State of Maine v. Abdirahman H. Haji-Hassan ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 42 Docket: Cum-17-139
Argued: November 16, 2017
Decided: March 22, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
ABDIRAHMAN H. HAJI-HASSAN
HUMPHREY, J.
[¶1] Abdirahman H. Haji-Hassan appeals from a judgment of conviction
entered by the trial court (Cumberland County, Warren, J.) after a jury found
him guilty of intentional or knowing murder, 17-A M.R.S. § 201(1)(A) (2017).
Haji-Hassan contends that the court abused its discretion and erred when it
excluded evidence that the State of Maine’s Chief Medical Examiner, Dr. Mark
Flomenbaum, had been removed from his former position as Chief Medical
Examiner for the Commonwealth of Massachusetts and erred when it
instructed the jury on evidence of flight to avoid prosecution. Because the court
did not abuse its discretion or err in either respect, we affirm the judgment.
2
I. BACKGROUND
[¶2] “When the evidence is viewed in the light most favorable to the
State, the jury could rationally have found the following facts beyond a
reasonable doubt with respect to the murder conviction.” State v. Cummings,
2017 ME 143, ¶ 3, 166 A.3d 996.
[¶3] On November 21, 2014, Haji-Hassan and four other men were in an
apartment in Portland. Haji-Hassan began waving a gun around while arguing
with one of the men near the front door. Haji-Hassan fired two shots: the first
was in a downward direction, and the second hit the victim in the leg. When
the second shot was fired, one of the men left the apartment. Another man, the
tenant of the apartment, went to the kitchen and heard a third shot followed by
a “thud.” When the tenant returned to the first room, he saw the unresponsive
victim lying on the floor with a wound to his head and called 911. Haji-Hassan
and the remaining man had fled the apartment while the tenant was still in the
kitchen.
[¶4] On November 25, 2014, Haji-Hassan was charged by complaint with
intentional or knowing murder, 17-A M.R.S. § 201(1)(A). At the time the
complaint was filed, Haji-Hassan’s location was unknown. On December 19,
2014, law enforcement officers went to a home in Minneapolis, Minnesota
3
where Haji-Hassan was believed to be staying. The officers were admitted into
the home and repeatedly announced their presence and called to Haji-Hassan.
Haji-Hassan, who was hiding in the basement, came out only when a police dog
barked at him, and when he did come out, he gave the officers a fake name.
[¶5] On November 22, 2014, Dr. Flomenbaum performed an autopsy of
the victim. On a later date, he examined photographs and x-rays that were
taken in January 2015 of an injury to Haji-Hassan’s leg. Dr. Flomenbaum opined
that the leg injury was “consistent with having been sustained by a
bullet . . . and could absolutely have occurred around the time frame of about
eight weeks prior to when the photographs were taken” and that it was
“consistent with healing of an entrance and exit of a bullet coming fairly straight
downwards.”
[¶6] In January 2015, Haji-Hassan was charged by indictment with
murder, 17-A M.R.S. § 201(1)(A).
[¶7] Before trial, the State filed two motions1 for in camera review of
information and a motion in limine regarding Dr. Flomenbaum. The State’s
motions for in camera review requested that the court determine whether, in
1 One of these motions was captioned as an “ex parte motion” and the other was not. The trial
court referred to both motions as “ex parte.”
4
accordance with Giglio v. United States, 405 U.S. 150, 153-54 (1972), the State
had to disclose information about a Connecticut trial in which Dr. Flomenbaum
testified as a hired expert, and in which the presiding judge rejected his
testimony, finding it “not credible.” In pretrial proceedings and written orders
on the motions for in camera review, the court ordered disclosure of the
information to Haji-Hassan and also addressed the potential admissibility of the
information for impeachment purposes but did not rule on that question.2
Although the court invited the parties to file motions in limine to address the
evidence in question “if defense counsel [sought] to use the documents or
information for purposes of impeachment,” no motions in limine were filed
regarding the determinations by the Connecticut judge.
[¶8] The State’s motion in limine sought to exclude evidence that
Dr. Flomenbaum had been removed from his employment as the Chief Medical
Examiner for the Commonwealth of Massachusetts. At the hearing on the
motion in limine, a few hours before the jury was sworn and the trial began,
Haji-Hassan presented evidence that Dr. Flomenbaum’s removal was
2 The court questioned whether this evidence was admissible as opinion evidence or was simply
hearsay. In the written order on the motions for in camera review, the court specified that “the
ultimate determination of admissibility should not be made unilaterally by the court but should be
made after both sides have an opportunity to present their arguments.”
