State v. Hussein

208 A.3d 752

STATE of Maine

v.Abdiaziz HUSSEIN

Docket: And-18-311

Supreme Judicial Court of Maine.

Argued: March 5, 2019

Decided: May 21, 2019

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Abdiaziz Hussein

Andrew S. Robinson, District Attorney, Michael B. Dumas, Asst. Dist. Atty., and Lisa R. Bogue, Asst. Dist. Atty. (orally), Prosecutorial District III, Lewiston, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

Majority: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

Dissent: ALEXANDER, J.

GORMAN, J.

[¶1] Abdiaziz Hussein appeals from judgments of conviction for failure to sign a criminal summons (Class E), 17-A M.R.S. § 15-A(1) (2018), refusing to submit to arrest by physical force (Class D), 17-A M.R.S. § 751-B(1)(B) (2018), and assault (Class D), 17-A M.R.S. § 207(1)(A) (2018), entered by the court (Androscoggin County, Lawrence, J. ) following a jury trial. Hussein argues that the trial court abused its discretion by excluding from evidence a cellphone video that showed some of the events that occurred during his arrest. We agree and, as a result, vacate the convictions and remand the case for a new trial.¹

I. BACKGROUND

[¶2] Viewed in the light most favorable to the jury's verdict, competent evidence in the record supports the following facts. See State v. Fahnley , 2015 ME 82, ¶ 2, 119 A.3d 727.

[¶3] On November 10, 2017, an officer with the Lewiston Police Department went to Hussein's apartment in Lewiston to serve him a criminal summons. After the officer was in the apartment, he told Hussein that he was issuing him a criminal summons and that Hussein "ha[d] to sign the summons." The officer emphasized, however, that the summons simply established a court date for Hussein and that signing it was not an admission of guilt. After Hussein repeatedly refused to sign the summons, the officer said, "Okay, you don't want to sign the summons, you're under arrest."²

[¶4] Hussein then attempted to "run," but the officer "grabbed ahold of" Hussein and twisted his arm into what the officer described as an "arm bar." Despite the arm bar, Hussein punched the officer in the face. As the officer persisted in attempting to arrest Hussein, he tried to pin Hussein to the floor of the apartment, but Hussein kept "flailing and fighting violently." At some point during these events, the officer noticed that Hussein's sister was filming the arrest on her cellphone. The officer called for backup as he attempted to subdue Hussein. Shortly thereafter, additional officers arrived and took Hussein into custody.

[¶5] The State charged Hussein with refusing to sign a criminal summons (Class E), 17-A M.R.S. § 15-A(1), refusing to submit to arrest by physical force (Class D), 17-A M.R.S. § 751-B(1)(B), and assault (Class D), 17-A M.R.S. § 207(1)(A) ; Hussein pleaded not guilty to all charges. During pretrial discovery, Hussein produced his sister's cellphone video of the arrest.³

[¶6] On July 19, 2018, two weeks after a jury had been selected, and one day before the trial was to start,⁴ the State filed a motion in limine requesting that it be permitted to "inspect the entire recording." The State requested that, absent a showing by Hussein that the video captured the entire incident, the video "be excluded from the trial" because it would be "misleading for the jury to see a video capturing only the incident after the warnings were given to the defendant regarding his failure to sign the criminal summons, after the defendant attempted to flee the room, and after the assault of [the arresting officer]." The court viewed the video with counsel for the State and Hussein and subsequently denied the State's motion—all on the same day it was filed.

[¶7] On the next day, July 20, 2018, the court held a one-day jury trial. The State's case relied exclusively on the testimony of the arresting officer and one of the other officers who had responded to the arresting officer's request for assistance. At trial, the arresting officer testified that he had seen Hussein's sister record a portion of the arrest on her cellphone. Hussein's counsel then attempted to authenticate the video through the officer. Although the officer acknowledged that the recording fairly and accurately represented a portion of his interaction with Hussein, the court excluded the video, reasoning, "With respect to the attempt to authenticate this particular piece of evidence through [the officer], given his testimony as to his belief that it is not complete, [the] [c]ourt will sustain the State's objection."⁵ Hussein asked the court to reconsider its ruling, but the court again sustained the State's objection.

