There is no dispute that Barbara Pinkston shot and killed the father of her daughter on Father’s Day 1995 outside a children’s play center in Henderson.
But because a federal judge questions whether she gave sufficient thought before plugging her ex-boyfriend, he has overturned her first-degree murder conviction.
In a March 22 ruling that could help reverse other first-degree murder convictions in Nevada, U.S. District Judge Kent Dawson said Nevada courts’ definition of premeditation, used by jurors in convicting Pinkston, was too broad and violated federal law.
What, then, qualifies as premeditation?
Three months before she shot her ex-boyfriend, Greg Payne, Pinkston testified before the Assembly Judiciary Committee in Carson City for tougher penalties for stalking. She told lawmakers that stalking laws had failed to protect her and her then-15-month-old daughter from the girl’s father, whom Pinkston never married.
Pinkston said she moved to Reno for her and her daughter’s safety, telling lawmakers that the man had violated court orders five times.
The man she referred to, although not by name, was Payne. According to court records, the two met in 1992 when he responded to her ad looking for a roommate to help her make house payments. They became romantically involved, but the relationship deteriorated when he allegedly began threatening her.
Pinkston, a graduate student at UNLV studying sociology, kept journals expressing her frustrations with court proceedings related to protective orders against Payne and their disputes over child visitation. It was because Payne had visitation rights that Pinkston and her daughter were ordered by a judge to return to Southern Nevada.
One document she prepared before the shooting listed four options in dealing with the visitation issue, including one “to kill Greg.”
Pinkston and Payne were supposed to appear before a judge on June 19, 1995, to resolve the child visitation dispute, with Payne seeking unsupervised visitation. But that showdown never occurred because of the events the day before.
Shortly after 12:30 p.m. on Father’s Day, Pinkston had a guardianship document notarized, stating her desire to have the child remain in the custody of Pinkston’s mother should Pinkston die or otherwise be unable to care for her. About an hour later Pinkston appeared at Discovery Zone, a play center in Henderson where Payne was visiting their daughter with Pinkston’s mother present.
According to eyewitnesses, Pinkston and Payne began arguing outside. She followed Payne toward his truck.
While six to eight feet behind him, the woman pulled out a .380-caliber semi-automatic handgun, assumed a stance with her feet shoulder-width apart, and fired two shots at Payne. The first shot struck Payne in the back. A medical examiner concluded that the second shot was fired when Payne was lying on the ground.
Pinkston turned herself in to police three hours later, but not before leaving a message on her home answering machine to tell her daughter “I didn’t know what else to do.” Payne was 33.
At the September 1997 trial, Pinkston’s defense was that she was a domestic violence victim who believed Payne intended to kill her. She testified the memo she had written with an option to kill Payne merely represented a problem-solving exercise and that she had no intention of murdering him. She also testified that she went to the notary because she was afraid Payne was about to kill her.
Pinkston told jurors that at the moment before the shooting, she thought Payne was going to his truck to get a gun that she thought he kept under his seat. According to her, Payne’s last words were, “You stand there. I’m going to blow your (expletive) head off.”
Police never found a gun in his truck or at his residence.
The prosecution rested on the theory that Pinkston was a scorned lover who plotted the slaying, then cooked up a creative defense to mask her state of mind. Clark County Deputy District Attorney Peggy Leen, now a federal magistrate judge, told jurors that Pinkston had duped prosecutors into filing criminal charges against Payne, including a felony stalking charge.
“She knew how to work the system,” Leen told jurors. “When she couldn’t get results in one court, she went to another ... and made different claims depending on what court she was in.”
The prosecution argued that the murder was premeditated because Pinkston had stated in her diaries that she had considered killing Payne and had notarized the document for her mother the day of the shooting.
Two weeks after the trial began, the jury found Pinkston guilty of first-degree murder. The prosecution didn’t seek the death penalty.
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The problem with Nevada’s jury instructions, Dawson wrote in last month’s opinion, was that a first-degree conviction could be reached even if a killing was merely the result of an “unconsidered and rash impulse.”
The state plans to either appeal Dawson’s ruling or retry Pinkston, meaning the 58-year-old woman, who was sentenced to a minimum 20 years in prison, will remain incarcerated at Florence McClure Women’s Correctional Center in North Las Vegas.
The Pinkston ruling is the third overturned first-degree murder verdict that the federal public defender’s office has won on the premeditation issue in Nevada since 2007. In the other cases, one convict pleaded guilty to second-degree murder to avoid a new trial and the other is awaiting retrial on second-degree murder charges.
Lori Teicher, the assistant federal public defender who represented Pinkston, said “undoubtedly, Ms. Pinkston is happy and grateful.”
Senior Deputy Attorney General Victor-Hugo Schulze II said the legal dispute — which involves an ongoing battle between the Nevada Supreme Court and the 9th U.S. Circuit Court of Appeals over the premeditation issue — is ironic. That’s because the definition of premeditation that Dawson says is unconstitutional for Nevada’s courts is still recognized by U.S. courts in federal first-degree murder trials.
“Nevada’s state law is identical to the federal murder law,” Schulze said.
He said federal courts, which have jurisdiction over constitutional issues, are overstepping their authority by trying to “create state law.”
First-degree murder can be punishable by death, a life sentence without parole or a minimum 20 years in prison before parole is granted. Second-degree murder carries a minimum sentence of 10 years before parole can be granted. In both instances the minimum sentences can be increased when a deadly weapon is involved. But an individual convicted of second-degree murder cannot receive a death sentence or life without parole.
In Pinkston’s case, jurors were instructed that premeditation could be formed in the perpetrator’s mind up to the time of the killing. The prosecution cited as evidence of premeditation a journal she kept indicating she had thought about killing Payne, along with the fact that she waited 10 seconds before firing the second bullet, according to witnesses. But Pinkston’s trial attorney argued that premeditation should be measured by the extent of one’s reflection — and that “a mere unconsidered and rash impulse” was insufficient.
Dawson concurred, adding: “All that the jury needed to believe to convict Pinkston of first-degree murder ... was that Pinkston formed the intent to kill Payne as she fired, as all that was required was a state of mind ‘as instantaneous as successive thoughts of the mind.’ ”
The delay before firing a second shot had no bearing in defining premeditation, he said.
The definition of premeditation has evolved in Nevada. Before 2000 the definition was the one used in the Pinkston trial, involving a determination to kill that is distinctly formed in the mind up to the time of the killing. From 2000 forward the definition became more nuanced, requiring careful thought and a weighing of the pros and cons of committing murder. Also excluded from premeditation was a murder committed by “a mere unconsidered and rash impulse.”
The 9th Circuit ruled in 2007 that the definition the Nevada Supreme Court adopted in 2000 matched established federal law, but that the premeditation instructions used in Nevada before 2000 were unconstitutional violations of due process.
The disagreement springing from the Pinkston case means more first-degree murder convictions before 2000 may be overturned in federal court. Just how many remains unknown.
“This is certainly not going to open the floodgates,” Teicher said. “It’s kind of a small group of cases we’re looking at.”
The Nevada Supreme Court rejected appeals of Pinkston’s conviction in 2000 and 2007 before her case was appealed to federal court later that year.
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