State v. Abdi

• Decision Date: 26 January 2012
• Docket Number: No. 10–255.,10–255.
• Parties: STATE of Vermont v. Ali M. ABDI.
• Court: Vermont Supreme Court

45 A.3d 29

2012 VT 4

STATE of Vermont

v.Ali M. ABDI.

No. 10–255.

Supreme Court of Vermont.

Jan. 26, 2012.

Thomas J. Donovan, Jr., Chittenden County State's Attorney, and Andrew R. Strauss, Deputy State's Attorney, Burlington, for Plaintiff–Appellee.

Matthew F. Valerio, Defender General, Anna Saxman, Deputy Defender General, and Marshall C. Pahl, Montpelier, for Defendant–Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

JOHNSON, J.

¶ 1. Following a jury trial, defendant—a Somali Bantu immigrant to Vermont—was convicted of one count of aggravated sexual assault on a child. He moved for a new trial based, in part, on a claim of jury misconduct resulting from a juror's acquisition of information on the internet concerning Somali culture, a subject that played a significant role at trial. The trial court held a hearing, questioned the jurors, and issued a written decision denying the motion. The court concluded that although the extraneous information had the capacity to affect the jury's verdict, it was harmless. For the reasons set forth below, we conclude otherwise, and therefore reverse the judgment and remand for a new trial.

¶ 2. The record evidence may be summarized as follows. In 2006, defendant emigrated with his family from Somalia to Burlington, Vermont, where he joined a small close-knit Somali Bantu refugee community. Defendant also helped his wife's sister and her three children relocate to Vermont. The two families frequently visited each other's homes. This case arose out of one of those occasions, when defendant was visiting his sister-in-law one evening in December 2006. Defendant's then-nine-year-old niece, K.A., testified that defendant was watching television in the living room when he asked her to bring him a glass of water and then told her to sit next to him. Defendant then put his hand under her pants and, as she testified, put his finger “where I pee.”

¶ 3. K.A. stated that defendant had committed similar acts in the past. She also testified that, on other occasions, defendant had taken her into his bedroom and sexually assaulted her, or as she stated, “[h]e put[ ] his penis on my pee.” On those occasions, she recalled that defendant would place his hand over her mouth to prevent her from crying out and would threaten her with harm if she revealed what had happened.

¶ 4. K.A.'s brother testified that, on the evening in question, he was in his bedroom with K.A. when defendant called for her. He stated that K.A. then went into the living room and sat next to defendant, and shortly thereafter he saw defendant with his “hand inside” K.A. He recalled that K.A. was wearing both a skirt and pants, and that he saw defendant's hand under her skirt, which was lifted up. K.A.'s brother immediately went into the kitchen to tell their mother.

¶ 5. K.A.'s mother reported the incident to her sister—defendant's wife—and they referred the matter to the “elders” of the Somali Bantu community. The next morning, a number of the elders went to defendant's house, where his wife, sister-in-law, K.A., and others were gathered, to investigate the report. Mohammed Ali, a leading elder in the community, testified to the role of Somali culture and the Muslim faith in their response to allegations of this nature. He explained that the word of a child without an adult witness is generally considered insufficient evidence of sexual misconduct, and that further inquiry is required. Consequently, the elders met with defendant to question him. As Ali explained, their law and culture required that defendant be asked three times whether he had assaulted K.A. The first two times that defendant was asked he responded “no.” The third time, however, he responded “yes.” The elder explained that a third “no” would have required a subsequent “swearing,” where each of the adult principals—defendant, his wife, and sister-in-law—would have been asked to swear on the Koran. He explained that, according to their faith, “something bad will happen to the person who did something, who's lying” when swearing on the Koran.

¶ 6. Based on defendant's final answer, the elders contacted the police. Defendant was arrested and charged with two counts of sexual assault on a child under thirteen, the first count based on the alleged digital penetration and the second on the alleged rape. In addition to the testimony of K.A., her brother, and several Somali Bantu elders, the State adduced the testimony of K.A.'s mother and aunt, the investigating officer, and a doctor who examined K.A. The doctor found no physical evidence of a sexual assault, although she explained that most young victims of sexual assault do not show physical symptoms.

