dissenting. I fully concur in the majority opinion with respect to the conclusions therein that the introduction of the grand jury testimony of McGhee through testimony of the court reporter who recorded the grand jury proceedings was error, but not a violation of appellee’s constitutional right of confrontation. However, I am unable to join in the further conclusion that the error was harmless and, hence, respectfully dissent.
The rule in effect when this cause was tried is succinctly *397set forth in State v. Dick (1971), 27 Ohio St. 2d 162, 165, as follows:
“This court has long adhered to the principle that ‘when taken by surprise by the adverse testimony of its own witness, .. . the state may interrogate such witness concerning his prior inconsistent. . . statement... for the purpose of refreshing the recollection of the witness, but not for the purpose of offering substantive evidence against the accused.’ (Emphasis supplied.) State v. Duffy (1938), 134 Ohio St. 16, 17. See Hurley v. State (1888), 46 Ohio St. 320, 322; State v. Minneker (1971), 27 Ohio St. 2d 155.”6
My analysis of the record differs from that set forth in the majority opinion in that I am persuaded the state, and in all probability the jury, improperly utilized the grand jury testimony of McGhee through the hearsay testimony of the grand jury reporter, not only as direct impeaching evidence, but as substantive testimonial evidence of appellee’s guilt.
The trial court gave no instruction, either at the time of admission of the testimony of the grand jury reporter or in the general charge, limiting the use of such testimony for impeachment purposes only.7 The record tends to establish that the court itself viewed the testimony as substantive evidence in that, in response to a motion for acquittal by counsel for appellee’s brother and co-defendant at the end of the state’s case upon the basis that the evidence was circumstantial and insufficient, the court stated, “If that was the only thing, I would direct, but you have got the testimony of McGhee. Overruled.” *398Since the in-court testimony of McGhee was exculpatory as to both defendants, “the testimony of McGhee” necessarily refers to his testimony before the grand jury.
That the prosecution utilized the court reporter’s testimony as substantive evidence, and urged its acceptance by the jury as evidence of appellee’s guilt, is demonstrable by the following excerpts from the state’s closing argument: “Now, all the pieces fit together. Danny Diehl had to have a check to make it out and where is Danny Diehl going to get the check? How is he going to get it out of the residence of Mrs. Morris? That check didn’t fly. It had to come from that residence to him, and I submit to you his brother was the one that was working in there and his brother was the one that had the access to it and his brother is the one that Benny McGhee says gave him the check.”
Again, in final closing argument by the state and in response to a defense argument that one Scarborough who was with William Diehl was in the Morris home and could have taken the check which McGhee in his in-court testimony stated he found in an auto parts store, the state argued as follows:
“If you want to believe that story, that is your prerogative, but it doesn’t hold water. It doesn’t hold water at all. In fact, the testimony of Mr. McGhee, as he gave it to the Grand Jury, holds water very well. He told you there were three people, him and two others, and he told you who those two people were and that was verified by Mr. Bangart. When he gets on the stand here, he says only two and one of them is a dead guy and the dead guy filled it in, which is in conflict with your expert testimony that says this man filled it in.
“You’ve got to take all of the evidence we presented you together. You have got to take Benny McGhee’s testimony. You’ve got to take the handwriting. You’ve got to take the fact that the check was stolen in a place that he was working. No one piece of evidence will stand on its own, but just as in the law of large numbers, 12 points make the case. In this case, all the evidence we have combined is sufficient to prove our case beyond a reasonable doubt, which is our requirement.”
In its instructions to the jury the court gave a standard evidence instruction which provided, inter alia, “Evidence is all of the testimony received from the witnesses during the trial *399and the exhibits which you will have with you m the jury room.”
The Court of Appeals considered and rejected the question of whether the error was harmless in the following language:
“The evidence against appellant was far from overwhelming and much of the evidence presented was circumstantial. In light of the fact that both appellant and his brother, William Diehl, were tried together, the admission of Benjamin McGhee’s earlier testimony before the grand jury that he (McGhee) had obtained the check in question from William Diehl, that both William and Danny Diehl (appellant) were with him when he cashed the check and that William Diehl shared in the proceeds from the check was particularly damaging, especially in view of the testimony establishing a close association among appellant, his brother (William Diehl) and Benjamin McGhee. We cannot say beyond a reasonable doubt that had the grand jury testimony of Benjamin McGhee not been erroneously admitted, the jury would nevertheless have reached the same conclusion and found appellant guilty of the offenses charged. The error was not harmless beyond a reasonable doubt.”
I agree with the above analysis. Assuming, arguendo, that the error is non-constitutional in character so the strict standard of Chapman v. California (1967), 386 U. S. 18, need not be applied and that a lesser standard of whether substantial evidence exists to support the guilty verdict without such erroneous evidence applies, see State v. Davis (1975), 44 Ohio App. 2d 335; Crim. R. 33(E)(3); cf. State v. Cowans (1967), 10 Ohio St. 2d 96, even under such standard the error is not, in my view, harmless.
Accordingly, I would affirm the Court of Appeals.
P. Brown, J., concurs in the foregoing dissenting opinion.As to the use for impeachment, and also substantive evidence, of prior inconsistent statements of a witness, made under oath in a prior proceeding, permitted by the Ohio Rules of Evidence, effective July 1, 1980, see Evid. R. 801(D)(1)(a), and the limitation therein respecting the right of cross-examination at the time such prior inconsistent statement was made. In essence, as noted in the staff note to such rule, grand jury testimony still cannot be utilized as substantive evidence against a defendant because of the lack of the right of cross-examination of the witness before the grand jury.
In allowing the interrogation of one’s own witness, when taken by surprise by unfavorable and unexpected testimony, as to declarations and statements previously made by the witness, the opposite party is entitled to an instruction “that such previous contradictory testimony is not to be considered as evidence.” State v. Duffy (1938), 134 Ohio St. 16, 23. However, appellee herein cannot be penalized for failure to request a limiting instruction with respect to the court reporter’s testimony since it was not admissible for any purpose.