{
  "id": 4777333,
  "name": "STATE OF NORTH CAROLINA v. ABDUL MALIK MUTAKBBIC",
  "name_abbreviation": "State v. Mutakbbic",
  "decision_date": "1986-07-02",
  "docket_number": "No. 547A84",
  "first_page": "264",
  "last_page": "275",
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          "parenthetical": "incest prosecution; error to exclude evidence of declaration of defendant's daughter, the prosecuting witness, that her father was \"too tight on her\" and she could \"have a lot more fun if her daddy wasn't at home\""
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  "last_updated": "2023-07-14T14:55:24.016055+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "STATE OF NORTH CAROLINA v. ABDUL MALIK MUTAKBBIC"
    ],
    "opinions": [
      {
        "text": "EXUM, Justice.\nThe victim in this case was an eight-year-old child in July 1983, the time of the offenses alleged in the indictments. She lived with her maternal grandmother, Betty Veal; but for one week during July 1983 Veal arranged for her to stay with the child\u2019s mother, Jewel Upchurch. Upchurch lived in a rooming house two to four blocks from the house where defendant lived with his wife Brenda, who was Upchurch\u2019s sister. Defendant is thus the victim\u2019s uncle by marriage.\nDefendant\u2019s appeal presents questions relating first to the admissibility of evidence tending to show animosity toward defendant by Veal, who was not a state\u2019s witness but who reported the incidents out of which the prosecutions arose to the Social Services Department, and second to various rulings of the trial court concerning the state\u2019s closing jury argument and the jury\u2019s possible consideration of a Social Services Department report reduced to writing but not offered into evidence in the case. We find no error in the trial.\nI.\nThe child testified that on several occasions during the week she spent with her mother in the summer of 1983, when defendant was alone with her after they had taken defendant\u2019s wife to work, defendant would remove their clothes and force her to engage in vaginal and anal intercourse. He occasionally gave her money in return. The child said she told her grandmother Veal about these incidents when she returned to Veal\u2019s home. She also related the incidents to Frederica McKeithan of the Wake County Department of Social Services, and to Dr. Jerry Bernstein, both of whom testified for the state.\nFrederica McKeithan, a child protective services investigator with the Wake County Department of Social Services, testified she first became involved with this case when a neglect report received by a colleague on 22 July 1983 was forwarded to her. McKeithan first spoke with Veal on 4 August 1983 by telephone regarding that report. During this conversation Veal mentioned to McKeithan possible sexual molestation of her granddaughter by defendant. An appointment for McKeithan to interview the child on 8 August was then made. According to McKeithan, no references to sexual molestation appeared in the 22 July 1983 report. McKeithan interviewed the child on 8 August 1983 to investigate the reports of abuse and neglect. McKeithan testified that it was a \u201clong interview\u201d in which she had to spend a lot of time with the child before the child \u201cwould start telling me these things that she evidently was not real open about.\u201d Finally, the child told her about having had vaginal and anal sexual intercourse with her uncle, Abdul Mutakbbic. During her interview McKeithan was able to establish the dates on which these events occurred as being 17, 18 and 19 July 1983, the dates eventually set out in the bills of indictment. Based upon what the child told her, McKeithan made an appointment for the child to be examined by Dr. Jerry Bernstein, a Raleigh pediatrician and child medical examiner. Dr. Bernstein\u2019s 10 August 1983 examination of the child revealed a much larger vaginal opening than is normal for the child\u2019s age. Armed with Dr. Bernstein\u2019s findings and the information gained in her interviews with the child, McKeithan reported the matter to the district attorney\u2019s office because, in her words, \u201cthat is the law.\u201d\nDefendant and various family members and friends testified they had been at defendant\u2019s home over the entire period when the victim claims the sexual assaults took place. They all saw the girl only once that week for a short time when she was looking for her mother. On cross-examination defendant, thirty years old at trial, admitted he had pleaded guilty in March 1974 to attempted rape and had been convicted in June 1981 in Wake County District Court of assault on his wife Brenda.\nDefendant called as his witness Veal, whose testimony substantially corroborated the victim\u2019s. Veal, on direct examination by defendant, testified that when she brought the child back to her home from Upchurch\u2019s house in July 1983, the child behaved strangely but would not say what was troubling her. Finally after a \u201ccouple of days,\u201d while the two were watching television in the evening, the following conversation between them occurred:\n[S]he [the child] said, \u2018Grandma, I love you.