People v. Abdo, Docket No. 28476

• Decision Date: 07 March 1978
• Docket Number: Docket No. 28476
• Citation: 265 N.W.2d 779,81 Mich.App. 635
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mohammed Daifullah ABDO, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 779

265 N.W.2d 779

81 Mich.App. 635

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mohammed Daifullah ABDO, Defendant-Appellant.

Docket No. 28476.

Court of Appeals of Michigan.

March 7, 1978.

Released for Publication May 23, 1978.

Gromek & Bendure, by Carl L. Gromek, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief, William Wertheimer, Asst. Pros. Attys., for plaintiff-appellee.

Before T. M. BURNS, P. J., and CAVANAGH and RILEY, JJ.

RILEY, Judge.

Defendant Mohammed Daifullah Abdo, arrested and charged with assault with intent to commit murder, M.C.L.A. § 750.83; M.S.A. § 28.278, was found guilty at a bench trial of assault with intent to commit great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279, and sentenced to a prison term of two and one-half to ten years. He brings the present appeal raising several issues, of which two involve the extensive testimony presented to the trial court.

The incident in question took place during the early morning hours of November 3, 1975, inside and in front of Uncle Sam's restaurant in Dearborn, Michigan. The complainant, Alan Amen, worked as a special claims investigator for the Michigan Employment Security Commission, concentrating on assisting Arabic-speaking claimants. On November 3, Amen attended a party at the restaurant commemorating the owner's loss of his liquor license. There were approximately 200 persons at the restaurant party, with a significant number being of various Arabic nationalities.

Amen testified that the incident began when he was approached by Sultan Saleh, who had acted as an interpreter for an unemployment claimant named Quayed Alhidais. Saleh allegedly accused Amen of abandoning Alhidais' claim and of being anti-Arab. The argument erupted into an attack on Amen, according to his testimony, by various persons including Saleh, Abdullah Nassar, and defendant Abdo. At this point several people, including Houssain (Sam) Mallad, the owner of the restaurant, interceded to break up the fight.

Amen stated that he fled the restaurant when the fighting was quelled. After exiting through the front door, he took two or three steps out into the street in front of the restaurant, and then turned at the sound of activity behind him. He testified that on turning he saw defendant on the sidewalk in front of the restaurant pointing a handgun in his direction, and Sam standing just outside the front door. As he turned back to run, Amen was shot through the arm. He stated that defendant followed him partially across the street and aimed the gun at him again, but he was not sure if any additional shots were fired.

In addition to Amen, the prosecution presented testimony from four other endorsed witnesses who were present on the night of the shooting. Allen Mallad, the son of Sam Mallad, testified that he saw the start of the fight and eventually wrestled Nassar away from Amen. He did not see or hear the actual shooting, and did not see defendant with a weapon.

Mason Baydoun testified about the argument between Amen and Sultan Saleh, stating that he tried to break up the argument, but that he did not see any fight nor did he see or hear the shooting. He did not remember seeing defendant at the restaurant.

Sultan Saleh admitted arguing with Amen, but denied threatening or striking him. He stated that he left the restaurant by the back door while Amen was still inside. On further examination, it was brought out by the prosecutor that Saleh had been convicted of assault and battery on Amen in Dearborn district court, the charge having arisen from this same incident.

Houssain (Sam) Mallad testified that he had attempted to break up the fight inside of the restaurant. He tried to hold onto Amen but he slipped out of Sam's grasp and went out the front door. Immediately thereafter several other people also slipped past Mr. Mallad and exited from the building. After Sam finally got the door closed, and while inside of the building, he heard several shots. He then went outside and saw Amen in the middle of the street. He also saw a group of people, including defendant, on the sidewalk to the right of the front door. He did not see anyone with a gun and did not see Amen shot.

Following all of this testimony, defendant waived the production of several endorsed witnesses, one being Jamal Attareb and the others being police officers and a doctor. The final prosecution witness was Dearborn Police Sergeant Forrest Henry, the arresting officer in charge of the case. Sgt. Henry related the details of defendant's arrest and the substance of a statement made by defendant following his arrest. In the statement defendant said that he was at the restaurant with Sam Mallad, Jeffery Saleh, Mohsen Said (an alias of Abdullah Nassar), and a David (possibly also an alias of Abdullah Nassar). He stated that he attempted to break up the fight between Sultan Saleh and Amen, and later walked outside with Sam Mallad. He denied having a gun, seeing or hearing Amen shot, or doing the actual shooting.

