State v. Said

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/28/2020 08:08 AM CDT
- 314 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
State of Nebraska, appellee, v.
Ahmed Said, appellant.
___ N.W.2d ___
Filed July 2, 2020. No. S-18-901.
1. Motions to Suppress: Confessions: Constitutional Law: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a
statement based on its claimed involuntariness, including claims that
law enforcement procured it by violating the safeguards established
by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a
two-part standard of review. Regarding historical facts, an appellate
court reviews the trial court’s findings for clear error. Whether those
facts meet constitutional standards, however, is a question of law,
which an appellate court reviews independently of the trial court’s
determination.
2. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to
suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment pro-
tection is a question of law that an appellate court reviews independently
of the trial court’s determination.
3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
4. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
- 315 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
5. Trial: Rules of Evidence. A trial court exercises its discretion in deter-
mining whether evidence is relevant and whether its prejudicial effect
substantially outweighs its probative value.
6. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
7. Trial: Evidence: Appeal and Error. A trial court’s determination of the
relevancy and admissibility of evidence must be upheld in the absence
of an abuse of discretion.
8. Miranda Rights: Self-Incrimination. The safeguards of Miranda
ensure that the individual’s right to choose between speech and silence
remains unfettered throughout the interrogation process.
9. ____: ____. If the suspect indicates that he or she wishes to remain
silent or that he or she wants an attorney, the interrogation must cease.
10. Miranda Rights: Right to Counsel: Police Officers and Sheriffs:
Self-Incrimination. In order to require cessation of custodial interro-
gation, the subject’s invocation of the right to counsel must be unam-
biguous and unequivocal. Once a person has invoked his or her right to
remain silent, the police must scrupulously honor that right.
11. Constitutional Law: Trial: Convictions: Appeal and Error. Even con-
stitutional error does not automatically require reversal of a conviction if
that error was a trial error and not a structural defect.
12. Trial: Evidence: Appeal and Error. The admission of an improperly
obtained statement is a trial error, and so its erroneous admission is
subject to harmless error analysis.
13. Trial: Verdicts: Appeal and Error. Harmless error review looks to the
basis on which the trier of fact actually rested its verdict; the inquiry
is not whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered in the questioned trial was surely unattributable to the error.
14. Search and Seizure: Police Officers and Sheriffs: Evidence. Evidence
must be excluded as fruit of the poisonous tree if it is discovered by the
exploitation of illegal police conduct.
15. Evidence: Police Officers and Sheriffs. Not all evidence is fruit of the
poisonous tree simply because it would not have come to light but for
the illegal action of the police. The question is whether the evidence has
been obtained by exploiting the primary illegality or has instead been
obtained by means sufficiently distinguishable so as to be purged of the
primary taint.
16. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In
reviewing the strength of an affidavit submitted as a basis for finding
- 316 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
probable cause to issue a search warrant, an appellate court applies a
totality of the circumstances test. The question is whether, under the
totality of the circumstances illustrated by the affidavit, the issuing mag-
istrate had a substantial basis for finding that the affidavit established
probable cause.
17. Search Warrants: Probable Cause: Words and Phrases. Probable
cause sufficient to justify issuance of a search warrant means a fair
probability that contraband or evidence of a crime will be found.
18. Search Warrants: Affidavits: Evidence: Appeal and Error. In evalu-
ating the sufficiency of an affidavit used to obtain a search warrant,
an appellate court is restricted to consideration of the information and
circumstances contained within the four corners of the affidavit, and
evidence which emerges after the warrant is issued has no bearing on
whether the warrant was validly issued.
19. Constitutional Law: Search Warrants. The Fourth Amendment to the
U.S. Constitution and Neb. Const. art. I, § 7, require that a search war-
rant be particular in describing the place to be searched and the persons
or things to be seized.
20. Constitutional Law: Search Warrants: Police Officers and Sheriffs.
To satisfy the particularity requirement of the Fourth Amendment, a
warrant must be sufficiently definite to enable the searching officer to
identify the property authorized to be seized.
21. Search Warrants. The purpose of the particularity requirement as it
relates to warrants is to prevent general searches, and whether a warrant
is insufficiently particular depends upon the facts and circumstances of
each case.
22. Search Warrants: Affidavits. An inadvertent defect in a search warrant
may be cured by reference to the affidavit used to obtain the warrant if
the affidavit is incorporated in the warrant or referred to in the warrant
and the affidavit accompanies the warrant.
23. Criminal Law: Constitutional Law: Due Process. Whether rooted
directly in the Due Process Clause of the 14th Amendment or in the
Compulsory Process or Confrontation Clauses of the 6th Amendment,
the federal Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.
24. Evidence. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence. Relevancy requires only that the probative value be something
more than nothing.
25. Evidence: Words and Phrases. Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the
- 317 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence. Unfair prejudice means an undue
tendency to suggest a decision based on an improper basis.
26. DNA Testing: Evidence. Inconclusive DNA results are irrelevant
because they do not help the fact finder assess whether the defendant is
or is not the source of the sample.
27. Rules of Evidence. “Opening the door” is a rule of expanded relevancy
which authorizes admitting evidence that would otherwise be irrelevant
in order to respond to (1) admissible evidence which generates an issue
or (2) inadmissible evidence admitted by the court over objection.
Appeal from the District Court for Hall County: Mark J.
Young, Judge. Affirmed.
Robert W. Kortus, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik,
and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Ahmed Said appeals his convictions and sentences in the
district court for Hall County for second degree murder and
use of a weapon to commit a felony. Said claims on appeal that
the court erred when it (1) admitted statements he made as a
result of allegedly unconstitutional interrogations, (2) admitted
evidence from an allegedly unconstitutional search of his cell
phone, (3) prohibited him from presenting evidence regarding
the victim’s mental health and use of alcohol and prescription
drugs, (4) denied him the right to impeach a witness’ testi-
mony with cross-examination regarding specific instances of
conduct and bias, and (5) allowed evidence regarding DNA
testing, which Said argued was inconclusive and therefore
- 318 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
irrelevant and unfairly prejudicial. We affirm Said’s convic-
tions and sentences.
STATEMENT OF FACTS
Investigation of Death and
Charges Against Said.
The State charged Said with second degree murder and use
of a weapon to commit a felony in connection with the death
of Adulma Khamis. Around 7 a.m. on April 13, 2017, a police
officer who was responding to a call for a welfare check found
Khamis lying unconscious on the ground outside a residence
located approximately five blocks away from Pioneer Park in
Grand Island, Nebraska. Khamis was taken to a hospital, where
it was determined that he was comatose and had multiple
fractures to his skull and a large amount of bleeding between
his skull and brain. Surgery was performed, but Khamis died
several days later, on April 19. The pathologist who performed
the autopsy on Khamis determined that the cause of death was
“blunt trauma to the head resulting in skull fractures and sig-
nificant trauma to the left side of the brain.”
After learning from the emergency room doctor that Khamis
had suffered serious head trauma and a fractured skull, the
responding officer and other police began to investigate the
matter as a criminal one. The responding officer secured
the location where he had found Khamis. He also attempted to
speak with Khalil Kouri, a man the officer knew from previous
contacts to live in the residence outside of which Khamis had
been found. Kouri was not there at the time, but police later
contacted him at work.
