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State v. Casterline

Supreme Court of Nebraska

March 18, 2016


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          Appeal from the District Court for Webster County: STEPHEN R. ILLINGWORTH, Judge.

         Charles D. Brewster, of Anderson, Klein, Swan & Brewster, for appellant.

         Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

         HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and STACY, JJ., and RIEDMANN, Judge. MCCORMACK, J., not participating.


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          [293 Neb. 43] Wright, J.

         I. NATURE OF CASE

         Andrew Casterline appeals from his convictions following a jury trial for first degree murder, use of a deadly weapon to commit a felony, and burglary. He claims the evidence was insufficient to support his convictions for the first two offenses. He also assigns that the district court erred in admitting certain evidence and in including certain language in its instructions to the jury. For the reasons set forth below, we affirm.


         Casterline moved to Guide Rock, Nebraska, with his mother, Shelley Casterline (Shelley), who wanted to start a new life after she was released from prison. Shelley had maintained an " on again, off again" relationship with Ronald Jamilowski, the father of her twin daughters. Casterline lived with Shelley and Jamilowski for a few months, but then moved into the house next door, which was another property Jamilowski owned. Jamilowski's mother, Virginia Barone, who was the victim, lived nearby.

         The relationship between Casterline, Shelley, Jamilowski, and Barone was quite volatile. Although they saw each [293 Neb. 44] other daily, none of them got along very well. Shelley and Jamilowski had tried to rekindle their relationship, but they argued and got into physical altercations frequently, due mostly to Jamilowski's drinking. Shelley and Barone often fought about money and about Shelley's relationship with Jamilowski, of which Barone apparently did not approve. Casterline got into arguments with Shelley, and he was known to have " hated" Jamilowski.

         1. Events Surrounding Killing

         During the early evening on October 3, 2013, Casterline went to Hastings, Nebraska, to run errands with his friend, Trevor Marihugh, who lived across the street from Casterline, Shelley, and Jamilowski. They took Marihugh's vehicle, because Casterline's was not working. Both Casterline and Marihugh were abusing prescription medications, and Marihugh ended up getting arrested for driving under the influence. Around 3 a.m. the next day, Casterline called Shelley and said that he needed a ride home from Hastings because Marihugh was in jail. Shelley woke up Jamilowski

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and Barone, because Barone was the only one with a car, and the three of them drove to Hastings to pick up Casterline. On the way back to Guide Rock, Jamilowski and Casterline were fistfighting in the back seat, while Shelley and Barone were arguing in the front seat. Barone even pulled over at one point and tried to throw Shelley out of the vehicle. They continued to Guide Rock, and they all went to their respective homes.

         Just after 9 a.m., Casterline was seen using Barone's automatic teller machine (ATM) card at a bank in Superior, Nebraska. A bank employee testified that she went out to service the ATM and observed a young man standing at the ATM and an older white or light-colored vehicle parked close by. She identified Casterline as the man at the ATM. She observed a middle-aged woman sitting in the passenger seat, who was later determined to be Shelley, and there were various things in the back seat, including a guitar case. The bank employee testified that it was very obvious that Casterline did [293 Neb. 45] not want her to see what he was doing. After about 5 minutes, the woman in the passenger seat got out and spoke to Casterline, at which point they both got back into the vehicle and drove away.

         The transaction history for Barone's account confirmed that several transactions occurred on Barone's account on the morning of October 4, 2013. A " debit balance inquiry" occurred at 9:18 a.m., followed by a withdrawal of $500 at 9:19 a.m. There were several more attempted withdrawals over the next couple of minutes, but those attempts were denied due to the $500 daily ATM withdrawal limit. The bank employee explained that in order to withdraw cash from an ATM using a debit card, one must have the personal identification number (PIN) for that card, which is selected by the card owner and is not retained by the bank. In the event a customer loses his or her PIN, the card must be canceled and a new card must be ordered, because it is not possible for the bank to retrieve a PIN; that information is destroyed as soon as the card is created.

         Throughout that day, Casterline and Shelley stopped at various places to get more money--including the Wal-Mart stores in Hastings; Grand Island, Nebraska; and York, Nebraska--where they used Barone's debit card to make numerous small purchases and got large sums of cash back with each purchase. Between their purchases and withdrawals, Casterline and Shelley stole more than $2,000 from Barone, which nearly emptied her bank account. At approximately 1:30 p.m., they stopped at a pawn shop in Grand Island and sold several things, including a television, a video game system with 13 games, and an amplifier for a guitar, for which they received a total of $309.

         While traveling in Barone's vehicle on Interstate 80 near Plattsmouth, Nebraska, Casterline and Shelley were stopped about 7:40 p.m. for a traffic violation. The officer who made the stop testified that Casterline appeared to be under the influence of prescription drugs. He observed that Casterline's nails were dirty and he had several nicks and cuts on his hands. Casterline told the officer that the vehicle belonged to his [293 Neb. 46] grandmother and that she was letting him borrow it to go to his grandfather's funeral in Pennsylvania. Casterline was arrested for driving under the influence and taken to the Plattsmouth jail. Shelley was released, but Barone's vehicle was impounded because Shelley did not have a valid driver's license.

         At approximately 9:30 p.m., Marihugh returned home to Guide Rock and discovered that his house had been burglarized. Several things were missing, including his television, his video game system with several

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games, two laptop computers, two guitars, and an amplifier. He reported the burglary to law enforcement, who discovered that some of the items stolen from his house had been sold to a pawn shop in Grand Island by Casterline and Shelley. Marihugh testified that he did not give Casterline or Shelley permission to go into his house and take any items.

