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State v. Fry

Supreme Court of Rhode Island

February 1, 2016

Kimberly Fry

Appeal from Superior Court. Washington County. (W1/10-413A). Associate Justice William E. Carnes, Jr.

For State: Christopher R. Bush, Department of Attorney General.

For Defendant: Kara J. Maguire, Office of the Public Defender.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


Gilbert V. Indeglia, Justice

On October 6, 2011, a Washington County Superior Court jury found the defendant, Kimberly Fry (defendant or Kimberly), guilty of second degree murder of her eight-year-old daughter in violation of G.L. 1956 § 11-23-1. On May 22, 2012, the trial justice sentenced the defendant to a term of forty years' imprisonment, with twenty years to serve and the remaining twenty years suspended, with probation.

On appeal, the defendant contends that the trial justice erred in: (1) declining to instruct the jury on voluntary manslaughter due to diminished capacity and inadequately instructing the jury on accident; (2) permitting the state to elicit testimony from a witness through improper impeachment and leading questions; (3) failing to declare a mistrial following the state's violation of the court's sequestration order; and (4) allowing admission of a video depicting the scene of the murder, including the victim's body. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.


Facts and Travel

On October 8, 2010, Kimberly was charged by indictment with the murder of her daughter, Camden. The case was tried before a jury over the course of three weeks in September and October 2011. Throughout the course of this trial, the following facts were revealed through the testimony of the various witnesses.

Camden Alexis Fry was born on May 6, 2001 to Kimberly and Timothy (Tim) Fry[1] in New Hampshire, where the family lived at the time. While Tim went to work during the day, Kimberly stayed home and took care of Camden. During Camden's early-childhood years, Tim and Kimberly began to notice that she had difficulty with transitioning from one activity to another, often protesting when she was forced to end an activity.

In August 2007, the Fry family moved to North Kingstown and Camden started first grade at Fishing Cove Elementary School. After the move, Camden began to struggle academically and continued to have difficulty with transitioning between activities. For instance, Camden would cry and scream when taken to the store if she did not get what she wanted, forcing Kimberly to drag her out of the store. On one occasion, when Tim was away on business, Kimberly reported to him that Camden had a " really bad crying episode" and that Camden had " been punching her and hitting her and that [Kimberly] had to sit on her."

In the belief that Camden might have attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD), the Frys sought to have her evaluated through the school but, according to Tim, the school did not want to spend the funds to get her tested. Eventually, while Camden was in second grade, the Frys took matters into their own hands. Kimberly began researching private schools that might provide a better academic environment for Camden, and, in April 2009, the family began seeing a family therapist, Wendy Phillips (Phillips), to aid them in developing strategies to help Camden cope with the symptoms that she was exhibiting. In addition, the Frys scheduled a neuropsychological evaluation for Camden with Christine Trask, Ph.D. (Dr. Trask). As a result of this evaluation, Dr. Trask issued a report diagnosing Camden with ADHD and mild anxiety.

On July 1, 2009, based upon the diagnosis from Dr. Trask, Camden was prescribed medication used to treat ADHD. Tim and Kimberly noticed that the medication helped keep Camden calm and helped with her ability to transition. Nevertheless, Tim and Kimberly observed that she sometimes became more irritable in the evening as the medication wore off.

Throughout this period of time, Kimberly was also suffering from various mental health issues, including depression, insomnia, anxiety, and panic attacks. During a counseling session on May 4, 2009, Kimberly explained to Phillips that she felt as though Camden's crying and screaming episodes lasted longer for her than for Tim. Kimberly further reported to Phillips that Camden's tantrums caused her stress and, after about twenty minutes, she would put her hands over her ears to block out the sound of Camden's crying and screaming.

