MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 27 2018, 11:01 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Peter D. Todd Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana
Tyler G. Banks Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Moussa I. Dahab, March 27, 2018 Appellant-Defendant, Court of Appeals Case No. 20A03-1706-CR-1369 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Kristine Osterday, Appellee-Plaintiff. Magistrate Trial Court Cause No. 20D01-1503-F5-77
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 1 of 25 Case Summary [1] Moussa I. Dahab appeals his conviction for Level 5 felony battery with a deadly
weapon. We reverse and remand for retrial.
Issue [2] The sole issue before us is whether the prosecutor committed misconduct that
amounts to fundamental error.
Facts [3] Dahab was employed at Chassix, a manufacturing company located in Elkhart
County. Rafed Alsaad also worked at Chassix as a team leader and
occasionally supervised Dahab’s work.1 Both men are of Middle Eastern
descent. In July 2014, Alsaad told his superiors at work that Dahab had
misloaded machine components. Dahab, who denied making the mistake,
became very angry and shouted at Alsaad. In October 2014, Dahab again
berated Alsaad, allegedly without provocation.
[4] On January 22, 2015, Alsaad was again supervising Dahab, and they argued
multiple times. As Alsaad collected readings from a machine, Dahab struck
him twice with a metal pipe. When Alsaad asked why Dahab had struck him,
1 Dahab states Alsaad’s first name as “Rafal” in his brief, while the State refers to him as “Rafed.” At trial, Alsaad identified himself on the stand as “Rafed Alsaad”; we will do so here. Tr. Vol. II p. 161.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 2 of 25 Dahab replied, “F*** you. This is ISIS.”2 Tr. Vol. II p. 182. Alsaad sustained
significant head wounds.
[5] On March 30, 2015, the State charged Dahab with Level 5 felony battery with a
deadly weapon and Level 6 felony battery resulting in moderate bodily injury.
Dahab was tried by a jury on May 16, 2017. Before the trial commenced,
Dahab filed a motion in limine seeking to bar the terroristic statement as
irrelevant and overly prejudicial hearsay. Defense counsel denied that Dahab
had made the statement and argued that the resulting question of credibility was
unlikely to be resolved in Dahab’s favor given societal “animosit[ies].” Id. at
18. The State countered that the statement was relevant to establishing the
extent to which Alsaad—an Iraqi refugee who had fled his country after aiding
the United States—was afraid of Dahab. The trial court denied the motion as
to any general references to the Muslim faith, stating:
. . .[T]he Court finds very clearly that it would be improper to bring up the religious term “Muslim.” It doesn’t seem relevant in the circumstances.
And I would agree with you, [defense counsel], [that such reference] has the ability to really inflame, potentially inflame, some of the people in our area.
2 The Islamic State of Iraq and Syria or “ISIS” is a terrorist organization.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 3 of 25 Id. at 20. Regarding “any mention of any foreign terrorist groups,” the trial
court took the matter under advisement, stating that it would “see how the facts
play[ed] out . . . .” Id. The trial court added,
If the State is able to induce [sic] testimony through the alleged victim in this case regarding comments that were allegedly made by the defendant regarding ISIS, [defense counsel], I respectfully disagree with you, that’s not hearsay. That’s a statement of a party opponent and if the State is able to elicit that testimony I do believe that is relevant and it is admissible but we will wait to see how the facts play out. Certainly, [defense counsel], you are free to attack the credibility of that witness’s recollection of the events as you see fit.
Id.
[6] Ultimately the trial court allowed Alsaad to testify that Dahab said, “This is
ISIS.” Id. at 182. Also, Alsaad testified that, in 2006, he fled Iraq after being
targeted for aiding the United States military; and that he and his family were
granted asylum to enter the United States as refugees in 2012. The following
colloquy then ensued between Alsaad and the prosecutor, without objection
from defense counsel:
Q: So was—is your understanding of ISIS, is that a terrorist organization?
A: Yes.
*****
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 4 of 25 Q: So does the term ISIS or does that group—does that scare you?
A: It scare me and I take, like, really serious. That’s why— it’s just scare me because myself but it’s my family.
