State v. White

• Citation: 29 N.E.3d 939,2015 Ohio 492,142 Ohio St.3d 277
• Decision Date: 18 February 2015
• Docket Number: No. 2013–0109.,2013–0109.
• Parties: The STATE of Ohio, Appellant, v. WHITE, Appellee.
• Court: United States State Supreme Court of Ohio

142 Ohio St.3d 277

29 N.E.3d 939

2015 Ohio 492

The STATE of Ohio, Appellant,

v.WHITE, Appellee.

No. 2013–0109.

Supreme Court of Ohio.

Submitted Feb. 5, 2014.

Decided Feb. 18, 2015.

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellant.

Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant Public Defender, for appellee.

Dean Holman, Medina County Prosecuting Attorney, and Matthew A. Kern, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.

Crabbe, Brown & James, L.L.P., Larry H. James, Christina L. Corl, and Daniel J. Hurley ; and Paul L. Cox, Columbus, urging affirmance or dismissal for amici curiae the National Fraternal Order of Police and Fraternal Order of Police of Ohio, Inc.

O'DONNELL, J.

{¶ 1} The state of Ohio appeals from a judgment of the Sixth District Court of Appeals reversing the conviction of Thomas Caine White—a former Ottawa Hills police officer—for felonious assault with a firearm specification arising from his shooting of Michael McCloskey Jr. during a traffic stop. The appellate court held the firearm specification unconstitutional as applied to White and concluded that the trial court committed reversible error by improperly instructing the jury on the use of deadly force, by failing to give a mistaken-belief instruction, and by excluding testimony about the crimes that White believed McCloskey had committed.

{¶ 2} Because the firearm specification does not apply in this case, because the jury instructions misled the jury, and because the trial court erroneously excluded relevant evidence regarding the offenses that White believed McCloskey had committed, we affirm the judgment of the court of appeals and remand the matter for further proceedings consistent with this opinion.

Facts and Procedural History

{¶ 3} On the evening of May 22, 2009, McCloskey and Aaron Snyder rode their motorcycles to distribute business cards promoting Snyder's business and flyers advertising "Bike Nights" at the Omni, a concert and club destination located on West Bancroft Street in Toledo where McCloskey worked. Around 1:00 a.m. on the morning of May 23, 2009, they went to the Omni and met Klint Sharpe, and the three men decided to go to McCloskey's home in Ottawa Hills. McCloskey and Snyder rode their motorcycles and Sharpe followed in his car.

{¶ 4} At the intersection of Secor and Indian Roads, Sharpe took a different route, and White, who was on patrol in Ottawa Hills in a marked police cruiser, began to follow McCloskey and Snyder, who mistook the cruiser's headlights as belonging to Sharpe's car as they continued on Indian Road. White observed them weaving from side to side and activated his cruiser's dashboard video camera to document their driving. He saw McCloskey cross the center yellow lines multiple times, make incomplete stops at stop signs, weave within the lane, and exceed the speed limit.

{¶ 5} White radioed another patrol officer, Christopher Sargent, who was on duty that night, and told him that he "wanted to stop a couple of motorcycles" and thought they "were messing with him." White continued trailing McCloskey and Snyder as he waited for Sargent to arrive.

{¶ 6} McCloskey and Snyder stopped for about ten seconds at an intersection, and White believed they talked and looked back at him before abruptly speeding away toward Central Avenue. Thinking that the motorcyclists were fleeing, he activated his cruiser's siren and lights and radioed the dispatcher that he was in pursuit.

{¶ 7} Sargent then arrived from Central Avenue with his cruiser's lights and siren activated, and at that point Snyder drove over a grassy island before his motorcycle came to a stop on the street. Sargent got out of his cruiser, drew his weapon, and took Snyder into custody.

{¶ 8} At the same time, McCloskey stopped his motorcycle, and White exited his cruiser, drew his service weapon, and yelled to McCloskey to put his hands up. McCloskey remained seated on his motorcycle with the motor running, and White later testified that he had seen him turn with his "right arm and elbow * * * making a drawing motion to the right," causing him to believe that McCloskey "was pulling a weapon." At that point, White fired one shot that struck McCloskey in the back, paralyzing him and causing the motorcycle to fall on his leg. White approached and searched McCloskey's pockets and waist area but found no weapon. Another Ottawa Hills police officer subsequently found a sheathed knife clipped to McCloskey's right boot.

{¶ 9} A Lucas County Grand Jury indicted White on one count of felonious assault in violation of R.C. 2903.11(A)(2) with a firearm specification pursuant to R.C. 2941.145. The matter proceeded to a jury trial, and at the close of the state's case-in-chief, White moved for acquittal and also argued that the firearm specification should not apply to him. The trial court denied the motion, determining that the state had presented sufficient evidence to prove both the crime of felonious assault and the firearm specification.

