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Full Opinion
FILED
Mar 18 2025, 8:53 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Court of Appeals of Indiana
Ajaylan M. Shabazz,
Appellant-Defendant
v.
State of Indiana,
Appellee-Plaintiff
March 18, 2025
Court of Appeals Case No.
24A-CR-909
Appeal from the Allen Superior Court
The Honorable David Zent, Judge
Trial Court Cause No.
02D06-2111-MR-20
Opinion by Judge DeBoer
Judge May concurs.
Judge Tavitas concurs in result with separate opinion.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 1 of 38
DeBoer, J.
Case Summary
[1] In May 2021, after being accused of stealing drugs, Tiffany Ferris (âFerrisâ) was
beaten, carried to a bathtub, and drowned in a Fort Wayne motel room. DNA
evidence, eyewitness testimony, and Ajaylan Shabazzâs (âShabazzâ) own
admissions established his direct and voluntary participation in the murder. A
jury found Shabazz guilty of murder 1 under an accomplice liability theory.
Given the overwhelming evidence of Shabazzâs guilt and finding no reversible
error in the trial courtâs rulings, we affirm.
Issues
[2] On appeal, Shabazz presents a number of issues for our review, which we
reorder and restate as follows:
(1) Whether the trial court erred in allowing a witness to testify remotely
during his trial;
(2) Whether the trial court committed fundamental error by admitting
evidence of a robbery committed by Shabazz and his alleged accomplices
shortly after the killing;
1
Ind. Code § 35-42-1-1(1).
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 2 of 38
(3) Whether the trial court abused its discretion by allowing evidence that an
alleged accomplice in the murder had died but not that she had died by
suicide;
(4) Whether the trial court (a) improperly refused to instruct the jury on the
offense of assisting a criminal as a lesser included offense to murder, and
(b) abused its discretion by prohibiting Shabazz from arguing in his
closing argument that he had only committed the offense of assisting a
criminal;
(5) Whether the accomplice liability jury instructions were incorrect and
constituted fundamental error; and
(6) Whether the evidence was sufficient to support Shabazzâs murder
conviction.
Facts and Procedural History
[3] In May 2021, Shabazz, Ferris, Ariona Darling (âDarlingâ), and Dustin Blair
(âBlairâ) intermittently used a motel room used for storage in the Fort Wayne
Suburban Inn unbeknownst to the management of the motel. The âfilthyâ and
cluttered room was accessed through a window and served the dual purposes of
providing the individuals with shelter and a place to use drugs. Tr. Vol. 1 at
160.
[4] Around 11:30 p.m. on May 9, 2021, Shabazz and Darling walked to a Shell gas
station near the Suburban Inn. While Darling was in the convenience store,
Shabazz encountered Terry Smith (âSmithâ) outside, who was a âtotal
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 3 of 38
strangerâ at the time. Id. at 185. Smith asked about Darlingâs availability, but
Shabazz indicated she was not available because she was his fiancĂŠe. The
conversation then turned to drugs, and Shabazz and Smith discussed trading
drugs they each possessed or could secure. Shabazz informed Darling of the
plan and the couple got into Smithâs pickup truck and Smith drove them back
to the Suburban Inn.
[5] Once there, Shabazz, Darling, and Smith entered through the window into the
abandoned motel room where Ferris and Blair were occupying the room. At
the time, Blair was withdrawing from crystal methamphetamine and Ferris was
withdrawing from fentanyl and was âdope sickââexperiencing cramps, chills,
shakes, and sweats. Id. at 135. Blair had only known Shabazz and Darling for
a short time and felt âawkwardâ about the situation, so he left the motel room.
Id. at 136. When he left, Ferris was uninjured and sleeping in a chair. He
walked to the nearby Shell gas station where his sister-in-law worked, and she
allowed him to sleep in her car for a while. Around this time, Shabazz also left
the motel room.
[6] While Shabazz was gone, the situation in the room escalated. Darling began
âlooking for somethingâ and then accused Ferris of stealing her drugs. Id. at
188. When Ferris denied stealing her drugs, Darling became angry and began
âpunch[ing]â and âbeating onâ Ferris and made Ferris strip so that she could
search her for the allegedly stolen drugs. Id. at 189. At some point during her
tirade, Darling messaged Shabazz who returned to the room to find Darling
â[o]ut of controlâ and âbeating onâ Ferris. Id. at 191. When he returned,
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 4 of 38
Shabazz picked up Ferris, who was approximately 100 pounds, and slammed
her to the floor, striking her head on the corner of a dresser in the process.
While Ferris bled, and despite her begging him to stop, Shabazz kicked and
stomped on her head. In the midst of these events, Smith, who was ânot in a
hurry to leaveâ because he was there for drugs, âwait[ed] aroundâ and occupied
himself on his phone. Id. at 190.
[7] Shabazz and Darling picked up Ferris, who was still alive, and carried her to
the bathtub. Smith briefly left the room to go to the store, but he returned when
Shabazz called him about their drug transaction. When Smith returned, he
noticed Shabazz and Darling were both âmoving fast and acting weirdâ and
they were attempting to clean up. Id. at 195. Darling had scissors and was
cutting up the carpet and disposing of it in a trash can. Smith went into the
bathroom and saw Ferris naked and dead in the bathtub with blood coming
from her face and head. Medical evidence later showed that Ferris had died
from drowning in a manner consistent with homicide, and there was evidence
of blunt force trauma to her head consistent with being punched or kicked.
[8] Shabazz and Darling removed some carpet and other evidence from the room
and then, around 5:55 a.m., Smith drove them to a nearby hotel where they
disposed of the evidence in dumpsters. Later that same morning, and after the
others had departed, Blair walked back to the storage room at the Suburban Inn
and discovered Ferrisâs lifeless body in the bathtub. He then returned to Shell
to ask an employee to call law enforcement.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 5 of 38
[9] After disposing of the evidence, Shabazz, Darling, and Smith hatched a plan to
rob Henry Wright (âWrightâ), an acquaintance Shabazz and Darling had met
at the motel. Darling contacted Wright and asked if they could stop by his
residence at the Hawthorne Suites. After Wright let the three of them inside the
residence, they robbed him at gunpoint. Smith wielded the gun and Shabazz,
armed with a butcher knife, sat at a table and gave orders as Smith and Darling
shoved Wrightâs belongings into suitcases. During the robbery, Shabazz
switched shoes with Wright and left his own bloodstained shoes behind.
Testing later revealed Ferrisâs DNA was present on Shabazzâs discarded shoes.
