Kenisha Berry

Case record: Kenisha Berry

Parties and identities

Kenisha Berry was convicted in February 2004 of capital murder relating to the killing of her newborn son. She was later identified as the mother of the victim known as “Baby Hope,” and DNA testing confirmed she was the mother of both the deceased infant boy and a later infant girl, Paris.

The deceased victim was a Black male newborn, and was identified as “Baby Hope” after Ima alerted police. The later surviving infant was Paris, an infant daughter of Kenisha Berry, who was found covered with fire ants in a ditch in June 2003 and survived.

Co-defendants were none.

Background and personal details

Kenisha Berry was Black. Her age at the time of the crime was 21, and the record listed her age at the time of the offense as 20. Her date of birth was 12/26/1977.

The record listed prior occupation as Food Service Worker/Laborer and education as 10 years. The record stated prior prison record: None.

The record also stated that Kenisha Berry was 29 when she was convicted in February 2004 and that she faced new charges for second infant abandonment in 2007.

Kenisha Berry had three older children named Jasmine, Keerstan, and Joskin. Her infant daughter was named Paris. The record also referred to an infant son Malachi, known to authorities as Baby Hope.

The offence

Kenisha Berry murdered her newborn son in Beaumont, Texas, in Jefferson County.

In the early morning hours of November 29, 1998, Roy Black discovered the victim’s body while he and his wife, Ima, were looking for aluminum cans in a dumpster at an apartment complex in Beaumont, Texas. Roy found the deceased male infant inside a trash bag with duct tape over the victim’s mouth. The victim’s arms were secured across his chest with duct tape, and there was fecal matter inside the trash bag. Ima alerted the police and named the infant “Baby Hope.” The autopsy later indicated the victim was two to five days old.

The evidence at trial showed that Kenisha Berry placed duct tape across the body and mouth of her 4 day old son, placed him in a black plastic trash bag, and left his body in a trash dumpster, resulting in his death.

Defense testimony addressed the duct tape and Bag placement. Kenisha Berry testified that she laid duct tape over his arms because they were stiff and sticking out and “wanted them in front of him.” She testified that she put duct tape over his mouth because it bothered her that his mouth was open, transported the infant in a bag to a dumpster, and stated that “the baby was not kicking or moving” when she put him in the dumpster. She denied killing her baby.

A forensic pathologist performed the autopsy and estimated the victim’s age as two to five days old. The pathologist found duct tape used to cover the victim’s mouth and to constrain his arms around his abdomen, and the victim was placed inside a plastic trash bag. The stomach contained a “milk-like product,” indicating the victim had been fed before death, and there was fecal matter inside the plastic trash bag. The forensic pathologist observed “petechiae of the pleural surfaces of the lung,” which was consistent with oxygen deprivation. The forensic pathologist determined that the infant “died from asphyxia due to smothering,” and ruled the death a homicide. The forensic pathologist opined that the infant was still alive when placed in the plastic trash bag and testified: “as the baby died, then there was a large release of fecal material from the rectum.” The forensic pathologist testified that lividity led him to conclude the infant was lying on his stomach when he died, and that after being discovered he was turned over and placed on his back for a short period of time. The forensic pathologist observed no indications of an infection or sudden-infant-death syndrome.

Defense expert Stephen Pustilnik testified that he reviewed Brown’s autopsy report and the photographs and microscopic slides taken at the autopsy. He observed “multiple areas of meconium (2) aspiration” in the microscopic slides and criticized Brown for failing to include an assessment of the microscopic slides in his autopsy report. Pustilnik believed that the infant released meconium from his bowels while experiencing fetal distress prior to birth, which later caused “a significant pneumonia enough to explain this child being very sick and sick enough to die.” Pustilnik testified he observed petechiae but stated this was a “nonspecific finding” that “should never be used as proof of anything.” Pustilnik testified that duct tape on the infant’s mouth would not necessarily cause asphyxia because most babies are “obliga[te] nose breathers,” and acknowledged the plastic trash bag could have caused asphyxia. He testified that fecal matter inside the plastic trash bag was not indicative of the time of death because defecation could have occurred either at or after the time of death, and he disputed that the infant was struggling in the bag when fecal matter was released from the rectum, stating the feces was confined to the buttocks, lower back, and “the back of the foot that was resting in it because the knee was flexed up and the foot was in the feces.” He disputed that lividity necessarily indicated the infant died on its stomach, stating “[t]here are always exceptions to this rule.” Pustilnik could not conclude what caused death and acknowledged the possibility of homicide and asphyxia while testifying that “the ‘child could have died naturally prior to being placed in the bag with the tape on it.’” Pustilnik testified: “He had ‘two good guesses’ as to why the infant died: ‘One is natural, one is homicide.’” Pustilnik testified: “it’s just as likely that this child died of a natural cause as it is that it died of a homicide.”

