Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
T HE TATE OF , A PPELLEE ,
v.
B ASTON , A PPELLANT .
[Cite as
State v. Baston
,
Criminal law—Aggravated murder—Death penalty upheld, when.
(No. 97-2204—Submitted January 27, 1999—Decided May 12, 1999.) A PPEAL from the Court of Appeals for Lucas County, No. L-95-087. __________________
Johnny Baston, appellant, was charged with aggravated robbery and
the capital aggravated murder of Chong Mah. Baston waived his right to be tried by a jury, and the case proceeded before a three-judge panel. The panel found Baston guilty of all charges and, after a penalty hearing, sentenced him to death. The court of appeals affirmed. Chong Mah and his wife, Jin-Ju Mah, owned two retail stores in
Toledo. Chong Mah managed the couple’s downtown store, Continental Wigs N’ Things. In addition to wigs, the store sold team logo hats and jackets. At approximately 11:30 a.m. on March 21, 1994, Jin-Ju Mah telephoned her husband and spoke to him at the downtown store. When Chong Mah failed to answer a later call, Jin-Ju Mah became concerned. She then went to the downtown store, arriving around 5:10-5:15 p.m. She found the store unlocked and the lights on. The cash register was open and empty. In a rear storage room, Jin-Ju Mah found her husband’s body—he had been shot once through the head. Chong Mah was pronounced dead at the scene. Investigators found a single .45 caliber hollow-point slug behind the
wall paneling in the room where Chong Mah was shot. An autopsy revealed that Chong Mah had been shot in the back of the head at a range of two to three inches. Examination of the crime scene caused investigators to believe that, in addition to *2 the money in the cash register, Chong Mah’s killer had also taken team logo hats and “Starter” type jackets from the store. Also on March 21, 1994, David Smith went to downtown Toledo to
meet with his parole officer. Baston accompanied him, but was not permitted to stay for the appointment. Records indicated that Smith met with his parole officer at approximately 11:30 a.m., and that the meeting lasted ten to fifteen minutes. When Smith left the meeting, he tried to find Baston. He “beeped” Baston on his pager, but there was no response. Smith then walked back and forth between the municipal building and the county jail four times, finally finding Baston in the vicinity of the municipal court. Baston and another friend, Bobby Mitchell, were in a yellow Cadillac owned by Smith’s cousin, Michael Ridley. Mitchell first saw Baston on March 21, 1994 on River Street. Baston
was carrying a dark brown plastic garbage bag that appeared to have something in it. Mitchell passed Baston as Mitchell went to his car, before proceeding to Smith’s apartment, where he again saw Baston. Mitchell was there to see Ridley, who was also staying at the apartment. While Mitchell was at Smith’s apartment, he noticed some sports hats
lined up on an end table, as well as a revolver. A short time later, Mitchell and Baston left the apartment in Ridley’s Cadillac to pick up Smith downtown. When the two picked up Smith in front of the municipal court building, Mitchell was driving, Baston was in the passenger’s seat, and Smith got in the back seat. Mitchell overheard Smith and Baston “mumbling” to each other, and heard Baston tell Smith, “I did it.” The trio then drove back to Smith’s apartment. After news coverage of Chong Mah’s murder, an employee of a
nearby club/bar reported to police that at approximately 11:45 a.m. on the day of the murder, she saw a man carrying a plastic bag walk across a parking lot near the wig shop. The man caught her attention because he was heavily dressed despite it being unseasonably warm that day, and he was wearing a team logo jacket, and *3 another jacket draped over his shoulders. She later said the man could have been Baston, but was unable to positively identify him. A patron of the bookstore adjacent to or near the wig shop told police that he thought he heard a gunshot shortly before noon on March 21, 1994. A few days after the murder, Patricia Chininis contacted the Toledo