After the robbery, Smith drove Shabazz and Darling to Indianapolis, where
they were all arrested two days later.
[10] On November 1, 2021, the State charged Shabazz with murder under an
accomplice liability theory. While in custody, Shabazz made several
incriminating statements to various individuals. Blair was in custody with
Shabazz, who told Blair he âkilled that bitchâ and that Blair needed to âkeep
[his] mouth shutâ or he would âend up like her just as easy.â Id. at 139.
Shabazz also admitted to another inmate, Miquan Jones (âJonesâ), that he
killed Ferris. Later, Shabazz attempted to influence Jonesâs testimony by
having a guard pass Jones a threatening noteâan interaction that was captured
on surveillance video. Smith also received a note from Shabazz telling him to
â[k]eep it solidâ and informing him that Darling had died. Ex. Vol. 2 at 29. He
suggested that Smith âsay she did itâ and that they could use Darling as a
âscapegoat on this case!â Id.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 6 of 38
[11] By the time Shabazz was tried for murder in February 2024, Jones had been
moved to a Department of Corrections (âDOCâ) facility four hours from Fort
Wayne. The State requested Jones be permitted to testify from the DOC
because the Sheriff did not have the resources to bring Jones to testify in person.
The trial court granted the Stateâs request over Shabazzâs objection. The parties
also argued to the trial court whether the jury should be allowed to hear that
Darling died by committing suicide while in jail. The trial court allowed the
parties to tell the jury that she had died, but not how she died.
[12] During the trial, the trial court allowed evidence of Shabazzâs involvement with
the robbery of Wrightâs residence subject to a limiting instruction, explaining
that it showed the relationship between the accomplices and directly connected
Shabazz to the killing through the DNA evidence recovered from his discarded
shoes. The trial court declined to give a jury instruction on assisting a criminal
as a lesser included offense to murder and did not permit defense counsel to
argue in their closing statement that Shabazz should have been charged with
assisting a criminal. Following the four-day trial, the jury found Shabazz guilty
of murder. The trial court later entered judgment of conviction and sentenced
Shabazz to an executed term of sixty-three years in the DOC.
Discussion and Decision
1. Witness Testimony by Video
[13] Shabazz argues that the trial court erred by allowing Jones to testify via Zoom
because the State failed to show good cause to conduct the testimonial
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 7 of 38
proceeding remotely in accordance with interim Administrative Rule 14(C).
While the focus of his argument is geared toward Administrative Rule 14(C),
Shabazz also mentions, without making much of an argument, that the remote
testimony violated his right to confrontation under the Sixth Amendment to the
United States Constitution and Article 1, Section 13 of the Indiana
Constitution. Shabazz failed to support his constitutional claims with
applicable authorities and cogent reasoning as required by Indiana Appellate
Rule 46(A)(8)(a); however, because his constitutional claims are contemplated
by Administrative Rule 14(C), we address his arguments anyway.
[14] When the parties discussed preliminary matters with the trial court before trial,
the State requested that Jones be permitted to testify via Zoom. Because Jones
was in custody, the State explained that it had contacted the DOC about
Jonesâs placement a few months before Shabazzâs trial, but the DOC had not
yet determined where Jones would be housed when the trial was scheduled to
begin. The week before trial, the State filed an order to transport Jones from
the DOC but was informed by the Allen County Jail that the county lacked the
resources to transport Jones on this timeline because he was housed in a DOC
facility located four hours from the county courthouse. Over Shabazzâs
objection, the trial court permitted Jones to testify remotely.
[15] On the third day of the jury trial, the State called Jones to testify remotely via
Zoom and Shabazz objected again. The trial court stated that it would ârather
have him here in person but you can see his whole body. You can see his face.
You can see heâs disappointed right now looking around, but it [is] the best we
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 8 of 38
can do under the circumstances.â Tr. Vol. 2 at 105. Subsequently, Jones
testified that, while they served as inmates together in the Allen County Jail,
Shabazz admitted to Jones that he had killed Ferris and later sent Jones a note
threatening to kill him if he testified to what Shabazz had told him. The State
promised Jones a sentence of home detention in exchange for his truthful
testimony; however, Jones ended up committing another offense and was
returned to the DOC.
[16] Responding to the COVID-19 pandemic, the Indiana Supreme Court issued an
emergency order in May 2020 amending Indiana Administrative Rule 14 âto
expand trial courtsâ ability to conduct remote proceedings through audiovisual
communication[.]â B.N. v. Health and Hospital Corp., 199 N.E.3d 360, 362 (Ind.
2022). Effective January 1, 2023, the Supreme Court rescinded this order,
finding that the âemergency conditions that necessitated the Emergency Order
no longer remain[,]â and issued interim Administrative Rule 14, which is
effective today. Interim Administrative Rule for Remote Proceedings, Cause No.
22S-MS-1 (Ind. Sept. 30, 2022). Administrative Rule 14(C) states that â[a]
court must conduct all testimonial proceedings in person except that a court
may conduct the proceedings remotely for all or some of the case participants
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 9 of 38
for good cause shown or by agreement of the parties. Remote proceedings must
comply with constitutional and statutory guarantees.â 2 Id.
[17] Commentary to the Rule provides that â[p]resenting live testimony in court
remains of utmost importanceâ in Indiana and, therefore, findings of good
cause ârequire particularized and specific factual support.â B.N., 199 N.E.3d at
364; see also G.W. v. Madison State Hospital, 245 N.E.3d 153, 158 (Ind. Ct. App.
2024). There must be âsomething specific to the moment, the case, the court,
the parties, the subject matter, or other relevant considerations.â B.N., 199
N.E.3d at 364-65. â[W]e review a trial courtâs good-cause determination for an
abuse of discretion.â Id at 363.
[18] The Sixth Amendment to the United States Constitution instructs that â[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.â âThe essential purpose of the Sixth
Amendment right to confrontation is to ensure that the defendant has the
opportunity to cross-examine the witnesses against him.â Howard v. State, 853
N.E.2d 461, 465 (Ind. 2006). â[T]he right to adequate and effective cross-
examination is fundamental and essential to a fair trial.â Id. Indianaâs
confrontation right is mostly âco-extensiveâ with the federal right of
confrontation but âdiffers from its federal counterpart in that it contemplates a
2
Under the Rule, a âtestimonial proceedingâ is âa proceeding in which the judge receives sworn oral
testimony;â a âremote proceedingâ is a proceeding that uses âtelephone or videoconferencing capabilities to
allow case participants to appear virtually;â and âcase participantsâ include witnesses. Admin. Rule 14(A)(1)-
(3).
