State ex rel. Koren v. Grogan

• Decision Date: 30 March 1994
• Docket Number: No. 93-285,93-285
• Citation: 68 Ohio St.3d 590,629 N.E.2d 446
• Parties: The STATE ex rel. KOREN, Appellee, v. GROGAN, Judge, Appellant.
• Court: Ohio Supreme Court

Page 590

68 Ohio St.3d 590

629 N.E.2d 446

The STATE ex rel. KOREN, Appellee, v. GROGAN, Judge, Appellant.

No. 93-285.

Supreme Court of Ohio.

Submitted Jan. 25, 1994.

Decided March 30, 1994.

On June 24, 1992, David Koren, relator-appellee, filed this prohibition action in the Court of Appeals for Cuyahoga County. He applied for an alternative writ to halt his scheduled criminal trial before Judge Robert J. Grogan, respondent-appellant, in Lyndhurst Municipal Court. The court of appeals granted the application and prohibited appellant from conducting further proceedings until further order of the court except to rule on any motion to dismiss for lack of jurisdiction based on appellee's claim of immunity. Appellee subsequently filed such a motion in the municipal court.

On August 6, 1991, a two-car collision occurred in the city of Mayfield Heights, Ohio, and Paul Sofia, a passenger in the vehicle which was operated by Alan Flanik, subsequently died from injuries sustained in the collision. The other vehicle was operated by appellee, who had two other passengers in his car. On August 6, 1991, appellee was charged with driving under the influence of alcohol in violation of Section 333.01(A)(1) of the Codified Ordinances of Mayfield Heights. On September 21, 1991, the Cuyahoga County Grand Jury returned an indictment relating to the collision charging Flanik with: one count of aggravated vehicular homicide, three counts of aggravated vehicular assault, and one count of driving under the influence. On March 4, 1992, the Cuyahoga County Grand Jury returned an indictment charging appellee with one count of vehicular homicide and one count of negligent assault in connection with the collision. The additional charges against appellee were transferred to the Lyndhurst Municipal Court and consolidated with the pending DUI charge.

Appellee was subpoenaed to appear as a witness for the state in the criminal case against Flanik in the Cuyahoga County Court of Common Pleas. On May 14, 1992, during the jury trial in the Flanik case, the assistant prosecuting attorney filed a written request with the common pleas court to compel appellee to answer questions notwithstanding his claim of privilege, and to grant appellee "transactional and use" immunity pursuant to R.C. 2945.44(B). On May 14, 1992, appellee was called as a witness for the state in the Flanik case, and he invoked his privilege against self-incrimination. The common pleas court then granted the state's motion and advised appellee as follows:

"[Y]ou will have use of transactional immunity as provided for in Ohio Revised Code Section 2945.44 and you will be instructed to answer all questions put to you by both the prosecutor and the defense attorney throughout the course of these proceedings.

" * * *

"[U]nder Section 2945.44 the immunity hereby granted provides that you shall not be prosecuted or subjected to any criminal penalty in the courts of this state for or on account of any transaction or matter concerning which, in compliance with the order, you give an answer or produce information. This means that your testimony here cannot be utilized in the pending matter which you now, sir, are under indictment for."

The charges against appellee remained pending in the Lyndhurst Municipal Court before appellant.

On December 18, 1992, the Cuyahoga County Court of Appeals issued a writ directing appellant to dismiss appellee's pending criminal case for lack of jurisdiction, and prohibiting appellant from conducting any further proceedings in that case.

This cause is before the court upon an appeal as of right.

Bernard, Haffey & Bohnert Co., L.P.A., J. Ross Haffey, Jr. and S. Michael Lear, Cleveland, for appellee.

Steven C. LaTourette, Lake County Pros. Atty., and Kimberly A. Mahaney, Asst. Pros. Atty., for appellant.

PER CURIAM.