Police. Patricia Chininis’s daughter, Deana, was Smith’s girlfriend. Both women also knew Baston. Patricia Chininis related that on the day before the shooting, Baston and Smith were at her house. In moving Baston’s jacket, Patricia Chininis noticed it was unusually heavy. She felt the jacket, realized there was a gun in it, and told Baston and Smith never to come back to her house with a gun. Deana Chininis stated she previously saw both Smith and Baston with revolver-type guns and hollow-point bullets. Furthermore, the day or so after the murder Baston offered to give Deana’s girlfriend a Starter jacket. After receiving this information, police obtained a search warrant for
Smith’s apartment (where Baston was staying). Police seized four sport logo hats and several Starter jackets. A wig store employee identified these articles as being similar to those the store carried. The employee, an African-American, also recalled that three weeks prior to the killing three African-American males were in the store acting suspiciously. The employee overheard one of the three say to another: “No, it’s a sister in here,” before they left. The employee identified Baston as one of the three. Smith, Deana Chininis, and two other persons were at the apartment
when police executed the search warrant. While all four went to the police station, only Smith was cooperative. After interviewing Smith, the police obtained an arrest warrant for Baston. Baston was arrested in Columbus, Ohio, at a church function. He
was carrying a .25 caliber semi-automatic pistol and had a .45 caliber semi- automatic revolver in his luggage. The .45 caliber slug recovered at the crime scene *4 matched those test-fired from the .45 caliber revolver seized from Baston. In an interview with Columbus police shortly after his arrest, Baston admitted participating in the robbery of the wig shop, but denied shooting Chong Mah. According to Baston, an accomplice named “Ray” took Chong Mah into the back room and shot him. Baston denied any intention to kill anyone, and claimed that Ray acted without Baston’s prior knowledge. Baston was indicted on two counts of aggravated murder and one
count of aggravated robbery with a firearm specification. Each aggravated murder count carried a capital specification pursuant to R.C. 2929.04(A)(7). Baston pleaded not guilty and elected to be tried before a three-judge panel. Baston contested that he was the principal offender in the aggravated
murder. William Nappins, a defense witness, testified that while on his way to an Alcoholics Anonymous meeting at approximately 11:45 a.m. on the morning of the murder, he saw a tall, dark-skinned African-American male emerge from either the wig store or the book store next to it. The man was dressed in black and carrying a bag. Nappins’s description of the man did not match that of Baston. The defense argued that David Smith was the Ray that Baston had
named as the actual triggerman during his Columbus interrogation. The defense asserted that the presence of another gunman at the wig shop robbery created a reasonable doubt as to the capital specifications. The panel nevertheless found appellant guilty on all counts and specifications. The panel sentenced Baston to death on one of the aggravated
murder counts, and to terms of imprisonment for both the aggravated robbery and the gun specification. Although it sustained three of Baston’s assignments of error, the court of appeals affirmed Baston’s convictions after curing the errors with its independent review. The state did not file a cross-appeal. The cause is now before this court upon an appeal as of right.
__________________
Julia R. Bates , Lucas County Prosecuting Attorney, and Craig T. Pearson , Assistant Prosecuting Attorney, for appellee.
Jeffrey M. Gamso and Spiros P. Cocoves , for appellant.
__________________ OOK , J. In this appeal, Baston has raised eight propositions of law. Finding
none meritorious, we affirm his convictions. In addition, we have independently reviewed the record, weighed the aggravating circumstance against the mitigating factors, and examined the proportionality of the death sentence in this case in comparison to the penalty imposed in similar cases. Upon a complete review of the record, we affirm Baston’s convictions and sentences.
