State v. Richardson

• Decision Date: 18 August 2014
• Docket Number: 13–13–55.,Nos. 13–13–54,s. 13–13–54
• Citation: 17 N.E.3d 644
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Charles V. RICHARDSON, Defendant–Appellant. State of Ohio, Plaintiff–Appellee, v. Charles V. Richardson, Defendant–Appellant.
• Court: Ohio Court of Appeals

17 N.E.3d 644

STATE of Ohio, Plaintiff–Appellee

v.Charles V. RICHARDSON, Defendant–Appellant.

State of Ohio, Plaintiff–Appellee

v.Charles V. Richardson, Defendant–Appellant.

Nos. 13–13–54

13–13–55.

Court of Appeals of Ohio, Third District, Seneca County.

Aug. 18, 2014.

Stephen A. Goldmeier, for appellant.

Christa A. Dimon, for appellee.

Opinion

PRESTON, J.

{¶ 1} Defendant-appellant, Charles V. Richardson (“Richardson”), appeals the October 25, 2013 judgment entries of sentence of the Seneca County Court of Common Pleas. He argues that trial court abused its discretion by denying his request for the Seneca County Grand Jury transcripts relating to his indictments. For the reasons that follow, we affirm.

{¶ 2} On March 20, 2013, the Seneca County Grand Jury indicted Richardson on two counts in case number 13–CR–0036: Count One of trafficking in cocaine in violation of R.C. 2925.03(A), (C)(4)(g), a first-degree felony; and Count Two of possession of cocaine in violation of R.C. 2925.11(A), (C)(4)(a), a fifth-degree felony. (Case No. 13–CR–0036, Doc. No. 2).

{¶ 3} Also on March 20, 2013, the Seneca County Grand Jury indicted Richardson on six counts in case number 13–CR–0047: Count One of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4)(b), a fourth-degree felony; Count Two of trafficking in cocaine in violation of R.C. 2925.03(A), (C)(4)(d), a third-degree felony; Count Three of trafficking in cocaine in violation of R.C. 2925.03(A), (C)(4)(f), a first-degree felony; Count Four of trafficking in cocaine in violation of R.C. 2925.03(A), (C)(4)(e), a second-degree felony; Count Five of trafficking in cocaine in violation of R.C. 2925.03(A), (C)(4)(f), a first-degree felony; and Count Six of trafficking in cocaine in violation of R.C. 2925.03(A), (C)(4)(g), a first-degree felony. (Case No. 13–CR–0047, Doc. No. 1).

{¶ 4} On April 1, 2013, Richardson entered pleas of not guilty in case numbers 13–CR–0036 and 13–CR–0047. (Case No. 13–CR–0036, Doc. No. 10); (Case No. 13–CR–0047, Doc. No. 9).

{¶ 5} Also on April 1, 2013, Richardson filed a motion to dismiss both cases alleging prosecutorial impropriety and prosecutorial conflict of interest based on Seneca County Prosecuting Attorney Derek DeVine's (“Prosecutor DeVine”) representation of Richardson in a criminal drug-trafficking matter in 2001 as his court-appointed defense counsel. (Case No. 13–CR–0036, Doc. No. 8); (Case No. 13–CR–0047, Doc. No. 7).

{¶ 6} In his response to Richardson's motion to dismiss, Prosecutor DeVine noted that “a significant period of time has elapsed since the 2001 case concluded ameliorating [sic][his] memory of even representing Mr. Richardson.” (Case No. 13–CR–0036, Doc. No. 12); (Case No. 13–CR–0047, Doc. No. 11). In addition, Prosecutor DeVine argued that Richardson provided no factual or legal authority supporting his argument that Prosecutor DeVine should be disqualified and the cases be dismissed. (Id. ); (Id. ).

{¶ 7} On May 7, 2013, the trial court overruled Richardson's motion and ordered that the cases be scheduled for trial. (Case No. 13–CR–0036, May 7, 2013 JE, Doc. No. 15); (Case No. 13–CR–0047, May 7, 2013 JE, Doc. No. 16).

{¶ 8} Although it is unclear from the record, a representative of the Ohio Attorney General's office was appointed to represent the State in Prosecutor DeVine's place sometime between May 9, 2013 and July 15, 2013. (See Case No. 13–CR–0036, Doc. Nos. 17, 29); (Case No. 13–CR–0047, Doc. Nos. 18, 19).¹

{¶ 9} On July 15, 2013, Richardson filed a motion requesting the transcripts of the State's presentation of its cases against Richardson before the Seneca County Grand Jury. (Case No. 13–CR–0036, Doc. No. 29); (Case No. 13–CR–0047, Doc. No. 19). The trial court held a hearing on Richardson's motion requesting the grand jury transcripts on August 15, 2013. (Aug. 15, 2013 Tr. at 1). At the hearing, Richardson argued that he had a particularized need to inspect the grand jury transcripts to determine if Prosecutor DeVine established probable cause in these cases by eliciting testimony from witnesses about his criminal history for trafficking in cocaine. (Id. at 6–7). Moreover, Richardson argued that he would be able to determine whether Prosecutor DeVine improperly relied on his prior representation of him only by examining “the tenor and tone” of Prosecutor DeVine's presentation to the grand jury. (Id. at 15).

