State v. Ahmed

Citation924 P.2d 679,278 Mont. 200
Decision Date26 August 1996
Docket NumberNo. 95-249,95-249
PartiesSTATE of Montana, Plaintiff and Respondent, v. Tareque Aziz AHMED, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

Karl P. Seel, Bozeman, Steven M. Edwards and John Houston Pope, Davis, Scott, Weber & Edwards, New York City, for defendant and appellant.

Mike Salvagni, Gallatin County Attorney, Marty Lambert, Deputy Gallatin County Attorney, Bozeman, Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena, for plaintiff and respondent.

HUNT, Justice.

Tareque Aziz Ahmed (Ahmed) appeals the order of the Eighteenth Judicial District Court, Gallatin County, convicting him of one count of aggravated kidnapping and one count of felony assault. We affirm.

ISSUES

Ahmed raises numerous issues on appeal. We hold the following to be dispositive:

1. Was Ahmed denied his right to a fair trial due to the actual or apparent bias of the District Court?

2. Were Ahmed's convictions for aggravated kidnapping and felony assault supported by substantial credible evidence?

3. Did the District Court abuse its discretion by considering evidence of flight?

4. Did the District Court abuse its discretion by allowing testimony regarding a telephone conversation between Ahmed's New York attorney and a Gallatin County deputy sheriff?

FACTS

There are two versions of the events which gave rise to this case: the victim's, which the District Court largely found credible, and Ahmed's, which the District Court largely disbelieved.

The victim, J.F., and Ahmed were both students at Montana State University in Bozeman when they became romantically involved in the spring of 1989. They had a stormy, off-again, on-again relationship due at least in part to Ahmed's admitted jealousy and possessiveness. J.F. testified that his jealous behavior alienated several of her friends. She further testified that Ahmed had threatened suicide if she did not remain with him; that he had attempted to fight with a male friend whom she had dated; and that he followed her to work on at least one occasion. Ahmed denied that any of these specific events occurred. In June 1990, Ahmed purchased a nine-millimeter handgun. On at least one occasion, according to J.F., Ahmed threatened to kill her and himself with the gun. On at least two occasions, J.F.

returned to her apartment to find Ahmed, uninvited, inside waiting for her.

In August 1990, J.F. went to the MSU campus police to report that Ahmed had followed her to work and was frightening her. She then went to the Bozeman police department and asked that someone speak to Ahmed about his behavior and direct him to leave her alone. That same day, she went to the County Attorney's office to attempt to get a restraining order against him, but was informed that the law in effect at that time would not allow her to obtain one because she and Ahmed were neither married nor living together.

Two days later, a Bozeman police officer spoke to Ahmed about J.F. He advised Ahmed that J.F. no longer wanted to see him and that he should stop showing up at her apartment or attempting to contact her in any way. The officer found Ahmed to be very cooperative; Ahmed expressed surprise at J.F.'s actions in going to the police; promised not to contact her further; and informed the officer of his intention to leave Montana for California in the near future.

According to J.F., she returned to her apartment on September 3, 1990, to find Ahmed waiting for her inside with his puppy. He was armed with the nine millimeter handgun and a Bowie knife, and informed her that he was going to hold her in the apartment for three days. He hit her lightly on the face, held the knife to her neck, and then ordered her into the bedroom to have sex with him.

J.F. testified that she was very frightened and attempted to be nice to Ahmed to prevent him from hurting her. She testified that she tried to act like his girlfriend because she was afraid he would shoot her if she resisted. During the next two days, Ahmed kept J.F. in the house except for one trip to run errands. J.F. testified that the only stop she could remember from the trip was the drive through at the local Burger King, during which he kept the gun on the seat between them. J.F. also periodically took the puppy out into the yard to go to the bathroom. She testified that she made no attempt to escape because she believed Ahmed would shoot her if she tried to run.

On September 5, 1990, Ahmed went to take a shower. J.F. then took the gun and knife and went directly to the Bozeman police department, where she reported the incident. Bozeman police were dispatched to her apartment, but Ahmed was gone. They also checked his apartment but could not find him. They then returned to J.F.'s apartment with J.F. so that she could gather some belongings before going to a friend's house. At that time, J.F. discovered and gave to the police a plastic bag from a sporting goods store which contained a box of 9 mm. ammunition and a receipt from the store.

