State v. Faust
| Citation | 660 N.W.2d 844,265 Neb. 845 |
| Decision Date | 09 May 2003 |
| Docket Number | No. S-01-615.,S-01-615. |
| Parties | STATE of Nebraska, Appellee, v. Kimberly Sue FAUST, Appellant. |
| Court | Supreme Court of Nebraska |
James R. Mowbray and Jeffery A. Pickens, of Nebraska Commission on Public Advocacy, and Timothy W. Nelsen, Otoe County Public Defender, for appellant.
Don Stenberg, Attorney General, and Martin W. Swanson for appellee.
A jury convicted the appellant, Kimberly Sue Faust, of two counts of first degree murder and two counts of use of a firearm to commit a felony. The district court sentenced her to consecutive terms of life imprisonment on each count of murder and 20 to 40 years' imprisonment for each count of use of a firearm to commit a felony.
Faust argues that the district court erred by (1) allowing prosecution witnesses to testify about specific instances of conduct when she acted aggressively or violently to rebut her character witnesses' testimony that she is a peaceful person, (2) instructing the jury on self-defense when it was not her theory of the case, (3) admitting into evidence photographs of the victims depicting them before their deaths, and (4) failing to hold a hearing to determine whether a statement that a police officer overheard her make to her father was voluntary. She also argues that she was denied effective assistance of counsel to the extent her trial counsel failed to address the issues now complained of on appeal, that there was prosecutorial misconduct, and that cumulative errors denied her due process.
We determine that under Neb.Rev.Stat. §§ 27-404 and 27-405 (Reissue 1995), the State is prohibited from introducing evidence of specific instances of a defendant's prior bad acts to rebut testimony of the defendant's character witnesses. We also address additional areas of concern about the performance of the attorneys involved at trial. Because the jury was exposed to a significant amount of improper and prejudicial testimony, we conclude that the district court erred in allowing the testimony Faust objected to and that she was denied effective assistance of counsel in the instances when her counsel did not object. We further conclude that because of the overwhelming prejudice to Faust's right to a fair trial, the convictions must be reversed and the cause remanded for a new trial.
On April 25, 2000, Shannon Bluhm and Robert Parminter were killed on an Otoe County road. Faust was later charged in the deaths. Faust's theory of defense was that her husband, Bruce Faust, killed Shannon and Robert.
On the evening of April 25, 2000, Desiree Parminter, Robert's wife, heard screaming and a horn honking outside of her home in Otoe County. She looked out the window and saw the taillights of a car. She told Robert about the incident, and he went to the front porch. At that time, Desiree saw a pickup truck drive by. Robert, thinking nothing had happened, went back to bed, but Desiree then saw a fire in the front driver's side of the car.
Desiree told Robert about the fire, and he went outside. She called the 911 emergency dispatch service and then also went outside. Robert yelled to her that he saw a four-wheel-drive vehicle. Desiree then saw a rectangular vehicle start up the road without its lights on and drive past the car that was on fire. She next saw Robert open the passenger door of the burning car and pull someone out. As Robert carried the person toward the house, Desiree saw the rectangular vehicle coming back with its headlights on. The vehicle stopped between Desiree and Robert, blocking her view. She then heard three or four "popping" sounds, and the vehicle drove off. She did not see any other people at the scene. She went inside and called the 911 number again.
When members of the Palmyra and Eagle rescue squads arrived on the scene around 10 p.m., they found the bodies of Robert and a female who was later identified as Shannon. Shannon's car, a white Geo Prism, was engulfed in flames. The record shows that Shannon had been dating Faust's husband, Bruce. Bruce and Faust were separated, but still married, on April 25, 2000.
The pathologist who performed the autopsies testified that Robert died of at least two gunshot wounds to the head. Shannon had stab wounds to both the left and right areas of the chest, a gunshot wound to the back of the head, and a gunshot wound to the back. The gunshot wound to the back was the fatal wound. A forensic pathologist testified that Shannon had "defensive wounds" that were caused by a weapon such as a knife or a blade.
The State's evidence shows that on April 25, 2000, Faust loaded her bicycle into the back of her vehicle, a Jeep Cherokee, and drove it to a county road near a paved highway. Faust then rode the bicycle into Eagle, Nebraska. According to Faust, her plan was to leave the bicycle in Eagle and obtain a ride back to her Jeep from her cousin. Faust, however, encountered Shannon in Eagle and accepted Shannon's offer to drive her back to her Jeep. Faust and the State dispute what took place after Shannon and Faust drove back to the Jeep.
