Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs May 13, 2015
Appeal from the Criminal Court for Davidson County No. 2008-C-2274 Steve R. Dozier, Judge
Laylah V. Smith, Nashville, Tennessee, for the Appellant, Abbas Hasam Nejat.
Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Rachel Sobrero, Assistant District Attorney General, for the Appellee, State of Tennessee.
Robert L. Holloway, Jr., J., delivered the opinion of the Court, in which James Curwood Witt, Jr., and Robert H. Montgomery, Jr., JJ., joined.
ROBERT L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
The record reflects that the Petitioner, along with two other co-defendants, was indicted with one count of coercion of a witness and one count of retaliation for a past action. On direct appeal, this court summarized the facts presented at trial as follows:
This case resulted from [the Petitioner]'s making a threatening telephone call to a witness in a prior matter. At trial, Metropolitan Nashville Police Detective Lee Freeman testified that in late 2006, brothers Aso and Ako Nejat planned retaliation against Darien Coleman and Brian Woods, who had robbed them. See State v. Aso Hassan Nejad, No. M2009-00481-CCA-R3-CD, 2010 WL 3562015, at *1 (Tenn. Crim. App. at Nashville, Sept. 14, 2010), perm. to appeal denied, (Tenn. 2011). At Ako's instruction, Delsosh Ahmed called Coleman and Woods to lure them to Edwin Warner Park with the promise of a drug deal. Brushsa Salee was parked there as the "bait, " while Aso, Ako, and Nejee Benjuja waited in the tree line to shoot Coleman and Woods. However, before Coleman and Woods arrived, Officer Jim Spray patrolled the area and approached Salee. Salee, who was on probation and had a gun in the passenger seat of his car, quickly drove away. Officer Spray pursued in his vehicle. Salee wrecked his car and ran away; he was apprehended later that night. When Officer Spray stepped out of his car, he discovered numerous bullet holes in his vehicle.
Detective Freeman testified that after the perpetrators involved were apprehended, Ahmed agreed to testify against Ako and Aso. Detective Freeman said the trial began on Monday July 14, 2008, and lasted three days. At around 4:30 p.m. on Wednesday July 17, 2008, the jury found Ako guilty of conspiracy to commit first degree murder. Aso was found guilty of conspiracy to commit first degree murder and attempted second degree murder. Later that night, either Detective Mark Anderson or District Attorney General Rob McGuire informed Detective Freeman that Ahmed had received threatening telephone calls.
Delsosh Ahmed testified that he was originally from Iraq and that he had been in Nashville since 2003. He said that he was friendly with other members of the Kurdish community and that all members of the community knew each other. He had had frequent contact with [the Petitioner] and had spoken with him on the telephone. He said that he believed [the Petitioner] was the cousin of Ako and Aso.
[Mr.] Ahmed said that after the Edwin Warner Park incident, he was arrested and was appointed trial counsel. After negotiations, [Mr.] Ahmed agreed to testify against Ako and Aso. Following his testimony, Ahmed entered a guilty plea to conspiracy to facilitate aggravated robbery and received a five-year probationary sentence. [Mr.] Ahmed confirmed that his trial testimony mirrored the version of events related by Detective Freeman. Additionally, he testified that he left before the shooting because he got scared. [Mr.] Ahmed recalled that he testified the day before the verdict was returned and that nothing happened the night of his testimony.
The following day, July 17, 2008, [Mr.] Ahmed went to work at Azido's Tight Whips, which sold automobile accessories. That afternoon, he received three threatening telephone calls, one of which was made by [the Petitioner]. [Mr.] Ahmed said that when [the Petitioner] called, [the Petitioner] "told [me] that he was going to kill [me] because [I] snitched on [the Petitioner's] brother." [Mr.] Ahmed stated that although he could not remember the exact words used, he definitely recalled that his life was threatened and that the call scared him.
[Mr.] Ahmed said that after the calls, he telephoned the police and his attorney. Additionally, because he wore an ankle monitor as part of his probationary sentence, he called the "monitoring people" to obtain permission to go home early. After being granted permission to leave, [Mr.] Ahmed went home around 5:00 p.m. Thereafter, a policeman came to his home, and [Mr.] Ahmed told the officer about the threatening calls. [Mr.] Ahmed said that after the calls, he left Tennessee. He explained, "I wouldn't have left the state if it wasn't that serious."
On cross-examination, [Mr.] Ahmed acknowledged that he could not recall the order in which the threatening calls were received. However, he recalled that the telephone call from [the Petitioner] "was real threatening."
On redirect examination, [Mr.] Ahmed stated that he was not a member of the Kurdish Pride Gang but that [the Petitioner], Ako, and Aso were members. [Mr.] Ahmed acknowledged that a person did not have to be a member of the gang or be "affiliated" with the gang in order to "hang out" with the members. [Mr.] Ahmed said that at one time he stored [the Petitioner]'s telephone number in his cellular telephone and that he used to be familiar with the number. However, at the time of trial, he could not remember [the Petitioner]'s telephone number. He maintained that at the time of the threatening call, he recognized that the call was coming from [the Petitioner]'s ...