STATE OF OHIO, Plаintiff-Appellee v. JAMES E. PIERCE, Defendant-Appellant
C.A. CASE NO. 25199
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
April 5, 2013
2013-Ohio-1372
T.C. NO. 04CR2747/1; (Criminal appeal from Common Pleas Court)
Rendered on the 5th day of April, 2013.
KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JEFFREY M. BRANDT, Atty. Reg. No. 0065475, 629 Main Street, Suite B, Covington, KY 41011 Attorney for Defendant-Appellant
DONOVAN, J.
{¶ 1} Defendant-appellant James E. Pierce appeals from a decision of the
{¶ 2} We set forth the history of the case in State v. Pierce, 2d Dist. Montgomery No. 21561, 2007-Ohio-1749 (hereinafter Pierce I), and repeat it herein in pertinent part:
On November 17, 2004, Pierce was indicted for aggravatеd murder, aggravated burglary, two counts of felonious assault, two counts of aggravated robbery, two counts of kidnaping, and abduction. All counts were accompanied by firearm specifications. Pierce was also indicted for having a weapon under disability.
On February 6, 2006, after a jury trial, Pierce was found guilty of aggravated murder, aggravated burglary, two counts of fеlonious assault, two counts of aggravated robbery, and two counts of kidnaping.1 All counts included a firearm specification. With respect to the count for having a weapоn under disability, Pierce waived his right to a jury trial and asked for a bench trial on the charge. The trial court subsequently found Pierce guilty of having a weapon under disability.
{¶ 3} On appeal, Pierce argued that he was entitled to new trial because he had located a witness who would testify that he had personally observed a dark-skinned black male at the location where the offenses occurred. Pierce asserted that the witness’ testimony would provide further suppоrt for the defense‘s theory that someone other than Pierce murdered the victim. On April 13, 2007, we issued our decision in Pierce I affirming the judgment of the trial court. Therein, we found that the witness’ testimony did not exonerate Pierce, but merely identified an African-American male at the scene of the crime whose description did not match that of Pierce. Thus, we found that such evidencе did not establish “a strong probability that it [would] change the result if a new trial [was] granted.”
{¶ 4} On February 14, 2011, Pierce filed his pro se motion for the transcripts of the grand jury proceedings. In his motion, Pierce argued that he needed the transcripts for a future petition for post-conviction relief or a motion for a new trial regarding his belief that
{¶ 5} As previously noted, however, the trial court overruled Pierce‘s motion for the transcripts of the grand jury proceedings in a decision filed on April 17, 2012. Specifically, the trial court found that although Pierce claimed he desired to file a petition for post-conviction relief, he had not done so at any point. The trial court further found that Pierce‘s allegations regarding Hoskins’ role in the series of events leading to his indictment was undermined by the record. Lastly, the trial court found that Pierce failed to establish that he had a “particularized need” for the transcripts of the grand jury proceеdings.
{¶ 6} It is from this judgment that Pierce now appeals.
{¶ 7} Because they are interrelated, Pierce‘s first and second assignments of error will be discussed as follows:
{¶ 8} “THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING AS TO MR. PIERCE‘S MOTION FOR GRAND JURY TRANSCRIPTS, AS THE MATERIAL FACTS WERE DISPUTED, AND ONE CREDIBLE VERSION OF THE FACTS DEMONSTRATED A PARTICULARIZED NEED FOR THE GRAND JURY TRANSCRIPTS.”
{¶ 9} “EVEN IF NO EVIDENTIARY HEARING WERE REQUIRED, THE TRIAL COURT ERRED IN DENYING THE MOTION FOR TRANSCRIPTS, AS THE
{¶ 10} In his first assignment, Pierce argues that the trial court erred when it failed to hold an evidentiary hearing with respect to Pierce‘s motion for the grand jury transcripts. In the alternative, Pierce contends that even if the trial court did not err by failing to hold a hearing, the сourt erred when it summarily overruled his motion for the transcripts of the grand jury proceedings. Specifically, Pierce alleges that because the first count of the indictment was allеgedly based on false testimony and dismissed prior to trial, it is possible that the other nine counts were based on perjured testimony, thus requiring dismissal of his entire indictment.
{¶ 11} Initially, we must address whether the decision Pierce appeals from is, in fact, a final, appealable order. Ohio law provides that appellate courts have jurisdiction to review the final orders of inferior courts in their district.
{¶ 12} Pursuant to
{¶ 13}
A grand juror, prosecuting attorney, interpreter, stenographer, operator of a recording devise, or typist who transcribes recorded testimony, may disclose matters occurring before the grand jury, other than the deliberations of a grand jury or the vote of a grand juror, but may disclose such matters only when so directed by the court preliminаrily to or in connection with a judicial proceeding, or when permitted by the court at the request of the defendant upon a showing that grounds may exist for a motion to dismiss the indictment bеcause of matters occurring before the grand jury.
{¶ 14} “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, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), ¶ 2 of the syllabus. In Greer, the Supreme Court of Ohio further interpreted
{¶ 15} Pierce points out thаt the Ohio Supreme Court‘s decision in State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 639 N.E.2d 83 (1994), which held that an order
{¶ 16} However, Pierce‘s motion requesting the release of the grand jury transcripts is not a “provisional remedy” as defined by
{¶ 17} Upon review, we conclude that transcripts from grand jury proceedings may only be releаsed at the discretion of the court for use prior to or during trial. State v. Parks, 2006-Ohio-4604. In the instant case, Pierce is requesting that the transcripts of the grand jury proceedings be released well after the trial has ended. “Thеre is no pending action wherein the grand jury testimony is needed to preserve a right guaranteed to [Pierce] by law.” Id. Accordingly, we find that Pierce does not have a substantial right to thе
{¶ 18} Thus, we are without jurisdiction to review the trial court‘s decision, and thе instant appeal is dismissed for lack of a final appealable order.
FAIN, P.J. and WELBAUM, J., concur.
Copies mailed to:
Kirsten A. Brandt
Jeffrey M. Brandt
Hon. Barbara P. Gorman