Ali v. United States

520 A.2d 306, 1987 D.C. App. LEXIS 284
CourtDistrict of Columbia Court of Appeals
DecidedJanuary 26, 1987
Docket83-858
StatusPublished
Cited by59 cases

This text of 520 A.2d 306 (Ali v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ali v. United States, 520 A.2d 306, 1987 D.C. App. LEXIS 284 (D.C. 1987).

Opinions

MACK, Associate Judge:

Azam S. Ali appeals his convictions of carnal knowledge, D.C.Code § 22-2801 (1981), sodomy with a child, id. § 22-3502, indecent liberties, id. § 22-3501(a), and enticing, id. § 22-3501(b). He contends that the trial judge erred when he admitted certain “other crimes” evidence regarding allegations of sexual abuse committed by the appellant against the younger sister of the complaining witness. He also asserts that his trial was tainted by the admission of other irrelevant and inflammatory testimony, by improper examination of witnesses, and by the prosecutor’s unduly prejudicial closing argument. We agree that the challenged uncharged misconduct evidence was inadmissible, that improperly suggestive questions were asked, and that overstated or impermissible closing argument was used. We also find sufficient preju[308]*308dice from the improperly admitted “other crimes” evidence to warrant the reversal of appellant’s convictions.

I

Even the admissible evidence does not present a pretty picture. The government introduced testimony from the complaining witness, S.S., who was seventeen years old at the time of trial. At the time of the charged offenses, appellant was the boyfriend of the mother of S.S.; he spent much time in the two-bedroom apartment which S.S., her younger sister F.W., brother, and mother shared with yet another family. In fact, the mother of S.S., who was away from the apartment every weekday from early morning until 6 p.m., had given appellant responsibility for the education and discipline of her children.

S.S.testified that the first incident of alleged sexual abuse occurred when she was thirteen years old.1 On a summer day in 1979, appellant went to the apartment to check on the children. He ordered the brother of S.S., the younger sister (F.W.), and another child (R.R.) to go outside. He entered the bedroom which S.S. shared with her siblings and mother, sat on the bed, and instructed S.S. to disrobe and stand in front of him. S.S. removed all her clothing except her underpants. Appellant touched her shoulders and chest, “checking [her] over.” He threatened to murder S.S. if she told anyone.

The next event described by S.S. occurred during the following school year. On a day when S.S. was alone at home later than usual, appellant arrived on the pretext of helping her search for lost keys. He engaged in intercourse with the young girl before driving her to school. According to S.S., appellant thereafter engaged in sexual activity with her “like two times a week.” This usually occurred in the apartment, although on one occasion, in September or October of 1980, appellant took S.S. to his home where they engaged in sodomy and intercourse.

S.S., F.W., and R.R. all testified that on July 4, 1981, appellant came to the apartment. He ordered the other children to stay in the bedroom and took S.S. into the bathroom. S.S. said that there appellant had intercourse with her. S.S. was sure that the incident occurred on July 4 because she related it to a special dinner her mother had prepared and to the traditional fireworks display; R.R. was certain of the date appellant took S.S. into the bathroom because it was his mother’s birthday. However, the counts charging offenses related to this event were dismissed after appellant presented evidence — including airplane ticket stubs and passports with entry and exit stamps — that proved that he was not present in the United States on July 4, 1981.

S.S.also testified about three other incidents of sodomy and sexual intercourse initiated by appellant during July, 1981. Shortly after their last encounter, S.S. ran away to Ocean City, Maryland. After talking with counselors at a runaway house there, she called her mother and returned to the District of Columbia where she told her story of abuse to an aunt and made a formal report to the police.

Appellant took the stand to admit having a close relationship with the children and their mother but to deny the charged sexual abuse. He presented the testimony of a dozen other witnesses including his wife and four character witnesses.

II

Appellant claims here that he has been fatally prejudiced by the erroneous admission of testimony about his alleged sexual conduct with F.W., the younger sister of S.S.We agree.

[309]*309A.

Over appellant’s objection at a pretrial hearing, the government obtained the court’s permission to introduce the uncharged misconduct evidence for the limited purpose of showing a “common scheme or plan.” Thus S.S. was permitted to testify that a “few times,” when P.W. came out of the bathroom clad in a towel, appellant, “will call her and he will say what’s down there to her private and she — she—will point and he will touch her on her breasts.” P.W. likewise testified that “more than three” times “when I come out of the bathroom, you know, I would have a towel on, you know, that kind of way, and I have on my panties and vest, too, and then he would — one time he was at the table and told me to ‘Come here’ and I walked to the table slowly and then he said, then he start feeling on my breast. Then he said, he pointed, and said ‘[Wjhat’s down there?’ ”

After appellant had taken the stand to deny the charges against him, the prosecutor, during cross-examination, referred to the testimony about F.W., and asked “Is it normal for the mother’s boyfriend when a nine-year-old girl comes out of the bathroom to pull aside her towel and touch her on the breasts and point to her private area?”

In his closing argument, the prosecutor emphasized the testimony:

And based on that testimony and also based on not only what happened to [S.S.] ladies and gentlemen, but what the defendant began to do with [F.W.]; she began to develop, how he would pull her towel apart and look down and fondle her breasts and point down at her private area. And then he gets on the stand and says, “Oh, that is perfectly normal, that is what all mothers’ boyfriends do.”

At the end of the trial, the court cautioned the jurors that they were to consider the evidence of appellant’s conduct with F.W. only:

[F]or a very narrow purpose and for no other reason. This evidence was admitted for your consideration as to whether it showed or tends to show that Mr. Ali had a scheme or plan which included the offenses with which you are asked to consider. You’re not required to accept this other evidence. And whether you accept it or not is for you to decide. But if you decide to accept it, you may do so only for this limited purpose, that is that he had a scheme or plan which included the offenses with which he is now on trial. You may not consider it as tending to show in any other way his guilt of the offenses for which he is now on trial.

B.

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Bluebook (online)
520 A.2d 306, 1987 D.C. App. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ali-v-united-states-dc-1987.