State v. Grant ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/01/2016 09:05 AM CDT
- 163 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
State of Nebraska, appellee, v.
Robert W. Grant, appellant.
___ N.W.2d ___
Filed April 1, 2016. No. S-15-192.
1. Motions to Suppress: Confessions: Constitutional Law: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress,
whether based on a claimed violation of the Fourth Amendment or on
its alleged involuntariness, an appellate court applies a two-part standard
of review. Regarding historical facts, the appellate court reviews the trial
court’s findings for clear error. Whether those facts meet constitutional
standards, however, is a question of law, which the appellate court
reviews independently of the court’s determination.
2. Confessions: Constitutional Law. Under Jackson v. Denno, 378 U.S.
368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), courts must institute fair
procedures to determine whether a confession is voluntary, because
involuntary or coerced confessions cannot be introduced into evidence.
3. Confessions: Police Officers and Sheriffs: Due Process. While the
totality of the circumstances weighs on the question whether a statement
was voluntary, coercive police activity is a necessary predicate to the
finding that a confession is not voluntary within the meaning of the Due
Process Clause of the 14th Amendment.
4. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohib-
its the use of statements derived during custodial interrogations unless
the prosecution demonstrates that its agents used procedural safeguards
that are effective to secure the privilege against self-incrimination.
5. Miranda Rights. The relevant inquiry in determining “custody” for pur-
poses of Miranda rights is whether, given the objective circumstances of
the interrogation, a reasonable person would have felt he or she was not
at liberty to terminate the interaction and leave.
6. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
“Interrogation” under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), refers not only to express questioning, but also
- 164 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
to any words or actions on the part of the police that the police should
know are reasonably likely to elicit an incriminating response from
the suspect.
7. Arrests: Police Officers and Sheriffs. Questioning designed to obtain
biographical information necessary for routine booking is not interroga-
tion when police have no reason to know that questioning is reasonably
likely to elicit an incriminating response.
8. Evidence: Appeal and Error. The exercise of judicial discretion is
implicit in decisions to admit evidence based on relevancy or admissibil-
ity, and those decisions will not be overturned by an appellate court in
the absence of an abuse of discretion.
9. Criminal Law: Juries: Evidence. In a jury trial of a criminal case, an
erroneous evidentiary ruling results in prejudice to a defendant unless
the State demonstrates that the error was harmless beyond a reason-
able doubt.
10. Trial: Convictions: Evidence. Where the evidence is cumulative
and there is other competent evidence to support the conviction, the
improper admission or exclusion of evidence is harmless beyond a rea-
sonable doubt.
11. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than
one made by the declarant while testifying at the trial or hearing, offered
in evidence to prove the truth of the matter asserted.
12. Hearsay. If an out-of-court statement is not offered for the purpose of
proving the truth of the facts asserted, it is not hearsay.
13. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
de novo whether the trial court applied the correct legal standards for
admitting an expert’s testimony.
14. ____: ____: ____. An appellate court reviews for abuse of discretion
how the trial court applied the appropriate standards in deciding whether
to admit or exclude an expert’s testimony.
15. Rules of Evidence: Expert Witnesses. Under Neb. Evid. R. 702, Neb.
Rev. Stat. § 27-702 (Reissue 2008), a witness can testify concerning
scientific, technical, or other specialized knowledge only if the witness
qualifies as an expert.
16. Trial: Expert Witnesses. A general foundational objection is insufficient
to preserve an issue under Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
17. Evidence: Words and Phrases. Evidence is relevant if it tends in any
degree to alter the probability of a material fact.
18. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2008), relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.
- 165 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
19. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
20. Rules of Evidence: Witnesses. Neb. Evid. R. 602, Neb. Rev. Stat.
§ 27-602 (Reissue 2008), prohibits a witness from testifying unless
evidence is introduced to support a finding that the witness has personal
knowledge of the matter.
21. Rules of Evidence: Appeal and Error. An objection that evidence is
irrelevant does not preserve for review any objection under Neb. Evid.
R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).
22. Trial: Evidence: Appeal and Error. Because authentication rulings
are necessarily fact specific, a trial court has discretion to determine
whether evidence has been properly authenticated. An appellate court
reviews a trial court’s ruling on authentication for abuse of discretion.
23. Criminal Law: Trial: Evidence. Where objects pass through several
hands before being produced in court, it is necessary to establish a com-
plete chain of evidence, tracing the possession of the object or article
to the final custodian; and if one link in the chain is missing, the object
may not be introduced in evidence.
24. Motions for Mistrial: Appeal and Error. Decisions regarding motions
for mistrial are directed to the discretion of the trial court, and will be
upheld in the absence of an abuse of discretion.
25. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial
is properly granted in a criminal case where an event occurs during the
course of a trial which is of such a nature that its damaging effect can-
not be removed by proper admonition or instruction to the jury and thus
prevents a fair trial.
26. Motions for Mistrial: Proof. A defendant faces a higher threshold than
merely showing a possibility of prejudice when attempting to prove
error predicated on the failure to grant a mistrial. Instead, the defendant
must prove the alleged error actually prejudiced him or her, rather than
creating only the possibility of prejudice.
27. Mental Competency: Appeal and Error. The trial court’s determina-
tion of competency will not be disturbed unless there is insufficient
evidence to support the finding.
28. Courts: Mental Competency. The means to be employed to deter-
mine competency or the substantial probability of competency within
the foreseeable future are discretionary with the district court, and the
court may cause such medical, psychiatric, or psychological examina-
tion of the accused to be made as he or she deems necessary in order
to make such a determination under Neb. Rev. Stat. § 29-1823(1)
(Reissue 2008).
- 166 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
29. Trial: Pleas: Mental Competency. A person is competent to plead or
stand trial if he or she has the capacity to understand the nature and
object of the proceedings against him or her, to comprehend his or her
own condition in reference to such proceedings, and to make a ratio-
nal defense.
30. Trial: Judges. In Nebraska, a trial judge has broad discretion over the
conduct of a trial.
31. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
32. Jury Instructions. When instructing the jury, it is proper for the court
to describe the offense in the language of the statute.
33. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing for sufficiency of the evidence to sustain a conviction, the
relevant question for an appellate court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
John J. Jedlicka for appellant.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and Stacy, JJ.
Heavican, C.J.
I. NATURE OF CASE
Robert W. Grant appeals from his convictions of murder in
the first degree and use of a deadly weapon to commit a felony
in connection with the death of his girlfriend, Trudy McKee.
Grant raises 14 assignments of error, ranging from overruled
evidentiary objections to errors in the conduct of trial and the
insufficiency of evidence. We affirm.
- 167 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
II. BACKGROUND
1. McK ee and Carter Move
to Omaha in July 2013
Grant and McKee had been in an “on again, off again”
relationship for a number of years preceding McKee’s death
on September 17, 2013. McKee and her 16-year-old daugh-
ter, Alexis Carter, moved from Wichita, Kansas, to Omaha,
Nebraska, on July 26, 2013. Carter testified that Grant did not
help McKee and Carter pack or move. Nor did Carter see any
signs of Grant at the new apartment during the first week in
Omaha. Carter testified that she believed Grant and McKee’s
relationship was over at that time.
