*1 247 рresumptive fifty-five years cannot term of questionnaire, her we for from mation rose to the level not suggested any that the omission murder. Counsel has conclude under She testified way misconduct. gross particular psychological evalua- incident did not affect prior that this oath tion have to a would led lesser sentence. Moreover, impartiality. given her We find no abuse of discretion here. See by the presented of evidence amount Brewer, 368, Ind. 417 at N.E.2d at 906 State, harmed. Rokop’s Warner was not (denial grounded upon of motion sheer lone sub- daughter described a assailant speculation might benefit some flow is stantially appearance; similar Warner’s abusive). arbitrary Rokop’s knife embedded Warner’s Conclusion neck; at being the scene admitted trial We remand court with in- crime; police found Warner’s structions to vacate Warner’s conviction Rokop’s blood hidden covered with clothes attempted robbery. for In all other re- very little likelihood in his trash. We see spects, judgment. we affirm the response any juror’s omitted way affected the verdict. SULLIVAN, DICKSON, BOEHM, and Sentencing at IV. Continuance RUCKER, JJ., concur. postponement sought Warner sentencing hearing so that he could evaluation to assess psychiatric obtain dangerousness. risk future
his that the request, stating denied this
court helpful profile not “be
psychological would (R. my determination.” this was error.
Warner contends HIGHBAUGH, Appellant Michael whether The determination of (Defendant), lies grant a continuance within the when discretion of the sound v. upon statutory the motion is not based (Plaintiff). Indiana, Appellee STATE of State, 338, 275 Ind. grounds. Brewer (1981), 889, cert. de N.E.2d No. 49S00-0008-CR-466. nied, U.S. S.Ct. Supreme Court Indiana. (1982). There a strong L.Ed.2d 1384 properly trial court presumption Aug. 2002. exercised its discretion. Elmore (Ind.1995). case, contends that a Warner permit an in- required continuance was
vestigation potential into for future his
dangerousness prior mental condi- Nevertheless, nothing he tells
tion. us
indicate what he thinks the evaluation
would have uncovered or how would
have his sentence. As a result of affected decision, to reverse his rob-
our conviction,
bery will receive the Warner
refused to let the men search his home until the warrant arrived and told them to refused, wait they outside. When Hair- ston demanded their badge names and numbers. The uniformed officer stated “Thompson.” his name was Hairston asked “Thompson” badge wherе his name was, to which replied the officer he was wearing badge. Hairston then brushed aside the officer’s coat and saw a nametag that read “Powell.” *4 (later The wearing man clothing civilian identified as Highbaugh) pulled then out a gun and put it to Hairston’s head. After Hairston refused Highbaugh’s demands to floor, lie down on the Highbaugh shot him in the head. He died aas result. Sweeney, IN, Kathleen M. Indianapolis, meantime, In the Khalalah and Michael Attorney Appellant. for ran from foyer the into the kitchen. High- Carter, baugh chased Steve them and shot Attorney Michael in General of Indiana, the head. Carlton, resulting The Grant H. wound was not Deputy Attor- fatal, ney General, IN, lay Michael Indianapolis, pretend- motionless Attorneys ing to be deаd. Appellee. placed for then
the gun barrel of the against Khalalah’s SHEPARD, Chief Justice. head pulled the trigger. itWhen mis- fired, Highbaugh grabbed a knife and Highbaugh pleaded Michael guilty to stabbed Khalalah in approximate- the neck one count of murder and two counts of ly ten times. She survived. attempted murder. The trial court sen- tenced him to parole life without mur- for floor, While motionless on the kitchen and an aggregate, der consecutive term of Michael saw Powell run to the back of the years attempted for the murders. minutes, house. After several he saw Highbaugh’s central challenges in ap- run Powell out the carrying door several peal focus on his sentence. We affirm. bags. History
Facts and Procеdural charged State Highbaugh with mur- On evening 11, 1997, der, the of December murder, felony two attempt- counts of David Hairston was at murder, his home in India- ed robbery, and carrying a hand- napolis, as twenty-year-old were Khalalah gun without a license. The State also and fifteen-year-old Michael. When alleged the that Highbaugh was an habitual rang, doorbell Khalalah answered and ob- offender and sought the death penalty. men, served two one of whom wearing was exchange for Highbaugh’s guilty plea for a police uniform. She also observed a murder and two of attempted counts mur- police car. The der, two men entered foyer the dropped the State the remaining uninvited requested to search charges. Hair- рlea agreement provided a home, ston’s indicating that other officers sentencing range sixty-five years of to life were en route with a warrant. Hairston parole, without to be by decided the trial the life sentence and See Ortiz In addition to court. (Ind.1999) murder, (marijuana during taken rob- years term