The defense then presented a number of witnesses. Jeffery Saleh (no relation to Sultan Saleh) stated that he saw defendant attempt to break up the fight between Sultan Saleh and Amen. He did not see defendant strike Amen. Just after Amen left the restaurant he, defendant, and around ten to fifteen other persons left, with he and defendant at the head of the group. As the group was walking down the sidewalk to a different restaurant, they heard shots. Jeffery Saleh did not see any shots fired and did not see defendant with a gun.

This testimony of Jeffrey Saleh was essentially corroborated by that of Ali Kahdi, Ali Aboubaker, and Abdul Ali, all of whom testified that they were in the group that left Uncle Sam's with Jeffery Saleh and defendant. None of these witnesses saw the shooting.

Defendant Mohammed Abdo was the final defense witness. His testimony coincided with the substance of the previous defense testimony. He denied threatening, hitting, or shooting Amen and stated that while he heard shots, he did not know that Amen had been shot until the following day.

Following closing arguments, the trial court made the following findings of fact:

"This Court had no difficulty in understanding the witnesses.

"Many of these witnesses were reluctant to testify to part of the happenings of that morning, testifying that they saw nothing. However, it has been established by the complaining witness, and the testimony, that he was shot by the Defendant whom he had seen earlier in Uncle Sam's Restaurant and Bar. The complaining witness's testimony was convincing and forthright. His testimony was substantiated in part by portions of the testimony of both the People's and the defense's witnesses, and when interwoven and taken as a whole, leaves no doubt in the Court's mind.

"I might say that several of the witnesses who testified, such as Sam Mallad and Jeffrey Saleh, who testified for the defense that the Defendant was the first one out of the door after the Complainant had gone out, and there is such other testimony, and the Court does find as a matter of fact, taking into consideration all of the testimony that the People have proven beyond a reasonable doubt, that the Defendant, Mohammed D. Abdo did assault with intent to do great bodily harm less than the crime of murder upon the Complainant, Alan Amen, and does find the Defendant guilty of that offense, the cause having been proven beyond a reasonable doubt as to all the elements of that charge."

Subsequent to appointment of appellate counsel, ¹ the case was remanded by this Court, on defendant's motion, to the trial court to allow defendant to bring a motion for new trial. This motion was founded on claims that the decision was against the weight of the evidence and that various alleged res gestae witnesses were not endorsed or produced at the trial. Over the course of several hearings, as mandated by People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973), testimony was taken from a number of witnesses, including Sgt. Henry, the arresting officer.

Abdullah Nassar (a/k/a Mohsen Said) testified that he did not see the shooting, did not see defendant with a gun, and that he was only contacted to testify after the trial by defendant's appellate counsel.

He admitted that he did participate in a struggle with Alan Amen, but asserted that the fight was in part precipitated by racial slurs uttered by Amen. Nassar testified that Amen was wearing glasses at the time, that Amen removed his glasses during the fight, and that Amen did not retrieve the glasses prior to leaving the restaurant. It was also brought out that Nassar had been convicted of assault on Amen arising from this incident.

Hussain Dubaishi, Saif Abdullah, Hussain Abdulla and Said Ali all testified that they were at Uncle Sam's on the night of the shooting, but did not see or hear the shots fired. Dubaishi stated that Amen left the restaurant ten minutes before defendant left. Saif Abdullah said that Amen left five minutes before defendant. Hussain Abdulla stated that Amen left the restaurant followed by several people, and then defendant and some others left. Ali testified that he talked to defendant in the restaurant after Amen had left.

Sgt. Henry testified as to the efforts made to locate and endorse res gestae witnesses. No attempt was made to endorse any of the witnesses presented at the Robinson hearing, or to endorse Jeffery Saleh. Sgt. Henry also stated that Quayet Alhidais was not endorsed after he told Henry that he was not at the restaurant on the night of the shooting. Alan Amen had testified at the trial that Alhidais was in Uncle Sam's on November 3, 1975.

Following the presentation of this testimony, the trial court made the following ruling "May I say this, Mr. Gromek, you have indicated possible res gestae...