Shawn Ney will stand trial for the first degree murder of Steven Calderwood, and for attempted first degree murder of Sarah Ney, Shawn’s wife, on July 10. After a preliminary hearing Friday in Barton County District Court, Senior Judge Barry Bennington found probable cause for both counts, and for a last-minute charge of aggravated burglary.
Following the preliminary, Bennington presided over Nye’s arraignment during which the charges were read and the defendant entered his pleas. Nye opted to "stand mute," and the judge entered pleas of "not guilty" on his behalf.
Assistant Attorney General Travis Harrod called three witnesses during the preliminary examination, starting with Sarah Ney, who was shot in the leg on July 10. Calderwood was shot in both legs and did not survive.
The Neys’ marriage of 10 years was coming to an end last July, according to Sarah Ney’s testimony. She and 32-year-old Shawn argued all the time, and she told him she was leaving. Steven Calderwood was married to Sarah’s sister, but she’d been spending time with him.
"I told him I was leaving him and I was going to be with Steven," Sarah testified.
Shawn tried to talk her out of it. "He said I was messing up two families," Sarah said. He called and sent text messages over his cell phone, saying he loved her. "Then he sent me a picture of an empty pill bottle." The message with that photo read, "You pushed me to my breaking point," and "I thought you loved me." It was signed LPN, because Shawn had just finished nursing school.
After she received that photo over her phone, Sarah Ney said she called 911. As she spoke to a dispatcher, she said, "I came out of the bedroom and he was standing there in the living room."
Sarah Ney was at her mother’s house, at 48 NE 20 Road, and Calderwood was there, too. "I asked (Shawn) to go outside so the kids wouldn’t hear." She was still on the phone at the time. "He grabbed me and said, ‘you called the f***ing cops on me,’ and threw my phone against my mother’s house."
Sarah Ney said she ran for the door and saw Shawn coming at her with a shotgun. She told her daughter to get inside, and she went in, too, but said Shawn forced the door open and shoved the shotgun in her stomach.
She went left, into the dining room, while he went right, through the living room and circling back through the kitchen. Sarah saw a small child in the dining room and turned back. "I turned around and saw him," she said. "I got shot in the leg and called for Steven."
Shawn Ney went outside, ejected one of the three shells from the 12-gauge shotgun he had borrowed and came back inside, where Calderwood was trying to put pressure on Sarah Ney’s wound and call 911 at the same time, she testified. She heard another shot but didn’t see who fired it. Calderwood fell to the floor, and Sarah Ney said she did see her husband shoot Caldwrwood the second time.
After that, she pulled herself into a closet, but Shawn Ney had left.
Also testifying for the prosecution Friday were Detective David Paden with the Barton County Sheriff’s Office, and Robert Barlow, who had loaned Shawn Ney his shotgun. Barlow testified that Ney seemed normal when he asked to borrow the gun so he could take his son out for some clay target shooting. Barlow said he hasn’t suspected any sinister intent in the request, and had planned to join them later. Harrod also introduced the autopsy report into evidence.
Defense attorney Robert Anderson’s witness Friday was Terri Bahr, a nurse who had tended to Shawn Ney at the Barton County Jail. Ney was on prescribed anti-depressants and heart medication, and after he left Sarah Ney’s mother’s house, he returned to his home in Hoisington, where he also took painkillers in the medicine cabinet and set fire to the house.
Anderson also cross examined the state’s witnesses. He asked Sarah Ney if she had called Shawn on her cell phone after he was taken to Larned State Hospital following the shooting. She said Shawn had called her cell phone.
Sarah Ney also confirmed under cross examination that after July 10, she told family and friends that what happened was all her fault.
Anderson argued that Shawn Ney’s statements to officers on July 10 should not be admissible, due to the effects of prescribed medication, painkillers and carbon monoxide. Anderson indicated he will continue his efforts to suppress those statements prior to the jury trial.
Judge Bennington, a senior judge from St. John, heard the preliminary hearing because the regular judges were unavailable, he said. He noted that as the case continues, District Judge Hannelore Kitts will be the presiding judge.
Bennington noted, "evidence can be viewed in more than one way and in more than one light." However, he said, at a preliminary hearing the court is duty-bound to accept facts "most favorable to the state."
"Counts one and two requires evidence of premeditation," Bennington said. After hearing the day’s testimony, the judge believed the prosecution had met this requirement through seven facts: The defendant had made prior statements about what he might do; he borrowed a shotgun; he bought shells for that gun; he made statements indicating his intent; he loaded the gun; he forced his way into the house; and after allegedly shooting his wife, he left the house and re-entered it to shoot Calderwood.
As for the aggravated burglary, the crime is defined by illegally entering a home with someone in it with the intent to commit a crime. Nye’s actions that day, Bennington said, fit that definition.
"I’m not a big fan of adding charges at a preliminary hearing," Bennington said. However, the circumstances in this case warranted it.
If convicted on count one, the first-degree murder of Calderwood, Nye faces a maximum sentence of life with a chance of parole after 25 years. Aggravated circumstances could force parole eligibility to be extended to 50 years.
On count two, the first-degree attempted murder of Sarah Nye, Nye could faces a maximum sentence ranging from 12 to 50 years in prison, and the penalty aggravated burglary ranges from two years, seven months, to a maximum sentence of 11 years and four months.
Nye’s trial has been set for 9 a.m. Jan. 24, 2011, in Barton County District Court before District Judge Kitts. Five days have set aside for the proceedings.
