State v. Braesch , 292 Neb. 930 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
03/04/2016 09:16 AM CST
- 930 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
State of Nebraska, appellee, v.
Steven R. Braesch, appellant.
___ N.W.2d ___
Filed March 4, 2016. No. S-14-1091.
1. Jury Trials: Waiver: Appeal and Error. An appellate court reviews a
trial court’s ruling on a request to withdraw a defendant’s waiver of a
jury trial for abuse of discretion.
2. Motions for New Trial: Appeal and Error. An appellate court
reviews a trial court’s order denying a motion for a new trial for abuse
of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when
a judge, within the effective limits of authorized judicial power, elects
to act or refrain from acting, but the selected option results in a deci-
sion which is untenable and unfairly deprives a litigant of a substantial
right or a just result in matters submitted for disposition through a judi-
cial system.
4. Jury Trials: Waiver. Whether to waive a jury trial is a basic trial deci-
sion for which the defendant has the ultimate authority.
5. ____: ____. To waive the right to trial by jury, a defendant must be
advised of the right to a jury trial, must personally waive that right,
and must do so either in writing or in open court for the record. And a
defendant must waive the right to a jury trial knowingly, intelligently,
and voluntarily.
6. Judges. A defendant has the right to an impartial judge but does not
have the right to have his or her case heard before any particular judge.
7. Jury Trials: Waiver. After a defendant validly waives his or her right to
a jury trial, the defendant has no absolute right to withdraw the waiver.
Whether to permit a defendant to withdraw a valid waiver of the right to
a jury trial falls within the trial court’s discretion.
8. ____: ____. Absent a showing of good cause for a delay, a trial court
does not abuse its discretion in overruling a motion to withdraw a
waiver of a jury trial that is not made until the eve of trial.
- 931 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
9. Jury Trials: Waiver: Appeal and Error. Absent plain error, when a
party knows of a circumstance that purportedly affected the party’s deci-
sion to validly waive a jury trial but does not raise the matter until after
the trial, an appellate court will not consider a challenge on appeal to a
trial court’s refusal to grant a new trial on that ground.
10. Trial: Expert Witnesses: Appeal and Error. Whether a trial court can
decide that an expert opinion is unreliable after admitting it into evi-
dence is a procedural issue that an appellate court decides de novo.
11. ____: ____: ____. An appellate court reviews a trial court’s ruling to
admit or exclude an expert’s testimony for abuse of discretion.
12. Trial: Expert Witnesses. Before admitting expert opinion testimony
under Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2008), a
trial court must determine whether the expert’s knowledge, skill, experi-
ence, training, and education qualify the witness as an expert.
13. ____: ____. Under the framework established by 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), if an expert’s opinion involves scientific or spe-
cialized knowledge, a trial court must determine whether the reasoning
or methodology underlying the testimony is valid (reliable). It must
also determine whether that reasoning or methodology can be properly
applied to the facts in issue.
14. ____: ____. The requirements of 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), do not preclude a court presiding over a bench trial from
admitting an expert’s opinion subject to the court’s later determination
that the opinion is unreliable and should not be credited.
15. Expert Witnesses. To be admissible, an expert’s opinion must be based
on good grounds, not mere subjective belief or unsupported speculation.
16. Trial: Expert Witnesses. A trial court should not require absolute cer-
tainty in an expert’s opinion, but it has discretion to exclude expert tes-
timony if an analytical gap between the data and the proffered opinion
is too great.
17. ____: ____. A trial court can consider several nonexclusive factors in
determining the reliability of an expert’s opinion: (1) whether a theory
or technique can be (and has been) tested; (2) whether it has been
subjected to peer review and publication; (3) whether, in respect to a
particular technique, there is a high known or potential rate of error; (4)
whether there are standards controlling the technique’s operation; and
(5) whether the theory or technique enjoys general acceptance within a
relevant scientific community.
- 932 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
18. Expert Witnesses. Absent evidence that an expert’s testimony grows
out of the expert’s own prelitigation research or that an expert’s research
has been subjected to peer review, experts must show that they reached
their opinions by following an accepted method or procedure as it is
practiced by others in their field.
19. Evidence: Appeal and Error. When reviewing the sufficiency of the
evidence to support 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 essen-
tial elements of the crime beyond a reasonable doubt.
Appeal from the District Court for Sarpy County: M ax
K elch, Judge. Affirmed.
James Martin Davis, of Davis Law Office, for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, Cassel, and Stacy, JJ.
Connolly, J.
I. SUMMARY
On July 13, 2013, the appellant, Steven R. Braesch, shot and
killed his father, William Braesch (William), in the sight of
Braesch’s three nieces. The State claimed his three nieces were
within the line of fire. After a bench trial, the court convicted
Braesch of first degree murder, using a firearm to commit a
felony, and three counts of negligent child abuse. In a motion
for a new trial, he claimed that the reassignment of his bench
trial to a new judge was an irregularity in the proceedings.
Braesch contends that the court erred in failing to conclude
that his waiver of a jury trial was invalid because he would
not have waived this right with any other judge presiding.
Additionally, Braesch argues that the court erred in excluding
his expert’s opinion regarding his mental state when he killed
William and finding the evidence sufficient to support his first
degree murder conviction.
