EDMOND — Rico Berry, who is facing a first-degree murder charge in the death of an Edmond toddler, will not testify in his trial.

Tuesday afternoon during his opening statement, defense attorney Mark McCormick said the jury would hear from his client. Since then, the 8-woman, 4-man jury has heard three full days of testimony from a series of witnesses for the state.

In October 2009, Oklahoma County District Attorney David Prater charged Berry, 28, with first degree murder in the death of Jolen Babakhani, 2, of Edmond. Prosecutors allege that Berry caused injuries to the toddler’s brain, eyes and body, inflicting mortal wounds that caused his death.

Friday afternoon, after the defense did not challenge the state’s last two witnesses — the primary Edmond detective assigned to the case and a pediatric specialist — the state rested.

During the ensuing moments, McCormick and co-defense counsel James Hughes huddled behind the defense table, where Berry was sitting, wearing a dress shirt and tie as he has every day.

After the jury was sent out of the courtroom, Oklahoma County District Judge Glenn Jones asked Berry to approach the bench. He was joined by his attorneys and the prosecutors, Assistant District Attorney Gayland Gieger and ADA Susanne Carlson.

Jones, who had heard of Berry’s decision to not testify from Hughes, asked the defendant several questions to ensure that he made the decision by his own free will. Berry said he did.

The jury was brought back into the courtroom and Hughes said the defense rested. The defense called no witnesses on Berry’s behalf.

The development occurred between 4:30-5 p.m. Jones told the jurors he would have instructions for the jury ready when court resumed at about 10 a.m. Monday. Closing statements would then begin. Jones urged jurors to prepare for a potential long day on Monday, when they will begin deliberations.



CHANGING STORIES

Among the witnesses was Edmond Police Detective Michael Chesley, a 16-year veteran with the Edmond Police Department. Chesley has been in the courtroom since the start of the trial, sitting at the prosecution table.

At about 6 p.m. Oct. 13, 2009, Chesley responded to a call about a child not breathing at the Rolling Green apartment complex, 400 E. Danforth Rd., where Sara Babakhani, Jolen’s mother, and the child were living with Berry.

Chesley was assisted by Detective Mark Oak, who went to the hospital to gather information and talk to Jolen’s mother. Chesley learned Berry was Jolen’s sole caregiver that day. Due to suspicious bruising, Chesley suspected there was more to the story than what was initially reported.

Berry voluntarily accompanied Chesley to the police station where he was signed in as a visitor. They went into an interview room. The jury watched a roughly 2-hour video of the interview. The first hour was of Chesley and Berry, the second after Oak had returned from the hospital.

In the video, Berry is heard telling three different stories about what happened that afternoon.

At about 4 p.m. he said he put Jolen down for an afternoon nap. When he went back to check on the child, he found the toddler’s lips were purple. He called Sara to tell her what he found as she was arriving from school at Langston University. They rushed to the car, but saw several police officers there on another matter.

Several times, Berry was asked if there had been any wrestling or rough housing with Jolen. Each time he said there had not. When asked if he ever disciplined Jolen he said had not. Chesley asked him if Sara trusted him with her son. He said she did.

“I treat her son the same way I treat my daughter,” Berry said.  

Chesley reviews the timeline. Berry’s responses are virtually the same. Again he denies there was any rough housing. “What do you think happened to him?”  the detective asked.

“I have no idea,” Berry said.

He said when he laid Jolen down he was fine. Then he said he should have been watching him the way he watches his daughter.  

Detective Oak returns from the hospital where he spoke with Jolen’s mother. Oak said Jolen’s not doing well, not well at all.

“This is going to be a big deal for you,” Oak said.

The detectives press Berry, explain that Jolen did not injure himself this severely. They encouraged him to come clean, tell them what happened. They continue to press him as he remained silent.

“I don’t know if he’s going to make it through the night,” Oak said.

The detectives tell Berry they don’t think he’s a bad person. They think things got out of hand. They urged him to tell the truth for the mother’s sake, for his sake. Chesley said Jolen didn’t stop breathing on his own.  

“Be honest and tell us what happened,” Chesley said.

After saying he didn’t do anything, Berry claims Jolen fell down the stairs outside the second story apartment. The detectives say the story doesn’t agree with the injuries — bruising on the neck below the jawline, bruising on his forehead and back and bleeding in and on his brain.

Berry described picking up Jolen and throwing him down onto the couch, bouncing off the cushion and falling onto the floor. The process was repeated after Jolen said he was OK, Berry said. One time, Jolen’s head hit the coffee table, he said.

The state medical examiner’s office 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. As Marc Harrison, a forensic pathologist with the state medical examiner’s office testified, jurors viewed a series of graphic autopsy photographs depicting exterior injuries and injuries inside Jolen’s skull.

Medical personnel attending to Jolen did not believe based on the extensive bruising and damage to the toddler’s head that the injuries could have been caused accidentally, witnesses testified. At the hospital, it was learned the toddler did not have any type of brain activity.

Jurors also heard from Morris Gessouroun, M.D., a pediatric critical care specialist at The Children’s Hospital at OU Medical Center. Gessouroun testified about Jolen’s absence of brain or brainstem function, about retinal hemorrhaging, abnormal bleeding of the vessels in his retinas, the inside surfaces of the back of the eye, the bruising and the subdural hematoma, a collection of blood on the surface of the brain and brain swelling.

When asked if those injuries would be consistent with Berry’s description of rough housing Gessouroun said they were not, that more force would be needed.



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