Summary:

Chong-Hoon Mah was a 53 year old former South Korean journalist who moved to Toledo and owned a downtown Toledo shop called Continental Wigs 'n Things, which also sold sports gear.

When he failed to return home from work, his wife went to the shop and found the store unlocked and the lights on. The cash register was open and empty. In a rear storage room, she found her husband's body, shot once through the head.

Several Starter jackets of the type sold in the store were found in the home where Baston was staying, along with several sports hats. Baston was later arrested at a church function with a .45 caliber handgun in his luggage. The gun was later tested and proved to be the murder weapon. Upon arrest, Baston admitted participating in the robbery, but claimed that a "Ray-Ray" had taken the victim to the back and shot him.

Citations:

State v. Baston, 85 Ohio St.3d 418, 709 N.E.2d 128 (Ohio 1999). (Direct Appeal)
Baston v. Bagley, 420 F.3d 632. (6th Cir. 2005) (Habeas)

Final/Special Meal:

Declined.

Final Words:

In a 5-minute final statement, Baston said: "I would like to say to my family I am very sorry. I know this is not what they wanted to have happen. I hope they won’t be too bothered by what is taking place today. It is not their doing. Just the way things go.

I hope my execution, that it will be the last, that people will open up. The victims in my case didn’t want me to be executed. They wanted life without parole. That should have been respected. That should have been respected by our governor . . . I made a bad decision and I hope my family can move on and find some comfort and peace. I would like to say I’m sorry to my family. I made a bad decision.

I want you to reach out to my children. I love them so much. I want you to tell them stories about me. I want them to know the good things about me, even through my time in prison I wanted to better myself, encourage others. Remind them of that. My daughter, she’s quiet, a lot like me. Just like me. I want you to watch her. If she talks, listen.

I want to thank all the members of my church, my friends who petitioned, letters, faxed, Twittered, hopefully, to the governor, to show mercy. For a long time I didn’t see a lot of value in myself. It wasn’t until this moment till I had to go through this ordeal that I have seen so much love from so many people. Letters from people all over the world, and even Ohio.

I appreciate every last letter, I appreciate every last card, every last prayer, every last encouragement. I was hoping I didn’t cry. "It's OK. It's OK," said his brother, Ron Baston. "You can cry."

Dear heavenly father, I have sinned, and I repent of my sins, I pray for forgiveness. As I close my eyes on the light of this world, I hope to open my eyes to the light in heaven.

ClarkProsecutor.org

Ohio Department of Rehabilitation and Correction

Inmate#: OSP #A308-174
Inmate: Johnnie R. Baston
DOB: Frbuary 8, 1974
County of Conviction: Lucas County
Date of Offense: 02-01-1993
Case Number: CR94-5682
Victim: Chomg Mah
Date of Sentencing: February 24, 1995
Presiding Judge: William J. Skow, Charles J. Doneghy, J. Ronald Bowman
Prosecuting Attorney: Thomas Tomczak, Mary Sue Barone
Institution: Ohio State Penetentiary
Convictions: AGG MURDER (Death), AGG ROBBERY (10-25 Yrs)

Ohio executes first man with new drug

By Andrew Welsh-Huggins - Dispatch.com

AP -March 11, 2011

LUCASVILLE, Ohio - Ohio put to death a Toledo store owner's killer yesterday with the country's first use of the surgical sedative pentobarbital as a stand-alone execution drug. Johnnie Baston was pronounced dead at 10:30 a.m., about 13 minutes after the 5-gram dose of the drug began flowing into his arms. About a minute into the execution, Baston appeared to gasp, grimace and wince before quickly becoming still.

In a five-minute final statement, Baston said the governor should have respected the opposition of his victim's family to the death penalty and commuted his sentence to life without parole. Baston also said he made a bad decision and he hoped both his family and that of his victim could move on. He asked his brothers, both of whom were witnesses, to watch out for his teenage children. "I want you to tell them stories about me," Johnnie Baston said. "I want them to know the good things about me." Baston, who grew tearful at times, also said he had hoped he wouldn't cry. "It's OK. It's OK," said his brother Ron Baston. "You can cry."

A few minutes later, as the drugs began to flow, Ron Baston stood up and slammed his fist against a wall dividing the viewing area, the noise loud enough to draw the attention of warden Donald Morgan on the other side of the glass. "Easy, sir," a prisons guard said. Such a physical outburst is unprecedented in Ohio's 40-plus executions. "We'll clear his name," Richard Baston said as he comforted his brother. "We'll get justice for him. I promise."

Ohio switched to pentobarbital as its execution drug after the company that made the drug it previously used, sodium thiopental, announced production was being discontinued. Oklahoma also uses pentobarbital, a barbiturate, but in combination with other drugs that paralyze inmates and stop their hearts.

Baston's execution also marked a change in Ohio's process, giving inmates speedier access to lawyers in case something goes wrong when needles are being inserted into them.