Kouri testified at trial in this case that Khamis was a friend
of his and that Khamis would sometimes visit Kouri’s home.
Kouri testified that on the evening of April 12, 2017, a few
friends, not including Khamis, were socializing at Kouri’s
residence. Kouri recalled that at some point in the evening,
he heard an unknown person knocking on his door, but that
- 319 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
he told the person to go away because he had to work in the
morning and wanted to go to sleep. Kouri testified that when
he went to work at 5 a.m. the next day, it was still dark and he
did not notice anything unusual.
As the investigation continued, Said became a suspect based
on evidence including security camera videos that, the parties
stipulated at trial, depicted a fight between Said and Khamis on
the evening of April 12, 2017. The security cameras were from
a business located near Pioneer Park.
The State’s theory of the case at trial was that Said had
caused the fatal injuries to Khamis by striking him in the head
with a metal pole and that Khamis had remained conscious
and mobile for some time after the injury, eventually becom-
ing unconscious after attempting to be admitted to Kouri’s
residence. Said asserted as part of his defense that Khamis had
been the aggressor in the fight and that Said’s actions in the
fight had been taken in self-defense. Said further attempted
to develop Kouri as an alternate suspect in causing Khamis’
death. Evidence at Said’s trial included numerous exhibits and
testimony by numerous witnesses; the discussion of evidence
and proceedings hereinafter focuses on matters related to issues
raised in this appeal.
Motion to Suppress Said’s Statements
in Interrogations and Letter.
Prior to trial, Said filed a motion to suppress statements he
made as a result of what he asserted were unconstitutional cus-
todial interrogations. Said specified four separate interrogations
in his motion, but on appeal, he focuses on two dates—April
20 and June 5, 2017. Said also sought to suppress a letter dated
April 29, 2017, that he had written to his sister while he was
in prison; he asserted that the letter was improperly seized as
“fruit of the poisonous tree” stemming from prior interroga-
tions. After an evidentiary hearing, the district court granted in
part and overruled in part Said’s motion to suppress the state-
ments and the letter.
- 320 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
Regarding the April 20, 2017, interrogation, evidence at
the hearing indicated that Said had been arrested on April 19
on a charge unrelated to the present case. Officers, including
Steven Sloan, interviewed Said on April 19. Sloan returned
on April 20 and asked Said to discuss a different case—the
assault of Khamis. A recording of the interview indicated that
at the beginning of the interview, Said appeared willing to talk
to Sloan. But after Sloan read Said his Miranda rights and
asked whether he was willing to speak without an attorney,
Said replied, “Uh, no.” After Sloan asked again whether Said
“want[ed] to talk to [him],” Said replied, “[N]o, I do not.”
Sloan did not then stop the interview. Instead, Sloan continued
attempting to convince Said to talk and, inter alia, explained
that he wanted to talk about “something . . . different” from
what they had talked about on April 19. Said then agreed to
speak with Sloan, and they discussed the present case. At
approximately 21 minutes into the interview, Said stated, “[N]o
more talking” and “I’m just going to stop talking and just cut
off because I’m trying to go back . . . .” Sloan continued the
interview and confronted Said with evidence connected to the
investigation regarding Khamis.
In its order on the motion to suppress, the district court
found that statements Said made in the April 19, 2017, inter-
view were voluntary and that officers honored Said’s request
when he indicated that he wished to stop talking. The court
determined that because the April 20 interview involved a
different case, Said’s assertion of his rights at the end of the
April 19 interview did not bar the April 20 interview. The
court determined that although at the beginning of the April
20 interview, Said stated he did not want to speak without an
attorney, Sloan “attempted to clarify” and Said subsequently
spoke voluntarily until the 21-minute mark, when he said,
“[N]o more talking.” The court concluded that Said’s state-
ments prior to the 21-minute mark were voluntary but that
statements after that point should be suppressed.
- 321 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
Sloan returned to speak with Said on June 5, 2017. Sloan
read Said his Miranda rights, and Said waived them. The
­district court determined that Said’s statements and his waiver
of rights on June 5 were voluntary. The court determined that
“[g]iven the over two-week break between the April 20, 2017,
interview and the June 5, 2017, contact there was a sufficient
break” from any coercion related to the April 20 interview.
The court overruled the motion to suppress as to the June
5 statements.
The letter Said sought to suppress was written by him to his
sister and was dated April 29, 2017. In the letter, Said asked
his sister to get him a lawyer. He also asked her to inquire
about the security camera at the business near the Pioneer Park
to determine what angles and areas the camera recorded. He
further named a witness who “told them [e]verything,” and he
asked his sister to “[p]ress [the witness’] [a]ss.”
Said contended that the letter was “fruit of the poisonous
tree” because he wrote the letter based on information he had
learned from the investigators in the allegedly improper inter-
views of April 19 and 20, 2017. The district court rejected
Said’s argument. The court reasoned that (1) the April 19 inter-
view and most of the April 20 interview did not violate Said’s
rights, (2) there was evidence that Said could have learned the
information from sources other than the investigators, and (3)
writing the letter was Said’s voluntary decision and was not
a result of police misconduct. The court therefore overruled
Said’s motion to suppress the letter.
At trial, the court admitted the letter and various state-
ments from the two interviews over Said’s renewed objections.
Among the statements from the April 20, 2017, interview put
into evidence were statements in which Said denied having
worn an orthopedic boot on April 12, denied knowing a wit-
ness, and denied drinking alcohol on April 12. Other evidence
at trial contradicted these statements, and the State used Said’s
statements in the interview to argue that he was lying in
order to hide his involvement in Khamis’ death. In the June 5
- 322 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
interview, Said made statements to the effect that he was upset
that law enforcement had intercepted the letter he wrote to
his sister.
Motion to Suppress Evidence Obtained
From Search of Cell Phone.
Also prior to trial, Said filed a motion to suppress evidence
that had been obtained from a search of his cell phone. The
search had been conducted pursuant to a search warrant that
had been issued by the court based on Sloan’s affidavit. Said
argued that (1) the affidavit did not include sufficient infor-
mation to establish probable cause for the search and (2) the
affidavit and the warrant based on it were overbroad and not
sufficiently limited in scope to items directly related to any
probable cause that might justify the search. Regarding the lack
of probable cause, Said argued, inter alia, that Sloan’s affidavit
omitted information that would have undermined the cred-
ibility of Hussein Nuri, who had told investigators, inter alia,
that Said had told Nuri that he had struck Khamis with a metal
pole. Said asserted Sloan omitted information regarding Nuri’s
prior conviction for false reporting, Nuri’s alcohol problems,
and physical evidence that contradicted what Nuri said Said
had told him.