\u2019 I said, \u2018. . . do you have anything you want to tell me?\u2019 She said, \u2018No\u2019; I said, \u2018O.K., we are going to sit here and look at television and if you have anything you want to tell me, go ahead, I\u2019m listening.\u2019 So she set there about five minutes, and so she said, \u2018If I tell you, can you keep a secret?\u2019 I said, \u2018Yes, I can keep a secret.\u2019 I said, \u2018What is the secret?\u2019 She said, \u2018I\u2019m afraid to tell.\u2019 I said, \u2018Well, you don\u2019t have to be afraid to tell me.\u2019 I said, \u2018You can tell me.\u2019 So then she told me she said, \u2018My Mama sent me down to Brenda\u2019s.\u2019 I said, T told her not to send you down there.\u2019 She said, \u2018Well, she sent me down there.\u2019 And she hesitated, and she said, \u2018Abdul did something.\u2019 I said, \u2018What did he do?\u2019 And she said, \u2018I\u2019m scared to tell.\u2019 I said, \u2018Well, you don\u2019t have to be scared to tell me.\u2019 And she told me, said, \u2018He did like that\u2019; I said, \u2018Did what like that?\u2019 And she said, \u2018He put his privates in me.\u2019\nVeal said she called McKeithan \u201cthe next day.\u201d Regarding what she told McKeithan, Veal testified as follows:\nQ. O.K., and when you talked to Ms. McKeithan, did you talk about Abdul?\nA. Talk about Abdul?\nQ. Yes, did you mention Abdul to Ms. McKeithan?\nA. I\u2019m not certain. I know I told her what [the child] had said. I might have. I had to explain to her what [the child] said to me in order for her to understand what I was getting at.\nQ. So you did tell Ms. McKeithan that [the child] had told you Abdul had put his privates in her?\nA. Like I said, I\u2019m not certain. I might have. I had to explain to her so she would come out and help me with the problem.\nWhen asked if she had ever had an \u201cargument, disagreement, a falling out\u201d with defendant, her reply and the succeeding colloquy was as follows:\nI wouldn\u2019t say exactly a falling out. I had some trouble with him about beating my daughter up in my house and I asked him whenever he decided to do it, to do it at his own house, not mine.\nQ. Did you ever tell him you would get him?\nA. Get him about what?\nQ. About an argument you all had at a birthday party at his house?\nA. No.\nDuring the presentation of defendant\u2019s evidence he sought unsuccessfully to offer testimony from Veal\u2019s daughters, Up-church and Brenda Mutakbbic, regarding certain threats Veal had made against them and against defendant. He also sought unsuccessfully to testify himself about his beliefs and opinions concerning Veal\u2019s attitude toward him and his belief that Veal had encouraged the child to testify against him. Defendant brings forward an assignment of error directed to the trial court\u2019s rulings that this evidence was inadmissible.\nAfter the state\u2019s closing argument defendant moved for a mistrial on the ground portions of the argument were not supported by the evidence. The motion was denied. During jury deliberation, the jurors inquired of the court whether it is \u201cpermissible to receive a copy of [a] document referred to in the testimony so we might read information originated on it, etc.?\u201d The court after a bench conference with counsel for the state and defendant informed the jurors that only documents introduced into evidence could be viewed by them. It agreed to allow the jury to see the only document offered into evidence the following morning after the evening recess. The following morning defendant moved the court to inquire of the jury what document not in evidence it had inquired about the previous afternoon. The motion was denied. Thereafter while the jury was deliberating defendant moved to reopen the evidence in order that the 22 July 1983 report to the Social Services Department might be offered into evidence and the jury permitted to see it. The motion was denied. Finally after the verdict defendant moved that the jurors be polled as to whether in reaching a verdict they considered that the 22 July 1983 report to the Social Services Department was made by Veal and, if so, that the report contained information from Veal that defendant had molested the child. The motion was denied. Defendant brings forward assignments of error directed to each of the foregoing rulings of the trial court.\nII.\nDefendant first argues the trial court committed reversible error in refusing to admit the testimony of Brenda Mutakbbic and Upchurch tending to show their mother Veal bore animosity for defendant and defendant\u2019s testimony that he believed Veal coerced her granddaughter to accuse him of rape.