Argued: May 8, 2014
Indictments found and returned in the Superior Court Department on August 19, 2009.
Pretrial motions to suppress evidence were heard by Wendie I. Gershengorn, J.; a motion to sever was heard by Kenneth J. Fishman, J., and the cases were tried before him.
Amy M. Belger for Zhan Tang Huang.
Patrick H. Reddington ( Kevin J. Reddington with him) for Andy Zhan Ting Huang.
Varsha Kukafka, Assistant District Attorney, for the Commonwealth.
Present: Rubin, Wolohojian, & Maldonado, JJ.
[25 N.E.3d 318] Terri Knight and her husband, Oudah Frawi, together with their sons Ali (one year old) and Hassan (two months old), lived in a one-bedroom basement apartment within a multi-unit residential building at 100 Robertson Street in Quincy. The family slept together in the bedroom. The apartment did not comply with numerous codes, including those requiring that there be a second exit from the bedroom, that windows be large enough to allow a person to escape through them, and that there be operational smoke and carbon monoxide detectors. As a result, when an accidental fire broke out in the living room in the predawn hours of March 25, 2009, while the family was asleep, no smoke alarms signaled the danger. By the time Frawi awoke and (carrying Ali in his car seat) attempted to escape through the living room, the several-hundred-degree fire was too intense for him to reach the only exit. He retreated to the bedroom where he and both his sons died from burns and smoke inhalation. Knight was severely injured by the time firefighters rescued her from the bedroom, but she survived.
100 Robertson Street is a four-unit residential building in which two additional " illegal" units had been added: one in the basement and one in the attic. The building was bought at auction in August, 2007, as an investment by defendant Andy Zhan Ting Huang (Andy) and his sister-in-law, Jinny Ma, who is married to
Andy's brother, Zhan Tang Huang (known as Jason). All three participated in the acquisition, insuring, management, maintenance, and rent collection of the property -- although not each one participated in each of these activities in exactly the same way or to exactly the same extent. For example, Andy located the property and was instrumental in its purchase (contributing half of the purchase price in cash), cosigned the paperwork necessary for the financing of Jinny Ma's half of the property, participated in obtaining property insurance, received rental income, and made distributions to his co-owner (Jinny Ma) at year's end. Jason was the person primarily responsible for the maintenance and upkeep of the property, was the one most often physically present at the property, was the " property manager," and collected rent payments from the tenants. A number of those rent checks were made out to him. Jinny Ma co-owned the property with Andy, obtained property insurance for it, and collected rents. In short, the three collectively operated 100 Robertson Street for their mutual benefit as a residential investment property.
Andy and Jason were each charged with three counts of manslaughter, G. L. c. 265, § 13, [25 N.E.3d 319] for wilfully, wantonly, and recklessly neglecting or failing to fulfill their duty to Frawi, Ali, and Hassan as tenants of 100 Robertson Street. They were also each charged with four counts of wanton or reckless violation of the State building or fire code causing serious bodily injury or death, G. L. c. 148, § 34B. Finally, they were each charged with one
count of perjury, G. L. c. 268, § 1. This charge was based on false statements in an application for homeowners insurance made to the Massachusetts Property Insurance Underwriting Association (MPIUA) to the effect that 100 Robertson Street was a four-unit owner-occupied dwelling and that the owners had no other residence. A jury convicted Andy on all charges, and convicted Jason on all but the perjury charge.
On appeal, Andy argues that (1) his motion to suppress evidence obtained at the scene of the fire should have been allowed; and (2) his motion to sever was erroneously denied. Jason argues that (1) the evidence of manslaughter was insufficient; (2) he owed no duty to the tenants of 100 Robertson Street because he had no ownership interest in the property; (3) his statements to police at the scene of the fire should have been suppressed; and (4) the prosecutor's closing improperly appealed to the jury's sympathy. In addition, both defendants argue that the judge abused his discretion when he allowed in evidence three photographs: two of Frawi's body which, although largely covered, showed the burnt sole of one foot and his burnt knee; and one of Ali's body showing his two legs, the rest of his body obscured by [25 N.E.3d 320] the partially melted car seat in which Frawi had carried him. We affirm.