¶ 7. Following a two-day trial, the jury returned a verdict of guilty on the first count, and hung on the second. As discussed more fully below, the court denied a subsequent motion for new trial based, in part, on allegations of jury misconduct. This appeal followed.

¶ 8. Defendant claims that the jury's exposure to extraneous prejudicial information acquired from the internet violated his right to a fair trial. The issue arose a few days after trial, when one of the jurors, A.R., contacted the court to discuss the verdict. Shortly thereafter, the court held a hearing with counsel present to question the juror. A.R. testified that during the second day of deliberations another juror read aloud the definition of “incompetent juror” from a piece of paper that was not in evidence. A.R. felt that the information was intended to be critical of her. On the day of the hearing, the deputy state's attorney submitted a letter to the court indicating that she had received similar information that one of the jurors went on the internet after the first day of deliberations, printed out information concerning juror incompetence, and brought it to the jury room “to help deal with a juror who was being difficult during deliberations.”

¶ 9. Based on this information, defendant filed a motion for new trial alleging, among other claims, jury misconduct. The court, in response, held another hearing over the course of three days in June, July, and August 2009 for the purpose of questioning each of the jurors concerning the matter. Nearly all confirmed that one juror had, in fact, recited a standard for incompetent jurors that was likely derived from the internet, that the information was directed at A.R., who some jurors thought was not performing adequately, and that it was discussed only briefly, if it all. During the course of the hearing, the court specifically questioned the jurors as to whether the information had influenced them in arriving at a verdict. All except A.R. responded that it had no effect. Several jurors noted that the information appeared to upset A.R., who—when recalled—testified that she had been holding out for acquittal, that she was intimidated by the implication of incompetence, and that it influenced her verdict.¹

¶ 10. On the second day of the continued hearing, one juror, C.L., brought up an entirely different matter. When asked whether any member of the jury had referred to extraneous material during deliberations, he recalled that, during the second day of deliberations, “[o]ne of the jurors told us they [sic] went home and researched about the Somalian culture and their religion and bible and all that and he shared some of... his research that he uncovered.” Under further questioning, C.L. recalled that the information was conveyed verbally, not through any printed material, and was discussed by the jury for “maybe ten, fifteen minutes.” When asked how the information was “used, if at all,” the juror responded: “What drives and motivates the Somalians and what may have influenced them to make their decisions on the answers they gave and that type of thing.” He acknowledged that the juror in question used the “information to interpret facts in evidence” and to “build their [sic] position on what they [sic] thought would be the appropriate judgment in this case.” He inferred that the juror's intent was to use the information to influence others in arriving at a verdict. He could not “say for sure,” however, whether it actually influenced anyone else, but believed that “the individual that did the research seemed to use [it] to reach their [sic] conclusions.”

¶ 11. Following the hearing, defendant filed a supplemental motion for new trial alleging jury misconduct based on the additional disclosure. The State opposed the motion. In November 2009, the trial court issued a written ruling. On the juror-incompetence issue, the court concluded that the information did not relate to any material element or defense at trial and thus did not have the capacity to influence the verdict. As to the information on Somali religion and culture, the court concluded that, although an “irregularity” had occurred that had the capacity to affect the jury's verdict, “based on a preponderance of the evidence and the totality of the circumstances,” the State had “prov[ed] the absence of prejudice.” The court noted, in this regard, that none of the jurors other than C.L. had reported the irregularity, which suggested that “the internet research done by the one juror on Somali culture and religion was basically ignored by all the other jurors and did not affect their verdict.” The court also observed that there was little evidence “describing the content of the information conveyed, or the context, and ... no specific information indicating that it was inflammatory or directly related to any material issue in the case.” Finally, the court found that evidence supporting guilt on Count I “was strong.” Accordingly, the court denied the motion.

¶ 12. As noted, defendant renews his claim of jury misconduct on appeal. The legal standards governing a claim of this nature are reasonably settled if not—as this case suggests—entirely clear. “A defendant is entitled to a fair trial free of...