State v. Barriner
| Decision Date | 24 October 2006 |
| Docket Number | No. WD 65092.,WD 65092. |
| Citation | 210 S.W.3d 285 |
| Parties | STATE of Missouri, Respondent, v. Cecil BARRINER, Appellant. |
| Court | Missouri Court of Appeals |
Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa Michelle Kennedy, Assistant Attorney General, Jefferson City, MO, for Respondent.
Craig A. Johnston, Assistant State Public Defender, Columbia, MO, for Appellant.
Before EDWIN H. SMITH, C.J., and HOWARD and NEWTON, JJ.
Cecil Barriner appeals the judgment of his convictions, after a jury trial in the Circuit Court of Callaway County, of two counts of first-degree murder, in violation of § 565.020.1 The appellant was convicted of murdering Candace Sisk (Candy) and her grandmother Irene Sisk (Irene). As a result of his convictions, the appellant was sentenced to consecutive terms of life imprisonment in the Missouri Department of Corrections, without the possibility of probation or parole, pursuant to § 558.011.
The appellant raises four points on appeal. In Point I, he claims that the trial court erred in allowing, over his objection, the testimony of the State's witness, Debbie Dubois, regarding a telephone conversation she had with one of the victims, her niece, Candy, on the morning of the murders, because it was hearsay offered to prove the truth of the matters asserted, that unexpectedly, on the morning of the murders, a man appeared at the home of the victims, who was acting strangely and told Irene that he had a gift for Candy from her mother, who was in prison, causing Candy to be afraid, and no hearsay exception applied for its admission. In Point II, he claims that the trial court erred in overruling his motion to suppress and allowing at trial, over his objection, the State's witness, Kristie Strickland Evans, a bank teller at a bank in Risco, to identify him in court as the man she saw at the bank with Candy on the morning of the murders, withdrawing money from her account, because the rendering it inadmissible as being "unreliable and impermissibly suggestive." In Point III, he claims that the trial court erred in overruling his motion to dismiss and allowing his case to proceed to a third trial, his prior convictions for murder, as to the same victims having been reversed by the Missouri Supreme Court in State v. Barriner, 34 S.W.3d 139 (Mo. banc 2000) (Barriner I), and State v. Barriner, 111 S.W.3d 396 (Mo. banc 2003) (Barriner II), because his Fifth Amendment right to be free from double jeopardy was violated by the prosecutor's misconduct in his prior trials in failing to disclose exculpatory evidence concerning the failure of Evans to identify the appellant from a police photo lineup. In Point IV, he claims that the trial court erred in overruling his motion to suppress and admitting at trial, over his objection, his oral confession, because under the totality of the circumstances, it was involuntary due to its being coerced by Steve Hinesly of the Missouri State Highway Patrol and being made while he was under the influence of methamphetamine.
We affirm.
In Barriner I, the appellant was charged in the Circuit Court of New Madrid County with two counts of first-degree murder, in violation of § 565.020, for the murders on December 16, 1996, of Candy and Irene. 34 S.W.3d at 144. On a change of venue to Dent County, the appellant's case proceeded to a jury trial. Id. The jury found him guilty on both counts, and the trial court sentenced him to death on both counts. Id. On direct appeal, the Missouri Supreme Court reversed his convictions and remanded his case to the trial court. Id. at 153.
On remand, in Barriner II, the appellant's case again proceeded to a jury trial on a change of venue to Warren County. 111 S.W.3d at 396. The appellant was again found guilty on both counts and was sentenced to death on both counts. Id. at 397. On direct appeal, the Supreme Court again reversed his convictions and remanded his case to the trial court. Id. at 401.
On remand, the appellant's case again proceeded to a jury trial, this time on a change of venue to Callaway County. Although the change of venue was to Callaway County, the trial was actually held in the Boone County Courthouse. Trial commenced on November 9, 2004. For the third time, the appellant was convicted on both counts of murder in the first degree.
In a light most favorable to the jury's guilty verdicts in this case, the underlying facts are as follows, State v. Tisius, 92 S.W.3d 751, 757 (Mo. banc 2002):
The appellant had an on-again, off-again relationship with Candy's mother and Irene's daughter, Shirley Niswonger (Shirley) from 1993 to 1996. During his relationship with Shirley, the appellant became acquainted with Candy and was aware of Irene. He accompanied Shirley on several occasions when she borrowed money from her parents. He believed them to be wealthy.
