State v. Ali Almurshidy
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 97
Docket: 	Cum-98-433
Argued:	May 4, 1999
Decided:	June 25, 1999


Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Majority:RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Dissent:WATHEN, C.J., and CLIFFORD, J.

STATE OF MAINE

v.

ALI HUSSAIN ALMURSHIDY

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
appeals 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 17-A M.R.S.A. § 253(1)(A) (Supp. 1998).  He was
also charged with intentionally subjecting the victim to sexual contact to
which she submitted as a result of compulsion.  See 17-A M.R.S.A.
§ 255(1)(H) (Supp. 1998).  He was further charged with knowingly
furnishing liquor to the victim, who was a minor.  See 28-A M.R.S.A.
§ 208(A) (Supp. 1998).
	[¶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
way 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 could not understand.  Al-Shewaily took a walk in the woods,
leaving Almurshidy alone with the victim.  Almurshidy told the victim that
he wanted to marry her, and he repeatedly asked her to have sex with him. 
She repeatedly refused.  While she was up against a tree, and her pants were
down, Almurshidy touched her genitals with his hand.  She testified that she
did not remember who pulled her pants down.  She told Almurshidy to stop
and pushed him away.  She pulled her pants up, sat on a rock and drank
more beer.  Almurshidy exposed his penis, and she briefly touched it.  He
put her down on the ground and pulled her pants off.  Although she told him
not to, he got on top of her and touched her vagina with his penis.  She
testified that "it hurt like hell."  She told him to get off and unsuccessfully
tried to push him off.  She poured beer on him, and he got up.  
	[¶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, to 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 rape
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 17-A M.R.S.A. § 1204(1) (Supp. 1998).  The Superior Court
revoked his probation, and he was ordered to serve the time remaining on
his sentence.
	[¶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."  17-A M.R.S.A. § 1207(2) (Supp. 1998).  The manner and conditions
of the appeal are provided by rule.  See id.  Almurshidy did not follow the
procedures set forth in M.R. Crim. P. 37F, and no certificate of probable
cause was issued for the appeal.  Therefore, the appeal of the probation
revocation must be dismissed.  See M.R. Crim. P. 37F(j)(2).

I.  SUFFICIENT EVIDENCE ON THE ISSUE OF COMPULSION

	[¶10]  The State charged that the victim submitted to Almurshidy as a
result of compulsion in both the unlawful sexual contact, 17-A M.R.S.A.
§ 255(1)(H), and gross sexual assault, id. § 253(1)(A).  

