Kevin Herrick's account of what happened

The following is Kevin Richard Herrick’s narrative account of the events leading to his arrest, trial, wrongful conviction, sentence to life imprisonment and post-conviction proceedings. This account is consistent with Kevin’s multi-hour sworn testimony given on May 21, 2001 during a federal evidentiary hearing held before the Honorable Marc Pizza, Magistrate Judge on Kevin’s Section 2254 Petition for Writ of Habeas Corpus.: 

“In July 1989, I was staying with a childhood friend of mine named Patrick Porrey. Pat lived with his mother, Theresa, in her triplex unit on Audubon Drive in Largo, Florida. In the late 1970’s my father owned a triplex on the same road. Pat and my brother were good friends growing up. I was the younger brother who tagged along. My family moved from there around 1978. Pat was no longer a constant presence in our lives. We might see each other periodically, but for the most part, years could and did go by without us seeing each other. 

In 1987, I was released from prison. I had been sentenced to 30 months for convictions I sustained as a result of using my father’s firearms in an act of vandalism. I shot up a rival’s truck. I served about two years’ total (that was with an additional 12-month sentence for escape when I walked away from a DOT work squad.) A few months after my release I stopped by to see if Pat was around. It had been at least three years since Pat and I had any contact with each other. Pat was in jail at that time. I spoke with Theresa Porrey, Pat’s mom and Felicia, Pat’s girlfriend. I went to the jail that night and saw Pat. He was going to be entering a plea in the next few days and would be sentenced to a few years in prison. I told him I would look him up when he was out. 

In early January 1989, I went to Chicago to work for my sister, Lisa, in her tile business. In late June, I returned to Florida with my girlfriend, Michelle. Once in Florida, I was staying in a hotel in Clearwater. One afternoon I was looking through a phonebook and came across Theresa’s phone number. I thought Pat should be out of prison by then so I called. Pat answered and after a few minutes of speaking, he decided to come pick me up. Pat and I went out to lunch. When he learned I was staying in a hotel, he invited me to say with him and Theresa in their triplex. We went there and spoke to Theresa who was happy to see me and was willing to accommodate me until I could get reestablished with a job and a place to stay. 

This was in the last week of June 1989. 

While staying with the Porreys, I did things around the triplex like cutting the grass and some yard work. I tried to be useful as Theresa was not charging me rent. Through being outside, I met the neighbors in the right-side triplex apartment, Daren Scott Barfield and his girlfriend, Cheryl Hagan. They had a newborn baby. After some conversation, Scott offered to smoke some marijuana with me. I accepted. On a number of occasions over the next two weeks, Scott, Cheryl and I smoked together. This happened both inside and outside their apartment. 

On the night of July 13, 1989, Pat and I ended up at Cheryl’s apartment where we watched a video with her on her TV. Scott was not home. He was at a bachelor party. Cheryl specifically told us that Scott would be gone all night. While we watched the movie, all three of us smoked. After the movie, Pat and I left, returning to our apartment. (This is crucial information as it clearly shows that if I was going to attack Cheryl, I had the perfect opportunity to do it that night when I knew Scott would not be coming home rather than the next night when I would have no idea where he was or when he would return to the apartment.) 

On Friday, July 14, 1989, Pat asked me if I wanted to go to Tampa with him. I declined. I did not want to go out and party. I had plans to see my girlfriend, Michelle, the next day. She was staying with her parents in Clearwater. Around 5:30 or so I went over to Scott and Cheryl’s apartment to see what they were up do. Cheryl answered the door and said Scott wasn’t home yet. She invited me in and we sat around for a few minutes talking. They had a chess board and we ended up playing chess. Scott came home within half an hour. He arrived with two friends of theirs, Darryl and Tammy. All of us smoked marijuana that Scott provided. After a while, Scott said they were going out to get something to eat. I said my goodbyes and returned to the Porrey’s apartment. 

Theresa was home. Theresa Porrey was probably in her early to mid-60s. She was on oxygen due to emphysema. She had enough cord to allow her to travel all around her home and even outside some distance. 

