Opinion
2 CA-CR 2023-0122
01-02-2024
The State of Arizona, Appellee, v. Mustafa Nabeel Hussein, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Ashley Torkelson Levine, Assistant Attorney General, Phoenix Counsel for Appellee Law Office of Stephen M. Johnson, Phoenix By Stephen M. Johnson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2019132891001DT The Honorable Jennifer C. Ryan-Touhill, Judge
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Ashley Torkelson Levine, Assistant Attorney General, Phoenix Counsel for Appellee
Law Office of Stephen M. Johnson, Phoenix By Stephen M. Johnson Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Brearcliffe and Judge Kelly concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Mustafa Hussein appeals from his conviction and sentence for the negligent homicide of his wife, E.E. He contends the trial court erred in denying two separate motions for a mistrial. We affirm.
Factual and Procedural Background
¶2 The material facts are not in dispute. Hussein lived with E.E., their two young children, and E.E.'s parents and sister. He drove overnight shifts for Uber and Lyft, always carrying a gun "for protection." Early one morning in 2019, Hussein returned home from a shift and went upstairs to the marital bedroom. E.E. was awake in the bed. As was his habit upon returning from work, Hussein took steps to put away his gun. To check that the gun was empty, he squeezed the trigger. But he had not removed the magazine and the gun discharged. E.E. died shortly afterward from gunshot wounds to the chest.
¶3 A grand jury charged Hussein with second-degree murder. After a thirteen-day trial, the jury acquitted him of that charge and the lesser-included offense of manslaughter but found him guilty of negligent homicide. The trial court sentenced him to the presumptive term of six years in prison. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Mistrial Motions
¶4 Hussein contends the trial court erred by denying two separate motions for mistrial, urging that his conviction should be overturned and the matter remanded. The motions in question stemmed from two separate incidents.
¶5 The first occurred on the fourth day of trial, during the state's examination of its first witness, E.E.'s sister. Early in her testimony, while establishing the family background, the state elicited that the sister had become the permanent guardian of Hussein's two children, who continued to live with her and her parents. Hussein immediately objected. During the ensuing bench conference, he moved for a mistrial on the ground that the challenged testimony would have led the jury to believe either that he was in police custody or that other bad acts had led him to lose custody of his children. The state explained that the questions had been intended to prevent the jury from wondering or worrying about "what happened to these kids" because they "are taken care of" and that it did not intend to ask any further questions on the topic. The state further argued that "it's not unexpected that the children would not be living with him after something like this occurred" and that "some other act" was not implicated.
¶6 The trial court denied the motion for mistrial but sustained the objection on relevance grounds. Hussein requested a specific instruction that "there was no family court finding that he was an unfit parent in any way, and the reason he has not had custody is because he's remained in custody since that morning when he was taken into custody." The court refused to provide any instruction informing the jury that the defendant was in custody or to make any comment regarding the lack of a family court finding regarding his fitness as parent.
¶7 When the jury returned, the trial court sustained the objection and struck "the State's questions regarding the minor children and the witness's answers." It then directed the jury back to its packet of preliminary instructions, reading aloud those relating to stricken evidence and the court's evidentiary rulings. These included that stricken evidence "is no longer evidence and you must not consider it for any purpose" and that "[i]f an objection to a question is sustained, you must disregard the question and you must not guess what the answer might have been" or consider stricken responsive testimony "for any purpose."
¶8 The second incident occurred on the eighth day of trial, during the state's examination of E.E.'s mother, who testified primarily through an interpreter. The following exchange occurred:
Q. [W]hen [Hussein] was working around this time in July of 2019 as an Uber and Lyft driver, did you ever see him carrying a gun?
A. He used to carry a gun, but he make light he used to say it's unloaded gun.
[Q.] So just to make sure that I understand the interpreter, he used to carry a gun, but what was the last part of what you said?
The Interpreter: It's empty gun with no bullets.
[Q.] Okay. And did you see that the gun was empty or is that something he would tell you?
The witness answered herself as follows: "I told him one more time as a warning you have a minor children and this is dangerous for their life, and every time he told me there is no bullets in the gun." The trial court immediately called a recess.
¶9 After the jury exited the courtroom, the trial court admonished the witness to "very carefully listen to the questions that are asked" and respond accordingly, further reminding her of the other rules for testifying, particularly through an interpreter. Defense counsel then moved for a mistrial on the ground that the witness was "casting aspersions" on defendant "that are untrue in trying to say he was unsafe around his children"-that "he didn't care for his kids' safety"- characterizing this as inadmissible and prejudicial evidence of other bad acts. The court denied the motion. Once the jury returned, Hussein objected to the witness's answer as irrelevant and prejudicial under Rule 403, Ariz. R. Evid., and moved to strike it from the record. The court granted the motion and directed the jury to disregard the challenged answer.
