State v. Surber

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/28/2022 08:07 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. SURBER
Cite as 311 Neb. 320State of Nebraska, appellee, v.
Andres Surber, appellant.
___ N.W.2d ___
Filed April 8, 2022. No. S-20-856.
1. Courts: Trial: Mental Competency: Appeal and Error. The question
of competency to stand trial is one of fact to be determined by the court,
and the means employed in resolving the question are discretionary with
the court. The trial court’s determination of competency will not be dis-
turbed unless there is insufficient evidence to support the finding.
2. Trial: Evidence: Appeal and Error. To conduct harmless error review,
an appellate court looks to the entire record and views the erroneously
admitted evidence relative to the rest of the untainted, relevant evidence
of guilt.
3. 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
­rational defense.
4. Trial: Mental Competency. The competency standard includes both (1)
whether the defendant has a rational as well as factual understanding of
the proceedings against him or her and (2) whether the defendant has
sufficient present ability to consult with his or her lawyer with a reason-
able degree of rational understanding.
5. Mental Competency. There are no fixed or immutable signs of incom-
petence, and a defendant can meet the modest aim of legal competency,
despite paranoia, emotional disorders, unstable mental conditions, and
suicidal tendencies.
6. Courts: Trial: Mental Competency. The question of competency to
stand trial is one of fact to be determined by the district court.
7. Courts: Trial: Mental Competency: Appeal and Error. A court’s
decision regarding competency will not be disturbed absent insufficient
evidence to support that finding.
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STATE v. SURBER
Cite as 311 Neb. 3208. Mental Competency. A defendant with voluntary control to cooperate is
not incompetent simply because he or she refused to cooperate, refused
to communicate with defense counsel, or could not get along with or
disapproved of defense counsel.
9. ____. Even identifying with bizarre legal theories, whether or not sin-
cerely held, does not automatically suggest incompetence.
10. Trial: Evidence: Waiver. The introduction of evidence by the defense
waives any objection to the earlier introduction of evidence on the same
subject by the State.
11. Trial: Verdicts: Appeal and Error. Harmless error review looks to the
basis on which the trier of fact actually rested its verdict; the inquiry
is not whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but, rather, whether the actual guilty
verdict rendered in the questioned trial was surely unattributable to
the error.
12. Trial: Evidence: Appeal and Error. Erroneous admission of evidence
is harmless error and does not require reversal if the evidence is cumula-
tive and other relevant evidence, properly admitted, supports the finding
by the trier of fact.
13. Verdicts: Evidence: Appeal and Error. Overwhelming evidence of
guilt can be considered in determining whether the verdict rendered
was surely unattributable to the error, but overwhelming evidence of
guilt is not alone sufficient to find the erroneous admission of evi-
dence harmless.
Appeal from the District Court for Dakota County: Bryan
C. Meismer, Judge. Affirmed.
Todd W. Lancaster, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and McManaman, D.J.
Heavican, C.J.
INTRODUCTION
Andres Surber was convicted of first degree murder, use of
a firearm to commit a felony, and possession of a firearm by
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STATE v. SURBER
Cite as 311 Neb. 320a prohibited person. On appeal, Surber challenges the district
court’s conclusion that he was competent to stand trial. Surber
also assigns as error that the court erred in admitting certain
evidence, because it was obtained in violation of his Fourth
Amendment rights. We affirm.
BACKGROUND
Disappearance and Discovery
of Kraig Kubik
The victim in this case, Kraig Kubik, lived in rural Emerson,
Nebraska. He was last seen alive by his girlfriend, Jaclyn
Mahr, at approximately 7 p.m. on November 1, 2016. When
Mahr left Kubik’s home, Kubik and his 6-year-old son were
at the home. Surber and Brayan Galvan had been at Kubik’s
home earlier that afternoon. Mahr last received a text message
from Kubik at around 10:30 p.m., after which time he stopped
responding to her texts.
The next morning, November 2, 2016, Mahr dropped her
child off at school. She then went to Kubik’s house, arriving
there around 9 a.m. Upon her arrival, Mahr saw Kubik’s son
on the deck when he should have been at school. She also
noted air compressors, which had not been there previously,
located near a red Dodge Charger that was being stored on the
property, as well as boots, a flashlight, and what appeared to be
blood. Kubik was nowhere to be found.
