Opinion
No. 86-1373
Decided December 2, 1987.
Mandamus — Criminal law — Grant of transactional immunity pursuant to R.C. 2945.44 within trial court's sound discretion — Writ denied.
APPEAL from the Court of Appeals for Hamilton County.
Relator-appellant, Arthur M. Ney, Jr., is the Prosecuting Attorney for Hamilton County, Ohio. Respondent-appellee, Richard A. Niehaus, is a judge presently serving on the Court of Common Pleas of Hamilton County. Appellant instituted this original action in mandamus seeking to compel appellee to grant transactional immunity to Modenna Anaruma, a witness for the prosecution in criminal proceedings against Daniel H. Sway, M.D.
Anaruma testified before the Hamilton County Grand Jury that Sway had issued prescriptions to her for various drugs in exchange for sexual favors. The grand jury subsequently returned a seventeen-count indictment against Sway, charging him with trafficking in drugs in violation of R.C. 2925.03. Prior to trial, however, Anaruma gave a recorded sworn statement to a private investigator employed by Sway's counsel in which she substantially contradicted her grand jury testimony.
The trial court granted a motion to dismiss in this case on March 18, 1983. Appeal was taken from that decision to the Court of Appeals for Hamilton County and the trial court's decision was affirmed. This court accepted jurisdiction, reversed the court of appeals, and remanded the case to the trial court for further proceedings. ( State v. Sway, 15 Ohio St.3d 112, 15 OBR 265, 472 N.E.2d 1065.)
Trial commenced before appellee on January 6, 1986. In his opening statement, Sway's counsel emphasized Anaruma's prior conflicting statements. Anaruma was called as the state's first witness. When Anaruma was asked on direct examination to describe her relationship with Sway, appellee intervened. Noting defense counsel's allegation of inconsistency, appellee advised Anaruma of her Fifth Amendment privilege against self-incrimination and warned that, if in conformity with either prior statement, her trial testimony could expose her to prosecution for perjury in connection with the other. Upon Anaruma's refusal to incriminate herself by testifying further, the state requested transactional immunity pursuant to R.C. 2945.44. Appellee denied the request upon his determination that the demand was untimely, that Anaruma's trial testimony would necessarily be perjured, and that the request for the grant of immunity would not further the administration of justice. An entry to this effect was filed thereafter.
Appellant then filed a complaint for a writ of mandamus in the court of appeals. The appellate court denied the writ.
The cause is now before this court upon an appeal as of right.
Arthur M. Ney, Jr., prosecuting attorney, and Leonard Kirschner, for appellant.
H. Fred Hoefle, for appellee.
Mandamus should issue in this case only if appellant shows (1) that appellant has a clear legal right to the relief requested; (2) that appellee is under a clear legal duty to perform the requested act; and (3) that appellant has no plain and adequate remedy in the ordinary course of law. State, ex rel. Middletown Bd. of Edn., v. Butler Cty. Budget Comm. (1987), 31 Ohio St.3d 251, 253, 31 OBR 455, 456, 510 N.E.2d 383, 384, citing State, ex rel. Westchester, v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O. 3d 53, 399 N.E.2d 81, paragraph one of the syllabus. Appellant argues that this court should grant this extraordinary remedy here essentially because appellee has a clear legal duty under R.C. 2945.44 to grant the prosecution's request for immunity for Anaruma. As the court of appeals did before us, we disagree.
R.C. 2945.44 provides in relevant part:
"(A) 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.
"(B) 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 to 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." (Emphasis added.)
The foregoing statute makes it plain that once the prosecution requests immunity in writing for a witness who has invoked the Fifth Amendment privilege and the trial court explains the scope of immunity allowed under R.C. 2945.44(B), the trial court must determine whether granting immunity would further the administration of justice. Clearly, that decision lies within the sound discretion of the trial court.
It is well-established that when a court has discretion to act, its only duty is to exercise that discretion. State, ex rel. Butler, v. Demis (1981), 66 Ohio St.2d 123, 20 O.O. 3d 121, 420 N.E.2d 116. Although a writ of mandamus may require an inferior tribunal to exercise its judgment or to proceed to the discharge of its function, R.C. 2731.03, it may not control judicial discretion, even if such discretion is grossly abused. R.C. 2731.03; State, ex rel. Sawyer, v. O'Connor (1978), 54 Ohio St.2d 380, 8 O.O. 3d 393, 377 N.E.2d 494. Appellee exercised his discretion in this case by determining that granting Anaruma immunity would not further the administration of justice. In light of Anaruma's demonstrated disrespect for her oath, even if we were reviewing the merits of appellee's decision, we would not find that he abused his discretion here.
Inasmuch as appellee has carried out the responsibility required by R.C. 2945.44, the writ must be denied, and the judgment of the court of appeals is, accordingly, affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.