Analysis
¶10 "A declaration of a mistrial . . . is 'the most dramatic remedy for trial error and should be granted only when it appears that justice will be thwarted unless the jury is discharged and a new trial granted.'" State v. Moody, 208 Ariz. 424, ¶ 126 (2004) (quoting State v. Dann, 205 Ariz. 557, ¶ 43 (2003)). "The decision to grant or deny a motion for mistrial rests within the sound discretion of the trial court and the failure to grant a motion for mistrial is error only if such failure was a clear abuse of discretion." State v. Koch, 138 Ariz. 99, 101 (1983). This deference stems from the fact that "the trial judge is always in the best position to determine whether a particular incident calls for a mistrial" because he or she "is able to sense the atmosphere of the trial, the manner in which the objectionable statement was made, and the possible effect it had on the jury and the trial." Id.
¶11 As to the sister's testimony that Hussein's children were in her custody, the trial court correctly concluded that the challenged question and response were logically irrelevant to the question before the jury: whether Hussein recklessly caused E.E.'s death "[u]nder circumstances manifesting extreme indifference to human life," A.R.S. § 13-1104(A)(3) (second-degree murder), by "consciously disregard[ing] a substantial and unjustifiable risk" of her death, A.R.S. §§ 13-105(10)(c), 13-1103(A)(1) (manslaughter), or by "fail[ing] to perceive a substantial and unjustifiable risk" that his conduct would cause her death, A.R.S. §§ 13-105(10)(d), 13-1102(A) (negligent homicide). As such, the court was entitled to conclude the jury would give the testimony little weight in its deliberations. Furthermore, the state's concession that Hussein was a loving and conscientious father mitigated any prejudicial impact beyond the obvious irrelevance.
¶12 By contrast, a jury might consider the mother-in-law's testimony-that she repeatedly warned Hussein about the dangers of carrying a gun near his children-relevant to the question of whether he failed to perceive a "substantial and unjustifiable risk" his conduct could cause death. See §§ 13-105(10)(c), (d), 13-1102(A), 13-1103(A)(1). Such testimony might also cause a reasonable jury to prejudicially question Hussein's fitness as a parent, notwithstanding the state's concession that he was a loving one. However, the trial court immediately called a recess after this testimony and then instructed the jury to disregard it. We must presume the jury followed that instruction. State v. Newell, 212 Ariz. 389, ¶ 68 (2006). And, we defer to the court's assessment of any remaining prejudicial impact given its superior ability to evaluate the jury's reaction and consider any impact in the context of the atmosphere of trial. See Koch, 138 Ariz. at 101.
¶13 The trial court also correctly rejected Hussein's argument that the challenged questions and responses constituted prejudicial "evidence of other crimes, wrongs, or acts" under Rule 404(b)(1), Ariz. R. Evid. The state did not attempt to prove that Hussein had displayed any recklessness regarding the lives of his children or unfitness as a parent. Rather, as discussed, the state repeatedly emphasized during trial that Hussein was a loving and conscientious father. It conceded he had taken steps every day to unload and store his gun precisely because he wanted to protect his children. Thus, the questions and answers at issue here were not aimed at "prov[ing] the character of a person in order to show action in conformity therewith." Id.
The opening brief argues only, "The jury hearing that Mr. Hussein no longer had custody of his children would lead them to believe the defendant lost his children, either in a court hearing or because of some other bad act. That is prejudicial." The reply brief raises the claim, argued before the trial court, that discussion of E.E.'s sister's guardianship of the children also "left [the jury] with the knowledge that Mr. Hussein was in custody and unavailable to care for the children," undermining the presumption of his innocence. Because Hussein did not raise this issue in his opening brief, we do not consider it. State v. Johnson, 247 Ariz. 166, n.3 (2019). We note, however, that during trial, Hussein asked as a remedy that the jury be instructed that he was in custody.
¶14 In sum, the trial court was in the best position to determine whether the stricken portions of testimony warranted a mistrial. Koch, 138 Ariz. at 101. It determined that such a dramatic remedy was not necessary to ensure that Hussein received a fair trial. See Moody, 208 Ariz. 424, ¶ 126. Instead, it ordered the offending questions and answers stricken and directed the jury to disregard them, including in the first instance re-reading the preliminary instructions that stricken material could not be considered "for any purpose." Presuming, as we must, that the jurors followed the court's instructions, Newell, 212 Ariz. 389, ¶ 68, and deferring to the trial court's superior ability to assess the jury's reaction in the context of the trial, we find no abuse of the court's broad discretion in its denial of Hussein's two motions for a mistrial, see Koch, 138 Ariz. at 102.
Disposition
¶15 For the foregoing reasons, we affirm Hussein's conviction and sentence.