Mahr took Kubik’s son to school and returned to Kubik’s
house. She called some of Kubik’s friends to see if they had
seen him, and finally, she looked at footage from Kubik’s home
surveillance system. That footage showed Surber and Galvan
on Kubik’s property at 10:30 p.m. Kubik, Surber, and Galvan
were seen on the footage walking toward the red Dodge
Charger, then headlights of a vehicle could be seen backing out
of the driveway.
After Kubik’s son had been dropped off at school, he
reported to his teacher that his father was dead and that “black
cat” had killed him. Kubik’s son also told his teacher that
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STATE v. SURBER
Cite as 311 Neb. 320there was blood on his father’s boots and on a flashlight. When
questioned by the principal, Kubik’s son repeated the same
information and also mentioned a gun and an air compressor.
The principal attempted to get ahold of Kubik, but could not
reach him, so he called police to conduct a welfare check.
A welfare check was conducted by the Dakota County sher-
iff. At Kubik’s home, the sheriff met Mahr and Kubik’s father.
Mahr told the sheriff she was certain that Kubik had been kid-
napped or that something had happened to him. Mahr showed
the sheriff the patch of what looked like blood, along with pos-
sible drag marks, and she also showed him the video footage.
Additional law enforcement officers were brought in. Kubik’s
property was searched, and law enforcement attempted unsuc-
cessfully to “ping” Kubik’s cell phone.
Officers then met in Wakefield, Nebraska, to continue the
investigation. The investigation was proceeding along at mul-
tiple locations — some officers were at the Kubik residence
and others were at the school speaking with Kubik’s son. By
this time, law enforcement was focused on Surber and Galvan,
since they had been seen on the video footage. Relevant to this
appeal are the events that were taking place at the Galvan resi-
dence and at the Surber family farm.
Officers had learned that Surber was dating Galvan’s sister
and that the Galvan family residence was in Wakefield. As a
result, at approximately 11 a.m., an officer conducted a driveby
of the Galvan residence and saw a black GMC Yukon Denali
with in-transit stickers, identified as belonging to Surber,
parked outside.
The officers meeting in Wakefield went to the Galvan resi-
dence. Galvan was outside and ran when he saw the officers.
Galvan was told to stop, and he did so. He was handcuffed
and responded affirmatively when asked if Surber was in the
house. Galvan then gave officers permission to enter the house
to find Surber, which they did. While conducting a protec-
tive sweep of the property, one officer found bloodied boots
and pants.
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Cite as 311 Neb. 320Meanwhile, the officers in the house were questioning
Surber about Kubik’s whereabouts. Surber had apparently just
showered and was wearing only a towel. When the decision to
remove Surber from the house was made, one deputy allowed
Surber to lead him to his clothing. The deputy had apparently
been informed that bloodied clothes had been found in the
garage. The deputy testified that Surber walked up to the pile
of clothes that the first officer had noticed during the protective
sweep. The deputy with Surber observed what appeared to be
fresh blood and flies on the clothes. Surber then walked to a
different part of the garage, found different clothes (which the
deputy described as “dirty”), and put those clothes on.
While officers were in the Galvan residence, Deputy Roger
Peterson received a phone call from Surber’s mother, who
was Peterson’s neighbor. Peterson had actually seen Surber at
approximately 8 a.m. that day, driving away from Wakefield
and within 5 or 6 miles of the Surber family farm. Peterson had
driven by that farm to check for Surber’s vehicle before it was
spotted at the Galvan residence.
Upon reaching Peterson, Surber’s mother told Peterson
that if something was going on with Surber, Peterson should
know that Surber had been at the Surber family farm that
morning. While the farm included a house, no one resided
on the property, and the property was owned by the brother
of Surber’s mother, who lived in New York. When he was
contacted, he gave Peterson permission to search the property,
stating that law enforcement should “go ahead and do what you
need to do.”
Law enforcement then searched the property located near
Dixon, Nebraska. They found a silver Chevy Impala that had
a window broken out and what appeared to be blood on the
rear bumper and lid of the trunk. Peterson testified that he had
responded to a recent accident that Surber had been involved
in and that Surber had been driving a silver Chevy Impala.
The Impala’s vehicle identification number came back as
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STATE v. SURBER
Cite as 311 Neb. 320Surber’s; the plates on the Impala were registered to a red
Dodge Charger owned by Surber.
