ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHLEEN M. SWEENEY STEVE CARTER
Indianapolis, Indiana Attorney General of
Indiana
GRANT H. CARLTON
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
MICHAEL HIGHBAUGH, )
)
Appellant (Defendant), )
)
v. ) Cause No. 49S00-0008-CR-466
)
STATE OF INDIANA, )
)
Appellee (Plaintiff). )
________________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Cale Bradford, Judge
Cause No. 49G03-9712-CF-183229
August 15, 2002
SHEPARD, Chief Justice
Michael Highbaugh pleaded guilty to one count of murder and two
counts of attempted murder. The trial court sentenced him to life without
parole for murder and an aggregate, consecutive term of 100 years for the
attempted murders. Highbaugh’s central challenges in this appeal focus on
his sentence. We affirm.
Facts and Procedural History
On the evening of December 11, 1997, David Hairston was at his home
in Indianapolis, as were twenty-year-old Khalalah and fifteen-year-old
Michael. When the doorbell rang, Khalalah answered and observed two men,
one of whom was wearing a police uniform. She also observed a police car.
The two men entered the foyer uninvited and requested to search Hairston’s
home, indicating that other officers were en route with a warrant.
Hairston refused to let the men search his home until the warrant arrived
and told them to wait outside. When they refused, Hairston demanded their
names and badge numbers. The uniformed officer stated that his name was
“Thompson.” Hairston asked “Thompson” where his name badge was, to which
the officer replied he was not wearing his badge. Hairston then brushed
aside the officer’s coat and saw a nametag that read “Powell.”
The man wearing civilian clothing (later identified as Highbaugh)
then pulled out a gun and put it to Hairston’s head. After Hairston
refused Highbaugh’s demands to lie down on the floor, Highbaugh shot him in
the head. He died as a result.
In the meantime, Khalalah and Michael ran from the foyer into the
kitchen. Highbaugh chased them and shot Michael in the head. The
resulting wound was not fatal, and Michael lay motionless pretending to be
dead. Highbaugh then placed the barrel of the gun against Khalalah’s head
and pulled the trigger. When it misfired, Highbaugh grabbed a knife and
stabbed Khalalah in the neck approximately ten times. She survived.
While motionless on the kitchen floor, Michael saw Powell run to the
back of the house. After several minutes, he saw Powell run out the door
carrying several bags.
The State charged Highbaugh with murder, felony murder, two counts of
attempted murder, robbery, and carrying a handgun without a license. The
State also alleged that Highbaugh was an habitual offender and sought the
death penalty. In exchange for Highbaugh’s guilty plea for murder and two
counts of attempted murder, the State dropped the remaining charges. The
plea agreement provided a sentencing range of sixty-five years to life
without parole, to be decided by the trial court. In addition to the life
sentence and the term of years for attempted murder, the court later
sentenced Highbaugh to a concurrent term of six months after he was found
in contempt of court.[1]
I. Necessary Proof for Life Without Parole
Highbaugh first challenges the sufficiency of the evidence to support
his life sentence for the murder of Hairston, arguing that the State failed
to prove that he committed an intentional killing during the commission of
a robbery. Highbaugh specifically argues that the State failed to
establish that any property of value was taken and did not prove that
property was taken from the person or presence of Hairston. A trial court
may sentence a defendant to life without parole when the State has proven
an aggravating circumstance specified in the death penalty statute beyond a
reasonable doubt. Ind. Code Ann. § 35-50-2-9(b) (West 2000); Greer v.
State, 749 N.E.2d 545, 549 (Ind. 2001).[2]
The State proved that Highbaugh took property of value. The charging
information stated that Highbaugh took “bags and contents” from Hairston’s
home. (R. at 108.) Michael testified that when Highbaugh and Powell first
arrived at Hairston’s house, both were empty handed. Although Michael was
lying on the kitchen floor playing dead, he saw Powell leave the house with
several bags, one of which contained marijuana. This was sufficient
evidence that property of value was taken. See Ortiz v. State, 716 N.E.2d
345, 351 (Ind. 1999) (marijuana taken during robbery).
