Opinion
23A-CR-2466
06-10-2024
Kenneth W. Herbert, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Victoria Bailey Casanova Casanova Legal Services, LLC Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Delaware Circuit Court The Honorable Kimberly S. Dowling, Judge Trial Court Cause No. 18C02-2103-MR-4
ATTORNEY FOR APPELLANT
Victoria Bailey Casanova Casanova Legal Services, LLC Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
MATHIAS, JUDGE
[¶1] Kenneth Herbert appeals his conviction for murder, a felony, following a jury trial. Herbert presents three issues for our review:
1. Whether he was denied his right to due process when a witness gave allegedly false testimony at trial.
2. Whether the trial court violated his right to confront witnesses under the Sixth Amendment to the United States Constitution when it restricted his cross-examination of a witness at trial.
3. Whether the State presented sufficient evidence to support his conviction.
[¶2] We affirm.
Facts and Procedural History
[¶3] Herbert married Kimberly Herbert ("Kimberly") in 2013. Herbert soon became physically and verbally abusive with Kimberly, as Kimberly's daughter Nicole Clark observed first-hand in 2016. On June 19 of that year, Herbert and Kimberly fought loudly enough for a neighbor to hear. Throughout that day, friends and neighbors observed that Kimberly appeared to have been physically injured. At one point, Joshua Barnes, a friend of Herbert's, stopped by and saw Kimberly walking across the street "[s]lowly like she was in pain." Tr. Vol. 7, p. 36. Barnes saw Kimberly knocking on a neighbor's door. At that time, Barnes observed Herbert, who was outside of his house, arguing with Kimberly, who was crossing the street.
[¶4] Kimberly went to Harold Montgomery's house across the street, "pound[ed]" on his door, and asked to use his phone. Tr. Vol. 5, p. 197. Montgomery saw that Kimberly had been crying and she seemed "afraid." Id. at 198. Montgomery could see that Kimberly "seemed to be injured" and was "favoring her right side." Id. Montgomery thought that Kimberly "looked like she had been spat out by a cat." Id. at 206-07. Montgomery asked her what had happened, and Kimberly said: "I can't believe he kicked me. He kept kicking me. I was on the floor. He really got me good this time. He kicked me." Id. at 214. When Montgomery gave Kimberly a phone, he heard her call someone and ask to be picked up. Kimberly sounded "scared" during the call. Id. at 199. Herbert said to Montgomery, "If she's calling the cops, you're dead." Id. at 211. Herbert was "pacing back and forth" in front of his house. Id. at 212. Montgomery then saw Herbert get in his car and drive away. And Kimberly left Montgomery's house.
[¶5] During the early hours of June 20, Herbert called Barnes "several times." Tr. Vol. 7, p. 38. When Barnes finally answered his phone at around 2:30 a.m., Herbert told him that "Kimberly was sick and [he] needed to get her to the hospital." Id. Barnes fell back asleep, but he drove over to Herbert's house approximately one hour later. When he got there, Barnes saw Kimberly lying face down on the floor with all but her head "covered in a sheet." Id. at 40. Barnes immediately thought that Kimberly was dead. Barnes rubbed her back and felt that she was "very cold." Id. at 41. Barnes could not find a pulse in her body. As Barnes carried her out to his truck, he noticed that her body felt "cold and stiff." Id. at 44. Barnes and Herbert drove her to the hospital.
[¶6] Two nurses assisted with getting Kimberly from the truck to the emergency room. Kimberly was not breathing, she did not have a pulse, and she had dried blood around her mouth and nostrils. One of the nurses started compressions as the other nurse wheeled Kimberly inside. Once emergency room personnel were evaluating Kimberly, Herbert told one of the nurses that he and Kimberly "were drinking that evening and they got into an argument and that she left. And when she returned and they were cuddling, she began making a gurgling noise. So he turned her on her side." Tr. Vol. 5, p. 126. But Herbert also told emergency room personnel that Kimberly was last "normal" at 9:00 p.m. and started "gurgling" at 11:00 p.m. State's Ex. 31. Herbert stated that he had waited more than an hour for Barnes to give them a ride to the hospital. Herbert did not call 9-1-1. Emergency room personnel soon declared Kimberly dead.
