State v. Barriner

111 S.W.3d 396, 2003 WL 21386302

• Court: Supreme Court of Missouri
• Decided: August 26, 2003
• Docket: SC 84452
• Status: Published

Opinions

RICHARD B. TEITELMAN, Judge.

In 1999, Cecil Barriner was tried before a jury on two counts of first degree murder. He was found guilty and sentenced to death on both counts. On appeal, this Court reversed the convictions, and remanded for a new trial. State v. Barriner, 34 S.W.3d 139 (Mo. banc 2000).

In 2002, Barriner was given a new trial. Again, he was found guilty and sentenced to death on both counts. Barriner appeals. This Court has exclusive appellate jurisdiction. Mo. Const, art. V, section 3.

The trial court erred by excluding admissible evidence of hairs found at the crime scene. The error was prejudicial. The judgment is reversed, and the cause is remanded.

Facts

Candace (“Candy”) Sisk and her grandmother Irene Sisk were murdered in their home on December 16, 1996. Viewed in the light most favorable to the verdict in Barriner’s second trial for the murders, the facts are as follows.¹ State v. Tisius, 92 S.W.3d 751, 757 (Mo. banc 2002).

Barriner was in a relationship with Shirley Niswonger (Candy Sisk’s mother) from 1993 to 1996. During his relationship with Niswonger, Barriner became acquainted with Candy and became aware of Irene. At the time of their deaths, Candy and Irene lived together at Irene’s home in Tallapoosa, Missouri.² Niswonger was in prison.

In December 1996, Barriner was concerned that he had failed a urinalysis test and that his probation would be revoked. Before he left town, Barriner decided to rob Candy and Irene Sisk, believing that they were wealthy.

Late in the afternoon of December 15, 1996, Barriner visited friends, Daniel and Samantha Simmons, who lived in a town near Tallapoosa. Barriner was driving a white Ford Taurus. Barriner told Samantha that he was going to Tallapoosa because someone owed him money. Barri-ner left and returned 45 minutes later, stating that no one had been home.

Daniel and Samantha then accompanied Barriner on a drive to Tallapoosa, where they twice drove by the Sisk house. Samantha noticed that Barriner was holding and playing with a purple Crown Royal bag. They all returned to the Simmons home, and Barriner left.

Shortly after 8 a.m. the next day, December 16, 1996, one of Sisk’s neighbors saw a medium-sized white car with a male driver driving very slowly in front of the Sisk house. At about 8:45 a.m., Candy telephoned her aunt, Debbie Dubois, and said that a man had been to the house a short time earlier and told her grandmother that he had a Christmas gift for Candy from her mother in jail. Candy reported that her grandmother had said that the man had acted very strange and that the same man had been in Tallapoosa the day before asking where the Sisks lived. Candy told Dubois that her grandmother did not know the man. Candy said that she did not see the man closely, but did seé that he was driving a white Ford Taurus. Dubois agreed to ask a relative to check on Candy and Irene, but Dubois was unable to reach the relative. Dubois called Candy back and told Candy to telephone her again if the man returned.

Shortly after 9 a.m., a man driving a white Ford approached a bank teller at a drive-up window a few miles from Talla-poosa, asking for service in cashing a check. The teller saw and recognized Candy in the front passenger seat of the car. She saw another woman in the back seat. Candy was wearing nightclothes and had a blanket over her legs. The man presented a check for $1,000 signed by Candy and drawn on her account.

At approximately 11 a.m., Dubois visited the Sisk house and discovered Candy and Irene dead.

Candy’s body was lying on the bed in her bedroom. Her hands had been bound in front with rope, and she was unclothed below the waist. She had suffered multiple injuries to her neck, causing her to bleed to death. At or near the time of her death, she was anally and vaginally violated with an object, resulting in severe lacerations to her rectum and vagina.

Irene’s body was on the floor of her bedroom next to the bed. Her wrists and ankles were bound together with a length of rope. She had multiple stab wounds, and she died from having her throat slashed.

Police officers investigated the crime scene. Candy and Irene’s purses were found near their bodies. Each purse had been opened and there were two checkbooks lying near Irene’s purse. A check for $1,000 had been drawn to “cash” but not signed. A VCR was missing from Candy’s bedroom. An empty box for a videotape of the movie “Independence Day” was near where the missing VCR had been. Telephones were missing.

A few hours after Candy and Irene’s bodies were discovered, Barriner checked into a motel in Poplar Bluff. Barriner seemed a little edgy when he paid for the room in cash. He told the clerk that he wanted to be left alone. At 6 p.m., Barri-ner visited Kevin Dennis and gave him a VCR for use in salvaging parts.

