*1 State Nebraska, appellee, Kimberly appellant. Sue Faust,
Don Stenberg, appellee. Connolly, Gerrard, Stephan,
Hendry, C.J., Wright, Miller-Lerman, McCormack, JJ. and J. Connolly, Faust, Sue of two A convicted the Kimberly jury appellant, firearm of use of a counts of first murder and two counts degree her consecu- court sentenced to to commit a The district felony. murder and 20 on each count of tive terms of life imprisonment to count of use of a firearm to 40 for each years’ imprisonment commit a felony. (1) court erred by allowing pros-
Faust that the district argues instances of conduct about specific ecution witnesses testify character or to rebut her when she acted aggressively violently (2) instruct- that she is a person, witnesses’ testimony peaceful of the when it was not her theory on self-defense ing jury case, of the victims (3) into evidence photographs admitting deaths, hear- (4) to hold a failing their and them before depicting over- officer whether a statement that a police to determine ing argues She also voluntary. heard her make to her father was to the extent assistance of counsel she was denied effective onof the issues now complained trial counsel failed to address misconduct, and that cumu- that there was prosecutorial appeal, lative errors denied her due process. 27-404 under Neb. Rev. Stat.
We determine that §§ introducing from (Reissue 1995), the State is prohibited 27-405 defendant’s bad acts prior instances of a evidence of We also witnesses. the defendant’s character rebut areas of concern about performance address additional exposed at trial. Because involved attorneys we testimony, amount of improper prejudicial significant the testimony erred in allowing conclude that the district court assistance was denied effective to and that she objected We not object her counsel did in the instances when counsel the overwhelming prejudice conclude that because of further trial, must be reversed to a fair the convictions right new remanded for a trial. cause
BACKGROUND 25, 2000, Parminter Bluhm and Robert On Shannon April charged killed on road. Faust was later County were an Otoe husband, that her the deaths. Faust’s of defense was theory Faust, Bruce killed Shannon and Robert. *5 State’s Evidence Parminter, 25, 2000, the Desiree Robert’s
On evening April wife, her horn home in heard and a outside screaming honking the Otoe She looked out the window and saw County. taillights incident, the and he went the of a car. She told Robert about to time, At saw truck drive front that Desiree porch. pickup by. Robert, bed, had went back but thinking nothing happened, saw a front the Desiree then fire in the driver’s side of car. fire, told he went Desiree Robert about and outside. She called the and then also went out- service emergency dispatch he saw vehicle. side. Robert to her that a four-wheel-drive yelled road then saw a vehicle start without rectangular Desiree up on and the car that on fire. She next saw its drive was lights past door of the car and some- burning pull Robert open passenger house, Robert Desiree one out. As carried the toward person headlights vehicle back with its on. rectangular coming saw Robert, her The vehicle between Desiree and stopped blocking sounds, four and the view. She then heard three or “popping” off. at the vehicle drove She did not see other scene. any people She went inside and called the 911 number again.
When members rescue of the and Palmyra Eagle squads arrived on the scene around 10 found bodies of p.m., they Robert and a who was as female later identified Shannon. car, Prism, Shannon’s a white Geo in The flames. engulfed husband, record shows Shannon had been Faust’s dating married, Bruce and Bruce. Faust were but still separated, 25, 2000. April who testified that pathologist performed autopsies of at
Robert died least two wounds to the head. Shannon gunshot chest, wounds to left and had stab both the areas right head, wound to the back of the and a wound to gunshot gunshot fatal A the back. The wound to back was the wound. gunshot that Shannon had “defensive forensic testified pathologist a knife or a that were caused such as blade. by weapon wounds” evidence shows on April The State’s vehicle, Cherokee, of her a Jeep her into the back loaded bicycle near a paved highway. road Faust then drove it to a county Faust, Nebraska. her According Eagle, rode the into bicycle a ride in and obtain back Eagle leave the bicycle was to plan Faust, however, her from her cousin. encountered Jeep Shannon Eagle Shannon’s offer to drive back to her accepted Faust and the State what took after Shannon Jeep. dispute place and Faust drove back to the Jeep.
The State that sometime presented showing before 25, 2000, father, Borden, William April gave Faust a loaded revolver there because was criminal in the activity area and he was concerned about her stated Borden that on safety. 25, Faust called him asked him come to her April house arrived, because she had a When he Borden problem. found *6 table, Faust at a that sitting She said she had picnic crying. gone for a ride and that Shannon a ride bicycle her back to her gave car, She said that after in the Shannon Jeep. getting started and her cussing names. Faust told Borden that Shannon calling and hit her her hair and that she pulled hit Shannon back. Faust car, that she said and Shannon then scuffled outside the that knife, had Shannon a and that Shannon “cut or stuck” the got by Faust knife. told Borden that she next her and into got Jeep got her, the that then that someone and the went gun, grabbed gun home, off inside the When she the in got she a Jeep. placed gun in her freezer Faust later the and he gun, Borden garage. gave it in his truck. also bullet hole in the Borden observed a placed 26, At on Joel glove compartment the about 3 a.m. Jeep. April Patrol, a criminal State investigator with the Nebraska Bergman, at arrived Faust’s residence and stated that he was investigating
a double homicide. the gave Bergman. Borden gun residence,
While he was at overheard a con- Faust’s Bergman and indicated versation between Borden Faust. Borden that the situation was his fault because he had Faust from discouraged fault, it’s Faust “It’s not moving away. replied, your my doing.” Faust, Bruce and Faust’s testified that Faust Ashley daughter, a when she the house on wearing was sweatshirt left gray April 2000, 25, and that when she returned at 10 p.m., about Ashley saw Faust into the bathroom and clothes. go change Ashley a sweatshirt to The sweatshirt was later gray Bergman. gave it, investigators to have bloodstains on but were determined to obtain a DNA from it. sample According Ashley, unable had been a romantic between about upset relationship and Shannon Bruce. her As Faust and searched residence. later arrested
Bergman search, blood on Faust’s Jeep found Bergman a result of arson investigator seat. An on notebook on the front passenger a car.A key knife blade Shannon’s found and serrated scissors was at crime scene. found fit Faust’s Jeep were and the notebook from Faust’s Jeep Blood samples door, on the passenger The showed that blood Jeep tested. results door, door from came driver’s-side driver’s-side passenger notebook, bottom of the driver’s-side Blood from the Robert. door, from seat came Shannon. driver’s-side passenger from more than driver’s-side came ledge Blood from the inside frag- as a contributor. Bullet major one with Shannon person, and bullets recovered from recovered from Robert’s body ments had in her fired that Faust pos- Shannon’s were body gun on 2000. session April vehicle on saw a they parked
Various witnesses testified witness, who was on 2000. One side the road April and white car a Chevrolet saw Cherokee Jeep driving pickup, at road near the home about 9:35 the side of the Parminters’ drove car were steamed and as he windows p.m. up, the door. by, someone opened partially Evidence car off Faust testified that on she April parked Bruce would see it and she because she afraid highway did want her. that when Shannon him find She testified *7 to and in Shannon’s car drove her her Bruce Jeep, pulled up got Faust, with them. to took between According struggle place Shannon, hit in the eye. Bruce and and in the process, got car she She that at one Bruce door and point, stated opened and she out of the car got saw a truck drive She testified that by. on her stated leg. her and that she had blood She went to Jeep had glove compartment Jeep in the gun that she it to Borden. She got she was return intending because off, out, car fire. She she Shannon’s on it went then saw gun fire, there. and Bruce was where the car went back Faust, off. her and the went gun Bruce According grabbed her, to shoot but the gun She Bruce then tried testified that her not to tell that Bruce threatened not work. She stated would home, anyone that when she went 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 tied to Jeep keys her shoelaces and that Bruce had a to her key Jeep.
The defense evidence that a presented passenger Chevrolet which had driven pickup the white car had by previ- stated that when he ously saw the door of the car passenger he saw what he open, assumed to be a man’s arm. The defense also evidence presented that the between Bruce relationship 2, 2000, and Shannon had “cooled off’ and that Bruce by April had a history acting Faust also called various char- violently. acter witnesses. defense,
After Faust her the State called presented several witnesses, rebuttal witnesses. The of Faust’s character witnesses, the rebuttal and other facts are described in pertinent section of this analysis opinion. Closing Arguments Instructions conference, Faust was not at the instruction present but no was made objection about absence. At the instruction con- ference, Faust’s noted that the court had decided to attorney give a self-defense instruction for the Shannon. charge involving Faust’s then a self-defense instruction for the attorney requested Robert. The court denied charge involving the instruction because there nowas evidence of self-defense in Robert’s death. State,
At closing arguments, its rebuttal during argument, out Faust’s character trait for violence and pointed out brought incidents of her specific violent and conduct aggressive that are detailed later in this convicted Faust opinion. on all counts, and Faust was sentenced to consecutive terms life on each imprisonment count of murder and 20 to 40 years’ impris- onment for each count of use of a firearm to commit a felony. Faust appeals.
