State v. Castor

• Decision Date: 27 August 1999
• Docket Number: No. S-98-510., No. S-98-509
• Citation: 599 N.W.2d 201,257 Neb. 572
• Parties: STATE of Nebraska, appellee, v. Wilma L. CASTOR, appellant.
• Court: Nebraska Supreme Court

599 N.W.2d 201

257 Neb. 572

STATE of Nebraska, appellee, v. Wilma L. CASTOR, appellant.

Nos. S-98-509, S-98-510.

Supreme Court of Nebraska.

August 27, 1999.

James R. Mowbray and Jerry L. Soucie, of the Nebraska Commission on Public Advocacy, Lincoln, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

STEPHAN, J.

In these consolidated cases, Wilma L. Castor appeals from judgments of conviction on seven separate felony counts and one misdemeanor count. Case No. S-98-510 includes Castor's appeal from her convictions on one count of first degree murder, three counts of forgery, one count of use of a deadly weapon to commit a felony, one count of being a felon in possession of a firearm, and one count of unauthorized use of a financial transaction device. In case No. S-98-509, Castor appeals from her conviction on an additional count of forgery. In case No. S-98-509, we reverse, and remand for a new trial. In case No. S-98-510, we affirm in part, and in part reverse and remand to the district court for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Introduction.

At approximately 6 p.m. on December 10, 1996, Tom Brown was found dead at the bottom of a roadside ditch in rural Buffalo County, northwest of Kearney, Nebraska. The body was dressed in jeans over blue sweat pants, a yellow pullover shirt, and gray socks. The victim was situated on his back, partially under a barbed wire fence, with his right arm extended over his head, which was lower than his legs because of the slope of the ditch. Dried blood extended from his nose to the lateral corner of his right eye. Brown's shirt was pulled up and twisted, and his jeans and sweat pants were pulled down. There were no shoes or coat on the body. Brown's glasses and several spots of blood were found near the edge of the ditch.

Dr. Jerry Jones performed an autopsy and determined that Brown died as the result of three .22-caliber gunshot wounds, one in the right side of the neck and two in the chest. Jones was unable to state a precise opinion as to the time of Brown's death, but testified that it could have been as early as Thanksgiving Day, which fell on November 28, 1996. Jones opined that based upon the absence of lividity in the body, Brown did not die at the site where his body was found, but, rather, died elsewhere and was subsequently moved. Dr. Robert Bux, a pathologist who testified on behalf of Castor, stated that in his opinion Brown was killed at the site where his body was found and his death could have occurred up to 3 days after Thanksgiving Day.

Relationship Between Castor and Brown.

Castor and Brown were married in 1967 and had two surviving sons, Tom Brown, Jr., and Edward Brown (Eddy). They divorced in 1975 but remained in periodic contact. Both remarried several times. Browns last marriage was to Diane Guider, who died in 1993. At the time of her marriage to Brown, Diane Guider had three sons and one daughter by prior marriages: Terry Anderson, Troy Guider, Todd Guider, and Tracy Person.

Following the dissolution of her marriage to Brown, Castor had two marriages which also ended in dissolution. She and Eddy eventually moved to Reno, Nevada, where they lived together. After military service, Tom Brown, Jr., resided in Kearney. He was incarcerated in Lincoln at the time of his father's death.

Castor and Eddy moved from Reno to Nebraska in 1996. Beginning in approximately July of that year, Castor lived with Brown at his home in Kearney, ostensibly for the purpose of assisting him with the repair and maintenance of his home. Castor slept in a second-floor bedroom, and Brown usually slept on the sofa in the living room on the first floor of the home. Brown's stepson Todd Guider was also living with Brown from about May to October 1996, and he occupied another second-floor bedroom. Eddy stayed at Brown's home in Kearney during 1996 except for periods when he was visiting his girl friend, who resided in Oregon.

Burglary Report.

On October 9, 1996, Castor notified the Kearney Police Department that Brown's home, where she then resided, had been burglarized. A police officer who responded to the report was unable to find signs of a forced entry. He observed that the screens in the two upstairs bedrooms where Todd Guider and Castor stayed had approximately 12-by-12 cutouts and that Castor's bedroom had been ransacked. Castor informed the responding officer that her short-barreled, .22-caliber revolver and an unknown quantity of change had been stolen from her bedroom. Castor informed the officer that she thought perhaps Todd Guider committed the burglary because on October 8, a young woman had stopped at the house and told her that Todd Guider owed money for drugs. Castor also told the officer that she had been receiving unusual telephone calls. The officer did not take any physical evidence into custody, did not take fingerprints, did not take any photographs, and did not otherwise examine the crime scene. He told Castor to tell Todd Guider that he wanted to talk to him but made no other attempt to contact or interview Todd Guider. Later in the day, Castor reported the serial number of her missing handgun to the police. The Kearney Police Department closed the burglary investigation that same day.