Phillips testified at trial that the last two therapy sessions before Camden's death, on July 28 and August 4, 2009, were particularly difficult for Kimberly. Throughout these two sessions, Phillips observed that Kimberly seemed overwhelmed by the process of buying a new car, necessitated by her involvement in a car accident several days prior to the July 28 session. In addition, Phillips reported that Kimberly was upset and angry with Tim; in fact, at the July 28 session, Phillips asked Camden to leave the room because Tim and Kimberly were arguing. Phillips's notes from that session indicated that, during their arguments, " Kim[berly] began to triangle Camden with her father" by asking Camden to take sides between her and Tim " [i]n an inappropriate manner." Phillips further reported that, after Camden had left the room, Kimberly told her that " she blamed Camden for her depression" and that " she was an incompetent mother and she felt hopeless." By the end of the session, Phillips instructed Tim that " if he was concerned about [Kimberly's] behavior, that if she appeared to not be safe or he was concerned about her, to take her to the emergency room immediately." Phillips also recommended that Kimberly make an appointment with an individual therapist. At the session on August 4, Kimberly " seemed better than the prior session." Nevertheless, Phillips again recommended that she make an appointment with an individual therapist.

Tim testified that, on August 10, 2009, Kimberly told him that she " wished that Camden wasn't around because it was so much easier when it was just the two of us." Tim replied that he didn't think that this was an appropriate thing for her to say. After this discussion ended, Tim and Kimberly spent the day signing the paperwork for Kimberly's new car and returned home at around 3:30 that afternoon. Camden, who had spent the day at the beach with friends, returned home sometime between 4 and 4:30. At approximately 5:50 that evening, Tim left the house to play hockey. When he left, Kimberly and Camden were sitting next to each other in the living room watching television.

Tim received a phone call from Kimberly just after 9:00 that night. He asked her how the night was going, to which she responded that " after a two-hour crying fit Camden had finally settled down and gone to bed." Tim testified during trial that Kimberly " sounded a little groggy" during this conversation, but that she was nevertheless clear in speaking to him. He further testified that it was not out of the ordinary for Kimberly to be groggy, as " [s]he normally had taken [C]lonazepam or Benadryl at night * * * so she could get to sleep."

Tim arrived home at approximately 9:40 that night and, upon entering the living room, noticed that Kimberly was " kind of falling asleep, leaning over against the side of the couch." He testified that she seemed " more groggy than she was on the phone" and suggested that she should go to bed. He then removed his hockey equipment from his car and again told Kimberly that she should go to bed. Tim went to shower, passing Camden's bedroom on the way. When he passed Camden's bedroom, he looked in and noticed that she was in bed under the covers. After showering, Tim realized that Kimberly was still sitting on the couch, so he helped her up and walked her into the bedroom. Tim testified that he didn't recall Kimberly ever previously needing assistance to get into bed.

The following morning, Tim had planned to work from home; but, by 9:30 he realized that it was unusual that Camden was still sleeping. He went into her bedroom to check on her and realized that she was in the same position that she had been in the night before. When he walked over to the side of the bed, he noticed that her eyes were opened and her pupils were completely dilated. He started screaming, pulled the covers back, and removed a stuffed animal that she had under her arm. Tim turned her onto her back and, at that point, determined that she was not alive because she was " ice cold and stiff." He called 911 and screamed for Kimberly to come into the room, who--still groggy--crawled into the room on her hands and knees.

When police and rescue personnel arrived, they found Tim and Kimberly in Camden's bedroom crying and hysterical. Once Camden had been pronounced dead, the police asked Tim and Kimberly to leave the room to allow them to secure the scene. Officer John MacCoy (Officer MacCoy), a responding officer, asked Kimberly about the prior evening with Camden, to which she replied that Camden had been giving her a hard time in taking a bath. She recounted to Officer MacCoy that Camden fell on the bathroom floor and that she ultimately had to pull Camden into the bedroom. She further reported to the police that she then watched television and read books with Camden until about 9:10 when she put her to bed.