5
attributed to “fundamental operational and administrative failures, including a
substantial backlog of bodies, one case of a missing body, [his office’s] failure to
meet public health and occupational safety standards and [Dr. Flomenbaum’s]
lack of candor with the administration.” The court concluded that
Dr. Flomenbaum’s removal was based on his failures as an administrator, not
his performance as a pathologist, and excluded the evidence of his removal.3
The court reasoned that his role as an administrator was not an issue in
Haji-Hassan’s case, and therefore evidence of his removal was not “relevant
to . . . his qualifications and actions as a pathologist,” and admission would lead
to “a fruitless discussion of what the grounds [for removal] were and what the
grounds weren’t.” Nonetheless, the court reminded the parties that
Dr. Flomenbaum’s testimony at trial could open the door to the admission of
the excluded evidence.
[¶9] The court held a six-day jury trial in December 2016.
Dr. Flomenbaum testified about the autopsy that he performed on the victim
and his assessment of Haji-Hassan’s leg injury. Neither party questioned
Dr. Flomenbaum about his removal from his position in Massachusetts or about
3 Indeed, the Governor of Massachusetts acknowledged in his removal letter, of which the trial
court was made aware, that Dr. Flomenbaum’s “excellent reputation as a pathologist” was not in
question.
6
the presiding judge’s assessment of his credibility in the Connecticut trial, and
the court made no further rulings on the issues.
[¶10] After closing arguments, the court instructed the jury orally and in
writing. With respect to Haji-Hassan’s presence in Minnesota, the court gave
the following instruction on flight to avoid prosecution:
There is also one other subject mentioned by both counsel,
and there is an issue as to whether Mr. Haji-Hassan fled to
Minnesota to avoid arrest or prosecution. There was evidence
presented by both sides on that issue and it is up to you to
determine the facts. I just need to tell you that, if proven, flight to
avoid prosecution may be evidence of consciousness of guilt. You
are not required to draw such an inference. It is up to you, as the
jury, to decide what weight or effect, if any, should be given to any
evidence concerning Mr. Haji-Hassan’s arrest in Minnesota.
Haji-Hassan did not object to the flight instruction.
[¶11] The jury found Haji-Hassan guilty of murder, and the court
sentenced him to imprisonment for a term of thirty-nine years.
[¶12] Haji-Hassan timely appealed from the judgment of conviction. See
15 M.R.S. § 2115 (2017); M.R. App. P. 2(b)(2)(a) (Tower 2016).4
4 This appeal was commenced before September 1, 2017, and therefore the restyled Maine Rules
of Appellate Procedure do not apply. See M.R. App. P. 1.
7
II. DISCUSSION
A. Exclusion of Evidence of Dr. Flomenbaum’s Removal from Employment
in Massachusetts
[¶13] We first consider Haji-Hassan’s argument that the court should
have admitted the evidence of Dr. Flomenbaum’s removal from his position as
Chief Medical Examiner for the Commonwealth of Massachusetts. “We review
a trial court's rulings on relevance for clear error, and rulings on admissibility
for an abuse of discretion.” State v. Maine, 2017 ME 25, ¶ 23, 155 A.3d 871 (alteration omitted) (citations omitted) (quotation marks omitted). However,
if the challenge to the ruling was not properly preserved for appellate review,
we review the ruling for obvious error.5 See State v. Fahnley, 2015 ME 82, ¶ 15,
119 A.3d 727; see also M.R. Evid. 103(d); M.R.U. Crim. P. 52(b).
[¶14] In its pretrial ruling on the State’s motion in limine to exclude
evidence of Dr. Flomenbaum’s removal, the court determined that the evidence
of his removal was not relevant to his actions as a pathologist in Haji-Hassan’s
5 Maine Rule of Evidence 103(e) requires parties to timely renew the proffer of evidence at trial
in the absence of a clear indication that the ruling was final. See M.R. Evid. 103(e); see also M.R.
Evid. 103 Maine Restyling Note (Nov. 2014) (“Maine Rule 103(e) puts the burden on counsel to
renew an objection or offer at trial, unless the trial judge or the circumstances make it clear that the
previous ruling was indeed final.”); State v. Thomes, 1997 ME 146, ¶ 7, 697 A.2d 1262 (noting that a
“court cannot evaluate the probative value of contested evidence in a vacuum” and concluding that
the evidentiary issue was unpreserved because the court made only preliminary decisions on the
motion in limine).
8
case and would lead to a “fruitless discussion” of the grounds for his removal.