[¶7] Later that morning, Muncie Police Department Detective John Leach investigated the circumstances of Kimberly's death. He walked around Herbert's house and took photographs. He also collected evidence, including a towel, washcloth, and denim shorts each with "red stains" on them. Id. at 179.
[¶8] An autopsy revealed that Kimberly had died at 2:45 a.m. on June 20, 2016. The forensic pathologist, Dr. Jolene Clouse, concluded that the cause of Kimberly's death was "multiple traumatic blunt force injuries." Tr. Vol. 6, p. 15. Specifically, Dr. Clouse found that
[t]he blunt force injuries included some bruises and scrapes kind of throughout the body. There was hemorrhage in the scalp and in the muscles underneath the scalp, fractures of a few of the ribs resulting in some hemorrhage. There was a tear in the liver, which usually is a result of blunt force trauma as well. Some blood in the stomach was probably related to some trauma in the neck. And on the extremities, . . . [t]here were also scrapes and bruises as well. There were some injuries within the neck with a significant amount of hemorrhage that were not caused by a penetrated injury. So not a stab or a gunshot or anything like that but either caused by blunt force trauma or possibly some kind of pressure that wouldn't have been a sharp force penetrating injury of any kind.Id. at 15-16. But Dr. Clouse could not determine "the manner of death" and listed it as "undetermined" based on the information she had at that time. Id. at 16.
[¶9] Several years later, on March 10, 2021, the State charged Herbert with Kimberly's murder. And a few months after that, in November, Kimber Dixon, a friend of Herbert's who was in jail with a pending fraud charge, wrote a letter to law enforcement offering information about Herbert's murder of Kimberly in exchange for assistance in getting pretrial release. A detective subsequently interviewed Dixon, but the State neither promised nor gave Dixon any assistance.
The record is silent regarding the reason for the delayed charges, and neither brief includes an explanation of the reason for the delay.
[¶10] At Herbert's trial in August 2023, several witnesses testified regarding their interactions with Herbert and Kimberly on June 19, 2016. In particular, Clark testified that she saw Kimberly during the afternoon of June 19, 2016, and that she had no apparent injuries. But Clark testified that Herbert and Kimberly fought a lot. Montgomery testified that between 2:00 and 5:00 in the afternoon of June 19, 2016, Kimberly was panicked when she came to his house, pounded on the door, and asked to use his phone. Montgomery testified that Kimberly appeared to be hurt, as she was favoring one side of her body, and she told him that Herbert had kicked her while she was on the floor.
[¶11] Dixon testified that he saw Kimberly at Herbert's house between approximately 10:30 a.m. and noon on June 19, 2016. He testified that she looked like she had been "beaten up" and was unable to talk, eat, drink, or walk upstairs. Id. at 162. Herbert moved the trial court for an order in limine to ask Dixon about his motivation for providing testimony, namely, his request for an early release from jail. Herbert argued that that evidence would show his bias in favor of the State. The trial court denied that motion. But on cross-examination, Dixon testified that, in 2021, he "wrote a letter" and Detective John Branson came and talked to him about the murder. Id. at 173. Later in the trial, Detective Branson testified that he had met with Dixon while he was in jail. And Detective Branson agreed with defense counsel that it was "possible that folks would come to [law enforcement] with information about a crime because they were trying to work off charges[.]" Tr. Vol. 7, p. 109.
[¶12] The jury found Herbert guilty of Kimberly's murder. The trial court entered judgment and sentenced Herbert to sixty-five years executed. This appeal ensued.
A previous trial in 2022 resulted in a mistrial.
