State v. Hackett

2019 Ohio 1091

STATE OF OHIO, Plaintiff-Appellee, v. DAVID HACKETT, Defendant-Appellant.

Case No. 17 MA 0106

COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY

March 19, 2019

OPINION AND JUDGMENT ENTRY

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio

Case No. 13-CR-1125

BEFORE: Carol Ann Robb, Cheryl L. Waite, David A. D'Apolito, Judges.

JUDGMENT: Affirmed.

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. Ronald D. Yarwood, DeGenova & Yarwood, LTD., 42 N. Phelps Street, Youngstown, Ohio 44503, for Defendant-Appellant.

Robb, J.

{¶1} Defendant-Appellant David Hackett appeals his convictions for aggravated murder, rape, kidnapping, and repeat violent offender specifications entered in Mahoning County Common Pleas Court. Appellant raises five assignments of error in his appeal.

{¶2} The case was tried to a jury. Before trial was scheduled to start, Appellant moved for a continuance and requested to represent himself. The trial court granted both requests and designated appointed counsel Attorney DeFabio as standby counsel. Appellant's first two assignments of error relate to his decision to represent himself. First, Appellant argues the record does not indicate he knowingly and voluntarily waived his right to counsel. Next, Appellant argues the trial court incorrectly limited the role of standby counsel by indicating Appellant could not ask standby counsel any questions unless he relinquished the right to proceed pro se.

{¶3} Appellant's third and fourth assignments of error raise sufficiency and manifest weight of the evidence arguments. The third assignment of error addresses the rape charge and conviction, while the fourth assignment of error addresses the kidnapping charges and convictions.

{¶4} The last assignment of error asserts the trial court committed plain error when it instructed the jury that for kidnapping the jury had to find Appellant removed the victim from where she was found or that he restrained her liberty. He asserts the trial court had previously found there was no evidence the victim was removed from where she was found. Therefore, he asserts the trial court should not have included that element in its instruction.

{¶5} For the reasons expressed below, all assignments of error lack merit. The convictions are affirmed.

Statement of Facts

{¶6} Around 8:00 a.m. on October 14, 2013 the body of a Jane Doe was discovered on the access road to the Water Department off of North West Avenue in Youngstown, Ohio. The victim was found naked except for a brassiere and had been stabbed multiple times. A knife was located in the vicinity of the body. 5/30/17 Trial Tr. 266.

{¶7} Later in the afternoon, Ruth Weaver and Appellant went to the police station to report a person living with them, C.C., as missing. Weaver saw on the news that a body was found and recognized the necklace; the necklace belonged to C.C. Weaver and Appellant were able to identify the Jane Doe as C.C.

{¶8} The victim had been living with Weaver, her seven children, and Appellant at 165 New York Avenue in Youngstown for a few months prior to her death. The victim was a drug addict and was often "dope sick" while she was staying with them. Allegedly, the victim worked at a gentlemen's club, made and sold methamphetamine, and stole things to support her habit. Appellant allegedly was her drug dealer.

{¶9} Appellant and Weaver were interviewed by the police on October 16, 2013. Appellant claimed that from 7:00 p.m. to 9:00 p.m. on October 13, 2013 he was in Salem, Ohio. 5/30/17 Trial Tr. 417. Weaver was interviewed separately and stated Appellant was at church with her and then went to get her an iced coffee. 5/30/17 Trial Tr. 420-421. The officer who conducted both interviews indicated there was nothing consistent between Appellant and Weaver's stories. 5/30/17 Trial Tr. 422. During the interview, Weaver was shown the knife found near the victim's body; she stated it was Appellant's knife. 5/30/17 Trial Tr. 423. Both Appellant and Weaver's cell phones were taken.

{¶10} During the investigation, the police used records from Weaver, Appellant, and the victim's cell phones to determine where each person's phone was on the evening of October 13, 2013. The police also used the phones to see the text messages between the three of them. The victim's phone was not recovered, so records from the phone carrier were used. Likewise, text messages were deleted from Appellant and Weaver's phones. The police were able to recover some text messages from Appellant's phone, but were not able to recover any from Weaver's phone.

{¶11} The GPS from the victim's phone indicated that at 8:05 p.m. on October 13, 2013 the phone was in the area where her body was found the next day. Her phone was there for approximately 1 hour before it was removed. 5/30/17 Trial Tr. 472. After that, the GPS from the phone indicated it travelled to the Weathersfield area of Meridian Road. 5/30/17 Trial Tr. 477. At that point the battery ran out or it was turned off. 5/30/17 Trial Tr. 477. The records from Appellant's cell phone indicate his phone was in the same area of the victim's phone from 8:00 p.m. to 9:00 p.m. on October 13, 2013. 5/30/17 Trial Tr. 473. The phone records indicated the phone was not in Salem, Ohio. 5/30/17 Trial Tr. 483. Weaver's phone was not in the area of where the victim's body was found on October 13, 2013 between 8:00 p.m. and 9:00 p.m. 5/30/17 Trial Tr. 479.