the bery). Highbaugh to a later sentenced the after he term of six months concurrent argues also that contempt of court.1 found
was taken Hair- items taken were not from Necessary Proof for Life I. Moreover, person or be presence. ston’s Parole Without apparently buying Hairston was cause person, on contract with another home challenges first asserts “it is whether unknown support sufficiency of thе evidence premises Hairston had sole control Hairston, murder for the life sentence personally possessed or even the unrecov- prove failed to the State arguing (Appellant’s and unidentified items.” ered during killing an intentional committed The evidence leads us to con Br. robbery. Highbaugh of a the commission clude otherwise. failed to argues that State specifically was any property of value establish sufficiency A will not challenge prove property did taken and simply the murder and the prevail because presence Hair- person taken from taking property occurred in different *5 trial sentence a defen A court ston. Ortiz, N.E.2d A rooms. See 716 at 352. parole when the State to life without dant perpetrator robbery still commits when an circumstance proven aggravating has not the property by the seized is owned penalty in the statute be specified death victim, merely is under personal but the Ann. a reasonable doubt. Ind.Code yond State, Paul v. protection the victim. 35-50-2-9(b) (West 2000); v. § Greer (Ind.1993) (uphold N.E.2d 1062 612 (Ind.2001).2 State, 749 N.E.2d 549 robbery when ing conviction defendant fatally cigarettes from store after took took proved Highbaugh that The State shooting employee charge). in informa- charging of value. property “bags took and above, tion stated and As we noted (R. at from Hairston’s home. contents” ar- empty-handed they were when Powell High- Michael testified when shooting After and rived at Hairston’s. victims, first arrived at Hair- baugh they and Powell Hairston’s stabbing the left house, handed. empty marijuana both were packaged ston’s with and other house Later, lying on the kitchen crime Although investigating Michael was the bags. while dead, scene, loose police ashtray saw leave the found an full of playing floor Powell plain in in bags, marijuana one of con- view the bаsement with several which house prior to marijuana. immediately evi- Hairston was tained This was sufficient where State, 715 shooting. of value taken. See Henderson property was the dence murder, pa felony charged sentence a defendant life without was with 2. To 1. Powell role, complete murder, addi murder, the trial court must two two counts of finding steps. State Along with that the tional sought robbery. the death The State also proved statutory aggravalor beyond a rea- the complaint its penalty, but later amended doubt, court find that the trial must sonable trial, sought parole. jury life without After a outweigh aggravating circumstances felony was convicted of murder and Powell Greer, mitigating N.E.2d circumstances. remaining charges. trial acquitted of the Lastly, court make a at 550. the trial must sixty-five Powell to court thereafter sentenced supporting the sentence record of reasons 35-36.) (Supp. imprisonment. years R. imposes. Id. does not assert steps. challenge relating to these (constructive (Ind.1999) portional N.E.2d to Powell’s sentence of sixty-five possession (4) may be found when items are in years; and guilty Powell found not plain person view of a because the person (Id.) robbery. ability has the exercise dominion and A trial is not obligated court items). control over the Police also found find a to mitigating simply circumstance be scales, packaging equipment, and other because the proffered by circumstance is рaraphernalia plain view that would in- State, Spears the defendant. dicate that were dealt drugs from the (Ind.2000), N.E.2d reh’g denied. marijuana
home. The taken from the appeal, On a defendant must show that the home possessed by was either Hairston or mitigating circumstance advanced is both personal protection. The evidence is significant clearly supported by the sufficient to support statutory aggrava- Although record. Id. a finding of mitigat tor. ing factors is within discretion of a Mitigators II. Claimed court, trial obligated trial court Highbaugh next contends that the trial weigh mitigating or credit the factors as rejected court wrongfully proffered miti- the defendant requests. Georgopulos v. gators, enough failed to give weight tо (Ind.2000). recognized mitigators, proper- did not Only when a fails to find a ly weighed articulate how it the recognized mitigator clearly record supports mitigators against the lone aggravator. do we reasonably believe the trial court He asks us to vacate the sentence of life improperly mitigator. overlooked Id. parole without him and sentence to a term years. claims that because Highbaugh’s dealer, father testified on his be- Hairston *6 drug was a he implicitly half, as did a psychotherapist. Both testi- trade, consented to the risks includ fied about how Highbaugh’s childhood ing