STATE of Maine v. Ali Hussain ALMURSHIDY
1999 ME 97
Supreme Judicial Court of Maine
Decided June 25, 1999
732 A.2d 280
William Maselli (orally), Auburn, for the Defendant.
Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
CALKINS, J.
[¶1] Ali Almurshidy appeals from a judgment of conviction of gross sexual assault (Class A), unlawful sexual contact (Class C), and furnishing liquor to a minor (Class D) entered after a jury trial in the Superior Court (Cumberland County, Crowley, J.). On appeal, Almurshidy challenges the sufficiency of the evidence on the sexual assault counts and three evidentiary rulings. Because we agree with Almurshidy that his mug shot should not have been admitted in evidence, we vacate the judgment. Almurshidy also аppeals the judgment revoking his probation, which appeal we dismiss because he has not properly pursued it.
[¶2] The indictment against Almurshidy alleges that the offenses occurred on August 9, 1997, in Cumberland County. Specifically, he was charged with engaging in a sexual act with the named victim, by direct physical contact between his genitals and her genitals, and she submitted as a result of compulsion. See
[¶3] The jury would have been justified in finding the following facts: On the afternoon of August 9, 1997, in downtown Portland, Almurshidy saw the victim, a seventeen-year-old girl whom he had met the night before at a friend‘s apartment. The victim described herself at trial as a “street kid,” meaning a young person who is homeless, stays on the streets during the day and goes to a shelter at night. Almurshidy asked the victim if she wanted to get drunk again, and she said yes. She then accompanied Almurshidy and his friend Al-Shewaily in Almurshidy‘s car to Sebago. On the wаy Almurshidy stopped to buy beer. They stopped at a clearing in the woods in Sebago, and Al-Shewaily and the victim exited the car. Almurshidy left in the car. The victim began drinking from a can of beer, and Al-Shewaily asked her to have sex with him. He took a pink condom wrapper out of his pocket. The victim said no, and Al-Shewaily apologized, saying he would not ask her again.
[¶4] Almurshidy returned, and the two men conversed in a language the victim
[¶5] The victim pulled up her pants and ran to the nearest building where she asked to use the phone. Her request was denied, and she ran to a restaurant where a waitress saw that she was very distraught and frightened. The victim did not tell anyone at the restaurant what had happened to her. A restaurant employee called the sheriff‘s office, and a deputy arrived. He saw that she was crying, and he gave her a ride back to Portland, tо the shelter where she had been staying. She did not tell the deputy that she had been assaulted or raped. She told him she had been with two men who left her in the woods. Although she knew Almurshidy‘s name, she did not tell the deputy.
[¶6] At the shelter, staff members saw that she was nervous, timid and avoided people. She left the shelter and was found outside on the sidewalk curled up in a ball. Later when a staff member asked her if she had been raped, she nodded her head affirmatively. Staff members asked her not to shower, but she did so anyway. There was no medical or rаpe examination of the victim.
[¶7] Two days later the victim was interviewed by a sergeant from the sheriff‘s office. She showed the sergeant the location of the clearing in Sebago where he found a condom wrapper, beer cans and other items. The sergeant showed the victim an array of six photographs, each of a different male, and she identified Almurshidy as her assailant.
[¶8] A jury found Almurshidy guilty of gross sexual assault, unlawful sexual contact, and furnishing liquor to a minor.1 The trial court also found Almurshidy to have violated the terms of probation that had been imposed in 1996 on a conviction for criminal threatening with a dangerous weapon. The basis for the probation violation was the finding by the trial court that Almurshidy engaged in new criminal conduct, specifically these three offenses. See
[¶9] Almurshidy noticed an appeal of the probation violation, but he did not perfect the appeal. “In a probation revocation proceeding in the Superior Court, a person whose probation is revoked may not appeal as of right.”
I. SUFFICIENT EVIDENCE ON THE ISSUE OF COMPULSION
[¶10] The State charged that the victim submitted to Almurshidy as a result of
“Compulsion” means the use of physical force, a threat to use physical force or a combination thereof that makes a person unable to physically repel the actor or produces in that person a reasonable fear that death, serious bodily injury or kidnapping might be imminently inflicted upon that person or another human being.
“Compulsion” as defined in this paragraph places no duty on the victim to resist the actor.
Id.
[¶11] On the gross sexual assault, the victim testified that Almurshidy put her on the ground, got on top of her, and she was unable to repel him. Viewing the evidence in the light most favorable to the State, the jury rationally could have found that the victim submitted to the gross sexual assault as a result of compulsion. See State v. Reynolds, 604 A.2d 911, 913 (Me.1992) (victim‘s testimony that defendants held her down and she pushed them away and begged them to stop sufficient to establish compulsion).
