Court of Appeals of Ohio, Eleventh District, Trumbull
Criminal Appeal from the Trumbull County Court of Common
Pleas. Case No. 2017 CR 00133.
Watkins, Trumbull County Prosecutor; Christopher Becker,
Michael A. Burnett, and Ashleigh Musick, Assistant
Prosecutors, Administration Building, Fourth Floor, (For
H. Shamansky, Donald L. Regensburger, Colin E. Peters, and
Sarah A. Hill, Samuel H. Shamansky Co., (For
TIMOTHY P. CANNON, J.
Defendant, Nasser Y. Hamad ("Hamad"), appealed from
the entry on sentence issued by the Trumbull County Court of
Common Pleas on November 20, 2017, in case No. 2017 CR 00133.
A jury found Hamad guilty of two counts of Aggravated Murder,
with firearm and aggravated circumstances specifications, and
six counts of Attempted Aggravated Murder, with firearm
specifications. The jury did not make the requisite findings
for imposition of the death penalty as had been requested by
appellee, the state of Ohio. The issues on appeal relate to a
request for a jury instruction, the exclusion of expert
testimony, the conduct of the prosecutor, and the jury's
verdict. The judgment is affirmed.
of the Case
This case stems from a physical altercation and shooting that
took place outside Hamad's residence in Howland Township,
Ohio. Prior to the altercation, 47-year old Hamad had engaged
in an exchange of offensive communications via social media
and text message with 19-year-old Bryce Hendrickson
("Bryce") and 17-year-old John Shively
("Shively"). The three traded insults and threats
of physical violence; Hamad was also the subject of death
threats and racial insults. The precipitating cause of the
hostility was Hamad's relationship with Bryce's
mother, Tracy Hendrickson ("Tracy"), and
Hamad's ongoing verbal feud with Bryce's father,
Brian Hendrickson ("Brian"). Tracy and Brian were
separated; Tracy and Hamad were living together.
On Saturday, February 25, 2017, at approximately 4:30 p.m.,
four young men arrived at Hamad's residence: 19-year-old
Bryce; 17-year-old Shively; 19-year-old Joshua Haber
("Haber"); and 20-year-old Josh Williams
("Williams"). They were driven there by 43-year-old
April Trent, a.k.a. April Vokes ("April"), Shively
and Haber's mother. Hamad's residence was located on
a busy state route near a shopping mall, which resulted in
numerous eye witnesses who later testified at trial.
A confrontation ensued, and a physical fight broke out in the
front yard. Hamad ended up on the ground, where he was kicked
and struck numerous times. When the young men returned to the
van, Hamad went inside his house. Hamad came back outside
with a 9mm handgun and fired at the van, which was at the end
of his driveway attempting to back out. Hamad again went
inside and reloaded his handgun. After the first round of
fire, April and Williams were injured and unresponsive inside
the van. Bryce and Shively were also injured, but they exited
the van and attempted to flee on foot. Haber exited and
remained near the van. Hamad came back outside and fired the
handgun several more times. As Haber attempted to jump back
into the van, Hamad shot him.
April was shot a total of six times, Bryce twice, and Shively
Haber was shot twice and died at the scene.
Williams was shot at least four times and later died at the
On March 1, 2017, the Trumbull County Grand Jury indicted
Hamad on two counts of Aggravated Murder (Count 1 and Count
2), in violation of R.C. 2903.01 (A), each with an
aggravating circumstances specification pursuant to R.C.
2929.04(A)(5); and six counts of Attempted Aggravated Murder
(Counts 3, 4, 5, 6, 7, 8), in violation of R.C.
2923.02(A)&(E)(1) and R.C. 2903.01(A). Each of the eight
counts carried a firearm specification pursuant to R.C.
2941.145. Hamad pled not guilty and was held without bond.
The state filed two motions in limine. The first sought to
prohibit Hamad from requesting, and the court from
instructing the jury on, the affirmative defense of
self-defense. The state asserted that Hamad "by his own
words and actions fails to meet any of the three prongs of
self-defense and as a matter of law this Court cannot give
such an instruction." The second motion sought to
prohibit Hamad from introducing expert testimony regarding
his claim of self-defense. Defense counsel responded with a
memorandum on the use of an expert in establishing
self-defense. The defense proffered that its expert, Dr.
James Reardon, would testify that Hamad was suffering from
Post-Traumatic Stress Disorder as a result of death threats
he received over a period of six months and the beating he
suffered on February 25. The trial court denied both motions
in limine, finding the issue of self-defense was premature;
the motions would be addressed, if necessary, at the
appropriate time during the trial.
