Al-Fatah v. State
| Docket Number: | 2002-KA-00285-COA Linked Case(s): 2002-KA-00285-COA ; 2002-CT-00285-SCT ; 2002-CT-00285-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-15-2003 Opinion Author: Thomas, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Burglary of a dwelling & Aggravated assault with a deadly weapon - Sufficiency of evidence - Videotape - M.R.E. 404(b) - Amendment of indictment - Prior convictions - M.R.E. 609 - Prosecutorial misconduct - Ineffective assistance of counsel Judge(s) Concurring: King and Southwick, P.JJ., Bridges, Lee, Myers, Chandler and Griffis, JJ. Concurs in Result Only: McMillin, C.J., and Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 12-16-2001 Appealed from: Lowndes County Circuit Court Judge: Lee J. Howard Disposition: COUNT I - BURGLARY OF OCCUPIED DWELLING WITH A DEADLY WEAPON, SENTENCED TO SERVE A TERM OF TWENTY YEARS IN THE MDOC. COUNT II - AGGRAVATED ASSAULT WITH DEADLY WEAPON, SENTENCED TO SERVE A TERM OF TEN YEARS IN THE MDOC TO RUN CONCURRENTLY WITH COUNT I, AND PAY COURT COSTS. District Attorney: Forrest Allgood Case Number: 2000-122CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Bashir Al-Fatah a/k/a Fasaha Al-Fatha |
IMHOTEP ALKEBU-LAN
CHOKWE LUMUMBA |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JEAN SMITH VAUGHAN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Burglary of a dwelling & Aggravated assault with a deadly weapon - Sufficiency of evidence - Videotape - M.R.E. 404(b) - Amendment of indictment - Prior convictions - M.R.E. 609 - Prosecutorial misconduct - Ineffective assistance of counsel |
| Summary of the Facts: | Bashir Al-Fatah was convicted of burglary of a dwelling and aggravated assault with a deadly weapon and was sentenced to twenty years for the burglary conviction and ten years for the aggravated assault conviction with the sentences to run concurrently. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Al-Fatah argues that the evidence of guilt of aggravated assault was insufficient as a matter of law, because the victim testified that he did not know which weapon caused his injuries and he did not remember seeing Al-Fatah with the knife. The State put on proof that Al-Fatah acted with his father in entering the victim’s home and attacking the victim. The victim saw both weapons but could not say for certain which one injured his hand. The victim’s wife testified that she knew both of the intruders and that she saw some of the struggle between the men. It is for the jury to determine whether the weapons were deadly under the aggravated assault statute. The State showed that the victim was injured during a struggle with Al-Fatah and the evidence was sufficient that a reasonable and fair-minded juror could find Al-Fatah guilty. Issue 2: Videotape Al-Fatah argues that the judge erred in admitting a videotape of the search of his home, because it was cumulative since it showed various martial arts weapons which were also introduced into evidence. While evidence of other crimes, wrongs, or acts is not admissible under M.R.E. 404(b) to prove the character of a person in order to show that he acted in conformity therewith, it may be admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. While the video in this case was duplicative of other evidence that was admitted, its admission was harmless as its cumulative nature did not prejudice Al-Fatah. Issue 3: Amendment of indictment Al-Fatah argues that the court erred in allowing the State to amend the indictment to specify that the victim was injured by "a knife or sword" rather than simply a knife. An indictment may only be amended at trial if the amendment is immaterial to the merits of the case and the defense will not be prejudiced. Al-Fatah was not hampered in his defense of claiming that he was not at the victim’s home or that he was mistakenly identified by the victim. The amendment was one of form in clarifying the terms for the weapons used to cut the victim. Issue 4: Prior convictions Al-Fatah argues that the court erred in admitting evidence of the prior convictions of his only witness, who testified that he had previous convictions of burglary of a dwelling and receiving stolen property. In determining if prior convictions should be admitted under M.R.E. 609, the court should consider the impeachment value of the prior crime, the point in time of the conviction and the witness' subsequent history, the similarity between the past crime and the charged crime, the importance of the defendant's testimony, and the centrality of the credibility issue. The witness’s conviction was admissible to show that the witness was in jail and did not have personal knowledge of the relationship between Al-Fatah and the victim. The point in time of the conviction was 1993. The similarity of the crimes is not a factor because the witness was not the defendant. The witness’s testimony was directly opposite to all of the other evidence admitted at trial. If the witness to be impeached through the admission of prior convictions is not a party, any prejudice to that non-party witness is irrelevant as a non-party can suffer no prejudice. Even where the non-party witness being impeached is one party's primary or sole witness, evidence of a prior conviction of that witness must be admitted if the requirements of Rule 609(a) and (b) are met. Because the witness was not a party, the court was within its discretion in allowing the State to impeach his statements with his prior record. Issue 5: Prosecutorial misconduct Al-Fatah argues that the court erred in allowing prosecutorial misconduct which deprived him of a fair trial, because the prosecutor attempted to elicit testimony from a defense witness that he was in custody under indictment and that he held a grudge against the Lowndes County District Attorney's Office. The judge is in the best position to weigh the consequences of the objectionable argument, and unless serious and irreparable damage has been done, admonish the jury to disregard the improper comment. Here, the judge did just that. Issue 6: Ineffective assistance of counsel Al-Fatah argues that he received ineffective assistance of counsel, because his attorney failed to object to leading questions on direct examination by the State, failed to note the race of the jurors on the jury list for the record, and failed to challenge several jurors for cause. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Failing to note the race of the jurors on the jury list does not rise to the level of ineffective assistance of counsel. An attorney's actions during voir dire is a matter of trial strategy, which cannot be the basis for a claim of ineffective assistance of counsel unless counsel's tactics are shown to be so ill chosen that it permeates the entire trial with obvious unfairness. Al-Fatah has made no such showing. With regard to leading questions, the procedure used by one attorney is not to be judged by the hindsight and method another attorney might have used under similar circumstances. |
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