State v. Burhan

• Decision Date: 13 September 2016
• Docket Number: No. A-15-572.,A-15-572.
• Parties: STATE OF NEBRASKA, APPELLEE, v. OMAR S. BURHAN, APPELLANT.
• Court: Nebraska Court of Appeals

STATE OF NEBRASKA, APPELLEE,
v.
OMAR S. BURHAN, APPELLANT.

No. A-15-572.

NEBRASKA COURT OF APPEALS

September 13, 2016

MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge. Affirmed.

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

INBODY, RIEDMANN, and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Following a jury trial, Omar S. Burhan was convicted of robbery, possession of a firearm by a prohibited person, second degree assault, and two counts of use of a deadly weapon (firearm) to commit a felony. Burhan appeals, claiming that he should have been granted a mistrial due to improper remarks made by the prosecutor during voir dire. He challenges his convictions and sentences on a number of grounds, and he claims that his trial counsel was ineffective. For the following reasons, we affirm.

II. BACKGROUND

On August 5, 2014, Elizabeth Albrecht sustained three gunshot wounds. She told police that a man she knew as "Charles" or "T" had shot her and driven away in her car, a white Nissan Altima with South Dakota license plates (she was also able to provide the officers with the license

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plate number). A police broadcast was issued regarding the description of the vehicle. An officer subsequently located Albrecht's vehicle, and Burhan was standing next to it. Burhan was arrested.

Burhan was ultimately charged with the following: Count 1, robbery, a Class II felony, pursuant to Neb. Rev. Stat. § 28-324 (Reissue 2008); Count 2, use of a deadly weapon (firearm) to commit a felony, a Class IC felony, pursuant to Neb. Rev. Stat. § 28-1205 (Cum. Supp. 2014); Count 3, possession of a firearm by a prohibited person, a Class ID felony, pursuant to Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2014); Count 4, second degree assault, a Class III felony, pursuant to Neb. Rev. Stat. § 28-309 (Cum. Supp. 2014); and Count 5, use of a deadly weapon (firearm) to commit a felony, a Class IC felony, pursuant to § 28-1205.

At trial, the State called several witnesses and introduced numerous exhibits into evidence. Burhan did not testify. The parties stipulated that Burhan was a "prohibited person" as defined by statute.

Albrecht testified as follows. She was 36 years old, and lived in Sioux Falls, South Dakota. Although she had a job in a restaurant, her primary source of income was derived from gambling at various casinos. Albrecht sometimes loaned money to fellow gamblers, and some of them gave her their personal property (mostly electronics) as collateral; if they did not repay their loan, Albrecht would pawn or sell the items in order to recoup some of her money. In the past, Albrecht relied on friends to help her sell the electronics. One of those friends was J.D., a man she met through her former fiancé. J.D., who knew Burhan, told Albrecht that Burhan might be able to help her sell some of her electronics. In the 2 to 3 months after J.D. introduced Albrecht to Burhan (known to her as "T"), she had three to four face-to-face contacts with Burhan in Omaha, Nebraska, and Council Bluffs, Iowa (although none of those contacts involved the sale or discussion of electronics).

Albrecht testified that on August 5, 2014, she was driving to visit her boyfriend in Kansas City, Missouri, from her home in Sioux Falls. In her car was a duffle bag (containing clothes, shoes, and a laptop), electronics, and a GPS. As part of her trip, Albrecht planned to stop at a few casinos to gamble. She gambled at a casino in Sioux Falls, and later at a casino in Sioux City, Iowa. Prior to leaving Sioux City, Albrecht separated her money, placing some cash inside her purse and the rest of her money (which she said was "in the thousands") inside the sunglasses holder located above the rear-view mirror in her Nissan. She then called Burhan to let him know she would be in the Omaha area. After leaving Sioux City, Albrecht drove to a casino in Council Bluffs, gambled a while, and won some more money. She asked Burhan to meet her at a different casino in Council Bluffs, but he asked her to meet him in Omaha instead; she agreed and he gave her directions to a gas station.