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 10 of 38
face-to-face meeting in which the accused and the witness can see and recognize
one another.â Brady v. State, 575 N.E.2d 981, 987 (Ind. 1991); Hutcherson v.
State, 966 N.E.2d 766, 771 (Ind. Ct. App. 2012), trans. denied; see also Johnson v.
State, 201 N.E.3d 1198 (Ind. Ct. App. 2023), trans. denied. Violations of both
the federal and Indiana rights of confrontation are subject to review for
harmless error. Coy v. Iowa, 487 U.S. 1012, 1021 (1988); Johnson, 201 N.E.3d at
1206, 1209.
[19] Here, the trial courtâs finding of good cause to allow Jones to testify via Zoom
was supported by case-specific circumstances that made physical transport
unfeasible. Jonesâs uncertain location within the DOC initially prevented
transport arrangements, and once Jones was located, resource and time
constraints prevented the eight-hour round trip. Additionally, Shabazzâs core
constitutional right to cross-examination under the Sixth Amendment was
preserved as his counsel rigorously cross-examined Jones. See Howard, 853
N.E.2d at 465 (âThe essential purpose of the Sixth Amendment right of
confrontation is to ensure that the defendant has the opportunity to cross-
examine the witnesses against him.â). The record also reflects that those in the
courtroom could see Jones clearly and Shabazz does not contend that Jones
could not see him. Importantly, as Shabazz conceded, Jones was not an
eyewitness to the murder itself but provided cumulative testimony regarding
one of Shabazzâs multiple jailhouse admissions. We find that good cause was
shown under Administrative Rule 14(C) and that Shabazz failed to establish a
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 11 of 38
violation of his right to confrontation under our state or federal constitutions
such that reversal is required.
2. Admission of Evidence Under Rule 404(b)
[20] Shabazz next challenges the trial courtâs admission of his involvement in the
robbery of Wright committed at the Hawthorne Suites shortly after Ferrisâs
murder. He contends that this evidence served only to prove his criminal
propensity and that its prejudicial effect substantially outweighed its probative
value.
[21] Evidentiary rulings under Indiana Evidence Rule 404(b) are generally reviewed
for an abuse of discretion. Fairbanks v. State, 119 N.E.3d 564, 567 (Ind. 2019),
cert. denied, 140 S. Ct. 198 (Oct. 7, 2019). However, because Shabazz failed to
object to the admission of this evidence at trial, his argument cannot succeed
unless Shabazz can demonstrate that fundamental error occurred. See
Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). Fundamental error is an
âextremely narrowâ exception that âapplies only when the error constitutes a
blatant violation of basic principles, the harm or potential for harm is
substantial, and the resulting error denies the defendant fundamental due
process.â Id.
[22] Rule 404(b) âserves to safeguard the presumption of innocence in favor of
criminal defendantsâ and âprevents the jury from indulging in the âforbidden
inferenceâ that a criminal defendantâs âprior wrongful conduct suggests present
guilt.ââ Fairbanks, 119 N.E.3d at 568 (quoting Byers v. State, 709 N.E.2d 1024,
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 12 of 38
1026-27 (Ind. 1999)). Accordingly, Rule 404(b)(1) provides that â[e]vidence of
a crime, wrong, or other act is not admissible to prove a personâs character in
order to show that on a particular occasion the person acted in accordance with
the character.â However, such evidence âmay be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.â Rule 404(b)(2).
Rule 404(b) is also subject to Rule 403âs balancing test. Thus, when assessing
the admissibility of evidence under Rule 404(b), the trial court must: (1)
âdetermine that the evidence of other crimes, wrongs, or acts is relevant to a
matter at issue other than the defendantâs propensity to commit the charged
act;â and (2) determine whether the probative value of the evidence is
substantially outweighed by its prejudicial effect. Laird v. State, 103 N.E.3d
1171, 1177 (Ind. Ct. App. 2018), trans. denied.
[23] It is well established that the list of âother purposesâ in Rule 404(b) is ânot
exhaustive.â Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997). The State
charged Shabazz with murder under an accomplice liability theory and the trial
court found that evidence of the robbery which occurred within hours of the
murder was ârelevant and probative to the relationship of the alleged
accomplices.â Appellantâs App. Vol. 2 at 58. We agree with the trial court. In
his testimony at trial, Shabazz actively disputed that he voluntarily aided,
caused or induced Ferrisâs murder. He claimed to be a follower who was
threatened with force and then directed by Smith to move Ferris into the
bathroom. In contrast, Smith and Wrightâs testimony regarding the robbery,
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 13 of 38
which occurred just hours after the murder, depicted it as pre-planned and
executed by the cohesive unit with Shabazz as their leader. The trial court did
not abuse its discretion in allowing the State to use this evidence to attempt to
show the nature of relationship between the alleged accomplices.
[24] Additionally, physical evidence recovered from the robbery scene directly
connected Shabazz to Ferrisâs murder. Specifically, the bloodstained shoes
Shabazz discarded at Wrightâs residence were later determined to contain
Ferrisâs DNAâevidence that was particularly probative given Shabazzâs claim
that he was not an active participant in the murder.
[25] The trial court also conducted a Rule 403 analysis, finding that the probative
value of this evidence was not substantially outweighed by its prejudicial
impact. âAll evidence that is relevant to a criminal prosecution is inherently
prejudicial, and thus the [Rule 403] inquiry boils down to a balance of the
probative value of the proffered evidence against the likely unfair prejudicial
impact of that evidence.â Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App.
2012), trans. denied (emphasis added). To mitigate the prejudicial effect of the
details of the robbery, the trial court instructed the jury on the limited purposes
for which the robbery evidence could be considered. Given the courtâs limiting
instruction and the highly probative testimony detailing Shabazzâs leading role
in the robbery committed a few hours after Ferisâs murder, we cannot say that
the trial court erred in admitting this evidence.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 14 of 38
3. Darlingâs Suicide
[26] In a preliminary discussion before trial commenced, the State asked the trial
court to allow the parties to inform the jury that Darling had died without
sharing that she had died by suicide while in jail. The State argued that her
death was relevant to keep the jury from âwondering where she is, why sheâs
not here,â but that informing the jury she had committed suicide was
inappropriate because it would âleave [the jurors] . . . speculating as to why she
did that.â Tr. Vol. 1 at 5-6. Defense counsel argued that âjust as much
speculationâ would occur âif we donât tell [the jury] how or whyâ she died. Id.
at 6. Ultimately, the trial court found that how and where Darling died was not
relevant to the case and allowed mention of her death but not the manner or
location of her death.
