State ex rel. Shaher S. Alhmouz v. Stephanie Tubbs Jones, Cuyahoga County Prosecutor, Case

• Decision Date: 28 August 1997
• Docket Number: 72640,97-LW-2887
• Parties: STATE OF OHIO, EX REL. SHAHER S. ALHMOUZ, Relator v. STEPHANIE TUBBS JONES, CUYAHOGA COUNTY PROSECUTOR, Respondent CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, EX REL. SHAHER S. ALHMOUZ Relator v. STEPHANIE TUBBS JONES, CUYAHOGA COUNTY PROSECUTOR Respondent

No. 72640.

97-LW-2887 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

August 28, 1997

PETITION FOR WRIT OF MANDAMUS

MOTION NO. 86249

For Relator: SHAHER S. ALHMOUZ, Pro Se, No. 223-705 P.O. Box 1812, Marion, Ohio 43301.

For Respondent: STEPHANIE TUBBS-JONES, Cuyahoga County Prosecutor, DANIEL M. MARGOLIS, Assistant Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, Ohio 44113.

OPINION

JAMES D. SWEENEY, C.J.

On June 6, 1997, the relator, Shaher S. Alhmouz, commenced this mandamus action against the respondent, the Cuyahoga County Prosecutor, to compel her to verify the grand jury minutes and indictment in the underlying case, State of Ohio v Shaher Alhmouz, Cuyahoga County Common Pleas Court Case No. CR-248408. Mr. Alhmouz asserts that because there were so many illegalities or irregularities, including prosecutorial misconduct, before the grand jury, the prosecutor should be forced to prove that the indictment was properly presented, approved and signed; if the prosecutor cannot do this, then this court should release Mr. Alhmouz. The prosecutor filed a brief in opposition on June 24, and on July 14, 1997, Mr. Alhmouz filed a reply brief. For the following reasons, this court denies the application for a writ of mandamus.

In the underlying case, the grand jury indicted Mr. Alhmouz for rape, felonious sexual penetration, gross sexual imposition and kidnapping. Mr. Alhmouz was found not guilty of rape, but guilty on the other three charges. The trial court sentenced him to five to twenty-five years for felonious sexual penetration, one year for gross sexual imposition and three to fifteen years for kidnapping. All sentences were to run concurrent. On appeal this court reversed the conviction for kidnapping because the state had failed to prove the elements of that crime beyond a reasonable doubt, but affirmed the other convictions. State v. Alhmouz (Apr. 23, 1992), Cuyahoga App. No. 60532, unreported.

Mr. Alhmouz now attacks his conviction again. Specifically, he accuses the prosecutor of not presenting his case to the grand jury; thus, the prosecutor should produce the minutes of the grand jury or otherwise swear and prove that the case was actually presented. Mr. Alhmouz also asserts that the prosecutor withheld exculpatory evidence from the grand jury, that the caption of his case, State v. Alhmouz, is a sham, and that the grand jury foreman did not sign the indictment as required. In his brief Mr. Alhmouz tries to raise a double jeopardy argument by claiming that he was indicted for the same conduct twice.

The principles governing mandamus are well established. Its requisites are (1) a clear, legal right to the requested relief, (2) the respondent has a clear, legal duty to perform the requested relief, and (3) there is no adequate remedy at law. Mandamus will not issue if the relator has or had an adequate remedy at law available. State ex rel. Boardwalk Shopping Center, Inc. v. Court of Appeals for Cuyahoga County (1990), 56 Ohio St.3d 22, 564 N.E.2d 86. Moreover, "the issuance of a writ of mandamus rests, to a considerable extent at least, within the sound discretion of the court * * *." State ex rel. Pressley v. industrial Commission of Ohio (1967), 11 Ohio St.2d 141, 161, 228 N.E.2d 631. See also, State ex rel. Bennett v. Lime (1978), 55 Ohio St.2d 62, 378 N.E.2d 152 and State ex rel. Mettler v. Stratton (1941), 139 Ohio St. 86, 38 N.E.2d 393. Moreover, mandamus is not to be issued in doubtful cases or when the law is not clear. State ex rel. Shafer v. Ohio Turnpike Commission (1953), 159 Ohio St. 581, 113 N.E.2d 14; State ex rel. Connole v. Cleveland Board of Education (1993), 87 Ohio App.3d 43, 621 N.E.2d 850; State ex rel. Goldsberry v. Weir (1978), 60 Ohio App.2d 149, 395 N.E.2d 901; and State ex rel. Dayton-Oakwood Press v. Dissinger (1940), 32 Ohio Law Abs. 308. As the Supreme Court of Ohio stated in State ex rel. Taylor v. Glasser (1977), 50 Ohio St.2d 165, 166, 364 N.E.2d 1: "Mandamus and prohibition are extraordinary remedies, to be issued with great caution and discretion and only when the way is clear."

Mr. Alhmouz's first request for relief is that the prosecutor release the minutes of the grand jury proceedings to prove that the grand jury really indicted him. However, mandamus does not lie for such a request. In State v. Greer (1981), 66 Ohio St.2d 139, 420 N.E.2d 982, the Supreme Court of Ohio ruled that grand jury proceedings are secret and a defendant is not entitled to inspect grand jury transcripts unless he establishes a particularized need for disclosure which outweighs the need for secrecy. Paragraph two of the syllabus. State ex rel. Collins v. O'Farrell (1991), 61 Ohio St.3d 142, 573 N.E.2d 113. Furthermore, in State v. Davis (1988), 38 Ohio St.3d 3611 528 N.E.2d 925, the supreme court held that attacking the indictment on the basis of inadequate or incompetent evidence does not demonstrate a particularized need to inspect grand jury testimony. Thus, Mr. Alhmouz's allegations of improper or nonexistent evidence fail to establish a claim for mandamus.

The prosecutor has no clear, legal duty to disclose the grand jury proceedings. Crim.R. 6(E) governs such disclosure and provides in pertinent part as follows: "A * * * prosecutor * * * may disclose matters occurring before the grand jury or the vote of a grand juror, but may disclose such matters only when so directed by the court * * *." Moreover, the adequate remedy at law to obtain grand jury proceedings is to petition the trial court which supervises the grand jury to release those records. Petition for Disclosure of Evidence Presented to Franklin County Grand Juries in 1970 (1980), 63 Ohio St.2d 212, 407 N.E.2d 513; Collins, supra. Therefore, Mr. Alhmouz has not or cannot establish any of the requisites for mandamus to compel the prosecutor to release, verify or approve the proceedings of the grand jury. His argument that the prosecutor's failure to swear that the...