Commonwealth v. Amran , 471 Mass. 354 ( 2015 )


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    SJC-11686
    COMMONWEALTH   vs.   ASIM AMRAN.
    Worcester.       February 6, 2015. - April 30, 2015.
    Present:   Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.
    Homicide. Evidence, Photograph, Inflammatory evidence. Jury
    and Jurors. Practice, Criminal, Capital case, Mistrial,
    Instructions to jury, Assistance of counsel, Jury and
    jurors, Deliberation of jury, Voir dire.
    Indictment found and returned in the Superior Court
    Department on November 20, 2009.
    The case was tried before Janet Kenton-Walker, J.
    Leslie W. O'Brien for the defendant.
    Stephen J. Carley, Assistant District Attorney, for the
    Commonwealth.
    SPINA, J.    The defendant was convicted of killing his wife
    with deliberate premeditation.     On appeal he alleges error in
    (1) the admission of photographs prejudicially depicting the
    victim's body in an advanced state of decomposition, and lacking
    any relevance to any issue at trial; (2) the failure to grant a
    mistrial after the medical examiner testified that the victim's
    2
    death was a homicide, when the defense was that it was a
    suicide; (3) the admission of the defendant's statement to
    police with no redactions of (i) inadmissible accusations by
    police, (ii) assertions that police had inculpatory evidence
    that was not presented to the jury, and (iii) hearsay; and (4)
    the failure to conduct a voir dire of jurors after at least one
    juror had been exposed to prejudicial extraneous material.       We
    affirm the conviction and decline to exercise our powers under
    G. L. c. 278, § 33E.
    1.    Background.    The jury could have found the following
    facts.    We reserve additional details for discussion of
    particular issues.    The defendant and the victim were married in
    Pakistan in 2003 or 2004.     The marriage was arranged by the
    defendant's family.     Shortly after the marriage, the defendant,
    an American citizen, returned to the United States with the
    victim.    She spoke no English and did not drive.   She was
    entirely dependent on the defendant's family for companionship
    and transportation.     The couple had a son with whom the victim
    was very close.
    The couple came under stress after the defendant lost a
    lucrative job.    They began arguing and discussed separating.     In
    2008, their financial circumstances forced them to move to an
    apartment owned by the defendant's parents in Fitchburg.       That
    year the defendant obtained employment as a staff nurse at a
    3
    nursing home in Tewksbury.   One of his responsibilities included
    administering medications, including morphine, to residents of
    the nursing home.   The system used by the nursing home to
    account for medicating residents did not track the actual
    administration of the medications.    That is, it did not account
    for a staff member who kept the medication rather than give it
    to the resident.
    During the fall of 2008 the defendant met a woman, Sara, at
    a Worcester nightclub.    After about one month they started a
    relationship.   He occasionally stayed at her apartment, and he
    began supporting her.    The defendant's wife learned of his
    affair, and their marriage further deteriorated.    She confided
    in her sister-in-law, with whom she was close, often crying, and
    expressing feelings of depression and a desire to take her own
    life.   She contacted a homeopathic doctor in Virginia.
    On December 31, 2008, Sara told the defendant that he had
    to choose between her and the victim by the end of that day.     He
    went home, where he and the victim argued.    After, he left and
    took their three year old son with him.    They went to Sara's
    apartment.   He told Sara, who had a young son of her own,
    "That's your son.   You have two kids now."   The defendant stayed
    at Sara's apartment that night.    When she awoke he was gone.
    She reached him by telephone.    He told her the victim was drunk
    and he was taking care of her.    At about noon Sara again
    4
    telephoned him.    He said he was on his way, but it would take
    some time because of a bad storm.    He arrived at Sara's
    apartment at about 4:30 P.M.     The defendant said the victim had
    gone to his aunt's house in Virginia.