Finding no reversible error, we affirm.
- 933 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
II. BACKGROUND
Braesch’s mother, Virginia Braesch (Virginia), testified that
Braesch moved away from home in the 1990’s but moved back
into his parents’ home in Gretna, Nebraska, about a year or
two before the murder. He was staying in the basement. About
6 weeks before the murder, Braesch had told Virginia that he
had AIDS. She said that “off and on,” he would lie in bed sick,
“like depression or something,” but that he would also “be
really high and all happy.” She and William had decided to ask
him to move out because of his moods. She knew that Braesch
took many medications, because they were delivered to the
house or would come in the mail. She also went with him to
Mexico so that he could buy injectable steroids.
On July 13, 2013, William and Virginia’s three granddaugh-
ters, Braesch’s nieces, were at the house for a visit. The oldest
one was age 7, and the younger twins were age 5. Virginia said
that Braesch had been sick in bed for 6 days and appeared to be
depressed. When Virginia took her granddaughters to the base-
ment to trim their hair, Braesch came out of his room angry
about the noise. After Virginia took the girls back upstairs,
Braesch scared her by cornering her in the bathroom and yell-
ing at her. She walked out of the house and met William in the
garage. She asked William to call the 911 emergency dispatch
service, but he did not. That confrontation occurred at about
10:30 a.m. Virginia and William took their granddaughters to a
wedding and reception later that day and did not return home
until about 7:30 p.m.
Virginia began putting some groceries away and making a
salad in the kitchen, while William went to change clothes to
finish some chores. From where Virginia was working in the
kitchen, she could see into the dining room and an enclosed
porch that was attached to and mostly open to the back dining
room wall. As William was headed to the garage door off the
enclosed porch, Braesch came up from the basement stairs off
the dining room. William told Braesch that he wanted him to
move out of the house within 30 days. Virginia said there was
- 934 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
no physical conflict and Braesch never said a word. She said
that Braesch went downstairs to “cool off” and that William
just looked at her and shook his head. Braesch immediately
came back up from the basement with a gun; Virginia said
he reappeared in a matter of seconds. He shot William while
William was standing beside the garage door in the enclosed
porch. The granddaughters were sitting in a hot tub less than
10 feet from a sliding glass door on the back wall of the
enclosed porch.
Virginia did not see a gun because it happened so quickly.
But she heard a gunshot and saw that William was in pain. She
ran through the living room and out the front door. She got in
their car and locked the doors because by then, she could see
Braesch on the front deck. He did not have a gun then, but he
“didn’t look right” to her. She drove to a neighbor’s house and
asked him to call 911. Within a few minutes, the neighbor led
sheriff’s officers to the house and saw Braesch sitting outside
with his three nieces beside him. Braesch complied with the
officers’ commands and was arrested without incident.
One of the granddaughters testified. While she was in the
hot tub, she could see through the sliding glass door and saw
Braesch shooting William. She said that they were yelling
at each other about moving and that then Braesch pushed
William down and started shooting him. She saw William
on the ground beside the sliding glass door. After waiting a
few minutes, she climbed over him to look for Virginia in the
house. She did not see Virginia in the house when Braesch was
shooting William.
Officers found a lever-action, .22-caliber rifle on the dining
room table and William’s body beside the sliding glass door.
“Lever action” means that after every shot, “the action of the
rifle has to be manually cycled in order to eject the spent car-
tridge and feed a new one into the chamber.” But numerous
rounds can be fired in a matter of seconds.
Crime scene investigators found seven shell casings: one in
the dining room and the rest on or around William’s body in
- 935 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
the enclosed porch area. The parties stipulated that the casings
were fired from the gun that the officers found. An investiga-
tor who attended the autopsy testified that she collected five
bullets or bullet fragments from five different areas of the
body: the abdomen, the right collarbone, the lower spine, the
right frontal lobe of the brain, and two from the left scalp. The
autopsy report stated that the scalp wounds had gray-black par-
ticulate material around the entrances, indicating that William
was shot in the head from close range.
1. Evidence of Braesch’s
Mental State From His
Telephone Calls
After officers arrested Braesch, he made two telephone calls
from jail that an officer recorded. On July 19, 2013, 6 days
after the homicide, Braesch called Virginia. During the con-
versation, he discussed an insanity defense and told her that
“there was nothing premeditated” about the homicide. This
colloquy followed:
Virginia: No. Well, there was. You know what they’re
going to say?
Braesch: But Mom, before that day, before 5 minutes
before it happened, before 2 minutes before it happened, I
never gave it a thought—of killing dad.
Virginia: Never?
Braesch: Never.
Virginia: Never have you?
Braesch: I have. Once before, like 6 months ago. Six
months ago, yeah. . . . But 6 months ago, I didn’t even
know how to load a gun.
In a telephone call to a friend on July 22, 2013, Braesch
again denied killing William with premeditation:
Everybody is saying that first degree murder will be
pretty tough to— There was honestly nothing premedi-
tated about this. My mom and I were arguing and my dad
got in the middle of it. And he was in the wrong place at
- 936 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
the wrong time. I mean I didn’t go to work on Wednesday,
Thursday, Friday. I was feeling really lousy.
