[Cite as State v. Flannery, 2025-Ohio-1074.]
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240419 TRIAL NO. B-2305420 Plaintiff-Appellant, :
vs. : OPINION NICHOLAS FLANNERY, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: March 28, 2025
Connie M. Pillich, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Jr., Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Rittgers, Rittgers, & Nakajima and C. Stephen Kilburn, for Defendant-Appellee. OHIO FIRST DISTRICT COURT OF APPEALS
KINSLEY, Presiding Judge.
{¶1} In this interlocutory appeal, the State challenges the trial court’s
judgment ordering it to disclose a grand jury transcript to defense counsel in an alleged
child abuse case. Defendant-appellee Nicholas Flannery argued below that the State’s
failure to present exculpatory medical evidence to the grand jury deprived him of due
process and that he accordingly had a particularized need to access grand jury
recordings to establish the absence of that evidence from the proceedings. The trial
court sided with Flannery, finding that the grand jury transcript “tends to support”
Flannery’s due process argument without conclusively resolving the merits of that
question. On appeal, the State contends that decision by the trial court was an abuse
of its discretion. It argues that Flannery cannot establish a due process violation under
existing case law, either with or without the grand jury transcript.
{¶2} We disagree with the State as to whether Flannery established a need
for information about the grand jury process, at least under our deferential abuse of
discretion standard of review. Flannery demonstrated the need to prove, as a factual
matter, that the grand jury did not consider exculpatory evidence in order to mount
his due process challenge to the grand jury indictment. While existing case law
appears to foreclose Flannery’s due process argument, Flannery is permitted to argue
for an exception to the trial court. But we agree with the State that the need Flannery
established was not particularized to full disclosure of the grand jury transcript, as
lesser remedies would have sufficed. We accordingly reverse the trial court’s order for
disclosure of the full grand jury transcript to defense counsel and remand the matter
to the trial court for further proceedings.
Factual and Procedural History
{¶3} The indictment issued by the grand jury against Flannery alleges that he
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committed the offenses of felonious assault and endangering children, both felonies of
the second degree. The charges stem from a September 7, 2023 medical incident
involving M.F., Flannery’s infant son.
{¶4} The criminal charges against Flannery were not the only legal
proceeding to arise from that event. Prior to Flannery’s indictment, on October 6,
2023, the Hamilton County Department of Job and Family Services (“JFS”) filed a
separate complaint against him in the Hamilton County Juvenile Court seeking
temporary custody of M.F. and his sibling, R.F. JFS’s motion for interim custody was
heard on October 10, 2023. Following that hearing, the magistrate declined to award
interim custody to JFS based on a lack of evidence that the children were at imminent
risk. JFS moved to set aside the magistrate’s decision on November 8, 2023. The
juvenile court denied the motion.
{¶5} According to Flannery, he presented voluminous exculpatory evidence
to the juvenile court as part of the custody proceedings.1 That evidence, as described
by Flannery, included medical records indicating that M.F. was stuck in the birth canal
for over 24 hours; that M.F.’s head was malformed and grew abnormally from birth;
that M.F. underwent surgery to remove excessive fluid buildup caused by his traumatic
birth, which ultimately caused him to experience a seizure; that M.F. lacked physical
injuries at the time of the September 7, 2023 medical incident; and that a defense
medical expert, Dr. Scheller, found that M.F.’s seizure was the product of a chronic
medical condition rather than child abuse. Flannery also suggests that the State’s
1 Flannery attached certain documents to his motion for disclosure of grand jury testimony that he
described as hearing exhibits admitted into evidence at a hearing before the juvenile court. The State did not object to that characterization below. While we have no reason to doubt Flannery’s representation, we also hesitate to assume that the proffered documents are in fact those from the custody hearing. The entire record of the custody proceeding was not made a part of the record in this appeal and is therefore not before us for our review.
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expert in the custody proceeding, Dr. Pham, lied on the witness stand regarding his
review of M.F.’s pediatric records.
{¶6} On December 29, 2023, after the juvenile court denied JFS’s petition for
interim custody, the grand jury indicted Flannery.
{¶7} On February 6, 2024, Flannery moved for disclosure of the grand jury
testimony underlying the indictment. He argued that the State violated his due
process rights by withholding the medical evidence from the custody proceeding from
the grand jury. Absent a full picture of M.F.’s medical history, he contended, the grand
jury could not have acted in a fair and unbiased manner in deciding to indict him. He
also insinuated that the State pursued criminal charges against him as retaliation for
JFS’s inability to secure interim custody of the children in juvenile court.
