Kevin Herrick Wrongful Conviction, Kevin is Next

With none of the physical evidence able to place Kevin to the crime, this case boiled down to the eyewitness victim testimony for which there are several inconsistencies between the victim accounts, as well as inconsistencies in their trial testimony in comparison to initial statements made to the police, their official written police statements, and again, at deposition. 

To make matters worse the Largo Police told the victims that they had recovered the bloody knife along with blood-stained clothing from Kevin’s room and that the fingerprint evidence recovered matched Kevin. 

Forensics testing would later disprove the erroneous conclusions made by the Largo Police concerning the blood and fingerprint evidence, but the victims were not informed of the test results until days before the trial 15 months later. Then, when both victims testified at trial they testified that still believed the police had recovered the bloody evidence which connected Kevin to the crime scene and claimed this information was an essential part of their identification.  

In 1998 John Brigham provided his expert review of the witness statements and testimony in this case, for which he concluded in his report that "the victims’ ability to accurately trust their identification decision had been fatally compromised".

Cheryl testified at trial 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 their neighbor, David Stewart, to help him transport some fish to David's mother's home. Scott left and Cheryl finished her bath and then went into her bedroom and laid down. She dozed off and was awoken by the phone. It was Scott calling to say he was on the way home. She hung up and fell back asleep. She was then reawaked with a man holding a scalpel and straddling her. She said the room was pitch dark. She detailed the man's hair as long, rough and hanging down in her face. 

• This is interesting because Scott and Cheryl give two totally different physical descriptions of the assailant and neither description matches the physical characteristics of Kevin.

She specified the man had a dark blue or black sleeveless shirt on. Cheryl stated that she could see it was dark in color, either black or blue, and could tell the difference between the shirt and the man's skin on his arms. 

• This is interesting because Scott claims the assailant was completely naked, (maybe socks) and that when he left the house the assailant was carrying his shirt and shoes.
• Additionally, police recovered a red t shirt as evidence from Kevin’s room. Not black or blue as Cheryl describes. 

Cheryl's statements claim that she was laying sideways on the bed and awoke with her assailant straddling her. 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 that her boyfriend would be home soon, to which he replied that she better hurry up or he would kill her baby. 

• With the assailant kneeling on top of Cheryl and facing the window, he would have undoubtedly seen Scott’s car headlights as he pulled in and parked the car. The lights of the vehicle would have flashed directly into the window lighting up the bedroom. Why did the assailant not flee at that time? This simply does not make sense. 

Cheryl said the next thing she knew, Scott was in the room and he and the assailant began fighting. The assailant eventually held Scott and Cheryl at bay and put his pants on when she observed a large belt buckle which according to Cheryl, was just like the one Kevin always wore. 

• This is significant because Kevin never owned a large belt buckle. The belt obtained by police is a standard belt, yet this evidence was never introduced at trial. This is important because the large belt buckle which Kevin never possessed is the only consistent form of identification that Cheryl claims as her conclusion that Kevin is      her assailant. 
• During cross examination, Kevin’s attorney focuses on the pitch-dark room and her ability to see, instead of introducing the belt as evidence. 

According to Cheryl, the assailant managed to get 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. 

• Scott claims that he first went to the baby’s room with Cheryl and then followed the assailant. While this is trivial, it is another inconsistency between the victim’s testimony.

She heard Scott tell the man that the sliding glass door was locked and then Scott told him to go out the front door. Scott followed him. Cheryl said she then went out the front door and began screaming for help.

• This incident with the sliding glass doors also leads to Cheryl’s determination that Kevin is the assailant because she claims that Kevin always used the sliding glass door to come in and out of the house. Yet, in Cheryl’s deposition she identified only three instances      where Kevin entered the home, with Kevin using the front door on two occasions. But then in the trial testimony Cheryl claims that there are now at least five occasions that Kevin came in the house and he always used the sliding glass door.

During cross examination Cheryl admitted that one of the reasons she believes the attacker was Kevin was because the Largo police told her that the bloody knife and bloody clothes were found in Kevin’s room and that his fingerprints were found on her door. 

