Argued: November 16, 2017
Cumberland County Unified Criminal Docket docket number
L. Tucker, Esq. (orally), The Law Office of Amber L. Tucker,
LLC, Portland, for appellant Abdirahman H. Haji-Hassan
T. Mills, Attorney General, and Lara M. Nomani, Asst. Atty.
Gen. (orally), Office of the Attorney General, Augusta, for
appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
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. § 2Ol(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.
"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.
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.
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 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.
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
In January 2015, Haji-Hassan was charged by indictment with
murder, 17-A M.R.S. § 2Ol(1)(A).
Before trial, the State filed two motions 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 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.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.
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 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.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 ...