Michelle Ann Barry v The State Of Oklahoma
F-2007-336
Filed: Sep. 25, 2008
Not for publication
Prevailing Party: Michelle Ann Barry
Summary
Michelle Ann Barry appealed her conviction for First-Degree Murder of her infant daughter, Andrea Heath. The court reversed her conviction and ordered a new trial. Judge Lewis dissented from this decision.
Decision
Michelle Barry's conviction for the first-degree murder of her daughter, Andrea Heath, is hereby REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Issues
- Was there sufficient evidence to support the conviction given that it was wholly circumstantial and needed to exclude other reasonable hypotheses?
- Did Barry's trial counsel provide ineffective assistance that prejudiced the outcome of the trial?
Findings
- Evidence was sufficient to support the conviction.
- Trial counsel's performance was ineffective and deficient.
- Barry's conviction is reversed and remanded for a new trial.
F-2007-336
Sep. 25, 2008
Michelle Ann Barry
Appellantv
The State Of Oklahoma
Appellee
v
The State Of Oklahoma
Appellee
SUMMARY OPINION
MICHAEL S. RICHIE, JUDGE: Michelle Ann Barry was tried by jury and convicted of First-Degree Murder, under 21 O.S.2001, § 701.7(C), in Latimer County, Case No. CF-2003-93. In accordance with the jury’s recommendation, the Honorable Bill Welch sentenced Barry to imprisonment for life. Barry appeals her conviction. Barry raises the following propositions of error:
I. THE WHOLLY CIRCUMSTANTIAL EVIDENCE OFFERED AGAINST APPELLANT IS INSUFFICIENT TO SUPPORT THE CONVICTION IN THAT IT FAILS TO EXCLUDE OTHER REASONABLE HYPOTHESES.
II. BARRY’S CONVICTION WAS OBTAINED IN VIOLATION OF HER CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL.
In Proposition I, Barry contends that the evidence was insufficient to support her conviction because the State’s wholly circumstantial case against her failed to exclude other reasonable hypotheses about who killed her infant daughter, Andrea Heath. In formulating Barry’s first proposition of error in this way, her appellate counsel relies on a method of review that has been rejected by this Court. This Court has held that all sufficiency-of-the-evidence challenges are to be evaluated under the standard laid out by the Supreme Court in Jackson v. Virginia and by this Court in Spuehler v. State. Under this test, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.
Reviewing the evidence presented at Barry’s trial, this Court cannot conclude that the evidence presented against Barry was insufficient to convict her. Taking the evidence in the light most favorable to the State, as we must, this Court finds that the jury could have reasonably concluded that Barry must have been the one to kill her daughter—and that this killing must have been intentional, because of the massive force required—because the only other person in the house who was awake at the time Andrea was killed, i.e., her brother, Andre Heath, was simply not physically capable of inflicting the injuries that killed her. This Court need not accept the State’s assertion that it conclusively established that the fatal injuries inflicted upon Andrea Heath could not possibly have been inflicted by her five-year-old brother in order to find that the evidence presented against Barry was sufficient to support her conviction. Rather, we find that the State’s evidence was sufficient for the jury to choose to believe the State’s evidence in this regard and to convict Barry accordingly.
In her second claim on appeal, Barry urges that her conviction was the result of the ineffective assistance of her trial counsel. In order to prevail on this claim, Barry must demonstrate that the performance of her counsel was deficient/unreasonable and that she was prejudiced thereby. In order to establish prejudice, Barry must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.
Barry cites three specific areas in which her trial counsel’s performance was ineffective: (1) trial counsel failed to object to improper character evidence at trial; (2) trial counsel failed to object to improper opinion testimony offered at trial; and (3) trial counsel failed to investigate and present a defense rebutting the State’s claim that Andre Heath was incapable of inflicting the injuries that killed Andrea Heath.
Although Barry’s trial counsel filed a motion in limine attempting to prevent the State from presenting evidence about Barry’s drug use prior to the death of Andrea, after the trial court denied this motion, trial counsel failed to object to any of the drug evidence presented at Barry’s trial. The State argues on appeal that the drug evidence was part of the res gestae of the crime charged. This Court finds that although use of certain drugs certainly could be relevant to a crime such as the current one, the State did not adequately establish the relevance of the drug evidence presented at Barry’s trial. And drug use, per se, is not generally accepted as part of the res gestae of such crimes. This Court finds that the performance of Barry’s counsel was unreasonable in his failure to even attempt to limit the admission of this highly prejudicial evidence at trial, particularly the evidence regarding methamphetamine use by Barry.
