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State of Nebraska, appellee, v. 

Robert W. Grant, appellant.

___ N.W.2d ___

Filed April 1, 2016. No. S-15-192.

1. Motions to Suppress: Confessions: Constitutional Law: Appeal and 

Error. In reviewing a trial court’s ruling on a motion to suppress, 

whether based on a claimed violation of the Fourth Amendment or on 

its alleged involuntariness, an appellate court applies a two-part standard 

of review. Regarding historical facts, the appellate court reviews the trial 

court’s findings for clear error. Whether those facts meet constitutional 

standards, however, is a question of law, which the appellate court 

reviews independently of the court’s determination.

2. Confessions: Constitutional Law. Under Jackson v. Denno, 378 U.S. 

368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), courts must institute fair 

procedures to determine whether a confession is voluntary, because 

involuntary or coerced confessions cannot be introduced into evidence.

3. Confessions: Police Officers and Sheriffs: Due Process. While the 

totality of the circumstances weighs on the question whether a statement 

was voluntary, coercive police activity is a necessary predicate to the 

finding that a confession is not voluntary within the meaning of the Due 

Process Clause of the 14th Amendment.

4. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits the use of statements derived during custodial interrogations unless 

the prosecution demonstrates that its agents used procedural safeguards 

that are effective to secure the privilege against self-incrimination.

5. Miranda Rights. The relevant inquiry in determining “custody” for purposes of Miranda rights is whether, given the objective circumstances of 

the interrogation, a reasonable person would have felt he or she was not 

at liberty to terminate the interaction and leave.

6. Miranda Rights: Police Officers and Sheriffs: Words and Phrases. 

“Interrogation” under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966), refers not only to express questioning, but also 

Nebraska Supreme Court Online Library

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

04/01/2016 09:05 AM CDT
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to any words or actions on the part of the police that the police should 

know are reasonably likely to elicit an incriminating response from 

the suspect.

7. Arrests: Police Officers and Sheriffs. Questioning designed to obtain 

biographical information necessary for routine booking is not interrogation when police have no reason to know that questioning is reasonably 

likely to elicit an incriminating response.

8. Evidence: Appeal and Error. The exercise of judicial discretion is 

implicit in decisions to admit evidence based on relevancy or admissibility, and those decisions will not be overturned by an appellate court in 

the absence of an abuse of discretion.

9. Criminal Law: Juries: Evidence. In a jury trial of a criminal case, an 

erroneous evidentiary ruling results in prejudice to a defendant unless 

the State demonstrates that the error was harmless beyond a reasonable doubt.

10. Trial: Convictions: Evidence. Where the evidence is cumulative 

and there is other competent evidence to support the conviction, the 

improper admission or exclusion of evidence is harmless beyond a reasonable doubt.

11. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than 

one made by the declarant while testifying at the trial or hearing, offered 

in evidence to prove the truth of the matter asserted.

12. Hearsay. If an out-of-court statement is not offered for the purpose of 

proving the truth of the facts asserted, it is not hearsay.

13. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews 

de novo whether the trial court applied the correct legal standards for 

admitting an expert’s testimony.

14. ____: ____: ____. An appellate court reviews for abuse of discretion 

how the trial court applied the appropriate standards in deciding whether 

to admit or exclude an expert’s testimony.

15. Rules of Evidence: Expert Witnesses. Under Neb. Evid. R. 702, Neb. 

Rev. Stat. § 27-702 (Reissue 2008), a witness can testify concerning 

scientific, technical, or other specialized knowledge only if the witness 

qualifies as an expert.

16. Trial: Expert Witnesses. A general foundational objection is insufficient 

to preserve an issue under Daubert v. Merrell Dow Pharmaceuticals, 

Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), and 

Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).

17. Evidence: Words and Phrases. Evidence is relevant if it tends in any 

degree to alter the probability of a material fact.

18. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2008), relevant evidence may be excluded if its probative value 

is substantially outweighed by the danger of unfair prejudice.
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19. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

20. Rules of Evidence: Witnesses. Neb. Evid. R. 602, Neb. Rev. Stat. 

§ 27-602 (Reissue 2008), prohibits a witness from testifying unless 

evidence is introduced to support a finding that the witness has personal 

knowledge of the matter.

21. Rules of Evidence: Appeal and Error. An objection that evidence is 

irrelevant does not preserve for review any objection under Neb. Evid. 

R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).

22. Trial: Evidence: Appeal and Error. Because authentication rulings 

are necessarily fact specific, a trial court has discretion to determine 

whether evidence has been properly authenticated. An appellate court 

reviews a trial court’s ruling on authentication for abuse of discretion.

23. Criminal Law: Trial: Evidence. Where objects pass through several 

hands before being produced in court, it is necessary to establish a complete chain of evidence, tracing the possession of the object or article 

to the final custodian; and if one link in the chain is missing, the object 

may not be introduced in evidence.

24. Motions for Mistrial: Appeal and Error. Decisions regarding motions 

for mistrial are directed to the discretion of the trial court, and will be 

upheld in the absence of an abuse of discretion.

25. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial 

is properly granted in a criminal case where an event occurs during the 

course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus 

prevents a fair trial.

26. Motions for Mistrial: Proof. A defendant faces a higher threshold than 

merely showing a possibility of prejudice when attempting to prove 

error predicated on the failure to grant a mistrial. Instead, the defendant 

must prove the alleged error actually prejudiced him or her, rather than 

creating only the possibility of prejudice.

27. Mental Competency: Appeal and Error. The trial court’s determination of competency will not be disturbed unless there is insufficient 

evidence to support the finding.

