COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 57790 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : CHARLES E. JOHNSON : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 12, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-230258-A JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: MACY LEE, ESQ. ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID L. DOUGHTEN, ESQ. 4403 St. Clair Avenue Cleveland, Ohio 44103 -2- DYKE, P.J.: Appellant, Charles Johnson, appeals his conviction for two counts of aggravated murder. For the following reasons, we affirm. Debra Pinson testified that on July 21, 1988, she heard gunshots outside her home. She looked out the window and observed a male shooting at a white car that was pulled up to the curb. The driver of the car was shot first, then the backseat passenger. A female ran out of the car, and the gunman fired a shot in her direction, but into the air. Then, the gunman and another man ran away. Pinson selected appellant's photo from a photographic lineup and identified appellant as the shooter. Fred Walker testified that before the shooting, he saw two men talking with a woman. He later saw the woman in the car. Anthony Henry testified that he was eleven years old at the time of the shooting. On July 21, 1988, he was riding a bike down Lee Avenue. Henry saw a man showing a gun to another man. The man with the gun was wearing a gray t-shirt and blue jeans. Henry identified appellant from a photo array as the man with the gun. The other man wore a red tank top. Henry continued riding the bike. Then, Henry heard three shots. Henry saw appellant and the other man running through the churchyard. Detective Zajac testified that a red tank top was recovered on the scene, near Harry Davis Middle School. Dawon Moore, a sixth grader, testified that on July 21, 1988, he looked out the window of his third floor apartment. Moore saw a male run up to a white car, shoot the driver once and the -3- backseat passenger twice. The shooter was a short male wearing a white t-shirt and blue jeans. Then, the shooter ran away. Moore identified appellant from a photo array as the shooter. Terrence Tyson testified that on July 21, 1998, he was playing basketball behind the middle school on Orville Road. He heard what sounded like firecrackers. Minutes later, two males ran and jumped a fence that surrounds the church on Lee Avenue. Tyson recognized one of the men as appellant. Tyson knew appellant from the car wash. Tyson saw the other man hand appellant an object that looked like a gun. Karen East testified that in the afternoon of July 21, 1988, appellant came to her home. Appellant possessed $5,000 and two ounces of dope." Appellant said that she would never believe what he had just done. Gerald Thomas testified that on July 22, 1988, appellant was at his home. Thomas asked appellant about the shooting on Lee Avenue. Appellant said he was there but Tone did the shooting. Appellant also stated that Ruby Harris was in the car with the two victims, who were from Detroit. Appellant said he and Tone got in the car and tested the cocaine. Appellant and Tone left the car. Tone asked appellant to kill the Detroit boys but appellant refused. Tone killed them and appellant grabbed a bag of cocaine from the car. Thomas was initially arrested as a suspect in this case. Fernandez Pierce and Timothy Pierce testified that on July 21, 1988, appellant had five ounces of cocaine. Appellant said he and -4- his cousin had robbed a dope house and that appellant was the snatch and grab man. Francine Mitchell testified that she lived with the victim, Warren Howell. Mitchell stated that Howell and Ruby Harris worked together dealing drugs. On the day of the shooting, Warren Howell left the house with five ounces of cocaine. Howell said he was going to meet Ruby Harris. Mitchell also testified that Howell purchased drugs from a man name Grigsby. Grigsby's cousin is from Detroit. Howell went to Detroit with Grigsby and his cousin. Detective Jon Qualey testified that when appellant was booked, appellant said his address was 11025 Wade Park Avenue. An Ohio Bell employee testified that phone records reflected hundreds of calls to Detroit from 11025 Wade Park over a relatively short time. Also, an FBI agent called the phone number listed for 11025 Wade Park to make drug buys from the Detroit Young Boys." I. Appellant's first assignment of error states: THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT ALLOWED THE STATE TO READ PRIOR WRITTEN STATEMENTS OF WITNESSES TO THE JURY. On cross-examination, the defense attempted to impeach Anthony Henry and Dawon Moore by using the written statements these witnesses made to the police. The defense extensively used these statements to cross-examine these witnesses. On re-direct, the prosecution read the entire written statements into the record. Reading Henry's entire statement clarified the context of indivi- dual statements used in the cross-examination. The prosecution -5- asserted it was necessary to read Moore's statement, because the defense paraphrased from the report and did not read its exact words. A prior consistent statement is not admissible solely to bolster the testimony of a witness. State v. Jackson (1991), 57 Ohio St.3d 29, 37. However, when a prior written statement is used to impeach a witness, the entire document is admissible upon re- direct, as long as new issues are not injected into the case. Shellock v. Klempay Bros. (1958), 167 Ohio St. 279, 282. When the defense uses a police report extensively to impeach a witness, the prosecution may have the entire report read into the record to rehabilitate the witness. State v. Rivera (Nov. 9, 1989), Cuyahoga App. No. 56158, unreported, State v. Green (Apr. 13, 1989), Cuyahoga App. No. 55226, unreported, State v. Ciasullo (Jan. 21, 1981), Cuyahoga App. No. 42702, 43172, unreported. The trial court did not err in permitting the police reports to be read into the record on rebuttal. Accordingly, this assignment of error is overruled. II. Appellant's second assignment of error states: THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT PERMITTED THE STATE TO CALL A SURPRISE WITNESS AND DID NOT GRANT DEFENSE COUNSEL'S REQUEST FOR A CONTINUANCE. During the fourth week of the trial, the prosecution was permitted to add Hattie Mason to their witness list. The purpose of Mason's testimony was to