ASSIGNMENTS OF ERROR Faust assigns, that the district court erred rephrased, (1) into admitting instances of Faust’s con- proof duct and allowing prosecutor inferences drawn argue from conduct, (2) allowing to cross-examine prosecutor
854 conduct, (3) instances of Faust’s about daughter, Ashley, specific reasons for want- to into inquire Ashley’s the prosecutor allowing wrote, her with a letter she with and impeaching live Bruce ing to self-defense, evi- (5) into (4) admitting the on instructing jury were when were the victims that taken they dence photographs had the alive, whether Robert had (6) injuries Desiree asking on when he left house in a depicted postdeath photograph 25,2000; statement “it’s (7) into evidence Faust’s admitting April (8) concerning evidence admitting testimony into my doing,” and allowing prosecutor Borden’s character for peacefulness (9) conducting based that testimony, inferences argue absence, (10) allowing Faust’s instruction conference due errors that denied Faust process. cumulative counsel waived that to the extent her trial Faust also assigns error, was denied effective assist- assignments of her she any ance also that the record further suggests of counsel. She assigns assistance of counsel. she Finally, assigns instances ineffective misconduct. each issue constituted prosecutorial OF REVIEW
STANDARD where Evidence Rules In the Nebraska proceedings apply, of evidence is controlled Nebraska admissibility Rules; only Evidence discretion is involved when judicial rules make such discretion a factor in determining admissibility. Harris, State v. State 263 Neb. 640 N.W.2d Decker, Other Neb. N.W.2d 903 standards of review are included in our of the issues. analysis
ANALYSIS Character Evidence that the district court erred by allowing Faust contends of violent evidence of instances prosecution present is a conduct to rebut her character witnesses’ that she did further that when her counsel She peaceful person. argues evidence, denied assistance of she was effective object The State counters that it entitled prove specific counsel. acted in a violent of conduct that Faust had previously instances of her character because first presented manner she for peacefulness. *9 Faust’s Character Witnesses
Donna a minister who had been McCaugherty, lay counseling Faust, a in testified as character witness for Faust. She stated that her is a truthful calm Faust and On cross- opinion, person. very examination, State if asked she was aware that McCaugherty Bruce, had a Faust at had rammed her previously pointed gun Bruce, vehicle into a vehicle and had thrown tools operated and a steel milk crate She that at him. stated she was not aware of these incidents. Faust, a friend of Faust
Bryan Kennedy, testified that is a calm and He an in testified about incident which pleasant person.
Bruce fired a over Faust’s shoulder and she reacted in a gun calm cross-examination, On manner. he State asked if Kennedy was aware that Faust had a at Bruce. He was not pointed gun of the aware incident. The State then if he asked was aware that had Faust rammed Bruce’s vehicle with her vehicle. He stated that had he heard several versions of that story. sister,
Diana in Seip, testified that March Bruce abused Faust. then physically She heard Borden state he that would Bmce if he “bury” touched Faust stated again. that she Seip Borden would thought harm Bruce if he touched physically Faust one more time. She also testified that Faust is one the most calm she has ever known people and that Faust very truthful. cross-examination, On was asked if she Borden was Seip thought and she peaceful person answered yes.
Borden stated that Faust is a who peaceful person tells the cross-examination, On truth. the State if asked Borden he is gen- but can erally peaceful person fmstrated get enough act out in violence. Borden answered yes. did
Although Ashley about Faust’s character for testify she did peacefulness, about instances when Bmce testify behaved in a violent manner. stated that Bmce once ran her Ashley into vehicle, with his that he hit with a he and that frying pan, at Faust. pointed gun also stated that Ashley Brace once told to shoot Faust herself in the head. Ashley testified on April Brace called the house while Faust gone and she told him that had on a Faust ride. gone bicycle
Without State asked on cross- objection, Ashley examination about a time when she had wanted live with to live wanted reasons she if asked one
Bruce. The State at all screamed [her] Faust “yelled was because with Bruce but would get not yell Faust did time.” Ashley replied Faust was because reason asked if another The State also upset. stated, mom “My answered Ashley about Bruce. “[n]o” lied then asked the State Without objection, lie to me.” does not written, which stated part, had a letter she to read Ashley me, out on her anger always taking to Faust: “She’s referring time,” 24/7, and “she all always yelling complaining, to make dadmy and counselor lies to my [probation officer] look like the bad guy.” chief, a witness and he called Bruce as
In her case in acted aggres- at Faust and that he once became upset admitted down, it causing he slammed a telephone He admitted that sively. wall, a refrig- he slammed a door into to come off of the and that *10 erator, a at gun Ashley. a dent. He denied ever pointing causing a over an incident when Bruce fired gun
Faust testified about which she the incident in her shoulder. She also explained stated her vehicle into Bruce’s vehicle. She rammed allegedly on his brakes to that he was in front of her and slammed driving when him. She discussed other instances cause her to hit also Bruce acted admitted that there were instances Faust violently. and in which she toward Bruce that aggressive was physically she “went both thought ways.” aggression Rebuttal Evidence State’s rebuttal,
On the State called several witnesses who testified about instances of Faust’s violent conduct. Jeff Bluhm husband, (Bluhm), Shannon’s testified that Faust called him at times when she knew Bruce and Shannon were He together. stated that Faust wanted him to become involved in breaking up Bruce and Shannon’s and that she once called him relationship 10 times the same He described the during night. nature calls as furious He stated that he “very aggravated, type.” got a caller identification device and started calls because screening Faust called him so often. Faust’s stated attorney “[objection” calls, at the of Bluhm’s about the but the beginning testimony record shows no discussion with the court about the or objection ruling by court. an when he went to Bluhm next testified about incident pick up at his and Shannon’s children Shannon’s Faust workplace stated drove curb with her vehicle. He that abmptly up, hitting mission,” out got Faust vehicle as if she was “on briskly Shannon, said, walked fuck up “What the are you doing husband, with my bitch?” Bluhm that you testified the situation “aggravated” and that he between Shannon stepped and told Shannon to inside. go to the based attorney objected on 27-404. testimony §
The State that the argued testimony was offered under being 27-404(1) to rebut evidence about Faust’s character for § peace- fulness. The court indicated that it did think 27-404(2) § and the State abandoned an applied, argument that the evidence had independent 27-404(2). relevance under In particular, following conversation occurred: Honor, Your attorney]: I believe
[Faust’s [the State] into some getting materials to that pursuant [§ 27-]404 rule I think we’re entitled to a outside the hearing presence of the jury. Well,
THE COURT: let me out figure where we are. What’s the be ... ? going That there was a
[The confrontation where State]: Kim Faust called Shannon Bluhm names and started filthy her. physically approach Now, clear,
THE COURT: so that just are I’m you this then offering 27-]404(l)A under in rebuttal to the [§ on with to her put regard character trait peace- fulness? Is that what you’re doing? Honor, Yes, Your and also [The there was State]: testi- — Kim
mony Faust that there she had a couple *11 conversations and there never was any problems between motive, her and Shannon. IAnd think it also goes because she’s now testified that someone else did these crimes. Well, motive, THE COURT: if we into get you’re down — into 27-]404(2), I think. If you’re [§ it offering Could I look at [The State]: rule? specific THE COURT: If you’re it to rebut offering the testimony with to her regard character trait of then being peaceful, I 27-]404(2) don’t think (3) and I and can [§ apply, just instruction, that it’s an instruction an give jury merely to rebut. offered being rule, Judge? that specific I look at Could State]: [The number, but Honor, the rule Yes, remember I didn’t Your into to go allowed that... you’re this to show offering I’m offered to that’s been the character showing acts character. rebut that Well, I’ll limited for that purpose, Okay.
