State v. Baston

[This opinion has been published in Ohio Official Reports at 

85 Ohio St.3d 418

.]




             THE STATE OF OHIO, APPELLEE, v. BASTON, APPELLANT.
                      [Cite as State v. Baston, 

1999-Ohio-280

.]
Criminal law—Aggravated murder—Death penalty upheld, when.
      (No. 97-2204—Submitted January 27, 1999—Decided May 12, 1999.)
       APPEAL from the Court of Appeals for Lucas County, No. L-95-087.
                                  __________________
        {¶ 1} 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.
        {¶ 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
                             SUPREME COURT OF OHIO




the money in the cash register, Chong Mah’s killer had also taken team logo hats
and “Starter” type jackets from the store.
       {¶ 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




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                                January Term, 1999




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.
       {¶ 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




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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.
       {¶ 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 R.C. 2929.04(A)(7). Baston
pleaded not guilty and elected to be tried before a three-judge panel.
       {¶ 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.
                               __________________




                                          4
                                January Term, 1999




       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.
                               __________________
       COOK, J.
       {¶ 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




                                          5
                             SUPREME COURT OF OHIO




written waiver, signed by the defendant, filed with the court, and made in open
court * * *.” 

Id. at 26

, 

559 N.E.2d at 468

. It is undisputed that the written waiver
required by the Criminal Rules and Revised Code was properly executed in this
case.
        {¶ 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 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), 

304 U.S. 458, 465

, 

58 S.Ct. 1019, 1023

, 

82 L.Ed. 1461, 1467

.




                                          6
                                 January Term, 1999




        {¶ 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.
        {¶ 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} 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), 

46 Ohio St.3d 108, 119

, 

545 N.E.2d 1220, 1231-1232

. The




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                             SUPREME COURT OF OHIO




individual offered as an expert need not have complete knowledge of the field in
question, as long as the knowledge she possesses will aid the trier-of-fact in
performing its fact-finding function. State v. D’Ambrosio (1993), 

67 Ohio St.3d 185, 191

, 

616 N.E.2d 909, 915

. Pursuant to Evid.R. 104(A), the trial court
determines whether an individual qualifies as an expert, and that determination will
be overturned only for an abuse of discretion. State v. Williams (1983), 

4 Ohio St.3d 53, 58

, 4 OBR 144, 148, 

446 N.E.2d 444, 448

.
       {¶ 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. Crim.R. 52(B); State v. Williams (1977), 

51 Ohio St.2d 112

, 

5 O.O.3d 98

, 

364 N.E.2d 1364

, paragraph two of the syllabus, vacated on other
grounds, 

438 U.S. 911

, 

98 S.Ct. 3137

, 

57 L.Ed.2d 1156

.
       {¶ 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.




                                          8
                                January Term, 1999




       {¶ 29} 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

, 

678 N.E.2d 891, 913

 (The trial court did not abuse its
discretion in allowing a forensic scientist to give expert testimony about blood-
spatter evidence, as the witness had been involved in thousands of cases dealing
with blood analysis and trace evidence; also, other evidence corroborated the
testimony, so there was no plain error.). Furthermore, the testimony concerning
blood spatter was helpful to an understanding of how the victim was shot and ended
up in a supine position, but it was not crucial to any issue in dispute in this case.
Assuming the admission of this evidence was error, it was harmless beyond a
reasonable doubt. Crim.R. 52(A); State v. Zimmerman (1985), 

18 Ohio St.3d 43, 45

, 18 OBR 79, 81, 

479 N.E.2d 862, 863

. There was no prejudicial error in
allowing Dr. Scala-Barnett to testify in this case.
       {¶ 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




                                          9
                              SUPREME COURT OF OHIO




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.
         {¶ 32} 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.”
         {¶ 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,




                                           10
                                  January Term, 1999




29, 

506 N.E.2d 204, 207

, and the Staff Note to Evid.R. 607. Yet, the trial court
here ruled the statement inadmissible under Evid.R. 607. The state was allowed to
refresh recollection and use the statement as a recorded recollection pursuant to
Evid.R. 803(5). The witness never adopted the statement, the tape was never played
for the panel, and neither the tape nor the transcription of the taped statement was
admitted into evidence.
        {¶ 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).
        {¶ 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; Evid.R. 614(C). An alleged error “does not
constitute a plain error * * * unless, but for the error, the outcome of the trial clearly
would have been otherwise.” State v. Long (1978), 