[¶12] While the evidence of compulsion on the unlawful sexual contact is not as strong as the evidence on the gross sexual assault, the jury rationally could have found that the victim submitted to the contact as a result of compulsion. Thе victim testified that she was up against a tree while Almurshidy touched her genitals with his hand. She testified that she was scared and that Almurshidy touched her even though she asked him not to. He did not stop until she pushed him, and he let go of her for a second. She pulled up her pants and sat down on a rock. From the victim‘s testimony, the jury could have reasonably inferred that Almurshidy held her against the tree or pushed her against it while he fondled her and for a brief period of time she was unable to get away from him. Furthermore, the fact that she was unable to reрel him when he was on top of her shortly after the tree incident is probative of her inability to repel the unlawful sexual contact.
II. EVIDENCE OF THE PHOTO ARRAY
[¶13] The sergeant from the sheriff‘s department testified that he showed the victim an array of photographs from which she identified Almurshidy. The victim testified that she saw the photo array and picked Almurshidy‘s photo from it. The victim also made an in-court identification of Almurshidy. Although identification was not a contested issue, the State offered the photo array in evidence. Almurshidy objected on the grounds that identification had been already established and that the photos were unduly prejudicial because they were booking and arrest photos, but the photo array was admitted. The exhibit consists of six black and white photos, each of a different male facing forward. Each photo shows a height chart behind the head. The photos are clearly mug shots. The six photos are taped inside a manila folder with six holes cut in it.2
[¶14] In a similar case, we held it was an abuse of discretion to admit a photo array in evidence. See State v. Robbins, 666 A.2d 85, 87 (Me.1995). “The
[¶15] The photo array in this case fails the first two criteria of the test. As to the “why” part of the test, there was no demonstrablе need to introduce the array. Identification was not an issue at trial. The victim made an in-court identification based on her observation of Almurshidy on both August 8 and 9, and both she and the sergeant testified that she picked Almurshidy from the photo array. Almurshidy did not make an issue of identification. The record does not reveal any confusion, hesitation, or equivocation by the victim on the identification of Almurshidy. Contrary to the State‘s assertion at oral argument, the record does not reveal that Almurshidy‘s attorney tried to confuse the victim on cross-examination regarding the identification of Almurshidy.
[¶16] Regarding the “what” portion of the test, the photo of Almurshidy clearly shows a height chart behind him. Even though the additional booking information was concealed, the photo is what most of the public thinks of as a “mug shot.” It “tend[s] to inform the jury that the defendant may have a prior criminal record.” Robbins, 666 A.2d at 87.
[¶17] In addition to failing the three-part test, the admission of the photo array was an abuse of discretion under
[¶18] The State argues that the error was harmless. We held the erroneous admission of the photo array in Robbins to be harmless, but on the questionable basis that there was overwhelming evidence supporting the identification of the defеndant. See 666 A.2d at 88. That analysis was directly inconsistent with the expressed reason in Robbins for excluding a photo array: that is, a mug shot should be excluded because of what it implies about the defendant‘s character. See id. at 87.
[¶19] The proper question on harmless error is whether the photo‘s implication about Almurshidy‘s character might have affected the verdict. This is not a case in which a defendant‘s prior criminal record comes into evidence and, therefore, a mug shot does not tell the jurors something they did not learn from other evidence. The mug shot in this case was not merely cumulative evidence of Almurshidy‘s character because no other ev-
[¶20] This is not a case in which the evidence of the defendant‘s guilt is overwhelming. There were no other witnesses to the assault. No rape examination of the victim was done, and there is no medical evidence of vaginal trauma or physical evidence such as semen or hair. It is not highly probable that the erroneous admission of the mug shot did not affect the jury verdict. Because the trial court erred in admitting the mug shot, we vacate the judgment.
III. EVIDENCE OF PRIOR RAPES OF THE ALLEGED VICTIM
[¶21] Although we vacate the judgment of conviction because of the admission into evidence of the mug shot, we discuss two other evidentiary issues raised on appeal because of the likelihood that the issues will reappear on retrial. See State v. Murphy, 496 A.2d 623, 632-33 (1985) (examination of claims of trial error promotes judicial economy when issues are likely to recur at retrial even though judgment is vacated on other grounds).
[¶22] Almurshidy sought to introduce the testimony of a shelter staff member that the victim told her that shе had been raped three times previously. This disclosure was made by the victim to the staff member on August 8, the night before the victim accompanied Almurshidy to Sebago. On August 9, after the victim returned from Sebago, the staff member found her on the fire escape. The staff member asked the victim if everything was okay, and the victim said, “this was the fourth time.” The staff member, recalling their conversation of the previous day, asked the victim if she had been raped that night, and the victim nodded affirmatively. The trial court excluded the testimony of the prior rаpes and the testimony that it was the fourth time.
