State v. Al-Zubaidy

• Citation: 263 Neb. 595,641 N.W.2d 362
• Decision Date: 05 April 2002
• Docket Number: No. S-00-535.,S-00-535.
• Parties: STATE of Nebraska, Appellee, v. Kamil H. AL-ZUBAIDY, Appellant.
• Court: Supreme Court of Nebraska

641 N.W.2d 362

263 Neb. 595

STATE of Nebraska, Appellee, v. Kamil H. AL-ZUBAIDY, Appellant.

No. S-00-535.

Supreme Court of Nebraska.

April 5, 2002.

Michael J. Hansen, Lincoln, for appellant and, on brief, Kamil H. Al-Zubaidy, pro se.

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

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

STEPHAN, J.

On December 10, 1994, Kamil H. Al-Zubaidy entered the home of Ann Brown (Brown) and inflicted knife wounds upon Brown and her daughter, Seana Brown (Seana). Following a jury trial, two appeals, and a plea agreement, Al-Zubaidy stands convicted of first degree assault in connection with the injuries to Brown and second degree assault and use of a weapon to commit a felony in connection with the injuries to Seana. Al-Zubaidy filed this motion for postconviction relief alleging he had received ineffective assistance from both trial and appellate counsel. The district court for Lancaster County denied the motion without an evidentiary hearing, and Al-Zubaidy appeals.

I. BACKGROUND

Where cases are interwoven and interdependent and the controversy involved has already been considered and decided by the court in a former proceeding involving one of the parties now before it, the court has the right to examine its own records and take judicial notice of its own proceedings and judgments in the former action. State v. Parmar, 263 Neb. 213, 639 N.W.2d 105 (2002); State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001); State v. Suggs, 259 Neb. 733, 613 N.W.2d 8 (2000). The following facts are established by the record in the instant case and those from Al-Zubaidy's prior appeals:

Al-Zubaidy was originally charged with attempted first degree murder and use of a weapon to commit a felony in connection with the injuries to Brown and second degree assault and use of a weapon to commit a felony in connection with the injuries to Seana. At trial, the State contended that Al-Zubaidy, angered that Brown was providing shelter to his recently estranged wife, entered Brown's home and attacked her with a knife and then stabbed Seana when she came to her mother's rescue. Brown, Seana, Brown's son, and Al-Zubaidy's wife all testified on behalf of the State. Al-Zubaidy testified on his own behalf and claimed that upon entering Brown's home to deliver some items to his wife, he was attacked by several persons and used a knife to defend himself and escape.

At trial, Seana testified that she had recently moved to Michigan. At the conclusion of her testimony, Al-Zubaidy's attorney did not request that Seana remain subject to recall or otherwise indicate that she should remain in Nebraska, and she was excused by the trial court. During Al-Zubaidy's case, his counsel attempted to call John Ways for the purpose of impeaching Seana's testimony. At the time of trial, Ways was in custody on charges unrelated to this case, and he had met Al Zubaidy while in custody. According to an offer of proof, Ways would have testified that Seana, with whom he was acquainted, told him prior to trial that Al-Zubaidy had been "jumped" by persons in Brown's home and that he had used the knife in self-defense, injuring Seana and Brown in the process. The State objected to Ways' testimony on the ground that Seana had not been given an opportunity to explain or deny the alleged prior inconsistent statement and could not be recalled for that purpose because she had left the jurisdiction. The trial court sustained the objection and did not permit Ways to testify.

Al-Zubaidy was convicted on all four counts in the original information. Thereafter, Al-Zubaidy perfected a direct appeal and moved for appointment of new counsel because he intended to challenge the effectiveness of his trial counsel on appeal. The district court granted the motion. In his appeal, Al-Zubaidy assigned and argued (1) that the trial court erred in failing to instruct the jury on attempted second degree murder and attempted manslaughter as lesser-included offenses of attempted first degree murder and (2) that the trial court erred in refusing to allow Ways' testimony for the purpose of impeaching Seana. The Nebraska Court of Appeals found no merit in either assignment and affirmed. State v. Al-Zubaidy, 5 Neb. App. 327, 559 N.W.2d 774 (1997) (Al-Zubaidy I).

