Ako Hassan Nejad v. State of Tennessee

Citation: Not availableDocket: M2013-00223-CCA-R3-PC

Court: Court of Criminal Appeals of Tennessee; October 14, 2013; Tennessee; State Appellate Court

Original Court Document: View Document

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Ako Hassan Nejad appeals the denial of his post-conviction relief petition by the Davidson County Criminal Court, which upheld his 2008 convictions for conspiracy to commit first-degree murder and attempted second-degree murder, resulting in a thirty-seven-year sentence. Nejad argues ineffective assistance of counsel, citing failure to call a key witness and to present a defense. The court affirms the trial court's judgment. 

The facts of the case detail that on August 4, 2006, Nejad and co-defendants gathered to retaliate against individuals who had robbed Nejad during a drug deal. They lured the intended victims to a parking lot under the pretense of arranging another drug transaction, with Nejad instructing conspirators on their roles in the ambush. The plan was interrupted by a Metro park ranger's intervention, leading to gunfire and the eventual apprehension of one conspirator. Law enforcement linked the group to the crime through vehicle identification and forensic evidence. 

The court's decision and background facts are documented in the opinion delivered by Judge Joseph M. Tipton, with concurrence from Judges Alan E. Glenn and Jeffrey S. Bivins.

The Petitioner asserts ineffective assistance of counsel in his post-conviction relief petition, claiming that his attorney failed to subpoena key witnesses and did not adequately investigate or prepare for trial. He testified that he only met with his counsel three times in the thirteen months leading up to the trial and had no recollection of phone conversations with him, although his family had spoken with counsel. During their initial meetings, the counsel primarily checked on the Petitioner’s well-being and provided a brief overview of the charges without discussing potential sentencing outcomes. It was only the Friday before the trial that the counsel informed the Petitioner about facing fifteen to twenty-five years in prison and that the State had offered a plea deal of sixteen years, which the Petitioner rejected. 

He indicated that counsel did not inquire about potential witnesses or trial preparation until their last meeting before the trial and did not hire an investigator prior to the trial. Post-trial, the Petitioner requested counsel to hire an investigator, which his family later did. He explained that he had communicated to counsel his lack of intent to kill and the actual plan to rob individuals who had taken money from his brother, expecting counsel to present this robbery defense to the jury. The Petitioner identified potential witnesses, including Drau Kokoye and Bushra Salih, who could support his version of events. He recounted a conversation with Mr. Salih, who admitted to fleeing from the police and expressed regret about their actions. 

At trial, Mr. Salih provided testimony that the Petitioner contends was untruthful, and he believed that co-conspirators Kokoye, Ahmed, and Yahya could have refuted Salih’s account. Despite being aware of Salih’s forthcoming testimony against him, counsel did not follow up on the information regarding Mr. Kokoye or subpoena him. The Petitioner felt that counsel had mismanaged the case, failing to utilize available witness testimony and to effectively argue his defense concerning the recovery of his brother's money.

Counsel directed the jury to assess the facts independently and did not assert that the Petitioner intended to rob the men who had robbed his brother. The Petitioner expressed frustration over a lack of communication with counsel, leading to assumptions about the defense strategy, particularly regarding the robbery theory. He indicated that crucial discussions about potential witnesses occurred only shortly before the trial. The Petitioner and counsel had conflicts over witness questions, with counsel insisting on managing the case independently. The Petitioner felt compelled to testify to present his defense as counsel did not subpoena witnesses, yet he was advised against testifying due to his criminal history, which led him to believe the trial was effectively over.

He raised concerns about the absence of a defense and urged counsel to investigate the crime scene, which he claimed was neglected. The Petitioner disputed Officer Spray’s testimony regarding previous encounters and asserted he had not conversed with the officer, despite receiving a gambling citation from a different officer. He identified potential witnesses who could attest to his absence during the gambling sting. After his conviction, he criticized counsel for filing a late motion for a new trial despite his requests for timely action, including a letter outlining issues to address.

During sentencing, he wanted to testify about his feelings and maintain his innocence, describing the incident as a failed plan. On cross-examination, he noted that a witness, Mr. Kokoye, could have contradicted Mr. Salih's statements regarding the incident. The Petitioner argued against the State's assertion that the shooter could see the officer's face, claiming logistical inconsistencies in the prosecution's narrative. He maintained he was unarmed during the incident and sought counsel's investigation to demonstrate that his actions were an attempt to recover stolen money rather than an attempt to kill.

The individual admitted to orchestrating a drug deal with two men, intending to recover money taken from his brother by selling the drugs and was willing to use force if necessary. He expressed a desire for his defense to acknowledge guilt for a serious crime involving violence but to refute the specific charges against him. This defense would involve admitting he misled police about not being at the park, asserting that he only intended to rob and not kill anyone.

During court proceedings, he revealed that a witness, Mr. Salih, had testified in detail about a plan to "take out" the men, information he was aware of prior to trial. He believed that his counsel should have addressed Salih's statements to the police, which suggested their intent to rob, although these recordings were deemed inadmissible under the Rules of Evidence.

