State v. Hammad ( 2014 )

[Cite as State v. Hammad, 2014-Ohio-3638.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 26057
v. : T.C. NO. 13CR1625
MAJDI HAMMAD : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 22nd day of August , 2014.
..........
MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ELIZABETH C. SCOTT, Atty. Reg. No. 0076045, 120 W. Second Street, Suite 603,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} Defendant-appellant Majdi Hammad appeals his conviction and sentence for
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one count of felonious assault (deadly weapon), in violation of R.C. 2903.11(A)(2), a felony
of the second degree. Hammad filed a timely notice of appeal with this Court on January
17, 2014.
{¶ 2} The incident which forms the basis for the instant appeal occurred on May
30, 2013, when Abbel Rents was scheduled to erect an outdoor tent for a wedding at 1231
Hooks Estate Drive (hereinafter “Hooks Estate”) located in Dayton, Ohio. Hammad, who
was employed by Abbel, traveled to Hooks Estate with the owner, Carolyn Martin, and
several other employees. En route to Hooks Estate, Carolyn1 noticed that Hammad seemed
irritable. Carolyn testified that she asked Hammad what was wrong, but he did not answer.
{¶ 3} Upon arriving at Hooks Estate late in the afternoon on May 30, 2013, the
employees began unloading the tent in order to set it up. Carolyn’s husband, Ben Martin,
was already at the site when she arrived with the employees. Ben had arrived at the site at
approximately 3:30 p.m. As the crew began erecting the tent, Carolyn observed that
Hammad was not helping and kept walking back to one of the Abbel trucks to get water.
When Carolyn approached Hammad and told him that he needed to get to work, he ignored
her. Carolyn testified that she did not use any obscene language or racial slurs when she
asked him to start working. Carolyn informed Ben that Hammad was not working and that
he was ignoring her. Ben asked Hammad if he had heard what Carolyn said. At that point
Hammad became very angry. Hammad threw the water he had been drinking at Ben and
took off his Abbel uniform shirt and dropped it on the ground. Hammad also began cursing
at Carolyn and calling her obscene names. Carolyn ordered Hammad to leave the site.
1
We utilize first names when necessary for clarity.
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Ultimately, Carolyn called 9-1-1 at approximately 7:00 p.m. Officer Jordan Alexander from
the Dayton Police Department arrived shortly thereafter and escorted Hammad away from
Hooks Estate. Officer Alexander did not arrest Hammad at that time, but rather dropped
him off at a nearby intersection where he said someone was coming to get him. After
Hammad left with the police, Carolyn, Ben, and the remaining Abbel employees went back
to work.
{¶ 4} Approximately two hours later, Hammad returned to Hooks Estate and
immediately began behaving in a very belligerent manner. Almost immediately upon
returning, Hammad began shouting obscenities at Carolyn and Ben. Carolyn testified that
Hammad picked up a folding chair and began swinging it at her head. Before she could be
hit with the chair, Carolyn testified that she ran away. Hammad then dropped the chair on
the ground and picked up a ten to twelve pound sledgehammer that was being used to pound
large tent stakes into the ground. Carloyn testified that at this point, Hammad swung the
sledgehammer over his shoulder and announced his intention to use the sledgehammer to
knock the entire tent down. Hammad then walked over to the tent stakes and began striking
them with the sledgehammer, stating that he was going to take the whole tent down.
Carolyn testified that she yelled at him to stop damaging the tent. Hammad stopped hitting
the tent stakes and turned his attention to Carolyn. As he walked toward Carolyn, she
testified that Hammad told her, “I’m going to kill you, white b****.” When Hammad was
approximately six to seven feet away from Carolyn, the other Abbel employees managed to
get between them and form a wall to protect her. Eventually, some of the Abbel employees
were also able to persuade Hammad to stop his pursuit of Carolyn.
[Cite as State v. Hammad, 2014-Ohio-3638.]