death. The trial court noted that drug have his contributed to use arid this nothing Hairston did to facilitate his own crime. fact, murder. In Hairston was in the basement of home when Highbaugh his The recognized trial court several miti- (R. 1270.) and Powell at arrived. The gating Highbaugh circumstances: came trial court did abuse its not discretion in from a dysfunctional family whose father rejecting proposed mitigator. this was involved in drugs and committed acts abuse; Highbaugh domestic maintained The trial court also did not abuse steady employmеnt periods during of his its discretion when declined to find that life; a Highbaugh loving relationship had Highbaugh was under the substantial con children; with his wife and Highbaugh trol of Highbaugh Powell. unquestionably surrendered to police himself and did not had an accomplice, but he was major arrest; resist Highbaugh accepted and re- participant in crimes. In light these of the sponsibility, by in part, plеading guilty to Hairston, fact that fatally shot Highbaugh 49-50.) some (Supp. of the R. crimes. at Michael, shot and Khalalah stabbed with Highbaugh other mitigating offered cir- out help direction or from his accomplice, rejected. cumstances that the court These there was no reject abuse discretion to (1) circumstances included: Hairston facili- a circumstanсe. mitigating (2) offense; tated the Highbaugh un- was (3) Powell; der the control of Highbaugh’s Highbaugh’s proffered As for parole sentence for pro- life without is not mitigators that is propor his sentence not imposed per A life sentence on a Powell was Powell’s tional robbery, person attempts the court did son who murders one guilty of found not rejecting in these. is manifestly not abuse its discretion to kill two others not unrea First, anal proportionality sonable, constitutional given mitigators a the state of compare require not ysis does described above. to oth particular of a crime
the sentence or similar of the same ers convicted Contempt Finding IV. The State, N.E.2d Willoughby crimes. . lastly the court claims (Ind.1996) 570, 584 him contempt. erred when it found in Moreover, principal was the Highbaugh argues that because' he still of Hairston and the actor in the murder possessed right his Fifth Amendment of Michael and Khala- murders as to not incriminate him remain silent so shot Hairston and tried lah. self, provide could be ordered to Khalalah while Michael and to murder reject testimony Powell’s case. Wе his by nothing. The court saying Powell stood privilege against blanket assertion of the a stiffer sen- properly gave Highbaugh self-incrimination. accomplice. Finally, given tence than count of Highbaugh pled guilty one statutory aggra- proved the that the State , attempted mur- murder and two counts of during killing intentional vator of exchange, der. the State declined to robbery, there was no abuse course of prosecute Highbaugh robbery, felony for ignored when the trial court discretion murder, handgun carrying without a robbery. Powell was acquitted fact that State also dismissed ha- license. claim that the Highbaugh’s As plea offender information. The bitual articulate the required trial court provi- an additional agreement сontained this Court weight given mitigator, to each appear “to requiring sion rejected requirement recently such a give be interviewed to sworn and unsworn (Ind.2002). Hollen v. (R. testimony required.” statements or as in Hollen that Although acknowledged we filed and guilty plea thorough ap -facilitate a more trial courts by February on accepted the trial court delineating much pellate by review how *7 20th, attorney 2000. On March Powell’s or weight give specific aggravating to a to preparation in deposed Highbaugh circumstance, mitigating we nonetheless at separate (Supp. trial. R. 20- Powell’s required a court not to held that is 24.) Highbaugh deposition, At de- this assign specific weight aggravator to each beyond his any questiоn clined to answer Accordingly, at mitigator. Id. 402. birth, name, place of residence. date no error. we find (Id.) Manifestly III. Was Life attorney Highbaugh Powell’s moved Unreasonable? refusal, contempt in for his be held vein, The court held a any questions. answer In the same claims that days two after manifestly on the motion hearing is unreason- his life sentence The court or- argues given Highbaugh was sentenced. able. He that had and all “any to answer mitigators full to the dered weight recognized knowledge 6f concerning your mitigators questions those and to matter, overlooked, you if .:. you refuse erroneously identifies as a 1385.) (R. contempt.” in at imposed. been could be found lesser sentence would have again declined answer any Because he any ques- refused to answer questions indicated tions, that he would be the trial properly court could find imposition appealing the of a life sentence. him contempt. in (R. High- The court ruled that Conclusion
baugh
not have a
did
Fifth Amendment
affirm
We
the judgment of the trial
him in
privilege,
contempt,
found
and sen-
court.
