Shootout defendant says court misapplied 'felony murder' law

The second of three men serving prison time for murder and aggravated robbery in connection with a February 2009 shootout has appealed his conviction.

 

The first man convicted, Phillip Dionte Boler, based his appeal heavily on allegedly prejudicial remarks made by prosecutors during closing arguments (they repeatedly called Boler’s accomplices “thugs” and “goons,” and mentioned that they were black).

Latest appellant Mahat Osman, however, relies more on the state’s use of the controversial “felony murder” law.

In an appeal brief prepared by defense counsel Sam B. Weiner, and filed last week with the 4 th District Court of Appeals, the attorney argues that it was wrong for the trial court to convict Osman, now 18, of both murder and aggravated robbery, because the two charges were based on the same conduct.

Therefore, Weiner maintains, it violates the constitutional ban on “double jeopardy” to punish Osman twice.

Osman, like Boler and defendant Abdifatah Abdi, was convicted of “felony murder” and aggravated robbery. The felony murder charge means that whether or not the defendant actually killed anyone, he took part in a felony during which someone was killed as a “proximate result.”

All three men were involved in a drugrelated shootout at the New Marshfield residence of Billy Osbourne, Jr., during which a non-combatant, Donnie Putnam of Meigs County, was killed in the crossfire. Prosecutors acknowledged that none of the three may have fired the fatal bullet, but told jurors in each case that for legal purposes, it didn’t matter – each was committing an aggravated robbery that caused a death.

Weiner admits in his brief that when Osman was convicted, “there was some confusion among Ohio courts” as to whether a “felony murder” charge is an “allied offense” to the underlying “predicate” felony – that is, whether the two charges should be treated as being based on the same set of alleged actions.

After Osman’s conviction, however, the brief says, “any question in this regard was eliminated” when the Ohio Supreme Court ruled in January 2010 on the case of State v. Williams. In that case, the high court found that a court cannot convict someone of both attempted murder and felonious assault, because “the attempted murder charge will always result in the commission of the predicate felony offense” of felonious assault.

The court concluded that convicting some one on both felony murder and its underlying predicate offense violates both Ohio’s allied offense law and the federal prohibition of double jeopardy.

Comparing Ohio’s laws on aggravated robber and felony murder, Weiner wrote, “shows that the aggravated robbery offense is a lesserincluded offense of the felony murder offense” because it is impossible to commit the second without committing the first.

And because the Ohio Supreme Court has long held that a lesser-included offense is always an allied offense of the greater felony, double jeopardy bars a court from punishing a defendant twice for the two offenses, Weiner argued. By doing so, he concluded, Judge Michael Ward committed “plain error,” which justifies overturning Osman’s conviction.

IN OTHER ASSIGNMENTS OF error, Weiner alleges that the state never established that Osman’s commission of the aggravated robbery offense was the “proximate cause” of Putnam’s death.

When prosecutors spoke to the jury, Weiner recalled, they admitted that they did not know who shot Donnie Putnam, “but kept arguing to the jury that it did not matter.” All the jurors had to do, according to the state, was apply the “but for” test – as in, “but for the robbery attempt, Putnam would still be alive.”

“However,” Weiner maintains in his brief, “the ‘but for’ test is not the proper law in this case.” He said case law in Ohio has established that there must be an adequate “nexus” between a defendant’s criminal actions and a death, before the felony murder statute can be invoked.

In Osman’s case, the attorney wrote, “we have a series of intervening acts by third persons” that were criminal, and that “broke the chain of causation” leading to Putnam’s slaying.

To begin with, he argued, “there is a serious issue of whether or not this incident was an aggravated robbery or just a strong-armed attempt to collect a debt.”

He noted that the victim, Osbourne, had been forewarned by the defendants that they were coming, and had armed himself and others in his home with guns in anticipation.

While Osman himself told police he came to rob Osbourne, the brief notes, Osman is a Somalian immigrant, and it is “very possible that the foreign-born defendant did not know the proper definition of robbery.”

Most important, according to Weiner, is the question of the proximate cause of Putnam’s death. With the most likely scenario being that the fatal bullet was actually fired from inside Osbourne’s trailer, not from outside, the brief states, a likely suspect as the shooter is John Perry II, now awaiting trial for involuntary manslaughter for his part in the gunfight.

If Perry fired at the three defendants as they were fleeing, Weiner maintained, this might go beyond self-defense and constitute a criminal act. And if one of Perry’s bullets hit Putnam, Perry’s firing at the fleeing defendants “could constitute intervening criminal activity that resulted in (Putnam’s) death.”

Likewise, the attorney noted, Osbourne was dealing drugs from his home, and “but for this criminal activity, Putnam would still be alive today.” Putnam reportedly had gone to Osbourne’s home looking to buy illegal drugs – and again, Weiner wrote, “Under the state’s ‘but for’ test, he would be alive today but for his own criminal actions.”

With so many possible criminal acts contributing to the fatal shooting, Weiner suggested, there is reasonable doubt whether Osman’s criminal act can be considered the proximate cause of the death.

The appeal brief also challenges whether the state should have been allowed to put Abdi and Boler on the stand in front of the jury, just to have them invoke their Fifth Amendment right not to testify – which Weiner argued had a “profound prejudicial impact” on jurors.

Weiner claims the court also erred by letting the prosecution use the out-of-court statement of an imprisoned convict, who testified that he had stolen a number of guns and had sold a rifle to Boler. This information “was hardly relevant” to Osman’s case, Weiner maintained, and “was designed to do nothing more than to portray Philip Boler as a very bad person and to likewise taint the defendant through guilt by association.”

Abdi has also filed a notice of appeal, and recently asked for an extension until Aug. 23 to file his brief. The appellate court has already heard oral arguments in Boler’s appeal, but has not yet ruled.