Analysis of an interview released by Justin Mertis Barber to correspondent Harold Row

April Barber

On the night of August 17, 2002, around 10:30 p.m., Justin Mertis Barber, 30, killed his wife, April, 27, on the beach of Ponte Vedra, Florida.

On September 15, 2006, Justin Barber was sentenced to life imprisonment.

At the time of her death, April Barber had a $2.1 million life insurance policy that named her husband Justin Barber as the primary beneficiary.

Justin Barber killed his wife April with a single shot in the face, then he shot himself four times to stage a robbery. He used a .22 caliber.

Justin Barber told police that someone approached him and his wife on the beach and that April’s killing was the result of a robbery attempt.

Justin Mertis Barber

Justin Barber spoke to 48 Hours correspondent Harold Dow:

Justin Barber: We had been there a few times before. April’s previous birthday, and I think perhaps the year before. It was a place that we would go to be alone on the beach.

Justin is telling us that he knew that Ponte Vedra Beach was a desert location, especially during the night.

Justin Barber: He was Caucasian. He had a hat on. It’s a dark hat with a logo.

Barber shifts from the past tense “He was”, “He had” to the present tense “It’s”, it may indicate that he is fabricating reality and not recalling from experiential memory. 

When someone is speaking of an event in the past, it is expected the subject to use past tense language. Present tense language is deemed unreliable. Deceptive people often use the present counting on us to interpret and assume that they are speaking of the past event.

Harold Dow: How big was he?

Justin Barber: In relation to me, slightly taller and heavier, two hundred pounds.

Who is “slightly taller and heavier”? There is no pronoun here, Justin Barber is unable or unwilling to say “he was slightly taller and heavier”.

Harold Dow: Do you think it was a robbery?

Justin Barber: Yes.

Harold Dow: Did you hear him saying “give me the money”?

Justin Barber: He was yelling.

Note that Barber doesn’t answer the question because he is unable or unwilling to lie.

Harold Dow: Yelling what?

Justin Barber: I don’t know exactly what he was yelling, I assumed that he wanted money.

Harold Dow: Did you see a gun?

Justin Barber: Yes.

I believe him. This is the truth, he saw a gun, the .22 caliber he used to kill his wife and to shoot himself to stage a robbery.

Harold Dow: Did you see him shoot April?

Justin Barber: I did not see him shoot April, no.

This is parroting language and is deemed unreliable.

Harold Dow: Did he shoot you?

Justin Barber: I know that he did. Yes.

“I know that” is distancing language, moreover these words are unnecessary, superfluous. People often speak in an economy of words. People like to economize their sentences. That’s why we note any extra words present in a sentence.

 Justin Barber: We were struggling, there was a fight.

I believe him. Justin Barber is telling the truth, he just omits to say who are these “We” that “were struggling” and between who “there was a fight”.

According with the autopsy report April suffered a near- drowning episode before being shot, we can easily assume that Justin and April were the “we” who “were struggling” and in a “fight”.

Harold Dow: After it was all over you came to?

Justin Barber: Yes.

Harold Dow: And what happened you look around?

Justin Barber: Yes.

Harold Dow: And what did you see?

Justin Barber: Nothing at first.

Note that Justin Barber reports in the negative seeing “Nothing”. This is impossible and sounds story telling. He certainly saw things. Only deceptive people tell what they didn’t see, didn’t do, didn’t think or didn’t hear.

Harold Dow: Did you call her name?

Justin Barber: I was yelling her name.

“yelling” is the same verb that Justin used to refer to the assailant.

  1. The assailant was yelling,
  2. he was yelling,
  3. he was the assailant.

Justin Barber: I ran down the beach. I couldn’t find her. I was screaming.
I remember feeling confusion, I remember feeling noxious, panic.

Note that Barber reports in the negative that he “couldn’t find her”

“I ran down the beach. I couldn’t find her. I was screaming” it’s possibly that these things really happened but before the shooting.

“I remember” is unnecessary wording whereas in truthful accounts people can only tell us what they remember. Justin Barber is telling us that he could have referred something not from his experiential memory previously. 

Note the inclusion of emotions in the right part of the statement. Justin Barber is simply diverting the focus on himself to fish for sympathy. The useless sentence “I couldn’t find her” helps him to give us an additional reason for him to “feeling confusion… noxious, panic”.

Justin Barber: She wasn’t responding to me.

Note that he is reporting something in the negative, again. 

Harold Dow: So what did you do?

Justin Barber: (long pause) I pulled her out the water.

