State v. Maxwell

CourtUnited States State Supreme Court of Ohio
Citation139 Ohio St.3d 12,9 N.E.3d 930
Docket NumberNo. 2007–0755.,2007–0755.
PartiesThe STATE of Ohio, Appellee, v. MAXWELL, Appellant.
Decision Date20 March 2014

139 Ohio St.3d 12
9 N.E.3d 930

The STATE of Ohio, Appellee,
MAXWELL, Appellant.

No. 2007–0755.

Supreme Court of Ohio.

Submitted June 5, 2013.
Decided March 20, 2014.

[9 N.E.3d 941]

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Saleh S. Awadallah, Matthew E. Meyer, Thorin O. Freeman, Brian M. McDonough, and Adam M. Chaloupka, Assistant Prosecuting Attorneys, for appellee.

David L. Doughten and John P. Parker, Cleveland, for appellant.

Syllabus of the Court

An autopsy report that is neither prepared for the primary purpose of accusing a targeted individual nor prepared for the primary purpose of providing evidence in a criminal trial is nontestimonial, and its admission into evidence at trial under Evid.R. 803(6) as a business record does not violate a defendant's Sixth Amendment confrontation rights.


{¶ 1} This is an appeal as of right by defendant-appellant, Charles Maxwell, who has been sentenced to death for the aggravated murder of Nichole McCorkle.

I. Trial Evidence

{¶ 2} Evidence introduced at trial showed that McCorkle and Maxwell had a long-term relationship that began in 1999, living together on different occasions over the next few years. They had one child, C.M., nearly four years old. Nichole also had two other children, D.C. and D.K. In August 2005, she purchased a single-family home at 1046 East 146th Street in Cleveland and lived there with her father and two of the children. Maxwell had a key to the side door of the house and kept some clothes there.

The underlying assault

{¶ 3} The prosecution introduced evidence showing that on October 6, 2005, Nichole went to the hospital and received stitches for head injuries after Maxwell struck her. Police came to the hospital and took Nichole's report about the incident. On the same date, Maxwell told John Gregg, a friend and coworker, that he had pistol-whipped Nichole. On October 13, 2005, she obtained a temporary protection order against Maxwell.

{¶ 4} Afterward, prosecutors presented felonious-assault charges against Maxwell to the grand jury. Nichole was subpoenaed to testify before it on November 23, 2005.

{¶ 5} Maxwell told Gregg that he was concerned about receiving prison time for felonious assault. Maxwell knew about the temporary protection order and that a warrant had been issued for his arrest. He had also learned that Nichole was going to testify against him at the grand jury.

[9 N.E.3d 942]

{¶ 6} At Maxwell's behest, Gregg contacted Nichole about her grand jury testimony in an effort to reduce the charges from felonious assault to a lesser offense. Gregg asked Nichole to “stick to the story that it was a simple domestic; she pushed him, he pushed her, she slipped and hit her head on the stove.”

A. Nichole's grand jury testimony

{¶ 7} Following Nichole's testimony on November 23, 2005, the grand jury indicted Maxwell for felonious assault, abduction, and domestic violence. Brian Mooney, an assistant prosecutor for Cuyahoga County, informed Nichole that day that the grand jury had voted to indict and told her what the charges were. Because of the Thanksgiving holiday, the indictment was not signed by the grand jury foreman and filed with the clerk of court until November 28, 2005.

{¶ 8} The evening of the grand jury's decision, Maxwell called Gregg and said that he had been trying to talk to Nichole about her grand jury testimony but had been unable to contact her. Maxwell then called Nichole while Gregg remained on the line and heard their conversation. Maxwell asked Nichole what happened in court that day. Nichole told him, “I told the truth. I had to tell the truth.” According to Gregg, Maxwell was very upset after the phone call and said that “the bitch was going to make him kill her.” Maxwell also asked Gregg where he could get a gun.

B. The events of November 26 and 27, 2005

{¶ 9} The prosecution presented evidence that on the evening of November 26, 2005, Nichole and Willie Hutchinson met at a bar. Lauretta Kenney, Nichole's sister, had introduced Hutchinson to Nichole after the October 6 incident. Nichole and Hutchinson arrived at the bar in separate cars and had a few drinks. When they departed, although Nichole had told Hutchinson that she would call him when she got home, she did not. But Hutchinson called Nichole, and a man answered the phone. Hutchinson then called Lauretta and told her to check on Nichole.

{¶ 10} Near 2:30 a.m. on November 27, Lauretta called Nichole, and Maxwell answered the phone. Maxwell immediately gave the phone to Nichole. Lauretta asked Nichole why Maxwell was there and told her that he needed to leave. According to Lauretta, Nichole said that “she was confused and she didn't know what was going on.”