{¶8} Flannery’s motion to disclose the grand jury transcript suggested that
dismissal of the criminal charges would be the appropriate remedy for the State’s
failure to submit known exculpatory evidence to the grand jury. He later formally
moved for dismissal of the charges on that basis.
{¶9} The trial court conducted a hearing on Flannery’s disclosure motion. It
first ordered the State to provide the grand jury transcript to the court for an in
camera, or in chambers, review.2 Thereafter, the trial court granted Flannery’s motion
for disclosure and ordered that the grand jury transcript be disclosed to defense
counsel.3 The trial court held Flannery’s motion to dismiss in abeyance. We granted
the State’s motion for leave to appeal and stayed the trial court’s disclosure order
2 As confirmed at oral argument, the State does not challenge the trial court’s order requiring an in
camera inspection of the grand jury transcript. The sole issue on appeal is whether the trial court abused its discretion in ordering the disclosure of the transcript to defense counsel.
3 The trial court initially ordered the transcript to be disclosed to “the defendant,” but later modified
that order to clarify that the transcript was to be provided to Flannery’s attorney.
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pending appeal.
Analysis
{¶10} The State raises a single assignment of error arguing that the trial court
abused its discretion in granting Flannery’s motion to disclose the grand jury
transcript to defense counsel.
A. The Law on Disclosure of Grand Jury Testimony
{¶11} We review a trial court’s order for disclosure of grand jury testimony for
an abuse of discretion. State v. Coley, 93 Ohio St.3d 253, 261 (2001). An abuse of
discretion occurs when “a court exercis[es] its judgment, in an unwarranted way, in
regard to a matter over which it has discretionary authority.” Johnson v. Abdullah,
2021-Ohio-3304, ¶ 35. The abuse-of-discretion standard is highly deferential to the
lower court. State ex rel. Cincinnati Enquirer v. Hunter, 2013-Ohio-5614, ¶ 29.
{¶12} The secrecy enshrouding grand jury proceedings is a time-honored
facet of our country’s criminal legal system. State v. Greer, 66 Ohio St.2d 139, 147
(1981); see Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 399-400 (1959)
(recognizing the history and tradition of grand-jury secrecy as “older than our Nation
itself”). This steadfast tenet is reflected in the rules and procedures of Ohio law.
Crim.R. 6(E) provides, in pertinent part,
Deliberations of the grand jury and the vote of any grand juror shall not
be disclosed. . . . A grand juror, prosecuting attorney, interpreter, court
reporter, or typist who transcribes recorded testimony, may disclose
other matters occurring before the grand jury, only when so directed by
the court preliminary to or in connection with a judicial proceeding, or
when permitted by the court at the request of the defendant upon a
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showing that grounds may exist for a motion to dismiss the indictment
because of matters occurring before the grand jury.
See R.C. Ch. 2939 (delineating the powers and function of the grand jury in Ohio);
Ohio Const., art. I, § 10 (requiring grand jury indictments).
{¶13} Consistent with the protection of grand jury secrecy, grand jury
transcripts may only be disclosed in very limited circumstances. Greer at 148. To
require disclosure, the accused must show that “the ends of justice require it” and “a
particularized need for disclosure exists which outweighs the need for secrecy.” Id. at
paragraph two of the syllabus. A particularized need exists where “the circumstances
reveal a probability that the failure to provide the grand jury testimony will deny the
[movant] a fair trial[.]” State v. Sellards, 17 Ohio St.3d 169, 173 (1985), citing Greer.
{¶14} This “particularized need” showing is a threshold requirement. State
v. Curran, 2006-Ohio-774, ¶ 10 (2d Dist.). Once a particularized need is found, the
trial court shall examine the grand jury materials in camera. State v. Gibson, 2023-
Ohio-1154, ¶ 26 (1st Dist.). Thereafter, the court may, in its discretion, order disclosure
of the relevant portions of the grand jury transcript to the moving party. See id. The
fact that a trial court reviews a grand jury transcript in camera does not, in and of itself,
establish a particularized need on the part of a defendant to access grand jury
testimony. State v. Perkins, 2010-Ohio-5161, ¶ 50 (2d Dist.). Rather, a defendant
must still meet the particularized need standard even after a trial court has reviewed
the materials in camera. Id.
B. The Trial Court’s Disclosure Order
{¶15} The critical question in this appeal is whether Flannery established a
particularized need to access the grand jury transcript.
