State v. Surber
| Decision Date | 08 April 2022 |
| Docket Number | S-20-856. |
| Citation | 311 Neb. 320,972 N.W.2d 64 |
| Parties | STATE of Nebraska, appellee, v. Andres SURBER, appellant. |
| Court | Nebraska Supreme Court |
Todd W. Lancaster, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and McManaman, D.J.
Andres Surber was convicted of first degree murder, use of a firearm to commit a felony, and possession of a firearm by 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.
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 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.
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 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.
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 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.
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...
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...2031, 44 L.Ed.2d 589 (1975). [84] State v. Mrza, supra note 22. [85]Id. [86] State v. Surber, 311 Neb. 320, 972 N.W.2d 64 (2022). [87] See id. [88]Id. [89]Id. [90]Id. [91]See State v. Devers, 306 Neb. 429, 945 N.W.2d 470 (2020). [92]See State v. Surber, supra note 86. [93]See State v. Guatn......