Near the Impala, officers also discovered blood droplets,
what appeared to be human flesh, a burn barrel that contained
ash and what appeared to be human flesh, a red gas can, a
spray bottle with what appeared to be blood on it, and a bloody
knife. A telephonic warrant was submitted for the trunk of the
Impala. After the warrant was obtained, the trunk was opened
to reveal a severed human arm and leg.
On November 5, 2016, Kubik’s head and torso, along with
several organs and a severed arm and leg, were found in an
area culvert. The cause of death was determined to be a gun-
shot wound to the head, with dismemberment after death.
Further searches of the Impala were completed after the
vehicle was impounded. More blood was found, along with two
cell phones, at least one of which appeared to belong to Kubik.
Paperwork in the glovebox indicated the Impala belonged to
Surber. DNA testing on the blood from the Impala, the Kubik
residence, the Surber family farm, the boots and clothing found
at the Galvan residence, and other evidence was shown to
be consistent with Kubik. A knife found near the Impala had
Surber’s fingerprints on it, but not Galvan’s or Kubik’s.
Surber was arrested and charged with Kubik’s murder. At
trial, Surber testified in his own defense. He contended that
he shot Kubik in self-defense during a dispute over ownership
of the red Dodge Charger found at the Kubik residence. In his
testimony, Surber also admitted to dismembering and disposing
of Kubik’s body, with Galvan’s help.
Motion to Suppress
Surber filed several motions to suppress relating to the
searches conducted at the Galvan residence and at the Surber
family farm. As relevant to this appeal, Surber argued that the
telephonic warrant obtained for the trunk of the Impala was
invalid and that the severed arm and leg found in the Impala’s
trunk should be suppressed. Surber also argued that the
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STATE v. SURBER
Cite as 311 Neb. 320search of the Galvan residence was not supported by probable
cause. As to the Impala, the district court ultimately concluded
that the search was invalid due to violations of statutory law
(though not a constitutional violation), but that the brother of
Surber’s mother had given consent to the search, and the court
further concluded that the automobile and emergency excep-
tions applied. As to the Galvan residence, the court agreed that
the search was not supported by probable cause, but that the
boots and clothes were in plain view and admissible.
Competency
Surber’s competency to stand trial has been a significant
issue throughout these proceedings. In late March 2017, shortly
after Surber was arrested, his counsel sought a competency
evaluation, which was granted. Following that evaluation by
Dr. Klaus Hartmann at the Lincoln Regional Center (LRC),
Surber was found not competent to stand trial, but Hartmann
opined that there was a reasonable likelihood that competency
could be restored. As such, Surber was placed at LRC.
Surber was not cooperative with LRC’s treatment efforts,
and in August 2017, the State sought court approval to admin-
ister involuntary treatment. As part of the process to seek
this approval, LRC was able to administer medications invol-
untarily on an emergency basis for 14 days. By the time of
the hearing on the State’s motion, the evidence showed that
Surber had voluntarily continued to take his medication after
the 14-day time period expired. As such, the court declined to
order involuntary treatment.
But in January 2018, the State again sought involuntary
treatment for Surber. Testimony from Dr. Farid Karimi was
adduced. Karimi testified that Surber had taken his medica-
tions voluntarily for a time, then refused because he claimed he
was experiencing side effects. Karimi indicated that Surber’s
claimed side effects were not commonly reported and that, in
any case, Surber’s presentation of psychosis was “very uncon-
ventional” in that he displayed “selective” symptoms that
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STATE v. SURBER
Cite as 311 Neb. 320mimicked the symptoms of others at LRC. For example, one
patient barked like a dog, so Surber began barking. Another
patient drooled, so Surber stopped barking and began drooling.
Later, Surber stopped drooling and started talking to himself,
claiming he had many children who were angels.
According to Karimi, symptoms of a legitimate psychosis
should remain the same, and he, Karimi, believed that Surber
was malingering. Karimi also noted that it was not clear if
Surber was also suffering from an actual mental defect because
he would not take his medications or comply with treat-
ment efforts. Karimi indicated that although he thought Surber
understood the proceedings, he also thought Surber would be
likely to interfere with court proceedings. Ultimately, Karimi
thought treatment should be continued to ensure the restoration
of Surber’s competency.
