Ahmad v. State, 89-KA-773

• Decision Date: 03 June 1992
• Docket Number: No. 89-KA-773,89-KA-773
• Citation: 603 So.2d 843
• Parties: Abdusabr J. AHMAD a/k/a James Earl Coleman v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 843

603 So.2d 843

Abdusabr J. AHMAD a/k/a James Earl Coleman v. STATE of Mississippi.

No. 89-KA-773.

Supreme Court of Mississippi.

June 3, 1992.

Onette E.W. Johnson, Prentiss, for appellant.

Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

Abdusabr J. Ahmad, also known as James Earl Coleman, was convicted by a jury of felonious child abuse and sentenced by Judge R.I. Prichard to eight years with the Mississippi Department of Corrections. Ahmad has appealed to this Court alleging that: 1) the evidence was legally insufficient to support his conviction of felonious child abuse because the requisite proof of permanent or serious disfigurement was absent; 2) the lower court erred by allowing the State to comment during closing argument on events outside the scope of admitted evidence and to interject inflammatory matters before the jury; 3) the lower court erred by denying him his constitutional right to confront his accuser who was a material witness; 4) the evidence was not sufficient to support his guilty verdict; 5) he was deprived of his constitutional right of effective assistance of counsel; and 6) the lower court erred by allowing the State to make prejudicial comments and to execute prejudicial conduct during the course of the trial. We do not agree with Ahmad's allegations of error and affirm the conviction.

I.

On July 28, 1988, Catherine Drones arrived at her Jefferson Davis County, Mississippi, home around 6:30 p.m. Drones had a message left by Rasheedah Ahmad a/k/a Jeanette Brown to go to the Ahmad home nearby. Rasheedah Ahmad was married to Abdusabr J. Ahmad a/k/a James Earl Coleman, Drones' nephew. The Ahmads were living in the home of a relative. The home did not have water, gas, or electricity. Drones went to the Ahmad home. She was met by Rasheedah Ahmad and the two Ahmad daughters. Rasheedah Ahmad told Drones that her nine-year-old son, I.A., was tied up inside the home. Drones did not go inside the home; she took Rasheedah Ahmad and the young girls to the sheriff's office in Prentiss, Mississippi.

Chief Deputy Thomas Brown was the officer on duty when Drones arrived with the Ahmad women. Brown went to the Ahmad home along with Drones and the Ahmad women. They arrived at the home at 7:20 p.m. Abdusabr Ahmad was not at home. The house was dark. Brown used his flashlight and found I.A. tied to an old iron frame bed. I.A. was calm. The young boy was tied with duct tape. I.A. was unable to get loose and unable to move. I.A. was tied by his hands which were crossed over his head. Brown couldn't get I.A. loose by pulling at the tape. Brown got a butcher knife from a neighbor and cut I.A. free from the bed. Brown took I.A., Rasheedah Ahmad, Drones, and the young girls back to the sheriff's office. I.A. was emotional and upset when they left the house.

At the sheriff's office, Brown took I.A.'s shirt off and found an abundance of scars but did not find any fresh wounds. Brown took pictures of I.A.'s back. Brown did not take I.A. to a doctor. I.A. was not bleeding and said he was not in any pain. The wounds on his back had healed.

Besides Drones and Brown, I.A. gave testimony for the prosecution at trial. I.A. explained that his father, Abdusabr Ahmad, had taped him to the bed because I.A. had forgotten something. I.A. also showed the scars on his back to the jury. He explained that the scars were the result of a whipping with an extension cord by his father.

Defense counsel did not present any witnesses. Defense counsel did argue in his opening statement that Abdusabr Ahmad had different childrearing views due to his Muslim faith.

The jury deliberated 59 minutes and returned a guilty verdict.

II.

Abdusabr Ahmad argues that Miss.Code Ann. Sec. 97-5-39 (Supp.1988) requires a showing of serious bodily injury and mayhem, or permanent or crippling injury, and that the State did not make such a showing sufficient to support a conviction of felonious child abuse. The State argues that the statute demands no proof of infliction of serious bodily injury or of mayhem. The State asserts that the prosecution met the proof requirements of the statute. The State is correct. The requisite statutory showing was made, and the evidence sufficiently supported the conviction.