28. Courts: Mental Competency. The means to be employed to determine competency or the substantial probability of competency within 

the foreseeable future are discretionary with the district court, and the 

court may cause such medical, psychiatric, or psychological examination of the accused to be made as he or she deems necessary in order 

to make such a determination under Neb. Rev. Stat. § 29-1823(1) 

(Reissue 2008).
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29. 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.

30. Trial: Judges. In Nebraska, a trial judge has broad discretion over the 

conduct of a trial.

31. Jury Instructions: Appeal and Error. Whether jury instructions are 

correct is a question of law, which an appellate court resolves independently of the lower court’s decision.

32. Jury Instructions. When instructing the jury, it is proper for the court 

to describe the offense in the language of the statute.

33. Criminal Law: Convictions: Evidence: Appeal and Error. When 

reviewing for sufficiency of the evidence to sustain a conviction, the 

relevant question for an appellate court is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a 

reasonable doubt.

Appeal from the District Court for Douglas County: Gregory

M. Schatz, Judge. Affirmed.

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.

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.
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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 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 
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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.
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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.
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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.
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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 
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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.

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 
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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.
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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.

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 
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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 seventh days of trial 

and the information provided in counsel’s affidavit.

In support of the motion for mistrial, Grant attempted to 

present testimony of Todd Cooper, a reporter who was in 

the courtroom at the time of Grant’s outburst on the seventh day of trial. But when Cooper expressed reluctance to 

testify because of his job as a reporter, the court suggested 

that Grant use another witness to get the information. Grant 

then attempted to present testimony by Kelly Steenbock, 

an employee of the Douglas County Public Defender who 

had interviewed Cooper about what he witnessed. During 

Steenbock’s testimony, Cooper, apparently from the courtroom 

gallery, made a hearsay objection, claiming he had the right to 

do so under the First Amendment. The State then objected to 

Steenbock’s testimony on hearsay grounds and suggested that 

Grant may be able to prove the day’s events through Hinsley, 

who was on the stand during the outburst. Instead, Grant made 

an offer of proof through Steenbock about what Cooper had 

related to her.

The district court overruled the motion for mistrial and 

denied counsel’s request for a recess. The district court 
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reasoned that the pretrial psychological evaluation showed 

Grant was competent to stand trial and that counsel’s affidavit 

did not present sufficient evidence to change that finding.

At the close of trial, the district court gave the jury instructions, in relevant part, defining the elements of murder in 

the first degree, murder in the second degree, and intentional 

manslaughter.

The jury found Grant guilty of first degree murder and 

guilty of use of a deadly weapon to commit a felony. The district court sentenced Grant to life imprisonment for first degree 

murder, and a period of 50 to 50 years’ imprisonment for use 

of a deadly weapon, to be served consecutively, with credit for 

504 days of time served. Grant appeals.

III. ASSIGNMENTS OF ERROR

Grant assigns, restated and renumbered, that the district 

court erred in:

(1) admitting Grant’s statements at the bus station, at the 

correctional center, and at the Omaha Police Department central headquarters, in violation of Miranda v. Arizona1

 and 

Jackson v. Denno2;

(2) permitting Queen to testify that the duffelbag belonged 

to Grant;

(3) admitting Adler’s testimony of Carter’s out-of-court 

statement that “‘he killed her’”;

(4) allowing Brady to testify that a shoeprint matched the 

tread of the Adidas shoes;

(5) admitting exhibit 206 and allowing Hinsley and a crime 

laboratory technician to testify about Grant’s demeanor;

(6) allowing Carter to testify that Grant and McKee were 

not a couple in July 2013 until after the first week McKee and 

Carter lived in Omaha;

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).

2 Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).
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(7) allowing Hinsley to testify about Carter’s demeanor 

while she was being questioned;

(8) admitting 11 autopsy photographs over Grant’s objections;

(9) admitting the maroon tank top and black pants into 

evidence;

(10) denying Grant’s first and second motions for mistrial;

(11) denying Grant’s motion for a recess and psychological 

evaluation of Grant;

(12) permitting Cooper to refuse to testify and giving Cooper 

standing to object; and

(13) including the words “without malice” in the jury instruction for intentional manslaughter.

Grant also assigns that

(14) there was insufficient evidence to support his 

convictions.

IV. ANALYSIS

1. Miranda v. Arizona and

Jackson v. Denno

In Grant’s first assignment of error, he asserts that the 

State violated Miranda v. Arizona and Jackson v. Denno

by introducing statements Grant made to Partridge and to 

Checksfield.

(a) Standard of Review

[1] In reviewing a trial court’s ruling on a motion to suppress, whether based on a claimed violation of the Fourth 

Amendment or on its alleged involuntariness, an appellate 

court applies a two-part standard of review. Regarding historical facts, the appellate court reviews the trial court’s findings 

for clear error. Whether those facts meet constitutional standards, however, is a question of law, which the appellate court 

reviews independently of the court’s determination.3

3 State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
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(b) Analysis

[2,3] Grant first assigns that the State violated Jackson, in 

which the U.S. Supreme Court held that courts must institute 

fair procedures to determine whether a confession is voluntary, 

because involuntary or coerced confessions cannot be introduced into evidence.4

 While the totality of the circumstances 

weighs on the question whether a statement was voluntary, 

“coercive police activity is a necessary predicate to the finding 

that a confession is not voluntary within the meaning of the 

Due Process Clause of the 14th Amendment.”5 We find that 

the district court complied with Jackson by holding an appropriate pretrial hearing to assess whether Grant’s statements 

were voluntary.

