[Cite as Desmond v. State, 2020-Ohio-181.]




                            IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                   MAHONING COUNTY


Martin Desmond                                   Court of Appeals No. 2018 MA 00138

        Appellant                                Trial Court No. 2017 CV 99999

v.

State of Ohio                                    DECISION AND JUDGMENT
                                                 Judgment: Affirmed
        Appellee                                 Decided: January 21, 2020

                                             *****

        Subodh Chandra, Patrick Haney and Donald P. Screen, for appellant.

        Matthew E. Meyer, Special Prosecutor, for appellee.

                                             *****

        MAYLE, J.

        {¶ 1} Petitioner-appellant, Martin Desmond, appeals (1) the November 19, 2018

judgment of the Mahoning County Court of Common Pleas, denying his petition to

unseal grand-jury transcripts in five criminal proceedings, and (2) its June 4, 2018
judgment appointing Matthew Meyer as independent special prosecutor, representing the

interests of the state.

       {¶ 2} As explained further below, Desmond requested grand-jury transcripts from

five criminal matters for use in litigation against his former employer, Mahoning

County’s elected prosecutor, Paul Gains. Grand-jury proceedings are generally afforded

secrecy under Ohio law unless a person shows a particularized need for the transcripts

that outweighs the need for secrecy. Because we find that Desmond failed to

demonstrate a particularized need for the transcripts, we affirm the trial court judgment.

       {¶ 3} Additionally, Desmond moved to disqualify attorney Matthew Meyer, an

assistant Cuyahoga County prosecuting attorney who was appointed by Gains to

represent the state in this matter. Desmond maintained that because he alleged

misconduct by the attorneys in Gains’s office, Gains had a conflict of interest that was

not cured by appointing Meyer as an assistant. The trial court concluded that because

Meyer was subject to discharge by Gains, there existed an arguable appearance of

impropriety, and it voided Gains’s appointment. However, because it found that Meyer’s

involvement posed no actual prejudice to Desmond, it appointed Meyer itself to act as an

independent special prosecutor on behalf of the state. Because we find no error in the

trial court’s appointment of Meyer, we affirm the trial court judgment.

                                     I. Background

       {¶ 4} Martin Desmond was employed by the Mahoning County Prosecutor’s

Office as an assistant prosecuting attorney (“APA”). On April 5, 2017, the elected




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county prosecutor, Paul Gains, terminated Desmond’s employment, allegedly because

Desmond violated various statutes and rules of professional conduct by (1) engaging in

communications with adverse parties; (2) knowingly making himself a witness to a

lawsuit against the county, his superior, and a fellow assistant prosecutor; (3) uttering

false claims of ethical violations against a fellow assistant prosecutor, causing a

grievance to be filed against her; (4) wrongfully making false and misleading allegations

against a fellow assistant prosecutor to adverse parties; (5) failing to communicate to the

appropriate supervisor his belief that a fellow assistant prosecutor engaged in

misconduct; and (6) using county equipment and assets to conduct research to assist

parties adverse to his client, his superior, and a fellow assistant prosecutor.

       {¶ 5} Desmond insists that the real reason his employment was terminated was

because he reported misconduct by fellow APA, Dawn Cantalamessa, in her handling of

a murder case (State v. White, Mahoning case No. 15-CR-538) and a related obstruction-

of-justice case (State v. Robinson, Mahoning case No. 16-CR-342), and for other

questionable prosecution tactics. Desmond alleges that the prosecutor’s office, and

Cantalamessa in particular, maintains a practice of indicting people without sufficient

evidence in order to compel their cooperation in criminal proceedings. He maintains that

this practice includes indicting individuals solely for invoking their right to remain silent.