{¶ 10} On August 16, 2013, the trial court denied Richardson's motion requesting the grand jury transcripts. (Case No. 13–CR–0036, Aug. 16, 2013 JE, Doc. No. 39); (Case No. 13–CR–0047, Aug. 16, 2013 JE, Doc. No. 28). The trial court concluded that Richardson failed to demonstrate a particularized need for the transcripts because there was no assertion that any of the witnesses misled the grand jury or were inconsistent in their answers. (Id. ); (Id. ).

{¶ 11} On October 24, 2013, the trial court held a change-of-plea hearing. (Case No. 13–CR–0036, Oct. 25, 2013 JE, Doc. No. 59); (Case No. 13–CR–0047, Oct. 25, 2013 JE, Doc. No. 35). Pursuant to a negotiated plea agreement, Richardson pled no contest to Count One and the State dismissed Count Two in case number 13–CR–0036, and Richardson pled no contest to Count Six and the State dismissed Counts One, Two, Three, Four, and Five in case number 13–CR–0047. (Id. at 1); (Id. at 1). The trial court found Richardson guilty as to Count One in case number 13–CR–0036 and guilty as to Count Six in case number 13–CR–0047, and it sentenced him to 11 mandatory years in each case. (Id. at 2); (Id. at 2). The trial court ordered that Richardson's sentences in case numbers 13–CR–0036 and 13–CR–0047 be served consecutively for a total of 22 mandatory years. (Case No. 13–CR–0047, Oct. 25, 2013 JE, Doc. No. 35).

{¶ 12} On November 25, 2013, Richardson filed a notice of appeal in each case. (Case No. 13–CR–0036, Doc. No. 61); (Case No. 13–CR–0047, Doc. No. 37). The appeal in case number 13–CR–0036 was assigned appellate case number 13–13–54; the appeal in case number 13–CR–0047 was assigned appellate case number 13–13–55. On December 12, 2013, this court consolidated the two cases for purposes of this appeal.

{¶ 13} Richardson now appeals raising one assignment of error for our review.

Assignment of Error

The trial court abused its discretion when it refused to provide Charles V. Richardson with transcripts of the grand jury proceedings against him, even though the prosecutor who conducted those proceedings represented Mr. Richardson in a prior case. (August 16, 2013 Judgment Entry; 8/15/2013 T.p.6).

{¶ 14} In his assignment of error, Richardson argues that the trial court abused its discretion by denying his request to inspect the Seneca County Grand Jury transcripts. Specifically, Richardson argues that he had a particularized need to review the grand jury transcripts because the indictments against him may have been based on prosecutorial misconduct—that is, since Prosecutor DeVine represented him in a criminal drug-trafficking matter in 2001, Prosecutor DeVine may have used his knowledge about Richardson's prior conviction to obtain the indictments against him in case numbers 13–CR–0036 and 13–CR–0047. Moreover, Richardson argues that the trial court misinterpreted his argument. Richardson asserts that the basis of his particularized need to review the grand jury transcripts related to Prosecutor DeVine's involvement with the Seneca County Grand Jury and not any specific witness testimony as the trial court noted in denying his motion.

{¶ 15} “A presumption of regularity attaches to all judicial proceedings.” State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 19. See also United States v. Mechanik, 475 U.S. 66, 75, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986) (grand jury proceedings carry a presumption of regularity, which may be dispelled with particularized proof of irregularities in the grand jury process).

{¶ 16} Disclosure of grand jury testimony is controlled by Crim.R. 6(E). State v. Godfrey, 181 Ohio App.3d 75, 2009-Ohio-547, 907 N.E.2d 1230, ¶ 8 (3d Dist.), citing State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph one of the syllabus. Crim.R. 6 espouses the secrecy of the grand jury and states, in relevant part:

Deliberations of the grand jury and the vote of any grand juror shall not be disclosed. Disclosure of other matters occurring before the grand jury may be made to the prosecuting attorney for use in the performance of his duties. A grand juror [or] prosecuting attorney * * * 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 preliminary to or in connection with a judicial proceeding * * *.

State v. Hook, 3d Dist. Marion No. 9–97–21, 1997 WL 445814, *2 (Aug. 6, 1997), citing Crim.R. 6(E).

{¶ 17} “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.” Greer at paragraph two of the syllabus, citing State v. Patterson, 28 Ohio St.2d 181, 277 N.E.2d 201 (1971), paragraph three of the syllabus. To demonstrate a particularized need for the disclosure of grand jury testimony, a defendant must show that “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.” Id. at paragraph three of the syllabus. “Specifically, the trial court should determine whether the failure to disclose the testimony will deny [the defendant] a fair trial or, in the alternative, whether [the defendant's] request for disclosure is a fishing expedition * * *.” State v. Horger, 170 Ohio App.3d 383, 2007-Ohio-665, 867 N.E.2d 466, ¶ 13 (5th Dist.). A general request for grand jury...