Attorney for Appellant
Nathaniel Ruff
Merrillville, IN
Attorneys for Appellee
Steve Carter
Attorney General
Timothy W. Beam
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
RUBEN HINOJOSA
Appellant (Defendant below),
v.
STATE OF INDIANA
Appellee (Plaintiff below).
)
) Supreme Court No.
) 45S05-0111-CR-590
)
)
)
) Court of Appeals No.
) 45A05-0010-CR-450
)
APPEAL FROM THE LAKE COUNTY SUPERIOR COURT
The Honorable Clarence L. Murray, Judge
Cause No. 45G02-9806-DF-10029
ON PETITION FOR TRANSFER
January 15, 2003
SULLIVAN, Justice.
In this case, a police officer seeks grand jury transcripts to
substantiate his claim of an official “cover-up” of wrongdoing. To obtain
them, he must show with particularity a need to prevent injustice that
outweighs the reasons for our long-established policy of grand jury
secrecy.
Background
Hinojosa is a nineteen-year veteran of the Hammond Police Department
(“Police Department”) who was suspended and faced disciplinary proceedings
as a result of the following set of circumstances.
On June 26, 1998, a grand jury issued indictments against Hammond
Police Officer Thomas Hanna (“Hanna”) stemming from what has apparently
become known as the “Hanna drunk driving accident incident.” After a bench
trial, Hanna was convicted of class A misdemeanor intimidation and class B
misdemeanor reckless driving charges.
The same grand jury also indicted five other police officers for
actions involving an attempted cover-up of Hanna’s accident: Donald A.
Vicari, Charles C. Bennett, George G. Gavrilos, Ronald M. Gennarelli, and
Steven Ridgley. The indictments against these officers were later
dismissed because they had not been informed that they were targets prior
to testifying before the Grand Jury.
Two weeks after the conclusion of Hanna’s trial, the Police
Department brought disciplinary charges against Hinojosa for going public
with charges that the Police Department had covered up the drunk driving
incident. Hinojosa had spoken to the newspaper, had picketed at city hall,
and had contacted the Indiana State Police about the Hanna investigation.
On August 16, 2000, Hinojosa filed a petition for production of
grand jury transcripts related to the Hanna investigation. He intended to
use this evidence to establish his defense at his upcoming disciplinary
hearing. The hearing had been set for August 24, 2000. Hinojosa argued
that he was entitled to present evidence at his hearing and claimed that
the grand jury transcripts were necessary in this regard because they
“undoubtedly contain some evidence substantiating [the] claim of a cover
up.” Hinojosa’s confidence as to what the transcripts contained apparently
stemmed from the fact that the Grand Jury had returned indictments on the
five officers.
On August 22-23, 2000, the trial court held a hearing on Hinojosa’s
petition. Hinojosa was the sole witness at the hearing. He admitted that
the names of the grand jury witnesses were a matter of public record. He
further stated that he had deposed the chief of police but had made no
effort to depose any of the other witnesses prior to his disciplinary
hearing.
The trial court denied Hinojosa’s request to release the Grand Jury
transcripts on the basis that no Indiana authority permitted disclosure of
grand jury testimony to a nonparty to the suit for which the Grand Jury was
created. (The Court of Appeals reversed, holding Hinojosa was entitled to
the transcripts. Hinojosa v. State, 752 N.E.2d 107 (Ind. Ct. App. 2001).
We granted transfer. 761 N.E.2d 423 (Ind. 2001) (table).
Discussion
I
Hinojosa maintains that the trial court erred in finding that a
nonparty cannot have access to grand jury transcripts. Br. of Appellant at
6-7. The State does not contest this argument. Accordingly, we assume for
purposes of this opinion that a nonparty is not barred in all circumstances
from receiving grand jury testimony in Indiana.
II
The State contends that Hinojosa failed to establish the
“particularized need” for the grand jury transcripts required by statute,
Ind. Code § 35-34-2-10(b) (1998),[1] because he could have acquired the
sought-after information through other means. Hinojosa responds that
evidence to support a finding of his particularized need for the grand jury
transcripts is abundant. See Brief of Appellant at 9. As such, we are
called upon to interpret the meaning the legislature intended for
“particularized need.”
At the outset, we note that the general rule regarding grand jury
transcripts is that they be kept secret. Ind. Code § 35-34-2-4(i)
(1998).[2] Indiana does not even recognize an absolute right of the
accused to the pre-trial examination of grand jury minutes. Blackburn v.
State, 260 Ind. 5, 291 N.E.2d 686 (1973), cert. denied, Blackburn v.
Indiana, 412 U.S. 925, 93 S. Ct. 2755 (1973); Mahoney v. State, 245 Ind.
