COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67286 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : : OPINION MARK JOHNSON AKA BIN KYLEASE : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: MAY 25, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-302213. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Richard A. Neff Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: John P. Parker, Esq. 4403 St. Clair Avenue Cleveland, Ohio 44103 SWEENEY, JAMES D., P.J.: Defendant-appellant Mark Johnson, aka Bin Kylease, was tried and convicted of carrying a concealed weapon, in violation of R.C. 2923.12, with both a firearm and a violence specification, and having a weapon while under a disability, in violation of R.C. 2923.13, also with firearm and violence specifications. The trial court merged the convictions, and sentenced the appellant to a mandatory term of three years incarceration on the firearm specification to be served prior to and consecutive with a term of incarceration of one and one-half to five years. At the suppression hearing prior to trial, Cleveland Police Detective Bienvenido Santiago testified that he has been a police officer for fourteen years, and has been assigned to the third district vice unit for the past nine years. On the night of September 15, 1993, at approximately 9:40 p.m., he and his partner, Detective Robert Preston, were patrolling in the area of East 46th and Central. They noticed Charisse Jackson, known to them as a prostitute, had flagged down a car. As the officers approached the woman with the intent to arrest her for loitering for purposes of prostitution, they noticed the appellant as he ran from East 46th Street to Central. He was yelling and screaming "Run, it's the Vice, run, it's the Vice" (T. 8). Detective Santiago observed the appellant throw his jacket onto the street. When Santiago picked the jacket up, he noticed it - 3 - was heavy, and upon reaching into the pocket, he found a 25 caliber automatic handgun. Once Officer Santiago yelled to Detective Preston that he found a gun in the jacket, Preston proceeded to chase the appellant. After a struggle, the appellant was placed under arrest for carrying a concealed weapon. Officer Santiago testified that prior to picking up the jacket, they were not interested in the appellant. Both the appellant and Ms. Jackson were very intoxicated. The trial judge denied the motion to suppress, and the trial commenced. The testimony of Detective Santiago at trial was consistent with his testimony at the suppression hearing. The detective stated that he was still seated in the car when he first saw the appellant, and that his partner was in the process of exiting the vehicle to arrest Jackson. Detective Santiago saw the appellant throw his jacket near the front wheel of the car that had been flagged down by Jackson. In the jacket pocket, the detective found a loaded gun. Detective Santiago testified that the appellant informed him that Jackson was his wife; that while the appellant was being arrested, Jackson began to interfere; and that both the appellant and Jackson were finally arrested, placed in the rear of the police car, and taken to the police station. Upon arrival at the Justice Center, the appellant produced the welfare identification and social security card of Archie Jones. The officers knew that the appellant was not Archie Jones, and - 4 - again asked for his name. The appellant responded with a name he could not spell. The appellant then refused to give his birth date, and was eventually booked as a John Doe. His name was discovered by matching his fingerprints, and he was charged as Mark Johnson. Detective Preston's testimony was corroborative to that given by his partner. He added that Ms. Jackson was so intoxicated that she could barely stand, and could not have responded to the appellant's command to run. He also testified that when asked, Jackson did not know the names of the people in the car she had stopped; that he was not in a position to see the appellant throw down the jacket; that when his partner informed him of the gun, he chased the appellant; and that he was able to leave Jackson because she was so intoxicated she could not have left the area. Detective Preston testified that the appellant was intoxicated, "and was not in too good shape, either." (T. 107.) The appellant presented the testimony of Charisse Jackson. She testified that she has known the appellant for two years. On the evening of September 15, 1993, she and the appellant were celebrating her birthday. Ms. Jackson had just left a beverage store located on the corner of East 46th and Central when she saw friends of her father's, Keith and Hattie, who were seated in a parked car. She approached them, and they wished her a happy birthday. She did not flag down any cars that evening. As she was talking to her friends, she observed the appellant crossing the - 5 - street as he was chased by one of the officers. At the time, she did not know the man chasing the appellant was a police officer. Jackson also testified that she was kicked by one of the officers. After they were arrested, the officers kept referring to the appellant by someone else's name. On cross-examination, Ms. Jackson admitted that she began drinking at approximately 5:00 p.m., and that by the time she was arrested had imbibed two 40 ounce bottles of beer, and a one-fifth bottle of wine. Ms. Jackson testified that the police never asked her the names of the people she was speaking to; she did not know these police officers prior to her arrest; that the appellant was not wearing a jacket; that she does not know why the police began to chase the appellant; and that the appellant was her common law husband. When asked if she was found guilty of loitering for prostitution, Ms. Jackson denied entering a plea in front of the judge; but she admitted to being arrested and charged for loitering as a result of this incident under the name of Michelle Thomas. Upon further questioning, Jackson did not dispute accuracy of the journal entry presented by the prosecutor (T. 133-135). Ms. Jackson