• THIS EVIDENCE DOES NOT EXIST! However, Cheryl testified that the police told      her this information and that she believes it to be true as she testified.      

Cheryl further 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". 

• She also testified that she believes it was Kevin "because Scott said it was and Scott wouldn't lie to her”.

Ironically, Cheryl never identified Kevin as her assailant while they were both at the scene with the police present.

• Prior to Cheryl’s written statement 3 days after the incident, Largo police informed her that they found the bloody knife and clothes in Kevin’s room when they arrested him.
• Cheryl’s written statement states: “I remember trying to see who it was, but it was so dark, it looked like Kevin but I didn’t think it could have been”
• “I could see that they were jeans with a belt, just like the one I always see on Kevin”
• “I remember Kevin coming out of Theresa’s with his pants unbuckled and when I saw him I felt sick to my stomach and I kept thinking it looked like him but how could it be? He played chess with me that day and even got my mail for me, so I wouldn’t have to bring the baby out of the shade. I kept telling the police it looked like him, but I didn’t want to accuse him because I wasn’t sure. I was in shock, but Scott saw him.”

Isn’t it interesting that Cheryl consistently qualifies her identification for how she thought it was Kevin, but she just couldn’t believe it, in her written statement, deposition and trial testimony, yet her absolute positive assurance is from what Scott tells her.

• Essentially, Cheryl is not sure, but she is eventually convinced by Largo Police and Scott. 

Scott testified that when he and David returned to the triplex, he stayed outside in the common courtyard area to smoke. He believed he heard what he thought was Cheryl crying. 

• If Scott could hear Cheryl crying in the bedroom, the assailant would have surely heard the car pull in and park along with both doors shutting. Why did the assailant not flee at that time? This just does not make sense. 

He entered the apartment which was dark. He did not turn on any lights. 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 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". 

• This is inconsistent with Cheryl’s statements which testified that the man had a dark blue or black sleeveless shirt on.
• Why did Scott not turn on the light when he opened the bedroom door and found a man on top of his girlfriend. Wouldn’t the normal reaction be that she was cheating, and you would turn on the lights to catch them? 
• Furthermore, since Scott had returned home from work earlier that same day to find Cheryl and Kevin playing chess together, how does he conclude that he was raping her? How is it that Scott never gave consideration that they may have been fooling around if he truly identified Kevin as the assailant as he claims.

Scott further testified that the assailant's hair was slicked down close to the scalp with oil or mouse and his hair was pulled up in the back to make it look short. He did, however, admit that he never saw Kevin look like this before. Scott also claimed he could only see a silhouette of the man, but he believed that man looked just like Kevin. 

• This is also inconsistent with Cheryl’s testimony which detailed the man's hair as long, rough and hanging down in her face.
• And since Kevin had poufy curly hair, how does the slicked back hair silhouette look like Kevin in the first place?

Scott stated that when he entered the bedroom he exchanged the assailment's threats with his pleas to save his baby for twenty (20) seconds before they began fighting and the man stabbed him in the chest twice. 

• So, Scott stood next to the light switch for a full 20 seconds and never flicked it on.

Scott stated that after the tussle with the assailant Scott backed up and the guy put on his pants. As he did, Scott went for him again and was hit again.  

• Yet, during cross examination, Scott cannot remember which hand hit him, could not remember which hand was holding the knife and could not remember if the knife was in the hand that punched him.

Scott stated the man told him to back up. The man backed out of the room and pulled the door shut. Scott then tried to open the door, but the man was holding it closed. 

• How did the assailant hold the door closed while holding the knife along with his shirt and shoes?
• According to Scott the assailant was only wearing socks and pants when he fled the apartment.
• Why did the police not recover wet socks from Kevin’s room?

After a few moments he tried again and was able to open the door and went to check on the baby before observing the dining room area where he saw the man struggling to open the sliding glass door. Scott stated that he told the man to go out the front door.  

• There was no forced entry, and the sliding glass door was locked, so why did the assailant need directions from Scott in order to find the front door? After all, he came in through the front door. 
• What is even more puzzling is why would Scott have to guide Kevin to the front door? Kevin had been in their apartment multiple times, why would he require Scott's guidance to find the front door?  