Two days later, Barriner was contacted at his brother’s home by officers Hinesly and Johnson. Barriner denied killing the Sisks and claimed that he had made trips to Cape Girardeau and two other towns on the day of the murders. When Hinesly disputed that, Barriner said he was actually using methamphetamine with Dennis when the murders occurred. Hinesly then interviewed Dennis, who denied being with Barriner at the time of the murders, but said that he had seen Barriner later that day when Barriner gave him the VCR.

The next day (three days after the murders), Hinesly interviewed Barriner a second time. Hinesly told him that his story had not been confirmed and described to Barriner other information that police had discovered thus far in the investigation. Barriner said that he wanted to tell Hinesly the truth, but could not, and asked to speak to his brother. Barriner’s brother was summoned and consulted with Barri-ner, after which Barriner confessed.

Barriner told Hinesly that his intention had been to tie the victims up to give him enough time to escape. He stated that Candy wrote a check and that he took the Sisks to the bank, where they cashed the check. Barriner said that when they returned to the Sisk house, he tied up Candy and Irene. As he left the house, he saw that Irene had freed herself. When Barri-ner reentered the house to re-tie Irene, Candy and Irene were screaming, so he “shut them up.” He denied sexually assaulting Candy and said that officers would not find any semen at the murder scene. Barriner stated that he wore gloves while in the Sisk house to avoid leaving fingerprints. He said that when he returned to Poplar Bluff, he checked into a motel because he was afraid he had been followed.

The officers did not videotape or audiotape the confession. Barriner refused to sign the standard “waiver of rights” form and did not write down his statement. The jury received evidence of Barriner’s confession only through officer Hinesly’s testimony.

The night of Barriner’s confession, police searched the home of Barriner’s brother, where Barriner resided. In Barriner’s room, officers found 32 ropes and cords. A microscopic comparison of these ropes established that two of the ropes and four of the strands were consistent in color, composition and construction with the ropes that had been used to bind Candy and Irene. In a wastebasket, officers found several handwritten notes on index cards or small pieces of paper. One note bore a number of names, including the name “Candace.” Another note had directions from Poplar Bluff (where Barri-ner lived) to the Sisk house. A third note stated: “Things for First Entrance ... gun (back) — handcuffs (pocket) — 12 ft of rope (legs) in two 6 ft pieces — .” The police also discovered a purple Crown Royal bag containing handcuffs, a duffel bag containing ropes, twine and a videotape of the movie “Independence Day” without the box. They found three telephones under Barriner’s bed.

Officers also seized Barriner’s white Ford Taurus. Traces of blood were found on the driver’s door and door handle, the steering wheel, and the trunk clasp. According to DNA analysis, the blood on the driver’s-side door handle was consistent with being a mixture of Irene’s blood and that of another individual.

Barriner did not testify at trial.

Hair

Police officers seized several hairs at the crime scene. Two of those hairs were seized in significant locations. One was found on Candy’s thigh, and the other was found in one of the knots that bound Irene.

A state criminalist examined physical evidence from the crime scene (including the hairs) and was called as a witness by the state. When Barriner’s counsel attempted to cross-examine the criminalist about the two hairs, the state made a motion in limine to prevent Barriner’s counsel from eliciting testimony about the hairs. After approaching the bench, the state admitted that the hairs did not match either Barriner or the victims, stating that there “has been no connection of the hair evidence in any of this to any individuals connected in this case.” Defense counsel argued that “hair evidence that is seized from the scene, sent to the lab, compared with the Defendant, and ruled to exclude the Defendant and the victims in this case is no different than a fingerprint from a scene,.... ” The trial court then ruled that “I’m going to sustain that motion in limine and direct you not to offer evidence that certain hair samples that were retrieved were not related to either the Defendant or the victims.” This Court will rely upon the state’s admission that the evidence would show that the hair was not from Barriner or either victim. Prosecutors “are presumed to have knowledge of all evidence in their possession.” State v. Hicks, 535 S.W.2d 308, 312 (Mo.App.1976).

Error

Barriner argues that the trial court erred in sustaining the state’s objection, overruling defense offers of proof, and excluding the hair evidence. Barriner argues that the hair evidence was both legally and logically relevant and, therefore, admissible.

The state argues that the trial court correctly excluded the evidence on the theory that it was not exculpatory evidence and that it improperly tended to identify a third person as the perpetrator.

Generally, a defendant may introduce evidence tending to show that another person committed the offense, if a proper foundation is laid, unless the probative value of the evidence is substantially outweighed by its costs (such as undue delay, prejudice or confusion). 22A C.J.S. Criminal Law sec. 729 (2002). When the evidence is merely that another person had opportunity or motive to commit the offense, or the evidence is otherwise disconnected or remote (and there is no evidence that the other person committed an act directly connected to the offense), the minimal probative value of the evidence is outweighed by its tendency to confuse or misdirect the jury. State v. Davidson, 982 S.W.2d 238, 242 (Mo. banc 1998); State v. Wise, 879 S.W.2d 494, 510-511 (Mo. banc 1994).