also admitted that in order to obtain medical attention she attempted to hang herself in the jail. She testified that she lost the child two months afterwards. The appellant set forth five assignments of error. The first assignment of error: - 6 - I THE TRIAL COURT IMPROPERLY DENIED THE APPELLANT'S MOTION TO SUPPRESS EVIDENCE IN VIOLATION OF THE FOURTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND ART. I., SEC. 14 OF THE OHIO CONSTITUTION. The appellant argues that the he did not abandon his jacket, and that the police had no legitimate reason to seize or search the jacket. The State maintains that the trial court was correct in its assessment that since the appellant was not stopped by the police there was no illegal search and seizure. In State v. Barnwell (1993), 87 Ohio App.3d 637, this court cited to California v. Hodari D. (1991), 499 U.S. 621, and held that in order for a seizure to occur, there must either be some application of physical force, even if extremely slight, or a show of authority to which the subject yields; a show of authority without any application of physical force, to which the subject does not yield is not a seizure. The court held that the defendant was not seized when he voluntarily discarded cocaine by dropping it upon the approach of the plain clothes officers. This court found a jacket to be abandoned in State v. Lankford (March 12, 1992), Cuyahoga App. No. 62231, unreported. The court noted that an individual lacks standing to object to a search and seizure of property that has been voluntarily abandoned. State v. Freeman (1980), 64 Ohio St.2d 291. - 7 - The trial court denied the motion to suppress, and distinguished the present situation from one where a defendant drops property as the police approach. Here, the appellant voluntarily entered the scene, threw down his jacket, and continued with his actions. The police were not approaching him. That the appellant threw his jacket into the street shows an intent to abandon the property. The trial court did not err in finding that the appellant abandoned his jacket, and in overruling the motion to suppress. The appellant's first assignment of error is overruled. The second and third assignments of error will be considered together: II THE STATE IMPROPERLY CROSS-EXAMINED THE DEFENSE WITNESS IN VIOLATION OF EVIDENCE RULES 410, 608 AND 609 AND VIOLATED THE APPELLANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS UNDER THE OHIO AND U.S. CONSTITUTIONS. III THE STATE IMPROPERLY CROSS-EXAMINED THE PRIMARY DEFENSE WITNESS BY ELICITING FROM HER A SUICIDE ATTEMPT ON THE NIGHT IN QUESTION IN VIOLATION OF EVIDENCE RULES 401 AND 402. In essence, the appellant contends that the court erred in failing to sustain objections to the State's cross-examination of Ms. Thomas. The scope of cross-examination is within the sound discretion of the trial court, and absent an abuse of discretion, evidentiary rulings will not be reversed upon review. Evid.R. 103(A); State v. Maurer (1984), 15 Ohio St.3d 239, 265; State v. - 8 - Lundy (1987), 41 Ohio App.3d 163, 169; State v. Blair (1990), 70 Ohio App.3d 774, 781. First, the appellant cites Evid.R. 410(A)(2), and argues that the State was prohibited from questioning Ms. Thomas regarding her plea in Cleveland Municipal Court and charges pending against her for obstructing justice. The prosecution correctly asserts that Evid.R. 410(A)(2) applies only to a defendant, and not to a witness. The appellant next argues that Evid.R. 608 and 609 were violated when the State was permitted to question Ms. Thomas regarding her plea and the pending charges because it constituted an improper attack on her character and conduct. The credibility of a witness may be affected by the ability to state correctly and clearly the facts as remembered and as they took place. State v. Pinkney (1988), 36 Ohio St.3d 190. Ms. Jackson was unable to recall the outcome of her arrest, and the want of clearness of her recollection affected her credibility. The State was permitted to question the appellant on all matters connected with her behavior at the time of the events in question. Assuming arguendo that the court erred in permitting the cross-examination of Ms. Jackson as to her conviction, the error was harmless beyond a reasonable doubt. Detective Santiago testified that he "personally observed the jacket, which came off of the defendant, which was thrown to the ground, and I retrieved the jacket and the gun." (T. 68.) Santiago also stated that the - 9 - police were not interested in the appellant at all until he voluntarily entered the scene by yelling to Ms. Thomas to run. In light of the overwhelming evidence in support of the appellant's conviction, any error by the trial did not result in prejudice to the appellant. State v. Lundy, supra. The appellant also contends that the trial court erred in allowing the State to question Ms. Jackson regarding her attempted suicide at the jail subsequent to her arrest. The appellant argues that this questioning was not relevant under Evid.R. 401, and inadmissible pursuant to Evid.R. 402. The State contends that the state of mind, and the powers of observation, of the witness were relevant and admissible, and in the alternative, that the court did not abuse its discretion. In State v. Porch (May 5, 1994), Cuyahoga App. No. 65348, unreported, this court held that the exclusion of relevant evidence rests with the sound discretion of the trial court. Absent an abuse of discretion and a showing that the appellant was materially prejudiced, an appellate court should be slow to interfere with the evidentiary rulings of the trial court. State v. Maurer, supra. The trial court did not abuse its discretion in permitting the State to cross examine Ms. Jackson regarding her attempted suicide. The State is permitted to broadly question the credibility of the witness, and an attempted suicide is relevant to the witness's ability to observe her surroundings at the time of the crime. Assuming the court did err, given the overwhelming evidence of - 10 - guilt, the appellant has failed to show any material