2. Grant’s Move to Omaha in August 2013
and H is A rguments With McK ee
At some point roughly 2 weeks after McKee and Carter
moved to Omaha, Carter came home from school to find Grant
at the apartment. Carter testified that Grant had two duffel-
bags with him, including a black and yellow duffelbag. From
that time until September 17, 2013, when McKee died, Grant
stayed at the apartment some nights and at homeless shelters
the rest of the time.
Carter testified that after Grant arrived in Omaha, McKee
became uneasy and was less outgoing than she had been during
the first week after moving from Wichita. According to Carter,
during the week leading up to McKee’s death, Grant and
McKee argued more than they had when they lived in Wichita.
One of the arguments was about a T-shirt Grant wore that read
“‘almost single.’” Carter said this argument took place around
the first week of September. According to Carter, this and two
other arguments during that time period were loud, ranging
from 7 to 12 on a 10-point scale.
3. McK ee’s Death and Grant’s Whereabouts
on September 17, 2013
On Tuesday, September 17, 2013, Carter woke up around
6:30 or 6:40 a.m. Carter testified that she followed her normal
- 168 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
morning routine and did not notice anything out of the ordi-
nary in the apartment’s joined bathrooms. She checked in
McKee’s bedroom before leaving and saw Grant and McKee
sleeping soundly in bed. Carter then left for school at about
7:30 a.m.
In an apparent attempt to establish the time of McKee’s
death, the State offered the testimony of a witness who lived
in the apartment directly above McKee and Carter’s. She
testified that between 9 and 9:30 a.m., she heard a man and
a woman arguing. She could not tell from where the sound
originated. After the witness noticed a brief pause in the argu-
ment, she then heard screaming that she described as “scary”
and “chilling,” which lasted 3 or 4 minutes. The State also
called Jessica Von Seggern, another neighbor in the building.
Von Seggern was awake and home all morning and after-
noon except for a brief time from roughly 9:15 to 9:40 a.m.
Von Seggern testified that she did not hear anything in the
building that morning.
In addition, McKee’s sister had attempted to call McKee’s
cell phone sometime between 9 and 10 a.m. McKee did not
answer, which her sister testified was abnormal. McKee’s cell
phone was later recovered from a toilet in the apartment, and
Thomas Queen, the lead detective, found that McKee had four
missed calls between 8:45 a.m. and noon. During trial, Grant
referenced a call detail sheet from McKee’s cell phone provider
showing that a call was placed from McKee’s cell phone to
her voice mail inbox at 10:33 a.m. The State responded to this
evidence by eliciting testimony that anybody holding McKee’s
cell phone could have made outgoing calls.
A friend of Grant’s who lived in Omaha testified that Grant
called him around 10 to 10:30 a.m. The friend heard people in
the background and asked Grant where he was; Grant replied
that he was at a bus station. The friend testified that Grant had
an unusual “quivery” and “hyper” tone in his voice. During the
conversation, Grant and the friend made plans for Grant to visit
his home later that morning, but Grant never arrived.
- 169 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
Carter got home from school around 3:30 p.m. She testi-
fied that she did not see anything unusual in the apartment
building hallway and that the door to the apartment itself was
locked from the outside. Elaine Adler, the apartment manager,
noted that the doorknob could be locked from the inside on the
way out of the apartment. But the deadbolt had to be locked
with a key from the outside. Carter never specified which
lock—the knob or the deadbolt—was locked when she came
home. Only the leasing office, Carter, and McKee had keys to
the apartment.
According to Carter’s testimony, when she got home, she
first entered her own bedroom and saw Grant’s “‘almost sin-
gle’” T-shirt, which had been the subject of one of Grant and
McKee’s recent arguments, draped over Carter’s television.
Carter then entered McKee’s bedroom and found her moth-
er’s body on the floor, “[c]ut up.” She started screaming and
ran out into the building’s hallway. Hearing the screaming,
Von Seggern intercepted Carter. While Von Seggern called
the 911 emergency dispatch service, Carter ran back into her
own apartment and attempted to lift McKee’s body. She then
exited the apartment again and, in the following minutes, left
McKee’s blood on several surfaces in the building’s hallway.
Von Seggern and Carter waited for law enforcement outside
the building and placed a call to Adler. Adler arrived shortly
with two maintenance men and a leasing agent. Adler testified
that when they arrived, Carter was “[e]xtremely upset. Crying.
Screaming. Frantic [and] overwhelmed” and that Carter was
saying, “‘[t]hat fucker, that fucker, he killed her, I know he
killed her. My mom’s dead.’”
Adler and the maintenance men then entered McKee and
Carter’s apartment hoping to save McKee’s life; but it was
too late. Adler testified that they did not touch anything in the
apartment other than the door and a few light switches.
After that point, law enforcement arrived at the scene.
Further details of the police investigation at the scene are
related below.
- 170 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
4. Grant’s A rrest
Matthew Partridge, an employee of a security company, was
providing security at a bus station in Omaha on the evening of
September 17, 2013. Partridge was monitoring the boarding of
a bus to Chicago, Illinois, when he became aware of a man,
later identified as Grant, bypassing the ticket-checking line to
board the bus. Partridge confronted Grant and determined that
he did not have a ticket. Partridge detained Grant in handcuffs
and brought him to a security office.
While Grant was detained in the office, Partridge con-
tacted police. Partridge asked Grant for his name, address, and
other identifying information. Grant gave a false name, “Brian
Edwards.” Grant told Partridge that he had come from Wichita
to be with a girlfriend, but that they had broken up. Grant said
he was trying to get to Chicago to meet another woman he had
met online. Partridge testified that Grant did not appear to have
any luggage with him.
After about 15 minutes, two police officers arrived. Officer
Kevin Checksfield was one of the officers who responded to
the bus station. Checksfield asked Grant for physical identifi-
cation; claiming to have none, Grant told Checksfield his name
was “Brian Edwards” and that his date of birth was January
25, 1987. Checksfield then engaged in a line of question-
ing designed to determine whether, under the Omaha Police
Department’s policy, Grant should either be issued a citation
or be taken to a correctional center for booking. Determining
that Grant had no ties to the community, Checksfield decided
that Grant should be placed under arrest and transported to the
correctional center. Throughout the time Grant was detained
in the security office, he repeatedly asked to be let off with a
warning or citation.
At the correctional center, Checksfield attempted to locate
information for a “Brian Edwards” in a law enforcement
database. Finding none, Checksfield confronted Grant. Grant
gave three more false dates of birth. After Checksfield decided
to fingerprint Grant in an effort to identify him, Grant told
Checksfield his real name and date of birth.
- 171 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
Shortly after Checksfield and his partner booked Grant,
Det. Sherry King, who was on the team investigating McKee’s
death, received notification of Grant’s arrest. King arranged for
Grant to be transported from the correctional center to police
central headquarters. In a pretrial hearing, King testified that
she interviewed Grant at headquarters about McKee’s death.
Before Grant had been read his Miranda rights, King asked
about Grant’s whereabouts throughout the day. But at trial,
King never testified to Grant’s statements of his whereabouts
on September 17, 2013.
King finally read Grant his rights at police central headquar-
ters after she had obtained biographical information and infor-
mation about his whereabouts that day. At that point, Grant
invoked his right to an attorney and did not thereafter waive
his Miranda rights.