{¶ 5} Carolyn called 9-1-1 again. While she was speaking with the 9-1-1
operator, Hammad apparently dropped the sledgehammer, walked over to an Abbel van, and
kicked it. At approximately 9:20 p.m., Officer Philip Adams arrived at Hooks Estate to
investigate the second 9-1-1 call. Officer Adams testified that he observed that Hammad
was very agitated and yelling obscenities. After Carolyn spoke to Officer Adams, he
arrested Hammad, handcuffed him, and placed him in his cruiser. Hammad was still very
agitated and continued to call Carolyn obscene names. While being transported to the jail,
Hammad called Officer Adams names, using racial slurs. We note that the testimony
adduced at trial, with the exception of Hammad’s, established that neither Carolyn nor Ben
used obscene language or cursed during the confrontation at Hooks Estate.
{¶ 6} Hammad was indicted on June 26, 2013, for two counts of felonious assault
with a deadly weapon. Count I of the indictment referred to the felonious assault against
Carolyn Martin, while the second count referred to Ben Martin. The case was tried to a jury
in early November of 2013. The jury found Hammad not guilty on Count II, but the jury
could not reach a verdict on Count I. On December 16, 2013, a second jury trial was held.
On December 18, 2013, the jury returned a verdict finding Hammad guilty of felonious
assault with a deadly weapon. At the sentencing hearing on December 20, 2013, the trial
court sentenced Hammad to prison for two years.
{¶ 7} It is from this judgment that Hammad now appeals.
{¶ 8} Because they are interrelated, Hammad’s first and second assignments of
error will be discussed together as follows:
{¶ 9} “MR. HAMMAD’S CONVICTION IS AGAINST THE WEIGHT OF THE
EVIDENCE.”
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{¶ 10} “THE EVIDENCE PRESENTED BY THE STATE WAS INSUFFICIENT
TO CONVICT MR. HAMMAD.”
{¶ 11} In his first assignment, Hammad contends that his conviction for felonious
assault with a deadly weapon is against the manifest weight of the evidence. In his second
assignment, Hammad argues that the evidence adduced by the State was insufficient to find
him guilty of the charged offense.
{¶ 12} “A challenge to the sufficiency of the evidence differs from a challenge to
the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101,112,
2005-Ohio-6046, 837 N.E.2d 315. “In reviewing a claim of insufficient evidence, ‘[t]he
relevant inquiry is whether, after reviewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’ (Internal citations omitted). A claim that a jury
verdict is against the manifest weight of the evidence involves a different test. ‘The court,
reviewing the entire record, weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. The discretionary power to grant a new trial
should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction.’” Id.{¶ 13} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227
N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the
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witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a
judgment is against the manifest weight of the evidence requires that substantial deference
be extended to the factfinder’s determinations of credibility. The decision whether, and to
what extent, to credit the testimony of particular witnesses is within the peculiar competence
of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist.
Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{¶ 14} This court will not substitute its judgment for that of the trier of facts on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510 (Oct. 24, 1997).
{¶ 15} Hammad was convicted of felonious assault with a deadly weapon in
violation of R.C. 2903.11(A)(2), which states that “[n]o person shall knowingly *** cause or
attempt to cause physical harm to another *** by means of a deadly weapon or dangerous
ordnance.”
{¶ 16} With the foregoing standards in mind, we conclude that the evidence
adduced at trial established all of the elements necessary to sustain Hammad’s conviction for
felonious assault with a deadly weapon. Carolyn testified that after Hammad returned to
Hooks Estate after being escorted away by Officer Alexander, he picked up a sledgehammer
and began striking the tent stakes, with the stated intent of bringing the tent down. Carolyn
further testified that she yelled at him to stop damaging the tent. Hammad stopped hitting
the tent stakes and turned his attention to Carolyn. As he walked toward Carolyn, she
testified that Hammad told her, “I’m going to kill you, white b****.” Based on Hammad’s
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actions, Carolyn testified that she believed he intended to seriously harm her. Ben testified
that if Carolyn had not been able to evade Hammad while he was wielding the
sledgehammer, he would have killed her. When Hammad was approximately six to seven
feet away from Carolyn, the other Abbel employees managed to get between them and form
a wall to protect her.