The nature of Grant’s Jackson argument is not clear from 

his brief. But, to the extent Grant may have preserved his 

argument, it lacks merit. The district court held a pretrial 

hearing on Grant’s motion to suppress and determined that 

the relevant statements were voluntary and did not violate 

Miranda. The district court determined that statements made 

by Grant to Partridge and Checksfield in the bus station 

were admissible.

Further, there is nothing in the facts of this case to suggest that Grant had been coerced into making the statements 

introduced at trial. He was never threatened or offered any bargains in return for his choice to make statements to Partridge 

or Checksfield.

Because the district court held a full hearing on the admissibility of Grant’s statements, we find no merit to Grant’s arguments with respect to Jackson.

[4] Next, Grant argues that the introduction of his statements 

violated Miranda. Miranda prohibits the use of statements 

derived during custodial interrogations unless the prosecution 

demonstrates that its agents used procedural safeguards that 

4 See Jackson, supra note 2.

5 State v. Garner, 260 Neb. 41, 49, 614 N.W.2d 319, 327 (2000).
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are effective to secure the privilege against self-incrimination.6

At trial, Grant made continuing objections to any mentions of 

his statements at the bus station, at the correctional center, and 

at police central headquarters.

[5-7] The relevant inquiry in determining “custody” for 

purposes of Miranda rights is whether, given the objective 

circumstances, a reasonable person would have felt he or 

she was not at liberty to terminate the interaction and leave.7

Next, “interrogation” under Miranda refers not only to express 

questioning, but also to any words or actions on the part of 

the police that the police should know are reasonably likely to 

elicit an incriminating response from the suspect.8 Questioning 

designed to obtain biographical information necessary for routine booking is not interrogation when police have no reason to 

know that questioning is reasonably likely to elicit an incriminating response.9

For purposes of this analysis, we assume without deciding 

that Partridge, the security employee, was a state actor and that 

Miranda is applicable to his actions.

We determine that Grant was in custody when he made 

the statements. Partridge had restrained Grant in handcuffs 

almost immediately upon discovering Grant, and Grant was 

not free to leave after that point. Grant, in fact, made requests 

to be let go with a warning or citation, but was not permitted 

to do so.

However, Partridge and Checksfield did not interrogate 

Grant for purposes of Miranda. Partridge asked Grant only for 

his name, where he was from, his address, and similar information. When Checksfield arrived, he merely asked questions in 

line with Omaha Police Department policy, which were aimed 

at determining whether to issue Grant a citation or to arrest 

6 State v. Walker, 272 Neb. 725, 724 N.W.2d 552 (2006).

7 State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).

8 State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).

9 See State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
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him. At this point in time, neither Partridge nor Checksfield 

were aware that Grant was a suspect or person of interest in 

a homicide. Therefore, they had no indication whatsoever that 

asking Grant about his living arrangements or where he was 

from might elicit an incriminating response.

The district court did exclude some statements Grant had 

made at police central headquarters. King had asked Grant 

about his whereabouts on September 17, 2013, before reading Grant any Miranda warnings. The district court found that 

Grant’s statements in response to King’s questions were inadmissible. At trial, King testified that Grant had told King his 

name and that he lived at a homeless shelter. But the State did 

not offer any of the excluded incriminating statements Grant 

made about his whereabouts on September 17.

The limited statements offered through King’s testimony at 

trial were made in response to purely biographical questions. 

Though King was questioning Grant in relation to McKee’s 

death, the statements offered at trial were limited to Grant’s 

name and where he lived. When questioning Grant, King did 

not have reason to believe this biographical information would 

be incriminating. In contrast, further pre-Miranda statements 

Grant made to King about his whereabouts on September 17, 

2013, were properly excluded, because King knew that Grant’s 

statements would likely incriminate him.

Under our well-established case law, biographical inquiries 

that law enforcement have no reason to believe will prompt 

an incriminating response are not interrogations for purposes 

of Miranda.

10 The statements admitted at trial were a result 

of purely biographical inquiries. Thus, we find that Grant’s 

Miranda rights were not violated by the introduction of 

his statements.

For these reasons, Grant’s first assignment of error is without merit.

10 See id.
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2. Admission of Alleged

Hearsay Testimony

In Grant’s second and third assignments of error, he argues 

that the district court erred by admitting two pieces of testimony over Grant’s hearsay objections. First, Grant argues 

that Queen should not have been permitted to testify that 

he received information that the Dale Junior 88 duffelbag 

belonged to Grant. Second, Grant claims the court erred by 

admitting Adler’s testimony about Carter’s statements after 

Carter had discovered McKee’s body.

(a) Standard of Review

[8] The exercise of judicial discretion is implicit in decisions 

to admit evidence based on relevancy or admissibility, and 

those decisions will not be overturned by an appellate court in 

the absence of an abuse of discretion.11

[9,10] The improper admission of evidence is a trial error 

and subject to harmless error review.12 In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice 

to a defendant unless the State demonstrates that the error was 

harmless beyond a reasonable doubt.13 Where the evidence is 

cumulative and there is other competent evidence to support 

the conviction, the improper admission or exclusion of evidence is harmless beyond a reasonable doubt.14

(b) Hearsay

[11,12] Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, offered in 

evidence to prove the truth of the matter asserted.15 Hearsay is 

11 Sack v. Castillo, 278 Neb. 156, 768 N.W.2d 429 (2009).

12 State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).

13 State v. Pangborn, 286 Neb. 363, 836 N.W.2d 790 (2013).

14 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).

