State v. Baber

171 N.E.3d 1257

STATE of Ohio, Plaintiff-Appellee,

v.Deonte BABER, Defendant-Appellant.

NO. C-190338

Court of Appeals of Ohio, First District, Hamilton County.

Date of Judgment Entry on Appeal: April 30, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee.

Raymond T. Faller, Hamilton County Public Defender, and Sarah Nelson, Assistant Public Defender, for Defendant-Appellant.

OPINION.

Bergeron, Presiding Judge.

{¶1} A lunchtime work excursion turned tragic when a driver accidentally hit and injured a young boy. The boy's father responded in fury by throwing open the car door and pummeling the driver. A crowd gathered, with some tending to the boy, some trying to intercede in or break up the fight, and others probably just wondering what all the commotion was about. During the melee, someone shot and killed the driver. After the gunshot, the father grabbed his son and raced to the hospital, calling 911 en route. Believing he had disconnected the call, he then turned to his son and told the boy (repeatedly) that he (the father) had killed the driver. Although that recorded confession seemed damning, the investigating officers soon focused their gaze on an alternative suspect, defendant-appellant Deonte Baber, and the father proved eager to assist in diverting attention from himself. The father identified Mr. Baber as the shooter, and the officers believed that a video that captured the shooting validated that conclusion. The jury ultimately agreed, convicting Mr. Baber for murder, from which he now appeals, bringing seven assignments of error.

{¶2} Although we see a few errors in the trial proceedings, none rise to the level of reversible error. The evidence against Mr. Baber, while certainly not overwhelming, was powerful and probative, including the video recording and eyewitness identifications. Taking into account the totality of the record, we find the errors at hand harmless, and therefore we affirm the trial court's judgment.

I.

{¶3} This case begins with Jamall Killings strolling home with his two young sons, ages four and two, in tow. He paused to talk with a neighbor, and as children sometimes do, his youngest darted into the street. Mr. Killings soon realized the breakaway, stopped oncoming traffic, and went to retrieve him; leaving his older son at the side of the road. Unfortunately, as he secured the two-year-old, the four-year-old wandered into the street and was struck by Jamie Urton, driving on a lunch outing with a colleague. Fortunately, the child survived. Mr. Urton would not.

{¶4} Footage obtained from a neighbor's video-doorbell showed Mr. Killings essentially ignoring his stricken child and instead pouncing on Mr. Urton. He threw open the door and began beating Mr. Urton. The car's passenger, Richard Williams, came around the vehicle and attempted to stop the altercation. Onlookers also began to materialize. And sometime during this mayhem, Mr. Urton was shot, ultimately succumbing to his injuries.

{¶5} A good Samaritan offered to drive Mr. Killings's son to the hospital. On the way, Mr. Killings called 911 and, after believing he had hung up, proceeded to tell his son that he had shot and killed Mr. Urton.

[T]hat's why I killed him [ ], but you can't run out into the street. * * * I killed him, he dead. He dead. The dude who hit you with the car, he dead, I killed him. I'm serious, he dead. The dude who hit you with the car, I killed him [ ]. He dead. You hear me? He dead. I killed him. * * * He dead, so you'll be good. Your daddy got you.

{¶6} After hearing this confession on the 911 call, police intercepted Mr. Killings at the hospital and arrested him. They swabbed his hands for gunpowder residue, which revealed small traces of a substance found in gunpowder. Mr. Williams also identified Mr. Killings as the shooter. At first blush, this appeared to be an open and shut case. There was motive, a voluntary (and spontaneous) confession, gun powder residue, and a positive identification. But things would not remain so simple.

{¶7} Police soon learned of the video footage, which prompted them to look for another suspect, ultimately settling on Mr. Baber. In the video, a person wearing a blue and orange hoodie jacket can be seen running up to the car during the altercation. The individual then runs away with his arm extended toward the car (as though possibly shooting a gun). Unfortunately, the video is too far away to show whether that individual was holding a gun or even what the person looked like.

{¶8} Mr. Killings soon backtracked on his confession, professing to have made the statements in an effort to console his son. Instead, he assured police that an individual wearing a blue and orange jacket had come up to the car and shot Mr. Urton (for apparently unknown reasons). He also provided a basic description that a detective with familiarity of the neighborhood thought might match Mr. Baber. Scrolling through Facebook, the detective stumbled upon a picture of Mr. Baber wearing a blue and orange jacket that appeared similar to the one in the video. Suddenly, Mr. Baber emerged as a focal point of the investigation.

