State v. Mahmoud

147 A.3d 833

2016 ME 135

State of Maine

v.Ali M. Mahmoud

Docket: And-15-147

Supreme Judicial Court of Maine.

Argued: March 1, 2016

Decided: August 16, 2016

Jamesa J. Drake, Esq. (orally), Drake Law, LLC, Auburn, for appellant Ali M. Mahmoud

Lisa Bogue, Asst. Dist. Atty., and Michael Dumas, Stud. Atty. (orally), Prosecutorial District III, Auburn, for appellee State of Maine

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

MEAD, J.

[¶ 1] Ali M. Mahmoud appeals from a judgment of conviction of one count of assault (Class D), 17–A M.R.S. § 207(1)(A) (2015), entered by the Superior Court (Androscoggin County, Warren, J. ) after a jury trial. On appeal, Mahmoud contends that the court committed prejudicial error by failing to give his proposed jury instructions on eyewitness identification. We affirm the judgment.

I. BACKGROUND

[¶ 2] Viewed in the light most favorable to the State, the record establishes the following facts. State v. Cote , 2015 ME 78, ¶ 2, 118 A.3d 805. On July 22, 2013, the victim, a tow-truck driver, and his friend were looking for illegally parked cars in Lewiston. Around 11 p.m., the victim began loading an illegally parked car onto his tow truck when the car's owner returned to the car and a verbal confrontation arose. Multiple people in the neighboring area gathered around, including Mahmoud. To assist with a language barrier between the victim and the car's owner, Mahmoud acted as a translator for about five minutes to facilitate a discussion about whether the “drop fee” would be reduced. After the confrontation began to escalate, the victim asked his friend to call 9-1-1. Mahmoud then attempted to punch the victim but missed, and the victim grabbed a six-foot-long metallic pole to defend himself, at which point Mahmoud walked away. The victim bent down to finish affixing the tow dolly to the vehicle when Mahmoud returned and kicked the victim in the face, fracturing his eye socket. The victim stood up and saw Mahmoud standing nearby “ready to fight.”

[¶ 3] Immediately thereafter, police approached the area and Mahmoud ran a short distance away. Several police officers arrived at the scene and spoke with the victim, who described Mahmoud as a tall, Somali man wearing an orange hat, a gray shirt, and gray shorts. The victim then pointed to Mahmoud, who at that time was standing outside a building a short distance away. Contemporaneous with the victim's identification, a bystander gave the same description of the suspect to a different officer and also gestured toward Mahmoud. As the officers approached Mahmoud, he started taking off running and ran out of sight into a nearby apartment building.

[¶ 4] Two officers gave chase, and upon entering the apartment building the officers heard someone upstairs say something to the effect of “[w]ho are you, I don't know you ... [g]et out of my apartment ... I'm not letting you in.” The police then encountered Mahmoud descending the stairs. Notably, Mahmoud was no longer wearing an orange hat and had some facial hair—an attribute that the victim and the bystander had not mentioned in describing the assailant. Mahmoud did, however, match the description in all other respects, and both police officers later identified Mahmoud as the same person that had run away from them into the apartment building. Mahmoud was arrested, and while being taken into custody spontaneously said to the officers, “I didn't punch him.”

[¶ 5] The officers escorted Mahmoud out of the apartment building to a police cruiser that was parked near the victim and his friend. As officers approached the cruiser with Mahmoud in custody, the victim and his friend each identified Mahmoud as the assailant. At trial the victim's friend testified that she identified Mahmoud after being asked by a police officer whether he was the assailant, but an officer testified to the contrary, saying, “I did not ask [the victim or his friend] if that was the subject. They both without being asked identified [Mahmoud] as the subject.” No identification procedures, such as a lineup, were conducted after the positive identifications that night.

II. PROCEDURAL HISTORY

[¶ 6] In August 2014, Mahmoud was charged by complaint with one count of refusing to submit to arrest (Class D), 17–A M.R.S. § 751–B(1)(B) (2015), and one count of assault (Class D), 17–A M.R.S. § 207(1)(A). The court held a jury trial on February 17—18, 2015. At no point either before or during the trial did Mahmoud seek to exclude his identification by any of the witnesses.

[¶ 7] At trial, Mahmoud's proposed jury instructions included, “You may consider the following in evaluating the accuracy of an eyewitness identification: risks of cross-racial identification, risks of identification under stress, at best, weak correlation between the witness's confidence and accuracy of the identification, [and] the influence of any suggestive identification circumstances.”

[¶ 8] The State opposed Mahmoud's proposed instructions, contending that jury instructions on eyewitness identification are improper as a matter of law based on State v. Lavoie , 561 A.2d 1021 (Me.1989), discussed infra , among other precedents. The court rejected the State's argument, reasoning that courts “generally seem to be evolving toward at least telling jurors they ought to consider carefully eye witness testimony and [listing] some of the factors that they might want to consider.” Although the court agreed to give an instruction on eyewitness identification, the court did not give Mahmoud's proposed instructions verbatim, stating,

[B]ut I'm not going to go as far as the [proposed] instruction for some of the reasons mentioned in Justice Alexander's commentary [see Alexander, Maine Jury Instruction Manual § 6-22A at 6-38—6-42 (2016 ed.) ] and for some other reasons, which is I don't think I should be mentioning to a jury ... studies that are not before the jury and are not subject to cross-examination and that I actually haven't conducted and can't vouch for their accuracy. I don't think I should be announcing as a matter of judicial notice that ... certain sociolog [ical] studies are correct or are worth considering.

[¶ 9] The court gave the following jury instruction, in pertinent part:

[Y]ou should carefully consider any testimony relating to eye witness identification. For instance, you should consider the following in determining the accuracy of any eye witness identification[:] whether the accuracy of an eye witness identification may be affected by the fact that the person identified is of a different race, which may make it more difficult to identify an individual, whether the accuracy of an eye witness identification may be affected by the circumstances under which it was made, how much weight, if any, you should give to the amount of certainty expressed by a witness given that there may not be a correlation between the reliability of an eye witness identification and the amount of certainty expressed by the witness in making that identification. It's up to you to consider those issues and evaluate whether those affect any eye witness identification.

The jury found Mahmoud not guilty of refusing to submit to arrest, but delivered a verdict of guilty on the charge of assault. The court sentenced Mahmoud to ninety days' imprisonment, with all but twenty days suspended, followed by one year of administrative release and a $300 fine. This appeal followed.

III. DISCUSSION

[¶ 10] “We review jury instructions as a whole for prejudicial error, and to ensure that they informed the jury correctly and fairly in all necessary respects of the governing law.” State v. Tucker , 2015 ME 68, ¶ 11, 117 A.3d 595 (quotation marks omitted). “We will vacate a judgment based on a denied request for a jury instruction if the appellant demonstrates that the requested instruction (1) stated the law correctly; (2) was generated by the evidence; (3) was not misleading or confusing;¹ and (4) was not sufficiently covered in the instructions the court gave.” State v. Hanaman , 2012 ME 40, ¶ 16, 38 A.3d 1278. Additionally, a “court's refusal to give the requested instruction must have been prejudicial to the requesting party.” Id.

A. Whether the Requested Instruction Stated the Law Correctly

[¶ 11] Pursuant to the first prong of the Hanaman analysis, the first question is whether Mahmoud's proposed jury instructions stated the law correctly. Id. The State contends that Mahmoud's proposed instructions stated the law incorrectly because, inter alia, jury instructions on eyewitness identifications would amount to a departure from precedent.

[¶ 12] We last considered the propriety of jury instructions on eyewitness identification in State v. Lavoie , 561 A.2d 1021 (Me.1989). In Lavoie, we concluded that jury instructions regarding eyewitness identification are improper as a matter of law because they have the effect of “singl[ing] out the testimony of an eyewitness for special scrutiny.” Id. at 1023 ; see State v. McDonough , 507 A.2d 573, 575–76 (Me.1986) (concluding that the trial court properly rejected the defendant's proposed jury instruction because it singled out testimony for “special scrutiny”).

[¶ 13] Over the course of the nearly thirty years since our holding in Lavoie, a significant body of scientific research has emerged concerning the mechanics of human memory and the reliability of eyewitness identifications generally.² These extensive scientific studies have provided new insights into the fallibility of eyewitness identifications, and as a result many state and federal courts now instruct jurors accordingly.³ In light of these scientific studies, some courts have expressed a preference for jury instructions rather than expert testimony addressing the eyewitness identification issue. For example, in United States v. Jones, the First Circuit concluded that “[t]he judge was fully entitled to conclude that this general information [pertaining to eyewitness reliability] could...