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State v. Nadim Haque
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 30
Docket:	And-97-599
Argued:	November 3, 1998
Decided:	February 16, 1999

Panel:	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and CALKINS, JJ.




STATE OF MAINE v. NADIM HAQUE


DANA, J.

	[¶1]  Nadim Haque appeals from the judgment entered in the Superior
Court (Androscoggin County, Delahanty, J.) convicting him of murder, 17-A
M.R.S.A. § 201(1)(A) (1983), and assault with a dangerous weapon, 17-A
M.R.S.A. § 208(1)(B) (1983).  Haque contends that the trial court erred by
excluding the testimony of a psychiatrist that Haque was in a "blind rage" at
the time of the killing; excluding all testimony by a cultural anthropologist;
and permitting a state witness to testify to out of court statements by the
victim and the defendant.  We affirm.
	[¶2]  In January 1991, Haque left his home in Raniganj, India, to
attend college in Lewiston.  Soon after his arrival, Haque was befriended by
Lori Taylor, a fellow student.  Taylor was married and living with her
husband and daughter.  By the summer of 1992, Haque's relationship with
Taylor had developed into a love affair.  In 1993, Taylor separated from her
husband.  The relationship between Haque and Taylor appears to have
reached a peak in the summer of 1995 when Taylor expressed her desire to
marry Haque.  Haque said that he was not ready, and after the summer they
began seeing each other less frequently.
	[¶3]  In the fall of 1995, Taylor became friends with Ray Hall, a
neighbor in her apartment building.  Their relationship became intimate in
March 1996.  Around the same time, Haque presented Taylor with an
engagement ring and asked her to marry him.  She accepted the ring but
only wore it for one day.
	[¶4]  On April 23, 1996, Haque and Taylor attended their first
counseling session with Linda Barter, a Licensed Clinical Social Worker.  On
May 7, Haque bought another engagement ring, a rose, and a negligee for
Taylor.  The next day, the two attended their second counseling session. 
After the session, Haque presented the gifts to Taylor and spent the night at
her apartment.
	[¶5]  On May 10, Haque tried to reach Taylor by telephone but she
would not accept his call.  That same day he bought a kitchen knife.  On
May 11, Taylor called Haque and told him their relationship was over.  The
next day, Haque rented a car and bought a can of pepper mace spray and a
baseball cap.  On May 13, Haque drove to Lewiston, parked two blocks from
Taylor's home and let himself into her apartment. He entered her
apartment wearing the cap and carrying a roll of tape, the mace, and the
knife.
	[¶6]  Approximately two hours later, Taylor arrived home from work.  
Haque confronted Taylor, asking her why she wanted to end the
relationship.  Taylor responded, "we [are] just too different."  Soon after this
statement, Haque slashed her throat.  Hall heard sounds of a struggle
coming from Taylor's apartment and he entered the apartment to
investigate.  When Haque saw Hall he told him to "get the hell out" and then
stabbed him. 
	[¶7]   At trial, the defense attempted to convince the jury that Haque
did not form the requisite mens rea to be guilty of murder.  17-A M.R.S.A.
§ 201(1)(A) (1983).  The defense theory appears to have been twofold:  (1)
Haque was not guilty of murder because he suffered from an abnormal
condition of the mind, 17-A M.R.S.A. § 38 (1983); and (2) Haque was guilty
of manslaughter, rather than murder, because he acted "while under the
influence of extreme anger . . . brought about by adequate provocation," 17-A
M.R.S.A. § 203(1)(B) (1983 & Supp. 1998).  The theory behind these
defenses was that Haque's traditional Muslim Indian upbringing, immigrant
experience and psychological condition strongly influenced his perception
of his relationship with Taylor and, eventually, the way he reacted to Taylor's
termination of the relationship.
	[¶8]  Dr. Bloom, the defense's medical expert, testified, inter alia, that
Haque suffered from major depression and attention deficit disorder. 
During voir dire, Bloom discussed Haque's response to Taylor's statement,
"we [are] just too different." According to Bloom, Haque interpreted her
response "as [if] it was like you were telling a black person they were a
nigger.  To him he heard this as meaning that she saw him as being racially
inferior to her."  Bloom testified that as a result of the statement, Haque was
in "a state of blind rage and it was in that state of mind" that he acted.   At
the end of the voir dire, the court excluded any testimony that Haque "went
into a rage."  During the trial the court rebuffed  three attempts by Haque to
place this testimony into evidence.{1} 
	[¶9]  The court also excluded all testimony by the defense expert,
Dr. Caughey, a cultural anthropologist with an interest in psychological
anthropology.  He had conducted research into the experience of
