Commonwealth v. Dung Van Tran

• Decision Date: 26 July 2012
• Docket Number: SJC–10853.
• Citation: 463 Mass. 8,972 N.E.2d 1
• Parties: COMMONWEALTH v. DUNG VAN TRAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 8

972 N.E.2d 1

COMMONWEALTH

v.DUNG VAN TRAN.

SJC–10853.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 3, 2011.

Submitted July 26, 2012.

Elizabeth Caddick for the defendant.

Macy Lee, Assistant District Attorney (David A. Deakin, Assistant District Attorney, with her) for the Commonwealth.

Michael T. Porter, Boston, Christopher J. Anasoulis, Greenfield, & James T. Hilliard, Walpole, for Massachusetts Psychiatric Society, Inc., amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

DUFFLY, J.

Late in the afternoon of January 8, 2007, the defendant drove to the apartment of his estranged wife, Lien Lam, and their two children. ¹ After entering the apartment and speaking briefly with his six year old son, the defendant retrieved a can of gasoline from his vehicle and carried it into the room where his fourteen month old daughter, Diana, was sleeping. The defendant poured the gasoline in such a manner that it landed on himself, Diana, and Nguyen Trinh, the children's caretaker, as well as on the floor; he then ignited it. The resulting fire engulfed the upper portion of Diana's body, causing permanent disfiguring injuries.²

The defendant was indicted for a number of offenses relating to the fire, including armed assault with intent to murder, G.L. c. 265, § 18 ( b ); aggravated assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A ( c ) (i); assault and batteryby means of a dangerous weapon, G.L. c. 265, § 15A ( b ); arson of a dwelling, G.L. c. 266, § 1; and armed home invasion, G.L. c. 265, § 18C.³

The defendant testified at trial that he had intended only to commit suicide and not to cause injury to anyone else, nor to set fire to the apartment, and that the injuries to others were accidental. He made no claim that he had suffered from a mental or emotional condition that prevented him from forming the requisite intent to commit the offenses, or that he was not criminally responsible for his acts because of mental or emotional impairment. The defendant was convicted by a Superior Court jury of all of the charges before them, and he filed an appeal in the Appeals Court. We transferred the case to this court on our own motion.

The defendant argues that the judge erred in admitting evidence of prior bad acts, and in admitting privileged statements the defendant made to a psychiatrist. He claims also that the Commonwealth's evidence was insufficient to support his convictions and that his motion for a required finding of not guilty on all charges should have been allowed. For the reasons that follow, we set aside the defendant's two convictions of armed assault with intent to murder Diana and Trinh, and we remand those indictments for a new trial. We affirm his remaining convictions.

Trial. Based on the Commonwealth's case-in-chief, the jury could have found the following facts. We reserve certain details for later discussion.

The defendant and Lam were married in Vietnam in 1998. For approximately five years, the defendant lived primarily in Boston while Lam remained in Vietnam, during which period the couple's son, Manh, was born. In 2003, Lam and Manh joined the defendant in the United States; Diana was born in November, 2005. From the time the family was united, the defendant verbally and physically abused Lam and Manh. His behavior twice led to police intervention, although criminal charges were not pursued, and in September, 2006, Lam filed for divorce. She moved with Manh and Diana into an apartment that was occupied by Trinh and her two adult sons. Trinh rented a room in her apartment to Lam and provided childcare for the children while Lam was at work.

The defendant regularly visited his children at the apartment, under Trinh's supervision when Lam was not present. While there, he would speak primarily to Manh, although, during one visit, the defendant said to Trinh that Lam “shouldn't force me to do things. I will turn violent.” He also sometimes made small talk with Trinh's adult son, Thanh Quach, but they had no extended conversation until three weeks before the fire, when the defendant asked Quach to meet him at a restaurant. There, the defendant told Quach that he loved his wife, that she could not leave him, and that if she had a boy friend he would not forgive her.

The defendant sought repeatedly to reconcile with Lam, sometimes by pleading and sometimes by making threats. Shortly before the fire, the defendant threatened to kill Lam and the children if she did not return to live with him, after which Lam notified the police and obtained a temporary protective order. The defendant called Lam and urged her not to appear in court to extend the order, promising to change his behavior. Lam did not seek an extension of the order, which expired after ten days.

