COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72398 and 72399 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellant : : and -vs- : : OPINION MICHAEL TANKERSLEY : : and : : TODD STAIMPEL : : Defendants-Appellees : : DATE OF ANNOUNCEMENT APRIL 23, 1998 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-331314 JUDGMENT: Reversed and Remanded. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellant: For Defendants-Appellees: STEPHANIE TUBBS JONES, ESQ. PATRICK F. ROCHE, ESQ. Cuyahoga County Prosecutor Davis and Young Co., L.P.A. PERRY M. KENDALL, JR., ESQ. 1700 Midland Bldg. 101 Prospect Assistant County Prosecutor Cleveland, Ohio 44115-1027 8th Floor Justice Center and 1200 Ontario Street WILLIAM T. DOYLE, ESQ. Cleveland, Ohio 44113 1370 Ontario St., #2000 Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, A.J.: Appellant State of Ohio appeals the trial court's dismissal of an indictment against appellees Michael Tankersley and Todd -2- Staimpel. The indictment charged each with felonious assault with a violence and a firearm specification. The State of Ohio assigns the following five errors for our review: I. THE TRIAL COURT ERRED IN GRANTING THE APPELLEES' MOTION TO DISMISS WHERE THE APPELLEES FAILED TO MAKE A PRIMA FACIE SHOWING IN SUPPORT OF THEIR ALLEGATION OF SELECTIVE PROSECUTION. II. THE TRIAL COURT ERRED IN GRANTING THE APPELLEES' MOTION TO DISMISS WHERE THE TRIAL COURT'S JOURNAL ENTRY FAILED TO ENUNCIATE A PROPER BASIS FOR THE DISMISSAL. III. THE TRIAL COURT'S DISMISSAL OF THE INDICTMENTS AGAINST THE APPELLEES IS BEST VIEWED UNDER THE DOCTRINE OF VINDICTIVE PROSECUTION. IV. THE TRIAL COURT'S DISMISSAL OF THE INDICTMENT UNDER ITS SUPERVISORY POWERS IS AN ADEQUATE BASIS. V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO FOLLOW THE DICTATES OF CRIMINAL RULE 48. Having reviewed the record and the legal arguments of the parties, we reverse the decision of the trial court and remand this case for further proceedings. The apposite facts follow. On October 3, 1995, the State of Ohio presented testimony to a grand jury regarding an incident in which two off-duty Cleveland police officers, Tankersley and Staimpel, allegedly assaulted Ricky Stephens and broke a window in the door of his home. After considering the testimony of several witnesses to the incident, the grand jury returned an indictment for criminal damaging and assault. At a pretrial hearing, County Prosecutor Stephanie Tubbs Jones advised the court of the unsuccessful plea negotiations with the officers. She told the court she had advised the officers, -3- unless both pleaded to the charges and resigned from the police department, they would be reindicted on more serious charges. While Staimpel indicated his willingness to enter a guilty plea and resign from the police department, Tankersley indicated a willingness to resign but refused to plead guilty. Mrs. Jones then moved the court to dismiss the indictment. She also moved to proceed *** to present these cases to the grand jury for re- indictment. Thereafter, both officers objected to the representation of the case to the grand jury. Over their objection, the trial court granted Mrs. Jones' motion to dismiss and discharged the defendants. On the following day, December 6, 1995, the State presented its case to a different grand jury in which an indictment was returned against both officers for the more serious charges of felonious assault and vandalism. In the interim, Tankersley and Staimpel appealed the dismissal of the first indictment, arguing that the State failed to demonstrate good cause for dismissing the indictment as required by R.C. 2941.33 and also that the State improperly made Staimpel's guilty plea to the original indictment contingent upon Tankersley's acceptance of the plea agreement. Upon the State's motion, this court dismissed the officers' appeals for lack of a final appealable order. State v. Tankersley et al. (Oct. 31, 1996), Cuyahoga App. Nos. 70068, 70069, unreported. The second indictment came before the trial court, and Tankersley and Staimpel moved the trial court to dismiss it because -4- the evidence presented before the second grand jury unfairly differed from the evidence presented to the first grand jury. The trial court granted their motion to dismiss on the grounds that the State grand jury forum shopped by not presenting the case to the same grand jury which had issued the original indictment for criminal damaging and assault. This appeal followed. While we have some serious concerns about the way the evidence was presented before both grand juries, we decline to resolve this appeal on those concerns. We will first address the State's second, fourth, and fifth assigned errors together. The standard of review for resolving these errors is discretionary. Discretionary review requires that we give substantial deference to the trial court unless we determine that the court's ruling was unreasonable, arbitrary, or unconscionable. Castlebrook Ltd. v. Dayton Properties (1992), 78 Ohio App.3d 340, 346; Community Mutual Ins. Co. v. Diamond Co. (Aug. 18, 1994), Cuyahoga App. No. 65949, unreported. An abuse of discretion *** implies a decision which is without a reasonable basis or one which is clearly wrong. Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App.3d 159, 161-162. In applying that standard, we conclude the trial court abused its discretion in dismissing the State's second indictment against Tankersley and Staimpel for felonious assault and vandalism. Crim.R. 48(B) governs the dismissal of an indictment by the court. It provides that the court, over the objection of the -5- State, in dismissing an indictment, shall state on the record its findings of fact and reasons for the dismissal. See State v. Nelson (1977), 51 Ohio App.2d 31, 32. In this case, the trial court in dismissing the second indictment for felonious assault and vandalism made the following statement: In the case at bar, had the State returned to the same Grand Jury which had originally heard the evidence and returned a true bill indictment, this issue would have no merit. However, the State chose to Grand Jury shop and that is not acceptable. (Tr. 51.) This reasoning is insufficient under State v. Sutton (1979), 64 Ohio App.2d 105. Sutton was indicted for extortion before a Wayne County grand jury. The State needed voice exemplars from Sutton so it nolled the Wayne County indictment and pursued the voice exemplars in Ashland County where the extortion took place. Sutton moved to dismiss the nolle prosequi claiming he had no notice of the dismissal and it was not for good cause shown. The Wayne County Court agreed and granted his motion holding that the State was attempting to seek a more favorable forum by seeking an indictment in Ashland County, the place where the extortion allegedly occurred. The State appealed and the decision was reversed. The Sutton appellate court held that Crim.R. 48(B) does not provide for dismissal with prejudice, and a court has inherent power to dismiss with prejudice only where it is apparent that the defendant has been denied either a constitutional or statutory right, the violation of which would, in itself, bar prosecution. -6- See State v. Dixon (1984), 14 Ohio App.3d 396; Maple Hts. v. Redi Car Wash (1988), 51 Ohio App.3d 60, 62; Lakewood v. Pfeifer (1992), 83 Ohio App.3d 47; State v. Today's Bookstore, Inc. (1993), 86 Ohio App.3d 810. The Sutton court held that once an indictment is nolled, the court loses jurisdiction. Thus, another county may have jurisdiction where venue lies in either county. The court went on to hold that the State could compel the defendants to provide voice exemplars for identification purposes. The trial judge in Sutton like the trial judge here was concerned with forum shopping. We agree. The Sutton appellate court found the forum shopping reasoning to be an insufficient basis for the dismissal of the indictment and held that the violation of rights must be one that would bar the very prosecution itself. In this case, the appellees have failed to show that a constitutional or statutory right has been violated, which violation in itself would bar prosecution. Tanke rsley and Staimpel argued it was fundamentally unfair for the State to present different evidence to the second grand jury than that presented to the first grand jury. During the initial grand jury proceeding, the prosecutor presented the testimony of Ricky Stephens, Mario Thompson, Cleophas Davis, Maurice Thompson, Wayne Hart, and Jacqueline Davis. He also read statements from Kay Krueger, Bobby Ford, and Rochelle Perry. At the second grand jury hearing, only testimony from Ricky Stephens and Maurice Thompson was presented. -7- The testimony by Stephens and Thompson was the same as that given before the first grand jury. During the first grand jury proceeding, the State presented two statements from Rochelle Perry indicating she lied to police about witnessing the incident in question. In the second grand jury proceeding, no testimony from Perry was presented. One could argue that the evidence at the second grand jury hearing was fairer to Tankersley and Staimpel in that admittedly perjured testimony was not presented. Even if the evidence is viewed as exculpatory, it has been held that the prosecution has no duty to disclose exculpatory evidence to a grand jury. U.S. v. Williams (1992), 504 U.S. 36, 37. See also U.S. v. Adamo (C.A. 6, 1984), 742 F.2d 927, 937, certiorari denied, (1985), 469 U.S. 1193; State v. Ball (1991), 72 Ohio App.3d. 549, 551. Contra, e.g., U.S. v. Short (D.D.C. 1991), 777 F.Supp. 40, 42. The trial court conceded there was nothing wrong with the evidence presented to the second grand jury. The facts of this case never changed from October 3, 1995 to December 6, 1995 nor did the evidence presented but for the quantity of evidence presented and *** that is acceptable. (Trial court's journal entry of Apr. 15, 1997 at 5.) The trial court also determined that the second grand jury acted appropriately and in good faith when evaluating the evidence presented. The sole reason given by the trial court for dismissing the indictment was that the State grand jury shopped by taking the case to a different grand jury than that which originally heard the case. -8- Thus, this case boils down to one simple truth, the trial court felt the submission of the case to a different grand jury was inappropriate forum shopping. In Sutton, the prosecution did virtually the same, and in a different county. There, the appellate court reversed, holding that unless a constitutional or statutory right was violated, which violation would bar prosecution, a dismissal with prejudice is an abuse of discretion. The import of Sutton is that once the case is nolled jurisdiction ends. Consequently, no law requires the State to return to the same grand jury. Additionally, R.C. 2941.58 provides that when a motion to quash or a plea in abatement is adjudged in favor of the accused, the trial court may order the case to be resubmitted to the grand jury, if then pending, or to the next succeeding grand jury. There is no requirement that the case be submitted to the same grand jury that originally heard the case. The appellees argue that it is the degree of the evidence presented. However, based on what we said earlier, we conclude that the evidence