But later in the conversation, Braesch admitted to going down-
stairs to get a loaded gun:
The thing is, the gun, the gun was loaded. We always
keep that gun loaded to kill the cats. . . . I ran down-
stairs, I grabbed the gun that was loaded. It took seconds.
I didn’t— They think that I loaded the gun, which is
not true . . . . There shouldn’t be any indication of that.
Because it’s not true . . . .
2. Court’s Findings
At the close of the State’s evidence, the court overruled
Braesch’s motion for a directed verdict. During the court’s find-
ings from the bench after the trial, it concluded that Braesch’s
expert’s opinion of his mental state when he killed William
was not credible. It found Braesch guilty of the charged crimes.
Later, it overruled Braesch’s motion for a new trial. It rejected
his arguments that his waiver of a jury trial was invalid and
that the evidence was insufficient to support his convictions
on the charges of first degree murder and the three counts of
negligent child abuse.
After issuing this order, the court sentenced Braesch to life
imprisonment for the murder conviction; 10 years’ imprison-
ment for the use of a firearm conviction, to be served consecu-
tively to the life imprisonment sentence; and aggregate concur-
rent sentences of 1 year’s imprisonment for the negligent child
abuse convictions, to be served consecutively to the 10-year
sentence for use of a firearm.
III. ASSIGNMENTS OF ERROR
Braesch assigns that the court erred in (1) failing to con-
clude that he did not voluntarily and intelligently waive his
right to a jury trial or consent to a trial before Judge Max
Kelch; (2) excluding his expert witness’ opinion that his bipo-
lar symptoms, combined with his recent history of abusing
- 937 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
several substances, interfered with his ability to form voli-
tional intent; and (3) failing to find that the evidence was
insufficient to prove beyond a reasonable doubt that he killed
William with deliberate and premeditated malice.
IV. ANALYSIS
1. R eassignment of the Case to a
New Judge Was Not a Denial of
Braesch’s R ight to a Jury Trial
or an A buse of Discretion
(a) Additional Facts
As relevant to the issues raised on appeal, Braesch sought
a new trial for two reasons: (1) The evidence was insuffi-
cient to support the first degree murder conviction, and (2)
an irregularity in the proceedings occurred. In support of his
irregularity claim, Braesch alleged that he had waived his
right to a jury trial, believing that the trial judge would be
Judge William B. Zastera. Instead, his case was reassigned
to Judge Kelch. Braesch claimed that because of confusion
over who would be the assigned judge, he could not move to
withdraw his plea and “was therefore prevented from a having
a fair trial.”
The court allowed the parties to submit affidavits regarding
the alleged irregularity in the proceedings. One of Braesch’s
trial attorneys, who had withdrawn from representing Braesch
before the motion for a new trial was heard, stated in an affi-
davit that Judge Zastera’s assignment to Braesch’s case was an
important consideration in advising him to waive his right to a
jury trial.
The record shows that Braesch waived his right to a jury
trial on April 10, 2014. Judge Zastera set the trial date for
July 15. But on June 23, Judge Kelch was assigned to a pre-
trial hearing because Judge Zastera had a medical emergency.
At the June 24 hearing, Judge Kelch informed the parties
that because of Judge Zastera’s medical emergency, the case
had been transferred to him. Braesch and his two attorneys
- 938 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
were present at this hearing. At some unstated time, the par-
ties had a conference with Judges Kelch and Zastera about
Judge Zastera’s possibly still hearing the case. But on July
2, Braesch’s attorney “was again informed” that Judge Kelch
would preside.
Braesch did not move to withdraw his plea before the bench
trial began on July 15, 2014, with Judge Kelch presiding.
Braesch stated that he thought the case would be reassigned
to Judge Zastera when he returned to the bench and did not
learn until the day before his trial that Judge Zastera was ill
again. Braesch said that he would not have waived his right
to a jury trial if he had known Judge Kelch would preside and
that he waived his right solely because he believed that Judge
Zastera would preside. Braesch’s trial attorney stated that this
sequence of events unfairly limited the time Braesch had to
consider the procedural complexities of asking the court to
withdraw his waiver and decide whether to do so.
Judge Kelch concluded that Braesch had failed to show any
prejudice resulting from the transfer. Instead, he concluded that
Braesch’s desire for a particular judge was only an attempt to
gain a tactical advantage and not a reason to grant a new trial.
He further concluded that Braesch had failed to show a valid
reason for not moving to vacate the waiver.
(b) Parties’ Contentions
Braesch contends that it would be naive not to recognize that
a defendant’s decision whether to waive a jury trial is influ-
enced by the judge assigned to his case. So he argues that the
last-minute reassignment of his case to a judge with whom he
was unfamiliar should be a sufficient reason to conclude that
he did not freely, voluntarily, and intelligently waive his right
to a jury trial.
The State argues that a motion for a new trial is not the
proper vehicle for attempting to withdraw a waiver of a jury
trial. Because Braesch did not claim he would not have waived
his right to a jury trial unless Judge Zastera presided until after
- 939 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
he was convicted, the State argues that he had waived any chal-
lenge to the validity of his plea on this ground.