THE COURT: the questioning. permit court 27-405. The discussed nor the court
Neither attorney instruction, a limiting and gave jury the testimony allowed received only help was testimony “This which stated part: believe the decide whether you [Faust]’s you for character with regard witnesses who testified [Faust]’s Bryan Donna McCaugherty, those witnesses being peacefulness, and William Borden.” Diana Kennedy, Seip, friend, Gordon Lukes. Without Bruce’s The State also called 2000, he went to the that in February Lukes stated objection, belong- Bmce some of his personal residence to help get Faust “kind of he saw Faust driveway, When Lukes into ings. pulled hollering yelling.” in a total rage, kicking screaming him and told him to “get Lukes stated that Faust then at yelled He was testified fuck out of there because trespassing.” [he] Lukes Faust was Bmce and numerous kicking using profanities. Bruce, a steel milk stated that Faust also threw at things including crate, which hit Brace in the back between the shoulder blades and then bounced and over a track. He described Faust’s up an Lukes testified that Bmce demeanor as “uncontrolled rage.” court calm the incident. After the very during testimony, instmction that was the same substantially gave limiting as the instmction after Bluhm’s given testimony. rebuttal,
On Bmce hit testified Faust had his purposely vehicle with her vehicle. Without Brace also testified objection, that in February at him twice and that pointed gun someone had to grab from her. gun away Principles of Law of the State ability and the accused to evidence of present a character trait and the manner in which that evidence bemay *12 is presented addressed Neb. (Reissue Rev. Stat. by 27-403 § 1995) 27-404 and 27-405. §§
Section 27-404 when character explains evidence is admissi- ble and provides part:
(1) Evidence of a character or a person’s trait of his or her character is not admissible for the of purpose proving that he or she acted in therewith on a conformity particular occasion, except:
(a) Evidence of a trait of his or her pertinent character accused, offered an or by by prosecution rebut the same;
(2) crimes, Evidence of other or acts is wrongs, admissible to the character of a prove in order to person show that he or she acted in therewith. It conformity may, however, be admissible for other such as purposes, proof motive, intent, opportunity, preparation, knowledge, plan, or absence identity, of mistake or accident.
(3) When such evidence is admissible to this pursuant section, crimes, in criminal cases evidence of other wrongs, or acts of the accused be offered in evidence may by if the prosecution to the court clear prosecution proves by evidence that the accused committed the convincing crime, or act. Such wrong, shall first be made outside proof presence any jury. 27-404(l)(a) Although allows the accused to offer evi § dence of a trait of his or her pertinent character and allows the evidence, to rebut that prosecution 27-405 limits the manner in § which the evidence be admitted. Section may 27-405 provides:
(1) In all cases in which evidence of character or a trait admissible, of character of a is person be made proof may as to or by testimony in the reputation by form cross-examination, of an On opinion. is allowable inquiry into relevant specific instances of conduct.
(2) In cases in which character or a trait of character of a claim, defense, is an essential element person of a charge, or also be proof may made of specific instances of his conduct. Section 27-403 also serve to limit the use of character relevant, evidence. Under 27-403: “Although bemay substantially outweighed by value is excluded if its probative issues, misleading or confusion of the of unfair prejudice, danger time, or delay, of undue waste or considerations jury, evidence.” of cumulative presentation needless the character recognized although It uniformly of his her conduct on is relevant to the issue or an accused often *13 occasion, is character evidence normally inadmissi particular See, Trotter, 262 v. 27-404(1). under State ble for that purpose § Sanchez, 443, Neb. v. 257 (2001); N.W.2d 325 State Neb. 632 See, State, 291, v. 486 (1999). Freeman N.W.2d 361 e.g., 597 State, 727, v. Ark. 393 1971); Henson 239 (Alaska P.2d 967 712, Baskett, 2d 47 237 Cal. App. 856 v. People S.W.2d (1965), other grounds, People disapproved Cal. 274 Rptr. 947, 232, 363 66 2d 424 P.2d 57 Cal. Rptr. Cal. Kelley, 469, States, See, 69 United 335 U.S. Michelson v. generally, cases, is (1948). In the State Ct. L. Ed. 168 criminal S. 93 by the of the accused guilt from to prohibited attempting prove Freeman, See, his her initiating e.g., an attack on or character. 27-404(2) the admission of Section supra. specifically prohibits other bad for acts evidence the purpose demonstrating per Sanchez, son’s in a supra. act certain manner. propensity Evidence of bad acts still be might of an accused prior 27-404(2). admissible if it has under But relevance independent § before the evidence under may offer other crimes prosecution court, 27-404(2), it to the trial out of the presence must prove § the clear and evidence that convincing jury “by crime, 27-404(3); accused committed the or act.” wrong, § Sanchez, further the prosecution clearly We that supra. require the the which the evidence is offered state for purpose Sanchez, is court state the for which it received. must purpose “ ‘ must and cor “clearly, simply, instruction supra. Any limiting for which the as to the specific purpose instruct rectly” jury [it] ” Id. at (Emphasis consider evidence.’ may original.) Here, did at 374. the State attempt prove N.W.2d court, that Faust’s acts jury, actually outside presence Instead, the State abandoned any argument occurred. specifically and has not argued that the evidence had relevance independent did not hold a 27-404(2) to this case. The court applies § under whether evidence was admissible or consider hearing 27-404(2), and the 27-404(2). was not instructed on § § we do not Accordingly, address whether of the evidence any See, have been might 27-404(2). admissible under generally, § Sanchez, supra.
The rule
the use
prohibiting
of character evidence to
conduct is not
to the accused in
prove
applied
criminal cases. It
held that the
consistently
accused
seek to
may
establish his or
her
character if
is confined
good
proof
character
particular
traits that are relevant to the conduct involved in the crime with
See,
which he
27-404(l)(a).
or she has been charged.
e.g.,
§
Freeman,
It is
established
supra.
equally
that once the accused
character,
evidence of his
or
presents
good
prosecution
rebut that
evidence. Id.
27-404(l)(a) allows the accused to
Although
present
§
character evidence and allows rebuttal
by
prosecution,
manner in which either
the evidence is limited
party may present
27-405,
27-405. Under
by
either
proof by
§
must be made
party
§
or
unless the character
expressions
reputation
trait
opinion,
claim,
is an essential element of a
or defense. 27-405.
charge,
See,
Herman,
(3d
1978),
United States v.
e.g.,
When character is not an element of the crime or a
defense, 27-405 dictates that the
that can be made
only inquiry
§
into
instances of conduct is
cross-examination
specific
through
27-405;
of the defendant’s character witnesses.
State v.
§
Bourgeois,
(Me. 1994);
as proof
or
the
knowledge
or her
of
of the witness’
his
opinion
the basis
Williams,
511,
See,
v.
111 Ariz.
State
defendant’s reputation.
n.7,
at 637
(1975);
quoting
639 A.2d
Bourgeois,
P.2d 1146
533
Evidence
405.2
Field
Peter L.
Maine
Murray,
Richard H.
&
of a character
1992) (“
of cross-examination
(3d ed.
‘objective
basis
to show an
for the
inadequate
for an accused is
witness
See,
”).
on direct’
witness has testified
to which the
reputation
194,
also,
2d at
Because cross-examination
instead
the act occurred and are
meant
allowed as
proof
not
must
witness’ knowledge,
prosecution
accept
to test the
Thus, if the witness states that he
answer
the witness.
given by
about,
is not aware
act asked
the prosecution may
or she
of the
witnesses with
through
that the act occurred
other
or
prove
See,
extraneous
State v.
e.g., Bourgeois, supra;
evidence.
O’Neal,
(Me. 1981).
A.2d
also
432
1278
This rule
applies
See,
direct examination
e.g., Curry,
of rebuttal witnesses.
supra;
Beno,
State,
(Alaska 1971);
486
supra; Freeman v.
P.2d 967
State,
727,
(1965);
v.
Ark.
Henson
239
[863] essential element Unless character is an of offense be that can made into only charged, inquiry specific is, as of instances of conduct Rules Evidence] [Maine 405(a) of provides, cross-examination the charac- through ter witness.
“The for of reason the rule exclusion lies in the tendency of of triers fact excessive give weight accused against It further respecting any specific illegal activity. tends confuse the the main issue jury concerning guilt of or inno- cence of the offense charged calls the accused upon account for for which he not past wrongdoings being evidence, The tried. main thrust of such as such other unre- accused, lated acts of the is to of wrongful minds pollute jury against defendant----‘If such should admitted, be the defendant be overwhelmed might by preju- dice, instead of tried being the evidence upon affirmatively his showing guilt specific offense with which ishe charged.’” v. City Topeka Harvey, Kan. [188 (1961)]. P.2d 1109 also, State v. Bourgeois, (Me. 1994). See, 639 A.2d Freeman, Henson, supra rule); reasons (discussing for supra (admission instances of conduct to specific character prove raises collateral issues and diverts minds of from matter jurors at hand). 27-405,
Under
the prosecution’s rebuttal
witnesses
may
or
testify only reputation
opinion.
witnesses
not
be used to prove that
instances of
specific
conduct occurred.
