State v. White

• Decision Date: 12 May 1999
• Docket Number: No. 96-2853,96-2853
• Parties: The STATE of Ohio, Appellee, v. WHITE, Appellant.
• Court: Ohio Supreme Court

Page 433

85 Ohio St.3d 433

709 N.E.2d 140

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

No. 96-2853.

Supreme Court of Ohio.

Submitted Sept. 28, 1999.

Decided May 12, 1999.

Appellant, Clifton "Sonny" White III, was convicted of the aggravated murder of Deborah Thorpe with death specifications. Defendant was sentenced to death for this crime and now appeals to this court as a matter of right.

Defendant lived with his girlfriend, Heather Kawczk, at 615 Day Street, Akron. Once Kawczk moved in with him, defendant became extremely jealous and possessive and sometimes beat Kawczk. Kawczk decided to break up with defendant, but she had no place to live and was afraid of him.

Kawczk worked at a Kentucky Fried Chicken ("KFC") restaurant on South Arlington Street, where one of her co-workers was Michael Thorpe, Jr. Kawczk and Thorpe began dating, and Kawczk told Thorpe that she wanted to leave defendant. Thorpe's mother, Deborah Thorpe, was a former co-worker of Kawczk's, as well as her close friend. Hearing of Kawczk's problem, Deborah Thorpe offered her a place to stay.

On December 10, 1995, Deborah Thorpe and Kawczk drove to 615 Day Street while defendant was away and took Kawczk's clothes from the apartment. Distraught, two days later defendant repeatedly telephoned Kawczk, apologizing and begging her to come back. Defendant continued to call Kawczk for several days.

On the morning of Christmas Eve, around 11:00, defendant pulled up to the drive-through window at the KFC while Kawczk was working there. Defendant asked Kawczk whether she could come to his apartment and pick up the rest of her belongings. Kawczk said she could not, and defendant drove off.

Later that day, defendant called Kawzck's mother, Julie Schrey. He asked Schrey to come to his apartment with Kawczk, since Kawczk did not want to come alone. Schrey then called Kawczk, who told Schrey that she "didn't want to go over there." Around 12:30 p.m., Schrey called again. She told Kawczk that she was about to go to the apartment with Deborah Thorpe to pick up Kawczk's belongings.

That afternoon, after Schrey and Deborah Thorpe arrived at 615 Day Street, defendant killed them both with deer slugs fired from a 12-gauge pump shotgun.

About forty-five minutes after Kawczk's last conversation with Deborah Thorpe, defendant walked into the KFC and told Kawczk he had some of her things in the car. Kawczk refused to accompany defendant to his car.

A few minutes later, defendant came back into the restaurant, shotgun in hand. He vaulted over the counter, ran toward Kawczk, pointed the gun at her, and pumped it. At this point, Michael Thorpe confronted defendant, telling him several times to leave. Defendant responded by shooting Thorpe in the head, and then he fled. Thorpe survived the shooting but lost most of his right ear, part of his skull, and the right upper lobe of his brain.

Later that day, defendant told a friend of his that "I messed up really bad * * * [.] I shot three people." Defendant called 911 to report the shootings. He then got another friend to drive him to the Akron police station. Defendant told the desk officer at the station, "I done something bad. I just killed a guy at KFC." Defendant also asked for an ambulance at 615 Day Street because "I shot two people over there."

Defendant then spoke to Detective Lawrence McCain. He told Detective McCain that the two women at the apartment were trying to talk him out of committing suicide when his gun "went off," killing Schrey. He said that he then shot Deborah Thorpe because "he didn't want her to have to live with the thought of seeing her friend killed." As for Michael Thorpe, defendant said Thorpe "got in the way" and his gun "went off again." Defendant later told the same story, in more detail, to Akron Police Captain Paul Callahan and Lieutenant Robert Offret.

The Summit County Grand Jury indicted defendant on two counts of aggravated murder, R.C. 2903.01(A) (prior calculation and design), and one count of attempted aggravated murder. (Two other counts were dismissed before trial.) Count One (aggravated murder of Julie Schrey) and Count Two (aggravated murder of Deborah Thorpe) each carried a course-of-conduct specification under R.C. 2929.04(A)(5); Count Two also carried a specification under R.C. 2929.04(A)(3) (murder for purpose of escaping detection, apprehension, trial, or punishment for another crime). Each count had a firearm specification under R.C. 2941.141.

On Count One, the jury convicted defendant of the lesser-included offense of murder. On Count Two, the jury convicted defendant of aggravated murder and of both death specifications. The jury also convicted defendant of the lesser-included offense of attempted aggravated murder on Count Three, and all firearm specifications.