    On January 2 or 3, 2009, one of the defendant's brothers
    learned that the victim was missing.    Some of her relatives had
    been concerned and tried unsuccessfully to contact her.     The
    defendant's brother went to the defendant's and victim's
    apartment and saw "a lot of stuff moved around."     On January 4 a
    Fitchburg police detective went to the defendant's apartment to
    investigate a missing persons report concerning the defendant's
    wife and son.    He noticed the apartment was neat, with the
    exception of the den, which was in total disarray.    The
    detective asked the defendant to come to the police station for
    an interview.    Later that day the defendant went to the
    Fitchburg police station with his son.    He told the detective he
    and his wife were constantly arguing, and she had left him.        He
    said she had gone to Virginia.
    The defendant gave several inconsistent accounts of his
    wife's absence to various people.    He told one brother she had
    moved to Florida and he would join her in the near future.        He
    told another brother that she disappeared and he had no idea
    where she was.    He told an investigator with the Department of
    Children and Families that his wife had left him for another man
    5
    around January 1 and her family suspected she was in Virginia.
    The victim's family tried for months to locate her.   The State
    police became involved, and that investigation also lasted
    months.
    Sara repeatedly questioned the defendant about the victim.
    He eventually told her that he caused the victim to become
    unconscious, then cut her, and put her in a suitcase.      He showed
    Sara the traffic rotary in Oxford where he had disposed of the
    body.   On August 17, 2009, Sara spoke with police and showed
    them where the defendant had disposed of the victim's body.
    Police recovered the body from the bottom of an embankment.
    An autopsy revealed that the victim's remains were in an
    advanced state of decomposition.   There was no evidence of
    trauma to the body, but laboratory results indicated the
    presence of morphine.   The precise cause of death could not be
    determined due to the extent of decomposition, but there was
    still sufficient morphine to cause death.
    On August 20, 2009, police executed a search warrant at the
    defendant's apartment in Fitchburg.   Various medications and
    pills were seized, including three tablets containing morphine.
    The defendant was arrested.   On September 17, 2009, the
    defendant telephoned Sara from the jail where he was being held.
    He instructed her to contact one of his brothers, who had a
    letter for her.   Police searched the brother's home and
    6
    retrieved a letter purporting to be Sara's confession,
    describing how she had poisoned the victim with morphine.       The
    letter was in the defendant's handwriting.    He had instructed
    his brother to have Sara copy it in her handwriting.
    The defendant testified at trial.    He described the
    deterioration of his marriage and his relationship with Sara.
    He testified that on the morning of December 31, 2008, his wife
    was asleep and there were empty pill bottles in their apartment.
    When he checked on her later, she had died.    He tried
    unsuccessfully to revive her.    He did not call for help because
    he believed he would be suspected of causing his wife's death,
    citing the facts that he was a cheating husband, a former
    Marine, and a nurse.    He brought his son to Sara's apartment.
    He testified that he told Sara what happened and they discussed
    the need to get rid of the victim's body.    He returned to his
    apartment, wrapped the victim's body in plastic, and placed it
    in a suitcase.    He drove to Oxford and threw the body over the
    side of a road.   The defendant said he had lied to police
    because he thought they would not believe the truth.      The
    defendant said that he wrote the letter for Sara to copy before
    he received the autopsy report, and only guessed as to what
    drugs were in the victim's body.
    2.   Photographs of the victim's body.    The defendant argues
    that the admission in evidence of two postmortem photographs of
    7
    the victim's body in an advanced state of decomposition was
    prejudicial, with no offsetting probative value related to any
    issue in the case.    One of the photographs depicts the body as
    it was found in a suitcase, in a fetal position wrapped in
    plastic.   The other photograph depicts the body on the autopsy
    table.   The defendant objected, so we review under the
    prejudicial error standard.    See Commonwealth v. Flebotte, 
    417 Mass. 348
    , 353 (1994).   "The question whether the inflammatory
    quality of a photograph outweighs its probative value and
    precludes its admission is determined in the sound discretion of
    the trial judge."    Commonwealth v. Pena, 
    455 Mass. 1
    , 12 (2009),
    quoting Commonwealth v. DeSouza, 
    428 Mass. 667
    , 670 (1999).
