State v. Issa

• Decision Date: 29 August 2001
• Docket Number: No. 98-2449.,98-2449.
• Citation: 93 Ohio St.3d 49,752 NE 2d 904
• Parties: THE STATE OF OHIO, APPELLEE, v. ISSA, APPELLANT.
• Court: Ohio Supreme Court

93 Ohio St.3d 49

752 NE 2d 904

THE STATE OF OHIO, APPELLEE, v. ISSA, APPELLANT.

No. 98-2449.

Supreme Court of Ohio.

Submitted March 27, 2001.

Decided August 29, 2001.

Michael K. Allen, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for appellee.

Faulkner & Tepe and A. Norman Aubin; Herbert E. Freeman, for appellant.

Speedy Rice, urging reversal for amicus curiae, National Association of Criminal Defense Lawyers.

DOUGLAS, J.

At approximately 1:30 a.m. on November 22, 1997, Andre Miles, armed with a high-powered assault rifle, confronted brothers Maher and Ziad Khriss in a parking lot in front of Save-Way II Supermarket in Cincinnati, Ohio ("Save-Way") and demanded money. As Maher and Ziad put money on the ground and pleaded for their lives, Miles shot and killed them.

After investigating the shootings, Cincinnati police concluded that Miles had been hired to kill Maher. The police theorized that Maher's wife, Linda Khriss, had offered to pay defendant-appellant, Ahmad Fawzi Issa, to kill Maher. The police believed that appellant then enlisted Miles to do the killing, supplied him with the weapon, and arranged the opportunity. Appellant, Miles, and Linda were each charged with aggravated murder.

Prior to the murders, Maher and Linda Khriss owned and operated Save-Way. In addition to Maher and Linda, Renee Hayes, Souhail Gammoh, and appellant worked at the store. Bonnie Willis and her brother Joshua Willis, who were both teenagers at the time of the murders, lived with their mother approximately one block from Save-Way. Because they often shopped at Save-Way, they were familiar with the store employees. Miles had previously lived with the Willis family and was a close friend of Bonnie and Joshua.

In the two weeks preceding the murders, two witnesses saw appellant with a rifle in his apartment. On November 14, Dwyane Howard, Hayes's husband, went to appellant's apartment to wake him for work. Appellant invited Howard in and showed him a military-style rifle. When Howard asked appellant what he was going to do with the rifle, appellant's only response was "a little sneer." After the murders, appellant called Howard and told him not to tell anyone that he had seen appellant with a gun. At appellant's trial, Howard identified the murder weapon as being identical to the rifle appellant had shown him. No more than two weeks before the murders, appellant's coworker and friend, Gammoh, while visiting at appellant's apartment, also saw appellant with a rifle.

A few days before the murders, Joshua went to Save-Way and saw Miles standing out in front of the store. Joshua and Miles started talking, and Miles told Joshua that appellant was going to pay him to kill somebody. Miles asked Joshua if he wanted to take part in the crime for half of the money. Joshua did not take Miles seriously and told him he was crazy. On November 20, the Thursday evening before the Saturday morning murders, Joshua told Bonnie about his conversation with Miles. Bonnie also did not believe that Miles would actually kill someone, because Miles "had a tendency to * * * talk big." That is, he talked "about doing a lot of things and never did it."

Linda, Maher, Gammoh, and Hayes worked late at Save-Way on the evening of November 21. At approximately 10:00 p.m., Miles arrived at the store and asked for appellant. Although appellant was scheduled to work at 10:00 p.m., he was not yet there. Linda drove to appellant's apartment to wake him, and then she returned to the store. Appellant arrived around 11:15 p.m. Miles was waiting at the store for appellant, and when he arrived, appellant and Miles went outside together to talk.

Around midnight, Maher left Save-Way with a friend to check on another store that Maher owned. Maher left his truck in the Save-Way parking lot and instructed Linda and appellant to put the keys to the truck near the right front tire and that Maher would come back later to get the truck.

At approximately 1:09 a.m. the Save-Way employees closed the store for the night. Appellant put the keys near Maher's truck as he had been instructed. Appellant's mother was visiting from Jordan and was with appellant at the store when it closed. Appellant, his mother, and Gammoh left the store in appellant's car. Appellant drove his mother to his apartment, and then he drove Gammoh home. When appellant dropped Gammoh off at approximately 1:20 a.m., he told Gammoh that he was going back home to check on his mother but that he might come back later and take Gammoh to a bar. Approximately twenty-five to thirty-five minutes later, appellant returned to Gammoh's apartment, and they went to a bar together. After Gammoh heard about the murders, he asked appellant where he went before he returned to Gammoh's apartment. Appellant told Gammoh, "Don't tell the police. Tell them that we were together all the time."