15 State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).
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not admissible except as provided by the rules of evidence.16

Conversely, if an out-of-court statement is not offered for 

the purpose of proving the truth of the facts asserted, it is 

not hearsay.17

(c) Queen’s Testimony

At trial, Grant cross-examined Queen about whether a number of items at the scene were tested for fingerprints or 

DNA evidence. In an attempt to raise reasonable doubt, Grant 

focused his defense primarily on the evidence that had not 

been tested. On redirect, the State asked Queen why police did 

not test many items Grant had discussed on cross-examination, 

including alcohol swabs found inside of the Dale 88 Junior 

duffelbag. Queen testified that he had received information 

that the bag belonged to Grant, so police thought there was no 

need to fingerprint the contents of the bag.

Grant asserts that Queen’s testimony was hearsay. However, 

assuming without deciding that the testimony was hearsay, we 

hold that its admission was harmless error. Even if the State 

offered the out-of-court statement to prove the truth of the 

matter asserted, that Grant owned the duffelbag, the testimony 

was cumulative. Carter testified that the bag was Grant’s, and 

DNA evidence linked Grant to items of clothing that were in 

the bag. Therefore, even without Queen’s testimony, the State 

had established that the bag belonged to Grant.

Therefore, the testimony was admissible and Grant’s second 

assignment of error is without merit.

(d) Adler’s Testimony

Adler testified that when she arrived at the apartment building, Carter was visibly extremely upset and crying, and that she 

was saying, “[t]hat fucker, that fucker, he killed her, I know 

he killed her. My mom’s dead.” According to Von Seggern’s 

16 State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).

17 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
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testimony, Carter made these statements very shortly after finding McKee’s body.

Adler’s testimony was hearsay. Carter made the statement 

outside of court, and the State offered it in evidence apparently 

in order to prove the truth of the matter asserted—that Grant 

killed McKee. But the State argues that the statement was 

admissible under the excited utterance hearsay exception.

Assuming without deciding that the testimony was inadmissible, we hold that any error was harmless.

Even without looking to the admitted hearsay statement, 

there was a great deal of other evidence to support the conviction. DNA evidence and Carter’s testimony proved that the 

Dale Junior 88 duffelbag and the Adidas shoes, maroon tank 

top, and black pants belonged to Grant. DNA evidence also 

linked McKee to the blood on Grant’s clothing. There was no 

forced entry to the apartment, and the door was apparently 

locked from the outside after the homicide took place. The 

morning of McKee’s death, Carter had seen Grant with McKee 

sleeping in bed. Furthermore, Grant and McKee had been 

arguing with some frequency. Finally, Grant was discovered 

attempting to board a bus departing Omaha and lied about his 

identity. When he was eventually arrested, a drop of McKee’s 

blood was found on his shoe. This evidence overwhelmingly 

proves Grant’s guilt.

Furthermore, the jury was well aware that Carter had not 

actually witnessed the murder. A reasonable trier of fact would 

only consider Carter’s out-of-court statement in light of this 

knowledge. Grant’s third assignment of error is without merit.

3. Brady’s Testimony

Regarding Shoeprint

In Grant’s fourth assignment of error, he argues that the 

district court erred by allowing Brady to testify that the tread 

of the bloody shoeprint in McKee’s bathroom appeared to 

match the tread of the Adidas shoes. Grant asserts that Brady’s 

testimony was not proper expert witness testimony, because 
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Brady, a crime laboratory technician, was not qualified to compare shoeprints.

(a) Standard of Review

[13,14] We review de novo whether the trial court applied 

the correct legal standards for admitting an expert’s testimony.18 We review for abuse of discretion how the trial court 

applied the appropriate standards in deciding whether to admit 

or exclude an expert’s testimony.19

(b) Analysis

[15] First, we note that Brady’s comparison of the shoeprint 

was not expert testimony. Under evidence rule 702,20 a witness 

can testify concerning scientific, technical, or other specialized 

knowledge only if the witness qualifies as an expert.21 Brady’s 

testimony did not require any specialized knowledge, any lay 

person would be capable of comparing pictures of the Adidas 

shoe tread and the shoeprint side by side. Therefore, Brady’s 

testimony is not governed by rule 702.

[16] In any case, Grant has waived this argument. The 

objection Grant now raises on appeal was not obvious from 

the context at trial. We specifically stated in State v. Ellis22 that 

a general foundational objection is insufficient to preserve an 

issue under Daubert v. Merrell Dow Pharmaceuticals, Inc.23

and Schafersman v. Agland Coop.

24

18 Roskop Dairy v. GEA Farm Tech., 292 Neb. 148, 871 N.W.2d 776 (2015).

19 Id.

20 Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 2008).

21 Orchard Hill Neighborhood v. Orchard Hill Mercantile, 274 Neb. 154, 738 

N.W.2d 820 (2007).

22 State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011).

23 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 

2786, 125 L. Ed. 2d 469 (1993) (setting standards for admissibility of 

expert testimony in federal court).

24 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001) 

(adopting Daubert, supra note 23, in Nebraska courts).
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Grant objected to Brady’s testimony only on the basis of 

“foundation.” The district court likely thought that Grant was 

making a personal knowledge objection, as opposed to an 

improper expert opinion objection. We conclude that Grant has 

waived any argument regarding Brady’s testimony. His fourth 

assignment of error is therefore without merit.

4. Grant’s Demeanor at Police

Central Headquarters

In Grant’s fifth assignment of error, he asserts that three particular pieces of evidence about his demeanor at police central 

headquarters were inadmissible.

