Contempt Findings Against Schultz, In re, 4-581A4

Decision Date08 December 1981
Docket NumberNo. 4-581A4,4-581A4
Citation428 N.E.2d 1284
PartiesIn re The Matter of the CONTEMPT FINDINGS AGAINST John T. SCHULTZ During the Trial of State of Indiana v. Donald LaBine.
CourtIndiana Appellate Court

Curtis B. Eskew, Corydon, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Dan S. LaRue, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

Defendant-appellant John T. Schultz appeals from the trial court's order finding Schultz in contempt of the Harrison Circuit Court on twenty-seven (27) occasions and imposing three-month consecutive sentences on each contempt.

We affirm in part and reverse in part.

STATEMENT OF THE FACTS

On September 24, 1980, Schultz was called by the prosecution to testify at the murder trial of Donald LaBine. The previous month Schultz had been convicted of involuntary manslaughter and arson for his participation in the same crime for which LaBine was being prosecuted. At Schultz's trial, after taking the stand to testify in his own behalf, Schultz had identified LaBine as the person responsible for the victim's death. When subsequently called to testify at LaBine's trial, however, Schultz either refused to answer the State's questions, claiming his privilege against self-incrimination or, upon being threatened with contempt, was repeatedly plagued by a memory lapse.

The record intimates Schultz's recalcitrance reflected his bitterness at receiving a fifty-five year sentence for his convictions. Schultz believed seeking such a lengthy sentence evidenced a failure by the State to appreciate his cooperation in giving the testimony implicating LaBine; consequently, he had resolved to give no further such testimony. During Schultz's direct examination, he consistently invoked his privilege against self-incrimination in response to the State's questions.

In an effort to thwart his refusal to answer, the court granted Schultz immunity. He nevertheless continued to invoke his privilege whenever questioned about the events surrounding the victim's death or his own association with LaBine. Each refusal to answer was viewed by the trial court as a separate contemptuous act, and accordingly, Schultz was found guilty of contempt twenty-seven times. Schultz later made an effort to purge himself of these contempts by responding that he could not remember

rather than invoking his privilege. The trial court was not, however, persuaded that these responses represented a good faith effort to answer the State's questions; therefore, Schultz's twenty-seven contempt citations remained unpurged. Based upon the record, it appears the trial court was justified in finding Schultz was in fact, although not in form, still refusing to testify. See People ex rel. Cirillo v. Warden of City Prison, Brooklyn, (1962) 11 N.Y.2d 51, 181 N.E.2d 424, 226 N.Y.S.2d 398.

ISSUES

On appeal Schultz contends:

I. The grant of immunity extended to him was insufficient because he was never offered "absolute immunity" in that he was not protected from further prosecution in other jurisdictions or for perjury;

II. It was erroneous for the court to conclude Schultz committed twenty-seven separate acts of contempt rather than viewing his refusals as one continuous contemptuous act, and

III. The trial court erred by failing to make a written statement describing Schultz's acts of contempt as required by Ind.Code 34-4-7-7.

DISCUSSION AND DECISION

Issue I. Extent of immunity granted

Schultz maintains the immunity extended to him was not sufficient because it afforded no protection from prosecution in other jurisdictions or for perjury. While a grant of immunity may, indeed, be drafted broadly enough to protect an individual from future prosecution for crimes about which he is compelled to testify, we find Indiana's immunity statute, Ind.Code 35-6-3-1, does not extend this protection but, commensurately, that such protection is not constitutionally mandated.

The power to compel persons to testify is firmly entrenched in our system of jurisprudence; yet, this power is not absolute. It remains tempered by a number of exceptions, one of which is the Fifth Amendment privilege against compulsory self-incrimination. Kastigar v. United States, (1972) 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212. This constitutional privilege protects witnesses from the harsh trilemma of self-accusation, perjury, or contempt, Murphy v. Waterfront Comm'n, (1964) 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 by providing that no person may be compelled to render testimony which shows him guilty of any offenses; therefore, Schultz could properly refuse to answer any potentially incriminating questions. 1 This right to remain silent was not, however, inviolable. It is recognized there must be an accommodation between the legitimate demands of the government to compel testimony and the imperatives of the constitutional privilege, Lefkowitz v. Turley, (1973) 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274; Kastigar, supra ; 81 Am.Jur.2d Witnesses § 54 (1976); consequently the court was empowered to strip Schultz of this constitutional privilege and compel his testimony by clothing him with immunity which protected him from being prosecuted based upon any inculpatory evidence he rendered. If the court extended immunity to Schultz that was co-extensive with the scope of his privilege, this would effectively supplant his privilege and compel Schultz to testify.

