348 P.3d 1 (Idaho 2015), 31659, State v. Abdullah

Docket Nº:31659, 39417
Citation:348 P.3d 1
Opinion Judge:WALTERS, Justice pro tem
Party Name:STATE OF IDAHO, Plaintiff-Respondent, v. AZAD HAJI ABDULLAH, Defendant-Appellant
Attorney:Sara B. Thomas, Idaho State Appellate Public Defender, Boise, attorney for appellant. Shannon N. Romero argued. Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for respondent. LaMont Anderson argued.
Judge Panel:WALTERS, Justice pro tem. Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON, CONCUR. BURDICK, Chief Justice, EISMANN, J. JONES and HORTON, Justices CONCUR
Case Date:March 02, 2015
Court:Supreme Court of Idaho
 
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348 P.3d 1 (Idaho 2015)

STATE OF IDAHO, Plaintiff-Respondent,

v.

AZAD HAJI ABDULLAH, Defendant-Appellant

Nos. 31659, 39417

Supreme Court of Idaho

March 2, 2015

2015 Opinion No. 29

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Appeal from the district court of the Fourth Judicial District of the State of Idaho, Ada County. Hon. Cheri C. Copsey, District Judge.

The convictions, sentences, and the order denying post-conviction relief are affirmed.

Sara B. Thomas, Idaho State Appellate Public Defender, Boise, attorney for appellant. Shannon N. Romero argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney for respondent. LaMont Anderson argued.

WALTERS, Justice pro tem. Chief Justice BURDICK, Justices EISMANN, J. JONES and HORTON, CONCUR.

OPINION

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WALTERS, Justice pro tem

On November 19, 2004, a jury found Azad Haji Abdullah guilty of first-degree murder, first-degree arson, three counts of attempted first-degree murder, and felony injury to a child. The case proceeded to sentencing and the jury found the existence of two aggravating circumstances. The jury also found that all the mitigating circumstances when weighed against each aggravating circumstance individually were not sufficiently compelling to make the death penalty unjust. Pursuant to the jury verdicts, the district court entered judgments of conviction and sentenced Abdullah to death for first-degree murder and to a total of eighty years imprisonment for the remaining five convictions. Abdullah sought post-conviction relief. On October 14, 2011, following an evidentiary hearing, the district court dismissed Abdullah's petition for post-conviction relief in its entirety. Abdullah appeals to this Court, including both his direct appeal from the trial and his appeal from the post-conviction proceedings. We affirm the convictions, the sentences, and the order denying post-conviction relief.

I. Factual and Procedural Background

On November 14, 2002, the grand jury sitting in Ada County indicted Abdullah on one count of murder in the first degree, a felony, Idaho Code sections 18-4001 to -4003; one count of arson in the first degree, a felony, Idaho Code section 18-802; three counts of attempted murder in the first degree, a felony, Idaho Code sections 18-4001 and 18-306; and one count of injury to a child, a felony, Idaho Code section 18-1501(1). The State alleged that on October 5, 2002, Abdullah murdered his wife Angela Abdullah (Angie) in their home and then set fire to the home with two of the children (A.H. and M.A.) and a young friend (S.S.) asleep inside and one of their children (N.A.) in the backyard. On November 18, 2002, the district court arraigned Abdullah, and, on November 26, 2002, Abdullah pled not guilty.

On December 3, 2002, the State filed a notice of its intent to seek the death penalty for the crime of first-degree murder. In this notice, the State identified that it would rely on four aggravating circumstances: (1) the defendant knowingly created a great risk of death to many persons; (2) the murder was especially heinous, atrocious, or cruel, manifesting exceptional depravity; (3) by the murder or circumstances surrounding its commission, the defendant exhibited utter

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disregard for human life; and (4) the defendant, by prior conduct or conduct in the commission of the murder at hand, has exhibited a propensity to commit murder which will probably constitute a continuing threat to society.

The Ada County Public Defender initially represented Abdullah, but, on June 19, 2003, private counsel Kim and Mitchell (Mitch) Toryanski (collectively " the Toryanskis" ) filed a notice of appearance. The district court granted their motion for substitution of counsel.

On February 23, 2004, the State amended the indictment. The original indictment provided that Abdullah killed Angie by suffocation. The amended indictment provided that Abdullah killed Angie " by suffocating her and/or by acute Prozac (fluoxetine) poisoning from which she died."