In its order overruling the motion to suppress, the district
court noted that a second affidavit that resulted in a second
search warrant cured the omission. The court nevertheless
examined the first affidavit and warrant and determined that
the omissions regarding alcohol abuse and contradictory physi-
cal evidence were not material because there was no indica-
tion Nuri was drunk when he made his statement to Sloan
and because the physical evidence contradicted details but
did not contradict the main point of Said’s reported statement
to Nuri—that he had struck Khamis. The court determined
Sloan should have disclosed Nuri’s record for honesty, but
it concluded that even without Nuri’s statements, there was
sufficient evidence to support probable cause; such evidence
- 323 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
included the security camera recordings depicting the fight
between Said and Khamis and Said’s letter to his sister. The
court reasoned this evidence showed that the cell phone might
contain information regarding the fight, such as communica-
tions between Said and Khamis that might have led to the
fight, as well as location information corroborating Said’s
presence at the place and time of the fight; the court found
that the letter furnished probable cause to believe Said might
have used his cell phone prior to his incarceration in order to
get information regarding the investigation related to Khamis’
assault and death. The court also rejected Said’s arguments
regarding particularity. As noted above, the court overruled the
motion to suppress evidence obtained from the search of the
cell phone.
At trial, the court admitted evidence obtained from the search
of Said’s cell phone over Said’s renewed objections. Such evi-
dence included the internet history, which included “Google
searches” performed in the days after the fight between Said
and Khamis. Terms searched included Said’s name, Khamis’
name, the name of the hospital to which Khamis was admitted,
and local obituaries. The history also included searches regard-
ing head injuries, comas, what happens after a person gets hit
in the head with a metal pole, and whether a head injury can
cause brain death.
Evidence Regarding Khamis’
Mental State.
At various points during the trial, Said sought to question
witnesses or present evidence regarding Khamis’ mental health
and prescription drugs in his possession that were used as
antipsychotics or to treat depression. Said generally sought to
admit the evidence to support his defense that Khamis was the
aggressor and that Said acted in self-defense. The court gener-
ally sustained the State’s objections based on relevance.
During the testimony of the nurse who treated Khamis at
the hospital, Said attempted to cross-examine her regarding
- 324 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
information she may have gathered regarding a history of
“chronic alcoholism,” Khamis’ “psychological history,” and his
“prior history involving hospitalizations.” The court sustained
the State’s objections based on relevance.
During the cross-examination of a neurological surgeon who
treated Khamis, Said asked whether he was aware of “some
history of [Khamis] in respect to a psychiatric history.” The
court sustained the State’s objection.
The State thereafter asked the court, outside the jury’s pres-
ence, for an order preventing Said from asking questions about
Khamis’ “history of . . . alcohol abuse . . . and any kind of psy-
chiatric matters.” In opposition, Said argued that there was evi-
dence that when Khamis was found, he had in his possession
an antidepressant (Prozac) and an antipsychotic (Olanzapine).
He further noted that Khamis’ autopsy showed the presence of
an antidepressant, as well as an anticonvulsant drug (Keppra).
Said argued that evidence regarding Khamis’ possible use of
these drugs was relevant to his claim that Khamis was the
initial aggressor in the fight, as well as to issues regarding the
cause of Khamis’ death.
After further argument and offers of proof, the court ruled
that Said could ask the doctor “what effects those specific
drugs may cause, if those are somehow relevant,” but the court
stated that it would “not allow questions concerning what the
drugs are prescribed for and what they treat.” The court fur-
ther ruled that it would not allow questions regarding Khamis’
“chronic alcohol use or alcoholism” without Said’s showing a
“nexus between prior alcohol use and his condition” at relevant
times. The court later clarified that by the “effects” of a drug,
it meant “the impacts [the drug] would have had on the treat-
ment at [the hospital] on these dates, not its overall why it’s
prescribed or what it treats.”
Said’s cross-examination of the neurological surgeon contin-
ued thereafter. Said was allowed to ask questions regarding the
effects of the drugs Prozac, Olanzapine, and Keppra.
- 325 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
Prior to Said’s cross-examination of the pathologist who
performed the autopsy on Khamis, the court ruled on a pending
evidentiary issue. The court stated as follows:
Khamis’s prior suicide attempt, mental health diagnoses
or mental health applications (sic) are not relevant, and
even if relevant, applying the [rule] 403 balancing test,
the Court finds prejudice as defined in [rule] 403 sub-
stantially outweighs the probative value and inquiry is
not allowed.
....
As to the medications discussed in the toxicology
report, as to each medication, . . . Said’s counsel may
inquire on cross-examination of whether the medication
led to death, led to his death, or changed the doctor’s
opinion as to the cause of death. Counsel may also inquire
if he observed injuries consistent with seizures [or] a fall
related to seizures.
....
Counsel may not inquire as to what mental health
treatments or drugs found in . . . Khamis’s system are
prescribed for . . . .
Counsel may, subject to other objections, inquire as to
whether the witness knows if Keppra . . . leads to aggres-
sive behavior. . . .
....
[Regarding Prozac,] I find there’s an insufficient nexus
. . . regarding aggression, while it has a number of other
reported side effects, there’s simply not enough nexus on
the record before the Court . . . .
....
. . . I make the same findings as to [Olanzapine] and
will not allow cross-examination on that.
Impeachment of Nuri.
At trial, Nuri testified, inter alia, that Said told him that
Said “struck [Khamis] with a metal stick in the back of his
- 326 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
head twice in the alley.” On cross-examination, Said asked
Nuri if he had ever been convicted of “a crime of dishonesty”;
Nuri replied that he had. Said began another line of question-
ing, to which the State objected. Outside the jury’s presence,
the parties argued to the court regarding Said’s anticipated
lines of questioning.
One issue was that in Nuri’s deposition, he had admit-
ted that on his Facebook page he had lied by saying that
he had graduated from a certain university and that he had
worked for a certain bank. Said argued that this evidence was
admissible pursuant to Neb. Evid. R. 608, Neb. Rev. Stat.
§ 27-608(2) (Reissue 2016). After the parties argued the issue,
the court ruled that it would not allow Said to cross-examine
Nuri “concerning false claims made by . . . Nuri on his
Facebook page.”
Another issue arose at trial regarding Nuri’s pending crimi-
nal charges. Specifically, Nuri had entered a plea to a pending
criminal charge and was awaiting sentencing. Said argued that
evidence of the pending charge was relevant to show bias and
a motive to fabricate testimony. The court ruled that it would
be improper to cross-examine Nuri regarding the pending
charge, because “there’s been no showing that [Nuri] has any
specific inducement such as a promise of leniency” and “Nuri
has pled to whatever the underlying facts are.”
DNA Evidence and “Uninterpretable” Samples.
In his defense, Said called witnesses, including Brandy
Porter, a forensic scientist in the Nebraska State Patrol Crime
Laboratory. Porter testified that she had performed DNA analy-
sis on multiple samples that were collected in connection with
this case, including samples from several stains on the clothing
Khamis was wearing. She compared the samples to reference
samples from Khamis, Said, and Kouri.
Said questioned Porter regarding her testing of cer-
tain ­specific stains. With regard to those specific stains,
Porter ­testified that her analysis indicated that Khamis was
- 327 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
included as a potential major contributor and that Said was
excluded. Testing of certain stains indicated a second con-
tributor, and Porter testified that Said was excluded as the
second contributor.
On cross-examination, the State questioned Porter regard-
ing general matters pertaining to DNA analysis. As part of that
questioning, Porter testified that an “interpretable profile is a
DNA profile in which I can make conclusions regarding the
identity of the individuals in that sample” and that “[i]f we
can’t make scientific conclusions regarding the identity of the
individuals, the profile is deemed uninterpretable.” She further
testified, “Uninterpretable means that the sample is either too
complex or it doesn’t have enough genetic information present
for me to make an accurate scientific conclusion regarding who
is present in that sample.”