Highbaugh also argues that the items taken were not taken from
Hairston’s person or presence. Moreover, because Hairston apparently was
buying the home on contract with another person, Highbaugh asserts “it is
unknown whether Hairston had sole control of the premises or even
personally possessed the unrecovered and unidentified items.” (Appellant’s
Br. at 15.) The evidence leads us to conclude otherwise.
A sufficiency challenge will not prevail simply because the murder and
the taking of property occurred in different rooms. See Ortiz, 716 N.E.2d
at 352. A perpetrator still commits robbery when the property seized is
not owned by the victim, but is merely under the personal protection of the
victim. Paul v. State, 612 N.E.2d 1060, 1062 (Ind. 1993) (upholding
robbery conviction when defendant took cigarettes from store after fatally
shooting employee in charge).
As we noted above, Highbaugh and Powell were empty-handed when they
arrived at Hairston’s. After shooting and stabbing the victims, they left
Hairston’s house with packaged marijuana and other bags. Later, while
investigating the crime scene, police found an ashtray full of loose
marijuana in plain view in the basement where Hairston was immediately
prior to the shooting. See Henderson v. State, 715 N.E.2d 833, 835 (Ind.
1999) (constructive possession may be found when items are in plain view of
a person because the person has the ability to exercise dominion and
control over the items). Police also found packaging equipment, scales,
and other paraphernalia in plain view that would indicate that drugs were
dealt from the home. The marijuana taken from the home was either
possessed by Hairston or in his personal protection. The evidence is
sufficient to support the statutory aggravator.
II. Claimed Mitigators
Highbaugh next contends that the trial court wrongfully rejected
proffered mitigators, failed to give enough weight to recognized
mitigators, and did not properly articulate how it weighed the recognized
mitigators against the lone aggravator. He asks us to vacate the sentence
of life without parole and sentence him to a term of years.
Highbaugh’s father testified on his behalf, as did a psychotherapist.
Both testified about how Highbaugh’s childhood may have contributed to his
drug use and this crime.
The trial court recognized several mitigating circumstances:
Highbaugh came from a dysfunctional family whose father was involved in
drugs and committed acts of domestic abuse; Highbaugh maintained steady
employment during periods of his life; Highbaugh had a loving relationship
with his wife and children; Highbaugh surrendered himself to police and did
not resist arrest; and Highbaugh accepted responsibility, in part, by
pleading guilty to some of the crimes. (Supp. R. at 49-50.)
Highbaugh offered other mitigating circumstances that the court
rejected. These circumstances included: (1) Hairston facilitated the
offense; (2) Highbaugh was under the control of Powell; (3) Highbaugh’s
sentence for life without parole is not proportional to Powell’s sentence
of sixty-five years; and (4) Powell was found not guilty of robbery. (Id.)
A trial court is not obligated to find a circumstance to be mitigating
simply because the circumstance is proffered by the defendant. Spears v.
State, 735 N.E.2d 1161, 1167 (Ind. 2000), reh’g denied. On appeal, a
defendant must show that the mitigating circumstance advanced is both
significant and clearly supported by the record. Id. Although a finding
of mitigating factors is within the discretion of a trial court, a trial
court is not obligated to weigh or credit the mitigating factors as the
defendant requests. Georgopulos v. State, 735 N.E.2d 1138, 1145 (Ind.
2000). Only when a trial court fails to find a mitigator that the record
clearly supports do we reasonably believe the trial court improperly
overlooked a mitigator. Id.
Highbaugh claims that because Hairston was a drug dealer, he
implicitly consented to the risks of the trade, including death. The trial
court noted that Hairston did nothing to facilitate his own murder. In
fact, Hairston was in the basement of his home when Highbaugh and Powell
arrived. (R. at 1270.) The trial court did not abuse its discretion in
rejecting this proposed mitigator.
The trial court also did not abuse its discretion when it declined to
find that Highbaugh was under the substantial control of Powell. Highbaugh
unquestionably had an accomplice, but he was the major participant in these
crimes. In light of the fact that Highbaugh fatally shot Hairston, shot
Michael, and stabbed Khalalah without direction or help from his
accomplice, there was no abuse of discretion to reject this a mitigating
circumstance.