In order to obtain a writ of prohibition, relator must prove: (1) that the court or officer against whom the writ is sought is about to exercise judicial or quasi-judicial power, (2) that the exercise of that power is unauthorized by law, and (3) that denying a writ will result in injury for which no other adequate remedy exists in the ordinary course of law. State ex rel. Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 465, 605 N.E.2d 31, 33. The parties agree that the first prong of the foregoing test is met here, i.e., appellant is about to exercise judicial power over the criminal case concerning appellee's involvement in the two-car collision. The court of appeals determined that the remaining two prerequisites for the issuance of a writ of prohibition were also met.

Appellant in his first proposition of law contends that his exercise of municipal court jurisdiction is authorized by law since not all the requirements for granting appellee transactional immunity were met. R.C. 2945.44(A) provides:

"In any criminal proceeding in this state * * *, if a witness refuses to answer or produce information on the basis of his privilege against self-incrimination, the court of common pleas of the county in which the proceeding is being held, unless it finds that to do so would not further the administration of justice, shall compel the witness to answer or produce the information, if both of the following apply:

"(1) The prosecuting attorney of the county in which the proceedings are being held makes a written request to the court of common pleas to order the witness to answer or produce the information, notwithstanding his claim of privilege;

"(2) The court of common pleas informs the witness that by answering, or producing the information he will receive immunity under division (B) of this section." (Emphasis added.)

The mandate of the statute is clear: immunity may not be granted unless (1) the witness refuses to answer on the basis of his privilege against self-incrimination, (2) the prosecuting attorney makes a written request to order the witness to answer, and (3) the court informs the witness he will receive transactional immunity. State ex rel. Leis v. Outcalt (1982), 1 Ohio St.3d 147, 149, 1 OBR 181, 183, 438 N.E.2d 443, 446. Appellant does not dispute that the first two requirements of R.C. 2945.44(A) were met here; instead, he claims that the Cuyahoga County Court of Common Pleas failed to inform appellee that he would receive transactional immunity, instead informing him that he would receive use immunity.

Transactional immunity protects the witness from prosecution for any criminal activity about which he testified within the limits of the grant, whereas use immunity protects the witness only from having the specific compelled testimony or the information directly or indirectly derived from the compelled testimony used as evidence against him in a later prosecution. 1 Anderson's Ohio Criminal Practice and Procedure (2 Ed.1991) 231, Section 52.101. Ohio courts may grant only transactional immunity and not use immunity. Leis, supra, at 148, 1 OBR at 183, 438 N.E.2d at 446. Appellant emphasizes that portion of the common pleas court's colloquy with appellee where it stated that, "[t]his means that your testimony here cannot be utilized in the pending matter which you now, sir, are under indictment for." This improperly refers to use immunity.

Appellant contends that similarly, in Outcalt, the court granted use immunity and thereby erred. However, the common pleas court in Outcalt never purported to grant transactional immunity pursuant to R.C. 2945.44. Conversely, in the case at bar, the trial court expressly informed appellee that he was being granted transactional immunity under R.C. 2945.44 and that such immunity provided that he "shall not be prosecuted or subjected to any criminal penalty in the courts of this state for or on account of any transaction or matter concerning which, in compliance with the order, you give an answer or produce information." Although the court of appeals erroneously focused on the common pleas court's "intent" rather than on what it actually informed appellee, it is apparent that the common pleas court did inform appellee of his transactional immunity and that appellee was entitled to the immunity provided by R.C. 2945.44(B). The fact that in so informing appellee the common pleas court erroneously added a "use immunity" instruction should not derogate from this result. Indeed, the reach of the immunity provided pursuant to R.C. 2945.44 in effect subsumes the more limited use immunity. See, e.g., State v. Thompson (1992), 62 Ohio Misc.2d 555, 559-560, 607 N.E.2d 118, 121. Consequently, appellant's first proposition of law lacks merit.

Appellant in his second proposition of law asserts that a grant of R.C. 2945.44 immunity does not totally divest the court of jurisdiction over the person to whom the immunity has been granted so as to constitute a patent and unambiguous lack of jurisdiction. Appellant contends that "while a grant of immunity may act as a shield around the Relator to protect him from prosecution, it does not cause a court...