State v. Dunster

CourtSupreme Court of Nebraska
Citation262 Neb. 329,631 N.W.2d 879
Decision Date03 August 2001
Docket NumberNo. S-00-106.,S-00-106.
PartiesSTATE of Nebraska, Appellee, v. David L. DUNSTER, Appellant.

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

Don Stenberg, Attorney General, and J. Kirk Brown, Lincoln, for appellee.




David L. Dunster, proceeding pro se, pled guilty to the first degree murder of Larry R. Witt and to the use of a weapon to commit a felony. The trial court sentenced Dunster to death for Witt's murder and to not less than nor more than 20 years' imprisonment for use of a weapon. Pursuant to Neb.Rev.Stat. § 29-2525 (Reissue 1995), Dunster's automatic appeal was then docketed with this court.


Sometime in the early morning hours of May 10, 1997, Dunster strangled his cellmate, Witt, with an electrical cord. Witt's body was discovered later that day.

On July 2, 1997, the district court appointed the Lancaster County public defender's office to represent Dunster. Attorney Michael Gooch from that office then appeared on Dunster's behalf. On November 18, 1998, an arraignment was conducted in the district court. Dunster stood mute at the arraignment, and the court entered pleas of not guilty.

On June 8, 1999, the trial judge received a letter dated June 6, 1999, from Dunster. In this letter, Dunster pointed out that the State's list of potential trial witnesses included Lancaster County Deputy Sheriff Joseph Gehr. Gehr's mother was employed as the office manager for the public defender's office. Dunster expressed concern that because of this relationship, Gooch might not vigorously cross-examine Gehr at trial, and that confidential information regarding Dunster's case might have been shared between Gehr and his mother. Dunster requested that the public defender's office be disqualified as his counsel.

In this letter, Dunster also expressed dissatisfaction with the handling of his case by the public defender's office. Dunster claimed the public defender's office was investigating the existence of mitigating factors which could be presented in the event of a sentencing hearing. Dunster asserted that he did not want to present any mitigating evidence at sentencing and that investigating mitigating evidence was contrary to Dunster's instructions to the public defender's office.

On June 17, 1999, the court held a hearing on the issues raised by Dunster's letter. The prosecution, Dunster, and Gooch were present. At the court's request, Dennis Keefe, the elected Lancaster County public defender, testified regarding the confidentiality procedures at the public defender's office. In response to the court's questions, Keefe testified:

MR. KEEFE: ... [W]e have a written office policy about confidentiality, which goes beyond statutory attorney/client privilege and statutory secrets. And Ms. Gehr not only understands that policy, but is responsible for educating all of the other employees in the office when they're first employed. And it is a policy that we strictly enforce. And if anyone violates the policy, it's written into the policy that it is grounds for immediate dismissal. We have never had a problem with that in any way, shape or form, and we will not in this case....
THE COURT: When you say you have a policy, I presume the policy is that people are not allowed to disclose anything from within the office to anybody outside the office, paraphrasing?
MR. KEEFE: Exactly.

The prosecution also called Gehr. Gehr testified that he had been employed by the Lancaster County sheriff's office for approximately 9 years, during which time his mother had been employed as the office manager for the public defender's office. Gehr testified that the extent of his involvement in Dunster's case was limited to his being present at Witt's autopsy and writing a supplemental report on the autopsy. Regarding the possible conflict of interest, Gehr testified as follows:

[Prosecutor:] Have you at any time discussed your attendance at [Witt's] autopsy or anything else you may know about this case with your mother?
[Gehr:] No.
Q Prior to this afternoon, did you know that the Public Defender's Office was involved with this particular case?
A No.
Q Has your mother had any conversation with you about this case?
A No.

After Gehr's testimony, Dunster reiterated his concern that he had "no assurance" that Gehr and his mother might not exchange information about the case. The court took the issue under advisement.

The court then considered the other issue in Dunster's letter, wherein Dunster stated, "`I have instructed them [the public defender's office] not to investigate or present any mitigating evidence at the sentencing phase'.... `I've told my attorneys I do not want them investigating these issues, but they tell me that, notwithstanding my desires, they're going to investigate them anyway.'" The court stated to Dunster, "[Y]our feeling is that they're not following your directions, therefore you want them discharged." Dunster responded, "Exactly."

