ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC K. KOSELKE STEVE CARTER
Indianapolis, Indiana Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
SUPREME COURT OF INDIANA
MYRON A. POWELL, )
) Supreme Court Cause Number
v. ) 49S00-0009-CR-562
STATE OF INDIANA, )
APPEAL FROM THE MARION SUPERIOR COURT, ROOM NO. 3
The Honorable Cale Bradford, Judge
Cause No. 49G03-9712-CF-183028
ON DIRECT APPEAL
June 18, 2002
A jury convicted Indianapolis police officer Myron Powell of felony murder for his
role in the attempted robbery and shooting death of a suspected drug dealer.
The trial court sentenced him to sixty-five years imprisonment. In this
direct appeal, Powell raises four issues for our review, which we rephrase as
follows: (1) is Powells conviction for felony murder inconsistent with his acquittal
for robbery; (2) did the trial court err in refusing Powells tendered instruction
on accomplice liability; (3) did the trial court err in sentencing Powell; and
(4) is Powells sentence manifestly unreasonable. We affirm.
The facts most favorable to the verdict show that in the evening hours
of December 11, 1997, David Hairston was present at his home in Indianapolis.
Also present 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 an Indianapolis Police Department patrol car parked
in front of the house. The man wearing the uniform asked to
speak with Big C, which was Hairstons nickname. Khalalah shut the door,
leaving the men outside, and yelled to Hairston that the police wanted to
talk to him. In the meantime, the two men entered the house
and waited in the foyer. Hairston came to the door and inquired,
Whats the problem, Officers? R. at 1373. The man in the
uniform responded, We just busted one of your friends and [he] said you
had a lot of drugs over here. R. at 1374. When
Hairston asked to see a search warrant, the uniformed officer replied that additional
police officers were en route to the house with the document. Hairston
then told the pair to wait outside until the other officers arrived.
However, the two men refused to leave. Hairston then demanded their names and
badge numbers. The officer in uniform stated that his name was Thompson.
Suspecting something was amiss, Hairston brushed aside the officers coat and saw
a nametag that read Powell. R. at 1291.
At that point, the second man, later identified as Michael Highbaugh, produced a
handgun, placed the barrel against Hairstons temple, and ordered him to lie on
the floor. Hairston refused, and Highbaugh shot him once in the head.
He died as a result. In the meantime, Khalalah and Michael
had run from the foyer into the kitchen. Highbaugh shot Michael in
the head as he was trying to exit through a kitchen window.
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, he grabbed a knife and stabbed
her several times in the neck. She survived and identified Powell as
the man in the uniform.
From his position on the kitchen floor, Michael heard footsteps running throughout the
house. After several minutes, he saw Powell rushing out the front door
carrying three bags, one of which appeared to contain marijuana. When Powell
and Highbaugh were finally gone, Michael locked the door and called the police.
Officers from the Indianapolis Police Department arrived and observed a large safe
that had been moved from Hairstons bedroom closet to the front porch.
It contained $75,000 in cash, a semi-automatic handgun, jewelry, and a $5000 Certificate
of Deposit. Officers also recovered from the house a scale used to
weigh narcotics, $22,000 in cash, and a large quantity of cocaine and marijuana.
The State charged Powell 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 imprisonment without parole.
See footnote After a jury trial, Powell
was convicted of felony murder and acquitted of the remaining charges.
The trial court sentenced Powell to sixty-five years imprisonment. This appeal followed.
Because the jury found Powell guilty of felony murder but acquitted him of
robbery, Powell argues these verdicts are inconsistent because robbery was the only .
. . underlying felony used to support his felony murder conviction. Br.
of Appellant at 8. Therefore, the argument continues, this Court should reverse
his felony murder conviction.
When this Court reviews a claim of inconsistent jury verdicts, we will take
corrective action only when the verdicts are extremely contradictory and irreconcilable. Mitchell
v. State, 726 N.E.2d 1228, 1239 (Ind. 2000) (quotation omitted). A jurys
verdict may be inconsistent or even illogical but nevertheless permissible if it is
supported by sufficient evidence. Totten v. State, 486 N.E.2d 519, 522 (Ind.
1985); see also Hodge v. State, 688 N.E.2d 1246, 1248-49 (Ind. 1997) (noting
that ordinarily when the trial of a defendant results in acquittal on some
charges and convictions on others, the verdicts will survive a claim of inconsistency
when the evidence is sufficient to support the convictions). In resolving such
a claim, we neither interpret nor speculate about the thought process or motivation
of the jury in reaching its verdict. Mitchell, 726 N.E.2d at 1239.