According to Ahmed's testimony, he went to J.F.'s apartment on September 4, 1990, to collect some belongings and say goodbye. They spent the day together, going to the grocery store, park, gas station, and Burger King, before returning to the apartment where they ordered pizza. Ahmed then spent the night on the couch. The next day, he took a shower. When he finished, he discovered that J.F. was gone and he left as well. He testified that they did not have sexual relations. He further testified that he did not threaten her with the gun or knife, nor did he attempt to restrain her movements.

It is undisputed that on the evening of September 5, 1990, Ahmed caught a ride with friends to Fargo, North Dakota. From there, he took a bus to New York City. Less than a month later, he learned that the Bozeman police were looking for him regarding accusations made by J.F. He hired a New York attorney to "look into" the situation, but made no attempt to contact the Bozeman police himself.

In December, 1992, having been unable to locate Ahmed, the Gallatin County Attorney's office requested that the U.S. Attorney issue a federal unlawful flight warrant for Ahmed. On March 14, 1994, Ahmed was arrested by the FBI is New York City. He was brought back to Bozeman where, in a bench trial, he was tried and convicted of one count of aggravated kidnapping and one count of felony assault. Ahmed appeals. Other facts will be provided as necessary to address the issues raised.

STANDARD OF REVIEW

In an appeal of a criminal case, the evidence will be viewed in the light most favorable to the prosecution. State v. Martel (1995), 273 Mont. 143, 148, 902 P.2d 14, 17. When determining whether the evidence presented was sufficient to sustain the criminal conviction, we ask if, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Gould (1995), 273 Mont. 207, 221, 902 P.2d 532; State v. Ross (1995), 269 Mont. 347, 360, 889 P.2d 161, 169.

Our standard of review of a trial court's discretionary rulings is whether the trial court abused its discretion. State v. Loh (1996), 275 Mont. 460, 466-67, 914 P.2d 592, 596 (citations omitted). Since the admissibility of evidence is a discretionary ruling, we also determine whether the District Court abused its discretion by admitting or refusing to admit disputed evidence. State v. Bristow (1994), 267 Mont. 170, 173, 882 P.2d 1041, 1043 (citations omitted). The standard of review of a district court's conclusions of law is plenary, and we will review to determine whether those conclusions of law are correct. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195 (citations omitted).

DISCUSSION
1. Was Ahmed denied his right to a fair trial due to the actual or apparent bias of the District Court?

Ahmed is a native of Bangladesh. He alleges that he was denied his right to a fair trial because the District Court was biased against him due to his race and culture. He alleges that this bias, while not overt, was manifested in several ways. First, he contends that the District Court improperly acted as the trier of fact at trial after having previously presided over Ahmed's bail hearing. Second, he contends that the District Court excessively injected itself into the trial by questioning witnesses and terminating a given line of questioning. Third, he contends that the District Court demonstrated its bias by including an illegal condition of parole. Fourth, he contends that the District Court's findings were not supported by substantial credible evidence, and that this itself was indicative of bias.

A. The District Court as trier of fact.

The same district court judge who presided over Ahmed's bench trial also had presided over his earlier bail hearing. During the bail hearing, the District Court heard extensive evidence regarding Ahmed's alleged flight from justice. The prosecutor presented this evidence in support of his argument that a high bail was necessary because of the chance that Ahmed would try to flee the jurisdiction again. The District Court agreed that Ahmed was a flight risk and set the bail in the amount requested by the prosecutor.

On appeal, Ahmed points out that whether he had in fact fled the jurisdiction was a seriously disputed question at trial. He contends the District Court improperly decided that issue at the bail hearing. Having allegedly decided this crucial issue previously, Ahmed contends that the District Court was not a truly impartial trier of fact at the trial.

Despite the bias he now alleges, however, at no time prior to this appeal did Ahmed object to having the same judge sit for both the bail hearing and the trial. Section 46-20-104, MCA, provides in part:

Upon appeal from a judgment, the court may review...

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