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Herrera v. State

Supreme Court of Wyoming

September 10, 2019

HOLLY ANNE HERRERA, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Hot Springs County The Honorable Robert E. Skar, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Samuel Williams, Assistant Attorney General. Argument by Mr. Williams.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.


         [¶1] A jury convicted Holly Herrera of three counts of child endangerment and one count of possession of a controlled substance. On appeal, she claims that her Fifth Amendment right to remain silent was violated when the district court allowed testimony regarding her contamination of a urine sample she was compelled to provide. We affirm.


         [¶2] Ms. Herrera raises a single issue on appeal, which we state as:

Was Ms. Herrera's Fifth Amendment right to remain silent violated when the district court admitted testimony regarding her contamination of a compelled urine sample?

         The State frames the issue similarly, but also raises the additional question of whether Ms. Herrera waived her Fifth Amendment claim when she failed to raise it in the district court.


         [¶3] At around 12:00 a.m. on July 1, 2017, Wyoming Highway Patrol Trooper Beatriz Schulmeister stopped a vehicle outside Thermopolis, Wyoming for failure to have the rear license plate illuminated.[1] She approached the vehicle on the passenger side, and she initially saw a little girl and two young boys sleeping in the back seat, and a male driver and an adult male passenger in the front. She knocked on the front passenger window, and when it was rolled down, she introduced herself and informed the driver of the reason for the stop. When she asked for his driver's license, insurance information, and registration, the driver admitted that he did not have a license on him, and that his license had been suspended.

         [¶4] Trooper Schulmeister asked both the driver and his passenger their names and dates of birth so that she could verify the suspension and determine whether the passenger, who said he was licensed but did not have his license with him, would be available to drive the vehicle when the stop concluded. She wrote that information down and again asked for insurance and registration. She noticed that both the driver and the passenger were nervous when they pulled documents from the glove box and console, and that they were moving fast without looking at the paperwork. She also observed that the windshield was broken, and she asked how long it had been like that. The driver responded that he did not know because the vehicle belonged to his sister, Holly Herrera.

         [¶5] Trooper Schulmeister ran a check on the information she was given and confirmed that the driver was Christopher Decker and that the front passenger was Derek Fyffe. Because the vehicle had only temporary tags, she was not able to run those for vehicle ownership information, and she returned to the vehicle to again ask for the registration and proof of insurance. She approached on the passenger side but then pointed her flashlight at the driver's side because Mr. Decker was moving about in a nervous manner that concerned her, and she wanted to see his hands. While she was shining her flashlight on the driver's side, its light glanced off of the back seat, and Trooper Schulmeister saw the top of a head underneath one of the children. The person was sitting low in the seat behind the driver's seat and was not wearing a seatbelt. Trooper Schulmeister knocked on the window to ask about the seatbelt and found that the additional passenger was an adult female.

         [¶6] That adult female was Holly Herrera, but when Trooper Schulmeister asked her to identify herself, Ms. Herrera gave her a false name, Jacqueline Marie Cardenas, and a false birth date. She said she did not have a current driver's license but that she had a suspended Nevada license. After Trooper Schulmeister obtained Ms. Herrera's information, she told Mr. Decker and Mr. Fyffe that she still needed the vehicle registration. Mr. Fyffe looked in the glove box again and found a certificate of title, which he gave to Trooper Schulmeister.

         [¶7] The certificate of title identified Holly Herrera as the vehicle's owner, and Trooper Schulmeister returned to her patrol car to verify the vehicle ownership and the information Ms. Herrera had given her. She was unable to verify the information Ms. Herrera gave her and requested clarification of the correct spelling for her name and her birth date. Ms. Herrera again provided false information, changing the spelling of the false name slightly and date of birth, and Trooper Schulmeister was again unable to verify the information. She then asked Ms. Herrera to write down her information so she could be sure she had the correct spelling and birth date. In response, Ms. Herrera provided false information a third time, again using the same name with minor adjustments to its spelling and her birth date, and Trooper Schulmeister was again unable to verify the information.

         [¶8] By this time, Sergeant Jerimie Kraushaar of the Hot Springs County Sheriff's Office had arrived to provide backup. He used information from the certificate of title to find Holly Herrera's Facebook profile and based on the profile photo determined Ms. Herrera's true identity. He informed Trooper Schulmeister of this, and that there was an outstanding warrant for Ms. Herrera's arrest. Trooper Schulmeister cited her for interference with a peace officer and placed her under arrest.

         [¶9] The children in the vehicle were Ms. Herrera's twelve-year-old son, a fourteen-year-old neighbor boy, and Mr. Decker's four-year-old daughter. Trooper Schulmeister requested that dispatch contact the Wyoming Department of Family Services for assistance with the children, and that it send a wrecker to tow the vehicle. It had to be towed because Mr. Decker's driver's license was suspended, Mr. Fyffe did not have a license on him, and Ms. Herrera was under arrest.

         [¶10] Before the vehicle was towed, Trooper Schulmeister inventoried it, as required by Wyoming Highway Patrol policy. During her inventory, she found a white baggy containing a white powdery substance on the floor between the driver's seat and the door. The State Crime Lab later identified the substance as methamphetamine. She also found a bag of unused syringes in the glove box. On the floor behind the driver's seat, she found a "torch," which she recognized as a type of lighter commonly used to smoke controlled substances from a pipe. In the middle of the back seat floor, she found a pink and black cosmetic case that contained cosmetics and a glass pipe wrapped in a paper towel. The glass pipe contained a residue that the State Crime Lab identified as methamphetamine.

         [¶11] The outstanding warrant for Ms. Herrera's arrest was for a probation violation. As a condition of her probation, Ms. Herrera was required to submit to urine testing, and on July 3, while she was still in the detention center, Trooper Schulmeister asked her to provide a urine sample. On her first attempt to provide a sample, which was observed by Trooper Schulmeister, Ms. Herrera said she was unable to produce one. On her second attempt a short time later, also observed by Trooper Schulmeister, she was able to urinate but contaminated the sample by dipping it into the toilet water. Because the sample was contaminated, Trooper Schulmeister did not submit it for analysis and made no further attempts to obtain a sample.

         [¶12] On July 6, 2017, the State filed an information charging Ms. Herrera with three felony counts of child endangerment-exposure to methamphetamine, and one misdemeanor count of possession of a controlled substance. Before trial, Ms. Herrera requested notice of the State's intent to introduce W.R.E. 404(b) (other acts) evidence, and the State provided no such notice.

         [¶13] A jury trial was held February 14-16, 2018. During defense counsel's cross-examination of Trooper Schulmeister, the following exchange occurred concerning Ms. Herrera providing a false name and birth date (footnote added):

Q. Okay. You made a statement yesterday that oftentimes people - oftentimes people who have warrants don't give their correct names; do you remember making that statement yesterday?
A. Yes.
Q. Okay. Do you run into that quite often? Well, you've apparently run into it before?
A. Can you give me a minute to think about it?
Q. Yeah, that's fine.
A. I don't think that people gave me the wrong names, I don't recall - I don't recall anybody having a warrant, maybe they were just lying because something else.
Q. Okay. With Mr. Fyffe you were really digging there because things weren't matching up?
A. Yes.
Q. And there was a warrant for him, okay, and so you were at that time thinking, "Well, he's possibly given me some false information because he's got a warrant; is that correct?[2]
A. Yes.
Q. So that was kind of going through your mind. You eventually found out who Ms. Herrera was; is that correct?
A. Later on, yes.
Q. Later on. And you also found out that she had a warrant; is ...

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