State v. Azali
| Docket Number | 112299 |
| Decision Date | 21 December 2023 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. OMNISUN AZALI, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
1
2023-Ohio-4643
STATE OF OHIO, Plaintiff-Appellee,
v.
OMNISUN AZALI, Defendant-Appellant.
No. 112299
Court of Appeals of Ohio, Eighth District, Cuyahoga
December 21, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-660200-A
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and C. Richley Raley, Jr., and Heaven R. DiMartino, Special Assistant Prosecuting Attorneys, for appellee.
Flowers & Grube and Louis E. Grube, for appellant.
JOURNAL ENTRY AND OPINION
PER CURIAM
{¶ 1} Defendant-appellant, Omnisun Azali ("Azali"), appeals the judgment of the Cuyahoga County Court of Common Pleas, alleging: (1) that his conviction is not supported by sufficient evidence; (2) that the trial court erred by denying his
motion to dismiss; (3) that the trial court erred in finding a child-witness competent to testify; and (4) that the trial court erred by permitting the State's expert witness to testify about the "ultimate issue" in this case. For the reasons set forth below, the judgment of the trial court is affirmed.
Background
{¶ 2} On May 26, 2021, Azali shot his wife Mwaka three times with a .40 Glock pistol and killed her. Mwaka was shot in the back of her head in the "right posterior parietal/occipital area," she was shot behind her right ear, and she was shot in the right cheek. State's Ex. 25. One of the shots to the back of Mwaka's head was fired from between six inches and two feet away. The shot to Mwaka's right cheek was a "contact" wound with a muzzle impression and soot at the entrance, meaning the barrel of the gun was "up against the skin" at the time the firearm was discharged. Tr. at 1197.
{¶ 3} Azali claimed that he killed his wife in self-defense. He claimed that during an argument in the couple's "family room," Mwaka picked up a nearby .380 firearm and they fought over it. Azali claimed that Mwaka fired three bullets while the two struggled over the firearm. He claimed that he eventually wrestled the .380 away from her and he heard the firearm hit the ground. Azali claimed that he backed away to grab the .380, but he could not immediately find it. Azali claimed that when he saw Mwaka on the couch reaching for something and raising her arm toward him, he pulled the .40 Glock firearm he was carrying in his waistband, moved behind
Mwaka on the couch, shouted at her to stop, and then shot her three times, closing the distance between them as he was taught in the military.
{¶ 4} After he killed Mwaka, Azali drove his two children to his mother's residence, calling his mother on the way.[1] Azali's mother met him and the children at her residence and they spoke for less than nine minutes. Afterward, Azali's mother drove him back toward Azali's Euclid residence where the shooting occurred. Approximately halfway to the residence, Azali's mother called 911 on speaker phone, stating that there may have been someone in Azali's home who had been shot, though she was not sure. Azali's mother indicated that Mwaka and Azali were both shooting at each other and Azali may have shot Mwaka. Law enforcement officers responded to the Euclid home and ultimately arrested Azali.
{¶ 5} As a result of the May 26, 2021 homicide, Azali was indicted for Aggravated Murder in violation of R.C. 2903.01(A), an unclassified felony (Count 1), Murder in violation of R.C. 2903.02(A), an unclassified felony (Count 2), Murder in violation of R.C. 2903.02(B), an unclassified felony (Count 3), Felonious Assault in violation of R.C. 2903.11(A)(1), a second degree felony (Count 4), Felonious Assault in violation of R.C. 2903.11(A)(2), a second degree felony (Count 5), Domestic Violence in violation of R.C. 2919.25(A), a first degree misdemeanor (Count 6), Endangering Children in violation of R.C. 2919.22(A), a first degree misdemeanor (Count 7), and Endangering Children in violation of RC. 2919.22(A), a first degree
misdemeanor (Count 8).[2] Three-year firearm specifications pursuant to R.C. 2941.145(A) were attached to Counts 1-5 of the indictment. Azali pled not guilty to the charges and, in addition, filed a "notice of self-defense" pursuant to Crim.R. 12.2 indicating that he intended to offer evidence supporting a claim of self-defense.
