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	