[¶8] Hussein's counsel then told the court that he wanted to use the video to impeach the arresting officer's testimony. The court sent the jury out of the courtroom and had the arresting officer review the video again. The officer again testified that the video fairly and accurately represented what happened during the period of time captured on the video. Hussein's attorney asked the arresting officer a series of questions about the video, and then indicated that he was ready to have the jury brought back. When the jury returned, Hussein's counsel continued in his cross-examination of the arresting officer, and, although the jury had not seen the video, what the video showed was discussed in great detail in front of the jury:

Q: Corporal ..., in the full two minutes leading up to the moment that the other officers secure Mr. Abdiaziz—excuse me, Mr. Hussein in handcuffs, he did not—he, in fact, did not punch at you, right?

A: He could not.

Q: But the specific answer to the question is he did not punch at you, correct?

A: Yes. He could not.

Q: And he, at most, had his right leg or his right knee drawn up, correct?

A: Yes, he had his right leg, yup, shoved into my side.

Q: And, in fact, he did not kick you, did he?

A: He's trying to push me off with his leg, yeah. Be more specific with me 'cause you're not letting—you're asking me did he kick me. I—once I had him pinned and I got my body weight on him, he's got his leg up into my ribs, and I'm keeping my body weight on there so he doesn't drive me because he's trying to fight free. He's not—he's not complying. He's still fighting.

If you looked at what your question is ... I can't honestly answer your question with a yes or no because he was still fighting on the floor. He's got his leg up. It's in my ribs and I've got him pinned with my body weight. If I was up, yeah, he probably could have kneed me with his knees.

Q: But he didn't?

A: He couldn't because I had my body weight on him. Yes. Yes, he did not knee me is what you're asking because I did not allow him to do that.

Q: So he didn't strike you with his knee, and he didn't kick you with his feet, did he?

A: In the last portion of the video, no, sir.

Q: The two minutes up to the time that the other officers secured him, correct?

A: Yes.

Q: Beyond that, he has a pen in his left hand that whole two minutes, right?

A: No. I think that come from the trash can and th[e]n went flying over. I just see the video the other day. I just viewed this and he has a pen in his hand laying on the floor. Where it came from I don't know.

Q: But a moment ago I asked you he has a pen in his hand this whole time, right, and you said yes?

A: Well, you're saying the whole time. What is the whole time?

Q: The two minutes.

A: For this video, yes.

Q: He has a pen in his hand?

A: Well, I—I want to disagree with you because what I see on the video is once I've got him pinned on the floor—and we can see a portion of the video, not the whole two minutes—then you see a pen in his hand because there was trash on the floor.

Q: Are you now changing your testimony from a moment ago where you said he did have a pen in his hand?

A: No, I'm not. I'm answering your question. You asked, Did he have a pen in his hand for the whole two minutes? I don't know. I can't answer that. I only see the last portion of this.

....Q: Is it true that in the two minutes leading up to the time the other officers secure Mr. Hussein he has a pen in his left hand?

A: He has a pen in his hand at the very end of your video, yes, sir.

Q: And a few moments ago I asked you to confirm that he has a pen in his hand, right? I asked you that question?

A: If I understood your question right, you stated it for the entire video, for the two-minute video he had a pen in his hand; and I answered no to that because all I see a pen in his hand is at the very last. I don't know how much time he has a pen in his hand. That's the last part of it. The very first part of it when I was fighting with him he did not have a pen in his hand, so I don't know how to answer you.

Q: Did you see him pick a pen up from the trash?

A: I really can't tell you that. I know the trash can went flying over and debris spewed all over the floor because it was—it was in front of us. It may have been an opportunity for him to pick up a pen, but he did not have a pen when I first grabbed ahold of him. He did not have a pen in his hand until we went to the floor.

....

Q: In the final two minutes leading up to the moment when the other officers put handcuffs on Abdiaziz, he has his left hand like this, right?

A: His left hand and he's on his shoulder. As we're trying to get him on the ground, he is laying on his left shoulder with this arm pinned down with a pen in his hand and I have his other arm like this and I have my body weight on him. That's the last part of the video that I see that he has a pen and it was probably—may have been my pen dropped in the altercation. I don't know that. But he's pinned on the ground like this, and he's got a pen in his left hand, yes. He's laying on the ground and I've got him pinned and I see the video, he actually had control of a writing utensil, whether it was a pencil or a pen.

Q: And, specifically, he's got it with his thumb holding it, right, like this? You can

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