The case proceeded to trial in September of 2004. On September 10, the parties began voir dire of the prospective jurors. On September 23, the parties accepted the jury as empaneled and the jurors were sworn. The State gave its opening statement. The defense reserved its opening statement until after the State's presentation of its case-in-chief.

As an appellate court, our function is to examine the evidence, not reweigh it, and we construe all facts and inferences in favor of upholding the district court's decision. State v. Bush, 131 Idaho 22, 33, 951 P.2d 1249, 1260 (1997). With this standard in mind, the jury reasonably could have found the following facts based on the evidence presented at trial:1

Angie and Abdullah were married in March of 2001. Abdullah is Muslim and a Kurdish refugee from northern Iraq. Angie converted to Islam for Abdullah before they married. Angie had a daughter, A.H., from a previous marriage, and Abdullah had a son, R.A., from a previous marriage. Angie and Abdullah had two sons together, N.A. and M.A. A.H. was nine years old at the time of Angie's death, R.A. was five years old, N.A. was eighteen months old, and M.A. was three weeks old.

Angie and Abdullah's marriage was troubled, and one point of disagreement was Abdullah's religious studies. Abdullah wanted to move the family to South Africa or Saudi Arabia to study Islam, but Angie did not want to move. They also had financial troubles. A financial analyst with the FBI opined that Angie and Abdullah were " living month to month" and borrowing money to make ends meet. Shortly before the birth of M.A., Angie told health professionals she was contemplating divorce. On September 9, 2002, Angie met with an attorney to discuss divorce and other marital issues.

Abdullah, Angie, and their children lived in a home on 2292 North Siesta Way in Boise, Idaho. Angie owned the Siesta residence. In June of 2002, Abdullah offered to sell everything in the residence to a co-worker. In August of 2002, Abdullah tried to sell the residence without Angie's consent.

In response to a co-worker's question as to the differences between American and Kurdish culture, Abdullah told his co-workers it was acceptable to kill one's wife or to have the wife killed in his culture if she cheated on the husband and the husband made an offering to the wife's family. He made this comment in July or August of 2002.

Abdullah and Angie ran a vending machine business part-time. In the summer of 2002, Abdullah stored the vending machines in the garage of the Siesta residence. On August 21, 2002, Abdullah purchased a $50,000 insurance policy in cash to cover the vending machines if destroyed by a fire. Although he was storing the vending machines at home, he was interested in only fire insurance and not theft insurance. Abdullah was a named insured on Angie's homeowner's policy.

On October 2, 2002, Abdullah told a co-worker that divorce is " extremely frowned upon in Islam, and that it just doesn't happen." He also went shopping at India Emporium that day and received a plastic bag to hold his purchase.

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On October 4, 2002, Abdullah drove to Salt Lake City, Utah, with his son R.A. Although Abdullah wanted to take N.A., his favorite child, on the trip, he did not take N.A. He claimed that the purpose of the trip was to get halal meat, which is a meat specially prepared for Muslims under the Islamic dietary guidelines and was not available in Boise. Before Abdullah left for Salt Lake City, he purchased approximately seventeen gallons of gasoline at a Chevron station in Boise. He also made a separate purchase of about five gallons of gasoline for a gas can.

On October 4, 2002, a little before 4:00 p.m., Abdullah went to the Halal Market in Salt Lake City, but he did not buy any halal meat or discuss that kind of purchase with the owner. At approximately 4:15 p.m., Abdullah checked into the Dream Inn in Salt Lake City. At approximately 6:30 p.m., Abdullah purchased two red plastic gas cans from Food 4 Less. At 6:52 p.m., Abdullah purchased at a Halloween store a long black cape that fully covered an adult and a mask that fully covered an adult head. The Abdullah family did not observe Halloween for religious reasons.2 Abdullah also visited the mosque. At 8:10 p.m., Abdullah purchased twenty-two and a half gallons of gasoline, Cheetos, and coffee at a 7-Eleven in Salt Lake City. Twenty-two and a half gallons was more than the tank capacity of Abdullah's van, which could hold a little more than twenty-one gallons, but not twenty-two gallons. No one saw Abdullah in Salt Lake City from approximately 8:00 p.m. on October 4, 2002, to 7:00 a.m. on October 5, 2002.

At seventy-five to eighty miles per hour, it would take about four and a half hours to drive between Salt Lake City and Boise, approximately 330 miles. Abdullah's van gets a little over twenty-six miles per gallon and takes about thirteen gallons to make the trip.

In Boise, around noon on October 4, 2002, ten-year-old S.S., a friend of A.H., was...

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