Defense expert Carl Hunt testified that he reviewed the autopsy report and photographs, and that duct tape on the victim’s mouth “would not be suffocating to this infant” because “young infants prefer to breathe through their noses.” Hunt testified that the fecal material inside the plastic trash bag was insignificant because “the release of fecal material could have occurred at any time.” Hunt agreed that petechiae could develop due to oxygen deprivation but testified that petechiae are “not proof of any particular mode of death” and are “very common in autopsies of young infants who die in unexplained situations.” Hunt testified he could not reach a conclusion until he spoke to Pustilnik, who informed him of the presence of meconium in microscopic slides. Hunt then concluded that “this infant died of natural causes related to birth asphyxia and meconium aspiration syndrome, in other words, lung failure.”

The state recalled Brown after defense testimony. Brown disagreed with findings of pneumonia or infection and testified about his observations: “Whenever I looked at the lungs, the alveolar spaces were open. There were a few squamous cells, which comes from the amniotic fluid within the alveolar spaces. There was meconium that was described earlier. It has a yellow brown pigment effect. So, I did not realize there was any of that within the lungs. A pneumonia- you have to have neutrophils, which are white blue cells for bacterial infection or you have lymphocytes, which indicates a viral infection. The baby had neither of those. I cannot call this a pneumonia.” Brown continued to believe the cause of death was “asphyxia due to smothering and a homicide.”

Investigation and identification

The case remained unsolved until the summer of 2003. During the course of an investigation into another case involving appellant, Debbie Beavers of the Jefferson County Sheriff’s Department investigated appellant and took her to the dumpster where Baby Hope had been found. Beavers brought this to the attention of Beaumont police officer John Boles, who had appellant’s fingerprints compared to those found on the duct tape and trash bag.

A latent palm print on the trash bag matched appellant’s right palm. A latent fingerprint on a piece of duct tape matched appellant’s left index finger.

DNA testing of the victim’s blood and appellant’s oral swabs indicated a 99.98% probability that appellant was the mother of the victim.

Arrest and jail meetings

On June 27, 2003, Child Protective Services worker Tracy Rideaux met with appellant while appellant was in jail on another charge. At that time, Rideaux testified that appellant had an infant daughter named Paris in the care of CPS, and that appellant also had a nine-year-old daughter named Jasmine, a seven-year-old daughter named Keerstan, and a three-year-old son named Joskin. Rideaux testified that appellant’s infant daughter was fathered by a man named Leonard Carrier and that her three older children were fathered by a man named Joskin Love.

At the first jail meeting, Rideaux and appellant discussed removal of Jasmine, Keerstan, and Joskin and potential for a family placement.

Rideaux met with appellant in jail again on July 10, 2003, after appellant had been charged with capital murder in the death of her son Malachi, known to authorities as Baby Hope. Rideaux asked whether the family knew anything about Malachi or other hidden pregnancies because family knowledge affected placement. Appellant told Rideaux that “she knew how to hide a pregnancy” and her weight fluctuated a lot. She stated: “her family had absolutely nothing to do with Baby Hope or what was going on.”

Appellant revealed that she gave birth to Malachi at home in her apartment and described it as an “easy delivery,” stating that he was “fine” when he was born. She stated that after the birth she went to the store and purchased a bottle and some formula. Rideaux testified that appellant explained her other children were with a relative at the time of his birth and that when they returned home she explained she “was keeping a friend’s baby.”

Appellant did not give Rideaux details about the duct tape other than acknowledging she had duct tape “lying around the house.” She did not confess she killed Malachi, and instead stated she borrowed her grandmother’s car, placed the infant “which was already inside the trash bag” in the trunk, and transported him to a dumpster without anyone’s knowledge. She stated that “the baby was not kicking or moving” when she put him in the dumpster.

