State v. Stack

307 Neb. 773

950 N.W.2d 611

STATE of Nebraska, appellee,

v.Alan E. STACK, appellant.

No. S-19-833.

Supreme Court of Nebraska.

Filed November 13, 2020

Gregory A. Pivovar, and, on brief, John P. Hascall, Deputy Sarpy County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Papik, J. Alan E. Stack appeals his convictions and sentences for second degree murder and use of a deadly weapon to commit a felony. Circumstantial evidence presented at Stack's bench trial linked him to the murder of a woman with whom he lived. In this appeal, Stack challenges the sufficiency of the evidence and the district court's finding that the evidence supported a conviction of second degree murder, rather than sudden quarrel manslaughter. He also claims that the district court erred in rejecting his insanity defense and imposed excessive sentences. Finding no merit to Stack's contentions, we affirm.

I. BACKGROUND

1. PROCEDURAL OVERVIEW

On November 16, 2017, family members found Beverley Diane Bauermeister dead in her home. Severe head trauma was evident. Bauermeister's elderly mother was in another room, alive but immobile. Stack, a heavy drinker, was living with Bauermeister and her mother at the time of Bauermeister's death.

Stack was ultimately charged with second degree murder; abuse of a vulnerable or senior adult; and use of a deadly weapon, other than a firearm, to commit a felony. Stack filed a notice of intent to rely on the insanity defense. He claimed that a mental defect impaired his mental capacity so that he did not understand the nature and consequences of his actions and that he did not have the ability to form the requisite intent.

At the subsequent bench trial, the State presented circumstantial evidence that tied Stack to the crimes charged. At the close of the State's case, Stack made a motion to dismiss all counts, which the district court overruled. Stack proceeded to present evidence in his defense, including testimony in support of his insanity defense. The State presented additional evidence opposing Stack's defense.

Once the parties rested, the district court ruled that there was insufficient evidence to find that Stack was either insane or could not form the specific intent to commit the crimes alleged. It convicted Stack of second degree murder and use of a deadly weapon to commit a felony, but it acquitted him of the abuse charge. Following a sentencing hearing, the district court sentenced Stack to consecutive terms of 80 years’ to life imprisonment for second degree murder and 40 to 50 years’ imprisonment for use of a deadly weapon to commit a felony. Stack now appeals.

2. CIRCUMSTANTIAL EVIDENCE AT TRIAL

(a) Crime Scene and Stack's Arrest

Stack and Bauermeister had been living together for more than 15 years but were not in a dating relationship at the time relevant to this case. By all accounts, Stack was an alcoholic.

Stack and Bauermeister shared a trailer home with Bauermeister's 90-year-old mother. Bauermeister's mother was wheelchair-bound, was unable to get out of bed on her own, and could not take care of her own basic needs.

Bauermeister's daughter testified that she and Bauermeister communicated daily, but Bauermeister did not respond to her daughter's attempts to reach her after they had a disagreement on November 8, 2017. On November 16, Bauermeister's daughter and brother discovered Bauermeister deceased on her living room floor. They found Bauermeister's mother in a bedroom, lying on her hospital bed in her own urine and feces. Bauermeister's mother was admitted to a hospital due to severe dehydration.

When law enforcement searched the residence, they observed that Bauermeister had severe head trauma, blood around her hair, yellow brain matter in her hair, and brown hair strands in her hand and on the carpet near her. The scene was processed for DNA and blood evidence. There was blood spatter in the living room area and additional possible blood evidence between the living room and Stack's bedroom. On the floor of Stack's bedroom, officers located a "Crosman 66 Powermaster BB rifle[/pellet gun]," .177 caliber, with a sight near the tip of the gun barrel. A gray or silver pellet was in the clip of the gun. A detective who investigated the scene testified that he observed what appeared to be dried bloodstains and brain matter on areas of the gun.

The same day Bauermeister's body was discovered, law enforcement took Stack into custody. They located him parked in Bauermeister's truck, which he sometimes drove. The officer who transported Stack to the station testified that he could smell the strong odor of an alcoholic beverage coming from Stack. At the station, Stack's clothing was collected. In photographs taken shortly after his arrest, Stack appears to have brown hair.