5. Police Investigation
of McK ee’s Death
After police secured the scene and paramedics confirmed
that McKee was dead, police began their investigation
in earnest.
The apartment door showed no signs of forced entry. Nor
were there signs of a struggle anywhere outside of the mas-
ter bedroom.
Police interviewed a number of potential witnesses, and
eventually spoke to all of the tenants in McKee’s building.
One tenant told an officer that he had had a third-party main-
tenance crew in his apartment the morning of September 17,
2013. But detectives in the homicide unit apparently never
received that information and did not speak with the third-party
maintenance crew. Detectives did, however, speak with Carter,
Adler, Grant’s brother, Grant’s sister, McKee’s ex-husband, and
McKee’s former coworkers.
Det. Ryan Hinsley testified about Carter’s demeanor when
he interviewed her at the police station on September 17,
2013. Hinsley stated that Carter was crying, upset, and making
spontaneous utterances. When the State asked whether Carter’s
- 172 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
demeanor changed over the course of the interview, Hinsley
testified, “she began calming down. Throughout the interview
she would break out into tears again.”
At trial, the State introduced a substantial number of pho-
tographs of the master bedroom. Blood spatter covered nearby
furniture and walls, with some drops extending 6 to 8 feet from
the body. Crime laboratory technician James Brady testified
that the blood spatter suggested that McKee had been stabbed
with “a great deal of force.” The State also introduced a num-
ber of autopsy photographs. The autopsy eventually revealed
that McKee had suffered more than 50 cutting wounds, mostly
in the upper body.
In the apartment police found, as relevant on appeal, the
following pieces of evidence: the “‘almost single’” T-shirt;
McKee’s cell phone, which was found in a toilet; a black and
yellow “Dale Junior 88” duffelbag; McKee’s purse, covered
in blood and containing her wallet with coins but no cash, a
checkbook, bank cards, and medication; a bloody shoeprint
on the bathroom floor; indications that somebody had washed
off blood in the shower; and black hairs found in each of
McKee’s hands.
Inside the Dale Junior 88 duffelbag, police discovered, in
relevant part, several packages of alcohol swabs, a maroon tank
top with a blue tank top inside of it, black pants, and black
and white, size-10 Adidas shoes. The clothing, the shoes, and
several other items in the bag had significant amounts of blood
on them.
Brady processed the shoeprint found on the bathroom
floor with a type of chemical that produces a more visible
stain. Brady testified that the tread of the shoeprint matched
the tread of the Adidas shoes found in the Dale Junior 88
duffelbag.
Eventually, the maroon tank top and Adidas shoes were sent
to the University of Nebraska Medical Center (UNMC) for
DNA testing. Additionally, the Nike shoes that Grant had been
wearing during his arrest, envelopes that were used to collect
- 173 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
the black hairs found in McKee’s hands, and DNA swabs taken
from McKee’s fingernails were sent to UNMC.
Before these evidentiary items were sent for testing, there
was some discussion in the homicide unit that the sergeant
in charge of the unit wanted to look at the hairs collected
from McKee’s hands. It is unclear whether the sergeant did
actually remove the hairs from evidence. At the time of trial,
there was an ongoing internal police investigation into the ser-
geant’s actions.
Later, when a forensic DNA analyst from the UNMC labo-
ratory, Melissa Helligso, opened the envelope supposed to
contain hairs collected from McKee’s left hand, Helligso could
not find anything in the envelope. The hairs were never
found. Thus, the hairs collected from McKee’s left hand were
never tested.
Helligso testified extensively about the process of DNA test-
ing and the results of her testing in this case. As she explained,
DNA testing can produce three results: exclusion of the known
sample as a source, inability to exclude the known sample as
a source, or inconclusive. Known source samples were taken
from Grant and McKee in this case.
Testing on the black hairs from McKee’s right hand, the
blood on the Adidas shoes, the blood on the maroon tank
top, and the drop of blood on the Nike shoes did not exclude
McKee as the source. Samples from the inside of the Adidas
shoes, the inside of the Nike shoes, and the inside of the
maroon tank top showed multiple DNA contributors. For the
Nike shoes, Helligso was able to isolate a major contributor,
and testing revealed Grant could not be excluded as that major
contributor. Testing of the maroon tank top could not exclude
Grant and McKee as contributors.
Testing of the inside of the Adidas shoes could exclude
neither Grant nor McKee. The probability of individuals unre-
lated to Grant or McKee matching either contributor of DNA
on the Adidas shoes was 1 in 1,810,000 for Caucasians, 1
in 983,000 for African-Americans, and 1 in 2,010,000 for
American Hispanics.
- 174 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
The alcohol swabs found in the duffelbag were not tested for
fingerprints. When asked to explain why, Queen testified that
police had been told the duffelbag belonged to Grant and that
therefore, they would expect to find Grant’s fingerprints.
6. Conduct of Trial
An 8-day trial was held in the district court for Douglas
County in October 2014. Prior to trial, Grant’s counsel
requested that the district court order a psychological evalua-
tion of Grant. There had been some indication during discovery
that Grant might suffer from paranoid schizophrenia. The court
granted the request, and the results of the evaluation showed
that Grant was competent to stand trial.
Grant’s defense theory centered largely on the missing hairs
from McKee’s left hand as well as the fact that more items of
evidence were not tested for DNA or for fingerprints. Grant
also pointed out that Carter had given somewhat conflicting
information about Grant’s possessions. In one interview, Carter
told police that Grant’s only pair of black and white shoes
were Nike brand and that she was not familiar with a pair of
Adidas shoes. Additionally, Carter originally described Grant’s
black and yellow duffelbag as a Nike brand, rather than Dale
Junior 88.
On the sixth day of trial, just after breaking for lunch and
outside the presence of the jury, Grant apparently hit one of
the court deputies. After lunch, the court questioned the jury
to ascertain whether any members had witnessed any part of
the incident. The district court questioned five jurors individ­
ually who had said they saw something during lunch. Each of
the five jurors had seen officers running in response to radio
calls. Four of the jurors did not know whether the incident
involved Grant. One juror had assumed the incident had to do
with Grant’s case. Another juror noted that because she was
now being questioned about what she had seen, she “had ques-
tions” about what had occurred. Of the five jurors, the district
court asked four (including the two who had speculated that
- 175 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
the incident involved Grant) whether they could still be fair
and impartial; they answered that they could.
Grant moved for a mistrial, claiming that because two of the
jurors had speculated that Grant was involved in the incident,
they could no longer remain impartial. The district court denied
the motion.
On the seventh day of trial, Grant had another outburst.
This time Grant struck his defense attorney in the presence
of the jury. The jury was removed from the courtroom and
then dismissed until the following day and given the usual
admonitions.
Counsel for Grant moved again for a mistrial and submit-
ted an affidavit to the district court expressing concerns about
Grant’s mental health and competency to stand trial. Defense
counsel asked for a short recess and psychological evaluation
in light of the incidents on the sixth and seventh days of trial
and the information provided in counsel’s affidavit.