Justin takes time to answer. The question is sensitive to him.

Justin Barber: I pulled her, kept trying to pull her up.

Barber is telling us not that he pulled her up but that he “kept trying to pull her up”. This indicates that the process to pull her up was quite long. Was this a long process because she was still alive and fighting for her life while in the water? According with the autopsy report she almost drowned before she was shot to the head and, according with the blood spatter evidence, no one moved her body after the shooting. She was shot where she was found and before the shooting she was in the water, not after. 

Justin Barber: My body just was not responding the way that I think that it should have.

Justin Barber: We got to the point at which the boardwalk meets the sand and then there’s a set of stairs that lead up to the boardwalk. I could barelyl drag her up the stairs. I wanted to lean her over my shoulder and try to carry her that way to the road.

When Barber says “We got” he is telling us that April was still alive

Justin Barber doesn’t say that he leaned her over his shoulder but that he wanted to lean her over his shoulder and again, he doesn’t say that he carried her but that he “try to carry her”. Justin Barber didn’t do any of these actions.

Justin Barber: I dropped her and I think the sound of her hitting the ground caused a reaction in me and I knew at that point that what I was doing was just not working.

The sound he is talking about is the sound of the gun shot. This is the moment he shot her. She hit the ground after he shot her in the face.

Justin Barber: I don’t know what the top process was but I left her at (unintelligible).

When Barber says “I don’t know what the top process was but I left her” he is very cold and doesn’t show any remorse. These are the words of a sociopath.

Harold Dow: And where did you go?

Justin Barber: I ran across the… the board lock of the highway looking for help and then is when I saw the first car.

“then” is a temporal lacunae, a signal of missing information. 

Barber is introducing “the first car” to defend himself. He is subtly trying to attribute the shooting to the owner of this car. 

When he says “I saw the first car” he is telling us that he saw more than one car. Why he didn’t stop any of these cars if he was really looking for help?

Justin Barber:  So, I just left. I didn’t even stop to get my shoes. I just immediately started running to the highway.

“left” is another temporal lacunae, there are missing information here too.

I just immediately started running” is quite different from the previous “I ran”, “immediately” is in contradiction with “started”, this is another long process.

The dependent word “just” is used in comparison. That he says I just immediately started running is to compare “running” with something else. 

Justin Barber: I ran to our vehicle. I remember getting in the truck and driving back to town. I was driving very, very fast with my four-way flashers on.

“I remember” is unnecessary wording whereas in truthful accounts people can only tell us what they remember. Justin Barber is telling us that he could have referred something not from his experiential memory previously. 

He says “very” twice making the sentence “I was driving very, very fast” sensitive, moreover if he was driving fast, he was not looking for help. He drove 10 miles before stopping.

Justin Barber: I was driving erratically. I was looking for help. I was looking for attention. I remember seeing a red light and stopping there and cars were there and I started yelling for help.

Barber is telling us that he “was driving erratically” and “looking for attention”, we can easily assume that his goal was not to find help but to look shocked. He was building his defence.

“I remember” is unnecessary wording whereas in truthful accounts people can only tell us what they remember. Justin Barber is telling us that he could have referred something not from his experiential memory previously. 

Again, Barber is the one who was “yelling” that night like the assailant did.

Justin Barber: Have you ever been kicked by a horse?

Harold Dow: No.

Justin Barber: I had and I felt I had been kicked by a horse in several places. It was painful, it was painful.

This is truth but the truth is also that he shot himself. He repeats twice “It was painful”, this is sensitive to him. Didn’t he expect this? 

He has a need to portrait himself as a victim. He is fishing for sympathy.

Justin Barber: I left her there, I was trying to find help.

Note the word “trying”, he doesn’t say “I left her there to find help” but a weaker “I was trying to find help”, another long process.

Justin Barber: Now it’s deeply shamed I have abandoned her on her own on that beach. And I think I would went crazy at that point.

Justin Barber: I’m a broken man.

This is true, he is a broken man at least in two ways, he is not only a looser that killed his wife because he was financially “broken” and wanted to cash in on her insurance policy but he is also a “broken” sociopath because he has been caught in his lies. 

Justin Barber: I’m not a violent person. I would never ever considered doing anything like that.

Justin Barber had the occasion to say freely “I didn’t kill my wife April” but he was unable to lie.

“I’m not a violent person” is not a reliable denial. Note also that the meaning of the word “violent” is subjective.

“I would never ever considered doing anything like that” is an unreliable denial. 

