State v. White

• Decision Date: 20 May 1998
• Docket Number: Nos. 96-2029 and 96-2509,s. 96-2029 and 96-2509
• Citation: 693 N.E.2d 772,82 Ohio St.3d 16
• Parties: The STATE of Ohio, Appellee, v. WHITE, Appellant.
• Court: Ohio Supreme Court

Page 16

82 Ohio St.3d 16

693 N.E.2d 772

The STATE of Ohio, Appellee, v. WHITE, Appellant.

Nos. 96-2029 and 96-2509.

Supreme Court of Ohio.

Submitted Jan. 20, 1998.

Decided May 20, 1998.

This appeal stems from the shooting death of Ohio Highway Patrol Trooper James Gross. Defendant-appellant, Maxwell D. White, Jr., was convicted of aggravated murder with death penalty specifications under R.C. 2929.04(A)(6) (killing a peace officer) and R.C. 2929.04(A)(3) (offense committed for the purpose of escaping detection, apprehension, trial, or punishment for another offense). Appellant was also convicted of having a weapon while under a disability, and abduction. The facts leading to this tragic death are as follows.

At around 5:00 p.m., on January 18, 1996, appellant arrived at the condominium he shared with his mother and told her he was taking the night off from his job at the Kroger's warehouse. Appellant left with his pool cue and returned home close to midnight. Appellant was drunk and asked to be left alone. His mother went upstairs, hoping that appellant would pass out. She confronted appellant when the noise continued, and warned him that someone might call the police if he did not quiet down. Appellant became more agitated and screamed obscenities at his mother. Appellant feared the police because he was on probation for carrying a concealed weapon and believed the police had harassed him in the past and had singled him out. He told his mother that he could not go to jail and that he would rather go to the morgue than go to prison.

His mother went back upstairs to her bedroom, called her daughter, Dorothy ("Dotty"), and told her how appellant was acting. When appellant learned that his mother was on the phone, he pulled all the phones off the wall and told his mother not to call the police.

Appellant then retrieved a gun from the gun cabinet and, after Dotty arrived at the condominium, appellant ordered his mother and sister to pack his duffel bags and fill one bag with his clothes and another with guns from his late father's gun collection. Appellant explained that he wanted to go live in the woods. He broke the glass to the entertainment center and took out the radio. Appellant used a jump rope to tie his mother and sister to a pole. As appellant fumbled with a clip for the gun he was holding, he fired a shot and wounded his mother just above the right ankle. Appellant left the condominium. Dotty untied herself and her mother and called for help.

In the early morning hours of January 19, 1996, a UPS driver and a truck-driving couple who were heading north on I-71 heard CB reports of a brown four-door car driving erratically on the highway. At that time, Trooper Gross was temporarily filling in for the dispatcher (who was on break) at the Ashland post of the State Highway Patrol. At 3:10 a.m., Gross received a CB report regarding the brown car. Gross left the dispatching area to respond to the call. The truck drivers saw Gross's State Highway Patrol car enter I-71 at milepost 186. They radioed the officer a description of the brown car. As Gross followed the car for about four miles, the driver "straightened up" his driving.

At milepost 190, Gross pulled the car over and reported the license plate to the dispatcher. The dispatcher advised Gross that the car was registered to appellant and that appellant did not have driving privileges. The two truck drivers, Jeffrey and Susan Erickson, saw Gross step out of his vehicle, approach appellant's car and lean toward the driver's side car door to talk to appellant. Mrs. Erickson then saw a flame and heard a pop. Mr. Erickson observed Gross spin around and begin to fall as he tried to run back to his cruiser. Gross slipped and fell. Appellant leaned out of his cracked-open driver's side door and fired shots at the officer's back. Mrs. Erickson heard two more pops and saw two flashes. Her husband testified that the trooper "didn't have a chance" to pull out his weapon in response. Appellant sped away and continued north on I-71.

