¶1concurring in part, dissenting in part.
¶2I 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, 119 S.Ct. 1307, 143 L.Ed.2d 424 (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 Mitchelldid 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, 310 Md. 244, 528 A.2d 1271, 1278 (1987); State v. Kaquatosh, 600 N.W.2d 153, 158 (Minn.Ct.App.1999); People v. Bell, 127 Misc.2d 43, 485 N.Y.S.2d 416, 420 (N.Y.Sup.Ct.1985); Knight v. Maybee, 44 *255Misc.2d 152, 253 N.Y.S.2d 59, 63 (N.Y.Sup.Ct.1964).
¶3In 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 High-baugh 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 High-baugh’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 High-baugh’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.