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State v. Haji-Hassan

Supreme Court of Maine

March 22, 2018


          Argued: November 16, 2017

          Cumberland County Unified Criminal Docket docket number CR-2014-7716

          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


          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. § 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.

          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 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. § 2Ol(1)(A).

         [¶7] Before trial, the State filed two motions[1] 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.[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 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 ...

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