He says “doing anything like that” instead of “kill” to minimize. Minimization is a distancing measure, it’s a way to avoid of dealing with negative emotions by reducing the importance and impact of events that give rise to those emotions, it’s a common strategy used by guilty people to deal with feelings of guilt.

We can assume that Justin Barber never ever considered doing anything like that until he considered doing it and did it.

Harold Dow: Did you kill your wife?

Justin Barber: No sir, I didn’t kill my wife.

This is not a reliable denial because he is parroting the correspondent.

A reliable denial is found in the free editing process, not in the parroted language. A reliable denial has 3 components:

1. the pronoun “I”
2. past tense verb “did not” or “didn’t”
3. accusation answered

If a denial has more than 3 or less than 3 components, it is no longer reliable.

“I did not kill April” followed by “I told the truth” while addressing the denial, it is more than 99% likely to be true. A deceptive person will alter his denial to avoid a direct lie. 

 Harold Dow: Did you shoot yourself four times to cover the murder?

Justin Barber: No, that’s ridiculous. No, I did not.

Harold Dow: Did you love April?

Justin Barber: I did. I still do.

Justin Barber: I wore my wedding band on a leather tongue around my neck.

Barber is fishing for sympathy and shows a need to persuade that innocent people don’t have.

Harold Dow: Why do you wear that around your neck?

Justin Barber: Because I wasn’t ready to let her go. It was a reminder of her and was a reminder of my failure during our marriage.

When he “wasn’t ready to let her go”? When she asked him for divorce? 

Which “failure”? For Barber himself his main failure was to be caught.

Justin Barber: I will fight until I have no more options.

He didn’t fight until he had no more options to save his wife’s life but he will do to save himself.

Harold Dow: And you’ll scream all the time that you are innocent?

Justin Barber: Yes, because I’m… innocent.

Note the pause before saying the word “innocent”, this is not something easy to say for him.

“I am… innocent” is an unreliable denial. To affirm to be innocent is different from saying “I didn’t kill my wife April”, which was expected. To say, “I am… innocent” is to deny the judicial outcome, not the action. An innocent de facto is someone who did not “do it” and is able to say “I didn’t do it” and eventually to add in the judicial conclusion. When people say they are innocent, they are just denying the conclusion that they are guilty, not the action.

Justin Barber: Everything they asked for, I gave them. Every time they wanted me to come back to St. John’s County and talk to them some more, I did. Whenever they wanted a statement, I gave it them.

These actions don’t make him innocent de facto.

Justin Barber: If that jury think I killed April, they should execute me. I would never ask for mercy… for the person who killed her.

I killed April” is an embedded admission.

Note the pause after “I would never ask for mercy”.

When he says “I would never ask for mercy” he is telling us again that he is the person who killed April. He adds, after a pause, “for the person who killed her” to try to fix his previous incriminating affirmation.

Harold Dow: Why not?

Justin Barber: Because they don’t deserve… if that jury believes I’m that person then they should send me to the death row.

Justin Barber says freely “I’m that person”, this is an embedded admission, he is not parroting Harold Dow.

Analysis Conclusion:

Deception Indicated.

Justin Barber has guilty knowledge of what happened to his wife.

Ursula Franco, MD and criminologist

 

BARBER v. STATE
District Court of Appeal of Florida,Fifth District.

Justin Mertis BARBER, Appellant, v. STATE of Florida, Appellee.
No. 5D06-3529.

Decided: January 23, 2009

William Mallory Kent, of The Law Office of William Mallory Kent, Jacksonville, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.
Justin Barber was convicted of first-degree murder with a firearm for the killing of his wife and sentenced to life in prison.   He appeals the judgment and sentence, claiming that the trial court erred in denying his motion for judgment of acquittal because the evidence at trial, which was wholly circumstantial, did not exclude every reasonable hypothesis of innocence.

Late in the evening of April 17, 2002, Barber and his wife were celebrating a belated third wedding anniversary on a desolate strip of beach located between Ponte Vedra and St. Augustine. According to Barber’s version of events, he and his wife were accosted by an unknown assailant as they walked along the ocean, the assailant shot and killed his wife at the surf’s edge, and Barber dragged her body to the dune walkover before going for help.   According to the State, Barber half-drowned his wife in the ocean, then dragged her to the end of the dune walkover, where he shot and killed her.

