Judge frees defendant in ’05 battle with police

By Ed Runyan

The prosecutor’s office has filed a notice of appeal.

YOUNGSTOWN — After more than three years in the Mahoning County Jail awaiting trial, Duniek Christian was set free Friday after a judge ruled that prosecutors could not try him again.

A jury concluded Wednesday after eight hours of deliberations in a weeklong trial that Christian, 23, was innocent of ramming a stolen Cadillac into an unmarked Youngstown police car and assaulting officers in a rolling gunbattle July 1, 2005.

But jurors said they were “unable to decide” whether Christian was guilty of complicity regarding the three other men shooting assault rifles at seven officers.

That set off a legal battle involving Mark Hockensmith, an assistant Mahoning County prosecutor, and Thomas E. Zena, Christian’s lawyer, over whether Christian could be tried again on the seven counts of complicity to felonious assault.

Both lawyers admitted that the legal issues surrounding the question are unresolved, with no case law that specifically addresses the issue.

In deciding what to do with Christian, Common Pleas Court Judge James C. Evans said he would order Christian discharged from jail and no retrial on the complicity charges with the expectation that the prosecution would appeal his decision. He was released at about 3:30 p.m.

Sometime Friday, the prosecutor’s office also filed a notice of appeal on the matter to the 7th District Court of Appeals in Youngstown.

“The court has reviewed the limited research that’s available in this matter, and quite candidly I can’t come up with anything other than this 10th District case,” he said of case law Hockensmith cited to back up his request for a retrial.

“This indicates to the court there is obviously a need for review” by the 7th District Court of Appeals, he said.

At issue is whether the prosecutor’s office would have needed to indict Christian on felonious assault and complicity to felonious assault to try him separately on the charges.

Hockensmith argued that a case called State of Ohio v. Willie J. Green, in which a jury found a defendant innocent of kidnapping and was unable to decide on abduction, shows that someone can be retried on what is called an “included” offense.

An included offense is one that is necessarily part of committing another offense, such as abduction being part of (or included in) kidnapping.

But Zena said that case only applies to a lesser-included offense, and complicity to felonious assault is not a lesser offense to felonious assault because the penalty for complicity is the same as for felonious assault.

If Christian were to be retried on complicity to felonious assault and convicted, he could get three to 10 years in prison on each of seven counts — the same as the penalty for each of nine counts of felonious assault he’d been charged with, Zena said.

Judge Evans said the reason setting Christian free is “the complicity issue is not a lesser-included offense, and there is no charging document [indictment] that would allow him to be retried.”

The jury in the Christian case didn’t tell Judge Evans that it was deadlocked on the complicity charges when it turned in its jury forms Wednesday afternoon.

When Judge Evans read the forms, he saw the “unable to decide” notation in the spot where the jury foreman is supposed to write “innocent” or “guilty.” Judge Evans met with attorneys for both sides and then allowed the verdicts to be read in open court.

Because Christian, of Garland Avennue, drove the car involved in the gunbattle with police, he was accused of assaulting officers with his driving and assisting the others in their crimes, prosecutors said.

No one was injured, but a cruiser’s windshield was shattered when Christian drove the stolen vehicle through the East Side with three men inside the car shooting at police.

Christian took the witness stand and said he only drove the car away from officers that day because he had been ordered to by one of the gunmen, Jumal Edwards.

Christian, Edwards and Craig Franklin Jr., 20, were arrested the next day at an apartment in Youngstown.

Edwards, 25, of Woodcrest Avenue, eventually got 97 years in prison for his role in the matter, and Franklin, of Glenwood Avenue, got 105 years.

runyan@vindy.com