COURT HEARS APPEAL IN DOUBLE MURDER CASE

JEFFERSON CITY, Mo. -- The attorney for death row inmate Cecil Barriner asked the Missouri Supreme Court Wednesday to grant her client a new trial, claiming unfairly prejudicial and irrelevant evidence and testimony was used to convict him for a 1996 double murder in New Madrid County.

Although admitting the prosecutor was incorrect in admitting certain evidence, the attorney for the state maintained that remaining evidence overwhelming proved Barriner's guilt.

The Supreme Court will hand down a decision on Barriner's appeal at a later date.

A Dent County jury convicted Barriner, of Poplar Bluff, Mo., of two counts of first degree murder in March 1999. The trial judge imposed the death penalty for each count after the jury was unable to reach a sentencing decision. The case had been moved from New Madrid County on a change of venue.

Barriner killed Irene Sisk, 73, and her 18-year-old granddaughter in their Tallapoosa, Mo., home on Dec. 16, 1996. Tallapoosa is located approximately 10 miles east of Malden in the upper Missouri Bootheel.

Barriner, now 38, is sitting on death row at the Potosi Correctional Center. He was not present in court Wednesday for the oral arguments in his appeal.

Deborah Wayfer, the St. Louis-based public defender representing Barriner, said the trial judge erred in allowing lurid evidence of her client's sexual predilections.

"None of this evidence was legally relevant because it did not prove any of the state's claims," Wayfer said. "It was character assassination."

The evidence in question includes a number of items police found in Barriner's home, including pornographic videotapes, a bondage magazine, rope and various sex toys. One of the videotapes, which was shown at trial, depicted Barriner involved in a consensual act of bondage with a woman.

"It depicts Cecil as someone who has an unnatural interest and a predatory interest in sex," Wayfer said. "He was being tried for who he is, not what he did."

Both victims had been bound with rope and repeatedly stabbed. The younger woman had also been sodomized with a foreign object after death, according to forensic testimony at trial.

Judge John Holstein questioned Wayfer's argument, noting Barriner admitted committing the crimes to police.

"You say he was tried for his sexual habits," Holstein said. "He was tried for first degree murder, wasn't he? There was a confession."

Wayfer said the confession was coerced.

John M. Morris, the attorney general's chief counsel for criminal appeals, said some of the evidence, including the bondage magazine and a catalog of titles in Barriner's pornographic video collection, should not have been used. However, Morris said other evidence, including the confession, far outweighed any prejudicial effect and that Barriner's right to a fair trial had not been harmed.

"As far as guilt was determined, there is no way any reasonable juror faced with the evidence presented could have reached any other verdict than first degree murder," Morris said. "There is a huge amount of evidence that has nothing to do with the defendant's sexual preferences.

"We didn't focus on the lurid details. We focused on what happened to those two victims."

Morris said that included torture and the post-mortem sodomy.

Wayfer said the videotape the jury saw of Barriner engaged in sex acts was particularly inflammatory. Morris said the tape depicted Barriner tying up his partner using knots identical to those used to bind the Sisks.

"This was not a documentary of Cecil tying knots," Wayfer said. "You can't look at that tape without seeing other stuff on it."

There were other, less prejudicial ways the prosecution could have employed to demonstrate Barriner's knot-tying technique, Wayfer said.

Morris said the knot evidence was an important part of the prosecution case.

"It wasn't that the defendant was a good knot tier," Morris said. "It was that the knots used to bind the victims were distinctive and unusual. The same type of knot is shown being tied in the video."

During rebuttal, Wayfer said the knot in question, a half-hitch, is common.

"It is in the Boy Scout manual. It is the first knot Boy Scouts learn," Wayfer said. "It is not distinctive and unusual."

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