Powells argument is based on a faulty premise. Rather than relying solely
on the commission of a robbery as the crime underlying the felony murder
charge, the record shows the State relied on alternative theories, namely: robbery or
See footnote Evidence that a locked safe in Hairstons home had been
moved from the closet to the front porch was sufficient for the jury
to conclude that Powell intended to rob Hairston but simply did not complete
the job. Powells conviction for felony murder with attempted robbery as the
underlying felony is not inconsistent with his acquittal for robbery.
Powell tendered the following jury instruction on accomplice liability:
The criminal liability of an accomplice is negated by the principals commission of
an offense greater in severity than the offense originally planned if the resulting
offense is not a probable and natural
consequence of the planned offense.
R. at 969 (emphasis in original). The trial court refused to give
Powells tendered instruction and instead gave its own, which read in pertinent part:
A person is responsible for the actions of another person when, either before
or during the commission of a crime, he knowingly aids, induces, or causes
the other person to commit a crime, even if the other person:
Has not been prosecuted for the offense
Has not been convicted of the offense; or
Has been acquitted of the offense.
To aid is to knowingly support, help, or assist in the commission of
In order to be held responsible for the actions of another, [a defendant]
need only have knowledge that he is helping in the commission of the
charged crime. He does not have to personally participate in the crime
nor does he have to be present when the crime is committed.
. . .
It must be proved beyond a reasonable doubt that a defendant had knowledge
of and participated in the commission of the crime.
R. at 1004-05 (Instruction No. 10 B). Powell complains the trial court
erred in refusing to give his proposed tendered instruction.
The manner of instructing a jury lies largely within the sound discretion of
the trial court, and we review the trial courts decision only for an
abuse of that discretion. Cline v. State, 726 N.E.2d 1249, 1256 (Ind.
2000). The test for reviewing the trial courts decision to refuse a
tendered instruction is: (1) whether the instruction correctly states the law;
(2) whether there was evidence in the record to support the giving of
the instruction; and (3) whether the substance of the instruction is covered by
other instructions given by the court. Id. Although Powell contends otherwise,
the substance of his instruction accomplice liability is contained in the
instruction given by the trial court. We find no error on this
In a related argument, Powell also complains the trial court erred in refusing
to give his tendered instruction on accomplice liability after the jury sent a
note to the trial court. The facts are these. In the
late evening hours during the first day of deliberations, the jury sent two
questions to the trial court. The one at issue here read as
Could we have clarification in relationship to Instruction 10B? Does the sentence,
a person is responsible for the actions of another person when either before
or during the commission of a crime, he knowingly aids, induces, or causes
the other person to commit a crime, even if the other person .
. . does this crime, underlined, have to be the exact crime that
eventually was committed, robbery, murder?
R. at 1763-64. After discussing the matter with the parties outside the
jurys presence, the trial court returned the jury to the courtroom, advised them
that court would be adjourned for the day, and that the trial court
would answer the jurys questions the following morning. The next day, over
Powells objection, the trial court responded, The Court may not answer this question.
You should reread your Jury Instructions. R. at 1791. In
this appeal, Powell contends the trial court should have re-read all of the
final instructions along with his previously rejected tendered instruction.
Indiana Code section 34-36-1-6 provides:
If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of the
(2) the jury desires to be informed as to any point of law arising
in the case;
the jury may request the officer to conduct them into court, where the
information required shall be given in the presence of, or after notice to,
the parties or the attorneys representing the parties.
There is no dispute that the jurys question in this case concerned a
point of law. Also there is no dispute that the trial court
complied with the statutory mandate. Powells complaint is that the trial court
should have done more.
At the time of Powells trial, the generally accepted procedures in answering a
jurys question on a matter of law was to reread all instructions in
order to avoid emphasizing any particular point and not qualify, modify, or explain
its instructions in any way.
Wallace v. State, 426 N.E.2d 34, 36
(Ind. 1981); see also Jenkins v. State, 424 N.E.2d. 1002, 1003 (Ind. 1981)
(The path is extremely hazardous for the court that would depart from the
body of final instructions and do other than reread the final instructions in
responding to jury questions.).
See footnote However, we have permitted departure from this procedure.
Riley v. State we said when the jury question coincides with
an error or legal lacuna [gap] in the final instructions . . .
a response other than rereading from the body of final instructions is permissible.