See, United
(4th
States v.
512 F.2d
Curry,
1975),
Cir.
cert.
55, 46
50;
denied 423 U.S.
96 S. Ct.
L. Ed. 2d
United States
Beno,
Freeman,
v.
(2d
Henson,
1963);
Section 27-405 limits defendant’s evidence of char acter to or evidence of even opinion But when a reputation. defendant offers instances of or improperly specific his her good conduct, the prosecution may counter by offering Herman, instances bad conduct. United States
864 913, 441 U.S. 99 S. 1978), denied (3d Cir. cert. F.2d 1191
589 Beno, State, Henson v. 2014, supra; Ed. 2d 386 60 L. Ct. Baskett, (1965). See People 856 Ark. 393 S.W.2d 239 712, 719, (char (1965) 47 Cal. 2d Rptr. 237 Cal. App. not,” received or did “whether properly acter witness’ testimony, about testimony specific to rebuttal witness’ door open conduct). court stated: of As one instances once evi- little sense to insist that incompetent makes [I]t admitted, of the error must necessity dence is erroneously the door” so wide that rebut- by “opening be compounded collateral, evi- inflammatory highly prejudicial ting short, of In a small dence enter the minds may jurors. the exac- obtained does not advantage compel improperly where tion of a gross disadvantage penalty, particularly a tarnished verdict is the inevitable result. Henson,
Beno,
See, also,
A defendant can the door” to “open proof specific of conduct if instances he or she testifies and makes specific claims about instances of his or her conduct. In that specific past circumstance, evidence of instances of conduct rebut specific by tal witnesses be admissible to contradict the directly specific Freeman, Henson, claims of the accused. supra; supra. Application to Faust’s Case We now address instances of conduct specific in Faust’s case that presented are raised on We note at appeal. the outset that Faust four character presented witnesses who tes- tified that in their she was a opinion, At least peaceful person. one was allowed to about a testify instance of Faust’s peaceful behavior. Jeff Bluhm
The State called Bluhm as a rebuttal witness. Bluhm testified about an incident when Faust drove up, hitting curb with her vehicle; approached Shannon in a manner if threatening as she mission”; was “on a and called her a “bitch.” Faust’s attorney that the to the The stated evi- objected testimony. prosecution rebut character for dence was used being solely peace- for that only fulness. The court allowed the testimony purpose instruction. gave limiting The law is clear testimony. court erred in allowing cannot instances conduct prosecution prove specific Instead, the through extrinsic evidence. was limited prosecution cross-examination Faust’s character witnesses about whether had of instances in which Faust behaved in a non- they knowledge manner. peaceful
The State contends that evidence of her presenting own *17 good character and about a of by instance testifying specific character, good to of door opened proof specific 27-405, of instances conduct on rebuttal. We disagree. Under § the State must its limit rebuttal statements made by character to witnesses cross-examination and must the answers accept pro- vided by witnesses. Courts have stated concerns repeatedly about the and inflammatory nature of about prejudicial testimony conduct, specific acts bad 27-405 is formulated to § address those concerns.
The State also to the trial court that Faust stated argued there was never any between her and Shannon and problem was admissible to testimony rebut that statement. But the record does not support the State’s argument, the court did not Further, allow the evidence for that an into purpose. inquiry spe- cific instances of conduct on rebuttal is allowed to rebut a only defendant’s denial of a occurrence. specific
Here, the State chose to on rebuttal that the incident prove occurred, which actually is not allowed. Further compounding the error is that none of Faust’s character witnesses were asked on about cross-examination instance when specific Faust got out of car Shannon ain approached threatening manner. Yet Bluhm was asked about that on incident rebuttal. The evi- dence would not be admissible even if Faust’s witnesses had cross-examination, denied acts knowledge but that they were never asked makes State’s that the evi- argument dence was for necessary rebuttal irrelevant.
Bluhm’s testimony served to show only Faust has a bad character trait for violence and acted with that conformity under inadmissible which is on April
character instances defendant’s prior of a criminal 27-404(1). Evidence § Here, show to solely propensity. not be admitted conduct may Faust’s charac- to rebut evidence solely the State presented 27-405(1). The witnesses, under § which is permitted ter evidence for consider the that it could then instructed was jury instruction, Indeed, the 27-405. that is not allowed purpose be used to evidence could that the it informed the jury when witnesses, allowed character determine if believed they to reach consider propensity to jury improper had a If the believed Faust propensity that determination. behavior, character not believe her would they likely for violent 27-404(1) and 27-405 what witnesses. This is specifically §§ Sanchez, erred the trial court See supra. Accordingly, prohibit. about instances of testify when it allowed Bluhm Faust’s conduct. Testimony Unobjected-To Rebuttal
Faust also about that was not objected complains at trial. We first address instances of rebuttal tes- unobjected-to asked during and then address timony unobjected-to questions cross-examination. we address whether Faust’s counsel Finally, was deficient for failing object. rebuttal, un-
During the State’s
following testimony
(1)
objected
or not
to with sufficient
objected
specificity:
Bluhm testified
he
about
calls
received from
harassing telephone
(2)
Faust that he described as a
furious
“very aggravated,
type”;
*18
Lukes testified about
him
an incident when Faust
at
and
yelled
told him
(3)
to
the fuck out” because he
“get
was trespassing;
Bruce,
Lukes also testified that Faust screamed and
at
yelled
him,
him,
kicked
threw a steel milk
at
crate
him in the back
hitting
blades,
between the shoulder
and was in “an uncontrolled rage”;
(4) Bruce testified that Faust
at him twice
that
pointed gun
and
her;
someone had to
(5)
the
from
grab
gun
Bruce testi-
away
fied that Faust had
hit his vehicle with her
purposely
vehicle.
did not
attorney
object to the
A
testimony. party
who fails to make a
to
timely objection
evidence waives the right
on
to assert
appeal
error
the evidence
prejudicial
concerning
received
Harms,
without
State v.
objection.
263 Neb.
643
(2002),
N.W.2d
other
on
264 Neb.
grounds
modified
481;
Harris,
N.W.2d
State
Neb.
Bruce’s on that Faust rebuttal hit his testimony purposely vehicle with vehicle was admissible. Faust testi- previously fied and denied she that hit Bruce’s vehi- specifically purposely Thus, cle. Bruce could about incident testify to rebut Faust’s about what in that specific testimony happened instance. specific however, The rest of the was inadmissible and testimony, should have been objected to.
There were no about the objections testimony telephone calls, and this was also inadmissible. The testimony State could not about inquire instances of conduct rebuttal. Further compounding Faust’s character problem, witnesses were if not asked had knowledge of they calls. telephone
There should also have been objections Lukes’ testimony. some character witnesses Although were asked if were they aware that Faust milk had thrown tools and a steel crate at Bruce, the State was required witnesses’ accept answers not and could seek on rebuttal conduct prove Further, occurred. Faust admitted her direct during examination that she Thus, sometimes behaved aggressively toward Bruce. even if the State were allowed to rebut through instances of spe- cific conduct—which it was not—it had to rebut. nothing Faust had admitted to already behaving aggressively toward Bruce. The State could not seek to on that expand admission intro- conduct, numerous ducing instances of Faust’s violent which the rules to avoid prohibit jury prejudice confusion. We note that Lukes testified that Bruce behaved in a calm manner incident, but the during admitted for that we do not address purpose, whether it would be admissible for that purpose.
Finally, Bruce’s had at pointed gun him was also with inadmissible. As other instances of rebuttal
868 had admit- Faust because was compounded the error
testimony, Bruce. toward aggressively had behaved ted that she of con- instances using from is The State prohibited is circum- of character when the issue character duct to prove was inadmissible. rebuttal testimony the case. The to stantial Unobjected-To Cross-Examination her during for Faust character evidence did not Ashley provide however, State, Ashley cross-examined The examination. direct conduct, if Faust “yelled her asking instances of about specific lied. When Ashley time” and if Faust all the and screamed at [her] wrote stat- no, her with a letter she the State impeached answered all the time.” There Faust and complain[ed]... ing “yell[ed] nowas objection. Had was Ashley improper.
The
cross-examination
State’s
evidence,
have asked
the State could
character
Ashley provided
certain instances of conduct
test
her if she was aware of
The State would then be
required
as a witness.
knowledge
Here,
did not
character
any
her answer.
