State v. Nurein
2022 Ohio 1711
| Ohio Ct. App. | 2022

Background

  • On Feb. 13, 2021, shots were fired into an apartment occupied by Zahra (defendant’s ex-wife) and two children; a 911 caller described a short Black male in a white SUV.
  • Police located a white SUV, detained Mohamed Nurein, who told officers a handgun was in the vehicle; a 9mm handgun, loose rounds, and an empty magazine were recovered from the SUV and nearby.
  • Ballistics linked a spent casing and recovered bullets from Zahra’s apartment to the handgun from the SUV; gunshot-residue (GSR) was found on Nurein’s hands and video showed him licking/rubbing his hands after arrest.
  • Indicted on multiple counts (felonious assault, improperly discharging a firearm into a habitation, attempted aggravated burglary, attempted trespass, tampering with evidence, endangering children, weapons-under-disability, etc.).
  • At trial the court called Zahra as a court’s witness under Evid.R. 614; the State played a body-cam recording of the minor son (K.A.) identifying Nurein; Zahra testified she did not think Nurein was the shooter.
  • Jury convicted on all counts and firearm specifications; court merged counts for sentencing and imposed an aggregate sentence (minimum 15 years, 3 months; 12 years mandatory); defendant appealed.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Did the trial court abuse discretion by calling Zahra as a court witness under Evid.R. 614? Court may call witnesses when a witness is partial, reluctant, or likely to contradict prior statements; Zahra’s frequent, forbidden contacts with defendant and refusal to cooperate warranted calling her as court’s witness. Calling Zahra was improper because she had been consistently exculpatory and not inconsistent with prior statements; State used Evid.R. 614 to gain cross-examination of its own witness. No abuse of discretion; court properly exercised Evid.R. 614 given Zahra’s partiality, contacts with defendant, and reluctance to work with prosecution.
Was admission of K.A.’s body-cam statements (recorded recollection) a Confrontation Clause or hearsay violation? The recording could be admitted as recorded recollection and/or was non-testimonial; in any event any error was harmless because other strong evidence implicated defendant. Admission violated Confrontation Clause and hearsay rules; trial counsel should have objected. Even if erroneous, no plain error — admission did not prejudice defendant given ballistics, GSR, eyewitness testimony, and post-arrest conduct.
Did limiting cross-examination and sustaining objections deprive defendant of meaningful opportunity to present third-party-guilt defense (Riyann)? Restrictions were reasonable; defendant was given opportunity to show a nexus between Riyann and the shooting but did not elicit necessary foundation. Trial court improperly curtailed cross-examination of Zahra and K.A., blocking evidence linking Riyann as alternative shooter. No constitutional violation: court reasonably limited marginal, speculative inquiry and gave opportunities to connect Riyann to the crime; defense strategy/failure to pursue also bears on the record.
Were convictions for attempted aggravated burglary and attempted trespass supported (sufficiency/manifest weight); and was counsel ineffective? Ballistics, location of hits (near deadbolt), spent casing near front door, surveillance, eyewitness statements, GSR and the gun tied to the vehicle furnished sufficient evidence; counsel’s performance did not prejudice outcome. Zahra testified defendant had permission and was an overnight guest — State failed to disprove privilege to enter; counsel was ineffective for failing to object to K.A.’s statement and to proffer third-party evidence. Sufficiency and manifest-weight challenges fail; reasonable jurors could infer attempted forcible entry and lack of privilege. Ineffective-assistance claim fails: no prejudice shown regarding the recording, and any proffer re: Riyann is outside the record so cannot be resolved on direct appeal.

Key Cases Cited

  • Crawford v. Washington, 541 U.S. 36 (Confrontation Clause restricts admission of testimonial hearsay)
  • Davis v. Washington, 547 U.S. 813 (testimonial-statement primary-purpose test)
  • Michigan v. Bryant, 562 U.S. 344 (analysis of primary purpose and testimonial statements)
  • Strickland v. Washington, 466 U.S. 668 (ineffective-assistance two-prong test)
  • Crane v. Kentucky, 476 U.S. 683 (defendant’s right to a meaningful opportunity to present a defense)
  • Scheffer v. United States, 523 U.S. 303 (states may adopt rules excluding evidence to ensure reliability)
  • Rock v. Arkansas, 483 U.S. 44 (limits on rules excluding defense evidence must not be arbitrary)
  • Chambers v. Mississippi, 410 U.S. 284 (third-party-guilt evidence and evidentiary limits)
  • Jenks v. Ohio, 61 Ohio St.3d 259 (standard for sufficiency review under Ohio law)
  • Thompkins v. Ohio, 78 Ohio St.3d 380 (manifest-weight standard)
  • State v. Adams, 62 Ohio St.2d 151 (abuse-of-discretion standard for trial-court rulings)
  • State v. DeHass, 10 Ohio St.2d 230 (deference to trier of fact on witness credibility)
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