{¶ 17} Although the determination of whether a substantial step has been taken
toward the commission of felonious assault is a factual one, it is not dependent on the
subjective impressions of the victim. State v. Abdoulaye, 2d Dist. Montgomery No. 20050,
2004-Ohio-5825, ¶ 15. Furthermore, we note that a criminal attempt is a purposeful act or
omission which constitutes a substantial step in a course of conduct planned to culminate in
his commission of the crime. Id. at ¶ 13, citing State v. Woods, 48 Ohio St.2d 127, 357
N.E.2d 1059 (1976). “To constitute a substantial step, the conduct must be strongly
corroborative of the actor’s criminal purpose.” Id. In State v. Brooks, 44 Ohio St.3d 185,
542 N.E.2d 636 (1989), the Ohio Supreme Court concluded that drawing a firearm and
threatening to kill constituted an attempt. In that case, the victim and the defendant had
become embroiled in an argument at a bar. The defendant “suddenly drew a revolver and
angrily told [the victim] that he would kill her.” The court held that, under those
circumstances, a reasonable jury could have “concluded that the defendant’s actions were
‘strongly corroborative’ of his intent to cause physical harm to [the victim] by means of his
deadly weapon.” Id. at 192.
{¶ 18} In the instant case, Hammad’s conduct consisting of carrying a
sledgehammer over his shoulder as if preparing to swing it, walking toward Carolyn in an
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aggressive manner, and stating, “I’m going to kill you, white b****,” was “strongly
corroborative” of his intent to cause physical harm to the victim by means of his deadly
weapon. Thus, a review of the record convinces us that the State’s evidence, taken in its
entirety, was sufficient to sustain Hammad’s conviction for felonious assault with a deadly
weapon.
{¶ 19} Moreover, having reviewed the record, we find no merit in Hammad’s
manifest-weight challenge. It is well settled that evaluating witness credibility is primarily
for the trier of fact. State v. Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7.
A trier of fact does not lose its way and create a manifest miscarriage of justice if its
resolution of conflicting testimony is reasonable. Id. Here the jury quite reasonably could
have credited Carolyn and Ben’s testimony that Hammad intended to strike her with the
sledgehammer. Accordingly, the jury did not lose its way and create a manifest miscarriage
of justice in reaching a guilty verdict.
{¶ 20} Hammad’s first and second assignments of error are overruled.
{¶ 21} Hammad’s third and final assignment of error is as follows:
{¶ 22} “MR. HAMMAD’S COUNSEL WAS INEFFECTIVE.”
{¶ 23} In his final assignment of error, Hammad argues that his trial counsel was
ineffective for failing to meaningfully address any prejudice or biases the jury might have
related to his middle-eastern heritage.
{¶ 24} “We review the alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley
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(1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a
strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an
objective standard of reasonableness and that his errors were serious enough to create a
reasonable probability that, but for the errors, the result of the trial would have been
different. Id. Hindsight is not permitted to distort the assessment of what was reasonable
in light of counsel’s perspective at the time, and a debatable decision concerning trial
strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal
citation omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31.
{¶ 25} In State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828,
the Supreme Court of Ohio addressed claims of ineffective assistance of counsel during voir
dire. The Court stated that “trial counsel is entitled to exercise broad discretion in
formulating voir dire questions.” Id. at ¶ 84. Furthermore, the Supreme Court wrote, at
¶ 63-64:
We have consistently declined to “second-guess trial strategy
decisions” or impose “hindsight views about how current counsel might have
voir dired the jury differently.”
