Abd v. State

• Decision Date: 19 March 2019
• Docket Number: Court of Appeals Case No. 18A-CR-782
• Citation: 120 N.E.3d 1126
• Parties: Ziad ABD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

120 N.E.3d 1126

Ziad ABD, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 18A-CR-782

Court of Appeals of Indiana.

FILED March 19, 2019

Attorney for Appellant: Megan Shipley, Indianapolis, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Jesse R. Drum, Deputy Attorney General, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant-Defendant, Ziad Abd (Abd), appeals his conviction and sentence for murder, Ind. Code § 35-42-1-1(1) ; and robbery resulting in bodily injury, a Level 5 felony, I.C. § 35-42-5-1(1).

[2] We affirm.

ISSUES

[3] Abd presents us with five issues on appeal, which we restate as:

(1) Whether the trial court erred when it admitted evidence procured pursuant to certain search warrants;

(2) Whether the State proved beyond a reasonable doubt that Abd committed the offenses;

(3) Whether the trial court committed fundamental error by failing to give a certain instruction on circumstantial evidence;

(4) Whether the trial court committed fundamental error when it asked Abd's counsel if Abd would exercise his right of allocution at sentencing; and

(5) Whether Abd's sentence is inappropriate in light of the nature of his offenses and his character.

FACTS AND PROCEDURAL HISTORY

[4] Mohamed Mahmoud¹ (Mahmoud) ran a tax preparation business, Taxesmart, on the west side of Indianapolis, Indiana. Mahmoud often worked late into the night and only accepted cash, which he deposited in a safe that he kept in his office under his desk. Only Mahmoud knew the keypad combination to the safe, and there was no key backup to open it. Mahmoud charged $ 300 to $ 350 per tax return. During tax season, Mahmoud saw approximately twenty clients per day. Mahmoud had prepared Abd's tax return in the past, and they attended the same mosque.

[5] Abd and his son, Akram Abd (Akram), had a reported combined total income of less than $ 20,000 for the tax years 2013, 2014, and 2015. Abd had been evicted or had eviction proceedings instigated against him at his previous two residences for failure to pay rent, and by April 2016, eviction proceedings had been instigated against him at his current residence at the Cherry Glen Apartments. Abd's black, four-door 2012 Toyota Camry had been repossessed for non-payment in January 2016, and he was still behind in his payments as of April 2016. Akram drove a white, four-door 2012 Ford Taurus, which had tinted windows and a sunroof, but he was also behind in his payments. In the year preceding April 2016, Abd never had more than $ 32 in his bank account, and Akram's bank account had been closed in February 2016 with a negative balance of $ 700.

[6] In the early days of April 2016, Abd appeared at Taxesmart inquiring about the location of one of Mahmoud's other businesses. The employee speaking with Abd did not know the location of the other business, but he instructed Abd to ask Mahmoud, who was working in his office at the time. Abd left without speaking to Mahmoud. Around midnight on April 20, 2016, an officer with the Speedway Police Department observed Abd and Akram sitting in Akram's Ford Taurus parked at the Wayne Township School Corporation's administrative building. The car was parked such that Abd and Akram had a direct view of the front door of Taxesmart across the street where Mahmoud was still working that evening. Abd and Akram eventually left the Taurus, walked to a nearby gas station, returned to their car, and, after speaking briefly with the officer, drove away.

[7] Surveillance footage showed Mahmoud locking the door to his business and leaving work at 1:37 a.m. on April 21, 2016. At 2:18 a.m. someone appearing much taller than Mahmoud's five feet, one inch, unlocked the door of Taxesmart and left approximately a minute and a half later carrying something. At 2:20 a.m. Akram called Abd on his cell phone. Abd and Akram left Indianapolis in their separate vehicles during the early morning hours of April 21, 2016. Akram called Abd seventeen times between 2:20 a.m. and 7:00 a.m. They drove east to Dayton and then north to Detroit, where they abandoned Akram's Ford Taurus on the side of the highway.

[8] Around 7:00 a.m. on April 21, 2016, Mahmoud's body was found at the Airport Office Center office park (AOC) on the west side of Indianapolis by a man who spotted the body as he went to the office park dumpster. Mahmoud's legs were bound with duct tape at the ankles, and his arms were bound with duct tape behind his back. Mahmoud's head had been covered with a grey and white patterned pillowcase which had been filled with approximately one pound of feces. The pillowcase was duct taped around Mahmoud's neck. Mahmoud had died of asphyxiation due to the ligature of duct tape around his neck, the binding of his hands behind his body, and the inhalation of feces, which had completely blocked his respiratory and alimentary systems.