{¶ 10} White testified in his defense, but the trial court sustained the state's objection and prevented him from testifying about offenses he believed McCloskey had committed. The defense also presented expert testimony that McCloskey's actions would have led a reasonable police officer to perceive a threat of physical harm, because McCloskey had appeared to flee from police, had not raised his hands as instructed, and had made suspicious movements consistent with visually targeting the officer and reaching as if to pull a weapon from his waistband.

{¶ 11} After deliberations, the jury returned verdicts finding White guilty of felonious assault and the accompanying firearm specification. The court imposed a seven-year prison term for the felonious assault conviction and ordered that it be served consecutively to a mandatory three-year term for the firearm specification.

{¶ 12} White appealed, and the court of appeals reversed the felonious assault conviction and remanded the matter for a new trial. It further held that the firearm specification was unconstitutional as applied to White and ordered it dismissed with prejudice. 2013-Ohio-51, 988 N.E.2d 595, ¶ 171, 176 (6th Dist.). In reversing the felonious assault conviction, the appellate court determined that the trial court erred by charging the jury on the standard for using nondeadly force in a deadly force case and by failing to instruct the jury using the deadly force standard set forth in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). White at ¶ 105, 109. It also concluded that the trial court erred by failing to give a mistaken-belief instruction, id. at ¶ 116, 123, and by prohibiting White from testifying about the crimes that he believed McCloskey had committed, id. at ¶ 126–127. It rejected White's arguments that insufficient evidence supported the felonious assault conviction, id. at ¶ 92, and that an instruction on the lesser included offense of negligent assault should have been given, id. at ¶ 139, and it declined to rule on his other assignments of error, finding them to be moot, id. at ¶ 174.

{¶ 13} The state appealed and presented five propositions of law, which we accepted for review. 135 Ohio St.3d 1447, 2013-Ohio-2062, 987 N.E.2d 703.

Use of Deadly Force by Police

{¶ 14} At common law, a law enforcement officer had a privilege to use force in the discharge of his official duties. Swedlund v. Foster, 2003 SD 8, 657 N.W.2d 39, ¶ 40 ; 2 Torcia, Wharton's Criminal Law, Section 124, at 156, and Section 185, at 429 (15th Ed.1994); 2 LaFave, Substantive Criminal Law, Section 10.7 (2d Ed.2003). As the Supreme Court of Iowa explained in State v. Smith, 127 Iowa 534, 103 N.W. 944 (1905) :

An officer, in the performance of his duty as such, stands on an entirely different footing from an individual. He is a minister of justice, and entitled to the peculiar protection of the law. Without submission to his authority there is no security, and anarchy reigns supreme. He must, of necessity, be the aggressor, and the law affords him special protection.

Id. at 537–538, 103 N.W. 944. See also Stinnett v. Virginia, 55 F.2d 644, 647 (4th Cir.1932) ("When the state sends an officer forth to arrest a felon, she says to him to make the arrest peaceably if he can, forcibly if he must. If in making the arrest he uses force, he should not be treated as a criminal, if he uses only such force as is reasonably necessary under the circumstances").

{¶ 15} In making arrests for felonies and misdemeanors, an officer could use whatever force was reasonably necessary—including deadly force—if the suspect offered resistance; and in the case of a fleeing felon, deadly force could be used even if the offender presented no imminent threat of harm. 2 Torcia, Wharton's Criminal Law, Section 124, at 156; 2 LaFave, Substantive Criminal Law, Section 10.7, at 173–178; Schumann v. McGinn, 307 Minn. 446, 458, 240 N.W.2d 525 (1976).

{¶ 16} In those circumstances, the officer did not face criminal liability; injuring the offender did not constitute an assault, and a killing was not murder. See Tennessee v. Garner, 471 U.S. at 12, 105 S.Ct. 1694, 85 L.Ed.2d 1, quoting 2 Hale, Historia Placitorum Coronae 85 (1736) (if officers pursue suspected felons who " ‘resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, * * * it is no felony’ "); Lynn v. People, 170 Ill. 527, 537, 48 N.E. 964 (1897) (explaining that when an officer kills a resisting suspect, the killing is justified); Jett v. State, 151 Ark. 439, 236 S.W. 621, 624 (1922) (if an officer making an authorized arrest "kills the person he thus seeks to arrest, he is blameless, for he did no more than his duty required him to do"); 2 Torcia, Wharton's Criminal Law, Section 124, at 165–166 ("With respect to a felony or misdemeanor, * * * if the...