Devonta Hill: Motion for Grand Jury Transcripts

* *

NAILAH K. BYRDCUYAHOGA COUNTY CUERK OF COURTS

1200 Ontario Street Cleveland, Ohio 44113

Court of Common Pleas

MOTION Electronically Filed: September 16,2015 09:46

By: MICHAEL J. CHESELKA 0076667

Confirmation Nbr. 543636

THE STATE OF OHIO CR 12 569290-A

vrs.Judge:

DEVONTAHILL

JOSEPH D. RUSSO

Pages Filed: 7

Electronically Filed 09/16/2015 09:46 / MOTION / CR 12 569290-A / Confirmation Nbr. 543636 / CLLAJ

IN THE COURT OF COMMON PLEAS CRIMINAL DIVISION

CUYAHOGA COUNTY, OHIO

STATE OF OHIO, ) CASE NO.; CR-12-569290)

Plaintiff, ) JUDGE; JOSEPH D. RUSSO)) RENEWED MOTION FOR ) TRANSCRIPS OF GRAND JURY) PROCEEDINGS

V.

DEVONTA HILL,)

Defendant. )

Now comes the Defendant, Devonta Hill, by and through counsel, Michael J. Cheselka,

Jr., and pursuant to Crim. R. 6(E), and respectfully requests that a transcript of all of the Grand

Jury proceedings pertaining to both Devonta Hill and Roger Jones be provided to the defense at

States Expense. Developments in Case No. 1;13CV0744, necessitate a further look/ in camera

inspection, of the Grand Jury Transcripts.

Respectfully submitted.

/s/ Michael J. Cheselka. Jr.MICHAEL J. CHESELKA, JR. (0076667) MICHAEL J. CHESELKA, JR., EEC Attorney for Devonta Hill 75 Public Square, Suite 920 Cleveland, Ohio 44113 Phone; (216)696-0442

(216) 696-0075Fax;

Electronically Filed 09/16/2015 09:46 / MOTION / OR 12 569290-A/ Confirmation Nbr. 543636 / CLLAJ

CERTIFICATE OF SERVICE

A copy of the foregoing Motion for Transcript of all Grand Jury Proceedings at States

Expense was served on Plaintiff, the office of Timothy J. McGinty, Cuyahoga County

Prosecutor, via this courts electronic filing system this 16^^ day of September, 2015.

/s/ Michael J. CheseUca. Jr,MICHAEL J. CHESELKA, JR., EEC Attorney for Devonta Hill


MEMORANDUM

I. STATEMENT OF THE CASE

Defendant is before this Honorable Court pursuant to an indictment of the following charges;

1) Murder2) Felonious Assault3) Felonious Assault4) Felonious Assault5) Involuntary Manslaughter6) Failure to Comply with Order, Signal of Police Officer7) Failure to Comply with Order, Signal of Police Officer8) Aggravated Riot9) Discharge of Firearm on or Near Prohibited Premises10) Tampering with Evidence11) Felonious Assault

R.C. 2903.02(B) R.C. 2903.11(A)(2) R.C. 2903.11(A)(2) R.C. 2903.11(A)(2) R.C. 2903.04(A) R.C. 2921.331(B) R.C. 2921.331(B) R.C. 2917.02(A)(2) R.C. 2923.162(A)(3) R.C. 2921.12(A)(1) R.C. 2903.11(A)(2)

II. STATEMENT OF FACTS

On or about March 10, 2012, Defendant Devonta Hill went to Wilberts Bar with a friend of

his, Kayron Purdie. Several fights were going on inside the bar, which neither Mr. Hill nor Mr.

Purdie were engaged in. Despite not being involved in any of the fights inside the bar, Mr.

Purdie was sprayed in the face with mace or pepper spray while they were trying to leave. As

they got outside, they heard gunshots but could not tell where they were coming from.

Mr. Hill agreed to drive home because Mr. Purdie had been maced. As they were leaving.

they saw Kenny Smith, an old friend, who asked for a ride home. Mr. Smith got into the front

passenger side of the car that Mr. Hill was driving. As the car reached the intersection of East

9^^ and Prospect Avenue, the car was suddenly surrounded, and police officers ordered them to

stop and put their hands up. Mr. Hill complied, but then he saw an off-duty police officer.

Roger Jones, kick out the passenger side window of the car. As Mr. Hill was taken out of the

car, he was very cooperative, and the officer placed him under arrest, ordered him to the ground.


and then put him in handcuffs. He then heard a gunshot, looked up, and saw his lifelong friend.

Mr. Smith, lying on the ground bleeding; he had been shot in the head at point blank range by

Officer Jones. Mr. Hill is now being charged with Mr. Smiths murder, and Officer Jones has

been dubbed a hero by Prosecutor McGinty in the press. Accordingly, in the interest of

justice, Mr. Hill respectfully moves this Honorable Court to grant his Motion for Transcript of

Grand Jury Proceedings in order to examine the testimony which caused Mr. Hill to be indicted

in this case, and which caused Officer Jones to not be indicted at all.

III. LAW AND ARGUMENT

Grand jury proceedings in felony cases must be recorded pursuant to Crim.R. 22. Crim.R.

6(E) controls the disclosure of recorded grant jury testimony. See State v. Henness, 79 Ohio

St.3d 53 (1997). The rule provides that the court may permit the disclosure of the required

testimony in two instances; "when so directed by the court preliminary to or in connection with

a judicial proceeding, or when permitted by the court at the request of the defendant upon a

showing that grounds may exist for a motion to dismiss the indictment because of matters

occurring before the grand jury." Crim.R. 6(E).