Although Karimi thought treatment should continue, coun-
sel for Surber indicated that Surber was competent and trial
should proceed. The State, meanwhile, asked that Karimi’s
request for additional time to ensure Surber’s competency be
granted. The court agreed, and Surber was declared incompe-
tent. The State’s motion for involuntary treatment was granted,
and Surber was sent back to LRC. Surber appealed that order,
but ultimately dismissed it before it could be disposed of by an
appellate court.
In October 2018, the district court held a status hearing
regarding Surber’s competency. Surber had again been eval­
uated by Karimi in August 2018, at which point, Karimi agreed
that Surber was malingering and was competent to stand trial.
The court agreed and found Surber competent.
In April 2019, the defense again asked for a competency
evaluation by the staff psychiatrist and staff psychologist at
the Department of Correctional Services. The psychiatrist tes-
tified that it was his belief that Surber was not oriented to time
and place, but the psychiatrist had no opinion as to Surber’s
competence. The psychologist testified that Surber was clear
and oriented when they spoke, but Surber’s judgment did
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STATE v. SURBER
Cite as 311 Neb. 320appear to be impaired, and that the psychologist could not tell
whether that was due to mental illness or a behavioral disorder
that Surber could control.
In light of this testimony, the court again ordered a compe-
tency evaluation to be conducted by Hartmann at LRC. In May
2019, Hartmann found Surber incompetent to stand trial and
treatment at LRC was ordered to be resumed.
In July 2019, while Surber was apparently still waiting
for a bed to become available at LRC, the State again sought
involuntary medical treatment. Surber was refusing to take his
prescribed medications and was instead requesting narcotics.
In addition, Surber was having continuing behavioral swings.
Medical staff sought to medicate Surber with antipsychotics
and mood stabilizers. That request was granted.
In January 2020, yet another doctor from LRC performed a
competency evaluation. That doctor opined that Surber’s sanity
had been restored. Surber was found competent to stand trial,
which was eventually set for August 2020.
On August 13, 2020, defense counsel filed a motion to with-
draw, noting that Surber had “expressed his desire to no longer
be represented by counsel.” Following a hearing on August 17,
the court found that Surber could represent himself, but upon
request by defense counsel, the court reconsidered that ruling
and reversed it on August 18. The next day, August 19, just
5 days before trial was set to begin, Surber’s counsel filed a
motion to determine Surber’s competency. The court ordered
yet another competency evaluation by Hartmann.
As with most of the prior evaluations performed on Surber,
Hartmann opined that Surber understood the nature of the
­proceedings against him, but that Hartmann believed Surber
was not competent because Surber would not be able to ade-
quately communicate with counsel. When Hartmann testified at
the hearing, he acknowledged that he had witnessed Surber’s
acting appropriately and communicating with his counsel, but
indicated that did not change his mind regarding Surber’s
competency.
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STATE v. SURBER
Cite as 311 Neb. 320Hartmann also testified that there might still be issues
because Surber did not trust his counsel. Hartmann’s evalua-
tion noted that on prior occasions, he and other treating pro-
fessionals had suspected that Surber was malingering, but that
Hartmann did not see signs of malingering during his most
recent evaluation.
The defense argued that Surber was not competent based on
Hartmann’s report, agreeing that Surber understood the nature
of the proceedings, but lacked the capacity to communicate
with his counsel or assist in preparing his defense. The State
responded that Surber’s ability to assist his counsel was not a
sufficient basis to find him incompetent.
The district court concluded that Surber was competent to
stand trial, reasoning that the parties agreed Surber understood
the nature of the proceedings against him. The district court
further found that whether Surber was able to competently
assist his counsel because he did not trust his counsel was not a
matter of competency. After the court found Surber competent,
the case proceeded to trial. Ultimately, Surber was convicted
of first degree murder, use of a firearm to commit a felony,
and possession of a firearm by a prohibited person, and he
was sentenced to life imprisonment for the murder conviction.
Surber appeals.
ASSIGNMENTS OF ERROR
Surber assigns that the district court erred in finding (1) him
competent to stand trial, (2) exceptions to the exclusionary
rule applicable such that evidence found (a) in the Impala and
(b) at a residence in Wakefield were admissible, and (3) that
second searches of the Impala and the Galvan residence did
not violate the Fourth Amendment.
