Commonwealth v. Zhan Tang Huang

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13-P-1299 Appeals Court
13-P-1301

COMMONWEALTH vs. ZHAN TANG HUANG1 (and fourteen companion
cases2).

Nos. 13-P-1299 & 13-P-1301.

Norfolk. May 8, 2014. - February 11, 2015.

Present: Rubin, Wolohojian, & Maldonado, JJ.

Homicide. Wanton or Reckless Conduct. Fire. Constitutional
Law, Search and seizure. Search and Seizure, Exigent
circumstances. Practice, Criminal, Severance, Motion to
suppress, Admissions and confessions. Joint Enterprise.
Evidence, Joint venturer, Photograph.

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.

1
Also known as Jason Zhan Tang Huang.
2
Six of the companion cases are against Zhan Tang Huang,
and eight are against Andy Zhan Ting Huang. The defendants'
appeals were consolidated for oral argument and disposition.
 2

Patrick H. Reddington (Kevin J. Reddington with him) for
Andy Zhan Ting Huang.
Varsha Kukafka, Assistant District Attorney, for the
Commonwealth.

WOLOHOJIAN, J. 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
 3

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).3

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.4 In short, the three collectively

3
Because Andy and Jason share a last name, we use their
first names for the sake of clarity.
4
Jinny Ma's role was less fully described at trial,
probably because she had resolved the charges against her by
agreement with the Commonwealth before trial.
 4

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, 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,5 G. L. c. 148, § 34B. Finally, they were

5
The Commonwealth's theory was that the following statutes
and codes were violated: (1) G. L. c. 148, § 26B (requiring an
"automatic fire warning system" and "automatic smoke detection,"
in accordance with the State building code); (2) G. L. c. 148,
§ 26F1/2(c) (requiring that residential building, upon sale or
transfer, be inspected by fire department for carbon monoxide
detector); (3) 527 Code Mass. Regs. § 24.08(1)(a) (1998)
(requiring that automatic smoke detector be maintained in
reliable condition, and requiring tests and inspections); (4)
527 Code Mass. Regs. § 24.08(1)(b) (1998) (requiring smoke
detection to be under supervision of a responsible person and
testing at specific intervals); (5) 527 Code Mass. Regs.
§ 24.08(3)(c) (1993) (requiring semiannual testing of smoke
detectors); (6) 527 Code Mass. Regs. § 24.08(3)(f) (1993)
(requiring permanent record of list of tests to be maintained by
owner and submitted to fire department); (7) G. L. c. 148, § 27A
(prohibiting disabling, disconnecting, or obstructing fire
protection device); (8) 527 Code Mass. Regs. § 1.06(2) (2008)
(requiring that fire protection systems and devices be
maintained and that they not be made unserviceable without prior
notice to fire department); (9) G. L. c. 148, § 26E(b) (owners
of certain residential buildings to install battery operated
smoke detectors outside each sleeping area and interconnected
primary power smoke detectors in common hallways and basements);
(10) 527 Code Mass. Regs. § 31.04 (2007) (requiring every
dwelling unit to have a carbon monoxide detector); (11) 527 Code
Mass. Regs. § 12 (2007) (effective Jan. 1, 2008) (Massachusetts
 5

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.6

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

Electrical Code); and (12) over twenty-five separate provisions
of the State building code.
6
Andy was sentenced to two concurrent terms of three years
to three years and one day in State prison on the manslaughter
charges pertaining to Frawi and Ali. For the manslaughter of
Hassan, the reckless violation of the State building or fire
code causing serious bodily injury or death, and the charge of
perjury, Andy was sentenced to concurrent probationary terms of
three years from and after the period of incarceration, each
with conditions. Jason was sentenced similarly (with the
obvious exception of the perjury charge of which he was
acquitted), except that his period of incarceration was two to
three years.
 6

improperly appealed to the jury's sympathy.7 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 the partially melted car

seat in which Frawi had carried him. We affirm.

Background. 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, 2007.8 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.