In her second specific claim, Barry challenges her trial counsel’s failure to object to the testimony of her neighbor, Mary Gideon, when she asserted that Barry was basically putting on an act regarding the death of her daughter and when Gideon offered the opinion that Andre was abused. Although this claim is not well developed in Barry’s brief, defense counsel’s failure to object or attempt to limit the testimony of Gideon in this regard—and the similar testimony of other witnesses regarding, essentially, what a bad mother Michelle Barry was—does seem noteworthy and unreasonable and was potentially highly prejudicial.
Finally, in her claim that her trial counsel failed to investigate and prepare an adequate defense on her behalf, Barry asserts as follows: No experts were hired and no attempt was made to present expert testimony rebutting the State’s position that Andre was incapable of hurting Andrea. The State correctly notes that Barry’s appellate counsel fails to substantiate this claim on appeal by demonstrating, for example, that such an expert actually exists. Nevertheless, a review of Barry’s entire trial makes clear that trial counsel’s failure to offer any rebuttal evidence, in response to the State’s expert testimony that Andre was not physically capable of inflicting the injuries that killed his sister, was obviously a key factor in Barry’s conviction.
This Court cannot ignore that Barry’s first trial resulted in a hung jury, nor can this Court ignore the many obvious deficiencies in defense counsel’s performance in her second trial. Trial counsel allowed the State to present a cascade of evidence, with nary an objection, about what a nasty, disgusting, infested home baby Andrea was found in, even though there was never any suggestion that any of these conditions, or any neglect of Andrea, had anything to do with the violent injuries that caused her death. In fact, trial counsel did almost nothing to limit the State’s character attacks on Barry as a drinking, drug-using, incompetent, neglectful mother. While some of the evidence regarding the state of the Barry home was likely destined to come in, there is little doubt that the photograph of cockroaches in baby Andrea’s bassinet was more prejudicial than probative. Most importantly, defense counsel simply did not offer any substantive evidence to rebut the State’s physical impossibility claim that Andre Heath was not physically capable of inflicting the injuries that killed his sister. We conclude that Barry has adequately established that her attorney’s performance at trial was unreasonable and deficient and that there is a reasonable probability that she could have been acquitted if she had been adequately represented.
This Court finds that in light of the entirety of the record in this case, including the circumstance of the hung jury in Barry’s first trial, we cannot affirm her conviction in this case.
After thoroughly considering the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we find that Barry’s trial counsel was ineffective and that her conviction must be reversed.
Decision
Michelle Barry’s conviction for the first-degree murder of her daughter, Andrea Heath, is hereby REVERSED and REMANDED for a new trial. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2008), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Footnotes:
- O.S.2001, § 701.7(C)
- Easlick v. State, 2004 OK CR 21, 119 4-15, 90 P.3d 556, 557-59
- Dodd v. State, 2004 OK CR 31, I 80, 100 P.3d 1017, 1041
- Jackson v. Virginia, 443 U.S. 307, 319-20, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)
- Spuehler v. State, 1985 OK CR 132, II 7, 709 P.2d 202, 203-04
- Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)
- Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511-12, 146 L.Ed.2d 389 (2000)
- Strickland, 466 U.S. at 694, 104 S.Ct. at 2068
Oklahoma Statutes citations:
- Okla. Stat. tit. 21 § 701.7 - First-Degree Murder
- Okla. Stat. tit. 21 § 701.8 - Sentencing
- Okla. Stat. tit. 22 § 1 - Criminal Procedure
Oklahoma Administrative Rules citations:
No Oklahoma administrative rules found.
U.S. Code citations:
No US Code citations found.
Other citations:
No other rule citations found.
Case citations:
- Easlick v. State, 2004 OK CR 21, 90 P.3d 556
- Dodd v. State, 2004 OK CR 31, 100 P.3d 1017
- Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
- Spuehler v. State, 1985 OK CR 132, 709 P.2d 202
- Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
- Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)