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State v. Whitman

Court of Appeals of Ohio, Fifth District, Stark

July 23, 2018

STATE OF OHIO Plaintiff-Appellee

          Appeal from the Stark County Court of Common Pleas, Case No. 2016CR2255


          For Defendant-Appellant: GEORGE URBAN

          Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.


          DELANEY, JUDGE

         {¶1} Appellant Richard Stanton Whitman appeals from the May 5, 2017 Judgment Entry of conviction and sentence of the Stark County Court of Common Pleas. Appellee is the state of Ohio.


         {¶2} The following facts are adduced from the record of appellant's jury trial.

         {¶3} Appellant is the brother of Janeann Whitman. On November 28, 2016, appellant was living in an upstairs bedroom in Janeann's residence on Hursh Place Northwest in the city of Canton. Janeann's niece, Kendra Brabazon, also lived at the residence with her two small children. Kendra was staying at the house temporarily. Consequently, Kendra's boxes, furniture, and mattresses were scattered around the house.

         {¶4} Appellant is described as a chronic alcoholic who was usually intoxicated, and Kendra described appellant as visibly intoxicated on November 28, 2016. That morning, a dispute arose while Janeann was at work. Kendra and appellant briefly argued when appellant came downstairs and told Kendra to take his dogs out; she said she would "in a minute." Appellant returned upstairs but came back down to find Kendra's children pulling toys out of boxes. Appellant became agitated because he had cleaned the toys up at one point. Appellant told Kendra and the children to put the toys away but Kendra said they didn't have to. Appellant briefly returned upstairs, came back down, grabbed a box of toys, and took it outside. He placed Kendra's property in the front yard and said Kendra and her children could "get out."

         {¶5} Kendra called Janeann at work and told her about the confrontation. Kendra and the children then left the house to go to the restaurant where Janeann was working. Janeann called appellant and told him to put Kendra's property back in the house and chided him that it wasn't up to him to throw Kendra out of the house.

         {¶6} Janeann also called a friend, David Eadie, and asked him to go to the house to make sure appellant brought Kendra's property back inside. Eadie and Janeann had worked together, dated, and lived together at one point. Their relationship was now described as "friends" but Janeann and Kendra acknowledged they relied on Eadie to help them frequently, with virtually "everything." Eadie agreed to meet Kendra at the house upon her return.

         The first encounter between Eadie and appellant: Eadie admonishes appellant for putting Kendra's property out

         {¶7} Eadie met Kendra at the house between 12:30 and 1:00 p.m. He walked into the house with Kendra and her children and appellant came downstairs. Eadie said he wanted to talk but appellant told him to get out. Eadie told appellant it was up to Janeann who was allowed to be in the house, and told appellant to leave Kendra and her kids alone. Kendra also testified that Eadie accused appellant of laying around drinking all day, not helping with bills, and said if there was a problem he (Eadie) would take care of it. Appellant told Eadie to "take care of it, then" but Eadie said he wasn't going to touch appellant in front of the children.

         {¶8} Appellant went back upstairs and Eadie stayed for a while, talking to Kendra and the kids. Eadie left. Janeann came home from work and Kendra left for a short period.

         {¶9} When Kendra returned to the house, she found Janeann very upset. Janeann was sitting on the couch texting appellant, even though he was in his bedroom upstairs. Janeann told Kendra appellant had taken her gun, a Smith and Wesson .9 millimeter, broken it up, and buried it in pieces in the backyard. Janeann went upstairs and argued in person with appellant. Kendra heard her say, "Don't point that gun at me."

         {¶10} Kendra climbed over the baby gate at the bottom of the steps and went upstairs to see what the problem was. She saw appellant holding a .22 shotgun and asked what was going on. Janeann said appellant took her gun and was now pointing the rifle at her and at himself. Kendra told Janeann she was taking her kids and leaving. Janeann told Kendra she didn't know what to do about appellant; she considered calling the police and trying to get him put in jail to sober up, or to get a psychiatric evaluation. She also considered calling Eadie and asking him again to "handle it." Kendra told her to call the police and left with her kids; she went to a neighbor's house down the street.

         Second encounter: Eadie takes .22 rifle from appellant

         {¶11} Janeann testified on behalf of appellant at trial. She acknowledged Kendra called her at work on November 28 and complained about appellant putting her things outside; Janeann called David Eadie and asked him to handle it while she was at work.

         {¶12} Janeann described the incident with appellant pointing the .22 rifle in greater detail. Upon her return home from work, appellant texted her from the bedroom and the two argued. She went upstairs to confront him and found him sitting on his bed with the .22 rifle. Janeann testified appellant pointed the rifle first at her and then at himself, but claimed she never felt threatened and he didn't make any threats toward her; instead, Janeann believed he might harm himself. She said she yelled at him and went back downstairs. She hoped to distract appellant from hurting himself.

         {¶13} Downstairs, Janeann texted another sister and said she intended to call the police, but her sister responded that appellant would "go crazy" if she called the police. Janeann decided instead to call Eadie again, to "talk him down." Eadie agreed to return to speak to appellant and Janeann went back upstairs. Appellant remained in his room and she went to her own room.

         {¶14} Janeann realized Eadie had returned when she heard a loud "wham," which she said was Eadie slamming appellant against the wall. Janeann came into the room and tried to pull the two apart, and all three fell to the ground. Janeann said Eadie was on top of appellant with his hand on his throat. At one point, though, appellant had a machete in his hand. Eventually the scuffle ended and Eadie took whatever weapons he could find out of the room, including the machete and the .22 rifle. Janeann went downstairs and Eadie also came down, placing the rifle behind a mattress.