\nJudge Ellis sustained the state\u2019s objections to Brenda Mutakbbic\u2019s proffered testimony that Veal had threatened \u201cto get [defendant] one way or the other\u201d when the two were present in Mrs. Mutakbbic\u2019s hospital room in 1981, and had told defendant at Veal\u2019s son\u2019s birthday party at defendant\u2019s home on 23 April 1983, \u201cI\u2019m still going to get you.\u201d On cross-examination, Mrs. Mutakbbic admitted that Veal\u2019s statements followed a 1981 incident when she was hospitalized as a result of a beating defendant inflicted and for which he was convicted of assault. Judge Ellis found these alleged threats irrelevant and too remote, and declined to admit that testimony. Judge Ellis also excluded Upchurch\u2019s proffered testimony that in late 1982 at her cousin\u2019s trailer Veal threatened to kill defendant and on other occasions Veal said she did not like defendant.\nJudge Ellis permitted defendant to testify on direct examination to the above-mentioned threats by his mother-in-law but refused to allow defendant to testify before the jury as follows:\nQ. Do you know of any reason why she [the prosecuting witness] would tell?\nA. [She] would not tell this if someone would not be telling her to do this and I do believe that Ms. Betty told her to say this.\nQ. Tell us why you believe Ms. Betty told her to do this?\nA. This is a way of getting me out of the way.\nQ. Well, what has Ms. Betty ever said to you to cause you to think she might do this to you?\nA. \u2018Cause she had constantly said she would get me back no matter what it takes; she would break me no matter what it cost, she would do it.\nQ. How many times has she told you that?\nA. She\u2019s told me this when we was living in \u2014 with Johnny Veal, her first husband; Johnny Veal told me, \u201cAbdul.\u201d Well, anyway, Ms. Betty have told me on many occasions in Durham, here in Raleigh, and Wakefield Apartments, over to her home, to Lillian, to, I can\u2019t call her name that well, it was relatives, you know, and also I was over to Ms. Ella McLean, Brenda\u2019s grandmother, and she made threats over there about getting rid of me.\nDefendant relies first on the principle that a criminal defendant may offer evidence of declarations made by the prosecuting witness which tend to show animosity or bias toward defendant. State v. Wilson, 269 N.C. 297, 152 S.E. 2d 223 (1967) (incest prosecution; error to exclude evidence of declaration of defendant\u2019s daughter, the prosecuting witness, that her father was \u201ctoo tight on her\u201d and she could \u201chave a lot more fun if her daddy wasn\u2019t at home\u201d). He also relies on State v. Flowers, 184 N.C. 688, 114 S.E. 289 (1922) (an embezzlement prosecution) for the principle that a criminal defendant may offer evidence that a prosecution against him was actually instigated by someone other than the prosecuting witness because of the instigator\u2019s personal bias against the defendant.\nNeither of these cases controls us here. Veal was not the prosecuting witness nor is there any competent evidence, proffered or admitted, that Veal instigated the prosecution. Defendant\u2019s \u201cbelief\u2019 or surmise that she did is not competent. Witnesses must testify to facts, not beliefs or surmises. All the competent evidence both for the state and defendant demonstrates, in fact, that Veal did not instigate the prosecution. The child first volunteered the information about the sexual assaults to Veal. Veal, rather than reporting the incidents to law enforcement authorities in order to begin a criminal prosecution, contacted a social worker, McKeithan, to obtain assistance for her granddaughter. Subsequently, McKeithan conducted an independent investigation. McKeithan\u2019s independent investigation, not anything Veal reported, caused McKeithan to report the matter to the district attorney who, in turn, made a decision to prosecute.\nJudge Ellis properly excluded evidence purporting to show Veal\u2019s bias against defendant because Veal neither testified for the state nor instigated defendant\u2019s prosecution. The proffered evidence thus was irrelevant. He also properly excluded defendant\u2019s \u201cbelief\u2019 about Veal\u2019s motives and actions because this constituted mere speculation and conjecture, not facts.\nIII.\nDefendant\u2019s three remaining arguments all relate to the 22 July 1983 report made to the Department of Social Services. Social worker McKeithan testified a colleague in her office received this report. She refused to divulge the reporter\u2019s name or the contents of that report or other reports based on her subsequent investigations. She relied on N.C.G.S. \u00a7 7A-544, which reads in pertinent part as follows: \u201cAll information received by the Department of Social Services shall be held in strictest confidence by the Department.