State v. BastonState v. Baston
{¶ 2} 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.
{¶ 3} 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
{¶ 4} 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.
{¶ 5} 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.
{¶ 6} 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.
{¶ 7} 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
{¶ 8} 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.
{¶ 9} 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.
{¶ 10} 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.
{¶ 11} 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
{¶ 12} 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
{¶ 13} 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.
{¶ 14} 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.
{¶ 15} 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.
{¶ 16} 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
{¶ 17} 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), 15 Ohio St.2d 146, 151, 44 O.O.2d 132, 136, 239 N.E.2d 65, 70. Baston argues that, because of this presumption, the trial court was required to ensure that Baston understood that he was giving up the right to meaningful appellate review by choosing to have a three-judge panel decide the case.
{¶ 18} In State v. Jells (1990), 53 Ohio St.3d 22, 559 N.E.2d 464, paragraph 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
{¶ 19} Additionally, the presiding judge engaged in an extensive colloquy 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), 54 Ohio St.2d 263, 8 O.O.3d 232, 375 N.E.2d 1250 (jury waiver held inadequate because the appellant was told that the three-judge panel‘s verdict had to be unanimous when a majority verdict would suffice). We find this argument meritless. The panel did not misinform Baston and nothing in the panel‘s colloquy suggested that it was meant to be a thorough discussion of all the implications of a jury waiver, including the standard of appellate review that would be applied in this case.
{¶ 20} Baston additionally argues that the Jells analysis fails to address the question of whether a jury waiver, which may satisfy
{¶ 22} This proposition of law is overruled.
Trial Phase Witness Issues
{¶ 23} In Proposition of Law No. II, Baston argues that three evidentiary rulings by the trial court deprived him of his constitutional rights.
{¶ 24} 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.
{¶ 25}
{¶ 26} Since 1985, Dr. Scala-Barnett has been a forensic pathologist and a 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.
{¶ 27} 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.
{¶ 28} The state‘s failure to qualify Dr. Scala-Barnett in more detail does 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.
{¶ 30} Witness Statement: Baston next argues that the panel abused its 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.
{¶ 31} 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
{¶ 32} The court sustained the defense objection based on
{¶ 33} 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.
{¶ 34} 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.
{¶ 35} 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), 30 Ohio St.3d 20, 22, 30 OBR 27, 29, 506 N.E.2d 204, 207, and the Staff Note to
{¶ 36} Since the trial court ruled that the statement could be used pursuant to
{¶ 37} 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, 32 Ohio St.3d at 384, 513 N.E.2d at 759.
{¶ 38} Questioning by Three-Judge Panel: At various times during trial, 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.
{¶ 39} 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, 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, at paragraph two of the syllabus;
{¶ 40}
{¶ 41} The questioning here was limited, and consisted mostly of attempts to clarify the witnesses’ testimony, as is contemplated by the rule. See State v. Lieberman (1961), 114 Ohio App. 339, 347, 18 O.O.2d 25, 29, 179 N.E.2d 108, 113. The questioning was neither excessive nor prejudicial to the defendant. Sandusky v. DeGidio (1988), 51 Ohio App.3d 202, 204, 555 N.E.2d 680, 681-682. “In absence of any showing of bias, prejudice, or prodding of a witness to elicit partisan testimony, it will be presumed that the trial court acted with impartiality [in propounding to the witness questions from the bench] in attempting to ascertain a material fact or to develop the truth.” Jenkins v. Clark (1982), 7 Ohio App.3d 93, 98, 7 OBR 124, 129, 454 N.E.2d 541, 548; see, also, State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244, paragraph two of the syllabus, vacated on other grounds (1978), 438 U.S. 911, 98 S.Ct. 3138, 57 L.Ed.2d 1157. The questioning by the panel was not error.
{¶ 42} Since none of Baston‘s arguments concerning trial phase evidentiary issues has merit, his second proposition of law is overruled.
Prosecutorial Misconduct
{¶ 43} Uncharged Capital Specification: Baston was charged with alternative counts of aggravated murder under
“[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.”