At the time of their murders, on December 16, 1996, Candy and Irene were living together in Irene's home in Tallapoosa, New Madrid County, Missouri. Irene's husband, Obie, was deceased. Shirley was in prison serving a sentence for possession of a controlled substance, and the appellant, who was on parole,2 was living with his brother, Belvi Barriner, nicknamed Will, in Poplar Bluff, Butler County, Missouri. The appellant stayed in contact with Shirley, while she was in prison, by telephone and mail until November 1996.
In December of 1996, the appellant was concerned that he had failed a urine test, required as a condition of his parole, and that his parole would be revoked. As a result, he decided to leave town. Needing money and believing that the victims were wealthy, he decided to get the money from them.
On December 15, 1996, the appellant visited his friends, Daniel and Samantha Simmons, who lived in Malden, Missouri, only a few miles from the victims' residence. He was driving a white Ford Taurus, which belonged to his parents. On occasion, the appellant used methamphetamine with Daniel. At some point, he asked the Simmonses if they wanted to ride with him to check the air pressure in his tires. While at the gas station, the appellant told them that he did not have any money, but that some people in Tallapoosa owed him money. They then accompanied him to Tallapoosa, where they drove by the victims' residence two or three times. He told the Simmonses that the victims' home was where the people lived who owed him money. Samantha noticed that while they were riding around, the appellant was holding and playing with a Crown Royal bag that contained something other than a bottle.
On December 16, 1996, shortly after 8:00 a.m., a neighbor of the victims saw a medium-size white vehicle, driven by a male, driving slowly in front of the victims' residence. At approximately 8:45 a.m., Candy telephoned her aunt, Debbie Dubois (Dubois), who worked for the Risco R-II School District. Risco is a small town located only a few miles from Tallapoosa. Candy told Dubois that a man had been at their house a short time earlier, acting strangely, and had told Irene that he had a Christmas gift for Candy from her mother. Candy told her that she was scared because she knew her mother was mad at her for not giving her money she had wanted. Dubois tried to calm her down by assuring her that her mother would not do anything to hurt her or to have her hurt. As promised to Candy, she tried to contact a relative to check on the victims, but was unsuccessful. Dubois called Candy back and instructed her to telephone her if the man returned.
Shortly after 9:00 a.m., a man driving a white Ford Taurus drove up to the drive-through window at a bank in Risco. The bank teller, Kristie Evans (Evans), whose last name was Strickland at the time, recognized Candy as the passenger in the front seat. Candy was dressed in a nightgown, with a blanket over her legs. She also observed that there was a passenger in the backseat, who was only visible from the elbow down. The backseat passenger appeared to be female and was patting Candy. The man presented a check for $1,000, signed by Candy and drawn on her account, and told Evans that he wanted $100 of the money in $20 bills. Evans obliged, giving the man the money in nine $100 bills and five $20 bills.
At approximately 11:00 a.m., Dubois made several attempts to reach the victims by telephone, but was unsuccessful. Finding it unusual that she received no answer, since they had an answering machine, and Candy had recently undergone back surgery and was not supposed to leave the house for six weeks, she went to check on them, only to find them both dead. She found Candy's body lying on the bed in her bedroom. Her hands were bound in front with rope, and she was unclothed from the waist down. She had a butcher knife sticking out of her chest. Irene's body was found on the floor of her bedroom, next to her bed. Her wrists and ankles were bound with rope. Dubois tried to call the police to report the murders, but the telephones in the living room were missing, so she went to a nearby store and called her brother. The police were then notified.
Autopsies were performed on the victims' bodies. Candy's autopsy revealed that she had multiple knife wounds and cuts to the neck, one of which severed her left jugular vein, from which she bled to death. At or near her time of death, it was determined that Candy was vaginally and anally violated, causing severe lacerations. She also had a bite mark on her left breast. As to Irene, it appeared that her mouth and nose had been covered with duct tape that had been ripped off. She suffered multiple superficial stab wounds in the area...
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