7
The latter argument does not satisfy the requirements of
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), and we
do not consider it. No transcript citations are provided, nor
does Jason in his brief identify any particular statements made
in closing by the prosecutor.
8
Andy participated in Jinny Ma's financing of her part of
100 Robertson, and signed the financing documents.
 7

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
 8

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

detector, 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.9 The

application to MPIUA, which was signed by Andy and Jinny Ma

under the pains and penalties of perjury, stated that the

9
See Hudson v. Massachusetts Property Ins. Underwriting
Assn., 386 Mass. 450, 452-454 (1982) (reviewing history of
MPIUA).
 9

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,10 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,

10
The application identified Jason as the person to be
contacted to arrange an inspection.
 10

Jinny Ma, or Jason to whom the rent was paid, and the tenants

made rent payments to all three interchangeably. Although Andy

and Jinny Ma announced themselves as the new owners immediately

after the auction, in the course of a dispute with one of the

tenants, Jason stated that he was the landlord. Consistent with

this, arrangements to rent apartments were made by both Andy and

Jason. After the fire, it was Jason who returned the tenants'

security deposits. Tenants would call either Jason or Andy to

request repairs or to complain that repairs had not been made.

When a tenant called Andy to request a repair, he would refer

that request to Jason. Some of those repairs and requests are

directly relevant to the charges here, and so we set them out in

some detail.

As noted above, the defendants maintained six units in the

property, but only the four units located on the first and

second floors were legal. The basement and attic apartments

were not. Several tenants complained about the lack of smoke

detectors. When the attic tenant complained to Jason about the

absence of smoke detectors in the common halls, Jason said it

was too expensive to fix the hardwiring.11 In 2008, the tenant

informed both Jason and Andy that the smoke detectors in the

attic apartment were not working. Although Jason said he would

11
Jason did, though, put up a battery-powered smoke
detector in the hall.
 11

fix them, he never did. The tenant's brother asked Jason what

would happen to the children in the apartment should a fire

occur, and Jason responded, "[I] don't care." Andy responded

the same way on a later date when told there was no hot water.

When informed that the attic apartment was "illegal," Jason

acknowledged that fact but told the tenant, "I'll pay the

$10,000 fine."

On March 7, 2009 -- slightly over two weeks before the fire

-- a Quincy police officer responded to a call reporting a

problem with the heat in the attic apartment. The officer found

there was neither heat nor hot water; the tenant had been

without hot water for five days. The officer also observed that

the apartment did not have a second exit, and that the only

smoke detector in the apartment did not work. These conditions

alarmed him, and he unsuccessfully tried to locate Andy to

discuss them. The officer also reported the safety issues to

the Quincy department of inspectional services.

As a result, the Quincy health department conducted an

inspection two days later, on March 9, 2009. There still was no

hot water in the attic apartment, and the smoke detector was not

working. There was also no handrail on the stairway leading to

the apartment, the ceiling height was inadequate, and there was

only a single means of egress from the apartment. Given the

seriousness of the absence of smoke detectors, the inspector
 12

called Andy immediately and informed him of the violations. He

also expressed his concern that the apartment was "illegal."

Andy said that he was aware of that fact, and was trying to

remove the tenants. The inspector told Andy that the absence of

functioning smoke detectors was "a condition deemed to

endanger," and instructed him to correct the problem within

twenty-four hours. He also told Andy that a formal written

notice would follow, and that he would conduct a follow-up

inspection.

The formal notice was sent the following day, identifying

the following violations in the attic unit:

• failure to maintain smoke detectors;

• nonfunctioning smoke detector in the living room;

• failure to provide a handrail on the stairs leading to
the apartment; and

• failure to provide hot water.

Andy was instructed that the smoke detectors and lack of hot

water had to be fixed within twenty-four hours, and that the

apartment would be reinspected on or about March 20, 2009.12,13

12
The notice was sent by certified mail to Andy's address
on file. But it was returned because, despite several delivery
attempts, Andy did not sign for it or pick it up. Andy had
given 100 Robertson Street as his address, which was not true.
13
In addition to sending formal notice to Andy, the health
inspector also referred the matter to the Quincy building and
fire departments, notifying them that the attic apartment was
 13

As he had stated, the inspector followed up with the tenant

in order to find out whether the violations had been cured. The

hot water problem had been addressed, but the others had not,

and so the inspector again spoke to Andy -- this time on March

24, 2009, the day before the fire.

Like the tenant in the attic apartment, the tenant on the

first floor complained to Jason about the absence of smoke

detectors. There were also no smoke detectors in a second floor

apartment. Similarly, the basement apartment did not have

functioning smoke detectors. Frawi and Knight's roommate (who

had lived with them in the basement apartment until just two

days before the fire when, by happenstance, he moved away)

complained regularly to Jason about the absence of smoke

detectors, alerted him to the danger it presented, and reminded

him that there were small children living in the apartment.

Although Jason promised that he would install a smoke detector,

he never did.