In support of the motion for mistrial, Grant attempted to
present testimony of Todd Cooper, a reporter who was in
the courtroom at the time of Grant’s outburst on the sev-
enth day of trial. But when Cooper expressed reluctance to
testify because of his job as a reporter, the court suggested
that Grant use another witness to get the information. Grant
then attempted to present testimony by Kelly Steenbock,
an employee of the Douglas County Public Defender who
had interviewed Cooper about what he witnessed. During
Steenbock’s testimony, Cooper, apparently from the courtroom
gallery, made a hearsay objection, claiming he had the right to
do so under the First Amendment. The State then objected to
Steenbock’s testimony on hearsay grounds and suggested that
Grant may be able to prove the day’s events through Hinsley,
who was on the stand during the outburst. Instead, Grant made
an offer of proof through Steenbock about what Cooper had
related to her.
The district court overruled the motion for mistrial and
denied counsel’s request for a recess. The district court
- 176 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
reasoned that the pretrial psychological evaluation showed
Grant was competent to stand trial and that counsel’s affidavit
did not present sufficient evidence to change that finding.
At the close of trial, the district court gave the jury instruc-
tions, in relevant part, defining the elements of murder in
the first degree, murder in the second degree, and intentional
manslaughter.
The jury found Grant guilty of first degree murder and
guilty of use of a deadly weapon to commit a felony. The dis-
trict court sentenced Grant to life imprisonment for first degree
murder, and a period of 50 to 50 years’ imprisonment for use
of a deadly weapon, to be served consecutively, with credit for
504 days of time served. Grant appeals.
III. ASSIGNMENTS OF ERROR
Grant assigns, restated and renumbered, that the district
court erred in:
(1) admitting Grant’s statements at the bus station, at the
correctional center, and at the Omaha Police Department cen-
tral headquarters, in violation of Miranda v. Arizona1 and
Jackson v. Denno2;
(2) permitting Queen to testify that the duffelbag belonged
to Grant;
(3) admitting Adler’s testimony of Carter’s out-of-court
statement that “‘he killed her’”;
(4) allowing Brady to testify that a shoeprint matched the
tread of the Adidas shoes;
(5) admitting exhibit 206 and allowing Hinsley and a crime
laboratory technician to testify about Grant’s demeanor;
(6) allowing Carter to testify that Grant and McKee were
not a couple in July 2013 until after the first week McKee and
Carter lived in Omaha;
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966).
2
Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).
- 177 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
(7) allowing Hinsley to testify about Carter’s demeanor
while she was being questioned;
(8) admitting 11 autopsy photographs over Grant’s objections;
(9) admitting the maroon tank top and black pants into
evidence;
(10) denying Grant’s first and second motions for mistrial;
(11) denying Grant’s motion for a recess and psychological
evaluation of Grant;
(12) permitting Cooper to refuse to testify and giving Cooper
standing to object; and
(13) including the words “without malice” in the jury instruc-
tion for intentional manslaughter.
Grant also assigns that
(14) there was insufficient evidence to support his
convictions.
IV. ANALYSIS
1. Miranda v. Arizona and
Jackson v. Denno
In Grant’s first assignment of error, he asserts that the
State violated Miranda v. Arizona and Jackson v. Denno
by introducing statements Grant made to Partridge and to
Checksfield.
(a) Standard of Review
[1] In reviewing a trial court’s ruling on a motion to sup-
press, whether based on a claimed violation of the Fourth
Amendment or on its alleged involuntariness, an appellate
court applies a two-part standard of review. Regarding histori-
cal facts, the appellate court reviews the trial court’s findings
for clear error. Whether those facts meet constitutional stan-
dards, however, is a question of law, which the appellate court
reviews independently of the court’s determination.3
3
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
- 178 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
(b) Analysis
[2,3] Grant first assigns that the State violated Jackson, in
which the U.S. Supreme Court held that courts must institute
fair procedures to determine whether a confession is voluntary,
because involuntary or coerced confessions cannot be intro-
duced into evidence.4 While the totality of the circumstances
weighs on the question whether a statement was voluntary,
“coercive police activity is a necessary predicate to the finding
that a confession is not voluntary within the meaning of the
Due Process Clause of the 14th Amendment.”5 We find that
the district court complied with Jackson by holding an appro-
priate pretrial hearing to assess whether Grant’s statements
were voluntary.
The nature of Grant’s Jackson argument is not clear from
his brief. But, to the extent Grant may have preserved his
argument, it lacks merit. The district court held a pretrial
hearing on Grant’s motion to suppress and determined that
the relevant statements were voluntary and did not violate
Miranda. The district court determined that statements made
by Grant to Partridge and Checksfield in the bus station
were admissible.
Further, there is nothing in the facts of this case to sug-
gest that Grant had been coerced into making the statements
introduced at trial. He was never threatened or offered any bar-
gains in return for his choice to make statements to Partridge
or Checksfield.
Because the district court held a full hearing on the admis-
sibility of Grant’s statements, we find no merit to Grant’s argu-
ments with respect to Jackson.
[4] Next, Grant argues that the introduction of his statements
violated Miranda. Miranda prohibits the use of statements
derived during custodial interrogations unless the prosecution
demonstrates that its agents used procedural safeguards that
4
See Jackson, supra note 2.
5
State v. Garner, 260 Neb. 41, 49, 614 N.W.2d 319, 327 (2000).
- 179 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
are effective to secure the privilege against self-incrimination.6
At trial, Grant made continuing objections to any mentions of
his statements at the bus station, at the correctional center, and
at police central headquarters.
[5-7] The relevant inquiry in determining “custody” for
purposes of Miranda rights is whether, given the objective
circumstances, a reasonable person would have felt he or
she was not at liberty to terminate the interaction and leave.7
Next, “interrogation” under Miranda refers not only to express
questioning, but also to any words or actions on the part of
the police that the police should know are reasonably likely to
elicit an incriminating response from the suspect.8 Questioning
designed to obtain biographical information necessary for rou-
tine booking is not interrogation when police have no reason to
know that questioning is reasonably likely to elicit an incrimi-
nating response.9
For purposes of this analysis, we assume without deciding
that Partridge, the security employee, was a state actor and that
Miranda is applicable to his actions.
We determine that Grant was in custody when he made
the statements. Partridge had restrained Grant in handcuffs
almost immediately upon discovering Grant, and Grant was
not free to leave after that point. Grant, in fact, made requests
to be let go with a warning or citation, but was not permitted
to do so.
However, Partridge and Checksfield did not interrogate
Grant for purposes of Miranda. Partridge asked Grant only for
his name, where he was from, his address, and similar informa-
tion. When Checksfield arrived, he merely asked questions in
line with Omaha Police Department policy, which were aimed
at determining whether to issue Grant a citation or to arrest
6
State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).
7
State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
8
State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
9
See State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
- 180 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
him. At this point in time, neither Partridge nor Checksfield
were aware that Grant was a suspect or person of interest in
a homicide. Therefore, they had no indication whatsoever that
asking Grant about his living arrangements or where he was
from might elicit an incriminating response.
The district court did exclude some statements Grant had
made at police central headquarters. King had asked Grant
about his whereabouts on September 17, 2013, before read-
ing Grant any Miranda warnings. The district court found that
Grant’s statements in response to King’s questions were inad-
missible. At trial, King testified that Grant had told King his
name and that he lived at a homeless shelter. But the State did
not offer any of the excluded incriminating statements Grant
made about his whereabouts on September 17.
The limited statements offered through King’s testimony at
trial were made in response to purely biographical questions.