(c) Standard of Review
[1-3] We review a trial court’s ruling on a request to with-
draw a defendant’s waiver of a jury trial for abuse of discre-
tion.1 We also review a trial court’s order denying a motion
for a new trial for abuse of discretion.2 A judicial abuse of
discretion exists when a judge, within the effective limits of
authorized judicial power, elects to act or refrain from acting,
but the selected option results in a decision which is unten-
able and unfairly deprives a litigant of a substantial right or
a just result in matters submitted for disposition through a
judicial system.3
(d) Analysis
[4,5] Whether to waive a jury trial is a basic trial decision
for which the defendant has the ultimate authority.4 To waive
the right to trial by jury, a defendant must be advised of the
right to a jury trial, must personally waive that right, and must
do so either in writing or in open court for the record.5 And a
defendant must waive the right to a jury trial knowingly, intel-
ligently, and voluntarily.6
[6] But Braesch cites no authority for his implicit argument
that a defendant’s waiver of a jury trial is ineffective if the
defendant is not informed that his or her case could be reas-
signed to a different judge. To the contrary, we have held that a
1
See, State v. Zemunski, 230 Neb. 613, 433 N.W.2d 170 (1988); State v.
Kaba, 217 Neb. 81, 349 N.W.2d 627 (1984).
2
See, State v. Tolbert, 288 Neb. 732, 851 N.W.2d 74 (2014); State v.
Dunster, 270 Neb. 773, 707 N.W.2d 412 (2005).
3
State v. Hill, 288 Neb. 767, 851 N.W.2d 670 (2014).
4
See State v. Iromuanya, 282 Neb. 798, 806 N.W.2d 404 (2011).
5
State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).
6
See State v. Journey, 207 Neb. 717, 301 N.W.2d 82 (1981).
- 940 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
defendant has the right to an impartial judge but does not have
the right to have his or her case heard before any particular
judge.7 Braesch did not claim that Judge Kelch was biased, and
he does not argue on appeal that the reassignment prejudiced
him. Nor does the court’s colloquy with Braesch show that
Judge Zastera led Braesch to believe his bench trial would be
heard only by him if he waived a jury trial.8 We have reviewed
Braesch’s waiver of his right to a jury trial and conclude that
it was valid.
[7] After a defendant validly waives his or her right to a
jury trial, the defendant has no absolute right to withdraw the
waiver. Whether to permit a defendant to withdraw a valid
waiver of the right to a jury trial falls within the trial court’s
discretion.9
[8] Some of our cases illustrate that absent a showing of
good cause for a delay, a trial court does not abuse its discre-
tion in overruling a motion to withdraw a waiver of a jury trial
that is not made until the eve of trial.10 And many courts have
held that a request to withdraw a valid waiver of a jury trial
after a trial has commenced is ordinarily untimely.11
But we have not set an absolute time limit for a defendant
to request a withdrawal of his or her waiver. And our decision
in State v. Halsey12 suggests that in limited circumstances, such
a request might be appropriate after a trial commences. But
even in Halsey, we found no abuse of discretion in the court’s
denial of a new trial. We reached this decision in part because
the defendant did not move to withdraw his waiver of a jury
7
See State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007).
8
See Fitzgerald v. Withrow, 292 F.3d 500 (6th Cir. 2002).
9
See Zemunski, supra note 1.
10
See, Kaba, supra note 1; Sutton v. State, 163 Neb. 524, 80 N.W.2d 475
(1957).
11
See 3 Charles E. Torcia, Wharton’s Criminal Procedure § 389 (13th ed.
1991) (citing cases).
12
State v. Halsey, 232 Neb. 658, 441 N.W.2d 877 (1989).
- 941 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
trial or ask for a mistrial until after the trial—instead of when
he first became aware of the claimed circumstance that sup-
ported his motion to withdraw the waiver.
We recognize that an assigned judge is a factor that defense
attorneys may take into consideration when advising their cli-
ents whether they should waive a jury trial.13 But we need not
consider the circumstances under which a change in the pre-
siding judge could warrant allowing a defendant to withdraw
a waiver of the right to a jury trial. Braesch has not shown
good cause for not moving to withdraw his waiver before the
trial began.
As stated, Judge Kelch first informed Braesch and his
attorneys that the case had been reassigned to him 21 days
before the trial was scheduled to begin. Thirteen days before
trial, Braesch’s attorney was again informed that Judge Kelch
would preside. Even if Braesch mistakenly thought that his
case might still be reassigned to Judge Zastera again, his attor-
ney knew otherwise. And his attorney did not allege that she
failed to discuss this information with Braesch. Braesch admits
that he minimally knew the day before trial that Judge Zastera
would not preside. Yet, he did nothing to timely assert a claim
that he would not have agreed to waive his right to a jury trial
with any judge presiding besides Judge Zastera.
[9] We have often held that a party who knows of judicial
conduct that is purportedly improper cannot gamble on a favor-
able result without raising the matter and then complain that
the claimed error caused an unfavorable outcome.14 The same
reasoning applies here. Absent plain error, when a party knows
of a circumstance that purportedly affected the party’s decision
to validly waive a jury trial but does not raise the matter until
after the trial, we will not consider a challenge on appeal to
a trial court’s refusal to grant a new trial on that ground. The
13
6 Wayne R. LaFave et al., Criminal Procedure § 22.1(h) (4th ed. 2015).
14
See, e.g., State v. Schreiner, 276 Neb. 393, 418, 754 N.W.2d 742, 762
(2008).
