State v. Barker

• Decision Date: 29 October 2013
• Docket Number: No. WD 73856.,WD 73856.
• Citation: 410 S.W.3d 225
• Parties: STATE of Missouri, Respondent, v. Javier BARKER, Appellant.
• Court: Missouri Court of Appeals

410 S.W.3d 225

STATE of Missouri, Respondent,

v.Javier BARKER, Appellant.

No. WD 73856.

Missouri Court of Appeals, Western District.

July 30, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 27, 2013.

Application for Transfer Denied Oct. 29, 2013.

Daniel N. McPherson, for respondent.

Cheryl A. Pilate, for appellant.

Before Division Three: VICTOR C. HOWARD, Presiding Judge, JOSEPH M. ELLIS, Judge and ANTHONY REX GABBERT, Judge.

JOSEPH M. ELLIS, Judge.

Appellant Javier Barker appeals from his conviction of one count of murder in the second degree (felony murder), § 565.021, and one count of abuse of a child resulting in death, § 568.060. For the following reasons, the judgment of conviction is affirmed.

The evidence viewed in the light most favorable to the verdict reflects the following. On December 26, 2008, Appellant arrived at the home of his girlfriend, Casey Pence, in Pleasant Hill, Missouri. Pence was scheduled to work that evening from 10:00 PM until 6:00 AM at a nearby nursing home and rehabilitation facility. Appellant agreed to watch Pence's two children, D.B., who was three years old, and J.B., who was five years old, while Pence was at work. When Pence left for work, D.B. was active and had no visible injuries to his head or face. Pence's time card reflects that she arrived for work at approximately 10:35 PM and left work at 6:02 AM. None of her coworkers saw her leave the facility during her scheduled shift.

After arriving home from work on December 27, 2008, Pence went into J.B. and D.B.'s bedroom to check on them. She noticed what she believed to be chocolate around D.B.'s mouth and went in to clean it off his face. Upon doing so, Pence realized that D.B. was unresponsive and that his eye was swollen and bruised. D.B. was transported by ambulance to the hospital. On December 28, 2008, D.B. was pronounced dead after it was determined he was legally brain dead. An autopsy later revealed D.B. suffered from several skull fractures and retinal hemorrhaging. D.B. also sustained a fracture above his right ankle and had multiple areas of bruising on his back.

After D.B. was transported to the hospital, a Pleasant Hill police officer drove Pence and J.B. to Pence's mother's home. While in the patrol car, a conversation between Pence and J.B. was recorded on the police officer's dash camera. During that conversation, J.B. stated that Appellant was playing video games with him and D.B. when Appellant told D.B. to go to bed. J.B. then stated D.B. “went to bed and then he just got up.” J.B. further explained that when D.B. went to bed, he and Appellant watched a movie until he fell asleep on the couch. J.B. also stated that Appellant kept checking on D.B. “to see if he was asleep.” The conversation between J.B. and Pence lasted only a few minutes.

Later that day, J.B. was interviewed by Sergeant Todd Burris at the Pleasant Hill Police Department. Sgt. Burris had not been trained on how to interview children; nor did he have any previous experience with interviewing children. A portion of Sgt. Burris's interview with J.B. was recorded. During the recorded portion of the interview, Sgt. Burris asked J.B. “[l]et me get this right. [Appellant] spanked [D.B] a whole bunch of times last night? Right. But you didn't see him, you just heard him, right, but [Appellant] said he didn't.” J.B. responded, “Yes.” Sgt. Burris then asked J.B. if he knew what a lie was and told him it was very important because when “someone tells you something, sometimes they are not telling you the truth.” J.B. responded that he believed Appellant was lying when Appellant said he did not spank D.B. Later in the interview, Sgt. Burris asked J.B. if Appellant stepped on D.B. J.B. stated that Appellant stepped on D.B.'s leg. Sgt. Burris then asked J.B. to demonstrate how Appellant stepped on D.B. using a stuffed police bear. Sgt. Burris further demonstrated “stomping” for J.B. At the conclusion of the interview, Sgt. Burris gave J.B. three stuffed police bears, a Hot Wheels car, a bike helmet, and a fake police badge.

On December 29, 2008, J.B. was taken to the Child Protection Center (“CPC”) where forensic interviewer Kristin Le'Nae Gilmore conducted an interview (“the CPC interview”) with J.B. The CPC interview was videotaped. During the interview, J.B. originally stated that he did not know what happened to D.B. J.B. later explained that Appellant stepped on D.B.'s foot and then demonstrated for Gilmore how Appellant did it by stomping on the floor. He went on to state that Appellant waved his hand for J.B. to get away from the bedroom after Appellant stepped on D.B.'s foot. J.B. then explained that he went back into the living room and heard Appellant spanking D.B. more than one time. J.B. also stated that they

watched the Dark [Kn]ight [movie], and [D.B] was getting tired and then when like he got tired like he went to his room, but then he had one more chance to watch the Dark Knight and he went to sleep then he woke up whenever [Appellant] carried him. And that's all that happened to [D.B.].

