Barnes v. State
| Decision Date | 06 August 1993 |
| Docket Number | No. 92-198,92-198 |
| Parties | Mark Steven BARNES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender and Deborah Cornia, Appellate Counsel, argued, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and William J. Flynn, Asst. Atty. Gen., argued, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN, and TAYLOR, JJ.
This case results from a brutal, senseless beating causing the death of a little five-year-old girl and the subsequent setting of a fire to conceal the crime by burning her body. Appellant Mark Steven Barnes appeals from an amended judgment and sentence on a jury verdict convicting him of second degree murder in violation of W.S. 6-2-104 (1988) 1 and first degree arson for violation of W.S. 6-3-101 (1988). 2 Appellant received consecutive sentences of 30 to 50 years and five to seven years to be served in the state prison.
We affirm.
The issues presented in this appeal, as stated by appellant, are as follows:
[I] Whether the trial court erred by admitting photographs of the victim in violation of W.R.E. 401, 402 and 403, thus depriving appellant of his constitutional right to a fair trial.
[II] Whether the admission of testimony of Officer Reese vouching for the credibility of the State's sole eyewitness against appellant constituted reversible error.
[III] Whether admission of uncharged misconduct evidence violated Wyoming Rules of Evidence and appellant's constitutional right to due process under Art. I, § 6, Wyoming Constitution.
[IV] Whether improper victim impact testimony elicited by the prosecution violated Rules 401 and 403 of the Wyoming Rules of Evidence and requires reversal.
[V] Whether the evidence produced at trial was insufficient to prove beyond a reasonable doubt that the appellant committed arson.
[VI] Whether the trial court's denial of appellant's Motion for New Trial constituted an abuse of discretion.
[VII] Whether the various errors in the admission and exclusion of evidence had a cumulative impact and requires reversal.
Additional issues were presented in a supplemental brief filed by appellant. This brief, not in the form required by our Rules of Appellate Procedure, concerns claims of use of perjured testimony, ineffective assistance of trial counsel, destruction of exculpatory evidence, fabrication of evidence, and malicious prosecution.
Natalie McManaman (McManaman) moved to Cheyenne, Wyoming with her two children, Jonathan, age three, and Brandy Jo, age five, during August 1991. Appellant Mark Barnes (Barnes) testified that he had a different lifestyle than most people in that he travelled, had been in "dangerous situations," and lived in a tent under the Lincolnway bridge at Martin Luther King Park. Barnes moved in with McManaman during November 1991.
Both parties testified to heavy drinking. By mid-December, Barnes had become physically violent, was beating McManaman every day, and she was afraid of him. On December 15, Barnes beat McManaman causing a nose bleed and blackening both her eyes. From this point on, the testimony of the parties is in total conflict.
McManaman testified that in the late afternoon of December 18, after leaving her children with a neighbor, she went to the Cowboy Bar. She returned about 9:30 The beating of McManaman had moved to the kitchen. Barnes continued the beating. Brandy Jo appeared again in the doorway. McManaman asked her to get help at the neighbors' house. The child began crawling to the front door. Barnes kicked her in the head and body, kicking her out the front door. McManaman fought past Barnes to where her daughter was lying on the ground. Barnes kicked Brandy Jo again, lifting her whole body off the ground and then left. McManaman carried Brandy Jo to the shower, washed the blood off, and took her to bed with her. She was confused, could not find a heartbeat or detect breathing, and did not know what to do. She fell asleep or passed out while holding Brandy Jo.
p.m., picked up her children, put them to bed, and went back to the Cowboy Bar. When she returned home about 12:30 or 1:00 a.m., an angry Barnes was waiting for her. He accused her of "whoring around again" and began beating her with his fists. Brandy Jo came out of the bedroom and told Barnes to stop. He hit Brandy Jo, knocking her against the wall. She fell down. Barnes' temper escalated. He began beating McManaman again. Brandy Jo appeared in the doorway, and Barnes kicked her into the bedroom. He kicked her again over the lower bunk bed, and her head hit the wooden bed. Blood was splattered on the wall.