- 942 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
court’s refusal to grant a new trial because of the reassignment
of judges was not plain error.
2. Court Did Not Err in Concluding
That Braesch’s Expert’s Opinion
Was Unreliable at the
Close of Evidence
(a) Additional Facts
Braesch’s only witness was Kirk Newring, Ph.D., a psy-
chologist. Newring testified as an expert about Braesch’s men-
tal state on the day of the murder. Newring based his opinion
on his review of the following information: (1) sheriff officer
reports, including statements of the witnesses and officers; (2)
the coroner and autopsy reports; (3) interviews with Braesch,
Virginia, the principal of the high school that Braesch attended
25 years earlier, and Braesch’s work supervisor; (4) pharmacy
records of Braesch’s prescribed medications; and (5) Braesch’s
requests for leave from work.
Newring spoke to Braesch in jail in May 2014 for about 2
hours, and he advised Braesch that if he made any incrimi-
nating statements, Newring might have to disclose them. He
relied in part on Braesch’s statements that while in jail, he had
been prescribed Depakote, a mood stabilizer, and was subject
to suicide precautions. But he did not review any jail records
to confirm the prescription, to learn why it was prescribed, or
to review Braesch’s conduct in jail. Newring said he did not
perform any psychological testing because it was so long after
the homicide that testing might not have been informative of
Braesch’s mental state on the day of the killing. He did not
contact any of Braesch’s health care providers or counselors
because he did not have permission to do so. He stated that
Braesch had worked for the same employer for 15 years, had
been a supervisor, and was considered a good employee—apart
from some attendance problems. If a mental health care pro-
vider approved his request for leave, he was approved to take
leave for depression.
- 943 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
Newring opined, within a reasonable degree of psychologi-
cal certainty, that Braesch “met [the] diagnostic criteria” for
bipolar I disorder, for substance abuse disorders, and for an
anxiety disorder. When Newring was asked if he had an opin-
ion whether Braesch’s ability to form volitional intent on July
13, 2013, was compromised, the State objected and moved to
voir dire. Newring confirmed that his opinion of Braesch’s
mental state was based in part on Braesch’s voluntary use of
the following substances in the weeks leading up to the homi-
cide: Xanax, methamphetamine, alcohol, cocaine, and mari-
juana. The State then moved to exclude his opinion.
The State argued that to the extent Newring relied on
Braesch’s voluntary use of intoxicating substances, his opin-
ion was invalid under Neb. Rev. Stat. § 29-122 (Cum. Supp.
2014). Apart from limited exceptions, that statute excludes
evidence of intoxication as a defense to a criminal charge or
to show that a defendant did not have the requisite mental
state. Additionally, the State argued that because Newring
did not have a juris doctorate, he lacked the qualifications
to opine about legal conclusions. Braesch responded that
Newring was not giving a legal opinion and that Newring’s
opinion about Braesch’s substance abuse was only part of
his diagnosis.
The court concluded that § 29-122 did not permit a volun-
tary intoxication defense and that no exception applied. It also
concluded that Braesch had failed to show Newring had any
understanding of the legal meaning of intent. But it permitted
Braesch to reframe his question to exclude any reference to
voluntary intoxication.
Newring then testified that he had prepared separate opin-
ions on the effect of Braesch’s mental health disorders on his
intent. He said that his primary concern was Braesch’s bipolar
I disorder and believed that Braesch’s substance abuse was
caused by his bipolar I disorder. When asked for his opinion
regarding the impact of Braesch’s bipolar I disorder on his
volitional intent, the State again objected and asked to voir
- 944 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
dire. Newring conceded that his opinion was partially based
on Braesch’s impaired decisionmaking and that his substance
abuse was a possible contributing factor. He conceded that he
did not have a toxicology report to verify Braesch’s statements
about the substances he had allegedly ingested and that his
opinion about Braesch’s substance abuse disorders rested on
Braesch’s self-reporting.
The State renewed its statutory and foundation objections.
The court overruled the objections, concluding that the issue
was whether to give any weight and credibility to Newring’s
opinions, an issue that it would decide at the end of the
trial. Newring then opined that “separate and distinct” from
Braesch’s abuse of drugs, his bipolar I disorder “limited his
ability to effectively regulate his behavior on that day; that he
was experiencing bipolar symptoms, and that limited his abil-
ity to make good decisions that day.” Newring further stated
that with Braesch’s reported substance abuse, his impaired
decisionmaking “would have been even worse,” but that “even
without the substance abuse, [his] opinion would probably be
the same.”
(b) Court’s Findings
In closing argument, Braesch’s attorney argued that the evi-
dence showed only a sudden quarrel homicide. The next day,
the court stated its findings from the bench.
The court stated that Newring was certainly qualified to
perform mental health examinations. But it concluded that
Newring’s opinion regarding Braesch’s ability to form the
intent to kill on the day of the homicide was not credible for
several reasons.