I cooked a little dinner of hamburger helper and sat down to watch TV. I watched an episode of The A Team and then a movie with Rodney Dangerfield, either Back to School or Easy Money. At 11:00 p.m., I told Theresa I was going to bed. I went to my room. I laid down and read for about 20 minutes from a book titled “The Rest of Our Lives” before I fell asleep. 

I awoke to Theresa shaking me and yelling that the girl next door was being attacked. I jumped out of bed, pulled on my shorts and ran to the front door of the triplex. I went out into the courtyard area. Cheryl was standing there with her baby in her arms crying and saying “don’t leave me” over and over again. At the same time, I came outside the other neighbor, David Stewart came out of his front door. This was the first time I met him. Within a minute, Scott came running up the walkway from the parking area of the triplex. He was screaming a license plate number and for us to write it down. I asked Scott what happened. He said he chased the guy to a white car and got the tag number as it drove away. I told David to call the police. I could see Scott had been cut in the chest area. He was bleeding. I asked him if he was okay. He said yes. Cheryl was standing there with us as well as Theresa. Everyone was pretty hysterical. I told Scott to make sure he went in and put his marijuana and smoking paraphernalia away. He kept that stuff in plain sight on the coffee table and it wouldn’t look good for the police to see it. He went inside to deal with that and David and I went to the parking area to await the police arrival. 

When the police arrived, I stayed out of the way and watched what was going on from the front door of Porrey’s apartment. Throughout the investigation, David and I spoke a bit as he was also standing in the courtyard area by his door. At one point, Officer Howard Crosby came over and asked us who we were and what we knew about the situation. I told him about Theresa waking me up and what I found when I came outside. I don’t recall what David said. At some point, Cheryl was again outside with us. She spoke to all of us. Eventually, Scott was taken by the EMTs to the hospital for treatment. David did ask me if we should go to the hospital. I told him I could not leave Theresa alone. Her daughter, Sandy, had called during the investigation. Sandy worked at the local hospital and heard the EMT rescue unit dispatched to her mother’s address and thought something had happened to Theresa. When Sandy called, I assured her Theresa was fine and that I would be there. Eventually, Theresa’s sister, who lived a few triplexes down the road, came over. However, at the time there was no way I could leave her there by herself. She was pretty worked up and upset. The investigation wrapped up and the police left. 

Once Theresa’s sister arrives, I eventually went back to bed. I was awakened by Pat jumping on my bed. He was saying “How could you do this, we let you stay here…” I woke up and realized he was accusing me of whatever had happened. Theresa and David Stewart were also in the room. I pushed Pat off me and said he was crazy. I told him his mom woke me up and asked what the heck he was talking about. Pat was confused at that point. His mother confirmed that she woke me up within a minute or so of hearing Cheryl screaming. Theresa said she heard Cheryl, went to the door and saw her and came to my room to get me. This was all extremely quick. I was highly agitated that Pat was accusing me. I asked him what was going on. He said he spoke to Scott and Scott said he thought I was the guy who attacked Cheryl. This got me seriously pissed off and I demanded to go see Scott. It was obvious that doing that would not end well. Pat asked me to calm down. He said he and David would go talk to Scott. I let myself be talked out of going with them. All of us went to the front of our apartment. Pat and David left in David’s car. 

This left Theresa and me at the triplex by ourselves. (This is crucial information as Pat and David did not return for at least a half hour. When they came back, I was still there. I did not leave. If I was guilty, and now knew that Scott had seen me and was accusing me, I would have run at the first opportunity, which happened when David and Pat left to go speak with Scott again. However, I am not guilty and did not have any reason to run.) 

When Pat and David returned, Pat said to come with him. We went back to my room. He asked me if Cheryl and I had been fooling around and were caught. I told him absolutely not. I again told him I was in bed sleeping and that his mom knows this as she woke me up. I told him I didn’t know what happened to Scott and Cheryl, and I didn’t have anything to do with it. Pat looked at me for a long time in the eyes and finally said that Scott had said he thought it could have been me, but wasn’t sure. I again said I wanted to go talk to him. Pat talked me out of doing that. We went out front. David, Pat and I went outside to the parking area so we could smoke. We discussed what might have happened. We went back inside. David went to his apartment. 

