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State v. Kellon9/20/2001
ut chose not to do so.
Accordingly, this sub-argument is without merit.
Sub-argument C provides:
C. The Trial Court Erred In Denying Requests For Production of The Grand Jury Testimony of the Prosecutrix.
In this sub-argument, appellant argues that the trial court should have provided him the Grand Jury testimony of the victim, Candice.
In order to obtain Grand Jury testimony, the ends of justice must require it and a movant must demonstrate a particularized need for the testimony which outweighs the need for secrecy. See State v. Greer (1981), 66 Ohio St.2d 139, paragraph two of the syllabus. In the case sub judice, the particularized need offered by the defense for disclosing the testimony was simply that the prosecution had insisted that Candice's prior statements were consistent with her trial testimony and the defense needed this secret testimony to confirm the prosecution's beliefs concerning the consistency of Candice's trial and Grand Jury testimony. See appellant's brief at 15. The defense, who had vigorously cross-examined Candice at trial regarding the dates and times of the offenses, sought to reveal inconsistencies in Candice's testimony and was fishing for the more precise times for the offenses in issue, both of which would have arguably aided the defense case.
This pure speculation by the defense as to what the victim's Grand Jury testimony might contain is not a sufficient demonstration of a particularized need for that testimony and the trial court did not abuse its discretion in not disclosing such testimony. See State v. Webb (1994), 70 Ohio St.3d 325, 337.
Accordingly, this sub-argument is without merit.
Sub-argument D provides:
D. After the Prosecution Was Improperly Permitted to Bolster the Testimony of its Principal Witness With False and Inadmissible Hearsay, and to Prevent Improper Argument Regarding the False and Inadmissible Hearsay, the Trial Court Erroneously Denied a Motion for New Trial Upon Proof That the Hearsay was False and the Prosecutors Knew it was False When it was Offered and Argued.
In this sub-argument, appellant argues that the State presented the testimony of the victim which was hearsay, and was known to be false hearsay at the time it was offered. The contested evidence concerns Candice's testimony regarding being dropped off at Dan Barnes' house by the appellant during daylight hours, with Barnes waiting outside in the front of the house when appellant drove up with the victim, and that she testified, over defense objection, that Barnes knew that appellant was the person who had dropped her off. See Tr. 1077. Specifically, Candice's direct examination testimony is as follows relating to this issue:
Q: And who was the friend's house that you drove to?
A: Dan Barnes.
Q: And did Dan Barnes know that Coach Kellon or Jeff Kellon took you to that house that night?
MR. MESSERMAN: Objection.
A: Yes.
THE COURT: She can answer that.
A: Yes. (Tr. 1077.)
Appellant later denied that he had ever driven the victim to, or picked her up at, Barnes' house. Tr. 1814. Appellant argues that Candice's testimony as to what Barnes knew was inadmissible hearsay at trial pursuant to Evid.R. 801(D)(1)(b). The problem with appellant's argument is that Candice's testimony is not a statement as that term is defined by Evid.R. 801(A), which defines statement as (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion. Instead, Candice's testimony is merely her opinion, based on the fact that Bar
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