In its analysis of the first assignment of error, the Court of Appeals determined that the evidence did not warrant the giving of a lesser-included offense instruction. In resolving the second assignment of error, the court began by focusing on Neb. Evid. R. 613(2), Neb.Rev.Stat. § 27-613(2) (Reissue 1995), which provides in part that "[e]xtrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require." The court then cited State v. Price, 202 Neb. 308, 275 N.W.2d 82 (1979), and State v. Johnson, 220 Neb. 392, 370 N.W.2d 136 (1985), abrogated on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996),

for the proposition that the foundational requirements of § 27-613 can be met by affording the impeached party an opportunity to explain or deny either before or after the introduction of impeaching evidence. Nevertheless, the Court of Appeals concluded that because Al-Zubaidy knew that Seana was not a resident of Nebraska at the time of her trial testimony, he was obligated to take some action to secure her continued presence for the purpose of explaining or denying the alleged statement to Ways, and because he had not done so, the extrinsic evidence of the statement was properly excluded. In addition, the Court of Appeals specifically determined that Al-Zubaidy had "not demonstrated that the interests of justice require dispensing with the foundational requirement of rule 613(2) in the present case." Al-Zubaidy I, 5 Neb.App. at 340,

559 N.W.2d at 782.

Al-Zubaidy petitioned for further review solely on the issue of whether a lesser-included offense instruction should have been given. We granted the petition, determined that the evidence warranted an instruction on attempted second degree murder as a lesser-included offense, and reversed, and remanded for a new trial. State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997) (Al-Zubaidy II).

On remand, Al-Zubaidy took the position that our decision in Al-Zubaidy II reversed all four of his original convictions and required a new trial on all counts. The trial court determined that our decision required retrial on only counts I and II of the original information, the attempted murder and related weapons charge pertaining to Brown, and that Al-Zubaidy stood convicted of counts III and IV, the assault and weapons charge pertaining to Seana. A plea agreement was subsequently reached in which count I was amended to first degree assault and count II was dismissed in exchange for Al-Zubaidy's plea of no contest to count I, as amended. Al-Zubaidy was convicted on that count and sentenced to 10 years' imprisonment to be served consecutively to the other sentences he was serving. The plea agreement contained no waiver of rights with respect to counts III and IV. Al-Zubaidy moved for an absolute discharge on the ground that he had not been retried on those charges within the timeframe specified in Neb.Rev.Stat. § 29-1208 (Reissue 1995). The motion was denied, and Al-Zubaidy appealed. In State v. Al-Zubaidy, 257 Neb. 935, 602 N.W.2d 8 (1999) (Al Zubaidy III), we held that the decision in Al-Zubaidy II did not affect Al-Zubaidy's convictions on counts III and IV, which pertained to the injuries inflicted upon Seana.

Subsequently, Al-Zubaidy filed a verified pro se motion for postconviction relief based upon ineffective assistance of counsel. In this motion, Al-Zubaidy alleged that his trial counsel was ineffective for failing to take the necessary steps to "ensure that extrinsic evidence which could impeach the credibility of Seana Brown would be admitted according to Nebraska Rules of Evidence" and for failing to request a lesser-included offense instruction with respect to the second degree assault charge. Al-Zubaidy also alleged that his appellate counsel was ineffective for not asserting ineffective assistance of trial counsel as an issue on direct appeal and for not seeking further review of the Court of Appeals' determination that there was no error in excluding Ways' testimony regarding the statement allegedly made by Seana.

The district court denied Al-Zubaidy's motion for postconviction relief without conducting an evidentiary hearing. The court reasoned that all of Al-Zubaidy's claims based upon ineffective assistance of trial counsel could have been asserted on direct appeal and were therefore procedurally barred. The court further determined that appellate counsel's decision to approach the issue of foundation for the prior inconsistent statement as he did, rather than casting it as ineffective assistance of trial counsel, was a reasonable tactical decision which was not shown to be prejudicial. Al-Zubaidy perfected this timely appeal, which we removed to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts of this state. See Neb.Rev.Stat. § 24-1106(3) (Reissue 1995).

II. ASSIGNMENTS OF ERROR

Al-Zubaidy assigns, restated, that the district court (1) erred in denying his postconviction motion without conducting an evidentiary hearing, (2) erred in not appointing counsel to represent him in this matter, and (3) abused its discretion in not permitting him to amend his motion for postconviction relief.

III. STANDARD OF REVIEW

A defendant requesting postconviction relief must establish the basis for such relief, and the findings of the district court will not be disturbed unless they are clearly...