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State v. Herring

Supreme Court of Vermont

May 10, 2019

State of Vermont
v.
Jody Herring

          On Appeal from Superior Court, Washington Unit, Criminal Division John L. Pacht, J.

          Thomas J. Donovan, Jr., Attorney General, Benjamin D. Battles, Solicitor General, and Eleanor L.P. Spottswood, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Joshua O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          ROBINSON, J.

         ¶ 1. Defendant Jody Herring, who pleaded guilty to murdering her cousins Rhonda and Regina Herring, her aunt Julie Falzarano, and social worker Lara Sobel, challenges her sentence of life imprisonment without possibility of parole for Lara Sobel's murder. She argues the trial court abused its discretion in holding her history of trauma and resulting anxiety disorder against her when it should have viewed them as mitigating factors, and in basing its decision on a mistaken understanding that, if given an indeterminate sentence, she might be paroled without having rehabilitated. We affirm.

         ¶ 2. Defendant and the State entered into a plea agreement in which defendant pleaded guilty to the second-degree murders of her cousins and aunt and the first-degree murder of Lara Sobel. As part of that agreement, defendant admitted the following. On the morning of August 7, 2015, she called the home of her cousins and her aunt. Rhonda Herring answered, and defendant told her "they better stop calling" the Department for Children and Families (DCF) or they would be "fucking sorry." That afternoon, defendant went to their home armed with a rifle. She entered the house and intentionally shot and killed her cousins Rhonda and Regina Herring and aunt Julie Falzarano. She called her brother Dwayne Herring several times and left two messages. One said, "If you think anything of your sister, you'll get a hold of me now" or words to that effect. The next said, "Watch the news-you'll wish you got a hold of me earlier." After that, defendant parked her car behind the building where she knew the DCF office was located. She waited until she saw Lara Sobel exit the building. Lara Sobel was a DCF employee who, in her professional capacity, had been working with defendant. Defendant approached and intentionally shot her. Defendant then dropped the rifle. She did not resist arrest.

         ¶ 3. As part of the plea agreement, defendant agreed that the State could seek concurrent sentences of twenty years to life for the murders of her cousins and aunt. Defendant and the State did not come to an agreement as to the sentence for Lara Sobel's murder, although they agreed that each party could argue for any lawful sentence, including a sentence of life imprisonment without parole; the State sought a sentence of life without parole, consecutive to the other sentences.

         ¶ 4. The court held a three-day sentencing hearing. The evidence at the sentencing hearing reflected the following. Defendant has experienced many forms of trauma throughout her life. Her father died when she was a child. Defendant, like others in her family, believes her father was murdered, and she was very upset that his death was pronounced a suicide. Defendant's mother and stepfather physically abused her. Defendant's brother Dwayne testified that when he was thirteen and defendant was ten or eleven their mother kicked them out of the house (defendant's aunt testified defendant was fourteen; another aunt said defendant was eleven or twelve when this happened). After that, defendant and Dwayne lived together in abandoned cars and with their grandparents. When defendant was seventeen, she was raped and became pregnant with her first child. As an adult, defendant has been in a series of physically and emotionally abusive relationships. She lost custody of her first three children; in at least one case, her parental rights were terminated because of substance abuse.

         ¶ 5. In October 2014, defendant became unemployed and she and her youngest daughter, with whom she was living at the time, became homeless. In late 2015, the daughter's school counselor, who was aware defendant was homeless and had been trying to connect defendant to resources, grew concerned that defendant "was becoming a little less coherent and hard to follow." The school principal contacted DCF in January 2015 because defendant seemed very anxious and would go off-topic when speaking, and the principal felt she might pose a risk of harm to the child. When defendant discovered the principal had called DCF, she became very angry. The principal told her she had called DCF to help defendant get resources. Defendant told the principal she did not want her help. DCF placed her child into the child's father's conditional custody in late January of 2015.

         ¶ 6. After defendant lost custody of her daughter, her brother Dwayne testified that "she was losing it. It messed her up." Henry Premont, who was in a relationship with defendant at the time, testified that defendant said she wanted to shoot people in the head and watch the "brain matter splatter," and that she said, "People are going to pay, there's going to be an Armageddon." He testified that some of those statements may have been directed at DCF. He also said defendant showed him a handwritten "hit list" that included the names of Regina and Rhonda Herring. In March, defendant tried to purchase firearms from two different gun stores, but each time was denied after the store ran a background check on her.

         ¶ 7. In May 2015, defendant was temporarily involuntarily hospitalized after she overdosed on pills. Defendant had called her cousin and, according to the cousin, said to tell her daughter "why she doesn't have a mother anymore." The cousin called emergency services, and emergency responders forced their way into defendant's home. They found her in bed, surrounded by empty pill bottles and pictures of her children. She was involuntarily committed. While hospitalized, defendant was initially combative and refused treatment, but gradually became more receptive to at least discussing future treatment. She repeatedly requested that she be released, and at the end of May she was discharged.

         ¶ 8. In late July or early August of 2015, Henry told Dwayne that he had bought a pistol to give to defendant. Dwayne told Henry not to give defendant a gun and said he was a "damned fool" for even considering it. The rifle defendant ultimately used in the shooting was Henry's, taken without his permission.

         ¶ 9. Hours before the murders, defendant left a message on Rhonda's answering machine. Tiffany Herring, Rhonda's daughter, heard the message and she testified that in it, defendant was screaming and saying something to the effect of "Rhonda, Regina, you might want to stop fucking calling DCF or I'm going to come and shoot your ...


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