Barrett v. State, 012021 ARCA, CR-20-170

Docket Nº:CR-20-170
Opinion Judge:BRANDON J. HARRISON, CHIEF JUDGE.
Party Name:JOSH M. BARRETT APPELLANT v. STATE OF ARKANSAS APPELLEE
Attorney:John Wesley Hall and Samantha J. Carpenter, for appellant. Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Sr. Ass't Att'y Gen., for appellee.
Judge Panel:Klappenbach and Barrett, JJ., agree.
Case Date:January 20, 2021
Court:Court of Appeals of Arkansas

2021 Ark.App. 21

JOSH M. BARRETT APPELLANT

v.

STATE OF ARKANSAS APPELLEE

No. CR-20-170

Court of Appeals of Arkansas, Division IV

January 20, 2021

APPEAL FROM THE PIKE COUNTY CIRCUIT COURT [NO. 55CR-17-48] HONORABLE TOM COOPER, JUDGE.

John Wesley Hall and Samantha J. Carpenter, for appellant.

Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Sr. Ass't Att'y Gen., for appellee.

BRANDON J. HARRISON, CHIEF JUDGE.

In 2018, a jury found Josh M. Barrett guilty of six counts of rape. He appealed, and this court affirmed the convictions. Barrett v. State, 2019 Ark.App. 167. Barrett filed a timely postconviction petition in the Pike County Circuit Court and alleged grounds for relief under Arkansas Rule of Criminal Procedure 37. The circuit court convened a hearing on Barrett's Rule 37 petition, received testimony from Barrett and his trial lawyer, John W. Yeargan, Jr., and ultimately denied the petition. Barrett has appealed the denial of his Rule 37 petition. We wholly affirm the circuit court's decision.

I. The Jury Trial

Trial counsel Yeargan's examination of two witnesses during the trial is being challenged. Two critical witnesses during the trial were EB, who is Barrett's biological daughter and the victim of the crimes, and BB, who is EB's brother and Barrett's biological son. A basic summary of the trial testimony places Barrett's Rule 37 arguments into context. We have omitted much of the graphic details in this opinion.

A. EB's Trial Testimony

EB, who was seventeen years old when she testified, said that she lived with her parents until two years before the trial convened. It was approximately two years before the trial when she told her mom that her dad had raped her. When asked what the word "rape" means, EB replied, "It means when his penis goes in my vagina." She described certain events that took place approximately ten years ago in a red brick house "beside the Baptist Church" in Kirby, Arkansas, a house she shared with her brother, mother, and father. EB testified that when she was six or seven years old, her father would take her into the bathroom, set her on the sink, put her back against the wall, hold her legs up, and have intercourse with her. EB could not remember how many times it happened because it occurred so frequently-usually in the mornings when no one else was home and her mother was at work.

The rapes continued when EB's family moved to a different house in Kirby across from her Aunt Melissa's house when she was nine or ten years old. EB said that there was a washer and dryer in the bathroom in that house. Barrett would set EB on the washing machine and put his penis into her vagina, causing her pain. According to EB, this would usually happen in the mornings when her mother was at work. Sometimes her brother would be home; but "usually not" because he ate breakfast with their grandfather. EB said that the reoccurring rapes were a regular event, and she was unsure how frequently it happened "[b]ecause it happened so often." According to EB, the rapes, which occurred in multiple places in the home and in various ways, ended when she was twelve or thirteen years old.

EB told the jury that she did not say anything to her father during these events because she was scared and confused about what was going on. EB also worried that no one would believe her. EB eventually disclosed the sex crimes to her mother, and EB later reported the crimes to law enforcement. EB stopped living in her parents' home and moved in with her maternal grandparents.

Barrett's trial counsel engaged in a short cross-examination of EB during the jury trial. The entirety of trial counsel's cross-examination is reproduced below. Trial Counsel: [EB] how old are you?

EB: I'm 17.

Trial Counsel: And you go to school at Kirby?

EB: Yes.

Trial Counsel: Is that Kirby High School?

EB: Yes.

Trial Counsel: And you live with your maternal grandparents?

EB: Yes.

Trial Counsel: And did you go on a vacation to Florida in 2016?

EB: Yes.

Trial Counsel: And was that with your father's parents?

EB: Yes.

