State v. Said
| Decision Date | 11 October 2022 |
| Docket Number | A-21-745 |
| Parties | State of Nebraska, appellee, v. Ahmed M. Said, appellant. |
| Court | Nebraska Court of Appeals |
Appeal from the District Court for Hall County: Mark J. Young Judge.
Ahmed M. Said, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
This is a postconviction appeal. Appellant, Ahmed M. Said, was charged with second degree murder and use of a deadly weapon to commit a felony in relation to the death of Adulma Khamis in April 2017. Said was found guilty by a jury of both counts and sentenced to consecutive terms of 60 to 80 years' imprisonment and 25 to 30 years' imprisonment. On direct appeal, the Nebraska Supreme Court affirmed Said's conviction and sentences. See State v. Said, 306 Neb. 314, 945 N.W.2d 152 (2020). Said timely filed a motion for postconviction relief. The district court denied the motion without an evidentiary hearing. Said appeals. He alleges that the court erred in failing to find that his trial counsel was ineffective and that there was plain error on the record. For the reasons set forth herein, we affirm.
On April 13, 2017, Khamis was found unconscious outside a residence five blocks from Pioneer Park in Grand Island Nebraska. Khamis died six days later as a result of a closed-head injury caused by blunt force trauma. Police investigated the death as a homicide, and eventually developed Said as a suspect. Said was ultimately charged with second degree murder and use of a deadly weapon to commit a felony.
Said's Letter and Motion to Suppress.
Prior to trial, Said's counsel filed a motion to suppress statements Said made during interviews with law enforcement on four separate occasions as well as a letter Said wrote to his sister while in jail awaiting trial. A more detailed description of all the interviews and the motion to suppress can be found at State v. Said, supra. For purposes of the issues raised in this appeal, we need only focus on Said's April 20, 2017, interview with law enforcement and the letter.
On April 19, 2017, Said was arrested on a charge unrelated to the present case. Grand Island Police Officer Steve Sloan and a second officer interviewed Said on that date regarding the unrelated charge. On April 20, Sloan returned to speak with Said alone and asked him if he would be willing to discuss the assault of Khamis. Sloan read Said his Miranda rights and asked whether he would speak without an attorney to which Said replied, "uh no." Sloan then repeated the question and Said again replied, "no I do not." Sloan then continued trying to convince Said to talk, explaining that this was "something . . . different" than what was discussed the day prior. Said finally agreed to speak to Sloan for about 21 minutes before stating, "no more talking." The interview continued for another 20 minutes before concluding. The trial court ruled that the statements after the 21 minute mark should be suppressed. The court determined that although Said stated that he did not want to speak to Sloan without an attorney at the beginning of the interview, Sloan's followup statements were an attempt to clarify the subject matter of the interview and that Said spoke voluntarily up until the 21 minute mark when he said "no more talking." On direct appeal, the Supreme Court held that the trial court erred in this determination and that the entirety of the April 20 interview should have been suppressed. However, the court found that the failure to suppress all of the interview was harmless error. The court noted the State's argument that Said made no confession or statements in the interview that were in and of themselves incriminating. The court then concluded:
We agree that the error in admitting statements from the April 20, 2017, interview was harmless error. Viewing the statements in the context of the "entire record" and "the rest of the untainted, relevant evidence of guilt," [citations omitted] we determine the guilty verdict in this case was "surely unattributable" to the error in admitting the statements. [Citations omitted.] There was other evidence that Said attempted to diminish his involvement in this case, and to the extent the statements might have been seen as evidence of his credibility, the court made clear to the jury in the curative instruction that Said's credibility was not at issue.
State v. Said, 306 Neb. 314, 333, 945 N.W.2d 152, 169 (2020).
Nine days after the April 20, 2017, interview with Sloan, Said wrote a letter to his sister while still in detention. In the letter, Said wrote:
I don't know how to start but the man that I told you about had died the same day I got arrested and the homicide investigators are on my ass and Masalah had told them everything that I've told 'em so please before they put their case on me bond me out or get me an attorney aka lawyer cause I don't wanna spend my whole life in prison Wallahi. Sis I never thought I would be in a position like this so please get me a good lawyer that will dismiss the case, cause I read on the newspaper and they said they have solved a homicide case. I don't know if it's the one that involves me or I don't really know. And please do me a favor and go to the car shop by the park and ask them does the side camera work and pretend like you live at the white house located in the alley way cause if the camera does work it's a done deal for me cause that's where it all happened and Hussein told them everything so if you see 'em press his ass, so yeah & please don't write back cause they will read everything that comes in, NOT OUT. Please & thank you.
Said's attorney moved to suppress this letter as being tainted by the substance of the April 20, 2017, interview, due to Sloan's disregard of Said's invocation of Miranda. Said argued that the letter should be suppressed because he wrote it based on information he received from the investigators during the allegedly improper April 20 interview. The trial court denied Said's motion to suppress the letter because (1) the court had concluded that the interviews on April 19 and most of the interview on April 20 did not result in a violation of Said's constitutional rights; (2) evidence during the hearing showed that Said had access to information contained in the letter from sources independent of the interviews; and (3) writing the letter constituted voluntary conduct on Said's part and was not a result of police misconduct.
At trial, the letter was admitted into evidence as exhibit 10. During the State's closing arguments, the letter was read in its entirety and the State referenced the letter several times as it related to the other evidence presented at trial. On direct appeal, Said alleged the trial court erred in overruling his motion to suppress and admitting the letter into evidence. Again, Said argued that the letter was tainted by the improper April 20, 2017, interview with Sloan. The crux of his argument was that in violating Said's rights after he invoked Miranda, law enforcement pressured Said with adverse information. Said argued that writing the letter was a "scared and panicked reaction" and that had Sloan ceased questioning on April 20 he never would have felt pressured to write the letter.
The Supreme Court held that the trial court did not err in overruling Said's motion to suppress the letter. The court assumed without deciding that the "Fruit of the Poisonous Tree" doctrine applied in the case. However, the court found that there was no causal connection between the April 20, 2017, interview and the later discovery of Said's letter to his sister because Said's action of writing the letter several days after the interview broke the causal chain. In reaching this conclusion, the court posed the relevant question as "whether the evidence [had] been obtained by exploiting the primary illegality or [had] instead been obtained by means sufficiently distinguishable so as to be purged of the primary taint." State v. Said, 306 Neb. 314, 334, 945 N.W.2d 152, 170 (2020). The court found that law enforcement's discovery of the letter was not due to any police exploitation of the April 20 interview.
Other Evidence Presented at Trial.
The State's theory of the case at trial was that Said hit Khamis over the head with a metal pole during the course of an altercation. The State believed that Khamis remained conscious for several hours after being struck. He wandered away from the park where the altercation took place until he reached the residence where he was found the next morning. The State supported this theory with testimony from Hussein Nuri. Nuri testified that he was familiar with both Khamis and Said as all three were "regulars" at Pioneer Park in Grand Island. In the days following Khamis' death, officers investigated the area around Pioneer Park and spoke to community members about Khamis' movements on April 12, 2017, the day of the altercation. Law enforcement spoke to Nuri several times because he had been in jail with Khamis the night before Khamis was assaulted. Following one police interview, Nuri testified, Said pulled him aside, told him to speak in Somali so others would not understand, and asked Nuri what the officers were talking to him about. It was at this time, according to Nuri, that Said told him that he had hit Khamis in the back of the head with a metal pole the night before he was found.
Internet searches on Said's phone revealed that from April 13 2017, the date Khamis was found, to April 19, Said was seeking out...
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