(a) Standard of Review

The exercise of judicial discretion is implicit in decisions to 

admit evidence based on relevancy or admissibility, and those 

decisions will not be overturned by an appellate court in the 

absence of an abuse of discretion.25

(b) Exhibit 206

First, Grant argues that exhibit 206, a photograph of 

him, was irrelevant and unfairly prejudicial under evidence 

rule 403.26

[17,18] Evidence is relevant if it tends in any degree to alter 

the probability of a material fact.27 Under rule 403, relevant 

evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice.28

Exhibit 206 showed Grant in the clothing he was wearing 

when arrested. It depicts him grinning and with his hands 

cuffed. Pieces of molded gold plating that fit over his front 

teeth are visible.

25 Sack, supra note 11.

26 Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008).

27 State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010).

28 Bauldwin, supra note 8.
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The photograph was relevant to show the clothing Grant 

was wearing, particularly the Nike shoes that had a drop of 

McKee’s blood on them. Additionally, Grant’s demeanor during his arrest may have been relevant. But Grant argues that 

this probative value is outweighed by the fact that his gold 

teeth were visible in the picture. He claims, without reference 

to any sources, that white jurors become prejudiced when they 

see that a black man has gold teeth.

Even assuming Grant’s assertion regarding prejudice is correct, any prejudicial effect Grant’s gold teeth may have had 

on the jury cannot outweigh the very high probative value of 

proving that Grant was wearing an item of clothing on which 

McKee’s blood was found. Grant’s argument regarding exhibit 

206 is without merit.

(c) Testimony That Grant 

Was “[G]oofy”

Grant next claims that the court erred by admitting Hinsley’s 

testimony that Grant was “goofy, not really caring as to what 

he was there for.” Grant argues on appeal that the testimony 

violated rule 403.

However, Grant has waived a rule 403 objection by failing to specifically raise rule 403, as we required in State v. 

Schrein29: “[T]he trial court is required to weigh the danger 

of unfair prejudice against the probative value of the evidence 

only when requested to do so at trial.” Grant objected only on 

relevance grounds and did not raise rule 403 at trial. Therefore, 

we need not consider Grant’s rule 403 contention. Grant’s 

argument on this point is without merit.

(d) Testimony That Grant 

Was “Cooperative”

[19] Third, Grant claims the district court erred by admitting a crime laboratory technician’s testimony that Grant was 

29 State v. Schrein, 244 Neb. 136, 147, 504 N.W.2d 827, 834 (1993).
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“[c]ooperative.” However, an alleged error must be both specifically assigned and specifically argued in the brief of the 

party asserting the error to be considered by an appellate 

court.30 Though Grant assigns the admission of the testimony 

as error, he never argues why it was error. As such, we will not 

address this argument further.

Grant’s fifth assignment of error lacks merit.

5. Admission of Other Testimony

In Grant’s sixth and seventh assignments of error, he argues 

that the district court erred by admitting two additional pieces 

of testimony. First, Grant objects to Carter’s testimony that 

Grant and McKee had no relationship during McKee and 

Carter’s move from Wichita to Omaha and during the first 

week McKee and Carter lived in Omaha. Second, Grant argues 

that Hinsley should not have been permitted to testify about 

Carter’s demeanor on the day McKee was killed.

(a) Standard of Review

The exercise of judicial discretion is implicit in decisions to 

admit evidence based on relevancy or admissibility, and those 

decisions will not be overturned by an appellate court in the 

absence of an abuse of discretion.31

(b) Carter’s Testimony About Grant 

and McKee’s Relationship

[20] Grant asserts the admission of Carter’s testimony 

regarding Grant and McKee’s relationship violated evidence 

rule 602.32 Rule 602 prohibits a witness from testifying “unless 

evidence is introduced to support a finding that [s]he has personal knowledge of the matter.”

Grant essentially argues that Carter should not have been 

able to testify about the nature of McKee’s relationship with 

30 State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015).

31 Sack, supra note 11.

32 Neb. Evid. R. 602, Neb. Rev. Stat. § 27-602 (Reissue 2008).
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Grant because Carter was not present for every single encounter between Grant and McKee. But Carter did not testify about 

any matters or events that she did not personally witness. 

The State never asked Carter whether Grant and McKee were 

actually together. Instead, Carter testified about her personal 

observations of Grant’s absence and her conversations with 

McKee. (Grant does not raise any hearsay argument regarding 

this testimony.) Carter testified only that she had the impression that Grant and McKee were not together.

Grant also assigns that the district court erred by admitting Carter’s testimony that Grant and McKee’s arguments 

got worse in the weeks leading up to the murder. However, 

although Grant assigned this error, he did not argue it in his 

brief and the basis of this assignment is not readily apparent 

from the record. An alleged error must be both specifically 

assigned and specifically argued in the brief of the party 

asserting the error to be considered by an appellate court.33 We 

will not consider this argument further.

For the reasons stated, we hold that Grant’s sixth assignment 

of error is without merit.

(c) Hinsley’s Testimony About 

Carter’s Demeanor

At trial, Grant objected to Hinsley’s testimony only on the 

basis of relevancy. Grant now argues that the testimony was 

not relevant under evidence rule 40134 and that it was unfairly 

prejudicial under rule 403.

We turn first to relevancy under rule 401. Evidence is relevant if it tends in any degree to alter the probability of a 

material fact.35 In this case, whether Grant killed McKee was 

a material fact. The State was required to prove Grant’s guilt 

beyond a reasonable doubt. That burden gives the State a 

33 Cook, supra note 30.

34 Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2008).

35 Ford, supra note 27.
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strong incentive to discredit theories that another person committed the crime, even if the defense did not explicitly raise 

such a theory. Hinsley’s testimony about Carter’s demeanor 

was relevant under rule 401, because it tended to prove that 

Carter did not kill McKee.