         {¶15} Eadie then attempted to lure appellant downstairs by yelling to him that he was letting appellant's dogs out.

         Third and fatal encounter: Appellant fires on Eadie three times

         {¶16} Janeann said Eadie went back upstairs to investigate a strange green light on the wall. As he climbed the steps, Janeann said she didn't want him to return upstairs because he "just kept beating on [her] brother." Eadie continued upstairs and Janeann grabbed her phone.

         {¶17} She heard three shots from upstairs and ran from the house calling 911. Appellant came downstairs and told her he shot Eadie. When she asked why, he said "he was coming after me again."

         {¶18} In the meantime, when she arrived at the neighbor's house, Kendra discovered a missed call from Janeann and called her back. Janeann said Eadie was at the house beating up appellant, requiring Janeann to get in between them. Kendra told her to call the police but Janeann said her phone was about to die and asked Kendra to call instead. Kendra refused and Janeann hung up.

         {¶19} Kendra waited five minutes and tried to call Janeann again. There was no answer. She called Eadie's phone next and he didn't answer. Kendra felt uneasy. Janeann called her back and told her appellant had just shot Eadie and there was blood everywhere.

         {¶20} Upon cross-examination of Janeann by appellee, a different version of the dispute between appellant and his sister emerged. Janeann acknowledged appellant is a chronic alcoholic and that his all-day drinking caused the problems that led to the shooting. She also acknowledged she habitually called Eadie to deal with her problems because she knew he would respond instantly and take care of whatever she needed.

         {¶21} On the day of the shooting, she texted back and forth with appellant, arguing over his treatment of Kendra and the disappearance of Janeann's .9 millimeter firearm. The texts between Janeann and appellant were introduced at trial as appellee's Exhibit 15. Janeann and detectives scrolled through messages on her phone on video, revealing the extent of their argument. Appellant taunted Janeann for sending Eadie to the house to deal with him.

         {¶22} Appellant had taken Janeann's firearm from a drawer in her bedroom, and both Janeann and Eadie were aware he had it, although appellant claimed to have dismantled it and buried it in pieces throughout the backyard. Janeann knew appellant had access to two guns, her own .9 millimeter and the .22 rifle. During her own confrontation with him, appellant had pointed the .22 rifle at Janeann and at himself. She believed appellant was despondent because he knew she was leaving in January to take a new job and no one else would take him in. The family was sensitive to threats of suicide because another brother of Janeann and appellant had killed himself.

         {¶23} Janeann acknowledged the first person who came to mind to help her was David Eadie, and she called him for the express purpose of getting the guns away from appellant. Despite Kendra advising her to call the police, she called Eadie instead and repeatedly asked him to deal with appellant, who was armed and drunk.

         {¶24} Janeann acknowledged that after the shooting, while she was on the phone with 911, appellant laughed in the background and she had to tell him "there's nothing funny."

         Investigation and appellant's statement to detectives

         {¶25} Several Canton police officers sped to the scene of the reported shooting. They found a male and a female on the porch of the Hursh Place address, later identified as appellant and Janeann. Appellant staggered and seemed intoxicated; he mumbled and slurred his speech. Appellant was cuffed and placed in a patrol car and officers cleared the house. They found David Eadie deceased in the upstairs hallway. The .9-millimeter Smith and Wesson firearm was located on the bathroom sink with the magazine out and chamber empty.

         {¶26} Appellant was transported to the Canton Police Department Detective Bureau for questioning. Detective Prince spoke to appellant about six hours after he arrived; he was initially too intoxicated to make a statement. He was given time and food to allow him to sober up.

         {¶27} Appellant said there was an argument and he shot Eadie three times. He said he "couldn't have made a clearer shot on a deer [he] was trying to kill." Eadie had taken the .22 rifle and appellant's cell phone during the earlier encounter with appellant, when they fought and were separated by Janeann. Appellant told Detective Prince that Eadie struck him so hard in the stomach that he defecated on himself.

         {¶28} Eadie went downstairs after the physical altercation and yelled to appellant, "You've got two minutes." He then told appellant he would let appellant's dogs loose out the front door. Rather than go downstairs, appellant remained in his bedroom and armed himself with the .9-millimeter firearm. Appellant claimed he was aware of an incident in which Eadie had "shot up the house," so he didn't want Eadie to get the .9 millimeter.

         {¶29} Appellant thus sat on the corner of his bed with the firearm cocked, and as Eadie came up the steps and into the bedroom, appellant said "No" and fired three times. Appellant said he didn't want to hurt anyone but he also did not want to be beaten by Eadie again. He said he didn't know if Eadie had anything in his hands as he came up the stairs and he "didn't need to know" if he had anything in his hands: appellant didn't want to be hit again.

         {¶30} Appellant acknowledged Eadie came back upstairs in search of the .9 millimeter, intending to take it from him. When asked why appellant didn't just give the gun back to Janeann, he claimed she never asked for it.

         {¶31} Appellant did not complain of any injuries to detectives and no visible injuries were observed.

         {¶32} Three shell casings were found inside the bedroom. Eadie was at the doorway of appellant's bedroom; his feet were at the doorway and his head was extended down the hallway, almost to the stairs. Eadie had been shot in the left side of his head, in the chest, and above his lip.

         {¶33} The .22 Mossberg rifle was also recovered from the house; it was found ...

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