As for Highbaugh’s proffered mitigators that his sentence is not
proportional to Powell’s and that Powell was found not guilty of robbery,
the court did not abuse its discretion in rejecting these. First, a
constitutional proportionality analysis does not require a court to compare
the sentence of a particular crime to others convicted of the same or
similar crimes. Willoughby v. State, 660 N.E.2d 570, 584 (Ind. 1996).
Moreover, Highbaugh was the principal actor in the murder of Hairston
and the attempted murders of Michael and Khalalah. Highbaugh shot Hairston
and tried to murder Michael and Khalalah while Powell stood by saying
nothing. The court properly gave Highbaugh a stiffer sentence than his
accomplice. Finally, given that the State proved the statutory aggravator
of intentional killing during the course of a robbery, there was no abuse
of discretion when the trial court ignored the fact that Powell was
acquitted of robbery.
As for Highbaugh’s claim that the trial court is required to
articulate the weight given to each mitigator, this Court recently rejected
such a requirement in Hollen v. State, 761 N.E.2d 398 (Ind. 2002).
Although we acknowledged in Hollen that trial courts facilitate a more
thorough appellate review by delineating how much weight to give to a
specific aggravating or mitigating circumstance, we nonetheless held that a
trial court is not required to assign specific weight to each aggravator
and mitigator. Id. at 402. Accordingly, we find no error.
III. Was Life Manifestly Unreasonable?
In the same vein, Highbaugh claims that his life sentence is
manifestly unreasonable. He argues that had the court given full weight to
the recognized mitigators and to those mitigators that Highbaugh identifies
as erroneously overlooked, a lesser sentence would have been imposed.
A life sentence imposed on a person who murders one person and
attempts to kill two others is not manifestly unreasonable, given the state
of the mitigators described above.
The Contempt Finding
Highbaugh lastly claims the court erred when it found him in contempt.
Highbaugh argues that because he still possessed his Fifth Amendment right
to remain silent so as to not incriminate himself, he could not be ordered
to provide testimony in Powell’s case. We reject his blanket assertion of
the privilege against self-incrimination.
Highbaugh pled guilty to one count of murder and two counts of
attempted murder. In exchange, the State declined to prosecute Highbaugh
for robbery, felony murder, and carrying a handgun without a license. The
State also dismissed the habitual offender information. The plea agreement
contained an additional provision requiring Highbaugh “to appear and be
interviewed to give sworn and unsworn statements or testimony as required.”
(R. at 1187.) The guilty plea was filed and accepted by the trial court
on February 4, 2000. On March 20th, Powell’s attorney deposed Highbaugh in
preparation for Powell’s separate trial. (Supp. R. at 20-24.) At this
deposition, Highbaugh declined to answer any question beyond his name, date
of birth, and place of residence. (Id.)
Powell’s attorney moved that Highbaugh be held in contempt for his
refusal to answer any questions. The court held a hearing on the motion
two days after Highbaugh was sentenced. The court ordered Highbaugh to
answer “any and all questions concerning your knowledge of this matter, and
if you refuse . . . you could be found in contempt.” (R. at 1385.)
Highbaugh again declined to answer any questions and indicated that he
would be appealing the imposition of a life sentence. (R. at 1383.) The
court ruled that Highbaugh did not have a Fifth Amendment privilege, found
him in contempt, and sentenced him to a term of six months to be served
concurrent with his life sentence.
The privilege against self-incrimination contained in the Fifth
Amendment exists up to the point where there can be no further
incrimination. Mitchell v. United States, 526 U.S. 314, 326 (1999). The
possibility of further incrimination ceases when the sentence has been
fixed and the judgment of conviction has become final. Id. The privilege
against self-incrimination also is lost when counts of an indictment are
dismissed as a part of a plea agreement. United States v. Smith, 245 F.3d
538, 543 (6th Cir. 2001). The reasoning is that “since promises to dismiss
charges as part of a plea agreement are binding on the Government, a
witness may not be exposed to prosecution on those charges, and the need
for the privilege is lost.” Id. (quoting United States v. Pardo, 636 F.2d
535, 543 (D.C. Cir. 1980)). Nevertheless, a defendant or witness does not
lose the privilege against self-incrimination on crimes that are not a part
of the plea agreement. Id.