Jury Waiver In his first proposition of law, Baston argues that a jury waiver in a
capital case is not made knowingly, intelligently, and voluntarily unless the
defendant is aware of all the implications of the waiver. Baston cites this court’s
decision in
State v. Post
(1987), 32 Ohio St.3d 380, 384, 513 N.E.2d 754, 759,
which reaffirmed that “this court indulges ‘ * * * in the usual presumption that in
a bench trial in a criminal case the court considered only the relevant, material, and
competent evidence in arriving at its judgment unless it affirmatively appears to the
contrary.’ ”
Id
., quoting
State v. White
(1968),
one of the syllabus, we held that “[t]here is no requirement for a trial court to
interrogate a defendant in order to determine whether he or she is fully apprised of
the right to a jury trial.” “The Criminal Rules and Revised Code are satisfied by a
*6
written waiver, signed by the defendant, filed with the court, and made in open
court * * *.”
Id.
at 26,
with Baston. Baston argues that because that colloquy appeared thorough, but did
not include reference to the appellate court presumption that the three-judge panel
considered only relevant evidence, Baston was actually misinformed and
consequently his plea was not intelligent, voluntary, and knowing. Baston cites in
support
State v. Ruppert
(1978),
question of whether a jury waiver, which may satisfy R.C. 2945.05, also satisfies
the federal and Ohio Constitutions. There is no constitutional case law directly
addressing what inquiries must be made when a defendant waives his right to trial
by jury. The cases addressing waiver of fundamental constitutional rights
emphasize that trial courts must apprise the defendant of the “relevant
circumstances and likely consequences” to determine whether the defendant’s
waiver is made freely and intelligently. See,
e.g
.,
Brady v. United States
(1970),
397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747, 756 (right to trial);
Johnson v. Zerbst
(1938),
{¶ 21} Here, the trial court, as a threshold matter, asked both defense counsel whether they had discussed with Baston “the differences in the capital context between a jury trial and a trial to a three-judge panel.” Counsel related that they had discussed this with Baston, and that Baston “underst[ood] those differences and his rights in all aspects.” Further, the trial court advised Baston that he had the right to have a jury trial; that this meant twelve persons would be chosen, with input from his counsel; that twelve persons would have to be unanimous in their verdict of guilt; that if the jury found him guilty, the jury would also determine the penalty and make a recommendation to the trial judge; that the waiver would result in a trial by three judges; that the three judges would have to be unanimous in their finding of sentence; and that if even one judge did not think that death was appropriate, it could not be imposed. Although the trial court did not specifically refer to the standard of review that would be applied on appeal, Baston cites no authority requiring such reference. This proposition of law is overruled.
Trial Phase Witness Issues In Proposition of Law No. II, Baston argues that three evidentiary
rulings by the trial court deprived him of his constitutional rights. Coroner Testimony: First, Baston argues that the trial court erred in
allowing Dr. Diane Scala-Barnett, a deputy coroner in Lucas County, to provide expert testimony regarding (1) the distance from gunshot to wound; (2) blood spatter, pooling, droplet, and transfer patterns; and (3) cause of death. Baston argues that she was not qualified as an expert. Evid.R. 702(B) addresses the qualifications necessary to accord a
witness “expert” status. Under the rule, a witness may qualify as an expert by
reason of her knowledge, experience, skill, training, or education. Neither special
education nor certification is necessary to confer expert status upon a witness. See
State v. Boston
(1989),
deputy coroner whose responsibilities include attending scene investigations and performing medical-legal autopsies to determine the cause and manner of death. The questioning concerning her education was somewhat sketchy, in that she stated she was licensed to practice in Ohio and Illinois, but failed to specify what she was licensed to practice. She did however indicate that she was board certified in both pathology and forensic pathology. While the state never formally tendered Dr. Scala-Barnett as an
expert, during the course of questioning to qualify her as an expert, defense counsel
never objected or challenged her qualifications to testify as to the distance between
the gun’s muzzle and the wound, and as to the cause of death. Thus, Baston waived
all but plain error. Crim.R. 52(B);
State v. Williams
(1977),
