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Tunis v. State

Court of Appeals of Indiana

July 16, 2019

Michael Leroy Tunis, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal 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

          Bailey, Judge.

         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 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 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 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 ...


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