State v. Hawn
| Decision Date | 30 June 2000 |
| Docket Number | No. 17722.,17722. |
| Citation | 741 NE 2d 594 |
| Parties | The STATE of Ohio, Appellee, v. HAWN, Appellant. |
| Court | Ohio Court of Appeals |
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Cheryl A. Ross, Assistant Prosecuting Attorney, for appellee.
David C. Greer and Carla J. Morman, for appellant.
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Stephen James Hawn was found guilty by a jury of murder with a firearm specification. The Montgomery County Common Pleas Court sentenced Hawn,
and he has now timely appealed to this court. The following is a summary of the evidence presented at trial.
On the night of February 21, 1998, the Montgomery County Sheriffs Office received a 911 call from Stephen Hawn, who reported that his girlfriend, Sue Jack, had just committed suicide. When police arrived at the residence that Hawn and Jack had shared, they encountered Hawn in the hallway, clad only in a shirt and boxer shorts. Hawn had blood on his clothes and on his hands. Police entered the bedroom of the home and found the deceased, Jack, lying on the floor at the foot of the bed with a gunshot wound to the chest. Some of the bed clothes were on the floor and some were draped over a desk across the room from the bed. Electronic remote controls, one broken, and pieces of a broken fan, were on the floor. On the bed was a telephone off its hook. A .44 caliber Smith and Wesson revolver was found near Jack's foot.
When officers on the scene talked with Hawn, he first indicated that he had discovered Jack's body when he arrived home. He then changed his story, stating that he was in bed watching television when Jack took the gun from the nightstand and shot herself in the chest. When Hawn heard the shot go off, he jumped out of bed, ran over to Jack, and held her before calling police.
An autopsy of Jack's body revealed that the cause of her death was a gunshot wound to the chest. The autopsy did not reveal any gun powder residue on Jack's clothing or skin near the entrance wound or inside the wound track itself, which would be indicative of a close-range or contact shot. Jack's death was ruled a homicide. Based upon his test firings of the weapon and his examination of Jack's clothing, firearms expert Chris Monturo opined that the gun was more than five feet away when it was fired into Jack's chest.
The nearly two-year relationship between Jack and Hawn had been on-again, off-again, characterized by periods of dating or living together followed by periods of separation. On the day of her death, Jack had been happy and laughing, and was planning in the future to buy a condominium, have her vision corrected via laser surgery, and to support her sister's fight against breast cancer.
Hawn and Jack had dinner at the Old Hickory restaurant on North Main Street on the night of the shooting. They were there from 6:30 p.m. until 10:30 p.m., and discussed their future wedding plans during dinner. The evening was going very well and Jack and Hawn were happy and having a good time until one of Hawn's friends made a comment about Hawn's former girlfriend, Bethany.
That caused Jack's mood to darken, and she and Hawn did not speak on the twenty-five-minute drive home.
Upon arriving home, Hawn undressed, got into bed, and began watching television. The remote controls were lying on top of the bedcover. When Jack came out of the bathroom, she walked over to Hawn and slapped him, saying she never wanted to hear the name "Bethany" again. Jack then struck a small plastic fan that was sitting on the floor, knocking it across the room.
Jack next took Hawn's .44 caliber revolver from the nightstand and walked to the foot of the bed. Hawn had begun to roll over to get out of bed when a shot went off. Hawn threw the covers aside and ran over to Jack, holding her briefly before calling 911 for help. Jack died before help arrived.
At the trial, Hawn presented two firearms experts who had tested the gun. They opined that the wound to Jack's chest was the result of a contact or close range shot with the gun barrel being less than two inches away when the gun was fired.
Hawn also presented evidence demonstrating Jack's impulsivity and dramatic mood swings, particularly when she drank alcohol. Jack's blood-alcohol level was.257 at the time of this shooting. Hawn also presented evidence that Jack had previously attempted suicide in 1982 and had contemplated suicide in 1991, in the fall of 1996, and again as recently as two weeks before this shooting, and that Jack exhibited many risk factors for suicide.
From his conviction and sentence for murder with a firearm specification, Stephen Hawn has appealed to this court, asserting nine assignments of error for our consideration.