About five minutes later, there was a knock at our door. I opened it. There were about 7

to 10 Largo police officers standing there. They asked if they could talk to me. I said yes and stepped outside. As I did so I was grabbed and handcuffed. One officer specifically said to me “you have been convicted of burglary before, your fingerprints were on that door (he pointed to Scott and Cheryl’s door) and you are the one who did this tonight.” I was rushed to a police cruiser and driven to the Largo police station. 

At the police station, I was put in a cell. About 20 minutes later, Officer Crosby and Officer Joiner moved me to an interrogation room. They read me my rights and asked me if I was willing to talk to them. I explained that I had been advised by an attorney that if I was ever arrested to have an attorney present when answering questions. I asked if there was an attorney there who could witness the conversation. When they said no, I would get one at the jail, I said that while I was willing to answer any questions, I would not do so without an attorney present. 

They were a bit frustrated. Officer Crosby got pretty agitated and started telling me that they had two eyewitnesses that said I was the one who did this. I was stunned. I said, under those circumstances, I certainly needed to have an attorney witness the conversation. They took me back to the cell. About a half hour later, Officers Crosby and Joiner came and asked if I would be willing to submit hair samples. Officer Crosby said if I did so voluntarily and stated “it may prove my innocence”. After Officer Joiner took head and pubic hair samples from me, I was taken to the Pinellas County Jail. I was booked in under the charges of Sexual Battery, Armed Burglary, Attempted Homicide, Kidnapping and Convicted Felon in 

Possession of a Firearm. 

On October 2, 1990 I rejected a 5-year plea offer from Assistant State Attorney, Joseph Balone (now Judge Balone in Pinellas County), and proceeded to trial. The State presented four witnesses. Cheryl, Scott and Officers Joiner and Crosby. Lead investigator, Officer Brian Lavign was not called as a witness. My attorney, Roy Edward "Ed" Leinster presented a videotaped deposition of Theresa Porrey. By the time of my trial Theresa was medically unable to travel to the court house. Ed did not speak to her or record her testimony until October 1, 1990. The day before my trial began. He also had me write my name on a price of paper in front of the jury and introduced it as evidence to show that I was right-handed. This was in response to Cheryl's testimony which indicated the man who attacked her would seem to be left-handed by the way he held the knife she claimed he put to her neck. No other witnesses testified.
 

I fully expected Pat Porrey and David Stewart to testify. However, they were not called. Later in post-conviction proceedings I discovered that Ed had never talked to either of them. In discovery proceedings in a Legal Malpractice action I brought against Ed in 1994, he claimed under oath that he could not locate Pat. He was shown to be a liar when the video deposition of Theresa Porrey conclusively showed Pat at her side getting her water and attending to her needs during the deposition. Pat is visually identifiable as well as vocally when he speaks to her.
 

No physical evidence was introduced at trial that bears on the question of guilt or innocence. Officer Joiner recovered a number of latent fingerprints. Ed stated that according to the State attorney, none of them matched me and all of them matched Scott. This was stipulated to in front of the jury.
 

Prior to trial I asked Ed about the hair analysis. He stated that the results were inconclusive. Accordingly, neither party introduced the results. However, during the Legal Malpractice action, when I obtained Ed's case file (through a court order) I discovered that Ed did not possess any reports detailing the microanalysis conducted on the hair samples found in the bed sheets and those I voluntarily submitted. I ultimately obtained the analysis reports from The Florida Department of Law Enforcement (FDLE). Contrary to Ed's statements to me, the report showed that my hair as well as Scott and Cheryl's hair was tested against the hairs found in the bedsheets, and that my hair was CONCLUSIVELY EXCLUDED. The report was silent as to the results pertaining to Scott and Cheryl's hair. It was not until a Federal Evidentiary Hearing held May 21-22, 2001 on a 2254 Petition for Writ of Habeas Corpus that Senior Analysis Marianne Hildreth was questioned for the first time in this case. Mrs. Hildreth revealed for the first time that the hair found in the bed sheets did not match me, Scott or Cheryl. There was unequivocally an unidentified person’s hair in the bed sheets. It is the only disinterested physical evidence in this case. It has never been presented to a jury.
 