\u201d McKeithan did say the 22 July 1983 report did not mention sexual abuse; she first learned of that possibility in her telephone conversation with Veal on 4 August 1983. Veal, when called by defendant, testified that although \u201cnot certain,\u201d she \u201cmight have\u201d told McKeithan in July several days after the child\u2019s return to her home about the possible sexual assaults.\nA.\nAfter the state\u2019s closing argument, which was not transcribed and is not brought forward on appeal, defendant moved for a mistrial apparently because the prosecutor had argued to the jury that Veal had first reported the sexual assaults described by the child on 22 July 1983. Defendant says the argument was unfair, contrary to the state\u2019s own evidence, and not supported by any other evidence in the case. He argues the denial of his motion constitutes reversible error.\nWe disagree. First, we note defendant failed to register an objection at any time during the prosecutor\u2019s argument. Second, the prosecutor properly may argue to the jury facts in evidence and reasonable inferences therefrom, regardless of whether the state or defendant introduced those facts into evidence. Here, although McKeithan, the state\u2019s witness, testified contrary to the state\u2019s jury argument, Veal, called by defendant, gave testimony which tends to support the argument. Finally, rulings on mistrial motions based on trial error are matters for the exercise of the trial court\u2019s discretion. State v. Rogers, 316 N.C. 203, 341 S.E. 2d 713 (1986). The ruling here was well within the discretionary ambit of the trial court.\nB.\nWe likewise find no merit to defendant\u2019s argument that denial of his motion to reopen the evidence to permit introduction of the 22 July 1983 report while the jury was deliberating constituted reversible error. Again, this is a discretionary ruling. State v. Shutt, 279 N.C. 689, 185 S.E. 2d 206 (1971). Judge Ellis\u2019s decision not to reopen the case to admit additional evidence, \u201c. . . being a matter within his discretion, will not be disturbed unless it is \u2018manifestly unsupported by reason,\u2019 White v. White, 312 N.C. 770, 777, 324 S.E. 2d 829, 832 (1985), or \u2018so arbitrary that it could not have been the result of a reasoned decision,\u2019 State v. Wilson, 313 N.C. 516, 538, 330 S.E. 2d 450, 465 (1985).\u201d State v. Parker, 315 N.C. 249, 258-59, 337 S.E. 2d 497, 502-03 (1985). A trial judge\u2019s decision only amounts to an abuse of discretion if there is \u201cno rational basis\u201d for it. Id.\nWe find ample support for Judge Ellis\u2019s decision not to reopen the case and allow the report into evidence. First, no effort was made by defendant during trial to have the report introduced, although defendant knew then of its existence. Second, the evidentiary conflict defendant sought to resolve by introducing the document was relatively insignificant. It concerns whether Veal first mentioned the sexual abuse of her granddaughter to McKeithan on 22 July or on 4 August 1983. The state\u2019s case was not based on what Veal knew or reported. It was based on the child\u2019s testimony, McKeithan\u2019s independent investigation of all the circumstances, and the testimony of Dr. Bernstein.\nC.\nWe find no reversible error in the trial court\u2019s denial of defendant\u2019s motion to inquire of the jury which document not in evidence it had inquired about. Assuming, arguendo, this was the 22 July 1983 report, we have already noted the relative insignificance of this report. The jury could not have seen it because it was not in evidence. To ask the jury whether it inquired about the report would have been a needless and fruitless exercise.\nD.\nFinally, the trial court properly denied defendant\u2019s motion to poll the jurors after verdict to determine whether they had considered that Veal had made the 22 July 1983 report and whether it contained allegations of possible child abuse. N.C.G.S. \u00a7 15A-1240(a) states:\nUpon an inquiry into the validity of a verdict, no evidence may be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined.\nThis statute provides firm ground for the trial court\u2019s denial of defendant\u2019s motion.\nIn this trial we find\nNo error.\n. The trial court, in order to preserve Ms. McKeithan\u2019s report for the appeal, sealed a copy of the report and had it delivered to this Court with the record on appeal.\n. In connection with these arguments, defendant moves this Court to amend the record on appeal to add a photograph of a chalkboard drawing used by the jury during its deliberations. The drawing represents the calendar for the last two weeks in July and the first two weeks in August 1983. It shows the jury identified 17, 18 and 19 July as the dates of the offenses charged. For 22 July it wrote \u201ccontact with S. Services\u201d; for 4 August, \u201cappointment\u201d; for 8 August, \u201cS. worker\u201d; for 10 August, \u201cdoctor\u201d; and for 11 August, \u201carrest.\u201d Defendant\u2019s motion is allowed.",
        "type": "majority",
        "author": "EXUM, Justice."