[27] Shabazz argues that the trial courtâs evidentiary ruling was prejudicial to
Shabazz and âallow[ed] the State to have âits cake and eat it too.ââ 3 Appellantâs
Br. at 35. Trial courts have âbroad discretion in ruling on the admission or
exclusion of evidenceâ and we disturb these rulings only upon a showing of an
abuse of discretion. Palilonis v. State, 970 N.E.2d 713, 725 (Ind. Ct. App. 2012),
trans. denied. However, failure to timely object to the erroneous admission of
evidence at trial results in waiver of the issue on appeal unless the admission
3
In support of his argument, Shabazz cites only one case: Stephenson v. State, 29 N.E.3d 111 (Ind. 2015).
Stephenson concerned the admissibility of the defendantâs suicide attempt, which we find inapposite to the
issue of an unavailable witnessâs absence.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 15 of 38
constitutes fundamental error. Stephenson v. State, 29 N.E.3d 111, 118 (Ind.
2015). Shabazz did not object at trial when the State asked the investigating
detective whether and when Darling âpass[ed] awayâ and he has not asked this
Court to review the admission of this evidence for fundamental error. Tr. Vol. 1
at 243. Accordingly, Shabazz waived this argument on appeal.
[28] Waiver notwithstanding, the trial court did not abuse its discretion by
permitting evidence that Darling had died but excluding evidence that she had
died by suicide. While we acknowledge there is a dearth of authority on this
issue, two cases are particularly informative.
[29] In Moore v. State, 440 N.E.2d 1092, 1093 (Ind. 1982), the female rape victim was
found dead in her home days before Mooreâs trial. A note found next to her
body indicated she had committed suicide, but her death certificate only
indicated she had died from a bullet wound to the chest. Id. At trial, the jury
was allowed to view the victimâs death certificate and they knew the timing of
her death, but the trial court did not allow evidence of the suicide to be
admitted. Id. at 1093-94. Our Supreme Court concluded that the trial courtâs
ârefusal to allow the admission of any evidence tending to show the witnessâ
death was a suicide, coupled with the admission of evidence strongly suggesting
she was murdered,â had deprived Moore of his right to a fair trial and
constituted fundamental error. Id. at 1094 (noting that jurors were left âfree to
infer appellant had arranged for, or himself committed the murder of [the
victim] to prevent her from testifying against himâ).
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 16 of 38
[30] In Palilonis, the trial court ruled that the State could present evidence that a rape
victim, B.S., was deceased but could not reveal that she had committed suicide.
Palilonis, 970 N.E.2d at 721. On appeal, Palilonis argued that Moore mandated
reversal of his rape conviction because the jury had been informed that B.S. was
unavailable because she was dead. Id. at 725. However, our Court
distinguished Moore, calling it a ânarrowâ holding following a âfact-specific
inquiry.â Id. We found that the trial court had âacted in the best interest of
both partiesâ because informing the jury that B.S. had committed suicide would
have prejudiced Palilonis, and failing to give the jury any reason for B.S.âs
absence would have prejudiced the State. Id. at 726.
[31] Here, the specific facts of this case show that the trial court made a fair
judgment that shielded both Shabazz and the State from inappropriate
prejudice. The trial court heard argument on the issue before determining that
how Darling died was not relevant and that it did not âaffect[] any of the
elements of [the] case.â Tr. Vol. 1 at 7. Additionally, unlike in Moore, the trial
court did not allow the State to introduce evidence of Darlingâs death in a
manner that was certain to produce rampant speculation amongst the jurors.
Rather, the jurors heard the investigating detective subtly acknowledge that
Darling had âpass[ed] awayâ in June 2021. Id. at 243. And later, after this fact
was established, jurors viewed a note Shabazz had written to Smith, stating that
Darling was âdead so we got a scapegoat on this case!â Ex. Vol. 2 at 29. The
trial court protected the interests of both parties and did not abuse its discretion
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 17 of 38
by permitting evidence that Darling had died but excluding evidence that she
had died by suicide.
4. Assisting a Criminal
A. Jury Instruction
[32] Shabazz argues that the trial court erred in refusing to instruct the jury on
assisting a criminal as a lesser included offense of murder. Relatedly, he argues
that the trial court abused its discretion by not letting defense counsel argue to
the jury that Shabazz had committed the uncharged crime of assisting a
criminal.
[33] When determining whether an instruction on a lesser included offense is
appropriate, there is a three-part test the trial court should perform. See Wright
v. State, 658 N.E.2d 563 (Ind. 1995).
First, the trial court must compare the statute defining the crime
charged with the statute defining the alleged lesser included
offense to determine if the alleged lesser included offense is
inherently included in the crime charged. Second, if a trial court
determines that an alleged lesser included offense is not
inherently included in the crime charged under step one, then it
must determine if the alleged lesser included offense is factually
included in the crime charged. If the alleged lesser included
offense is neither inherently nor factually included in the crime
charged, the trial court should not give an instruction on the
alleged lesser included offense. Third, if a trial court has
determined that an alleged lesser included offense is either
inherently or factually included in the crime charged, âit must
look at the evidence presented in the case by both partiesâ to
determine if there is a serious evidentiary dispute about the
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 18 of 38
element or elements distinguishing the greater from the lesser
offense and if, in view of this dispute, a jury could conclude that
the lesser offense was committed but not the greater.
Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citing Wright, 658 N.E.2d at
563).
[34] Our Indiana Supreme Court has consistently held that assisting a criminal is not
inherently included in the offense of murder, and this is readily apparent upon
comparing the two statutes. Hauk v. State, 729 N.E.2d 994, 999 (Ind. 2000);
Sturgeon v. State, 719 N.E.2d 1173, 1183 (Ind. 1999); Reynolds v. State, 460
N.E.2d 506, 510 (Ind. 1984), rehâg denied. Murder is the knowing or intentional
killing of another human being. Ind. Code § 35-42-1-1(1). In contrast, assisting
a criminal occurs when â[a] person not standing in the relation of parent, child,
or spouse to another person who has committed a crime or is a fugitive from
justice who, with intent to hinder the apprehension or punishment of the other
person, harbors, conceals, or otherwise assists the person[.]â I.C. § 35-44.1-2-
5(a). This offense is a Level 5 felony if the person assisted has committed a
murder. I.C. § 35-44.1-2-5(a)(2). Clearly, someone may knowingly or
intentionally kill another human being without assisting a person in avoiding
detention or arrest. Wright v. State, 690 N.E.2d 1098, 1108 (Ind. 1997), rehâg
denied. Furthermore, âthe assisting a criminal statute was intended to apply to
people who did not actively participate in the crime itself, but who did assist a
criminal after he or she committed a crime.â Hauk, 729 N.E.2d at 999.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 19 of 38
[35] âTo determine whether an alleged lesser-included offense is factually included
