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State v. Braesch

Supreme Court of Nebraska

March 4, 2016

STATE OF NEBRASKA, APPELLEE,
v.
STEVEN R. BRAESCH, APPELLANT

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Appeal from the District Court for Sarpy County: MAX KELCH, Judge.

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.

OPINION

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[292 Neb. 932] 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.

[292 Neb. 933] 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 granddaughters, 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 basement 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 yelling 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 [292 Neb. 934] 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.

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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 cartridge 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 [292 Neb. 935] the enclosed porch area. The parties stipulated that the casings were fired from the gun that the officers found. An investigator 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 particulate 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 conversation, 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 premeditated 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 [292 Neb. 936] the wrong time. I mean I didn't go to work on Wednesday, Thursday, Friday. I was feeling really lousy.

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But later in the conversation, Braesch admitted to going downstairs 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 downstairs, 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 ...

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