State v. Greer

• Decision Date: 13 May 1981
• Docket Number: Nos. 80-658,s. 80-658
• Citation: 20 O.O.3d 157,66 Ohio St.2d 139,420 N.E.2d 982
• Parties: , 20 O.O.3d 157 The STATE of Ohio, Appellant, v. GREER, Appellee. The STATE of Ohio, Appellant, v. HUSTON, Appellee. The STATE of Ohio, Appellant, v. HOUSTON, Appellee. to 80-660.
• Court: Ohio Supreme Court

Page 139

66 Ohio St.2d 139

420 N.E.2d 982, 20 O.O.3d 157

The STATE of Ohio, Appellant, v. GREER, Appellee.

The STATE of Ohio, Appellant, v. HUSTON, Appellee.

The STATE of Ohio, Appellant, v. HOUSTON, Appellee.

Nos. 80-658 to 80-660.

Supreme Court of Ohio.

May 13, 1981.

Syllabus by the Court

1. Disclosure of grand jury testimony, other than that of the defendant and co-defendant, is controlled by Crim.R. 6(E), not by Crim.R. 16(B)(1)(g), and the release of any such testimony for use prior to or during trial is within the discretion of the trial court.

2. 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. (Paragraph three of the syllabus in State v. Patterson, 28 Ohio St.2d 181, 277 N.E.2d 201, approved and followed.)

3. Whether particularized need for disclosure of grand jury testimony is shown is a question of fact; but, generally, it is shown where from a consideration of all the surrounding circumstances it is probable that the failure to disclose the testimony will deprive the defendant of a fair adjudication of the allegations placed in issue by the witness' trial testimony.

4. 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.

Defendants-appellees, Otis Greer and Sylvester Houston, state liquor agents, were accused and tried for the crimes of accepting bribes from certain liquor permit holders (two counts each) and perjury before the grand jury (one count). Defendant-appellee, Horace Huston, alleged to have been the "bag man" for the other two defendants, was charged and tried for the crimes of complicity (two counts) and perjury (one count).

The basic allegations of the charges against Greer and Houston were that the two agents had solicited money from Audrey Matz, executrix of her husband's estate which included a bar, and in return the two agents agreed not to file liquor violations against the bar. At the trial thereof, Matz and the employees of the bar testified to the fact surrounding the payoffs, including the transfer of money to the liquor agents.

Also, at trial, the state adduced the testimony of a number of witnesses who were either tavern owners, managers, or employees of liquor permit holders, who testified that Greer and Houston had previously accepted bribes to withhold citations for liquor violations, and to protect a bootleg operation of Leonard Walker from raids by the police. They also testified that Huston had agreed to assist the permit holder in doing something about his liquor and sales taxes and to keep "the law off" the permittee. All such testimony was objected to by defense counsel, but was held admissible by the trial court.

On direct examination at trial, Greer testified that he had never received any money from tavern owners. On cross-examination, Greer was asked if he had ever received payoff money in 1966 and 1967 from James Duncan, operator of the Grenadier Club. Greer testified that he had not received any money from Duncan. Upon rebuttal, Duncan testified that Greer did receive a $50 payment in return for overlooking the fact that the club had stayed open after hours.

After the state's direct examination was completed, defense counsel, during his cross-examination, requested the trial court for an in camera examination of the transcript of Duncan's grand jury testimony in order to determine whether it was consistent with his testimony at trial. The trial court agreed to such request and conducted an in camera examination which consisted of the court reading the transcript, and giving that portion which it found might be inconsistent with Duncan's trial testimony to the defense counsel for use in the cross-examination of the witness. Additionally, the trial court read these inconsistencies as found by its review into the trial record before the jury.

The trial court, however, would not release the total transcript of the testimony of Duncan as requested by defense counsel.

