concluding that the trial court exceeded its "authority by needlessly granting immunity to a witness who never refused to testify on Fifth Amendment grounds"
How later courts described this case
- concluding that the trial court exceeded its "authority by needlessly granting immunity to a witness who never refused to testify on Fifth Amendment grounds"
- “We are at a loss to find a basis of appeal for the state in a criminal case from a decision affecting a non-party when the defendant has already been acquitted.”
- in Ohio, criminal procedure is governed by statute
Written by the judges who cited it.
The opinion
William B. Brown, J.,
dissenting. While the trial court’s decision granting Hope immunity may well have been erroneous, I must nonetheless dissent for, in my opinion, the issuance of a writ of mandamus is not an appropriate remedy in this action.
In order to be entitled to a writ of mandamus, the relator must show that he “ * * has a clear legal right to the relief prayed for, that respondent is
under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law.’” State, ex rel. Meshel, v. Keip (1981), 66 Ohio St. 2d 379, 381 [ 20 O.O.3d 338 ].
And in State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141, 161 [ 40 O.O.2d 141 ], this court stated:
“ ‘The court in the exercise of its discretion may and should take into consideration a wide variety of circumstances in determining whether the writ should issue. It may and should consider the facts of the particular case, the exigency which calls for the exercise of its discretion, the consequences of granting the writ, and the nature and extent of the wrong or injury which would follow a refusal of the writ. The court is not bound to allow the writ *151 merely because applicant shows a clear legal right for which mandamus would be an appropriate remedy, even though without mandamus applicant for the writ would be without remedy. The writ will not be issued on mere technical grounds, and it may be granted or refused depending on whether or not it promotes substantial justice.’ ”
In the case at bar, neither the majority nor the appellant has cited any authority wherein a writ of mandamus was employed to compel a judge to vacate an interlocutory order entered in a proceeding which has since been concluded. The granting of the writ at this time will not change the result in the first proceeding, nor will it require the court to accept the use of Hope’s testimony against him in the pending prosecution, which is apparently the end sought by appellant. Indeed, such an end would pose serious question as to its constitutional validity under the Fifth Amendment to the United States Constitution.
Moreover, the validity and effect of the immunity order are issues which could properly be raised in the case now pending against Hope. In State v. Wolery, (1976), 46 Ohio St. 2d 316 [ 75 O.O.2d 366 ], the defendant assigned as error matters concerning a grant of immunity to a prosecution witness. The court, refusing to address the issue, at page 320, quoted with approval the court in State v. Johnson (1969), 77 Wash. 2d 423 , 462 P. 2d 933 :
“ ‘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 * * * of the two dismissed charges.’ ” (Emphasis added.)
Celebrezze, C.J., concurs in the foregoing dissenting opinion.