State v. Herbert

• Court: Superior Court of Delaware
• Decided: May 1, 2025
• Docket: 2005000034
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) I.D. No. 2005000034 ) JOHN HERBERT, ) ) Defendant. )

Submitted: February 4, 2025 Decided: May 1, 2025

ORDER

1. John Herbert was convicted after a trial on one count of unlawful sexual

contact first degree and one count of sexual abuse of a child (his daughter) by a

person in a position of trust, authority or supervision. Pursuant to 11 Del. C. §

4205A, he was sentenced to a mandatory term of 5 years in prison.

2. The principal evidence against Mr. Herbert was an interview of the

child at the Children’s Advocacy Center (“CAC”). In addition, his wife provided

background and was the person to whom the child first made the disclosure of sexual

contact.

3. In pretrial proceedings, Herbert attacked the sexual abuse statutes;

specifically the term “sexual contact” and its meaning.1 The Court also made rulings

on the admissibility of defense expert testimony, ruling the testimony inadmissible

1 See State v. Herbert, 2022 WL 811175, *2-9 (Del. Super. Mar. 17, 2022). in this case. 2 These rulings and the sentence were appealed and affirmed by the

Delaware Supreme Court by Order dated November 17, 2023.3

4. On November 13, 2024, Herbert, now appearing pro se, filed a motion

for relief under Rule 61. The Court requested, and received, an affidavit of Trial

Counsel in response to the motion. The allegations of the motion are fairly brief and

to the point and the Court hopes to do likewise in its ruling.

5. Herbert first claims that the child witness’ grandmother was not called

to testify to intimidating emails grandmother sent to Trial Counsel and the

prosecutor.4 The grandmother was not a witness at trial. Trial counsel’s affidavit

reflects that “the emails were not considered intimidating by me.” 5 Trial Counsel

states that grandmother was not called because “her proposed testimony was neither

helpful nor relevant to the issue.”6 Indeed, Herbert has not proffered what

grandmother might have said that would have been relevant and, while we might

presume her to have been upset at the allegations of abuse leveled by her grandchild

2 See State v. Herbert, 2022 WL 3211004, *2-11 (Del. Super. Aug. 8, 2022). 3 Herbert v. State, 2023 WL 7313383, *1-2 (Del. Nov. 7, 2023).

4 D.I. 47 Mot. for Postconviction Relief at 3 (Nov. 13, 2024) [hereinafter Mot. for Postconviction Relief]. 5 D.I. 82 Aff. of James E. Liguori in the Matter of Def.’s Mot. for Postconviction Relief ¶ A (Feb. 4, 2025) [hereinafter Trial Counsel’s Aff.]. 6 Id. 2 against her son in law, grandmother’s state of mind would not have been relevant to

any matter being litigated. Herbert has failed to demonstrate prejudice for not calling

grandmother as a witness.7

6. Herbert next says “I was interviewed by a third forensic psychologist,

Dr. Mechanic, upon Mr. Wynn’s demand. His notes not included.” 8 The Court ruled

that the psychiatric/psychological interviews were inadmissible. Assuming Herbert

was interviewed by Dr. Mechanic at the State’s request as alleged, that interview

would have been relevant only to rebut a defense psychologist, had the defense

psychologist been permitted to testify. Since no psychologist was ruled admissible,

Herbert was not prejudiced by the fact that “his notes not included.” 9

7. Herbert’s third ground for relief is that the state “showed the jury photos

of my uncircumcised penis to sensationalize the issue, despite my openness.” 10

While the specific relevance of a photograph of the Defendant’s penis might have

been open to debate during trial, a Rule 61 motion is directed to those mishaps at

trial that may have affected the outcome. An evidentiary ruling over whether a

7 Under Strickland v. Washington, “defendant must demonstrate prejudice” to succeed on the merits. Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984). 8 Mot. for Postconviction Relief at 3. 9 Id. 10 Id. 3 particular picture should have been admitted is not, generally, such a ruling. The 3-

year-old child described Defendant’s penis; the photograph of his penis was intended

to show its similarity to her description. Whether it actually did so or not, there was

an evidentiary basis for its admissibility and a Rule 61 motion is not a place to

relitigate such rulings.

8. The next ground for relief alleged is that emails and texts between

Herbert and his wife, which would have reflected “her infidelity and my demands

for a divorce” were not shown to the jury. 11 As Trial Counsel recounts in his

affidavit, however, “the friction between Petitioner and his wife was displayed

(through their trial testimony) to the jury.”12 If such emails and texts existed, they

may have shown his wife’s bias against the Defendant, but they’d have done nothing

to undermine his daughter’s testimony – and his admission – that daughter had

touched his penis on at least two occasions. Confronted with a hostile wife making

serious allegations concerning her husband’s sexual contact with their daughter, it is

certainly within the realm of professional competence to get her off the stand as

quickly as possible.13 There was never a doubt that wife and husband did not get

11 Id. 12 Trial Counsel’s Aff. ¶ D. 13 “If an attorney makes a strategic choice ‘after thorough investigation of law and facts relevant to plausible options, that decision is virtually unchallengeable.” Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (quoting Ploof v. State, 75 A.3d 840, 850 (Del. 2013); citing Strickland, 466 U.S. at 690-91)) (internal quotation marks omitted). 4 along. They were separated at the time of the offenses. Wife was not the Defendant’s

biggest problem – the child and the CAC interview were, in addition to his admission

that she did touch his penis, albeit not for “sexual gratification.”

9. Finally, Herbert faults Trial Counsel for “failure to present any of the

interviews of my daughter by forensic psychiatrists.”14 Exactly what interviews

Herbert is referring to is not elucidated. One defense expert did not interview the

child, but rather critiqued the interview done by the CAC – a report the Court ruled

inadmissible. The second defense expert opined on the Defendant’s state of mind

concerning whether the contact was “sexual in nature” and did not reference any

interview of the child – also ruled inadmissible. Thus, the record does not support

that there were interviews of “my daughter by forensic psychiatrists” 15 and Herbert’s

motion fails for want of support in the record or elsewhere. Given that the whole

point of CAC interviews is to avoid repeated re-traumatization of the child witness

through multiple interviews, it is highly unlikely that she was interviewed on

multiple occasions by forensic psychiatrists concerning the allegations in the

indictment. Trial Counsel’s affidavit seems to acknowledge a defense expert

interview of the child. But it further notes that “Failure to present the interview of

Petitioner’s daughter to the defense forensic expert was no longer germane to the

14 Mot. for Postconviction Relief at 3.

15 Id. 5 case at hand per the pretrial rulings and frankly, the daughter’s version was consistent

and not disputed by Petitioner’s own admission.” 16

The Court sees nothing in Defendant’s Rule 61 motion that would warrant

relief under the Rule and the motion is therefore DENIED.

IT IS SO ORDERED.

/s/ Charles E. Butler Charles E. Butler, Resident Judge

cc: Prothonotary Nicholas R. Wynn, Deputy Attorney General James E. Liguori, Esquire John A. Herbert (SBI # 00929795)

16 Trial Counsel’s Affidavit ⁋ F. 6