not rise to the level of plain error. Her experience as a deputy coroner and her board certifications in pathology and forensic pathology qualify her to testify regarding the cause of death and the distance between the gun’s muzzle and the victim’s head at the time the gun was fired. Further, some of this testimony was the same as the testimony of Joshua Franks, a senior criminalist at the Forensics Laboratory, whose qualifications were stipulated to by defense counsel. *9 Defense counsel did, however, object to Dr. Scala-Barnett’s
testimony as not being expert in blood spatter. The court sustained defense
counsel’s objection. When the witness returned to the subject of blood spatter,
counsel did not object. Dr. Scala-Barnett then testified how the blood-spatter
evidence led her and the police criminologist Detective Chad Culpert to discover
the spent slug behind the paneling. This testimony was similar to that of Detective
Culpert, whose qualifications were not questioned. See
State v. Biros
(1997), 78
Ohio St.3d 426, 452-453,
discretion when it permitted the prosecutor to question witness David Smith about the contents of a tape-recorded statement that the panel had just ruled inadmissible. In his taped statement Smith implicated Baston based on a prior conversation between them. The state called Smith as a witness in its case-in-chief. Smith related information about the events of the morning of the murder, but when it came to information concerning his conversation with Baston, he did not recall what he had told the police concerning the conversation. The prosecutor then questioned Smith about the content of the statement, and the defense objected. During a sidebar, the prosecutor indicated that he had doubts about Smith, and that *10 on the previous Friday, Smith had told the defense investigator that he was going to get on the stand and say he did not remember anything. The prosecutor asked to be able to play the witness’s previous statements to the witness based on surprise under Evid.R. 607. The court sustained the defense objection based on Evid.R. 607, but
indicated that it would allow the statement to be used under Evid.R. 803(5), as a recorded recollection. The tape was played for Smith, outside the presence of the panel. When the state resumed questioning, Smith testified that he did not recall making the statements recorded on the tape and did not recall whether they were true. Smith claimed he had blocked a lot of “stuff” out of his memory. The prosecutor questioned Smith on whether his recollection was refreshed after listening to the tape recording, and Smith said “No.” After struggling through the questioning of Smith, the state sought to play the tape recording of the police interview, or to provide a transcript of the interview for the panel. Defense counsel objected, arguing that the state had not developed the proper foundation required to play the tape. The court sustained the objection, and the tape was not played, nor was a transcription provided to the panel. Once the court ruled that the tape could not be played, the state asked
Smith a series of questions based on his statements to police. In each question Smith was asked whether he recalled making a certain statement to the police; and each time he indicated he did not recall. The prosecutor followed up by asking whether he heard the tape, followed the transcripts, and whether it was his voice on the tape. Smith indicated he heard the tape and followed along, but that it did not refresh his recollection. Baston now argues that the questioning by the prosecutor allowed
the state to get in “through the back door” what it could not get in through the front
door. Baston relies on
State v. Holmes
(1987),
{¶ 36} Since the trial court ruled that the statement could be used pursuant to Evid.R. 803(5), it was not error for the state to question Smith concerning the statement. Baston has not alleged that the trial court erred in allowing the use of the statement pursuant to Evid.R. 803(5). Further, the case was tried before a three-judge panel, and the usual
presumption that the judges considered only relevant evidence applies.
State v.
Post
,
members of the three-judge panel questioned witnesses called to testify by the parties. Baston alleges error in the panel’s questioning. He argues that the fact- finder, in this case the panel, should take facts as presented by the parties and should not take on the role of seeking facts. Baston cites four examples in the transcript; however, not once was
an objection entered to the court’s questioning; therefore, Baston waived all but
plain error.
State v. Williams
,
in an impartial manner, whether called by itself or a party.” Baston concedes that
*12
this is the law, but asks this court to find the rule unconstitutional, since it interferes
with the fundamental right to fair trial in the adversary system. While it is possible
to cross the line from helpful clarification to unwarranted intervention, that did not
happen here. See, generally,
State ex rel. Wise v. Chand
(1970),
to clarify the witnesses’ testimony, as is contemplated by the rule. See
State v.
