State v. El-Tabech

• Decision Date: 19 May 2000
• Docket Number: No. S-99-558.,S-99-558.
• Parties: STATE of Nebraska, appellee, v. Mohamed EL-TABECH, appellant.
• Court: Nebraska Supreme Court

610 N.W.2d 737

259 Neb. 509

STATE of Nebraska, appellee, v. Mohamed EL-TABECH, appellant.

No. S-99-558.

Supreme Court of Nebraska.

May 19, 2000.

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., Lincoln, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

This appeal presents the question, What procedure, if any, may a prisoner, alleging actual innocence, use to request state-funded DNA testing when the time period has passed in which to file a motion for a new trial based on newly discovered evidence? The appellant, Mohamed El-Tabech, was convicted before the availability of deoxyribonucleic acid (DNA) fingerprinting. After such testing became available, he brought a motion seeking to compel DNA testing under the discovery statutes pertaining to criminal trials. This motion was denied. Following our decision in State v. Freeman, 253 Neb. 385, 571 N.W.2d 276 (1997), El-Tabech filed a motion under the Nebraska Postconviction Act, Neb.Rev.Stat. §§ 29-3001 to 29-3004 (Reissue 1995), seeking to compel testing. The district court dismissed the motion on the basis of procedural bar. We conclude that although El-Tabech's motion was not procedurally barred, the district court was correct in dismissing the motion because there is no statutory procedure by which El-Tabech may bring his claim, nor is there any statutory authorization for state funding of DNA tests.

I. BACKGROUND

On June 24, 1984, in response to a 911 emergency dispatch service call, police and emergency personnel were dispatched to a home in Lincoln, Nebraska. Linda Woodruff, a paramedic employed by Eastern Ambulance Service, was the first to arrive at the scene. Upon entering the house, she observed El-Tabech seated on the floor, rocking back and forth and pointing to the back of the house.

El-Tabech's wife, Lynn El-Tabech, was found lying on a bed with a white terry cloth bathrobe belt tied tightly around her neck. Both the condition and temperature of her body indicated that she had not been dead for very long. Woodruff unsuccessfully attempted to untie the belt and then obtained scissors from the ambulance vehicle and cut the belt from around the decedent's neck. Shortly thereafter, other emergency personnel and the police arrived.

There was testimony from various witnesses regarding alleged remarks made by El-Tabech at that time. Woodruff recalled that she heard El-Tabech say, "Don't take me to jail" as he was being taken to a police car. A Lieutenant Soukup of the Lincoln Police Department heard El-Tabech say, "Who will take care of me now?" while he was on the porch of the residence. Sharon Hebbard, a neighbor who was 150 feet away from the El-Tabech porch, testified she heard El-Tabech say, "I didn't mean to" or "I didn't mean to do it." An Officer Sims of the Lincoln Police Department, who transported El-Tabech to the police station, heard him say, "Do you got whoever did that?" and "I swear I'll kill them."

Hebbard testified that she heard a 30-minute argument at the El-Tabech residence around 11 a.m. or noon on the day that the decedent was murdered. Hebbard remembered hearing a woman's voice say, "Leave me alone" and "Don't touch me." Hebbard's testimony was corroborated by her husband, who had also overheard the arguing.

David James, a member of the Mormon church that El-Tabech attended, testified that he spoke with El-Tabech at about 3 p.m. on the day of the murder. El-Tabech called the church, where James was in meetings. According to James, El-Tabech was quite upset and asked James if he would come right over and talk with El-Tabech and the decedent. When James told him that he could not make it until later, El-Tabech advised James that he and the decedent were having troubles. Specifically, James said he heard the decedent in the background say something to the effect, "I'm leaving. I'm going for a walk." El-Tabech then said, "Well, when will you be back?" and the decedent said, "I don't know." Then, El-Tabech said to James, "Well, she's leaving me."

A waitress at a Village Inn restaurant in Lincoln testified that she arrived at work at 4 p.m. on the day of the murder. She recalled that she waited on El-Tabech, who was dining with a woman, at about 5:30 p.m. She testified she heard the couple arguing when she took their food to their table. Specifically, she testified, "He said, `You never tell me where you're going. I have a right to know where you are.'" She further testified that the statements were made in an angry, loud voice. According to the waitress, when she clocked out on break at 6:07 p.m., El-Tabech and the woman were still in the restaurant. When she returned from break at 6:41 p.m., they were gone.

