BROWN, Judge.
Christie Wilson appeals the trial court's order finding her in contempt. Wilson raises one issue which we revise and restate as whether the trial court abused its discretion when it found her in contempt. On cross-appeal, the State argues that this court does not have jurisdiction and that this case is moot because Wilson did not timely appeal the trial court's order granting her immunity. We affirm.
On April 11, 2012, the State charged Nathan Schultz with two counts of burglary and eighteen counts of theft under cause number 88D01-1204-FB-256 ("Cause No. 256"). That same day, the State charged Wilson with burglary, theft, two counts of receiving stolen property, and being an habitual offender under cause number 88D01-1204-FB-257. On September 10, 2012, Wilson pled guilty to theft as a class D felony and receiving stolen property as a class D felony, and the other charges were dismissed. The court sentenced Wilson to three years for each offense and ordered that the sentences be served consecutive to each other for an aggregate sentence of six years.
In November 2012, the State filed a motion for grant of use immunity for Wilson in Cause No. 256.
Appellant's Appendix at 6.
That same day, a deposition of Wilson occurred at which Wilson, her attorney, a deputy prosecutor, and Schultz's attorney were present. Wilson acknowledged that she had received a copy of the Order Granting Use Immunity. Wilson indicated that she would not be willing to answer questions, and her attorney stated that Wilson was willing to answer basic questions, but "as to anything involving any type of criminal activity or dealings with Mr. Schultz or otherwise, [Wilson] does intend to assert her Fifth Amendment of the U.S. Constitution and ... rights as well as ... Article 1, Section 14 of the Indiana Constitution, those rights to not self-incriminate." Id. at 9. Wilson's attorney also stated that they "take issue with the Order Granting Use Immunity as being... overly specific and not broad enough to actually provide the protections that those ... constitutions provide." Id.
Schultz's counsel then asked Wilson some questions, and Wilson stated that she was currently residing at the Rockville Correctional Facility for receiving stolen property and aiding in a theft and that those charges were directly related to Schultz. However, Wilson asserted her rights under the Fifth Amendment when asked whether Schultz brought her property that led to her arrest for receiving stolen property. The prosecutor then asked Wilson some questions, and Wilson indicated that she understood that the Order Granting Use Immunity provided that she would not be prosecuted for involvement in any crimes that she speaks about and that she could be found in contempt for refusing to answer. When asked why she did not want to testify, Wilson stated: "On advice of the counsel, I respectfully refuse to answer and hereby assert my rights under the 5th Amendment." Id. at 12.
On November 20, 2012, the State filed a Motion to Set Hearing on Contempt against Wilson. On November 30, 2012, the court held a hearing on the contempt allegation against Wilson, heard arguments, and found that Wilson was guilty of contempt. On December 5, 2012, the trial court entered an order regarding Wilson's contempt. The court notified Wilson that she may purge herself of the contempt by testifying truthfully in a deposition before 12:00 p.m. on December 14, 2012, and that if she did not purge herself of the contempt that she is ordered to serve "6 months (actual) at the Washington County Jail consecutive to any other sentence she is now ordered to serve." Id. at 16. On January 3, 2013, Wilson filed a notice of appeal from the December 5, 2012 order.
Wilson argues that she did not willfully violate the court's order, but merely asserted her Fifth Amendment rights. She asserts that the Fifth Amendment to the
The State argues that Wilson attempts to challenge the non-jurisdictional merits of the trial court's November 8, 2012 order that she appear and testify at a deposition in Cause No. 256. The State asserts that Wilson forfeited her right to appeal the merits of the November 8, 2012 order because she did not appeal that order according to the Rules of Appellate Procedure. The State contends that "[s]ince Wilson does not challenge the trial court's finding that she is in contempt for failing to obey the November 8, 2012 order, there are no issues for this Court to review." Appellee's Brief at 6. The State further maintains that even if Wilson could challenge the November 8, 2012 order, she has failed to demonstrate the merits of her claim.