Lieberman
(1961),
issues has merit, his second proposition of law is overruled.
Prosecutorial Misconduct Uncharged Capital Specification: Baston was charged with
alternative counts of aggravated murder under R.C. 2903.01. Attached to each count was a capital specification that the murder was committed while Baston was committing an aggravated robbery. During the state’s closing argument in the penalty phase, the prosecutor argued:
“[A]nd what we have to look at are the aggravating factors that were committed in this case * * *. This was not—this was not any kind of an attempt to do anything but eliminate a witness.” While committing an aggravated murder to escape detection is an
aggravating circumstance under R.C. 2929.04(A)(3), that circumstance was not
charged in Baston’s case. Baston argues that the prosecutor effectively amended
the indictment by arguing that the murder was committed to eliminate a witness.
In
State v. Dilley
(1989),
comments, we consider only whether these statement’s rise to the level of plain
error.
State v. White
(1998),
potential witness” in its R.C. 2929.03(F) opinion, the independent appellate
reweighing of the aggravating circumstance Baston was found guilty of committing
against the mitigating factors presented cures this defect. See
State v. Lott
(1990),
Baston relied upon the mitigating factor of residual doubt in the penalty phase of his case. During closing argument, the prosecutor remarked:
“I have attempted to figure out what residual doubt is. It still isn’t very clear to me. And if the residual doubt can be defined in this case, then I suggest to the Court that they allow the Supreme Court to make the determination here as to whether residual doubt exists. I don’t see it.” The prosecutor’s argument here questioning the validity of residual
doubt as a mitigating factor was prescient in that this court later rejected residual doubt as a mitigating factor. State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112, syllabus. But, we respond here only to the narrower argument of defendant that it would be misconduct for a prosecutor to urge a court simply to ignore residual doubt while that factor continued to be recognized in the decisional law. Baston argues that the prosecutor’s remarks urged the panel to
disregard its statutory duty to consider residual doubt. Baston’s counsel did not object to the prosecutor’s statement. And the comments had no effect on the outcome of the trial because contrary to the prosecutor’s urging, the panel examined the factor of residual doubt. *15 Since neither of Baston’s prosecutorial misconduct arguments
provides a basis for vacating the death sentence, we overrule this proposition of law.
Appellate Court Reweighing In the court of appeals, Baston raised three assignments of error
addressing errors in the trial panel’s opinion filed pursuant to R.C. 2929.03(F): (1) erroneous consideration of victim-impact statements, (2) consideration of possible future criminal behavior, and (3) reliance on the nature and circumstances of the offense as an aggravating circumstance. The court of appeals sustained all three assignments of error. Yet, the court affirmed the sentence of death after independently weighing the correct aggravating circumstance against mitigating factors. The state did not cross-appeal the court of appeals’ findings on the
three assignments; therefore, the substance of those assignments of error is not
before us. Baston now argues that the appellate reweighing could not cure the
errors because the trial court’s R.C. 2929.03(F) opinion demonstrates that the panel
had a “clear and evident bias” against Baston. This bias, Baston asserts, denied him
a fair trial by a neutral fact-finder. He claims that the trial court’s opinion
demonstrates structural error that could not be cured by independent reweighing by
the appellate court.
State v. Esparza
(1996),
court’s bias. The court wrote that the victim was “a man of uncommon
accomplishment, courage, enterprise and decency * * * [and] a good husband, kind
father, close brother, and warm friend.” The panel stated that appellant’s “adult
[criminal] record was minor in nature, owing large part to the fact that he was barely
*16
twenty years of age at the commission of this offense.” And Baston cites the court’s
reference to him as a “gun-toting, false-macho, selfish and violent mess.”
When read in the context of the entire opinion, we do not find that
the portions cited exhibit bias. The opinion, as a whole, belies that the panel
“display[ed] a deep-seated favoritism or antagonism as to make fair judgment
impossible.”