Right before Frawi and his family moved in, Andy and Jason

removed portions of the dropped ceiling in the basement

apartment in order to repair some leaking plumbing. Behind the

dropped ceiling was a hard-wired smoke detection system, with

two detectors. One of those detectors was wrapped in a rag in

"illegal," that there was only a single means of egress, and
that the smoke detectors were not working.
 14

order to keep it from functioning. After repairing the leaking

pipe, Andy and Jason replaced the ceiling tiles, covering the

smoke detectors.

After the fire, it was discovered that there had been

functioning electrical wiring to those detectors, but that the

circuit breaker for those detectors (as well as those on the

stairwell) had been turned "off." There was no evidence from

which the jury could reasonably have inferred that the

defendants wrapped the detector in a rag. However, the evidence

could permit the jury reasonably to infer that the defendants

knew there was a hard-wired smoke detection system in the

building that extended to the basement apartment and that they

knew that it had been rendered nonoperational, whether by

wrapping one of the detectors in cloth, cutting the circuit, or

by covering the detectors over with ceiling tiles --

circumstances they did nothing to rectify.

The fire occurred in the early morning hours of March 25,

2009, while Frawi, Knight, Ali, and Hassan slept in the bedroom

of the basement apartment. The fire was caused by a small

decorative electric lamp the family kept illuminated on a

windowsill in the living room. That lamp tipped onto the couch,

which ignited. Smoke and fumes then spread throughout the

basement apartment and the apartments above. The fire itself,

however, was confined to the basement apartment, where it was
 15

most intense (hundreds of degrees) in the living room, through

which occupants of the bedroom had to pass to reach the only

means of egress from the apartment. Functioning smoke detectors

would have alerted the victims to the danger of the fire in time

for them to have escaped or avoided injury.

We reserve additional facts to our discussion of the legal

issues raised.

Discussion. 1. Andy's motion to suppress. Trooper

Michael Peters, a member of the State police fire and explosion

investigation unit attached to the State fire marshal's office,

reported to 100 Robertson Street at approximately 5:15 A.M.,

when the building was still smoldering and firefighters remained

in the building to attend to "fire extensions."14,15 Because

firefighters were not yet finished, the trooper was not

permitted to enter the building until 7:00 A.M., at which point

he entered the building to conduct an investigation into the

fire's origin and cause. Smoke was still emanating from the

burning debris, and the bodies of the deceased were still

present. The trooper's investigation, which entailed an

14
Fire extensions are areas where fire can spread through
walls and other conduits.
15
The facts in this section are drawn from the motion
judge's findings after an evidentiary hearing on the motion to
suppress, which we accept unless clearly erroneous (a contention
the defendant does not make). See, e.g., Commonwealth v. Scott,
440 Mass. 642, 646 (2004).
 16

examination of all floors of the building, tracing and examining

smoke and fire patterns, did not end until about 3:00 P.M.

The trooper concluded that the fire originated in the

basement, and that it was largely contained in the basement

apartment. Damage to the upper floors was caused by smoke

alone. He found that the most severe damage occurred in the

basement living room, where he found a melted piece of plastic

with an electric motor in the burnt debris. It was later

discovered that this belonged to a decorative lamp that had been

on the windowsill. The trooper posited that an electric short

had occurred, thus melting the lamp, which had fallen onto the

couch below and ignited the premises.

Andy moved to suppress the piece of plastic and motor --

the only physical evidence seized as a result of the trooper's

investigation. Andy argued that the inspection, which was

conducted without a warrant, was an unconstitutional search

because no exigency existed once the last flame of the fire had

been extinguished. The motion judge correctly ruled that this

argument was based on a misreading of Michigan v. Tyler, 436

U.S. 499, 510 (1978), which (contrary to Andy's argument) does

not create a bright-line rule that a warrant is required to

investigate the scene of a fire after the last flame has been

extinguished. Instead, the Court held that "officials need no

warrant to remain in a building for a reasonable time to
 17

investigate the cause of a blaze after it has been

extinguished." Ibid. We have restated this same standard of

reasonableness in our own cases. See Commonwealth v. Jung, 420

Mass. 675, 682-683 (1995) (no warrant needed to enter home and

investigate within reasonable time after fire was extinguished).

"[I]f the warrantless entry to put out the fire and determine

its cause is constitutional, the warrantless seizure of evidence

while inspecting the premises for these purposes also is

constitutional." Michigan v. Tyler, 436 U.S. at 510. The judge

did not err in denying Andy's motion to suppress.

Changing tack on appeal, Andy now argues that the evidence

should have been suppressed because the investigation continued

for an unreasonable length of time. This argument was not

presented below, and is accordingly waived. See Mass.R.Crim.P.

13(a)(2), as appearing in 442 Mass. 1516 (2004); Commonwealth v.

Quint Q., 84 Mass. App. Ct. 507, 514 (2013). Even were we to

conclude that the search continued an unreasonable length of

time (a conclusion we assume only arguendo), that conclusion

would not help Andy. The plastic piece and motor that were the

subject of the motion to suppress were never offered or admitted

into evidence. Although a photograph of the objects was

admitted, Andy did not object to its admission and, moreover,

the photograph was not the subject of the motion to suppress.

Andy does not argue that the photograph should not have been
 18

admitted, nor does he claim that a substantial risk of a

miscarriage of justice resulted from its admission. See

Commonwealth v. Maylott, 43 Mass. App. Ct. 516, 519 (1997)

(evidence admitted without objection at trial and without a

pretrial motion to suppress will be examined only for

substantial risk of a miscarriage of justice). Nor could such

an argument credibly be made; there was no dispute about what

sparked the fire, and the defendants' liability did not turn on

it.

2. Andy's motion to sever. "Absent a constitutional

requirement, whether the indictments joined for trial should be

severed is a matter within the sound discretion of the judge,

[and his] decision will be reversed only if there has been a

clear abuse of discretion." Commonwealth v. Allison, 434 Mass.

670, 679 (2001), citing Mass.R.Crim.P. 9(a)(3) and 9(d)(2), 378

Mass. 859 (1979). "The defendant bears the burden of

demonstrating that prejudice will result from a failure to sever

the charges." Commonwealth v. Delaney, 425 Mass. 587, 593-594

(1997), cert. denied, 522 U.S. 1058 (1998), citing Commonwealth

v. Gallison, 383 Mass. 659, 671 (1981).

Relying on Bruton v. United States, 391 U.S. 123 (1968),

Andy argues that the judge erred in not severing his case

because he (Andy) was prejudiced by the introduction in evidence

of Jason's otherwise inadmissible extrajudicial statements.
 19

Andy's argument is not enhanced by his failure to identify the

statements he claims run afoul of Bruton or by his decision not

to include in the record appendix his entire motion to sever.

The one page of the motion he has included in the record on

appeal does not identify any specific statements. We confine

our review, therefore, to the only statement we can infer was

brought to the judge's attention, namely, Jason's statement that

he would "pay the $10,000 fine," which was made in response to

the attic tenant's complaint that the apartment was "illegal."16

"The trial judge concluded properly that there was

sufficient evidence of joint venture and that, therefore, out-

of-court statements of the joint venturer[] made during the

course of the 'cooperative effort and in furtherance of its

goal' could be introduced against the other joint venturer[]."

Commonwealth v. Santos, 463 Mass. 273, 289-290 (2012). See

Mass. G. Evid. § 801(d)(2)(E) (2014). As described in the first

part of this opinion, the evidence amply supported a conclusion

that Andy, Jason, and Jinny Ma were engaged in a cooperative

effort to operate 100 Robertson Street as an investment rental

property without regard to the safety or well-being of their

tenants, whether through renting "illegal" apartments, violation

16
We draw this inference based on the fact that this is the
only statement by Jason specifically identified in the judge's
decision on the motion to sever.
 20

of various building and housing codes, or by failing to respond

to the numerous times they were notified -- by insurers,

tenants, and inspectors -- that smoke detectors needed to be

installed or replaced. Jason's statement to the attic tenant

closely related to this collaborative enterprise; it was made in

direct response to the attic tenant's statement that the

apartment was "illegal" and that the various defects presented a

danger, particularly to children. See Commonwealth v. Stewart,

454 Mass. 527, 534 (2009), quoting from Commonwealth v. Allison,

434 Mass. at 675 ("[O]ut-of-court statements by joint criminal

participants are admissible against the others if the statements

are made both during the pendency of the cooperative effort and

in furtherance of its goal").17

3. Admission of photographs. Both defendants objected to

the admission of three photographs taken of the bodies of Frawi

and Ali before they were removed from the scene. The two of

Frawi show his body largely covered, but show the burnt sole of

one foot and his burnt knee. The one of Ali shows the child's

17
Because we conclude there was no error, we need not reach
Andy's argument concerning prejudice. However, we note that, as
soon as the testimony was introduced (over Andy's objection),
the judge gave a detailed, strong, and clear instruction that
the jury could not consider the statement unless and until they
first found, beyond a reasonable doubt, that a joint venture
existed, that the statement occurred while the joint venture
existed, and that the statement was relevant to the joint
venture. This instruction was repeated in the judge's final
charge to the jury.
 21

two legs; the rest of his body is obscured by the partially-

melted car seat in which he customarily slept and in which his

body was found. The defendants argue that admission of the

photographs constituted prejudicial error requiring reversal of

their convictions.

