COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70177 STATE OF OHIO : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION PAUL BISHOP : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: MARCH 20, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-327804 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor RICHARD A. NEFF Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: ROBERT R. CLARICO Assistant Public Defender 100 Lakeside Place 1200 West Third Street, N.W. Cleveland, Ohio 44113-1569 - 3 - O'DONNELL, J.: Paul Bishop appeals from a judgment of the common pleas court finding him guilty of carrying a concealed weapon with a violence specification and having a weapon while under disability with both a firearm and a violence specification. On February 2, 1995, Special Agent James Larkin of the Federal Bureau of Investigation and a member of the Fugitive Task Force in Cleveland discovered a homicide arrest warrant had been issued for Paul Bishop in June, 1979. Upon learning of this outstanding warrant, Larkin contacted Lieutenant Dennis Gunsch of the Cleveland Police Department Homicide Unit, verified the validity of the warrant, and reviewed the Cleveland Police Department file on Bishop's case. Upon further investigation, Larkin determined that Bishop lived at 2501 East 59th Street located in the King-Kennedy Estates, a housing complex operated by the Cleveland Metropolitan Housing Authority. Thereafter, on the afternoon of February 8, 1995, Larkin went to King-Kennedy Estates and met CMHA Police Officer Michelle Yeckley, showed her a picture of Bishop and informed her of the outstanding arrest warrant. She advised Larkin that she knew Bishop resided in apartment 315. The officers visited that apartment, but Bishop was not present at the time of their visit. Larkin then left Yeckley with a - 4 - photograph of Bishop and a copy of a computer printout indicating the existence of the 1979 warrant for Bishop's arrest. When Bishop returned to the housing complex around 9:00 that evening, Yeckley advised him of the warrant, arrested him, and then recovered a .22 caliber handgun from his right coat pocket. Subsequently, the grand jury indicted Bishop for carrying a concealed weapon and having a weapon while under disability, which count contained a firearm specification. At trial, the parties stipulated to appellant's 1974 conviction for illegal possession of a firearm. Then, on December 21, 1995, a jury found Bishop guilty of both counts and all specifications. Bishop now appeals his convictions and assigns two errors for our review. The first assignment of error states: I. THE TRIAL COURT ERRED IN DENYING MR. BISHOP'S MOTION TO SUPPRESS WHEN THE EVIDENCE SEIZED WAS THE FRUIT OF AN ILLEGAL SEARCH AND SEIZURE IN VIOLATION OF ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION AND THE FOURTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. The appellant contends that the trial court erred in denying his motion to suppress a .22 caliber handgun as the evidence was stained as a result of an illegal search of his person because the arresting officer had no authority to arrest him since she never physically saw or possessed the homicide arrest warrant. In support of his argument, Bishop urges that evidence obtained - 5 - as a result of an invalid search incident to an arrest be suppressed and cites Mapp v. Ohio (1967), 367 U.S. 642 and Wong Sun v. United States (1963), 371 U.S. 471, as authority for this position. The state maintains that the court correctly refused to suppress the evidence however because the arresting officer had probable cause to arrest the appellant based upon the computer generated information provided by Special Agent Larkin indicating the existence of an arrest warrant on a 1979 murder charge. The issue then, for our determination is whether the trial court erred in denying appellant's motion to suppress. In Howard v. Regional Transit Authority (1987), 667 F.Supp 540, the United States District Court analyzed the new problem areas in the law concerning arrests and warrants relevant to the complexity of law enforcement computer systems and observed the following historical progression: In the days before radio, law enforcement officers arrested suspects after actually seeing the crime committed before them, or pursuant to written arrest warrants in their possession. After the invention of the radio, police officers contacted their dispatcher, who would review the central files for any outstanding warrants for a suspect and would relay this information back to the officers. The law enforcement officers could then act on the arrest warrant without having an actual copy of the warrant in hand. Information in these central files would be periodically updated by the particular law enforcement agencies. Today, we are in the age of technology and information. Law enforcement agencies have computerized their files. Consequently, we have moved beyond the simple dispatcher system to a - 6 - computer system involving hundreds of thousands of law enforcement people obtaining information from all over the state and country.*** Id. at 546. That court went on to conclude that law enforcement officers may execute proper lawful arrests if they act "reasonably and consistent with the information obtained from the computer system***." Id. Further, Criminal Rule 4(D)(3) provides, in relevant part: ***The officer need not have the warrant in his possession at the time of the arrest. In such case, he shall inform the defendant of the offense charged and of the fact that the warrant has been issued.