The State then asked whether “[i]n this particular case,
[Porter had made] a determination that any of the items that
[she] tested were uninterpretable.” The court allowed Porter
to answer over Said’s objection, and Porter replied in the
affirmative. Thereafter, the State asked Porter about her test-
ing of various specific samples other than those about which
Said had questioned her on direct. Porter testified over Said’s
continuing objections that as to some of those specific sam-
ples, results regarding contributors other than Khamis were
determined to be uninterpretable, and that as to other specific
samples, Khamis was included and both Said and Kouri were
excluded as contributors.
At the end of the State’s cross-examination of Porter, the
court gave the following limiting instruction:
Evidence of uninterpretable DNA results is offered only
to show you what steps were taken to test the items by
the analyst. DNA testing results that are uninterpretable
are not to be considered by you as evidence that anyone
contributed to that DNA sample — to the sample. The
jury may not speculate as to who may or may not have
- 328 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
contributed to any sample that was listed or tested, the
result of which was considered to be uninterpretable.
On redirect, Said elicited from Porter testimony that she was
able to make scientific conclusions on 19 samples from which
Said was excluded and that Said was not included in any
samples for which she was able to make scientific conclusions.
Verdict, Sentence, and Appeal.
Said rested his defense after Porter’s testimony, and the
State chose not to present rebuttal evidence. Thereafter, the
court read its instructions and submitted the case to the jury.
The jury found Said guilty of second degree murder and use
of a weapon to commit a felony. The district court sentenced
Said to imprisonment for 60 to 80 years for second degree
murder and for a consecutive term of 25 to 30 years for use of
a weapon.
Said appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Said claims that the court erred when it (1) admitted state-
ments he made in the April 20 and June 5, 2017, interrogations
and in the letter to his sister; (2) admitted evidence from the
search of his cell phone; (3) prohibited him from presenting
evidence regarding Khamis’ mental state and his use of drugs
and alcohol; (4) denied him the right of confrontation and the
opportunity to impeach Nuri’s testimony with evidence of spe-
cific instances of conduct and bias; and (5) allowed testimony
by Porter regarding DNA testing that Said asserts was incon-
clusive and therefore irrelevant and unfairly prejudicial.
STANDARDS OF REVIEW
[1] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforce-
ment procured it by violating the safeguards established by
the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court
- 329 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
applies a two-part standard of review. Regarding historical
facts, an appellate court reviews the trial court’s findings
for clear error. Whether those facts meet constitutional stan-
dards, however, is a question of law, which an appellate court
reviews independently of the trial court’s determination. State
v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
[2] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. State
v. Stelly, 304 Neb. 33, 932 N.W.2d 857 (2019). Regarding
historical facts, an appellate court reviews the trial court’s
findings for clear error, but whether those facts trigger or vio-
late Fourth Amendment protection is a question of law that
an appellate court reviews independently of the trial court’s
determination. Id.
[3,4] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529
(2020). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Id.
[5-7] A trial court exercises its discretion in determin-
ing whether evidence is relevant and whether its prejudicial
effect substantially outweighs its probative value. State v.
Stubbendieck, 302 Neb. 702, 924 N.W.2d 711 (2019). An abuse
of discretion occurs when a trial court’s decision is based upon
reasons that are untenable or unreasonable or if its action is
clearly against justice or conscience, reason, and evidence.
Id. A trial court’s determination of the relevancy and admis-
sibility of evidence must be upheld in the absence of an abuse
of discretion. State v. Carpenter, 293 Neb. 860, 880 N.W.2d
630 (2016).
- 330 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
The determination of whether procedures afforded an indi-
vidual comport with constitutional requirements for procedural
due process presents a question of law. State v. McCurry, 296
Neb. 40, 891 N.W.2d 663 (2017).
ANALYSIS
Any Error in the Admission of Statements From
Two Interviews Was Harmless Error, and
District Court Did Not Err When It
Overruled Said’s Motion to
Suppress the Letter.
Said claims that the court erred when it admitted statements
he made in the April 20 and June 5, 2017, interviews and in
the letter to his sister. He argues that at the beginning of the
April 20 interview, he invoked with clear and unequivocal
language his right to remain silent, and that all statements he
made thereafter, including statements made in that interview as
well as statements made in the letter and in the June 5 inter-
view, were inadmissible as having been obtained in violation
of his Miranda rights. We determine that admission of Said’s
statements in the April 20 and June 5 interviews was harmless
error and that overruling the motion to suppress the letter was
not error.
We first consider the April 20, 2017, interview. The district
court determined that Said clearly invoked his Miranda rights
21 minutes into the interview, and it therefore suppressed
statements he made after that point. But the court determined
his statements prior to that point were voluntary and therefore
admissible. Said argues that the entire interview should have
been suppressed because he clearly and unequivocally invoked
his rights at the beginning of the interview.
[8-10] The safeguards of Miranda ensure that the individu-
al’s right to choose between speech and silence remains unfet-
tered throughout the interrogation process. State v. Clifton,
296 Neb. 135, 892 N.W.2d 112 (2017). If the suspect indicates
that he or she wishes to remain silent or that he or she wants
- 331 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
an attorney, the interrogation must cease. Id. The right to
choose between speech and silence derives from the privilege
against self-incrimination. Id. In order to require cessation of
custodial interrogation, the subject’s invocation of the right
to counsel must be unambiguous and unequivocal. State v.
Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020). Once a per-
son has invoked his or her right to remain silent, the police
must scrupulously honor that right. State v. Bauldwin, 283
Neb. 678, 811 N.W.2d 267 (2012).
In its brief, the State argues that persons who are already
incarcerated when they are interviewed are not subject to the
same pressures against which the Miranda protections are
designed to operate and that therefore, such interviews are not
considered custodial interrogations. The State cites two U.S.
Supreme Court cases, Howes v. Fields, 565 U.S. 499, 132 S.
Ct. 1181, 182 L. Ed. 2d 17 (2012), and Maryland v. Shatzer,
559 U.S. 98, 130 S. Ct. 1213, 175 L. Ed. 2d 1045 (2010). The
State acknowledges that unlike the present case, the cases cited
involved persons who had already been convicted and sen-
tenced and were serving a set term in prison. The State urges
that the reasoning in the two U.S. Supreme Court cases be
extended to cases involving pretrial detainees, like Said at the
time of the statements at issue. Said contends that extending
these cases to a pretrial defendant detained for a short period
is not proper.
We need not resolve this dispute, because, despite rais-
ing this argument, the State concedes that on the facts of
this case—including the fact that at the time of the April 20,
2017, interview, Said had been in detention for fewer than
24 hours—“viewed objectively, the coercive atmosphere and
pressure from April 19th most likely still existed on April
20th and Said was in custody for purposes of Miranda on that
date.” Brief for appellee at 26. The State further notes that the
officer twice asked Said whether he was willing to talk with-
out a lawyer and that both times, Said replied that he was not.
Although it argues that asking the second time was a proper
- 332 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
clarification of Said’s response to the first question, the State
concedes that when the officer continued urging Said to talk,
it was an interrogation that should not have been undertaken
after Said clearly invoked his Miranda rights. The State con-
cludes in its brief that “the district court erred when it admit-
ted Said’s statements from the April 20th interview.” Brief for
appellee at 28.