"The admissibility of photographic evidence is left to the

discretion of the trial judge." Commonwealth v. Tassinari, 466

Mass. 340, 349 (2013), quoting from Commonwealth v. Waters, 399

Mass. 708, 715 (1987). "[I]f the photographs possess evidential

value on a material matter, they are not rendered inadmissible

solely because they are gruesome or may have an inflammatory

effect on the jury." Commonwealth v. Tassinari, supra, quoting

from Commonwealth v. Ramos, 406 Mass. 397, 407 (1990). The

defendants do not seriously contest that the photographs had

evidential value. The photographs were relevant to the

Commonwealth's theory that Frawi, carrying Ali in his car seat,

had attempted to escape through the burning living room to reach

the only passage to safety but was forced to retreat to the

bedroom, from which there was no escape. The photographs showed

that Frawi's burns were different from, and more severe than,

those of Knight and Hassan, who remained in the bedroom. Also

shown was Ali's melted car seat. Together, these supported the

inference that Frawi and Ali had gone into the living room where

the most intense heat of the fire was located -- and that the
 22

absence of functioning smoke detectors had prevented the

occupants from being awakened before the fire had progressed to

the point where escape was impossible. Because the photographs

also show that Frawi's and Ali's bodies were found in the

bedroom after the fire, they also support the inference that

Frawi had been unable to pass through the living room to safety

and had been forced to retreat to the bedroom, from which there

was no exit. Frawi's body is shown on the bedroom floor, near

the door leading to the living room, but facing in the direction

of the too-small bedroom window. There is no doubt that the

photographs were relevant to the question whether the

defendants' inactions caused the victims' deaths.18

The defendants argue, however, that the photographs were so

gruesome that their prejudice outweighed their relevance such

that the judge abused his sound discretion in admitting them.

See Commonwealth v. DeSouza, 428 Mass. 667, 670 (1999). We

disagree. Unlike in Commonwealth v. Richmond, 371 Mass. 563,

565 (1976), upon which the defendants rely, the photographs here

18
The defendants argue that the photographs were irrelevant
because the defendants did not contest how the victims died.
However, "[e]ven if a defendant agrees to stipulate to the facts
that an offered photograph tends to prove, it is generally not
error to admit it." Commonwealth v. DeSouza, 428 Mass. 667, 670
(1999), citing Commonwealth v. Nadworny, 396 Mass. 342, 367
(1985), cert. denied, 477 U.S. 904 (1986). More importantly
here, absent a stipulation that the defendants caused the
victims' injuries and death, it was not enough for the
defendants simply to agree that the fire caused them to die.
 23

do not depict much of the victims' bodies. Nor do they depict

postmortem injuries having nothing to do with the crime.

Moreover, the judge carefully reduced the number of photographs

allowed in evidence from the more than twenty offered by the

Commonwealth, and excluded all that showed the victims' full

bodies or the full extent of their injuries. We have obtained

the original exhibits from the trial court and our independent

review of them persuades us that, as sad as they are, the judge

did not abuse his discretion in concluding that their relevance

outweighed their prejudice.

4. Sufficiency of the evidence against Jason. Pointing to

evidence that he performed many repairs and much maintenance on

the property, Jason contends that the evidence did not suffice

to prove beyond a reasonable doubt wanton or reckless conduct by

any act of omission. Although it is true that there was

evidence that Jason made repairs to the property and responded

to tenants' requests for repairs, there was ample contrary

evidence (as set out above) to the effect that he routinely

failed to respond to requests to repair or replace missing smoke

detectors, that he was warned of the safety risk involved in not

installing smoke detectors, and that he was willing to risk the

safety of the tenants in exchange for financial benefit to

himself, Andy, and Jinny Ma. Any conflict in the evidence did

not affect the sufficiency of the Commonwealth's proof and was
 24

for the jury to resolve. See, e.g., Commonwealth v. Ruci, 409

Mass. 94, 97 (1991) ("inconsistencies in the witnesses'

testimony . . . go to their credibility and do not affect the

sufficiency of the evidence"). Viewed under the standard we are

charged to apply, Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979), the evidence sufficed to prove that "the risk of

death or grave bodily injury [was] known or reasonably apparent,

and the harm [was] a probable consequence of the defendant's

election to run that risk or of his failure reasonably to

recognize it." Commonwealth v. Levesque, 436 Mass. 443, 452

(2002), quoting from Sandler v. Commonwealth, 419 Mass. 334, 336

(1995).

