State v. Braesch, 292 Neb. 930

Background

On July 13, 2013, Steven R. Braesch shot and killed his father in the family home; three young nieces were present nearby. Multiple shots (including close-range head shots) and shell casings linked the crime to a lever‑action .22 rifle found in the house.
Braesch was arrested without incident and later convicted after a bench trial of first‑degree murder, use of a firearm to commit a felony, and three counts of negligent child abuse.
Braesch waived his right to a jury trial in April 2014; the case was originally assigned to Judge Zastera but reassigned to Judge Kelch about three weeks before trial due to Zastera’s medical emergency. Braesch did not move to withdraw the jury waiver until after conviction.
Braesch’s sole expert, psychologist Kirk Newring, opined Braesch suffered bipolar I disorder and substance abuse and that those conditions impaired his volitional intent; Newring relied heavily on Braesch’s self‑reports and did not obtain corroborating medical/jail records or perform psychological testing.
The trial court admitted Newring’s testimony but later (as factfinder) found the expert opinion unreliable and not credible, rejected Braesch’s arguments challenging the jury‑waiver validity, denied a new trial, and found the evidence sufficient to support first‑degree murder.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Braesch)	Held
Validity of jury‑waiver after reassignment	Waiver was valid; defendant had not timely raised reassignment issue and has no right to a particular judge	Waiver was not voluntary/intelligent because he would not have waived if he knew Judge Kelch would preside	Court: Waiver valid; reassignment did not void waiver; failure to timely seek withdrawal waived appellate challenge; no plain error
Timeliness of motion to withdraw waiver / new trial	Motion raised after conviction is untimely; defendant knew circumstances before trial and did not act	Reassignment was last‑minute and prevented meaningful choice regarding jury vs bench trial	Court: Trial court did not abuse discretion in denying new trial—no good cause shown for delay
Admissibility and reliability of expert testimony (mental‑state opinion)	Expert not qualified to opine on legal intent as to premeditation; reliance on voluntary intoxication barred; methodology not established	Expert qualified; testimony relevant to volitional intent and bipolar diagnosis; intoxication context part of diagnostic picture	Court: Admitted testimony permissibly in bench trial but, after hearing evidence, found the expert’s methodology and application unreliable and opinion not credible; exclusion of weight, not admission, was proper
Sufficiency of evidence for deliberate and premeditated malice	Evidence (retrieval of loaded gun, immediate multiple shots including close‑range head shots) establishes intent, deliberation, and premeditation	Killing was impulsive/sudden quarrel; expert evidence should negate specific intent	Court: Evidence sufficient for first‑degree murder; reasonable factfinder could infer deliberation and premeditation

Key Cases Cited

Daubert v. Merrell Dow Pharm., 509 U.S. 579 (methodology/reliability gatekeeper standard)
Schafersman v. Agland Coop, 262 Neb. 215 (Nebraska application of Daubert)
Fickle v. State, 273 Neb. 990 (bench‑trial flexibility in gatekeeping expert evidence)
State v. Halsey, 232 Neb. 658 (timeliness of withdrawing jury waiver/new trial)
State v. Zemunski, 230 Neb. 613 (defendant has no absolute right to a particular judge)
State v. Iromuanya, 282 Neb. 798 (defendant controls jury waiver decision)
State v. Herrera, 289 Neb. 575 (Daubert/Schafersman framework)
State v. Escamilla, 291 Neb. 181 (definitions of deliberation and premeditation for first‑degree murder)