presented to the second grand jury was the same as that presented to the first. To the first grand jury, the prosecutor said a witness lied and in the second, the prosecutor dismissed her altogether. We are as well mindful of appellee's argument that the first indictment was not dismissed for good cause shown as required by R.C. 2941.33. However, we do not believe that issue is ripe for discussion in this appeal. Besides, it has been held that a nolle prosequi entered by court order at the request of the prosecution -9- imports that it was entered upon good cause shown. Douglas v. Allen(1897), 56 Ohio St. 156, 160; cf. Lakewood v. Pfeifer (1992), 83 Ohio App.3d 47, 52 (good cause requirement can be met where prosecution enunciates or record reveals more than a conclusory basis for the nolle prosequi). The State's second, fourth, and fifth assignments of error are well taken. The State in its first assignment of error argues Tankersley and Staimpel failed to make a prima facie case of selective prosecution. Selective prosecution exists when the defendant shows while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. State v. Lawson (1992), 64 Ohio St.3d 336, 346 [citing State v. Flynt (1980), 63 Ohio St.2d 132, 134]. In this case, Tankersley and Staimpel made no claim that other similarly situated police officers had not been prosecuted for the same type of conduct. In their motion to dismiss, they said only that the case was a high profile matter involving media attention. Defendants' Motion to Dismiss at 10. While making a general statement that they were being treated differently than other similarly situated officers, Tankersley and Staimpel failed to identify a single officer who was not prosecuted for similar -10- conduct. Under the circumstances, they failed to make a prima facie case of selective prosecution. Consequently, we conclude the trial court could not have properly dismissed the indictment based upon selective prosecution. In its third assignment of error, the State argues the trial court's dismissal of the indictments is best viewed under the doctrine of vindictive prosecution. The State points to Tankersley and Staimpel's argument in the motion to dismiss that the prosecutor's decision to seek a second indictment was motivated by a desire to punish them because of Tankersley's refusal to accept the tendered plea agreement. The State argues that their argument raises the issue of vindictive prosecution. To establish that the government's actions amounted to vindictive prosecution, defendant must demonstrate either actual vindictiveness, which requires direct evidence of an expressed hostility or threat to him for having exercised a constitutional right. U.S. v. Scholz (C.A. 9, 1996), 91 F.3d 157. To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort. Bordenkircher v. Hayes (1978), 434 U.S. 357, 363; U.S. v. Goodwin (1982), 457 U.S. 368, 374. However, the Bordenkircher court concluded that, although a defendant may be discouraged from asserting his right to go to trial after being confronted with the possibility of more severe charges, such a result was an inevitable and legitimate part of a system of plea negotiations. Id. at 364. There is no requirement that a prosecutor seek to indict a defendant on the least severe -11- charges supported by his conduct. The prosecutor may charge a defendant under any statute that proscribes the criminal behavior. State v. Miles (1983), 8 Ohio App.3d 410. See also State v. Bell (1996), 112 Ohio App.3d 473, 484 (A prosecutor's decision as to a charge is within his or her discretion, limited only by the legislative intent and pleading rules.) An initial indictment, used as a starting point for plea negotiations, does not limit the extent of the prosecution; a prosecutor may file additional charges if an attempt to reach a plea agreement is unsuccessful. U.S. v. Goodwin (1982), 457 U.S. 368, 380. Accordingly, the mere fact that the prosecutor threatened the defendants with indictment for more serious charges did not amount to vindictive prosecution because the prosecutor was free to seek more severe charges without violating due process. In order to show vindictive prosecution, Tankersley and Staimpel had to show that the prosecutor's decision was motivated by impermissible criteria such as race, religion, or other arbitrary classification. State v. Powell (1993), 87 Ohio App.3d 157, 165. The defendants made no claim that the subsequent indictment was motivated by any arbitrary classification. Though the defendants argued the prosecutor was motivated by media coverage of the case, they presented no evidence from which this court could reach such a conclusion. Mrs. Jones stated on the record that she only became involved with the case because most of her assistants were unavailable at the time the plea discussions were had with the defendants' -12- attorneys. (Dec. 5, 1995 Hearing Tr. at 5.) In light of the prosecutor's discretion with respect to charging decisions and the failure of proof as to any impermissible reason for the decision to re-indict, we conclude the trial court could not have dismissed the indictment based on vindictive prosecution. Based upon our resolution of the State's second, fourth, and fifth assignments of error, accordingly, the trial court's judgment is hereby reversed and this case is remanded for further proceedings. -13- This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellees 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. MICHAEL J. CORRIGAN, J., CONCURS. TIMOTHY E. MCMONAGLE, J., (CONCURS IN JUDGMENT ONLY) PATRICIA ANN BLACKMON ADMINISTRATIVE 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 .