[¶23] Almurshidy argued during a hearing on his motion in limine that evidence of three prior rapes in a short period of time was “inherently incredible,” and the inference to be drawn from such testimony is that the victim could not be believed. The State argued that the testimony of three prior rapes is foreclosed by
[¶24] There is conflicting authority on whether Rulе 412 applies to prior nonconsensual sex, but the majority rule is that it applies. See 23 WRIGHT & GRAHAM, FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5384, at 545 n. 55 (1980 & Pamph.1999). That interpretation is bolstered by the comment to
[¶25] Evidence otherwise barred by Rule 412 may be admissible when it is a statement by the victim about past sexual conduct and is relevant as impeachment. See id. Imрeachment evidence of specific instances of the conduct of a witness is permitted by
IV. EVIDENCE OF INVOLVEMENT BY WITNESS IN BURGLARY AND THEFT
[¶26] During the cross-examination of the victim, Almurshidy‘s counsel requested the court‘s permission to ask the victim about her role in a burglary and theft of drugs from a veterinarian‘s office two months before the August 9 incident. Almurshidy‘s counsel properly alerted the court at sidebar to the question he was about to ask. Almurshidy had information that the victim had admitted her involvement in the burglary and theft to a caseworker. The State objected to the proposed questioning on several grounds, and the objection was sustained. Because we are vacating the judgment on other grounds, we find it unnecessary to determine whether the proposed question about the victim‘s involvement in a burglary and theft should have been allowed. Given the likelihood that this issue will be presented on retrial and for the guidance of counsel, we briefly discuss the State‘s objections to the question and the trial court‘s ruling.
[¶27] There is no merit to the Stаte‘s first objection which was that the proposed question could not be permitted because the victim was not charged or convicted of burglary and theft. The lack of a conviction makes
[¶28] The State also objected on the grounds that evidence of specific acts is not admissible unless evidence of reputation for truthfulness is admitted on the direct examination of the witnеss. The trial court agreed and sustained the objection on this basis. The plain wording of
[¶29] The State further objected to the question because the victim would have the right to claim her Fifth Amendment privilege if asked about the burglary and theft. On appeal the State also argues that Almurshidy‘s information about the victim‘s involvement in the burglary аnd theft was not sufficiently reliable. Both of these factors should be considered by a court in determining whether a witness can be questioned about prior specific acts.6
[¶30] Trial courts have wide discretion in determining whether the evidence sought to be admitted pursuant to
[¶31] A сourt should also consider factors similar to those in a Rule 403 analysis, such as undue delay, including the delay that might be caused by a voir dire of the witness in the absence of the jury.8 An-
[¶32] This is not an exhaustive list of factors to be analyzed by the trial court in considering whether a witness can be questioned about specific instances of conduct, but it is a list of thе factors raised by the arguments of counsel in this case. Upon retrial other factors may be raised. Here the trial court did not have the opportunity to analyze the factors because it relied upon the mistaken objection by the State. Because we have vacated the judgment, we need not reach the harmless error argument of the State on this issue.
The entry is:
Judgment of conviction vacated. Remanded to the Superior Court for further proceedings consistent with the opinion herein. Appeal of judgment of probation revocation dismissed.
WATHEN, C.J., with whom CLIFFORD, J. joins, dissents with an opinion.
WATHEN, C.J., with whom CLIFFORD, J., joins, dissenting.
[¶33] I must respectfully dissent. In my judgment, we neither adopted nor applied in State v. Robbins, 666 A.2d 85 (Me.1995) the three-part test used by the court in this case to determine the admissibility of a photo array. We simply observed in a footnote its use in another jurisdiction. See Robbins, 666 A.2d at 88 n. 7. Instead, we found that the court erred in admitting the photo array because it served no purpose. See id. at 88. In addition, we found in Robbins that the admission of the photo array was harmless error. See id.
[¶34] I would not adopt the three-part test. I would continue to leave the decision to the broad discretion of the trial court. See id. at 87. Further, I would find any error harmless in this case as well. The lines behind the defendant in the picture did not so clearly identify the picture as a “mug shot” to inform the jury that the defendant may have a prior criminal record. Even if jurors understand the significance of the lines, they are intelligent enough to assume that the photo was undoubtedly taken when the defendant was arrested on the pending charges.
SUSAN CALKINS
JUSTICE, SUPREME JUDICIAL COURT