Id. at 183-184. Alsaad testified further that, the day after the incident, he and
his wife encountered Dahab outside a grocery store. Dahab gestured to him,
and Alsaad described the encounter as follows:
Q: It was in the afternoon. When he was saying, “Come on. Come on,” what did you think that meant or what did that mean to you?
A: It’s not this way –when he start to say come on he asked me to take off from my car, and when I just turned my car and I left he just smile and he do the sign and this sign in our country is, like, different from here. This here is for peace. In our country, it’s like victory or ISIS win.
[Prosecutor]: And just for the record, the State would ask the record to reflect the witness was holding up two fingers when he was talking about the gesture that was made.
THE COURT: The record will so reflect.
[Prosecutor]: So, typically, in the U.S. when somebody holds their two fingers up like that people think that means peace, right?
A: Yes . . .
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 5 of 25 Q: Okay. And you’re saying in the Middle East that means something different?
Q: What does that mean in the Middle East?
A: That’s mean ISIS win. . . . .
Q: So did you feel threatened by that gesture?
Id. at 197-98. In her closing remarks, the prosecutor stated,
[Dahab had] been intimidating Rafed Alsaad the entire eight months since he met Rafed Alsaad at Chassix. That’s what was going on, that’s what [Alsaad] testified to.
And why was he doing that? Was he part of ISIS? Who knows. That was what he said. Who knows if that’s what it really was or if that’s what he knew would scare Rafed Alsaad.
Id. at 170.
[7] Additionally, in the following exchange, the prosecutor elicited testimony that
Dahab was court-ordered to pay Alsaad’s medical bills in advance of trial:
Q: Did you do anything else to protect yourself and your family from [Dahab]?
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 6 of 25 *****
[Alsaad]: It’s for the medical bills. It’s coming too high and I can’t pay, that’s why I went to the court, ask if he’s guilty or he need to pay.
Q: So did the Court order him to pay your medical bills?
Id. at 199-200. Again, defense counsel did not object. After Dahab testified,
the trial court posed the following juror question to Alsaad, “For clarification,
did [the] court already ask Dahab to pay [your] medical bills?” Tr. Vol. III p. 9.
Alsaad replied, “Yes.” Id.
[8] Additionally, the State presented the testimony of Chassix line leader Andrew
Holley-Potter, who responded to Alsaad’s radio distress call and saw Dahab in a
posture of swinging the pipe to hit Alsaad “again”:
[Alsaad] was calling for help saying he was hit. I took off towards his area. I’m the first one there to see them both wrestling over a pipe and, at that time, I got over there to where [Dahab] was getting ready to hit [Alsaad] again, and I was able to grab the pipe.
Id. at 24. Dahab testified that on the date of the incident, Alsaad initiated the
physical confrontation; that he did not strike Alsaad; and that Alsaad’s injuries
may have occurred when Alsaad “slipped” and “landed on the pipe” as they
struggled. Id. at 121.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 7 of 25 [9] On May 17, 2017, the jury found Dahab guilty on both counts. The trial court
merged the Level 6 felony battery resulting in moderate bodily injury into the
Level 5 felony battery with a deadly weapon due to double jeopardy concerns
and sentenced Dahab to three years in the Department of Correction, with two
years ordered suspended to probation. He now appeals.
Analysis [10] Dahab argues that the State deployed evidentiary harpoons—namely, the
prosecutor’s references to his court-ordered advance payments and statements
linking him to ISIS—during the course of his jury trial. An evidentiary harpoon
is deployed when the prosecution places inadmissible evidence before the jury
for the deliberate purpose of prejudicing jurors against the defendant. Evans v.
State, 643 N.E.2d 877, 879 (Ind. 1994).
In reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) “whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected” otherwise. A prosecutor has the duty to present a persuasive final argument and thus placing a defendant in grave peril, by itself, is not misconduct. “Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.” To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct occurs—request an admonishment to the jury, and if further relief is desired, move for a mistrial.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 8 of 25 Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014).
