State v. Neff

732 N.E.2d 1008, 135 Ohio App. 3d 7

• Court: Ohio Court of Appeals
• Decided: September 23, 1999
• Docket: Case Nos. 13-98-74, 13-98-75, 13-98-76.
• Status: Published

Opinions

Walters, Judge.

This appeal is brought by the state of Ohio from a judgment of the Court of Common Pleas of Seneca County rendered in three separate criminal cases against appellees, H. Weldin Neff, James Browning, and Barbara Gracemyer, wherein the court refused to compel an essential witness to testify on cross-examination after immunity had been granted, and, at the same time, struck the witness’s previously elicited direct testimony. We note that the three cases were tried to the court together and have been similarly consolidated for purposes of this appeal.

The necessary background facts are as follows:

H. Weldin Neff is the Sheriff of Seneca County, James Browning is a lieutenant in the sheriffs office, and Barbara Gracemyer is employed by the same agency as an administrative assistant. An investigation into the activities of these individuals commenced, and, as a result, a ten-count indictment was returned against the three named defendants on June 10, 1998. Count nine was for intimidation of a witness in a pending criminal matter, and count ten was for theft in office. The defendants pled not guilty to the charges and the cases were eventually heard by the court in a trial that began on November 30, 1998. A special prosecutor was appointed to try the matter.

The record demonstrates that on the fifth day of trial, December 5, 1998, the prosecution called Nancy Porter to the stand. Porter is a key witness for the state, especially with respect to counts nine and ten. Porter testified without incident on direct and on the cross-examination conducted by counsel for Lt. Browning. However, during Porter’s cross-examination by the attorney representing both Gracemyer and Sheriff Neff, information began to surface about Porter’s possible involvement in the improper shredding of important documents. At that point, a discussion in chambers resulted in the court advising Porter of her constitutional right against self-incrimination.

Following consultation with an attorney, it became apparent that Porter would assert her Fifth Amendment privilege upon any further questioning. The state then made a motion requesting the court to grant Porter immunity under R.C. 2945.44. The court granted the state’s request for immunity; however, when, questions arose regarding whether Porter could still be subject to federal criminal liability, the court refused to order her to testify and journalized the decision for the record. At that point, the state of Ohio perfected the instant appeal pursuant to Crim.R. 12(J). Due to the impact that Porter’s testimony would have on the entire case, the court stayed further proceedings until such time as the appeal was resolved.

The state asserts the following assignments of error to this court:

Assignment of Error No. I

“The trial court erred to the state’s prejudice by allowing the state’s witness to assert the Fifth Amendment privilege when it was based upon speculation and fear created by the defendants’ counsel.”

Assignment of Error No. II

“The trial court erred to the prejudice of the state when it granted the witness immunity pursuant to R.C. [2945.44] and then refused to order her to answer when she continued to assert the Fifth Amendment privilege and struck her prior testimony given on direct.”

Since both assignments of error center around the trial court’s refusal to order Porter to testify, we have chosen to address them together. R.C. 2945.44 governs the decision to grant immunity to a witness. The statute provides:

“ (A) [T]he court * * * shall compel the witness to answer or produce the information, if * * *:

“ (1) The prosecuting attorney of the county in which the proceedings are being held makes a written request to the court * * *; [and]

“ (2) The court of common pleas informs the witness that by answering, or producing the information he will receive immunity * *

Clearly, this statute creates a mandatory requirement upon the court to compel the witness to answer the questions once immunity properly has been granted. In this case, the record demonstrates that the trial court unequivocally granted the prosecutor’s immunity request, but then failed to exercise its duty to compel Porter’s testimony.

We note that there were some questions raised regarding whether the immunity request was properly made in writing, as required by the above statute. The request, which the state alleges was written, is admittedly not a part of the record on appeal. Nonetheless, in the absence of a complete record, the appellate court “ ‘must indulge the presumption of regularity of the proceedings.’ ” Wells v. Spirit Fabricating, Ltd. (1996), 118 Ohio App.3d 282, 288, 680 N.E.2d 1046, 1050, quoting Bates & Springer, Inc. v. Stallworth (1978), 56 Ohio App.2d 223, 229, 10 O.O.3d 227, 231, 382 N.E.2d 1179, 1184.

In this case, we find that the presumption of regularity is heightened by the context in which the immunity request was ultimately granted. Particularly, once the prosecutor raised the issue, the transcript reveals that a discussion took place wherein defense counsel stated that there was no objection as long as the request was made in writing. In fact, the court stated that it would give the special prosecutor ample time to do so. Furthermore, it is clear that no objections were entered with respect to this issue at the time that the court actually stated its intention to grant the immunity. Thus, we will presume that the request was properly made in writing and in full compliance with the statute.

With that stated, the essential issue presented is whether a trial court may properly refuse to order a witness to testify, subsequent to a grant of immunity pursuant to R.C. 2945.44, based upon the witness’s expressed concern that the state immunity may not.bind the federal government. Due to the opinion set forth in Murphy v. Waterfront Comm. of New York Harbor (1964), 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678, we find that this particular legal question has been answered in the negative. In that case, the Supreme Court of the United States held that a grant of immunity under a state statute is binding on the federal government to the extent that it cannot use the testimony elicited in the state action or the fruits thereof. A rather limited exception exists where the state immunity would not constrain the federal government in the event that the disputed evidence is discovered from an “independent, legitimate source.” Id., 378 U.S. at 79, 84 S.Ct. at 1609, 12 L.Ed.2d at 695, fn. 18. Given the broad effect of the general rule pronounced in Murphy, the fear that Nancy Porter could still be subject to federal prosecution was unfounded. Thus, the trial court’s refusal to compel her testimony was erroneous. We also point out that, at oral argument, counsel for the appellees conceded that, pursuant to Murphy, the trial court’s refusal to require Porter to testify was improper and that the matter should be remanded for that purpose. For these reasons, we conclude that Nancy Porter should be compelled to testify.

Appellant’s first and second assignments of error are sustained.

Having found error prejudicial to the appellant herein, in the particulars assigned and argued, the judgments of the trial court are hereby reversed and the matter is remanded for further proceedings in accordance with this opinion.

Judgments reversed and cause remanded.

Hadley, J., concurs. Thomas F. Bryant, J., dissents.