    The resolution of this issue is controlled by Commonwealth
    v. Nadworny, 
    396 Mass. 342
    , 366-367 (1985), cert. denied, 
    477 U.S. 904
     (1986).    In that case, we affirmed the admission of
    similar photographs, reasoning that "the state in which the body
    was found, bound into a position [and wrapped in a plastic bag]
    which would best effectuate transportation and concealment, as
    well as its advanced state of decomposition, was evidence of
    malice and consciousness of guilt and thus probative of guilt.
    Moreover, the pictures were relevant to assist the jury in
    understanding the pathologist's testimony, particularly as to
    the fact that the decomposition prevented establishing precise
    cause and time of death."     
    Id.
    8
    The judge took measures to mitigate any potential prejudice
    from the two photographs by alerting the venire during jury
    selection that graphic photographs might be admitted in
    evidence, and she asked potential jurors if that might cause
    anyone particular difficulty.     She excused potential jurors who
    responded affirmatively.   The judge prohibited the Commonwealth
    from displaying the photographs on a high-resolution video
    screen, and invited jurors who did not wish to view the
    photographs to pass them along.    She cautioned the jury four
    times that the photographs were only to be considered for
    "clinical" and "medical issues," "the nature of the injuries, or
    the nature of the incident itself," and not "to evoke sympathy
    or emotion" for the deceased.    She also limited the Commonwealth
    to two postmortem photographs.     The judge proceeded with the
    degree of care and special attention that we have recommended
    for the admission of such photographs.    See Commonwealth v.
    Cardarelli, 
    433 Mass. 427
    , 432 (2001); Commonwealth v.
    Vizcarrondo, 
    431 Mass. 360
    , 362-363 & n.2 (2000); Nadworny, 
    396 Mass. at 367
    .   There was no abuse of discretion.
    3.   Motion for mistrial.     Defense counsel filed a motion in
    limine that sought to prevent the medical examiner from
    testifying, as he had before the grand jury, that the cause of
    death was "homicide, poisoned by another, [and] homicidal
    violence."   The prosecutor had argued that the medical examiner
    9
    at least should be permitted to testify that in his opinion the
    victim was "poisoned by another."   The judge expressed doubt
    that "poisoned by another" would be admissible, but she allowed
    for the possibility that an opinion as to "morphine poisoning"
    might be admissible.   She deferred action on the motion until
    she heard the medical examiner's testimony as it developed.      At
    trial, when asked for his opinion as to cause of death, the
    medical examiner said "homicidal violence."   Defense counsel
    immediately objected and moved for a mistrial.   There was no
    suggestion that the prosecutor knowingly elicited that opinion.
    The judge denied the motion for a mistrial but said she would
    strike the answer and give a curative instruction to the effect
    that the doctor's answer was beyond his area of expertise and
    must be disregarded.   Trial counsel did not object, and
    indicated that the judge's proposed curative instruction was
    acceptable.
    The judge instructed the jury immediately after the sidebar
    conference that the doctor's answer with respect to "homicide"
    was struck and that they must disregard it.   She explained that
    the doctor was qualified to give an opinion as to the cause of
    death in medical terms, but he could not testify that the
    victim's death was a homicide.   She further explained that the
    method by which death occurred was a question reserved for the
    jury.   The defendant did not object to the curative instruction
    10
    or request any further instruction.    The defendant now argues
    that the curative instruction was inadequate to cure the
    prejudice interjected by the medical examiner, and that the
    judge abused her discretion in denying the motion for a
    mistrial.
    "A trial judge retains broad discretion in deciding whether
    to declare a mistrial, and this court should defer to that
    judge's determination of whether [there was] prejudicial error,
    how much any such error infected the trial, and whether it was
    possible to correct that error through instruction to the jury."
    Commonwealth v. Thomas, 
    429 Mass. 146
    , 157 (1999).    This court
    has said that the term "homicide" implies no liability in law.
