Nasser Hamad appeal cites judge’s errors
WARREN — A motion filed by Nasser Hamad’s attorneys this week claimed the jurors in the Howland man’s capital murder trial last fall should have been given instruction on two lesser charges of voluntary manslaughter.
“Even the trial court acknowledged that the facts at trial clearly supported conviction for voluntary manslaughter,” states the filing in 11th District Court of Appeals by defense attorney Samuel Shamansky.
Hamad, 49, of state Route 46, is serving a 36-years-to-life prison term in Pickaway Correctional Institution for his part in the Feb. 25, 2017, shootings on his property that killed two people and wounded three others.
Now Hamad’s attorneys are attempting to get their client’s conviction and sentence overturned in the appeals process.
Jurors on Oct. 31, 2017 found Hamad guilty of eight felony counts, all with firearm specifications, including two counts of aggravated murder and six counts of attempted aggravated murder. Trumbull County Common Pleas Court Judge Ronald Rice, after the jurors voted not to recommend the death penalty, imposed the sentence Nov. 9.
During the sentencing hearing, Rice told the defendant, “There is no question that the five gunshot victims came onto your property with the specific criminal intent to put as they said, ‘a beat down on you’ … When the fight had clearly ended, Mr. Hamad, you got your gun and you shot five people in a fit of rage because you were assaulted.”
Hamad’s attorneys, in their filing this week, claimed Rice erred by not allowing a defense motion during trial that would have given the jury a choice to deliberate on the manslaughter charges.
The defense filing also cited three other court errors at trial, including questioning Rice not allowing an expert witness who would have supported Hamad’s self-defense claim.
On Feb. 25, 2017, five people in a van came onto Hamad’s Route 46 property after some of the van’s occupants and the defendant had traded online insults and threats. According to police reports and trial testimony, the van occupants had confronted Hamad, which turned into a fight. The reports stated Hamad, after initially throwing one of the assailants down, had been taken down by the others. When he got free, reports state Hamad went into his home, got a gun and started firing at the five who were either in the van or just outside it.
When he ran out of ammunition, reports show Hamad returned to the home, reloaded his gun and came back out firing more bullets into the van, reports stated.
Killed were Joshua Haber, 19, and Josh Williams, 20. Three were wounded, John Shively, then 17, his mother April Trent Vokes, then 42, and Bryce Hendrickson, 19, who has since died in an unrelated incident.
Dr. James Reardon, who testified for the defense in the mitigation phase of the trial, claimed Hamad was anxious and hypervigilant prior to the day of the shooting. He also testified he believed the initial fight was an “activating event” that triggered a Post Traumatic Stress Disorder reaction in Hamad.
The filing states Reardon had found that Hamad’s scale scores were “greater than the cutoff for the dissociative subtype of PTSD.”
“(The judge’s) prohibition of Dr. Reardon’s testimony in this case was an abuse of discretion and a violation of his constitutional right to present a complete defense, requiring reversal,” the motion states.
The filing also claimed the judge erred by not declaring a mistrial because a prosecutor “engaged in such clearly improper conduct during the cross-examination of witness Tracy Hendrickson,” who was Hamad’s girlfriend.
Hendrickson testified that she hid behind the fireplace at the home during the incident, which triggered the prosecuting attorney to question the validity of that statement, accusing the witness of colluding with the defense to make up that story.
The defense filing also questioned whether the weight of evidence presented supported aggravated murder and attempted murder convictions.
Trumbull County Assistant Prosecutor Ashley Musick said prosecutors have 20 days to prepare a written response to the defense claims and submit it to the appellate court.
Since March, Hamad has been receiving treatment at a cancer center in Columbus. He was diagnosed in January with kidney cancer that spread to his lungs. Earlier, Rice had denied releasing Hamad on parole for these medical reasons.
The court record shows Hamad last month hired Shamansky’s firm to represent him in the appeals court.