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State v. Hamad

Court of Appeals of Ohio, Eleventh District, Trumbull

June 28, 2019

STATE OF OHIO, Plaintiff-Appellee,
NASSER Y. HAMAD, Defendant-Appellant.

          Criminal Appeal from the Trumbull County Court of Common Pleas. Case No. 2017 CR 00133.

          Dennis Watkins, Trumbull County Prosecutor; Christopher Becker, Michael A. Burnett, and Ashleigh Musick, Assistant Prosecutors, Administration Building, Fourth Floor, (For Plaintiff-Appellee).

          Samuel H. Shamansky, Donald L. Regensburger, Colin E. Peters, and Sarah A. Hill, Samuel H. Shamansky Co., (For Defendant-Appellant).


          TIMOTHY P. CANNON, J.

         {¶1} 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.

         Statement of the Case

         {¶2} 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.

         {¶3} 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.

         {¶4} 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.

         {¶5} April was shot a total of six times, Bryce twice, and Shively once.

         {¶6} Haber was shot twice and died at the scene.

         {¶7} Williams was shot at least four times and later died at the hospital.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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.

         {¶13} 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.

         {¶14} 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 specification;
Count 5: 11 years in prison, plus 3 years on the firearm specification;
Count 7: 11 years in prison, plus 3 years on the firearm specification.

         Counts 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.

         {¶15} Hamad noticed an appeal on November 22, 2017.

         {¶16} 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.

         {¶17} 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.

         Evidence Adduced at Trial

         {¶18} 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.

         {¶19} 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.

         {¶20} 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 Warren.

         {¶21} 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.

         {¶22} 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 sleep.

         {¶23} 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 families.

         {¶24} 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.

         {¶25} 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.

         {¶26} 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.

         {¶27} 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.

         {¶28} 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."

         {¶29} 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 comin."

         {¶30} 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."

         {¶31} 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.

         {¶32} 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 happen.

         {¶33} 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.

         {¶34} The van entered Hamad's driveway at approximately 4:30 p.m.

         {¶35} 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.

         {¶36} 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's side.

         {¶37} 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 began yelling.

         {¶38} 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 broke."

         {¶39} 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.

         {¶40} 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.

         {¶41} 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.

         {¶42} 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."

         {¶43} 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.

         {¶44} 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.

         {¶45} 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 ...

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