Baston, 37, was sentenced to die for killing Chong-Hoon Mah, a South Korean immigrant who was shot in the back of the head. The 53-year-old victim's relatives oppose the death penalty and the execution.

Toledo killer executed with new death penalty drug

Blog.Cleveland.com

March 10, 2011

LUCASVILLE, Ohio -- Ohio on Thursday put to death a Toledo store owner's killer with the country's first use of the surgical sedative pentobarbital as a stand-alone execution drug. Johnnie Baston was pronounced dead at 10:30 a.m., about 13 minutes after the 5 gram dose of the drug began flowing into his arms. About a minute into the execution, Baston appeared to gasp, then grimace and wince, but then was quickly still.

In a 5-minute final statement, Baston said the governor should have respected the opposition of his victim's family to the death penalty and commuted his sentence to life without parole. Baston also said he made a bad decision and said he hoped both his family and that of his victim could move on. He asked his brothers, both of whom were witnesses, to watch out for his teenage children as they grow up. "I want you to tell them stories about me," Johnnie Baston said. "I want them to know the good things about me." Baston, who grew tearful at times, also said he had hoped he wouldn't cry. "It's OK. It's OK," said his brother, Ron Baston. "You can cry."

A few minutes later, as the drugs began to flow, Ron Baston stood up and slammed his fist against a wall dividing the viewing area, the noise loud enough to draw the attention of warden Donald Morgan on the other side of the viewing glass. "Easy, sir," a prisons guard said. Such a physical outburst is unprecedented in Ohio's forty-plus executions. "We'll clear his name," Richard Baston said as he comforted his brother. "We'll get justice for him. I promise."

Baston's execution marked a change in Ohio's process, giving inmates speedier access to attorneys in case something goes wrong when needles are being inserted into them. Ohio has had problems inserting needles in a handful of cases, including the botched 2009 execution of Romell Broom, who was sentenced to die for the rape and slaying of a teenage girl abducted in Cleveland as she walked home from a football game. The governor stopped the failed needle insertion procedure after two hours.

Broom complained that he was stuck with needles at least 18 times and suffered intense pain. He has sued, arguing a second attempt to put him to death would be unconstitutionally cruel. Now, an attorney concerned about how an execution is going could use a death house phone to contact a fellow lawyer in a nearby building with access to a computer and cell phone to contact courts or other officials about the problem, said Carlo LoParo, a spokesman for the Ohio Department of Rehabilitation and Correction.

There's a catch with the change: The state will still allow an inmate only three witnesses. For an inmate to be guaranteed fast access to a lawyer, he would have to give up one of his designated witnesses, usually a family member. A federal judge has already ruled that an inmate's constitutional rights aren't violated by having to substitute a witness for an attorney.

The change is consistent with federal court rulings that have limited challenges to Ohio's injection process to problems that crop up during individual executions, said Greg Meyers, trial division chief counsel at the Ohio public defender's office. He said a lawyer who chooses to witness an execution now has immediate access to a phone if he or she believes something is going wrong. He said judges will have the final say on problems, which will limit abuse of the system.

Although the prisoner will now be just a few feet from witnesses as the needles are inserted, a curtain will be drawn and the procedure will still be shown on closed-circuit TVs in the witness viewing area. Using the TVs is meant to protect the anonymity of the executioners and to reduce the pressure they might feel having an audience watching them work, LoParo said.

Even before the change, Ohio had one of the most transparent execution procedures in the country. Several states, such as Missouri, Texas and Virginia, show nothing of the insertion procedure and allow witnesses to watch only as the lethal chemicals begin to flow. In Georgia, officials allow one reporter to watch the needle insertion process through a window.

Baston, 37, was sentenced to die for killing Chong-Hoon Mah, a South Korean immigrant who was shot in the back of the head. The 53-year-old victim's relatives oppose the death penalty and the execution. The victim was a journalist in South Korea before moving to Ohio and opening two retail stores in Toledo. He started life over as a manual laborer before opening his stores and rarely took a day off, his brother, Chonggi Mah, testified at the end of Baston's 1995 trial.

Baston has given differing accounts of the crime and has suggested he was present but didn't do the killing. But his attorneys say they don't dispute his conviction. The Lucas County prosecutor's office acknowledges the victim's family's opposition to Baston's execution but points out the family testified strongly about its anguish and Baston's lack of remorse.

Republican Gov. John Kasich last week rejected Baston's plea for mercy. Baston asked for clemency based on the victim's family's opposition to capital punishment and his chaotic upbringing, with his lawyer saying he was abandoned as an infant and would wander the streets with his dog trying to find his mother when he was a boy.

Oklahoma uses also pentobarbital, a barbiturate, but in combination with other drugs that paralyze inmates and stop their hearts. Ohio switched to pentobarbital after the company that made the drug it previously used, sodium thiopental, announced production was being discontinued. States around the country have dwindling supplies of sodium thiopental, and several have looked for supplies overseas.