5. Duty of care. Jason argues that the evidence was

insufficient to prove he owed a duty to the tenants of 100

Robertson Street because, he argues, only owners owe duties to

tenants. Although made as an argument concerning sufficiency of

the evidence, in fact, as we explain below, the argument is more

properly viewed as a mixed question of law and fact.

Because the Commonwealth's theory of manslaughter rested

entirely on Jason's omissions, the Commonwealth was required to

prove that he had a duty to act.19 "The essence of wanton or

19
It is important to note that, although his brief draws no
distinction, Jason's argument is relevant only to the
manslaughter convictions. His convictions under G. L. c. 148,
§ 34B, stand on a different footing. That statute provides that
 25

reckless conduct is intentional conduct, by way either of

commission or of omission where there is a duty to act, which

conduct involves a high degree of likelihood that substantial

harm will result to another." Commonwealth v. Welansky, 316

Mass. 383, 399 (1944). See Commonwealth v. Levesque, 436 Mass.

at 448 ("[a]n omission . . . may form the basis of a

manslaughter conviction where the defendant has a duty to act").

Duty may be established in one of two ways. The first is

where the defendant has a special relationship to the victim.

"[a]ny person who wantonly or recklessly violates the state
building code or state fire code and thereby causes serious
bodily injury or death to any person shall be punished . . ."
(emphasis added). No special relationship is required under the
statute. Of course, a person cannot be convicted under § 34B
unless he or she was responsible for complying with the
particular underlying building or fire code. Given Jason's role
in holding himself out as capable of addressing code
requirements for smoke and fire detection, he made himself
responsible for compliance.

Although some of the alleged underlying statute and code
violations in this case apply only to "owners," e.g., G. L.
c. 148, § 26E; 527 Code Mass. Regs. § 24.08(3)(f) (1993), many
do not. See, e.g., G. L. c. 148, § 27A (any "person"); G. L.
c. 148, § 34B (same); 527 Code Mass. Regs. § 31.04(1)(a) (2007)
(owners, landlords, and superintendents); 527 Code Mass. Regs.
§ 24.08(1)(b) (1998) ("a responsible person"); Rule 8 of the
Massachusetts Electrical Code, as appearing in 527 Code Mass.
Regs. § 12.00 (2007) ("person, firm or corporation"). Others of
the pertinent statutes and codes, through silence, appear not to
be limited to owners either. See, e.g., G. L. c. 148,
§ 26F1/2(c); G. L. c. 148, § 26B; 527 Code Mass. Regs.
§ 24.08(1)(a) (1998); 527 Code Mass. Regs. § 24.08(3)(c)
(1993); 780 Code Mass. Regs. §§ 1010.1, 3400.3 (1997).

The codes were admitted in evidence at trial.
 26

See Commonwealth v. Twitchell, 416 Mass. 114, 117-118 (1993)

(parent-child special relationship). See also Commonwealth v.

Welansky, 316 Mass. at 397 (person in control of business

premises has duty of care for safety of customers). The second

is where the defendant "creates a situation that poses a grave

risk of death or serious injury to another." Massachusetts

Superior Court Criminal Practice Jury Instructions § 2.8.1

(Mass. Continuing Legal Educ. 2d ed. 2013).20 See Commonwealth

v. Levesque, 436 Mass. at 450-451 (persons who set fire created

a situation that posed a grave risk of death such that they had

duty to report it). We are concerned in this case only with the

first of these.

"The existence of a relationship giving rise to a duty is a

question of fact for the jury although the duty arising from a

relationship is a matter of law." Massachusetts Superior Court

Criminal Practice Jury Instructions § 2.8.1, at 2-76 n.29 (Mass.

Continuing Legal Educ. 2d ed. 2013), citing Commonwealth v.

Twitchell, 416 Mass. at 116-117.21 Thus, in this case, it was

20
We acknowledge that the model jury instructions cited
were not in effect at the time of trial. However, the cited
instructions reflect the law as it existed at the time of trial,
and the judge's instructions on involuntary manslaughter tracked
the new instructions closely, if not identically.
21
This allocation between law and fact parallels that in
civil negligence cases, where we have stated that "[w]hether a
defendant has a duty of care to the plaintiff in the
circumstances is a question of law for the court, to be
 27

for the jury to determine whether Jason was the property manager

of 100 Robertson Street, as the Commonwealth contended. But it

was for the judge to determine whether that relationship gave

rise to a duty of care to the tenants. Jason does not argue

that the evidence was insufficient to prove that he was the

property manager of 100 Robertson Street. Indeed, it was

undisputed that Jason was the property manager, and there was

also sufficient evidence to find that he was the landlord.