Though King was questioning Grant in relation to McKee’s
death, the statements offered at trial were limited to Grant’s
name and where he lived. When questioning Grant, King did
not have reason to believe this biographical information would
be incriminating. In contrast, further pre-Miranda statements
Grant made to King about his whereabouts on September 17,
2013, were properly excluded, because King knew that Grant’s
statements would likely incriminate him.
Under our well-established case law, biographical inquir­ies
that law enforcement have no reason to believe will prompt
an incriminating response are not interrogations for purposes
of Miranda.10 The statements admitted at trial were a result
of purely biographical inquiries. Thus, we find that Grant’s
Miranda rights were not violated by the introduction of
his statements.
For these reasons, Grant’s first assignment of error is with-
out merit.
10
See id.
- 181 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
2. A dmission of A lleged
Hearsay Testimony
In Grant’s second and third assignments of error, he argues
that the district court erred by admitting two pieces of tes-
timony over Grant’s hearsay objections. First, Grant argues
that Queen should not have been permitted to testify that
he received information that the Dale Junior 88 duffelbag
belonged to Grant. Second, Grant claims the court erred by
admitting Adler’s testimony about Carter’s statements after
Carter had discovered McKee’s body.
(a) Standard of Review
[8] The exercise of judicial discretion is implicit in decisions
to admit evidence based on relevancy or admissibility, and
those decisions will not be overturned by an appellate court in
the absence of an abuse of discretion.11
[9,10] The improper admission of evidence is a trial error
and subject to harmless error review.12 In a jury trial of a crimi-
nal case, an erroneous evidentiary ruling results in prejudice
to a defendant unless the State demonstrates that the error was
harmless beyond a reasonable doubt.13 Where the evidence is
cumulative and there is other competent evidence to support
the conviction, the improper admission or exclusion of evi-
dence is harmless beyond a reasonable doubt.14
(b) Hearsay
[11,12] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.15 Hearsay is
11
Sack v. Castillo, 278 Neb. 156, 768 N.W.2d 429 (2009).
12
State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).
13
State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).
14
State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
15
State v. Hale, 290 Neb. 70, ­­858 N.W.2d 543 (2015).
- 182 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
not admissible except as provided by the rules of evidence.16
Conversely, if an out-of-court statement is not offered for
the purpose of proving the truth of the facts asserted, it is
not hearsay.17
(c) Queen’s Testimony
At trial, Grant cross-examined Queen about whether a num-
ber of items at the scene were tested for fingerprints or
DNA evidence. In an attempt to raise reasonable doubt, Grant
focused his defense primarily on the evidence that had not
been tested. On redirect, the State asked Queen why police did
not test many items Grant had discussed on cross-examination,
including alcohol swabs found inside of the Dale 88 Junior
duffelbag. Queen testified that he had received information
that the bag belonged to Grant, so police thought there was no
need to fingerprint the contents of the bag.
Grant asserts that Queen’s testimony was hearsay. However,
assuming without deciding that the testimony was hearsay, we
hold that its admission was harmless error. Even if the State
offered the out-of-court statement to prove the truth of the
matter asserted, that Grant owned the duffelbag, the testimony
was cumulative. Carter testified that the bag was Grant’s, and
DNA evidence linked Grant to items of clothing that were in
the bag. Therefore, even without Queen’s testimony, the State
had established that the bag belonged to Grant.
Therefore, the testimony was admissible and Grant’s second
assignment of error is without merit.
(d) Adler’s Testimony
Adler testified that when she arrived at the apartment build-
ing, Carter was visibly extremely upset and crying, and that she
was saying, “[t]hat fucker, that fucker, he killed her, I know
he killed her. My mom’s dead.” According to Von Seggern’s
16
State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).
17
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
- 183 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
testimony, Carter made these statements very shortly after find-
ing McKee’s body.
Adler’s testimony was hearsay. Carter made the statement
outside of court, and the State offered it in evidence apparently
in order to prove the truth of the matter asserted—that Grant
killed McKee. But the State argues that the statement was
admissible under the excited utterance hearsay exception.
Assuming without deciding that the testimony was inadmis-
sible, we hold that any error was harmless.
Even without looking to the admitted hearsay statement,
there was a great deal of other evidence to support the convic-
tion. DNA evidence and Carter’s testimony proved that the
Dale Junior 88 duffelbag and the Adidas shoes, maroon tank
top, and black pants belonged to Grant. DNA evidence also
linked McKee to the blood on Grant’s clothing. There was no
forced entry to the apartment, and the door was apparently
locked from the outside after the homicide took place. The
morning of McKee’s death, Carter had seen Grant with McKee
sleeping in bed. Furthermore, Grant and McKee had been
arguing with some frequency. Finally, Grant was discovered
attempting to board a bus departing Omaha and lied about his
identity. When he was eventually arrested, a drop of McKee’s
blood was found on his shoe. This evidence overwhelmingly
proves Grant’s guilt.
Furthermore, the jury was well aware that Carter had not
actually witnessed the murder. A reasonable trier of fact would
only consider Carter’s out-of-court statement in light of this
knowledge. Grant’s third assignment of error is without merit.
3. Brady’s Testimony
R egarding Shoeprint
In Grant’s fourth assignment of error, he argues that the
district court erred by allowing Brady to testify that the tread
of the bloody shoeprint in McKee’s bathroom appeared to
match the tread of the Adidas shoes. Grant asserts that Brady’s
testimony was not proper expert witness testimony, because
- 184 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
Brady, a crime laboratory technician, was not qualified to com-
pare shoeprints.
(a) Standard of Review
[13,14] We review de novo whether the trial court applied
the correct legal standards for admitting an expert’s testi­
mony.18 We review for abuse of discretion how the trial court
applied the appropriate standards in deciding whether to admit
or exclude an expert’s testimony.19
(b) Analysis
[15] First, we note that Brady’s comparison of the shoeprint
was not expert testimony. Under evidence rule 702,20 a witness
can testify concerning scientific, technical, or other specialized
knowledge only if the witness qualifies as an expert.21 Brady’s
testimony did not require any specialized knowledge, any lay
person would be capable of comparing pictures of the Adidas
shoe tread and the shoeprint side by side. Therefore, Brady’s
testimony is not governed by rule 702.
[16] In any case, Grant has waived this argument. The
objection Grant now raises on appeal was not obvious from
the context at trial. We specifically stated in State v. Ellis22 that
a general foundational objection is insufficient to preserve an
issue under Daubert v. Merrell Dow Pharmaceuticals, Inc.23
and Schafersman v. Agland Coop.24
18
Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015).
19
Id.
20
Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2008).
21
Orchard Hill Neighborhood v. Orchard Hill Mercantile, 274 Neb. 154, 738
N.W.2d 820 (2007).
22
State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).
23
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993) (setting standards for admissibility of
expert testimony in federal court).
24
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001)
(adopting Daubert, supra note 23, in Nebraska courts).
- 185 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
Grant objected to Brady’s testimony only on the basis of
“foundation.” The district court likely thought that Grant was
making a personal knowledge objection, as opposed to an
improper expert opinion objection. We conclude that Grant has
waived any argument regarding Brady’s testimony. His fourth
assignment of error is therefore without merit.
4. Grant’s Demeanor at Police
Central Headquarters
In Grant’s fifth assignment of error, he asserts that three par-
ticular pieces of evidence about his demeanor at police central
headquarters were inadmissible.