    See Commonwealth v. Lannon, 
    364 Mass. 480
    , 483 (1974).     However,
    its use by the medical examiner here, particularly where the
    defense was suicide, probably created the impression that death
    was brought about by criminal means.    This was an impermissible
    expression of opinion that intruded on the function of the jury.
    See 
    id. at 483-484
    .   A trial judge is in the best position to
    determine whether a mistrial, an extreme measure available to a
    trial judge to address error, is necessary, or whether a less
    drastic measure, such as a curative instruction, is adequate.
    See Commonwealth v. Costa, 
    69 Mass. App. Ct. 823
    , 826-827
    (2007); Commonwealth v. Riberio, 
    49 Mass. App. Ct. 7
    , 10-11
    (2000).
    11
    Where the judge promptly struck the improper testimony and
    gave a highly specific curative instruction, the judge acted
    appropriately and within her discretion.   See Commonwealth v.
    Chubbuck, 
    384 Mass. 746
    , 753 (1981); Costa, supra.     The curative
    instruction was acceptable to very experienced defense counsel,
    which is some indication of its effectiveness.   Moreover, the
    medical examiner had been unable to articulate a precise cause
    of death due to the advanced state of decomposition.     The jury
    are presumed to follow the judge's instruction, Commonwealth v.
    Mendes, 
    441 Mass. 459
    , 470 (2004), and we see no reason to think
    otherwise.
    Finally, the judge instructed the jury in her final
    instructions, five times, that the Commonwealth had to prove
    beyond a reasonable doubt that the defendant caused the victim's
    death, that it was not an accident, that he intended to kill the
    victim, and that the defendant acted with deliberate
    premeditation.   She also reminded the jury that they were not to
    consider any matter that she had struck and told them to
    disregard.   We are satisfied that any potential prejudice that
    flowed from the medical examiner's testimony was neutralized by
    the judge's careful attention and her curative instruction.
    4.   Defendant's statement.   The defendant had given a
    statement to two State police officers that was video recorded
    and shown to the jury.   A transcript of the statement was
    12
    provided to each juror.   Portions of the interview contain
    numerous accusations that he was lying to the officers,
    statements by the officers implying they had inculpatory
    evidence beyond that presented to the jury, and hearsay
    statements that violated his right of confrontation.   The
    defendant now argues that those portions should have been
    redacted.
    In Commonwealth v. Santos, 
    463 Mass. 273
    , 288-289 (2012),
    we held that admission of interrogating officers' frequent
    accusations that the defendant was lying during a recorded
    statement played to the jury ran afoul of the fundamental
    principle that a witness cannot be asked to assess the
    credibility of his testimony or that of other witnesses.      
    Id.,
    citing Commonwealth v. Dickinson, 
    394 Mass. 702
    , 706 (1985).
    Similarly, "[o]pinions of the interrogating detectives that the
    defendant is guilty and lying . . . and police reiteration of
    accusations by third parties that the defendant has denied, are
    not admissible."   Commonwealth v. Spencer, 
    465 Mass. 32
    , 48-49
    (2013).   It is improper for a Commonwealth witness to imply that
    he or she possesses inculpatory information beyond what the jury
    has heard.   Cf. Commonwealth v. Meuse, 
    423 Mass. 831
    , 832 (1996)
    (improper for prosecutor to imply he has special knowledge
    concerning information not presented at trial).   Finally,
    admission of testimonial statements of persons who did not
    13
    testify and who were not subject to cross-examination generally
    is proscribed by the Sixth Amendment to the United States
    Constitution.   See Crawford v. Washington, 
    541 U.S. 36
    , 57-59
    (2004).   The defendant did not object to the admission of the
    portions of his statement he now asserts should not have been
    presented to the jury.   We review to determine if any error
    created a substantial likelihood of a miscarriage of justice.
    See Commonwealth v. Wright, 
    411 Mass. 678
    , 682 (1992).      We
    conclude that it did not.
