Opposition Brief — Forrester v. Ohio

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(4 | z, Bupreme Court, US.

GW FILED

No. 89-904 (| pec 2 ms

JOSEPH F. SPANIOL, JR.

IN THE

Supreme Court of the United states

OCTOBER TERM, 1989

4 CARL MICHAEL FORRESTER, SR.,

Petitioner,

pee A

fe ad ii

Vv.

THE STATE OF OHIO,

Respondent.

ne ge me eee hy, te

4 PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF OHIO

RESPONDENT’S BRIEF IN OPPOSITION

RICHARD L. ROSS

Prosecuting Attorney

Counsel of Record

70 W. Main Street

P.O. Box 388

McConnelsville, Ohio 43756

614/962-6478

Counsel for Respondent

Il.

QUESTIONS PRESENTED FOR REVIEW

IN A CASE INVOLVING A STATE FELONY MAY

A STATE TRIAL COURT UNDER THE FIFTH

AMENDMENT OF THE UNITED STATES CON-

STITUTION ALLOW THE AMENDMENT OF AN

INDICTMENT AT TRIAL WHEN THERE IS NO

CHANGE IN THE IDENTITY OR NAME OF THE

CRIME CHARGE?

IN A CASE INVOLVING A STATE FELONY, MAY

A STATE TRIAL COURT DENY ACCESS TO WIT-

NESS’S GRAND JURY STATEMENTS WHERE

THERE HAS BEEN NO SHOWING OF PAR-

TICULARIZED NEED?

TABLE OF CONTENTS

Page

Questions Presented. .......iss0sedeneeeee eee i

Table of Authorities. .......<1+<sasseeeeee ee ili

Opinions Below ......i.ssssseuseeebeteeeeee I

Jurisdiction ......:00sscennsuunee neni I

Constitutional Provisions... ..0..<.avse0sd seen I

Statement of Case . .....:csuenecncepeubeee 2

Reasons Why The Petition Should Be Denied. . 3-6

Conclusion ......sss00ssss50uu wee een 7

Certificate of Services. ... 4.0: cacceuceueuee eee 8

Appendix... 5s. 6500005505 ee eee Al1-A4

TABLE OF AUTHORITIES

Cases: - Page

OHIO CASE LAW

State v. Adams (1980) 62 O.S. 2d 151;

16 O. Opin. 3d 169; 404 N.E. 2d 144..... 3

State v. Daniels (1982) I O.S. 3d 69............ 2

State v. Headley (1983) 6 O.S. 3d 475........... 4

State v. O’Brien (1987) 30 O.S. 3d

ris ay » Vsiach sive 4 es «909s 2,3,4

State v. Wozniak (1961) 172 OS. 517........... 4

FEDERAL CASE LAW

Dennis v. United States (1966) 384

ET pas

Jencks v. United States (1957) 353

TG

Pittsburg Plate Glass Company v.

United States (1959) 360 U.S. 295.........5

Smith v. United States (1975) 423 U.S. 1303....6

Stirone v. United States (1960) 361 U.S. 212....3

United States v. Kegler (1984 DC)

Ee eee

United States v. Proctor & Gamble

Company (1958) 356 U.S. 677............. 6

ill

CONSTITUTIONAL PROVISIONS

UNITED STATES

Cases: Page

United States Constitution, Amendment V....... 1

United States Constitution, Amendment VI...... 1

United States Constitution, Amendment XIV..... 1

STATE STATUTES-OHIO

O.B.C. Section 2012-22(DKS) .......ccecevecccvess 3

MISCELLANEOUS

1S UA, See OB) oon cc kc nde wcaeese es 5

ae ULC. Beet Bee Oe cos ook eae Ra 1

Ohio Rules of Criminal Procedure:

IS TE GRU s vk vo oc Cb ere eee eee 3,4

a ey er rrr ee ent hee 5

CNIS SO Gi is. oes 54 cde cand eewaneeeee 5

iv

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1989

CARL MICHAEL FORRESTER, SR.,

Petitioner,

v.

THE STATE OF OHIO

Respondent.

OPINIONS BELOW

The opinions of the Morgan County Court of Common

Pleas, The Court of Appeals for the Fifth Appellate Dis-

trict of Ohio, and of the Ohio supreme Court are ade-

quately set forth in the Petition.

JURISDICTION

Jurisdiction is claimed by the petitioner under 28 U.S.C.

1257(a). However, respondent denies that there is any

substantial constitutional question presented.

CONSTITUTIONAL PROVISIONS

The Fifth, Sixth, and Fourteenth Amendments are ade-

quately set forth in the petition.

2

STATEMENT OF THE CASE

On March 20, 1987, Petitioner was charged by Indict-

ment with child endangering and involuntary manslaugh-

ter in the death of his son, Carl Michael Forrester, Jr. In

pretrial discovery, Petitioner’s counsel requested the

transcription and production of the Grand Jury testimony

of all witnesses who testified at that proceeding, whether

or not they were to be called at trial. Petitioner’s counsel

argued for the production of all transcripts of all wit-

nesses who appeared before the Grand Jury. The Court

denied Petitioner’s request finding that a particularized

need was not shown except for that of the forensic

pathologist, Dr. Larry Tate. Petitioner’s counsel did not

request any continuance when the Indictment was

amended prior to trial to add the element of “reckless-

ness” pursuant to the Ohio Rules of Criminal Procedure.

Trial proceeded and Petitioner was convicted on both

counts of the the Indictment on March 23, 1988. On June

8, 1988 Petitioner was sentenced to imprisonment for in-

voluntary manslaughter for a period of five to twenty-five

(5 to 25) years.

In the Fifth District Court of Appeals for the State of

Ohio, both of the assignments of error presented to this

Court were overruled. The Court of Appeals found State

v. O'Brien (1987) 30 O.S. 3d 122 to be expressly controll-

ing concerning the amendment of the Indictment. The

Court further found that Petitioner had demonstrated no

particularized need for any examination of the Grand

Jury testimony of the witnesses. The Court found ex-

pressly that the case of State v. Daniels, (1982) 1 O.S. 3d

69 was inapplicable as it dealt with statements to a law

enforcement officer rather than Grand Jury Testimony.

3

REASON WHY THE PETITION SHOULD

BE DENIED

1.The Indictment was properly amended pursuant to

Ohio Law and does not involve a constitutional question.

It is a basic fundamental right to have someone answer

only to a felony which has been returned by a Grand

Jury. The case of Stirone v. United States (1960) 361 U.S.

212 which Petitioner cites is inapplicable. In that case the

Defendant was to be tried on conspiracy concerning sand

importation but instead was tried concerning steel rather

than sand. In the present case Defendant was charged

with child endangering and involuntary manslaughter

and was tried on child endangering and involuntary

manslaughter. The case of State v. O’Brien (1987) 30 O.S.

3d 122 governs in this matter. The syllabus in that case

reads as follows:

“1. The culpable mental state of recklessly is an essen-

tial element of the crime of endangering children under

Revised Code 2919.22(b\(3). (State v. Adams (1980) 62

O.S. 2d 151; 16 O. Opin. 3d 169; 404 N.E. 2d 144

paragraph 1 of the syllabus approved and followed. )

2. An Indictment, which does not contain all of the es-

sential elements of an offense may be amended to include

the omitted element if the name or the identity of the

crime is not changed, and the accused has not been mis-

lead or prejudiced by the omission of such element from

the Indictment. (Crim. R. 7(D) construed and applied.)”

The O’Brien court dealt directly with this point.

“Failure to include the element of ’recklessness’ in an

Indictment for Endangering Children in no way alters

4

either the name, identity, or severity of the offense

charged. “O’Brien page 127. The case of State v. Headley

(1983) 6 O.S. 3d 475 is not applicable. That was a drug of-

fense in which by adding the name of the drug it changed

the level of the crime. That particular Ohio Statute would

allow possession of a drug to be anything from a minor

misdemeanor to a fourth degree felony depending upon

the drug possessed. Here the amendment changed

neither the identity nor the penalty level of the crime.

Likewise the case of State v. Wozniak (1961) 172 O.S. 517

is distinguishable. There the words “intent to steal

property” were contained in the statute at that time

whereas the word “reckless” is not contained in the child

endangering statute.

The O’Brien case is totally controlling on this matter of

State Law. On the matter of Federal Law the Indictment

was returned by a Grand Jury and Defendant stood trial

on that charge.