{¶12} There were frequent short text messages between Appellant and the victim prior to her death. 5/30/17 Trial Tr. 481. Those text messages indicated the two had planned to meet prior to the victim's death to use drugs. According to the text messages they had planned to take the vehicle with a "curtain." Surveillance video recovered from a business close to where the victim's body was found showed a dark conversion van entered the property around 8:00 p.m. on October 13, 2013 and left around 9:00 p.m. There were text messages between Weaver and Appellant during and after that time. 5/30/17 Trial Tr. 485. Those text messages were deleted and the police were not able to recover them. 5/30/17 Trial Tr. 485.

{¶13} A conversion van was found at Appellant's residence on October 16, 2013. 5/30/17 Trial Tr. 412. The police searched the van and took samples of blood found in the van. The victim's DNA was found on the steering wheel. 5/30/17 Trial Tr. 517.

{¶14} After the interview with police, Weaver allowed the police to search her residence. A pair of jeans Appellant wore on the night of October 13, 2013 were recovered from the house; testing was performed on the jeans. There was blood found on the jeans and the results indicated it contained the victim's DNA. 5/30/17 Trial Tr. 512. The waistband of the jeans was tested and it contained DNA from both the victim and Appellant. 5/30/17 Trial Tr. 512.

{¶15} The knife that was recovered from the area where the victim's body was found was also tested. Weaver identified this knife as Appellant's knife. There was a blood stain on the knife blade that contained the victim's DNA. 5/30/17 Trial Tr. 510. An additional swabbing from the blade contained Weaver's DNA. 5/30/17 Trial Tr. 510. Appellant was excluded as a contributor to the DNA found on the knife blade. 5/30/17 Trial Tr. 510. Samples were taken from the handle of the knife. 5/30/17 Trial Tr. 510. It was determined that the DNA found on the handle was from more than one person, however the victim was a major contributor of the DNA. 5/30/17 Trial Tr. 510.

{¶16} An autopsy of the victim's body was performed and samples were taken for a sexual assault kit. The medical examiner indicated the victim had been stabbed 81 times and observed defensive wounds. 5/30/17 Trial Tr. 626, 631. The knife that was found at the scene was determined to be consistent with the knife that inflicted the victim's wounds. 5/30/17 Trial Tr. 640. Only two of the stabs wounds were lethal; one stabbing to the carotid artery and another stabbing to the right collarbone region. 5/30/17 Trial Tr. 632-633. The cause of death was lack of oxygen to her body. 5/30/17 Trial Tr. 634. The stabbing of the carotid artery caused lack of blood flow to her brain and thus, a lack of oxygen to her brain. 5/30/17 Trial Tr. 633. There was also severe damage to her left lung, which additionally meant she was not getting oxygen to her body. 5/30/17 Trial Tr. 634. Some of the stab wounds happened after or near the time of death. 5/30/17 Trial Tr. 638. It could not be determined in which order the wounds occurred; however, it was determined that incapacitation would have happened within 60 seconds to 2 minutes of the first of either fatal wound. 5/30/17 Trial Tr. 639, 646. The manner of death was classified as homicide. 5/30/17 Trial Tr. 643.

{¶17} The autopsy included a toxicological analysis and three major drugs were found in the victim's system - amphetamines, cocaine, and morphine. 5/30/17 Trial Tr. 635. The amphetamines included methamphetamine, amphetamine, and pseudoephedrine, which are commonly present in Ecstasy. 5/30/17 Trial Tr. 635-636. The morphine found in her system was specific to heroin. 5/30/17 Trial Tr. 637.

{¶18} Testing performed on the vaginal swab determined Appellant and all of his male paternal relatives could not be excluded as a possible contributor to that DNA. 5/30/17 Trial Tr. 590-591.

{¶19} Appellant was indicted for aggravated murder, a violation of R.C. 2903.01(B)(F); rape, a violation of R.C. 2907.02(A)(2)(B); and two counts of kidnapping, violations of R.C. 2905.01(A)(2)(C) and R.C. 2905.01(A)(4)(C). 10/24/13 Indictment. The aggravated murder count included four death penalty specifications - R.C. 2929.04(A)(3), R.C. 2929.04(A)(5) and two R.C. 2929.04(A)(7) specifications. The rape and kidnapping counts included repeat violent offender...