In response to Gilmore's question as to why D.B. got spanked, J.B. responded D.B. “did nothing wrong ... he was just crying to[o] much.”

On February 20, 2009, Appellant was charged by indictment with one count of second-degree felony murder and one count of abuse of child resulting in death. Appellant maintained his innocence, denying any involvement in D.B.'s death. Police officers noted that Appellant smelled of alcohol when they arrived at the Pence home on the morning of the incident as well as when he was being interrogated at the police station later that morning. An empty bottle of whiskey was recovered from the Pence home.

Prior to trial, the State sought to admit J.B.'s statements to Sgt. Burris and the CPC interview. Appellant challenged the admission of J.B.'s out-of-court statements as well as J.B.'s competency as a witness. The trial court conducted a hearing on the matter at which several individuals testified. The evidence presented at the hearing will be discussed infra, as necessary.

Following the hearing, the trial court determined that J.B. was competent to testify and that the CPC interview was admissible under § 491.075. J.B's statements to Sgt. Burris, however, were excluded by the trial court, which found that the statements lacked “sufficient indicia of reliability to permit their admission.” More specifically, the trial court determined that “Sergeant Burris had no training as to the interviewing of child witnesses” and that “many of the questions posed by Burris to J.B. were leading and suggestive.” The trial court further found that “[r]ather than waiting for J.B. to introduce a subject or utilize a specific term, Burris introduced facts or circumstances during the interview and introduced and utilized words or terms with the minor child.” Thus, the trial court determined J.B.'s statements to Sgt. Burris were inadmissible under § 491.075.

In February 2011, Appellant's trial commenced. J.B. testified at trial, and his CPC interview with Gilmore was admitted into evidence and played before the jury. The State also introduced medical testimony at trial that indicated that D.B. died as a result of blunt force trauma to the head consistent with abuse. The medical experts further opined that it was unlikely that J.B., a then five-year-old weighing 44lbs., could inflict the injuries sustained by D.B.

Ultimately, the jury convicted Appellant of second-degree murder and abuse of a child resulting in death. The trial court entered its judgment accordingly and sentenced Appellant to a thirty-year term of imprisonment for the second-degree murder count to run consecutive to a twenty-five-year term of imprisonment for the abuse of a child resulting in death count. The trial court subsequently denied Appellant's motion for new trial. Appellant now raises five points of error on appeal.

In his first point, Appellant contends that the trial court abused its discretion by permitting J.B. to testify at trial. Appellant avers that Sgt. Burris's suggestive questioning tainted J.B.'s memory of the events and, thus, made J.B. incompetent to testify. “A child's competency is within trial court's discretion, and the court's decision will not be reviewed in absence of clear abuse of discretion.” Jones v. State, 197 S.W.3d 227, 234 (Mo.App. W.D.2006).

Section 491.060(2)¹ provides that a child under the age of ten is incompetent to testify if the child “appears incapable of receiving just impressions of the facts respecting which the child is examined, or of relating them truly.” Section 491.060(2), therefore, “creates a rebuttable presumption that persons under the age of ten are incompetent to testify.” State v. Brown, 902 S.W.2d 278, 286 (Mo. banc 1995). The presumption of incompetency can be rebutted, however, by showing that the child has:

(1) a present understanding of, or the ability to understand upon instruction, the obligation to speak the truth; (2) the capacity to observe the occurrence about which testimony is being sought; (3) the capacity to remember the occurrence about which testimony is sought; and (4) the capacity to translate the occurrence into words.

Id. (internal quotation omitted). Thus, the presumption of incompetency is deemed rebutted “ ‘if the child [witness] appears to the trial judge to have the capacity both to receive just impressions and to relate them truthfully.’ ” State v. Bass, 81 S.W.3d 595, 604 (Mo.App. W.D.2002) (quoting State v. Williams, 729 S.W.2d 197, 199 (Mo. banc 1987)).

Here, the trial court determined that J.B. was competent to testify “from the totality of the evidence presented” at the competency hearing. Specifically, the trial court found that “J.B. has expressed an understanding of the difference between a truth and a lie” and can “differentiate between a truth and a lie in words suitable [for] a child.” The trial court went on to conclude that J.B. has...