State v. Herrera-Torres

Decision Date11 January 2021
Docket NumberA18-1341
PartiesState of Minnesota, Respondent, v. Jose Raul Herrera-Torres, Appellant.
CourtMinnesota Court of Appeals

This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).


Connolly, Judge

Concurring in part, dissenting in part, Gaïtas, Judge

Todd County District Court

File No. 77-CR-17-725

Keith Ellison, Attorney General, Edwin W. Stockmeyer, III, Matthew G. Frank, Assistant Attorneys General, St. Paul, Minnesota; and

Charles G. Rasmussen, Todd County Attorney, Long Prairie, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Benjamin J. Butler, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Reyes, Judge; and Gaïtas, Judge.



Appellant challenges his conviction for second-degree intentional murder, arguing that ineffective assistance of counsel entitles him to a new trial. We conclude that appellant's counsel's performance was deficient in regard to the two issues appellant asserts: first, requesting a self-defense jury instruction that was not applicable, and second, failing to consult with appellant concerning whether to request a jury instruction on lesser-included offenses, specifically on the lesser-included offense of first-degree heat-of-passion manslaughter. We affirm appellant's conviction because we also conclude that neither of the deficient performances prejudiced appellant; there is no reasonable probability that the result of appellant's trial would have been different with different jury instructions.


During the day on July 27, 2017, appellant Jose Raul Herrera-Torres and the victim who lived together, exchanged text messages while at their respective jobs. Appellant told her, "I am very sad because of what happened." In another exchange, he asked, "Will you leave me?" and she replied, "I have no more forgiveness for you." Later, he said, "Sorry, my love" and she responded "I am not going to forgive you for threatening me with a knife."

When police arrived at their residence that evening, they found the victim dead on the floor with multiple stab wounds in her neck, abdomen, cheek, and both hands. She was 4'7" tall and weighed 113 pounds. Appellant's driver's license indicated that he was 6'2"tall and weighed 182 pounds. The evidence thus established that appellant was 69 pounds heavier and 19 inches taller than the victim.

There was blood on a knife near the victim's body and on the walls and floors of the kitchen, living room, and one bedroom. DNA from the blood matched either appellant's or the victim's DNA.

The following morning, police arrested appellant at a hospital. After killing the victim, he had left their residence and spent the night driving around central Minnesota; he even stopped at an ATM to withdraw $400 and then had breakfast and later bought and consumed tequila before going to the hospital. He had stab wounds in his hands and arms and cuts on his knees and legs, some of which were consistent with attempts at self-harm.

Appellant was charged with second-degree intentional murder. Two public defenders, lead counsel and co-counsel, were appointed to defend him.1 After talking with appellant, who told them and subsequently testified that he did not intend to kill the victim and that he was acting in self-defense, they elected to rely exclusively on these two alternative defenses.

The district court instructed the jury on the elements of second-degree intentional murder.

First, the death of [the victim] must be proven.
Second, [appellant] caused the death of [the victim].
Third, [appellant] acted with the intent to kill [the victim]. To find appellant had "an intent to kill" you must find[he] acted with the purpose of causing death, or believed the act would have that result.

The jury found appellant guilty as charged.

Appellant moved to stay his direct appeal to enable him to develop a record on his ineffective-assistance-of-counsel claim. His motion was granted, and the matter was remanded to the district court, where he moved for a new trial. Following an evidentiary hearing, that motion was denied. He challenges the denial.


"When a defendant initially files a direct appeal and then moves for a stay to pursue postconviction relief, we review the postconviction court's decisions using the same standard that we apply on direct appeal." State v. Beecroft, 813 N.W.2d 814, 836 (Minn. 2012). "We review a district court's application of the Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)] test de novo because it involves a mixed question of law and fact. If a claim fails to satisfy one of the Strickland requirements, we need not consider the other requirement." State v. Mosley, 895 N.W.2d 585, 591 (Minn. 2017); see also Fields v. State, 733 N.W.2d 465, 468 (Minn. 2007) (applying Strickland).