       {¶ 6} Desmond appealed his termination to the State Personnel Board of Review

(“SPBR”), alleging that he was terminated by the prosecutor’s office in retaliation for

making a report under R.C. 124.341—Ohio’s whistleblower statute. SPBR determined




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that Desmond failed to satisfy the procedural threshold for seeking whistleblower

protection under R.C. 124.341, and, therefore, dismissed his appeal for lack of

jurisdiction. Desmond appealed to the Mahoning County Court of Common Pleas, which

affirmed the SPBR decision. He then appealed to this court. We reversed and remanded

for a determination of the merits of Desmond’s SPBR appeal. Desmond v. Mahoning

Cty. Prosecutor’s Office, 2019-Ohio-4282, 134 N.E.3d 280, ¶ 2 (7th Dist.).

       {¶ 7} In addition to his appeal to the SPBR, Desmond filed a civil complaint in the

Mahoning County Court of Common Pleas, case No. 18-CV-771. This complaint, filed

on March 21, 2018, asserts claims for defamation, intimidation, false-light invasion of

privacy, wrongful discharge in violation of public policy, falsification, retaliation, and

civil-rights violations against Gains, both in his official capacity and personally;

Desmond’s direct supervisor, Linette Stratford, both in her official capacity and

personally; and Mahoning County.

       {¶ 8} Shortly before filing his complaint and following the SPBR’s dismissal of

his appeal, Desmond petitioned the Mahoning County Court of Common Pleas to unseal

grand-jury testimony in five specific cases:

                  (1) State v. Lucky, Mahoning case No. 08-CR-329;

                  (2) State v. Hill, Mahoning case No. 08-CR-372;

                  (3) State v. Ravnell, Mahoning case No. 08-CR-373;

                  (4) State v. Dawson, Mahoning case No. 11-CR-804; and

                  (5) State v. Woods, Mahoning case No. 12-CR-1261.




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Desmond claimed that the transcripts from these proceedings would (1) show that the

misconduct he reported was a real concern, which will support his retaliation claim;

(2) help impeach Gains, who claimed that the reported misconduct was investigated and

no wrongdoing found, thereby undermining Gains’s credibility; (3) support his SPBR

appeal by testing Gains’s credibility as to the bases for the SPBR’s dismissal; and

(4) promote accountability of the prosecutor’s office, a matter of public interest.

       {¶ 9} After conducting an in-camera review of the transcripts, in an order filed on

November 19, 2018, the trial court denied Desmond’s petition. It held that the

“particularized need asserted by the petitioner for access to the enumerated grand jury

transcripts is not sufficient to overcome the principles of secrecy accorded grand jury

proceedings under Ohio law.”

       {¶ 10} During the course of the proceedings relating to his petition to unseal the

grand-jury transcripts, Desmond sought to disqualify counsel selected by the Mahoning

County Prosecutor’s Office to represent the state’s interests. Specifically, Gains

appointed Matthew E. Meyer, an assistant Cuyahoga County prosecuting attorney, to

represent the state with respect to Desmond’s petition. Desmond argued that because he

alleged prosecutorial misconduct against Gains and his office, counsel appointed by

Gains could not independently investigate those claims. He asked that the trial court

disqualify Meyer and appoint independent counsel.

       {¶ 11} In an order filed on June 4, 2018, the trial court agreed with Desmond that

there was an “arguable appearance of impropriety” because Meyer was subject to




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discharge by Gains, but it concluded that this appearance of impropriety did not amount

to actual prejudice to Desmond. The court granted Desmond’s motion to disqualify to

the extent that Meyer’s service was at Gains’s appointment, but it then appointed Meyer

itself to serve as independent special prosecutor. In other words, Meyer was allowed to

continue to serve as counsel, but would do so as an appointee of the court rather than as

Gains’s appointee.

       {¶ 12} Desmond appealed both the November 18 and June 4, 2018 judgments. He

assigns the following errors for our review:

              Assignment of Error #1: The lower court erred in finding that

       Desmond’s particularized need was insufficient to outweigh any minimal-

       to-non-existent secrecy interest, and thus to unseal the requested grand-jury

       transcripts.