immigrants to the United States and how people manage multiple cultural
traditions.  During voir dire, Caughey discussed the various factors that affect
an individual's transition between two different cultures and how those
factors were relevant to Haque's experience in the United States.  Caughey
also discussed gender relationships in traditional Muslim India and how an
understanding of that topic would help explain Haque's relationship with
Taylor.  According to Caughey, in traditional Muslim India there is no dating
and relationships are expected to last for life.  Caughey testified that given
Haque's traditional Muslim upbringing, the "on again off again quality" of his
relationship with Taylor "must have been . . . extremely difficult to manage."
	[¶10]  On direct examination, defense counsel asked Haque what his
expectation was when Taylor accepted the gifts he had presented to her
after the second counseling session.  Haque responded, "I . . . thought she
was going to marry me and since we made up, it was more solid . . . I had
reasons to believe that this relationship would go on and she would marry
me."  Haque then testified that during the counseling session "it was agreed
that we would go to [Taylor's] sister's boyfriend's birthday party."  According
to Haque, "it was agreed I would be introduced slowly but effectively to her
family and this was a great chance, a golden opportunity because . . . the
family members would be there."
	[¶11]  The State called Linda Barter as a rebuttal witness.  The court
allowed Barter to testify to what was said at the May 8 counseling session. 
Barter testified that the purpose of the May 8 session "was a discussion
surrounding [Taylor's] wanting to end the relationship."  According to
Barter, "[Taylor] said she didn't want to be engaged.  She did not want
[Haque's] ring, and his response to that was, my parents can come over in
July for the wedding."
DR. BLOOM'S TESTIMONY
	[¶12]  Haque contends that the trial court erred in excluding Bloom's
testimony that Haque was in a "blind rage" at the time of the killing. 
Because the excluded testimony embraces an ultimate issue, we disagree.
	[¶13]  Pursuant to M.R. Evid. 701 and 702, the trial court "may
exclude opinions which state legal conclusions, beyond the specialized
knowledge of the expert."  State v. Flick, 425 A.2d 167, 171 (Me. 1981).  In
addition, the trial court may "exclude opinions which are arguably within
the expert's specialized knowledge, but which are so conclusory, or so
framed in terms of the legal conclusions to be drawn, that they will not
'assist the trier of fact.'"  Id. (citing M.R. Evid. 702).  Therefore, when a
medical expert in a criminal case proposes to testify as to an ultimate issue
in the case -- the defendant's state of mind -- the trial court acts well within
its discretion when it precludes the testimony.  See id. (holding that the
trial court did not abuse its discretion in excluding testimony by medical
professionals that defendant "acted intentionally or knowingly . . . or acted
in extreme anger or fear.").
	[¶14]  One of Haque's defenses was that he was guilty of manslaughter,
rather than murder, because he killed Taylor "while under the influence of
extreme anger . . . brought about by adequate provocation."  17-A M.R.S.A.
§ 203(1)(B) (1983 & Supp. 1998).  Therefore, whether Haque was under
the influence of extreme anger was one of the ultimate issues in this case.  
Testimony that Haque "went into a blind rage" at the time of the killing is
not meaningfully distinguishable from an opinion that a defendant acted
under the influence of "extreme anger."  We, therefore, conclude that the
court acted well within its exercise of discretion when it excluded
testimony by Bloom that Haque went into a "blind rage."  See State v.
Michaud, 513 A.2d 842, 849 (Me. 1986) (holding that the trial court did not
err in excluding testimony that the defendant was "operating under
extreme anger.").
DR. CAUGHEY'S TESTIMONY
	[¶15]  Haque contends that the trial court erred in excluding
Caughey's testimony on cultural transitions because the testimony would
have assisted the jury in determining whether Haque had the requisite state
of mind to be guilty of murder.
	[¶16]  A qualified expert may testify if his or her "specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue."  M.R. Evid. 702.  A cultural anthropologist or
other expert in cultural norms may possess "specialized knowledge" that
can "assist the trier of fact."  See Dang Vang v. Vang Xiong X. Toyed, 944
F.2d 476, 481 (9th Cir. 1991) (upholding decision in civil trial to allow
epidemiologist to testify about women in the Hmong culture); see also
People v. Aphaylath, 502 N.E.2d 998, 999 (N.Y. 1986) (reversing order
excluding expert testimony on the stress encountered by Laotian refugees). 
As with all expert testimony, however, the expert's opinion must be
relevant.  M.R. Evid. 402.  Testimony is relevant when it has "any tendency