Baston put to death for merchant's slaying

First to be executed using new drug

By Jim Provance - ToledoBlade.com

March 11, 2011

LUCASVILLE, Ohio -- As his brothers wept, Johnnie Roy Baston became the first inmate in the nation Thursday to be executed solely by a massive overdose of the powerful anesthetic pentobarbital. Baston, 37, was pronounced dead at 10:30 a.m. for the March 21, 1994, robbery and slaying of Chong-Hoon Mah, a former South Korean journalist who moved to Toledo and owned the downtown shop, Continental Wigs 'n Things.

"I hope my execution, that it will be the last, that people will open up," Baston said while lying on the lethal injection gurney with intravenous shunts in both arms. "The victims in my case didn't want me to be executed," he said. "They wanted life without parole. That should have been respected. That should have been respected by our governor."

One of his older adoptive brothers, Ron Baston, stood, slammed his right arm against a wall, and uttered an expletive as Johnnie Baston appeared to stop breathing. No one from the Mah family attended the execution.

Although convinced of Baston's guilt, the family had presented a united front to the Ohio Parole Board to ask that Baston's sentence be commuted to life in prison without parole. The board, however, voted unanimously to recommend that Gov. John Kasich not show Baston mercy, and the governor agreed on March 4.

As the warden of the Southern Ohio Correctional Facility held a microphone to his mouth, Baston fought back tears as he talked about his family and, in particular, his two teenaged children. "I was hoping I didn't cry," he said. "It's OK. It's OK if you cry," said another brother, Richard Baston, although it was unlikely his younger brother heard him through the glass separating witnesses from the lethal injection chamber.

Looking straight up at the ceiling, but addressing his brothers, Johnnie Baston said, "I want you to reach out to my children. I love them so much. I want you to tell them stories about me. I want them to know the good things about me. Even through my time in prison, I wanted to better myself, encourage others. Remind them of that. "My daughter, she's quiet, a lot like me. Just like me. I want you to watch her. If she talks, listen."

While admitting to participating in the robbery, Baston had maintained for 17 years that a man he knew only by the name of "Ray Ray'' was the one who killed Mr. Mah in the back of his store. But the Department of Rehabilitation and Correction said Baston last week confessed to the murder after his family and legal team had arranged for a polygraph test in hopes of improving his chances for gubernatorial clemency.

Department spokesman Carlo Loparo said again Thursday that Baston had confessed to the murder while the polygraph expert was in the room. Baston did not touch on the subject either way in his final statement beyond saying he made a "bad decision." Baston was escorted from his cell into the death chamber at 10:04 a.m.

For the first time, medical technicians inserted the intravenous shunts in the execution chamber instead of in his cell beforehand. Although a curtain prevented witnesses from directly seeing it, a court settlement provided for it to take place in the execution chamber so that Baston's attorney, Assistant Public Defender Rob Lowe, would be able to hear if Baston called out if something went wrong and would have easy access to a phone.

Baston did not call out. He appeared to demonstrate some brief discomfort during the shunt process, shown to witnesses via a video feed that lacked audio. At the point when the drug appeared to be taking effect, Baston briefly grimaced and then fell still. He took a few deep breaths and then moved no more.

"Oh, man…," Ron Baston sobbed. "That is so barbaric, man." His brother, Richard, held him as he sobbed. "We'll clear his name… We'll get justice for him," he told him. Baston had claimed that "Ray Ray" came to Toledo from Chicago to recruit for the Vice Lords gang and that this robbery was to be Baston's initiation.

Baston had the murder weapon in his possession when he was arrested soon afterward while at a church retreat in Columbus. Police also found clothing stolen from the store in an apartment that Baston was sharing with a friend after his adoptive mother, who was his biological aunt, had thrown him out of the house for taking the gun.

Shortly before the execution, Richard Baston denounced the contention that his younger brother had confessed, saying he still maintained he wasn't the gunman. He characterized the confession as a "miscommunication," saying his brother made the statement believing it was a test for the polygraph. The test was never completed.

He said his brother told him earlier that morning, "I'm at peace. I know what I did, and I know what I didn't do."

Pentobarbital has typically been used to induce coma in heart patients and has also been used in assisted suicides. This marked its first use as the sole method of executing an inmate in the United States. Oklahoma has used the drug as part of a three-drug mix.

Ohio, which has employed a one-drug protocol for about a year, switched drugs after the sole U.S. manufacturer of its prior drug ceased production when it merged operations with a plant in the United Kingdom. The United Kingdom does not have capital punishment. The manufacturers of both drugs have denounced their use as part of executions.

According to the department's execution log, the signal was given to start the first of two syringes of the drug at 10:17 a.m. Baston was checked for signs of a heartbeat at 10:28 a.m. The curtain closed for a physician to examine the body. It reopened two minutes later when the time of death was announced. The timing was consistent with prior Ohio executions using the drug sodium thiopental, also a barbiturate.

