452 N.E.2d 339 | Ohio Ct. App. | 1982
Defendant Frederick L. Ross appeals from his conviction for six counts of securities law violations following his having entered a plea of no contest.
This appeal concerns the trial court's disposition of numerous pretrial motions, entered after numerous hearings.
The state was assisted in its investigation and presentation to the grand jury by David LeGrand, an employee of the Ohio Division of Securities, who had been sworn as an assistant prosecuting attorney. LeGrand testified that, prior to his participation as an assistant prosecutor and while working for the division, he became aware of the fact that the division was preparing civil litigation against defendant, had attended defendant's deposition, knew defendant had been referred by the division to the county prosecutor for prosecution, and was directed by his supervisor at the division *26 to assist in defendant's prosecution as an assistant county prosecutor. He also said that he questioned less than five witnesses before the grand jury, including defendant; that he wrote out questions for another prosecutor to pose to his supervisor; that he did not himself testify; that he summarized the law of security offenses for members of the grand jury; and that he did not divulge to anyone any information he had learned during the course of the grand jury proceedings.
Defendant raises eight assignments of error:
"1. The trial court erred in overruling defendant's motion to dismiss the indictment on the ground that the indictment had not been returned by seven or more grand jurors.
"2. The trial court erred in overruling defendant's motion to dismiss the indictment on the ground that the grand jury had not been drawn substantially according to law.
"3. The trial court erred in overruling defendant's motion to dismiss the indictment on the ground of prosecutorial misconduct.
"* * *.
"7. The trial court erred in failing to dismiss the indictment for pre-indictment delay.
"* * *."
Because the issues raised are similar, the first and second assignments of error will be considered together.
By his first assignment of error, defendant contends that, because by the date he was indicted there remained only five members of the originally impaneled grand jury (which consisted of nine grand jurors and five alternates), his indictment was not founded upon the concurrence of seven or more jurors, as required by Crim. R. 6 (F). In the interim, four of the grand jurors and all five of the alternates had been "excused" and replaced by members whose names appeared on the list of persons eligible for grand jury duty by action of the "Grand Jury Bailiff" rather than by that of the trial court. These replacements were sworn by the trial court. Defendant argues that only the trial court could excuse grand jurors, and that once the list of alternates had been exhausted and the grand jury consisted of less than seven members, a new grand jury was required to be impaneled.
In his second assignment of error, defendant points out that the initial "draw" for grand jurors was conducted by the jury commissioner two hours before an order of the trial court was filed authorizing the drawing; that the drawing was conducted more than twenty-eight days prior to the beginning of the court term, in violation of R.C.
Defendant's contention that the trial court could not supplement the original nine regular and five alternate members of the grand jury is contrary to the provisions of R.C.
Ordinarily, an indictment will not be set aside due to an irregularity in the manner in which grand jurors were selected if the jurors possess the requisite qualifications to act as jurors. *27
R.C.
The trial court, not having erred in overruling defendant's motion to dismiss the indictment, the first and second assignments of error are overruled.
In his third assignment of error, defendant contends that the indictment should have been dismissed pursuant to Crim. R. 6(D) for the reason that LeGrand's employment by, and relationship with, the Division of Securities constituted such a conflict of interest that he was not permitted to be present while the grand jury was in session. Although the parties have not cited any Ohio authorities, the strong weight of federal and state authority cited lends little support to defendant's position, in view of LeGrand's limited involvement with the grand jury in this case.
We decline to adopt a standard which declares that there is a conflict of interest inherent in any situation in which an attorney for a government agency acts as a special assistant prosecuting attorney during a grand jury investigation. Instead, there must be an affirmative showing that the special assistant conducted himself in such a manner as to demonstrate actual bias or conflict of interest. Here, as there was no demonstration of impropriety as would require a finding of prosecutorial misconduct, the trial court was warranted in overruling defendant's motion to dismiss. The third assignment of error is overruled.
In his seventh assignment of error, defendant argues that his constitutional rights to due process and a speedy trial were violated by reason of the state's eighteen-month delay in seeking an indictment.
Our Supreme Court has held that the guarantee of a speedy trial granted by the
Obviously, the facts of the Meeker case are readily distinguishable from those of this case.
Although the Due Process Clause of the
Appellant has failed to demonstrate substantial prejudice to his right to a fair trial, or that the delay was an intentional device to gain tactical advantage over him. To the contrary, the record indicates good faith efforts on the part of the prosecution in its investigation. Accordingly, the seventh assignment of error is overruled.
The assignments of error are overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
STRAUSBAUGH and REILLY, JJ., concur.