              Assignment of Error #2: The lower court erred in appointing as

       independent special prosecutor the same individual previously picked by

       Mahoning County Prosecuting Attorney Paul Gains to resolve an apparent

       conflict of interest for the prosecutor’s office.

                                   II. Law and Analysis

       {¶ 13} Desmond assigns error both in the trial court’s denial of his petition to

unseal the five grand-jury transcripts and in its order appointing Meyer as an independent

special prosecutor. We address each of Desmond’s assignments of error in turn.




6.
                            A. The Grand Jury Transcripts

       {¶ 14} Desmond argues in his first assignment of error that the trial court erred in

refusing to unseal the grand-jury transcripts. He claims that he showed a particularized

need for the transcripts that outweighed the need to preserve the secrecy of the grand-jury

proceedings. Specifically, he maintains that the transcripts would substantiate or

“underscore” the prosecutorial misconduct that he reported to Gains and, furthermore,

would aid in impeaching Gains’s credibility. Desmond also contends that release of the

grand-jury transcripts would further the ends of justice by allowing public scrutiny of

prosecutorial practices. In this case, he claims, release of the transcripts would expose

misconduct by the Mahoning County prosecutor’s office.

       {¶ 15} The state responds that (1) Desmond lacks standing to obtain the transcripts

because he was not a party to the grand jury proceedings at issue; (2) Desmond’s desire

to use the transcripts to “potentially impeach Gains” does not constitute a particularized

need; (3) maintaining the secrecy of the grand jury proceedings remains of major

importance even though the cases have concluded; and (4) the public interest in exposing

prosecutorial misconduct is not sufficient to constitute a particularized need for the

transcripts.

                           1. Secrecy of grand jury proceedings

       {¶ 16} Crim.R. 6(E) protects the secrecy of grand-jury proceedings and provides

that matters occurring before the grand jury may be disclosed “only when so directed by

the court preliminary to or in connection with a judicial proceeding, or when permitted by




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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.” In

addition, R.C. 2939.11 imposes upon the reporter who records testimony before the grand

jury “an obligation of secrecy to not disclose any testimony taken or heard except to the

grand jury, prosecuting attorney, or attorney general, unless called upon in court to make

disclosures.” Notably, neither Crim.R. 6(E) nor R.C. 2939.11 prohibit a court from

allowing disclosure of grand-jury transcripts to a person who was not a “party” to the

grand-jury proceedings.

       {¶ 17} The Ohio Supreme Court has recognized five reasons for preserving the

secrecy of grand jury proceedings:

                 “(1) To prevent the escape of those whose indictment may be

       contemplated; (2) to insure the utmost freedom to the grand jury in its

       deliberations, and to prevent persons subject to indictment or their friends

       from importuning the grand jurors; (3) to prevent subornation of perjury or

       tampering with the witnesses who may testify before grand jury and later

       appear at the trial of those indicted by it; (4) to encourage free and

       untrammeled disclosures by persons who have information with respect to

       the commission of crimes; [and] (5) to protect [an] innocent accused who is

       exonerated from disclosure of the fact that he has been under investigation,

       and from the expense of standing trial where there was no probability of

       guilt.”




8.
In re Petition for Disclosure of Evidence Presented to Franklin Cty. Grand Juries in

1970, 63 Ohio St.2d 212, 219, 407 N.E.2d 513 (1980), quoting U.S. v. Rose, 25 F.2d 617,

628-629 (2d Cir.1954).

       {¶ 18} “The secrecy of grand jury proceedings is not, however, absolute.” In re

Grand Jury Investigation, 61 Ohio Misc.2d 583, 588, 580 N.E.2d 868 (C.P.1991). The

Ohio Supreme Court has held that inspection of grand jury transcripts may be permitted

where there exists a particularized need for disclosure that outweighs the need for

secrecy. State v. Greer, 66 Ohio St.2d 139, 420 N.E.2d 982 (1981), paragraph two of the

syllabus; In re Petition for Disclosure of Evidence Presented to Franklin Cty. Grand

Juries in 1970 at 218. This is true in both criminal cases and civil cases. Id.

