State v. Barriner
| Decision Date | 27 December 2000 |
| Citation | 34 S.W.3d 139 |
| Parties | (Mo.banc 2000) . State of Missouri, Respondent, v. Cecil Barriner, Appellant. Case Number: SC81666 Supreme Court of Missouri Handdown Date: |
| Court | Missouri Supreme Court |
Appeal From: Circuit Court of Dent County, Hon. J. Max Price
Counsel for Appellant: Deborah B. Wafer
Counsel for Respondent: John M. Morris
Opinion Summary:
Cecil Barriner was convicted of murdering (in December 1996 in Tallapoosa) a teenage girl and her grandmother. Both were bound, and the girl was anally penetrated. When the jury was unable to reach a verdict on punishment, the court, after finding seven statutory aggravating circumstances, sentenced Barriner to death for each murder. He appeals.
REVERSED AND REMANDED.
Court en ban holds:
(1) Prior uncharged misconduct is generally not admissible to show the propensity of the defendant to commit such crimes, to protect the right to be tried only for the offense charged. But it is admissible if it is logically and legally relevant to prove the charged crime.
(A) The court improperly admitted certain testimony and at least seven exhibits. The state does not dispute that the trial court erred in admitting prior uncharged misconduct evidence including the mother's testimony and a video of Barriner's sex acts with her, which included tying and anal penetration, a magazine cover of a bound woman, a photograph of two homemade sex videotape labels from his residence, a photograph of a duffel bag with dildos, and the duffel bag. The court also erred in admitting prior uncharged misconduct evidence including the video showing tying the mother (no testimony showed the knots were similar to those on the victim), the dildos in the duffel bag (they were not shown to be used or like the object used in the crime), and Barriner's threat to kill the mother's son (it was not legally relevant to prove Barriner's motive because he did not threaten the daughter).
(B) The court did not err in admitting a Crown Royal bag, handcuffs, note or photographs of these items. They tended to establish Barriner's guilt.
(2) The test is whether the prejudicial improper admission was outcome-determinative. Much of the improperly admitted evidence relates directly to the charged offenses. Because the trial court provided no limiting instruction about the use of the improperly admitted evidence, this Court's confidence that the jury did not misuse the evidence to convict Barriner because of his bad character, sexual proclivities, or perversions is diminished. The amount of evidence erroneously admitted and the extent to which it was referred also weighs in favor of finding that the introduction of the evidence was reversible, outcome-determinative prejudice. The prosecutor's elicitation of such evidence was not inadvertent. Even if reasonable minds may differ with respect to whether there is overwhelming evidence of guilt in this case, that is not the only consideration. This Court cannot say that the inadmissible evidence did not contribute to the jury's verdict. This Court cannot say such evidence did not result in outcome-determinative prejudice, requiring reversal. The cause is remanded for a new trial.
Limbaugh, J., dissents in separate opinion filed. Dissenting opinion summary:
The dissenting author would affirm the conviction and sentences. The dissenting author agrees that the sexual proclivity evidence was more prejudicial than probative and was inadmissible, at least in the guilt phase, but disagrees that the mother's testimony that Barriner threatened to kill her son should have been excluded. The threat shows motive--anger at the mother--and is not propensity evidence but, rather, is a threat to commit the crime that was committed. The majority fails to give due deference to the trial court's weighing of probative value versus prejudicial effect, especially given that the defendant did not object to the evidence, making the standard of review plain error giving rise to manifest injustice. The dissenting author would hold that the fact that the prejudicial effect of the sexual proclivity evidence outweighed its probative value did not constitute outcome-determinative prejudice. The properly admitted evidence of guilt was overwhelming. As to the penalty phase, other crimes evidence, prior uncharged misconduct, and character evidence is admissible in that phase.
Price, C.J., concurs in part and dissents in part in separate opinion filed. Opinion Concurring in Part and Dissenting in Part summary:
This opinion author agrees with the dissent as to guilt, in that considering the strength of other properly admitted evidence, the video evidence was not prejudicial. But this author would reverse the death penalty in accordance with section 565.035.3(1) and remand for a new penalty phase.