The Ohio Supreme Court has long held that a trial court should permit a criminal defendant

to inspect grand jury transcripts the defendant demonstrates "that a particularized need for

disclosure exists which outweighs the need for secrecy." State v. Webb, 70 Ohio St.3d 325

(1994), quoting State v. Greer, 66 Ohio St.2d 139 (1981), paragraph two of the syllabus.

Ascertaining whether the defendant has shown particularized need is left to the sound discretion

of the trial court. Webb; Greer. What then is "particularized need"?

Whether particularized need or 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 places in issue by the witness trial testimony.

Greer, at paragraph three of the syllabus. Similarly, particularized need exists "when the

circumstances reveal a probability that the failure to provide the grand jury testimony will deny

the defendant a fair trial * * State V. Davis, 38 Ohio St.3d 31, 365 (1988) quoting State v.

Sellards, 17 Ohio St.3 169, 173 (1985).

The principle that an accused must show particularized need actually predates the 1973

adoption the Rules of Criminal Procedure. See, e.g., State v. Laskey, 21 Ohio St.2d 17, 191

(1970)(holding that the rule of secrecy "is relaxed only when the ends of justice require it, such

as when the defense shows that a particularized need exists or the minutes which outweighs the

policy of secrecy"); State v. Patterson, 28 Ohio St.2d 181 (1971), at the syllabus (holding that

"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"). Of course, this principle is now

embodied in the Criminal Rules. See, State v. Grewell, 45 Ohio St.3d 4 (1989), and State v.

Lawson, 64 Ohio St.3d 336, 345 (1992).

A full discussion of particularized need appears in State v. Greer where the Ohio Supreme

Court sets out the procedures a trial court should employ. Id. at 143-51. In part the Court

instructed;

Crim.R. 6(E) would require the trial court, upon proper motion, to consider the basis of the particularized need advanced by the defendant. This may be accomplished an in camera inspection of the grand jury minutes by the trial court assisted by counsel. Next, we conclude that there is soundness in the procedure to be


followed by the trial court as set forth in {Dennis v. United States, 384 U.S. 855 (1966)] to the effect that once the particularized need for the grand jury material is shown, the necessity of preserving grand jury secrecy is lessened, largely because the witness, in testifying at trial, has given up any anonymity he might have ha and has made public the events which are the subject of the grand jury testimony being sought.

Id. at 150-51. See, also, State v. Sellards, 17 Ohio St.3 169 (1985) (reaffirming the right to an

in camera inspection of relevant portions of grand testimony upon a showing of a particularized

need).

It is important to note that defendant does not seek broad, unfettered access to the grand jury

minutes in this case; the real purpose of this Motion is not to engage in a fishing expedition for

inconsistencies in witness testimony or other potentially useful impeaching information.

Defendant recognizes and accepts that Rule 6(E) may not be used for such a purpose. See,

Webb, supra, at 337 ("general assertions, citing no specific facts of record, do not establish

particularized need"; State v. Mack. 73 Ohio St.3d 502 (1995) (finding that defendants bald

assertion that he needed to examine the grand jury testimony of an adverse witness for

inconsistencies failed to set forth a particularized need); State v. Hopfer, 112 Ohio App.3d 521

(1996) (determining that defendants intended use of a witness grand jury testimony to prepare

was "an expansive interpretation of a particularized need [that] would render Crim.R. 6(E)

ineffective); State v. Stojetz, 84 Ohio St.3d 452 (1999) (rejecting the accuseds claim of a

particularized need as "replete with speculation and innuendo").

A particularized need was shown in State v. Hook (Aug. 6, 1998), No. 2-98-09, unreported;

1998 WE 378413. "This is not a situation where a defendant made general requests for the

grand jury transcripts. State v. Richey (1992), 64 Ohio St.3 353, 366, 595 N.E.2d 915, or merely


desired a pretrial review, CECOS Internatl, Inc., 38 Ohio St.3d at 120, 526 N.E.2d 807.

Rather, Hook cited specific facts supporting his motion. See, contra. State v. Lawson (1992),

64 Ohio St.3d 336, 345, 595 N.E.2d 902.

In this case at bar, defendant has demonstrated both that grounds to dismiss the indictment

exist and that there is a particularized need for disclosure of the grand jury proceedings sought.

Specifically, why was Mr. Hill charged with a murder that occurred after he was already in the

custody of law enforcement? And why was Officer Jones not charged with any of the crimes he

committed on March 10, 2012, especially since he pulled the trigger which killed Mr. Smith?

Was the grand jury misled, or were the underlying facts misrepresented to the grand jury?

Clearly, something irregular occurred or false testimony was presented.

IV. CONCLUSION

For the foregoing reasons, defendant respectfully requests that this Honorable Court

declare that particularized need for the transcript has been shown and that it enter an order

directing the transcription of the stenographic recording of the proceedings occurring before the

Grand Jury and permitting disclosure of said transcript and all exhibits revealed and presented

to the Grand Jury.

Respectfully submitted.

/s/ Michael J. CheseUca. Jr.MICHAEL J. CHESELKA, JR. (0076667) MICHAEL J. CHESELKA, JR., EEC Attorney for Devonta Hill 75 Public Square, Suite 920 Cleveland, Ohio 44113 Phone; (216) 696-0442 Fax; (216) 696-0075


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Devonta Hill: Motion for Grand Jury Transcripts