State ex rel. Ney v. Niehaus
| Decision Date | 02 December 1987 |
| Docket Number | No. 86-1373,86-1373 |
| Citation | 33 Ohio St.3d 118,515 N.E.2d 914 |
| Parties | The STATE, ex rel. NEY, Appellant, v. NIEHAUS, Judge, Appellee. |
| Court | Ohio Supreme Court |
Relator-appellant, Arthur M. Ney, Jr., is the Prosecuting Attorney for Hamilton County, Ohio. Respondent-appellee, Richard A. Niehaus, is a judge presently serving on the Court of Common Pleas of Hamilton County. Appellant instituted this original action in mandamus seeking to compel appellee to grant transactional immunity to Modenna Anaruma, a witness for the prosecution in criminal proceedings against Daniel H. Sway, M.D.
Anaruma testified before the Hamilton County Grand Jury that Sway had issued prescriptions to her for various drugs in exchange for sexual favors. The grand jury subsequently returned a seventeen-count indictment against Sway, charging him with trafficking in drugs in violation of R.C. 2925.03. Prior to trial, however, Anaruma gave a recorded sworn statement to a private investigator employed by Sway's counsel in which she substantially contradicted her grand jury testimony.
The trial court granted a motion to dismiss in this case on March 18, 1983. Appeal was taken from that decision to the Court of Appeals for Hamilton County and the trial court's decision was affirmed. This court accepted jurisdiction, reversed the court of appeals, and remanded the case to the trial court for further proceedings. (State v. Sway [1984], 15 Ohio St.3d 112, 15 OBR 265, 472 N.E.2d 1065.)
Trial commenced before appellee on January 6, 1986. In his opening statement, Sway's counsel emphasized Anaruma's prior conflicting statements. Anaruma was called as the state's first witness. When Anaruma was asked on direct examination to describe her relationship with Sway, appellee intervened. Noting defense counsel's allegation of inconsistency, appellee advised Anaruma of her Fifth Amendment privilege against self-incrimination and warned that, if in conformity with either prior statement, her trial testimony could expose her to prosecution for perjury in connection with the other. Upon Anaruma's refusal to incriminate herself by testifying further, the state requested transactional immunity pursuant to R.C. 2945.44. Appellee denied the request upon his determination that the demand was untimely, that Anaruma's trial testimony would necessarily be perjured, and that the request for the grant of immunity would not further the administration of justice. An entry to this effect was filed thereafter.
Appellant then filed a complaint for a writ of mandamus in the court of appeals. The appellate court denied the writ.
The cause is now before this court upon an appeal as of right.
Arthur M. Ney, Jr., Pros. Atty., and Leonard Kirschner, Cincinnati, for appellant.
H. Fred Hoefle, Cincinnati, for appellee.
Mandamus should issue in this case only if appellant shows (1) that appellant has a clear legal right to the relief requested; (2) that appellee is under a clear legal duty to perform the requested act; and (3) that appellant has no plain and adequate remedy in the ordinary course of law. State ex rel. Middletown Bd. of Edn. v. Butler Cty. Budget Comm. (1987), 31 Ohio St.3d 251, 253, 31 OBR 455, 456, 510 N.E.2d 383, 384, citing State ex rel. Westchester v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O.3d 53, 399 N.E.2d 81, paragraph one of the syllabus. Appellant argues that this court should grant this extraordinary remedy here essentially because appellee has a clear legal duty under R.C. 2945.44 to grant the prosecution's request for immunity for Anaruma. As the court of appeals did before us, we disagree.
R.C. 2945.44 provides in relevant part:
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State ex rel. Ohio Academy of Trial Lawyers v. Sheward
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State v. Wilson
......"A court's sole authority for granting immunity is regulated by R.C. 2945.44." State ex rel. Leis v. Outcalt , 1 Ohio St.3d 147, 148, 438 N.E.2d 443, 445 (1982). This provision reads, in its relevant part, as follows: (A) In any criminal ... State ex rel. Ney v. Niehaus , 33 Ohio St.3d 118, 515 N.E.2d 914 (1987). Thus, an appellate court will not disturb such a determination 185 N.E.3d 194 in the absence of an ......
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State Ex Rel. Smith v. Culliver
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