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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.