Between 4 p.m. and 5 p.m. on January 8, 2007, while Lam was at work and Trinh was watching the children, the defendant telephoned the apartment and spoke briefly with Manh, and almost immediately afterward, the defendant knocked at the back door leading into the kitchen. Manh opened the door while Trinh stood at the sink, and the defendant entered, carrying a bag of food for the children. Diana was sleeping in the living room in a hammock. The defendant took Manh into Lam's bedroom and closed the door. They were in the room only a short time before the defendant emerged and left through the back door, leaving it open as he departed. Trinh thought he was not returning and told Manh to shut the door. However, as Manh was closing the door, the defendant returned and pushed his way in, hiding something behind his back as he walked through the kitchen and into the living room where Trinh had begun tending to Diana.

Standing in the middle of the room, close to Trinh and Diana, the defendant raised the can to the height of his shoulder, tipped it, and poured gasoline onto the floor, splattering some on himself, Trinh, and Diana.⁴ He then ignited the gasoline with a cigarette lighter, setting all three people ablaze.

Trinh picked up Diana and brought her into the hallway, but set her down when she realized she was herself on fire. She cried out to Quach, who had been resting in a bedroom off the hallway when the fire started, and ran outside to the front yard, where she removed her burning clothes. Emerging from his room, Quach saw Diana, who was burning from her stomach to the top of her head, sitting on the floor in the hallway, near a bathroom door. He also noticed the defendant standing in the kitchen doorway, looking down the hall and saying that he was so sad because “[he] burned [his] kid.”

Quach immediately picked up Diana, brought her into the bathroom, and put her in the bathtub; he turned on the cold water and attempted to put her under the faucet, but she was too tall, so he filled a container with water from the tap in the sink, which he poured over her, extinguishing the flames. After carrying her out to the front porch, Quach ran back inside to search for others still in the building. The defendant also went out onto the front porch; he took Diana from Quach and was holding her when emergency personnel arrived. While standing on the porch holding Diana, he was heard saying aloud, “This is what you get for cheating on me,” and “I know I'll be punished for this for a long time.”

Paramedics who placed the defendant and Diana in an ambulance noticed an odor of gasoline coming from Diana's clothes, and subsequent chemical testing by the Boston fire department revealed significant amounts of gasoline residue on both Trinh's and Diana's clothing. En route to the hospital, the defendant snatched a pair of scissors and cut his intravenous tube; he then stated repeatedly, “I did this.” Asked by the paramedics what he had done, the defendant said that he had lit himself on fire and burned the baby. While receiving treatment for his injuries at a Boston hospital, the defendant made additional inculpatory statements, discussed in detail below, to a psychiatrist.

The defendant's case. The defendant testified on his own behalf. He said that he was not angry at his wife for leaving him, only sad, and that he had decided to kill himself and “wanted [his] wife to remember [him].” The gasoline was in his car when he drove to the apartment, and he brought it into the living room of the apartment intending to commit suicide by using it to set himself on fire. Trinh was in the living room, holding Diana. The defendant told Trinh and the children to leave, and they did so. Trinh and Diana “had already gone into the kitchen” when he poured the gasoline on himself. He did not pour gasoline on them, nor around the house.

Asked on direct examination what he remembered happening immediately after he was burned, the defendant first said, “I felt that I was holding my daughter because I was very upset about the accident, about what had happened outside of my intention.” ⁵ He then said that he picked up his daughter after seeing that Trinh had put her down near the bathroom and after Quach had taken her into the bathroom to put out the fire. According to the defendant, when Quach left the bathroom, he put Diana down in the hallway, and the defendant picked her up and brought her outside to wait for the ambulance.

The defendant denied ever having threatened his wife if she and the children did not return to him. He recalled his restaurant meal with Quach but denied telling Quach that Lam could not leave him and that if she had a boy friend he would not forgive her. He knew that Lam had not gone to court to seek an extension of the protective order, but he denied telling her not to go and that he would change his ways. He testified that he could not recall whether he had said, “That's what you get for cheating on me,” while he was on the porch; nor did he know whether he had said, “I've done a terrible thing. I'm going to be punished for this.” Finally, the...