                                                                                FILED
                                                                            Jul 16 2019, 8:45 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Caroline B. Briggs                                          Curtis T. Hill, Jr.
Lafayette, Indiana                                          Attorney General of Indiana
                                                            George P. Sherman
                                                            Supervising Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Leroy Tunis,                                        July 16, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-220
        v.                                                  Appeal from the Tippecanoe Superior
                                                            Court
State of Indiana,                                           The Honorable Kristen E. McVey,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            79D05-1812-MC-1392



Bailey, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019                                    Page 1 of 14
                                            Case Summary
[1]   Michael Leroy Tunis (“Tunis”) was found in direct contempt of court after

      refusing to testify as a witness in the trial of Samuel Jude Clark (“Clark”),

      despite the trial court’s grant of immunity. The trial court sentenced him to 180

      days executed in the Tippecanoe County Jail. Tunis appeals the court’s finding

      of contempt and sentence. We affirm.



                                                      Issues
[2]   Tunis presents two issues for our review, which we restate as:


              I.       Whether the trial court abused its discretion in finding
                       Tunis was in direct contempt of court for refusing to testify
                       after the court granted him use immunity and derivative
                       use immunity under Indiana Code section 35-37-3-3.


              II.      Whether Tunis’s 180-day sentence was reasonable and not
                       inappropriate.


                             Facts and Procedural History
[3]   Clark was charged with theft, conspiracy to commit obstruction of justice,

      obstruction of justice, conspiracy to commit intimidation, and was alleged to be

      a habitual offender under trial court cause number 79D05-1706-F6-589 (“cause




      Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019             Page 2 of 14
      F6-589”).1 Tunis was summoned to testify at Clark’s trial, set to begin on

      December 20, 2018.2 On December 19, the trial court held a pre-trial hearing to

      discuss the prosecuting attorney’s intent to request the court grant Tunis

      immunity in exchange for his trial testimony. During the hearing, the court

      noted defense counsel’s objections on “fifth amendment grounds” and because

      counsel was unable to advise his client without knowing more about “what the

      questioning will involve[.]” (Tr. 5-6.) Counsel also expressed concern that any

      immunity granted in state court would not extend to federal prosecution.

      During a break, the court allowed defense counsel and the prosecutor to confer

      regarding the line of questioning. After resuming the hearing, the trial court

      indicated that it intended to grant Tunis immunity. However, it remained

      unresolved whether he would in fact testify the next day.


[4]   On the day of trial, Tunis was sworn as a witness. When asked to state his

      name, Tunis indicated he planned to invoke his constitutional privilege against

      self-incrimination by stating “I plead the fifth.” (Tr. 11.) The prosecuting

      attorney then requested that the court grant Tunis use immunity and derivative




      1
       In the information, Tunis was alleged to be a co-conspirator on the two conspiracy charges, but was not a
      co-defendant in the case.
      2
          A copy of the summons is not included in the record on appeal, and it is unclear when Tunis was served.


      Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019                                  Page 3 of 14
use immunity under Indiana Code section 35-37-3-3.3 The trial court granted

the prosecuting attorney’s request and instructed Tunis in part


        . . . that any evidence that you give before this court . . . or
        evidence derived from the evidence may not be used in any
        criminal proceeding against you . . . . You are further instructed
        that you must answer the questions asked that you would have
        been privileged to refuse to answer and produce those items
        requested that you would have been privileged to withhold but
        for this order pursuant to the privilege against self-incrimination.


(Tr. 12.) Tunis then responded “I plead the fifth” to a direct question posed by

the prosecuting attorney. (Tr. 13.) As a result, the court found Tunis in direct

contempt of court and advised Tunis as follows:


        . . . I’m instructing my court reporter to reduce to writing the
        following information: that the court observes that witness
        Michael Tunis is refusing to testify and under Indiana code 34-
        47[-]2-2 (1), I am finding that he is refusing to testify in a trial
        proceeding. I am further taking judicial notice of the hearing
        held yesterday regarding this exact matter and that the court
        observed that as Michael Tunis walked by defendant Clark, that
        Mr. Tunis looks down at Clark and gave a smile and a very slight
        nod to which the defendant responded and all of which the core
        [sic] interprets as a message that I will not testify or I will refuse
        this court’s order. These are the specific findings needed to be
        issued in a rule to show cause in [sic] I’m finding you in direct
        contempt of this court. Mr. Tunis, I’m going to give you the




3
  The prosecutor presented written copies of the request and a proposed order to Tunis and the court,
indicating she intended to file them that day. The chronological case summary of cause F6-589 indicates
both were filed on December 20.

Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019                               Page 4 of 14
              opportunity to purge yourself of contempt meaning escape
              contempt by agreeing to testify.


      (Tr. 13.) After Tunis again declined to testify, the court sentenced him to one

      year in the Tippecanoe County Jail without credit time, consecutive to any and

      all other sentences.


[5]   On December 28, 2018, the trial court reduced its finding of contempt to a

      written order. The court also reconsidered and revised Tunis’s sentence to 180

      days executed in the Tippecanoe County Jail, without good time credit, to run

      consecutively to any other sentences imposed.



                                  Discussion and Decision
                                                   Contempt
[6]   Contempt of court “is a sui generis proceeding neither civil nor criminal in

      nature, although both of those labels are used to describe certain categories of

      contempt.” State v. Heltzel, 552 N.E.2d 31, 33 (Ind. 1990). “It is soundly within

      the discretion of the trial court to determine whether a party is in contempt, and

      we review the judgment under an abuse of discretion standard.” Witt v. Jay

      Petroleum, Inc., 964 N.E.2d 198, 202 (Ind. 2012). An abuse of discretion occurs

      “when the trial court’s decision is against the logic and effect of the facts and

      circumstances before it.” Meyer v. Wolvos, 707 N.E.2d 1029, 1031 (Ind. Ct.

      App. 1999), trans. denied. Moreover, in reviewing direct contempt proceedings,

      we “accept as true the statement entered of record by the lower court of the


      Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019           Page 5 of 14
      matter constituting the contempt,” and “interfere with the judgment only where

      it clearly appears alleged acts do not constitute contemptuous acts.” In re Caito,

      459 N.E.2d 1179, 1182 (Ind. 1984), reh’g denied.


[7]   “Direct contempt involves actions occurring near the court, interfering with the

      business of the court, of which the judge has personal knowledge.” Hopping v.

      State, 637 N.E.2d 1294, 1296 (Ind. 1994), cert. denied. Any person who “is

      sworn to testify as a witness, in any trial or proceeding, in any court of record,

      and refuses to testify in the trial or proceeding . . . is considered guilty of a direct

      contempt of court.” Ind. Code § 34-47-2-2(1). Though specified by statute, the

      power of courts to summarily punish for direct criminal contempt rests upon

      the common law and is inherent in the courts. Hopping, 637 N.E.2d at 1296.

      Ultimately,


              [c]ontempt of court involves disobedience of a court which
              undermines the court’s authority, justice, and dignity. Any act
              related to a current or pending proceeding which tends to deter
              the court from the performance of its duties may support a
              contempt proceeding. Any act which manifests a disrespect and
              defiance of a court may constitute direct criminal contempt.


      Id. at 1297 (citations omitted).


[8]   Our constitutions protect persons accused of crimes from being compelled to

      testify against themselves. U.S. Const. amend. V; Ind. Const. art. 1, § 14; In re

      S.H., 984 N.E.2d 630, 633 (Ind. 2013). However, the privilege against self-

      incrimination is not absolute. In re Caito, 459 N.E.2d at 1182. It “must be

      balanced against the government’s legitimate demands to compel citizens to
      Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019              Page 6 of 14
      testify so that, in order to effect justice, the truth surrounding the criminal

      incident may be discovered.” Id.


[9]   Our legislature has empowered prosecutors to compel witnesses to testify, thus

      “tipping the scales in the government’s favor.” In re S.H., 984 N.E.2d at 633

      (citing I.C. §§ 35-37-3-1 et seq. (witness immunity in trials and hearings) and I.C.