         The next morning, law enforcement received a telephone call from one of Barone's neighbors requesting a welfare check at Barone's house. A sheriff's deputy entered the home with the neighbor and found that several pieces of furniture had been knocked over. The officer followed a trail of blood to a back room and found Barone dead under a pile of boards. Barone had sustained multiple stab wounds and several cuts on her fingers, which appeared to be defensive wounds from trying to block a sharp object. She had some small drops of blood on her face, which suggested that she may have been breathing for some time after she was stabbed and had breathed out blood.

         Investigators observed a bloodstain on a rug in the living room, a shoe in the living room with blood on it, blood smears which appeared to be drag marks leading from the living room to the room where Barone's body was found, and drops of blood on the porch area outside the front door. The telephone appeared to have been ripped out of the wall, and a number of things were lying in the driveway where Barone normally parked her vehicle. Investigators found no financial devices in Barone's purse, and her vehicle, a white 1995 Pontiac, was missing.

          [293 Neb. 47] During the investigation, Jamilowski arrived at Barone's house and was detained for questioning. After speaking with Jamilowski, law enforcement officers identified Casterline and Shelley as suspects in Barone's death. They learned that Casterline had been arrested the night before in Cass County while driving Barone's vehicle, but had since been released, and that he and Shelley were believed to be heading east through Iowa in a stolen Jeep. Police were able to track Shelley's cell phone to a location near Newton, Iowa. Authorities in Iowa were notified and performed a traffic stop on the stolen Jeep, and identified the occupants as Casterline and Shelley.

         Upon searching Casterline, officers located $322 cash, several Wal-Mart and ATM receipts, and Barone's debit card. Shelley had over $2,000 in her purse. A search of the Jeep revealed a bag with Marihugh's name on it, two laptop computers, and a knife with a 4-inch blade inside the glovebox. The owner of the Jeep testified that none of those items were in the Jeep when it was stolen from a parking lot in Plattsmouth the day before.

         Casterline and Shelley were arrested and taken to a detention center in Iowa. At the time of booking, officers observed various injuries. Shelley had a bruise on her right arm and some small scrapes on her right wrist and index finger. Casterline had a bruise above his eye, cuts on the thumb and fingers of his right hand, an abrasion on his left forearm, and dried blood on his right palm. Officers collected DNA samples and fingernail scrapings from Casterline and Shelley and collected the clothing that they were wearing. Casterline was reluctant to give the officers his clothing.

         2. Investigation

         Casterline and Shelley were interviewed by investigators the following day. Shelley initially denied having anything to do with Barone's death, but later admitted to killing Barone. She claimed Casterline had nothing to do with it. Shelley told investigators that when they got back from Hastings, she and Casterline went to Barone's

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house and the three of them [293 Neb. 48] argued. Barone was blaming Shelley for Jamilowski's problems, at which point Casterline told Barone to shut up or he would knock her out.

         Shelley stated that she grabbed a knife and began stabbing Barone, then dragged Barone into another room and covered her body with boards. She said that Casterline was there when she killed Barone but that he had nothing to do with the killing. However, she acknowledged that she was taking blame for the murder in order to " save [Casterline's] life."

         When Casterline was interviewed, he claimed that he and Shelley had nothing to do with Barone's death and that he had no idea Barone was dead. He later admitted that he was at Barone's house when Barone and Shelley got into an argument, but claimed that he went home during the argument and did not know how Barone died. Later during the interview, however, Shelley began screaming from another room that she killed Barone, at which point Casterline stated that Shelley did it but maintained that he had nothing to do with Barone's death.

         Investigators performed DNA testing on the knife found in the Jeep and the clothing that Casterline and Shelley were wearing when they were apprehended. They compared those results to known DNA samples from Casterline, Shelley, Barone, Jamilowski, and Marihugh. They located DNA on the blade of the knife and on three pieces of clothing: Casterline's jeans, Casterline's shoe, and Barone's sweatpants. The DNA on the knife was a mixture of two individuals, with Casterline being the major contributor and everyone except Shelley being excluded as the minor contributor. The DNA on Casterline's jeans tested positive for blood and was a mixture of two contributors, with Barone being the major contributor and everyone except Casterline being excluded as the minor contributor. The DNA on Casterline's shoe also tested positive for blood and matched the DNA profile of Barone only. The DNA on Barone's sweatpants was inconclusive as to the major contributor, but everyone except Casterline, Shelley, and Barone being excluded as a minor contributor.

          [293 Neb. 49] The forensic pathologist who conducted the autopsy concluded that Barone's death was a homicide. The autopsy revealed that Barone sustained 22 stab wounds, which varied from 1/2 to 8 1/2 inches in depth. The angle of the stab wounds also varied. Seven of the wounds were inflicted at a downward trajectory, and 13 were inflicted at an upward trajectory. The pathologist testified that more than one knife may have been used to stab Barone, although she could not confirm whether that was actually the case. She explained that it is possible for a knife to inflict wounds deeper than its blade length, due to the way the body reacts when it is punctured. She concluded that the cause of Barone's death was stab wounds to the chest, upper arm, and abdomen, which caused her to bleed out and die from loss of blood.

         3. Shelley's Testimony

         Shelley testified for the defense. She testified that she alone killed Barone and that Casterline had nothing to do with it. She explained that shortly after they arrived home from Hastings, she walked to Barone's house with the intention of retrieving her cell phone, which she had left in Barone's car. She and Barone got into an intense argument that was about to turn physical, when Casterline entered the house looking for Shelley. Shelley told Casterline to get out of the ...

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