State v. Faust

• Decision Date: 06 May 2005
• Docket Number: No. S-04-298.,S-04-298.
• Citation: 696 NW 2d 420,269 Neb. 749
• Parties: STATE OF NEBRASKA, APPELLEE, v. KIMBERLY SUE FAUST, APPELLANT.
• Court: Nebraska Supreme Court

269 Neb. 749
696 NW 2d 420

STATE OF NEBRASKA, APPELLEE,
v.
KIMBERLY SUE FAUST, APPELLANT

No. S-04-298.

Supreme Court of Nebraska.

Filed May 6, 2005.

James R. Mowbray and Jeffrey A. Pickens, of Nebraska Commission on Public Advocacy, and Timothy W. Nelsen, Otoe County Public Defender, for appellant.

Jon Bruning, Attorney General, and Jeffrey J. Lux for appellee.

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

GERRARD, J.

NATURE OF CASE

On April 25, 2000, Shannon Bluhm and Robert Parminter were killed on an Otoe County road. The appellant, Kimberly Sue Faust, was charged in the deaths and convicted of two counts of first degree murder and two counts of use of a weapon to commit a felony. On appeal, we reversed those convictions because the jury had been "exposed to a significant amount of improper and prejudicial testimony." State v. Faust, 265 Neb. 845, 849, 660 N.W.2d 844, 855 (2003). Faust was retried and convicted of one count of first degree murder, one count of second degree murder, and two counts of use of a firearm to commit a felony. Faust's motion for new trial was denied, and she appeals.

TRIAL EVIDENCE

The bodies of Bluhm and Parminter were found by the side of a road near Parminter's house, near Bluhm's burning car. Parminter was killed attempting to rescue Bluhm from the burning automobile. Parminter died of at least two gunshot wounds to the head; Bluhm had stab wounds to the chest and gunshot wounds to the back of the head and to the back.

According to the State's evidence, Bluhm had been intimately involved with Faust's husband, Bruce Faust (Bruce). The parties agree that on April 25, 2000, Faust placed her bicycle into her Jeep Cherokee and drove to a county road near a paved highway, where she parked the Jeep, and from where she rode the bicycle into Eagle, Nebraska. Faust then testified that she arrived in Eagle at about 9:15 or 9:20 p.m. Faust came across Bluhm in Eagle and accepted Bluhm's offer of a ride back to Faust's Jeep. From there, the parties' accounts differ.

Faust testified at trial on January 7, 2004. According to Faust, when they arrived at the Jeep, Bruce was there and got into Bluhm's car on the driver's side. Faust claimed that Bruce was yelling at her, so she ran from the car to her Jeep and drove off. Faust said that she stopped and turned on the Jeep's dome light to look for her mobile telephone and that she saw that her pant leg was soaked in blood, although Faust herself was not bleeding. She testified that she reached under her seat looking for her telephone, but found a revolver that she had borrowed from her father and not yet returned. Faust testified that she accidentally fired the revolver inside the Jeep.

Faust said that she drove back toward Bluhm's car, which was then on fire, and saw someone lying on the road and another person standing nearby. According to Faust, she got out of her car and knelt next to the person in the road, who was Bluhm. Faust said that Bruce then grabbed her hair and began firing a gun. Faust claimed that Bruce tried to shoot her in the head, but that this time, the gun did not fire. Faust said that Bruce then threatened Faust and threw the gun to the ground. Faust testified that she picked up the gun, got in her Jeep, and drove home, where she burned her bloody clothing.

On cross-examination, the State questioned Faust about whether she was outside Bluhm's salon in Eagle at 8:45 p.m.

Q. And the next time that you was [sic] in Eagle, Nebraska, then, was, according to your statement, was at about approximately 9:20 p.m. when you're pushing your bike?

A. Correct.

Q. Did you ever drive your Jeep Cherokee back to Eagle, Nebraska, between 7 p.m. and 9:30 p.m.?

A. Not that I recall.

Q. Okay. Well, wouldn't you know if you did or didn't?

A. I don't believe I did.

Q. Were you sitting outside of Shannon Bluhm's shop in your Jeep Cherokee at about 8:45 p.m.?

A. No.

Q. You're absolutely sure of that?

A. Yes.

The State later asked Faust:

Q. And you're absolutely sure that you were not sitting in your Jeep Cherokee at about 8:45 p.m., looking at Shannon's shop?

