Legal Research AI

Hinojosa v. State

Court: Indiana Supreme Court
Date filed: 2003-01-15
Citations: 781 N.E.2d 677
Copy Citations
8 Citing Cases


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.”