Trial Counsel: Please tell the court a little bit about the vacation? Where you went? What you did?

EB: I don't really remember that much about it, but we went to Alabama and we stayed on the beach and stayed with my grandparents.

Trial Counsel: Did you do anything besides go to the beach?

EB: We did a few other things, but that was a few years ago, I don't really remember that much.

Trial Counsel: Amusement parks, anything like that?

EB: Not that I know of.

Trial Counsel: Why did you go on this vacation?

EB: When?

Trial Counsel: Why?

EB: Why? I just wanted to go and be with my, you know, grandparents and Melissa.

Trial Counsel: Did your father, Josh Barrett, did he give permission?

EB: No.

Trial Counsel: Your mother, Tonya Barrett, did she give permission?

EB: I'm not for sure. My grandparents talked to her.

Trial Counsel: Did it make you mad that your dad would not let you go?

EB: No. I had nothing to do with my dad at the moment.

Trial Counsel: Were you given a typewritten statement of what to say today? How to testify?

EB: No.

Trial Counsel: Were you threatened by anybody if you didn't testify that you would be subject to charges?

EB: No.

Trial Counsel: Okay. I'll pass the witness, Your Honor.

On redirect, the State clarified that EB had already told her mom what had happened to her and that EB had moved in with her maternal grandparents before the 2016 beach vacation was taken. EB also agreed that she did not know about the beach trip when she told her mother about what her father had done.

B. BB's Trial Testimony

EB's older brother, BB, testified for the prosecution and the defense. During the State's case-in-chief, BB said that he had lived with his mother, father, and sister during the relevant time periods. BB agreed that he had told the Arkansas State Police investigators that his dad had said that he did not remember what happened with EB because he was doing drugs. Trial counsel did not cross-examine BB during the State's case-in-chief.

During the defense phase of the trial, BB testified that he and his sister spent a lot of time with his Aunt Melissa, who lived across the street from them and babysat them while their parents worked. According to BB, he had never seen his father do anything bad to his sister, and his father tried to take good care of them. The prosecutor cross-examined BB, and the following colloquy ensued. Prosecutor: Would you agree with me that in your statement that you indicated that you'd never known [EB] to lie?

BB: Yes.

Prosecutor: And did you give a statement that said that your dad told you he possibly did this, but he can't remember because he was on drugs?

BB: Yes.

Prosecutor: So you and your dad talked about this, correct?

BB: Yes.

Prosecutor: And your dad told you that he possibly did this, but he can't remember?

BB: Yes.

Prosecutor: And in your statement, did you indicate that you can't think of any reason that your sister would lie?

BB: Yes.

Prosecutor: And also, in your statement you indicated that you didn't care if dad did it or didn't do it, you would still live with your dad?

BB: Yes.

Prosecutor: You're that loyal to your dad?

BB: Yes.

Prosecutor: In your statement did you also say that your dad told you he did something stupid, but he can't go back and fix it now?

BB: Yes.

Prosecutor: And you also in your statement said you had no reason to believe that your dad was on drugs?

BB: Yes.

Prosecutor: Thank you. Pass the witness.

On trial counsel's redirect examination, BB agreed that the "something stupid" phrase he said during his testimony referred to his dad's drug use. Trial counsel asked BB, "And do you think [EB] is lying at this time?" BB replied, "Yes." BB said he thought EB had made the story up because she wanted to go on the Florida trip and their dad would not let her go. On recross-examination, BB agreed that this was the first time he had told anybody that his sister would have made up the rape allegations because she wanted to go on a beach trip.

C. Other Witnesses' Testimony

Testimony from witnesses other than EB and BB also help inform the Rule 37 effort. We briefly summarize it now. EB's mother, Tonya Barrett, testified that she chose to not take EB to the doctor to be examined or checked for sexually transmitted diseases after the disclosure. She said that while she initially believed her daughter, she did not know if she believes her now. The children's aunt Melissa Breazeale testified that EB was very upset when she thought she was not going to be able to go on the beach trip. The aunt did not have an opinion on whether EB was lying and instead stated, "I love both parties that are involved."

Defendant Barrett testified in his own defense. He said that EB was angry because he had refused to let her go on a beach trip to Florida and that is why she had made up the allegations against him. Barrett denied raping his daughter. He stated, I don't know what else could I do to prove that I'm innocent from...

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