The State presented evidence showing that sometime before April 25, 2000, Faust's father, William Borden, gave Faust a loaded revolver because there was criminal activity in the area and he was concerned about her safety. Borden stated that on April 25, Faust called him and asked him to come to her house because she had a problem. When he arrived, Borden found Faust sitting at a picnic table, crying. She said that she had gone for a bicycle ride and that Shannon gave her a ride back to her Jeep. She said that after getting in the car, Shannon started cussing and calling her names. Faust told Borden that Shannon hit her and pulled her hair and that she hit Shannon back. Faust said that she and Shannon then scuffled outside the car, that Shannon had a knife, and that Shannon got "cut or stuck" by the knife. Faust told Borden that she next got into her Jeep and got the gun, that then someone grabbed her, and that the gun went off inside the Jeep. When she got home, she placed the gun in a freezer in her garage. Faust later gave Borden the gun, and he placed it in his truck. Borden also observed a bullet hole in the glove compartment of the Jeep. At about 3 a.m. on April 26, Joel Bergman, a criminal investigator with the Nebraska State Patrol, arrived at Faust's residence and stated that he was investigating a double homicide. Borden gave the gun to Bergman.
While he was at Faust's residence, Bergman overheard a conversation between Borden and Faust. Borden indicated that the situation was his fault because he had discouraged Faust from moving away. Faust replied, "It's not your fault, it's my doing."
Ashley Faust, Bruce and Faust's daughter, testified that Faust was wearing a gray sweatshirt when she left the house on April 25, 2000, and that when she returned at about 10 p.m., Ashley saw Faust go into the bathroom and change clothes. Ashley gave a gray sweatshirt to Bergman. The sweatshirt was later determined to have bloodstains on it, but investigators were unable to obtain a DNA sample from it. According to Ashley, Faust had been upset about a romantic relationship between Shannon and Bruce.
Bergman later arrested Faust and searched her residence. As a result of the search, Bergman found blood on Faust's Jeep and on a notebook on the front passenger seat. An arson investigator found scissors and a serrated knife blade in Shannon's car. A key that fit Faust's Jeep was found at the crime scene.
Blood samples from Faust's Jeep and the notebook were tested. The results showed that blood on the Jeep passenger door, driver's-side door, and driver's-side passenger door came from Robert. Blood from the notebook, the bottom of the driver's-side passenger door, and the driver's-side seat came from Shannon. Blood from the inside driver's-side ledge came from more than one person, with Shannon as a major contributor. Bullet fragments recovered from Robert's body and bullets recovered from Shannon's body were fired by the gun that Faust had in her possession on April 25, 2000.
Various witnesses testified that they saw a vehicle parked on the side of the road on April 25, 2000. One witness, who was driving a Chevrolet pickup, saw a Jeep Cherokee and a white car on the side of the road near the Parminters' home at about 9:35 p.m. The windows of the car were steamed up, and as he drove by, someone partially opened the door.
Faust testified that on April 25, 2000, she parked her car off the highway because she was afraid Bruce would see it and she did not want him to find her. She testified that when Shannon drove her to her Jeep, Bruce pulled up and got in Shannon's car with them. According to Faust, a struggle took place between Bruce and Shannon, and in the process, Faust got hit in the eye. She stated that at one point, Bruce opened the car door and she saw a truck drive by. She testified that she got out of the car and went to her Jeep and that she had blood on her leg. She stated that she had the gun in the glove compartment of the Jeep because she was intending to return it to Borden. She got the gun out, it went off, and then she saw Shannon's car on fire. She went back to where the car was on fire, and Bruce was there. According to Faust, Bruce grabbed her and the gun went off. She testified that Bruce then tried to shoot her, but the gun would not work. She stated that Bruce threatened her not to tell anyone and that when she went home, she did not think anyone was dead. Faust said that she wore a red sweatshirt on the night of the murders. She also stated that she had her Jeep keys tied to her shoelaces and that Bruce had a key to her Jeep.
The defense presented evidence that a passenger in the Chevrolet pickup which had driven by the white car had previously stated that when he saw the...
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