(a) Standard of Review
The exercise of judicial discretion is implicit in decisions to
admit evidence based on relevancy or admissibility, and those
decisions will not be overturned by an appellate court in the
absence of an abuse of discretion.25
(b) Exhibit 206
First, Grant argues that exhibit 206, a photograph of
him, was irrelevant and unfairly prejudicial under evidence
rule 403.26
[17,18] Evidence is relevant if it tends in any degree to alter
the probability of a material fact.27 Under rule 403, relevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.28
Exhibit 206 showed Grant in the clothing he was wearing
when arrested. It depicts him grinning and with his hands
cuffed. Pieces of molded gold plating that fit over his front
teeth are visible.
25
Sack, supra note 11.
26
Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).
27
State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010).
28
Bauldwin, supra note 8.
- 186 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
The photograph was relevant to show the clothing Grant
was wearing, particularly the Nike shoes that had a drop of
McKee’s blood on them. Additionally, Grant’s demeanor dur-
ing his arrest may have been relevant. But Grant argues that
this probative value is outweighed by the fact that his gold
teeth were visible in the picture. He claims, without reference
to any sources, that white jurors become prejudiced when they
see that a black man has gold teeth.
Even assuming Grant’s assertion regarding prejudice is cor-
rect, any prejudicial effect Grant’s gold teeth may have had
on the jury cannot outweigh the very high probative value of
proving that Grant was wearing an item of clothing on which
McKee’s blood was found. Grant’s argument regarding exhibit
206 is without merit.
(c) Testimony That Grant
Was “[G]oofy”
Grant next claims that the court erred by admitting Hinsley’s
testimony that Grant was “goofy, not really caring as to what
he was there for.” Grant argues on appeal that the testimony
violated rule 403.
However, Grant has waived a rule 403 objection by fail-
ing to specifically raise rule 403, as we required in State v.
Schrein29: “[T]he trial court is required to weigh the danger
of unfair prejudice against the probative value of the evidence
only when requested to do so at trial.” Grant objected only on
relevance grounds and did not raise rule 403 at trial. Therefore,
we need not consider Grant’s rule 403 contention. Grant’s
argument on this point is without merit.
(d) Testimony That Grant
Was “Cooperative”
[19] Third, Grant claims the district court erred by admit-
ting a crime laboratory technician’s testimony that Grant was
29
State v. Schrein, 244 Neb. 136, 147, 504 N.W.2d 827, 834 (1993).
- 187 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
“[c]ooperative.” However, an alleged error must be both spe-
cifically assigned and specifically argued in the brief of the
party asserting the error to be considered by an appellate
court.30 Though Grant assigns the admission of the testimony
as error, he never argues why it was error. As such, we will not
address this argument further.
Grant’s fifth assignment of error lacks merit.
5. A dmission of Other Testimony
In Grant’s sixth and seventh assignments of error, he argues
that the district court erred by admitting two additional pieces
of testimony. First, Grant objects to Carter’s testimony that
Grant and McKee had no relationship during McKee and
Carter’s move from Wichita to Omaha and during the first
week McKee and Carter lived in Omaha. Second, Grant argues
that Hinsley should not have been permitted to testify about
Carter’s demeanor on the day McKee was killed.
(a) Standard of Review
The exercise of judicial discretion is implicit in decisions to
admit evidence based on relevancy or admissibility, and those
decisions will not be overturned by an appellate court in the
absence of an abuse of discretion.31
(b) Carter’s Testimony About Grant
and McKee’s Relationship
[20] Grant asserts the admission of Carter’s testimony
regarding Grant and McKee’s relationship violated evidence
rule 602.32 Rule 602 prohibits a witness from testifying “unless
evidence is introduced to support a finding that [s]he has per-
sonal knowledge of the matter.”
Grant essentially argues that Carter should not have been
able to testify about the nature of McKee’s relationship with
30
State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).
31
Sack, supra note 11.
32
Neb. Evid. R. 602, Neb. Rev. Stat. § 27-602 (Reissue 2008).
- 188 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
Grant because Carter was not present for every single encoun-
ter between Grant and McKee. But Carter did not testify about
any matters or events that she did not personally witness.
The State never asked Carter whether Grant and McKee were
actually together. Instead, Carter testified about her personal
observations of Grant’s absence and her conversations with
McKee. (Grant does not raise any hearsay argument regarding
this testimony.) Carter testified only that she had the impres-
sion that Grant and McKee were not together.
Grant also assigns that the district court erred by admit-
ting Carter’s testimony that Grant and McKee’s arguments
got worse in the weeks leading up to the murder. However,
although Grant assigned this error, he did not argue it in his
brief and the basis of this assignment is not readily apparent
from the record. An alleged error must be both specifically
assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court.33 We
will not consider this argument further.
For the reasons stated, we hold that Grant’s sixth assignment
of error is without merit.
(c) Hinsley’s Testimony About
Carter’s Demeanor
At trial, Grant objected to Hinsley’s testimony only on the
basis of relevancy. Grant now argues that the testimony was
not relevant under evidence rule 40134 and that it was unfairly
prejudicial under rule 403.
We turn first to relevancy under rule 401. Evidence is rel-
evant if it tends in any degree to alter the probability of a
material fact.35 In this case, whether Grant killed McKee was
a material fact. The State was required to prove Grant’s guilt
beyond a reasonable doubt. That burden gives the State a
33
Cook, supra note 30.
34
Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2008).
35
Ford, supra note 27.
- 189 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
strong incentive to discredit theories that another person com-
mitted the crime, even if the defense did not explicitly raise
such a theory. Hinsley’s testimony about Carter’s demeanor
was relevant under rule 401, because it tended to prove that
Carter did not kill McKee.
[21] We next turn to Grant’s rule 403 argument. Unless
an objection to offered evidence is sufficiently specific to
enlighten the trial court and enable it to pass upon the suf-
ficiency of such objection and to observe the alleged harmful
bearing of the evidence from the standpoint of the objector, no
question can be presented therefrom on appeal.36 In Schrein,
we held that a defendant’s objection that evidence is irrelevant
does not preserve for review any objection under rule 403.37
Therefore, Grant’s relevancy objection did not preserve the
rule 403 objection he now raises on appeal.
Grant’s seventh assignment of error is without merit.
6. Autopsy Photographs
In Grant’s eighth assignment of error, he asserts that 11
autopsy photographs, exhibits 230 to 236, 239 to 241, and
245 were cumulative and unfairly prejudicial under rule 403.
The photographs show McKee’s body from various angles.
Each photograph depicts several wounds, and no photograph
shows exactly the same wounds as any other. The State agreed
to withhold exhibits 237 and 238, because the district court
suggested that they may have been cumulative. But the dis-
trict court determined that none of the other photographs
were cumulative.
(a) Standard of Review
An appellate court reviews the admission of photographs of
victims’ bodies for abuse of discretion.38
36
State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).
37
Schrein, supra note 29.
38
State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
- 190 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
(b) Analysis
Under rule 403, relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of
unfair prejudice or if it is needlessly cumulative.39
We find no error in the admission of these photographs.
First, the prejudicial effect of the exhibits does not substan-
tially outweigh their probative value. Second, the photographs
were not cumulative.