Scott goes on to testify that the man told him to back up. When Scott did, the man went through the kitchen and out the front door and when the man went into the kitchen, he recognized his face was in fact Kevin.

• There is a lot to unpack here considering that Scott changes his story every time he tells it. First, according to Officer LaVigne's police report, Scott states that the house is to dark to make identification inside. (Let's remember that Cheryl also testified it was so dark it prevented her from being able to make a clear identification)
• Then in his written statement, Scott says that he recognized Kevin at the sliding door in the living room because he could see the rolls of fat on his stomach. (Let's remember that Cheryl testified he was wearing a blue or black shirt)
• Five (5) months later in his deposition, Scott states that the venetian blinds were open and the very, very sufficient light was coming in through window in the kitchen. But when they were outside, he confirmed it was Kevin with his excellent night vision. 
• How is it that Scott improves the details surrounding the lighting conditions inside the apartment every time he retells his story, yet the location and timing of his positive identification changes every time he explains it? 

When questioned about the vehicle that Scott originally told police he followed the assailant to, Scott claims that this was to mislead the police so that he could take matters into his own hands and kill Kevin himself. 

• Scott’s story regarding the tag number of the vehicle he detailed having returned from chasing after the assailant simply does not fit the storyline. Why would he have fabricated the car and tag number to throw the police off Kevin’s trail. Kevin was standing right there with everyone and the police have not been called yet. 
• There is not any question that Scott arrives back to the front of the triplex yelling a license number as he returned from chasing the assailant, which happened well before the arrival of the police. 
• Why did Scott not immediately confront Kevin who was standing right there alongside Cheryl and his baby before the police arrived? If Scott wanted to take care of things himself, what was he waiting for? How did he keep his composure?
• Are we to believe that Scott simply just stood around discussing the events that had taken place with Kevin and others while waiting for the police to arrive so that he can present his fabricated story about the vehicle and license plate? 
• Why did Scott give chase instead of staying with Cheryl and his baby? After all Kevin lived next door. If he knew it was Kevin and wanted to kill him, why not get a bigger knife and do the deed before the police arrived?
• Furthermore, according to Scott, he gave Kevin the evil eye as was being loaded into the ambulance because Kevin was standing next to Cheryl and his baby. If Scott was concerned for the welfare of Cheryl and the baby, why would he leave them at the scene with Kevin while he was taken to the hospital to receive medical attention.
• Hospital records show that Scott was discharged at 1:45 am which was only 30 minutes from his arrival. Yet he waited another two (2) hours before called police to identify Kevin. Why did he wait another two (2) hours before calling police? Did it take two (2) hours to get home? How did he get home? 
• And what did the police ever do with the license number? Did the police ever try to match the description of the getaway vehicle? Why is the car and license number not documented in any of the police reports?

When questioned for how Kevin was standing with Cheryl and the neighbors in front of the Triplex when he returned, Scott testified that when he lost sight of the man behind the triplexes, he felt that Kevin could have had as much as ten minutes to return to the triplex and get the oil out of his hair and get cleaned up before he returned to find him in front of the Triplex. 

• This, however, contradicts testimony that Kevin came out with his landlady Theresa shortly after Cheryl came outside with her baby screaming for help. 
• How is Kevin being chased behind the triplex and out front with Cheryl at the same time?
• The police K-9 only tracked the path Scott followed and did not find a trial leading back to Kevin's room.
• What was Scott doing during the alleged 10 minutes it took him to travel from the back of the triplex to the front of the triplex?

Scott also testified at trial that he understood that the police had found the bloody knife along with bloody clothes in Kevin’s room, and Kevin’s fingerprints on his door. 

• THIS EVIDENCE DOES NOT EXIST!

When asked at trial if he would still believe it was Kevin "if that information was not true", Scott became agitated and stated that the police might not have found the right stuff, or they might have sent the wrong stuff to the lab. Scott even went so far as to say that the lab might have made a mistake. 

• Scott simply refused to accept that police fed him false information regarding physical evidence which absolutely does not exist.