Ashley
provide
accept
the State barred from
extrinsic
using
Not
only
testimony.
occurred,
instances of conduct
it
evidence to
that specific
prove
in cross-examination about the con-
was barred from engaging
about Faust’s char-
The State’s cross-examination questions
duct.
based on Ashley’s
acter were inadmissible.
impeachment
further
the error. Because
compounded
answers to
questions
were
the impeachment
the State’s initial questions
improper,
occurred. But even if the State had been able
should never have
character,
about Faust’s
it
to ask cross-examination questions
the answer
the witness.
would be
required
accept
given by
and Ineffective
Harmless
Error
Assistance
of Counsel
We next address whether the
errors
unobjected-to
deprived
of counsel and whether
Faust of effective assistance
admission
into evidence of the
was harmless error.
objected-to testimony
her claim of ineffective assistance of
brings
on direct
But such a claim need not be dismissed
counsel
appeal.
because it is made on direct
State v.
appeal.
Cody, 248
merely
Thomas,
N.W.2d 18
See State v.
Neb.
Neb.
(2002),
To establish claim inef right fective counsel at trial or on direct the has defendant the appeal, deficient; burden first show that counsel’s performance is, did that counsel’s that of a performance equal lawyer with Next, and skill in criminal law in the ordinary training area. the must defendant show that counsel’s deficient performance prej See, Thomas, in udiced the defense his or case. State supra; Becerra, v. 261 Neb. 21 (2001). 624 N.W.2d
To
the defendant
prove
must show that
prejudice,
there is a reasonable
that but for
probability
counsel’s unprofes
errors,
sional
the result of the
would have been dif
proceeding
ferent. A reasonable
a
probability is
sufficient
probability
undermine
in
confidence
the outcome.
v.
Strickland Washington,
668, 104
S.
466 U.S.
Ct.
80 Ed. 2d
L.
State v.
Boppre,
(1997),
252 Neb.
The U.S. Court has Supreme explained: determination,
In this making court an ineffec- hearing tiveness claim must consider the totality the evidence before the or Some the judge jury. factual findings will errors, have been unaffected the and factual findings were will affected have been affected different ways. Some will errors have had a effect pervasive infer- evidence, to be ences drawn from the the entire altering evi- isolated, dentiary have picture, some will had an trivial Moreover, effect. a verdict or conclusion only weakly sup- the record is more ported by likely have been affected by errors than one with record overwhelming support.
Strickland, 466 atU.S. 695-96. Accord In Boppre, supra. partic- ular, the Court stated has these although should principles must be on decision, inquiry “the ultimate guide focus of being result is whose the proceeding fairness
fundamental Strickland, U.S. at 696. supplied.) (Emphasis challenged.” con- be noted, court should case the every has the Court “[i]n As of reliabil- whether, strong presumption despite with cerned unreliable because proceeding result of particular ity, counts that our system adversarial process in the of a breakdown results.” Id. just on to produce amount to a significant failing object that by
We conclude evidence, counsel’s per- character negative of improper true This is her defense. deficient prejudiced formance was instance offered specific also improperly she though even has One court for peacefulness. her character conduct to show follows: that arises as described prejudice his or inno- guilt entitled to have defendant is criminal [A] and not offense charged on the specific determined cence series of prior spe- of conviction for a risk possibility *21 career had that his suggested which collectively cific acts lies at which The force of this principle, been reprehensible. a vital part law and seems heart of our criminal system law, definition is in no blunted way of due process of our has, intro- in seeking acquittal, a defendant because merely While relevance. of less than questionable duced evidence which defendant waive rights instances in there are to be for his ... the right which the law invokes protection offense, crim- as the foundation of a very for a specific tried it, we know cannot be one of them. inal trial as 582, Beno, 1963). (2d v. 324 F.2d 589 Cir.
United States counsel failed to object testimony, Because Faust’s before the a series of witnesses jury State was able parade was not inadmissible but also only prejudicial. whose testimony “rebuttal the effect of the tes- testimony,” as Although presented was to demonstrate to the over over that jury, again, timony such, a violent and and as that she Faust was aggressive person, the crime and be had a to commit should convicted. propensity Sanchez, does not allow this. See State v. 257 Our jurisprudence 291, (1999). N.W.2d 361 Neb. 597 is with inadmissible evidence that is When a jury presented confusion, for we and has inflammatory high potential jury
[871] for com
cannot determine whether the defendant
convicted
or whether the jury
the elements
crime
mitting
charged
was a
guilt
generally aggres
determined
because
defendant
and, thus,
to commit the
sive or violent
more
person
likely
Lenz,
692,
(1988)
crime. See State
227 Neb.
N.W.2d 670
v.
419
harm
about defendant’s character was not
(improper
error).
evidence of a defendant’s
bad
less
When improper
prior
involved,
acts is
that the
probability
improper
trial
influenced the
and denied the defendant a fair
unduly
jury
courts,
is so
terms such as “serious
great
using
prejudice”
the error
and “manifest
hold that
overwhelmingly
injustice,”
See,
Pantone,
(3d
not harmless.
United States v.
Here, likely were of conduct that there numerous instances the the rebuttal argument, pros- the State’s polluted jury. During argued about character for and peacefulness ecutor Faust’s spoke where Faust not based on the incidents that she was peaceful “bitch,” crate, tele- made threw a steel milk called Shannon Bluhm, no at Bruce. There were calls to pointed gun phone rebuttal, were made on and because the objections, arguments the The total effect of counsel could not to them. respond Faust’s the last was that the State was able to portion errors spend trial instances numerous specific presenting then Faust’s argue guilt Faust’s violent behavior and use that Thus, where the end of the trial was at jury. it was fresh in the memories and wafted an unwarranted juror’s delibera- innuendo into box before the entered jury just jury States, S. Ct. tions. See Michelson v. United 335 U.S. Here, 168 (1948). wrongly 93 L. Ed. where the was conduct, was allowed to hear so instances many specific of a fair trial in a most fundamental manner. deprived State, however, contends we are unable to review issue of ineffective assistance of counsel direct appeal record review of We because the for a incomplete question. trial attor- It is clear from the record that the court and disagree. failed to 27-405. involved this case read and understand neys result, As a char- counsel initially objected improper and then failed to continue to as more object prej- acter evidence Here, with on. Faust’s attorney, along udicial evidence was piled court, of law. made a fundamental mistake prosecutor trial tactic or strat- was one where reasonable The situation indeed, no could be reasonable strategy was egy employed, unfair trial. be a fundamentally when the result would we have that when considering correct that stated It is deficient, there is a strong a counsel’s whether performance
[873] See,
State v.
acted
counsel
presumption
reasonably.
e.g.,
Zarate,
690,
264 Neb.
651
But this
N.W.2d 215
pre-
rebutted,
can
without
be
and relief
be warranted
sumption
may
an
when a decision
counsel cannot be
evidentiary hearing
by
jus-
Leonardo,
Jackson v.
tified as a result of a
trial
strategy.
plausible
(2d
1998).
Although
appeal
for ineffective assistance of counsel for failure to
object
preju
evidence,
dicial
have
that in some
other jurisdictions
recognized
circumstances,
rare
a reasonable trial tactic or
cannot
strategy
cases,
In
for ineffective assist
exist.
these
courts have reversed
Scullin, 44
See,
Com. v.
ance of counsel on direct
e.g.,
appeal.
Gillette,
9, 687
Com. v.
(1997);
Mass.
1258
33 Mass.
N.E.2d
App.
Cutcher,
427,
State v.
(1992);
600
17 Ohio
N.E.2d 1009
App.
State,
Stone
2d
244
17 S.W.3d
N.E.2d 767
v.
App.
See, also,
Roybal,
State v.
(Tex.
2000).
132 N.M.
App.
failure
(2002)
When for ineffective assistance reversing judgment counsel without an for failure to to evi evidentiary hearing object dence, courts have considered the lack of a appellate plausible incurred, error, nature of the strategy, egregious prejudice errors, See, the effect of and the effect of other trial errors. judicial Scullin, Gillette, Cutcher, supra; supra. For e.g., supra; example, Gillette, assault and with indecent the defendant was charged
in
trial,
admitted without
his
At
daughter.
battery
earlier,
with
while his wife was pregnant
that years
objection
child,
had a daugh-
wife that if she
the defendant told his
another
heard
ter,
he
take
the child’s
away
virginity.
would
witnesses,
it was emphasized
from three separate
statement
On appeal,
and closing arguments.
both
prosecutor’s opening
“
which, from the vantage point
tactics
court noted that
‘[t]rial
*24
amount to ineffec-
have failed do not
can be seen to
of hindsight,
when under-
unreasonable”
unless “manifestly
tive assistance
”
Gillette,
But
N.E.2d at 1011.
at
taken.’