       {¶ 19} The “particularized need” standard is a “highly flexible” one that

recognizes that “the requirements of secrecy are greater in some situations than in

others.” United States v. Sells Eng., Inc., 463 U.S. 418, 445, 103 S.Ct. 3133, 77 L.Ed.2d

743 (1983). To that end, “once the particularized need for the grand jury material is

shown, the necessity of preserving grand jury secrecy is lessened * * *.” Greer at 150.

Additionally, “as the considerations justifying secrecy become less relevant, a party

asserting a need for grand jury transcripts will have a lesser burden in showing

justification.” Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211,

223, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979).

       {¶ 20} Nevertheless, “in considering the effects of disclosure on grand jury

proceedings, the courts must consider not only the immediate effects upon a particular




9.
grand jury, but also the possible effect upon the functioning of future grand juries.” In re

Petition for Disclosure of Evidence Presented to Franklin Cty. Grand Juries in 1970 at

217, quoting Douglas Oil at 222-223. “Persons called upon to testify will consider the

likelihood that their testimony may one day be disclosed to outside parties.” Id.

Accordingly, “the interests in grand jury secrecy, although reduced, are not eliminated

merely because the grand jury has ended its activities.” Id.

                           2. Demonstrating particularized need

       {¶ 21} Whether there exists a particularized need for disclosure of grand jury

transcripts is a question of fact to be determined by the trial judge. State v. Perkins, 191

Ohio App.3d 263, 2010-Ohio-5161, 945 N.E.2d 1083, ¶ 45 (2d Dist.), citing Greer at

paragraphs one and two of the syllabus. We review a decision denying a motion for

release of grand jury transcripts under an abuse-of-discretion standard. Wurth v. Emro

Marketing Co., 125 Ohio App.3d 494, 500, 708 N.E.2d 1057 (6th Dist.1998). “A trial

court will be found to have abused its discretion when its decision is contrary to law,

unreasonable, not supported by the evidence, or grossly unsound.” State v. Nisley, 3d

Dist. Hancock No. 5-13-23, 2014-Ohio-981, ¶ 15, State v. Boles, 187 Ohio App.3d 345,

2010-Ohio-278, ¶ 16-18 (2d Dist.).

       {¶ 22} “Particularized need” may exist where “considering all of the surrounding

circumstances, ‘it is probable that the failure to disclose the testimony will deprive the

petitioner of a fair adjudication of a pending action.’” (Citations omitted.) Wiggins v.

Kumpf, 2d Dist. Montgomery No. 26263, 2015-Ohio-201, ¶ 8. “A general request




10.
for grand jury transcripts does not demonstrate a particularized need.” State v.

Richardson, 2014-Ohio-3541, 17 N.E.3d 644, ¶ 17 (3d Dist.). Nor does mere speculation

about the content of grand jury proceedings. Tourlakis v. Beverage Distributors, Inc., 8th

Dist. Cuyahoga No. 81222, 2002-Ohio-7252, ¶ 34, citing State v. Mack, 73 Ohio St.3d

502, 508, 653 N.E.2d 329 (1995). See also Wiggins at ¶ 10, quoting State v. Lang, 129

Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 44 (“A ‘speculative claim that the

grand jury testimony might have contained material evidence or might have aided * * *

cross-examination does not establish a particularized need.’”).

       {¶ 23} Courts have also found no particularized need for grand-jury testimony

where defendants claimed that inspection of the transcripts was needed to show that

indictments were issued based on inadequate or incompetent evidence. See State v.

Davis, 38 Ohio St.3d 361, 365, 528 N.E.2d 925 (1988); State v. Brown, 38 Ohio St.3d

305, 308, 528 N.E.2d 523 (1988) (finding no particularized need where defendant sought

to inspect grand-jury testimony to show that indictment was not properly issued). But

courts have recognized the existence of particularized need where the transcripts are

sought to impeach a witness, refresh his recollection, or test his credibility. Stakich v.

