State v. Baston, No. 97-2204

• Court: United States State Supreme Court of Ohio
• Writing for the Court: COOK; MOYER; PFEIFER; PFEIFER
• Citation: 85 Ohio St.3d 418,709 N.E.2d 128
• Docket Number: No. 97-2204
• Decision Date: 12 May 1999
• Parties: The STATE of Ohio, Appellee, v. BASTON, Appellant.

Page 418

85 Ohio St.3d 418 709 N.E.2d 128 The STATE of Ohio, Appellee,
v.
BASTON, Appellant. No. 97-2204. Supreme Court of Ohio. Submitted Jan. 27, 1999.
Decided May 12, 1999.

[709 N.E.2d 130] 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 the money in

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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

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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.

[709 N.E.2d 131] 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 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

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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 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 [709 N.E.2d 132] 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.

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Julia R. Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson, Assistant Prosecuting Attorney, for appellee.

Jeffrey M. Gamso and Spiros P. Cocoves, Toledo, for appellant.

COOK, 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), 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.

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 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.

Additionally, the presiding judge engaged in an extensive colloquy with Baston. Baston argues that because that colloquy appeared thorough,...