Events of Thanksgiving Week 1996

Brown had been a railroad worker for approximately 28 years prior to his death. During 1996, he normally worked away from home at a jobsite from Sunday afternoon until Thursday evening. During the week of Thanksgiving 1996, however, Brown was at home on vacation.

On Tuesday, November 26, 1996, shortly after 5 p.m., Diane Hixon of Phillips 66 in Bartlesville, Oklahoma, called Brown's residence to inquire about a past-due account. She testified at trial that the party answering the telephone identified himself as "Tom Brown" and denied having a Phillips 66 credit card. Janet Whaley, a credit analyst with Phillips 66, then made another call to Brown's residence and, at the request of a party identified as "Tom Brown," closed the account. Phillips 66' records showed that the account address when opened on September 17, 1996, was 512 West 21st Street in Kearney, which was the address of Brown's home. On September 30, the address was changed at the request of a telephone caller to a Kearney post office box utilized by Castor. On November 29, check No. 2639 was written on Brown's account to Phillips 66 for $194.08.

During a telephone conversation on November 26, 1996, Brown invited his nephew Todd Michalski and his family to have Thanksgiving dinner at his home. Michalski accepted, but circumstances prevented him from traveling from his home in Roscoe, Nebraska, to Kearney on Thanksgiving Day. Thus, the only people present at Browns home on Thanksgiving Day were Brown, Castor, and Eddy. Eddy testified that when he went to bed that evening, Brown and Castor were watching television.

Eddy testified that when he awoke early the next morning, Castor was already awake and that he did not look for Brown. Castor and Eddy then went to a restaurant for breakfast. Castor stated that when they returned, Brown was awake and suggested that they all go Christmas shopping, which she thought to be unusual because Brown disliked shopping. According to Castor, the three then embarked upon a shopping trip.

At 8:31 a.m. on November 29, 1996, Brown's Visa check card was used to purchase a childs comforter, tights, cigarettes, and a gasoline additive at a store in Kearney. At 9:21 a.m. on the same day, the card was used to purchase a dropcloth, toys, jeans, and a hinge hasp at another Kearney store. Later, at 11:09 a.m., the card was used to purchase insulin, toothpaste, and hand soap at a third store in Kearney. In a videotaped statement given to police on December 15, Castor said that Brown was present and authorized all the Visa transactions, although she actually signed his name. The record includes surveillance videotapes from one of the three stores, which do not positively identify the person making the purchases or those present when the purchases were made.

At 10:38 a.m. on November 29, 1996, Castor and Eddy deposited two $2,000 checks which had been written on Brown's account into their joint checking account at a Kearney bank and withdrew $300 in cash, for a net deposit of $3,700. In her statement, Castor represented that on the night before Thanksgiving Day, Brown instructed her to write the checks to herself and Eddy as gifts.

Castor stated that after the shopping trip and the visit to the bank, she, Eddy, and Brown returned to Brown's house. She stated that while she was unloading the car, she heard Brown say "I'll be a son of a bitch," and then observed him walk toward a pickup which was parked on the street in front of his house. She did not pay much attention to what he was doing, but heard him say he was going to work on the truck. She saw only the rear and side o the truck and described it as "brown with primer on it." Castor stated that after Brown got into the truck, she never saw him again. Eddy and Castor installed the hinge hasp, purchased earlier that day, on the basement door sometime that afternoon.

Angela Lauby testified that Castor was present at Kearney Keno, where they both worked, before 3 p.m. and again around 6 p.m. before Castor's shift began on November 29, 1996. Lauby testified that she and Castor were friends and that Castor had told her she hated Brown. Lauby recalled Castor telling her that Brown did not know about the Phillips 66 card. Lauby testified that on the same day Castor told her about the credit card, Castor also showed her Brown's checking account, which reflected a balance of more than $10,000, and said she was angry because he "cut her off" despite the money in his account. According to Lauby, Castor and Brown did not have an intimate relationship, and...