"Dear heavenly Father, I have sinned, and I repent of my sins," Baston said in closing his final statement. "I pray for forgiveness. As I close my eyes on the light of this world, I hope to open my eyes to the light in heaven.''

EXCERPTS FROM JOHNNIE ROY BASTON’S FINAL STATEMENT

I would like to say to my family I am very sorry. I know this is not what they wanted to have happen. I hope they won’t be too bothered by what is taking place today. It is not their doing. Just the way things go.

I hope my execution, that it will be the last, that people will open up. The victims in my case didn’t want me to be executed. They wanted life without parole. That should have been respected. That should have been respected by our governor ... I made a bad decision and I hope my family can move on and find some comfort and peace. I would like to say I’m sorry to my family. I made a bad decision.

I want you to reach out to my children. I love them so much. I want you to tell them stories about me. I want them to know the good things about me, even through my time in prison I wanted to better myself, encourage others. Remind them of that. My daughter, she’s quiet, a lot like me. Just like me. I want you to watch her. If she talks, listen.

I want to thank all the members of my church, my friends who petitioned, letters, faxed, Twittered, hopefully, to the governor, to show mercy. For a long time I didn’t see a lot of value in myself. It wasn’t until this moment till I had to go through this ordeal that I have seen so much love from so many people. Letters from people all over the world, and even Ohio.

I appreciate every last letter, I appreciate every last card, every last prayer, every last encouragement. I was hoping I didn’t cry.

Dear heavenly father, I have sinned, and I repent of my sins, I pray for forgiveness. As I close my eyes on the light of this world, I hope to open my eyes to the light in heaven.

Johnnie Roy Baston

ProDeathPenalty.com

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, JinJu 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 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. Johnnie 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 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 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. 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 him 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.

State v. Baston, 85 Ohio St.3d 418, 709 N.E.2d 128 (Ohio 1999). (Direct Appeal)

Defendant was convicted in the Court of Common Pleas, Lucas County, of aggravated robbery and capital aggravated murder and, after a penalty hearing, was sentenced to death. Defendant appealed, and the Court of Appeals affirmed. The Supreme Court, Cook, J., held that: (1) trial court's failure to inform defendant of appellate standard of review did not invalidate jury waiver; (2) witness was qualified to testify regarding cause of death and distance between gun's muzzle and victim's head when gun was fired; (3) there was no prejudicial error in allowing witness to testify as expert on subject of blood spatter; (4) ruling that witness' tape-recorded statement could be used as recorded recollection permitted State to question witness concerning the statement; (5) questioning of witnesses by three-judge panel was not unwarranted intervention; (6) prosecutor's argument in penalty phase, which improperly focussed on uncharged circumstance of elimination of a witness, did not make a difference in the outcome of the trial; (7) prosecutor's remarks, urging three-judge panel to disregard its statutory duty to consider residual doubt, was not reversible error; and (8) death sentence was not inappropriate or disproportionate to sentences imposed in similar cases. Affirmed. Pfeifer, J., filed concurring opinion.

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 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 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 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.

COOK, J.

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, 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.

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.

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), 46 Ohio St.3d 108, 119, 545 N.E.2d 1220, 1231-1232. The 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.

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.

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.

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.

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.

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.

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 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 they 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 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.

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, 32 Ohio St.3d at 384, 513 N.E.2d at 759.

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.

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.

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 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.

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.

Since none of Baston's arguments concerning trial phase evidentiary 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), 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.”

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.

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 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.

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.

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.”

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. 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), 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.’ ”).

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 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), 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

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.

Proportionality Review

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.

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.

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. 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), 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.

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.

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.

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.

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.

Accordingly, for all of the foregoing reasons, the judgment of the court of appeals is hereby affirmed.

MOYER, C.J., DOUGLAS, RESNICK, FRANCIS E. SWEENEY, Sr. and LUNDBERG STRATTON, JJ., concur. PFEIFER, J., concurs separately.

Pfeifer, 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

“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. “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. 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.”

Baston v. Bagley, 420 F.3d 632 (6th Cir. 2005). (Habeas)

Background: Following affirmance of his aggravated murder convictions and death sentence on direct appeal, 85 Ohio St.3d 418, 709 N.E.2d 128, and denial of state postconviction relief, petitioner sought writ of habeas corpus. The United States District Court for the Northern District of Ohio, James G. Carr, Chief Judge, 282 F.Supp.2d 655, denied petition, and petitioner appealed.

Holding: The Court of Appeals, Boggs, Chief Judge, held that the reweighing of aggravating and mitigating factors by the Ohio Court of Appeals and the Ohio Supreme Court cured any alleged errors by the sentencing court. Affirmed.M erritt, Circuit Judge, dissented and filed opinion.

BOGGS, Chief Judge.