STANDARD OF REVIEW
[1] The question of competency to stand trial is one of fact
to be determined by the court, and the means employed in
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STATE v. SURBER
Cite as 311 Neb. 320resolving the question are discretionary with the court. The
trial court’s determination of competency will not be disturbed
unless there is insufficient evidence to support the finding. 1
[2] To conduct harmless error review, we look to the entire
record and view the erroneously admitted evidence relative to
the rest of the untainted, relevant evidence of guilt. 2
ANALYSIS
Competency
[3-7] We turn first to Surber’s first assignment of error: The
district court erred in finding him competent to stand trial. 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 rational defense. 3
The competency standard includes both (1) whether the defend­
ant has a rational as well as factual understanding of the pro-
ceedings against him or her and (2) whether the defendant has
sufficient present ability to consult with his or her lawyer with
a reasonable degree of rational understanding. 4 There are no
fixed or immutable signs of incompetence, and a defendant can
meet the modest aim of legal competency, despite paranoia,
emotional disorders, unstable mental conditions, and suicidal
tendencies. 5 The question of competency to stand trial is one of
fact to be determined by the district court. 6 A court’s decision
regarding competency will not be disturbed absent insufficient
evidence to support that finding. 7
1
State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
2
State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020).
3
State v. Jenkins, supra note 1.
4
Id.5
State v. Lang, 305 Neb. 726, 942 N.W.2d 388 (2020).
6
Id.7
See State v. Jenkins, supra note 1.
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STATE v. SURBER
Cite as 311 Neb. 320As the record demonstrates, Surber’s competency was at
issue throughout these proceedings. After variously being found
not competent, then competent, and being treated by both the
Department of Correctional Services and LRC, Surber was ulti-
mately found competent and a trial date was set. But just days
before the trial, Surber’s counsel once again sought a compe-
tency evaluation, which was granted. Hartmann conducted that
evaluation. We note that Hartmann’s evaluation also considered
whether Surber was qualified to represent himself, as that had
been at issue during proceedings occurring around the same
time, although it is not at issue in this appeal.
In his evaluation, done virtually, Hartmann—who had previ-
ously indicated that Surber was malingering—opined that pres-
ently Surber was not malingering, and further concluded:
This man has sufficient mental capacity to appreciate
his presence in relation to time, place, and things and
possesses the elementary mental processes such that he
understands that he is in a court of law charged with
criminal offenses. However, his present mental function-
ing appears to be at least in part at the delusional level
. . . . He is not considered able to consult with and assist
counsel in preparation of his defense. As such, to a rea-
sonable degree of medical certainty, I consider this man
not to have the capacity to stand trial and represent him-
self without competent counsel.
The court noted Hartmann’s evaluation and found it helpful,
but ultimately concluded Surber was competent to stand trial.
We affirm this conclusion.
In this case, during Hartmann’s evaluation, he found Surber
to be incompetent to stand trial, not because he thought Surber
did not understand the proceedings, but because he felt that
Surber did not meet the second criteria: having the sufficient
present ability to consult with his or her lawyer with a reason-
able degree of rational understanding.
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Cite as 311 Neb. 320The district court, having the benefit of many competency
evaluations and treatment records, disagreed with this assess-
ment, noting that the court’s own observations of Surber
showed an individual “conversing with both of his appointed
attorneys during Dr. Hartmann’s testimony.” The court further
noted that the three “were able to have exchanges without it
disrupting the proceedings” and that Surber was “quite active
in following the exchanges . . . and the notes that they were
taking.” The court continued:
Surber may not completely trust his counsel, and the basis
of his feelings may not be based in fact (i.e. his belief that
counsel destroyed evidence), and his feelings may even
be delusional, as Dr. Hartmann alleges in his report. But
what the Court observed during the competency hearing
was an accused who seemed to be following the proceed-
ings and communicating with counsel.
[8,9] Surber’s conduct during this hearing is relevant to the
question of whether he was competent, particularly given the
nature of his identified incompetency. Surber’s behavior sug-
gests that he had control over his actions. Several courts have
found that a defendant with voluntary control to ­cooperate is
not incompetent simply because he or she refused to cooperate, 8
refused to communicate with defense counsel, 9 or could not get
along with or disapproved of defense counsel. 10 Even identify-
ing with bizarre legal theories, whether or not sincerely held,
does not automatically suggest incompetence. 11
The ultimate fact finder in this case was the district court.