Jason argues, however, that because he was "only" the property

manager, he did not have a special relationship to the tenants

that imposed on him a duty of care.22 Stated otherwise, pointing

to authorities in the field of civil landlord-tenant law,23 his

argument is in essence that only owners owe duties to tenants.

determined by reference to existing social values and customs
and appropriate social policy." O'Sullivan v. Shaw, 431 Mass.
201, 203 (2000), citing Davis v. Westwood Group, 420 Mass. 739,
743 (1995).
22
This argument is in part based on a misreading of
Commonwealth v. Welansky, 316 Mass. at 399. Although it is true
that Welansky was the owner of the Cocoanut Grove nightclub in
Boston, the scene of a horrific fire, the case cannot be read to
limit criminal responsibility for manslaughter by acts of
omission to owners of premises. See id. at 387, 402 (if
defendant-owner had delegated responsibility for safety of exits
to others, they could have been held criminally responsible).
23
Specifically, Jason points to G. L. c. 186, § 15E
(building owners) and § 15F (landlords), and Warshaw,
Massachusetts Landlord-Tenant Law § 2:2 (2d ed. 2001).
 28

Although we have customarily turned to civil law when

formulating duties in the criminal context, see Commonwealth v.

Levesque, 436 Mass. at 449, criminal liability "is not limited

to those duties whose violation would create civil liability."

Commonwealth v. Twitchell, 416 Mass. at 117. In any event, in

this case, a duty was imposed on Jason through many of the

underlying building and fire codes.24 See note 19, supra.

Moreover (regardless of the requirements of the various

codes), the facts established that Jason was the type of

property manager who owed a duty to the tenants of 100 Robertson

Street. The evidence was uniform that Jason was responsible for

all maintenance and repairs to the property. He was identified

as the property manager to insurers, inspectors, and tenants.

All tenant requests for repairs were made to Jason, either

directly or indirectly when they were referred to him by Andy.

Jason held himself out as capable of addressing requests for

repairs, including with respect to smoke detectors and fire

safety. In addition, although Jason did not have an ownership

interest in the property, he was as integrally involved in the

building's operations as its owners, who were his brother and

24
Our discussion here pertains to Jason's liability as a
principal. He was also charged and tried on a joint venture
theory. Assuming he was properly charged as a joint venturer,
see note 26, infra, his liability would have run additionally
through Andy's violations of building and fire codes that
applied only to owners.
 29

his wife. He held himself out to at least one of the tenants as

the landlord. He and Andy interchangeably entered into rental

arrangements with the tenants, and he collected rent payments,

which were often made out to him in his name. In short, the

judge did not err in concluding that Jason owed a duty of care

to the tenants of 100 Robertson Street.

Finally, Jason argues it was error to instruct the jury

that if they found Jason was a property manager or a landlord,

then, as a matter of law, he had a special relationship with the

tenants.25 Both defendants objected to this portion of the

instruction. Even if we were to accept Jason's argument that

the instruction was overbroad as a general proposition (because

not all property managers are alike and it is possible to

imagine situations where a manager's involvement in the property

is so minimal that it would not give rise to a special

relationship for these purposes), it was not so in this case.

25
The judge instructed:

"The second element is that there was a special
relationship between the defendant and the victim which
gave rise to a duty of care or the defendant created a
situation that posed a grave risk of death or serious
injury to another. I instruct you that a relationship
between an owner, landlord, or property manager and a
tenant is a special relationship which gives rise to a duty
of care. If you find that either defendant had one of
these relationships . . . with the victims, then you shall
find that the defendant had a special relationship with the
victims that gave rise to a duty of care."
 30

Jason's involvement in 100 Robertson Street was pervasive,

including not only the maintenance of the property but also many

of the activities and responsibilities customarily associated

with owners and landlords (such as rent collection, obtaining

insurance, and lease negotiation).26

6. Statements to officials. Jason argues that his

statements to fire and other officials at the scene on the

morning of the fire (including the purchase price for the

property, that it was purchased in "as is" condition, and that

no work had been done on the property after its purchase) should

have been suppressed because he did not receive Miranda

warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).