The court then began discussing this issue with Gooch. During this discussion, Dunster interjected, saying:

[Dunster]: I think I can solve this whole thing.
THE COURT: That would be nice.
[Dunster]: Okay. Disqualify the public defenders; let me withdraw my plea of not guilty; I plead guilty and then you sentence me to death. That's what I'm requesting, because I'd rather have that than live the rest of my life in a cell. Okay?
THE COURT: ... Mr. Dunster, I would not unilaterally discharge the Public Defender's Office. You obviously have a right to fire whomever you want to, and then I would have to make a decision whether—and if you tell me, "I'm going to go ahead and represent myself," then I would have to make a decision on whether you're aware of certain things and whether your decision is freely, voluntarily, knowingly and intelligently made on proceeding to represent yourself.
... I want you to have an opportunity to sit down and talk with Mr. Gooch....
[Dunster]: I will not discuss anything further with the Public Defender's Office.

The court then told Dunster that it would appoint another attorney to talk with him about the ramifications of discharging the public defender's office and representing himself. Dunster responded, "Well, common sense tells me that's stupid to represent myself. I mean, I don't know enough about the law, but I know what I want and then that's it."

The court then appointed the Nebraska Commission on Public Advocacy (NCPA) to advise Dunster on the ramifications of discharging the public defender's office and representing himself. The hearing was continued to allow Dunster time to consult with the NCPA.

The hearing resumed on July 2, 1999. The prosecution, Gooch, Dunster, and counsel from the NCPA were present. During the hearing, Dunster stated he had been advised by the NCPA regarding his desire to discharge the public defender's office and to proceed pro se. Dunster then requested to withdraw "without prejudice" the issues raised in the June 8 letter. The court granted this request, and the public defender's office continued to represent Dunster.

On July 12, 1999, a pretrial hearing commenced regarding 33 motions Gooch had filed on Dunster's behalf. At the start of the hearing, Gooch informed the court that he would shortly be leaving the public defender's office and would not be available when Dunster's case came to trial. Dunster then requested that the NCPA immediately be appointed as his counsel. The court denied Dunster's request and determined that Dunster's case would be reassigned to a different public defender after the conclusion of the present hearing. Dunster responded, "It's a merry-go-round with attorneys ... I don't get along with the Public Defender's Office." The court then reminded Dunster that the issue was not whether Dunster liked the public defender's office, but whether "the attorney can afford you effective counsel."

Various witnesses were then called to testify with respect to the 33 pretrial motions. The last witness called on July 12, 1999, was Investigator Kevin Knorr, who testified on behalf of the State regarding his investigation of Witt's murder. The hearing was then continued until July 13.

When the hearing resumed on the morning of July 13, 1999, the prosecutor disclosed to the court that after Knorr had finished his testimony on July 12, the prosecutor overheard Dunster say to Knorr, "`If I could get out of these mother-fucking cuffs, I would break your mother-fucking neck.'" The prosecutor was concerned about the reoccurrence of such an outburst, the jury's security, and the possible need to shackle Dunster during trial.

After the prosecutor related this information to the court, the following exchange took place:

MR. GOOCH: Your Honor, it strikes me that what the prosecutor is describing could be charged as felony terroristic threats. Pursuant to the code of professional responsibility, I believe that I should withdraw from the case because I think that I'm a potential witness.
THE COURT: Not until anything's filed, are you?
MR. GOOCH: Oh, I think so.
THE COURT: The request of Mr. Gooch to withdraw is denied.

After the court denied Gooch's motion to withdraw, Dunster presented the court with two motions, both prepared by Dunster. The first, a typed motion, requested that the public defender's office be discharged and that Dunster be allowed to proceed pro se. The second, a handwritten motion, requested the court to allow Dunster to withdraw his not guilty pleas and plead guilty to first degree murder and use of a weapon to commit a felony. The court spent the rest of the morning and a portion of the afternoon advising and questioning Dunster regarding his motions. The court questioned Dunster concerning his reasons for discharging ...

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