State v. White

• Decision Date: 30 April 2002
• Docket Number: No. WD 58462.,WD 58462.
• Citation: 81 S.W.3d 561
• Parties: STATE of Missouri, Respondent, v. Theodore W. WHITE, Appellant.
• Court: Missouri Court of Appeals

81 S.W.3d 561

STATE of Missouri, Respondent, v. Theodore W. WHITE, Appellant.

No. WD 58462.

Missouri Court of Appeals, Western District.

Submitted November 14, 2001.

Decided April 30, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 2, 2002.

Application for Transfer Denied August 27, 2002.

COPYRIGHT MATERIAL OMITTED

Sean D. O'Brien, Jeremy Weis, Ellen Y. Suni, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for Respondent.

Before JAMES M. SMART, JR., P.J.; HAROLD L. LOWENSTEIN, and JOSEPH M. ELLIS, JJ.

JAMES M. SMART, JR., Judge.

Appellant Theodore W. White, Jr., was convicted by a Jackson County jury on twelve counts relating to the sexual molestation of his adoptive daughter Jami White. Jami was twelve years of age at the time she made the accusations of abuse. Mr. White was convicted of two counts of rape, three counts of child molestation in the first degree, two counts of child molestation in the second degree, four counts of statutory sodomy, and one count of furnishing pornographic material to a minor. Mr. White was sentenced to a period of fifty years for Counts I and XII; seven years for Counts II, V and VII; twenty-five years for Counts III, IV, VI and XI; one year for Counts VIII, IX and X. The court ordered each of the sentences to run concurrently.

Appellant raises six points on appeal. The first three points relate to rulings stemming from the use by Dr. Sherman, Jami White's counselor, of "traumatic incident reduction" techniques to help Jami to remember incidents of abuse, and to discovery rulings related to Dr. Sherman's techniques. Mr. White's fourth point on appeal relates to alleged prosecutorial misconduct that occurred when the State failed to disclose to Mr. White's attorneys the fact that the chief investigator of the alleged crimes was engaged in a romantic relationship with Mr. White's wife. The final two points involve evidentiary rulings related to a letter written by Jami White to her high school counselor and a prior false allegation of abuse. In addition to responding to appellant's points on appeal, the State also files a motion to dismiss based upon the escape rule, which was taken with the case. For the reasons that follow, we deny the State's motion, reverse the conviction, and remand for a new trial.

Statement of Facts

The allegations of child sexual abuse in this matter arose while a dissolution of marriage action was pending between Tina White and Ted White. Mrs. White had two children from a previous marriage, Jami White, born June 18, 1985, and Danny White. Mr. White adopted these children. A third child, Tanner, was born to the marriage in 1996.

Mr. White was an entrepreneur who raised capital for start-up corporations. In August of 1997, there was friction in the marriage. The Whites were discussing divorce, and there was a brief separation in the fall of 1997. Mr. White moved out of the house, and Mrs. White filed for a divorce. After reaching an agreement that one of Mr. White's corporate officers would pay Mrs. White a monthly allowance, Mr. White moved back into the house. The petition for dissolution of marriage, however, was not dismissed.

On March 21, 1998, Mr. White and Jami's brother, Danny, went to a Boy Scout camp for the weekend. Jami, after playing basketball, came into the house and told her mother, "Dad's been touching me." Jami and her mother then talked for approximately two hours. Jami related specific instances of abuse while Mrs. White took notes and asked Jami about what had happened to her. Tina White then called the Lee's Summit police. The first officer to respond to the call was Officer Richard Bledsoe. The officer first discussed the allegations with Mrs. White and then questioned Jami about the alleged occurrences. Jami's paternal grandmother arrived as Officer Bledsoe was finishing his interview. Jami subsequently told her grandmother about one incident and her mother about another.

The following day, Mr. White and Danny arrived home from the camping trip. Mrs. White confronted Mr. White with the allegations. He denied the allegations.

Two days after Jami first made the allegations of abuse, she first met with counselor Richard Sherman. Dr. Sherman is a licensed professional counselor. Dr. Sherman conducted numerous sessions with Jami. In those sessions, he used what he described as a "traumatic incident reduction technique" in which "deep muscle relaxation" was used to place Jami in a "desensitized, relaxed state." Sherman then questioned Jami about the allegations of abuse, having her repeat each scenario four to six times, so he could, in his words "reframe" her memories of abuse. According to evidence presented at trial by Mr. White in an offer of proof, the technique Sherman used is similar in effect to hypnosis. It is undisputed that Jami "discovered" at least two new and additional incidents of abuse as a result of her sessions with Dr. Sherman.