Appellant testified at trial that she did not kill her baby. She testified she knew she was pregnant in 1998 but did not know how far along she was. She testified the father was a man named Nicholas Beard and that she did not tell her family or anyone else about the pregnancy. She testified she gave birth at home by herself and named the infant Malachi. She testified she fed him milk from a bottle. She testified that his nose started running the next day and that she went to the store that morning to buy milk. She testified that when she returned he was still asleep on the bed in her bedroom, that she lay on the couch to watch television, later checked on him because she was concerned he had not awakened, and found he was “limp” and “not moving or breathing.” She testified she realized he was dead but did not call for help because she was “scared” and did not know “if it was against the law to have a baby at home.” She testified she left her apartment with Malachi in a bag and later placed him in a dumpster.

Rideaux testified on voir dire and as to admissibility. The trial court found that statements were made freely and voluntarily and were not pursuant to custodial interrogation because “it was not in connection with a criminal investigation,” and allowed the testimony.

Trial

Indictment and conviction

Appellant was indicted for the murder of an individual under six years of age. The record stated the trial judge sentenced appellant to death based on the jury’s answers to special issues under Texas Code of Criminal Procedure Article 37.071, including Article 37.071, § 2(g).

Appellant was convicted in February 2004 of capital murder under Tex. Penal Code § 19.03(a). Direct appeal was automatic under Art. 37.071, § 2(h). Appellant reviewed on direct appeal were “nine points of error.”

Special issues and appellate reformation

On direct appeal, the court “affirm[ed] the trial court’s judgment, but reform[ed] the sentence to life imprisonment.” The appellate court held that the state did not meet its burden beyond a reasonable doubt on the future-dangerousness special issue. It held that the state misdirected the jury away from determining continuing dangerousness in the actual circumstances of prison.

Points of error described in the decision

Sufficiency of evidence at guilt/inocence (Point of error one)

Appellant argued the evidence was factually insufficient to support the capital murder conviction. The court summarized the competing expert testimony: defense experts testified the child could have died naturally, while the pathologist ruled asphyxia due to smothering and homicide. The court held the evidence supporting the verdict was not so weak as to be clearly wrong and manifestly unjust and overruled Point of error one.

Testimony of CPS worker about jail statements (Point of error two)

Appellant argued the trial court erroneously admitted CPS worker Tracy Rideaux’s testimony about statements appellant made in jail. The court analyzed whether Miranda and Article 38.22 were required and held that Rideaux was not an agent of law enforcement whose purpose required Miranda warnings under the circumstances, since CPS workers’ duty was to protect children and their paths were parallel and not converged with police in gathering evidence. The court overruled Point of error two.

Extraneous offences and hidden pregnancies/abandonment of Paris (Points of error three, four, five)

Appellant complained about admission of extraneous offenses at the guilt phase regarding hidden pregnancies and abandonment of Paris. The court reviewed trial events where the prosecutor questioned Rideaux and later questioned appellant.

During Rideaux’s testimony, defense counsel objected after questioning about whether appellant hid other pregnancies; the trial court overruled the objection. The decision discussed that the objection under Rule 404(b) was not timely as to the first mention of hidden pregnancies and that appellant failed to preserve the Rule 403 claim.

When the prosecutor questioned appellant about Paris and asked what she did with Paris, defense counsel objected under Rule 404(b) and Rule 403; the trial court overruled both. The record stated that appellant refused to testify about the abandonment of Paris despite repeated questions and instructions.

After appellant testified, the prosecutor recalled Rideaux, and Rideaux testified appellant told her she had placed Paris “out on Hillebrandt Road.” The court held the evidence was admissible to prove motive and intent to kill Malachi because intent was a disputed issue.

Points of error three, four, and five were overruled.

Jury argument misstatement (Point of error six)

Appellant complained the prosecutor misstated the evidence during closing argument at the guilt phase. The decision quoted the prosecutor: [PROSECUTOR]: Did you hear [appellant] when she testified? She used the words "that baby." She didn't use Malachi. She didn't tell you, "I loved Malachi." She didn't say any of that. Defense counsel objected, and the trial court overruled the objection and instructed the jury to recall testimony. The appellate decision noted the state conceded misstatement and held the error did not affect appellant’s substantial rights. Point of error six was overruled.

