COA affirms 23-year delay in murder charges were justified by science advancements, not attempt to prejudice

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A man charged and convicted of three counts of murder 23 years after the fact was not prejudiced because the delay was justified by advances in science, the Court of Appeals of Indiana has ruled in affirming a lower court’s decision.

In January 1998, Hammond police received a call reporting three deceased people at a house. Police found all three had been beaten and suffered lacerations, skull fractures and brain hemorrhages.

A neighbor told police she knew Higgason and that she smoked cocaine with him that night and saw him trade a shotgun for cocaine. Higgason confirmed the neighbor’s presence at the house that evening, and police found a 12-gauge shotgun in the attic.

Police determined the shotgun belonged to Higgason, and he admitted to being at the house several times throughout the night and early morning of the killings. He said he didn’t return after he traded the gun for cocaine.

Months later, police received a call from an FBI agent who said another man, David Copley, who was at the house that night, was having problems with his conscience and was involved with the murders.

Copley then told police that his earlier statement to them was true, “except for the part of when him and James Higgason left.”

He went on to tell police that they stayed at the house all night and killed them to rob them of their cocaine and money.

At trial, Copley said they were at the house smoking cocaine. Elva Tamez, one of the three people killed, went outside to get Higgason cigarettes. Higgason locked the door behind her and proceeded to beat the other two to death. Copley testified he hit one person.

Tamez began knocking at the door, and Copley let her in and ran down the block. But he said he saw Higgason beat Tamez and kick the door shut.

Copley said he later saw Higgason take off bloody clothes and put them in the trash and use snow to remove blood from his body.

After Copley gave his statement to police, they asked him to call Higgason and got consent to record the call.

Copley told Higgason he was going to tell police was happened.

“No, dude,” Higgason said. “… You are talking about life, dude, forever. You are talking about going in for life, dude.”

Higgason asked why Copley wanted to “take me down.”

During a second call, Higgason told Copley, “You should have never told anybody else, dude.”

The detective gave the prosecutor’s office evidence, but the prosecutor never charged anyone.

Then, in 2008, DNA evidence led police to meet again with Higgason, who denied he was involved and identified another man he said committed the murders.

The state didn’t prosecute anyone at that time.

In 2021, more DNA evidence led to Higgason and Copley being charged with three counts of murder and three counts of felony murder.

Copley pleaded guilty to one count of murder in return for a “complete and detailed sworn statement about his involvement in the crime.” He was sentenced to 45 years.

In May 2022, Higgason filed a motion to dismiss with the Lake Superior Court, arguing the evidence against him was “virtually the same evidence it has had in its possession since 1998” and the “delay in filing the charges is really inexplicable.”

The court denied the motion.

At trial, the state offered as evidence the recordings of Copley’s calls with Higgason. Because the recordings were of low quality, the state provided jurors with a transcript.

The trial court told jurors the calls were between Copley and Higgason, but Higgason objected, arguing the court made an improper statement identifying Higgason as the other person on the call because there was no evidence at that time that would identify Higgason as the other person.

The trial court clarified to jurors that “the testimony thus far is it’s a recorded phone call that was done by Mr. Copley.”

Higgason requested a mistrial “based on the inference that the court has concluded that the … statements are attributable to Mr. Higgason.”

The court denied the request, stating it believed the jurors would follow its earlier admonishment.

The jury returned guilty verdicts on all charges for Higgason, who again renewed his motion for a mistrial. The court again denied.

The court entered verdicts for the three murder charges, noting it believed the felony murder counts merge.

Higgason filed a motion to correct error, arguing the trial court errored when it didn’t contact him after the jury asked questions.

The court denied the motion to correct error, and Higgason was sentenced to 60 years for each murder, to be served consecutive to one another, for an aggregate sentence of 180 years.

Higgason presented multiple points on appeal, arguing the trial court abused its discretion when it denied his motion to dismiss, denied his request for mistrial and admitted recordings of the phone calls.

He also argued the trial court committed reversible error when it responded to a jury question without first notifying counsel.

The Court of Appeals disagreed.

Higgason cited the 23-year gap between the crime and charges in arguing the trial court errored in denying his motion to dismiss.

He cited a case — Barnett v. State, 867 N.E.2d 184 (Ind. Ct. App. 2007) — in which an inmate charged with voluntary manslaughter more than a decade after the fact convinced the Court of Appeals he “was clearly prejudiced by the State’s unexplained and unjustified delay  — whether intentional or negligent — in bringing charges.”

But the Court of Appeals ruled Higgason’s case is different.

The state, the court ruled, “was justified in the delay and did not engage in the delay to gain a tactical advantage. The State needed additional evidence to charge Higgason and that evidence could not be gathered at the time of the crime.”

Regarding his appeal of admitting recordings of the phone calls, Higgason argued the state didn’t lay a proper foundation for admitting the recordings.

But the Court of Appeals ruled the trial court did not abuse its discretion because it met every factor of the test established in McCollum v. State, 582 N.E.2d 804, 811-2 (Ind. 1991). That includes that a tape recording “be of such clarity as to be intelligible and enlightening to the jury.”

The Court of Appeals ruled that while the tapes had “certainly aged,” the clarity was sufficient.

Higgason also argued the court erred because it entered digitized recordings of the calls rather than the actual tapes, which he said were the available best evidence.

The Court of Appeals disagreed, ruling the recordings were properly admitted under Evidence Rule 1003.

Regarding his appeal of the court’s denial of his request for mistrial, Higgason said when the trial court identified him as the second person on the calls with Copley, he “was placed in grave peril” of an unfair trial.

The Court of Appeals ruled the inadvertent error didn’t place him in grave peril of an unfair trial because the comment was brief, subsequent evidence supported the statement, and the trial court properly admitted the error.

Finally, in arguing the trial court erred when it didn’t notify him after the jury submitted two questions, Higgason said one of the questions about what it would mean if the defendant was present but didn’t inflict any blows was a request to be informed of law arising in the case and thus counsel should have been present in the courtroom for the trial court’s answer.

The Court of Appeals first ruled Higgason’s argument was waived because he didn’t make an objection at trial. Waiver notwithstanding, the court ruled the error was harmless.

Judge Melissa May wrote the opinion. Judge Peter Foley and Senior Judge Edward Najam concurred.

The case is James H. Higgason III v. State of Indiana, 22A-CR-2000.

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