Johnnie Baston was sentenced to death for the robbery and murder of Chong Mah. He now appeals from the district court's denial of his petition for a writ of habeas corpus. Baston argues that the sentencing court considered improper aggravating factors and failed to consider the correct mitigating factors when determining whether a sentence of death was appropriate, and that the sentencing court acted with such bias against him that any errors could not be cured by appellate reweighing of the aggravating and mitigating factors. For the reasons stated below, we affirm the denial of Baston's petition.

I

Baston was sentenced to death for the murder of Chong Mah on March 21, 1994, in Toledo, Ohio. He was indicted and convicted on three counts: 1) aggravated murder in violation of Ohio Rev.Code § 2903.01(A), 2) aggravated murder in violation of Ohio Rev.Code § 2903.01(B), and 3) aggravated robbery with a firearm specification in violation of Ohio Rev.Code § 2911.01(A)(1). Baston elected to be tried by a three-judge panel. He was convicted on all counts on February 15, 1995. On February 27, 1995, the panel sentenced Baston to death.

Mah and his wife owned two retail stores in Toledo. On the day of his death, Mah was working at one of their stores, Continental Wigs N' Things. After Mah failed to answer the phone, his wife became concerned. She went to the store around 5:15 in the afternoon. There, she discovered that her husband had been murdered and the store had been robbed. It was later determined that Mah had been shot in the back of the head from a range of two to three inches.

When Baston was arrested, several days after the murder, he was carrying a gun that proved to be the murder weapon. After his arrest, Baston admitted to having participated in the robbery of Mah, but told police that an accomplice named Ray was responsible for the murder. Baston denied having an intention to kill Mah, and claimed that Ray acted without his prior knowledge.

Baston elected to be tried and sentenced by a three-judge panel. At trial, the defense argued that “Ray” was actually Baston's friend David Smith, and that Smith was the shooter. The defense conceded that Baston was involved in the robbery, but argued that he did not know “Ray” would shoot the victim. The prosecution introduced substantial evidence linking Baston to the crime, including his possession of the murder weapon, his possession of stolen merchandise from Wigs N' Things, and witness testimony linking him to the scene of the crime. Baston was convicted of all counts.

In the sentencing phase, the panel considered the evidence produced during the guilt phase, additional testimony, and Baston's unsworn statement of regret made after his arrest. Baston did not request either a presentence investigation or a mental examination. Baston's defense team raised possible statutory mitigating factors, including his youth (Baston was twenty years of age when he committed the crimes), and the possibility that he was not the primary culprit. The court rejected all mitigating factors expect youth. The sentencing court noted that Baston had little adult criminal history, but had been committed to the Ohio Youth Commission as a juvenile and that it would be impossible for someone so young to have an extensive adult criminal record. Finally, the court found that Baston acted alone.

The sentencing panel also heard victim-impact testimony. Nineteen letters from friends and two letters from family members were read by at least some member of the panel. The court also heard testimony from family members. Chonggi Mah, the victim's brother, testified at length about the victim's life. Chonggi Mah also referred to Baston as a “cold-blooded murderer” who showed no remorse throughout the trial.FN1

FN1. Specifically, Chonggi Mah read a prepared statement which began: “Honorable Judges, Mr. Chong Hoon Mah was killed by a cold-blooded murderer.” Near the end of his statement, Mah describes the pain of sitting through the trial: “Most painful of all was watching the convict sit through the trial with a blank expression. Not once through the whole thing did he show that he was sorry or show any sadness about what he did to my brother and his family.”

In a written opinion, the court concluded that the aggravating circumstance, aggravated murder while committing an aggravated robbery, outweighed the only mitigating factor, Baston's youth, and imposed a sentence of death. Although the court expressed sympathy for the loss suffered by the victim's family, it made clear in its opinion that its decision was based solely on the fact that the purposeful and vicious nature of the crime overrode the sole mitigating factor of youth. The sentencing court also stated that the focus of its inquiry was on the “nature of the killing and the background of the killer,” and that “Chong Mah's innate goodness was not and is not a significant factor in the panel's decision to impose the death penalty.” The court discussed the victim's good qualities, but stated that its sentence was based not on the character of the victim, but solely on the nature of the crime. The court was also blunt in its assessment of Baston's character. JA 69-71 (describing the killing as “purposeful,” “vicious,” and “cowardly,” and expressing regret over the “gun-toting, false-macho, selfish, and violent mess Johnnie Baston has made of his life”).

The Ohio Court of Appeals affirmed the death sentence after conducting its statutorily mandated independent reweighing of the mitigating and aggravating factors. State v. Baston, No. L-95-087, 1997 WL 570896 (Ohio Ct.App. Sep 12, 1997). However, the court also found that the sentencing court erroneously considered the character of the victim, Baston's possible future criminal conduct, and the nature of the crime as aggravating circumstances. While the sentencing court specifically disclaimed consideration of these factors, the appeals court nonetheless found it “troublesome” that the trial court's opinion discussed the character of the victim and the nature of the crime. The appeals court then concluded that the evidence of Baston's involvement was overwhelming: he was seen with the murder weapon before and after the murder; he had merchandise that were taken from the store; he was seen “casing” the store before the robbery; and he confessed his involvement in the robbery to the police. The court found that there was no reasonable doubt that the robbery and murder were planned in advance and little evidence that anyone other than Baston was involved. The court also considered testimony that Baston had an unstable childhood and was viewed favorably by his church youth counselor, his minister, and his family. The court held that the only statutory mitigating circumstance, Baston's youth, was outweighed by the fact that Baston planned the murder, committed the murder during a robbery, and was the principal offender.

