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November 20, 2017

Start Mills: Plea deal gives Galvan-Hernandez chance to leave prison in his lifetime
By Jason Sturek
Pender Times Publisher

Brayan Galvan-Hernandez says he didn’t know he was about to see a man die.

His stated goal on an early November night almost one year ago was to feed a drug habit that began that spring.

Riding in a vehicle driven by Andres “Drey” Surber toward that endeavor at the rural Emerson acreage of 41-year-old Kraig “Boomer” Kubik, the then 18-year-old Wakefield man contends that what happened next was a complete surprise to him.

Surber — fresh from a prison release about six months before for felony assault and false imprisonment that involved stabbing a man and leaving him for dead — was angry about a deal on a Dodge Charger that he judged also merited a death sentence. He allegedly shot Kubik in the back of the head.

* * * *

Longtime Pender, Neb., attorney Stuart Mills isn’t new to defending people accused of horrific things. Galvan-Hernandez became the latest to consume his time and attention shortly after his arrest.

Mills can generally tell the difference between a psychopath and someone who is in the wrong place at the wrong time after years of interacting with criminal minds. This young man, he said, fits the latter.

“He wasn’t a tough guy. Brayan was a wannabe,” Mills said.

Galvan-Hernandez said he was scared of Surber that Tuesday autumn night and feared for his own life. Through the haze of a methamphetamine and marijuana cocktail, he did what the 25-year-old Surber told him to do in disposing of Kubik’s body.

Up to this point, the young man with a drug habit was perhaps guilty of no more than the unwise decision to be with Surber in that place and time.

But his next choice will land him with a 50 to 70 year prison sentence after a plea deal Oct. 10 of no contest to attempted second-degree murder and guilty to being an accessory to a felony was approved by District Court judge Paul J. Vaughan.

The exact number of years will be determined at a Dec. 12 sentencing hearing.

* * * *

The two men left Kubik’s body at the acreage and drove back to where their night had begun in Wakefield.

They returned — in two separate cars — including a Chevy Impala driven by Galvan-Hernandez, to gather Kubik’s body.

That’s the point where Mills acknowledges his client’s claim that he was fully independent of the crime suffers serious doubts. He was in his own vehicle, and it is reasonable to assume that he could have freed himself of the situation and reported that something awful had taken place.

“Brayan’s conduct after the murder resulted in the pleas he entered,” Mills said.

* * * *

A six-year-old boy told staff at Emerson-Hubbard school the next morning that something bad had happened — his dad was dead and “there was blood everywhere.”

At 9:46 a.m. on Wednesday, Nov. 2, Dakota County deputies were dispatched to Kubik’s home and trailer house to perform a welfare check at the residence. They found a large pool of blood in the driveway. His glasses were nearby, but there was no sign of Kubik.

There was surveillance video captured by multiple cameras at the site, and it pointed right at Surber and Galvan-Hernandez. Dixon County deputy Tom Decker recognized them both.

When leads brought law enforcement to an abandoned farm owned by Surber’s mother in Dixon County about 24 miles from Kubik’s home, it didn’t take long for deputies to spot blood on the trunk and bumper area of the Impala. A search warrant was rushed by telephone, and a human arm and leg were found inside the trunk.

Three days later, the rest of Kubik’s remains were found in a culvert about four miles from the farmhouse.

Galvan-Hernandez told Mills he didn’t participate in severing parts of Kubik’s body, but evidence did connect him to that possibility, including a knife with Kubik’s blood and the accused’s DNA on it.

* * * *

Surber and Galvan-Hernandez were both initially charged with first-degree murder and faced life sentences without the possibility of parole.

Surber was eventually deemed incompetent to stand trial and is undergoing psychiatric treatment to determine if competency can be restored. The plea deal that was offered to Galvan-Hernandez by special prosecutor Corey O’Brien was fair, Mills said, while the original charge he faced was not in Mills’ opinion.

“Brayan has accepted responsibility,” Mills said. “He has an opportunity now to be released from prison in his lifetime.”

Mills said one of his roles in the case, had it gone to trial or not, is to make sure his client is informed of all evidence and options. In the case of the plea deal, there were risks to declining it and pursuing a not guilty plea to the first-degree murder charge. 

Juries are often unsympathetic to drug users, for one. A young child being at the scene is another. The manner in which Kubik’s body was treated is a third. And, Mills said, his client’s race could have been another.

That Galvan-Hernandez was a special education student and high school dropout may not have overcome any of those facts in the minds of those who might have decided the case.

“You develop a relationship with these people you represent, and you see them when they’re not under the influence of drugs. You can’t understand what they did, but you become very sensitive to the fact that he’s going to spend a significant time in prison as a result of it,” Mills said.

The drug culture contains an element of violence and uncertainty that can create real life scenarios such as the fate of Kubik’s. If there’s a simple lesson in a complicated series of choices by his young client, that might be it.

“They all think they’re tough guys,” Mills said.

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