Bailey, J.
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.
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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. …
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.” 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 …
Tunis then responded “I plead the fifth” to a direct question posed by the prosecuting attorney. 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. …
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.
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.
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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 testify so that, in order to effect justice, the truth surrounding the criminal incident may be discovered.” Id.
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) …
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) …
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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.” There is no doubt that Tunis’s subsequent refusal to answer constitutes direct contempt of court.
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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.” This was an adequate opportunity to make 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.”
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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.
Affirmed.
Riley, J., and Pyle, J., concur.