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State v. Mahmoud

Supreme Court of Maine

August 16, 2016

STATE OF MAINE
v.
ALI M. MAHMOUD

          Argued: March 1, 2016

         Reporter of Decisions

         On the briefs:

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

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

         At oral argument:

          Jamesa J. Drake, Esq., for appellant Ali M. Mahmoud

          Michael Dumas, Stud. Atty., 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 cars 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 cars 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 victims 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 dont know you ... [g]et out of my apartment... Im 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 didnt 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 victims 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 ...


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