At approximately 1:26 a.m. on November 22, Sherese Washington was driving near Save-Way when she heard gunshots. Frightened, she stopped her car and turned off the headlights. She then saw a man run from the Save-Way parking lot and down Iroll Street (the street on which Bonnie and Joshua lived). Sherese went home and called 911. Within four minutes of the shooting, Cincinnati police officers arrived at Save-Way and discovered Maher's and Ziad's bodies in the parking lot. Medical personnel arrived shortly thereafter but were unable to revive the Khriss brothers.

Near the bodies, crime-scene investigators for the Cincinnati Police found six 7.62 caliber rifle casings, a broken beverage bottle, and several $1 bills. A small crater in the blacktop near Ziad's body and a fresh gouge in the dirt near Maher's body were noted by officers as possibly having been made by gunfire. Officers also documented that three milk crates had been arranged like steps behind a dumpster in the parking lot. The police found this noteworthy because all the other items behind the dumpster were in disarray, and the police speculated that the perpetrator may have arranged these milk crates.

Dr. Lawrence Schulz, a deputy coroner for Hamilton County, performed autopsies on Maher and Ziad and testified as to his findings. Schulz found that a single bullet had struck the palm of Maher's left hand and traveled through the back of his hand and then entered his chest. The bullet then perforated Maher's lungs and his aorta, causing his death within a few minutes. Ziad had been shot in the palm of his right hand and twice in his left arm. Each bullet that struck his arm traveled through to his chest.

Joshua testified that around 5:00 p.m. on November 22, Miles called him and told him that he had killed Maher and Ziad and that he had put the gun in Bonnie and Joshua's back yard in a white plastic bag. He told Joshua not to touch the gun.

The following day, November 23, Miles came to the Willises' home. Bonnie and Joshua both testified regarding the conversation they had with Miles. Miles told them that appellant was going to pay him $2,000 for killing Maher but "[s]ince [Maher's] brother also got killed that night he had to throw in an extra $1,500." According to Miles, appellant had not paid him yet. Miles told the Willises that, on the night of the shooting, appellant gave Miles the rifle, which Miles described as an M-90. Miles then sat on milk crates behind a dumpster outside the store and waited for Maher to come back for his truck. When Maher returned with Ziad, Miles confronted them and demanded money. Maher and Ziad pulled money from their pockets, dropped it on the ground and pleaded with Miles not to shoot.

Miles said that when he reached down for the money, the gun went off and the beverage bottle that Maher was holding shattered. Then Miles said he "got trigger happy. He freaked. He shot them once. He might as well kill them." While Maher was "still squirming," Miles said, he shot him in the head, and then shot Ziad in the head. After that, Miles picked up the money they had thrown down, but said he left two $100 bills on the ground. Miles said that after the shooting he ran down Iroll Street, put the rifle in the Willises' back yard, and then met appellant in a nearby parking lot and appellant drove him home.

Bonnie and Joshua noticed that Miles was wearing new clothes "from head to toe." Miles said that he "had bought the new clothes with the money that he got from the two victims." While describing the killings, Miles showed "no remorse at all. He was actually bragging." Miles also told Bonnie and Joshua, "If anybody knows about this or tells, I'll kill them." Miles reiterated that the rifle was in a white plastic bag in their back yard and that neither Bonnie nor Joshua should touch it. Miles promised to come back and remove the gun. Both Bonnie and Joshua saw an object wrapped in a white bag in their back yard and Joshua described it as "shaped like a gun."

A few days later, Joshua went to Save-Way, and as soon as appellant saw him appellant asked, "Does anybody know?" Joshua said, "No, not that I know of." Joshua then told appellant, "You're going to have to come and get this gun. I don't want to put my family in this type situation." Although Joshua did not mention Miles, appellant replied, "Okay. I'll talk to Andre [Miles] and if Andre don't come and get it, I will." After a few days, Joshua noticed the white bag was still in his yard. Joshua again went to the store and confronted appellant about it. Appellant again promised Joshua that either he or Miles would remove the gun. Bonnie also went to the store and told appellant that the gun needed to be removed from their yard. Appellant told her the same thing he had told Joshua. Appellant also told Bonnie to "[t]ell [Miles] not to come around the store because the police were investigating, that he would get in touch with him." A few days later, Miles removed the gun.

On November 25, while working at Save-Way, Hayes saw Linda hand appel...