- 320 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

State 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 disturbed 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 reasonable degree of rational understanding.

5. Mental Competency. 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.

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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/17/2022 01:07 AM CDT
- 321 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

8. 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 sincerely 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 cumulative 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 evidence 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 
- 322 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

a 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 
- 323 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

there 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 sheriff. At Kubik’s home, the sheriff met Mahr and Kubik’s father. 

Mahr told the sheriff she was certain that Kubik had been kidnapped or that something had happened to him. Mahr showed 

the sheriff the patch of what looked like blood, along with possible 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 unsuccessfully to “ping” Kubik’s cell phone.

Officers then met in Wakefield, Nebraska, to continue the 

investigation. The investigation was proceeding along at multiple 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 residence 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 residence. 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 protective sweep of the property, one officer found bloodied boots 

and pants.
- 324 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

Meanwhile, 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 
- 325 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

Surber’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 gunshot 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 
- 326 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

search 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 exceptions 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 administer involuntary treatment. As part of the process to seek 

this approval, LRC was able to administer medications involuntarily 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 medications 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 unconventional” in that he displayed “selective” symptoms that 
- 327 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

mimicked 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 treatment 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, counsel 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 incompetent. 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 evaluated 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 testified 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 
- 328 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

appear 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 competency 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 withdraw, 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 adequately 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.
- 329 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

Hartmann also testified that there might still be issues 

because Surber did not trust his counsel. Hartmann’s evaluation noted that on prior occasions, he and other treating professionals 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 
- 330 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

resolving 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 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 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.
- 331 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

As 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 ultimately found competent and a trial date was set. But just days 

before the trial, Surber’s counsel once again sought a competency 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 previously indicated that Surber was malingering—opined that presently 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 functioning 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 reasonable degree of medical certainty, I consider this man 

not to have the capacity to stand trial and represent himself 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 reasonable degree of rational understanding.
- 332 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

The district court, having the benefit of many competency 

evaluations and treatment records, disagreed with this assessment, 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 proceedings 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 suggests 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 identifying 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).
- 333 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

the opinion of an expert in such matters. 12 The observations 

of the district court, along with the prior evidence of malingering 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 exceptions 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).
- 334 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

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 evidence 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 verdict 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 admitted, 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).
- 335 -

Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

STATE v. SURBER

Cite as 311 Neb. 320

Finally, 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.