[21] We next turn to Grant’s rule 403 argument. Unless 

an objection to offered evidence is sufficiently specific to 

enlighten the trial court and enable it to pass upon the sufficiency of such objection and to observe the alleged harmful 

bearing of the evidence from the standpoint of the objector, no 

question can be presented therefrom on appeal.36 In Schrein, 

we held that a defendant’s objection that evidence is irrelevant 

does not preserve for review any objection under rule 403.37

Therefore, Grant’s relevancy objection did not preserve the 

rule 403 objection he now raises on appeal.

Grant’s seventh assignment of error is without merit.

6. Autopsy Photographs

In Grant’s eighth assignment of error, he asserts that 11 

autopsy photographs, exhibits 230 to 236, 239 to 241, and 

245 were cumulative and unfairly prejudicial under rule 403. 

The photographs show McKee’s body from various angles. 

Each photograph depicts several wounds, and no photograph 

shows exactly the same wounds as any other. The State agreed 

to withhold exhibits 237 and 238, because the district court 

suggested that they may have been cumulative. But the district court determined that none of the other photographs 

were cumulative.

(a) Standard of Review

An appellate court reviews the admission of photographs of 

victims’ bodies for abuse of discretion.38

36 State v. Hall, 270 Neb. 669, 708 N.W.2d 209 (2005).

37 Schrein, supra note 29.

38 State v. Dubray, 289 Neb. 208, 854 N.W.2d 584 (2014).
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(b) Analysis

Under rule 403, relevant evidence may be excluded if its 

probative value is substantially outweighed by the danger of 

unfair prejudice or if it is needlessly cumulative.39

We find no error in the admission of these photographs. 

First, the prejudicial effect of the exhibits does not substantially outweigh their probative value. Second, the photographs 

were not cumulative.

The photographs were highly probative to show the condition of McKee’s body, the nature of her wounds, the cause 

of her death, and the intent of her attacker. Admittedly, the 

photographs contain graphic images. But Grant is convicted of 

stabbing McKee more than 50 times. As we noted in State v. 

Dubray,

40 “gruesome crimes produce gruesome photographs.” 

Thus, any prejudicial effect of the gruesome photographs does 

not outweigh their probative value.

Furthermore, the photographs are not cumulative, because 

they each portray different wounds or angles. It is not 

unreasonable to expect that the State must show multiple 

pictures in order to document all or most of McKee’s numerous wounds.

For these reasons, the district court did not abuse its discretion by finding that the photographs were not unfairly 

prejudicial or cumulative. Grant’s eighth assignment of error is 

without merit.

7. Chain of Custody of

Exhibits 291 and 292

In Grant’s ninth assignment of error, he argues that the district court erred by admitting the maroon tank top and black 

pants into evidence. Grant asserts that there was improper 

foundation for these exhibits to prove the chain of custody.

39 See Bauldwin, supra note 8.

40 Dubray, supra note 38, 289 Neb. at 219, 854 N.W.2d at 599.
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(a) Standard of Review

[22] Because authentication rulings are necessarily fact 

specific, a trial court has discretion to determine whether 

evidence has been properly authenticated. An appellate court 

reviews a trial court’s ruling on authentication for abuse 

of discretion.41

(b) Analysis

At trial, the State introduced exhibits 291 and 292 through 

Helligso’s testimony. When the State offered exhibit 291, the 

maroon tank top, Grant objected on “foundation.” When the 

State offered exhibit 292, the black pants, Grant objected on 

“foundation, chain of custody.” The bases of both objections 

were, apparently, that Helligso was not personally present 

when the exhibits were placed into protective plastic for trial.

[23] Where objects pass through several hands before being 

produced in court, it is necessary to establish a complete chain 

of evidence, tracing the possession of the object or article to 

the final custodian; and if one link in the chain is missing, 

the object may not be introduced in evidence.42 Proof that an 

exhibit remained in the custody of law enforcement officials is 

sufficient to prove a chain of possession and is sufficient foundation to permit its introduction into evidence.43

The record shows the evidence was first collected at 

McKee’s apartment by Queen and crime laboratory personnel. A crime laboratory technician brought the items from the 

duffelbag, including the maroon tank top and the black pants, 

to the police crime laboratory and packaged each item individually. Queen testified that he was present when the items 

were booked into property pursuant to Omaha police protocol. 

Hinsley then checked the maroon tank top out of property and 

delivered it, in accordance with police protocol, to UNMC 

41 See State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).

42 State v. Glazebrook, 282 Neb. 412, 803 N.W.2d 767 (2011).

43 State v. Mather, 264 Neb. 182, 646 N.W.2d 605 (2002).
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for DNA testing; Helligso documented receiving the tank 

top. After DNA testing was complete, Hinsley retrieved the 

evidence. There is no record that the black pants were ever 

removed from law enforcement custody.

We do not know who placed the exhibits into plastic, or 

when he or she did so. However, the sequence of events above 

provides a consistent chain of custody from initial collection 

until, presumably, the final transfer of the evidence to police 

property before trial.

In addition, both Helligso and Carter testified that the items 

were what the State purported them to be. The crime laboratory 

technician testified that other than some predictably lower visibility of bloodstains on the black pants, the items looked the 

same as when she saw them in September 2013.

In light of this evidence, it was not an abuse of discretion 

for the district court to admit exhibits 291 and 292. Therefore, 

Grant’s ninth assignment of error is without merit.