At trial Cheryl testified that she and Scott went to the drive-in movie but came home early, 11:00 - 11:30 pm because her baby was cranky. She put the baby to bed and went to take a bath. While bathing she stated Scott came in to tell her he was going to go with David Stewart to help him transport some fish to David's mother's home. Scott left. Cheryl finished her bath and went in her bedroom and laid down. She dozed and was awaken by the phone. Scott called to say he was on the way home. She hung up and dozed more. She woke with a man straddling her. She said the room was pitch dark. She said the man's hair was long, rough and hanging down in her face. Originally Cheryl said he was holding a "scalpel" to her neck. She stated the man had a dark blue or black sleeveless shirt on. She could see it was dark and could tell the difference between the shirt and the man's skin on his arms. She said the man did not have any pants on and his penis was right in front of her face. She stated the man told her to suck it. Cheryl said she told him her boyfriend would be home soon, to which he told her she better hurry up or he would kill her baby. She said his penis did penetrate her mouth once. She could not state whether the man had an erection. It should be noted that this happened on a water bed and that according to her testimony she was not laying on the bed in the conventional manner. She was laying sideways. This placed the top of her head right next to a large window that opens to the parking area. Where the vehicles parked is literally 4 to 5 feet from this window. Furthermore, in order to drive into the parking area, the lights of any vehicle entering would necessarily have flashed directly into the window lighting up her bedroom and anyone kneeling on top of her facing the window as she claims (This is critical to understand as Scott said he drove up, parked his car and both he and David got out of it. The way Cheryl said she was laying and the man was straddling her would mean the lights of the car would have splashed across that window he was facing literally a foot away. He would have (1) seen the car pull up and (2) he would have heard the car park and two doors open and close. Yet according to Scott, a few minutes later when he entered the pitch-dark room, the man was still on top of Cheryl. There simply is no way this could happen like this).
 

Cheryl said the next thing she knew, Scott was in the room. He and the man were fighting. The man backed out of the room and pulled the door shut. Scott tried to open the door, but the man was holding it shut. A few moments later the door opened. Scott went down the hallway and she went to her baby. She heard Scott tell the man to go out the front door. Scott followed him. Cheryl said she went to the front door and was screaming for help

Cheryl testified that a few moments later I came out of the Porrey's apartment with Theresa Porrey. Cheryl stated I looked like I had been in bed. She did not give any indication that she knew or even thought I was her assailant. A few moments later Scott came back screaming a license plate number.
 

Cheryl testified that while inside their apartment, before the police arrived, Scott asked her if she saw who it was. Cheryl stated she replied "it looked like the guy next door" to which Scott said, "it was". (An important observation is this: Cheryl did not specify which guy next door. Ironically, neither did Scott. This is interesting in light of the fact that Scott and Cheryl give two totally different physically descriptions of the person they saw. Reality is that the man they saw could only look one way. Logic dictates that while one of their descriptions could be correct, both cannot be. Also, logic further dictates that neither description has to be correct. They could both be wrong. The fact that they saw the same person at the same time and gave two totally different descriptions of that person necessarily gives rise to the probability that both descriptions are in fact unreliable). Cheryl did not tell the police about this conversation with Scott or that she thought the man "looked like the guy next door" when they arrived and asked her what happened.
 

On cross examination Cheryl admitted that one of the reasons she believes the attacker was me was because the Largo police told her a bloody knife and bloody clothes were found in my room and that my fingerprints were found on her door. THIS WAS NOT TRUE! However, Cheryl readily admitted the police told her this information and that she believe it to be true as she testified. She also stated she believes it was me "because Scott said it was and Scott wouldn't lie to" her.
 

Scott testified that he was not upset when he came home and found Cheryl and I playing chess. He stated that after casual conversation he and Cheryl left for their plans for the night. Scott echoed Cheryl's testimony about a drive-in movie and coming home early. He stated he went over to David's apartment and ultimately helped David transport some fish to a stable fish tank at David's mother's home.
 