First, the court noted that Newring’s opinion rested on
Braesch’s self-reported problems and that Newring had not
obtained Braesch’s medical records or other evidence to cor-
roborate his statements. Second, Newring never explained
how his mental health principles, even if they involved intent,
related to requirements of Nebraska’s homicide statutes. Third,
- 945 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
Newring did not explain the scientific methodology he used
to retroactively diagnose Braesch’s mental health on the day
of the homicide. Specifically, Newring did not explain how
Braesch’s actions of retrieving a loaded rifle and shooting
William five times without further confrontation showed
Newring that Braesch was impaired by mental health prob-
lems. Nor did Newring attempt to reconcile Braesch’s homi-
cidal conduct with evidence that he was not out of control
immediately after killing William and was cooperative with
law enforcement. Finally, Newring did not explain whether
his methodology for determining that Braesch’s diagnosis was
peer reviewed and how the underlying principles applied to
the facts of the case.
(c) Parties’ Contentions
Braesch contends that the court erred in excluding Newring’s
opinion of how Braesch’s bipolar I and anxiety disorders,
combined with his recent substance abuse, had affected his
mental state on the day of the homicide. He argues that the
Legislature’s enactment of § 29-122 in 2011 did not change
the common law on whether intoxication is relevant to show
a defendant did not form specific intent to commit a crime.
So he contends that his expert properly considered the com-
bined effect of his bipolar disorder and substance abuse. He
contends that the court further erred in admitting Newring’s
testimony but nonetheless concluding that his opinion was not
credible. He argues that the court committed plain error by
failing to consider evidence that it had already determined was
admissible in its role as the gatekeeper of scientific or special-
ized evidence.
The State points out that Newring specifically stated that
his opinion would be the same even without consideration
of Braesch’s substance abuse. So it contends that Newring’s
opinion regarding Braesch’s substance abuse added noth-
ing to Newring’s opinion of Braesch’s mental state on the
day of the homicide. The State contends that his opinion
- 946 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
regarding substance abuse lacked a sufficient factual basis
because Newring did not state (1) what substances he
believed Braesch had ingested or (2) how much he had
ingested or when he had done so. Finally, the State contends
that Newring’s opinion that Braesch’s substance abuse had
impaired his decisionmaking was insufficient because the
evidence showed that he was not wholly deprived of reason
because of drug use.
(d) Standard of Review
[10,11] Whether a trial court can decide that an expert opin-
ion is unreliable after admitting it into evidence is a procedural
issue that we decide de novo.15 We review a trial court’s rul-
ing to admit or exclude an expert’s testimony for abuse of
discretion.16
(e) Analysis
(i) The Court Properly Determined the
Expert’s Opinion Was Unreliable
After Admitting His Testimony
We first address Braesch’s argument that under the Daubert/
Schafersman17 requirements, it was plain error for the trial
judge, sitting as the fact finder, to reject an expert’s opinion as
unreliable when it has already admitted the opinion into evi-
dence. We disagree.
[12,13] Before admitting expert opinion testimony under
Neb. Evid. R. 702,18 a trial court must determine whether the
expert’s knowledge, skill, experience, training, and ­education
15
See Fickle v. State, 273 Neb. 990, 735 N.W.2d 754 (2007).
16
See, State v. Oliveira-Coutinho, 291 Neb. 294, 865 N.W.2d 740 (2015);
State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003).
17
See, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Schafersman v. Agland Coop, 262
Neb. 215, 631 N.W.2d 862 (2001).
18
See Neb. Rev. Stat. § 27-702 (Reissue 2008).
- 947 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
qualify the witness as an expert.19 Under our Daubert/
Schafersman framework,20 if an expert’s opinion involves sci-
entific or specialized knowledge, a trial court must determine
whether the reasoning or methodology underlying the testi-
mony is valid (reliable). It must also determine whether that
reasoning or methodology can be properly applied to the facts
in issue.21
But in a bench trial, a trial court is not required to con-
clusively determine whether an expert’s opinion is reliable
before admitting the expert’s testimony. We have previously
considered this issue. In Fickle v. State,22 we determined that
the trial court in a bench trial had not abdicated its gatekeep-
ing function or abused its discretion in allowing an expert
to testify, subject to the opponent’s opportunity to object to
the testimony as necessary. We explained that a “trial court
may not abdicate its gatekeeping duty . . . in a bench trial,
but the court is afforded more flexibility in performing this
function.”23 Other courts have similarly concluded that in a
bench trial, a court has discretion to admit a qualified expert’s
opinion even if its admissibility is questionable. The court
can then decide after hearing further evidence whether the
opinion meets reliability standards and should be credited in
deciding disputed questions of fact.24 We cited some of these
cases in Fickle.
19
See State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010).
20
See State v. Herrera, 289 Neb. 575, 856 N.W.2d 310 (2014).
21
See id.
22
Fickle, supra note 15.
23
Id. at 1006, 735 N.W.2d at 770.
24
See, e.g., U.S. v. Brown, 279 F. Supp. 2d 1238 (S.D. Ala. 2003), affirmed
415 F.3d 1257 (11th Cir. 2005), citing Gonzales v. National Bd. of Medical
Examiners, 225 F.3d 620 (6th Cir. 2000) (Gilman, J., dissenting); Ekotek
Site PRP Committee v. Self, 1 F. Supp. 2d 1282 (D. Utah 1998); Bradley v.