Section 97-5-39, as in effect at the time of the offense, read in part:

Any person who shall intentionally burn or torture, or, except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner so that any bone is fractured or any part of the body of such child is mutilated, disfigured or destroyed, shall be guilty of felonious child abuse....

Clearly, the statute does not use the phrase "serious bodily injury" or "mayhem". In fact, mayhem is a separate statutory offense pursuant to Miss.Code Ann. Sec. 97-3-59. The State put on proof through the testimony of its three witnesses that Abdusabr Ahmad tortured, whipped, struck, and abused I.A. The State also put on proof that Abdusabr caused I.A. to be disfigured. Without legislative guidance to the contrary, words of a statute or act should be ascribed their ordinary and usual meaning. Pearl River Valley Water Supply Dist. v. Hinds County, 445 So.2d 1330, 1334 (Miss.1984). The Oxford American Dictionary (1980) defines "disfigure" as "to spoil the appearance of". The State certainly identified scars on I.A.'s back which were present at trial, ten months after Brown had freed the boy from the bed. The appearance of the young boy's back had been marred. The State met the requirements for conviction under the felonious child abuse statute, Sec. 97-5-32.

The evidence was also legally sufficient to support Abdusabr Ahmad's conviction. This Court spoke to the standard of review applicable in criminal cases wherein the verdict of the jury is challenged on the weight of the evidence in Wetz v. State, 503 So.2d 803 (Miss.1987):

[W]e must, with respect to each element of the offense, consider all of the evidence--not just the evidence which supports the case for the prosecution--in the light most favorable to the verdict. Harveston v. State, 493 So.2d 365, 370 (Miss.1986); Callahan v. State, 419 So.2d 165, 174 (Miss.1982); Sadler v. State, 407 So.2d 95, 97 (Miss.1981). The credible evidence which is consistent with the guilt must be accepted as true. Spikes v. State, 302 So.2d 250, 251 (Miss.1974). The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Hammond v. State, 465 So.2d 1031, 1035 (Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984); Glass v. State, 278 So. 2d 384, 386 (Miss.1973). Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss.1984); Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Harveston v. State, 493 So.2d 365, 370 (Miss.1986); Fisher v. State, 481 So.2d 203, 212 (Miss.1985).

Wetz, 503 So.2d at 808.

Abdusabr Ahmad argues that his conviction was not sufficiently supported by the evidence. This argument is without merit. A reasonable and fair-minded jury could have found him guilty. No evidence or testimony was introduced at trial by defense counsel. The only evidence for jury consideration was the evidence presented by the State. I.A. himself testified that the scars and taping were results of his father's actions. Physical evidence of the scars and the taping were introduced. The conviction is supported by the evidence.

III.

Abdusabr Ahmad asserts that the prosecutors exceeded the permissible scope of closing argument and introduced irrelevant, immaterial, inflammatory matters before the jury. Abdusabr Ahmad refers specifically to comments about his religious preference.

In the initial closing argument of the State, the prosecutor commented:

Is there any doubt at all in your minds, reasonable or otherwise, based on the evidence in this case, that this boy was tortured, whipped, struck and abused? You know, we get incensed when we hear that our soldiers are treated a particular way when they're captured and made prisoners of war, when people in our embassies are captured by people and abused. There's no hesitation on us to see that for what it is--torture, beatings. And the same thing happened to this child.

Abdusabr Ahmad also finds additional comments by the State in closing objectionable, to wit:

But, you know, the scars on the outside of that child are nothing compared to the scars on the inside. You imagine. You know, it's not unusual for a child, or anyone who's been tortured, to just want acceptance from the person who's abusing them, whether it's a prisoner of war, whether it's a person who's in a hostage situation, or whether it's a child being abused at home. They want acceptance. They want the love of the person who's dominating them. They want to be left alone.

Abdusabr Ahmad argues that the references to hostages and prisoners of war brings to mind the Arab countries, such as Lebanon, where the dominant religion is Muslim and where Americans have been taken hostage and sometimes killed. He argues that the State wanted to remind the jury that people with Muslim names of the Muslim religion captured Americans at the U.S. Embassy in Beiruit, Lebanon, and tortured them. Abdusabr Ahmad asserts that the State was trying to inflame the jury.

Generally, attorneys on both sides in a criminal prosecution are given broad latitude during closing arguments. See Neal v. State, 451 So.2d 743 (Miss.1984), cert. denied 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984); Bullock v. State, 391...