8. Denial of Motions for Mistrial

In Grant’s 10th assignment of error, he argues the district 

court erred by denying Grant’s two motions for mistrial. Grant 

moved for mistrial on the sixth and seventh days of trial, after 

his violent outbursts in the courtroom.

(a) Standard of Review

[24] Decisions regarding motions for mistrial are directed 

to the discretion of the trial court, and will be upheld in the 

absence of an abuse of discretion.44

(b) Analysis

[25] The district court properly denied Grant’s motions 

for mistrial. A mistrial is properly granted in a criminal case 

where an event occurs during the course of a trial which is of 

such a nature that its damaging effect cannot be removed by 

44 Sturzenegger v. Father Flanagan’s Boys’ Home, 276 Neb. 327, 754 

N.W.2d 406 (2008).
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proper admonition or instruction to the jury and thus prevents 

a fair trial.45

In State v. Blackwell,

46 we upheld the denial of a motion for 

mistrial where a defendant’s outbursts had caused the alleged 

prejudice. In Blackwell, the defendant had, on two separate 

occasions, stood during examination of witnesses and yelled, 

disrupting the proceedings. We held that a defendant’s own 

conduct affords no basis for a new trial.

[26] A defendant faces a higher threshold than merely showing a possibility of prejudice when attempting to prove error 

predicated on the failure to grant a mistrial. Instead, the 

defendant must prove the alleged error actually prejudiced him 

or her, rather than creating only the possibility of prejudice.47

On the sixth day of Grant’s trial, outside the presence of 

the jury, Grant struck a deputy. Jurors were questioned after 

the incident about whether they had perceived any of what 

occurred. Five jurors had witnessed law enforcement running 

in response to radio calls. Though two jurors thought that the 

incident might have had something to do with Grant’s case, 

none had any idea what had actually occurred. Further, when 

the district court asked some of the jurors if they could remain 

fair and impartial, they all responded that they could.

On the seventh day of trial, this time in the presence of the 

jury, Grant stood up suddenly and punched his counsel in the 

head. According to Steenbock’s offer of proof testimony, the 

district court signaled to the bailiff, sheriffs punched Grant, a 

county attorney yelled “‘[t]ase him,’” and a juror yelled “stop 

it.” After trial began again, the court admonished the jury and 

asked jurors to notify the court if they could no longer remain 

fair and impartial. None did.

Grant attempts to distinguish Blackwell by arguing that the 

reactions of others in the courtroom were independent causes 

45 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).

46 State v. Blackwell, 184 Neb. 121, 165 N.W.2d 730 (1969).

47 Dixon, supra note 45.
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of prejudice. We reject this argument. None of the reactions by 

counsel, the judge, the bailiff, the sheriffs, or the jurors would 

have occurred without Grant’s own outburst. Accepting Grant’s 

distinction would render the rule from Blackwell meaningless 

and permit a defendant to benefit from his or her own bad 

behavior during trial.

Furthermore, Grant has not shown that any prejudice 

resulted from the incidents. First, the jurors never learned 

what had occurred on the sixth day of trial. Additionally, the 

district court admonished the jury on both occasions. Finally, 

the jurors indicated they could remain fair and impartial after 

each incident.

Grant’s 10th assignment of error is without merit.

9. Denial of Motion for

Psychological Evaluation

In Grant’s 11th assignment of error, he argues that the district court erred by denying his counsel’s request for a short 

recess and for a second psychological evaluation.

(a) Standard of Review

[27] The trial court’s determination of competency will not 

be disturbed unless there is insufficient evidence to support 

the finding.48

(b) Analysis

[28,29] The means to be employed to determine competency or the substantial probability of competency within the 

foreseeable future are discretionary with the district court, 

and the court may cause such medical, psychiatric, or psychological examination of the accused to be made as he or she 

deems necessary in order to make such a determination under 

Neb. Rev. Stat. § 29-1823(1) (Reissue 2008).49 A person is 

48 Walker, supra note 6.

49 State v. Jones, 258 Neb. 695, 605 N.W.2d 434 (2000).
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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.50 A 

defendant’s derangement or lack of mental ability is not sufficient to prove incompetence to stand trial.51

In support of Grant’s motion, defense counsel submitted an 

affidavit averring that a member of Grant’s family and Carter 

suggested Grant suffered from mental illness. The affidavit 

further stated that Grant had become paranoid during trial 

and that at one point, Grant had even ceased wanting to discuss the trial because he predicted that the world would end 

before trial began. Counsel argued that Grant had become 

incompetent during the course of trial, at some point after 

his initial evaluation. However, the district court found that 

counsel’s affidavit was insufficient to overcome the findings 

of the pretrial evaluation. Implicit in this finding, the district 

court concluded that another psychological evaluation was 

not required to determine Grant’s continuing competency to 

stand trial.

There was sufficient evidence to support the district court’s 

finding. The initial psychological evaluation found Grant competent beyond question. The evaluation even took into account 

Grant’s past experience taking medication normally used to 

treat mental illness.

Further, counsel’s affidavit and Grant’s behavior during trial 

did not truly raise questions about Grant’s ability to understand the nature of the proceedings, his place in them, or to 

participate in his defense. In this case, Grant’s mere impulsive behavior during trial is not sufficient to raise the issue 

of incompetence.

Therefore, Grant’s 11th assignment of error is without merit.

50 State v. Dunkin, 283 Neb. 30, 807 N.W.2d 744 (2012).

51 See State v. Crenshaw, 189 Neb. 780, 205 N.W.2d 517 (1973).
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10. Cooper’s Testimony

and Objection

In Grant’s 12th assignment of error, he asserts that the 

district court violated his constitutional rights by refusing to 

force Cooper to testify at the hearing on the seventh day of 

trial and by permitting Cooper to object to Steenbock’s testimony. Steenbock’s testimony was offered in support of Grant’s 

second motion for a mistrial and the motion for a recess and 

psychological evaluation.