Albrecht arrived at the gas station at 6:28 p.m. (per the store's surveillance video received into evidence). She filled her car up with gas and bought some snacks (beef jerky and an energy drink) while she waited for Burhan. Because he had not arrived, Albrecht called Burhan who said he was ten blocks away. Albrecht testified that Burhan arrived on foot a few minutes later, opened the passenger side door, and after extinguishing his cigarette, he got into the vehicle; she said he was wearing a gray short-sleeved T-shirt and jeans. Burhan told Albrecht that he needed to stop at his house and directed her to a nearby residential neighborhood. (The surveillance video showed that at about 6:40 p.m., a man wearing pants, a long-sleeved shirt, and white shoes walked across

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the parking lot towards the white vehicle and he appeared to put a cigarette out before entering the vehicle; the vehicle then drove away from the gas station.)

Albrecht testified that while driving with Burhan they talked about her trip, her casino winnings, and the electronics she had in the car. When they arrived at their destination, Burhan told Albrecht to pull over and park on the side of the road. Albrecht was on the phone with her boyfriend and noticed that Burhan was not exiting the vehicle. When she asked why he was not going inside to get what he needed, Burhan said he could not get in the house and either his brother or cousin had gone to the store and would be back shortly with the keys. At that point Albrecht became suspicious that Burhan could not get into his own house. After her boyfriend called her again, she told Burhan he needed to get out of the vehicle because she needed to be on her way.

Albrecht testified that without warning, Burhan punched her in the face three times. Burhan "used profanity and told [Albrecht] that he was taking [her] purse," which was between Albrecht and the driver's side door. Albrecht refused to give Burhan her purse and the two of them were struggling over it when Burhan pulled out a gun. At that point Albrecht let go of her purse. Burhan demanded that she get out of the vehicle; she told Burhan he could take her money but to give her her driver's license (she testified that she had been robbed and burglarized 10 to 12 times before and that it could be a drawn-out process to get a new ID). Albrecht decided that if Burhan was going to take her money, purse, and car, she at least needed to have her cell phone to call for help because she would be stranded. She reached for her cell phone (which was plugged in) and grabbed for the handle of the door so she could get out; Burhan fired the first shot, which grazed her right thigh. Albrecht was still trying to get out of the vehicle when Burhan fired the second shot, which went in and out of her left calf. She was halfway out of the car when Burhan grabbed her right arm, pulled it back inside the vehicle, put the gun up to her right wrist, and fired a third shot. Albrecht was able to get out of the vehicle and run toward children playing in the street; they directed her to some adults whom she asked to call 911.

Albrecht testified that the third bullet hit a major artery and her wrist was "spraying blood"; she was also feeling light headed and dizzy. The police arrived and asked her questions and then an ambulance took her to the hospital where she immediately went into surgery.

Angel Sanchez, who was 12 years old at the time of trial, testified that he was playing outside on August 5, 2014, when he saw a woman open the door to a white Nissan; she yelled for help and Sanchez heard gunshots (he thought they were fireworks at the time). After the woman got out of the car, another person closed the car door and drove away. The person who closed the car door was black (Sanchez saw a hand); and while Sanchez did not see the person's face, he did see that the person was wearing a gray jacket. The woman ran towards Sanchez, who directed her to some adult neighbors.

Matthew Austin, an officer with the Omaha Police Department (OPD), testified that he responded to a shooting in the area of 38th and Grover, and was the first officer on the scene when he arrived at 7:05 p.m. Upon arrival, he contacted Albrecht, who had three gunshot wounds. She identified the suspect as "T," a black male, and said "T" had left in her car; she described the car as a white Nissan Altima with South Dakota plates (and she was able to give the plate number). Within minutes, Officer Austin put a broadcast out on the police radio.

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Christian Mirch, an officer with the OPD, testified that on August 5, 2014, at 8:05 p.m., he heard a radio broadcast regarding a robbery and felony assault; the broadcast stated that the suspect may be in a white Nissan Altima with South Dakota plates. When he received the broadcast, Officer Mirch was between 60th and 58th Streets on Northwest Radial. He happened upon the white Nissan at approximately 49th Avenue and Northwest Radial. The vehicle was backed into one of the garage stalls at a self-serve carwash. A man, later identified as Burhan, was standing between the open driver's door and the vehicle; no other individuals were near the vehicle. When Burhan saw Officer Mirch, he immediately proceeded to the back of the vehicle and "ducked down" behind the trunk. Officer Mirch exited his cruiser and called for Burhan to come out. Burhan walked to the passenger side of the vehicle; he was holding a black garbage bag in his right hand. Burhan was ordered to drop the bag and get down on the ground. When backup arrived,...