Discussion and Decision
Issue One: Due Process
[¶13] Herbert first contends that he was denied his right to due process when the trial court permitted Dixon to give allegedly false testimony. Herbert argues that
Kimber's description of Kimberly's appearance and behavior on June 19, 2016[,] cannot coexist in the same universe as the descriptions of Kimberly's appearance and behavior provided by [Barnes, Montgomery, and Clark]. Either Kimberly was beaten to a pulp, covered in bruises, with a badly swollen face or had no visible bruises or marks anywhere on her. Either she could not walk or speak, or she could walk to her neighbor's house, speak on the phone, climb into a pickup truck, and speak to her daughter. If [Barnes, Montgomery, and Clark] were telling the truth, Kimber was lying. Given the obvious falsity of Kimber's testimony, the State knew or should have known he was lying.
Appellant's Br. at 17-18. Herbert concedes that he did not object to Dixon's testimony at trial. Therefore, Herbert argues that "[t]he State's use of false testimony to convict [him] was fundamental error." Id. at 19. We do not agree.
[¶14] Fundamental error is a "daunting" standard. Harris v. State, 76 N.E.3d 137, 140 (Ind. 2017) (quoting Griffith v. State, 59 N.E.3d 947, 956 (Ind. 2016)). And "fundamental error in the evidentiary decisions of our trial courts is especially rare." Merritt v. State, 99 N.E.3d 706, 709-10 (Ind.Ct.App. 2018), trans. denied.
To establish fundamental error, a defendant must "show that the trial court should have raised the issue sua sponte due to a blatant violation of basic and elementary principles, undeniable harm or potential for harm, and prejudice that makes a fair trial impossible." Id. (citing Shoun v. State, 67 N.E.3d 635, 640 (Ind. 2017); Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014)).
[¶15] Herbert argues that,
[a]s the [United States Supreme] Court discussed in Napue [ v. People of the State of Illinois, 360 U.S. 264 (1959),] it is contrary to the very "concept of ordered liberty" for the State to obtain a conviction using false testimony. Napue, 360 U.S. at 269. Such a conviction is repugnant to the Fourteenth Amendment and cannot stand. Id. It is a blatant violation of basic and elementary due process principles, the potential for harm is substantial, and causes irremediable prejudice to the right to a fair trial. The harm from permitting such a conviction to stand cannot be overstated. If [Herbert]'s conviction can stand, then the right to due process is as illusory as hollow words on a page.
Appellant's Br. at 19.
[¶16] In Napue, a witness falsely testified that he had not been promised any consideration in exchange for his testimony against the defendant, and the prosecutor knew that the testimony was false. 360 U.S. at 267. Here, in sharp contrast, Herbert directs us to no evidence that Dixon lied on the stand. Rather, Herbert merely points out inconsistencies between Dixon's testimony and that of other witnesses. In particular, Dixon's description of Kimberly's injuries before noon on June 19, 2016, was very different from that given by Montgomery and Clark. But those inconsistencies go to the weight of Dixon's testimony. They do not render his testimony "false." See, e.g., Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015) (holding no violation of due process where witness's trial testimony was wholly irreconcilable with her prior statement under oath).
[¶17] In sum, nothing about Dixon's testimony denied Herbert his right to a fair trial. And the trial court certainly had no reason to sua sponte strike his testimony. Herbert has not shown error, let alone fundamental error on this issue.
Issue Two: Sixth Amendment
[¶18] Herbert next contends that he was denied his right to confront Dixon under the Sixth Amendment to the United States Constitution. Where, as here, "'a constitutional violation is alleged, the proper standard of appellate review is de novo.'" Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015) (quoting Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013)).
