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In re Grand Jury.
[Cite as In re Grand Jury (1996), __ Ohio St.3d __.]
Appellate procedure -- Final appealable order -- Denial of a motion to
quash a grand jury subpoena decus tecum is not a special
proceeding under R.C. 2505.02.
(No. 95-1334 -- Submitted June 4, 1996 -- Decided August 7, 1996.)
Appeal from the Court of Appeals for Washington County, Nos.
93CA09, 93CA10 and 93CA12.
Attorney James F. Dunn represented appellant Samuel Metz against
charges of juvenile delinquency by reason of aggravated murder, aggravated
robbery, and aggravated burglary. In the course of representing Metz, Dunn
secured a taped recording of appellant Michael Elkins, Metz's friend, allegedly
confessing to the aggravated murder with which Metz was charged.1 Dunn
revealed the contents of the tape to prosecutors during plea negotiations on
behalf of Metz.
Thereafter, prosecutors issued two subpoenas duces tecum to Dunn on
separate occasions requiring him to appear before the Washington County
Grand Jury and produce the tape. Although he appeared before the grand jury
both times, Dunn refused to produce the tape or to answer any questions about
it, alleging that such information was protected by the attorney-client privilege
and the work product doctrine.
Elkins's attorney filed a motion to quash the subpoena while the
prosecutor filed a "Memorandum in Support of Subpoena and Motion for In
Camera Hearing," which was, essentially, a motion to compel Dunn to produce
the tape and answer questions before the grand jury. The trial court found that
there was no attorney-client relationship between Elkins and Dunn and,
consequently, the tape was not privileged material. The trial court also rejected
Dunn's argument that the tape was protected work product. Based on these
findings, the court overruled Elkins's motion to quash, granted the prosecutor's
motion to compel, and ordered Dunn to produce the tape and to answer
questions in regard to it. Ultimately, the trial court held Dunn in the
Washington County Jail for contempt of the court's order when Dunn
continued to refuse to produce the tape.
Elkins and Metz appealed the trial court's order denying the motion to
quash and Dunn appealed the trial court's order holding him in contempt. The
Fourth District Court of Appeals dismissed the appeals of both Metz and
Elkins. The court held that Metz's appeal failed for lack of standing because
he was not a party to the proceedings in the trial court. The court dismissed
Elkins's appeal for lack of a final appealable order, finding that the denial of a
motion to quash a grand jury subpoena duces tecum was not a special
proceeding under R.C. 2505.02. The court of appeals also held that the trial
court did not abuse its discretion in holding Dunn in contempt.
This cause is now before the court upon the allowance of a discretionary
Michael G. Spahr, Washington County Prosecuting Attorney, Allison L.
Cauthorn-Kreiss and Kevin A. Rings, Assistant Prosecuting Attorneys, for
appellee state of Ohio.
David H. Bodiker, Ohio Public Defender, Randall L. Porter and Randy
D. Ashburn, Assistant Public Defenders; and Pamela Prude-Smithers,
Assistant Federal Public Defender, for appellant Michael Elkins.
Warner & Warner Co., L.P.A., and Roger Warner, for appellant Samuel
Cook, J. In this case, we revisit the issue of final appealable orders and,
in so doing, affirm the court of appeals. In Polikoff v. Adam (1993), 67 Ohio
St.3d 100, 616 N.E.2d 213, at syllabus, we stated, "Orders that are entered in
actions that were recognized at common law or in equity and were not specially
created by statute are not orders entered in special proceedings pursuant to R.C.
2505.02." Grand jury proceedings, having existed at common law, are not
"special proceedings," notwithstanding the fact that they have been codified.
See State ex rel Doerfler v. Price (1920), 101 Ohio St. 50, 54, 128 N.E. 173,
175; R.C. 2941.02 et seq.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER and STRATTON,
1 Appellee notes that the record in Washington County Common Pleas Court
case No. 95 CR 82 reflects that Elkins pled guilty to the aggravated murder,
aggravated robbery, and aggravated burglary at issue.
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