Tuesday, July 16, 2019

Law professor, defense attorney discuss whether Castle Doctrine might help defendant in deadly shooting

Law professor, lawyer debate Castle Doctrine
Published: 3/5/17 @ 12:05

By Ed Runyan



After a deadly shooting outside a home in Howland, questions have been raised as to whether the homeowner charged with killing two young men and injuring three other people could justify his actions by claiming self-defense.

The homeowner, Nasser Hamad, 47, is charged with two counts of aggravated murder and several counts of attempted aggravated murder and could get the death penalty if convicted. He’s accused of shooting the five Feb. 25 after they came to his house on state Route 46 because of earlier conflicts.

Hamad and Atty. Roger Bauer argued during hearings last week that Hamad acted in self-defense.

“My client was at his house, he was attacked by five people, he protected himself,” Bauer said. “My client, they broke his arm, they beat him, they knocked him on the ground.”

Police and prosecutors, however, have said Hamad wasn’t justified in using deadly force against the five, two of whom argued with Hamad in taunting Facebook messages earlier in the day.

A document filed in Trumbull County Common Pleas Court says Hamad came out of the house when the five arrived in a van. It says John Shively, 17, and Hamad had a fist fight. After that, the five went back to the van.

It says Hamad went in his house, got a gun, walked back outside and fired about 10 shots at the five people.

When the bullets ran out, Hamad went back into the house, got another ammunition clip, went back to the van and fired more shots. Prosecutors said no guns were “presented or used” during the earlier fist fight.

Killed at the scene was Joshua Haber, 19. Josh Williams, 20, of Woodbine Avenue, died later at a hospital. Bryce Hendrickson, 20, and Shively survived, along with April Trent-Vokes, 42, who police say drove the four men to Hamad’s home. Hendrickson and Trent-Vokes suffered serious injuries but are improving.

Atty. J. Dean Carro, emeritus professor of law at the University of Akron, and David Betras, a local attorney, say the Castle Doctrine in Ohio law is likely to play a role in Hamad’s defense. The doctrine became law in 2008.

Under that law, if someone unlawfully enters or attempts to enter an occupied home or occupied car, citizens may act in self-defense, and will not be second-guessed by the state, according to the Buckeye Firearms Association.

Although Carro says he doesn’t think the Castle Doctrine will help Hamad, Betras says he thinks it could.

Carro says the Castle Doctrine, created by the state Legislature, offers a “presumption of self-defense” for anyone who shoots a person who has attacked someone in his or her home.

Because the Hamad fight occurred in his front yard, Carro said he does not believe the Castle Doctrine provides Hamad with any protection. The front yard is considered a public place, not a part of the home, Carro said.

“Residence is a dwelling in which a person resides either temporarily or permanently or is visiting as a guest,” Carro said. The front yard is what is called curtilage, “the area immediately surrounding your home to which you put to a domestic use,” he said.

“If you’re on your porch, that’s included, but once you’re off the porch, you’re in the public domain as it relates to self-defense,” Carro said.

Hamad has a slab of cement in front of his front door in the general area of where the fight is said to have occurred. It has no roof over it.

If it is determined the Castle Doctrine doesn’t apply in this case, Hamad will have to rely on the common-law defense in Ohio, Carro said.

Under common law, a person “attacked in the street” or other public place has a “duty to retreat if [he or she] can do so safely,” Carro said.

According to the Buckeye Firearms Association, “the duty to retreat means that a person who is under an imminent threat of death or serious bodily injury must retreat from the threat as much as possible before responding with force in self-defense.”

In Hamad’s case, if the fight were in a public place, the burden of proof would be with Hamad to “establish that he had a bona fide belief ... that he was subject to imminent serious bodily injury or death,” Carro said.

If he did, he would have the right to use deadly force.

Betras said the fact Hamad’s arm was apparently broken indicates serious bodily harm had already been done to him.

“They’ve already inflicted bodily harm on him, so you don’t have to sit there and wait until they inflict other harm on you,” Betras said of the time period after the fight. “At that point, you are allowed to defend yourself and your property.”

Carro said he believes by Hamad’s going inside the house to get a gun, he no longer was subject to imminent serious bodily injury or death.

Hamad was indicted under a law that says Hamad acted against the victims with “prior calculation and design.”

Carro added, “The fact that he went back into the house, in the state’s view, gives him an opportunity to think about what he’s going to do and to do it.”

A likely defense for Hamad is one of voluntary manslaughter, which would eliminate the element of killing with prior calculation and design, Carro said.

“The defense will say [Hamad] was under the heat of passion brought on by [his attacker or attackers] and didn’t have the type of mind capable of forming a scheme and executing a scheme,” Carro said.

Betras said he believes the Castle Doctrine may still apply in the Hamad case because it’s unclear whether curtilage, such as the front yard, will be construed as a part of the home for self-defense purposes.

“That’s where you’re getting into the meat of this case,” Betras said. “Does curtilage mean the driveway? Does it mean 15 feet from your house? That’s something that will be ferreted out in the facts.”

Curtilage is most often associated with Fourth Amendment issues, such as searches of a person’s home and property, but it also might come into play in relation to the Castle Doctrine, Betras said.

“The Castle Doctrine says you are allowed to stand your ground ... meaning you don’t have to retreat into your house,” Betras said.

“Stand your ground means just that: You can stand your ground. You don’t have to retreat, you can use deadly force, you can do whatever,” he said.

“And if he went in the house and came out, he still has a right to defend himself because who knows? They could have gotten back out of the car and beat him up more,” Betras said.

Police have not described the specifics of the fist-fight aftermath, such as how much time elapsed between Hamad’s going into the house and coming back out and firing.

But Betras said it appears the five did not leave immediately.

“They brought the fight to” Hamad, Betras said. “He didn’t take the fight to them. They came to his house. They beat him up on his yard. And then he goes in the house, and they don’t leave. So then he comes back out. I don’t think the law is going to mandate that he has to go in his house and stay there and bolt the door. He’s got a great defense from everything I’ve been able to see.”

Betras added if the Castle Doctrine applies, it won’t matter that Hamad had time to think things over as he went into the house to get the gun. “If the Castle Doctrine applies, then the fact that [Hamad went] into the house and comes back out is immaterial.”

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