The court reminded the parties that the door to admission could be opened at
trial, but neither party made any further motions regarding the removal
evidence or attempted to question Dr. Flomenbaum about it. “Although the
applicable standard of review is generally depend[e]nt upon whether the
alleged error is preserved, we do not need to determine whether” Haji-Hassan
preserved his proffer of the removal evidence to impeach Dr. Flomenbaum’s
qualifications and capabilities as an expert. See State v. Allen, 2006 ME 21, ¶ 9,
892 A.2d 456. We assume, without deciding, that Haji-Hassan’s arguments and
the court’s ruling at the hearing on the State’s motion in limine served to
preserve the objection, and we therefore apply the clear error and “abuse of
discretion standard[s] of review, which [are] more beneficial to [Haji-Hassan]
than the obvious error standard.” See id. Even under that more beneficial
standard of review, however, Haji-Hassan cannot prevail because the court did
not err or abuse its discretion when it excluded evidence of Dr. Flomenbaum’s
removal.
[¶15] We must first determine whether the court committed clear error
in determining that the evidence of Dr. Flomenbaum’s removal, offered for
purposes of impeaching his qualifications and capabilities as an expert, was not
9
relevant to the case. The Maine Rules of Evidence generally authorize the
admission of relevant evidence. See M.R. Evid. 402. “Evidence helpful in
evaluating the credibility of a witness is ‘of consequence’ since it will aid in
appraising the probative value of other evidence.” Field & Murray, Maine
Evidence § 401.1 at 92 (6th ed. 2007); see also M.R. Evid. 401, 607. At the
hearing on the motion in limine, Haji-Hassan argued that the evidence of
Dr. Flomenbaum’s removal from his Massachusetts employment was relevant
because (1) it was “essential impeachment evidence when it [came to] his
credibility and when it [came] to what he [was] saying” because he would likely
describe his qualifications, education, and past employment;6 and
(2) Dr. Flomenbaum’s opinion regarding Haji-Hassan’s leg injury “was not
based on the sort of thing that experts in the field would base an opinion
on . . . [and] that sort of goes hand-in-hand with neglect of duty, incompetence,
inefficiency and poor supervision.” The trial court determined that
Dr. Flomenbaum’s removal was not attributed to his abilities, actions, and
qualifications as a pathologist, but to his failures as an administrator. In
6 The State did not seek to qualify Dr. Flomenbaum as an expert by asking about his position as
Chief Medical Examiner for the Commonwealth of Massachusetts. When asked about his employment
and training, Dr. Flomenbaum merely stated that his current position is Chief Medical Examiner for
the State of Maine, that he is a medical doctor, that he received his medical degree at the Albert
Einstein College of Medicine, and that he did a medical residency in pathology and finished a
fellowship in forensic pathology. Haji-Hassan did not object to this line of questioning at trial.
10
Haji-Hassan’s case, Dr. Flomenbaum acted exclusively as a pathologist—he
performed the autopsy of the victim and offered an opinion of the nature of
Haji-Hassan’s leg wound after examining photographs and x-rays. This is in
contrast to State v. Coleman, where Dr. Flomenbaum performed administrative
functions by supervising the collection of sexual assault kit evidence and its
chain of custody, and the State used his employment as the Massachusetts Chief
Medical Examiner to qualify him as an expert. See State v. Coleman, 2018 ME 41,
¶ 23, --- A.3d ---. Based on the evidence and arguments in Haji-Hassan’s case,
the court did not err by determining that Dr. Flomenbaum’s removal did not
speak to his credibility as a pathologist and was not relevant to the testimony
that he offered in Haji-Hassan’s trial. In the circumstances of this case, the court
did not err when it excluded the evidence. See M.R. Evid. 401, 402.
[¶16] Further, the court determined that admitting the evidence of the
removal for administrative failures was not “justif[ied]” by his role in
Haji-Hassan’s case and would lead to “a fruitless discussion of what the grounds
[for Dr. Flomenbaum’s removal] were and what the grounds weren’t.” This
reasoning essentially reflects a determination that even if the evidence of
Dr. Flomenbaum’s removal had some probative value, it was substantially
outweighed by the risks of confusing the issues in the case and wasting time,
11
both of which are grounds for excluding relevant evidence pursuant to
Rule 403. The court’s weighing of probative value against the risks of
admission does not demonstrate an abuse of discretion.
[¶17] For the first time on appeal, Haji-Hassan makes two additional
arguments in support of his contention that the court erred by excluding
evidence of Dr. Flomenbaum’s removal from his employment in Massachusetts.