[11-13] Having conceded that the court erred when it admit-
ted Said’s statements from the April 20, 2017, interview, we
turn to the State’s further argument that the erroneous admis-
sion of statements from the April 20 interview was harmless
error. We have said that even constitutional error does not
automatically require reversal of a conviction if that error
was a trial error and not a structural defect. State v. DeJong,
287 Neb. 864, 845 N.W.2d 858 (2014). The admission of
an improperly obtained statement is a trial error, and so its
erroneous admission is subject to harmless error analysis.
Id. To conduct harmless error review, we look to the entire
record and view the erroneously admitted evidence relative
to the rest of the untainted, relevant evidence of guilt. Id.
Harmless error review looks to the basis on which the trier of
fact actually rested its verdict; the inquiry is not whether in
a trial that occurred without the error a guilty verdict would
surely have been rendered, but whether the actual guilty
verdict rendered in the questioned trial was surely unattribut-
able to the error. State v. Nolan, 292 Neb. 118, 870 N.W.2d
806 (2015).
The State notes that in the April 20, 2017, interview, Said
did not confess to the crime under investigation and that
therefore, the statements in and of themselves did not incrimi-
nate him. Said argues that admission of the statements was
not harmless error, because although he did not admit to any
wrongdoing, he made several statements that were contra-
dicted by other evidence presented by the State. He argues
that admission of the statements harmed him because the
State used the statements to call his credibility into issue even
- 333 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
though he was not a witness in the trial. In addition and in a
similar vein, Said objected to portions of the prosecution’s
closing arguments as having put Said’s credibility into issue
when he was not a witness and had not otherwise put his char-
acter at issue in the case. In lieu of declaring a mistrial, the
court at Said’s request provided a curative instruction that the
jury was to “determine only the credibility of the witnesses
who testify” and that it was “to disregard any statements,
written or spoken, concerning the credibility of persons who
did not testify.”
In response to Said’s arguments, the State contends that there
was evidence aside from Said’s statements to police which
indicated that Said had attempted to diminish his involvement
in the altercation with Khamis. The State further contends
that the prosecutor’s references in closing arguments to Said’s
statements on April 20, 2017, were brief. The State thus asserts
that error regarding the April 20 statements was harmless.
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,” see State v. DeJong,
287 Neb. at 884, 845 N.W.2d at 874-75, we determine the
guilty verdict in this case was “surely unattributable” to the
error in admitting the statements, see State v. Nolan, 292 Neb.
at 140, 870 N.W.2d at 825. 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.
We next consider the April 29, 2017, letter that Said wrote
to his sister. Said argues that the “fruit of the poisonous tree”
doctrine applies because the letter and its contents were the
result of the April 20 interview and that because that inter-
view was in violation of his rights, the letter should also be
inadmissible.
- 334 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
[14] The fruit of the poisonous tree doctrine generally pro-
vides that evidence must be excluded as fruit of the poisonous
tree if it is discovered by the exploitation of illegal police
conduct. See State v. Gorup, 275 Neb. 280, 745 N.W.2d 912
(2008). The State argues that the fruit of the poisonous tree
doctrine is generally applied only in the context of a search or
seizure in violation of the Fourth Amendment and that to the
extent that Said contends the content of the letter is at issue, it
is questionable whether the doctrine even applies in the context
of such a Fifth Amendment violation. However, assuming it
does apply in such context, the State argues that the doctrine
would not require exclusion of the letter, because the letter was
not discovered through governmental exploitation of the April
20, 2017, interview.
[15] For purposes of our analysis in this case, we assume
the doctrine applies. Not all evidence is fruit of the poisonous
tree simply because it would not have come to light but for
the illegal action of the police. State v. Bray, 297 Neb. 916,
902 N.W.2d 98 (2017). The question is whether the evidence
has been obtained by exploiting the primary illegality or has
instead been obtained by means sufficiently distinguishable so
as to be purged of the primary taint. Id.
Said argues that the letter was the fruit of the poisonous
tree of the April 20, 2017, interview because he was prompted
to write the letter based on what he learned about the police
investigation in the interview. But the police did not use infor-
mation they obtained in the April 20 interview to discover the
letter, and therefore, the police did not exploit any informa-
tion they had learned from the interview in order to discover
the letter. Said’s action of writing the letter in response to the
interview broke any causal connection between the State’s
actions in the interview and the State’s later discovery of the
letter, and such discovery was sufficiently attenuated from the
April 20 interview. See State v. Bray, supra. We conclude that
the discovery of the letter was not a result of police exploita-
tion of the April 20 interview. The letter was not inadmissible
- 335 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
under the fruit of the poisonous tree doctrine, and therefore,
the court did not err when it overruled Said’s motion to sup-
press the letter.
We finally consider the June 5, 2017, interview. Said
argues that statements he made in the June 5 interview should
have been suppressed because that interview was a continu-
ation of the questioning in the April 20 interview in which
he had invoked his right to remain silent. He cites State v.
Pettit, 227 Neb. 218, 417 N.W.2d 3 (1987), and argues that
there was not a significant passage of time after the April 20
interview and that the subject of the June 5 interview was the
same transaction or occurrence that was the subject of the
April 20 interview.
The State concedes in its brief that the Pettit factors were
not met, but it argues that any error in admitting statements
from the June 5, 2017, interview was harmless error. We
agree. Said argues that admission of the June 5 statements
was not harmless, because he made statements to the effect
that he was upset that law enforcement had intercepted the
letter he wrote to his sister. He asserts the State used the let-
ter and Said’s sensitivity to the interception of the letter as
an integral part of its closing argument. But we agree with
the State’s argument that Said’s statements that he was upset
the police found the letter was “inconsequential” in light of
the fact that the letter itself was admissible. Brief for appellee
at 33. Viewed in the context of the entire record and properly
admitted evidence, we determine the verdict was surely unat-
tributable to any error in admitting statements from the June
5 interview.
District Court Did Not Err When It Overruled
Motion to Suppress Evidence From
Search of Said’s Cell Phone.
Said next claims that the court erred when it admitted evi-
dence from the search of his cell phone. He contends that the
warrant authorizing the search and the application supporting
- 336 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
the warrant lacked both probable cause and particularity. We
conclude that the district court did not err when it overruled
the motion to suppress evidence obtained from the search.
The Fourth Amendment to the U.S. Constitution provides
that warrants may not be granted “but upon probable cause,
supported by Oath or affirmation, and particularly describ-
ing the place to be searched, and the persons or things to
be seized.” The Nebraska Constitution, under article I, § 7,
similarly provides that “no warrant shall issue but upon prob-
able cause, supported by oath or affirmation, and particularly
describing the place to be searched, and the person or thing to
be seized.”