(b) Autopsy

Dr. Michelle Elieff, a general and forensic pathologist, conducted an autopsy of Bauermeister's body on November 17, 2017. Based on the decomposition of the body, Elieff estimated that Bauermeister had been deceased for days, perhaps up to a week. Elieff identified the cause of death as extensive blunt force head injuries and two penetrating wounds to the head. The extensive blunt force injuries included multiple skull fractures and multiple scalp lacerations. Regarding the penetrating wounds, Elieff explained they were "what we refer to as missile wounds; they are a type of gunshot wound that are resulting from small projectiles, pellet-type projectiles." Elieff recovered a missile projectile, consistent with a pellet, from behind Bauermeister's right eye.

Elieff opined that the right angle or rectangular component on the sight of the pellet gun found in Stack's bedroom could be consistent with Bauermeister's pattern injuries. She also opined that the circular tip of the barrel of the gun could have caused the injuries.

(c) Electronic Evidence

Upon Stack's arrest, Bauermeister's cell phone was found in her truck and later processed. There were 41 missed calls between November 14 and 16, 2017. The last four outgoing calls occurred between November 10 and 13. Twenty-seven text messages were received between November 9 and 16, but it could not be determined who had viewed the messages. The last outgoing text message occurred on November 8. The last message from Bauermeister's social media account was also sent on November 8.

During the search of the crime scene, officers seized a laptop computer from Stack's bedroom. A "Skype" account on the laptop bore the username "Al Stack." The laptop showed multiple internet searches on November 7, 2017, for the make and model of pellet gun found in Stack's bedroom, a "Crosman 66 Powermaster BB rifle[/pellet gun]," .177 caliber. On November 8, there were various searches for iterations of whether a .177 caliber pellet can penetrate a human skull. The next day, there were multiple searches inquiring about various methods of suicide, among them were searches for "[i]s it possible to kill yourself with a pellet gun" and "kill yourself with a pellet gun." Nearly 2 hours after the last of these searches, there were searches for "can a .177 cal. penetrate a human skull" and "can a .177 cal. 66 powermaster penetrate a human skull." On November 10, at 9:22 p.m., a search was made for "decomposition of a human body timeline." Searches for "what gets supplied for you in jail and prison" and "are socks and under[wear] provided in jail or prison" were made on the morning of November 12.

Based upon the history on the cell phone and the laptop, along with the crime scene, the detective who processed the electronic evidence opined that Bauermeister was killed on or about November 10, 2017.

(d) DNA Evidence

Forensic DNA analyst Mellissa Helligso tested numerous items for the presence of blood and for DNA. She used buccal swabs from Stack and Bauermeister for DNA comparison.

Helligso observed what appeared to be bloodstains on the front and back of Stack's pants, but she only tested a swab from one 2-inch long stain. That swab tested positive for blood. It generated a DNA mixture from two individuals. Bauermeister was not excluded as a major contributor. The probability of an unrelated individual matching the major DNA profile, given that Bauermeister expressed the profile, was 1 in 1.08 nonillion, which Helligso testified "is 30 zeros." Stack was not excluded as a partial profile contributor. The probability of an unrelated individual matching the partial profile, given that Stack expressed such a profile, was 1 in 1.66 billion.

Also positive for blood were swabs from Stack's left shoe, which had a few areas of visible blood; from various areas of the pellet gun; and from Bauermeister's fingernails and her cell phone. DNA testing showed that Bauermeister was not excluded as the source. The probability of an unrelated individual matching the DNA profile, given that Bauermeister expressed such a profile, was 1 in 1.08 nonillion.

Helligso tested a swab from various textured areas of the gun for "touch DNA" contributed by skin cells. The swab generated a DNA profile from a mixture of two individuals. Stack and Bauermeister were not excluded as contributors. As to Stack, the probability of an unrelated individual matching the DNA profile, given that Stack expressed such a profile, was 1 in 36.3 sextillion. Regarding Bauermeister, the probability of an unrelated individual matching the DNA profile, given that Bauermeister expressed such a profile, was 1 in 17.9 quintillion. Helligso testified that she cannot know when DNA was deposited on an item and that she has found touch DNA on an item up to 2 years after it has been handled by a person.

Helligso attempted to test a brown hair strand found in Bauermeister's hand, but she could not obtain a DNA profile from the root area. And she did not have the capability in her laboratory to test the remainder of the strand for a...