COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69941 : IN RE: : PETITION FOR DISCLOSURE : OF EVIDENCE PRESENTED TO : CERTAIN CUYAHOGA COUNTY : JOURNAL ENTRY GRAND JURIES IN 1993 : : and : : OPINION : : : : : DATE OF ANNOUNCEMENT FEBRUARY 27, 1997 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. S.D. 73859 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant Judge Daniel O. Corrigan: Charles R. Crable: PATRICK J. MURPHY, ESQ. CHARLES R. CRABLE, Pro Se Assistant County Prosecutor P. O. Box 22127 8th Floor Justice Center Beachwood, Ohio 44122 1200 Ontario Street Cleveland, Ohio 44113 -3- PATRICIA ANN BLACKMON, P.J.: Defendant-appellant, Charles Crable, appeals the trial court's order denying his Petition for Disclosure of Evidence Presented to Certain Cuyahoga Grand Juries in 1993. In this petition, Crable sought permission in the trial court to allow him to inspect and copy documents and transcripts obtained during certain grand jury proceedings resulting in Crable's indictments for felonious assault with specifications and aggravated burglary, intimidation, and menacing. Crable challenges the correctness of the trial court's denial of his petition and assigns the following errors for our review: I. THE LOWER COURT ERRED IN BASING ITS DECISION UPON FINDINGS OF FACT WHICH WERE WITHOUT ANY SUPPORT IN THE UNDISPUTED RECORD AND WERE CONTRARY TO THE UNCONTROVERTED FACTS ESTABLISHED IN THE RECORD. II. THE LOWER COURT ERRED IN HOLDING THAT THE PUBLIC'S LIMITED REMAINING INTEREST IN MAINTAINING THE SECRECY OF THE 19993 (sic) GRAND JURY PROCEEDINGS OUTWEIGHED APPELLANT'S DEMONSTRATED NEED FOR ACCESS TO THE GRAND JURY MATERIALS. III. THE LOWER COURT ERRED IN HOLDING THAT THE USE OF GRAND JURY PROCEEDINGS TO ELICIT EVIDENCE FOR USE IN A CIVIL CASE IS IMPROPER PER SE WHICH IS CONTRARY TO R.C. 2939.11. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. From what we can discern from the record, Charles Crable was indicted in 1993 by two separate grand juries. At each of the grand juries, Cleveland Police Officer Earl Brown testified. This testimony resulted in two separate indictments. Crable was -4- indicted for felonious assault with specifications and aggravated burglary, intimidation, and menacing. Both sets of charges were eventually dismissed. Thereafter, Crable filed a 1983 civil rights action against Officer Brown. In that action, he claimed Officer Brown falsely portrayed him as the perpetrator in the felonies. Moreover, he claims Officer Brown testified falsely at the grand juries and deprived him of his civil rights. On September 6, 1995, Crable filed a petition to disclose both grand jury proceedings. The trial court denied the request. The trial court held Crable had not demonstrated a particularized need that outweighed the public interest in grand jury secrecy. Citing United States v. Sells Engineering, Inc. (1983), 463 U.S. 418, 432, the court concluded it was improper to use grand jury proceedings to elicit evidence for use in civil cases. The trial court held Crable could obtain the desired relief through traditional discovery methods. Crable filed his notice of appeal on December 8, 1995. He then filed a motion for reconsideration in the trial court. On December 28, 1995, he filed a Civ.R. 60(A) motion to vacate the trial court's order. In the motion, he alleged that because the trial court failed to timely serve him with its final order, he was forced to file his notice of appeal by Dec 7, 1995 (thirty days after order date) in order to preserve his appeal rights. However, he argued he didn't have the opportunity to seek timely post-order -5- relief from the trial court before the case was referred to the court of appeals. Before we discuss Crable's assignments of error, we must outline what the standard of review is in this case. Our standard of review is discretionary. Petition for Disclosure of Evidence (1980), 63 Ohio St.2d 212. State v. Greer (1981), 66 Ohio St.2d 139. Discretion means we are to give total deference to the trial court's ruling unless we conclude it is unreasonable, arbitrary, or unconscionable. Castlebrook Ltd. v. Dayton Properties (1992), 78 Ohio App.3d 340, 346. A trial court's mistake of law or error in judgment is not sufficient to constitute an abuse of discretion. Woodstream Dev. Co. v. Payak (1994), 93 Ohio App.3d 25, 27. In State v. Greer in paragraph three of the Syllabus, the Supreme Court of Ohio held the determination of whether a particularized need for disclosure has been shown is a question of fact. Where the trial court has issued a finding of fact based on testimony