State v. Horger

Farmer, Judge. ¶ 1 On July 16, 2006, the Stark County Grand Jury indicted appellee, Nicklaus Palmer Horger, on the following charges: one count of rape in violation of R.C. 2907.02(A)(1)(b), a first-degree felony, and two counts of gross sexual *385 imposition in violation of R.C. 2907.05(A), both third-degree felonies. The alleged victim is a minor child. ¶ 2 On September 7, 2006, appellee filed a motion for the disclosure of the child’s grand jury testimony. Upon review, and prior to appellant’s response, the trial court sua sponte ordered appellant to transcribe the testimony and provide appellee with a transcript of it. ¶ 3 On September 26, 2006, appellant moved the trial court to reconsider the sua sponte order, and the matter was set for hearing. At the hearing, the trial court indicated that there had been a review of a transcript of the child’s interview at Akron Children’s Hospital and a review of the state’s bill of particulars. Upon review of this information, the trial court found inconsistencies in the child’s statements. The trial court further speculated that because there were inconsistencies in those statements, there must also be inconsistencies between the grand jury testimony and other statements made by the child during the investigation. For this reason, the trial court found that appellee had established a particularized need for disclosure of the child’s grand jury testimony and further ordered that a transcript of the testimony be provided to appellee. It is from this order that appellant was granted leave to appeal. ¶ 4 Appellant sets forth the following assignment of error for consideration: ¶ 5 “The trial court abused its discretion when it sustained appellee’s motion to disclose the victim’s testimony before the grand jury.” ¶ 6 In this appeal, appellant argues that the trial court abused its discretion in ordering appellant to transcribe and provide appellee with the child’s grand jury testimony. Specifically, appellant argues that appellee failed to demonstrate a particularized need for the testimony that would outweigh the need for secrecy. ¶ 7 The disclosure of grand jury testimony is governed by Crim.R. 6(E) and Crim.R. 16(B)(3), and the disclosure of materially inconsistent statements is governed by Crim.R. 16(B)(1)(g). Disclosure of grand jury testimony is controlled by Crim.R. 6(E), not by Crim.R. 16(B)(1)(g), and any release of that testimony for use prior to or during trial is within the sound discretion of the trial court. State v. Coley (2001), 93 Ohio St.3d 253, 261, 754 N.E.2d 1129. ¶ 8 Crim.R. 6(E) provides that a “prosecuting attorney * * * may disclose matters occurring before the grand jury, other than deliberations of a grand jury or the vote of a grand juror, but may disclose matters only when so directed by the court preliminary to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that *386 grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury.” ¶ 9 In State v. Greer, the Supreme Court of Ohio stated, “Grand jury proceedings are secret, and an accused is not entitled to inspect grand jury transcripts either before or during trial unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy.” State v. Greer (1981), 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, paragraph two of the syllabus. A particularized need is established “ ‘when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial’ ” of the allegations placed in issue by the witnesses’ testimony. State v. Davis (1988), 38 Ohio St.3d 361, 365, 528 N.E.2d 925, quoting State v. Sellards (1985), 17 Ohio St.3d 169, 173, 17 OBR 410, 478 N.E.2d 781. State v. Hernandez (Mar. 29, 1991), Columbiana App. No. 87-C-56, 1991 WL 44362; and State v. Dillon, Darke App. No. 05CA1674, 2006-Ohio-4931, 2006 WL 2709704. ¶ 10 Impeachment through material inconsistencies may be a proper basis for disclosure of grand jury testimony, but that purpose alone is not sufficient. State v. Patterson (1971), 28 Ohio St.2d 181, 57 O.O.2d 422, 277 N.E.2d 201; Hernandez. The claim that a witness’s grand jury testimony may differ from trial testimony is insufficient to show a particularized need. State v. Henness (1997), 79 Ohio St.3d 53, 62, 679 N.E.2d 686. Accordingly, in conjunction with the impeachment purpose, the particularized-need standard must still be met. Hernandez. ¶ 11 “When defense counsel asserts and establishes to the satisfaction of the trial court a particularized need for certain grand jury testimony, the trial court, along with defense counsel and counsel for the state, shall examine the grand jury transcript in camera and give to defense counsel those portions of the transcript relevant to the state’s witness’ testimony at trial, subject to the trial court’s deletion of extraneous matter, and issuance of protective orders where necessary.” State v. Greer, 66 Ohio St.2d 139, 20 O.O.3d 157, 420 N.E.2d 982, paragraph four of the syllabus. Absent the showing of a particularized need, the trial court judge has no obligation to examine the grand jury testimony of the witness. ¶ 12 In this case, appellee argues that the grand jury testimony is necessary for impeachment purposes. In response, and absent an in camera review of the child’s grand jury testimony, the trial court granted disclosure of the grand jury testimony. ¶ 13 Even if appellee establishes the probability of inconsistent statements, the trial court must conduct an in camera examination of the testimony to *387 determine whether there is a particularized need for disclosure. Specifically, the trial court should determine whether the failure to disclose the testimony will deny appellee a fair trial or, in the alternative, whether appellee’s request for disclosure is a fishing expedition for inconsistent statements that are readily available or could be demonstrated by alternative means sufficient to show the inconsistencies in question. Furthermore, the trial court should consider whether, pursuant to Crim.R. 16(B)(1)(g), the grand jury testimony is more appropriately made available if the child’s trial testimony is materially inconsistent with the grand jury testimony and therefore necessary solely for impeachment purposes after the child testifies at trial, rather than for pretrial discovery. ¶ 14 In this case, on the record, the trial court stated as follows: When I look at the Bill of Particulars, I see that the Bill of Particulars is inconsistent with what the young lady said at Akron General. On the basis of that there are obvious inconsistencies between what she said at grand jury and what she said at Akron General. Therefore, I am ordering the State of Ohio to produce the grand jury testimony of the alleged victim because it is inconsistent with what she stated to the interviewer at Akron General. And I’m finding that because of that because that shows a particularized need. ¶ 15 The trial court’s judgment entry after the hearing motion to reconsider does not acknowledge that one more step is necessary before disclosure to appellee and his trial counsel. Because there has yet to be an in camera inspection of the grand jury testimony by the trial court, the relinquishment of the transcript to appellee is premature. ¶ 16 Accordingly we hereby reverse the decision and remand this matter to the trial court for an in camera inspection of the child’s grand jury testimony and for further proceedings consistent with this opinion. Judgment reversed and cause remanded. Wise, P.J., concurs. Hoffman, J., concurs separately.