to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be
without the evidence."  M.R. Evid. 401.
	[¶17]  The trial court concluded that the testimony was not relevant to
any issue that was before the court.  Dr. Caughey qualified as an expert in
cultural anthropology, but was not qualified to, and did not, offer testimony
as to Haque's state of mind.  Although cultural differences may be relevant to
a defendant's state of mind, Caughey's testimony was not relied on by
Haque's psychiatric expert, Dr. Bloom.  Moreover, Haque expressly
disavowed any reliance on a cultural defense.  Accordingly, the testimony of
Dr. Caughey was irrelevant to any state of mind defense.  See State v. Girmay,
652 A.2d 150, 152 (N.H. 1994) (testimony of expert in Ethiopian culture
not relied on by defendant's psychiatric expert in murder case involving
Ethiopian defendant was irrelevant and properly excluded); see also People
v. Poddar, 103 Cal. Rptr. 84, 88 (Cal. Ct.App. 1972), rev'd on other grounds,
518 P.2d 342 (1974) (testimony relating to defendant's culture properly
excluded as to issue of diminished capacity).
	[¶18]  The one issue to which Caughey's testimony would be relevant
would be the defense of adequate provocation.  Adequate provocation is an
affirmative defense, 17-A M.R.S.A. § 201(3), which reduces murder to
manslaughter, id. § 203(1)(B).  The defendant must demonstrate (1) that he
"caus[ed] the death while under the influence of extreme anger or extreme
fear," which (2) was "brought about by adequate provocation." Id. § 201(3)
& 203(1)(B).  Provocation is adequate only if "[i]t is not induced by the
actor," and 
[i]t is reasonable for the actor to react to the provocation with
extreme anger or extreme fear, provided that evidence
demonstrating only that the actor has a tendency towards
extreme anger or extreme fear shall not be sufficient, in and of
itself, to establish the reasonableness of his reaction.  Id.
§ 201(4).
	[¶19]  "There are limits on the type of conduct that we will recognize
as sufficient to engender extreme anger or fear and mitigate the conduct of
the defendant."  State v. Cumming, 634 A.2d 953, 957 (Me. 1993).  For
example, "mere words alone, however inflammatory or opprobrious, do not"
suffice.  State v. Hilliker, 327 A.2d 860, 865 (Me. 1974).  Neither will
finding a note that suggests that a former wife has formed a new
relationship, Cumming, 634 A.2d at 957, or discovering a former wife in a
lounge slow dancing with a man, Tribou v. State, 552 A.2d 1262, 1263-65
(Me. 1989).
	[¶20]  Although the determination as to "the adequacy of the
provocation under sections 201 and 203 is a conclusion to be drawn by the
trier of fact, . . . whether the evidence is legally sufficient to generate the
defense . . . is a question of law for the determination of the court."  State v.
Michaud, Jr., 611 A.2d 61, 63 (Me. 1992).  The concurrent events which
Haque contends provoked his extreme anger were Taylor's refusal to marry
Haque, her desire to terminate their relationship, and her statement that
"we [are] just too different."  As mere words that ended a romantic
relationship, these events do not constitute a legally adequate provocation as
a matter of law.  Therefore, it was not "reasonable for [Haque] to react to the
provocation with extreme anger or extreme fear."  See 17-A M.R.S.A.
§ 201(4)(B).  Given that the evidence was not legally sufficient to generate a
defense of adequate provocation, Caughey's testimony was ultimately not
relevant to any determination properly before the jury.
LINDA BARTER'S TESTIMONY
	[¶21]  Finally, Haque contends that the trial court erred in permitting
Barter to testify as to the out of court statements of Taylor and Haque
because the statements were hearsay.  We disagree.  
	[¶22]  Hearsay is "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted."  M.R. Evid. 801(c).  By definition, therefore, a
statement that is not offered to prove the truth of the matter asserted is not
hearsay.  State v. Tapley, 598 A.2d 1190, 1192 (Me. 1991).  Because the
statements of Taylor were not offered for the truth of the matter asserted
but to impeach Haque's testimony, the statements were admissible.  In
addition, Haque's statements offered against him by the state were
admissible as an admission by a party-opponent.  See M.R. Evid. 801(d)(2).
	The entry is:
					Judgment affirmed.
                  
Attorneys for State: Andrew Ketterer, Attorney General Nancy Torresen, Asst. Atty. Gen., (orally) Lisa P. Marchese, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorneys for defendant: William Maselli, Esq., (orally) Sheila A. Cook, Esq. 98 Court Street Auburn, ME 04210
FOOTNOTES******************************** {1} . Dr. Bloom was permitted to, and did, testify extensively regarding Haque's state of mind at the time of his attack on Taylor, as well as the role that his cultural background would play in his response to the events at issue.