Jury argument about defense counsel “agenda” (Point of error seven)

Appellant complained that the prosecutor argued that defense counsel told expert Dr. Pustilnik that “we're looking for a defense.” The decision quoted the prosecutor’s argument and objection:

[PROSECUTOR]: . . . The defense controlled how much information got to both of those experts. You heard [the prosecutor] go, "What did you examine? Did you ever examine the victim, or did you ever look at the pictures? Did you ever contact any of the witnesses? Did you contact C.P.S.? Did you talk to the family? Did you talk to the defendant?" Things that Dr. Pustilnik said that you should do. . . . He violated his own protocol. He told you what his agenda was from the beginning. [Pustilnik] goes, "My first impression was homicide." But then the defense tells him, "Well, we're looking for a defense. We're looking-and the defendant's told us that-" [DEFENSE COUNSEL]: Your Honor, I have to object. It's outside the record, and we never told any expert witness we're looking for a defense. It's outside the record and simply not true, Your Honor. THE COURT: Overruled. [PROSECUTOR]: You can ask for Dr. Pustilnik's testimony. Dr. Pustilnik said, in talking to [defense counsel], the defendant told them that the baby had died before she put him in the bag. So, they were looking for a defense. He knew what he needed to do before he came to one of his conclusions. And what did he do? Did he contact, did he talk to Dr. Brown? The answer's "no." Did he contact any of the people involved? No. Did he talk to the defendant? No. Did he talk to the family? And God bless, they've had to go through this.

The appellate decision held the argument was a reasonable deduction from Pustilnik’s testimony as a whole and overruled Point of error seven.

Sentencing

The trial judge sentenced appellant to death after the jury answered special issues set forth in Texas Code of Criminal Procedure Article 37.071, including Article 37.071, § 2(g).

Appellant argued on appeal regarding the sufficiency of the evidence for future dangerousness (Point of error eight). The appellate court held the state did not meet its burden beyond a reasonable doubt that there was a probability appellant would commit criminal acts of violence that would constitute a continuing threat to society, and sustained Point of error eight. The court reformed the sentence to imprisonment for life. The appellate decision described that it was moot to address appellant’s ninth point of error relative to mitigating circumstances.

Aftermath and later charges

A later matter involved an infant daughter named Paris found alive but covered with fire ants.

In June 2003, Paris was found in a ditch south of town on Hillebrandt Road. Andrew Durham testified he heard a baby crying between 6:30 a.m. and 7:00 a.m. on June 6, 2003. He found Paris lying on her back in a ditch approximately fifteen feet from the road. Paris was naked and had fire ants all over her body. Durham alerted his wife, who was a nurse, and she took Paris to the hospital. Paris had extensive ant bites, her eyes were swollen shut, she needed a blood transfusion, and she experienced seizures in the hospital. Tracy Rideaux testified CPS was appointed as Paris’s managing conservator and that Paris was later placed in foster care. Rideaux reported that Paris still had scars from the ant bites on her face, arms, and stomach.

Investigator Beavers testified appellant first told him she wanted Joskin Love to take her to the hospital, but he instead drove them out to Hillebrandt Road and placed Paris on the ground. When Beavers informed appellant that Love had an alibi, appellant admitted Love was not involved. Appellant said she was sorry for what she had done, but she did not express remorse about the child. Beavers testified: “Her biggest concern when she was crying the first time I talked to her was that she was worried about what everybody was going to think and what everybody would say and how mad her momma was going to be at her for coming and talking to us.”

The record described that the decision to pursue child abandonment charges in 2007 related to Paris and that the charge was pending as a second-degree felony charge of child abandonment punishable by up to 20 years in prison. Jefferson County prosecutor Pat Knauth said prosecutors might bring a more severe charge if appellant did not plead to the maximum punishment and instead they could re-indict and try her. The decision also described defense counsel Douglas Barlow and district attorney Tom Maness statements about prosecuting additional cases and the timing.

The record also stated that on June 12, 2003, Berry walked into the sheriff’s office and told deputies the baby was hers. When Berry showed deputies where she tossed a pillowcase in which she wrapped Paris, it was the same trash bin where the dead infant Baby Hope had been found years earlier. DNA evidence later showed Berry was Baby Hope’s mother. The record described that custody of Paris after the capital murder conviction was given to Berry’s great-aunt, Joyce Johnson, and her husband, Edward Johnson, of Beaumont, and that attempts to contact them were unsuccessful.

