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