We have been directed to no authority, nor has our own
research revealed authority, requiring a district court to adopt
8
U.S. v. Simpson, 645 F.3d 300 (5th Cir. 2011).
9
U.S. v. Kiderlen, 569 F.3d 358 (8th Cir. 2009).
10
U.S. v. Miller, 531 F.3d 340 (6th Cir. 2008).
11
U.S. v. Jonassen, 759 F.3d 653 (7th Cir. 2014).
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Cite as 311 Neb. 320the opinion of an expert in such matters. 12 The observations
of the district court, along with the prior evidence of malin-
gering by Surber, provide sufficient evidence to support the
district court’s conclusion that Surber was competent to stand
trial, regardless of the conclusions on competency reached
by Hartmann. There is no merit to Surber’s first assignment
of error.
Motion to Suppress
At issue on appeal is (1) whether the district court erred when
it found that the consent, automobile, and emergency excep-
tions to the warrant requirement were met such as to allow
the admittance of the severed leg and arm found in the trunk
of the Impala and (2) whether the plain view doctrine allowed
the admission of the bloodied clothes found in the Galvan
garage and the bloodied boots found in the Galvan ­residence.
In addition, Surber challenges a second warrant authorizing
searches of the Impala and the Yukon because those warrants
were authorized with reference to the prior claimed unlawful
searches of the Impala and the Galvan residence.
[10] Surber testified to the fact that he dismembered
Kubik’s body and disposed of an arm and a leg in the trunk of
the Impala. He further testified that the brown boots found in
the Galvan residence were his boots and were likely to have
blood on them as he was wearing them when he dismembered
Kubik. As such, we conclude that Surber has waived any
argument he has with respect to this evidence on appeal. The
introduction of evidence by the defense waives any objection
to the earlier introduction of evidence on the same subject by
the State. 13
12
Cf. 31A Am. Jur. 2d Expert and Opinion Evidence § 135 (2012); 21 Am.
Jur. 2d Criminal Law § 100 (2016); 22A C.J.S. Criminal Procedure and
Rights of Accused § 518 (2016); and 32 C.J.S. Evidence §§ 871, 937, 946,
and 970 (2020) (all collecting cases).
13
State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989).
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Cite as 311 Neb. 320[11-13] Surber did not testify regarding the bloodied clothes
found in the garage. But to the extent that those clothes ought
to have been suppressed, we find that any error in failing to
do so is harmless. To conduct harmless error review, we look
to the entire record and view the erroneously admitted evi-
dence relative to the rest of the untainted, relevant evidence
of guilt. 14 Harmless error review looks to the basis on which
the trier of fact actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty ver-
dict would surely have been rendered, but, rather, whether the
actual guilty verdict rendered in the questioned trial was surely
unattributable to the error. 15 Erroneous admission of evidence
is harmless error and does not require reversal if the evidence
is cumulative and other relevant evidence, properly admit-
ted, supports the finding by the trier of fact. 16 Overwhelming
evidence of guilt can be considered in determining whether
the verdict rendered was surely unattributable to the error, but
overwhelming evidence of guilt is not alone sufficient to find
the erroneous admission of evidence harmless. 17
Significantly, Surber testified in some detail to the events
surrounding Kubik’s death. While Surber argues that he acted
in self-defense, the bloodied clothes he seeks to suppress were
not probative of his defense of self-defense, but instead were
probative as to who caused Kubik’s death. Between Surber’s
testimony that he was responsible for Kubik’s death and the
myriad other evidence suggesting that Surber was responsible,
we hold that the guilty verdicts in this case were unattributable
to any erroneous admission of the bloodied clothes found in
Galvan’s garage.
14
State v. Said, supra note 2.
15
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
16
Id.17
See, e.g., State v. Jennings, 305 Neb. 809, 942 N.W.2d 753 (2020).
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Cite as 311 Neb. 320Finally, we briefly note that with respect to the Yukon, the
State did not offer at trial any of the evidence found in the
search of the Yukon. As such, we do not need to address those
arguments on appeal.
There is no merit to Surber’s second and third assignments
of error.
CONCLUSION
The judgment of the district court is affirmed.
Affirmed.