State v. Grant

293 Neb. 163

876 N.W.2d 639

State of Nebraska, Appellee,

v.Robert W. Grant, Appellant.

No. S-15-192.

Supreme Court of Nebraska.

Filed April 1, 2016.

Thomas C. Riley, Douglas County Public Defender, and John J. Jedlicka for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman, Lincoln, for appellee.

Heavican, C.J., Wright, Connolly, Miller–Lerman, Cassel, and Stacy, JJ.

Heavican, C.J.

I. NATURE OF CASE

Robert W. Grant appeals from his convictions of murder in the first degree and use of a deadly weapon to commit a felony in connection with the death of his girlfriend, Trudy McKee. Grant raises 14 assignments of error, ranging from overruled evidentiary objections to errors in the conduct of trial and the insufficiency of evidence. We affirm.

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 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 duffel-bags with him, including a black and yellow duffelbag. From that time until September 17, 2013, when McKee died, Grant stayed at the apartment some nights and at homeless shelters the rest of the time.

Carter testified that after Grant arrived in Omaha, McKee became uneasy and was less outgoing than she had been during the first week after moving from Wichita. According to Carter, during the week leading up to McKee's death, Grant and McKee argued more than they had when they lived in Wichita. One of the arguments was about a T-shirt Grant wore that read " ‘almost single.’ " Carter said this argument took place around the first week of September. According to Carter, this and two other arguments during that time period were loud, ranging from 7 to 12 on a 10–point scale.

3. 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 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 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.

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.

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 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.

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...