in the crime charged, we must compare the charging instrument in the specific
case with the statute defining the alleged lesser-included offense.â Id. âIf the
charging instrument alleges that the means used to commit the crime charged
include all of the elements of the alleged lesser included offense, the alleged
lesser included offense is factually included in the crime charged[.]â Wright,
690 N.E.2d at 1108.
[36] Here, the charging information alleges that âShabazz, while acting in concert
with Terry Smith Jr., and/or Ariona Darling, did knowingly or intentionally
kill another human being, to wit: Tiffany Ferris.â Appellantâs App. Vol. 2 at 25.
This charge contemplates Shabazzâs direct participation in the murder of Ferris
and does not allege that the crime charged could be proven by showing that
Shabazz merely assisted others after they had killed Ferris. Accordingly,
assisting a criminal was not factually included in the crime charged and the trial
court properly declined to instruct the jury as such.
B. Closing Argument
[37] Relatedly, Shabazz argues that the trial court abused its discretion by not
allowing him to claim in his closing argument that he may have committed
assisting a criminal. âIt is well settled that the proper scope of final argument is
within the trial courtâs sound discretion.â Nelson v. State, 792 N.E.2d 588, 591
(Ind. Ct. App. 2003), trans. denied. The trial court does not abuse its discretion
âunless its decision is clearly against the logic and effect of the facts and
circumstances before it.â Dixey v. State, 956 N.E.2d 776, 782 (Ind. Ct. App.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 20 of 38
2011), trans. denied. âIn seeking reversal of a conviction, the appellant must not
only show that the trial court erred but also that he was prejudiced by the
error.â Id.
[38] In Dixey, the State had charged Dixey with theft and the trial court ruled that
Dixeyâs counsel could not mention the uncharged offenses of utility fraud and
criminal deception during closing argument. Id. at 780. After he was found
guilty as charged, Dixey appealed, arguing that the court erred because the jury
could have found the other statutes more relevant to the evidence presented. Id.
at 782. Our Court granted Dixey a new trial, finding prejudice, and reasoned
that âthe jury would have been aided had Dixey been able to explain that the
legislature had enacted other offenses directly related to the use of utility bypass
schemes or devices that do not require proof of the same requisite mens rea as
theft.â Id. at 783.
[39] Here, the difference between the offenses of murder under an accomplice
liability theory and assisting a criminal is not the level of mens rea required for
conviction; rather, the offenses require temporally different conduct. A person
is not an accomplice to murderâand therefore equally guilty of murder under
the lawâif they only sheltered or assisted the killer after the fact. See Dean v.
State, 222 N.E.3d 976, 988 (Ind. Ct. App. 2023) (â[A]n accomplice is criminally
responsible for all acts committed by a confederate which are a probable and
natural consequence of their concerted action.â), trans. denied.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 21 of 38
[40] Moreover, counsel has no right to argue a theory unsupported by the evidence.
Taylor v. State, 457 N.E.2d 594, 599 (Ind. Ct. App. 1983). While testifying at
trial, Shabazz admitted that he actively participated in the murder by grabbing
Ferrisâs legs and dragging her to the bathroom with Smith. However, he stated
that he did so â[u]nder duress of a gunâ Smith had pointed at him while
demanding Shabazz âgrab her fu***** legs.â Tr. Vol. 2 at 194, 200. He then
claimed that Smith was the one who cleaned up the crime scene, that he did not
âcarry evidence outâ of the motel, and that he did not trash any evidence. Id. at
201. At the conclusion of evidence, Shabazz asked the trial courtâs permission
to argue in closing that he may have committed the uncharged offense of
assisting a criminal. However, Shabazz denied that he assisted the others after
the murder and his testimony shows he was not prevented from arguing his true
defense theory in closingâthat his only participation in the murder was moving
Ferrisâs body, which he allegedly did under duress. This is buttressed by the
fact that Shabazz successfully petitioned the trial court to instruct the jury on
the affirmative defense of duress.
[41] We find no abuse of discretion in the limitation the trial court placed on
Shabazzâs closing argument.
5. Accomplice Liability Instructions
[42] Shabazz argues that the trial courtâs instructions on accomplice liability were
fundamentally flawed because they failed to define the phrase âacting in
concertâ and did not adequately convey that his conduct must have been
voluntary. Shabazz concedes that he did not object to these instructions at trial
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 22 of 38
or tender alternative instructions. Consequently, he must demonstrate
fundamental error to prevail. See Paul v. State, 189 N.E.3d 1146, 1159-60 (Ind.
Ct. App. 2022), trans. denied. As we previously stated, â[f]undamental error
occurs only when the error âmakes a fair trial impossible or constitutes clearly
blatant violations of basic and elementary principles of due process presenting
an undeniable and substantial potential for harm.ââ Id. at 1160 (quoting Strack
v. State, 186 N.E.3d 99, 103 (Ind. 2022)). There is no due process violation
where the information given to the jury, âconsidered as a whole, does not
mislead the jury as to a correct understanding of the law.â Boesch v. State, 778
N.E.2d 1276, 1279 (Ind. 2002).
[43] The trial court instructed the jury that the State had to prove beyond a
reasonable doubt that Shabazz, while acting in concert with Smith and/or
Darling, knowingly or intentionally killed Ferris. It also provided accomplice
liability instructions as follows:
Accomplice liability is defined by statute as follows:
A person who knowingly or intentionally aids, induces, or causes
another person to commit an offense commits that offense, even
if the other person:
(1) Has not been prosecuted for the offense
(2) Has not been convicted of the offense; or
(3) Has been acquitted of the offense
...
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 23 of 38
Under accomplice liability theory, the evidence need not show
that the accomplice personally participated in the commission of
each element of a particular offense; rather, an accomplice is
criminally responsible for all acts committed by a confederate
which are a probable and natural consequence of their concerted
action.
Neither mere presence at the scene of the crime nor negative
acquiescence, standing alone, is sufficient to permit an inference
that one participated in a crime.
In determining whether a defendant aided another in the
commission of a crime the jury may consider the following: (1)
presence at the scene of the crime; (2) companionship with
another engaged in the criminal activity; (3) failure to oppose the
commission of the crime; and (4) the course of conduct before,
during, and after the occurrence of the crime.
