Brown, J.
Menashi Cohen brings an interlocutory appeal of the trial court’s denial of his motion to dismiss. We reverse.
…
Cohen argues that the indictments against him are tainted with impropriety because the same grand jury twice heard his immunized testimony. He also asserts that the State cannot meet its burden to prove the existence of independent evidence supporting the indictments.
The State argues that Cohen’s testimony did not admit or prove his participation in guilty behavior. It argues that the record shows that the State had already conducted an extensive investigation of both Deal Zone and CD Land well before Cohen testified. It contends that, “even if there had been some error or unclarity in the trial court’s consideration of this issue, the proper remedy would be remand for further proceedings under Kastigar rather than dismissal of the indictments.”
In reply, Cohen argues that the State incorrectly asserts that he is asking this Court to adopt a per se rule that an indictment against an immunized criminal defendant secured by the same grand jury which heard said criminal defendant’s immunized testimony must be dismissed. He asserts the State has not pointed to any independent evidence that was presented to the grand jury to support the indictments against him. He also contends that remand for further proceedings under Kastigar is an improper remedy and would give the State a second chance to indict him.
…
In State v. Peters, 637 N.E.2d 145 (Ind. Ct. App. 1994), this Court discussed immunized testimony given during a grand jury proceeding. In that case, James Peters was called before a grand jury to testify concerning the alleged illegal use of materials at a city sign shop where he was employed. 637 N.E.2d at 146. Prior to testifying, Peters was granted immunity from prosecution pursuant to Ind. Code § 35-34-2-8. Id. The grand jury issued an indictment against Peters charging him with Count I, theft of materials from a sign shop, and Count II, perjury during his grand jury testimony. Id. Peters moved to dismiss Count I of the indictment alleging that he could not be indicted by the same grand jury which heard his immunized testimony, and the trial court granted the motion. Id.
…
The record reveals that the prosecutor informed the grand jury at the January 27, 2022 hearing that Cohen was a target. In the argument section of its brief, the State cites multiple portions of Cohen’s testimony before the grand jury. It also cites the testimony of Lieutenant Eager who testified at the January 5, 2024 hearing, which occurred well after the indictments. Our review of Lieutenant Eager’s testimony to which the State directs us indicates that Lieutenant Eager failed to specify that he was discussing evidence that was actually presented to the grand jury. We emphasize that the State has the burden to prove that the indictment rested upon evidence independent of Cohen’s immunized testimony. See Peters, 637 N.E.2d at 150 (holding “the State presented no evidence that the indictment rested upon evidence independent of Peters’ testimony”).
To the extent the State cited to evidence before the grand jury, it asserted that “[t]he grand jury heard other evidence about Fran and Cohen’s business dealings, finances and assets,” Appellee’s Brief at 23 (citing in part Appellant’s Appendix Volume II at 32 and Appellant’s Appendix Volume IV 103-116, 121128), and “[t]he record shows that the State had already conducted an extensive investigation of both Deal Zone and CD Land well before Cohen testified.” Appellee’s Brief at 24 (citing in part Appellant’s Appendix Volume II at 9, 19, 57, 78-80, 85, 106, 120, 126, 133, 144, 149). An examination of a number of the pages cited by the State indicates that the documents were not presented to the grand jury. We cannot say that the remaining pages cited by the State, which include portions of transcripts of the February 7 and March 1, 2022 hearings constitute independent evidence. Indeed, pages 120, 126, 133, 144, and 149 of Appellant’s Appendix Volume II include the testimony of Cohen during the March 1, 2022 hearing.
In light of Peters and its caution against the practice of securing an indictment of a witness from the same grand jury which heard the witness’s immunized testimony as well as the State’s failure to point to evidence presented to the grand jury indicating that the indictment rested upon evidence independent of Cohen’s testimony, we conclude that the indictments, other than the indictment for perjury, should be dismissed.
For the foregoing reasons, we reverse the trial court’s denial of Cohen’s motion to dismiss.
Reversed.
Mathias, J., and Kenworthy, J., concur.