The Edmond Sun

January 29, 2013

Sides differ on blame in toddler's death

Mark Schlachtenhaufen
The Edmond Sun

OKLAHOMA CITY —  

A prosecutor said Rico Berry is legally responsible for the injuries that caused an Edmond toddler’s death; Berry’s attorney said he did not cause them.

On Tuesday in the court room of Oklahoma County District Judge Glenn Jones, a jury consisting of eight men and four women was sworn in and heard opening arguments from both sides. Two jurors, both women, were sworn in as alternates.

In October 2009, Oklahoma County DA David Prater charged Rico Antwoine Berry, 28, of Edmond, with first degree murder and child neglect in the death of Jolen Babakhani, 2, of Edmond. 

The state medical examiner ruled Jolen’s death was a homicide, resulting from head trauma, causing a subdural hematoma. A subdural hematoma is a type of blood clot or clots that often result from a skull fracture.

During instructions, Jones told the jurors that the defendant’s plea of not guilty requires the state to prove each element of the alleged crime beyond a reasonable doubt. The defendant’s presumption of innocence continues, he said. Guilt or innocence will be determined from the evidence.

Berry, who has pleaded not guilty, is being represented by attorneys Mark McCormick and James Hughes. Assistant District Attorney Susanne Carlson and ADA Gayland Gieger are representing the state.

THE STATE’S CASE

During the state’s opening statement, Carlson told the jurors Jolen was the light of his mother’s life. Oct. 13, 2009, was probably a normal day in the world, but it wasn’t for the Babakhani family, Carlson said. That day, their world changed forever, she said.

Sara Babakhani, Jolen’s mother, was a nursing student at Langston University, where she would usually take her son to daycare, Carlson said. That day, he wasn’t feeling well so she left him with Berry, her boyfriend of about 10 months, Carlson said. She had some comfort with him from seeing him interact with his daughter and Jolen, she said. At about 8:30 a.m., she left for school. It was a Tuesday, when she had a 9 a.m. class. 

“That’s the last time she ever saw her little boy in person alive,” Carlson said.

At about 3:20 p.m. that day, Sara received a text from Berry, reporting that Jolen had thrown up; nausea or vomiting can be a symptom of a head injury, Carlson said. 

While she was driving home from school, Babakhani and Berry were talking on the phone, Carlson said. After their conversation ended, Babakhani called her father. As she was arriving at the apartment complex, she heard from Berry, who told her to hurry because something was wrong with Jolen; his lips were blue, Carlson said. 

Babakhani saw her son’s lips turning blue or purple; she didn’t know if her son was breathing or not, Carlson said. Berry scooped up Jolen and said they’ve got to get him to the hospital, Carlson said. 

That’s when Babakhani saw several Edmond Police Department squad cars and officers who were at the apartment complex on an unrelated matter, Carlson said. She flagged them down and yelled, “My baby’s not breathing! My baby’s not breathing!”

Carlson told the jurors they would see squad car dashcam video of the officers trying to revive the toddler. Despite their efforts, Jolen was probably almost already technically dead at that point, even though jurors will hear that EMSA got a pulse, Carlson said. He was never breathing again on his own, she said. 

In hindsight, Babakhani learned Berry was not the person she thought he was — he was not married and he did not have a job as a firefighter, Carlson said. A month earlier, she came home and found a wound to Jolen’s head that required medical attention, she said. 

During interviews with detectives, Berry changed his story three times, Carlson said. The third time, she said, it was closest to the truth, she said. Carlson also told the jurors about blood evidence found in the apartment and DNA analysis showing it was consistent with Jolen’s DNA. Sara said she knew of no reason why there would be blood there, Carlson told the jury. 

THE DEFENSE

Earlier in the day during the selection process McCormick told prospective jurors Berry planned to testify during the trial. During the defense’s opening statement, McCormick told the jury that Berry is not responsible for the injuries that caused Jolen’s death.

“He loved Jolen Babakhani, treated him like his own son,” McCormick said. 

McCormick said the state would be presenting a number of doctors as witnesses who will testify that a head injury caused Jolen’s death. They were not in the court room because Jolen died; they were here because the prosecution is accusing Berry of these crimes, McCormick said. 

The power of accusation puts Berry’s life in the jurors' hands, McCormick said. 

Jolen’s mother had encouraged Berry to rough house with her son within reason, McCormick said. On the day in question, Berry tossed him on the couch and since Jolen was having fun they repeated the action, McCormick said. When Jolen cried, Berry made sure Jolen was OK and they calmed down, he said.

When Jolen asked Berry if he wanted to “fight,” Berry obliged, McCormick said. Jolen tripped on Berry’s leg and hit his head on the coffee table, so they stopped playing, McCormick said. 

Several times in days leading up to Oct. 13, 2009, Jolen had fallen and hit his head on furniture, McCormick said. He had a fever for several days and his sleeping habits had been turned upside down. He also didn’t have much of an appetite, McCormick said. Jolen had pneumonia on top of asthma, he said.

Berry was not negligent in his care of Jolen, McCormick said. 

Wednesday morning, the jury was scheduled to begin hearing testimony from witnesses.

marks@edmondsun.com | 341-2121, ext. 108