Appellantâs App. Vol. 2 at 170-71.
[44] While the trial court has a duty to define words for the jury that have âtechnical
or legal meaning[s] normally not understood by jurors unversed in the law[,]â it
can expect the jury to ârely on its collective common sense and knowledge
acquired through everyday experiences.â Yeary v. State, 186 N.E.3d 662, 680
(Ind. Ct. App. 2022). Here, the jury did not need a special instruction defining
âacting in concertâ because the phrase could be commonly understood when
read alongside the accomplice liability instruction. Moreover, when taken
together, the instructions âcontain[ed] the pertinent language regarding
accomplice liability to instruct the jury.â Paul, 189 N.E.3d at 1160 (finding no
fundamental error in a nearly identical set of accomplice liability instructions).
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 24 of 38
[45] Shabazzâs argument that the jury was not adequately instructed that the offense
required voluntary conduct also fails. In Small v. State, 531 N.E.2d 498, 499
(Ind. 1988), the Indiana Supreme Court found that the following accomplice
liability instruction was inadequate:
Indiana law provides that: A person who knowingly or
intentionally aids, induces, or causes another person to commit
an offense commits that offense.. [sic] It is also the law that a
Defendant is responsible for the acts of his codefendants as well
as his own acts. Any act of one is attributable to them all.
Id. The Supreme Court reasoned that this instruction was erroneous because it
conveyed that the defendant could be found guilty simply by virtue of his
relationship with the person who had inflicted the gunshot wound and without
regard to whether they were acting in concert at the time. Id.
[46] Here, the accomplice liability instructions do not suggest that Shabazz could be
convicted of murder based on the actions of Darling or Smith without regard to
whether their actions occurred while Shabazz was acting in concert with them.
See Brooks v. State, 895 N.E.2d 130, 134 (Ind. Ct. App. 2008) (distinguishing
Small). Rather, the jury was instructed that âan accomplice is criminally
responsible for all acts committed by a confederate which are a probable and
natural consequence of their concerted action.â Appellantâs App. Vol. 2 at 171
(emphasis added). Furthermore, the murder instruction conveyed that the State
was required to prove the killing was knowing or intentional and the instruction
defining accomplice liability stated that Shabazzâs actions as an accomplice
must have been knowing or intentional. The instructions, taken as a whole,
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 25 of 38
sufficiently conveyed to the jury that Shabazzâs conduct must have been
voluntary.
[47] For these reasons, there was no error in the accomplice liability instructions.
6. Sufficiency of Evidence
[48] Finally, Shabazz argues that the State presented insufficient evidence at trial to
support his conviction for murder, including that he did not act under duress. 4
He contends that the guilty verdict âwas the product of the juryâs emotional and
visceral reaction to Ferris being slainâ and the Stateâs decision to pursue
Shabazz over other likely suspects. Appellantâs Br. at 40.
[49] Our standard of review for sufficiency of the evidence challenges is well settled.
Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). When reviewing a claim that
the State failed to present sufficient evidence to rebut a defense, âthe same
standard applies as to other challenges to the sufficiency of evidence.â Gallagher
v. State, 925 N.E.2d 350, 353 (Ind. 2010). Sufficiency claims âtrigger a
deferential standard of review in which we âneither reweigh the evidence nor
judge witness credibility, instead reserving those matters to the province of the
jury.ââ Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting
4
The State argues that Shabazz was never entitled to an instruction on duress because this defense does not
apply to an âoffense against the person as defined in IC 35-42,â which includes murder. I.C. § 35-41-3-
8(b)(2). However, prior to the reading of the final instructions, the trial court specifically asked the State
whether it agreed with the duress instruction, including the striking of the reference that the defense does not
apply to an offense against the person. The State responded â[t]hatâs fine with the State.â Tr. Vol. 3 at 223.
Regardless of any waiver or the propriety of the duress instruction, we find that sufficient evidence supports
Shabazzâs conviction.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 26 of 38
Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), rehâg denied, cert. denied, 586
U.S. 1090 (Jan. 7, 2019)). âA conviction is supported by sufficient evidence if
âthere is substantial evidence of probative value supporting each element of the
offense such that a reasonable trier of fact could have found the defendant
guilty beyond a reasonable doubt.ââ Id. (quoting Willis v. State, 27 N.E.3d 1065,
1066 (Ind. 2015)). When conducting this review, âwe consider only the
evidence that supports the juryâs determination, not evidence that might
undermine it.â Id. We will âaffirm a defendantâs conviction unless âno
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.ââ Teising, 226 N.E.3d at 783 (quoting Jenkins v. State, 726
N.E.2d 268, 270 (Ind. 2000)).
[50] At the outset, we note that Shabazzâs sufficiency-of-the-evidence argument is
almost entirely a request to reweigh the evidence and the credibility of various
witnesses, including Smith 5 and himself, which we will not do. We also note
that Shabazz persuaded the trial court to instruct the jury on the defense of
duress and to inform the jury that the State was required to prove beyond a
reasonable doubt that Shabazz did not commit the charged act under duress. 6
5
Smith entered into a plea agreement whereby he pled guilty to Level 3 felony aggravated battery, received a
sentence of twelve years executed, and agreed to testify truthfully in this cause.
6
This instruction, which Shabazz does not dispute, defined duress as âa defense that the Defendant was
compelled to commit the acts charged by threat of imminent serious bodily injury to himself or another
person. Compulsion exists only if the force, threat, or circumstances would render a reasonable person
incapable of resisting the pressure.â Appellantâs App. Vol. 2 at 172.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 27 of 38
[51] There was ample evidence to support Shabazzâs conviction for murderâ
knowingly or intentionally killing Ferris while acting in concert with Darling
and/or Smith. See I.C. § 35-42-1-1(1). The evidence showed that Shabazz
joined Darling in beating Ferris and then picked up the small woman and
slammed her to the floor, striking her head on a dresser in the process. He and
Darling then carried Ferris to the bathtub where she was found dead due to
forcible drowning. Shabazzâs shoes bore Ferrisâs DNA and while he was in jail
he admitted to Blair and Jones that he killed Ferris and then threatened to kill
them if they told on him. He also told Smith to âkeep it solidâ and that
Darlingâs death meant they had a âscapegoat on this case!â Ex. Vol. 2 at 29. On
this evidence, a reasonable jury could have found Shabazz guilty of murder.
Conclusion
[52] For the foregoing reasons, we affirm Shabazzâs conviction for murder.