The evidence Barriner sought to present was more than the mere motive or opportunity of another person. It was not disconnected or remote. The hairs are physical evidence that could indicate another person’s interaction with the victims at the crime scene. Barriner was entitled to present to the jury this evidence of another person’s direct connection to the murders.³ This case does not present one of the limited circumstances in which evidence tending to show that another person committed the offense is properly excluded.

Moreover, there was no other reason to exclude the evidence.⁴ Evidence must be both logically and legally relevant in order to be admissible. Tisius, 92 S.W.3d at 760. “Evidence is logically relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence, or if it tends to corroborate evidence which itself is relevant and bears on the principal issue of the case.” Id. (quoting State v. Mathews, 33 S.W.3d 658, 661 (Mo.App.2000)). Evidence is legally relevant if its probative value outweighs its costs — prejudice, confusion of the issues, misleading the jury, undue delay, waste of time or cumulativeness. State v. Anderson, 76 S.W.3d 275, 276 (Mo. banc 2002).

The hair evidence was logically relevant. It would have tended to undercut the state’s theory that Barriner removed Candy’s clothes and that he bound Irene with rope.

The evidence was also legally relevant. As physical evidence that could indicate that another person interacted with Candy’s body and the rope that bound Irene, the hairs have a high probative value. The costs of admitting the hair evidence would have been minimal. As discussed above, the hair evidence would not have confused or misled the jury. The evidence could have been elicited quickly from an expert witness who had already taken the stand, and the evidence would not have been cumulative.

Given the high probative value of this evidence and the minimal costs of its admission, it was a clear abuse of discretion to exclude it. The exculpatory evidence of the hairs found at the crime scene (one on Candy’s thigh and the other found in the rope that bound Irene) was admissible. The trial court erred in excluding the evidence.

Prejudice

“Trial court error does not require reversal unless there is a reasonable probability that the trial court’s error affected the outcome of the trial. Otherwise, the error is not prejudicial.” State v. Rutter, 93 S.W.3d 714, 728 (Mo. banc 2002) (citations omitted).

A trial court’s exclusion of admissible evidence creates a presumption of prejudice, rebuttable by facts and circumstances of the particular case. Tune v. Synergy Gas Corp., 883 S.W.2d 10, 22 (Mo. banc 1994). If the proof of defendant’s guilt was overwhelming, the state will have rebutted the presumption of prejudice. Felder v. State, 88 S.W.3d 909, 914-915 (Mo.App.2002).

The excluded hair evidence was highly probative, while the evidence of Barriner’s guilt was not overwhelming. Often, a confession will provide the state with an overwhelming case. However, Barriner’s confession was not videotaped or audiotaped, and Barriner did not put his statement in writing. The jury received evidence of Barriner’s confession only through an officer’s testimony, requiring the jury to rely upon the officer’s credibility and accurate memory. The remainder of the evidence was circumstantial. There was no eyewitness of Barriner committing the murders. There was no physical evidence implicating Barriner found at the crime scene (such as fingerprints, footprints, blood, semen or hair). The evidence of Barriner’s guilt is not overwhelming, and it is insufficient to overcome the presumption of prejudice.

There is a reasonable probability that the trial court’s exclusion of the admissible hair evidence affected the outcome of the trial. The error was prejudicial.

Conclusion

Therefore, the trial court committed prejudicial error, depriving Barriner of a fair trial. The judgment is reversed, and the case is remanded.⁵

WHITE, WOLFF and STITH, JJ„ concur. LIMBAUGH, C.J., dissents in separate opinion filed. BENTON, J., dissents in separate opinion filed. PRICE, J., concurs in opinion of BENTON, J.

1 . For a statement of the facts from Barriner’s first trial, see State v. Barriner, 34 S.W.3d 139, 141-144 (Mo. banc 2000).

2 . Barriner was convicted of the January 1996 murders of Candy and Irene Sisk.

3 . Even if this evidence fails to directly connect another person to the murders, physical evidence obtained from murder victims’ bodies lacks the same potential for confusion or misdirection caused by evidence found at a remote location or isolated evidence of another person’s motive or opportunity.

4 . "A trial court enjoys considerable discretion in the admission or exclusion of evidence, and, absent clear abuse of discretion, its action will not be grounds for reversal.” State v. Mayes, 63 S.W.3d 615, 629 (Mo. banc 2001).

5 . As Barriner has been granted a new trial, the other claims of error raised in this appeal need not be reviewed.