A. No, I wasn't.

Q. And I'm talking about the night of April 25 of 2000, when all this happened, you weren't there?

A. No, I wasn't.

The reason for this line of questioning was that on January 1, 2004—a week before Faust's trial testimony—an investigator with the Nebraska State Patrol became aware of and interviewed Belva Anderson, who had been a customer at Bluhm's salon on April 25, 2000. Anderson was called by the State as a rebuttal witness and testified that she had left Bluhm's salon on April 25 at 8:45 p.m. Anderson testified that as she went out the front door, she saw a Jeep that was parked "so close to the door that [she] had a hard time getting out." Anderson testified that there was one person in the Jeep and positively identified Faust as the person behind the steering wheel of the Jeep. Anderson was cross-examined with respect to the length of the sidewalk and the number of parking spaces near the salon, but the credibility of her in-court identification was not directly challenged by cross-examination at trial.

MOTION FOR NEW TRIAL

As previously noted, Faust was convicted pursuant to jury verdict, and Faust filed a motion for new trial. At the hearing on the motion for new trial, Faust called Anderson as a witness. Faust first examined Anderson with respect to the layout of the salon, sidewalk, and parking lot as she recalled it on April 25, 2000. Anderson then said that she had thought that the person she had seen in the Jeep on April 25 had short, blonde hair and blue eyes, but that at trial, Faust had longer, brown hair and brown eyes.

Anderson was then examined with respect to a picture of Faust that Anderson had seen in the Hastings, Nebraska, newspaper prior to Anderson's trial testimony. Anderson said that she had seen the photograph prior to being contacted by law enforcement and that in the photograph, Faust had more closely resembled her appearance at trial as opposed to her appearance in April 2000. In other words, Anderson testified that she knew, prior to her in-court identification of Faust, that Faust had longer, brownish-colored hair. Anderson testified that she had been able to identify Faust at trial "[b]ecause [Anderson] trimmed [Faust's] hair and bleached, it in [Anderson's] mind." Anderson said that she had not been "bother[ed]" by the eye color problem because she had not been "100 percent sure . . . that [Faust's] eyes [had been] blue." Anderson insisted that she was "100 percent sure when [she] testified that that was [Faust]."

Anderson testified that when she was interviewed by law enforcement prior to trial, she had been shown a photograph of Faust's Jeep and had told law enforcement that she recalled the Jeep she saw outside Bluhm's salon as being darker in appearance, but that "it was dusk, you know." Faust then continued her attacks on inconsistencies between Anderson's recollection and the actual physical surroundings of the salon. Anderson still maintained, when asked if she was certain that the person she identified in court was the person she saw on April 25, 2000, "I swear to God. I'm sure."

Anderson then testified about meeting with a defense investigator on February 7, 2004, after she had testified at trial. Anderson admitted that at the time of the interview, she had expressed uncertainty about her prior in-court identification. Anderson said that she had "agonized over this" and "second-guessed" herself. Anderson said, however, that she had become certain again after law enforcement, on February 11, had shown Anderson a photograph of Faust on the night Faust had been arrested. Anderson said that seeing Faust in court, she again had "no doubts."

Faust then examined the criminal investigator from the Nebraska State Patrol who had located and made the initial contact with Anderson. The investigator testified that he had located Anderson after examining Bluhm's appointment book from April 25, 2000, and had interviewed Anderson on January 1 and 2, 2004. The investigator testified that he had not shown Anderson a photograph of Faust prior to Anderson's trial testimony. The investigator testified that he had shown Anderson a photograph of Faust's Jeep on the day of Anderson's trial testimony, as described by Anderson. The investigator said that Anderson had advised him that "she recalled the Jeep being a darker color, and then she also stated that it was dusk, so she was unsure of the color, but she was sure of the make."

The investigator then testified that he asked Anderson to make an identification of Faust on the morning of Anderson's trial testimony. Anderson was asked to take a seat in the courtroom gallery, to see if she could identify Faust as being in the courtroom. The investigator testified that Faust was not in the courtroom at that time. He then left the courtroom. Anderson then emerged from the courtroom and advised the investigator that she was able to recognize Faust. The investigator returned to the courtroom and saw Faust, separated from the gallery by the courtroom bar. Faust was the only woman seated at counsel table. The investigator testified that Faust was wearing civilian clothing and that he had not advised Anderson what entrance into the courtroom Faust would use. The investigator also said that on February 11, 2004, after trial, he had shown Anderson three booking photographs of Faust.

Anderson was then recalled to the stand. Anderson testified that prior to her trial testimony, she had been seated in the courtroom gallery and had seen Faust when she walked in. Faust had come into the courtroom through a different entrance from the public entrance, escorted by a man. Anderson said that Faust had been seated at counsel table with three men.

The district court overruled Faust's motion for new trial. Faust has perfected this timely appeal.

ASSIGNMENT OF...