State v. Herrera, 090718 IDSCCR, 44596-2016

Docket Nº44596-2016
Opinion JudgeBEVAN, JUSTICE.
Party NameSTATE OF IDAHO, Plaintiff-Respondent, v. JOSEPH DUANE HERRERA, Defendant-Appellant.
AttorneyEric 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.
Judge PanelChief Justice BURDICK and Justices HORTON, BRODY and Justice pro tem NORTON, CONCUR.
Case DateSeptember 07, 2018
CourtSupreme Court of Idaho

STATE OF IDAHO, Plaintiff-Respondent,


JOSEPH DUANE HERRERA, Defendant-Appellant.

No. 44596-2016

Supreme Court of Idaho

September 7, 2018

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.


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). "...

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