State v. Barber

391 S.W.3d 2, 2012 WL 5475834, 2012 Mo. App. LEXIS 1436
CourtMissouri Court of Appeals
DecidedNovember 13, 2012
DocketNo. WD 74279
StatusPublished
Cited by6 cases

This text of 391 S.W.3d 2 (State v. Barber) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Barber, 391 S.W.3d 2, 2012 WL 5475834, 2012 Mo. App. LEXIS 1436 (Mo. Ct. App. 2012).

Opinion

MARK D. PFEIFFER, Judge.

Arnold Stephen Barber (“Barber”) appeals the judgment of the Circuit Court of Adair County, Missouri (“trial court”), finding him guilty, after a jury trial, of two counts of tampering with a witness in violation of section 575.270 RSMo 2000. We reverse the judgment and remand for a new trial.

Factual and Procedural Background

In 2007, R.C. (“Mother”) and J.C. (“Stepfather”) (or collectively, “the family”) ran a family business in Kirksville, Missouri. In August of 2007, Mother and Stepfather learned from their fifteen-year-old son, Z.C. (“Minor”), that Minor claimed to have been sexually molested by a patron of the family business who had become a friend of the family. Mother and Stepfather contacted the police, told them of Minor’s story, and the alleged perpetrator was arrested. Barber, another patron of the business and friend of the family, was also a longtime close friend of the alleged perpetrator. As a courtesy to Barber, Mother and Stepfather asked Barber to come to their business so that they could tell him, in person, about the molestation allegations.

Subsequently, Mother and Stepfather hired attorney Seth Shumaker to represent their and their son’s interests in any possible civil action arising out of the molestation allegations. Shumaker agreed to work with another local attorney, Brent Mayberry, on the family’s possible civil claim.

On January 16, 2008, Mayberry contacted the alleged perpetrator’s criminal defense attorney and asked him whether his client “would be open to paying some money to settle the civil case and make this all go away.” Mayberry asked the alleged perpetrator’s criminal defense attorney to make an offer on his client’s behalf. The criminal defense attorney responded that he “didn’t have any authority” and further stated:

It’s not the way you do things. Normally if somebody is going to file a lawsuit, they tell you how much they want rather than say how much will you give me. So it was a little different in that regard. But he indicated that in response to a query from me I said, “What’s your demand? How much do you want?” He didn’t want to tell me. Finally I said, ‘Well, give me a ballpark number of what you’re talking about.”
He said, “Well, if [the alleged perpetrator] thinks this is going to go away for less than $150,000, he’s mistaken.”

The next day, Mayberry called the alleged perpetrator’s attorney again and mentioned the $150,000 figure. The defense attorney passed the “offer” on to his client, who was accompanied by Barber [4]*4when he visited the defense attorney’s office.

Sometime in February of 2008, Barber called the office of the family’s other attorney, Shumaker, and made an appointment for February 21. Unbeknownst to Barber, Shumaker made audio and video recordings of the meeting.1 Barber told Shu-maker that he had come up with $150,000. Barber stated to Shumaker, “[A]s you may or may not know, [the alleged perpetrator’s] a pretty good friend of mine.”

After discussing how difficult it had been for Barber to raise the money, he asked Shumaker to “just pass that along for me.”

Shumaker said, “Well, I, I, I think I will. I think I have to because I guess it’s an offer. I guess it, I’m, I’m still a little confused if it’s for the civil end of this thing or just not to be cooperative with the prosecutor.”

Barber answered, “Well I guess just to, just to clear the situation in whatever way that it could be done above board and legally.” Then the transcript of the conversation says “inaudible.”

After Barber left Shumaker’s office, Shumaker contacted the highway patrol and gave them the recordings that he had made of the conversation he had had with Barber. On February 29, Shumaker, accompanied by highway patrol officer Steve Wilhoit, attempted to call Barber seven times. When Barber returned Shumaker’s call, Shumaker told Barber that he had passed their conversation on to Stepfather and that the family was “intrigued.” Shumaker then asked Barber “what assurances is everybody going to want if this would happen?”

Barber responded, “Oh, just the normal ones and not being in the [law] business, I’d have to have somebody kind of look at that.”

Officer Wilhoit contacted Barber at his business. Wilhoit told Barber that he was investigating an allegation that Barber offered a substantial amount of money to the victim in a sexual molestation case. Wil-hoit told Barber that Shumaker had recorded their conversation. According to Wilhoit, Barber’s demeanor became “very much more guarded.”

On June 28, 2009, the State obtained an indictment charging Barber with two counts of the Class C felony of tampering with a witness — one count corresponding to Mother and one for Stepfather. The State filed an amended information on June 1, 2011.

Trial began on June 1, 2011. Both Shu-maker and Wilhoit testified for the State, Shumaker testifying as to what he thought Barber’s intentions were when Barber made the appointment to meet with Shu-maker at his office and then later met with Shumaker. Shumaker testified about what he thought different parts of the videotaped conversation meant.

Barber testified in his own defense, and the alleged perpetrator’s criminal defense attorney also testified in Barber’s case in chief. The jury returned guilty verdicts for Barber on both counts and this appeal follows.

Legal Analysis

Barber’s appeal alleges seven points of error, including that the evidence was insufficient to support his convictions, and that the trial court should have excluded Shumaker’s testimony and the recorded conversations between Barber and Shu-maker because Barber went to Shumaker [5]*5seeking legal advice on how to structure a settlement with the family. Barber alleged at trial, and alleges here, that because he went to Shumaker to seek legal advice, an attorney-client relationship was established and, therefore, that their conversation was privileged.

Barber requested a copy of the trial transcript to submit to this court on appeal. However, the entirety of Barber’s direct testimony and much of his cross-examination were not transcribed. Somehow the machine that recorded the trial for transcription was not turned on during most of Barber’s testimony. Barber’s seventh point on appeal is that the lack of a transcript of his testimony prevents meaningful appellate review of his convictions, denying him due process of law. We agree and remand for a new trial.

“An appealing party is entitled to a full and complete transcript for the appellate court’s review. However, a record that is incomplete or inaccurate does not automatically warrant a reversal of the appellant’s conviction.” State v. Middleton, 995 S.W.2d 443, 466 (Mo. banc 1999). Barber is entitled to relief on this basis “only if he exercised due diligence to correct the deficiency in the record and he was prejudiced by the incompleteness of the record.” See id.

Due Diligence

Rule 30.04(h) allows the parties to correct an omission to the record by stipulation. Through no fault of his own, Barber’s entire direct examination and much of his cross-examination were not transcribed. There is no stipulation as to what the missing portion of the transcript may have said.

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Cite This Page — Counsel Stack

Bluebook (online)
391 S.W.3d 2, 2012 WL 5475834, 2012 Mo. App. LEXIS 1436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-barber-moctapp-2012.