Bluff man gets third trial for 1996 murders

JEFFERSON CITY, Mo. -- A former death row inmate will get a third chance to convince a jury that he is innocent of the 1996 murders of two New Madrid County women.

For the second time, the Missouri Supreme Court reversed Cecil Barriner's first-degree murder convictions and accompanying capital sentences, citing errors at trial.

Barriner, of Poplar Bluff, was accused of killing Irene Sisk, 73, and her granddaughter Candy Sisk, 18, on Dec. 16, 1996, in their home in Tallapoosa, which is about 10 miles east of Malden.

In a 4-3 decision issued Tuesday, the majority found that the judge at Barriner's second trial erred in not allowing the jury to learn of hairs found on the victims' bodies. The defense contended the hairs didn't belong to Barriner or either of the women and could point to another perpetrator.

The dissenting judges said other evidence -- including a confession -- supported a guilty verdict.

The four judges named to the court by Democratic judges constituted the majority while all three Republican appointees dissented.

The same lineup also handed down a 4-3 decision in a second death penalty case Tuesday. In that case, the majority commuted Joseph Whitfield's death sentence for the 1988 murder of Ronald Chester in St. Louis to life in prison without the possibility of parole.

The jury that heard Whitfield's case in 1994 was unable to agree on a punishment and the judge imposed the death sentence. Relying on a recent U.S. Supreme Court decision, the majority said certain factual determinations as to whether the death penalty is warranted must be made by a jury, not a judge.

Until the ruling, Whitfield, 63, was the oldest inmate on Missouri's death row.

A Dent County jury originally convicted Barriner, now 41, in 1999, but the Supreme Court overturned those findings in 2000. In a 5-2 ruling, the court said pornographic videotapes and sex toys taken from Barriner's home and introduced as evidence by the prosecution were irrelevant and prejudicial against Barriner.

Following his retrial before a Warren County jury last year, he was again found guilty and received two death sentences.

The high court majority said the excluded hair evidence was relevant and potentially exculpatory, particularly given where it was found. One hair was located on Candy Sisk's thigh and another in the knot used to bind Irene Sisk.

"The hairs are physical evidence that could indicate another person's interaction with the victims at the crime scene," Judge Laura Denvir Stith wrote for the majority. "Barriner was entitled to present to the jury this evidence of another person's direct connection to the murders."

The majority also questioned the reliability of Barriner's alleged confession to police, noting that it wasn't videotaped or put it writing.

"The jury received the evidence of Barriner's confession only through an officer's testimony, requiring the jury to rely upon the officer's credibility and accurate memory," Stith wrote. "The remainder of the evidence was circumstantial."

As a result, Stith wrote, there is reasonable probability the admission of the hair evidence could have affected the outcome.

In his dissent, Chief Justice Stephen N. Limbaugh Jr. said the majority selectively read the record in reaching its conclusions. Limbaugh also dissented in Barriner's earlier case.

Contrary to a prosecutor's statement that the hair had been tested against both Barriner and the Sisks, Limbaugh said the full record shows that the hair had only been compared to Barriner.

"In view of those portions of the record that the majority chooses to ignore, the excluded hair cannot be deemed logically relevant to any issue in this case," Limbaugh wrote. "The hairs may well have come from the victims themselves, or even from their dog."

As a result, the hair evidence was properly excluded as it would have misleadingly raised the possibility of "some unknown phantom killer" and been prejudicial against the prosecution, Limbaugh wrote.

Even if the hair would have been allowed, overwhelming evidence pointed to Barriner's guilt, including blood samples found in his car that a DNA analysis indicated came from Irene Sisk, Limbaugh wrote. Barriner's known animosity toward the elder Sisk's daughter, whom Barriner had dated, pointed to motive, the judge wrote.

Limbaugh also noted that a several phones, a VCR and a videotape of the film "Independence Day" minus its box were found in Barriner's possession. Such items were missing from the Sisk home, where the box for the aforementioned movie remained.

The chief justice also took issue with the majority's attempt to discredit Barriner's confession.

"I reject the tacit suggestion that the police officer's sworn testimony is not worthy of the credibility determination made by the jury that heard the testimony," Limbaugh said.

In a separate dissenting opinion, Judges Duane Benton and William Ray Price Jr. agreed with the majority that the hair evidence was erroneously excluded but supported Limbaugh's position that it was unlikely to have changed the jury's verdict given the scope of the other evidence.

With Tuesday's rulings, the court's Democratic and Republican appointees have split on four death penalty cases since judges picked by Democratic governors claimed a majority last year.

However, during that same period the court unanimously reversed five death sentences and affirmed eight others.

mpowers@semissourian.com

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