Scott stated that when he and David retuned to the triplex, he stayed outside in the common court yard area to smoke. He believed he heard what he thought was Cheryl crying. He entered the apartment which was dark. He did not turn on any light. He went to the bedroom door which was closed. He opened the door and saw a man on top of Cheryl on the bed. He again did not turn on any light. Scott claimed he knew immediately the man was raping Cheryl. He told the man to get off her. He said that when the man did, he could see that the man was totally naked, "maybe socks". He stated the man's hair was slicked down close to the scalp with oil or mouse and pulled up in the back to make look short. Scott claims he could only see a silhouette of the man and he believed that man looked just like me. He did admit that he never saw me look like this before.
 

Scott stated that when the man got off the bed they began fighting and the man stabbed him in the chest twice. Scott said he backed up and the guy went to pull on his pants. As he did, Scott went for him again and was hit again. Scott stated the man told him to back up. The man backed out of the room and pulled the door shut. Scott tried to open the door but the man was holding it closed. After a few moments he tried again and found the door opened. Scott went to the dining room area and saw the man struggling to open the sliding glass door. Scott said he told the man to go out the front door. The man told him to back up. When Scott did, the man went through the kitchen and out the door. At trial Scott stated for the first time that when the man went into the kitchen, he could see that it was in fact me. Prior to his trial testimony, Scott had stated he never saw who the man was while they were inside the house. In his prior statements, he said that it wasn't until he was chasing the man outside that he saw it was me.
 

Scott told multiple stories about the tag number of the vehicle he originally stated he chased the guy to. At trial his story changed yet again and he stated that he made the car and tag number up to throw the police off of my trail so he could deal with me himself. His statements did not make sense. Scott testified that he had chased the man to continue the fight. Yet he could not explain why he did not confront me minutes later when he returned to the triplex and found me standing there with everyone. The question was, if he would have fought with the man minutes ago when chasing him, and he wanted to take care of things himself, why didn't he when he came back to the triplex and found me standing there with of all people, Cheryl and the others? Scott could not explain his inaction.
 

Remarkably, Scott said we did not speak to each other at all. He also said it appeared that I had "bed head" as if I had just gotten out of bed. He said that while my hair was not slicked back, he believed he could see a trace of oil around my hair line. He testified that when he lost sight of the man behind then triplexes, he felt I could have had as much as ten minutes to return to the triplex and get the oil out of my hair and get cleaned up before he returned. (This goes against both Theresa and Cheryl's testimony that I came out with Theresa pretty quick.)
 

In addition to all of this, Scott did not tell the police he thought it was me when they arrived.

Scott also admitted at trial that he believed the police had found a bloody knife and bloody clothes in my room, and that my fingerprints were found on his door. When asked if he would still believe it was me if that information was not true, Scott became defiant and stated the police might not have found the right stuff, or they might have sent the wrong stuff to the lab. Scott went so far as to say that the lab might have made a mistake. He would not admit that it was possible that he was in fact the one who was making the mistake.
 

No physical evidence implicated me in these events
 

Theresa testified that she woke me up moments after hearing screaming and that there was no way I could have gotten in and out of the apartment without her seeing me.
 

The State presented rebuttal testimony from Scott and Cheryl in which they claimed to have intercepted a telephone conversation between Theresa and an unknown and unheard party where Theresa expressed concern that Scott and Cheryl might sue her. Scott and Cheryl claimed to have intercepted this call through their baby monitor device. Theresa denied this conversation ever took place as well as stated she was not worried about being sued. She stated she had insurance.
 

The jury returned verdicts finding me guilty on my 24th birthday
 

As a result of my prior record, the recommended guideline sentence of 17 to 22 years was enhanced to only a "Life" sentence option. My prior record consists of 6 prior felony convictions. Three of which came from my father agreeing to allow formal charges to be made against me for taking two of his guns out of his house (1 count of Burglary, and 2 counts of grand theft of a firearm). The other charges were Criminal Mischief and Shooting into a Building. The final felony conviction came from an escape charge I got when I walked away from am Department of Transportation Prison work detail. My prior record resulted in me being sentenced to 30 months in prison, with an extra year and a day for the escape. A total of 42 months. For that, what was a recommended 17 year sentence under the sentencing guidelines was enhanced to a mandatory "LIFE" sentence which mandates I die in prison unless the governor grants me some form of commutation of sentence.
 