Following a mitigation hearing, the court sentenced defendant to terms of imprisonment on the murder and attempted murder convictions, and imposed the sentence of death on the aggravated murder conviction.

Defendant attempted to appeal the judgment to the Court of Appeals for Summit County, which dismissed the appeal for want of jurisdiction. ¹ Simultaneously, defendant appealed the conviction and sentence directly to this court as a matter of right, pursuant to Section 2, Article IV, Ohio Constitution.

Annette L. Powers and Renee W. Green, Akron, for appellant.

Michael T. Callahan, Summit County Prosecuting Attorney, and Philip D. Bogdanoff, Assistant Prosecuting Attorney, for appellee.

LUNDBERG STRATTON, Justice.

We have reviewed defendant's propositions of law, independently weighed the evidence relating to the death sentence, weighed the aggravating circumstances against the mitigating factors, and compared the sentence with sentences in similar capital cases. As a result, we affirm defendant's convictions and death sentence.

I. BATSON ISSUE

At trial, defendant objected to the state's peremptory challenge of prospective juror Jesse Dent, arguing that the state challenged Dent because Dent was black, in violation of the Fourteenth Amendment. See Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69. After the state explained its reasons for striking Dent, the trial court overruled defendant's objection. In his fifth proposition of law, defendant contends that the trial court erred.

Batson establishes a three-step procedure for evaluating claims of racial discrimination in peremptory strikes. First, the opponent of the strike must make a prima facie showing of discrimination. Second, the proponent must give a race-neutral explanation for the challenge. Third, the trial court must determine whether, under all the circumstances, the opponent has proven purposeful racial discrimination. Id. at 96-98, 106 S.Ct. at 1723-1724, 90 L.Ed.2d at 87-89; Purkett v. Elem (1995), 514 U.S. 765, 767-768, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834, 839; State v. Hernandez (1992), 63 Ohio St.3d 577, 582, 589 N.E.2d 1310, 1313-1314.

At oral argument, the state contended that in order to prevail on a Batson claim, a defendant must show the existence of a pattern of peremptory challenges by the state against members of the group in question. Inasmuch as Dent was the only black prospective juror on whom the state used a peremptory challenge, the state argues that there was no pattern, and hence no Batson violation.

We reject this view, for "the exercise of even one peremptory challenge in a purposefully discriminatory manner would violate equal protection." (Emphasis added.) State v. Ellison (Tenn.1992), 841 S.W.2d 824, 827. " 'A single invidiously discriminatory act' is not 'immunized by the absence of such discrimination in the making of other comparable decisions.' " Batson, 476 U.S. at 95, 106 S.Ct. at 1722, 90 L.Ed.2d at 87, quoting Arlington Hts. v. Metro. Hous. Dev. Corp. (1977), 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450, 465, fn. 14.

The existence of a pattern of discriminatory strikes is not a prerequisite either to finding a prima facie case in step one of the Batson analysis or to finding actual discrimination in step three. Such a rule would ignore Batson's requirement that the trial court consider all the circumstances in determining whether racial discrimination occurred. It would also mean that no Batson challenge could succeed unless the prosecutor challenged more than one member of the group in question. Such a rule would license prosecutors to exercise one illegal peremptory strike per trial. The law of equal protection does not allow "one free bite."

Thus, the mere fact that the state challenged only one black prospective juror does not preclude a Batson challenge. See United States v. Battle (C.A.8, 1987), 836 F.2d 1084, 1086.

The state also contends that defendant failed to make a prima facie case of purposeful discrimination. We need not consider this question. At trial, the state gave its reason for challenging Dent, even though the trial court neither ordered the state to do so nor found that a prima facie case existed. Once the proponent explains the challenge and the trial court rules on the ultimate issue of discrimination, whether or not a prima facie case was established becomes moot. Hernandez v. New York (1991), 500 U.S. 352, 359, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, 405; State v. Hernandez, 63 Ohio St.3d at 583, 589 N.E.2d at 1314.

Thus, the Batson analysis moves to the second step: whether the state supplied a race-neutral explanation. The prosecutor told the trial court that he removed Dent because Dent opposed capital punishment. This is a race-neutral explanation. Defendant argues that it is nevertheless an invalid explanation because Dent said that he would put his feelings aside and follow the law. But defendant's argument misconceives the nature of a Batson claim. The only issue in step two of the Batson analysis is whether the proponent gave a race-neutral explanation for his peremptory challenge. The "explanation need not...