      }
    ],
    "attorneys": [
      "Lacy H. Thornburg, Attorney General, by James E. Magner, Jr., Assistant Attorney General, for the state.",
      "William G. Ransdell, Jr. for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. ABDUL MALIK MUTAKBBIC\nNo. 547A84\n(Filed 2 July 1986)\n1. Rape and Allied Offenses \u00a7 19\u2014 indecent liberties with child \u2014 testimony that victim\u2019s grandmother bore animosity to defendant \u2014 not admitted\nThe trial court did not err in the prosecution of defendant for first degree rape and taking indecent liberties with his niece by marriage by refusing to admit testimony showing that the victim\u2019s grandmother, with whom she lived, bore animosity for defendant and testimony that defendant believed the grandmother coerced the victim to accuse him of rape. The grandmother was not the prosecuting witness and there was no competent evidence that she instigated the prosecution; all of the evidence showed that the prosecution was initiated after a social worker reported the matter to the district attorney following her own independent investigation.\n2.-Criminal Law \u00a7\u00a7 102.6; 128.1\u2014 the State\u2019s closing argument \u2014 facts not in evidence-mistrial denied \u2014 no error\nThe trial court did not err in denying defendant\u2019s motion for a mistrial following the State\u2019s closing argument in a prosecution for rape and taking indecent liberties where the prosecution argued that the victim\u2019s grandmother first reported the sexual assaults on 22 July, the social worker\u2019s testimony had been contrary to that argument, but the victim\u2019s grandmother, called by defendant, gave testimony which tended to support the argument. The prosecution may properly argue facts in evidence or reasonable inferences therefrom regardless of whether the State or defendant introduced those facts, defendant failed to register an objection during the argument, and rulings on mistrial motions are for the trial court\u2019s discretion. N.C.G.S. \u00a7 7A-544 (1985 Cum. Supp.).\n3. Criminal Law \u00a7 101.4\u2014 motion to reopen evidence during deliberations \u2014 denied \u2014 no error\nThe trial court did not err in a prosecution for rape and taking indecent liberties with a child by denying defendant\u2019s motion to reopen the evidence during jury deliberations to permit introduction of the original neglect report. The matter was within the trial court\u2019s discretion, there was ample support for his decision in that no effort was made by defendant during trial to have the report introduced even though defendant knew of its existence, and the evidentiary conflict defendant sought to resolve by introducing the document was relatively insignificant.\n4. Criminal Law \u00a7 101.4\u2014 motion to inquire into which document the jury was inquiring about \u2014 denied\u2014no error\nThe trial court did not err in a prosecution for rape and taking indecent liberties with a child by denying defendant\u2019s motion to inquire of the jury which document not in evidence it had inquired about; assuming the document was a neglected child report to social services, the document was relatively insignificant and was not in evidence.\n5. Criminal Law \u00a7 126\u2014 motion to poll jury to determine whether they had considered particular evidence \u2014denied\nThe trial court did not err in a prosecution for rape and taking indecent liberties with a child by denying defendant\u2019s motion to poll the jurors after the verdict to determine whether they had considered whether the victim\u2019s grandmother had made a neglected child report to social services and whether the report contained allegations of possible child abuse. N.C.G.S. \u00a7 15A-1240(a).\nAppeal by defendant from judgments by Ellis (B. Craig), J., at the 11 June 1984 Criminal Session of Wake County Superior Court, sentencing him to two consecutive life terms, a third concurrent life term, and three concurrent ten-year terms, upon his convictions of three counts of first degree rape and three counts of taking indecent liberties with a child. This Court allowed defendant\u2019s petition to bypass the North Carolina Court of Appeals as to his appeals from the indecent liberties convictions.\nLacy H. Thornburg, Attorney General, by James E. Magner, Jr., Assistant Attorney General, for the state.\nWilliam G. Ransdell, Jr. for defendant appellant."
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