Schultz argues the immunity he received was insufficient to abridge his privilege because it was not "absolute immunity" since he remained subject to further prosecution, specifically, prosecution in other jurisdictions or prosecution for perjury. We agree with Schultz that pursuant to Ind.Code 35-6-3-1, he was subject to further prosecution, but we reject his argument that this immunity was therefore constitutionally infirm.

When a witness testifies under the auspices of an immunity act, the extent of the immunity granted has significant ramifications for the witness as well as the government. If the witness receives transactional immunity he will be secure from any future indictment or conviction for the offenses to which his compelled testimony relates; transactional immunity, in effect, operates as a complete pardon for the offenses disclosed by the witness' testimony. An award of use immunity, however, simply prohibits prosecutorial authorities from using compelled testimony in any respect but does not proscribe future prosecutions. Kastigar v. United States, (1972) 406 U.S. 441, 453, 92 S.Ct. 1653, 1661, 32 L.Ed.2d 212; 81 Am.Jur.2d Witnesses § 59 (1976).

Indiana's immunity statute, Ind.Code 35-6-3-1 provides in pertinent part:

"If, but for this section the witness would have been privileged to withhold the answer given or the evidence produced, he shall not be prosecuted or subjected to penalty or forfeiture for or on account of any answer given or evidence produced: Provided, further, That such immunity shall not be allowed in the case of any perjury, false swearing or contempt committed in answering, or failing to answer, or in producing, or failing to produce, evidence in accordance with the order of the court." (Emphasis added.)

Although the legislature did not expressly identify which form of immunity it intended to create by enacting Ind.Code 35-6-3-1, since the standard language employed in transactional statutes prohibits prosecution for any offense to which the compelled testimony relates, Kastigar, supra, at 453, 92 S.Ct. at 1661; Uniformed Sanitation Men Ass'n, Inc. v. Commissioner of Sanitation of City of New York, (2 Cir. 1970) 426 F.2d 619, whereas Ind.Code 35-6-3-1 permits prosecution for any offenses provided the prosecution is not instituted because of any answer given by the witness, we find this statutory language must be construed as vesting witnesses only with use immunity. Worthington v. State, (1979) Ind.App., 391 N.E.2d 1164; Kerr, Survey of Recent Developments in Indiana Law, VI. Criminal Procedure, 7 Ind.L.Rev. 112, 134 (1973).

In reaching this conclusion, we are mindful that our immunity statute was patterned after the MODEL STATE WITNESS IMMUNITY ACT, 9C Uniform Laws Ann. 206 (1957), which is a transactional immunity statute. State ex rel. Pollard v. Criminal Court of Marion County, Division One, (1975) 263 Ind. 236, 329 N.E.2d 573, 591. However, while the Model Act may have supplied the initial blueprint, it must be noted that our legislature made some critical modifications which we believe transformed our statute into a use rather than a transactional immunity statute. See Kerr, Survey of Recent Developments in Indiana Law, VIII. Criminal Law and Procedure, 9 Ind.L.Rev. 160, 177 (1975).

The Model Act followed the language traditionally employed in transactional statutes by providing that witnesses "shall not be prosecuted or subjected to penalty or forfeiture for or on account of any transaction, matter or thing concerning which, in accordance with the order, he gave answer or produced evidence." (Emphasis added.) See, e.g., Reina v. United States, (1960) 364 U.S. 507, 81 S.Ct. 260, 5 L.Ed.2d 249; Uniform Sanitation Men Ass'n, Inc. v. Commissioner of Sanitation of City of New York, (2 Cir. 1970) 426 F.2d 619. This statutory language plainly operates as a complete prohibition upon any prosecution for offenses to which the witness' testimony relates. Indiana's immunity statute, on the other hand, permits prosecution for any offenses, including offenses about which the witness has been compelled to testify, provided there is no prosecution "for or on account of any answer given or evidence produced." Thus, Ind.Code 35-6-3-1 does not shelter Schultz from further prosecution; it simply entitles him not to be put to disadvantage in a subsequent trial by reason of his compelled testimony. We, therefore, conclude Schultz is correct when he asserts the immunity granted to him did not protect him...

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