Orosz v. StateOrosz v. State
Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
RAWLS, Judge.
The justiciable point on appeal posed by appellant-defendant Orosz is that the trial court erred in denying appellant‘s motion to dismiss based upon the theory that the state, in subpoenaing and questioning appellant about incriminating transactions alleged in the instant case, granted to him transactional immunity.
On August 27, 1974, one Jackie Boyd Swain was charged with possession of a firearm by a convicted felon.1 The firearm involved in Swain‘s case was found by a police officer on August 18, 1974, in a car driven by Swain and in which car Orosz, a passenger, was sleeping in the back seat. Swain‘s counsel listed Orosz as a defense witness in his firearm case. On October 2, 1974, an assistant state attorney deposed Orosz in his investigation of Swain‘s firearm case. Orosz was represented by an assistant public defender in the deposition proceedings. In answer to questions concerning the firearm charge lodged against Swain, Orosz testified that he, Swain and one Bradley had been together on August 15, 1974; that Swain did not own a gun, but that same was owned by Bradley; and that he had known Swain since June, 1974. Orosz and Swain were, by amended grand jury indictment returned on January 24, 1975, charged with committing armed robbery on August 15, 1974. Orosz then filed a motion to dismiss, alleging that incriminating evidence was elicited from him by the state while he was under prosecutorial subpoena which entitled him to immunity pursuant to the provisions of
The trial court was correct in denying the subject motion to dismiss for two reasons: 1) the testimony elicited from Orosz pursuant to the state‘s subpoena related primarily to the firearm charge lodged against Swain, and 2) the subject subpoena did not compel Orosz to testify; it compelled his attendance.
The transcript of Orosz‘s deposition discloses that the state‘s initial questions related to his and Swain‘s activities on the night of August 18, 1974. According to Orosz, he was asleep and drunk when an officer stopped their vehicle for a traffic violation. Upon this occasion the firearm was discovered, resulting in a charge being lodged against Swain. It was at this point in his deposition that Orosz volunteered information as to their activities on August 15, 1974, when he related that the gun really belonged to Bradley and that he put it into the glove compartment after Swain urged that “he didn‘t want anything to do with it.” Clearly, the state was pursuing its right of discovery from Orosz in preparing for trial on Swain‘s firearm charge. Orosz‘s and Swain‘s activities as to the instant conviction were not inquired into. Florida‘s enlightened discovery proceedings4 in a criminal case is a two-way street. The state having been furnished Orosz‘s name as a witness for Swain on the firearm charge, in preparing for that trial, was performing its responsibility in finding out what testimony this key defense witness would proffer. We emphasize that this interrogation was not one governed by the Miranda doctrine for Orosz was not a suspect or target at the time of interrogation.
Secondly,
“We start from the fundamental proposition that
`a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Absent such protection, if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, [168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897)]; Boyd v. United States, [116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)].’ Lefkowitz v. Turley, 414 U.S. 70, 78, 94 S.Ct. 316, 322, 38 L.Ed.2d 274, 282 (1973).”
Since Orosz did not object, the state could well assume that its compulsory process was not resulting in eliciting testimony that Orosz deemed to be incriminating.
Other points asserted by Orosz have been reviewed and found to be without merit.
AFFIRMED.
BOYER, C.J., and MILLS, J., concur.