Additionally, he noted that names of potential witnesses, Mr. Kokoye and Mr. Nashbir, were submitted to the court, but their specific testimonies were unknown to the counsel. Mr. Kokoye testified that he was willing to help the Petitioner but was not contacted by the defense team. He clarified that during a phone call, Mr. Salih described their presence in the park as an attempt to recover money, not as a plan to commit murder or robbery. Kokoye's testimony indicated he did not believe the Petitioner and Salih were involved in any intent to kill and emphasized that the conversation revolved around recovering the money rather than any violent act. He also stated that the Petitioner did not admit to being at the park during their conversation.

Mr. Kokoye testified that he heard Mr. Salih claim, in the Petitioner’s presence, that he was in the park to recover money. Kokoye confirmed that the Petitioner did not refute Salih's statements and implied acknowledgment of his presence in the park by not responding. Karzan Abubakir and Shivan Galnasky both testified regarding a gambling sting on September 5, 2005, with Galnasky stating the Petitioner was not present during the incident. The Petitioner’s counsel, licensed since 1996 and focused on criminal defense, was retained by the Petitioner’s family. He met with the Petitioner multiple times but chose not to call Kokoye as a witness, believing his testimony would contradict the defense strategy and involve statements against the Petitioner’s interests. Counsel identified two potential defenses: that the Petitioner was not in the park or that he had lied to police about committing a violent crime. The latter required the Petitioner to testify, which did not happen. Counsel investigated the scene extensively and cross-examined key witnesses but acknowledged that the defense presented no evidence to counter the State’s claims. He also noted that presenting a theory of aggravated robbery could lead to greater legal repercussions due to the Petitioner’s prior felony conviction and potential federal prosecution, despite lacking specific knowledge of federal interest in the case.

Counsel did not interview key witnesses Mr. Galnasky and Mr. Abubakir, despite being aware of one. He failed to investigate a gambling sting unrelated to the Petitioner, noting that the Petitioner’s gambling citation was dismissed and considered a minor infraction. Counsel used cross-examination to challenge Officer Spray's credibility and indicated that another officer issued the citation. He questioned Mr. Salih's credibility due to his legal issues and acknowledged that Mr. Kokoye's testimony could have countered Mr. Salih's and supported the Petitioner’s defense. Counsel stated that calling Mr. Kokoye would have allowed for the impeachment of Mr. Salih but would also reveal the Petitioner’s link to a conspiracy. He believed that had the Petitioner not been convicted, the federal government might have pursued prosecution. During discussions with the Petitioner about testifying, counsel explained the risks involved. He did not file a motion for newly discovered evidence but included related discussions in the motion for a new trial. At the post-conviction hearing, not all issues from the Petitioner’s petition were substantiated with evidence. The trial court found that the Petitioner failed to present proof for all claims and focused only on claims supported by testimony. The Petitioner argued that counsel did not subpoena four witnesses who could have provided exculpatory evidence. The court noted that three witnesses were called, including Mr. Kokoye, while the claims regarding the other three witnesses were waived since they did not testify. The court upheld counsel's strategic decision not to call Mr. Kokoye, concluding that his testimony would not have altered the trial's outcome. The court also determined that the testimonies of Mr. Abukir and Mr. Galmasy were irrelevant to the case. The Petitioner contended that the trial court erred in denying post-conviction relief due to ineffective assistance of counsel, particularly regarding failing to subpoena Mr. Kokoye and present a viable defense. The State maintained that the denial of post-conviction relief was proper, emphasizing that the burden lies with the petitioner to prove claims by clear and convincing evidence.

On appeal, the court is bound by the trial court's findings of fact unless the evidence strongly contradicts those findings. The conclusions regarding counsel's performance are reviewed de novo, without any presumption of correctness. Post-conviction relief can only be granted if a constitutional violation renders a conviction or sentence void or voidable. Under the Sixth Amendment, the burden is on the Petitioner to demonstrate both the deficiency of counsel's performance and its prejudicial impact, as established in Strickland v. Washington. This requires showing that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability the outcome would have been different but for that deficient performance.

In the case of ineffective assistance claims, trial strategy decisions do not typically warrant post-conviction relief. The trial court found that the decision not to call witness Drau Kokoye was strategic, as his testimony could have linked the Petitioner to the incident. Although Kokoye’s testimony could have impeached another witness, it would also have posed risks for the defense. The court affirmed that the outcome would not have changed had Kokoye testified.

Regarding the Petitioner’s argument about counsel failing to present a valid defense, the attorney opted to argue the Petitioner was not present at the scene, having discussed this strategy with the Petitioner. Counsel believed that presenting evidence would compel the Petitioner to either admit to lying to the police or maintain his alibi, which could lead to a more severe interpretation of his actions. Counsel provided reasonable justifications for his strategic choices, and the failure of that strategy does not constitute ineffective assistance. Given these considerations, the court affirmed the trial court's judgment.