The photographs were highly probative to show the condi-
tion of McKee’s body, the nature of her wounds, the cause
of her death, and the intent of her attacker. Admittedly, the
photographs contain graphic images. But Grant is convicted of
stabbing McKee more than 50 times. As we noted in State v.
Dubray,40 “gruesome crimes produce gruesome photographs.”
Thus, any prejudicial effect of the gruesome photographs does
not outweigh their probative value.
Furthermore, the photographs are not cumulative, because
they each portray different wounds or angles. It is not
unreasonable to expect that the State must show multiple
pictures in order to document all or most of McKee’s numer-
ous wounds.
For these reasons, the district court did not abuse its dis-
cretion by finding that the photographs were not unfairly
prejudicial or cumulative. Grant’s eighth assignment of error is
without merit.
7. Chain of Custody of
Exhibits 291 and 292
In Grant’s ninth assignment of error, he argues that the dis-
trict court erred by admitting the maroon tank top and black
pants into evidence. Grant asserts that there was improper
foundation for these exhibits to prove the chain of custody.
39
See Bauldwin, supra note 8.
40
Dubray, supra note 38, 289 Neb. at 219, 854 N.W.2d at 599.
- 191 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
(a) Standard of Review
[22] Because authentication rulings are necessarily fact
specific, a trial court has discretion to determine whether
evidence has been properly authenticated. An appellate court
reviews a trial court’s ruling on authentication for abuse
of discretion.41
(b) Analysis
At trial, the State introduced exhibits 291 and 292 through
Helligso’s testimony. When the State offered exhibit 291, the
maroon tank top, Grant objected on “foundation.” When the
State offered exhibit 292, the black pants, Grant objected on
“foundation, chain of custody.” The bases of both objections
were, apparently, that Helligso was not personally present
when the exhibits were placed into protective plastic for trial.
[23] Where objects pass through several hands before being
produced in court, it is necessary to establish a complete chain
of evidence, tracing the possession of the object or article to
the final custodian; and if one link in the chain is missing,
the object may not be introduced in evidence.42 Proof that an
exhibit remained in the custody of law enforcement officials is
sufficient to prove a chain of possession and is sufficient foun-
dation to permit its introduction into evidence.43
The record shows the evidence was first collected at
McKee’s apartment by Queen and crime laboratory person-
nel. A crime laboratory technician brought the items from the
duffelbag, including the maroon tank top and the black pants,
to the police crime laboratory and packaged each item indi-
vidually. Queen testified that he was present when the items
were booked into property pursuant to Omaha police protocol.
Hinsley then checked the maroon tank top out of property and
delivered it, in accordance with police protocol, to UNMC
41
See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
42
State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).
43
State v. Mather, 264 Neb. 182, 646 N.W.2d 605 (2002).
- 192 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
for DNA testing; Helligso documented receiving the tank
top. After DNA testing was complete, Hinsley retrieved the
evidence. There is no record that the black pants were ever
removed from law enforcement custody.
We do not know who placed the exhibits into plastic, or
when he or she did so. However, the sequence of events above
provides a consistent chain of custody from initial collection
until, presumably, the final transfer of the evidence to police
property before trial.
In addition, both Helligso and Carter testified that the items
were what the State purported them to be. The crime laboratory
technician testified that other than some predictably lower vis-
ibility of bloodstains on the black pants, the items looked the
same as when she saw them in September 2013.
In light of this evidence, it was not an abuse of discretion
for the district court to admit exhibits 291 and 292. Therefore,
Grant’s ninth assignment of error is without merit.
8. Denial of Motions for Mistrial
In Grant’s 10th assignment of error, he argues the district
court erred by denying Grant’s two motions for mistrial. Grant
moved for mistrial on the sixth and seventh days of trial, after
his violent outbursts in the courtroom.
(a) Standard of Review
[24] Decisions regarding motions for mistrial are directed
to the discretion of the trial court, and will be upheld in the
absence of an abuse of discretion.44
(b) Analysis
[25] The district court properly denied Grant’s motions
for mistrial. A mistrial is properly granted in a criminal case
where an event occurs during the course of a trial which is of
such a nature that its damaging effect cannot be removed by
44
Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754
N.W.2d 406 (2008).
- 193 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
proper admonition or instruction to the jury and thus prevents
a fair trial.45
In State v. Blackwell,46 we upheld the denial of a motion for
mistrial where a defendant’s outbursts had caused the alleged
prejudice. In Blackwell, the defendant had, on two separate
occasions, stood during examination of witnesses and yelled,
disrupting the proceedings. We held that a defendant’s own
conduct affords no basis for a new trial.
[26] A defendant faces a higher threshold than merely show-
ing a possibility of prejudice when attempting to prove error
predicated on the failure to grant a mistrial. Instead, the
defend­ant must prove the alleged error actually prejudiced him
or her, rather than creating only the possibility of prejudice.47
On the sixth day of Grant’s trial, outside the presence of
the jury, Grant struck a deputy. Jurors were questioned after
the incident about whether they had perceived any of what
occurred. Five jurors had witnessed law enforcement running
in response to radio calls. Though two jurors thought that the
incident might have had something to do with Grant’s case,
none had any idea what had actually occurred. Further, when
the district court asked some of the jurors if they could remain
fair and impartial, they all responded that they could.
On the seventh day of trial, this time in the presence of the
jury, Grant stood up suddenly and punched his counsel in the
head. According to Steenbock’s offer of proof testimony, the
district court signaled to the bailiff, sheriffs punched Grant, a
county attorney yelled “‘[t]ase him,’” and a juror yelled “stop
it.” After trial began again, the court admonished the jury and
asked jurors to notify the court if they could no longer remain
fair and impartial. None did.
Grant attempts to distinguish Blackwell by arguing that the
reactions of others in the courtroom were independent causes
45
State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
46
State v. Blackwell, 184 Neb. 121, 165 N.W.2d 730 (1969).
47
Dixon, supra note 45.
- 194 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
of prejudice. We reject this argument. None of the reactions by
counsel, the judge, the bailiff, the sheriffs, or the jurors would
have occurred without Grant’s own outburst. Accepting Grant’s
distinction would render the rule from Blackwell meaningless
and permit a defendant to benefit from his or her own bad
behavior during trial.
Furthermore, Grant has not shown that any prejudice
resulted from the incidents. First, the jurors never learned
what had occurred on the sixth day of trial. Additionally, the
district court admonished the jury on both occasions. Finally,
the jurors indicated they could remain fair and impartial after
each incident.
Grant’s 10th assignment of error is without merit.
9. Denial of Motion for
Psychological Evaluation
In Grant’s 11th assignment of error, he argues that the dis-
trict court erred by denying his counsel’s request for a short
recess and for a second psychological evaluation.
(a) Standard of Review
[27] The trial court’s determination of competency will not
be disturbed unless there is insufficient evidence to support
the finding.48
(b) Analysis
[28,29] The means to be employed to determine compe-
tency or the substantial probability of competency within the
foreseeable future are discretionary with the district court,
and the court may cause such medical, psychiatric, or psycho-
logical examination of the accused to be made as he or she
deems necessary in order to make such a determination under
Neb. Rev. Stat. § 29-1823(1) (Reissue 2008).49 A person is
48
Walker, supra note 6.
49
State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000).