    Had an objection been made, there is no question that the
    portions complained of should have been redacted.   There is also
    no question that trial counsel did not object because the
    unredacted portions of the defendant's interview figured
    prominently in the theory of the defense.   The defendant
    maintained his innocence, he contended that his wife had
    committed suicide, he realized no one would believe that he did
    not kill her, and the portions of his interview that he now
    argues should not have been admitted were relied on by trial
    counsel to support his theory of police bias and his Bowden
    attack on the integrity of the police investigation.   See
    Commonwealth v. Bowden, 
    379 Mass. 472
    , 485-486 & n.7 (1980).
    Trial counsel informed the jury of the defense in his opening
    statement.   At the time the Commonwealth sought to offer the
    video recording of the defendant's interview, trial counsel had
    14
    agreed to redact several portions (references to ownership of a
    gun, a polygraph examination, and his brother's criminal
    history), but not those portions in question.    The portions of
    the video recording in question were admitted in evidence and
    played to the jury by express agreement.    The defendant
    maintained his innocence throughout the three and one-half hour
    interview with two State police officers under blistering
    accusations that he was lying.
    Trial counsel cross-examined one of the two interrogators,
    reminding him of his assertion in the video recording about
    keeping "an open mind."    The trooper acknowledged that he was
    unaware if anyone had interviewed the defendant's relative with
    whom the victim was closest, or whether the victim had seen a
    doctor for depression.    Trial counsel specifically advised the
    judge that the purpose of his inquiry was to call into question
    the integrity of the police investigation, pursuant to Bowden.
    The judge, in her final instructions to the jury, at the request
    of trial counsel, gave a Bowden instruction.    Contrast
    Commonwealth v. Lao, 
    460 Mass. 12
    , 22-23 (2011) (we have stated
    on many occasions that judge is not required to instruct on
    claimed inadequacy of police investigation under Bowden).
    In his closing argument, trial counsel forcefully drove
    home the many points he had made, integrating the now challenged
    portions of the video recording with evidence that had been
    15
    admitted that supported the defense theory that the victim's
    death was a suicide, and that police had rushed to judgment,
    just as the defendant had feared.    By allowing the jury to see
    the contested portions of the interview, trial counsel was able
    to present the defendant as someone who consistently admitted
    that he made a mistake in judgment by not contacting the police
    when he discovered his wife had died, but who steadfastly
    maintained his innocence.     The defense was well conceived, well
    considered, and well anchored in the evidence.
    The decision of trial counsel to agree to the admission of
    otherwise inadmissible evidence that supported the defense was a
    conscious strategic decision that was not unreasonable at the
    time it was made.   We have recognized the validity of such a
    strategy on many occasions.     See, e.g., Commonwealth v.
    Johnston, 
    467 Mass. 674
    , 692-693 (2014); Commonwealth v.
    Clemente, 
    452 Mass. 295
    , 327 (2008), cert. denied, 
    555 U.S. 1181
    (2009); Commonwealth v. Cutts, 
    444 Mass. 821
    , 831 (2005);
    Commonwealth v. Squailia, 
    429 Mass. 101
    , 110-111 (1999);
    Commonwealth v. Adams, 
    374 Mass. 722
    , 728 (1978).     We conclude
    there was no error, i.e., ineffective assistance of counsel,
    much less a substantial likelihood of a miscarriage of justice.
    Wright, 
    411 Mass. at 682
    .
    5.   Extraneous influence.     As previously mentioned, some
    portions of the defendant's statement concerning his ownership
    16
    of a gun, the results of a polygraph examination he had taken,
    and his brother's criminal history were redacted from the video
    recording admitted in evidence and played to the jury.    The
    jurors were provided a transcript of the video recording.     When
    the jurors began their deliberations, those transcripts as well
    as the exhibits went with them.   During the morning of the
    second day of deliberations the foreperson sent a note to the
    judge informing her that four numbered pages of one juror's
    transcript contained text, but the same numbered pages in the
    other jurors' transcripts were blank.   The note indicated that
    the four pages in question had not been discussed.   The pages in
    question contain references to the defendant's ownership of a
    gun, and a reference to the defendant's polygraph examination --
    with a comment that he "didn't do well."   The four pages in
    question constituted material that the parties had agreed would
    be redacted from the transcripts, and had been redacted from the
    video recording.