711 N.E.2d 489, 493 (Ind. 1999) (quoting Jenkins, 424 N.E.2d at 1003).
In this case, Powell contends there was a gap in the trial courts
final instructions that would have been cured by a reading of his tendered
instruction. We disagree there was any gap. The trial courts instruction
was thorough and more detailed than that proposed by Powell. As we
have already determined, the substance of Powells instruction was contained in the instruction
given by the trial court. Further, reading Powells instruction would not have
provided the jury with any more guidance on the question raised. The
courts instruction informed the jury, among other things, that it must find beyond
a reasonable doubt that Powell had knowledge that Highbaugh intended to commit the
charged crime. Powells proposed instruction stated the same proposition, but simply in
the negative. We find no error here.
The trial court sentenced Powell to the maximum term of sixty-five years.
Powell challenges his sentence contending the trial court considered an improper aggravator, failed
to consider several mitigating factors, and failed to balance substantial mitigating factors against
the aggravating factors. Generally, sentencing determinations rest within the trial courts discretion.
Bonds v. State, 729 N.E.2d 1002, 1004 (Ind. 2000). We review
trial court sentencing decisions only for abuse of discretion, including a trial courts
decision to increase the presumptive sentence because of aggravating circumstances. Id.
At sentencing the trial court identified as aggravating factors: (1) the nature
and circumstances of the crime; and (2) the commission of a forcible felony
while wearing a garment designed to resist the penetration of a bullet.
Powell complains there is no evidence in the record to support the second
aggravator. The State counters that in his statement given to investigating officers,
Powell testified that he was wearing a full uniform at the time of
the crime. R. at 1532. The State also points to testimony
that Powell was wearing a bulletproof vest when arrested the morning after the
crime was committed.
The record shows that Powell was arrested during roll call at his precinct.
That fact does not support the notion that he wore a bulletproof
vest the night before. Also, although Powell testified that he was in
full uniform at the crime scene, there is no evidence in the record
that a full uniform includes a garment designed to resist the penetration of
a bullet. Therefore, the use of this aggravator was inappropriate.See footnote
The trial court found Powells lack of criminal history as the sole mitigating
factor. Powell complains the trial court erred in failing to consider as
mitigating factors his military service, his chronically abusive childhood, and that he was
a good father to his children and step-children. Br. of Appellant at
20. The finding of mitigating circumstances is within the discretion of the
McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001).
An allegation that the trial court failed to identify or find a mitigating
circumstance requires the defendant to establish that the mitigating evidence is both significant
and clearly supported by the record. Id. Further, the trial court
is not obligated to accept the defendants contention as to what constitutes a
mitigating circumstance. Id.
The record shows that Powell was released from his second tour of duty
in the United States Air Force with an other than honorable discharge.
R. at 1833. Apparently, he was accused of taking quarters from a
slot machine and resigned rather than accept a reduction in rank. Even
if Powells record was exemplary to that point, the existence of an other
than honorable discharge was a factor the trial court could properly consider in
determining that his military record was entitled to no significant mitigating weight.
Concerning Powells chronically abusive childhood, the record shows that Powells father had a
drinking problem; his mother was hospitalized for psychiatric problems; his father-figure older brother
was murdered; and he witnessed the stabbing death of another brother. A
defendants difficult childhood is not necessarily entitled to mitigating weight. See, e.g.,
Loveless v. State, 642 N.E.2d 974, 977 (Ind. 1994) (no weight given where
sixteen-year-old defendant had been molested by her father as an infant; witnessed father
molest her sisters, cousin, and other young girls; witnessed her parents multiple attempts
to commit suicide; and witnessed her father attempting to kill her mother); Page
v. State, 615 N.E.2d 894, 896 (Ind. 1993) (no weight given where nineteen-year-old
defendant was addicted to alcohol and abused by both parents). In this
case, the trial court was not obligated to consider Powells family background as
a mitigating circumstance. By being qualified to serve as a police officer
and having served for a number of years, Powell apparently was able to
overcome whatever adversity he might have experienced in his youth. There is
no indication that Powells childhood was relevant to his level of culpability, and
the trial court properly ignored it. The same is true for Powells claim
that he was a good father to his children and stepchildren. We
conclude the trial court properly determined the foregoing factors were entitled to no
As for Powells complaint that the trial court failed to balance substantial mitigating
factors against the aggravating factors, as explained by the foregoing discussion, there was
only one proper mitigating factor that the trial court found: lack of
criminal history. Because the trial court improperly relied on the committing a
forcible felony while wearing a garment designed to resist the penetration of a
bullet aggravator, we are left with a single aggravator: the nature and
circumstances of the crime. However, the manner and circumstances in which a
crime is committed can be considered as an aggravating circumstance. Georgopulos v.