[11] Where, as here, the appellant has waived his or her claim of prosecutorial
misconduct by failing to preserve the claim of error, we apply a different
standard of review. As our supreme court has explained,
The defendant must establish not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error. Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant’s rights as to “make a fair trial impossible.” In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) “constitute clearly blatant violations of basic and elementary principles of due process” and (b) “present an undeniable and substantial potential for harm.” The element of such harm is not established by the fact of ultimate conviction but rather “depends upon whether [the defendant’s] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled.”
Id. at 668 (internal citations and quotations omitted). In evaluating the issue of
fundamental error, our task in this case is to “look at the alleged misconduct in
the context of all that happened and all relevant information given to the jury—
including evidence admitted at trial, closing argument, and jury instructions—
to determine whether the misconduct had such an undeniable and substantial
effect on the jury’s decision that a fair trial was impossible.” Id.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 9 of 25 I. Prosecutorial Misconduct
A. ISIS References
[12] We begin by addressing the prosecutor’s various references to ISIS. Indiana
Evidence Rule 403, governing exclusion of relevant evidence for reasons of
prejudice, confusion, or other reasons, provides:
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needless presenting cumulative evidence.
Evid. R. 403. Most notably for purposes of our analysis, Rule 403 provides for
the exclusion of even relevant evidence if its probative value is substantially
outweighed by the danger of unfair prejudice. The balancing of the probative
value against the danger of unfair prejudice must be determined with reference
to the issue to be proved by the evidence. Bryant v. State, 984 N.E.2d 240, 249
(Ind. Ct. App. 2013).
[13] The prosecutor argued that the terroristic references showed the jury the extent
to which Alsaad—an Iraqi national turned United States refugee—was afraid of
Dahab. However, the key issue at trial was whether Dahab knowingly or
intentionally battered Alsaad and either used a deadly weapon or caused
moderate bodily injury. That there was animus between Dahab and Alsaad
was readily established by evidence of the men’s documented history of verbal
altercations and their fraught workplace dynamic, in which Dahab believed that
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 10 of 25 Alsaad was intentionally discrediting him and undermining his job performance
to their superiors at Chassix.
[14] We must attempt to balance the mandate of Evidence Rule 403 regarding unfair
prejudice and probative value. In so doing, we find that the statements were
inadmissible, unfairly prejudicial, and violated Indiana Evidence Rule 403.
Moreover, in the post-9/11 era, gratuitously linking a person of Middle Eastern
descent to a terrorist organization—ISIS—is both unfair and uncalled for. As
the trial court rightly noted, insinuating a terrorist affiliation “ha[d] the ability
to really inflame, potentially inflame, some of the people in our area.” Tr. Vol.
II p. 20. However, although the trial court recognized the potential for grave
harm, it took the matter under advisement and permitted the prosecutor to
make multiple statements that suggested a link between Dahab and ISIS.
[15] Dahab has succeeded in establishing that, under the circumstances, the trial
court erred in allowing the prosecutor such latitude, and that the error
constituted a “clearly blatant violation of basic and elementary principles of due
process” and “present[ed] an undeniable and substantial potential for harm.”
See Ryan, 9 N.E.3d at 668.
B. Medical Bills
[16] Next, Dahab argues that the prosecutor committed misconduct when she
elicited testimony that he was court-ordered to pay Alsaad’s medical bills in
advance of trial. Specifically, Dahab argues that the State impermissibly
introduced “the civil order mandating [his] payment of [Alsaad’s] medical
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 11 of 25 expenses” in order to demonstrate his guilt and in contravention of Indiana
Rule of Evidence 409. Appellant’s Br. p. 10. Rule 409 states:
Evidence of paying, furnishing, promising to pay, or offering to pay:
(a) medical, hospital, or similar expenses resulting from an injury; or
(b) damage to property,
is not admissible to prove liability for the injury or damages.
Evid. R. 409; see Ind. Code § 34-44-2-2 (“An advance payment shall not be
construed as an admission of liability by any person.”).
[17] As was the case with the ISIS references, the jury here was allowed to hear that
Dahab had been court-ordered to pay the victim’s hospital bills in advance of
trial. There is a dearth of legal precedent on this issue. Like Dahab, we look to
Simon v. Clark, 660 N.E.2d 634, 637 (Ind. Ct. App. 1996), for guidance.