[16-18] We first consider Said’s argument that probable
cause to support the search warrant was lacking. In reviewing
the strength of an affidavit submitted as a basis for finding
probable cause to issue a search warrant, an appellate court
applies a totality of the circumstances test. State v. Goynes, 303
Neb. 129, 927 N.W.2d 346 (2019). The question is whether,
under the totality of the circumstances illustrated by the affi-
davit, the issuing magistrate had a substantial basis for find-
ing that the affidavit established probable cause. Id. Probable
cause sufficient to justify issuance of a search warrant means
a fair probability that contraband or evidence of a crime will
be found. Id. In evaluating the sufficiency of an affidavit used
to obtain a search warrant, an appellate court is restricted to
consideration of the information and circumstances contained
within the four corners of the affidavit, and evidence which
emerges after the warrant is issued has no bearing on whether
the warrant was validly issued. Id.
Said contends that the affidavit submitted by Sloan did
not assert adequate facts to show that evidence related to
the investigation would be found on Said’s cell phone. He
maintains instead that the affidavit contained only generalized
assertions to the effect that “‘persons who commit crimes use
cell phones.’” He similarly maintains that the district court’s
reasoning for finding probable cause was that generally, cell
- 337 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
phone data can often lead to evidence, and asserts that such
reasoning was erroneous.
Contrary to Said’s characterization of the affidavit, the
record shows that in addition to statements setting forth
the officer’s general knowledge of how cell phones may be
used by a person who is committing or has committed a crime
and how evidence of the crime may be found on a cell phone,
the affidavit also sets forth specific information regarding the
officer’s investigation of this case and Said’s involvement in
the altercation with Khamis. This information included allega-
tions that Said had communicated with others, including his
sister and Nuri, and that he sought information regarding the
assault of Khamis and the police investigation of the assault.
These actions could establish that Said was interested in
learning about the police investigation of the assault, and the
court could infer that if Said was looking for such informa-
tion from other people, he likely also used his cell phone to
search the internet for such information. In the affidavit, the
officer listed the specific types of evidence he was seeking to
find on the cell phone. The listing of items included various
references that made clear the officer was seeking information
regarding the relationship of Said and Khamis and commu-
nications regarding an altercation between the two on April
12, 2017.
We conclude the warrant was supported by probable cause.
The affidavit, including allegations of evidence such as the
video depicting the altercation between Said and Khamis,
gave the officer reason to suspect Said in the investigation of
the assault of Khamis. The affidavit also made clear that the
officer was seeking evidence related to that investigation and
that relevant evidence could be found on Said’s cell phone.
The court therefore did not err when it determined the affi-
davit established probable cause that evidence relevant to the
investigation of the assault of Khamis could be found on Said’s
cell phone.
- 338 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
[19] We next consider Said’s argument that the warrant
lacked particularity. In addition to the requirement of prob-
able cause, the Fourth Amendment and article I, § 7, contain
a particularity requirement that a warrant describe the place to
be searched and the persons or things to be seized. The par-
ticularity requirement for search warrants is distinct from, but
closely related to, the requirement that a warrant be supported
by probable cause. State v. Goynes, 303 Neb. 129, 927 N.W.2d
346 (2019). A purpose of the particularity requirement for a
search warrant is to prevent the issuance of warrants on loose,
vague, or doubtful bases of fact. Id.
[20] To satisfy the particularity requirement of the Fourth
Amendment, a warrant must be sufficiently definite to enable
the searching officer to identify the property authorized to be
seized. Id. The degree of specificity required depends on the
circumstances of the case and on the type of items involved.
Id. A search warrant may be sufficiently particular even though
it describes the items to be seized in broad or generic terms if
the description is as particular as the supporting evidence will
allow, but the broader the scope of a warrant, the stronger the
evidentiary showing must be to establish probable cause. Id.
As relevant to the instant case, a warrant for the search of the
contents of a cell phone must be sufficiently limited in scope to
allow a search of only that content that is related to the prob-
able cause that justifies the search. Id.
[21] The purpose of the particularity requirement as it
relates to warrants is to prevent general searches, and whether
a warrant is insufficiently particular depends upon the facts
and circumstances of each case. State v. Stelly, 304 Neb. 33,
932 N.W.2d 857 (2019). As a general rule, the description
must enable officers to ascertain and identify the items to be
seized with reasonable certainty and little chance of confusion
or uncertainty. Id.
With regard to particularity, Said’s argument focuses spe-
cifically on paragraph (i) of Sloan’s affidavit, which requests
a search of internet history “relat[ed] to the purchase or
- 339 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
manufacturing of re-encoded devices and/or the sale of the
proceeds of the transactions.” He notes that the request was
not to search for internet history evidencing the crime being
investigated and as a result merely served to request a general
license to search the internet history. Said also argues that the
request and the warrant issued thereon are overbroad because
they allowed a search of internet history without limiting the
search to evidence related to the homicide investigation. Said
argues this was similar to the “‘any information’” warrant that
we found to be insufficiently particular in State v. Henderson,
289 Neb. 271, 854 N.W.2d 616 (2014). See brief for appellant
at 37.
[22] We conclude the warrant was sufficiently particular.
The record shows that the reference to a different crime in
paragraph (i) of the affidavit was clearly an inadvertent error
that was carried over to this warrant from a form in a prior
matter. An inadvertent defect in a search warrant may be cured
by reference to the affidavit used to obtain the warrant if the
affidavit is incorporated in the warrant or referred to in the
warrant and the affidavit accompanies the warrant. State v.
Stelly, supra. In this case, the affidavit was referred to in the
warrant, and although it also contained the erroneous reference
to a different crime, the inadvertent defect was only one item
in a list of the types of evidence to be searched. The error is
apparent in context because other items in the list, as well as
the warrant and the affidavit read as a whole, make clear that
the evidence being sought in the search of the cell phone was
evidence related to the investigation of the assault of Khamis
and not the crime that was erroneously referenced.
We also find that the warrant was not overbroad. Although
the warrant listed various types of data that could be searched
for on the cell phone, it listed specific types of evidence,
and unlike the warrant in Henderson, it did not authorize a
search for “‘any information.’” See brief for appellant at 37.
We distinguished Henderson in State v. Goynes, 303 Neb.
129, 144, 927 N.W.2d 346, 357 (2019), in which we found a
- 340 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
warrant to be sufficiently particular because it identified that
it was a warrant for the investigation of a specific homicide
and because although it included an expansive list of types of
data that could be searched, it “did not contain such unquali-
fied language that would permit the search of the cell phone
for ‘“any other information.”’” In the list of types of data
that could be searched in this case, various items specified
data “relating to the relationship of Khamis and [Said] and
communication pertaining to the physical altercation occur-
ring on [April 12, 2017].” Although this specification was
not included as to each item, the warrant read as a whole was
clear that the search was limited to data that would provide
evidence relevant to the investigation of Said in connection
with the assault of Khamis.
Furthermore, as the State notes, there was no danger that
the officer executing the search warrant would not know the
target of the search was evidence related to the homicide inves-
tigation regarding Khamis, because the same officer prepared
the affidavit and conducted the search. We also note that the
evidence found and used in the trial was relevant to this crime
and that there is no indication any of the evidence found and
used in this trial was not relevant to the probable cause that
supported the warrant.
We determine that the warrant in this case was supported
by probable cause and was sufficiently particular. We there-
fore conclude the district court did not err when it overruled
Said’s motion to suppress evidence found in the search of the
cell phone.
District Court Did Not Abuse Its Discretion or Deprive
Said of Complete Defense When It Refused Evidence
Regarding Khamis’ Mental Health, Alcoholism,
and Use of Prescription Drugs.