prejudice incurred by these questions. The appellant's second and third assignments of error are overruled. The fourth assignment of error: IV PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT DENIED THE APPELLANT A FAIR TRIAL AND DUE PROCESS IN VIOLATION OF THE U.S. AND OHIO CONSTITUTIONS. The appellant sets forth two instances where he believes the State acted improperly in closing arguments: There was no question in their mind that this defendant was the one who threw the jacket with this gun to the ground. What happened here is that this man was drunk, his wife was drunk, his wife was on the street selling her body -- (T. 164-165) and And there are many people in this community that argue there aren't enough police on the street trying to do their jobs, all the police are back in the districts behind their desks. Well, these two men are out on the street doing their job, they're trying to clear the streets of prostitution and drug sales and people carrying weapons, and they did their job. And I ask you to validate their work by finding the defendant guilty. (T. 165-166.) The Supreme Court has held that the conduct of a prosecuting attorney during trial cannot be made a ground of error unless the - 11 - conduct deprives the defendant of a fair trial. State v. Keenan (1993), 66 Ohio St.3d 402, citing to State v. Apanovitch (1987), 33 Ohio St.3d 19. In State v. Harris (October 13, 1994), Cuyahoga App. No. 66103, unreported, this court noted that the test regarding prosecutorial misconduct in closing argument is whether the remarks were improper, and if so, whether they prejudicially affected a substantial right of the defendant. In deciding whether a defendant was denied a fair trial, the court must determine whether the fact finder would have found the defendant guilty absent the prosecutor's remarks. State v. Smith (1984), 14 Ohio St.3d 13; State v. Maurer (1984), 15 Ohio St.3d 239. Here, assuming arguendo that the prosecutor's remarks were improper, the appellant has demonstrated no material prejudice. The prosecutor commented that one witness was a prostitute, a fact that was testified to by Detective Santiago. The prosecutor then asked the jury to validate the officers' efficient performance of their duties. This is not an impermissible comment upon the credibility of a witness, nor a comment regarding the prosecutor's personal beliefs as to the appellant's guilt or innocence. These comments did not deprive the appellant of a fair trial. The appellant's fourth assignment of error is overruled. The fifth assignment of error: V THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL FAILED TO REQUEST A JURY INSTRUCTION CONCERNING THE APPELLANT'S RIGHT NOT TO TESTIFY. - 12 - The appellant contends that the appellant was rendered ineffective assistance of counsel by the failure of counsel to request a jury instruction concerning the appellant's right not to testify. The State argues that this was a tactical decision on the part of the trial counsel, and such a decision should not be second guessed by a reviewing court. A close review of the transcript supports the State's argument. Shortly after the jury began its deliberations, the following statements were made on the record: MR. NEFF: Judge, the only thing I wanted to put on the record was for the record to reflect that defense counsel just at side bar stated that he did not request the charge regarding the fact that the defendant did not testify and that shouldn't be held against him, that he waived that charge. THE COURT: Okay. MR. NEFF: Is that correct, Mr. Mancino? MR. MANCINO: I didn't request it. (T 195-196.) The appellant has a right to have the judge instruct the jury that the appellant's failure to testify cannot be considered for any purpose. Upon proper request, the court has a mandatory duty to give such an instruction. State v. Fanning (1982), 1 Ohio St.3d 19. The request, however, must be in writing and made at the close of evidence, or at such earlier time as the court reasonably directs. Fanning, supra; Crim.R. 30. Here, there was no such written request, and in fact, it is clear from the record that - 13 - trial counsel specifically chose not to object to the failure of the court to give an instruction regarding the accused right not to testify. In light of these facts, the issue before this court is whether or not the appellant was rendered ineffective assistance of counsel based upon the failure of counsel to request the instruction. The test for ineffective assistance of counsel was given by the Ohio Supreme Court in State v. Bradley (1989), 42 Ohio St.3d 136. The court held that counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. See also Strickland v. Washington (1984), 466 U.S. 668, 687, where the United States Supreme Court set forth a two- pronged analysis for determining whether counsel's assistance was so defective as to require reversal. First, the defendant must show that counsel's performance was deficient, and that the errors were so serious that counsel was not functioning as "counsel" as guaranteed by the Sixth Amendment. Second, the defendant must demonstrate that the deficient performance was prejudicial to the defense, and that the errors deprived the defendant of a fair trial. In the case sub judice, the appellant has not shown that counsel's performance fell below an objective standard of reasonableness. It is clear that counsel had the opportunity to - 14 - object, and chose otherwise. The appellant has not demonstrated that this decision fell below an objective standard of reasonable representation such that he was deprived of "counsel." Nor has the appellant shown, assuming counsel was ineffective, that the error was so prejudicial as to deprive him of a fair trial. The eyewitness testimony of Detective Santiago provided the jury with overwhelming evidence of the appellant's guilt. The fifth assignment of error is overruled. Judgment affirmed. - 15 - It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, J., and JAMES M. PORTER, J., CONCUR. JAMES D. SWEENEY PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time .