*** Here, a CMHA police officer acted in concert with Special Agent Larkin of the FBI who had verified the existence of a valid arrest warrant for a 1979 murder charge. Thus, when Bishop returned to the King-Kennedy Estates, Officer Yeckley informed him of the existence of the warrant and arrested him based upon the information available at the time of arrest, which included the computer generated data showing the existence of the warrant. Based upon these facts, the arresting officer acted "reasonably and consistently" with the available information and in conformity with Criminal Rule 4(D)(3) and, therefore, had probable cause to arrest Bishop. Consequently, the weapon recovered pursuant to that arrest is not "fruit of a poisonous tree." - 7 - Accordingly, the trial court properly denied the appellant's motion to suppress and this assignment of error is overruled. The second assignment of error states: II. MR. BISHOP'S RIGHT TO A FAIR TRIAL GUARANTEED BY THE DUE PROCESS PROVISIONS OF ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION AND THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY THE MISCONDUCT OF THE PROSECUTOR. The appellant contends that during final argument, the prosecutor intentionally misstated testimony of Officer Michelle Morenz by telling the jury she had testified she signed her maiden name to the evidence tag on a state's exhibit, when, in fact, she had not so testified. Appellant claims this prosecutorial misconduct constitutes reversible error when it has a material effect on the jury and its deliberations. Appellant claims substantial prejudice because his counsel had argued possible chain of custody problems with the handgun evidenced at trial and had urged the jury to find a reasonable doubt of guilt existed in the case. The state acknowledges it erred in not evidencing to the jury that Officer Morenz was known as Yeckley at the time she filled out the evidence card, but urges its final argument did not deny appellant's right to a fair trial and does not therefore constitute reversible prosecutorial misconduct. The issue for resolution then is whether the admitted misstatement by the prosecutor in closing argument constituted prosecutorial misconduct which prejudiced appellant's right to a - 8 - fair trial and thereby now warrants reversal of these convictions. "In general terms, the conduct of a prosecuting attorney during trial is not a ground for error unless that conduct deprives the defendant of a fair trial. (Citations omitted.)" State v. Loza (1994), 71 Ohio St.3d 61, 78. "Prosecutors must avoid insinuations and assertions calculated to mislead. They may not express their personal beliefs or opinions regarding the guilt of the accused, and they may not allude to matters not supported by admissible evidence." State v. Lott (1990), 51 Ohio St.3d 160, 166. More specifically, "the test regarding prosecutorial misconduct in closing arguments is whether the remarks were improper and, if so, whether they prejudicially affected substantial rights of the defendant. (Citation omitted). State v. Smith (1994), 14 Ohio St.3d 13, 14. "However, the closing argument must be reviewed in its entirety to determine if the prosecutor's remarks were prejudicial." (Citation omitted.) Loza, supra, at 79. Here, during closing argument, appellant's counsel argued to the jury: *** [B]ut look real closely at the evidence tag on there and ask yourself where you see a signature by an Officer Morenz. No one by the name of Officer Morenz ever signed this evidence tag. - 9 - In the rebuttal portion of final argument, the prosecutor stated the following in response to the position taken by the defense: ***Officer Morenz looked at this bag, said that this was her handwriting, her maiden name. (Emphasis added.) At this point, defense counsel objected but the trial court made no ruling on that objection. The transcript of the officer's testimony does not contain any reference to her maiden name whatsoever; however, the transcript does contain the proceedings conducted outside the presence of the jury on the defense counsel's motion to suppress evidence where at p. 20, the following colloquy occurs on direct examination: Q. [By Mr. Neff] Officer Yeckley, state your name for the record and spell your last name. A. Michelle Morenz, M-o-r-e-n-z. Q. Yeckley was your maiden name? A. No. Q. Whatever. Okay. You have changed names to Morenz now? A. Correct. And, at pp. 22-23, the following colloquy appears: Q. [By Mr. Soukup] Good morning, Officer. I hope you will excuse me. I had your name as Officer Yeckley, so if I slip up and repeat that, I apologize. Your current surname is Morenz? A. Right. - 10 - Q. M-o-r-e-n-s? A. Z. Q. Z. Thank you, Officer Morenz. I'll try to keep that straight. Hence, the record in the case demonstrates that both the prosecuting attorney and defense counsel knew that Officer Morenz had been known as Officer Yeckley at the time she signed the evidence identification tag containing the .22 caliber weapon. Furthermore, she testified at trial that she knew the gun presented in court to be the same one taken from Bishop on the night of the arrest because she put her initials and the date of arrest on the gun. (See Tr. at 165.) Based upon this evidence, we conclude that the statement of the prosecuting attorney neither misled the jury nor affected substantial rights of the defendant. Accordingly, this assignment of error is not well taken and is overruled. Judgment affirmed. - 11 - 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. NAHRA, P.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .