State v. Granchay

• Decision Date: 31 March 1964
• Citation: 204 N.E.2d 562,1 Ohio App.2d 307
• Parties: , 30 O.O.2d 310 The STATE of Ohio, Appellee, v. GRANCHAY, Appellant. *
• Court: Ohio Court of Appeals

Page 307

1 Ohio App.2d 307

204 N.E.2d 562, 30 O.O.2d 310

The STATE of Ohio, Appellee, v. GRANCHAY, Appellant. ^*

Court of Appeals of Ohio, Seventh District, Mahoning County.

March 31, 1964.

Edward L. Williams, Jack W. Nybell, George Tzagournis, Eugene B. Fox, Joseph O'Neill, Steve Stanos, Lawrence V. Cregan, Avetis G. Darvanan, Phillip A. Crino, Charles D. Zeigler, Charles B. Zubyk, Joseph E. Bouros, and Harold Stein, Youngstown, for appellants.

Clyde W. Osborne, Prosecuting Atty., and Elwyn V. Jenkins, for appellee.

FRANCE, Judge.

The basic issues raised in each of these thirty-four cases are the same. Each appellant was subpoenaed to appear before the Mahoning County September Grand Jury; each appeared and, after answering certain preliminary questions, refused to answer others on the ground that his answer 'may tend to incriminate me under the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Constitution of Ohio.' In each case the prosecuting attorney caused the Court of Common Pleas (Rigelhaupt, J.) to be informed of the interrogatories, the refusal and the excuse given, all pursuant to Section 2939.14, Revised Code.

In each case the judge examined the questions, found each one to be a proper question for answer and so informed the grand jury. Each appellant then persisted in his refusal when the questions were again put to him. Each was then brought before the Judge to be 'dealt with' pursuant to Section 2939.15, Revised Code. No written charges of contempt were filed, but in the presence of counsel for the appellant the judge repeated the questions and each appellant repeated his previous refusals to answer. The judge thereupon found each appellant in contempt and committed him to jail 'until such time as he shall purge himself of the contempt or be otherwise released as provided by law.'

While appeals from these several orders were pending, the trial judge who made the commitments discharged the grand jury. Immediately on this discharge of the grand jury, the appellants filed motions in this court for their own discharge. The state countered with request, made only in its brief, for a remand of each case for further proceedings.

All cases were heard together, both on the motions and, subject to disposition of the motions, on the merits.

To determine the applicability of the motions it is first necessary to classify the type of contempt involved and the different sanctions available to deal with it. Since the acts occurred partly in the courtroom and partly in the grand jury room which is regarded as an extension of the courtroom they constituted, if a contempt, a direct rather than a constructive contempt. See Section 2939.15, Revised Code. A refusal to answer is misbehavior referred to in Section 2705.01, Revised Code. In re Roberts, 175 Ohio St. 123, 127, 191 N.E.2d 816. The contempt, if any, was also criminal rather than civil since the sanction here sought was for the purpose of vindicating the court and its process rather than in aid of the rights of any other party litigant.

As to the nature of the sanctions there is available to the court either punishment as such--that is imposition of a fine or specific jail sentence--or imposition of the so-called coercive remedy--that is incarceration until such time as the court's order is complied with. That imposition of this coercion is not to be confused with punishment is made very clear in State v Mirman, 99 Ohio App. 382, page 387, 133 N.E.2d 796, page 800, where the court pointed out:

'In answer to this claim [that coercion is punishment], we need only point to that which is obvious--i. e., the coercive order made under authority of Section 2705.06, Revised Code, need not result in any imprisonment if the accused will submit, as is his duty, to the lawful summons of the court. Any imprisonment under this order is of his own volition, and he cannot here complain of his voluntary acts. * * *'

Coercion may be employed as an alternative to punishment for the same act, as the great Judge Learned Hand Pointed out in Loubriel v. United States, 2 Cir., 9 F.2d 807, 809:

'* * * His supposed contumacy, if any, was at once a contempt, punishable as such, and a continued obstruction to the investigation of the grand jury. The committal did not attempt to punish it as a contempt, but to compel him to perform his duty. * * *

'* * * If Loubriel was to be punished, his punishment must be fixed; if he was to be coerced, it might be only while the inquiry was on. * * *'

This coercion and the punishment may also be applied at the same time. State v. Mirman, 99 Ohio App. 382, 133 N.E.2d 796. Or they may be applied successively, imposing first the coercive remedy and then, when it has exhausted itself, imposing punishment. United States v. Collins, 9 Cir., 146 F. 553. The variety of combinations in which the two remedies may be used is illustrated by the cases collected in 28 A.L.R. 1364 et seq.

In this state, however, the procedures used to impose these different remedies also differ. If coercion alone is to be used in dealing with a failure to testify, then the proceeding is summary. See In re Roberts, 175 Ohio St. 123, 127, 191 N.E.2d 816. If, however, punishment, either alone or in connection with coercion, is to be imposed, then Sections 2705.02 and 2705.03, Revised Code, require that charges be filed by the judge in writing, entry of them made on the journal and opportunity given to the accused to be heard with counsel. In such case nothing less than a full scale trial is required before the finding in contempt can be made and punishment meted out.

At the time of the refusal of the appellants to answer the questions propounded in the grand jury, the trial judge, assuming that he desired to proceed farther, could have proceeded in one or another of the following ways:

First: He could file charges in writing, and later conduct a trial of the alleged contemnors, and upon finding them guilty impose fine, jail sentence or both.

Second: He could file charges in writing, later conduct trial and, upon a finding of guilty, commit contemnors to jail until such time as they answered and, from and after such time award a jail term and a fine, or both. This was the choice made in the Mirman case.

Third: Finally the judge could summarily commit appellants to jail until such time as they answered or were discharged by law. This is the classic remedy imposed for failure to answer questions in civil matters and in depositions before notaries public. See Ex Parte Bevan, 126 Ohio St. 126, 184 N.E. 393; In re Martin, 141 Ohio St. 87, 47 N.E.2d 388; In re Frye, 155 Ohio St. 345, 98 N.E.2d 798; Ex Parte Oliver, 173 Ohio St. 125, 180 N.E.2d 599.

The choice made by the trial judge was the same in...