Plaintiff Simon was injured while he was a passenger in defendant Clark’s
automobile; he sued Clark and others for damages. At trial, Simon tried
unsuccessfully to introduce an insurance adjuster’s testimony that, in relevant
part, he had received medical coverage payments under Clark’s insurance
policy after the accident. In upholding the trial court’s decision to exclude the
adjuster’s testimony, we found no abuse of discretion, concluding that the trial
court “could have correctly determined [pursuant to Rule 409] that the
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 12 of 25 testimony as a whole implied to the jury that Clark was liable for any damages
resulting from” the accident. Id. at 637.
[18] Similarly, here, the evidence of Dahab’s court ordered payment of Alsaad’s
medical bills violated Rule 409. It takes no legal scholar to deduce from the
transcript that the State introduced this evidence in an attempt to invite the jury
to infer guilt. We find that these references were a violation of Indiana
Evidence Rule 409.
[19] Reviewing “in the context of all that happened” the prosecutor’s remarks about
Dahab’s court-ordered advance payments and the ISIS references that she
elicited and included in her closing remarks, and guided by Simon, we find
overwhelmingly that violations of Rules 403 and 409 occurred, the cumulative
effect of which had such an undeniable and substantial effect on the jury’s
decision that a fair trial was impossible for Dahab. Accordingly, we must
conclude that Dahab has carried his heavy burden of establishing fundamental
error that placed him in grave peril to which he would not have been
otherwise subjected. See Ryan, 9 N.E.3d at 668. Because the doctrine of
fundamental error overcomes his procedural default, we must reverse
Dahab’s conviction.
[20] We are puzzled by the dissent’s failure to find the prosecutor’s overuse of ISIS
references before the jury troubling:
. . . Dahab would have this court reach the conclusion that the deputy prosecutor deliberately introduced the challenged evidence for an improper purpose. That is, to inflame the Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 13 of 25 passions of the jury and to put [Dahab] in a position of grave peril by prejudicing the jury against him. Such a conclusion does not withstand scrutiny of the record in this case.
While it is true that the State did not directly say, “Mr. Dahab is definitively a
member of ISIS,” we find at least seventeen separate instances in the State’s
opening statement, case-in-chief, and closing argument in which the
prosecuting attorney mentioned ISIS to the jury. While we fully appreciate the
zeal that a prosecuting attorney must employ—particularly in the heat of a
felony jury trial—the drumbeat of ISIS references and the admission of Dahab’s
court-ordered advance payments of Alsaad’s hospital expenses simply violated
fair trial standards. No defendant is guaranteed a perfect trial; however, every
defendant is constitutionally guaranteed a fair trial. That did not happen here.
II. Double Jeopardy
[21] Lastly, we address whether double jeopardy permits Dahab’s retrial. “When
deciding whether retrial is permissible, we consider all of the evidence admitted
by the trial court, including any erroneously admitted evidence.” Harmon v.
State, 849 N.E.2d 726, 735 (Ind. Ct. App. 2006). “If that evidence, viewed as a
whole, would have been sufficient to sustain the judgment, retrial would not
offend double jeopardy principles.” Id. If not, however, the State may not retry
Dahab. See id.
When reviewing a claim of insufficient evidence, an appellate court considers only the evidence most favorable to the verdict and any reasonable inferences that may be drawn from that evidence. If a reasonable finder of fact could determine from the
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 14 of 25 evidence that the defendant was guilty beyond a reasonable doubt, then we will uphold the verdict. We do not reweigh the evidence or judge the credibility of witnesses. These evaluations are for the trier of fact, not appellate courts. In essence, we assess only whether the verdict could be reached based on reasonable inferences that may be drawn from the evidence presented.
Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (quotations omitted) (citations
omitted).
