Judge: Johnson County detective violated Lawrence man’s Miranda rights after alleged police shooting, standoff
photo by: Sara Shepherd
A judge on Wednesday sided with a Lawrence defense attorney who claimed his client’s rights were violated and that his statements to detectives should not be used at trial.
Douglas County District Court Judge James McCabria granted Hatem Chahine’s motion to suppress any statements that his client made to detectives from Johnson County after the man had twice requested an attorney.
In part, the analysis came down to whether a question must end in a question mark.
The case involves Abdul Jalil K. Hussein, 35, who is charged with multiple high-level felonies that include attempted first-degree murder, aggravated burglary and battery and aggravated assault of a law enforcement officer.
The charges stem from a June 28, 2018, incident in which Hussein allegedly used an ax to chop through his mother’s front door while armed with a pistol, then drove back to his own home a few blocks away, where he allegedly exchanged gunfire with a Lawrence police officer.
photo by: Ashley Hocking
Officers transported Hussein to the Lawrence Police Department’s Investigations and Training Center, 4820 Bob Billings Parkway, around 1:55 a.m. Saturday, June 29.
Because the incident involved a Lawrence police officer, Johnson County law enforcement was called to investigate. Detectives Leslie Smith and Evan Comerio, of the Johnson County Sheriff’s Office, arrived to speak with Hussein around 5:55 a.m., or about four hours later.
Prosecutors played a video of Hussein’s interactions with law enforcement at the ITC during court Tuesday.
Smith then read Hussein his Miranda rights, asking Hussein to acknowledge aloud that he understood each one. When told he had the right to remain silent, Hussein nodded that he understood but the detective asked him to say out loud that he did.
Then Smith gave Hussein a form to read aloud to waive those rights. However, at that point, Hussein said he wanted an attorney.
After that point, the video shows that Hussein asks detectives a few questions — why they were called to talk with him for a Douglas County incident, where he would go next and so on. Smith explained, and Hussein indicated that he understood, that the detectives were investigating the incident to avoid bias. Smith then said he was there “just trying to get (Hussein’s) side of the story.”
At that point, Hussein does begin to speak a bit more about the incident and says potentially incriminating things, such as asserting his right to defend his property if he’s being shot at.
Chahine argued Wednesday that “we’re not in grammar school,” and he said it was clear that Smith’s open statement was intended to coerce Hussein into incriminating himself.
Assistant District Attorney Alice Walker said that just because a defendant invokes his right to an attorney doesn’t mean a detective must pick up and leave the room immediately.
Whether it ended in a question mark or not, Smith’s statement was the functional equivalent of a question, McCabria ruled. The judge said Hussein had “unequivocally, unambiguously” invoked his right to remain silent as well as his right to legal representation. He said the detectives should never have repeated that they were there to get his side of the story after that point, because they should have known that “that door had closed.”
McCabria said Smith did not scrupulously honor Hussein’s Miranda rights, and he granted Chahine’s motion to suppress all of Hussein’s statements to the Johnson County detectives.
After the hearing, Chahine told the Journal-World he was pleased with the outcome, and he believed it preserved his client’s rights in this case.
Prior bad acts
Assistant District Attorney Nicole Southall began Wednesday to present the prosecutors’ motion to allow evidence of Hussein’s prior bad acts to be admitted to trial.
Southall mentioned some alleged events from over the past few years that she said demonstrate a growing intent toward violence and aggression, such as messages threatening law enforcement and others, as well as some incidents involved in pending cases in the courts. She said Hussein didn’t just “snap and do something out of character,” but rather that he was building toward what this case alleges he did.
Among his concerns, Chahine argued that what Southall was describing were allegations that have not been proved; she responded that under the law by which the state seeks to allow the evidence, it doesn’t have to be proved.
Ultimately, McCabria said he would like to see a more specific selection of what the state would like to present at trial. He said some of the evidence could have a prejudicial effect on a jury that would outweigh its probative value, as well as the inverse.
The next motions hearing in the case is set for 9 a.m. Sept. 27.
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