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State v. Robitille

Supreme Court of Vermont

May 17, 2019

State of Vermont
Melissa Robitille

          On Appeal from Superior Court, Caledonia Unit, Criminal Division, Thomas A. Zonay, J.

          David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Dawn Seibert, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund and Robinson, JJ., and Teachout, Supr. J. and Howard, Supr. J. (Ret.), Specially Assigned.

          REIBER, C.J.

         ¶ 1. Defendant Melissa Robitille appeals her conviction for involuntary manslaughter for the death of her son. She argues that the trial court violated the Confrontation Clause when it restricted cross-examination of the State's key witness; that the State produced insufficient evidence to support a conviction; and that the court erred in failing to provide a specific unanimity instruction to the jury. We affirm.

         I. Facts

         ¶ 2. The central facts presented at trial are as follows. They are undisputed except as noted. Defendant's thirteen-year-old son I.R. required twenty-four-hour care due to a birth defect called holoprosencephaly[1], in which the brain fails to separate into two lobes during gestation and instead remains partially fused. Related to the holoprosencephaly, I.R. had only one eye and was blind or severely vision-impaired; he had no external ears and had severely impaired hearing; he could not talk normally; he could not walk independently; and he could not eat or drink through his mouth. In order for I.R. to eat or drink, his parents and caretakers put food or water into a feeding/water bag and then connected the bag to a feeding tube, which connected to a feeding port inserted into I.R.'s stomach (called the "MIC-KEY"). At the time of I.R.'s death, he weighed forty-nine pounds and was fifty inches tall. Also related to the holoprosencephaly, I.R. experienced many endocrine disorders. One of these, diabetes insipidus, required assiduous attention to his fluid balance. I.R. attended school and was learning sign language. He lived with and was cared for by his parents, with support from caregivers.

         ¶ 3. I.R.'s father died in January 2014. Defendant met Walter Richters online soon afterwards. In March 2014, she invited him to move from Missouri to live with her, which he did. Richters did not work or take care of I.R. Defendant worked a night shift and relied on caregivers to assist with I.R.'s care.

         ¶ 4. In August 2014, while the caregivers were on vacation, defendant took time off work to care for her son. On the evening of August 21, 2014, defendant, Richters, and I.R. were at home in the kitchen, and defendant fed I.R. his dinner. Testimony differed about what happened next. Richters testified that defendant poured around one shot of vodka into I.R.'s feeding bag (equivalent to around one ounce).[2] Richters admitted during trial that this testimony contradicted his prior statements under oath, in a deposition and a police interview, in which he said that he had poured the vodka into the bag. In contrast to Richters's trial testimony, defendant testified that Richters poured fifteen cubic centimeters (cc's) of vodka into the feeding bag (equivalent to around half an ounce). Like Richters, defendant's testimony at trial contradicted her prior statements under oath in interviews with the police, in which defendant told police that she had poured the vodka. Defendant also testified that she diluted the vodka with water after Richters poured the vodka into the bag. Both defendant and Richters testified that it was defendant who connected the feeding bag to I.R.'s feeding port. They also agreed that I.R. seemed to be experiencing pain that evening, and that Richters suggested administering the alcohol to alleviate his discomfort. However, in defendant's prior statements with police, she had said that her son was very sleepy that evening, and she had not mentioned any unusual discomfort.

         ¶ 5. After receiving the alcohol, I.R. stayed with defendant and Richters in the kitchen for a short time while defendant played a video game. I.R. appeared calmer. Defendant testified that Richters was drinking vodka and Dr. Pepper during this time and that he had multiple opportunities to add alcohol to I.R.'s feeding bag without her knowledge when he went to the bathroom, which was located behind defendant. Richters testified that he did not begin drinking until after I.R. went to bed, but he also testified that he did not remember when he started drinking. Richters stated that I.R. was given nothing else before I.R. went to bed. Over the course of the night, Richters drank a fifth of vodka, mixed with Dr. Pepper. At some point after I.R. went to bed and before Richters or defendant went to bed, Richters "passed out" from drinking alcohol. Richters went to bed around 1:45 a.m., and defendant went to bed around 2:00 a.m. She checked on her son first and he appeared fine, and she left his baby monitor on "full blast." She woke at 9:00 a.m. and went to her son's room to care for him, and she discovered he had died. Defendant shouted to Richters that he should call 911, which he did.

         ¶ 6. There was an autopsy performed on I.R.'s body. The autopsy showed that I.R.'s blood alcohol content (BAC) was 0.146. He also had caffeine in his system. The medical examiner determined I.R.'s cause of death was his medical condition, holoprosencephaly, with a contributory cause of acute ethanol toxicity. In other words, his blood-alcohol level, combined with his holoprosencephaly, caused his death.

