Contempt finding, 180-day sentence upheld against man who refused to testify

A man who was sentenced to six months in prison after refusing to testify at a theft and conspiracy trial has failed to convince the Indiana Court of Appeals to overturn the contempt finding against him.

Michael Leroy Tunis was summoned to testify at the December 2018 trial of Samuel Jude Clark, who was charged with theft, conspiracy to commit obstruction of justice, obstruction of justice and conspiracy to commit intimidation. In exchange for his testimony, the Tippecanoe Superior Court agreed to grant immunity to Tunis.

Once on the stand, Tunis immediately invoked his Fifth Amendment right to an initial question asking his name. The trial court then officially granted him use and derivative use immunity, but Tunis continued to plead the Fifth.

The court thus found Tunis in contempt, noting that the previous day, the judge had observed Tunis smile and nod at Clark. That gesture, the judge said, was being interpreted as a promise not to testify against Clark. Tunis was later sentenced to 180 days for his direct contempt.

On appeal in Michael Leroy Tunis v. State of Indiana, 19A-CR-220, Tunis challenged both the contempt finding and the 180-day sentence, both of which were upheld by the Court of Appeals.

Judge L. Mark Bailey, writing for the unanimous panel, said Tunis’ conduct was “undoubtably willful” given the trial court’s finding regarding his smile and nod to Clark. Further, Bailey noted the trial judge gave Tunis the opportunity to purge himself of contempt, but he continued to refuse to testify.

The appellate court also questioned Tunis’ argument that he was acting on advice of counsel, noting his counsel was not present in the courtroom, and Tunis did not make that argument on the stand. Tunis also challenged his sentence on the basis that he was acting on advice of counsel, asking the COA to reduce the sentence to 24 hours.

But “Tunis’s refusal to testify interfered with the prosecution of Clark for four felony offenses and undermined the trial court’s authority,” Bailey wrote. “This was a serious act of contempt.

“And,” Bailey continued, “after reviewing cases involving similar instances of contempt, we conclude that a 180-day sentence is reasonable and not inappropriate.”

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