“Few decisions at trial are as subjective or prone to individual
attorney strategy as juror voir dire, where decisions are often made on the
basis of intangible factors.” “The selection of a jury is inevitably a call upon
experience and intuition. The trial lawyer must draw upon his own insights
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and empathetic abilities. Written records give us only shadows for
measuring the quality of such efforts. * * * [T]he selection process is more an
art than a science, and more about people than about rules.” For these
reasons, we have recognized that “counsel is in the best position to determine
whether any potential juror should be questioned and to what extent.”
(Citations omitted.)
{¶ 26} Contrary to the assertions made by Hammad, a cursory review of the record
establishes that his trial counsel directly addressed the issue of any potential bias regarding
his middle eastern ethnicity during voir dire. Specifically, defense counsel made the
following statements regarding his client’s middle eastern heritage during voir dire:
Now, Mr. Hammad is from the Middle East. Because of that there’s
– there’s been some things in the news, probably the past ten, fifteen years
about individuals from the Middle East. Now, just because he’s from the
Middle East, does anybody here necessarily think that Mr. Hammad would be
predisposed to violence?
Predisposed to activities that may cause someone to have injury?
We’ll move in further. Imagine we’re going to the airport. Okay?
We’re taking a group trip. Miami, Florida.
Get on the airplane, see four Middle Eastern men get on the airplane
before us. How many of you would have concerns about seeing that
particular situation? Nobody? Nobody would be concerned about that?
Does anyone think that because Mr. Hammad is from the Middle East,
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that may be synonymous with a terrorist or the Taliban.
Or any organization that – that may have its roots and funding and causing problems
and causing injury?
***
Now, if you thought that Mr. Hammad might have some tendencies
toward violence just because of his background, that doesn’t make you a bad
person neither [sic]. Not at all. It just – maybe this is not the trial for you.
Maybe you have experiences; maybe you’ve had things you’ve gone through
that – that make you think, well, maybe that – that, you know, I kind of
connect those two.
I don’t know if any one of you would have been in New York City
during 9-11. If in fact that’s the circumstance and you told me you had a
problem, I’m like, well, yeah. I imagine I bet you do, but that’s not part of
this group’s experiences.
The State: Jay. Jay, you’ve got a hand.
Defense Counsel: Oh. I’m sorry. I’m sorry. I can get this.
[Prospective Juror #11]?
Prospective Juror #11: Yeah.
Q: Thank you.
A: I was part of 9-11. I was in the fourth grade, though.
Q: Oh. Wow.
A: So, that is a different impact versus me being twenty-two now.
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Q: Yes.
A: I do not associate that with him at all. I do not. I associate that
with being a racial situation as far as I’m being. Also, I’m black. I would
never want somebody to think just because somebody did that that I would.
So, I don’t associate that with him at all. But, yes. I was involved in that.
Q: Did you live in New York?
A: Yes. I’m from the Bronx.
Q: Oh. From the Bronx.
A: Uh-huh.
***
Q: Any of your family members involved in 9-11?
A: Yes. My uncle was. Police officer for NYPD. Yes.
Q: Okay.
A: And that entire week, he was gone.
Q: Okay.
A: And came home with debris everywhere. I heard of that.
Q: Oh. And you were in the fourth grade?
A: Yes.
Q: Well, interesting perspective.
{¶ 27} It is clear from the above exchange that trial counsel thoroughly discussed
the issue of racial prejudice regarding Hammad’s middle eastern heritage with the potential
jury. Only Prospective Juror #11 raised her hand. In fact, the gist of Prospective Juror
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#11's responses illustrate as a minority herself she would not be biased upon race or
ethnicity. Therefore, Hammad has failed to establish that his trial counsel was ineffective
based on his performance during voir dire. Accordingly, there is no basis on which to find
that trial counsel’s representation fell below an objective standard of reasonableness.
{¶ 28} Hammad’s third and final assignment of error is overruled.
{¶ 29} All of Hammad’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
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FROELICH, P.J. and HALL, J., concur.
Copies mailed to:
Michele D. Phipps
Elizabeth C. Scott
Hon. Mary Katherine Huffman