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State v. Grant

Supreme Court of Nebraska

April 1, 2016

STATE OF NEBRASKA, APPELLEE,
v.
ROBERT W. GRANT, APPELLANT

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Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge.

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.

OPINION

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[293 Neb. 166] 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.

[293 Neb. 167] II. BACKGROUND

1. McKee and Carter Move to Omaha in July 2013

Grant and McKee had been in an " on again, off again" relationship for a number

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of years preceding McKee's death on September 17, 2013. McKee and her 16-year-old daughter, 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 His Arguments With McKee

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 duffelbags 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. McKee'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 [293 Neb. 168] morning routine and did not notice anything out of the ordinary 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 argument, 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 afternoon 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

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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.

[293 Neb. 169] Carter got home from school around 3:30 p.m. She testified 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 single'" 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 mother'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.

[293 Neb. 170] 4. Grant's Arrest

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 contacted 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 identification; claiming to have none, Grant told Checksfield his

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name was " Brian Edwards" and that his date of birth was January 25, 1987. Checksfield then engaged in a line of questioning 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.

[293 Neb. 171] 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 headquarters after she had obtained biographical information and information 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 McKee'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 master 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 maintenance 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 [293 Neb. 172] 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 photographs 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 number of autopsy photographs. The autopsy eventually revealed that McKee had suffered more than 50 cutting wounds, mostly in the upper body.

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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 [293 Neb. 173] 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 sergeant's actions.

Later, when a forensic DNA analyst from the UNMC laboratory, 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 testing 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 unrelated 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.

[293 Neb. 174] 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.

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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 evaluation 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 individually 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 questions" about what had occurred. Of the five jurors, the district court asked four (including the two who had speculated that [293 Neb. 175] 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 submitted 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 ...


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