      §§ 35-34-2-1 et seq. (grand jury and special grand jury proceedings)).


              To bring them back into balance, such compulsion must be
              accompanied by a grant of witness immunity “coextensive with
              the scope of the privilege.” In re Caito, 459 N.E.2d at 1182.
              Critically, the immunity must place the witness “in substantially
              the same position as if he had properly exercised his privilege to
              remain silent.” Id.


      Id. As to types of witness immunity, our supreme court has explained:


              Three types of immunity may be granted a witness in exchange
              for his testimony: (1) transactional immunity: which prohibits the
              State from criminally prosecuting the witness for any transaction
              concerning that to which the witness testifies; (2) use immunity:
              where the testimony compelled of the witness may not be used at
              a subsequent criminal proceeding; and (3) derivative use immunity:
              whereby any evidence obtained as a result of the witness’[s]
              compelled testimony may not be admitted against him in a
              subsequent criminal prosecution.


      In re Caito, 459 N.E.2d at 1182-83 (citing Kastigar v. United States, 406 U.S. 441

      (1972); In re Schultz, 428 N.E.2d 1284 (Ind. Ct. App. 1981), reh’g denied).

      “[I]mmunity from use and derivative use is coextensive with the scope of the

      privilege against self-incrimination” and “sufficient to compel testimony over a

      Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019             Page 7 of 14
       claim of the privilege.” Kastigar, 406 U.S. at 453. Thus, statutes that compel

       the testimony of target witnesses in exchange for both use immunity and

       derivative use immunity are constitutional. In re Caito, 459 N.E.2d. at 1183.


[10]   Indiana Code chapter 35-37-3 governs witness immunity in a hearing or trial.

       Section 35-37-3-2 provides that “[i]f the court determines that the witness, based

       upon his privilege against self-incrimination, may properly refuse to answer a

       question or produce an item, the prosecuting attorney may make a written

       request that the court grant use immunity to the witness . . . .” Section 35-37-3-

       3 provides:


               (a) Upon request of the prosecuting attorney, the court shall grant
               use immunity to a witness. The court shall instruct the witness,
               by written order or in open court, that any evidence the witness
               gives, or evidence derived from that evidence, may not be used in
               any criminal proceeding against that witness, unless the evidence
               is volunteered by the witness or is not responsive to a question by
               the prosecuting attorney. The court shall instruct the witness that
               the witness must answer the questions asked and produce the
               items requested.


               [. . . .]


               (c) If a witness refuses to give the evidence after the witness has
               been granted use immunity, the court may find the witness in
               contempt.


       The language of Indiana Code section 35-37-3-3(a) encompasses a grant of both

       use immunity and derivative use immunity. See Wilson v. State, 988 N.E.2d

       1211, 1220 (Ind. Ct. App. 2013) (holding that the defendant was granted both

       Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019              Page 8 of 14
       use immunity and derivative use immunity when the trial court granted

       immunity under Indiana Code section 35-37-3-3(a)).


[11]   Under the statutes, if a witness in a trial invokes his privilege against self-

       incrimination and refuses to testify, the trial court shall, on the prosecuting

       attorney’s request, grant the witness use immunity and derivative use immunity

       and instruct the witness accordingly. If the witness then refuses to testify, the

       court may find him in contempt. This is exactly what happened here. After

       Tunis invoked his privilege against self-incrimination, the trial court granted

       him use and derivative use immunity in accordance with the statute. The

       immunity granted was co-extensive with the scope of Tunis’s right against self-

       incrimination. The court then instructed Tunis: “[Y]ou must answer the

       questions asked that you would have been privileged to refuse to answer and

       produce those items requested that you would have been privileged to withhold

       but for this order pursuant to the privilege against self-incrimination.” (Tr. 12.)

       There is no doubt that Tunis’s subsequent refusal to answer constitutes direct

       contempt of court.