When McManaman awoke the next morning, December 19, Barnes was in the bedroom. He asked what was wrong with Brandy Jo, and McManaman said he knew what was wrong because he killed her. Barnes replied that what happened to Brandy Jo could happen to her and to Jonathan, that "he'd take care of things," and she should leave the house for the day. When she returned, "Brandy was gone." Later she saw a string hanging from a cabinet in the children's bedroom, and she "knew instantly what he'd done with Brandy Jo."
From December 19 and even after the parties were arrested December 27, McManaman tried to cover up what Barnes had done. Barnes continued to beat her and told her the police would believe she killed Brandy Jo and take Jonathan from her. She claimed she feared Barnes would kill her and her son. She sent a note to the neighbor saying that Brandy Jo would not be going to school. She called Barnes' employer and asked that he tell Barnes that Brandy Jo had been hit by a car and killed. She told police that her daughter was in Colorado. She called a friend in Sterling, Colorado and told him that Brandy Jo had been hit by a car and was dead.
The morning of December 27, 1991, Barnes told McManaman that they would hop a train to California that evening. She obtained her deposit from the utility company and went to two bars and then home. Barnes came to the house and instructed her to go to the park with Jonathan where he would meet them. Barnes met them in the park. They proceeded to his shelter under the Lincolnway bridge, and a short time later they heard the fire engines. Cheyenne firemen had, at 9:34 p.m., responded to a fire at McManaman's home at 1000 West 18th Street. Inside a cabinet in the house where the fire had started, they found a child's burned body. An accelerant had been used to start the fire. About 10:30 p.m., McManaman and Barnes were arrested by police.
Mark Barnes' testimony was totally in conflict with that of Natalie McManaman. Barnes testified that he stayed the night of December 17 with McManaman, there was an argument and he left saying he would return for his blankets. That evening, December 18, he returned. McManaman put his blankets in a plastic bag and threw them out the door. He stated he stayed the night in his tent under the bridge, washed at the laundromat the next morning, arrived at work, and was informed that McManaman had called stating that Brandy Jo had been hit by a car and killed. Thereafter, McManaman told Barnes conflicting stories of what happened to Brandy Jo, such as a car accident, a drug overdose, and that she had gone to Colorado to live with her father. On Christmas Eve, there was an argument over the lying about Brandy Jo's disappearance. Barnes hit At the police station, McManaman appeared very intoxicated. She was severely injured. Both her eardrums were broken, her face, arms, thighs, and chest were bruised, and her ear lobe was torn. The jury heard the testimony of Natalie McManaman, Mark Barnes, twenty-eight witnesses called by the State, and seven witnesses called by the defense. After deliberation, Barnes was found guilty of second degree murder and first degree arson.
McManaman and knocked her through the screen door. Two or three police officers came, and he told them they should ask McManaman about her daughter. On December 27, when they left to go to California, it was, according to Barnes, McManaman who returned to her home to get her food stamps. A short time later, they heard the fire engines.
Appellant claims that, having stipulated to the burning, trauma and death of the victim, the photos did not make the existence of that fact more probable; that oral testimony of the pathologist would have been sufficient to establish the elements of the crime the State must prove; that having conceded what the State was seeking to prove, the photos were unnecessary and, therefore, irrelevant; and if relevant, their probative value was outweighed by unfair prejudice.
Evidence is admissible if it is:
(a) authenticated;
(b) relevant; and
(c) not subject to some exclusionary rule.
Authentication requires that the thing sought to be introduced is what it purports to be. Thus, W.R.E. 901(a) provides:
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
In the case of photographs, the proponent must establish that they are an accurate representation of the scene or object depicted. Appellant has not claimed, nor was there objection that, the photos inaccurately portrayed their subject matter. Thus authentication was conceded. Photographs that are authenticated and relevant are admissible in the absence of objection raising some exclusionary rule.
W.R.E. 401, defines relevance as:
"Relevant evidence" means evidence having any tendency 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.
Relevant photographs do not become inadmissible because the defendant concedes the fact and cause of the victim's...
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