Appellant, Cecil Barriner, appeals his convictions and death sentences for two counts of first degree murder, section 565.020, RSMo 1994, for the murders of Irene Sisk and her granddaughter, Candace "Candy" Sisk. Reversed and remanded.
Viewed in the light most favorable to the verdict, State v. Werner, 9 S.W.3d 590 (Mo. banc 2000), the facts are as follows. In December 1996, appellant began to fear that he had failed a urinalysis test for the presence of controlled substances. Appellant was concerned that his probation would be revoked. Resolving to leave his residence in Poplar Bluff, appellant planned to travel to the Tallapoosa, Missouri, residence of nineteen year old Candy Sisk and Irene Sisk, Candy's seventy-four year old grandmother, to obtain money from them. Appellant had been in a relationship with Candy Sisk's mother, Shirley Niswonger, from 1993 until 1996, and during that time had become acquainted with Candy. Appellant had accompanied Niswonger on at least two occasions when she traveled to the Sisks' house to borrow money. Appellant believed that the Sisks were financially well-to-do.
Late in the afternoon of December 15, 1996, appellant visited Daniel and Samantha Simmons, friends who lived only a few miles from the Sisk residence. Appellant told Samantha Simmons that he was going to Tallapoosa to collect some money and drove away in the white Ford Taurus automobile he was using for transportation. He returned shortly thereafter, stating that no one had been home. Daniel and Samantha Simmons then accompanied appellant to Tallapoosa in the Ford Taurus, where appellant passed by the Sisk house three times. During the drive, appellant said that "the girl was going to pay him some money" and pointed to a note that he had left on the Sisks' door. Samantha Simmons noticed that during the drive appellant held and played with a purple Crown Royal bag that contained something that she could not see.
On December 16, at approximately 8:45 a.m., Candy telephoned her aunt, Debbie Dubois, and reported that a man had been to the house a short time before. Candy told Dubois that the man had told Irene that he had "a Christmas gift for Candy from her mother in jail." Candy told Dubois that her grandmother said that the man had acted strangely, and that the same man had been in Tallapoosa the day before asking for directions to the Sisk residence. Candy reported that she had not seen the man herself, but had observed the man's car, which was a white Ford Taurus. Dubois attempted to telephone a relative to ask him to check on Irene and Candy but was unable to reach him. Dubois then called Candy, told her she had failed to reach the relative, and instructed Candy to call her again if the man returned.
Several minutes after 9:00 that morning, a bank teller at a bank in nearby Risco attended to a man driving a white Ford Taurus. The teller saw Candy riding in the passenger seat, dressed in a nightgown and wrapped in a blanket. The teller saw another person in the rear seat. The driver gave the teller a check in the amount of one thousand dollars, signed by Candy and to be drawn on her account. After having Candy sign the required cash receipt, the teller gave the man one thousand dollars in cash, with one hundred dollars in twenty dollar bills, as the driver requested.
At approximately 10:45 that morning, Dubois attempted at least twice to telephone Candy and Irene at the Sisk residence. The telephone rang repeatedly, but no one answered. Dubois was concerned because one telephone line had an answering machine and because Candy, who had undergone back surgery four days before, was not supposed to leave the house for six weeks. Dubois drove to the Sisk house. There she found Candy and Irene dead. She tried to call the police, but, upon finding that the telephones in the house were missing, she drove to see a relative, who notified the authorities.
Candy's body was on the bed in her bedroom. Her hands were bound in front of her with rope. She was unclothed below the waist. A pair of sweatpants and a pair of panties were on the floor nearby. Her neck had been slashed six to eight times. A knife protruded from her chest. An autopsy revealed that Candy bled to death from the neck slashes, and that the knife was thrust into her chest after she died. Several bite marks were identified on her left breast. She had been anally violated with a blunt object at or after the time of her death, resulting in lacerations to her rectum and vagina.
Irene's body was on the floor of her bedroom next to the bed. She had been hog-tied, her wrists and ankles bound together with the same length of rope. An autopsy revealed that seventeen superficial stab wounds in a localized area on her left chest, five of which penetrated the chest cavity and lung, were inflicted fifteen to...
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