ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHLEEN M. SWEENEY STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
MICHAEL HIGHBAUGH, ))
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.
Highbaughs central challenges in this appeal focus on his sentence. We
The man wearing civilian clothing (later identified as Highbaugh) then pulled out a
gun and put it to Hairstons head. After Hairston refused Highbaughs 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 Khalalahs 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 Highbaughs 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. See footnote
The State proved that Highbaugh took property of value. The charging information
stated that Highbaugh took bags and contents from Hairstons home. (R. at
108.) Michael testified that when Highbaugh and Powell first arrived at Hairstons
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
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 Hairstons 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.
(Appellants 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
Hairstons. After shooting and stabbing the victims, they left Hairstons 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.
Highbaughs father testified on his behalf, as did a psychotherapist. Both testified
about how Highbaughs childhood may have contributed to his drug use and this
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) Highbaughs sentence for life without parole is not proportional to Powells
sentence of sixty-five years; and (4) Powell was found not guilty of robbery.
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), rehg 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 Highbaughs proffered mitigators that his sentence is not proportional to Powells
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 Highbaughs 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
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.
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, Powells attorney deposed Highbaugh in preparation for Powells 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.)
Powells 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.
DICKSON, SULLIVAN, AND RUCKER, JJ., concur.
BOEHM, J., concurs in part and dissents in part with separate opinion.