At approximately 3:15 a.m., the truck drivers radioed on their CB that an officer had been shot. They communicated with another truck driver ahead and told the driver to try to push appellant's car off the road. The truck driver attempted to do this, and forced appellant's car into the median, causing it to fishtail. However, appellant was able to regain control over his vehicle. A high-speed chase ensued, with several different law enforcement agencies joining in pursuit of appellant at speeds over one hundred miles per hour. Eventually In the meantime, the UPS driver, who had been following Gross, and a deputy sheriff from the Ashland County Sheriff's Department stopped at milepost 190 and found Gross lying on his stomach directly behind his cruiser. Gross's weapon was in his holster and a flashlight he had carried was lying underneath the cruiser. The sheriff found no pulse and attempted mouth-to-mouth resuscitation and CPR on Gross, with the UPS driver's help. However, they were unsuccessful.

appellant crashed his vehicle into a concrete drainage culvert near the State Route 18 exit of I-71 northbound. Police apprehended appellant without further incident. From the front floorboard of his car, police retrieved a Smith & Wesson semiautomatic pistol with an empty clip. Appellant was taken to the hospital for injuries he had sustained, and was later confined to jail.

The forensic pathologist who performed the autopsy on Gross testified that Trooper Gross had sustained two gunshot wounds. The gunshot wound to his left arm was consistent with a defensive wound, and resulted in three fractures. The other gunshot wound entered Gross's right back just below his bullet-proof vest. As a result, Gross sustained multiple perforations of his internal organs, including the right ventricle of the heart, which caused his death. The pathologist testified that, at the most, Gross lived only four minutes after the bullet entered his lower back.

Friends and co-workers of appellant also testified at trial on behalf of the state. Their testimony consistently portrayed appellant as a person who disliked law enforcement officers and felt harassed by them. Following his arrest for carrying a concealed weapon in 1995, appellant told co-workers that he would "cap the ass" of (shoot) the next police officer who stopped him. He also said that "something would happen" if a policeman ever pulled him over again.

The defense rested without calling any witnesses. After deliberation, the jury found appellant guilty as charged.

At the mitigation hearing, several witnesses testified on appellant's behalf, including a clinical psychologist and a chemical-dependency counselor from Interact Behavioral Health Care Services, where appellant had received outpatient services for his alcohol abuse. Co-workers and family members also testified. Their testimony revealed that appellant grew up on a farm and was above average in his intelligence. He was involved in 4-H and worked at a grocery store in high school. Over the years, appellant had difficulty in school and with authority figures. As an adult, appellant went into the Navy but received a less than honorable discharge. It was widely acknowledged that appellant had a serious drinking problem and had attended Alcoholics Anonymous meetings and outpatient counseling, but was unsuccessful in his attempt to According to the psychologist hired by appellant, appellant suffers from substance dependency (primarily alcohol, but also marijuana) and from dysthymic disorder, a form of depression. He also stated that appellant had a dysfunctional family and that his father was abusive.

stop drinking. There was also testimony that his deceased father had been critical of him.

Appellant gave an unsworn statement and apologized to Trooper Gross's widow and family. Appellant accepted responsibility for his actions and asked the jury to spare his life.

The state presented several witnesses at the sentencing hearing. Gross's widow and mother expressed their grief over the loss of the decedent. Friends and co-workers described appellant as argumentative and defiant to authority figures at work, but did not characterize him as depressed. One co-worker testified that appellant had threatened him while at work.

After considering this mitigation evidence, the jury recommended that appellant be sentenced to death. The trial court imposed the death sentence for the aggravated murder of Trooper Gross and sentenced appellant to consecutive prison sentences for his other convictions. Appellant filed an appeal with the court of appeals. This appeal was dismissed for want of jurisdiction. He appealed the dismissal to this court. (Case No. 96-2509.) Appellant also filed an appeal directly to this court (case No. 96-2029), and the appeals were consolidated.

The cause is now before this court upon an appeal as of right and a claimed appeal as of right.

Robert DeSanto, Ashland County Prosecuting Attorney, and Ramona Francesconi Rogers, Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, J. Joseph Bodine, Jr., and Kelly Culshaw, Assistant Public Defenders, for appellant.

FRANCIS E. SWEENEY, Sr., Justice.

Appellant raises fifteen propositions of law for our consideration. (See Appendix.) We have carefully considered each of these propositions of law, but adhere to our position that we need not separately address all propositions of law in opinion form. See State v. Poindexter (1988), 36 Ohio St.3d 1, 3, 520 N.E.2d 568, 570; State v. Scudder (1994), 71 Ohio St.3d 263, 643 N.E.2d 524. Therefore, we summarily dispose of those propositions of law where the error was not properly preserved or where the issues raised have previously been addressed by this court but rejected. We have also reviewed the death sentence for appropriateness and proportionality. For the reasons that

follow, we affirm the...