Brown, 852 F. Supp. 690 (N.D. Ind. 1994), affirmed 42 F.3d 434 (7th Cir.
1994); City of Owensboro v. Adams, 136 S.W.3d 446 (Ky. 2004).
- 948 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
[14] Here, the court reasonably concluded that Newring
was qualified to testify as an expert on Braesch’s mental
state. But requiring the parties to conduct a separate eviden-
tiary hearing on the reliability of an expert’s opinion before
allowing the expert to testify is unnecessary in a bench trial.
In a bench trial, the court is not shielding the jury from unre-
liable evidence. Instead, the court must fulfill its gatekeeper
duty and decide the ultimate issues of fact in the trial. So
we now reiterate the rule applied in Fickle: The Daubert/
Schafersman requirements do not preclude a court presiding
over a bench trial from admitting an expert’s opinion subject
to the court’s later determination that the opinion is unreli-
able and should not be credited. Accordingly, the question is
whether the court properly concluded that Newring’s opinion
was not credible.
(ii) Expert’s Methodology
Was Unreliable
As stated, Braesch contends that the court erred in excluding
Newring’s opinion of how Braesch’s active bipolar I and anxi-
ety disorders, combined with his recent substance abuse, had
affected his mental state on the day of the homicide. But the
record supports the State’s argument that Newring conceded
that even without considering Braesch’s substance abuse, his
opinion would be the same. According to Newring, Braesch’s
substance abuse would have only contributed to the effects of
his bipolar I disorder. So there are two primary questions: (1)
whether Newring reliably opined that Braesch was experienc-
ing bipolar I symptoms on the day of the homicide, which
symptoms limited his ability to effectively regulate his behav-
ior and make good decisions, and (2) whether the fact finder
could have properly applied his reasoning and opinion to the
facts of the case.25
25
See Herrera, supra note 20.
- 949 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
[15,16] To be admissible, an expert’s opinion must be based
on good grounds, not mere subjective belief or unsupported
speculation.26 A trial court should not require absolute certainty
in an expert’s opinion, but it has discretion to exclude expert
testimony if an analytical gap between the data and the prof-
fered opinion is too great.27
[17,18] A trial court can consider several nonexclusive fac-
tors in determining the reliability of an expert’s opinion: (1)
whether a theory or technique can be (and has been) tested; (2)
whether it has been subjected to peer review and publication;
(3) whether, in respect to a particular technique, there is a high
known or potential rate of error; (4) whether there are stan-
dards controlling the technique’s operation; and (5) whether
the theory or technique enjoys general acceptance within a rel-
evant scientific community.28 Absent evidence that an expert’s
testimony grows out of the expert’s own prelitigation research
or that an expert’s research has been subjected to peer review,
experts must show that they reached their opinions by follow-
ing an accepted method or procedure as it is practiced by oth-
ers in their field.29
Regarding the reliability of Newring’s methodology, the
court correctly concluded that the evidence failed to establish
that Newring reliably determined that Braesch was experi-
encing the effects of bipolar I symptoms on the day of the
homicide. Although Newring provided the sources of infor-
mation that he relied on, he did not explain the information
that he obtained from those sources which led to his opinion.
For example, he did not state that any of the medications
that Braesch was taking when he killed William were for a
26
King v. Burlington Northern Santa Fe Ry. Co., 277 Neb. 203, 762 N.W.2d
24 (2009).
27
See id.
28
See Casillas, supra note 19.
29
See King, supra note 26.
- 950 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
b­ipolar I disorder, and he did not consult Braesch’s mental
health care providers.
Newring also did not explain whether Braesch would have
experienced the effects of his bipolar I disorder continually
or whether any of the medications Braesch was taking would
have diminished those symptoms. Most important, he did not
explain what observable effects of a bipolar I disorder led
him to believe that Braesch was experiencing those symptoms
on the day of the homicide and how he knew that Braesch
had a limited ability to regulate his behavior and make good
decisions. And no methodology evidence established that sub-
sequent psychological testing would have been irrelevant to
whether Braesch was suffering from bipolar I disorder on the
day of the killing.
These omissions are not insignificant when a person has
been charged with murder. Because Newring had warned
Braesch that he might have to report any incriminating state-
ments, Braesch was unlikely to have reported an intent to
kill William. And because Braesch had reason to falsify or
exaggerate his bipolar symptoms on the day of the homicide,
the court was justifiably concerned that Newring appeared to
have primarily relied on Braesch’s self-reporting of symptoms.
Finally, assuming that Newring followed an established meth-
odology for retroactively diagnosing Braesch’s mental health
disorders, he did not explain those methodologies or show
whether they had been peer reviewed or followed by other
professionals in his field.
We agree with the court that Braesch’s evidence failed to
establish the reliability of Newring’s methodology in deter-
mining that Braesch was actively suffering from bipolar I
symptoms on July 13, 2013. In sum, no evidence established
a recognized methodology for retroactively diagnosing a bipo-
lar I disorder. And assuming that a recognized methodology
exists, Newring provided no specific data that supported his
opinion. The court properly exercised its discretion in finding
the analytical gap between the data and Newring’s opinion
- 951 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
was too great. As stated, the evidence of Braesch’s substance
abuse was relevant only as a contributing factor to the symp-
toms of bipolar I disorder. So it would not have changed the
court’s finding that the underlying bipolar diagnosis itself
was unreliable.