[9] Surveillance cameras at the AOC captured images of a white four-door sedan with tinted windows and a sunroof entering the office park at 1:54 a.m. on April 21, 2016. The same white sedan left the office park at 2:10 a.m., followed by a black four-door sedan. No other cars were seen on the footage entering or leaving the AOC overnight. Investigators soon learned that Abd and Akram had been parked across the street from Taxesmart hours before Mahmoud had been found dead, and Taxesmart employees identified Abd after being shown surveillance footage from the gas station Abd and Akram visited the night of April 20, 2016.

[10] Investigation subsequently revealed Abd's and Akram's ownership of the black 2012 Toyota Camry and the white 2012 Ford Taurus and that Akram had purchased a maroon Ford Explorer for $ 4,274.65 in cash on April 25, 2016. Investigators wished to search those vehicles, Abd's Cherry Glen apartment, and Abd and Akram's cell phone records. The Marion Superior Court had recently begun a test program which would allow select officers of the Indianapolis Metropolitan Police Department to submit search warrant applications electronically. On May 21, 2016, Detective Daniel Kepler (Detective Kepler), prepared an application for five search warrants to search Abd and Akram's cell phone records, the maroon Ford Explorer, the black Toyota Camry, the white Ford Taurus, and the Abd apartment at Cherry Glen. Detective Kepler prepared seven documents as part of his search warrant packet: an electronic search warrant submission form (ESWSF), a probable cause affidavit, and five proposed search warrants. Detective Kepler first prepared his probable cause affidavit, which he signed with his electronic signature, "s/Daniel Kepler." (State Exh. 3, Confidential Exhibit Vol. I, p. 15).² After preparing the probable cause affidavit, Detective Kepler prepared the ESWSF, which had fields for him to complete. Detective Kepler typed in his name and contact information. In the "Instructions" field, Detective Kepler typed "one (1) PC for 5 SW'S." (State Exh. 3, Conf. Exh. Vol. I, p. 2). At the bottom of the ESWSF was the following text: "I swear (affirm), under penalty of perjury as specified by IC 35-44-2-1, that the foregoing and following representations in this document are true. " (State Exh. 3, Conf. Exh. Vol. I, p. 2) (bolded in the original).

[11] Detective Kepler attached the completed ESWSF, the probable cause affidavit, and the proposed search warrants and submitted the search warrant packet electronically to the Marion County Clerk, who assigned the application a case and transaction ID number. The packet was then transmitted to Judicial Officer Peggy Hart, who granted the request for the search warrants. Execution of the search warrants on May 25, 2016, yielded many pieces of evidence, including a tax form showing that Akram had worked for a business that had its office at the AOC in 2013, a receipt for a roll of duct tape that had been purchased on April 12, 2016, that matched the brand and type of duct tape found on Mahmoud's body, a set of sheets that matched the pillowcase found on Mahmoud's head but from which the pillowcases were missing, and a receipt for a cashier's check which led to the discovery that Abd had purchased a home in Detroit on May 3, 2016, for $ 35,679.52. Investigators also found documentation that Abd had wired $ 3,500 to a relative in Iraq on April 27, 2016, and an additional $ 3,500 to the same relative on April 28, 2016. Cell phone data netted from the search warrants showed that Abd's and Akram's cell phones had been in the area of Taxesmart and the AOC during the evening of April 20, 2016, and the morning of April 21, 2016, and that Abd had deleted Mahmoud's contact information from his cell phone.

[12] On May 25, 2016, Abd and Akram were arrested. Abd had $ 5,322 on his person when he was taken into custody. On May 27, 2016, and July 26, 2016, the State filed Informations, charging Abd with murder, felony murder, and robbery resulting in serious bodily injury, a Level 2 felony. On September 1, 2017, Abd filed a motion to suppress evidence procured as a result of the May 21, 2016, electronic search warrants. The parties agreed to submit evidence and argument on the motion to suppress in writing to the trial court in lieu of a hearing. On August 23, 2017, the trial court denied Abd's motion to suppress based on the May 21, 2016, search warrants.³

[13] Abd and Akram were tried together. Their jury trial took place on February 9, 2018, to February 22, 2018. Abd's counsel raised a continuing objection to the admission of evidence netted from the May 21, 2016, search warrants, and the trial court incorporated all of the suppression evidence and arguments into the trial record. Evidence was produced at trial that Abd had also worked for businesses that had their offices at the AOC. Akram's fingerprint was found on the keypad to Mahmoud's safe, which had been emptied and left open. On April 25, 2016, Akram paid the back rent at Cherry Glen apartment and paid the May 2016...