COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59245 STATE OF OHIO : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : JAMES MCKAY : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 7, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case Nos. 240003 & 241388. JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellant: Stephanie Tubbs Jones Cuyahoga County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellee: Brian M. Fallon, Esq. 450 Standard Building Cleveland, Ohio 44113 -2- SWEENEY, JAMES D., J.: Appellant State of Ohio filed this appeal pursuant to the trial court's granting appellee James McKay's motion to reduce his indictment. The trial court's interlocutory order permitting appellee to obtain the grand jury transcripts is also appealed. The underlying facts are as follows: According to the testimony of Detective Kovacic of the Cleveland Police Department, on May 14, 1989, Paul Prayear drove his van to appellee's place of business, a garage. Gary Cooper was a passenger in the van. In lieu of cash, Mr. Prayear had previously accepted a gun and a tool box from appellee in return for cocaine. Prayear and Cooper went to see appellee to try to return the gun and tool box and obtain the cash. Appellee claimed to not have the cash and Mr. Prayer ordered him into the van. After appellee climbed into the van, Mr. Prayear aimed the gun at appellee, a struggle ensued in which appellee obtained the gun and Prayear was shot. Cooper stabbed appellee and was then shot by appellee as well. Appellee then drove the van away from his garage and found an open lot containing other vans, and set the van on fire. On June 8, 1989, appellee was indicted on two counts of murder and two counts of aggravated arson. On July 11, 1989, the matter was resubmitted to the same grand jury. An indictment was returned for two counts of aggravated murder with prior calculation and design, mass murder and a gun specification; and -3- two counts of aggravated murder with felony murder, mass murder and gun specifications; and two counts of aggravated arson. Upon motion of defense counsel, the transcripts of the grand jury proceedings were disclosed. Counsel subsequently argued to the court that at the second grand jury hearing, the prosecutor improperly influenced the grand jury by misstating the charges returned by the first indictment. The trial court then reduced the indictment to two counts of murder with a gun specification, and two counts of aggravated arson. Appellant's first assignment of error. I THE TRIAL COURT ERRED IN ORDERING DISCLOSURE OF THE GRAND JURY PROCEEDINGS, AND IN DISCLOSING ALL OF THE PROCEEDINGS. Appellant contends that grand jury transcripts can only be disclosed upon a showing of a particularized need, State v. Greer (1981), 66 Ohio St. 2d 139, and that appellee did not demonstrate such a need. In Greer, at syllabus three, the court stated: 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. Upon review of the record, it is manifest that the standard of particularized need was not met, and the trial court abused its discretion in allowing disclosure of the grand jury testimony. -4- However, a close reading of R.C. 2945.67(A) reveals that in order for the appellant to properly perfect appeal on this issue, leave should have been obtained from this court. R.C. 2945.67(A) states in pertinent part: (A) A prosecuting attorney, * * * may appeal as a matter or [of] right any decision of a trial court in a criminal case, * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, * * * and may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case or of the juvenile court in a delinquency case. An interlocutory order releasing grand jury transcripts does not fall within the parameters set forth by the statute. Appellant's first assignment of error is not well taken. Appellant's second assignment of error. II THE TRIAL COURT ERRED IN CONCLUDING THAT THERE WAS PROSECUTORIAL MISCONDUCT OR "PROSECUTOR ERROR" (R. 12, FEBRUARY 2, 1990 HEARING) WHICH UNDULY INFLUENCED THE GRAND JURY. In the second grand jury proceedings of July 11, 1989, the following conversation occurred between a grand juror and the prosecutor: A JUROR: What was the actual change in the indictments? MS. KREIG: Last time it was murder, which is purposely cause the death of another. A JUROR: The first one read -- it said like -- -5- MS. KREIG: No person shall purposely with prior calculation or design cause the death of another. That's aggravated murder. It's also aggravated murder under the section while commiting (sic) an aggravated arson. The appellee contends, and the trial judge concurred, that this conversation misled the jury as to the nature of the indictment returned by the first grand jury. This was one of two reasons the trial judge cited for reducing the indictment. (T. of Feb. 2, 1990, p. 11-12.) Although we agree that this conversation could have been misleading, we cannot find that it did mislead the grand jury. The prosecutor had previously given an instruction on aggravated murder, and this conversation could also be read as a clarification of that instruction. In addition, the defense counsel contended that the prosecutor exerted undue influence over the grand jury. The appellant argues that the prosecutor was merely acting in her permissible advisory capacity. Since the trial judge did not base the reduction of the indictment on any alleged undue influence exerted by the prosecutor, we therefore find no error. Appellant's second assignment of error is well taken. Appellant's third assignment of error. III THE TRIAL COURT ERRED IN WEIGHING THE EVIDENCE SUPPORTING THE CHARGES OF THE SECOND INDICTMENT. -6- Appellant in essence argues that when the trial judge changed the indictment of the appellee, the province of the grand jury was invaded. Appellee contends that this court does not have jurisdiction to determine this issue as the appellant has improperly filed this appeal as of right pursuant to R.C. 2945.67(A). Appellee argues that the trial court did not dismiss an indictment which would allow the prosecutor to appeal, but merely reduced the indictment. Thus, the appellant needed leave of this court to appeal. We disagree. In State v. Hayes (1986), 25 Ohio St. 3d 173, the Supreme Court allowed an appeal by the prosecutor where the court had effectively dismissed part of an indictment. The dissent stated that the remaining portion of the indictment was sufficient for the prosecution to proceed with its case in chief, and therefore no appeal as of right could be taken. However, the majority cited R.C. 2945.67(A) and stated: "This language allows the State a direct appeal whenever the trial court grants a motion to dismiss all, or any part of, an indictment." In the case sub judice, as in Hayes, supra, the trial judge effectively dismissed part of an indictment. Here, the second indictment of two counts of aggravated murder with prior calculation and design, and the two counts of aggravated murder with felony murder were dismissed, and the judge reinstated two counts of murder. Although appellee cites State v. Cook (1987), 35 Ohio App. 3d 20, it is distinguishable as it merely relates to a gun -7- specification and not an aggravating circumstance. The change in the indictment in the case at bar does not merely enhance a penalty, but changes the elements of the crime and is therefore appealable by the prosecution as of right. Since we find the prosecutor properly appealed this issue as of right, the next consideration is whether or not the judge improperly weighed the evidence. A trial judge cannot review the indictment process for sufficiency of the evidence. State v. Hodel (Aug. 16, 1990), Cuyahoga App. No. 57069, unreported. In the case sub judice, after he had reviewed the grand jury transcripts the judge stated, "I see absolutely no basis for the change in this indictment from murder to capital murder." (T. of Feb. 2, 1990, p. 12.) Under the circumstances of this case, we find this to be an impermissibly weighing of the evidence that was before the grand jury. The appellee also argues that the judge was properly exercising his supervisory powers in reducing the indictment due to the prosecutor's misconduct. A trial judge does have supervisory powers, but its use is limited. See Maple Hts. v. Redi Car Wash (1988), 51 Ohio App. 3d 60. As stated in the second assignment of error, there is not sufficient evidence of prosecutorial misconduct to warrant the change in the indictment. In fact, even the trial judge disliked the term "prosecutorial misconduct" under the circumstance, and preferred the term "error." (T. of Feb. 2, 1990, p. 12.) -8- Appellant's third assignment of error is well taken. Judgment reversed and remanded. This cause is reversed for further proceedings consistent with this opinion. It is, therefore, considered that said appellant(s) recover of said appellee(s) its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions. KRUPANSKY, C.J., and FRANCIS E. SWEENEY, J., CONCUR. JAMES D. SWEENEY JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .