Opinion
No. CR91-7059.
Decided October 26, 1992.
Anthony G. Pizza, Prosecuting Attorney, Joseph J. Solomon and Mary Sue Barone, Assistant Prosecuting Attorneys, for plaintiff. Ronnie L. Wingate and Mark Berling, for Michael Thompson.
Mark C. Geudtner, for Mark Shepard.
This cause is before the court on the state of Ohio's notice of intent to use evidence and to compel testimony of the separately indicted and previously tried co-defendant Mark Shepard, filed October 21, 1992, on defendant Michael Thompson's motion in opposition filed October 22, 1992, and on Shepard's oral objections. Upon review of the facts submitted to the court, the written and oral arguments of counsel, and the applicable law, the court finds that Thompson's motion should be granted, Shepard's objection should be sustained, and the order requested in the state's notice should be denied.
The court will treat Thompson's motion as a motion in limine. Shepard's orally presented objections are accepted by the court and also treated as a motion in limine. The court appointed attorney Mark C. Geudtner as counsel for Shepard late in the afternoon of October 21, 1992, and recognizes that he has not had time to prepare and file formal motions and memoranda in this matter.
I
The facts and issues underlying this ruling are simply stated. Shepard and Thompson were separately indicted for the same aggravated murder. Shepard was tried and convicted by a jury on August 27, 1991. He was sentenced that same date. Shepard did not testify in that case. State v. Shepard, Lucas C.P. No. CR90-7142. Further, Shepard has filed a notice of appeal to the Court of Appeals for Lucas County, which has not issued its decision.
The state now argues that since Shepard has been convicted and sentenced, he no longer is entitled to assert his privilege against self-incrimination pursuant to the Fifth Amendment to the United States Constitution. Accordingly, the state seeks an order from this court compelling Shepard to testify. The state further asks the court to call Shepard as its witness pursuant to Evid.R. 614. Finally, the state asserts that it is agreeable to entering into a written agreement that any statements Shepard makes while testifying in this case will not be used against him should a retrial of his case be ordered as a result of his "pending appeal."
The state's offer extends only to retrial pursuant to the "pending appeal." (Notice of Intent at 4.) Whether the state includes in that term any further appeal Shepard might take — to the Supreme Court of Ohio or to the United States Supreme Court — is not clear. It does appear to the court, however, that the offer does not include a retrial which might be ordered pursuant to a motion for post-conviction relief under R.C. 2953.21 or an application for a writ of habeas corpus pursuant to Section 2254, Title 28, U.S.Code.
Thompson and Shepard both maintain that Shepard may not be compelled to testify. Shepard also argues that the court lacks the authority to grant the state's offer of what amounts to limited use immunity and that the offer is really no more than a prospective plea bargain offer which the court should not entertain.
Thompson also explores possible evidentiary scenarios should the court grant the state's motion. While the court is aware of and concerned about the propriety of the possibilities addressed by Thompson, it finds that they do not need to be formally resolved at this juncture.
II
The court first addresses Shepard's rights pursuant to the Fifth Amendment to the United States Constitution, since it finds that its ruling on that matter is, in large part, determinative of the other questions.
A
The Fifth Amendment provides that "No person * * * shall be compelled in any criminal case to be a witness against himself." It is elementary that this protection against self-incrimination prevents the state from compelling, in any proceeding, testimony from a person which may be used against that person in a criminal action. However, the protections of the Fifth Amendment are not without some limits.
The state argues that, upon any conviction and sentencing, a person's right to assert his Fifth Amendment privilege has ended. In support of that position, the state points to several cases, relying particularly on United States v. Romero (C.A.2, 1957), 249 F.2d 371, 375. Romero seems to make that assertion. However, Romero is properly distinguishable. The issue actually before the court in that case was whether the witness could refuse to be sworn. The statement as to the effect of conviction was an advisory dictum. Moreover, Romero, which called the proposition "well established," cited as its authority United States v. Cioffi (C.A.2, 1957), 242 F.2d 473. Romero at 375. Cioffi, however, does not make so bold an assertion. In that case, the court merely held that it was not error to allow the government to call as a witness one who had already pleaded guilty and "had no obvious reason for invoking the privilege against self-[in]crimination." Cioffi at 477.
The proposition that one who has pleaded guilty does not ordinarily retain the protection of the Fifth Amendment as to matters regarding the offense to which he has entered a plea is unexceptionable. See, e.g., State v. Dick (1971), 27 Ohio St.2d 162, 166, 56 O.O.2d 101, 103, 271 N.E.2d 797, 800, citing Cioffi and Romero. In this case, however, there has been no guilty plea. Shepard was tried to a jury. He did not acknowledge guilt. He did not testify. Thus, Cioffi and its progeny, including Romero and Dick, are inapplicable.
See, also, Brown v. Walker (1895), 161 U.S. 591, 597-600, 16 S.Ct. 644, 647-648, 40 L.Ed. 819, 821-822, for other situations in which the privilege does not exist (waiver, expiration of the statute of limitations, pardon).
Still, it is clear that "accomplices' Fifth Amendment right from self-incrimination will end at some point after the completion of their cases." State v. Hartman (Aug. 30, 1985), Clermont App. No. CA85-03-012, unreported, at 3-4, 1985 WL 7724. The question is when that point arrives.
The state, citing R.C. 4506.01(G), maintains that a conviction obtains for all purposes upon a determination of guilt at trial. And the state also points to authority from other jurisdictions suggesting that the privilege of the Fifth Amendment cannot be invoked on the hope of a new trial after appeal or post-conviction relief. People v. Fine (1940), 173 Misc. 1010, 19 N.Y.S.2d 275; State v. Simon (1949), 132 W. Va. 322, 52 S.E.2d 725. Neither of these cases is controlling, of course. Further, neither is precisely on point, and the court finds that their holdings do not state the better rule or comport with the admittedly limited authority on the matter in this state.
Fine presents the problem of a convicted but not sentenced person who has been called to testify before a grand jury and the extent of New York's immunity statute. The court in that case notes that at some point Fine's conviction may be reversed and he may be retried, and indicates that, "[i]f so, it may well be that he would be immune from retrial." 173 Misc. at 1015, 19 N.Y.S.2d at 281. Fine does not address, however, the situation of a co-defendant called at trial to testify against the other co-defendant. Nor does Fine's discussion of New York's immunity statute have any bearing upon Ohio's statute. Simon, too, deals primarily with the question of immunity following compelled testimony.
Shepard relies on United States v. Duchi (C.A.8, 1991), 944 F.2d 391. While acknowledging that there is a split of authority on the matter, the Duchi court declared "[t]he better rule * * * to be that the Fifth Amendment right not to testify concerning transactions for which one has been convicted continues until the time for appeal has expired or until the conviction has been affirmed on appeal." Id. at 394 (citing cases).
As to Ohio, in Hartman, a case also not entirely on point, the Twelfth District Court of Appeals recognized the uncertainty regarding "[t]he parameters of the privilege," id. at 4, citing, among other cases, United States v. Moore (C.A.9, 1982), 682 F.2d 853; United States v. Metz (C.A.5, 1979), 608 F.2d 147, certiorari denied (1980), 449 U.S. 821, 101 S.Ct. 80, 66 L.Ed.2d 24; and United States v. Johnson (C.A.1, 1973), 488 F.2d 1206. While none of these cases is controlling here, the court finds that the concerns expressed in Hartman, and especially its citation of Hoffman v. United States (1951), 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118, lead to a conclusion that it would read broadly the right to invoke the privilege. And the Supreme Court of Ohio has taken the unequivocal position that "[a] witness may always claim as privileged that which tends to incriminate him." In re Frye (1951), 155 Ohio St. 345, 349, 44 O.O. 320, 322, 98 N.E.2d 798, 801.
Upon consideration of all the above authority as well as other cases cited by the parties and discovered by the court's independent research, the court concludes that Shepard's right to assert the privilege against self-incrimination as to any matters touching upon the transaction as to which he has been tried and convicted will not end at least until resolution of his appeals as of right. Any other rule would place Shepard and the court in one of several untenable positions.
Specifically, if the court were to hold that Shepard could be compelled to testify because he had no privilege against self-incrimination, and if Shepard's conviction were reversed upon appeal and a new trial granted, then testimony he gave in this case could be used against him at a second trial. Moreover, because there would be a judicial ruling that Shepard no longer had a privilege not to incriminate himself, he might be forced to testify against himself again in a trial of his own case.
The dilemma is particularly troubling when, as here, Shepard is presently exercising his automatic right under the statute and rules of this state to challenge the constitutional propriety of his initial conviction. Simply put, Shepard cannot be deprived of his constitutional protections due to a conviction which he has a right to challenge and has challenged as constitutionally infirm.
Accordingly, the court holds that the state's request for an order compelling Shepard to testify in the instant case must be denied and that the responsive motion and objections will be granted and sustained.
B
As to the state's suggestion of limited use immunity in return for Shepard's testimony, the court notes that immunity is a creature of statute. In enacting R.C. 2945.44, the legislature has set forth the circumstances under which a court may compel testimony from a witness in return for immunity. Specifically, the prosecutor must initially ask the court, in writing, to order testimony from the witness claiming the privilege against self-incrimination. Moreover, the reach of immunity provided pursuant to R.C. 2945.44 is far greater than the limited use immunity offered by the state in this case. R.C. 2945.44(B) provides:
"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 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."
In State v. Wical (May 17, 1978), Clinton App. No. 342, unreported, the court found no problem with a ruling that a witness who had filed a petition for post-conviction relief was entitled to avoid any ordered retrial altogether upon testimony following a grant of immunity pursuant to R.C. 2945.44. And in State v. Rescina (Nov. 6, 1991), Medina App. No. 2005, unreported, 1991 WL 231517, the court held that the R.C. 2945.44 grant of transactional immunity applied even when the witness allegedly lied on the witness stand. The lesson of these cases is that R.C. 2945.44 means what the legislature clearly says that it means and that it cannot be converted to a limited use immunity statute.
Nor does the court have inherent power to craft limited use immunity. The defendant sought just such a ruling in State v. Landrum (1990), 53 Ohio St.3d 107, 559 N.E.2d 710. The court forcefully rejected the option: "Ohio trial courts do not have authority to grant nonstatutory use immunity to a defense witness at an accused's request." Id. at 120, 559 N.E.2d at 725. While the request in Landrum was made by the accused, there is no principled reason to reach a different conclusion when the request is made by the state. Indeed, the right to compulsory process embodied in the Sixth Amendment to the United States Constitution and in Section 10, Article I, Ohio Constitution suggest that the request of a defendant should be accorded more, not less, deference than the request of the state.
It should be noted that the witness at issue in Landrum was, in fact, called by the state, although the request for immunity was the defendant's. R.C. 2945.44 no longer allows transactional immunity at the accused's request.
Of course, the state is free to pursue any efforts it may wish to negotiate with Shepard a waiver of his Fifth Amendment right. If he were to voluntarily accept the state's offer and waive his Fifth Amendment rights, this court would have no reason, under that Amendment, to refuse to let him testify. That issue, however, is not now before the court.
C
Because the court will not compel Shepard to testify, and because the court cannot grant Shepard the limited immunity the state urges, the court also rejects the state's request to call Shepard as its own witness pursuant to Evid.R. 614. If the state wishes Shepard to be called as a witness, it may call him. And, pursuant to the rulings set forth in Section IIA of this opinion, if Shepard attempts to invoke his privilege against self-incrimination, he will be allowed to do so.
So ordered.