53 Ohio St.2d 91

, 

7 O.O.3d 178

, 

372 N.E.2d 804

, paragraph two of the syllabus. Here there is no error, plain
or otherwise.
        {¶ 40} Evid.R. 614(B) provides that “[t]he court may interrogate witnesses
in an impartial manner, whether called by itself or a party.” Baston concedes that




                                           11
                               SUPREME COURT OF OHIO




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), 

21 Ohio St.2d 113

,

50 O.O.2d 322

, 

256 N.E.2d 613

, paragraphs three and four of the syllabus; State v.
Prokos (1993), 

91 Ohio App.3d 39, 44

, 

631 N.E.2d 684, 687

.
        {¶ 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 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:




                                            12
                                January Term, 1999




       “[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 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), 

47 Ohio St.3d 20

, 

546 N.E.2d 937

, syllabus, we held that
“[t]he state may not amend an indictment pursuant to Crim.R. 7(D) so as to include
a specification contained in R.C. 2941.143 without first presenting the specification
to the grand jury or following the other alternatives contained in R.C. 2941.143.”
       {¶ 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 R.C.
2929.04(A)(7) specification requiring prior calculation and design was irrelevant.
The “killing of a witness” was not a charged aggravating circumstance. The
prosecutor should have focused on the statutory factor, which was charged and
proven in the trial phase, and not on factors that were not charged. State v.
Wogenstahl (1996), 

75 Ohio St.3d 344

, 

662 N.E.2d 311

, paragraph one of the
syllabus.
       {¶ 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




                                         13
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trial. The panel found Baston guilty of only the R.C. 2929.04(A)(7) specification.
See Wogenstahl, 

75 Ohio St.3d at 357

, 

662 N.E.2d at 322

.
       {¶ 47} Although the trial court panel mentioned the “elimination of a
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),

51 Ohio St.3d 160, 170

, 

555 N.E.2d 293, 304

; State v. Holloway (1988), 

38 Ohio St.3d 239, 242

, 

527 N.E.2d 831, 835

.
       {¶ 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.




                                          14
                                  January Term, 1999




           {¶ 51} 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
           {¶ 52} 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.
           {¶ 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 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), 

74 Ohio St.3d 660, 662

, 

660 N.E.2d 1194, 1196

, quoting Arizona v. Fulminante (1991), 

499 U.S. 279, 310

, 

111 S.Ct. 1246, 1265

, 

113 L.Ed.2d 302, 331

 (“ ‘[T]he presence on the bench of a judge who
is not impartial, is structural constitutional error.’ “).
           {¶ 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




                                            15
                            SUPREME COURT OF OHIO




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.”
       {¶ 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

.




                                        16
                                 January Term, 1999




                               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
       {¶ 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. R.C. 2929.05(A).
       {¶ 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 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.
       {¶ 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.




                                          17
                             SUPREME COURT OF OHIO




        {¶ 62} 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.
        {¶ 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.




                                          18
                                January Term, 1999




       {¶ 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.
       {¶ 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. R.C.
2929.04(B)(4) provides that the youth of the defendant can be considered a
mitigating factor, and we determine this factor is entitled to some weight. Finally,
residual doubt is not an acceptable mitigating factor. State v. McGuire, at syllabus;
State v. Goff, 

82 Ohio St.3d at 131

, 

694 N.E.2d at 923

.
       {¶ 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.




                                         19
                             SUPREME COURT OF OHIO




        {¶ 71} 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], 

19 Ohio St.3d 122

, 19 OBR 330, 

483 N.E.2d 1157

) to be appropriate
and proportional for an aggravated murder during the course of an aggravated
robbery, this court has reviewed a plethora of cases in which aggravated robbery is
the sole aggravating circumstance. See, e.g., State v. Byrd (1987), 

32 Ohio St.3d 79

, 

512 N.E.2d 611

; State v. Dennis (1997), 

79 Ohio St.3d 421

, 

683 N.E.2d 1096

;
State v. Greer (1988), 

39 Ohio St.3d 236

, 

530 N.E.2d 382

; State v. Jamison (1990),

49 Ohio St.3d 182

, 

552 N.E.2d 180

. Baston’s case is similar in facts to those cases,
and the mitigating factors presented do not distinguish the death sentence in his
case as disproportionate.
        {¶ 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




                                           20
                                January Term, 1999




       {¶ 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.
       {¶ 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 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.
       {¶ 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 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.




                                          21
                             SUPREME COURT OF OHIO




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.
       {¶ 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.”




                                          22