[12]   Nevertheless, Tunis argues that he was not in direct contempt of court because

       he reasonably relied on the advice of his counsel when he refused to testify. He

       claims that “[r]reliance on advice of counsel should not establish willful

       contempt.” (Appellant’s Br. 13.)


[13]   First, it is unclear whether Tunis did rely on his counsel’s advice. At the pre-

       trial hearing, counsel raised concerns and objections about (1) the scope of


       Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019             Page 9 of 14
       immunity as it related to Tunis’s Fifth Amendment rights; (2) the line of

       questioning the prosecuting attorney intended to pursue; and (3) the impact

       Tunis’s testimony may have on potential federal criminal prosecution.4 The

       general thrust of counsel’s argument was that he did not have adequate time to

       thoroughly research these issues. But at trial the next day, Tunis did not

       indicate he was acting on the advice of counsel, and counsel was not present to

       renew these arguments.


[14]   Yet even if Tunis relied on his counsel’s advice, his argument that his conduct

       was not willful is unpersuasive. This Court has previously held that the trial

       court did not abuse its discretion in finding a witness in contempt when, acting

       explicitly on the advice of counsel, the witness asserted the right against self-

       incrimination and refused to testify in a deposition despite the trial court’s grant

       of immunity under Indiana Code section 35-37-3-3. Wilson, 988 N.E.2d at

       1221. Moreover, as our supreme court has observed, “[t]he trial court possesses

       unique knowledge of the parties before it and is in the best position to determine

       . . . whether a party’s disobedience of the order was done willfully.” Witt, 964

       N.E.2d at 203. When finding Tunis in direct contempt, the trial court took

       judicial notice of Tunis’s smile and nod to Clark at the pre-trial hearing, which




       4
         The U.S. Supreme Court has adopted an exclusionary rule to protect state witnesses from prosecution
       under federal law, holding that “a state witness may not be compelled to give testimony which may be
       incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner
       by federal officials in connection with a criminal prosecution against him.” Murphy v. Waterfront Comm’n of
       N.Y. Harbor, 378 U.S. 52, 79 (1964), overruled in part on other grounds by United States v. Balsys, 524 U.S. 666
       (1998).

       Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019                                    Page 10 of 14
       the court “interpret[ed] as a message that I will not testify or I will refuse this

       court’s order.” (Tr. 13.) In reducing the order on contempt to writing, the

       court described Tunis’s conduct as “further proof that his refusal to testify was

       intentional and firm.” (App. Vol. II 6.) Based on the trial court’s findings,

       Tunis’s disobedience of the court’s order to testify was undoubtably willful.


[15]   Tunis next argues that we should reverse this court’s finding of contempt

       because “he was not provided an opportunity pursuant to I.C. 34-47-2-4 to

       respond to the contempt finding.” (Appellant’s Br. 17.) We disagree. When

       entering an order on contempt, the statute directs the trial court to “distinctly

       state the act, words, signs, gestures, or other conduct of the defendant that is

       alleged to constitute the contempt” and reduce the statement to writing. I.C. §

       34-47-2-4(b). Further:


               A statement described in subsection (b), shall be substantially set
               forth in the order of the court on the contempt, together with any
               statement made in explanation, extenuation, or denial of the
               contempt, which the defendant may make in response to the
               judge’s statement.


       I.C. § 34-47-2-4(c). Thus, the statute requires a court to include in the written

       order on contempt any statement by the defendant, if the defendant makes one.


[16]   Here, Tunis was given the chance to respond to the court’s contempt finding

       when the court provided him the opportunity to purge himself of contempt.

       Tunis made no explanation, extenuation, or denial, but responded: “I’m not

       going to testify, ma’am.” (Tr. 13.) This was an adequate opportunity to make


       Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019            Page 11 of 14
       any statement described in Indiana Code section 34-47-2-4. And the trial court

       properly reduced Tunis’s response to writing when it found in its written order

       that “Tunis was given an opportunity to explain, testify and purge himself of

       contempt” and “again refused to testify in both words and in action by shaking

       his head in the negative.” (App. Vol. II 6.)


[17]   The trial court did not abuse its discretion in finding Tunis in direct contempt of

       court.


                                                      Sentence
[18]   Although the trial court initially sentenced Tunis to one year executed in the

       Tippecanoe County Jail, the court revised the sentence to 180 days when it

       entered the written order on contempt.5 Tunis now argues that his 180-day

       sentence for direct contempt of court was inappropriate, chiefly because he was

       acting on counsel’s advice. Based on the facts of Skolnick v. State, 388 N.E.2d

       1156, 1161 (Ind. Ct. App. 1979), trans. denied, in which the trial court imposed a

       sentence of twenty-four hours incarceration for each instance of contumacious




       5
         It is apparent that the trial court did not consider Tunis’s refusal to testify a petty violation, but a more
       serious offense that merited an executed sentence of one year. Nevertheless, it appears the court on further
       reflection revised the sentence to 180 days, not because 180 days is the maximum sentence it could have
       levied for contempt of court, but because six months is the maximum a court may lawfully impose without
       the additional delay and expense associated with a jury trial. See Holly v. State, 681 N.E.2d 1176, 1177 (Ind.
       Ct. App. 1997) (holding that a trial court may sentence a person found to be in criminal contempt for up to
       six months imprisonment without guilt or innocence being determined by a jury). On appeal, Tunis does not
       challenge the lawfulness of his sentence, but asks us to review and revise it pursuant to Appellate Rule 7(B).

       Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019                                 Page 12 of 14
       conduct, Tunis asks us to exercise our constitutional authority to revise his

       sentence to one twenty-four-hour period of jail time.


[19]   Article 7, Section 6 of the Indiana Constitution grants this Court authority to

       independently review and revise a sentence imposed by the trial court. To

       implement this grant of authority, Indiana Appellate Rule 7(B) provides: “The

       Court may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” Ind.

       Appellate Rule 7(B).


[20]   In Jones v. State, 847 N.E.2d 190 (Ind. Ct. App. 2006), trans. denied, we discussed

       the standard for reviewing sentences imposed after a finding of contempt. As

       we noted there, it is unclear whether Appellate Rule 7(B)—which pertains to

       sentences “authorized by statute”—should apply in reviewing contempt

       sentences since the statute setting out the punishment for contempt was

       repealed in 1987. Id. at 201-02. We also observed that, since the statute’s

       repeal, Indiana courts have reviewed sentences for contempt under both a

       “reasonableness” and “manifestly unreasonable” standard. Id at 202. As in

       Jones, we need not decide which test to apply, because whether we review

       Tunis’s sentence under the inappropriate, manifestly unreasonable, or simple

       reasonableness standard, his sentence of 180 days does not warrant revision.


[21]   Tunis’s refusal to testify interfered with the prosecution of Clark for four felony

       offenses and undermined the trial court’s authority. This was a serious act of


       Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019          Page 13 of 14
       contempt. And, after reviewing cases involving similar instances of contempt,

       we conclude that a 180-day sentence is reasonable and not inappropriate. See,

       e.g., In re Cudworth, 815 N.E.2d 1019, 1023 (Ind Ct. App. 2004) (holding that

       defendant’s six-month sentence was appropriate where the defendant refused to

       testify after a grant of immunity under Indiana Code section 35-37-3-3); In re

       Gardner, 713 N.E.2d 346, 348 (Ind. Ct. App. 1999) (sentence of three years for

       defendant’s refusal to testify after the trial court’s grant of use immunity was

       “proportioned to the nature of the offense of criminal contempt” and “adequate

       both to vindicate the authority of the trial court and to punish [the defendant]

       for his contempt”); In re Steelman, 648 N.E.2d 366, 369 (Ind. Ct. App. 1995)

       (sentence of one year was reasonable where defendant refused to testify after the

       trial court’s grant of use and derivative use immunity).



                                                 Conclusion
[22]   The trial court did not abuse its discretion in finding Tunis in direct contempt of

       court. Tunis’s 180-day sentence is reasonable and not inappropriate.


[23]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-220 | July 16, 2019         Page 14 of 14