Independently, he argues that his spontaneous question when he

arrived on the scene, "Is it a total loss?" should not have been

admitted because any probative value was outweighed by its

prejudicial effect.

In reviewing a decision on a motion to suppress, "we accept

the judge's subsidiary findings of fact absent clear error 'but

conduct an independent review of his ultimate findings and

26
Jason also argues that the evidence was insufficient to
establish a joint venture with Andy and, accordingly, he should
not have been convicted based on Andy's omissions as an owner.
Jason further contends that the joint venture instruction in
Commonwealth v. Zanetti, 454 Mass. 449 (2009), should not have
been given. The arguments are made cursorily and do not merit
discussion. In any event, in light of our conclusion regarding
Jason's liability as a principal, there is no need to reach his
arguments concerning joint venture.
 31

conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646

(2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218

(2002). Jason does not argue that any of the judge's subsidiary

findings are clearly erroneous. We set them out here:

"After major fire suppression efforts were
performed, officials attempted to contact the owners
of the building. There was some confusion at the
scene as to who the actual owner was, and multiple
attempts were made to identify addresses. At some
point, [Jason's] address was proffered, and officials
went to his home address in an effort to locate the
owner of the burning residence.

"At approximately 6:30 a.m., an officer arrived
at [Jason's] home, and informed him that a fire had
occurred at the 100 Robertson Street address. The
officer then asked [Jason] to accompany him down to
the scene of the fire. [Jason] and his wife, Ma,
drove to the scene, with the officer following behind
them. Upon arriving, the street had been cordoned off
due to the fire, and so the escorting officer directed
[Jason] and Ma to drive through and park along the
curb. As [Jason] and Ma waited outside the 100
Robertson Street address, one of the officers on the
scene heard someone say not to let them leave.

"At that point, Trooper Peters escorted [Jason]
and Ma into the cab of a 'rehab' fire truck, due to
the cold weather outside. A rehab fire truck is a
vehicle, designated by fire officials to warm
firefighters during the frigid months. It was there
that Peters spoke with [Jason] and Ma. Ma did not
understand English, but [Jason] interpreted for her.

"Peters asked them questions related to the
property, e.g., who the owners were, who occupied the
building, when it was bought, who maintained it, etc.
The conversation was brief, and lasted a matter of
minutes. Trooper Morris and Detective Pacino also
spoke with [Jason] and Ma for approximately five
minutes on the same subjects. In response, [Jason]
identified himself as the property manager, and his
brother, Andy, as the owner. He then gave Morris his
 32

brother's phone number, and told Peters that he would
work on getting a list of the occupants for him. Both
conversations, in sum, lasted between five and ten
minutes. Afterwards, [Jason] and Ma left."

The issue is whether the judge properly concluded that

Jason was not in custody, for purposes of Miranda, at the time

he made the incriminating statements. There are four indicia of

custody: "(1) the place of the interrogation; (2) whether the

officers have conveyed to the person being questioned any belief

or opinion that the person is a suspect; (3) the nature of the

interrogation, i.e., whether the interview was aggressive or,

instead, informal; and (4) whether, at the time the

incriminating statement or statements were made, the suspect was

free to end the interview by leaving the place of the

interrogation or by asking the interrogator to leave, or,

alternatively, whether the interview terminated with the

defendant's arrest." Commonwealth v. Sneed, 440 Mass. 216, 220

(2003).

The judge correctly examined and applied all four indicia.

Jason was questioned in a public venue, in the presence of his

wife, and in familiar surroundings (outside a property his wife

owned and that he was intimately involved in running). Second,

Jason was neither a suspect nor a subject of a criminal

investigation. The questions were designed to elicit basic

information about the property and its tenants, not to uncover
 33

incriminating information about Jason. Third, the questioning

was informal and brief. Fourth, an objective person in Jason's

circumstances would have felt free to leave. Jason had arrived

on the scene in his own vehicle with his wife and he left the

same way. Although the judge heard testimony that someone said

that Jason and Jinny Ma should not be allowed to leave, he found

there was no evidence to suggest that these words were spoken to

Jason or Jinny Ma. In short, the judge did not err in

concluding that Jason failed to establish that he was in

custody.

We also see no abuse of discretion by the judge in

admitting Jason's spontaneous statement. Jason's unsolicited

question when he arrived at the scene, "Is it a total loss?"

went to his state of mind concerning the safety and well-being

of the tenants. To the extent the statement was prejudicial, it

was only in the sense that it did not benefit Jason -- not that

it was unduly so.

Judgments affirmed.