33 Mass. App.
of
error and the
nature
the
considered the egregious
the court also
that the evidence
The court determined
that resulted.
prejudice
falli-
‘ordinary
any
“unquestionably,
was “highly prejudicial”
of the case.” Id.
at
to
it out
keep
would have sought
ble lawyer’
as a matter
The court then concluded
In defense counsel supra, arrests from his client about previous elicited initially testimony assault, incest, that an The state battery. stipulated for entered into evidence. exhibit related to the could be testimony the with both On the court expressed disappointment appeal, the state indicating defense and attorneys, prosecuting evidence of such the into should not have facilitated reception noted, then how- evidence. court damaging prejudicial ever, trial arose to a fair that the harm to the defendant’s right introduce the evi- who chose to the actions of his attorney, from reason, it trial tactical or strategic whatever imagined dence “for Cutcher, State v. record, Ohio to ken.” from the is impossible, The court con- 107, 110, 244 N.E.2d 2d App. if and the fact that of the evidence effect the sidered prejudicial “was the jury for another purpose, admissible were the evidence The court at 769. it.” Id. at 244 N.E.2d dark about in the trial as “other occurred at errors that additional further noted Id. Finally, efficiency.” trial counsel’s questionable examples weakened substantially the defense is that where court noted case, of an of a rule of law basic to the because unawareness result, accused is denied effective assistance of counsel. As a court reversed the conviction.
Here, it is clear from a review of the record that everyone When the initial to wrong page. discussing objection Bluhm’s centered on the testimony, discussion meaning 27-404(1). It is clear from the record that the court and the attor- § 27-404(1), their after that under neys stopped reading inquiry § could rebut Faust’s character prosecution evidence. then They made a mistake of law when failed to consider 27-405 they determine that the evidence could not be rebutted using specific instances of conduct. We further note that had the law been deter- raised, mined the first time the issue was correctly we problem face this case would not exist.
We are also unable
conceive
reasonable trial
any
strat
when defense
would
egy
counsel
choose to allow a continuing
stream of witnesses to
about numerous bad acts of
testify
defendant when such evidence has such a
high potential
prej
udice the
the defendant. We further note that no
jury against
has been offered.
counsel
have
plausible strategy
Perhaps
been concerned that
to the evidence
continuing
would
object
the evidence to the
But such a
emphasize
is not
jury.
strategy
reasonable when the
is so extensive and
objectionable
*25
Further,
damaging.
counsel could have
a
requested
continuing
a defendant
a
objection. Regardless,
has
to be tried for the
right
offense
United
and this cannot be waived.
charged,
Beno,
States v.
(2d
1963).
Finally, as discussed later this there were opinion, other errors at trial. In we note the particular, failure of Faust’s counsel to a object self-defense instruction when self-defense was
876 case, of her and we note the failure to to the use object theory
of victim Faust also raised issues about photographs. prosecuto- rial misconduct and the cumulative effect of trial errors.
We will a court be recognize rarely reviewing provided to make a determination of ineffective assist- opportunity ance of counsel on direct when the issue involves a fail- appeal State, ure to evidence. See Stone v. object prejudicial 17 (Tex. 2000). S.W.3d 348 But where no App. plausible explana- exists, tion for an actions attorney’s defendant to require file a action can be postconviction waste of only judicial time. Leonardo, (2d See Jackson v. 162 1998). F.3d 81 Cir. We con- clude that this one of those rare cases. The performance of deficient, Faust’s counsel was and that deficiency prejudiced her defense in a manner that denied her a fair fundamentally Here, trial. no can strategy overcome the effect of the errors Hence, that occurred. an evidentiary would not hearing change result, resources, would be a waste of judicial would the State’s delay Faust. We opportunity retry conclude that Faust was denied effective assistance of counsel and that the case; reverse, deficiency her prejudiced thus we and remand for a new trial.
For the same reasons that Faust was
prejudiced by
counsel’s failure to
object,
error admitting Bluhm’s that was
to was
objected
not harmless. An error in
or
admitting
trial,
evidence in
excluding
a criminal
whether of constitutional
otherwise,
or
magnitude
is prejudicial unless it can be said that
the error was harmless
beyond
Lenz,
reasonable doubt. State v.
692,
227 Neb.
419 N.W.2d
(1988).
670
Harmless error review looks to the basis on which the
verdict;
rested its
actually
the inquiry is not whether in a trial
error,
that occurred without the
verdict
guilty
would surely
rendered,
have been
but whether the actual guilty verdict ren
dered in the questioned trial was surely unattributable to the
Louisiana,
error. Sullivan
275,
508
U.S.
113 S. Ct.
L.
(1993);
Ed. 2d 182
Trotter,
State v.
262 Neb.
632 N.W.2d
Baue,
(2001);
968, 607
State v.
258 Neb.
N.W.2d
See,
White,
State v.
249 Neb.
877
218,
J.,
(1996) (Gerrard,
Neb.
Here, that the verdict we cannot was unattributable say guilty there was to the error. evidence of Faust Although strong guilt, her evidence to version of what presented explain happened. heard evidence about
jury prejudicial instances Faust’s specific conduct, and much of that evidence was at the end of presented the trial. Faust is entitled to have the view the evidence as it relates to the crime and not tainted charged extraneous evi- by dence about instances violent and behavior. aggressive We determine that Faust is entitled to a new trial. Sufficiency of Evidence trial, error in a criminal
Upon finding reviewing court must determine whether the evidence presented by State was sufficient to sustain the conviction before the cause is Haltom, 767, remanded for a new trial. State v. 263 Neb. 642 (2002); Anderson, 627, N.W.2d 807 State v. 258 Neb. 605 Nelson, (2000). 33, N.W.2d 124 In Lockhart v. 488 U.S. 109 S. Ct. (1988), L. Ed. 2d 265 the Court held that the Double Clause does not Jeopardy forbid retrial so as the long sum of the evidence offered the state and by admitted the trial court, not, whether or would erroneously have been sufficient to See, Sheets, sustain a verdict. State guilty 260 Neb. (2000), 1019, 121
N.W.2d 117
cert.
denied 532 U.S.
S. Ct.
Anderson,
Although
that Faust’s convictions must be
trial,
reversed and the cause remanded for a new
because some of
remaining assignments
error are likely to recur during
retrial,
See,
we address those issues.
State v.
e.g.,
Harney,
Neb.
actually additional assignments We do not address were harmless. errors reoccur on are to retrial. of error unlikely Self-Defense Instruction on instructing that the court erred by jury Faust contends of the was that she did not when her case theory self-defense crimes. commit the that a trial must instruct the jury
We have stated court when any of self-defense there is evidence adduced on the issue a claim of self-defense. State v. which raises legally cognizable Kinser, Urbano, 194, (1999); N.W.2d 256 Neb. 589 144 State v. (1997). 287 To assert 252 Neb. 567 N.W.2d successfully self-defense, of have the claim defendant must a reasonable faith belief in the force and good necessity using be force used defense must immediately justi necessary Urbano, fied under circumstances. Stat. supra; Neb. Rev. (Reissue 1995). 28-1409 Justifications for use of force in § are self-defense defined. See statutorily 28-1409. The defend ant initial to bears the burden evidence which produce supports Urbano, a claim We of self-defense. have stated that if supra. self-defense, the trial evidence does not a claim of support should not be on it. jury instructed Id. An instruction which does not state the law or which to correctly is mis likely confuse or lead the should not be Id. given.
The
Court of Massachusetts has addressed
Supreme
the ques-
tion
whether
defendant
veto
a self-defense instruction
when the
of the case was
theory
that the defendant did not com-
crime,
mit the
but evidence introduced
the state
by
might warrant
Souza,
an instruction. Commonwealth v.
428 Mass.
702
Souza,
N.E.2d 1167
In
self-defense was not the
theory
the defendant’s case. The court noted that a trial court must
instruct on self-defense when the evidence most favorable to the
defendant warrants a reasonable doubt whether the defendant
acted in self-defense. The court stated that a
trial
defendant’s
should be
strategy
The court
respected.
noted that there was also
no
from the defendant or the
request
state
give the instruction.
court, however,
The
determined that the defendant was not preju-
diced
instruction. Other courts have also determined that it
not the
of the
error to instruct
self-defense when it is
theory
case and
is no evidence to
an instruc-
support
defendant’s
there
See,
Silver,
(1940);
tion.
v.