it has heard or affidavits it has reviewed, our province is not to disturb that finding unless a manifest miscarriage of justice exists. In view of these standards, we now address each of Crable's assignments of error. In his first assignment of error, Crable argues the trial court's finding that he could obtain relief through traditional discovery was wholly unsupported by the record and was contradicted by undisputed facts that had been established in the record. Whether or not Crable could receive the requested material through traditional discovery methods is irrelevant to whether -6- Crable is entitled to the grand jury documents. The standard is set forth in State v. Greer. In Greer, the Supreme Court of Ohio said: "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." p. 150. See, also, State v. Murrell (1991), 72 Ohio App.3d 668, 672 (The decision to release grand jury testimony is within the sound discretion of the trial court). The Greer Court also said: "[O]hio rules did not intend that the grand jury minutes be treated as any other statement for purposes of mandatory discovery by the defendant." Id. Consequently, Crable is required to show that a particularized need exists and that the ends of justice require disclosure. The particularized need must outweigh the overall need of maintaining secrecy. In this case, the trial court incorrectly stated the traditional discovery method as the standard. It also stated the particularized need standard and used it to evaluate Crable's claim. It concluded Crable had not satisfied this need. We agree and overrule Crable's first assignment of error. In his second assignment of error, Crable argues the court erred in finding that the public's interest in maintaining the secrecy of grand jury proceedings outweighed Crable's need for access to the grand jury materials. In his petition for -7- disclosure, Crable argued he needed the grand jury testimony for purposes of cross-examination, impeachment, and testing credibility. But, in State v. Mack (1995), 73 Ohio St.3d 502, 508, the Ohio Supreme Court found that "when a defendant 'speculates that the grand jury testimony might have contained material evidence or might have aided his cross-examination *** by revealing contradictions,' the trial court does not abuse its discretion by finding the defendant had not shown a particularized need." The requisite particularized need has been found to exist where nondisclosure will probably deprive the defendant of a fair adjudication of the allegations placed in issue by the witness' trial testimony. Greer at paragraph 3 of the syllabus. Aside from his bare allegation, Crable has presented us with no operative facts to support his claim of a particularized need. See State v. Webb (1994), 70 Ohio St.3d 325, 337. Crable's second assignment of error is overruled. Finally, Crable in his third assignment of error argues the lower court erred in holding that use of grand jury proceedings to elicit evidence for use in a civil case is improper per se. He argues that such use is proper under R.C. 2939.11 which provides: [The official shorthand reporter] shall take an oath to be administered by the judge after the grand jury is sworn, imposing an obligation of secrecy to not disclose any testimony taken or heard except to the grand jury, prosecuting attorney, or attorney general, unless called upon in court to make disclosures. (Emphasis added). -8- Revised Code 2939.11 allows the court which supervises the grand jury to disclose evidence presented to the grand jury where justice requires, in civil as well as criminal actions. Petition for Disclosure of Evidence, at 218. Grand jury materials may be released to parties in a civil case pursuant to a petition to the supervising court under R.C. 2939.11 where it properly determines that the need for disclosure outweighs the need for secrecy. Id. In light of Petition for Disclosure of Evidence, we conclude the trial court misstated the standard. It is clear that grand jury transcripts may be used in civil cases where a particularized need is shown. However, because we conclude that no such showing was made in this case, the trial court's misstatement does not constitute reversal error. Crable's third assignment of error is overruled. Judgment affirmed. -9- It is ordered that Appellee recover of Appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas 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. DAVID T. MATIA, J., and KARPINSKI, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING JUDGE "N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .