State v. Wolery

Decision Date02 June 1976
Docket NumberNo. 74-1014,74-1014
Citation75 O.O.2d 366,46 Ohio St.2d 316,348 N.E.2d 351
Parties, 75 O.O.2d 366 The STATE of Ohio, Appellee, v. WOLERY, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. When fully disclosed to the jury, a promise of immunity offered by the prosecuting attorney to a witness in exchange for his testimony affects the weight to be given that testimony, not its admissibility.

2. A decision to prosecute one or more individuals involved in criminal activity, upon the testimony of others also involved in that activity, and to grant immunity from prosecution to those in the latter group in exchange for their testimony, does not violate the right of those in the former group to equal protection of the laws, absent a showing that the selection of those to be prosecuted was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.

3. An assertion upon appeal, pursuant to Crim.R. 52(B), that evidence admitted without objection at trial was prejudicial to the defendant and should have been excluded, will not be entertained where the defendant had adequate legal representation at trial, and where it is apparent from the record that the failure to object was a deliberate tactic of counsel.

On August 16, 1973, appellant, Columbus attorney John J. Wolery, was indicted on eight counts of receiving and concealing stolen property, in violation of R.C. 2907.30. 1

At his trial, in November 1973, three self-confessed criminals testified for the state. Two, Hal Courtney Stroebel and Donald K. Johnston, had been granted immunity from prosecution by the Franklin County prosecutor in exchange for their testimony. A third, Lester R. Compton, had been allowed to plead guilty to a lesser included offense in return for his testimony.

No statute then in effect authorized a grant of immunity to Stroebel and Johnston. For this reason, and with the express intention of implementing a grant, police officers and prosecutors did not read Stroebel and Johnston the Miranda warnings prior to questioning them. To further implement the grant, the prosecutor filed, on June 20, 1973, in the cases of State v. Stroebel and State v. Johnston, a 'motion for immunity' in the Court of Common Pleas of Franklin County. Judge Frederick T. Williams filed an entry in each case, which stated:

'On June 20, 1973, a motion was filed by the plaintiff in this matter requesting that this defendant be granted immunity from prosecution for all crimes that he testified to before the Franklin County Grand Jury in May of 1973. Said immunity request was based on the fact that this defendant would testify in open court concerning his knowledge of said crimes if and when any indictments were returned by a Franklin County Grand Jury based in part or wholly upon said testimony.

'After reviewing the facts and law pertaining to this matter, it is the finding of this court that said motion is well taken and it is hereby sustained. This decision is made in accordance with State v. Trocodaro ((1973), 36 Ohio App.2d 1 (301 N.E.2d 898), motion for leave to appeal denied by this court October 4, 1973), Franklin County Court of Appeals, Case Number 73-AP-24, decided May 22, 1973.'

The purported grants of immunity to Stroebel and Johnston, and the plea bargain with Compton, were disclosed to the jury, and were scrutinized upon direct and cross examination of those witnesses. The trial court instructed the jury to examine accomplice testimony with caution.

Stroebel and Johnston testified to stealing various items of personal property, including airplance radios, antique dishes and furniture, a mink stole, home entertainment units, television sets, a radio, cash, and a silver coin collection, Compton admitted stealing antique glassware and furniture. Many of these items, according to Stroebel, Johnston, and Compton, were given or sold to appellant, who in each instance, accepted or purchased the property knowing it had been stolen.

Appellant was convicted upon four of eight counts. Specifically, he was found guilty of receiving and concealing antique glassware, a clock, lamp, table, and music box, and two Mark 12(A) airplane radios. One count was dismissed by the trial court. On three of the counts, appellant was found not guilty.

Upon appeal, the Court of Appeals affirmed each conviction.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

George C. Smith, Pros. Atty., James J. O'Grady and Ronald J. O'Brien, Columbus, for appellee.

Topper, Alloway, Goodman, DeLeone & Duffey and John J. Duffey, Columbus, for appellant.

PAUL W. BROWN, Justice.


Appellant attacks the manner in which immunity from prosecution was granted to witnesses Stroebel and Johnston, asserting that such a grant was without statutory authority, and that it did not adequately protect the constitutional rights of Stroebel and Johnston. He seeks, upon this basis, to have the testimony excluded. Appellant argues that the testimony of Stroebel, Johnston and Compton was the product of coercion, and therefore not credible as a matter of law. He also contends that the Franklin County prosecutor abused his discretion in his selection of those persons to be prosecuted, and, in so doing, violated appellant's right to equal protection of the laws.

At the time of appellant's trial, Ohio had no immunity statute applicable to the crimes committed by Stroebel and Johnston. R.C. 2945.44 permitted courts to grant immunity only in cases involving gambling and liquor violations. To circumvent this implicit stricture against other grants of immunity, the Franklin County prosecutor made promises of immunity to witnesses Stroebel and Johnston, and safeguarded those promises by deliberately failing to read Stroebel and Johnston the Miranda warnings, and by securing an entry of immunity from a judge of the Court of Common Pleas. Although this course of conduct was not sanctioned by law, it does not follow that appellant was thereby prejudiced, or that the testimony so obtained was inadmissible.

Whether the purported grant of immunity to witnesses Stroebel and Johnston will effectively shield those individuals from a future prosecution based upon their testimony in appellant's trial 2 is of no concern to the appellant. The Fifth Amendment privilege against self-incrimination is personal to each witness. Hale v. Henkel (1906), 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652.

Nor does the fact that the testimony of Stroebel and Johnston was secured in a manner not technically authorized by law prejudice the appellant. A promise of leniency offered by the state in exchange for testimony is one factor which the jury may consider in weighing the credibility of a witness. Here, the jury was fully apprised of the means by which the testimony of Stroebel and Johnston was obtained.

In State v. Johnson (1969), 77 Wash.2d 423, 462 P.2d 933, similar facts were presented. The defendant, Johnson, was on trial for assault with intent to kill. An accomplice, Zaabel, was incarcerated, with two felony charges pending against him. To secure the testimony of Zaabel in the trial of Johnson, the prosecuting attorney promised Zaabel immunity, and, during the course of Johnson's trial, secured a court order dismissing both of Zaabel's pending felony counts.

The Supreme Court of Washington rejected Johnson's contention that Zaabel's testimony was inadmissible. The court stated, at pages 436-437, 462 P.2d at pages 941-942:

'Defemdant assigns error to the admission of Zaabel's testimony, contending that the promises of immunity disqualified him as a witness and rendered his testimony incompetent. He argues that, since the prosecuting attorney did not have the power to grant immunity in a case of attempted murder, his acts in doing so were without authority in law and amounted to coercion and bribery and a denial of due process of law.

'The question of the validity of a promise of immunity raised by this assignment of error is not squarely before the court, for it is the defendant and not the witness who is claiming the invalidity of that promise. The question of whether there exists an equitable right to an enforcement of this promise of immunity is not present and would arise only if at some future time the state should attempt to prosecute the witness on either of the two dismissed charges.

'One of the sordid facts of life is that the most cogent proof of guilt frequently derives from an evil source. Criminals seem to know more about crimes than good people, and the state must get its evidence where it finds it.

'A promise of immunity by the state, therefore, for the purpose of securing the testimony of one who has testimonial knowledge of the crime charged but cannot be compelled against his will to testify is not unknown to the criminal law and does not ipso facto render the testimony incompetent and inadmissible. If the promise is unenforceable but the promises nevertheless believes or says he believes it was made in good faith-even though both may be without legal power to bind the state to it-making of the promise alone does not render the witness incompetent or preclude his testimony. The promise of immunity goes to the weight of the testimony and may be considered by the jury in determining what effect to give to the testimony of an admitted accomplice. It is the jury and not the court which weighs the evidence and determines to what extent the promise of immunity amounts to a reward or threats and coercion in inducing the promisee witness to waive his constitutional rights against self-incrimination.

'As long as the jury is fully advised of the inducements and the tests to which an accomplice's testimony should be subjected, the actions of the state in attempting to secure the testimony of an accomplice are neither immoral nor unconscionable nor a denial of due process of law. Statutes and appellate decisions which provide...

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