Russo, 8th Dist. Cuyahoga No. CA 99488, 2014-Ohio-2526, ¶ 31.

       {¶ 24} Absent a showing of particularized need, the trial court is not obligated to

examine the grand-jury transcript. Richardson at ¶ 18, citing State v. Horger, 170 Ohio

App.3d 383, 2007-Ohio-665, 867 N.E.2d 466, ¶ 11 (5th Dist.). See also State v. Brown,

6th Dist. Lucas No. L-82-297, 1983 WL 6945, *5 (Sept. 16, 1983) (“[T]he trial court did




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not abuse its discretion in not conducting an in camera inspection of the grand jury

testimony, since the defense failed to demonstrate the requisite particularized need.”).

Moreover, “there is no requirement that defense counsel examine the grand jury

transcript until a particularized need has been established.” State v. Herrera, 6th Dist.

Ottawa No. OT-05-039, 2006-Ohio-3053, ¶ 30.

                   3. Evaluating particularized need in the present case

       {¶ 25} The trial court conducted a hearing on Desmond’s petition to unseal the

grand-jury transcripts on November 13, 2018. At the beginning of that hearing, the court

stated that “at least in form,” particularized need exists in this case. It reiterated this later

on in the hearing, stating that it had made a finding of particularized need “subject to a

verification in the in-camera inspection.” But after reviewing the transcripts—without

making those transcripts available to counsel—it announced that it had “determined that

there is insufficient evidence of a particularized need in any of [the] transcripts to warrant

first participation in the evaluation by counsel on either side * * * [a]nd second, to

warrant production of * * * those transcripts to either side.” Its November 19, 2018

judgment entry concludes that “the particularized need asserted by petitioner for access to

the enumerated grand jury transcripts is not sufficient to overcome the principles of

secrecy accorded grand jury proceedings under Ohio law.”

       {¶ 26} The procedure used by the trial court was this: after the parties briefed and

argued their respective positions, the judge reviewed the transcripts in chambers in the

presence of counsel and explained why he did not believe Desmond was entitled to each




12.
of the transcripts. Desmond argues that the trial court erred by not allowing counsel

access to the transcripts so that they could meaningfully participate in the in-camera

review and by failing to properly weigh Desmond’s need for the transcripts against the

interests in maintaining the secrecy of the grand jury proceedings at issue. He insists that

the justification for maintaining the secrecy of the proceedings is severely diminished

here because potential witnesses were disclosed by the state and the cases have long been

resolved.

       {¶ 27} Desmond is correct that counsel may be permitted to assist the trial court

while it conducts an in camera review, but there is no such requirement unless and until a

particularized need has been established. Herrera at ¶ 30; see also Greer at paragraph

four of the syllabus (“[W]hen defense counsel asserts and establishes to the satisfaction

of the trial court a particularized need for [the] grand jury testimony, the trial court,

along with defense counsel and counsel for the state, shall examine the grand jury

transcript in camera * * *.” (Emphasis added.)).

       {¶ 28} Desmond is also correct that the necessity of preserving grand-jury secrecy

is lessened as the justifications for secrecy cease to apply, but again, this is true only after

a particularized need for the transcripts has been demonstrated. Greer at 150 (“[O]nce

the particularized need for the grand jury material is shown, the necessity of preserving

grand jury secrecy is lessened.”). Where a petitioner has not demonstrated a

particularized need for the transcripts, a trial court does not err by failing to expressly

consider the five factors for preserving secrecy. Wurth, 125 Ohio App.3d at 500, 708




13.
N.E.2d 1057. “The petitioner’s burden to demonstrate a particularized need for

disclosure [that] outweighs the need for secrecy is * * * a threshold requirement.”

(Internal quotations and citations omitted.) In re January 27, 2017 Order Releasing

Grand Jury Materials, 2018-Ohio-988, 108 N.E.3d 1170, ¶ 7 (2d Dist.).