At the conclusion of the state's case-in-chief, defense
counsel filed a supplement to their motion to present the
expert testimony of Dr. Reardon. The trial court ruled that
Hamad was not permitted to introduce the testimony during the
initial phase of the trial, but it later permitted the
expert's testimony during the mitigation phase.
After the defense rested, defense counsel requested jury
instructions on Murder and Voluntary Manslaughter. The trial
court instructed the jury on Murder and Attempted Murder, but
it denied the motion as to Voluntary Manslaughter. Over the
state's objection, the trial court also instructed the
jury on the affirmative defense of self-defense.
On October 30, 2017, the jury returned a verdict of guilty on
each count of Aggravated Murder and Attempted Aggravated
Murder, including both aggravating circumstances
specifications and each firearm specification.
After hearing evidence in mitigation of the death penalty,
the jury returned its verdict of sentence on November 8,
2017. The jury did not make the requisite findings for
imposition of the death penalty. Rather, the jury found Hamad
should serve life imprisonment with parole eligibility after
30 full years of imprisonment for each Aggravated Murder
conviction. The state filed a sentencing memorandum,
requesting the trial court sentence Hamad to consecutive
sentences for each offense and firearm specification.
A sentencing hearing was held November 9, 2017. Over the
state's objection, the trial court merged Counts 3 and 4,
Counts 5 and 6, and Counts 7 and 8. The state elected to
proceed with sentencing on Counts 3, 5, and 7. The trial
court sentenced Hamad as follows:
Count 1: life imprisonment with parole eligibility after 30
years, plus 3 years mandatory on the firearm specification,
to be served prior to and consecutive to the life sentence;
Count 2: life imprisonment with parole eligibility after 30
years, plus 3 years mandatory on the firearm specification,
to be served prior to and consecutive to the life sentence;
Count 3: 11 years in prison, plus 3 years on the firearm
Count 5: 11 years in prison, plus 3 years on the firearm
Count 7: 11 years in prison, plus 3 years on the firearm
2, 3, 5, and 7 were run concurrently with Count 1, resulting
in an aggregate term of life imprisonment with parole
eligibility after 30 years, plus 3 years for each of the
firearm specifications in Counts 1 and 2, to be served prior
to and consecutive to the life sentence. The trial court
entered its sentence on the docket on November 20, 2017.
Hamad noticed an appeal on November 22, 2017.
Hamad passed away in prison on September 9, 2018, while his
appeal was pending. On October 10, 2018, the state filed a
"Suggestion of Death and Motion to Substitute
Party." The state moved to substitute Hamad's
attorney, Samuel H. Shamansky (hereinafter
"appellant"), as party representative on appeal.
This court granted the motion, pursuant to App.R. 29(A).
See also State v. McGettrick, 31 Ohio St.3d 138
(1987). We therefore proceed to the merits.
Appellant raises four assignments of error for our review:
[1.] The trial court erred by failing to instruct the jury on
the inferior offense of Voluntary Manslaughter, in violation
of [Hamad's] rights as guaranteed by the Sixth Amendment
to the United States Constitution and comparable provisions
of the Ohio Constitution.
[2.] The trial court erred by prohibiting [Hamad] from
introducing expert testimony regarding PTSD and a concussion
suffered by [Hamad], as it related to self-defense, voluntary
manslaughter, and prior calculation and design, in violation
of the Ohio Rules of Evidence and [Hamad's] rights under
the United States and Ohio Constitutions.
[3.] [Hamad's] convictions were against the manifest
weight of the evidence in violation of his right to due
process as guaranteed by the Ohio Constitution.
[4.] The trial court failed to order a mistrial or give an
appropriate curative instruction after the prosecutor engaged
in gross misconduct that resulted in unfair trial to [Hamad],
in violation of his rights as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution.
Adduced at Trial
The jury trial began on October 19, 2017, with a jury view of
April's van and Hamad's residence in Howland
Township, where the shooting occurred. The jury also viewed
Hamad's residence from sites nearby, where various fact
witnesses were located during the altercation. Many of these
eyewitnesses testified during the trial.
Bryce died prior to trial from causes unrelated to the
shooting. Testimony regarding the events that led up to the
shooting, as well the events of February 25, was provided by
Shively, April, and Tracy. Tracy was called as a court's
witness. Hamad also took the stand in his own defense.
In the fall of 2016, Tracy left her husband, Brian, and moved
out of the home they shared with their two sons, 19-year-old
Bryce and 18-year-old Dylan. She testified that Brian and her
sons were abusing drugs, and Brian had become abusive towards
her. Tracy initially moved into an apartment with her adult
daughter. Tracy began dating Hamad. Brian, Bryce, and Dylan
("the Hendricksons") began harassing the couple.
