THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. ADAMSON, APPELLEE AND CROSS-APPELLANT.
No. 97-1022
SUPREME COURT OF OHIO
September 30, 1998
83 Ohio St.3d 248 | 1998-Ohio-284
Criminal law—Trial—Witnesses—Immunity of witness turning state‘s evidence—Immunity that has been granted pursuant to R.C. 2945.44 continues when the person receiving immunity refuses to testify at a retrial. Submitted April 7, 1998. APPEAL and CROSS-APPEAL from the Court of Appeals for Brown County, No. CA96-05-012.
On appeal, the court of appeals determined that Adamson was an incompetent witness under
During the retrial, Adamson was called to testify. She asserted her Fifth Amendment right against self-incrimination and refused to testify. The court excused Adamson as a witness based on the court of appeals’ judgment that Adamson‘s testimony could not be compelled.
Following the retrial, Adamson was indicted for her role in the aggravated murder of Freeman. She filed a motion to dismiss based on the grant
On May 10, 1996, the state filed a notice of appeal. Adamson moved to dismiss the appeal on the ground that the appeal was not timely. The court of appeals denied the motion and allowed the appeal, and ruled that the trial court had properly dismissed the charge of aggravated murder against Adamson.
The cause is now before this court pursuant to the allowance of a discretionary appeal and cross-appeal.
Susan Laker Tolbert, Special Prosecuting Attorney, for appellant and cross-appellee.
David A. Sams, for appellee and cross-appellant.
PFEIFER, J.
The principal issue before us is whether immunity that has been granted pursuant to
First, we address Adamson‘s cross-appeal. She argues that when
The court of appeals stated, and we agree, that “[d]espite the amendment of
Prior to the 1995 amendment,
The court of appeals exercised discretion in denying Adamson‘s motion to dismiss. See, generally, State v. Fisher (1988), 35 Ohio St.3d 22, 517 N.E.2d 911. Accordingly, its judgment will not be disturbed absent an abuse of discretion. We see nothing in the record to suggest that the court‘s attitude was unreasonable, arbitrary, or unconscionable. Quonset Hut v. Ford Motor Co. (1997), 80 Ohio St.3d 46, 47, 684 N.E.2d 319, 321; Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St.3d 83, 87, 19 OBR 123, 126, 482 N.E.2d 1248, 1252. We affirm the court‘s denial of Adamson‘s motion to dismiss the appeal.
“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.”
Findings under
“If, but for this section, the witness would have been privileged to withhold an answer or any information given in any criminal proceeding, and he complies with an order under division (A) of this section compelling him to give an answer or produce any information, 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, he gave an answer or produced any information.”
Adamson invites us to construe
Adamson complied with the
The few cases that have dealt with similar issues are not particularly helpful to resolving the issue at hand.
In State v. Small (1987), 41 Ohio App.3d 252, 535 N.E.2d 352, paragraph one of the syllabus, the court stated that “where an agreement not to prosecute is conditioned upon the defendant‘s agreement to ‘fully cooperate’ or otherwise provide truthful information, but it is later discovered that the defendant has not fulfilled the terms of the agreement, then the defendant‘s failure to comply with his obligation nullifies the government‘s promise not to prosecute.” See Ricketts v. Adamson (1987), 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1. The state argues that Small stands for the proposition that a witness must fully comply to receive immunity pursuant to
Small is readily distinguishable from the case before us. It did not address
In State ex rel. Gray v. Leis (1980), 62 Ohio St.2d 102, 16 O.O.3d 106, 403 N.E.2d 977, a witness received a grant of immunity. The offer was withdrawn within two hours because the witness was uncooperative. The specific issue was whether a writ of prohibition could issue to prevent the trial judge from proceeding with a case against the witness who had lost his immunity. See State ex rel. Koren v. Grogan (1994), 68 Ohio St.3d 590, 629 N.E.2d 446. This court held that a writ should not issue because the defendant had an adequate remedy at law, an appeal.
In Leis, the grant of immunity was withdrawn the same day it was offered. In this case, Adamson testified at trial and even the state does not dispute that her testimony was damaging to Darryl Adamson. Because of the factual
The state‘s primary argument is that the statute requires full compliance and that for this court to hold otherwise would weaken the state‘s ability to obtain testimony. However, the statute does not explicitly require full compliance, it requires compliance. Further, the statute makes no mention of whether and under what conditions immunity that has been granted may be revoked.
We conclude that Adamson complied with the court‘s order compelling her “to give an answer or produce any information” when she testified during the first trial of Darryl Adamson. We also conclude that immunity attached upon compliance with the
Judgment affirmed.
MOYER, C.J., F.E. SWEENEY and COOK, JJ., concur.
DOUGLAS and RESNICK, JJ., concur in judgment only.
LUNDBERG STRATTON, J., concurs in part and dissents in part.
THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. ADAMSON, APPELLEE AND CROSS-APPELLANT.
No. 97-1022
SUPREME COURT OF OHIO
September 30, 1998
83 Ohio St.3d 248 | 1998-Ohio-284
I concur with the majority‘s disposition of Adamson‘s cross-appeal. However, I dissent from its conclusion that Adamson complied with the
Once Darryl Adamson‘s conviction was reversed on appeal and he was granted a new trial, it was as though there had been no other criminal proceeding conducted with respect to Darryl Adamson. See
Merely because the statute does not expressly state whether and when immunity may be revoked, this does not mean that, as long as the witness answers or produces information on one occasion, immunity, once attached, cannot be revoked. There is no limiting language in the statute that partial compliance, or anything less than absolute compliance, is sufficient to obtain immunity. There is no statutory language that would indicate that compliance by testifying or giving
The General Assembly intended that the immunity granted by
The benefit of statutory immunity comes with a price. Adamson had to comply with the