As the Court of Appeals stated: “In the disputed fact as

to whether the child was struck or whether a helpful

parent shook the child, the jury chose to believe the

creditability of Dr. Tate and to disbelieve the creditability

of the Defendant. Dr. Tate did state within a reasonable

medical certainty that the child had died due to blunt

force trauma to the head. This was irreconcilable with

any reasonable theory of the Defendant’s innocence.”

Wherefcre Respondent asks this Court to not grant the

writ if there is not serious constitutional question to be

reviewed.

Ohio Criminal Rule 7(D) permits amendment of an In-

dictment as long as there is “no change is made in the

name or identity of the crime charge.” This has been

repeatedly held to past constitutional standards as even

5

Federal Courts have said that an Indictment may be

amended when the Defendant is not mislead in any

sense, is not subject to any added burden and is not

otherwise prejudiced. United States v. Kegler (1984) DC)

724 F 2d 190.

2. There is no right to inspect Grand Jury statements

of Witnesses.

The providing of Grand Jury testimony is governed not

by Criminal Rule 16 for Discovery but is governed by

Criminal Rule 6 applying to Grand Jury. The Ohio Rules

are very similar although not the same as the Federal

Rules. The case of Dennis v. United States (1966) 384

U.S. 855 is inapplicable as this Court was there interpret-

ing the Federal Rules of Criminal Procedure as to a “par-

ticularized need”.

It is obvious that Petitioner’s counsel wished discovery,

not a particularized need, when he stated (at the tran-

script, page 313, line 24) “I wanted, obviously, Dr. Tate’s

for preparation prior to trial.” 18 U.S.C.S. Section 3500/e)

includes Grand Jury testimony as statements to be given

to Defense Counsel after a witness testifies. This is in the

Federal definition of statement. There is no such ap-

plicable or comparable portion of the Ohio Rules and it is

not a constitutional question.

Particularized need is set forth by this Court at a time

when the Federal Rules more closely resembled the Ohio

Rules of today. Pittsburg Plate Glass Company v. U.S

(1959) 360 U.S. 395. The Jencks case had to dea! with

statements in possession of the government not the tes-

timony before the Grand Jury. Jencks v. U.S. (1957) 353

U.S. 657. Grand Jury testimony is only to be disclosed if

“a compelling necessity shown with particularity” is done

6

by defense counsel. U.S. v. Proctor & Gamble Company

(1958) 356 U.S. 677. Here both the Trial Court and the

Appellate Court found that there was no particularized

need set forth by Petitioner’s counsel. There still is a con-

tinued need for particularized need before disclosure of

Grand Jury testimony. Smith v. U.S. (1975) 423 U.S.

1303.

7

CONCLUSION

For the foregoing reasons, respondent requests that thi-

Court deny the petition for a writ of certiorari.

Respectfully submitted,

RICHARD L. ROSS

Prosecuting Attorney

70 West Main Street

P.O. Box 388

McConnelsville, Ohio 43756

(614) 962-6478

COUNSEL OF RECORD

8

CERTIFICATE OF SERVICE

Pursuant to Rule 28 of the Rules of Practice of this

Court, I, Richard L. Ross, a member of the Bar of this

Court, hereby certify that on the 264_ day of 1987,

three copies of respondent’s Brief in Opposition to Peti-

tion for Writ of Certiorari in the above entitled case were

served upon the petitioner by United States Mail, first

class, postage prepaid, addressed to Richard D. Welch,

Grieser, Schafer, Blumenstiel & Slane Co., L.P.A. 261

West Johnstown Road, Columbus, Ohio 43230, Counsel of

Record for petitioner. I further certify that all parties re-

quired to be served have been served.

RICHARD L. ROSS

Prosecuting Attorney

70 W. Main Street

P.O. Box 388

McConnelsville, Ohio 47356

(614) 962-6478

A-1

Appendix A

Rule 6. The Grand Jury

(A) Summoning grand juries. The judge of the court of

common pleas for each county, or the administrative

judge of the general division in a multi-judge court of

common pleas or a judge designated by him, shall order

one or more grand juries to be summoned at such times

as the public interest requires. The grand jury shall con-

sist of nine members, including the foreman, plus not

more than five alternates.

(B) Objections to grand jury and to grand jurors.

