State v. Henderson, 16 MA 0057

• Decision Date: 30 November 2018
• Docket Number: No. 16 MA 0057,16 MA 0057
• Parties: STATE of Ohio, Plaintiff-Appellee, v. Hakeem HENDERSON, Defendant-Appellant.
• Court: Ohio Court of Appeals

125 N.E.3d 235

2018 Ohio 5124

STATE of Ohio, Plaintiff-Appellee,

v.Hakeem HENDERSON, Defendant-Appellant.

No. 16 MA 0057

Court of Appeals of Ohio, Seventh District, Mahoning County.

Dated: November 30, 2018

Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and

Atty. Rhys B. Cartwright-Jones, 42 N. Phelps St., Youngstown, OH 44503 for Defendant-Appellant.

BEFORE: Carol Ann Robb, Gene Donofrio, Kathleen Bartlett, Judges.

OPINION AND JUDGMENT ENTRY

Robb, P.J. {¶1} Defendant-Appellant Hakeem Henderson appeals after being convicted in the Mahoning County Common Pleas Court for engaging in a pattern of corrupt activity and two counts of aggravated murder. He raises issues with: the use of testimonial hearsay under the forfeiture by wrongdoing exception; the refusal to sever his trial from his co-defendant's trial; the sufficiency of the evidence supporting complicity to aggravated murder; speedy trial time; and cumulative error. For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶2} On April 11, 2013, Appellant was indicted for the aggravated murders of Adam Christian and R'Amel Hayes, which occurred days apart in November 2011. Both counts carried firearm specifications. Appellant's brother, Michael Austin Jr., was jointly indicted on these offenses (and charged with attempted murder and felonious assault in the shooting of another victim). Dewaylyn Colvin was also jointly indicted in the Christian and Hayes murders, but the court eventually severed his case. A superseding indictment was filed on May 16, 2013, adding aggravated murder charges against Austin and Colvin for the deaths of Ryan Slade and Keara McCullough, which occurred in September 2012. A second superseding indictment was filed on May 21, 2015, adding Appellant as a defendant for the Slade and McCullough murders, charging Appellant with possession and trafficking of heroin, and charging him with engaging in a pattern of corrupt activity (a first-degree felony with an enhanced sentence where one of the activities was aggravated murder or other listed offenses). This indictment added as defendants Vincent Moorer, Melvin Johnson Jr., and Nahdia Baker; the court thereafter severed these defendants from the case against Appellant and Austin.

{¶3} The jury trial against Appellant and Austin commenced on April 25, 2016. There was testimony outlining the structure of a drug distribution organization run by Colvin and Moorer, including testimony by former members of the organization. (Tr. 441, 456, 1165-1170, 1182-184, 1195, 1296). Appellant, Austin, and Hayes were described as enforcers, hitters, or shooters. (Tr. 466, 793-795, 803, 807-809, 1202, 1301-1302, 1311-1314, 1331). A participant close to Moorer testified the organization made a "couple hundred thousand" dollars a month. (Tr. 1297). He explained Appellant's role was often the driver as Appellant had a license and insurance, noting a police officer would be more likely to search a vehicle during a traffic stop if the driver was unlicensed and uninsured. (Tr. 1313-1314).

{¶4} A female resident of a housing project on the east side of Youngstown known as "Victory Estates" testified Adam Christian was visiting her apartment on November 12, 2011. They consumed pills and marijuana. (Tr. 592). Her cousin, R'Amel Hayes, called her multiple times to inquire who was at her apartment. (Tr. 563). Hayes later arrived at the apartment and spoke to Christian about helping Hayes get his gun unjammed. (Tr. 569-570).

Around this time, Christian exited the back door and went outside to vomit, followed by Hayes. (Tr. 571). The female resident heard gunshots. When she went to her back door, Hayes was outside holding the door so she could not exit, and she argued with him. (Tr. 576, 597). Upon looking out her window, she saw Christian lying on the ground. After Hayes released her door, she went outside where she saw Christian bleeding. Hayes left, and she asked the dying victim whether Hayes did this to him. She testified Christian shook his head to answer in the negative, she asked who did shoot him, and he answered, "Mike," at which point he spit out blood and did not speak again. (Tr. 580, 599).

{¶5} This witness was thereafter heard yelling that Mike Austin was the shooter as others arrived to assist the victim; this was heard over a 911 call as well. (Tr. 641). A bystander who heard her yelling testified she noticed Austin at the housing project earlier in the day with two others; all three were wearing all black and hoodies on a warm day. (Tr. 626-627). Later that night, this bystander saw Austin and another person outside of the targeted apartment; she believed Austin was armed due to a bulge she spotted in his jacket. (Tr. 636).

