Al-Fatah v. State, 2002-KA-00285-COA.

• Decision Date: 15 April 2003
• Docket Number: No. 2002-KA-00285-COA.,2002-KA-00285-COA.
• Citation: 856 So.2d 494
• Parties: Bashir AL-FATAH a/k/a Fasaha Al-Fatah, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

856 So.2d 494

Bashir AL-FATAH a/k/a Fasaha Al-Fatah, Appellant, v. STATE of Mississippi, Appellee.

No. 2002-KA-00285-COA.

Court of Appeals of Mississippi.

April 15, 2003.

Rehearing Denied July 29, 2003.

Imhotep Alkebu-Lan, Chokwe Lumumba, Jackson, Attorneys for Appellant.

Office of the Attorney General, by Jean Smith Vaughan, Attorney for Appellee.

Before KING, P.J., THOMAS and CHANDLER, JJ.

THOMAS, J., for the court.

¶ 1. Bashir Al-Fatah, also known as Fasaha Al-Fatah, was convicted of burglary of a dwelling and aggravated assault with a deadly weapon in the Circuit Court of Lowndes County. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections for the burglary conviction and ten years for the aggravated assault conviction with the sentences to run concurrently. Aggrieved, he asserts the following issues on appeal:

I. THE TRIAL COURT ERRED IN FAILING TO GRANT AL-FATAH'S MOTION FOR A DIRECTED VERDICT BECAUSE THE EVIDENCE OF GUILT OF AGGRAVATED ASSAULT WAS INSUFFICIENT AS A MATTER OF LAW.

II. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE A VIDEOTAPE RECORDING

OF THE SEARCH OF AL-FATAH'S HOME.

III. THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT.

IV. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF PRIOR CONVICTIONS OF AL-FATAH'S WITNESS UNDER MISSISSIPPI RULES OF EVIDENCE 609.

V. THE PROSECUTION'S MISCONDUCT DEPRIVED AL-FATAH OF A FAIR TRIAL.

VI. AL-FATAH'S CONVICTION IS VOID BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

Finding no error, we affirm.

FACTS

¶ 2. On the night of November 16, 1999, Dearius Hayes and his sister Shameka were asleep in the early morning hours in their home in Columbus, Mississippi. Dearius testified that he was awakened by a shock on his right shoulder to find two men in the house. Dearius let out a yell which woke Shameka. Both men were dressed in black from head to foot and were described as being dressed like "Ninja warriors" or martial artists. One of the men had a stun gun and Dearius struggled with him. During the struggle, Dearius was able to lift his mask and recognized the man as Seitu Al-Fatah, the father of Bashir. The other man was holding Shameka on the couch to keep her from seeing what was happening with her brother. Shameka testified that she recognized both men as being Seitu and Bashir Al-Fatah due to their voices and demeanor, since both lived in her neighborhood.

¶ 3. Dearius testified that he was able to get a metal object which turned out to be a knife away from Seitu, and that he saw Bashir begin to pull something out that looked like a sword. Dearius testified that he was able to get the sword out of Bashir's hand but at some point he was cut by either the sword or knife by grabbing them around the blades. Shameka tried to use the phone to call the police but the line had been unplugged. The intruders left after Dearius had taken the sword and knife from them, and the police were then called. Dearius's hand was bandaged by paramedics, but he would later have to go to the hospital for stitches when it would not heal correctly. When the police arrived, Dearius gave them a glove which had come off during the struggle, the knife, and the sword. A flexible baton was also found on the floor. The Hayeses gave the names of Seitu and Bashir Al-Fatah and a search warrant was obtained and was executed later that morning. At the Al-Fatah home, a stun gun was found as was a holder that fit the sword.

ANALYSIS

I. DID THE TRIAL COURT ERR IN FAILING TO GRANT AL-FATAH'S MOTION FOR A DIRECTED VERDICT BECAUSE THE EVIDENCE OF GUILT OF AGGRAVATED ASSAULT WAS INSUFFICIENT AS A MATTER OF LAW?

