from the Tippecanoe Superior Court The Honorable Kristen E.
McVey, Judge Trial Court Cause No. 79D05-1812-MC-1392.
Attorney for Appellant Caroline B. Briggs Lafayette, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana George P. Sherman Supervising Deputy Attorney
General Indianapolis, Indiana
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.
Tunis presents two issues for our review, which we restate
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
and Procedural History
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 F6-589"). Tunis was summoned to testify at
Clark's trial, set to begin on December 20,
2018. 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.
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 use immunity under Indiana
Code section 35-37-3-3. 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
(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 opportunity to purge
yourself of contempt meaning escape contempt by agreeing to
(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
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 ...