"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. § 251(E) (Supp. 1998).
	[¶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.  The 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 repel 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 fundamental reason why a 'mug shot type photograph' of a defendant
may be inadmissible is that it tends to inform the jury that the defendant
may have a prior criminal record, thereby reflecting unfavorably on [his]
character."  Id. (citing D.H. White, Annotation, Admissibility, and Prejudicial
Effect of Admission, of "Mug Shot," "Rogues' Gallery" Photograph, or
Photograph Taken in Prison, of Defendant in Criminal Trial, 30 A.L.R.3d 908
(1990 & Supp. 1995)).  In Robbins we cited a three-part test for the
admissibility of such photos: "(1) the prosecution must show a demonstrable
need to introduce the photograph; (2) the photograph, if shown to the jury,
must not imply that the defendant has a prior criminal record; and (3) the
introduction at trial must not draw particular attention to the source or
implications of the photograph." Id. at 88 n.7 (quoting Stephenson v. State,
606 A.2d 740, 741-41 (Del. 1992)).  The United States Court of Appeals for
the First Circuit, which refers to the test as a "why, what and how" test,
adopted the same test "because there is grave risk of prejudice in the
introduction of photographs such as 'mugshots' . . . ." United States v.
Carrillo-Figueroa, 34 F.3d 33, 40 (1st Cir. 1994).  
	[¶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 demonstrable 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 M.R. Evid. 403.  Its negligible
probative value was substantially outweighed by the danger of unfair
prejudice, that is, "an undue tendency to move the tribunal to decide on an
improper basis, commonly, though not always, an emotional one."  State v.
Thurlow, 1998 ME 139, ¶ 12, 712 A.2d 518, 522 (Lipez, J., concurring)
(quoting State v. Hurd, 360 A.2d 525, 527 n.5 (Me. 1976)).  The photo had
an undue tendency to move the jury to convict Almurshidy on the improper
basis of his criminal record.  It should not have been admitted.
	[¶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 defendant.  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
evidence before the jury suggested that Almurshidy had a criminal record. 
By making Almurshidy appear to have a criminal record, the photo may have
swayed the jury, making it more willing to believe the victim.  The State's
argument that the error is harmless because of the overwhelming evidence
of identification only emphasizes the cumulative nature of the identification
evidence and the lack of need for the photo.  It says nothing about the "mug
shot" nature of the photo and the likely inference that Almurshidy is a
criminal.  
	[¶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 she 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 rapes 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 M.R. Evid. 412.   Almurshidy contended that
Rule 412 prohibits evidence about the past sexual conduct of a victim, but
that rape is violent behavior, not sexual behavior.{3}  
	[¶24]  There is conflicting authority on whether Rule 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 M.R. Evid. 412, which states that "'Sexual behavior' is not
specifically defined in the rule, but would include the behavior described by
[former] 17-A M.R.S.A. § 251 (B, C, and D),'" which defined "sexual
intercourse," "sexual act," and "sexual contact."  M.R. Evid. 412 advisory
committee's note, Field & Murray, Maine Evidence 177 (4th ed. 1997).   We
concur with the majority rule that Rule 412 applies to prior rapes of the
victim.
	[¶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.  Impeachment evidence of specific instances of the
conduct of a witness is permitted by M.R. Evid. 608(b)(1) on the cross-
examination of the witness when the instances of conduct are probative of
truthfulness or untruthfulness and concern the witness' character for
truthfulness or untruthfulness.  The fact that a person has been raped in the
past, even raped three times in a short period of time, is not probative of
truthfulness or untruthfulness.{4}  The trial court was justified in finding that
evidence of three prior rapes was not relevant to whether the victim was
raped on August 9, nor was it relevant to the victim's credibility.{5}  The trial
court did not clearly err or abuse its discretion in disallowing the evidence
of the prior rapes.

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 State'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
M.R. Evid. 609 inapplicable, but a charge or conviction is not a prerequisite
for the introduction of specific acts pursuant to Rule 608(b).  See United
States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996).  
	[¶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 witness.  The trial court agreed
and sustained the objection on this basis.  The plain wording of Rule
608(b)(1), however, does not require an attack on the truthful character of
the witness as a prerequisite to cross-examining the witness on specific
instances of the witness' own conduct.  In objecting on this ground, the
State may have been confusing Rule 608(a), which deals with reputation
evidence, with 608(b)(1).  Rule 608(a) allows evidence of the reputation of
truthful character to be admitted only when the witness' character for
truthfulness has been attacked.  See Field & Murray § 608.3, at 268.  Rule
608(b)(1), however, allows a witness to be cross-examined about specific
instances of her own conduct even though no evidence of her character for
truthfulness or untruthfulness has been introduced previously as long as the
specific instances of conduct are probative of truthfulness or untruthfulness
and concern the witness' character for the same.
	[¶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 and 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.
	[¶30]  Trial courts have wide discretion in determining whether the
evidence sought to be admitted pursuant to Rule 608(b)(1) is relevant.  See
Field & Murray § 608.2, at 266.  The appropriate exercise of that discretion
requires an examination of several factors in order to determine how
probative the offered evidence is of the witness' character for truthfulness
or untruthfulness.  See id. at 267;  28 Wright & Gold, Federal Practice &
Procedure:  Evidence § 6118, at 93-94 (1993).  One of the factors to be
considered is the importance of the witness to the case.  Another factor is
how probative of truthfulness or untruthfulness the bad acts are.{6}  The
reliability of the information that the bad acts in fact occurred is another
factor.{7}  Fishing expeditions into possible bad acts of the witness cannot be
allowed, and the party seeking to inquire about specific instances of conduct
should have a good faith belief that the conduct occurred and must be
prepared to make a preliminary showing.  Wright & Gold § 6118, at 96 n.19
(1993 & Supp. 1999).
	[¶31]  A court 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} Another
consideration is whether the evidence of specific acts is cumulative of other
evidence probative to the issue of the witness' character for truthfulness or
untruthfulness. 
	[¶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 the 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.