A successful claim of ineffective assistance of counsel requires the defendant to demonstrate both deficient performance of counsel (the performance prong) and sufficient prejudice to the defendant caused by that deficient performance (the prejudice prong). See Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068 (setting out the requirements that "[counsel's] representation fell below an objective standard of reasonableness" and "thereis a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different").

Appellant raises two issues in his assertion of ineffective assistance of counsel: first, counsel's failure to ask for the general self-defense jury instruction instead of the jury instruction used when the victim's life has been taken, unless the defendant claims that he did not intend to take the victim's life (the self-defense issue); and second, counsel's failure to adequately research and to discuss with appellant the possibility of requesting a jury instruction on lesser-included offenses (the lesser-included-offenses issue). The district court concluded that the self-defense issue failed the prejudice prong and the lesser-included-offenses issue failed the performance prong. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Id. at 700, 104 S. Ct. at 2071. Therefore, the district court denied appellant's petition for postconviction relief seeking a new trial based on ineffective assistance of counsel.

I. Deficient Performance

We are aware that "[j]udicial scrutiny of counsel's performance must be highly deferential," that "[t]here are countless ways to provide effective assistance in any given case," and that we "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 689-90, 104 S. Ct. at 2065-66. We nevertheless conclude that appellant's counsel's performance was deficient, or fell below an objective standard of reasonableness, in regard to both the self-defense issue and the lesser-included-offenses issue.

A. The Self-Defense Jury Instruction

Minnesota has both a general self-defense jury instruction, 10 Minnesota Practice, CRIMJIG 7.05 (2015), which is based on Minn. Stat. § 609.06, subd. 1(3) (2014) (providing that a person may use "reasonable force . . . upon or toward the person of another without the other's consent" if the force is "used by any person in resisting or aiding another to resist an offense against the person") and a specific self-defense jury instruction when the life of another has been taken intentionally, 10 Minnesota Practice, CRIMJIG 7.06 (2015), which is based on Minn. Stat. § 609.065 (2014) (providing that "[t]he intentional taking of a life is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death").

"The Minnesota Supreme Court has repeatedly stated that it is error to provide the justifiable-taking-of-life instruction, instead of the general self-defense instruction, when the defendant asserts self-defense but claims that the [victim's] death was not the intended result." State v. Pollard, 900 N.W.2d 175, 179 (Minn. App. 2017) (citing State v. Carradine, 812 N.W.2d 130, 143-44 (Minn. 2012); State v. Hare, 575 N.W.2d 828, 832-33 (Minn. 1998); State v. Robinson, 536 N.W.2d 1, 2-3 (Minn. 1995); and State v. Marquardt, 496 N.W.2d 806, 806 (Minn. 1993)). Appellant both asserted self-defense and claimed that the victim's death was not his intended result. Therefore, requesting the justifiable-taking-of-life instruction instead of the general self-defense instruction was deficient performance by appellant's counsel.

B. The Absence of a Jury Instruction on Lesser-Included Offenses

"Defense counsel, as the professional advocate and intermediary of the accused, is charged with the control of and responsibility for the conduct of the defense during trial." State v. Leinweber, 228 N.W.2d 120, 125 (Minn. 1975). "[W]hen an offense has been proved against [the defendant], and there exists a reasonable doubt as to which of two or more degrees he is guilty, he shall be convicted only of the lowest." Minn. Stat. § 611.02 (2016). "[W]here a defendant is confronted with a specific single charge, . . . defense counsel after full investigation advises defendant of the probability of acquittal and accordingly prepares to meet that charge." Leinweber, 228 N.W.2d at 124.

Testimony at the postconviction hearing demonstrated that appellant's counsel, without either "full investigation" or any discussion with appellant, restricted the defense of appellant to convincing the jury either that appellant lacked the intent requisite for second-degree intentional murder or that appellant believed his intentional taking of the victim's life was necessary to resist or prevent an offense by the victim that...

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