Said next claims the court erred when it prohibited him
from presenting evidence regarding Khamis’ mental health
issues, his alcoholism, and his use of prescription drugs. He
- 341 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
asserts that such evidence was critical to his defense because
it was relevant to his defense that Khamis was the aggressor
and that Said therefore acted in self-defense; he also argues
the evidence was relevant to his alternate defense that Khamis’
death was caused by something other than a blow to the head
inflicted by Said. He further argues that he was deprived of
a fair trial when he was prohibited from presenting such evi-
dence. We determine that the court did not abuse its discretion
when it excluded the evidence based on its determinations
regarding relevance and that such rulings did not deprive Said
of his right to present a complete defense.
Said’s arguments focus on evidence regarding (1) Khamis’
history of alcoholism; (2) Khamis’ mental health history, which
included suicidal tendencies; and (3) the purposes, side effects,
and adverse reactions associated with prescription drugs that
were found on Khamis’ person or found in his system at the
autopsy. Said argues that such evidence was relevant to his
defenses that (1) Khamis was the first aggressor and Said acted
in self-defense and that (2) Khamis died from a cause unrelated
to the altercation between Said and Khamis.
[23] In view of Said’s assignments of error, we consider the
propriety of the evidentiary rulings and whether the rulings
deprived Said of the right to present a complete defense. We
have stated that whether rooted directly in the Due Process
Clause of the 14th Amendment or in the Compulsory Process
or Confrontation Clauses of the 6th Amendment, the fed-
eral Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense. State v. McCurry,
296 Neb. 40, 891 N.W.2d 663 (2017). However, the accused
does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under stan-
dard rules of evidence. Id.
[24,25] Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Neb. Evid. R. 401,
- 342 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
Neb. Rev. Stat. § 27-401 (Reissue 2016). Relevancy requires
only that the probative value be something more than noth-
ing. State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019). But,
“[e]vidence which is not relevant is not admissible.” Neb.
Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016). And,
“[a]lthough relevant, evidence may be excluded if its proba-
tive value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Neb. Evid. R. 403, Neb.
Rev. Stat. § 27-403 (Reissue 2016). Unfair prejudice means an
undue tendency to suggest a decision based on an improper
basis. State v. Stubbendieck, 302 Neb. 702, 924 N.W.2d
711 (2019).
We first address the court’s rulings in light of Said’s argu-
ment that each type of evidence noted above was relevant to
his defense of self-defense. Regarding evidence of Khamis’
alcoholism, the court ruled that the evidence was not relevant
and not admissible without a showing of a nexus between his
alcoholism and aggressive behavior at the time of his alterca-
tion with Said. The court similarly found that Khamis’ “prior
suicide attempt” and other mental health issues were not rele-
vant. The court also stated that to the extent evidence regarding
Khamis’ mental health history might have minimal probative
value regarding his behavior at the time of the altercation, such
probative value was substantially outweighed by the risk of
unfair prejudice.
Regarding the prescription drugs found on Khamis’ per-
son—Prozac and Olanzapine—the court found that there was
not a sufficient showing that either drug caused aggression.
The State further notes that Olanzapine was not found to be
in Khamis’ system and that therefore, there was no showing
Khamis was under its effect at the time of the altercation.
The drugs found in Khamis’ system in the toxicology screen-
ing were an “anticonvulsant and . . . an antidepressant.” The
antidepressant was presumably Prozac, and the court found
- 343 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
that although there was evidence that “hostility” and “agita-
tion” were shown to be side effects of Prozac, Said had not
established a nexus between Prozac and aggressive behavior.
The court’s ruling allowed Said to ask questions regarding the
effects of the anticonvulsant drug, Keppra, and Said did elicit
testimony that effects of Keppra include “aggression, agitation,
depression, and irritability.”
We determine that it was within the court’s discretion to
rule that without a showing of a nexus between the offered
evidence and Khamis’ behavior at the time of the altercation,
the evidence was not relevant to whether Khamis might have
been the aggressor and whether Said acted in self-defense.
Regarding whether exclusion of the evidence deprived Said
of a fair trial, as noted above, the right to present a complete
defense does not allow a defendant “an unfettered right to offer
testimony that is . . . otherwise inadmissible under standard
rules of evidence.” State v. McCurry, 296 Neb. 40, 66, 891
N.W.2d 663, 681 (2017). In further support of our understand-
ing that Said was not harmed by the district court’s ruling,
we also note that Said was able to present relevant evidence
in regard to self-defense, including asking a witness about
Khamis’ alcohol use at or around the time of the altercation,
and he was able to present evidence that aggression is a side
effect of Keppra, which was found in Khamis’ system. Using
this evidence, Said was able to argue in closing arguments
that the combination of alcohol and Keppra could have caused
Khamis to be aggressive in the altercation. And the jury was
instructed on Said’s theory of self-defense.
We next address the relevance of the evidence to Said’s
defense theory that Khamis may have died from a cause
unrelated to the altercation. Said did not appear to argue that
Khamis’ history of alcoholism or mental health contributed to
his death; instead, Said asserted that Khamis could have sus-
tained injuries in a fall that was caused by the effects of the
prescription drugs or the combination of the drugs and alcohol.
The State notes that although there was evidence Olanzapine
- 344 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
increased the risk of falls, Olanzapine—as mentioned ear-
lier—was not found in Khamis’ system at the autopsy. The
State also argues that neither Prozac nor Keppra was shown to
cause falls.
The court’s ruling focused on limiting evidence regarding
the reasons the drugs might be prescribed, which would be
indicative of Khamis’ mental health issues. But the court ruled
that Said could “inquire on cross-examination of whether
the medication led to [Khamis’] death, . . . or changed the
doctor’s opinion as to the cause of death,” and whether the
doctor “observed injuries consistent with seizures [or] a fall
related to seizures.” We conclude that the court’s limitation
of testimony regarding the purpose for which the drugs might
have been prescribed was within its discretion to determine
relevance and that the court did not abuse its discretion in so
ruling. We also conclude that Said was not deprived of the
right to present a complete defense as to the defense theory
that the cause of death might have been something other than
the injury inflicted by Said. The court’s rulings allowed Said
to ask whether the drugs that were in Khamis’ system led to
his death or whether the presence of the drugs changed the
doctor’s conclusion that his death was a result of the blunt
force trauma to Khamis’ head. We conclude that the court did
not abuse its discretion in its rulings regarding the relevance
of the offered evidence, and we further conclude that such
rulings did not deprive Said of his right to present a complete
defense as to either of the asserted defenses.
District Court Did Not Err and Did Not Deprive
Said of Right of Confrontation When It Refused
Cross-Examination on Issues It Determined
to Lack Probative Value.
Said next claims the court erred and violated his right of
confrontation when it denied him the opportunity to impeach
Nuri’s testimony with evidence of specific instances of Nuri’s
conduct and bias. Said argues that he should have been
- 345 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
allowed to impeach Nuri through cross-examination pursuant
to § 27-608(2) regarding alleged misrepresentations made by
Nuri on his Facebook page and regarding a pending charge
against Nuri to which he had pled but in connection with
which he had not yet been sentenced. We determine that the
court did not abuse its discretion and did not violate Said’s
right of confrontation when it disallowed cross-examination
on these topics.