The Ohio Supreme Court unanimously affirmed Baston's death sentence. State v. Baston, 85 Ohio St.3d 418, 709 N.E.2d 128 (1999). The court conducted its own reweighing of the aggravating circumstances and mitigating factors. It concluded that the evidence supported the finding that Baston committed aggravated murder while committing aggravated robbery, and that he was the principal offender. The court then weighed that aggravating circumstance against the nature and circumstances of the offense, Baston's history, character, and background, and the statutory mitigation factors. The court found that the nature and circumstances of the offense did not offer mitigating value, that Baston's history, character, and background offered some mitigating weight, and that his youth was also a mitigating factor. Ultimately, the court concluded that the aggravating factor outweighed the mitigating ones, and affirmed the death sentence.

Following the exhaustion of his appeals in the state courts, Baston filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio. The district court denied his petition on September 12, 2003. Baston v. Bagley, 282 F.Supp.2d 655 (N.D.Ohio 2003). The court found that the appellate reweighing of the aggravating factors and mitigating circumstances cured any alleged errors by the sentencing court.

II

A federal court may not grant a writ of habeas corpus to a state prisoner with respect to any claim adjudicated on the merits by a state court unless (1) the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” or (2) the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d)(1)-(2). A state court's legal decision is “contrary to” clearly established federal law under § 2254(d)(1) “if the court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). An “unreasonable application” occurs when “the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413, 120 S.Ct. 1495. Under this standard, a state decision is not unreasonable simply because the federal court concludes that the state decision is erroneous or incorrect. Id. at 411, 120 S.Ct. 1495. Rather, the federal court must determine that the state court decision is an objectively unreasonable application of federal law. Id. at 410-12, 120 S.Ct. 1495.

III

The sole claim raised by Baston is that the sentencing court considered improper aggravating factors and failed to consider the correct mitigating factors when determining whether a sentence of death was appropriate, and that the sentencing court acted with such bias against him that any errors could not be cured by appellate reweighing of the aggravating and mitigating factors. Specifically, Baston alleges three errors by the sentencing court: 1) improper consideration of victim-impact evidence, 2) failure to consider Baston's lack of a criminal history as a mitigating circumstance, and 3) improper consideration of the nature and circumstances of the offense. Baston also argues that, collectively, the errors of the trial court constituted bias by the sentencing court and introduced a level of unfairness that could not be cured by reweighing at the appellate level.

We are skeptical that any of these alleged errors present genuine constitutional violations, but we need not and do not reach the merits of these errors because we conclude that the reweighing of aggravating and mitigating factors by the Ohio Court of Appeals and the Ohio Supreme Court cured such errors, if any, by the sentencing court.

A

In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the Supreme Court held that errors by the sentencing court in weighing aggravating and mitigating factors could be cured by reweighing in the state appellate court. In Clemons, the original death sentence was imposed by a jury, but based in part on an aggravating factor that was improperly introduced. The state appellate court reweighed the aggravating and mitigating factors without the improper aggravating factor, and found that the death sentence was appropriate. The Supreme Court affirmed the death sentence, reasoning that:

The primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime. In scrutinizing death penalty procedures under the Eighth Amendment, the Court has emphasized the twin objectives of measured consistent application and fairness to the accused. Nothing inherent in the process of appellate reweighing is inconsistent with the pursuit of the foregoing objectives.

We see no reason to believe that careful appellate weighing of aggravating against mitigating circumstances in cases such as this would not produce measured consistent application of the death penalty or in any way be unfair to the defendant. It is a routine task of appellate courts to decide whether the evidence supports a jury verdict and in capital cases in “weighing” States, to consider whether the evidence is such that the sentencer could have arrived at the death sentence that was imposed. And, as the opinion below indicates, a similar process of weighing aggravating and mitigating evidence is involved in an appellate court's proportionality review. Furthermore, this Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency. Id. at 748-49, 110 S.Ct. 1441 (citations and quotation marks omitted). See also Cooey v. Coyle, 289 F.3d 882, 888 (6th Cir.2002) (“the federal Constitution does not prohibit reweighing or harmless error analysis as a cure for weighing errors ....”).