[53] Affirmed.
[54] May, J., concurs.
Tavitas, J., concurs in result with separate opinion.
ATTORNEY FOR APPELLANT
Gregory L. Fumarolo
Fort Wayne, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 28 of 38
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 29 of 38
Tavitas, Judge, concurring in result.
[55] I conclude that, by permitting Jones to testify remotely, the trial court violated
Shabazzâs right to confront witnesses as guaranteed by the Sixth Amendment to
the United States Constitution and Article 1, Section 13 of the Indiana
Constitution. I write separately because I also disagree with the majorityâs
finding that âgood cause was shown under Administrative Rule 14(C)â to
permit Jones to testify remotely via videoconferencing software. Supra, p. 11.
But because I believe the error is harmless beyond a reasonable doubt, I concur
in result in the majorityâs decision to affirm Shabazzâs convictions.
[56] As noted by the majority, by the time Shabazz was tried in February 2024,
Jones had been moved to a DOC facility outside Allen County. The State
requested that Jones be permitted to testify remotely, to which Shabazz
objected. The prosecutor stated, âthe jail told us they cannot transport [Jones]
here because they sent him to a prison thatâs 4 hours away. So, they cannot
bring him back for [t]rial. [T]hey donât have the resources unfortunately.â 7 Tr.
Vol. I p. 16. The trial court then stated: â[T]he County doesnât have unlimited
resources as in if they canât get him, they canât get him, but I mean so I guess
weâll talk to George and have the T.V. rolled in. And have [Jones] testify via
video.â Id. at 17. The prosecutor indicated that the State had filed for a
transport order for Jones a week before the trial, but there is no indication that
7
The prosecutorâs statements were not evidence. See Piatek v. Beale, 999 N.E.2d 68, 69 (Ind. Ct. App. 2013)
(âIt is axiomatic that the arguments of counsel are not evidenceâ), affâd on rehâg, trans. denied.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 30 of 38
such a transport order was issued. At minimum, the trial court should have
issued a transport order before finding that Jones could not, in fact, be
transported for trial. Ultimately, Jones was permitted to testify via Zoom
videoconferencing software. Jones argues on appeal that this violated his right
to confront the witnesses against him as guaranteed by both the Sixth
Amendment and Article 1, Section 13. I agree.
A. The Sixth Amendment
[57] The Sixth Amendment applies to the states via the Fourteenth Amendment.
Church v. State, 189 N.E.3d 580, 593 (Ind. 2022) (citing Pointer v. Texas, 380 U.S.
400, 403 (1965)). The Confrontation Clause of the Sixth Amendment provides:
âIn all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.â U.S. Const. amend VI.
[58] âThe [United States] Supreme Court has interpreted this clause as guaranteeing
âthe defendant a face-to-face meeting with witnesses appearing before the trier
of fact.ââ Johnson v. State, 201 N.E.3d 1198, 1203-04 (Ind. Ct. App. 2023)
(quoting Coy v. Iowa, 487 U.S. 1012 (1988)), clarified on rehâg, 206 N.E.3d 1195,
trans. denied. The right to face-to-face confrontation is not absolute, but this
ââdoes not . . . mean that it may easily be dispensed with.ââ Id. (quoting
Maryland v. Craig, 497 U.S. 836, 850 (1990)). The âprimary objectâ of the
Confrontation Clause was to:
prevent depositions or ex parte affidavits . . . being used against
the prisoner in lieu of a personal examination and cross-
examination of the witness in which the accused has an
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 31 of 38
opportunity, not only of testing the recollection and sifting the
conscience of the witness, but of compelling him to stand face to
face with the jury in order that they may look at him, and judge
by his demeanor upon the stand and the manner in which he
gives his testimony whether he is worthy of belief.
Id. at 1203-04 (citing Craig, 497 U.S. at 845). 8
[59] Thus, âthe right guaranteed by the Confrontation Clause includes not only a
âpersonal examinationâ but also âpermits the jury that is to decide the
defendantâs fate to observe the demeanor of the witness in making his
statement, thus aiding the jury in assessing his credibility.ââ Id. at 1204
(quoting Craig, 497 U.S. at 845-46) (emphasis added). Although ââphysical
confrontation may constitutionally be denied where the denial is necessary to
further an important public policy and âthe reliability of the testimony is
otherwise assured,ââ ââface-to-face confrontation at trial is preferred.ââ Id.
(emphasis added) (quoting Craig 497 U.S. at 847). Accordingly, there must be a
âcase-specificâ finding of necessity before the Sixth Amendment right to face-
to-face confrontation can be abridged. Id. (citing Craig, 497 U.S. at 855).
[60] Here, there was no such case-specific finding regarding the necessity of
permitting Jones to testify remotely. And nothing in the record shows that
denying Shabazzâs constitutional right to confront Jones was necessary to
further an âimportant public policy,â or that the reliability of the testimony had
8
The Court in Craig was in turn quoting Mattox v. United States, 156 U.S. 237, 242-43 (1895).
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 32 of 38
otherwise been assured. Craig, 497 U.S. at 847. Not wishing to send a deputy
on an eight-hour round-trip to pick up a witness in a murder trial does not
further an important public policy. The failure to secure Jonesâs physical
presence at trial, without the trial court making a case-specific finding of an
important public policy reason justifying the decision to allow Jones to testify
remotely, violated the Sixth Amendmentâs Confrontation Clause.
B. Article 1, Section 13
[61] Article 1, Section 13 of the Indiana Constitution provides: âIn all criminal
prosecutions, the accused shall have the right . . . to meet the witnesses face to
face . . . .â (emphasis added). Our Supreme Court has long recognized that this
basic trial right is âan ancient one with roots in the common law and that its
design has more than a single part.â Brady v. State, 575 N.E.2d 981, 986-87
(Ind. 1991).
[62] The Brady Court explained:
Indianaâs confrontation right contains both the right to cross-
examination and the right to meet the witnesses face to face. It
places a premium upon live testimony of the Stateâs witnesses in
the courtroom during trial, as well as upon the ability of the
defendant and his counsel to fully and effectively probe and
challenge those witnesses during trial before the trier of fact
through cross-examination. The defendantâs right to meet the
witnesses face to face has not been subsumed by the right to
cross-examination. That is to say, merely ensuring that a
defendantâs right to cross-examine the witness is scrupulously
honored does not guarantee that the requirements of Indianaâs
Confrontation Clause are met. The Indiana Constitution
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 33 of 38
recognizes that there is something unique and important in
requiring the face-to-face meeting between the accused and the
Stateâs witnesses as they give their trial testimony. While the
right to cross-examination may be the primary interest protected
by the confrontation right in Article [1], § 13 of the Indiana
Constitution, the defendantâs right to meet the witnesses face to
face cannot simply be read out of our Stateâs Constitution.