First, he argues that because the jury could have reasonably inferred that
Dr. Flomenbaum testified favorably on behalf of the State to secure his Maine
employment and avoid a second removal, evidence of his removal was relevant
to show bias and was therefore admissible pursuant to Rule 607. And, second,
he argues that because Dr. Flomenbaum’s removal was partly based on findings
that he lacked candor and failed to communicate fully and frankly, his removal
was relevant evidence of a specific instance of untruthfulness, and was
therefore admissible pursuant to Rule 608(b)(1).
[¶18] These unpreserved challenges are reviewed for obvious error
because they are raised for the first time on appeal. We “may take notice of an
obvious error affecting a substantial right, even if the claim of error was not
properly preserved.” M.R. Evid. 103(d); M.R.U. Crim. P. 52(b); see also State v.
Oeur, 1998 ME 82, ¶ 4, 711 A.2d 118. “For us to vacate a conviction based on
12
the obvious error standard of review, there must be (1) an error, (2) that is
plain, and (3) that affects substantial rights. If these conditions are met, we will
exercise our discretion to notice an unpreserved error only if we also conclude
that (4) the error seriously affects the fairness and integrity or public
reputation of judicial proceedings.” Fahnley, 2015 ME 82, ¶ 15, 119 A.3d 727 (citation omitted) (quotation marks omitted). An error is plain if the error is so
clear under current law that the trial judge was “derelict in countenancing it,
even absent the defendant’s timely assistance in detecting it.” See State v.
Dolloff, 2012 ME 130, ¶ 36, 58 A.3d 1032 (quotation marks omitted). On appeal,
Haji-Hassan has the burden to demonstrate an obvious error. See id. ¶ 39. [¶19] Even if we were to assume that evidence of Dr. Flomenbaum’s
removal was relevant to Haji-Hassan’s case pursuant to Rule 401, the theories
of admissibility that Haji-Hassan now advances for the first time do not result
in a conclusion that the court committed obvious error by excluding the
evidence. See State v. McCurdy, 2002 ME 66, ¶ 13, 795 A.2d 84; Capul v. Fleet
Bank of Me., 1997 ME 140, ¶ 12, 697 A.2d 66.
[¶20] Relevant evidence may be excluded “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
13
prejudice, confusing the issues, misleading the jury, undue delay, wasting time,
or needlessly presenting cumulative evidence.” M.R. Evid. 403.
[¶21] We first evaluate the probative value of the removal evidence. The
connection between Dr. Flomenbaum’s removal and his alleged bias in favor of
the State of Maine to maintain his current employment is speculative at best,
and its probative value, if any, is slight. The evidence is no more probative of
bias than the fact, taken alone, that he is currently employed by the State.
Further, its probative value with regard to his character for untruthfulness is
also slight because “lack of candor” and “failure to communicate fully and
frankly” are not specific instances of untruthful conduct, but are more akin to
extrinsic opinions of a third party, and are not presented according to rules
allowing evidence that is probative of a character for untruthfulness.
[¶22] Having in mind the dangers listed in Rule 403, the court not only
determined that the removal evidence was irrelevant and inadmissible, but also
determined that it would lead to a “fruitless discussion of what the grounds [for
the removal] were and weren’t.” See State v. Maderios, 2016 ME 155, ¶¶ 10-11,
149 A.3d 1145; see also Field & Murray, Maine Evidence § 403.1 at 110 (“It is the
judge’s duty to make sure that the trial is conducted in an orderly manner so as
to see that the jury is not distracted by collateral matters or testimony too
14
remote or speculative to aid in determining where the truth lies.”). Even in light
of Haji-Hassan’s new arguments presented to us on appeal, it was not obvious
error to exclude evidence of the removal because the low probative value of the
removal evidence was substantially outweighed by the dangers described in
Rule 403.7
[¶23] Haji-Hassan also contends that the court violated his Sixth
Amendment right to confrontation by excluding the removal evidence. See U.S.
Const. amend VI. “The United States Supreme Court has held that the
Confrontation Clause guarantees a criminal defendant an adequate opportunity
to cross-examine adverse witnesses. Thus, the protections of the Sixth
Amendment are not absolute and ensure a right of effective cross-examination,
not a right of unrestricted cross-examination.” State v. Johnson, 2009 ME 103,
¶ 15, 982 A.2d 320 (quotation marks omitted) (citation omitted). “[T]rial
judges retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination based on concerns about,
7 Haji-Hassan also argues that the court erred by excluding evidence from the Connecticut trial
in which Dr. Flomenbaum testified as an expert witness and the judge determined that
Dr. Flomenbaum was not credible. However, the trial court here never ruled on the admissibility of
this evidence because its only ruling was an order requiring the State to disclose the evidence to
Haji-Hassan. Absent any ruling that excluded evidence of the Connecticut trial, there is nothing here
for Haji-Hassan to challenge. For further discussion of the Connecticut trial, see State v. Coleman,