This court has already expressly held that reweighing by the Ohio Supreme Court under Ohio Rev.Code § 2929.05(A) satisfies the requirements of Clemons.FN2 Cooey, 289 F.3d at 888-90. Cooey presented a situation similar to this case: the Ohio Supreme Court reweighed the aggravating and mitigating factors pursuant to § 2929.05(A), and found that the death sentence was appropriate regardless of any alleged errors in weighing by the sentencing court. We affirmed, finding that the reweighing was thorough and fair, and thus comported with the requirements of Clemons. Id. at 891-92. See also Fox v. Coyle, 271 F.3d 658 (6th Cir.2001) (holding that the Ohio Supreme Court's independent reweighing of the aggravating and mitigating circumstances under § 2929.05(A) cured any weighing error made by a lower court).

FN2. Under Ohio Rev.Code § 2929.05(A), the Ohio appellate courts are required to “independently weigh” the aggravating circumstances against the mitigating factors: The court of appeals and the supreme court shall review the judgment in the case and the sentence of death imposed by the court or panel of three judges in the same manner that they review other criminal cases, except that they shall review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate. (emphasis added).

B

Pursuant to § 2929.05(A), the Ohio Supreme Court independently reexamined the aggravating and mitigating factors in this case and affirmed the sentence of death. State v. Baston, 85 Ohio St.3d 418, 709 N.E.2d 128, 138-39 (1999). The court carefully reviewed the mitigating factors. Id. at 138. It accorded some mitigating weight to Baston's difficult childhood: he was abused as child and abandoned by his biological parents. Ibid. It also accorded some mitigating weight to the character testimony about Baston's participation in activities with the Glass City Church of Christ. Ibid. The court also noted that Baston's relative youth was a mitigating factor. Id. at 139. Finally, the court concluded that these mitigating factors were outweighed by the sole aggravating factor: “murder during the course of an aggravated robbery.” Ibid.FN3

FN3. The court also took the final step, required by the state law but not by Clemons, by determining that the death sentence was proportional in light of the sentence imposed in similar cases. Ibid.

This reweighing by the Ohio Supreme Court satisfied the requirements of Clemons and cured the alleged sentencing errors. The court carefully reviewed all the aggravating and mitigating factors, and it is undisputed that the court considered the proper factors.

Baston argues that the failure to properly consider mitigating factors (such as his relative youth) cannot be cured by reweighing, even after Clemons. He notes that in Clemons the sentencing court improperly considered an additional aggravating factor, whereas here the alleged impropriety is failure to consider a mitigating factor. Baston asserts that this distinction renders Clemons inapplicable. This assertion is inconsistent with the reasoning of Clemons and is unsupported by any case law. Weighing aggravating and mitigating factors against each other requires considering both sets of factors. Thus, there is no reason that an appellate court could properly reweigh after removing an aggravating factor from consideration, but could not do so after adding an additional mitigating factor. Clemons, 494 U.S. at 750, 110 S.Ct. 1441 (“We accordingly see nothing in appellate weighing or reweighing of the aggravating and mitigating circumstances that is at odds with contemporary standards of fairness or that is inherently unreliable and likely to result in arbitrary imposition of the death sentence.”) (emphasis added).

Baston also argues that the sentencing court was not merely wrong, it was so heavily biased against him that the sentencing process was tainted and could not be repaired by appellate reweighing. Contrary to Baston's assertion, the opinion of the sentencing court is measured in tone, carefully reasoned, and objective. It is only natural that a case involving a ruthless murder and the imposition of a death sentence will lead to some consideration of moral culpability, and some desire on the part of the court to express its sympathy and understanding to the victim's loved ones. Such consideration raises no constitutional concern. See Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474(1994) (“[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.”). The sentencing court's opinion was measured and fair, and showed no sign of favoritism or antagonism.

IV

For the foregoing reasons, we AFFIRM the district court's denial of Baston's petition for habeas corpus.

MERRITT, Circuit Judge, dissenting.

The Ohio Supreme Court, acting as a “reviewing” Court, made a constitutional error in this case by imposing a death sentence anew, after “reweighing” the evidence, without clearly taking the requisite responsibility for its actions. As a reviewing Court, it continued to shift part of the responsibility to the trial court. I would hold that an appellate court must take full and complete responsibility for “decreeing death” whenever it substitutes its judgment for the trial court's by such “reweighing.” Here, instead of clearly taking responsibility, the Ohio Court viewed itself as merely engaging in appellate review of the trial court's actions.

The Ohio Supreme Court found a series of substantial errors by the trial court in finding and balancing aggravating and mitigating circumstances. The Court itself “reweighed” the circumstances, and the justices themselves then decreed the death penalty. This process of allowing an appellate court to “reweigh” the circumstances in a death case and then itself impose the death penalty anew is the product of a fiye-four Supreme Court decision fifteen years ago in Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990).FN1 That decision allows state appellate judges not just to review death verdicts for legal error, as is normally the case, but also allows the judges themselves to decree the death penalty.