Id. at 988 (emphasis added). âBecause this right is secured by the Constitution,
it cannot be abridged by judicial or legislative action.â Id. (citing Graves v. State,
178 N.E. 233, 233 (Ind. 1931)).
[63] Although the confrontation rights assured by the federal and Indiana
constitutions are âto a considerable degree . . . co-extensive,â the Confrontation
Clause of Article 1, Section 13 âhas a special concreteness and is more
detailed[.]â Brady, 575 N.E.2d at 987. Still, our Supreme Court has recognized
that this right âmust occasionally give way to considerations of public policy
and the necessities of the case.â State v. Owings, 622 N.E.2d 948, 951 (Ind.
1993) (quoted in Johnson, 201 N.E.3d at 1208).
[64] Here, there were no such public policy considerations sufficient to permit Jones
to testify remotely. In a trial for a serious criminal offense such as murder, the
Stateâs burden of showing a case-specific necessity involving an important
public policy, such as would permit a witness to testify remotely, is at its zenith.
And, here, the State made no such showing, nor did the trial court make such a
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 34 of 38
finding. Permitting Jones to testify remotely, therefore, violated Shabazzâs right
to face-to-face confrontation as guaranteed by Article 1, Section 13. 9
C. Administrative Rule 14(C)
[65] The Indiana preference for face-to-face confrontation is also reflected in Indiana
Administrative Rule 14(C), which governs remote court proceedings. As
amended effective January 1, 2023, this rule provides:
Authority in Testimonial Proceedings. A court must conduct
all testimonial proceedings in person except that a court may
conduct the proceedings remotely for all or some of the case
participants for good cause shown or by agreement of the parties.
Remote proceedings must comply with constitutional and statutory
guarantees.
Ind. Admin. Rule 14(C) (bold in original, italic emphasis added). Thus,
although a trial court must generally conduct all testimonial proceedings in
person, it has discretion to allow participants to appear remotely âfor good
cause shown.â Id. But as the comment to the rule emphasizes, âPresenting live
testimony in court remains of utmost importance.â Id., Commentary. And this
discretion is tempered by the requirement that remote proceedings comply with
constitutional guarantees, which includes the right to confrontation.
9
My research has revealed no Indiana case in which an adult witness has been permitted to testify remotely
simply because the State alleged that it could not afford to secure the presence of the witness. Child witnesses
and others that fall within scope of the protected personâs statute, Indiana Code § 35-37-4-6, which does
involve a matter of important public policy, are thus distinguishable. More importantly, the protected
personâs statute is not at issue in the present case.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 35 of 38
[66] In criminal cases, the discretion afforded to trial courts under Administrative
Rule 14(C) must comport with a defendantâs constitutional rights. Here,
Shabazzâs right to confrontation, as guaranteed by both the Sixth Amendment
and Article 1, Section 13, was not honored. Administrative Rule 14(C) could
not authorize remote testimony that does not comport with a defendantâs
constitutional guarantees. 10
D. The Importance of In-Person Testimony
The ability to see a witness on a video screen is a poor substitute for in-person
testimony. As noted above, the uniqueness of in-person testimony has been
recognized by the United States Supreme Court and the Indiana Supreme
Court. Not only is it more difficult to bear false witness when facing the
accused in court, the jury (or the judge when acting as the trier of fact) can see
the entire demeanor of the witnessesâsuch as facial expressions, nervous
fidgeting, eye movement, and many other such subtle nuances that are much
more easily noticed when viewing a witness in person. See Daniel M. Bialerk,
Note, Assessing Witness Demeanor in the Age of Covid-19 and Beyond, 31 Cornell
J.L. & Pub. Polây 451, 473 (2022) (â[I]n-person court sessions allow factfinders
to more easily see nonverbal body gestures, which may facilitate
communication in other ways.â). This is much more difficult, if not impossible,
10
My remarks are focused solely on the Confrontation Clause of our state and federal constitutions. These
clauses are applicable only in criminal cases. Such concerns are absent in civil cases, where trial courts have
much more discretion to conduct remote proceedings for good cause shown. In a civil case, such good cause
could be, for example, a pro se litigant who has difficulty getting to court due to his or her work schedule or
due to transportation issues.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 36 of 38
to do on a video screen. In my opinion, âface to faceâ means exactly what it
says. Screen-to-screen is not face-to-face. 11
[67] The mere inconvenience of securing the presence of a witness does not
outweigh the defendantâs right to confront the witnesses against him face-to-
face. See Daniel Tran, Note, Is Witness Credibility on Virtual Courtroom Procedures
Impaired or Enhanced for Adults or Children?, 32 S. Cal. Interdisc. L.J. 491, 512
(2023) (concluding that virtual courtroom proceedings are likely
unconstitutional absent compelling interests because such virtual proceedings
âimpair witness credibility for adults,â and concluding that mere efficiency and
convenience are not compelling interests).
E. Harmless Error
[68] Violations of the right to confrontation under both Sixth Amendment and
Article 1, Section 13 are subject to harmless error analysis under a âharmless
beyond a reasonable doubtâ standard. Johnson v. State, 206 N.E.3d 1195, 1196
(Ind. Ct. App. 2023) (citing Torres v. State, 673 N.E.2d 472, 475 (Ind. 1996)),
opinion on rehâg. Here, Jones was not an eyewitness to the offense. He was
incarcerated with Shabazz, and Shabazz admitted to Jones that he killed Ferris.
Shabazz also admitted to Blair that he killed Ferris. Jonesâ direct examination
fills only three and a half pages of transcript. Tr. Vol. 2 pp. 106-09. Upon
cross-examination, Jones admitted that he was incarcerated on a probation
11
Indeed, during Jonesâ remote testimony, the parties had difficulties hearing Jones. Tr. Vol. II p. 110.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 37 of 38
violation and was released on home detention in exchange for testifying against
Shabazz. Given the weight of the other evidence against Shabazz, and the
cumulative nature of Jonesâ testimony, I conclude that the error in permitting
Jones to testify remotely was harmless beyond a reasonable doubt. I, therefore,
concur in the result reached by the majority.
Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 38 of 38
Case Information
- Court
- Ind. Ct. App.
- Decision Date
- March 18, 2025
- Status
- Precedential