Subsequent to the first visit with Dr. Sherman, Detective Richard McKinley was assigned to this case. Detective McKinley was responsible for investigating most of the sexual abuse cases in Lee's Summit. During his investigation, McKinley reviewed Jami's diary. Finding there was no evidence contained in the diary which would incriminate Mr. White, he returned the diary to Jami rather than retaining it. The diary subsequently was missing or lost, and was unavailable at the time of trial.

By the time the investigation finished, Jami had made at least fourteen allegations of abuse covering a time span of June 1995 until March 1998. Detective McKinley executed the necessary probable cause statement, and the State filed charges against Mr. White in April of 1998.

At trial, Jami White described various incidents of abuse. Her mother offered minor corroboration, mentioning one time she encountered White and Jami in the master bedroom. Jami was fully clothed, but White was running toward the bathroom with his shorts not entirely up. He explained that he had a sudden attack of diarrhea, an explanation which Mrs. White said she accepted at the time. On another occasion, White got up from watching TV in the family room with Jami. The two had been sharing a blanket. Mrs. White said she noticed that Mr. White appeared to be sexually aroused. Although not strongly corroborative, Mrs. White's testimony as to these incidents was consistent with specific incidents which Jami described.

After the jury returned its verdict, but before the sentencing hearing was held and the motion for new trial was due, one of Mr. White's attorneys received a telephone call from one of Mrs. White's co-workers informing him that Mrs. White was romantically involved with Detective McKinley, and had been for some time. Armed with this information, counsel called the prosecutor's office. In a conversation on March 11, 1999, counsel for the State admitted knowledge that Mrs. White and Detective McKinley had been involved in a relationship for "nearly a year." The State's attorney also indicated that its office had been aware of the relationship almost as soon as it had begun. When asked why such information about the relationship had not been disclosed, the State's attorney indicated that a meeting had been held in the prosecutor's office, and a decision was made that the information was not relevant or material to the case. Mr. White's attorneys filed a motion for new trial, including a claim of prosecutorial misconduct, and a motion to disqualify the Jackson County prosecutor's office from proceeding further. The motions were denied.

Prior to the sentencing hearing, Mr. White fled to Costa Rica. As a result, sentencing was delayed for approximately eleven months. Law enforcement agencies undertook a nationwide manhunt. Once Mr. White was located, the State transported Mr. White from Costa Rica after Mr. White waived an extradition hearing. After Mr. White was returned to the state, the trial court entered its sentence and this appeal followed.

Escape Rule

As a preliminary matter we take up the State's motion to dismiss, which is based upon the "escape rule." The State argues that White's appeal should be dismissed because he fled the United States after the jury returned its verdict but before the date set for sentencing. The State argues that it was forced to incur costs in finding and extraditing White back to Missouri for sentencing. By fleeing the country, the State argues, White showed contempt for the authority of the court and failed to abide by its rules and decisions even though now he seeks the protection of the that same judicial system. In other words, if White's escape is overlooked, the State argues, the criminal justice system suffers. Juxtaposed against the State's claim of harm to the criminal justice system, White reminds us, is the harm to the criminal justice system if the prosecutorial misconduct is allowed to stand. Thus, White argues, this court should exercise its discretion and hear the appeal. We agree.

"The escape rule operates to deny the right of appeal to a defendant who escapes justice." State v. Troupe, 891 S.W.2d 808, 809 (Mo. banc 1995). This judicially created doctrine first appeared in Missouri in the case of State v. Carter, 11 S.W. 979, 98 Mo. 431 (1889), when the defendant escaped while his appeal was pending. "The rationale expressed for the application of the escape rule was the need for a court to have control over the defendant before rendering its decision on appeal." Troupe, 891 S.W.2d at 810. "Otherwise, the defendant `places himself in a position to speculate on the chances of reversal, meanwhile keeping out of the reach of justice, and prepared to render the judgment of reversal nugatory or not, at his option.'" Id. (quoting Carter, 11 S.W. at 980).

In the hundred plus years following Carter, the courts have subsequently advanced other justifications for the...