(a) Standard of Review

[30] In Nebraska, a trial judge has broad discretion over the 

conduct of a trial.52

(b) Analysis

Although the events of the hearing on the seventh day of 

trial were curious, they do not appear to have deprived Grant 

of any constitutional right. Any error in the district court’s conduct of the hearing was harmless. As discussed above under 

subheadings 8 and 9, the motions for mistrial and psychological evaluation on the seventh day of trial were without merit. 

The introduction of Cooper’s statements offered in support of 

Grant’s motions would not have had any impact on the propriety of the district court’s rulings. Thus, the exclusion of 

Cooper’s statements was harmless.

For these reasons, Grant’s 12th assignment of error is without merit.

11. Intentional Manslaughter

Jury Instruction

In Grant’s 13th assignment of error, he argues that the jury 

instruction for intentional manslaughter violated his due process rights. Grant asserts that the language “without malice” 

should have been removed from the jury instruction.

52 Pangborn, supra note 13.
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(a) Standard of Review

[31] Whether jury instructions are correct is a question of 

law, which an appellate court resolves independently of the 

lower court’s decision.53

(b) Analysis

[32] When instructing the jury, it is proper for the court to 

describe the offense in the language of the statute.54 Under 

Nebraska statute, “[a] person commits manslaughter if he 

or she kills another without malice upon a sudden quarrel 

. . . .”55 In State v. Cook,

56 we affirmed a conviction for first 

degree murder where the jury was instructed to find manslaughter if “the killing was done ‘upon a sudden quarrel’ and 

‘without malice.’” Jury instruction No. 7 in the present case 

defined intentional manslaughter the same way as the trial 

court had in Cook.

Grant gives no argument why our law defining intentional 

manslaughter should be found unconstitutional. Thus, we apply 

our existing jurisprudence and hold that the district court did 

not err by giving jury instruction No. 7.

Grant’s 13th assignment of error is without merit.

12. Insufficiency of Evidence

Finally, Grant assigns that his convictions were not supported by sufficient evidence.

53 State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015).

54 State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).

55 Neb. Rev. Stat. § 28-305 (Reissue 2008) (emphasis supplied).

56 State v. Cook, 244 Neb. 751, 756, 509 N.W.2d 200, 204 (1993) (citing Neb. 

Rev. Stat. § 28-305(1) (Reissue 1989)). See, also, State v. Smith, 282 Neb. 

720, 806 N.W.2d 383 (2011) (holding that intentional killing committed 

upon sudden quarrel without malice is manslaughter; overruling State 

v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994), which had found that 

manslaughter was not intentional crime).
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(a) Standard of Review

[33] When reviewing for sufficiency of the evidence to sustain a conviction, the relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.57

(b) Analysis

Grant does not explain which essential elements of the 

crimes charged he believes were unproven. Instead, he raises 

concerns about the missing hair evidence, the number of surfaces not tested for DNA or fingerprints, and the fact that none 

of the law enforcement officials who saw Grant on September 

17, 2013, noticed the drop of blood on his right shoe until the 

shoe was removed for evidence.

Logically, none of the concerns Grant raises necessarily 

create reasonable doubt. Just because more evidence could 

have been gathered does not mean that the evidence actually 

obtained was insufficient.

Taken in the light most favorable to the State, a reasonable 

juror could find every element of the crimes of which Grant 

was convicted. The elements of first degree murder, as given 

to the jury, were that (1) Grant killed McKee on September 

17, 2013; (2) in Douglas County, purposely; (3) with deliberate and premeditated malice; and (4) not as a result of a sudden quarrel.

As discussed above, a reasonable juror could find beyond 

a reasonable doubt that Grant was the person who killed 

McKee. DNA evidence and Carter’s testimony linked the 

maroon tank top, Adidas sneakers, and Nike sneakers to Grant. 

DNA testing suggested that the blood on each of these items 

was McKee’s. Additionally, there was no sign of forced entry 

to the apartment, a juror could infer from Carter’s testimony 

57 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
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that the door was locked from the outside after the killer left 

the apartment, and there was no sign that any valuables had be 

stolen. This evidence implicates Grant very strongly, because 

he had access to the apartment and the murder seems to have 

been personally motivated. Further, Grant’s “‘almost single’” 

T-shirt had been placed in Carter’s bedroom as if to taunt 

her. Finally, Grant exhibited a consciousness of guilt when 

he attempted to sneak onto a bus to Chicago and then gave 

Partridge and Checksfield false information in order to avoid 

arrest. All of this evidence strongly incriminates Grant and 

supports the conviction.

Furthermore, because McKee was stabbed over 50 times 

with “a great deal of force,” a reasonable juror could find 

beyond a reasonable doubt that Grant killed McKee deliberately and maliciously. One neighbor’s testimony that there 

was a pause between the argument and the screaming could be 

the basis for a reasonable juror to find that McKee’s murder 

was premeditated and that it was not upon a sudden quarrel. 

There is no dispute that McKee was killed on September 17, 

2013, in Douglas County. Furthermore, sufficient evidence 

supports Grant’s conviction for use of a deadly weapon to 

commit a felony, because the murder was clearly committed 

with a knife.

Therefore, the State presented sufficient evidence and 

Grant’s 14th assignment of error is without merit.

V. CONCLUSION

Grant’s convictions and sentences are affirmed.

Affirmed.