testify at trial but was told her testimony was unnecessary. Had she testified, Brown would have affirmed it was not Herrera's practice to carry weapons, Herrera had not exhibited violent behavior in the past, and all kitchen knives were accounted for in their home.

Trial counsel admitted spending a total of about two hours preparing for Herrera's trial. In addition, he attended court appearances, had telephone conversations, conferenced with Herrera, reviewed the Commonwealth's exhibits and offer on a plea of guilty, and reviewed Schroder's hospital records. Trial counsel had received recorded interviews of Schroder, the bartender, the cab driver, and Brown, but admitted he never reviewed them, explaining he had seen the police report and knew what each witness had said. Consequently, he admitted never discussing the substance of these items with Herrera. Further, he admittedly did not: discuss or file a motion to suppress Schroder's show-up identification of Herrera; cross-examine Schroder regarding his inability to describe Herrera's clothing or explain a search by his friends for Herrera's photograph on the internet subsequent to the attack; play any portion of Schroder's hospital or telephone interviews; object to testimony offered by the cab driver about the bartender's statements to him; and obtain an independent expert to assist with understanding DNA test results and proper cross-examination. Knowing none of the men who had been with Schroder when the attack occurred had been located and would not

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appear at trial and no knife had been found on Herrera or in the vicinity, trial counsel testified his theory of defense was the assault had been perpetrated by one of the men with whom Schroder had been drinking. Though Herrera had argued with these three men, trial counsel would assert Herrera attacked neither the men nor Schroder. He stated there had been no surprises at trial and his actions before and during trial were appropriate under the circumstances.

On May 31, 2017—nearly twenty months after the jury had convicted Herrera—the trial court entered an order denying her motion for new trial, finding trial counsel's performance was defective but had not prejudiced the trial's outcome. On August 2, 2017, the trial court entered its judgment sentencing Herrera to five years' imprisonment consistent with the jury's recommendation. This appeal followed.

Herrera alleged ineffective assistance of trial counsel in her new trial motion. RCr 10.02(1) authorizes a trial court to "grant a new trial for any cause which prevented the defendant from having a fair trial, or if required in the interest of justice." Granting a new trial is discretionary and, absent a showing this discretion was abused, reversal is unwarranted. Rowe v. Commonwealth, 355 S.W.3d 480, 485 (Ky. App. 2011). "The test for abuse of...

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