Although Highbaugh retained his privilege with regard to some things,
his refusal to answer any questions outside of name, date of birth, and
place of residence transcended his Fifth Amendment privilege. Because
Highbaugh expressed his intent to appeal his life sentence, he may have
retained his privilege with regard to the statutory aggravator, but the
privilege only extended to questions that could incriminate him on that
matter. Highbaugh could have answered any number of questions without
further incriminating himself. Because he refused to answer any questions,
the trial court could properly find him in contempt.
Conclusion
We affirm the judgment of the trial court.
DICKSON, SULLIVAN, AND RUCKER, JJ., concur.
BOEHM, J., concurs in part and dissents in part with separate opinion.
BOEHM, Justice, concurring in part, dissenting in part.
I concur in parts I, II, and III of the majority opinion, but dissent
as to part IV of the opinion. As the majority points out, in Mitchell v.
United States, 526 U.S. 314, 326 (1999), the United States Supreme Court
held that the privilege against self-incrimination contained in the Fifth
Amendment exists until the possibility of further incrimination ceases,
i.e., when “the sentence has been fixed and the judgment of conviction has
become final.” The Supreme Court in Mitchell did not define the point at
which a judgment of conviction becomes final for Fifth Amendment privilege
purposes, but there is a substantial body of law from other courts holding
that the privilege continues pending an appeal. See United States v.
Duchi, 944 F.2d 391, 394 (8th Cir. 1991) (“Fifth Amendment right not to
testify concerning transactions for which one has been convicted continues
until the time for appeal has expired or until the conviction has been
affirmed on appeal”); Mills v. United States, 281 F.2d 736, 741 (4th Cir.
1960); Ellison v. State, 528 A.2d 1271, 1278 (Md. 1987); State v.
Kaquatosh, 600 N.W.2d 153, 158 (Minn. Ct. App. 1999); People v. Bell, 485
N.Y.S.2d 416, 420 (N.Y. Sup. Ct. 1985); Knight v. Maybee, 253 N.Y.S.2d 59,
63 (N.Y. Sup. Ct. 1964).
In this case, Highbaugh had the right to appeal his life sentence, and
indeed had expressed his intent to do so. Accordingly, at the time of his
contempt hearing, Highbaugh retained his Fifth Amendment privilege with
regard to the statutory aggravating circumstance that he committed an
intentional killing during the commission of a robbery that was essential
for life without parole. I agree with the majority that this privilege did
not permit Highbaugh to refuse to answer all questions asked him in
Powell’s case, but it did extend to any questions that could establish the
statutory aggravator. I do not agree, however, that “the trial court could
properly find him in contempt.” Because Highbaugh retained his Fifth
Amendment privilege as to the aggravator, I believe the court erred when it
found that Highbaugh’s “[Fifth] Amendment rights no longer exist[ed]” and
ordered him to answer “any and all questions concerning [his] knowledge of
this matter.” This overly broad directive, based on an incorrect
assumption that the Fifth Amendment right “no longer exist[ed],” violated
Highbaugh’s Fifth Amendment right against self-incrimination. I would
reverse the trial court’s finding of contempt and vacate Highbaugh’s
concurrent term of six months imprisonment.
-----------------------
[1] Powell was charged with murder, felony murder, two counts of
attempted murder, and robbery. The State also sought the death penalty, but
later amended its complaint and sought life without parole. After a jury
trial, Powell was convicted of felony murder and acquitted of the remaining
charges. The trial court thereafter sentenced Powell to sixty-five years
imprisonment. (Supp. R. at 35-36.)
[2] To sentence a defendant to life without parole, the trial court
must complete two additional steps. Along with finding that the State
proved the statutory aggravator beyond a reasonable doubt, the trial court
must find that the aggravating circumstances outweigh the mitigating
circumstances. Greer, 749 N.E.2d at 550. Lastly, the trial court must
make a record of the reasons supporting the sentence it imposes. Id.
Highbaugh does not assert a challenge relating to these steps.