- 195 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
competent to plead or stand trial if he or she has the capacity
to understand the nature and object of the proceedings against
him or her, to comprehend his or her own condition in refer-
ence to such proceedings, and to make a rational defense.50 A
defendant’s derangement or lack of mental ability is not suf-
ficient to prove incompetence to stand trial.51
In support of Grant’s motion, defense counsel submitted an
affidavit averring that a member of Grant’s family and Carter
suggested Grant suffered from mental illness. The affidavit
further stated that Grant had become paranoid during trial
and that at one point, Grant had even ceased wanting to dis-
cuss the trial because he predicted that the world would end
before trial began. Counsel argued that Grant had become
incompetent during the course of trial, at some point after
his initial evaluation. However, the district court found that
counsel’s affidavit was insufficient to overcome the findings
of the pretrial evaluation. Implicit in this finding, the district
court concluded that another psychological evaluation was
not required to determine Grant’s continuing competency to
stand trial.
There was sufficient evidence to support the district court’s
finding. The initial psychological evaluation found Grant com-
petent beyond question. The evaluation even took into account
Grant’s past experience taking medication normally used to
treat mental illness.
Further, counsel’s affidavit and Grant’s behavior during trial
did not truly raise questions about Grant’s ability to under-
stand the nature of the proceedings, his place in them, or to
participate in his defense. In this case, Grant’s mere impul-
sive behavior during trial is not sufficient to raise the issue
of incompetence.
Therefore, Grant’s 11th assignment of error is without merit.
50
State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012).
51
See State v. Crenshaw, 189 Neb. 780, 205 N.W.2d 517 (1973).
- 196 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
10. Cooper’s Testimony
and Objection
In Grant’s 12th assignment of error, he asserts that the
district court violated his constitutional rights by refusing to
force Cooper to testify at the hearing on the seventh day of
trial and by permitting Cooper to object to Steenbock’s testi-
mony. Steenbock’s testimony was offered in support of Grant’s
second motion for a mistrial and the motion for a recess and
psychological evaluation.
(a) Standard of Review
[30] In Nebraska, a trial judge has broad discretion over the
conduct of a trial.52
(b) Analysis
Although the events of the hearing on the seventh day of
trial were curious, they do not appear to have deprived Grant
of any constitutional right. Any error in the district court’s con-
duct of the hearing was harmless. As discussed above under
subheadings 8 and 9, the motions for mistrial and psychologi-
cal evaluation on the seventh day of trial were without merit.
The introduction of Cooper’s statements offered in support of
Grant’s motions would not have had any impact on the pro-
priety of the district court’s rulings. Thus, the exclusion of
Cooper’s statements was harmless.
For these reasons, Grant’s 12th assignment of error is with-
out merit.
11. Intentional M anslaughter
Jury Instruction
In Grant’s 13th assignment of error, he argues that the jury
instruction for intentional manslaughter violated his due proc­
ess rights. Grant asserts that the language “without malice”
should have been removed from the jury instruction.
52
Pangborn, supra note 13.
- 197 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
(a) Standard of Review
[31] Whether jury instructions are correct is a question of
law, which an appellate court resolves independently of the
lower court’s decision.53
(b) Analysis
[32] When instructing the jury, it is proper for the court to
describe the offense in the language of the statute.54 Under
Nebraska statute, “[a] person commits manslaughter if he
or she kills another without malice upon a sudden quarrel
. . . .”55 In State v. Cook,56 we affirmed a conviction for first
degree murder where the jury was instructed to find man-
slaughter if “the killing was done ‘upon a sudden quarrel’ and
‘without malice.’” Jury instruction No. 7 in the present case
defined intentional manslaughter the same way as the trial
court had in Cook.
Grant gives no argument why our law defining intentional
manslaughter should be found unconstitutional. Thus, we apply
our existing jurisprudence and hold that the district court did
not err by giving jury instruction No. 7.
Grant’s 13th assignment of error is without merit.
12. Insufficiency of Evidence
Finally, Grant assigns that his convictions were not sup-
ported by sufficient evidence.
53
State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).
54
State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).
55
Neb. Rev. Stat. § 28-305 (Reissue 2008) (emphasis supplied).
56
State v. Cook, 244 Neb. 751, 756, 509 N.W.2d 200, 204 (1993) (citing Neb.
Rev. Stat. § 28-305(1) (Reissue 1989)). See, also, State v. Smith, 282 Neb.
720, 806 N.W.2d 383 (2011) (holding that intentional killing committed
upon sudden quarrel without malice is manslaughter; overruling State
v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), which had found that
manslaughter was not intentional crime).
- 198 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
(a) Standard of Review
[33] When reviewing for sufficiency of the evidence to sus-
tain a conviction, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.57
(b) Analysis
Grant does not explain which essential elements of the
crimes charged he believes were unproven. Instead, he raises
concerns about the missing hair evidence, the number of sur-
faces not tested for DNA or fingerprints, and the fact that none
of the law enforcement officials who saw Grant on September
17, 2013, noticed the drop of blood on his right shoe until the
shoe was removed for evidence.
Logically, none of the concerns Grant raises necessarily
create reasonable doubt. Just because more evidence could
have been gathered does not mean that the evidence actually
obtained was insufficient.
Taken in the light most favorable to the State, a reasonable
juror could find every element of the crimes of which Grant
was convicted. The elements of first degree murder, as given
to the jury, were that (1) Grant killed McKee on September
17, 2013; (2) in Douglas County, purposely; (3) with deliber-
ate and premeditated malice; and (4) not as a result of a sud-
den quarrel.
As discussed above, a reasonable juror could find beyond
a reasonable doubt that Grant was the person who killed
McKee. DNA evidence and Carter’s testimony linked the
maroon tank top, Adidas sneakers, and Nike sneakers to Grant.
DNA testing suggested that the blood on each of these items
was McKee’s. Additionally, there was no sign of forced entry
to the apartment, a juror could infer from Carter’s testimony
57
State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
- 199 -
Nebraska A dvance Sheets
293 Nebraska R eports
STATE v. GRANT
Cite as 293 Neb. 163
that the door was locked from the outside after the killer left
the apartment, and there was no sign that any valuables had be
stolen. This evidence implicates Grant very strongly, because
he had access to the apartment and the murder seems to have
been personally motivated. Further, Grant’s “‘almost single’”
T-shirt had been placed in Carter’s bedroom as if to taunt
her. Finally, Grant exhibited a consciousness of guilt when
he attempted to sneak onto a bus to Chicago and then gave
Partridge and Checksfield false information in order to avoid
arrest. All of this evidence strongly incriminates Grant and
supports the conviction.
Furthermore, because McKee was stabbed over 50 times
with “a great deal of force,” a reasonable juror could find
beyond a reasonable doubt that Grant killed McKee deliber-
ately and maliciously. One neighbor’s testimony that there
was a pause between the argument and the screaming could be
the basis for a reasonable juror to find that McKee’s murder
was premeditated and that it was not upon a sudden quarrel.
There is no dispute that McKee was killed on September 17,
2013, in Douglas County. Furthermore, sufficient evidence
supports Grant’s conviction for use of a deadly weapon to
commit a felony, because the murder was clearly committed
with a knife.
Therefore, the State presented sufficient evidence and
Grant’s 14th assignment of error is without merit.
V. CONCLUSION
Grant’s convictions and sentences are affirmed.
A ffirmed.