Upon a finding of guilty on the counts as charged, the defendants appealed to the Court of Appeals which reversed the trial court in each case, holding that the court had erred in two basic respects. The Court of Appeals held that the testimony of the state's witnesses relative to the other instances of bribery or payoffs was irrelevant and not material to the issues before the jury in this matter; that such testimony was not admissible; and that the trial court's allowance of such testimony was prejudicial error to these defendants.

The Court of Appeals also held that the trial court erred in not permitting the defense counsel to participate in the in camera inspection of the grand jury testimony of one of the state's witnesses to determine any inconsistencies with his testimony at trial. The Court of Appeals held that such disclosure was mandated by case law of the Supreme Court of the United States, and of this court, as well as by the Ohio Criminal Rules, specifically Crim.R. 16(B)(1)(g).

These causes are now before this court pursuant to the allowance of motions for leave to appeal.

Simon L. Leis, Jr., Pros. Atty., William E. Breyer and F. David Albanese, Cincinnati, for appellant.

Eugene D. Smith, Cincinnati, for appellees Greer and Houston.

William C. Erbecker, Indianapolis, Ind., for appellee Huston.

HOLMES, Justice.

I.

In holding that the admission of the testimony of the other instances of bribery or payoffs of the defendants Greer and Houston was prejudicial error, the Court of Appeals held that "other acts" testimony, as allowed by R.C. 2945.59, could not be permitted in the instant cause since the evidence of other acts of these defendants was not a material issue at trial. The holding of the Court of Appeals, as set forth in the decision of that court, was specifically as follows:

"Defendants Greer and S. Houston were charged with knowingly soliciting or accepting money from Audrey Matz, doing business as Mann's Lounge, to corrupt or influence them in the discharge of their duties as state liquor agents. H. Huston was charged with complicity therein. The defense was simply: 'We neither solicited nor accepted any money from Audrey Matz.' There was no question that Greer and Houston were state liquor agents; that their duties included the supervision of Mann's Lounge; and that the payment of money by a bar owner to a state liquor agent could have but one purpose, barring some defense not asserted here, namely, to corrupt or influence him in the discharge of his duty. The only material issue in the case was: Did the defendants take money or not? Neither motive nor intent, nor the absence of mistake or accident was a material issue. As we said in * * * (State v. Snowden (1976), 49 Ohio App.2d 7, 359 N.E.2d 87): only where the defendant specifically places his particularized intent to commit the charged crime into issue either by directly denying such intent or by asserting accident or mistake, is it material (and therefore admissible) to introduce otherwise relevant evidence of other acts of a similar nature as probative of this issue.

"For this reason the testimony of James Perkins, manager of the Elks Club, that he had made payments to H. Huston 'for our protection,' that of George Frost, bartender of the Elks, that he had paid H. Huston to 'keep the law off me,' and that of Leonard Walker that he had paid Greer to keep him from raiding his 'bootleg joint,' as well as the irrelevant testimony of the three other witnesses, was not material to the issue and therefore was inadmissible."

The base from which we discuss this issue is the pertinent statute regarding "proof of motive," or the similar acts statute, R.C. 2945.59, which reads:

"In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."

The basic premise of the state in presenting the testimony of the various tavern owners and operators relating to the prior alleged bribes and payments to defendants Greer and Houston was to show the intent and motive of these defendants in soliciting the money from Matz. The Court of Appeals reversed, holding the testimony inadmissible on the theory that intent was not an issue at trial. The court reasoned that since the defendants denied receiving any money at all, the issue was singularly whether they did receive the money.

We must disagree with the Court of Appeals in this regard, since in a trial of a bribery charge, the proof that money or other consideration changed hands does not per se prove the intent of the defendant, and there remains the requirement of further evidence on the element of the reason or intent of the transfer and receipt of any monies. Admittedly, the exchange of funds from a liquor licensee to a liquor agent could well establish an inference that such exchange of funds was one involving unlawful motivation and circumstance. However, the standard of proof in this criminal matter...