(1) Challenges. The prosecuting attorney, or the attor-

ney for a defendant who has been held to answer in the

court of common pleas, may challenge the array of jurors

or an individual juror on the ground that the grand jury

or individual juror was not selected, drawn, or summoned

in accordance with the statutes of this state. Challenges

shall be made before the administration of the oath to the

jurors and shall be tried by the court.

(2) Motion to dismiss. A motion to dismiss the indict-

ment may be based on objections to the array or on the

lack of legal qualification of an individual juror, if not

previously determined upon challenge. An indictment

shall not be dismissed on the ground that one or more

members of the grand jury were not legally qualified, if it

appears from the record kept pursuant to subdivision (C)

that seven or more jurors, after deducting the number not

legally qualified, concurred in finding the indictment.

(C) Foreman and deputy foreman. The court may ap-

point any qualified elector or one of the jurors to be

foreman and one of the jurors to be deputy foreman. The

foreman shall have power to administer oaths and affir-

mations and shall sign all indictments. He or another

juror designated by him shall keep a record of the num-

A-2

ber of jurors concurring in the finding of every indictment

and shall upon the return of the indictment file the record

with the clerk of court, but the record shall not be made

public except on order of the court. During the absence or

disqualification of the foreman, the deputy foreman shall

act as foreman.

(D) Who may be present. The prosecuting attorney, the

witness under examination, interpreters when needed

and, for the purpose of taking the evidence, a stenog-

rapher or operator of a recording device may be present

while the grand jury is in session. but no person other

than the jurors may be present while the grand jury is

deliberating or voting.

(E) Secrecy of proceedings and disclosure. Deliberations

of the grand jury and,the vote of any grand juror shal! not

be disclosed. Disclosed. Disclosure of other matters occur-

ring before the grand jury may be made to the prosecut-

ing attorney for use in the performance of his duties. A

grand juror, prosecuting attorney, interpreter, stenog-

rapher, operator of a recording device, or typist who

transcribes recorded testimony, may disclose matters oc-

curring before the grand jury, other than the delibera-

tions of a grand jury or the vote of a grand juror, but may

disclose such matters only 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 oc-

curring before the grand jury. No grand juror, officer of

the court, or other person shall disclose that an indict-

ment has been found against a person before such indict-

ment is filed and the case docketed. The court may direct

that an indictment shall be kept secret until the defen-

dant is in custody or has been released pursuant to Rule

46. In that event the clerk shall seal the indictment, the

indictment shall not be docketed by name until after the

A-3

apprehension of the accused, and no person shall disclose

the finding of the indictment except when necessary for

the issuance of a warrant or summons. No obligation of

secrecy may be imposed upon any person except in ac-

cordance with this rule.

(F) Finding and return of indictment. An indictment

may be found only upon the concurrence of seven or more

jurors. When so found the foreman or deputy foreman

shall sign the indictment as foreman or deputy foreman.

The indictment shall be returned by the foreman or

deputy foreman to a judge of the court of common pleas

and filed with the clerk who shall endorse thereon the

date of filing and enter each case upon the appearance

and trial dockets. If the defendant is in custody or has

been released pursuant to Rule 46 and seven jurors do

not concur in finding an indictment, the foreman shal] so

report to the court forth with.

(G) Discharge and excuse. A grand jury shall serve

until discharged by the court. A grand jury may serve for

four months, but the court upon a showing of good cause

by the prosecuting attorney may order a grand jury to

serve more than four months but not more than nine

months. The tenure and powers of a grand jury are not

affected by the beginning or expiration of a term of court.

At any time for cause shown the court may excuse a juror

either temporarily or permanently, and in the latter

event the court may impanel another eligible person in

place of the juror excused.

(H) Alternate grand jurors. The court may order that

not more than five grand jurors, in addition to the regular

grand jury, be called, impanelled and sit as alternate

grand jurors. Alternate grand jurors, in the order in

which they are called, shali replace grand jurors who,

prior to the time the grand jury votes on an indictment,

are found to be unable or disqualified to perform their

duties. Alternate grand jurors shall be drawn in the same

A-4

manner, shall have the same qualifications, shall be sub-

jected to the same examination and challenges, shall take

the same oath, and shall -have the same functions,

powers, facilities, and privileges as the regular grand

jurors. Alternate grand jurors may sit with the regular

grand jury, but shall not be present when the grand jury

deliberates and votes.