         ¶ 7. Subsequently, defendant and Richters were arrested and charged with second- degree murder, which requires a minimum sentence of twenty years and a maximum sentence of life imprisonment. 13 V.S.A. § 2303(a)(2). The State later amended both charges to involuntary manslaughter, which carries a sentence of one to fifteen years' imprisonment. Id. § 2304. Richters pleaded guilty and agreed to testify for the prosecution as part of his plea agreement. He received a sentence of four to fifteen years, split to serve three years. Defendant proceeded to a jury trial and was convicted of involuntary manslaughter in April 2017. She was sentenced to four to twelve years. Defendant timely appeals.

         ¶ 8. Defendant makes three arguments on appeal: (1) the trial court impermissibly restricted cross-examination of the State's key witness; (2) the State presented insufficient evidence to sustain her conviction; and (3) the court committed plain error in not providing jurors with a unanimity instruction. We consider each argument in turn.

         II. Cross-Examination

         ¶ 9. Defendant makes two claims regarding the cross-examination of Richters, the prosecution's key witness. First, she argues that the court made an erroneous finding that the State amended Richters's charge independently of the plea deal, which impermissibly limited his cross-examination. Second, she argues that the court limited Richters's cross-examination in a way that violated her right to confrontation under the Sixth Amendment to the U.S. Constitution.[3] The specific facts underlying these arguments are presented below.

         ¶ 10. Prior to trial, defendant indicated to the court that she intended to question Richters about his plea deal with the State. Specifically, she asked to highlight the potential sentence he faced at the time he agreed to testify. This request initiated a discussion about two things: (1) whether Richters faced a sentence for second-degree murder or manslaughter at the time he agreed to testify, and (2) whether the court should permit questioning regarding the actual number of years Richters faced, rather than more general questioning about how his plea deal secured a reduced sentence.

         ¶ 11. Defendant contended that Richters was facing a sentence for second-degree murder at the time he agreed to testify. The State represented that Richters was facing a sentence for manslaughter. It had amended his charge from second-degree murder to manslaughter independently of Richters's plea deal, in response to a prior judge's indication that the evidence would not support a second-degree-murder charge. The court then asked defense counsel, "[W]hat does the second degree have to do with this case, then?" Defense counsel answered, "I'm not in a position to raise it at this point. I can't." This concluded the discussion about Richters's actual exposure at the time he agreed to testify.

         ¶ 12. The court and the parties also discussed whether defendant should be permitted to elicit testimony about the specific sentence Richters faced, in number of years, rather than more general questioning about the reduced sentence. The State contended that it would be prejudicial to discuss the specific sentence, given that defendant was charged with the same crime as Richters. The court ruled that defendant could ask what sentence Richters actually received according to his plea agreement and elicit testimony that Richters had faced "higher exposure" before agreeing to testify. But she could not ask "about the potentials or what he was facing, the numbers." The court reasoned that the more general testimony would achieve defendant's purpose, and the Sixth Amendment did not require the court to permit defendant to ask about the specific sentence, in number of years, that Richters faced.

         ¶ 13. At trial, Richters testified that he received a sentence of four to fifteen years, split to serve three years. Richters affirmed that this sentence meant he would serve three years in jail and would not serve more time unless he violated probation. The plea agreement was entered into evidence. Defense counsel also asked, "In general, not as part of the plea agreement, but wasn't it true that you were facing more than three years, in general . . . on this charge? And isn't it true that you agreed to testify as part of getting the smaller amount of jail time?" Richters said yes.

         A. Court's Finding Regarding Amended Charge

         ¶ 14. First, we review defendant's argument that the court limited Richters's cross-examination based on an erroneous factual finding that he was facing a manslaughter charge, not a second-degree-murder charge, when he agreed to testify. It is not clear whether the court made a finding here; rather, it appears that defense counsel conceded he could not argue that the second-degree-murder charge was relevant, and the court proceeded to the next issue. To the extent the court's conduct can be construed as a finding, we hold there was no error. We uphold a trial court's factual findings if there is credible evidence in the record to support the finding. State v. Patten, 2018 VT 98, ¶ 4, __Vt.__, 197 A.3d 873. The record indicates that a different trial judge, earlier in the proceedings, expressed skepticism that the State could prove second-degree murder here; the State admitted the second-degree-murder charge was weak months before the charge was amended; the charge was reduced for the defendant, as well, around the same time; and the prosecutor ...

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