       {¶ 29} Desmond advances essentially three reasons in support of his position that

particularized need exists. He claims the transcripts will allow him (1) to substantiate his

claims of misconduct, (2) to impeach or discredit Gains, and (3) to expose to the public

misconduct occurring within the Mahoning County prosecutor’s office. We are not

persuaded that any of these reasons establish a particularized need.

       {¶ 30} First, Desmond argues that the grand-jury transcripts would substantiate the

misconduct that he reported, thereby supporting his contention that Gains’s motive for

terminating his employment was retaliatory. Specifically, he claims that the transcripts

will “bolster” his retaliation claims because they will “help” prove a motive to retaliate.

He explains that “if the transcripts showed a pattern of indicting individuals based on

insufficient evidence and/or for improper motives, that would strengthen Desmond’s

claim that the reason for his termination was to cover up such misconduct * * *,” and “if

the transcripts substantiate his reported concerns,” this will undermine the truth of

Gains’s affidavit in which he averred that he investigated Desmond’s concerns and found

them to be baseless. (Emphasis added.) Desmond insists that his ability to prove motive

and to impeach Gains’s credibility will be “hampered” if he is not allowed access to the

grand jury transcripts.




14.
       {¶ 31} Desmond’s contentions that the transcripts would “help,” “strengthen,” and

“bolster” his claims “if” they show what he thinks they will show, and that the absence of

the transcripts will “hamper” his ability to prove motive and attack Gains’s credibility fall

short of showing that it is probable that the failure to disclose the testimony will deprive

him of a fair adjudication of his claims. At most, Desmond has shown that the transcripts

would assist in supporting his claims.

       {¶ 32} Moreover, Desmond already possesses public case filings that would serve

the same purpose as the grand-jury transcripts. For instance, Desmond attached as an

exhibit to his petition the state’s motions to dismiss the indictments in Hill and Lucky.

Those motions concede the deficiencies in the state’s cases, openly acknowledging that

charges had been brought to apply pressure on the defendants to cooperate with the state.

Desmond also attached a transcript from a hearing on the defendant’s motion to dismiss

in Woods, in which Cantalamessa asserts her position in support of the indictment—the

same position that Desmond argues constituted misconduct. It is difficult to understand

why Desmond needs the grand jury transcripts given that he is already in possession of

documents that are part of the public record from which he can argue the same point.

       {¶ 33} Turning to his second argument in support of particularized need, Desmond

claims that the grand jury transcripts are necessary to impeach Gains and to test his

credibility. He maintains that the transcripts will undercut Gains’s claims that

Desmond’s accusations were baseless and that no other employees engaged in




15.
wrongdoing. He insists that the transcripts will show that Gains will say anything to

cover for his assistants’ improper actions.

       {¶ 34} But Desmond does not contend that Gains was present during the grand

jury proceedings or that he testified at those proceedings. Generally, where courts have

allowed access to grand jury transcripts for impeachment purposes, it has been to

impeach a trial witness with his or her previous testimony before the grand jury. There is

no prior testimony here with which to impeach Gains. Moreover, Ohio courts have held

that a particularized need cannot be established for the pretrial release of grand jury

testimony of a witness “based upon ‘anticipated’ inconsistencies with trial testimony that

has not yet taken place.” State v. Godfrey, 181 Ohio App.3d 75, 2009-Ohio-547, 907

N.E.2d 1230, ¶ 16 (3d Dist.).

       {¶ 35} In any event, Gains’s affidavit does not suggest that he performed an

investigation of the prosecutors’ conduct in Lucky, Hill, Ravnell, Woods, or Dawson; it

indicates that Desmond’s allegations against Cantalamessa—which were “subsumed by

the allegations contained in [Robinson’s] federal lawsuit”—were baseless. The pertinent

paragraph of Gains’s affidavit states:

              After conducting an internal investigation into the allegations raised

       in the federal case, I determined that neither Cantalamessa nor [Shawn]

       Burns mishandled either the White or Robinson criminal cases. It was

       further determined that Attorney Desmond’s complaints against Assistant

       Prosecutor Cantalamessa were baseless. Inasmuch as Attorney Desmond’s




16.
         allegations are subsumed by the allegations contained in the federal lawsuit,

         I concluded that Attorney Desmond’s allegations lacked merit.

