Commonwealth v. Dang

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COMMONWEALTH v. SOI KET DANG

No. 22-P-684

Appeals Court of Massachusetts

February 7, 2024

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Soi Ket Dang, was indicted for murder in the first degree in connection with the stabbing death of Marissa Randall. Following a jury trial in the Superior Court, the defendant was found guilty of murder in the second degree. Following a nonevidentiary hearing, a second judge (motion judge) denied the defendant's motion for a new trial. In this consolidated appeal, the defendant argues that 1) the motion judge erred in denying his motion for new trial based on ineffective assistance of counsel, 2) the trial judge erred in admitting a video recording depicting Randall performing a sex act on the defendant, 3) the evidence was insufficient to prove the absence of heat of passion induced by sudden combat, and 4) cumulative errors and the Commonwealth's closing argument denied him a fair trial. We affirm.

Background.

We summarize the facts that the jury could have found while reserving certain facts for later discussion. The defendant first met Randall when he initiated contact with her online. On November 10, 2015, they met in person. In exchange for sex, the defendant gave Randall a tattoo and approximately $120. Less than a week later, on November 16, 2015, the defendant contacted Randall via text message and offered to pay her $350 in exchange for one hour of her time. The defendant later changed the arrangement to $350 for thirty-five minutes; Randall ultimately agreed.

The defendant picked up Randall and took her to his apartment. Randall asked the defendant if he wanted to make a video recording of her performing oral sex on him; she planned to sell the video recording for $100. The defendant agreed. After they made the video recording and had sex again, the pair argued over the amount of money that the defendant owed Randall. Ultimately the defendant fatally stabbed Randall with a large knife approximately twenty times.

The defendant went to work the next day, leaving Randall's body in his apartment. While at work, the defendant was contacted via text message by S.W., a young woman he knew from a website. S.W. asked to stay with the defendant. He agreed, but said that he was "uncomfortable bringing [her] back to his house because he had done something bad," eventually admitting to S.W that he killed Randall. Nevertheless, S.W. accompanied the defendant to his apartment. During this time Halifax police were looking for S.W. They "pinged" her location from her tablet and found her at the defendant's apartment. The police eventually discovered Randall's body in a partially opened closet, wrapped in a rug.

The defendant was handcuffed, provided his Miranda rights, and brought to the police station, where he made a statement. A redacted version of the recorded statement was admitted at trial. The defendant told investigators that a prostitute that he met online was in the rolled up rug. He said that they argued over money, Randall became upset, and said that she needed to get home. The defendant felt that Randall was "wasting time" making the video recording, and he became frustrated because she was "rush[ing] [him]." He then offered to give Randall "$80 or $60" rather than the previously agreed amount of $350. He said that they continued to argue, and Randall pushed him because "she wanted [him] to pay her." He eventually placed Randall in a headlock; she "tr[ied] to get away from [him]" by elbowing him. The defendant said that Randall "[was] screaming 'stop' and 'why are you doing this.'" He then grabbed a knife, and stabbed Randall. Once he realized that he had killed her, the defendant wrapped Randall's body in plastic tablecloths, zip tied her legs, and dragged her body into a closet. When asked, the defendant said that the knife was in a bucket next to the refrigerator. The defendant had some rug burns, but did not mention any other injuries, nor did the police observe any.

Investigators executed a search warrant on the defendant's apartment and car. Among other things, they found a knife that was later determined to have Randall's deoxyribonucleic acid on it, a Samsung phone, and a ZTE phone. The video recording of Randall performing oral sex on the defendant was found on the ZTE phone along with text messages between the two.

The defendant's theory at trial was that he stabbed Randall in self-defense. He testified that when Randall first arrived at his apartment, she seemed "happy because [he] said yes to helping her make the video." According to the defendant, after making the video recording and having sex, they argued over money. The defendant claimed that Randall was going through his personal belongings and demanding money, although he did not tell investigators that when he gave his statement. The defendant testified that Randall initiated the confrontation by shoving him, which prompted him to restrain her in a bear hug, although he stated that he did not have concerns about his safety at this point.

For the first time at trial the defendant claimed that Randall picked up a screwdriver and "jabbed" him on his right knee with it.^[1] He then ran and grabbed a knife, pulled it out of its sheath, and "waved it in front of [Randall] . . . doing [a] slashing motion in the air." He said Randall came at him with the screwdriver and "advanced and then retreat[ed]." Because Randall "got so close," the defendant ran, grabbed her, placed her in a second bear hug, and repeatedly stabbed her because she kept coming at him. The defendant said that he held Randall down with the weight of his body while he strangled her to keep the neighbors from hearing her screams.

The defendant called Dr. Carl Dahlberg, an emergency room physician who had reviewed Randall's toxicology report, as a witness. Dahlberg confirmed that amphetamines and marijuana were present in Randall's system, that the level of amphetamines was "pretty high," and that they can produce restlessness, agitation, mania, impulsiveness, and psychosis.

Discussion.

1. Ineffective assistance of counsel.

The defendant contends that the motion judge erred in denying his motion for new trial based on claims of ineffective assistance of counsel on two grounds: failing to move for a mistrial, and failing to timely investigate an abuse prevention order issued pursuant to G. L. c. 209A (209A order) taken out by Randall's former boyfriend on behalf of their infant son.

We review the denial of a motion for new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Duguay, 492 Mass. 520, 531 (2023), quoting Commonwealth v. Sanchez, 485 Mass. 491, 498 (2020). To prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel's representation fell "measurably below that which might be expected from an ordinary fallible lawyer," and that the defendant was "likely deprived . . . of an otherwise available, substantial ground of defence" as a result. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). "If a defendant challenges the 'tactical or strategic decisions[]' of trial counsel, he must establish them as 'manifestly unreasonable.'" Commonwealth v. Shanley, 455 Mass. 752, 768 (2010), quoting Commonwealth v. Montanez, 410 Mass. 290, 295 (1991). As is the case here, where "the motion judge did not preside at the trial, we defer only to the trial judge's credibility determinations and 'regard ourselves in as good a position as the motion judge to assess the trial record.'" Commonwealth v. Wilson, 486 Mass. 328, 334 (2020), quoting Commonwealth v. Wright, 469 Mass. 447, 461 (2014).

a. Failure to move for a mistrial.

The defendant contends that trial counsel was ineffective because he did not move for a mistrial based on a police officer's unsolicited testimony that S.W. reported to police that she was "drugged and forced to have sex." Prior to trial, in response to the defendant's motion in limine, the prosecutor made a proffer of S.W.'s anticipated testimony. The trial judge permitted S.W. to testify but ruled that any reference to child exploitation and S.W.'s age were excluded. Thereafter S.W. testified consistent with the trial judge's ruling. However, a police officer provided unsolicited testimony that S.W. reported "she was drugged and forced to have sex," which the prosecutor promptly interrupted.^[2] The defendant only challenges trial counsel's failure to move for a mistrial, not his failure to object in front of the jury.

Trial counsel submitted an affidavit in connection with the motion for new trial where he averred that he did not move to strike this testimony in open court, instead intending to move for a mistrial at sidebar, so as to not call more attention to this statement. See Commonwealth v. Haley, 413 Mass. 770 778 (1992). Trial counsel did not so move, and his affidavit did not explain this inaction.^[3] We note that the testimony from the police officer was brief and unsolicited. ...