    The judge proposed speaking first with the foreperson to
    determine the identity of the juror who had the unredacted
    transcript, and whether any other jurors were affected.   The
    parties agreed to this procedure.   After questioning both the
    foreperson and juror no. 10, whose transcript was unredacted,
    the judge determined that only juror no. 10 had an unredacted
    transcript, that juror no. 10 only read the first line of the
    17
    pages in question, that no other juror had been exposed to the
    pages in question, and that the material in question was neither
    shared nor discussed among the jurors.      The only line read by
    juror no. 10, states:    "Sergeant Nanof:   Do you own a gun?"   The
    judge found that "there was no extraneous influence on the jury
    as a whole," and to the extent that juror no. 10 had only read
    the first line, there was "no extraneous influence on the juror"
    either.   The defendant, in consultation with trial counsel, was
    satisfied with the judge's resolution and that it was
    appropriate.    The defendant also agreed with trial counsel's
    recommendation not to move for a mistrial and not to move to
    replace juror no. 10 with an alternate juror.
    The defendant argues that the judge erred by failing to
    conduct a voir dire either individually or collectively after it
    became clear that at least one juror had been exposed to
    extraneous material.    He relies primarily on Commonwealth v.
    Tennison, 
    440 Mass. 553
    , 557-558 (2003), where we reaffirmed the
    procedure prescribed in Commonwealth v. Jackson, 
    376 Mass. 790
    ,
    800 (1978), for judges to follow when a claim of extraneous
    influence on a jury is brought to their attention.      That
    procedure requires "[t]he judge [to] first 'determine whether
    the material . . . raises a serious question of possible
    prejudice.'    [Jackson, 
    supra.]
       If the judge so determines, he
    or she should conduct a voir dire examination of the jurors.
    18
    
    Id.
       This initial voir dire may be conducted collectively, but
    if, in fact, a juror indicates exposure to the extraneous
    material in question, an individual voir dire is required to
    determine the extent of that exposure and its prejudicial
    effect.   Id."   Tennison, supra, quoting Jackson, 
    supra.
        In
    Tennison, we also observed that "[t]he trial judge has
    discretion in addressing these issues, and we must give
    deference to [her] conclusions."   440 Mass. at 558, citing
    Commonwealth v. Francis, 
    432 Mass. 353
    , 369-370 (2000).      "The
    facts of the specific case are important," and we review the
    judge's procedure for an abuse of discretion.    Francis, supra at
    370, quoting Commonwealth v. Kamara, 
    422 Mass. 614
    , 616 (1996).
    The judge was entitled to rely on the answers of the
    foreperson and juror no. 10 to the questions she asked.     See
    Commonwealth v. Coleman, 
    389 Mass. 667
    , 676 n.7 (1983).     It was
    apparent from the voir dire of those jurors that the only person
    exposed to the four unredacted transcript pages was juror no.
    10, and that juror no. 10 had only read the first line, which
    was merely a question by one of the interrogators.   The judge
    acted within her discretion when she determined that juror no.
    10 had not been a source of extraneous influence on the other
    jurors, and that the material to which juror no. 10 had actually
    been exposed supported a finding that there was no serious
    question of possible prejudice that required a voir dire of
    19
    other jurors.   See Francis, supra.   See also Commonwealth v.
    Maldonado, 
    466 Mass. 742
    , 761, cert. denied, 
    134 S. Ct. 2312
    (2014).
    6.    G. L. c. 278, § 33E.   We have reviewed the entire
    record and the briefs, and discern no reason to reduce the
    verdict or order a new trial.
    Judgment affirmed.