Because she felt unsafe, Tracy eventually moved in with
Hamad. Hamad owned a construction business, which was
situated on the lot with his house. At the time, the
Hendricksons lived around the corner from Hamad; prior to the
shooting incident, however, they had moved to an address in
Tracy testified that the harassment began with text messages
to her phone. After Tracy disconnected her phone, Bryce began
harassing Hamad on his Facebook page, including obscene and
racial insults. Tracy was also aware of threatening text
messages Bryce sent to Hamad with pictures of Bryce and
Williams holding firearms and knives. Some of these were
shown to the jury.
According to Tracy and Hamad, the Hendricksons frequently
drove past Hamad's residence, at all hours, and sometimes
entered his driveway at night. They threw trash in the yard
and shouted obscenities out the window. Hamad testified that
Brian came to his property a couple of times to confront him.
Hamad also claimed he heard shotgun shots that he assumed
came from the Hendricksons' property after they would see
Tracy at Hamad's. Hamad testified he received death
threats. He was afraid and paranoid and was not getting much
An incident occurred at Hamad's residence on November 6,
2016, which prompted multiple calls to the police.
Tracy's daughter was visiting, and her tires were slashed
while they were inside Hamad's house. Accusatory phone
calls went back and forth between those at Hamad's house
and those at the Hendricksons'. Police reports were
generated by Hamad, Brian, and Tracy's daughter. The
police advised them each to contact the prosecutor's
office, but no one pursued charges. Hamad testified that the
police refused to do anything. This was the only day Hamad
contacted the police about the incidents between the
On January 28, 2017, Bryce, using an alias, posted to a
Facebook group looking for Xanax: "Where the xans."
Concerned for her son, Tracy returned home to the
Hendricksons for a few days in early February 2017. Tracy was
still dating Hamad, however, and soon returned to Hamad's
home after she determined she could not help Bryce.
Tracy mailed a birthday card to Bryce. When she and Hamad
returned home in the early morning hours of February 25,
2017, Tracy found the card on Hamad's door with the
handwritten statement, "We hope you die," among
others, in Brian's and Bryce's handwriting. The card
was later discovered in Hamad's home by investigators.
Tracy and Hamad were together at Hamad's residence on
February 25, 2017. That day, Hamad commented on Bryce's
January 28 Facebook post, indicating the local court would be
interested in his search for Xanax: "Cortland central
district likes this." This comment prompted an intense
and aggressive verbal exchange between Hamad and Bryce, which
included threats, invitations to fight, vulgarity, and racial
insults. Several other minors also participated in the
Facebook exchange, including Bryce's cousin, 17-year-old
Shively and Bryce had never met each other in person. Shively
had just moved from Florida to Ohio 12 days prior with his
mother, April, and his siblings. Shively's father
(April's ex-husband) and Bryce's father (Tracy's
estranged husband, Brian) are cousins. April testified that
she and Brian had talked about dating when she moved back
from Florida. Tracy testified that April had sent her a
picture of them together.
Shively testified as to the Facebook exchange between Hamad
and Bryce. It went on for a few hours, back and forth. The
following are excerpts. Hamad wrote to Bryce: "I home
bring your gang I don't need guns for u pussys";
"Bitch dont just talk come"; "I waiting.. No
more texting pussy." Bryce responded: "If you guys
wanna stop isis start here"; "He's a
terrorist"; "We were on your property 3 times
you're a fucking pussy you don't want to fight."
Shively chimed in on the post and repeatedly asked Hamad for
his address. Bryce told Shively to pick him up and he would
take him to the address: "Scoop I'll show you I
ain't got a ride or I'd go cave this numb skulls
lumpy head in." Hamad then responded with his address
and continued taunting them to come over: "Action
motherfukers where is it." Bryce also wrote to Hamad:
"I ain't scared of you. I ain't scared of jail.
I ain't scared of shit. You dead boi"; "Imma
beat the fuck out of you." Shively then indicated he
would pick up Bryce and wrote, "Nasser Hamad I'm
When questioned as to his purpose in asking for Hamad's
address, Shively repeatedly testified it was so they could
"just take care of the problem" or "resolve
the problem," "however it would have
happened." On cross-examination, Shively did not recall
saying to investigators, "I'm not going to say we
went there to whip his ass, but like, we went there to take
care of it." He did admit, however, to sending a text
message stating they were going to "whop this old
n***er's ass" but testified that he "didn't
mean it in any racial form."
April was made aware of the Facebook exchange and became
upset that an adult was speaking in that manner to Shively,
her teenage son. April did not know Hamad but decided to
confront him at his home. Shively and his half-brother,
19-year-old Haber, rode with April. April testified she
reluctantly agreed to pick up Bryce on the condition that he
remained in the van. Another cousin, 20-year-old Williams,
was near Bryce's home, and he also got in the van.