Said argues that cross-examination on these topics should
have been allowed pursuant to § 27-608(2), which provides:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting his credibility, . . . may
not be proved by extrinsic evidence. They may, however,
in the discretion of the court, if probative of truthfulness
or untruthfulness be inquired into on cross-examination of
the witness . . . concerning his character for truthfulness
or untruthfulness . . . .
Said argues that Nuri’s testimony that Said confessed to Nuri
that he had struck Khamis with a metal pole was crucial to his
conviction and that therefore, it was critical to Said’s defense
to impeach Nuri’s testimony. He argues that Nuri’s “misrepre-
sentations . . . on his Facebook page” and his pending criminal
charge were both relevant to his truthfulness and that limiting
Said’s cross-examination of Nuri violated his right of confron-
tation. See brief for appellant at 47.
An accused’s constitutional right of confrontation is vio-
lated when either (1) he or she is absolutely prohibited
from engaging in otherwise appropriate cross-examination
designed to show a prototypical form of bias on the part of
the witness or (2) a reasonable jury would have received a sig-
nificantly different impression of the witness’ credibility had
counsel been permitted to pursue his or her proposed line of
cross-examination. State v. Swindle, 300 Neb. 734, 915 N.W.2d
795 (2018).
In reference to § 27-608(2), we note that Said was not
attempting to present extrinsic evidence of “[s]pecific
- 346 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
instances of conduct” and instead was seeking to cross-
examine Nuri on these topics. Therefore, the relevant portion
of § 27-608(2) is that which allows such cross-examination
“in the discretion of the court, if probative of truthful-
ness or untruthfulness.” The statute therefore commits to the
court’s discretion determinations of whether a line of cross-
examination is allowed as being probative of truthfulness
or untruthfulness. Regarding Nuri’s misrepresentations on
Facebook, we find it was reasonable and within the court’s
discretion to determine that these instances were not proba-
tive of the truthfulness or untruthfulness of Nuri’s testimony
in this case. Regarding Nuri’s pending criminal case, the
court reasonably determined that the charge was not relevant
to bias or a motivation to fabricate testimony, because Nuri
had entered a plea, he had done so without benefit of a plea
agreement, and Said made no offer of proof to show that
Nuri’s testimony in this case was an attempt to curry favor
with the State in connection with sentencing in that case. We
find no abuse of the discretion afforded to the court under
§ 27-608(2) in either of these rulings.
We also find no violation of Said’s right to confrontation.
Said was not completely prohibited from cross-examining
Nuri regarding his credibility, and such cross-examination
included Nuri’s admission that he had been convicted of a
crime of dishonesty. We do not think that testimony regard-
ing the misrepresentations on Facebook or the pending charge
would have given the jury a significantly different impression
of Nuri’s credibility.
District Court Did Not Err When It Allowed
Evidence That Results of Certain DNA
Tests Were Uninterpretable.
Said finally claims the court erred when on cross-examination
it allowed testimony by Porter regarding uninterpretable DNA
testing results that Said asserts were “inconclusive” and there-
fore irrelevant and unfairly prejudicial. Brief for appellant
- 347 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
at 48. We conclude that the court did not abuse its discre-
tion when it allowed the cross-examination.
[26] Said relies on State v. Johnson, 290 Neb. 862, 862
N.W.2d 757 (2015), in which we held that it was error to
admit evidence of inconclusive DNA testing results. We rea-
soned in Johnson that inconclusive results “are irrelevant
because they do not help the fact finder assess whether the
defendant is or is not the source of the sample,” and we
further reasoned that “because of the significance that jurors
will likely attach to DNA evidence, the value of inconclusive
testing results is substantially outweighed by the danger that
the evidence will mislead the jurors.” 290 Neb. at 883-84, 862
N.W.2d at 774.
The State concedes that the “uninterpretable” results in this
case are the functional equivalent of “inconclusive” results
under Johnson. Brief for appellee at 60. But the State dis-
tinguishes its introduction of the results in this case from
the facts in Johnson because it did not offer the evidence in
its case in chief. Instead, the State argues, it cross-examined
Porter regarding uninterpretable results in order to coun-
ter an ­impression created by Porter’s testimony presented
by Said. The State argues that the otherwise inadmissible
evidence regarding inconclusive DNA testing results became
relevant and admissible pursuant to the specific contradic-
tion doctrine.
[27] The specific contradiction doctrine is said to apply
when one party has introduced admissible evidence that cre-
ates a misleading advantage and the opponent is then allowed
to introduce previously suppressed or otherwise inadmissi-
ble evidence to counter the misleading advantage. State v.
Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016). It is not
enough that the opponent’s contradictory proffered evidence
is merely relevant; the initial evidence must have reason-
ably misled the fact finder in some way. Id. In Carpenter, we
stated that specific contradiction is one aspect of the “opening
the door” doctrine. “Opening the door” is a rule of expanded
- 348 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
relevancy which authorizes admitting evidence that would oth-
erwise be irrelevant in order to respond to (1) admissible evi-
dence which generates an issue or (2) inadmissible evidence
admitted by the court over objection. State v. Lierman, 305
Neb. 289, 940 N.W.2d 529 (2020).
In this case, Porter testified that she subjected several blood-
stains on Khamis’ clothing to DNA testing. Testing of some
of the stains excluded Said as a contributor, but the testing
of several other stains yielded results that Porter described as
uninterpretable. Said called Porter as a witness in his defense
and questioned her generally about the extent of the testing she
had done, and he questioned her specifically about the stains
for which testing had excluded Said as a contributor. On cross-
examination, the State elicited testimony that several other
stains yielded uninterpretable results, and the court allowed the
testimony over Said’s objections.
The holding in State v. Johnson, 290 Neb. 862, 862 N.W.2d
757 (2015), and the specific contradiction and “opening the
door” doctrines all derive from a court’s evidentiary determina-
tions of relevance and whether probative value is outweighed
by unfair prejudice. As such, determinations in this regard are
committed to the trial court’s discretion and we uphold such
determinations in the absence of an abuse of discretion. See
State v. Carpenter, supra.
We find no abuse of discretion by the district court in its
DNA-related rulings. The court could reasonably have deter-
mined that by questioning Porter generally about the scope
of her testing and then questioning her about the results of
only the samples that excluded him, Said may have cre-
ated a misleading impression that the testing of all samples
excluded him. The State elicited Porter’s otherwise inadmis-
sible testimony regarding the results that were uninterpret­
able, and the court reasonably could have determined that
such evidence had become relevant to counter the potential
misleading impression that all samples excluded Said. To the
extent there was a risk of unfair prejudice from testimony
- 349 -
Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. SAID
Cite as 306 Neb. 314
regarding inconclusive results as we recognized in Johnson,
the court reasonably could have determined that such concern
was adequately mitigated by its limiting instruction that the
evidence was “offered only to show what steps were taken”
and was “not to be considered . . . as evidence that anyone
contributed to that DNA sample.” We conclude that in this
context, the court’s admission of the testimony was not an
abuse of discretion.
CONCLUSION
Having rejected each of Said’s assignments of error, we
affirm Said’s convictions and sentences.
Affirmed.
Funke, J., participating on briefs.