FN1. Although the Supreme Court has ruled that its decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), does not apply retroactively, see Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), and therefore cannot govern the case subjudice, it seems very likely that Ring has overruled Clemons. In Ring, the Court held that defendants have a Sixth Amendment right to have a jury, not a judge, find aggravating circumstances in death penalty cases. It is hard to imagine how this principle would not also apply to the reweighing process described in Clemons. If a defendant has a right to have a jury find all the facts that make him eligible for the death penalty, he must also have the right to have a jury make the final determination that he actually will be sentenced to death. Justice Scalia, in an essay, made the point that “reweighing” appellate judges may not view themselves as merely reviewing the trial court-as being “in ‘material cooperation’ with someone else”-but are instead fully responsible for the death sentence. [T]rial judges and jurors who must themselves determine that the death sentence will be imposed ... are not merely engaged in “material cooperation” with someone else's action, but are themselves decreeing death on behalf of the state.

The same is true of appellate judges in those states where they are charged with “reweighing” the mitigating and aggravating factors and determining de novo whether the death penalty should be imposed: they are themselves decreeing death. Scalia, God's Justice and Ours, 2002 First Things 123 (May 2002): 17-21, 2002 WLNR 10639587 (emphasis added). Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), imposes a general rule of sentencing responsibility similar to Justice Scalia's view of appellate responsibility in reweighing states. The Court ruled that the state, through its prosecutors and judges, may not leave a sentencing body with the impression that it is not fully responsible for the death sentence by shifting part of the responsibility to appellate judges.

[I]t is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. * * * * * *

This Court has always premised its capital punishment decisions on the assumption that a capital sentencing jury recognizes the gravity of its task and proceeds with the appropriate awareness of its “truly awesome responsibility.” In this case, the State sought to minimize the jury's sense of responsibility for determining the appropriateness of death. Because we cannot say that this effort had no effect on the sentencing decision, that decision does not meet the standard of reliability that the Eight Amendment requires. Caldwell, 472 U.S. at 328-29 & 341, 105 S.Ct. 2633. An “appellate court, performing its task with a presumption of correctness,” would not feel the requisite responsibility because “decreeing death” is “highly subjective” and the sentencer is “making what is largely a moral judgment of the defendant's desert.” Id. at 340 n. 7, 105 S.Ct. 2633 (emphasis added). All of this language in Caldwell remains good law.FN2

FN2. A majority of the Court, including Justice O'Connor, concurred in these specific sections of the Caldwell opinion. The only part of the Caldwell opinion that did not have five votes and has since been modified is Part IV-A, as explained by Justice O'Connor in her concurring opinion in Romano v. Oklahoma, 512 U.S. 1, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994) and referred to in the majority opinion by Chief Justice Rehnquist, id. at 8-9, 114 S.Ct. 2004. This principle (that when an appellate court engages in reweighing it becomes a sentencer and, like any sentencer, must fully recognize its primary responsibility in decreeing death) places a significant burden on appellate courts when they “reweigh” under Clemons. It must be clear from their opinions that they understand and take sole responsibility for the resulting death sentence by knowingly “making what is largely a moral judgment,” not by just refusing to set aside the actions of others. Otherwise, we cannot be sure that the appellate court, as a sentencing body, “recognize[d] the gravity of its task and proceed[ed] with the appropriate awareness of its ‘truly awesome responsibility’ ” and thereby met the requisite “standard of reliability” under the Eighth Amendment.

Here, the Ohio Supreme Court has not met this requirement because it treated the reweighing process as simply a step in appellate review without taking responsibility itself for “decreeing death.” Although the Court purported to conduct an “independent sentence review,” pursuant to Ohio law, it refers to the trial court's findings as to aggravating circumstances and ultimately states that it is merely affirming the judgment of the lower court. Other than invocation of the word “independent,” which is drawn directly from the state statute, there is absolutely no indication that the Ohio Supreme Court understands and has accepted the “truly awesome responsibility of decreeing death for a fellow human.” McGautha v. California, 402 U.S. 183, 208, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). The Ohio Supreme Court is simply reviewing the decision of the lower sentencing court under Ohio Revised Code § 2929.05(A). Under that statute the Court acts as a “reviewing” Court to: review all of the facts and other evidence to determine if the evidence supports the finding of the aggravating circumstances the trial jury or the panel of three judges found the offender guilty of committing, and shall determine whether the sentencing court properly weighed the aggravating circumstances the offender was found guilty of committing and the mitigating factors. (Emphasis added).

This statutory standard of review in Ohio is quite different from acting itself as the “sentencing court” and taking full responsibility for “decreeing death.” The language of our Court's opinion implicitly recognizes that the Ohio Supreme Court looked upon its role not as accepting full responsibility for “decreeing death” but rather as having simply “cured such errors” of the trial court (Opinion, p. 636) in order to allow the lower court's death sentence to stand. This may seem a subtle distinction, at first glance; but, as the Caldwell case and Justice Scalia's essay demonstrate, “material cooperation with someone else's action” shifts too much responsibility and renders the appellate judges less than fully accountable for their action. In matters of life and death, this distinction is important.