{¶9} Ballistics evidence proved inconclusive. As already noted, police pulled a small amount of gunpowder residue from Mr. Killings's hand. However, a police investigator testified that the trajectory of bullets that struck the driver's door suggested that Mr. Killings was not the shooter. The gun was never found, so no fingerprints or other identifying information could be gleaned. And none of the remaining ballistics evidence linked the shooting to Mr. Baber.

{¶10} Eyewitness descriptions were not a portrait of clarity. As already noted, Mr. Killings offered the basic description which led police to identify Mr. Baber. And after being shown a photo lineup, he identified Mr. Baber as the perpetrator. A nearby resident also stated that she saw a person wearing a blue and orange jacket running from the general direction of the scene. She identified that person as Mr. Baber once she viewed a photo lineup. However, by her own admission, she did not actually see the shooting. Additionally, Mr. Williams vacillated on his identification, retracting his initial identification of Mr. Killings as the shooter, admitting that, due to his glaucoma, his eyesight was too poor to know who fired the shot. Conversely, two 911 callers provided different descriptions of the shooter. One described the shooter as wearing a white hoodie and the other recalled a green hoodie.

{¶11} Mr. Baber's defense was two-pronged: (1) that Mr. Killings, rather than himself, shot Mr. Urton; and (2) that he was not the person in the video wearing the blue and orange jacket. The case, then, largely came down to credibility and circumstantial evidence. Would the jury decide that Mr. Killings's motive and confession simply raised too much doubt to convict Mr. Baber? Or would the jury interpret the video (amplified by eyewitness identifications) as showing the person wearing the blue and orange jacket to be the shooter and identify Mr. Baber as that person?

II.

{¶12} On appeal, Mr. Baber presents seven assignments of error, attacking various facets of the trial proceedings. We address the assignments in turn.

A.

{¶13} In his first assignment of error, Mr. Baber argues that the trial court erred by permitting the prosecution to withhold disclosure of eight witness until the cusp of trial. As a general rule, parties must "provide to opposing counsel a written witness list, including names and addresses of any witness it intends to call in its case-in-chief * * *." Crim.R. 16(I). However, prosecutors may withhold this information by filing a certification of nondisclosure. See Crim.R. 16(D). But prosecutors cannot file nondisclosure certifications arbitrarily: as relevant here, a prosecutor must have "reasonable, articulable grounds to believe that disclosure will compromise the safety of a witness, victim, or third party, or subject them to intimidation or coercion." Crim.R. 16(D)(1). "Reasonable, articulable grounds may include": "[1] the nature of the case, [2] the specific course of conduct of one or more parties, [3] threats or prior instances of witness tampering or intimidation, whether or not those instances resulted in criminal charges, [4] whether the defendant is pro se, and [5] any other relevant information." Crim.R. 16(D). In other words, the prosecutor must provide "case-specific reasoning to justify the certification." State v. Davenport , 1st Dist. Hamilton No. C-130307, 2014-Ohio-2800, 2014 WL 2925434, ¶ 39.

{¶14} The nondisclosure certification mustered here, steeped in generalities and vagueness, failed to satisfy Crim.R. 16(D). In fact, most of the certification simply incanted boilerplate language with no relation to this case:

It is the Assistant Prosecuting Attorney's experience that in virtually all homicide high level felony cases coercion and threats to witnesses can play a critical role. With today's broad expansion of information via the Internet and cell phones, witnesses’ names can quickly spread through the community.

{¶15} We have previously held that nearly identical language lacked a case-specific justification. State v. Williams , 1st Dist. Hamilton No. C-130277, 2014-Ohio-1526, 2014 WL 1410503, ¶ 16–17. Beyond that boilerplate, the certification mentioned the allegations of this case, but was devoid of any indicia of threatening or intimidating behavior. It indicated that Mr. Baber "associated" with people who traffic narcotics and possess firearms; and that he and other associates had been seen firing weapons. Although the certification suggested that "several witnesses have stated concerns for their safety," it offered no substantiation of this point, merely concluding: "These threats are real and the only way to protect the witness[es] in this case is by a non-disclosure order." The certification lacked any indication...