{¶ 6} A jury trial was held on the charges against Azali from November 28, 2022 to December 7, 2022. The State presented the testimony of numerous witnesses, including Azali's two children. Azali presented expert testimony and also testified on his own behalf. The state then presented an expert witness in rebuttal, closing the evidence. Prior to the case being submitted to the jury, the trial court granted Crim.R. 29 motions for acquittal on the Endangering Children charges (Counts 7 and 8). Of the remaining charges, Azali was acquitted of Aggravated Murder (Count 1), and he was convicted of all the remaining charges (Counts 2-6).
{¶ 7} On December 14, 2022, a sentencing hearing was held. The trial court determined that Counts 2-6 merged for purposes of sentencing, and the State elected to proceed to sentencing on Count 2, Murder, with the firearm specifications on Counts 2 and 3 being imposed in accordance with State v. Bollar, 171 Ohio St.3d 678, 2022-Ohio-4370, 220 N.E.3d 690. Azali was then sentenced to serve an aggregate prison term of 21 years to life. A judgment entry memorializing his sentence was filed December 16, 2022. It is from this judgment that he appeals, asserting the following four assignments of error for our review:
First Assignment of Error
The trial court erred by denying defendant Omnisun Azali's Crim.R. 29(A) motion for judgment of acquittal on all charges.
Second Assignment of Error
The trial court erred by denying defendant Omnisun Azali's pretrial motion to dismiss, which was the only adequate remedy for the State's Brady violation.
Third Assignment of Error
The trial court committed error and plain error by qualifying V.A. as competent and permitting his testimony.
Fourth Assignment of Error
The trial court erred by permitting the State's expert witness, Kevin R. Davis, to offer an opinion on the ultimate issue of the reasonableness of specific instances of deadly force.
For ease of discussion, we elect to address the assignments of error out of the order in which they were raised.
Third Assignment of Error
{¶ 8} In his third assignment of error, Azali argues that the trial court erred by finding that his son, V., was competent to testify as a witness in this case.
Standard Of Review
{¶ 9} Generally, a trial court's competency determination is reviewed on appeal under an abuse of discretion standard. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 100, citing State v. Frazier, 61 Ohio St.3d 247, 574 N.E.2d 483 (1991). An abuse of discretion constitutes conduct that is unreasonable,
arbitrary, or unconscionable. State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d 474, ¶ 12.
{¶ 10} However, the parties both indicate that Azali failed to specifically object to V.'s competency to testify; thus, we must review this argument under the plain error standard pursuant to Crim.R. 52(B). Plain error requires an error or "deviation" from a legal rule that is an obvious defect in the trial proceedings and it must have affected a defendant's substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). For plain error to have affected substantial rights, "the trial court's error must have affected the outcome of the trial." Id. Importantly, notice of plain error is to be taken with the utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).
Legal Standard
{¶ 11} Evidence Rule 601 states that "[e]very person is competent to be a witness except as otherwise provided in these rules." Although prior versions of the rule contained a provision expressly dealing with children under ten years old, the current rule does not. State v. Haywood, 7th Dist. Columbiana No. 21 CO 0035, 2023-Ohio-1121, ¶ 21.
{¶ 12} Nevertheless, R.C. 2317.01 states: "All persons are competent witnesses except those of unsound mind and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." Because of this, the
Supreme Court of Ohio has held that a "trial court must conduct a voir dire examination of a child under ten years of age to determine the child's competence to testify." State v. Maxwell, supra, at ¶ 100.
{¶ 13} In making its competency determination, the Supreme Court of Ohio has directed trial courts to consider the following factors: (1) the child's ability to receive accurate impressions of fact or to observe acts about which he or she will testify; (2) the child's ability to recollect those impressions or observations; (3) the child's ability to communicate what was observed; (4) the child's understanding of truth and falsity; and (5) the child's appreciation of his or her responsibility to be truthful. Id., citing State v. Frazier, supra, at 251. Importantly, the competency review refers to the time of trial rather than the time of the crime or the subject matter of the testimony. State v. Clark, 71 Ohio St.3d 466, 470-71, 644 N.E.2d 331 (1994).
Legal Analysis
{¶ 14} Azali and Mwaka had two children together who lived with them in their Euclid home: a daughter, S., who was nine years old at the time of trial, and a son, V., who was one month shy of his ninth birthday at the time of trial. Both children were at home during the May 26, 2021, shooting, and they were initially interviewed regarding the incident on June 3, 2021.
{¶ 15} At trial, the state sought to present the testimony of both children. Azali's assignment of error challenges the trial court's...
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