{¶16} The trial court initially determined that a particularized need existed to
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justify an in camera review. In its role as the finder of fact, the trial court characterized
the evidence Flannery identified from the custody proceeding as both “substantial”
and “exculpatory.” To ascertain whether this information was presented to the grand
jury, the trial court ordered the State to submit the grand jury transcript to the court
in camera and under seal.
{¶17} Following the trial court’s in camera review, it determined that Flannery
had demonstrated a particularized need for the testimony because it “tends to support
Defendant’s argument to dismiss the case.” We read this statement by the trial court
to imply, as a finding of fact, that the “substantial” and “exculpatory” evidence the trial
court previously discussed was not in fact presented to the grand jury. This finding
was in effect all that Flannery had sought in his disclosure motion: to establish the
absence of the evidence from the grand jury proceeding. Nonetheless, the trial court
ordered the State to provide a copy of the grand jury transcript to defense counsel
under seal.
C. The Propriety of the Trial Court’s Disclosure Order
{¶18} The State does not challenge the trial court’s finding that Flannery
demonstrated a particularized need for disclosure of the grand jury transcript to the
trial court. Its grievance, rather, lies with the disclosure order to defense counsel. It
emphatically argues that it had no obligation to present exculpatory evidence to the
grand jury, and therefore, that Flannery had no particularized need to ascertain
whether the State did in fact omit certain evidence from that proceeding. See State v.
Wilks, 2018-Ohio-1562, ¶ 34 (holding “the prosecutor ha[s] no obligation,
constitutional or otherwise, to present allegedly exculpatory evidence to the grand
jury”); see also United States v. Williams, 504 U.S. 36, 51-52 (1992) (reasoning that
“requiring the prosecutor to present exculpatory as well as inculpatory evidence would
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alter the grand jury’s historical role, transforming it from an accusatory to an
adjudicatory body”). In the absence of such a duty on its part, the State maintains that
Flannery cannot demonstrate a particularized need for disclosure of the grand jury
{¶19} Flannery counters that a grand jury must be unbiased. See Costello v.
United States, 350 U.S. 359, 363 (1956) (“An indictment returned by a legally
constituted and unbiased grand jury . . . is enough to call for trial of the charge on the
merits.”). He interprets the trial court’s ruling as finding that his due process rights
were violated because he was indicted by an unfair and biased grand jury that acted
without a clear picture of the evidence. And he challenges the State’s motives in his
case, painting his indictment as retaliatory and unjustified.
{¶20} We need not resolve the dispute in the parties’ positions on the ultimate
due process question at this stage of the proceedings. The trial court did not determine
the merits of Flannery’s motion to dismiss, in fact explicitly holding that motion in
abeyance. Accordingly, no order is before us in that regard. The ultimate issue of
whether Flannery can prevail on his due process argument is therefore not ripe for our
review. See Rickard v. Solley, 2010-Ohio-2786, ¶ 33 (7th Dist.), quoting Karches v.
Cincinnati, 38 Ohio St.3d 12, 14-15 (1988) (“A claim is not ripe for appellate review
unless the trial court ‘has arrived at a definitive position on the issue . . . .’”).
{¶21} Rather, the trial court determined that Flannery required access to the
grand jury transcript merely to pursue his motion to dismiss. Its questioning at the
hearing on Flannery’s disclosure motion suggested as much:
THE COURT: I don’t see the argument as to why I should be making
this in-camera review and deciding a motion that has not been filed so
— you really need the Grand Jury testimony to file your Motion to
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Dismiss?
(Interjection by counsel omitted.)
{¶22} We agree with the trial court that Flannery established an articulable
need to access the grand jury proceedings to facilitate his due process motion. We
characterize this need as factual and procedural. To advance his due process argument
for resolution by the trial court, Flannery must show that the grand jury did not
consider evidence the trial court characterized as exculpatory. In other words,
Flannery needed to establish a fact that rendered his dismissal motion ripe for the trial
court’s review.
{¶23} As the State correctly highlights, the law likely weighs against Flannery
on the ultimate merits of his dismissal motion. Indeed, courts have roundly rejected
due process arguments like Flannery’s in the past. See, e.g., Wilkes, 2018-Ohio-1562,
at ¶ 34. But nothing prohibits Flannery from arguing for an exception to the existing
body of law or from trying to convince the trial court that his case is an outlier. And
we cannot predetermine the merits of that argument before the trial court has resolved
it in the first instance. See Rickard, 2010-Ohio-2786, at ¶ 33 (7th Dist.). Under these
circumstances, the trial court’s determination of need was not an abuse of discretion,
given the deference we afford to the trial court’s factual characterizations of the
evidence at this stage of the proceedings.
