State v. El-Tabech

• Decision Date: 15 May 1987
• Docket Number: EL-TABEC,A,No. 86-065,86-065
• Citation: 225 Neb. 395,405 N.W.2d 585
• Parties: STATE of Nebraska, Appellee, v. Mohamedppellant.
• Court: Nebraska Supreme Court

Page 585

405 N.W.2d 585

225 Neb. 395

STATE of Nebraska, Appellee, v. Mohamed EL-TABECH, Appellant.

No. 86-065.

Supreme Court of Nebraska.

May 15, 1987.

Syllabus by the Court

1. Attorney and Client: Conflict of Interest. Because the task of assessing the potential for conflict of interest well in advance of trial is such a difficult one, the standards applicable to making that assessment must be flexible.

2. Constitutional Law: Right to Counsel. Where counsel is court appointed, the defendant does not have a constitutional right to counsel of his choice.

3. Criminal Law: Homicide: Indictments and Informations. Prosecutions for felonies, including murder, may be had on informations filed by the county attorney.

4. Verdicts: Appeal and Error. The Supreme Court will not resolve conflicts in the evidence, pass on the credibility of witnesses determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

5. Convictions: Circumstantial Evidence. One accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt. The State is not required to disprove every hypothesis but that of guilt.

6. Criminal Law: Evidence. Alibi, in Nebraska, is not an affirmative defense.

7. Criminal Law: Evidence: Words and Phrases. In the context of a criminal prosecution, "alibi" denotes an attempt by the defendant to demonstrate he did not commit the crime because, at the time, he was in another place so far away or in a situation preventing his doing the thing charged against him. Alibi evidence is merely rebuttal evidence directed to that part of the State's evidence which tends to identify the defendant as the person who committed the alleged crime.

8. Criminal Law: Evidence: Proof. A defendant, to establish an alibi, must not only show he was present at some other place about the time of the alleged crime, but also that he was at such other place such a length of time that it was impossible for him to have been at the place where the crime was committed, either before or after the time he was at such other place.

9. Juror Qualifications: Death Penalty. While a prospective juror's attitudes about capital punishment are irrelevant to sentencing in Nebraska, they may be relevant to his ability to fairly determine the defendant's guilt or innocence.

Dennis R. Keefe, Lancaster Co. Public Defender, and Michael D. Gooch, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and William L. Howland, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN and GRANT, JJ.

PER CURIAM.

The appellant, Mohamed El-Tabech, was found guilty of murder in the first degree, in violation of Neb.Rev.Stat. § 28-303(1) (Reissue 1985), and use of a deadly weapon to commit a felony, in violation of Neb.Rev.Stat. § 28-1205(1) (Reissue 1985). He was sentenced to life imprisonment for the first degree murder conviction and 20 years' imprisonment for use of a deadly weapon conviction, the sentence on the second conviction to run consecutively to the first conviction. He has now appealed to this court, specifically assigning as error the following:

I.

Whether a defendant is entitled to an untrammeled attorney/client relationship.

II.

Whether the defendant is entitled to some additional community input into the life-death decision beyond a petit jury verdict on the issues of guilt-innocence.

III.

Whether the evidence was sufficient to support a conviction for murder in the first degree?

IV.

Whether the defendant is entitled to have his jury correctly instructed, pursuant to a Nebraska Jury Instruction, on his theory of the defense, if that defense is supported by evidence in the record?

V.

Whether the trial court violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution by death qualifying a jury in a capital case where the jury has absolutely nothing to do with punishment?

VI.

Whether the trial court violated Article I, Section 6 of the Constitution of the State of Nebraska by death qualifying the jury in a capital case when the jury has absolutely nothing to do with punishment?

VII.

Whether the trial court abused its discretion in death qualifying the jury?

We believe that none of the assignments of error entitle El-Tabech to a new trial, and, for that reason, we affirm the convictions and sentences.

On June 24, 1984, in response to a 911 emergency 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 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. 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." Officer Sims of the Lincoln Police Department, who transported El-Tabech to the police station and observed him, heard him say, "Do you got whoever did that?" and "I swear I'll kill them."

In investigating the crime the State produced the following evidence. The neighbor, Sharon Hebbard, claimed to have overheard an argument at the El-Tabech residence around 11 a.m. or noon on the day that Ms. El-Tabech was murdered. Hebbard testified that, while seated on the porch with her husband, she heard a 30-minute argument going on at the El-Tabech residence. 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 Mr. 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 James would come right over and talk with him 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 of "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 was able to ascertain this by reason of the computer at the restaurant, which prints the date and time an order is presented to the kitchen cooks. The waitress testified that the time printed on the ticket reflecting El-Tabech's order was 5:36 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. When she returned to the table at approximately 6 p.m. to pick up their meal plates, El-Tabech apologized to the waitress for his loud voice, saying, "Excuse me for my voice. Married life is not easy." 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., El-Tabech and his companion were no longer in the restaurant.

The State also called Gertrude Makovicka, a neighbor of El-Tabech's. She and her husband returned home from an afternoon of visiting at approximately 5:30 p.m. on the day of the murder. At 6 p.m. she and her husband started watching "60 Minutes." She testified that they watched the show until its completion at 7 p.m. During part of the time she was working in the kitchen, washing strawberries. She could both see the TV 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, drove up to Vine Street, and then turned onto Vine, heading west. 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.

Rhonda James, wife of David James, testified that she spoke to El-Tabech on the phone just before 6:30 p.m. She took the phone call at the church. She testified that El-Tabech "sounded upset, and he wanted to visit with [her husband]." El-Tabech...