16 Cal. 2d
P.2d
People
Griner,
30 Mich.
Whisenhuntv. Here, did not Faust did not self-defense and seek pro- assert Instead, her duce evidence to a self-defense instruction. support and that of the case was that she did commit crimes theory is on the Bruce was the initial burden perpetrator. proof a self-defense claim. defendant to evidence produce support effort Faust made no to meet burden proof support case. it not her theory self-defense instruction because was Thus, no for a self-defense instruction. there was support that Faust had told Borden
The State presented *28 “cut,” scuffled, the she that Shannon and that got and Shannon to either went off. But evidence not gun presented prove this Rather, the claim. the State presented or a self-defense disprove about had told inconsistent stories evidence to show that Faust the Faust’s night seeking the events of the of murders. Without self-defense, a this does warrant assert a of not theory self-defense instruction. no to meet the defendant makes effort
We determine when and when self- of self-defense the initial burden prove proof case, a the self-defense not the defendant’s theory defense is necessarily A of self-defense theory instruction is not warranted. the defendant harmed inference admission that the involves an or victim, By giving the defendant’s acts were justified. but that of the case theory when the defendant’s self-defense instruction crime, confusing court risks did not that he or she commit court erred by giving conclude that the or We misleading jury. have should attorney and that Faust’s a self-defense instruction Instead, for an asked attorney to the instruction. objected If whether to give the issue additional self-defense instruction. retrial, instruction should instruction arises on an self-defense if it is not Faust’s evidence. given be warranted Photographs Victim into evi- next contends that the court erred allowing victims when were alive. they of the taken dence photographs trial, of Robert Desiree identified During photograph Robert was taken when was alive. The depicts he photograph She also identi- on a couch with his arm around a dog. sitting after his fied a that was taken of Robert’s body photograph if Robert had the death. The State asked her injuries depicted 25, 2000. in the when he left the house on April photograph Desiree answered “[n]o.” identified a of Shannon
Shannon’s mother also photograph She also identified Shannon that was taken when she was alive. were in a taken after her death. The photographs photograph entered into evidence without objection. into evidence rests
The admission of photographs court, trial which must deter within the discretion largely mine their value their against their relevancy weigh probative Clark, effect. State v. 255 Neb. possible prejudicial (1999). See In a homicide prosecution, N.W.2d 184 27-403. for of a victim be received into evidence pur photographs identification, the condition of the or the body to show poses it, nature and to establish and extent of wounds injuries Clark, malice or intent. We have held that a supra. photograph admitted which is at a victim while he or she was trial depicting alive is not offered for a Id. proper purpose.
Here, them when they victims photographs depicting were alive were or not relevant to show condition of body wounds, extent of the or to establish malice or intent. State contends that the were for identifica- necessary photographs tion, but victims were identified in this that both argument ignores taken after deaths. We conclude that the their photographs pho- for a were not offered tographs proper purpose. Photographs *29 not allowed into the victims taken when were alive should be they evidence on retrial. my doing” Statement “it’s Faust’s entitled to a under hearing contends that she was
Faust 1774, Denno, L. 2d 84 S. Ct. 12 Ed. v. 378 U.S. Jackson “it’s was doing” whether her statement (1964), my to determine contends that the issue was waived made. The State voluntarily the statement. In the failed to move to suppress because Faust alternative, a was not hearing required contends that the State made law enforcement officers because the statement was not Faust’s assertion and was used on rebuttal to impeach properly crimes. that she did not commit the trial, about hearing a v. Denno
Before the court held Jackson first went to made to when he various statements Faust Bergman the could The court determined that statements Faust’s residence. time at the she custody used at because Faust was not in be trial and the statements were made. voluntarily made statements trial, while he was at Faust’s resi- At testified that Bergman dence, what she information about Faust voluntarily provided had taken a She him that she had done on 2000. told April had ride and that Shannon up. bicycle picked testified Sheriff’s County Department A with the Otoe deputy make at her home during he overheard Faust about statement He that he 2000. testified hours of early morning April and heard say, was in the kitchen with Faust Borden cross-examination, fault, he On doing.” “It’s not it’s your my statement, said, “This Borden testified that before Faust’s right fault, moving.” talked out is I shouldn’t have my you understanding that his testimony, stating attorney objected statements testify that was about was only Bergman going over- deputy Faust and that statement volunteered by Denno State hearing. heard to a Jackson v. was subject might it told Faust’s statement attorney responded Denno hearing used that a Jackson v. argued be in rebuttal and The court overruled the for rebuttal evidence. needed reasoning. its explaining without objection is precluded of an confession involuntary Admission Const, amend. XIV and Process Clause of U.S. Due by Const, Harris, I, 3. of Neb. art. State due clause process admissible, a statement To be Neb. 640 N.W.2d and voluntar an must have been freely or confession of accused to the voluntariness of made. A defendant who objects Id. ily both the underlying entitled in which hearing statement is the statement are actually factual and the voluntariness of issues Jackson, Harris, See, An supra. determined. supra; reliably he accused move for of a statement that or she suppression Harris, is An to such a state supra. claims involuntary. objection trial, if it is not raised motion before with the ment waived *30 that a after the court entertain motions to exception may suppress commencement of trial when the defendant is by surprised Id.; statements introduced the State. Neb. Rev. Stat. 29-115 by § (Cum. determination 2002). We review the whether to Supp. entertain a motion to made after the commencement suppress Harris, trial for an abuse of discretion. supra.
A Jackson v.
even
Denno
be
hearing may
appropriate
when the
made
rebut
statement is
allegedly involuntary
during
State,
(1986). A
tal.
v.
180 Ga.
Here, we are unable to determine from the record whether the
court denied Faust’s
for a
because it
hearing
erroneously
request
believed that a Jackson v. Denno
was never
for
hearing
required
rebuttal evidence or because it had decided in its discretion to
the motion
Faust’s contentions of
about
deny
despite
surprise
Nor is it clear from the record that the statement
testimony.
introduced
for
Because we
solely
impeachment purposes.
determinations,
are unable to make these
we do not consider the
waived,
issue to be
and we address Faust’s arguments.
statement,
We have held that an accused’s
whether an
confession,
citizens,
admission or a
well
made
as
as
private
law enforcement
must be
as determined
aby
personnel,
voluntary
fact
court for
and as a
ascertained
State
admissibility
by
jury.
Kula,
260 Neb.
We conclude that on issues the voluntariness regarding of Faust’s be statement should addressed before trial. If trial, fails to raise the issue before the court should either hold a if is one later or its a hear- hearing reasons if requested explain is ing denied. Evidence Borden’s Character of
Faust contends that the court erred in allowing testimony Borden’s There no objec- about character for peacefulness. first tion to the We note that Faust raised issue testimony. when abused that Bruce testimony physically Seip provided result, heard Borden state that Faust. As a testified she Seip State he would Bruce if he touched Faust The “bury” again. of both then the issue further on cross-examination explored and Borden. We do not address this issue on but Seip appeal, retrial, should the issue arise we caution the again attorneys the court consider which the is testimony for purpose offered Neb. and whether the is admissible under (Reissue 1995). Stat. Rev. 27-608
CONCLUSION We that the court erred in conclude district allowing testimony a instance in which Faust acted in a violent and about denied manner. We further conclude that Faust was threatening were effective assistance of counsel because there no objections of to evidence of numerous additional instances Faust’s conduct. of ineffective assistance the evidence The admission of in a defense and resulted were to Faust’s prejudicial trial counsel result, a she is entitled to new unfair trial. As fundamentally do not error that we assignments raised additional trial. Faust address, misconduct and an charge prosecutorial including trial or effect of the errors at that the cumulative argument right of counsel denied her instances of ineffective assistance address those assign- While we do not specifically due process. error, we have addressed number we note that ments arise on retrial. issues for a new trial. Reversed and remanded J., Stephan, dissenting. view, affords an In the trial record
I dissent. respectfully my trial counsel for for whether insufficient basis determining ineffective, and there- constitutionally Sue Faust was Kimberly direct Because I I reach that issue in this appeal. fore would not trial, I error at would affirm. occurring no perceive prejudicial reversal because the necessary concludes that majority which the deter- majority trial court received certain testimony *32 of to the rules evidence statutory mines be inadmissible under However, which Nebraska. those rules govern criminal trials in in provide part: a which
(1) not be upon ruling Error predicated a of right admits or excludes evidence unless substantial affected, the and: is party evidence,
(a) In one a ruling admitting timely case is record, stating to of objection or motion strike appears a was not if ground objection, ground specific specific from the apparent context[.] rule, (Reissue 1995). From this we 27-103 Neb. Rev. Stat. § a to an review that prerequisite derive a basic tenet of appellate in admission of evidence is a timely error based upon appeal therefor, unless the are grounds stating grounds objection Harris, 331, 640 v. 263 Neb. from the context. State apparent (2002). timely proper The failure to make N.W.2d 24 from party strike will bar ordinarily or motion to objection Put sim- Id. testimony. error in the admission claiming later from receiving results ordinarily no trial error ply, is objection. which there no
With a
there was no
single exception,
the testi-
objection
on which the
mony
error.
majority
reversible
The
predicates
this
majority
bridges
gap by
accepting
argument
trial counsel
in a
deficient manner
performed
constitutionally
by
failing
object, thereby enabling
to consider
majority
made,
whether an
if
in
would have resulted
objection,
exclusion
The
evidence.
majority acknowledges well-established
claimed,
that where ineffective
principle
assistance of counsel
there is
See,
that counsel acted
strong presumption
reasonably.