{¶24} We nonetheless agree with the State that the breadth of the trial court’s
disclosure order constituted an abuse of discretion, because full disclosure of the
entire grand jury transcript was not particularized to the limited need Flannery
established. Ohio law requires not just that an accused establish a need to invade the
secrecy of the grand jury, but also that the need be particularized to the remedy of
disclosure. See Greer, 66 Ohio St.2d 139, at paragraph four of the syllabus. As the
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Ohio Supreme Court explained in Greer, to balance these interests, trial courts should
delete extraneous matter where necessary, provide only those portions of the grand
jury transcript that are relevant, and utilize protective orders to ensure that disclosure
of grand jury materials is tailored to the particularized need. Id.
{¶25} The most analogous case to Flannery’s in this regard is State v. Owens,
2015-Ohio-3017 (4th Dist.). In Owens, the Fourth District Court of Appeals
considered a request by a defendant to access the grand jury transcript posttrial. Id.
at ¶ 1, 4. The defendant’s conviction was before the court on direct appeal, and he
sought to supplement his appellate briefing with information gleaned from the grand
jury record. Id. at ¶ 1. As to the particularized need standard, the defendant argued
that he needed to access the transcript to demonstrate the presence of an unauthorized
person in the room during the grand jury proceedings in violation of Crim.R. 6(D) and
R.C. 2939.10. Id. at ¶ 4. He had raised an assignment of error in his appellate brief
alleging the invalidity of the indictment on this basis, but could not prove, as a question
of fact, that such a person was in fact present in the grand jury room without the
transcript. Id. at ¶ 3. Thus, like Flannery, the defendant in Owens argued that he
needed access to the grand jury record in order to prove a fact that advanced a legal
argument.
{¶26} The Fourth District agreed with the defendant, as we do with Flannery,
finding a need to access the grand jury transcript to “show the presence, statements,
and functions of this alleged unauthorized person.” Id. at ¶ 12. But the Fourth District
did not order disclosure of the entire grand jury transcript to the defendant. Id. at
¶ 13-14. Rather, after weighing the defendant’s limited need to establish a fact against
the important interest in grand jury secrecy, the court instead limited the disclosure
of the transcript to those portions that revealed the presence and statements of
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individuals presenting to the grand jury. Id. at ¶ 14. It declined to disclose the
testimony or identity of grand jury witnesses, which it found to be unnecessary to meet
the defendant’s particularized factual need. Id.
{¶27} The trial court should have undertaken a similar inquiry here, balancing
Flannery’s need to establish the absence of evidence against the sacrosanct protection
for grand jury secrecy. In seeking the grand jury testimony, Flannery sought to prove
a negative—i.e., to discern whether the “substantially exculpatory” information
identified by the trial court was not in fact presented to the grand jury. Defense
counsel ordinarily need not inspect what occurred before the grand jury in order to
prove what did not occur. A lesser remedy—for example, a factual finding by the trial
court that the evidence was not presented to the grand jury or a stipulation by the State
to that effect—could readily accomplish this objective.4 It was unreasonable for the
trial court to order full disclosure of the grand jury transcript when Flannery
established only a limited need.
{¶28} We note that such a remedy may not be desirable or even workable in
many cases. Accordingly, we limit our holding to the unique facts and circumstances
of Flannery’s case. Because full disclosure was not necessary in this case to establish
the absence of what the trial court characterized as exculpatory evidence before the
grand jury, we find that the trial court abused its discretion in ordering the State to
turn over the entirety of the grand jury transcript to defense counsel.
{¶29} Accordingly, we sustain the State’s sole assignment of error.
Conclusion
{¶30} The trial court correctly determined that Flannery has a need to
4 The State conceded at oral argument that it would be willing to enter into such a stipulation.
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establish the withholding of what the trial court, in its factfinding role, characterized
as substantial exculpatory evidence from the grand jury. But its order requiring
disclosure of the entire grand jury transcript to defense counsel was not particularized
to that need. Lesser remedies, such as the stipulation the State deemed agreeable at
oral argument or a factual finding by the trial court, would balance Flannery’s need to
establish a fact in support of his pending motion to dismiss against the grand jury’s
tradition of secrecy.
{¶31} Because the trial court abused its discretion in ordering full disclosure
of the grand jury transcript, the State’s assignment of error is sustained. The trial
court’s entry ordering disclosure of the grand jury transcript to defense counsel is
reversed, and the matter is remanded for further proceedings.
Judgment reversed and cause remanded.
CROUSE and NESTOR, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.