Officer MacCoy testified that, after being present while a pastor read Camden her last rites, the Frys went to the back porch, and Kimberly's condition began to deteriorate. Tim testified that Kimberly looked up at him, and it occurred to him that she must have taken some kind of medication. He then told Officer MacCoy to call an ambulance and went to the kitchen to discover that several bottles of prescription medication were empty.

Kimberly was transported to South County Hospital by rescue, and she was placed in the intensive care unit (ICU). Tim testified that he visited Kimberly the following day in the hospital, and she told him that " she had a battle with Camden, [and] that Camden had been kicking and punching her and biting her." She further relayed that, at one point during the " battle," she went to take Clonazepam to calm down and, when she returned, they started fighting again. Tim testified that Kimberly told him that " Camden was punching and kicking and biting her and that she sat on top of her" and that Kimberly had " put her hand over Camden's nose and mouth to make her stop screaming." He testified that Kimberly then said, " I'm so sorry, I'm so sorry."

Kimberly also made several statements to medical personnel. Courtney Briar Pichardo, Kimberly's nurse in the ICU, testified that on the night that Kimberly was admitted she was not oriented as to whether it was daytime or nighttime, but she was able to identify who the president was and she knew that she was in the hospital. Pichardo further testified that Kimberly stated, " I'm her mother. I was supposed to protect her but I couldn't protect her from me." Barbara Kettle, a patient care technician who was also in the room with Kimberly on the night that she was admitted, testified that Kimberly stated that she had taken Benadryl, muscle relaxers, and some other medication, because " [s]he wanted the crying and screaming to stop."

During the trial, on October 4, 2011, the defense submitted proposed jury instructions, including a request for an instruction on accident and on voluntary manslaughter due to diminished capacity. That same day, the trial justice held a charging conference in chambers, during which he indicated that he was going to deny defendant's request for a diminished capacity instruction. The conference was not recorded, and there is nothing to indicate whether defendant objected to the denial of the diminished capacity instruction or merely argued for such an instruction prior to the trial justice's decision. The trial justice charged the jury on October 5, 2011, omitting an instruction for voluntary manslaughter due to diminished capacity. Following the charge, defense counsel objected at sidebar to the fact that the instruction " just briefly" discussed accident,[2] but failed to object to the lack of an instruction on voluntary manslaughter due to diminished capacity.

On October 6, 2011, during their deliberations, the jury submitted a question to the trial court: " Does there have to be mental competency for there to be intent?" After meeting with the prosecutor and defense counsel to develop an answer to this inquiry, the trial court sent the jury the following answer:

" A defendant's competency to stand trial is a legal determination made before trial and is not an issue before you.
" Do not confuse 'mental competency' with the defendant's state of mind or intent.
" Please refer to the jury instruction on DEFENDANT'S INTENT."

After this answer was submitted to the jury, the parties met in chambers to discuss these supplemental instructions and note any potential objections on the record. At that point, defense counsel conceded that he had failed to object to the lack of a diminished capacity instruction at the time the jury was charged, but he nevertheless requested that one be given at that time. However, the conference was interrupted because the jury had reached a verdict.

The jury found Kimberly guilty of second degree murder of Camden. The defendant moved for a new trial, which the trial justice denied. The defendant timely appealed.


Issues on Appeal

The defendant raises four issues on appeal. First, she submits that the trial justice erred in declining to present the jury with an instruction on voluntary manslaughter due to diminished capacity[3] and that the trial justice's instruction on accident was inadequate. Second, she claims that the trial justice improperly allowed the state to employ leading questions on direct examination and improperly allowed the state to impeach a witness by use of prior inconsistent statements. Third, she asserts that the trial justice erred by declining to pass the case when the prosecutor conferred with his witness during breaks in testimony, which she contends was in violation of a sequestration order. Finally, she claims that the trial justice erred by admitting into evidence a seven-minute video of the crime scene, which included three and one-half minutes showing Camden's body in her bed.




Jury Instructions

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