[22] Here, a reasonable finder of fact could determine from the State’s evidence that
Dahab was guilty beyond a reasonable doubt. Alsaad testified that Dahab
struck him twice in the head with a metal pipe, resulting in severe head
wounds. Chassix line leader Holley-Potter testified that he responded to
Alsaad’s radio distress call and observed Dahab in a posture of swinging the
pipe in preparation to hit Alsaad “again.” See Tr. Vol. III p. 24. Dahab, on the
other hand, testified that Alsaad’s severe head injuries resulted from Alsaad’s
slipping and falling onto the pipe during the men’s struggle. A reasonable
finder of fact could determine from the foregoing evidence that Dahab was
guilty beyond a reasonable doubt and could reasonably resolve the conflicts in
the witnesses’ testimony against Dahab. Because the evidence as a whole was
sufficient to sustain Dahab’s convictions, double jeopardy does not preclude
retrial.
Conclusion [23] It is clear that the double-barreled evidentiary admissions—the ISIS references
and the hospital expenses—combined to deny Dahab a fair trial. Double
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 15 of 25 jeopardy does not preclude retrial because the evidence as a whole was
sufficient to sustain Dahab’s convictions. We reverse and remand for a retrial.
[24] Reversed and remanded for retrial.
May, J., concurs.
Bradford, J., dissents with separate opinion.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 16 of 25 IN THE COURT OF APPEALS OF INDIANA
Moussa I. Dahab, Appellant-Defendant, Court of Appeals Case No. 20A03-1706-CR-1369 v.
State of Indiana, Appellee-Plaintiff.
Bradford, Judge, dissenting in part and concurring in part.
[25] Because I disagree with the majority’s conclusion that the deputy prosecutor
committed prosecutorial misconduct, I respectfully dissent in part. However, to
the extent that the majority’s conclusion renders retrial necessary, I concur with
the majority’s conclusion that double jeopardy concerns do not preclude retrial.
I. Prosecutorial Misconduct [26] Prosecutorial misconduct is a serious matter and cannot be taken lightly. At its
base, prosecutorial misconduct is a type of attorney misconduct that, if
committed, not only effects a defendant’s right to due process and fair trial but
also erodes the public’s confidence in its system of justice. A finding of
prosecutorial, like any attorney misconduct, can lead to disciplinary actions
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 17 of 25 against the offending attorney. With this in mind, a brief overview of the law
relating to prosecutorial misconduct is merited.
1. Addressing a Claim of Prosecutorial Misconduct [27] “A claim of prosecutorial misconduct requires a determination that there was
misconduct by the prosecutor and that it had a probable persuasive effect on the
jury’s decision.” Overstreet v. State, 783 N.E.2d 1140, 1154 (Ind. 2003). “The
standard to determine whether prosecutorial misconduct has occurred is
whether the conduct under all circumstances was designed to arouse the passions
of the jury or place the defendant in a position of grave peril.” Mengon v. State,
505 N.E.2d 788, 792 (Ind. 1987) (emphasis added). In determining whether
specific conduct amounted to prosecutorial misconduct, “[w]e defer to the
discretion of the trial judge who was on the scene and in the best position to
evaluate the conduct, its propriety, its inadvertence and its impact, if any, on
the jury and the fairness of the proceedings.” Id.
2. Dahab’s Prosecutorial Misconduct Claim A. An Evidentiary Harpoon [28] On appeal, Dahab claims that the State “launched an evidentiary harpoon” by
deliberately introducing evidence (A) linking him to the terrorist group ISIS and
(B) that he had been ordered to pay Alsaad’s medical bills. Appellant’s Br. p. 7.
“An ‘evidentiary harpoon’ occurs when the prosecution places inadmissible
evidence before the jury for the deliberate purpose of prejudicing the jury against
the defendant and his defense.” Roberts v. State, 712 N.E.2d 23, 34 (Ind. Ct.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 18 of 25 App. 1999) (emphasis added). Thus, in order to obtain a reversal of one’s
conviction, the defendant must prove both that the evidence was inadmissible
and that the prosecutor acted deliberately. Id. (emphasis added).