{¶ 44} While committing an aggravated murder to escape detection is an aggravating circumstance under
{¶ 45} The state counters that these comments by the prosecutor did not impermissibly amend the indictment because they were necessary to establish prior calculation and design for the first count of aggravated murder and the capital specification. The state‘s argument fails for two reasons. First, the prosecutor‘s remarks were made in the penalty phase, after the aggravated murder had already been established. Second, the state‘s theory supporting the capital specification was that Baston was the principal offender; therefore, the portion of the
{¶ 46} Because Baston‘s counsel did not object to the prosecutor‘s comments, we consider only whether these statement‘s rise to the level of plain error. State v. White (1998), 82 Ohio St.3d 16, 22, 693 N.E.2d 772, 778. We do not believe that the prosecutor‘s comments made a difference in the outcome of the
{¶ 47} Although the trial court panel mentioned the “elimination of a potential witness” in its
{¶ 48} Urging the Trial Court to Refuse to Consider a Mitigating Factor: 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.”
{¶ 49} 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.
{¶ 50} 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.
Appellate Court Reweighing
{¶ 52} In the court of appeals, Baston raised three assignments of error addressing errors in the trial panel‘s opinion filed pursuant to
{¶ 53} 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
{¶ 54} Baston cites excerpts from the opinion as demonstrative of the 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
{¶ 55} 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), 510 U.S. 540, 555, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474, 491. To the contrary, the panel expressly stated that it engaged in a “dispassionate review.” We will not presume that the trial court acted with bias. To the contrary, even without an affirmative declaration, this court presumes the regularity of the proceedings. See State v. Phillips (1995), 74 Ohio St.3d 72, 92, 656 N.E.2d 643, 663. Presumptions that the court acted without bias and prejudice are not necessary in this case because we have the assurances of the trial court panel. Accordingly we overrule this proposition of law.
Constitutionality of Death Penalty
{¶ 56} 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), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264; State v. Sowell (1988), 39 Ohio St.3d 322, 336, 530 N.E.2d 1294, 1309; State v. Steffen (1987), 31 Ohio St.3d 111, 125, 31 OBR 273, 285-286, 509 N.E.2d 383, 396; State v. Grant (1993), 67 Ohio St.3d 465, 483, 620 N.E.2d 50, 69; State v. Maurer (1984), 15 Ohio St.3d 239, 15 OBR 379, 473 N.E.2d 768, paragraph six of the syllabus; State v. Lewis (1993), 67 Ohio St.3d 200, 206, 616 N.E.2d 921, 926; State v. Buell (1986), 22 Ohio St.3d 124, 22 OBR 203, 489 N.E.2d 795; State v. Phillips (1995), 74 Ohio St.3d 72, 656 N.E.2d 643; State v. Coleman (1989), 45 Ohio St.3d 298, 308, 544 N.E.2d 622, 633-634; State v. Smith (1997), 80 Ohio St.3d 89, 684 N.E.2d 668.
{¶ 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
Independent Sentence Review
{¶ 58} 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.
{¶ 59} 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.
{¶ 60} 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
{¶ 61} 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.
{¶ 63} 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.
{¶ 64} 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.
{¶ 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.
{¶ 67} We accord some mitigating weight to Baston‘s history, character, and background evidence. See State v. Spivey (1998), 81 Ohio St.3d 405, 424, 692 N.E.2d 151, 166; State v. Goff (1998), 82 Ohio St.3d 123, 141, 694 N.E.2d 916, 930.
{¶ 68} Baston made an unsworn statement in which he apologized to the Mah family and asked them for forgiveness. We accord this retrospective remorse very little weight in mitigation. See State v. Reynolds (1998), 80 Ohio St.3d 670, 686-687, 687 N.E.2d 1358, 1374; State v. Raglin (1998), 83 Ohio St.3d 253, 273, 699 N.E.2d 482, 498; State v. Post, 32 Ohio St.3d at 394, 513 N.E.2d at 768.
{¶ 69} The parties stipulated that Baston‘s date of birth was February 8, 1974, making him twenty years old at the time the crime was committed.
{¶ 70} Although appellant‘s mitigation evidence is entitled to some weight, 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.
{¶ 72} Accordingly, for all of the foregoing reasons, the judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
PFEIFER, J., concurs separately.
PFEIFER, J., concurring.
{¶ 73} 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
{¶ 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.
{¶ 76} “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.
{¶ 77} “Proposition of Law No. 4: When the
{¶ 78} “Proposition of Law No. 5: Ohio death penalty law is unconstitutional both in the abstract and as applied.
{¶ 79} “Proposition of Law No. 6: Ohio‘s death penalty law as applied violated
{¶ 80} “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.
{¶ 81} “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.”