¶ 4. Al-Fatah asserts that the trial court erred in failing to grant his motion for a directed verdict because the evidence of guilt of aggravated assault was insufficient as a matter of law. Al-Fatah bases his assertion on the testimony of Dearius Hayes that he did not know which weapon caused his injuries and he did not remember seeing Bashir Al-Fatah with the knife. Al-Fatah therefore argues that the State failed to prove beyond a reasonable doubt that he committed aggravated assault as defined by statute. ¶ 5. A motion for a directed verdict challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). "If there is sufficient evidence to support a verdict of guilty, this Court will not reverse." Meshell v. State, 506 So.2d 989, 990 (Miss.1987). See also Haymond v. State, 478 So.2d 297, 300 (Miss.1985)

; Fairley v. State, 467 So.2d 894, 902 (Miss.1985). "We proceed by considering all of the evidence—not just that supporting the case for the prosecution— in the light most consistent with the verdict." Benson v. State, 551 So.2d 188, 192-3 (Miss.1989). "We give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence." Id. at 193. This Court should reverse only where, "with respect to one or more elements of the offense charged, the evidence so considered is such that reasonable and fair minded jurors could only find the accused not guilty." Alexander v. State, 759 So.2d 411, 421 (¶ 23) (Miss.2000) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss.1995)).

¶ 6. The State put on proof that Bashir Al-Fatah acted with his father Seitu in entering the Hayes home and attacking Dearius. Dearius saw both weapons but could not say for certain which one injured his hand. Both the knife and the sword were introduced into evidence as was the stun gun used to awaken Dearius. Also, a scabbard found at Al-Fatah's home that perfectly fit one of the edged weapons left behind at the Hayeses' home was introduced. Shameka Hayes testified that she knew both of the intruders and that she saw some of the struggle between the men. Miss.Code Ann. § 97-3-7 (Rev. 2001) states the following:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 7. The State showed that both men had entered the Hayes home in the middle of the night clothed in black and were armed with various edged weapons as well as a baton and a stun gun. It is for the jury to determine whether the weapons were deadly under the aggravated assault statute. Walls v. State, 759 So.2d 483, 487 (¶ 11) (Miss.Ct.App.2000). The State showed that Dearius was injured during a struggle with Al-Fatah and the evidence was sufficient that a reasonable and fair-minded juror could find Bashir Al-Fatah guilty. This issue is without merit.

II. DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE A VIDEOTAPE RECORDING OF THE SEARCH OF AL-FATAH'S HOME?

¶ 8. Al-Fatah asserts that the trial judge erred in admitting a videotape of the search of his home. Al-Fatah argues that the videotape showed various martial arts weapons and that since several of them were introduced into evidence, the video was needlessly cumulative evidence. Also, Al-Fatah asserts that the video's probative value was outweighed by its prejudicial effect of showing all of the combative equipment in his house. The trial court reasoned that the video was admissible because it helped identify the defendant as well as tie his identity in with the assault, since the intruders were dressed in all black like martial artists.

¶ 9. "The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Johnston v. State, 567 So.2d 237, 238 (Miss.1990). The discretion of the trial judge, however, must be exercised within the boundaries of the Mississippi Rules of Evidence. Id. The trial judge in this case found that the items in the video identified Al-Fatah with the crime under Mississippi Rules of Evidence 404(b). As clearly stated by M.R.E. 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

¶ 10. "The admissibility of videotapes is considered under the same analysis as the admissibility of photographs." Berry v. State, 703 So.2d 269, 278 (¶ 19) (Miss.1997) (citing Holland v. State, 587 So.2d 848, 864-65 (Miss.1991)). Photographs that are gruesome or inflammatory and lack an evidentiary purpose are always inadmissible as evidence. McFee v. State, 511 So.2d 130, 134 (Miss.1987).

¶ 11. Like the case in Holland, the video in this case was duplicative of other evidence that was admitted at trial. If it was allowed at all, it should have been redacted in order to show only the items connected directly to the incident at the Hayeses' home. The video in Holland was found to be harmless error because the content along with the other evidence rendered it non-prejudicial. Holland, 587 So.2d at 864. Similarly in Berry, the video was found to be harmless because "on balance, it does not appear that the cumulative nature of this particular video would cause the jury to give undue credit to the heinous, atrocious, and cruel nature of this crime." Berry, 703 So.2d at 278 (¶ 21). As in the above cases, the admission of the video in this case was harmless as its cumulative nature did not prejudice Al-Fatah.

III. DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND THE INDICTMENT?

¶ 12. Al-Fatah asserts that the trial court erred in allowing the State to amend the indictment to specify that Dearius Hayes was injured by "a knife or sword" rather than simply a knife. The trial judge found that the amendment was one of form and not...