We first address the State's argument that this court does not have jurisdiction and that this case is moot because Wilson did not timely appeal the trial court's November 8, 2012 Order Granting Use Immunity. The State cites City of Gary v. Major, 822 N.E.2d 165 (Ind.2005); and Witt v. Jay Petroleum, Inc., 964 N.E.2d 198 (Ind.2012), reh'g denied. In Major, the City of Gary appealed a trial court's finding of contempt and a corresponding award of monetary damages. 822 N.E.2d at 167. The Court held:
Id. at 169-170 (citations and footnote omitted). The Court then emphasized that the City did not appeal the trial court's original order of January 17th, which declared null and void all towing contracts entered by the City Council and ordered the executive branch of the City of Gary to establish a procedure for the bidding and awarding of towing contracts, and held that "we are not presented with any question about the merits of the order or whether it was correct." Id. at 170. The Court observed that the "only issue is whether there was sufficient evidence before the trial court to demonstrate that the City was in willful disobedience of the trial court's order." Id.
In Witt, John Witt, HydroTech Corp., and attorney Mark Shere were held in contempt of court for violating the terms of a temporary restraining order. 964 N.E.2d at 200. On appeal, the appellants argued that the temporary restraining order "was issued `under an incorrect legal standard' and that this `moots' the finding of contempt for violating its terms." 964 N.E.2d at 203. The Court held:
Id. (footnote omitted). The Court then addressed the appellants' arguments regarding whether the trial court abused its discretion in finding and punishing the contempt. Id. at 203-204.
In the present case, we observe that Wilson's notice of appeal indicated that she was appealing the December 5, 2012 order. Wilson phrases the issue as "whether or not the State of Indiana may compel testimony from [Wilson], who invokes the Federal and State Fifth Amendment privileges against compulsory self-incrimination." Appellant's Brief at 1. Under the statement of the case, Wilson states: "This is an appeal of the trial court's contempt finding, conviction and
We now turn to whether the trial court abused its discretion when it found Wilson in contempt. Contempt is a "sui generis proceeding neither civil nor criminal in nature, although both of those labels are used to describe certain categories of contempt." State v. Heltzel, 552 N.E.2d 31, 33 (Ind.1990). Contempt proceedings may be generally categorized as civil or criminal, according to the nature and purpose of the sanction imposed. Jones v. State, 847 N.E.2d 190, 199 (Ind.Ct.App. 2006), reh'g denied, trans. denied. A civil contempt is a violation of a court order resulting in a proceeding for the benefit of the aggrieved party. Id. As such, any type of penalty in a civil contempt proceeding must be coercive or remedial in nature. Id. By contrast, a criminal contempt is an act directed against the dignity and authority of the court that obstructs the administration of justice and tends to bring the court into disrepute. Id. Accordingly, a criminal contempt sanction is punitive in nature because its purpose is to vindicate the authority of the court, and it benefits the State rather than the aggrieved party.
Contempt may also be direct or indirect. Jones, 847 N.E.2d at 199. Direct contempt involves action in the presence of the court, such that the court has personal knowledge of it. Id. Indirect contempt undermines the orders or activities of the court but involves action outside the trial court's personal knowledge. Id. Here, the parties agree that the alleged contempt is indirect because Wilson's failure to answer the questions at the deposition took place away from the courtroom and outside the personal knowledge of the trial court. See Ind.Code § 34-47-3-1 ("A person who is guilty of any willful disobedience of any process, or any order lawfully issued ... by any court of record ... is guilty of an indirect contempt of the court that issued the process or order.").