Liteky v. United States
(1994),
Constitutionality of Death Penalty Baston argues that Ohio’s capital sentencing scheme results in cruel
and unusual punishment in violation of the Eighth Amendment to the United States
Constitution, and violates other federal and Ohio constitutional provisions. The
same arguments, however, have been examined and disposed of in numerous cases.
See
State v. Jenkins
(1984),
Proportionality Review
{¶ 57} In his sixth proposition of law, Baston asks the court to revisit State v. Steffen , at the syllabus, concerning the universe of cases to be considered by an appellate court when conducting the proportionality review required by R.C. 2929.05(A). Baston presents no new arguments relating to this issue, and, therefore, based upon Steffen , this proposition is overruled.
Independent Sentence Review In his seventh and eighth propositions of law Baston argues that his
death sentence is not appropriate and is disproportionate to sentences imposed in similar cases. We resolve these issues pursuant to our statutorily mandated independent review. R.C. 2929.05(A). The trial court found that the two counts of aggravated murder were
allied offenses, and sentenced Baston to death on Count Two, the aggravated murder of Chong Mah in the course of an aggravated robbery. The evidence of record supports the finding that Baston committed the aggravated murder of Chong Mah, while Baston was committing, attempting to commit, or fleeing immediately after committing or attempting to commit aggravated robbery. Moreover, the evidence establishes that Baston was the principal offender in the aggravated murder. Against this aggravating circumstance we weigh the nature and
circumstances of the offense, the history, character, and background of the offender, and the applicable factors enumerated in R.C. 2929.04(B)(1)-(7). It is undisputed that only R.C. 2929.04(B)(4) (youth of offender) and R.C. 2929.04(B)(7) (other relevant factors) are implicated in this case. We find that the nature and circumstances of the offense do not offer
mitigating value. Baston shot Chong Mah in the back of the head at a range of two to three inches with a .45 caliber revolver. *18 Several of Baston’s relatives and acquaintances testified about his
history, character, and background. Baston’s biological father, Edward L. Sample, testified that he never saw Baston until he (Baston) was about a year old. Baston’s parents never married. Baston’s father spent very little time with him. Baston’s biological mother was unstable, and Baston stayed mostly with his maternal grandmother, although Baston lived with his father and his father’s wife for short periods of time when he was one or two years old. Eventually Baston’s biological parents gave up their parental rights and let his father’s sister (Baston’s aunt) adopt him. Baston’s brother (through adoption), Richard R. Baston, was twelve
years older than Baston. Richard testified that Baston never really felt like he was a part of their family. He recalled that on one occasion, while Baston was living with his biological father, Baston was taking a bath and was held under the water for a period of time by his father. Richard also recalled that Baston was severely beaten, which led to Richard’s mother asking Baston’s father whether she could adopt Baston. Richard felt that Baston never got over being rejected by his parents. Richard also felt the court system failed Baston when Baston first got into trouble as a juvenile. Baston participated in church activities with the Glass City Church
of Christ. One of the youth advisors, Wayne D. Henderson, knew Baston through the church and related that Baston was very artistic. Baston would do what he was told, and he never had any problems with him. Baston interacted well with children. The minister of the church, Rick Hunter, told the panel that Baston had done some artwork for books that Hunter was writing and that Baston was always cooperative and willing to help on projects. Baston had attended church regularly prior to his arrest, and the minister had been meeting Baston regularly since his arrest.
{¶ 65} Baston’s high school counselor told the court that Baston had a good heart, but that his past would get in his way. Baston could not get beyond the fact that his biological parents had deserted him.