In other words, Gains’s affidavit suggests only that he investigated Cantalamessa’s

conduct in White and Robinson—transcripts that are not at issue here. Accordingly, we

conclude that Desmond has articulated no particularized need for the grand jury

transcripts in Lucky, Hill, Ravnell, Woods, or Dawson for impeachment purposes.

         {¶ 36} Finally, that the public may be interested in the content of the grand-jury

transcripts alone is not sufficient justification for releasing them. Particularized need that

outweighs the need for secrecy must still be demonstrated. In re Rice, 2018-Ohio-1087,

109 N.E.3d 608, ¶ 20 (8th Dist.). Again, we find no particularized need here.

         {¶ 37} Having concluded that no particular need exists here, it was unnecessary

for the trial court to engage in the in-camera review of the grand-jury transcripts.

Nevertheless, we find no abuse of discretion in its ultimate decision denying Desmond’s

petition to unseal the transcripts. We find Desmond’s first assignment of error not well-

taken.

                   B. Appointment of Independent Special Prosecutor

         {¶ 38} Apparently recognizing that he has a personal interest that may inherently

pose a potential conflict of interest,1 Gains purported to appoint Matthew Meyer under



1
 The record evidence contains no acknowledgment by Gains of a conflict of interest;
according to newspaper articles attached as exhibits to Desmond’s reply in support of his
motion to disqualify Meyer, Gains stated that he appointed a special prosecutor so that




17.
R.C. 309.06 to act as his “Special Assistant” in the matter of Desmond’s petition to

unseal the grand-jury transcripts. Desmond moved to disqualify Meyer. He argued that

because he alleged misconduct against the Mahoning County prosecutor’s office, it was

incumbent on the court—not Gains—to appoint an independent prosecutor to assess

Desmond’s need for and the public interest in the release of the requested grand-jury

transcripts. The trial court found Desmond’s motion to disqualify well-taken “only to the

extent that Mr. Meyer’s service as a special prosecutor in this case is based upon his

appointment by [Gains].” It reasoned that there was “an arguable appearance of

impropriety” given that Meyer was subject to discharge by Gains. The court concluded,

however, that this appearance of impropriety did not amount to “actual prejudice,” and

exercising its inherent authority, the court itself designated Meyer to serve as an

independent special prosecutor. See State v. Bunyan, 51 Ohio App.3d 190, 192, 555

N.E.2d 980 (3d Dist.1988) (“[T]he court of common pleas possesse[s] the inherent power

to appoint a special prosecutor to perform the duties of the elected prosecuting attorney

who fe[els] unable to perform because of a conflict of interest.”).

       {¶ 39} In his second assignment of error, Desmond argues that the trial court

abused its discretion by reappointing Meyer. He maintains that by reappointing Meyer to

serve as special prosecutor, the court allowed the underlying conflict of interest to

remain. He claims that this conflict is evident given that Meyer (1) was handpicked by


there would be “no biases” and that a special prosecutor “would be effective” because
“[h]e can act on his own judgment” without “taking orders from [Gains or his office].”



18.
Gains and was acting as simply an extension of Gains; (2) took the extremist position that

there was no conflict of interest in Gains handling the grand-jury transcripts matter even

when Gains conceded that there was a conflict; (3) reflexively opposed disclosure of the

transcripts despite the more relaxed approach taken by Ohio courts; (4) made disparaging

remarks about Desmond; and (5) is “more bent on protecting the prosecutor’s office than

the integrity of the judicial system.” Desmond insists that once the trial court

“disqualified Meyer as Gains’s assistant,” it should have appointed “a truly independent

prosecutor.”