B. Evidence Linking Dahab to ISIS [29] Dahab contends that “the State of Indiana deliberately introduced evidence that
[he] was a member of the terrorist group, ISIS” and that such evidence was
irrelevant and unfairly prejudicial. Appellant’s Br. p. 13. These contentions,
however, are not supported by the record. It is important to note that the term
ISIS was only introduced into the facts of this case through Dahab’s own
words. Dahab himself referenced ISIS during a struggle that occurred after he
approached Alsaad and struck him twice in the back of the head with a pipe.
Dahab does not dispute on appeal that he referred to ISIS during his attack on
Alsaad. Dahab has pointed to nowhere in the record where any other party or
witness independently states that Dahab is a member of ISIS.
[30] Dahab acknowledges on appeal that the deputy prosecutor offered a legitimate
purpose for introducing the challenged evidence, that being to prove that
Alsaad was afraid of Dahab. Dahab claims, however, that whether Alsaad was
afraid of him is irrelevant. Thus, Dahab asserts that “the only reason for asking
such a question was to prejudice the jury against [him] by associating him with
a radical Islamic terrorist group.” Appellant’s Br. p. 16. This assertion fails to
take into account how Dahab’s words were relevant to the issue of motive.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 19 of 25 [31] We have previously concluded that “while motive is not an element of the
offense, it is always relevant in the proof of a crime.” Knight v. State, 556
N.E.2d 968, 969 (Ind. Ct. App. 1990). The record reveals that Alsaad and his
family fled Iraq after receiving threats connected to Alsaad’s work with the
United States government. One may reasonably infer that an individual
claiming affiliation to ISIS would want to seek potential retaliation for Alsaad’s
work. Dahab’s reference to ISIS, therefore, becomes relevant as it provides a
potential motive for his attack on Alsaad.
[32] Rather than have this court review the relevancy of his statement to Alsaad,
Dahab would have this court reach the conclusion that the deputy prosecutor
deliberately introduced the challenged evidence for an improper purpose. That
is, to inflame the passions of the jury and to put him in a position of grave peril
by prejudicing the jury against him. Such a conclusion does not withstand
scrutiny of the record in this case.
[33] Further, Dahab’s assertion that the deputy prosecutor acted with some
improper purpose simply by allowing the victim to testify to comments made by
Dahab during his attack on the victim to be illogical. The deputy prosecutor
acted in accordance with the trial court’s pre-trial orders. At no time did the
trial court caution the deputy prosecutor to refrain from this topic of ISIS.
Rather, the trial court indicated that it could foresee some potential relevance in
Dahab’s comments. The trial court further indicated that it would consider the
introduction of the statements in context during trial. Defense counsel did not
object and the trial court allowed Dahab’s statements to be admitted into
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 20 of 25 evidence. These statements involved a sensitive subject matter and may have
been ruled inadmissible under Evidence Rule 403 by this or another judge if an
objection had been properly made during trial. This we will never know,
however, because defense counsel made no such objections. To now transform
this record into a finding that the deputy prosecutor participated in a “clear and
blatant violation of basic elementary principles of due process[,]” see Ryan v.
State, 9 N.E.3d 663, 668 (Ind. 2014), is an inaccurate interpretation of the
record of this trial.
[34] In addition, the record does not support the inference that the deputy
prosecutor deliberately painted him as a member of ISIS during closing
argument. During closing argument, the deputy prosecutor stated the
following:
… [Alsaad] told you that he was challenged to again fight with [Dahab], saying “Come on. Come on. Come on.” Said it three times and he holds up his fingers like this to intimidate [Alsaad].[3] He’d been intimidating [Alsaad] the entire eight months since he met [Alsaad] at Chassix. That’s what was going on, that’s what [Alsaad] testified to.
Was he part of ISIS? Who knows. That was what he said. Who knows if that’s what it really was or if that’s what he knew would scare [Alsaad].…
3 At this point, the deputy prosecutor was describing another interaction between Dahab and Alsaad which occurred shortly after the incident at issue in the battery charge.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 21 of 25 Tr. Vol. III, p. 170. Once again, given that Alsaad was an Iraqi refuge who fled
Iraq after having received threats for his and his family’s safety, Dahab’s
comments were relevant to prove his motive for attacking Alsaad.