Evidence and testimony used in the appeals decision (verbatim quotations)

The appellate decision included additional verbatim content from trial and opinion sections. The following quotations were reproduced as written where provided:

• “she knew how to hide a pregnancy”
• “her family had absolutely nothing to do with Baby Hope or what was going on”
• “an ‘easy delivery,’”
• “fine”
• “lying around the house”
• “which was already inside the trash bag”
• “the baby was not kicking or moving”
• “not moving or breathing”
• “scared”
• “if it was against the law to have a baby at home.”
• “asphyxia due to smothering”
• “died from asphyxia due to smothering,”
• “as the baby died, then there was a large release of fecal material from the rectum”
• “multiple areas of meconium (2) aspiration”
• “a significant pneumonia enough to explain this child being very sick and sick enough to die”
• “nonspecific finding”
• “should never be used as proof of anything”
• “obliga[te] nose breathers”
• “the release of fecal material could have occurred at any time”
• “There are always exceptions to this rule.”
• “the ‘child could have died naturally prior to being placed in the bag with the tape on it.’”
• “two good guesses”
• “One is natural, one is homicide.”
• “it’s just as likely that this child died of a natural cause as it is that it died of a homicide”
• “would not be suffocating to this infant”
• “young infants prefer to breathe through their noses.”
• “not proof of any particular mode of death”
• “very common in autopsies of young infants who die in unexplained situations.”
• “this infant died of natural causes related to birth asphyxia and meconium aspiration syndrome, in other words, lung failure.”
• “Whenever I looked at the lungs, the alveolar spaces were open. The baby had neither of those. I cannot call this a pneumonia.”
• “asphyxia due to smothering and a homicide.”
• “The state’s argument clearly asked the jury to assume that (Berry) would be living in the free world”
• “just evil”
• “Our feeling is there are greater offenses that could be indicted here”
• “So I expect she is either going to plead to the max and we will stack that on top of the life sentence, or we're going to re-indict her and try her.”
• “We'll see what we can do to try and resolve it tomorrow”
• “When somebody gets death, they generally don't continue to prosecute you on other cases until they see if the death sentence is going to hold up.”
• “If the court had affirmed that (death) sentence, there's a good possibility we would not be as energetic about trying this other case right now”
• “But it's a nightmare of a case. We wouldn't have dismissed it.”
• “Her biggest concern when she was crying the first time I talked to her was that she was worried about what everybody was going to think and what everybody would say and how mad her momma was going to be at her for coming and talking to us.”

Timeline

• February 19, 2004 — Kenisha Berry was sentenced to death.
• May 23, 2007 — Kenisha Berry was resentenced to life in prison without possibility of parole for 40 years.
• November 29, 1998 — Roy Black discovered Baby Hope in a dumpster; evidence showed Berry placed duct tape across the body and mouth of her 4 day old son, put him in a black plastic trash bag, and left him in a trash dumpster.
• June 6, 2003 — Paris was found crying in a ditch by Andrew Durham on Hillebrandt Road.
• June 12, 2003 — Berry walked into the sheriff’s office and told deputies the baby was hers.
• June 27, 2003 — Tracy Rideaux met with Berry in jail.
• July 10, 2003 — Tracy Rideaux met with Berry in jail again after Berry was charged with capital murder.
• November 13, 2007 — Coverage described Berry expected to appear in court on child abandonment charges stemming from a second infant; Berry’s death sentence had recently been overturned and she faced additional proceedings.

Other details

Kenisha Berry had hidden pregnancies. Rideaux testified that appellant stated she knew how to hide a pregnancy and that her weight fluctuated a lot. The appellate decision discussed her defensive theory that the baby died of natural causes rather than homicide.

The appellate decision included analysis that the combination of being duct taped and covered with a plastic trash bag was consistent with oxygen deprivation. It also included a review of juror consideration of future dangerousness and the meaning of “society” in the Texas capital sentencing context, including that “society” includes both prison and the free world.

During punishment, the state argued for death and repeatedly addressed future dangerousness. The appellate decision described that the state’s argument misstated the special issue by asking the jury to assume dangerousness in the free world rather than the context of prison, and it held that the state did not meet its burden beyond a reasonable doubt.

Joyce Johnson and Edward Johnson were identified in relation to custody of Paris after the capital murder conviction.