The opinion
Jones, J.,
dissenting. In considering the questions of constitutional law involved in this case, I believe it would be helpful to review briefly the nature of the charges against appellant and the disposition in the lower courts. When the plea bargain was reached in the trial court, there was then pending against appellant an indictment charging four counts of bribery and one count of perjury. Appellant’s motion to dismiss the indictment had already been denied. Appellant thereupon pleaded no contest to a “stipulated lesser included offense” of obstructing official business, in violation of R.C. 2921.31, a second degree misdemeanor. The stipulation provided that obstructing official business was a lesser included offense of Count Four of the indictment, bribery. The bargain further provided that the court would enter a nolle prosequi as to Counts One, Two, Three and Five of the indictment. The trial court accepted the no contest plea and the prosecutor recited the facts, in part, as follows:
“This defendant, on or about July 5, 1984, and without privilege to do so, told one Leland Brubaker, who is one of the principals in the architectural firm of Brubaker/Brandt, and which has been in business for over 25 years, and has been both short listed and selected for state work throughout that time regardless of the party in power, that in order to be considered for state work — not at that time, but for later on in 1985 or 1986 — he should contribute to the Governor’s Club, which costs $1,000; participate in the Governor’s Club Golf Outing, which would cost another $1,000; and attend the Governor’s Fall Dinner, which would cost him another $1,000.”
Based upon the foregoing recitation, as well as other facts related by the prosecutor, the court found appellant guilty, ordered her to perform fifty hours of community service at the YWCA, and pay a fine of $500 and costs. Strangely, the parties agreed that appellant would retain the right to appeal the trial court’s order denying the motion to dismiss, even though such motion to dismiss was effectively granted by virtue of the plea bargain and the nolle prosequi.
While it is abundantly clear that appellant was then entitled to appeal the finding of guilt to the “stipulated *9 lesser included offense,” I question the right of the appellant to appeal, by agreement, the order denying the motion to dismiss simply because the state agreed that such could be done. The appeal should have been limited to the propriety of the finding of guilt based upon the facts related by the prosecutor, which appeal, of course, would then be a great deal narrower with respect to the use of immunized testimony before the Senate Judiciary Committee. The question before this court should be whether the state’s use of such immunized testimony tainted the finding of guilt following the no contest plea to obstructing official business.
Nevertheless, since the majority has seen fit to reverse the judgment of the court of appeals and now determine that the entire indictment must be dismissed because the grand jury heard appellant’s immunized testimony, such issue must be addressed.
I disagree with the holding of the majority that the entire indictment must be dismissed where the indicting grand jury has heard and considered the immunized testimony of the appellant. When appellant’s immunized testimony before the Senate Judiciary Committee was used to impeach her testimony before the grand jury, thereby leading to an indictment for perjury, the perjury indictment should have been dismissed. Kastigar v. United States (1972), 406 U.S. 441 , and New Jersey v. Portash (1979), 440 U.S. 450 . By the same token, it is obvious that appellant would not have been indicted for perjury had she not, upon three separate occasions, signed a document agreeing to waive her constitutional rights, including her Fifth Amendment right to remain silent.
Aside from the perjury indictment, however, Kastigar, supra, does not require dismissal of the four other counts charging appellant with bribery.
Pillsbury Co. v. Conboy (1983), 459 U.S. 248 , held, long after Kastigar and Portash, supra, that the prior grant of use immunity does not afford protection for all self-incriminating information disclosed by the immunized witness on any occasion after the giving of the immunized testimony. The court further held in Pillsbury, supra, that use immunity was intended to immunize and exclude from a subsequent criminal trial only that information to which the government expressly has surrendered future use. Since the appellant herein did not waive in writing the immunity granted by R.C. 101.44, when testifying before the Senate Judiciary Committee, it is clear that such testimony could not be used as evidence against her in a criminal trial.
The trial court held, in overruling appellant’s motion to dismiss all counts of the indictment, that the evidence which the state proposed to use was derived from legitimate independent sources. Such met the test of Kastigar, supra. The trial court’s findings were as follows:
“When defendant testified before the Franklin County Grand Jury on July 8, 1986, her Senate committee testimony was used by the inquiring prosecutor to phrase a few questions asked of defendant. As to those few questions, the prosecutor had sources of information which were legitimate, and were independent from defendant’s immunized testimony.
“To the extent that defendant, in response to the few questions which were tainted by use of defendant’s immunized testimony expanded upon and gave details not included in defendant’s immunized testimony, defendant waived the protection afforded by section 101.44, Ohio Revised Code, and the Fifth Amendment to the Constitution of the United States.
“Of the other six hundred (600) questions asked of defendant during *10 her appearances before the grand jury which indicted her, none [was] based upon, and all were independent of, her Senate testimony.
“As to the few offending questions which constituted use of defendant’s immunized testimony, the Court has considered that defendant’s testimony before the Senate committee was brief, was exculpatory, and was the same as her later testimony before the grand jury.
“Such use by the prosecution, though improper, was harmless beyond a reasonable doubt, and cannot serve properly as a basis for dismissal of the indictment. In making this determination, the Court has considered the quantity of evidence heard by the grand jury including the remainder of defendant’s own voluntary testimony.”
It is readily apparent that the trial court determined that although there were some questions which were “tainted,” the answers to those questions were not only exculpatory, but so few in number that the prosecution demonstrated that its indictment and future prosecution were not based upon “tainted” immunized testimony.
There is further authority for the validity of the indictment in the case of United States v. Calandra (1974), 414 U.S. 338, 344-345 , where the court held as follows:
“The grand jury’s sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence, Costello v. United States, supra; Holt v. United States, 218 U.S. 245 (1910); or even on the basis of information obtained in violation of a defendant’s Fifth Amendment privilege against self-incrimination, Lawn v. United States, 355 U.S. 339 (1958).”
Accordingly, there was no violation of the use immunity statute since appellant signed written waivers divesting herself of her Fifth Amendment protections, which are coextensive with her grant of use immunity. I therefore would hold that even & there were a violation of R.C. 101.44, the court of appeals was correct in agreeing with the trial court’s reasoning that the prosecutor’s minimal use, in conjunction with the exculpatory nature of the evidence, was not enough to render the indictment invalid, in its entirely, thereby requiring dismissal.