{¶ 11} Lauretta then drove to Nichole's home and arrived around 2:40 a.m. but did not see Maxwell's car on the street or in the driveway. Lauretta called Nichole, saying she was outside. Nichole “mumbled something” and then hung up. Lauretta went onto the porch, and Nichole and Maxwell were standing next to each other when Lauretta opened the screen door.

{¶ 12} Lauretta told Maxwell that he was not supposed to be there and needed to leave. Maxwell said that he was just talking to Nichole. Lauretta testified, “I told him, there's no talking, that you needed to leave.” He then called Lauretta “a bitch” and said, “[I]f anybody's leaving it's going to be you.” Maxwell then stepped back and pulled a gun from his pants. Nichole screamed, “[O]h my God, Lauretta, he got a gun, run.” Lauretta then jumped off the porch and started running. Lauretta heard two gunshots as she ran across the street and heard a third gunshot after she crossed the street. Lauretta then saw Maxwell kneeling down by Nichole.

{¶ 13} C.M., a day short of four years old, was standing near Maxwell and Nichole when Lauretta came to the door.

[9 N.E.3d 943]

Later, when asked what she had seen, C.M. testified, “He shoot my mommy.”

{¶ 14} Maxwell ran from the house after shooting Nichole and fled down the street. Lauretta followed him for a short distance before he disappeared. Shortly afterwards, police officers and emergency medical personnel arrived on the scene. Nichole was taken to the hospital, where she died from her injuries.

{¶ 15} On the morning of November 27, Michelle Kenney, Nichole's other sister, called Gregg and told him that Maxwell had killed Nichole. Gregg said that he then called Maxwell and asked him if he had killed Nichole. Maxwell admitted killing her and recounted what happened. He said he had followed Nichole from her home to the bar. She went into the bar, and Maxwell waited outside in his car. He then went inside and saw Nichole and another man sitting in the back of the bar “making out.” Maxwell then returned to his car and waited. After they left the bar, he followed Nichole and the man as they drove in separate cars to Nichole's house. Nichole kissed the man and went into her house, and the man drove away.

{¶ 16} Gregg also testified that Maxwell told him that he called Nichole after the other man drove away and asked if he could come over. Nichole said he could, and Maxwell went to her house. Maxwell answered the phone at Nichole's house, including repeated calls from a man who asked to speak to Nichole. He also answered a call from Lauretta. Maxwell told Gregg that “they started arguing and then he confronted her about that night.” Lauretta then came to the front door, and Maxwell “opened the door[,] pointed the gun and fired but she had ran.” Then, Maxwell told Gregg, “he just turned around, shot Nichole and she fell down and * * * she moved and then he shot her again.”

C. The police investigation

{¶ 17} Police investigators found two .25 caliber shell casings inside the house. Investigators looked inside and outside the house for a third shell casing, which they never found. Investigators also did not find any bullet holes inside or outside the house.

{¶ 18} Dr. David Dolinak, a medical examiner with the Cuyahoga County coroner's office, conducted Nichole's autopsy. Nichole suffered two gunshot wounds to the head. One gunshot in the middle of the right eyebrow broke the bones of the eye socket. The bullet did not enter the brain but lodged in the sinuses on the right side of the nose. The other gunshot went through the left side of the head into the right side of the brain. Dr. Dolinak concluded that Nichole died from gunshot wounds to the head and that the death was a homicide.

{¶ 19} Detective James Ealey, a firearms examiner with the Cleveland Police Department, examined the two bullets recovered during the autopsy. Ealey testified that they had been fired from the same weapon. His written report stated that the bullets were “consistent with 25 auto type ammunition.”

{¶ 20} The police sought to locate and arrest Maxwell following Nichole's death. On December 16, 2005, FBI Special Agent Robert Riddlebarger and other members of the Cleveland/Cuyahoga County Fugitive/Gang Task Force went to a Cleveland home to arrest him. After entering the home, they found Maxwell hiding in a crawl space behind a bed in a second-floor bedroom. As he was being handcuffed, Maxwell was asked whether he was armed or whether there were any weapons nearby. He replied, “I do not have a gun anymore.” A few seconds later, Maxwell

[9 N.E.3d 944]

blurted out that he had gotten rid of the gun that he had.

{¶ 21} The defense presented no witnesses during the guilt phase of the trial.

II. Case History

{¶ 22} Maxwell was indicted on two counts of aggravated murder. Count One charged him with the aggravated murder of Nichole with prior calculation and design. Count Two charged him with the aggravated murder of Nichole while committing kidnapping and/or aggravated burglary. Both counts contained death-penalty specifications for a course of conduct involving multiple murders or attempted murders, R.C. 2929.04(A)(5), murder while committing kidnapping or aggravated burglary, R.C. 2929.04(A)(7), murder in retaliation...

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