Boy’s Remarks Unfairly Used in Murder Trial

(CN) - A psychologist should not have been allowed to repeat statements from a 3-year-old that implicated a man in the murder of the boy's mother, the 6th Circuit ruled.

Charlene Puffenbarger was found dead in early 1992 with scalp lacerations, defensive wounds on her hands and a leather strap around her neck.

At the time, the Ohio woman had been suing Willard McCarley for child support for her youngest son, a 2-year-old. That boy's brother, 3-year-old D.P., began speaking into a toy telephone four days after his mother's death, making quick statements that related to the murder, such as, "Policeman got buttons. What do you come to my house for. What you do that to my mom. You break window. Bob. Policeman hit mommy. Put tape on her. Put nuts in her mouth. Bad boy."

D.P. later told child psychologist Dr. Dawn Lord that he witnessed the murder. He consistently described the killer as a white man, a former boyfriend of his mother's, who wore a police uniform on the night of the murder.

Officers testified that when they arrived at the murder scene, D.P. repeatedly said, "It was him. He hurt mommy," to every uniformed officer he saw.

It was not until late 1995, on an unrelated matter, that police found a deputy sheriff's uniform at McCarley's home.

D.P. also consistently picked McCarley as the murderer in a photo array, said that the man put a pillow over his mother's face, and hurt her with a belt he got from the closet.

McCarley was indicted in 2004 and he was tried and convicted twice by a jury. Since D.P. could not remember the statements that he had made as a 3-year-old, Lord had read the boy's statements into evidence.

Finding that McCarley had not been able to cross-examine the boy, a three-judge panel of the 6th Circuit found Thursday that McCarley deserves habeas relief.

"Had the jury not heard and considered D.P.'s statements identifying McCarley as the perpetrator, the state's case would have been almost entirely circumstantial," Judge Bernice Donald wrote for the Cincinnati-based court. "The only physical evidence, the DNA gathered at the scene, was inconclusive. The DNA tests established that belt used to murder the victim might have contained male DNA from McCarley's paternal relatives, but this evidence is far from overwhelming. D.P.'s younger brother is a male descendant of McCarley, and McCarley's father often visited the house. Furthermore, none of the testimony at trial save for Dr. Lord's included a conclusive identification of McCarley as the murderer."

The prosecutor showed the importance of D.P.'s statements by re-reading them in their entirely in his initial closing argument, and again citing them in his rebuttal, saying, "[D.P.] tells you exactly what happened to Charlene Puffenbarger, and he tells you exactly who did it," the court found.

The testimony of other witnesses "paints a clear picture of the crime, but only when considered in light of Dr. Lord's testimony about D.P.'s statements to her," Donald said. "Dr. Lord's testimony therefore was not cumulative, but rather more akin to a keystone holding the arch of the state's case together. Remove that crucial block, especially D.P.'s eyewitness identifications, and the state's case collapses into disjointed pieces."

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