Zarate,
State v.
264 Neb.
Today, our court deter- this jurisprudence, mines from on a record direct counsel was defense appeal deficient in not certain constitutionally making evidentiary objections at trial. concludes is “unable to that it majority conceive of reasonable trial which would have any strategy” a decision not to to the supported which elicited object questions Faust’s actions toward her hus- testimony regarding band, estranged Faust, Bruce and Shannon Bluhm during period their extramarital This the real- relationship. reasoning ignores that trial is often ity strategy factors known to trial shaped by counsel which do not in the appear record direct necessarily therefore, are, to a unknown court. appeal reviewing Evidence introduced a criminal trial “will be devoted to during innocence, issues of and the record or guilt resulting many cases will facts to decide either necessary prong not disclose *33 States, 01-1559, v. United No. analysis.” Strickland Massaro 23, (U.S. 2003). 2003 at *4 Although WL 1916677 U.S. Apr. be Court in Massaro that there cases Supreme acknowledged may in of could which a claim ineffective assistance of counsel be record, resolved on the basis of the it also reasoned that appellate 886 resolution on direct appeal,” will be of
“few such claims
capable
*6, and that the “better-reasoned approach”
Indeed,
claims of ineffec-
while we
consider and resolve
we fre-
counsel asserted on direct appeal,
tive assistance
trial
the record is insufficient to per-
decline to do so because
quently
85,
See,
Long,
State
v.
264 Neb.
645
mit
review.
meaningful
e.g.,
McLemore, 261 Neb.
452,
(2002); State v.
623
N.W.2d 553
Lotter,
456,
State v.
(2001);
255 Neb.
586 N.W.2d
N.W.2d 315
889,
denial
rehearing
on
(1998),
255 Neb.
587
591
modified
in
we
N.W.2d 673
In the limited number of cases which
of inef-
or the Nebraska Court of
have reached the issue
Appeals
fective
on direct
the record pre-
assistance of counsel
appeal,
law,
State v.
sented
not
of trial
strategy.
questions
questions
683,
Cody,
(1995)
(finding
248 Neb.
[887] in whether counsel deficient to reach on direct (declining appeal forgoing investigation). presentence
I
no
in this
to
from this sound
depart
practice.
see
reason
case
view,
trial
rea-
In
that
counsel acted
my
strong presumption
be
regarding
cannot
overcome
sonably
by speculation
strategy.
Thus, whether a court can
cannot examine the trial record and
or
“conceive” of a
defense counsel did not
why
reason
object
certain
trial is not the issue. On direct
questions during
appeal,
of
a
court
have no
whether a
reviewing
“may
way
knowing
unusual or
action
counsel had a sound
seemingly
by
misguided
motive or was taken because the
strategic
counsel’s alternatives
Massaro,
were even worse.”
2003 WL
*4.
1916677 at Without
reasons,
considerations,
knowing the
if
strategic
any, upon
which defense counsel acted or refrained from
we are
acting,
not in
simply
position
judge whether counsel’s performance
was
deficient. This determination will
constitutionally
ordinar-
ily
consideration of facts extrinsic
require
trial record.
Our
which
statutory postconviction remedy,
is
designed
determine whether a conviction
be
should
set aside because it
was obtained
a denial or
through
infringement
the constitu-
accused,
tional
rights
an
provides for
eviden-
specifically
tiary
where a
hearing
of denial of
proper allegation
constitu-
tional
cannot be refuted
rights
the files
by
and records of the
original prosecution.
(Reissue
Neb. Rev.
1995).
Stat. 29-3001
§
See, also,
Nesbitt,
State v.
264 Neb.
ineffective assistance trial counsel on this appeal. direct error only assigned a trial involved preserved objection (Bluhm) Jeff Bluhm testimony a confrontation regarding between Faust and Shannon in or 2000.1 January February agree with the this was majority testimony not admissible on the narrow issue of Faust’s character under Neb. Rev. Stat. 27-405 § (Reissue 1995). I believe that While this have been motive, thus of Faust’s the issue relevant
independently 1995), it 27-404(2) (Reissue Rev. Stat. under Neb. admissible and the procedures for this purpose, offered ultimately was N.W.2d Sanchez, Neb. in State outlined Nevertheless, error that the conclude I followed. were not (1999), a reason- harmless beyond Bluhm’s in admitting doubt. able the jury which basis on to the looks error review
Harmless in a trial verdict; whether is not the inquiry its rested actually *35 have been would surely verdict error a guilty without the occurred in rendered rather, verdict rendered, but, actual guilty whether the to the error. State unattributable surely trial was the questioned Brouillette, State v. Duncan, N.W.2d 620 ante p. review my Based upon N.W.2d 876 ante p. was surely verdict record, that the guilty I am satisfied the to evidence relating erroneous admission unattributable to the the weeks to prior several with Shannon Faust’s confrontation for two reasons. this conclusion I reach homicides. an infer-
First, in raised the evidence question the extent that to violence, it is cumulative. is a capable ence that Faust person the admitted that physical Faust acknowledges, the majority As admitted “went both ways” in her sometimes marriage abuse Bruce. toward was aggressive incidents in which she physically however, of the char- the admission I regard More importantly, reflects over- because the record acter evidence as harmless which is not in any way dependent evidence of guilt whelming evidence, State DNA the character evidence. Utilizing upon the the exterior and interior of that blood found on proved that the victims. It is undis- of Faust’s vehicle was driver’s side which were fired from the was handgun that the fatal shots puted the crimes were commit- in Faust’s before and after possession she was when the shootings ted. Faust admitted that present the that she occurred and that the shots were fired from handgun carried in her vehicle. Bruce victims while she
Faust’s defense was that shot the substantially watched. The State was able to helplessly impeach this On cross- testimony. without resort to Bluhm’s testimony examination, her was incon- Faust admitted that trial testimony sistent with the two accounts she had given regarding prior the also establish events at crime scene. The State was able to trial certain inconsistencies between Faust’s known time she and Faust’s sequences. According testimony, Shannon arrived at rural location where Faust had left her vehicle sometime after 9:20 This location was p.m. approxi- 5 miles from she and mately testified as Eagle. vehicle, Shannon sat and talked Shannon’s Bruce arrived and entered the vehicle from front driver’s side. Faust testified that she and Bruce had an at time led to a argument which altercation inside vehicle physical occurring between vehicle, three of them. Faust testified that she then exited the vehicle, entered own and drove a short distance After away. minutes, several Faust returned where area Shannon’s vehicle was and observed that the vehicle parked fire.
Bruce denied In committing murders. direct contrast to records testimony, reveal that Bruce was at his telephone home in Eagle his on the talking daughter between telephone 9:22 and 9:29 p.m. Witnesses observed the burning vehicle between 9:25 and p.m. 9:35 Desiree Parminter reported burn- vehicle in a ing 911 emergency call to the Otoe dispatch County sheriff’s office that was received at On 9:43 approximately p.m. evidence, this could have chosen not to reasonably believe that Bruce traveled 5 miles from his home approximately scene, vehicle, to the crime entered Shannon’s in a engaged *36 vehicle, altercation with physical Faust and Shannon in the vehicle, then set fire to Shannon’s all within what at most would amount to a 14-minute time period. Most importantly, could have arrived such at conclusion without considering admitted erroneously character evidence in manner. any reasons, For these I would affirm the of the district judgment court.
Hendry, C.J., joins in this dissent.