[¶19] It is well settled that
[t]he Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Sixth Amendment right to confrontation is made
applicable to the states by the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Article 1, Section 13 of the Indiana Constitution similarly provides that "[i]n all criminal prosecutions, the accused shall have the right to . . . meet the witnesses face to face." Both the Sixth Amendment and Article 1, Section 13 guarantee the right to cross-examine witnesses. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); McCarthy v. State, 749 N.E.2d 528, 533 (Ind. 2001).McCain v. State, 948 N.E.2d 1202, 1206 (Ind.Ct.App. 2011). But the right to cross examine witnesses "is subject to reasonable limitations placed at the discretion of the trial judge." Smith v. State, 721 N.E.2d 213, 219 (Ind. 1999).
[¶20] At trial, Herbert sought permission to cross-examine Dixon about his motivation for testifying against him. In particular, Herbert wanted to ask Dixon about the letter he wrote to law enforcement seeking a release from jail in exchange for his testimony. Again, Dixon was not given any benefit for his testimony. But Herbert argues that "the extent of a possible benefit is relevant to the jury's determination of weight and credibility of the witness's testimony." Appellant's Br. at 24 (citing Standifer v. State, 718 N.E.2d 1107, 1110 (Ind. 1999)) (emphasis added).
[¶21] In Standifer, defense counsel was precluded from asking two witnesses about their motives for testifying against the defendant. One witness was a confidential informant, whose bias toward the State was evident. The other witness was on parole at the time of the trial, but he had not been given any benefit for his testimony. Our Supreme Court held that the Sixth Amendment required the jury to be informed of the biases of each witness. As for the witness who was on parole, the defendant argued that "the amount of time remaining on [his] sentence was a motivating factor in his cooperation with the State that would affect the jury's assessment of his credibility." Standifer, 718 N.E.2d at 1110. The Court agreed and held that, "[a]lthough there was no evidence of a deal between the State and [that witness] based on his cooperation, Standifer is correct that the extent of a benefit offered to a witness is relevant to the jury's determination of the weight and credibility of a witness' testimony." Id. (citations omitted).
[¶22] Here, while Herbert was not allowed to ask Dixon about his request for a release from jail in exchange for his testimony, Dixon testified on cross-examination that Detective Branson came and talked to him about the murder after Dixon "wrote a letter[.]" Tr. Vol. 6, p. 173. Later, Detective Branson testified that Dixon was in jail when they met. And Detective Branson agreed with defense counsel that it was "possible that folks would come to [law enforcement] with information about a crime because they were trying to work off charges[.]" Tr. Vol. 7, p. 109. Dixon also admitted during cross-examination that he had previously been convicted of multiple "crimes of dishonesty." Id. at 172-73. Finally, Herbert thoroughly cross-examined him about the substantial inconsistencies between his testimony and that of the other witnesses.
[¶23] We hold that Herbert was not denied his Sixth Amendment right to crossexamine Dixon. See, e.g., Collins v. State, 835 N.E.2d 1010, 1015 (Ind.Ct.App. 2005) (holding no Sixth Amendment violation where defense precluded from cross-examining witness about his status as a probationer where no evidence of benefit in exchange for testimony), trans. denied. Moreover, insofar as Herbert had a right to present to the jury evidence of a possible motivation underlying Dixon's testimony, he did so through his cross-examination of Detective Branson.
Issue Three: Sufficiency of the Evidence
[¶24] Herbert contends that the State presented insufficient evidence to support his murder conviction. Our standard of review is well settled.
When an appeal raises "a sufficiency of evidence challenge, we do not reweigh the evidence or judge the credibility of the witnesses ...." We consider only the probative evidence and the reasonable inferences that support the [judgment]. "We will affirm 'if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.'"Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018) (quoting Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011)).