refute defense counsel's remark in opening statements that appellant had no connection with the -6- victims. The court denied appellant's motion for continuance. The defense interviewed Mason before she testified. Mason testified the day after the prosecution moved to add her to the witness list. Mason testified that on June 5, 1988, she went to a picnic attended by about one hundred people. She saw appellant in a group of six men. The victim, Warren Howell, was also in this group. The men were standing around a table, talking. Mason could not remember the identity of the other four men in the group. The admission of evidence is only reversible if the trial court abused its discretion. State v. Finnerty (1989), 45 Ohio St.3d 104, 107. The state is required to timely disclose the identity of witnesses. Id., Crim. R. 16. The court does not abuse its discretion in admitting the testimony of a witness that was not timely disclosed if the record does not demonstrate: (1) that the prosecutor willfully failed to disclose, (2) that foreknowledge of the statement would have benefitted the accused, or (3) that the accused was prejudiced by the admission of the statement. State v. Parson (1983), 6 Ohio St.3d 442, State v. Heinish (1990), 50 Ohio St.3d 231. The record does not indicate that the prosecutor willfully failed to disclose. The issue of whether the appellant and the victims knew each other did not arise until opening statements. The prosecution did not discover the identity and whereabouts of the witness until they moved to place Mason on the witness list. Appellant claims that foreknowledge of Mason's testimony would have benefitted him because he could have obtained rebuttal -7- witnesses consisting of other people at the picnic. Appellant could have discovered rebuttal witnesses over the weekend. See Heinish, supra. We can not say that the trial court abused its discretion in failing to grant a continuance under the facts of this case. Appellant contends that Mason's testimony made defense counsel appear deceitful. Mason's testimony did not necessarily make defense counsel look deceitful. The evidence had nothing to do with the material elements of the charge. Appellant was not prejudiced by the admission of Mason's testimony. Even if the trial court erred in allowing Mason to testify, the error was harmless and not reversible error. See Crim.R. 52. There is no reasonable probability the jury would have acquitted appellant had this evidence not been admitted. See State v. Brown (1992), 65 Ohio St.3d 483. The remaining evidence, standing alone, constituted overwhelming proof of appellant's guilt. State v. Williams (1983), 6 Ohio St.3d 281. Accordingly, this assignment of error is overruled. III. THE APPELLANT'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 MIS- CONDUCT OF THE PROSECUTOR. Appellant contends the prosecutor engaged in misconduct by calling Monique Patton to testify. Patton testified that on July 20, 1988, she was eleven years old. On that date, she went to 11025 Wade Park Avenue with a man named Tone. Appellant was also -8- inside the house. On cross-examination, Monique further stated that she did not recall the exact date she saw Tone and appellant at the house. The prosecutor told her the date. On redirect, Monique said that on the same day she saw appellant at the house, she spoke with police at the hospital. She told the police what happened at the 11025 Wade Park home. On recross, the defense asked why Monique had to go to the hospital. Monique said, I had a checkup." On redirect, the prosecutor asked, Did you go to the hospital on that date that you were at Chuck's (appellant's) house at 11025 Wade Park Avenue as a result of what happened in that house? An objection was sustained and the witness did not answer the question. Out of the hearing of the jury, the defense moved for a mistrial. The defense argued that the prosecutor was aware that Monique told police that she had been raped by Tone and appellant was somehow involved. Defense counsel did not know of the rape allegation until after the witness testified. According to the defense, the prosecution's purpose in putting Monique on the stand was to implicate appellant in a rape. The trial judge offered to instruct the jury to disregard any testimony concerning what happened to Monique at the house. The defense refused the curative instruction, because it would draw the jury's attention to the matter. The trial judge denied appellant's request to strike Monique's entire testimony and denied the motion for a mistrial. -9- The test for prosecutorial misconduct is whether the prosecutor's conduct was improper and, if so, whether the conduct prejudicially affected the substantial rights of the accused. State v. Lott (1990), 51 Ohio St.3d 160, State v. Smith (1984), 14 Ohio St.3d 13. Appellant asserts it was improper to call Monique to testify. Monique's testimony placed Tone and appellant at the 11025 Wade Park address shortly before the murder. The prosecutor called Monique for a legitimate purpose. It was not improper to ask Monique whether she spoke to the police that day, in order to establish the date she saw appellant at the home. It was improper for the prosecutor to ask Monique if she went to the hospital as a result of what happened at appellant's home. See Evid.R. 402, 403, 404(B). The prosecutor's improper question was not prejudicial if it was clear beyond a reasonable doubt that the jury would have found defendant guilty had the question never been asked. See Smith, supra at 15, State v. Martin (1986), 21 Ohio St.3d 91, 96, State v. Keenan (1993), 66 Ohio St.3d 402, 410. The judge sustained an objection to this question, and the witness did not answer. The jury had no facts before it upon which it could infer that appel- lant was involved in harming Monique. Appellant was not pre- judiced, because the trial court sustained the objection. See Lott, supra at 167, State v. Brumback (1996), 109 Ohio App.3d 65, 82. It was clear beyond a reasonable doubt that the jury would have found appellant guilty, even if the prosecutor never asked the improper question. -10- Accordingly, this assignment of error is overruled. The decision of the trial court is 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. KARPINSKI, J., AND MCMONAGLE, J., CONCUR. ANN DYKE PRESIDING JUDGE 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 of decision by the .