A party that is willfully disobedient to a court's order may be held in contempt of court. Witt, 964 N.E.2d at 202. It is soundly within the discretion of the trial court to determine whether a party is in contempt, and we review the judgment under an abuse of discretion standard. Id. We will reverse a trial court's finding of contempt only if there is no evidence or inference therefrom to support the finding. Id. Contempt of court involves disobedience which undermines the court's authority, justice, and dignity. Id. The trial court has the inherent power to maintain its dignity, secure obedience to its process and rules, rebuke interference with the conduct of business, and punish
The Indiana Supreme Court recently held that "[o]ur General Assembly has empowered prosecutors to compel witnesses to testify, tipping the scales in the government's favor." In re S.H., 984 N.E.2d 630, 633 (Ind.2013) (citing Ind. Code §§ 35-37-3-1 et seq. (2008); 35-34-2-1 et seq. (2008)). "To bring them back into balance, such compulsion must be accompanied by a grant of witness immunity `coextensive with the scope of the privilege.'" Id. (quoting In re Caito, 459 N.E.2d 1179, 1182 (Ind.1984), cert. denied, 469 U.S. 805, 105 S.Ct. 62, 83 L.Ed.2d 13 (1984), reh'g denied). "Critically, the immunity must place the witness `in substantially the same position as if he had properly exercised his privilege to remain silent.'" Id. (quoting Caito, 459 N.E.2d at 1182).
Three types of immunity may be granted a witness in exchange for her testimony. Caito, 459 N.E.2d at 1182. Transactional immunity prohibits the State from criminally prosecuting the witness for any transaction concerning that to which the witness testifies. Id. at 1182-1183. Use immunity prohibits use at a subsequent criminal proceeding of testimony compelled of the witness. Id. at 1183. Derivative use immunity prohibits admission against a witness in a subsequent criminal prosecution of evidence obtained as a result of the witness's compelled testimony. Id.
"Conferring transactional immunity upon a witness is undoubtedly coextensive with his Fifth Amendment privilege since the compelled testimony can never be used against the witness in any criminal proceedings." Id. "This type of immunity grants the same degree of protection to a citizen ordered to testify as though he had not testified at all." Id.
The grant of use immunity alone cannot give a witness protection equivalent to the Fifth Amendment privilege. Id. The shortcoming of use immunity is that, although the compelled testimony cannot be admitted against the witness in a subsequent prosecution, other evidence derived from that testimony can. Id. Use immunity per se cannot protect an individual's right not to give evidence against herself because the compelled testimony may still be employed by investigators who have thereby gained a knowledge of the details of the crime and other sources of incriminating evidence. Id. Use immunity cannot alone provide protection coextensive with the Fifth Amendment right because the witness would have done less damage to his defense through claiming the privilege, than by testifying with immunity. Id.
Ind.Code § 35-37-3-3(a) governs witness immunity and provides that "any evidence the witness gives, or evidence derived from that evidence, may not be used in any criminal proceeding against
Appellant's Appendix at 6 (emphasis added). Based upon the language in Ind.Code § 35-37-3-3(a) and the trial court's order granting immunity, we conclude that Wilson was granted both use immunity and derivative use immunity.
The United States Supreme Court has decided that statutes which compel the testimony of target witnesses in exchange for both use immunity and derivative use immunity are constitutional even when they allow subsequent perjury prosecutions arising from false immunized testimony. In re Caito, 459 N.E.2d at 1183 (citing Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972)). In Kastigar, the United States Supreme Court stated:
406 U.S. at 453, 92 S.Ct. at 1661 (footnote omitted). The Court in Kastigar also held that "immunity from use and derivative use `leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege' in the absence of a grant of immunity." Id. at 458-459, 92 S.Ct. at 1664 (quoting Murphy v. Waterfront
With respect to Wilson's argument that "under the Indiana Constitution transactional immunity should be the only true protection," we disagree. In Caito, the appellant had refused to testify claiming his privilege against self-incrimination under the Fifth Amendment as well as Article 1, Section 14 of the Indiana Constitution. 459 N.E.2d at 1181. On appeal, the Court mentioned "[o]ur constitutions," observed that the Court in Kastigar had held that statutes which compel testimony in exchange for both use immunity and derivative use immunity are constitutional, and concluded that Ind.Code § 35-34-2-8 did not violate the Fifth Amendment of the United States Constitution, nor Article 1, Section 14 of the Indiana Constitution.
For the foregoing reasons, we affirm the trial court's finding of contempt.
Affirmed.
RILEY, J., and BRADFORD, J., concur.