[¶25] To prove that Herbert committed murder, the State was required to show that he knowingly or intentionally killed Kimberly. Ind. Code § 35-42-1-1(1) (2023). As this Court recently explained:
"A person knowingly kills when they are 'aware of a high probability' that their actions may kill." Leonard[ v. State], 80 N.E.3d [878,] 882 [(Ind. 2017)] (quoting I.C. § 35-41-2-2(b)). "Knowledge and intent are both mental states and, absent an admission by the defendant, the jury must resort to the
reasonable inferences from both the direct and circumstantial evidence to determine whether the defendant has the requisite knowledge or intent to commit the offense in question." Stubbers v. State, 190 N.E.3d 424, 432 (Ind.Ct.App. 2022), trans. denied; see also Leonard, 80 N.E.3d at 883 ("Because knowledge is the mental state of the actor, the trier of fact must resort to reasonable inferences of its existence."). "In deciding whether a defendant was aware of the high probability that his actions would result in the death of a victim, the jury may consider the duration and brutality of a defendant's actions, and the relative strengths and sizes of a defendant and victim." Williams v. State, 749 N.E.2d 1139, 1141 (Ind. 2001) (citing Childers v. State, 719 N.E.2d 1227, 1229 (Ind. 1999)).Pritcher v. State, 208 N.E.3d 656, 665-66 (Ind.Ct.App. 2023).
[¶26] Herbert's argument on appeal is two-pronged. First, he argues that the State did not prove that he inflicted the injuries that caused Kimberly's death. Second, he argues that the State did not prove that, even if he did inflict those injuries, he did not do so with an awareness of a high probability that they would result in her death. We do not agree.
[¶27] The State presented evidence that the injuries that led to Kimberly's death were "most likely very recent." Tr. Vol. 6, p. 42. The State presented testimony that Herbert and Kimberly were together most of the day on June 19, 2016, and that Kimberly was exhibiting signs that she had been injured that morning and afternoon. The State also presented evidence that Herbert told emergency room personnel that Kimberly was last "normal" at 9:00 p.m. on June 19; that she started "gurgling" at 11:00 p.m. on June 19; and that he called for a ride to the hospital at 2:00 a.m. on June 20. State's Ex. 31. That evidence supports a reasonable inference that Herbert was with Kimberly from 9:00 p.m. until he took her to the hospital. In addition, while Herbert was yelling at Kimberly from across the street, Kimberly told Montgomery, "I can't believe he kicked me. He kept kicking me. I was on the floor. He really got me good this time. He kicked me." Tr. Vol. 5, p. 214. The State also presented testimony from Herbert's nephew that Herbert had called him on June 20, 2016, and said that "he beat 'the b****'" and offered to share photographs of her bruised body. Tr. Vol. 6, p. 201. The State presented sufficient evidence to prove that Herbert inflicted the injuries that caused Kimberly's death.
[¶28] With respect to Herbert's intent when he injured Kimberly, the presentence investigation report shows that, at sentencing, Herbert was 5'10" and 210 pounds. In contrast, Clark testified that, at the time of her death, Kimberly was 5'3" and 112 pounds. The State presented evidence that Herbert repeatedly kicked Kimberly while she was lying on the floor. Tr. Vol. 5, p. 214. And Kimberly sustained "blunt force trauma" throughout her body, which resulted in a tear in her liver, fractured ribs, and hemorrhaging in her scalp and underneath her scalp. Tr. Vol. 6, p. 15. In addition, the autopsy revealed signs of strangulation. Finally, rather than calling 9-1-1 when he wanted to take Kimberly to the hospital, he waited over an hour for Barnes to drive them.
[¶29] As our Supreme Court has stated, "where blows of magnitude are repeated, a jury could conclude that the defendant had an intent to kill." Nunn v. State, 601 N.E.2d 334, 339 (Ind. 1992). Given the significant size differential between Herbert and Kimberly, and given the force and multitude of blows to Kimberly's body, we hold that the evidence is sufficient to show that Herbert knowingly or intentionally killed Kimberly.
[¶30] For all of these reasons, the State presented sufficient evidence to support Herbert's murder conviction.
[¶31] Affirmed.
Altice, C.J., and Bailey, J., concur.