TRESSA SHERROD, et al. v. STEPHEN K. HALLER, et al.
Appellate Case No. 2016-CA-24
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
June 30, 2017
2017-Ohio-5614
Trial Court Case No. 2016-CV-79
OPINION
Rendered on the 30th day of June, 2017.
MICHAEL L. WRIGHT, Atty. Reg. No. 0067698, 130 West Second Street, Suite 1600, Dayton, Ohio 45402
and
RICHARD W. SCHULTE, Atty. Reg. No. 0066031, 865 South Dixie Drive, Vandalia, Ohio 45377
And
DENNIS MULVIHILL, Atty. Reg. No. 0063996, 23240 Chagrin Boulevard, Suite 620, Cleveland, Ohio 44122
Attorneys for Petitioners-Appellants
STEPHEN K. HALLER, Atty. Reg. No. 0009172, by NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Greene County Prosecutor‘s Office, 61 Greene Street, 2nd Floor, Xenia, Ohio 45385
Attorney for Respondents-Appellees
{¶ 1} Petitioners-appellants, Tressa Sherrod, individually and as executrix of the Estate of John H. Crawford, III; John Crawford, Jr.; and LeeCee Johnson, next friend of two minors, appeal from the trial court‘s dismissal of their Petition for Limited Release of Grand Jury Transcript (the “Petition“). Appellants argue that the trial court erred by “improperly bas[ing] its decision wholly on a mere recitation of the general benefits of not disclosing grand jury testimony” and a “speculative, irrelevant belief or hope” that they will eventually be able to obtain essentially the same information described in the Petition through other means. Appellants’ Br. 5. Having reviewed the trial court‘s decision de novo, we conclude that the court did not err by dismissing the Petition, and we therefore affirm.
{¶ 2} According to the parties, this case relates to the death of John Crawford, III at a Wal-Mart store in Beavercreek on August 5, 2014. Id. at 2; Appellees’ Br. 1. They indicate that Mr. Crawford‘s death led to an investigation by the Greene County Prosecutor, the convening of a Greene County grand jury, and his family‘s filing of a lawsuit in the United States District Court for the Southern District of Ohio. Petition ¶¶ 4-6, 18; Appellants’ Br. 2-3; see Appellees’ Br. 1. They indicate, as well, that the United States Department of Justice is presently conducting an investigation. Appellants’ Br. 4; Appellees’ Br. 5.
{¶ 3} In the Petition, filed on February 2, 2016, Appellants allege that two officers with the Beavercreek Police Department were dispatched to the Wal-Mart store in response to a 911 call about “a black male * * * who[m] the caller claimed was pointing an assault rifle at customers,” and that after the officers arrived at the store, one of them shot and killed Mr. Crawford. Petition ¶¶ 1-3. Alleging further that the two officers testified before the Greene County grand jury without invoking their rights under the Fifth Amendment, Appellants requested the release of transcripts of the officers’ testimony. Appellants predicated their request on their federal lawsuit, stating that the federal court had stayed the officers’ depositions. Petition ¶¶ 19-23. In response, Appellees filed an answer generally denying Appellants’ allegations, along with a motion to dismiss under
{¶ 4} The trial court sustained Appellees’ motion pursuant to
II. Analysis
{¶ 5} For their sole assignment of error, Appellants contend that:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING THE MOTION TO DISMISS A PETITION FOR RELEASE OF GRAND JURY TRANSCRIPT WHEN THE NEED FOR SECRECY, IF ANY, IS FAR OUTWEIGHED BY THE NEED FOR DISCLOSURE FOR A CIVIL LAWSUIT INVOLVING THE SAME WITNESSES.
{¶ 6} Dismissal “under
{¶ 7} A “court may order disclosure of evidence presented to a grand jury ‘only after [it] carefully weighs the need to maintain the secrecy of the grand jury proceedings against [the] petitioner‘s need for the information and determines that justice can only be done if disclosure is made.’ ” Wiggins v. Kumpf, 2d Dist. Montgomery No. 26263, 2015-Ohio-201, ¶ 8 (quoting In re Petition for Disclosure of Evidence Presented to Franklin County Grand Juries in 1970, 63 Ohio St.2d 212, 218, 407 N.E.2d 513 (1980)). To evaluate the need for secrecy of grand jury proceedings, a court should refer to the following five “reasons for preserving secrecy“:
- [P]revent[ing] the escape of those whose indictment may be contemplated;
- [I]nsur[ing] the utmost freedom to the grand jury in its deliberations, and * * * prevent[ing] persons subject to indictment or their friends from importuning the grand jurors;
- [P]revent[ing] subornation of perjury or tampering with * * * witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it;
- [E]ncourag[ing] free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and]
- [P]rotect[ing] innocent [persons] who [are] exonerated from disclosure of the fact that [they have] been under investigation, and from the expense of standing trial where there was no probability of guilt.
In re Petition for Disclosure, 63 Ohio St.2d at 219 (quoting United States v. Rose, 215 F.2d 617, 628-629 (3d Cir. 1954)). The petitioner‘s burden to demonstrate ” ‘a particularized need for disclosure [that] outweighs the need for secrecy’ ” is, however, “a threshold requirement.” State v. Curran, 166 Ohio App.3d 206, 2006-Ohio-773, 850 N.E.2d 81, ¶ 16 (2d Dist.) (quoting State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), syllabus).
{¶ 8} Appellants argue that they have a particularized need for disclosure of the two police officers’ grand jury testimony as a result of their federal lawsuit. Petition ¶¶ 19-22; Appellants’ Br. 7-8. First, Appellants allege that the officers’ testimony “will contain important witness information directly related” to their federal claims. Petition ¶ 20. Second, Appellants allege that because the officers’ federal depositions have been stayed, their investigation of the background facts has been “severely hampered,” leaving them
{¶ 9} Regarding Appellants’ former allegation, the relevancy and potential usefulness of the officers’ grand jury testimony for purposes of their federal lawsuit is readily apparent. Additionally, if the transcripts of the officers’ testimony “were made available, [then Appellants’ need to engage in] discovery through depositions, which might involve delay and substantial costs, would be avoided.” United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S. Ct. 983, 2 L.Ed.2d 1077 (1958). These showings nevertheless “fall short of proof that without the transcript[s] [Appellants] would be greatly prejudiced or that * * * an injustice would be done.” Id.
{¶ 10} Regarding Appellants’ latter allegation, the “particularized need” test “is satisfied if, considering all of the surrounding circumstances, ‘it is probable that the failure to disclose [grand jury] testimony will deprive the petitioner of a fair adjudication of a pending action.’ ” Wiggins, 2015-Ohio-201, ¶ 8 (quoting State v. Webb, 2d Dist. Greene No. 2005 CA 52, 2006-Ohio-1113, ¶ 12). Appellants do not assert that they will not be able to depose the officers in the federal case. Instead, they note that as of “the time of the [filing of] the Petition, the stay had not been lifted“; that as of “the time [the trial court filed] the Decision, the stay had not been lifted“; and that despite the passage of “nearly two years since [they initiated] the [federal] [l]awsuit * * * no[body] knows when the stay will be lifted, if ever.” Appellants’ Br. 7-8. They add that “assum[ing] that the stay will be lifted before the trial of the [federal] [l]awsuit” is “speculative” at best. Id. at 8.
{¶ 11} Although the federal court‘s order staying the two officers’ depositions has doubtless inconvenienced Appellants, the imposition of the stay itself does not satisfy the “particularized need” test. Even construing the allegations in the Petition entirely in Appellants’ favor, as
III. Conclusion
{¶ 12} We have reviewed the Decision de novo and find that the trial court did not err by sustaining Appellees’ motion under
HALL, P.J., concurs.
FROELICH, J., dissenting:
{¶ 13} I disagree, both on procedural grounds and on the merits, with the majority‘s conclusion that the trial court properly
{¶ 14} At the outset, our review should be of the July 5, 2016 judgment entry. Respondents filed a motion to dismiss pursuant to
{¶ 15} On July 7, 2016, without any reference to the July 5 judgment, the court filed an “Amended July 7, 2016 Decision and Final Judgment * * * Granting Respondents’ Motion for Judgment on the Pleadings.” The only difference in the July 5 and July 7 documents is on page 4, where the July 5 judgment entry “finds that a denial of Petitioners’ request to grant the disclosure sought herein will ultimately deprive Petitioners
of a fair adjudication of the allegations they have placed at issue in their Federal lawsuit * * *,” whereas the July 7 Final Judgment “finds that a denial of Petitioners’ request to grant the disclosure sought herein will not ultimately deprive Petitioners of a fair adjudication of the allegations * * *.” (Emphasis added). Each judgment included the language that it “is a FINAL APPEALABLE ORDER and that THERE IS NO JUST CAUSE FOR DELAY.” (Capitalization sic.)
{¶ 16} While the trial court may have had the authority to file a nunc pro tunc entry correcting what is perhaps a typographical error, see
{¶ 17} The final judgment before us granted the Respondents’ motion to dismiss, pursuant to
{¶ 18} Secondly, even if we were to review the July 7 judgment entry, the trial court‘s entry reflects that it considered information that was not properly before it when reviewing a
{¶ 19} In ruling on either a
{¶ 20} The petition in this case contained various allegations to support a request for the release of certain grand jury testimony; Respondents filed an answer with general denials. Neither pleading included exhibits, pursuant to
{¶ 21} While Respondents’ motion to dismiss or for judgment on the pleadings was pending, the trial court ordered the preparation of “the extraction from the Grand Jury Transcripts to include only the testimony Officer Sean Williams and Sergant [sic] David Darkow provided to the Grand Jury of Greene County, Ohio * * *,” to be filed under seal. The court indicated that the purpose of the order was so the court could conduct an in camera inspection of the officers’ grand jury testimony. In its judgment entry granting Respondents’ motion to dismiss pursuant to
{¶ 22} Third, again assuming that we could review the July 7 judgment entry, I would conclude that the trial court erred granting judgment, as a matter of law, in favor of Respondents.
{¶ 23} “Particularized need” is a question of fact, but generally it is shown where
from a consideration of all surrounding circumstances, it is probable that the failure to disclose testimony will deprive the defendant of a fair adjudication of the judicial proceeding in which the testimony is sought to be used. See State v. Heisey, 2015-Ohio-4610, 48 N.E.3d 157, ¶ 36 (2d Dist.); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 141. This should be a “highly flexible” standard so that as the requirements for grand jury secrecy diminish, the petitioner has a lower burden in showing a particularized need. Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); see also United States v. Sells Eng., Inc., 463 U.S. 418, 445, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983) (Douglas Oil standard is “highly flexible,” “adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others“). As stated in Douglas Oil:
It is clear * * * that disclosure is appropriate only in those cases where the need for it outweighs the public interest in secrecy, and that the burden of demonstrating this balance rests upon the private party seeking disclosure. It is equally clear that as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification.
{¶ 24} Normally, whether a particularized need for disclosure is shown is a question of fact and a denial of release will not be reversed absent an abuse of discretion. State v. Coley, 93 Ohio St.3d 253, 261, 754 N.E.2d 1129 (2001). However, a
{¶ 25} The Petition for Limited Release of Grand Jury Transcript alleged, among other things, that (1) the grand jury has concluded and returned a no-true-bill so there is no risk of influencing its proceedings, (2) the subject of the grand jury was widely publicized and there is no secrecy involving any investigation, (3) Petitioners would be “unduly prejudiced” in their federal civil lawsuit if they are not able to obtain the testimony, (4) the testimony contains important witness information directly related to their civil lawsuit, (5) other methods of obtaining the testimony (e.g., deposition) have been stayed by the federal court, resulting in Petitioners’ being “severely hampered in their investigation” of the matter, (6) Petitioners are limiting their request to two of eighteen grand jury witnesses, and the release sought is “limited in scope to the release necessary to satisfy the needs of Petitioners and prevent prejudice to them,” (7) the testimony has already been transcribed and released to the federal government, and (8) Petitioners would accept any reasonable protective order.
{¶ 26} Construing as true all of Petitioners’ allegations and the reasonable inference that Petitioners cannot obtain the requested information by other means and that this would deprive them of a fair adjudication in their civil lawsuit, I disagree that the trial court could find, as a matter of law, that Petitioners could not demonstrate a particularized need for the two officers’ grand jury testimony. Rather, the trial court should have denied the
{¶ 27} I would reverse the trial court‘s
Copies mailed to:
MICHAEL L. WRIGHT
RICHARD W. SCHULTE
DENNIS MULVIHILL
STEPHEN K. HALLER
NATHANIEL R. LUKEN
Hon. John P. Bessey
(sitting by assignment)