* *
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
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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;
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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
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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.
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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
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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
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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
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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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