The State also called Gertrude Makovicka, a neighbor of the El-Tabechs. At 6 p.m. on the day of the murder, she and her husband started watching a television program, "60 Minutes." She testified that they watched the show until its completion at 7 p.m. During part of that time, she was working in the kitchen. She could both see the television set and observe the El-Tabech residence from the kitchen. She testified that she saw the El-Tabechs arrive home at about 6:15 p.m. She further testified that shortly after 7 p.m., she went out on her porch. After she had been sitting outside for 5 to 10 minutes, she observed El-Tabech come out of his house. He got into his car and drove away. She remained on her porch and, approximately 10 minutes later, observed El-Tabech return with a small package. During the time that he was gone, Makovicka testified she did not see anybody go into or come out of the El-Tabech residence. About 5 minutes after El-Tabech arrived back at his residence, Makovicka saw the first emergency vehicle arrive.

James' wife, Rhonda James, testified that she spoke to El-Tabech on the telephone just before 6:30 p.m. She took the telephone call at the church. She testified that El-Tabech "sounded upset, and he wanted to visit with [James]." El-Tabech asked that James come right by on his way home. She said she would relay the message to James but, in fact, did not tell him until after the family had gotten home from church. James attempted to call El-Tabech around 7 p.m., but no one answered the telephone.

The decedent's mother described El-Tabech as being very attentive for the affection of the decedent. She further testified to an incident which had occurred on Memorial Day, when El-Tabech had been particularly upset that the decedent was not wearing her wedding ring. The decedent's mother also testified that on Father's Day preceding the day of the killing, the decedent and El-Tabech had advised them that they were expecting a child.

The decedent's sister testified with regard to the announcement of the decedent's pregnancy. El-Tabech insisted that no one was to know about the pregnancy and was quoted as saying, "Who knows what may happen in the next few months." The decedent's sister also testified with regard to her observations concerning El-Tabech's demeanor and her concerns over his view of women generally. The decedent's sister testified that El-Tabech was against the decedent's wearing makeup and that he tended to have aggressive behavior toward the decedent. She also testified that over the course of the 6 months of the marriage, the decedent had, on a number of occasions, indicated that she did not favor the attention that was being bestowed upon her and, in fact, had specifically informed El-Tabech to "[l]eave me alone." The decedent's sister further testified that it was her observation that the decedent had become more and more concerned with the attention from El-Tabech and that she had in some ways "withdrawn." This testimony was corroborated by the decedent's sister's husband.

El-Tabech's defense was that between 7 and 7:30 p.m., he was out of the home purchasing ice cream and therefore could not have committed the murder. Evidence at trial included a grocery store receipt showing a purchase of ice cream bars at 7:23 p.m. In addition, El-Tabech called Khalil Chehab as a witness for the defense. Chehab testified that on June 24, 1984, he made an overseas call to his mother at about 5 p.m. California time, or 7 p.m. local time. During this telephone call, he received a message for El-Tabech. When Chehab got off the telephone, he tried to call his wife, but received no answer. According to Chehab, this was a little after 5 p.m. California time. He then decided to call El-Tabech and give him the overseas message. He claimed that he called the El-Tabech number and that a woman who identified herself as the decedent answered. He asked for El-Tabech, but was unable to speak with him. He then testified that he left a message for El-Tabech with the woman who had answered the telephone. On cross-examination, Chehab admitted that he was not wearing a wristwatch on the day in question and that he was estimating the times.

During trial, Dr. Reena Roy testified regarding tests that had been performed on physical evidence found at the crime scene. Roy examined blood stains on the robe worn by the decedent and stated that it was consistent with coming from the decedent and inconsistent with coming from El-Tabech. Blood found on a pillowcase was also consistent with the decedent, but inconsistent with El-Tabech. Roy testified that the panties worn by the decedent tested negative for semen, but there was a small dot of blood, almost like a pinpoint, that she was unable to group because there was not enough. Oral, vaginal, and rectal swabs taken from the decedent also tested negative for the presence of semen. Roy testified that there was a tuft of hair in the knot of the decedent's robe belt. Roy further testified that seven of the hairs were characteristic of the decedent's hair and that she found one hair that was not consistent. This hair had...