       {¶ 40} The state responds that the trial court acted within its discretion “when it

denied Desmond’s Motion to Disqualify.” It maintains that the mere appearance of

impropriety is insufficient to disqualify a prosecutor, and that actual prejudice is required.

       {¶ 41} Contrary to the state’s characterization, the trial court, in fact, granted

Desmond’s motion to the extent that Gains appointed Meyer. The question here is

whether Meyer should have been disqualified altogether after the court agreed that

Meyer’s service at Gains’s will created an appearance of impropriety. We review a trial

court’s decision denying a motion to disqualify a prosecutor under an abuse-of-discretion

standard. See Ross v. Olsavsky, 7th Dist. Mahoning No. 09 MA 95, 2010-Ohio-1310,

¶ 40 (“We review the trial court’s decision on a motion to disqualify for an abuse of

discretion.”); State v. Smith, 5th Dist. Guernsey No. 16 CA 30, 2017-Ohio-2616, ¶ 39

(finding no abuse of discretion in trial court’s denial of motion to disqualify prosecutor’s

office).




19.
         {¶ 42} The trial court correctly held that the standard for disqualification is not

whether there exists an appearance of impropriety, but rather, whether there exists actual

prejudice. State v. Cornick, 8th Dist. Cuyahoga No. 99609, 2014-Ohio-2049, ¶ 24. “A

decree disqualifying a prosecutor’s office should only be issued by a court when actual

prejudice is demonstrated.” Smith at ¶ 34, citing State v. Morris, 5th Dist. Stark No.

2004CA00232, 2005-Ohio-4967, ¶ 15. Such challenges typically arise in the context of a

prosecutor who has previously represented a defendant or where a prosecutor testifies in

a proceeding or trial that he or she is prosecuting. Id. The ultimate consideration in such

cases “is whether the defendant was prejudiced.” Id. “‘Prejudice will not be presumed

by an appellate court where none is demonstrated.’” State v. Goff, 4th Dist. Lawrence

No. 11CA20, 2013-Ohio-42, ¶ 61, quoting State v. White, 8th Dist. Cuyahoga No. 82066,

2004-Ohio-5200, ¶ 26.

         {¶ 43} We agree with the trial court that Desmond has failed to show actual

prejudice here. The trial court properly responded to any perceived conflict by removing

Gains’s authority over Meyer. Moreover, a genuine dispute existed over the propriety of

unsealing the grand-jury transcripts here. That Meyer advocated against unsealing them

is not indicative of any conflict on his part, particularly given our conclusion that the trial

court properly denied Desmond’s petition to unseal the transcripts.

         {¶ 44} Accordingly, we find Desmond’s second assignment of error not well-

taken.




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                                     III. Conclusion

       {¶ 45} We find Desmond’s first assignment of error not well-taken. Desmond has

failed to demonstrate a particularized need for the grand-jury transcripts in State v. Lucky,

Mahoning case No. 08-CR-329, State v. Hill, Mahoning case No. 08-CR-372, State v.

Ravnell, Mahoning case No. 08-CR-373, State v. Dawson, Mahoning case No. 11-CR-

804; and State v. Woods, Mahoning case No. 12-CR-1261. We affirm the November 19,

2018 judgment of the Mahoning County Court of Common Pleas, denying his petition to

unseal these transcripts.

       {¶ 46} We also find Desmond’s second assignment of error not well-taken.

Desmond has failed to demonstrate actual prejudice resulting from Meyer’s continued

representation of the state’s interests in this case. We affirm the June 4, 2018 judgment

of the Mahoning County Court of Common Pleas, appointing Matthew Meyer as

independent special prosecutor.

       {¶ 47} Desmond is ordered to pay the costs of this appeal under App.R. 24.


                                                                        Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




21.
                                                              Desmond v. Ohio
                                                              C.A. No. 2018 MA00138




Arlene Singer, J.

Thomas J. Osowik, J.

Christine E. Mayle, J.
CONCUR.



Judges Arlene Singer, Thomas J. Osowik and Christine E. Mayle, Sixth District Court of
Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.




           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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