Barber was arrested and charged with first-degree murder.   During the course of the investigation, the police discovered that a $2 million life insurance policy covering the lives of both Barber and his wife had been obtained the year before.  A search of Barber’s computer revealed that in the months prior to the murder Barber had conducted a Google search of terms such as “trauma, cases, gunshot, right chest” and “Florida & divorce.”   The police also discovered that Barber had several affairs during his marriage, and they located a witness who testified that she had an affair with Barber a few months prior to the murder.   The investigation further revealed that although Barber had downloaded a large number of songs on his computer, sixteen were downloaded on the date of the murder.   In particular, a song by Guns N’ Roses entitled “Used to Love Her (But I Had To Kill Her)” was downloaded that date, but deleted two weeks later.1

The trial commenced with Barber on notice that the State was seeking the death penalty. Much of the guilt phase of the trial consisted of forensic and medical evidence regarding blood and fluid discharge from the victim and other forensic evidence that we need not discuss in detail.   At the conclusion of the State’s case, Barber moved for a judgment of acquittal, and he renewed that motion at the close of the evidentiary portion of the trial. That motion was denied, and the jury subsequently found Barber guilty of first-degree murder with a firearm.

In the penalty phase of the trial (the Spencer2 hearing), the State presented argument in support of the three statutory aggravators;  Barber refused to offer mitigating evidence or submit argument. The jury, by a vote of eight to four, recommended that the death penalty be imposed. The trial court considered the evidence and the State’s arguments and found:  (1) the murder was at least partially motivated by pecuniary gain (medium weight);  and (2) the murder was committed in a cold, calculated, and premeditated manner (great weight).   However, as to whether the crime was heinous, atrocious, and cruel (H.A.C.), the court found that the State did not prove this aggravator beyond a reasonable doubt because the State did not sufficiently prove that Barber attempted to drown his wife before he shot her. Specifically, the trial court found that Barber may have shot her at the water’s edge, causing her to fall into the water, and then dragged her to where her body was found by the police. Despite the jury’s recommendation, the trial court imposed a life sentence. Barber appeals, claiming that the trial court erred in denying his motion for judgment of acquittal.

Because this is a purely circumstantial evidence case, a special standard of review applies to our analysis. The Florida Supreme Court has consistently explained that special standard a number of times. In Troy v. State, 948 So.2d 635 (Fla.2006), cert. denied, — U.S. —-, 127 S.Ct. 2981, 168 L.Ed.2d 711 (2007), the court reiterated:

In reviewing a motion for judgment of acquittal, a de novo standard of review applies.   See Pagan v. State, 830 So.2d 792, 803 (Fla.2002), cert. denied, 539 U.S. 919 [123 S.Ct. 2278, 156 L.Ed.2d 137] (2003). Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. See Pagan, 830 So.2d at 803 (citing Donaldson v. State, 722 So.2d 177 (Fla.1998);  Terry v. State, 668 So.2d 954, 964 (Fla.1996)). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt. See Banks v. State, 732 So.2d 1065 (Fla.1999). “A motion for judgment of acquittal should be granted in a circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Orme v. State, 677 So.2d 258, 262 (Fla.1996).

“The question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, we will not reverse.” Darling v. State, 808 So.2d 145, 155 (Fla.) (quoting State v. Law, 559 So.2d 187, 188 (Fla.1989)), cert. denied, 537 U.S. 848 [123 S.Ct. 190, 154 L.Ed.2d 78] (2002).   In meeting its burden, the State is not required to “rebut conclusively, every possible variation of events” which could be inferred from the evidence, but must introduce competent evidence which is inconsistent with the defendant’s theory of events. Darling, 808 So.2d at 156 (quoting Law, 559 So.2d at 189).   Once the State meets this threshold burden, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. Id.

This Court does not have to determine that every reasonable hypothesis of innocence was excluded in this case. The sole determination we must make is whether there was competent, substantial evidence for the jury to make such a determination.   See Darling, 808 So.2d at 156 (citing Law, 559 So.2d at 188-89).

Id. at 645-46 (quoting Johnston v. State, 863 So.2d 271, 283-84 (Fla.2003)), cert. denied, 541 U.S. 946, 124 S.Ct. 1676, 158 L.Ed.2d 372 (2004);  see also Huggins v. State, 889 So.2d 743 (Fla.2004), cert. denied, 545 U.S. 1107, 125 S.Ct. 2546, 162 L.Ed.2d 280 (2005).   In Orme v. State, 677 So.2d 258, 262 (Fla.1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997), the court further explained that the sole function of the trial court on motion for directed verdict in a circumstantial-evidence case is to determine whether there is prima facie inconsistency between (a) the evidence, viewed in the light most favorable to the State and (b) the defense theory or theories. If there is such inconsistency, then the question is for the finder of fact to resolve. The trial court’s finding in this regard will be reversed on appeal only where unsupported by competent substantial evidence.