(iii) Court Could Not Apply the
Expert’s Opinion to the Facts
Regarding the court’s ability to apply Newring’s opinion
and reasoning to the facts of the case, the defect is different
but similarly serious. On appeal, Braesch argues that Newring
was prepared to testify that Braesch’s substance abuse disorder,
combined with his bipolar I and anxiety disorders, prevented
him from forming the “premeditated volitional intent” required
for first degree murder.30 But the record does not support
this claim.
As stated, Newring testified that even without considering
Braesch’s substance abuse, his opinion of Braesch’s mental
state on the day of the homicide would have been the same.
No offer of proof contradicted that statement. And Newring’s
opinion was that Braesch’s bipolar I disorder limited his abil-
ity to make good decisions and effectively regulate his behav-
ior on the day of the homicide. Newring did not opine that
Braesch did not intend to kill William or that he could not
have formed the specific intent to do so because of his bipolar
I symptoms. Nor did he opine that Braesch’s bipolar I disorder
prevented him from deliberating or premeditating the killing
of William.
But to prove first degree murder, the State must show that
a defendant killed another person purposely and did so with
deliberate and premeditated malice.31 And to be applicable
to these facts, Newring’s opinion needed to show whether
30
Brief for appellant at 29.
31
See State v. Escamilla, 291 Neb. 181, 864 N.W.2d 376 (2015).
- 952 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
Braesch could have deliberated and premeditated the killing as
we have defined these terms.
Specifically, the deliberation element means not suddenly
or rashly, and requires the State to prove that the defendant
considered the probable consequences of his act before com-
mitting it.32 The premeditation element requires the State to
prove that a defendant formed the intent to kill a victim before
doing so, but no particular length of time for premeditation is
required. It is sufficient if an intent to kill is formed before
the act is committed and not simultaneously with the act
that caused the death.33 But Newring’s opinion that Braesch’s
bipolar I disorder limited his ability to effectively regulate his
behavior was too vague to assist the fact finder in determining
whether Braesch deliberated or premeditated the killing. The
court did not err in concluding that Newring’s testimony failed
to show how Braesch’s impaired decisionmaking, even if true,
prevented him from forming the statutory mental state for first
degree murder.
3. Evidence Was Sufficient to Prove Beyond
a R easonable Doubt That Braesch
K illed William With Deliberate
and P remeditated M alice
(a) Court’s Findings
In stating its findings from the bench, the court also set out
its factual findings in determining that the State had met its
burden to prove Braesch committed first degree murder beyond
a reasonable doubt. It stated that despite removing himself
from William’s presence by going to the basement, Braesch did
not leave the house or stay in the basement. Instead, the court
found that Braesch had admitted going to the basement to get
a gun and that he had done so intentionally and purposefully
to kill William. Braesch’s intent to kill William was shown by
32
See id.
33
See id.
- 953 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
evidence that upon coming up the stairs, he immediately shot
William, and that he had then shot William five more times,
including shooting him twice in the head at close range. The
court stated, “One does not place a deadly weapon next to the
human head and pull the trigger, cock the rifle and pull the
trigger again without the intent to kill. Additionally, [Braesch]
repeated this process at least five times . . . .” The court also
found that Braesch was not out of control because he had not
shot anyone else.
The court also concluded that the facts of the case did not
show a sudden quarrel provocation that would cause a normal
person to lose control. It concluded that Braesch had formed
the intent and design to kill William, without legal justifica-
tion, before doing so.
(b) Standard of Review
[19] When reviewing the sufficiency of the evidence to sup-
port 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.34
(c) Resolution
Braesch contends that even without considering his expert’s
testimony, the evidence was insufficient to prove that he killed
William with deliberate and premeditated malice. He argues
that the evidence at most showed an impulsive, rash act.
Under our standard of review, however, a rational fact finder
could have found otherwise. This assignment of error is with-
out merit.
V. CONCLUSION
We conclude that Braesch’s waiver of his right to a jury trial
was valid despite the court’s later reassignment of Braesch’s
34
State v. Irish, ante p. 513, 873 N.W.2d 161 (2016).
- 954 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. BRAESCH
Cite as 292 Neb. 930
bench trial from Judge Zastera to Judge Kelch. Although the
court had discretion to consider his request to withdraw his
jury trial waiver, Braesch has waived any challenge on appeal
to the court’s ruling on this issue by not raising the matter until
after the trial was over. Finding no plain error in the ruling,
we affirm.
We conclude that in a bench trial, a trial court can properly
admit an expert’s opinion but reserve ruling on its reliability
until the close of evidence. Under that procedure, the court
did not err in concluding that the opinion of Braesch’s psy-
chological expert on his mental state the day he killed William
was unreliable. The evidence failed to establish a recognized
methodology for retroactively diagnosing Braesch’s mental
health or identify the data upon which the expert relied.
Additionally, the expert failed to explain how his diagnosis,
even if reliable, related to the mental state required for first
degree murder.
Finally, we conclude that the court did not err in concluding
that the evidence was sufficient to prove beyond a reasonable
doubt that Braesch killed William with deliberate and premed­
itated malice.
A ffirmed.