On January 4, 1991, I was sentenced to two Life sentences and 15 years all sentences to be served concurrently.
 

The real shocker in these sentences is that I rejected a plea offer of 5 years. I would have been released in 1991. I rejected the plea offer because I am not guilty of these crimes. I have done just about 30 years (July 2019) because I am not guilty and chose to go to trial rather than take a plea.
 

An Anders brief was filed on appeal which basically said the attorney saw no reversible error in the case and asked to be removed. The conviction was affirmed.
 

I proceeded to challenge my conviction in post-conviction proceedings. I have filed multiple Rule 3.850 motions. I have filed multiple motions to correct illegal Sentence, as well as State Petitions for writ of Habeas Corpus.
 

In 1994 I brought a Legal Malpractice action against Ed Leinster. As a result of a Floridan Supreme Court decision that ruled a criminal defendant could not bring a Legal Malpractice suit until he was exonerated, I had no choice but to abandon the action.
 

In 1994, while pursuing my civil action and post-conviction remedies, I contacted Dr. John Brigham, Professor of psychology at Florida State University. Dr, Brigham is an expert researcher in the field of Eye Witness identifications. Dr. Brigham was kind enough to review the record in my case and concluded that as a direct result of the false information the Largo police provided Scott and Cheryl with respect to the bloody clothes and knife being found, their ability to make an accurate identification had been fatally compromised.
 

In 1997 I filed a Federal 2254 Petition for Writ of Habeas Corpus. I received a hearing. In this hearing the following was established:

• My mother and sister testified that on the second day of my trial they smelled alcohol on Mr. Leinster's breath when they spoke to him.
• Marianne Hildreth established for the first time that the hair found in the bed sheets did not match Scott, Cheryl or myself.
• Scott admitted he smoked marijuana, but would not admit to smoking that night.
• Cheryl denied smoking marijuana at all, claiming that she was breast feeding her baby and she would not do something like that.
• Pat Porrey was located and gave sworn deposition testimony that confirmed the events as I stated they happened above and that Scott in fact told him after he was released from the hospital that he was not sure I was the guy he saw.
• Patrick Douraghty, a criminal defense attorney testified as an expert witness and gave a professional opinion that Mr. Leinster's representation was constitutionally ineffective and the result of my trial was prejudiced.
• Mr. Leinster testified. He was in prison at a work release center. He denied being under the influence of alcohol during my trial and believed he did a competent job representing me.
• Magistrate Judge Marc Pizzo announced to the attorneys that Mr. Leinster had in fact appeared in his court in his professional capacity as an attorney and was under the influence of alcohol.
• State Attorney Joseph Balone testified. He believed the plea offer was much higher. Around 10 years at least.
  * I testified to all of the facts as stated in this document as well as some I have probably inadvertently forgotten to include.
   

My 2254 Petition was denied. Judge Pizzo entered a finding that I had procedurally errored in the state court and was untimely in the Federal court under the AEDPA (Anti-Terrorism Effective Death Penalty Act).

In approximately 2006 I was contacted by Ms. Audrey Swank. Ms. Swank was Judge Pizzo's judicial assistant during the time of my Federal Evidentiary hearing. Ms. Swank is a Florida Bar Licensed attorney. She expressed her belief in my innocence and wanted to offer her assistance in my case. Ms. Swank recruited the Florida Innocence Project. The Innocence Project filed a motion seeking to have the hair found in the bed sheets DNA tested. The theory being if we could acquire the genetic code it could be compared through existing DNA databases and we could possibly find the actual assailant. Florida's circuit court denied the testing. With no other physical evidence to proceed with, The Innocence Project withdrew from my case.
 

This is what has happened since...

• Theresa Porrey has since passed away
• Mr. Leinster has since passed away.
• David Stewart has never been located.
• I have continually maintained my actual innocence in this matter.