581, 201 N.E.2d 271 (1964), overruled on other grounds by Antrobus v.
State, 253 N.E.2d 873 (Ind. 1970). In fact, it is a criminal offense to
“knowingly and intentionally” disclose information acquired in a grand jury
proceeding unless compelled by law. Ind. Code § 35-34-2-10(a) (1998).
However, the Legislature has created an exception to the general rule of
secrecy by granting trial judges the discretion to release evidence in
certain circumstances where a “particularized need” can be shown. See Ind.
Code § 35-34-2-10(b) (1998).
When construing the meaning of a statute, our primary goal is to
determine the legislature's intent. Smith v. State, 675 N.E.2d 693, 696
(Ind. 1996), citing Freeman v. State, 658 N.E.2d 68, 70 (Ind. 1995).
Undefined words in a statute are given their plain, ordinary, and usual
meaning, unless the construction is plainly repugnant to the intent of the
legislature or of the context of the statute. Ind. Code § 1-1-4-1(c). We
review a trial court’s grant or denial of a petition to release grand jury
transcripts for an abuse of discretion. See State ex rel. Keller v.
Criminal Ct. of Marion County, 262 Ind. 420, 317 N.E.2d 433 (1974).
The history of Ind. Code § 35-34-2-10 indicates that the Legislature
intended this provision to limit the acceptable use of grand jury
transcripts from a previously more lenient standard.
In 1970, this Court interpreted Ind. Code § 35-1-15-17,[3] a
predecessor to today’s § 35-34-2-10, as establishing a relatively lenient
approach to the use of grand jury testimony. Specifically, we found that
use of transcripts of grand jury testimony was permitted under the Code for
cross-examination and impeachment of witnesses at trial when a proper
foundation had been laid. See Antrobus v. State, 253 Ind. 420, 430, 254
N.E.2d 873, 878, citing Burns’ § 9-817, Ind. Acts 1905, ch. 169, § 103; see
also Dinning v. State, 256 Ind. 399, 269 N.E.2d 371 (1971) (reaffirming the
statutory interpretation of Antrobus).
In 1974, the Legislature amended the statute to prescribe that “the
transcript of testimony of any witnesses before a grand jury may be
produced only upon order of court,” but it excepted official use by the
prosecuting attorney from this requirement. Pub. L. No. 144, ch. 144; § 3,
1974 Ind. Acts 626; Ind. Code § 35-1-15-16.5.
In 1981, the Legislature again revisited the matter of grand jury
testimony. It repealed § 35-1-15-16.5, and replaced it with § 35-34-2-10.
Pub. L. No. 298, ch. 298, §§ 3 & 9, 1981 Ind. Acts 2366, 2391. The 1981
statute was very similar to our present statute but with the notable
exception that it lacked language requiring particularized need. The
requirement of particularized need was added in 1985. Pub. L. No. 312-
1985, §4, 1985 Ind. Acts 2348.
Each of the Legislature’s changes to the law governing the use of
grand jury transcripts has narrowed their availability to an accused while
simultaneously affirming the import of grand jury secrecy. Consequently,
we do not interpret the inclusion of a particularized need exception as
widening the availability of grand jury testimony. Rather, the
particularized need exception provides only a limited opportunity for non-
prosecutorial use of grand jury transcripts in those instances where the
inability to do so would result in injustice.
We hold that, in order to take advantage of this provision, Hinojosa
must show, with particularity, a need to prevent injustice by providing the
requested grand jury transcripts that outweighs the reasons for our long-
established policy of grand jury secrecy. See Hernly v. United States, 832
F.2d 980, 983 (citing U.S. v. Procter & Gamble, 356 U.S. 677, 682, 2
L.Ed.2d 1077, 78 S. Ct. 983 (1958)); Pittsburgh Plate Glass Co. v. United
States, 360 U.S. 395, 399 (1959) (detailing the history and the established
place of the grand jury in our nation’s history.). A showing of mere
relevance does not constitute a need to prevent injustice.
A party seeking a determination of particularized need does so by a
written motion identifying the desired transcripts and including an
explanation of the purpose for which the transcripts are to be used. See
Bustamante v. State, 557 N.E.2d 1313, 1323 (Ind. 1990). As the moving
party, the requesting party carries the burden of showing that the
requested transcripts or portions thereof are limited to materials
justified by the particularized need. See e.g. Douglas Oil Co. v. Petrol
Stops Northwest, 441 U.S. 211, 221 (1979).