{¶6} Just prior to the shooting, Christian's aunt arrived at the housing project and called 911 because she saw two young men walking on the street with guns, wearing all black with hoodies. (Tr. 520-521). After a police car circled and left, she called again to report she then saw them stand by an apartment before splitting up, with one going to the front and one going to the back. (Tr. 524-525). She thereafter heard gunshots. Christian died before the police arrived. Four bullets were recovered from his body. The shot to his face occurred from a very close range. (Tr. 1447).

{¶7} Days after this homicide, the body of R'Amel Hayes was found at an intersection on the east side of Youngstown. (Tr. 732, 753). He had been shot 18 times. (Tr. 1483). An inmate testified Austin started talking to him in jail after learning of the inmate's paralegal background. This inmate said Austin admitted he committed the Christian murder, explaining Appellant drove and Hayes went in to lure the victim outside. (Tr. 794-795). Austin expressed he had to kill Hayes because it appeared Hayes was talking too much about the Christian murder. (Tr. 803-805). According to the inmate, Austin said Appellant drove with Colvin in the front seat and Austin in the backseat next to Hayes; Austin then shot Hayes and kicked his body out of the vehicle. (Tr. 804-805).

{¶8} During trial, a key state's witness refused to appear to testify. A hearing was held to determine whether the statements of this organization member who sold drugs for the organization could be used at trial under the forfeiture by wrongdoing exception to the hearsay exclusion and to the confrontation clause. The court overruled objections by the defense, allowing the admission of a video of the witness's February 26, 2013 statement to police and the testimony of a detective about his transcribed follow-up interview with this witness on February 4, 2015.

{¶9} Regarding the Christian murder, this witness said he was at his house with his brother when Appellant arrived with Colvin, Austin, and Hayes. They asked for masks as they were going to Victory Estates to "take care of" whatever Christian they could find as they heard a member of the Christian family was planning to rob Colvin. (DVD Tr. 10); (Tr. 1122-1123). He said Appellant, Austin, and Hayes all made statements in agreement with the plan voiced by Colvin. (Tr. 1123-1126). This witness testified the group left with Appellant driving. (DVD Tr. 15); (Tr. 1125). They returned to the witness's house later (without Hayes). Austin announced he shot a Christian but did not know which one he shot as they looked alike. (DVD Tr. 21, 23, 29-30); (Tr. 1125, 1127). This witness and his brother then provided Appellant and Austin with a house to stay at in Boardman. They told the witness there had been a $10,000 price set for the hit so they went over and "served these dudes" and "put some work in" (meaning they shot or killed someone). (DVD Tr. 24-25); (Tr. 1128).

{¶10} This witness said the defendants then planned to kill Hayes because he did not keep quiet about the Christian murder. (DVD Tr. 42-43). On the day Hayes was last seen, this witness saw Hayes in a vehicle with Colvin and Austin being driven by Appellant. (DVD Tr. 43-44).

{¶11} Later while high, Austin told this witness how both murders proceeded. (Tr. 1130). As for the Christian murder: Colvin and Appellant dropped off Austin and Hayes; Hayes went in the apartment to lure Christian outside; Christian was vomiting outside; and Austin shot Christian. (DVD Tr. 33-36). As to the Hayes murder, Austin told the witness: Hayes kept telling Austin he loved him as if he suspected Austin's plot against him; Austin shot Hayes; and Colvin vomited and ran. (DVD Tr. 43-49, 52).

{¶12} This witness heard Austin express anger that no funds were paid as expected for the Christian murder. (DVD Tr. 53-54). Another organization member testified he heard Appellant and Austin complaining they never received payment for various hits; Appellant said they were supposed to "come in, pull [our] moves, get paid and go back and leave town." (Tr. 1301-1311).

{¶13} As to the attempted murder and felonious assault charges against Austin, the victim of a shooting testified. He told police Austin was the shooter and theorized it may have been revenge for his involvement in a burglary of the apartment of Moorer's girlfriend. (Tr. 1020-1028). An organization member who was close to Moorer testified Moorer gave Austin the gun to use for this purpose. (Tr. 1320).

{¶14} As to the Slade and McCullough murders, there was testimony from a member of the organization that Moorer ordered the shooting of Ryan Slade because Slade assaulted Moorer's girlfriend, who was also a member of the organization; Keara McCullough happened to be in the vehicle with Slade at the time of the shooting. (Tr. 1182-1184). Two other members of the organization confirmed this and testified Austin admitted killing these two victims. (Tr. 1202, 1307).

{¶15} During trial, the court entered an acquittal on the possession and trafficking charges. The jury found Ap...