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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 historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment protection 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/31/2020 12:09 AM CDT
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5. Trial: Rules of Evidence. A trial court exercises its discretion in determining 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 unreasonable 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 interrogation, the subject’s invocation of the right to counsel must be unambiguous 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 constitutional 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 
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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 magistrate 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 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.

19. Constitutional Law: Search Warrants. The Fourth Amendment to the 

U.S. Constitution and Neb. Const. art. I, § 7, require that a search warrant 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 
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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’ testimony with cross-examination regarding specific instances of 

conduct and bias, and (5) allowed evidence regarding DNA 

testing, which Said argued was inconclusive and therefore 
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irrelevant and unfairly prejudicial. We affirm Said’s convictions 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 significant 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 
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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 becoming 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 custodial 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 interrogations. After an evidentiary hearing, the district court granted in 

part and overruled in part Said’s motion to suppress the statements and the letter.
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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, interview 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 statements prior to the 21-minute mark were voluntary but that 

statements after that point should be suppressed.
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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 interviews of April 19 and 20, 2017. The district court rejected 

Said’s argument. The court reasoned that (1) the April 19 interview 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 statements 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 witness, 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 
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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 information 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 credibility 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 physical evidence were not material because there was no indication 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 
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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 communications 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 evidence 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 regarding 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 generally 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 
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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 presence, for an order preventing Said from asking questions about 

Khamis’ “history of . . . alcohol abuse . . . and any kind of psychiatric matters.” In opposition, Said argued that there was evidence 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 further 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 treatment 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 continued thereafter. Said was allowed to ask questions regarding the 

effects of the drugs Prozac, Olanzapine, and Keppra.
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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 substantially 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 aggressive 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 
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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 questioning, 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 admitted 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 criminal 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 analysis 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 certain specific stains. With regard to those specific stains, 

Porter testified that her analysis indicated that Khamis was 
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included as a potential major contributor and that Said was 

excluded. Testing of certain stains indicated a second contributor, and Porter testified that Said was excluded as the 

second contributor.

On cross-examination, the State questioned Porter regarding 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 testing 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 samples, 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 
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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 statements 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 specific instances of conduct and bias; and (5) allowed testimony 

by Porter regarding DNA testing that Said asserts was inconclusive 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 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 
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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. State 

v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).

[2] 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. 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 violate 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 admissibility. State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 

(2020). 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. Id.

[5-7] A trial court exercises its discretion in determining 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 admissibility 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).
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The determination of whether procedures afforded an individual 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 interview, 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 individual’s right to choose between speech and silence remains unfettered 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 
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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 person 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 sentenced 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 raising 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 without a lawyer and that both times, Said replied that he was not. 

Although it argues that asking the second time was a proper 
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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 concludes in its brief that “the district court erred when it admitted Said’s statements from the April 20th interview.” Brief for 

appellee at 28.

[11-13] Having conceded that the court erred when it admitted Said’s statements from the April 20, 2017, interview, we 

turn to the State’s further argument that the erroneous admission 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 unattributable 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 incriminate 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 contradicted 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 
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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 character 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 interview was in violation of his rights, the letter should also be 

inadmissible.
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[14] The fruit of the poisonous tree doctrine generally provides 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 information they obtained in the April 20 interview to discover the 

letter, and therefore, the police did not exploit any information 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 exploitation of the April 20 interview. The letter was not inadmissible 
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under the fruit of the poisonous tree doctrine, and therefore, 

the court did not err when it overruled Said’s motion to suppress 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 continuation 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 letter 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 unattributable 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 evidence from the search of his cell phone. He contends that the 

warrant authorizing the search and the application supporting 
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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 describing 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 probable 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 affidavit, the issuing magistrate had a substantial basis for finding 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 
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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 allegations 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 information 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 communications 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 affidavit established probable cause that evidence relevant to the 

investigation of the assault of Khamis could be found on Said’s 

cell phone.
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[19] We next consider Said’s argument that the warrant 

lacked particularity. In addition to the requirement of probable 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 particularity 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 probable 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 specifically on paragraph (i) of Sloan’s affidavit, which requests 

a search of internet history “relat[ed] to the purchase or 
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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 
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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 unqualified 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 occurring 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 investigation 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 therefore 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 
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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 evidence. 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 federal 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 standard 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, 
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Neb. Rev. Stat. § 27-401 (Reissue 2016). Relevancy requires 

only that the probative value be something more than nothing. 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 probative 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 argument 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 altercation with Said. The court similarly found that Khamis’ “prior 

suicide attempt” and other mental health issues were not relevant. 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’ person—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 screening were an “anticonvulsant and . . . an antidepressant.” The 

antidepressant was presumably Prozac, and the court found 
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that although there was evidence that “hostility” and “agitation” 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 understanding 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 sustained 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 
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increased the risk of falls, Olanzapine—as mentioned earlier—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 
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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 “misrepresentations . . . 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 confrontation. See brief for appellant at 47.

An accused’s constitutional right of confrontation is violated 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 significantly 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 
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instances of conduct” and instead was seeking to crossexamine 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 truthfulness or untruthfulness.” The statute therefore commits to the 

court’s discretion determinations of whether a line of crossexamination 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 probative 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 regarding 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 therefore irrelevant and unfairly prejudicial. Brief for appellant 
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at 48. We conclude that the court did not abuse its discretion 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 reasoned 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 distinguishes 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 counter 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 contradiction doctrine.

[27] The specific contradiction doctrine is said to apply 

when one party has introduced admissible evidence that creates a misleading advantage and the opponent is then allowed 

to introduce previously suppressed or otherwise inadmissible 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 reasonably 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 
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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. State v. Lierman, 305 

Neb. 289, 940 N.W.2d 529 (2020).

In this case, Porter testified that she subjected several bloodstains 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 crossexamination, 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 determinations 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 determined 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 created a misleading impression that the testing of all samples 

excluded him. The State elicited Porter’s otherwise inadmissible testimony regarding the results that were uninterpretable, 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 
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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.