a term
tenced him to
of six
months
be
with
sеrved concurrent
his life sentence.
DICKSON, SULLIVAN, and
privilege against
The
self-in RUCKER, JJ., concur.
in
contained
the Fifth Amend
crimination
BOEHM, J.,
part
concurs in
and dis-
up
point
ment
to the
where there
exists
part
in
separate opinion.
sents
with
can be no further incrimination. Mitchell
States,
314, 326,
United
U.S.
BOEHM, Justice, concurring
part,
in
(1999).
1307,
S.Ct.
143 L.Ed.2d
dissenting
part.
in
possibility
further incrimination
ceases
when
has
the sentence
been fixed and the
II,
I,
parts
I concur in
and III of the
judgment of conviction has become final. majority opinion,
part
but dissent as to
IV
privilege against
Id. The
self-incrimination
opinion.
out,
majority points
of the
As the
also is lost when counts of an indictment
States,
314,
Mitchell United
526 U.S.
part
are
as a
plea agree
dismissed
of a
119 S.Ct.
Although Highbaugh privi- his retained See United States v. 944 F.2d (8th Cir.1991) lege (“Fifth with to some regard things, refus- Amendment any questions al to right answer outside of not to testify concerning transactions *8 name, birth, place date of of residence for which one has bеen convicted continues Fifth privi- transcended his Amendment appeal expired until the time for has lege. Highbaugh expressed Because his until the conviction has been affirmed on sentence, States, intent to his life appeal appeal”); Mills v. United 281 F.2d (4th regard 736, Cir.1960); have his privilege retained with Ellison v. aggravator, 244, 1271, the statutory privilege (1987); but the 310 Md. 528 A.2d only to questions 153, extended that could in- Kaquatosh, State v. 600 N.W.2d on (Minn.Ct.App.1999); Bell, criminate him that matter. v. People any could ques- have answered number of Misc.2d 485 N.Y.S.2d incriminating tions further (N.Y.Sup.Ct.1985); without himself. Knight Maybee, 44 (N.Y.Sup. 253 N.Y.S.2d Misc.2d INS,
Ct.1964). HALL DRIVE INC. Don d/b/a Guesthouse, Hall’s Defendant- case, right this had Appellant, sentence, indeed had his life appeal According- to do his intent so. expressed contempt ly, hearing, оf his at the time WAYNE, CITY OF FORT his Fifth Amendment Highbaugh retained Plaintiff-Appellee. statutory ag-
privilege regard with he committed gravating circumstance that No. 02S04-0109-CV-423. the commis- killing during intentional an Supreme Court of Indiana. that was essential life robbery sion of agree majority I with the parole. without Aug. 2002. privilege permit High- this did not questions all baugh to refuse answer case, him in but did Powell’s
asked any could estab- questions
extend to aggravator. I do not statutory
lish however, “the could
agree, find
properly contempt.” him in Because retained his Fifth Amendment I aggravator, as believe
privilege High- when it found that
the court erred rights Amendment no
baugh’s “[Fifth] him to and ordered an-
longer exist[ed]” “any questions concerning all
swer This ov- knowledge of matter.”
[his] directive, an based on incorrect
erly broad the Fifth Amendment
assumption exist[ed],” High- violated longer “no
right against
baugh’s right Fifth Amendment I would reverse tri-
self-incrimination. finding contempt
al court’s vacate term of six
Highbaugh’s concurrent imprisonment.
months