State, 735 N.E.2d 1138, 1144 (Ind. 2000). Also, a single aggravating circumstance
is adequate to justify a sentence enhancement. Hawkins v. State, 748 N.E.2d
362, 363 (Ind. 2001). In this case, identifying the nature and circumstances
of Powells crime, the trial court noted Powells abuse of police power and
breach of public trust; the fact that his acts not only resulted in
a death but also severe injury to a young woman and a minor
child; and that the crime was motivated by drugs and money. The
trial court gave substantial aggravating weight to the nature and circumstances of Powells
crime finding them to be [t]he main aggravating factor[s] in this case.
R. at 1970. This sole aggravating factor outweighs the single mitigating factor
even though one of the aggravators was invalid.
See, e.g., Walter v.
State, 727 N.E.2d 443, 447 (Ind. 2000) (Even when a trial court improperly
applies an aggravator, a sentence enhancement may be upheld if other valid aggravators
Finally, Powell contends his sentence is manifestly unreasonable and invites this Court to
revise it to the presumptive term of fifty-five years. Although this Court
is empowered to review and revise criminal sentences, we will not do so
unless the sentence is manifestly unreasonable in light of the nature of the
offense and the character of the offender. Prowell v State, 687 N.E.2d
563, 568 (Ind. 1997). While on duty as a police officer, sworn
to protect and serve, Powell entered a house on the pretext of serving
a search warrant. While present he participated in killing the resident and
seriously injuring two innocent bystanders. And he did so for the sake
of stealing drugs and money. We are not persuaded that a sixty-five
year sentence for Powells crime is manifestly unreasonable.
We affirm the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
Highbaugh was charged separately with the same offenses. And as
with Powell, the State also sought the death penalty and later amended its
complaint to a request for life imprisonment without parole. Highbaugh pleaded guilty
to murder and two counts of attempted murder and was sentenced to life
without parole. His direct appeal is pending before this Court.
Footnote: The charging information provides in relevant part, MYRON A. POWELL
. . . did kill another human being, namely DAVID HAIRSTON, while committing
or attempting to commit ROBBERY. R. at 89.
Footnote: Although the record is not clear, apparently the trial court provided
the jury with a set of final instructions to aid them during deliberations.
Thus, rather than re-reading the instructions itself, the trial court directed the
jury to do so. There was no error in that regard, and
Powell makes no such claim. We take Powells argument on appeal to
mean that the trial court erred by not tendering his proposed instruction and
directing the jury to read it along with the other final instructions.
Footnote: With this Courts adoption of the Indiana Jury Rules, which become
effective January 1, 2003, trial courts are afforded greater flexibility in responding to
jury inquiries. Jury Rule 28 provides:
If the jury advises the court that it has reached an impasse in
its deliberations, the court may, but only in the presence of counsel, and,
in a criminal case the parties, inquire of the jurors to determine whether
and how the court and counsel can assist them in their deliberative process.
After receiving the jurors response, if any, the court, after consultation with
counsel, may direct that further proceedings occur as appropriate.
See Ind. Code § 35-38-1-7.1(b)(7)
Powell also contends that the trial court relied on false assumption
when pronouncing sentence because the trial court referred to him as a robber.
Br. of Appellant at 19. Powell complains this amounts to error
because the jury acquitted him of robbery. Our review of the record
shows that the trial courts reference to Powell as a robber, as opposed
to an attempted robber, was inadvertent. In its sentencing statement, the trial
court explained that Powell attempt[ed] to make his own personal gain in drugs
and money and later referred to the crime as an attempt[ed] robbery.
R. at 1970-71. In any event, Powell has failed to establish that
this reference was used as an aggravating factor.
Footnote: This Court has held that the lack of criminal history should
be given substantial mitigating weight.
See Loveless v. State, 642 N.E.2d 974,
976 (Ind. 1994). However, that does not mean that lack of criminal
history automatically outweighs any valid aggravating circumstance. Rather, it is a balancing
test. McCarthy v. State, 749 N.E.2d 528, 539 (Ind. 2001).