The opinion
CHAPEL, J.,
dissenting:
T1 Barthelme agreed to a voluntary interview with the Grady County District Attorney investigator. Admissions from this interview were later used against him at preliminary hearing. The magistrate and District Court found these statements were inadmissible under 21 O0.8.2001, § 961. I agree.
T2 Found in the statutes prohibiting gambling, Section 961 grants a particular type of immunity from prosecution. It provides:
No person shall be excused from giving any testimony or evidence upon any investigation or prosecution for violation of this article, upon the ground that such testimony would tend to convict him of a crime, but such testimony or evidence shall not be received against him upon any criminal investigation or prosecution, except in a prosecution against him for perjury committed in giving such testimony.
This statute on its face specifically includes testimony or evidence which is not compelled, but voluntarily made in the course of an investigation-like the statements Bar-theime made here. Despite this specific statutory language, the majority here characterizes Section 961 as a statute which only protects an individual from prosecution based on compelled testimony.
3 I find no fault with the majority's thorough discussion of the law regarding compelled testimony, the provisions of the Oklahoma constitution and general immunity statutes. I agree that many immunity statutes, and our constitutional provision, offer protection when a person is compelled to give self-incriminating testimony or evidence. I absolutely disagree with the majority's assumption that no person can claim immunity from prosecution under any cireumstances unless his testimony has been compelled. This assumption has no basis in the statutory language of Section 961. In fact, it disregards the specific reference to testimony or evidence given upon any investigation.
T 4 The majority appears to rely on Art. 2, § 27 of the Oklahoma constitution and the many cases interpreting it. That constitutional provision states:
Any person having knowledge or possession of facts that tend to establish the guilt of any other person or corporation under the laws of the state shall not be excused from giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to incriminate him under the laws of the state; but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence. 1
This language is limited to a situation where a person is legally called on to testify or give evidence. I agree that a person claiming immunity under that provision must refuse to testify, claim the Fifth Amendment privilege, and be compelled to give testimony. I fail to see how it, and the cases interpreting it, apply to Section 961's protection for persons who give information against themselves during the course of an investigation. Compulsion may well be, as the majority has it, a condition precedent for a grant of immunity under the Oklahoma constitution, according to the cases interpreting the constitutional provision on immunity. None of these cases construes or interprets, even by analogy, the grant of immunity offered by statute in See *207 tion 961. 2 I do not suggest these cases are wrong. I merely believe they offer no assistance in interpreting the specific and unique language found in Section 961.
15 The inclusion of the language "upon any imvestigation " in Section 961 differs significantly and substantively from the constitutional language. I conclude that the Legislature intended Section 961 to mean exactly what it says, by providing immunity from prosecution for persons who volunteer self-incriminating statements during the course of an investigation into gambling offenses. I believe this is consistent with the purpose of the statute, which encourages persons to give law enforcement officers information about illegal gambling operations. I believe my conclusion is also supported by the contrast in language between Section 961, the Oklahoma constitution, and case law interpreting the constitutional immunity provision. To deny any meaning to the phrase "wpon any investigation," simply because it is not present in the constitutional provision, is to render that part of Section 961 superfluous. This Court should avoid any statutory construction which would make a provision of the statute useless. 3
T6 The majority states that Section 961 requires that the statement at issue must be protected by the constitutional privilege against self-incrimination and "be given under compulsion before its protection attaches." 4 Nothing in the language of Section 961 supports this interpretation of the statute. The majority relies wholly on constitutional provisions and case law which do not apply here. There are no cases on this issue, and I therefore cite none. Very occasionally this Court is called upon to make a ruling of law in the first instance. As the majority admits, this is a case of first impression: this Court has never interpreted the specific language of Section 961. 5 I base my conclusion on sound principles of legislative interpretation rather than citing cases which have no relevance to the issue. I am not troubled by the fact that following the plain language of this statute requires an interpretation of law different from interpretations of other immunity statutes and constitutional provisions containing different language. My interpretation of Section 961 has no ef-feet on the settled law governing immunity provisions which do require compulsion; I merely acknowledge the fact that this particular statute does not. I would take the statute at its word, grant Barthelme the protection it provides, and affirm the district court's decision.
17 I am authorized to state that Judge Lewis joins in this dissent.
. Okla. Const. art. 2, § 27. Okla. Const. art. 2, § 21 states in part: "No person shall be compelled to give evidence which will tend to incriminate him, except as in this Constitution specifically provided...." The provision in Section 27 complements this provision.
. The same is true of the cases from other jurisdictions cited by the majority. In every case, the relevant statute specifically refers to compelled testimony, a court order to produce evidence, or a subpoena to appear before a grand jury or district attorney.
. State v. Okla. County District Court, the Hon. D. Fred Doak, 2007 OK CR 3 , 154 P.3d 84, 87 ; Vilandre v. State, 2005 OK CR 9, ¶5 , 113 P.3d 893, 896 .
. Majority Opinion at 205.
. For this reason I find irrelevant the majority's cited cases from other jurisdictions, which do not deal with this language; nor do I find it necessary to bolster our own first interpretation of Section 961 by referring to other jurisdictions.