Barber strenuously argues that his claim of error based on the trial court’s failure to grant the motion for judgment of acquittal is “sealed” by the court’s finding regarding the State’s failure to prove the H.A.C. aggravator. Specifically, Barber contends that the trial court’s finding established his theory of defense, which was that his wife was shot at the water’s edge by an unknown assailant and her body dragged to the spot where the police found it. We disagree.

The penalty phase proceedings are distinct from the guilt phase of a murder trial, and this distinction is clearly expressed in section 921.141(1), Florida Statutes (2002), which provides in pertinent part:

SEPARATE PROCEEDINGS ON ISSUE OF PENALTY.

Upon conviction or adjudication of guilt of a defendant of a capital felony, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment as authorized by s. 775.082․ In the proceeding, evidence may be presented as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (5) and (6). Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida. The state and the defendant or the defendant’s counsel shall be permitted to present argument for or against sentence of death.

The penalty phase is intended to determine the sentence to be imposed in a capital case after a verdict of guilt has been rendered;  it is not intended to determine the guilt of the defendant. Unlike the guilt phase of a capital trial, the rules of evidence are relaxed in the penalty phase of the proceedings. The trial court’s finding as to one or more aggravators in the penalty phase is not intended to override the jury’s verdict in the guilt phase of the proceedings, and there is nothing to suggest that is what the trial court intended to do in the instant case.

We also note that the finding made by the trial court in support of its refusal to apply the H.A.C. aggravator has no relevance to the issue of the murderer’s identity, contrary to Barber’s argument. The trial court’s finding, that there was insufficient evidence to prove beyond a reasonable doubt that Barber attempted to drown his wife before he shot her, relates only to the manner of the killing. The manner in which the murder was accomplished is a critical consideration when determining the applicability of the H.A.C. aggravator, which applies where the victim was mentally or physically tortured by the murderer in an attempt to inflict a high degree of pain and suffering before the victim’s life is taken.  Offord v. State, 959 So.2d 187 (Fla.2007);  Hardwick v. State, 521 So.2d 1071, 1077 (Fla.), cert. denied, 488 U.S. 871, 109 S.Ct. 185, 102 L.Ed.2d 154 (1988) (“The factor of heinous, atrocious and cruel arises from the means actually employed in the killing ․”);  see also Belcher v. State, 851 So.2d 678, 683 (Fla.) (holding that the H.A.C. aggravator may be established where a victim is conscious for between 30 seconds and a minute before drowning and there is evidence of a struggle such as evinces an awareness of impending death), cert. denied, 540 U.S. 1054, 124 S.Ct. 816, 157 L.Ed.2d 706 (2003);  Walker v. State, 707 So.2d 300, 315 (Fla.1997) (holding that H.A.C. aggravator was appropriately found in drowning death, regardless of whether the victim was conscious when she was thrown into canal, because there was other evidence of a struggle). We therefore reject Barber’s argument that the finding regarding this aggravator applied to the issue whether the evidence was sufficient to rebut Barber’s hypothesis of innocence that someone else killed his wife.

As to our de novo review of the record before us, we conclude that when viewed in the light most favorable to the State, the evidence the State introduced at trial is inconsistent with Barber’s theory of events. Because such an inconsistency was established, the trial court correctly let the jury decide whether the evidence excluded all reasonable hypotheses of innocence. The jury heard all of the testimony and considered all of the evidence presented in the guilt phase of the trial and determined that all reasonable hypotheses of innocence were excluded.   Concluding that substantial, competent evidence exists in the record to support the jury’s verdict, we affirm Barber’s conviction and his sentence.

AFFIRMED.

FOOTNOTES

1. We note these facts because Barber also raises the issue that the trial court erred in denying his motions in limine directed at precluding the State from introducing evidence of (a) his extramarital affairs;  (b) his computer search of the terms mentioned;  and (c) the $2 million life insurance policy insuring the lives of Barber and his wife. Barber further claims that the trial court erred in denying his request to interview the jurors to determine whether they had been tainted by exposure to extensive media coverage and Court TV commentary about the case. As to these issues, we affirm without further discussion.

2. Spencer v. State, 615 So.2d 688 (Fla.1993).

SAWAYA, J.

PALMER, C.J., and GRIFFIN, J., concur.