[35] The record does not support the determination that the deputy prosecutor’s
actions were deliberately designed to unfairly prejudice Dahab. As such, the
record does not support the conclusion that the deputy prosecutor committed
prosecutorial misconduct in this regard.4
C. Evidence Relating to Alsaad’s Medical Bills [36] Alsaad testified during trial that Dahab had previously been ordered to pay his
medical bills. Alsaad did not give any information regarding the circumstances
surrounding the alleged order or indicate what court had issued the order. The
statements relating to Alsaad’s medical bills were made without objection and
without comment by the trial court.
[37] Indiana Evidence Rule 409 provides that “Evidence of paying … (a) medical,
hospital, or similar expenses resulting from an injury … is not admissible to
prove liability for the injury[.]” Given the language of Indiana Evidence Rule
409, I believe that the evidence in question was inadmissible. However, I do
4 Further, it would be speculation and illogical to assume that the jury was so inflamed by the mere mention of a terrorist organization that it ignored the evidence presented during trial and automatically inferred the defendant’s guilt.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 22 of 25 not believe that the record supports an inference that the deputy prosecutor
acted with the deliberate intent to unfairly prejudice Dahab.
[38] It is important to note that a potential inaccurate grasp of the rules of evidence,
perhaps by all trial counsel in this case, does not amount to prosecutorial
misconduct. Again, the challenged statements were admitted without objection
and without comment by the trial court. There is nothing in the record to
suggest that the evidence was introduced with the deliberate intent to unfairly
prejudice Dahab. Thus, in order to find that the deputy prosecutor did act with
the deliberate intent to prejudice Dahab would require us to rely purely on
speculation. We shall not rely on speculation, but rather must rely on the
record before us on appeal. See Shafer v. Lambie, 667 N.E.2d 226, 232 (Ind. Ct.
App. 1996) (providing that “[w]e must decide the case on the record before us,
and we will not speculate as to the actual facts of a case”).
[39] Again, prosecutorial misconduct is conduct that is deliberately “designed to
arouse the passions of the jury[.]” Mengon, 505 N.E.2d at 792. It is unclear
from the record whether this evidence of liability for medical payment had any
effect on the jury, much less that it aroused their passions. To find that it did so
would again require us to rely purely on speculation, which we shall not do.
See Shafer, 667 N.E.2d 232. Thus, the record provided in this case does not
support a finding that the deputy prosecutor committed prosecutorial
misconduct in this regard.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 23 of 25 D. The Effect of the Challenged Evidence as a Whole [40] The record indicates that the challenged evidence was so inconsequential
during the course of trial that defense counsel did not even object to the
admission of the evidence. Considering that defense counsel apparently did not
believe that the challenged evidence even warranted an objection, it seems
illogical to conclude that the evidence was so bad that it warranted a finding
that the deputy prosecutor acted with the deliberate intent to unfairly prejudice
Dahab by introducing this evidence.
[41] Furthermore, the admission of the challenged evidence was harmless in light of
the other unrelated evidence of Dahab’s guilt. See Hunter v. State, 72 N.E.3d
928, 932 (Ind. Ct. App. 2017) (providing that “[t]he improper admission of
evidence is harmless error when the erroneously admitted evidence is merely
cumulative of other evidence before the trier of fact.”). Alsaad testified in detail
at trial about Dahab’s actions. Alsaad’s testimony was corroborated by the
testimony of Andrew Holley-Potter, another Chassiz employee who observed
Dahab and Alsaad struggling over the pipe while Dahab attempted to hit
Alsaad with the pipe. In addition, Dahab’s supervisor testified that
immediately after the incident, Dahab admitted that he had struck Alsaad with
the pipe. Given this evidence, it unlikely that the jury would not have found
Dahab guilty but for the challenged evidence.
Conclusion
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 24 of 25 [42] In sum, the record does not support the majority’s conclusion that the deputy
prosecutor acted with the requisite intent to support a finding of prosecutorial
misconduct. I therefore dissent from the majority’s conclusion to that effect.
Court of Appeals of Indiana | Memorandum Decision 20A03-1706-CR-1369 | March 27, 2018 Page 25 of 25