"The trial court erred in permitting evidence of prejudicial `other acts' thereby denying appellant Hawn his rights to due process of law and to a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution."
Second Assignment of Error
"The trial court erred in permitting prejudicial testimony as to the decedent's state of mind thereby denying appellant Hawn his rights to due process of law and to a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution."
Third Assignment of Error
"The trial court erred in permitting irrelevant and prejudicial testimony thereby denying appellant Hawn his right to due process of law and to a fair trial as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the Ohio Constitution."
Hawn's first, second, and third assignments of error each concern evidence of Hawn's alleged prior physical abuse of Jack and her fear of him. Hawn filed a motion in limine prior to trial seeking to exclude the evidence as hearsay. The state argued that the evidence was nevertheless admissible per Evid.R. 803(3), as evidence of Jack's state of mind. The trial court ruled that the state could introduce evidence of Jack's state of mind, but that per State v. Apanovitch (1987), 33 Ohio St.3d 19, 514 N.E.2d 394, the state was barred from introducing evidence of why Jack was possessed of that state of mind, that is, why she feared Hawn.
Again during trial, but before the state's witnesses testified, Hawn renewed his objection to testimony regarding his alleged previous altercations with Jack, particularly incidents in October 1996 and November 1997. Hawn also objected that this evidence was not admissible per Evid.R 404(B) for the purposes stated therein. Once again, the trial court held that it would permit out-of-court statements that Jack made reflecting her fear of Hawn, but would not permit testimony relating to the reasons for that fear or any specifics about previous interactions between Hawn and Jack. The testimony that these witnesses then gave is discussed below.
Gary Gilliam-Beale testified that he operates a moving business specializing in "high risk" situations, such as moves by battered women. Gilliam-Beale went on to describe how he moved Jack's possessions out of Hawn's residence on October 17, 1996, and that he considered the move to be "hot" because he expected it to be a most threatening situation. Based upon his observations of Jack during the move, Gilliam-Beale testified that she was visibly shaken, pale, and trembled occasionally. He also testified that when his movers, who were working quickly due to the tense situation, would come around a corner and surprise Jack, she would jump or scream.
Fran Kender, a friend and coworker of Jack, testified that on the evening Jack moved out of Hawn's residence, Kender went to Harrigan's Tavern with her cellular phone to keep an eye on Hawn, who was there. Kender intended to call Jack if Hawn left the bar before the move was completed.
Lisa Tames, another of Jack's coworkers, testified that on October 18, 1996, the morning after Jack moved out of Hawn's residence, Jack began crying hysterically during a conversation they were having about Hawn.
Violet Gump, one of Jack's coworkers, testified that in April 1997, she was at the Lincoln Park Grille with Jack. When Jack saw Hawn sitting at the end of the bar, she became very, very frightened, her hands were shaking, and she told Gump that she wanted to leave.
Lieutenant Jeffrey Busch of the Montgomery County Sheriffs Office testified that on November 16, 1997, he responded to a domestic violence 911 call from Jack. When he arrived at Hawn's residence, Jack was upset and crying. Lt. Busch noted that Jack's face had a red area where she had possibly been struck.
Deputy Judy Sealey from the Montgomery County Sheriffs Office testified that she was dispatched to Hawn's residence on that same domestic violence call on November 16, 1997. Dep. Sealey testified that she spent a lot of time that night with Jack, advising Jack about her situation. Dep. Sealey told Jack how to file for a temporary protection order, gave her pamphlets on domestic violence and available shelters, and a list of people to contact for help, and advised Jack to change her phone number.
Laura Jack, Jack's sister, testified that on Thanksgiving Day 1997, Jack had a black eye. On another occasion, Jack showed Laura a bald spot on her head where, she said, Hawn had pulled a clump of hair from her head. Violet Gump also testified that after November 16, 1997, Jack had a black eye and a large clump of hair pulled out of the back of her head.
Lisa Tames also testified that after November 16, 1997, Jack came to work with a black eye and a patch of hair missing from her head. On January 30, 1998, Lisa Tames was at the Lincoln Park...
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