2018 ME 41, ¶¶ 16-21, --- A.3d ---.
15
among other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant.” Delaware
v. Van Arsdall, 475 U.S. 673, 679 (1986); see also M.R. Evid. 403. We have
already concluded that the trial court did not clearly err when it determined
that the evidence of Dr. Flomenbaum’s removal was not relevant in this case
and that the court did not abuse its discretion when it determined that the
evidence would lead to the dangers listed in Rule 403. Accordingly, the
exclusion of that evidence was a reasonable limitation on Haji-Hassan’s
cross-examination considering other possible options for impeachment
available to Haji-Hassan—potential bias based on Dr. Flomenbaum’s current
employment with the State; sufficiency of the evidence supporting his opinion
of Haji-Hassan’s leg injury based solely on his review of the photographs and
x-rays taken weeks after the injury allegedly occurred; and other challenges to
his examination procedures and actions as a pathologist. Haji-Hassan’s Sixth
Amendment rights were not violated.
[¶24] We recognize that the admissibility of evidence of
Dr. Flomenbaum’s removal has been raised in at least two other cases and may
continue to be an issue in trial court proceedings where he appears as an expert
witness. See, e.g., State v. Coleman, 2018 ME 41, --- A.3d ---; State v. Davis,
16
No. AROCD-CR-2013-137 Unified Criminal Docket (Aroostook Cty., Aug. 29,
2016). This is properly a case-by-case determination, and we announce no
blanket rule on the admissibility of this evidence in other cases. The trial courts
must exercise their discretion in the particularized context of each case to
admit or exclude such evidence after evaluating the extent of any relevance it
may have, and, if it is deemed relevant, weighing its probative value against the
dangers listed in Rule 403.
B. Jury Instruction on Flight to Avoid Prosecution
[¶25] Haji-Hassan also argues that the court committed obvious error
when it instructed the jury on how it could evaluate evidence of flight because
there was insufficient evidence to support an inference that Haji-Hassan fled to
avoid prosecution and the instruction favored the State.
[¶26] Because Haji-Hassan did not object to or otherwise raise the
alleged error in the flight instruction at trial, we review his unpreserved
challenge for obvious error. See State v. Lajoie, 2017 ME 8, ¶ 13, 154 A.3d 132;
M.R.U. Crim. P. 52(b). “[W]e evaluate the instructions in their entirety and will
consider the total effect created by all the instructions and the potential for
juror misunderstanding, and whether the instructions informed the jury
17
correctly and fairly in all necessary respects of the governing law.” Lajoie, 2017
ME 8, ¶ 14, 154 A.3d 132 (quotation marks omitted).
[¶27] “[E]vidence of flight permits the jury to infer . . . a consciousness of
guilt or that the defendant was motivated by a desire to avoid prosecution for
the underlying charges.” State v. Lemay, 2012 ME 86, ¶ 21, 46 A.3d 1113.
Haji-Hassan first argues that the evidence at trial did not generate a factual
predicate to support the flight inference and instruction. The State, however,
presented sufficient evidence to support an inferential finding of consciousness
of guilt, including evidence that Haji-Hassan fled the Portland apartment
immediately after the shooting, that he was in Minnesota shortly after the
shooting, that he did not emerge from the basement of the home in Minnesota
until he was confronted by a barking police dog, and that he initially gave a fake
name to law enforcement when he was arrested.
[¶28] Contrary to Haji-Hassan’s further contentions, the instructions
given by the court, when reviewed as a whole, sufficiently explained that the
State had the burden of proof on every element of the crime, that the jury must
decide if the facts were proved beyond a reasonable doubt, and that the jury
was permitted to consider innocent explanations for his presence in Minnesota.
18
In short, Haji-Hassan has failed to demonstrate any error, much less obvious
error, in the court’s instruction. See Lajoie, 2017 ME 8, ¶ 13, 154 A.3d 132.
The entry is:
Judgment affirmed.
Amber L. Tucker, Esq. (orally), The Law Office of Amber L. Tucker, LLC,
Portland, for appellant Abdirahman H. Haji-Hassan
Janet T. Mills, Attorney General, and Lara M. Nomani, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee State of Maine
Cumberland County Unified Criminal Docket docket number CR-2014-7716
FOR CLERK REFERENCE ONLY