{¶ 66} Tommie Davis, Baston’s adoptive mother, obtained custody of Baston when he was two. While visiting her brother (Baston’s father), she noticed that Baston was treated differently than her brother’s other children, and thereupon asked for custody of him. When she picked Baston up to take him home with her, he was wearing wet underwear and a dirty undershirt. He had no clothes. Tommie was not married at the time, but later married Leroy Davis, who never acted like a father toward Baston. We accord some mitigating weight to Baston’s history, character,
and background evidence. See
State v. Spivey
(1998),
Mah family and asked them for forgiveness. We accord this retrospective remorse
very little weight in mitigation. See
State v. Reynolds
(1998),
it is insufficient to overcome the single aggravating circumstance, murder during the course of an aggravated robbery, proven beyond a reasonable doubt in this case.
S Finally, R.C. 2929.05(A) requires that we review the sentence in this
case and determine whether it is proportionate to the sentence imposed in similar
cases. Since 1985, when we found the death sentence of Ernest Martin (
State v.
Martin
[1985],
court of appeals is hereby affirmed.
Judgment affirmed. M OYER , C.J., D OUGLAS , R ESNICK , F.E. S WEENEY and L UNDBERG TRATTON , JJ., concur. P FEIFER , J., concurs separately.
__________________
P FEIFER , J., concurring. I concur because I disagree with the majority’s statement that “residual doubt is not an acceptable mitigating factor.” For the reasons stated in my concurrence in State v. McGuire (1997), 80 Ohio St.3d 390, 405-406, 686 N.E.2d 1112, 1124, I believe residual doubt to be an important mitigating factor in our death penalty analysis. However, I do not believe that residual doubt is a factor in this case.
APPENDIX
{¶ 74} “ Proposition of Law No. 1: A jury waiver in a capital case is not knowing, intelligent, and voluntary unless the record indicates that the defendant is aware that error in the admission of evidence will be held harmless on appeal unless it is affirmatively shown that the three-judge panel hearing the case relied in its decision on the inadmissible evidence.
{¶ 75} “ Proposition of Law No. 2: Evidentiary Rulings at the guilt phase of a capital trial, even a trial before a three-judge panel, can deprive a defendant of his rights under the Constitutions of the United States and of the State of Ohio. “ Proposition of Law No. 3: A prosecutor may not argue uncharged death specifications during closing argument at the mitigation phase of a capital trial and may not urge a three-judge panel to refuse to perform its statutory duty. “ Proposition of Law No. 4: When the R.C. 2929.03(F) opinion of a three-judge panel in a capital case explicitly indicates that the weighing of the aggravating circumstance against the mitigating factors was skewed by improperly considered victim impact statements, unwarranted speculation about the likelihood of future criminal behavior by the defendant, and erroneous treatment of the nature and circumstance of the offense as a factor to be weighed against mitigation, the panel has failed in its function as a gatekeeper and displayed the sort of bias against the defendant which makes the panel’s determination of the appropriate sentence a sham and required that the sentence of death be vacated. “ Proposition of Law No. 5: Ohio death penalty law is
unconstitutional both in the abstract and as applied. “ Proposition of Law No. 6: Ohio’s death penalty law as applied
violated R.C. 2929.05(A) by requiring appellate courts and the Supreme Court, in conducting their R.C. 2929.05(A) review of ‘similar cases’ for proportionality, to review only those in which a sentence of death was imposed and ignore those in which a sentence of life with parole eligibility after twenty full years or life with parole eligibility after thirty full years was imposed. This application of R.C. *22 2929.05(A) also violates the rights to fair trial and due process and results in the imposition of cruel and unusual punishment as set forth in the Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution and in Sections 1, 2, 5, 9, 10, 16, and 20, Article I of the Ohio Constitution. “ Proposition of Law No. 7: When independent review of the death
sentence in a capital case reveals that the aggravating circumstances do not outweigh the mitigating factors beyond a reasonable doubt, the sentence of death must be reversed. “Proposition of Law No. 8: A death sentence is wrongly imposed
and will be reversed when it is inappropriate and not proportional to the sentence imposed in similar cases.”