April testified she wanted to defuse the situation, but she
had never thought about a fight occurring. She did not recall
telling the detectives that she thought a fight was going to
Bryce provided April with directions to Hamad's house on
State Route 46 in Howland Township. April was driving,
Shively was in the front passenger seat, and the other three
were in the middle bench seat. Shively denied ever having or
seeing a weapon in the van but admitted Bryce told the group
he had brought a knife. April testified she told Bryce to
keep the knife in the van, and he threw it on the floor in
between the front seats; it was in a sheath.
The van entered Hamad's driveway at approximately 4:30
Hamad testified he went outside and waved because he did not
recognize the vehicle. He stated cars often pull into his
driveway either to turn around or to ask about the
construction business. Hamad did not know or recognize April
or Shively. He also testified that he thought Shively had
been commenting on the Facebook post from Florida, which is
where Tracy told him the family lived.
April and Shively both testified that Hamad exited his house
and approached the van aggressively. April exited the van and
confronted Hamad, screaming about him threatening a group of
teenagers and trying to fight a minor, referring to Shively.
Shively exited the van, either immediately before or
immediately after April, and moved either behind Hamad or to
Hamad testified that Shively was smirking, had his hands
hidden in his sweatshirt pocket or under his shirt, and
"was up to something, you could tell." Hamad
grabbed Shively and threw him to the ground. Bryce, Haber,
and Williams then exited the van. Shively testified they all
"jumped in, and got in." Tracy exited the house and
Hamad claimed he felt something hard and metallic hit his
back, then his head, then his spine. He ended up on the
ground. Hamad testified he tried to block the punches and
kicks: "I wanted to defend myself somehow. You can't
just stay down there. If you do, I would have been dead. My
skull would have been crushed. My spine would have been
Witnesses driving along the busy state route observed the
altercation and called 911. They saw a group of young people
beating up someone who was down on the ground, approximately
10-15 feet in front of a house. The victim of this assault
was being kicked and hit. One witness also noticed a woman,
who was pointing and screaming.
Shively admitted Hamad was kicked while he was on the ground,
but he had no memory as to who was doing the kicking. He said
the "scuffle" lasted about 13-15 seconds and
admitted that the kicking and stomping could have been fatal
to Hamad. Shively, realizing the situation had escalated too
far, tried to separate the group from Hamad, and Hamad
returned to his feet. Shively remembered April screaming and
that she "kind of stepped in." April testified,
however, that she did not see the fight because it was over
within seconds, and she and Tracy were arguing. The group
quickly got back in the van, and April began to back down
Hamad's driveway towards the road. Hamad turned and
walked toward the house. Tracy and Hamad both testified that
they did not initially recognize her son, Bryce, as one of
the people in the group.
Hamad testified that he heard someone yelling, "Get the
gun. Grab the gun." Hamad entered his house, and Tracy
locked the door behind him. Hamad retrieved a loaded 9mm
handgun from his bedroom, because he feared the group was
going to "swiss cheese" his house with a firearm.
Hamad paused and then heard someone yell, "we not done
with you, bitch. Come on out, sand n***er." He told
Tracy to get behind the chimney. He cocked the gun and
noticed his hand was injured; then he unlocked the front door
and exited the house.
Hamad testified that he had the firearm at his side because
he wanted to hold the group for the police: "you know,
this has got to stop. It doesn't matter. They came to my
house in broad daylight. And it's happened before. Nobody
does anything." By this time, Hamad had an idea of who
the people in the van were, but he still did not recognize
Bryce as one of them. Hamad stated he instructed the group to
stop moving, but the front-seat passenger went down out of
sight and the back-seat passengers were all moving. Hamad
testified he fired two shots, "low," to "hit
him in the leg, you know. Send a message." "I never
aimed the whole time," Hamad testified. "I just
used the line of my body when I did it."
Several eyewitnesses testified that the van was attempting to
back out of the driveway onto State Route 46 when they first
heard gunshots. The van missed the road and ended up
partially in the yard. No one was seen outside of the van at
that point, except for Hamad. One witness testified Hamad was
"barely out of the front door" when he fired the
first shots. Another testified Hamad lifted the weapon and
fired as soon as he came out of the house and went down a
couple steps. Other witnesses did not notice Hamad until he
was closer to the van.
April testified that the boys were yelling for her to
"go, go, go" when she was struck in the head by a
bullet and blacked out. The vehicle came to rest across the
top of Hamad's driveway near the road, at a diagonal.
Shively saw Hamad exit the house with a firearm. He testified
that Hamad took a couple steps and then started shooting at
the van. Hamad left his porch and approached the van. Shively
was in the front passenger seat; he ducked down on the floor
in front of the glove box. Shively then heard and felt the
passenger window break, and his back went numb from a ...