A trial court should take into consideration the various reasons for
and public policies protected by grand jury secrecy and the applicability
of these policies in the case before it when determining whether the need
to prevent injustice outweighs our long-established policy of grand jury
secrecy. “The policies protected by grand jury secrecy include preventing
the escape of those who may be indicted, preventing attempts to influence
grand jurors or witnesses, encouraging free disclosures by those who have
information about crimes, and protecting the innocent accused who is later
exonerated.” State v. Heltzel, 552 N.E.2d 31, 35 (Ind. 1990) (citing
United States v. Procter Gamble Co., 356 U.S. 677, 78 S. Ct. 983 (1958)).
The rationale for maintaining grand jury secrecy is strongest when one or
more of these reasons or policies are implicated and the requesting party’s
burden to show need is greatest in these instances. See Heltzel, 522
N.E.2d at 35.
Our earlier cases interpreting the now-defunct Ind. Code § 35-1-15-17
(1970) required that all avenues available for discovering information be
exhausted before grand jury transcripts shall be released. See Blackburn
v. State, 260 Ind. 5, 291 N.E.2d 686, 690 (1973) (upholding denial of a
defendant’s pre-trial motion to examine all testimony given to the Grand
Jury upon finding that the defendant failed to “employ pre-trial discovery
procedures permitted by our Rules and law”); Dinning v. State, 256 Ind.
399, 401-402, 269 N.E.2d 371, 372 (1971) (upholding denial of pre-trial
motion for the release of grand jury testimony in anticipation of the cross-
examination of witnesses). It should go without saying that grand jury
transcripts not available to an accused under the older, more lenient
statutes are not now available. Accordingly, we find that a necessary
element for establishing a need to prevent injustice is a showing that all
reasonable alternative methods of gaining access to the needed information
have been exhausted.
A trial court should balance the reasons and policies supporting grand
jury secrecy against the exigencies of the matter before it. For example,
this Court has observed that the policies supporting grand jury secrecy for
a particular grand jury proceeding may decrease with the passage of time
following its conclusion. See Heltzel, 522 N.E.2d at 35. However, the
interests in grand jury secrecy do not disappear under such circumstances.
A determination of how much the secrecy interest is reduced is context
specific. In considering the effects of disclosure, “the courts must
consider not only the immediate effects upon a particular grand jury, but
also the possible effect upon the functioning of future grand juries.” See
Douglas Oil Co., 441 U.S. at 221. In some circumstances, the release of
grand jury transcripts may discourage free disclosures by those who have
information about crimes. Id.
In the present matter, Hinojosa’s claim that he has shown a
particularized need for the release of grand jury transcripts consists of
his contentions that State based its case, in part, on the testimony of
grand jury participants and his belief that the attorneys for the Hammond
Police Department will not allow any discovery as to what happened that
night. Brief of Appellant at 10-11. Hinojosa further believes that access
to grand Jury testimony will produce evidence substantiating his claims of
a cover-up and of bad faith on the part of city officials. Brief of
Appellant at 11. The State maintains that there is insufficient evidence
to maintain a finding of particularized need and points out that Hinojosa
stated that he made no attempt to subpoena or depose the individuals for
whom he has requested testimony.
The trial court did not make a finding in regard to whether Hinojosa
has established a particularized need for the pretrial release of grand
jury transcripts under Ind. Code § 35-34-2-10(b). The existence of
particularized need is a fact intensive inquiry best performed by a trial
judge. The trial court is in the best position to make a determination
regarding the existence of particularized need in this matter.
Conclusion
Having previously granted transfer pursuant to Ind. Appellate Rule
58(A), thereby vacating the opinion of the Court of Appeals, we now remand
this case to the trial court for further proceedings consistent with this
opinion.
SHEPARD, C.J., AND DICKSON, BOEHM, AND RUCKER, JJ., concur.
-----------------------
[1] “The transcript of testimony of a witness before a grand jury may be
produced only: (1) for the official use of the prosecuting attorney; or (2)
upon order of: (A) the court which impaneled the grand jury; (B) the court
trying a case upon an indictment of the grand jury; or (C) a court trying a
prosecution for perjury; but only after a showing of particularized need
for the transcript.”
[2] “Grand jury proceedings shall be secret, and no person present during a
grand jury proceeding may, except in the lawful discharge of his duties or
upon written order of the court impaneling the grand jury or the court
trying the case on indictment presented by the grand jury, disclose: (1)
the nature or substance of any grand jury testimony; or (2) any decision,
result, or other matter attending the grand jury proceeding. However, any
court may require any person present during a proceeding to disclose the
testimony of a witness as direct evidence in a prosecution for perjury.”
[3] “A member of the grand jury may, however, be required by any court to
disclose the testimony of a witness examined before the grand jury, for the
purpose of ascertaining whether it is consistent with that given by the
witness before the court; or to disclose the testimony given before them by
any person upon a charge against him for perjury, in giving his testimony
or upon his trial therefor.”