Taken in the light most favorable to the Commonwealth, the evidence and the reasonable inferences to be drawn from it showed the following.
Andy and Jinny Ma bought 100 Robertson Street as an investment property at auction in August, 2007. Andy, a college graduate, has a master's degree in computer science, and was the assistant manager of a bank. 100 Robertson Street was not his first investment property. Jinny Ma also had experience with property ownership; she owned a separate property in which she lived with Jason. Jason did not have an ownership interest in 100 Robertson Street.
After the auction, Andy walked through the property and discovered that it contained six units. He taped a copy of the deed to the door of each apartment, and announced to the tenants that he and Jinny Ma were the new owners.
In September, 2007, Andy and Jinny Ma applied to Vermont Mutual Insurance (Vermont Mutual) for property insurance. They claimed 100 Robertson Street was a four-unit owner-occupied property, and stated that Jinny Ma and her husband lived there. Neither statement was true. Although he was neither an owner nor the insured, Jason paid the policy premium with a check drawn from a bank account in his own name; he was also listed as the contact person on the application.
Vermont Mutual's inspection revealed that the property contained five units, and that the hard-wired smoke detector in the rear common hallway was nonoperational. Vermont Mutual also questioned whether the property was in fact owner-occupied since its correspondence to that address received no response. Andy and Jinny Ma responded to the insurer's concern by representing that the building would become owner-occupied by November 1, 2007. In fact, to the contrary, both Andy and Jinny Ma lived elsewhere and had no intention of living at 100 Robertson Street. On November 16, 2007, Vermont Mutual cancelled the policy because its inspection revealed that the building contained too many units and that the electrical service to each unit was insufficient.
Apparently anticipating the cancellation by Vermont Mutual, on November 11, 2007, Andy and Jinny Ma applied to Nautilus Insurance Company (Nautilus), this time listing the property as having five units. This statement was false. Jason was again identified as the contact person. Nautilus issued a policy, but its inspection revealed that one common hall lacked a smoke detec-
tor, the second floor apartment lacked a carbon monoxide detector, the basement unit lacked smoke detectors, and repairs were necessary to the chimney. All of these were identified as issues affecting " life safety," and Nautilus recommended that they be fixed. Andy and Jinny Ma signed an acknowledgement of repair and represented that they would install additional smoke detectors and carbon monoxide detectors. This they did not do.
Instead, they turned to the Massachusetts Property Insurance Underwriting Association (MPIUA), which is an association that, pursuant to G. L. c. 175C, operates and manages the Massachusetts residual insurance market. The application [25 N.E.3d 321] to MPIUA, which was signed by Andy and Jinny Ma under the pains and penalties of perjury, stated that the property was owner-occupied and gave Jinny Ma's address as 100 Robertson Street. In response to the question, " Does the applicant reside in or occupy any other premises?" Jinny Ma and Andy responded, " No." The application identified the property as a four-unit dwelling. All of these statements were false.
MPIUA conducted an inspection of the property on April 23, 2008, with Jason, who told the inspector that the basement apartment was in the process of being removed. In fact, as soon as those basement tenants left, the defendants rented the basement unit to Frawi and his family.
MPIUA can issue a homeowner policy only to owner-occupied properties containing no more than four units. However, based on the false representations in the application and during the inspection, it issued a policy covering 100 Robertson Street from March 21, 2008, to March 21, 2009, and renewed that policy for the period March 21, 2009, to March 21, 2010.
Andy, Jason, and Jinny Ma were collectively involved in operating 100 Robertson Street as an investment property for their mutual benefit. The property needed work, and almost all of it was performed by Jason. Andy, Jason, and Jinny Ma all collected rent, and the rent checks were made out variously to each of them. It seems to have made no difference to Andy, Jinny Ma, or Jason to whom the rent ...