Ajaylan M Shabazz v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 18, 2025
• Docket: 24A-CR-00909
• Status: Published

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 (“Ferris”) was

beaten, carried to a bathtub, and drowned in a Fort Wayne motel room. DNA

evidence, eyewitness testimony, and Ajaylan Shabazz’s (“Shabazz”) 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 Shabazz’s guilt and finding no reversible

error in the trial court’s 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 Shabazz’s murder

conviction.

Facts and Procedural History [3] In May 2021, Shabazz, Ferris, Ariona Darling (“Darling”), and Dustin Blair

(“Blair”) intermittently used a motel room used for storage in the Fort Wayne

Suburban Inn unbeknownst to the management of the motel. The “filthy” 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 (“Smith”) outside, who was a “total

Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 3 of 38 stranger” at the time. Id. at 185. Smith asked about Darling’s availability, but

Shabazz indicated she was not available because she was his fiancée. 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 Smith’s 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 “dope sick”—experiencing cramps, chills,

shakes, and sweats. Id. at 135. Blair had only known Shabazz and Darling for

a short time and felt “awkward” 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

“looking for something” and then accused Ferris of stealing her drugs. Id. at

188. When Ferris denied stealing her drugs, Darling became angry and began

“punch[ing]” and “beating on” 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

“[o]ut of control” and “beating on” 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 “not in a

hurry to leave” because he was there for drugs, “wait[ed] around” 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 “moving fast and acting weird” 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 Ferris’s 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 (“Wright”), 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 Wright’s belongings into suitcases. During the robbery, Shabazz

switched shoes with Wright and left his own bloodstained shoes behind.

Testing later revealed Ferris’s DNA was present on Shabazz’s 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 “killed that bitch” and that Blair needed to “keep

[his] mouth shut” or he would “end up like her just as easy.” Id. at 139.

Shabazz also admitted to another inmate, Miquan Jones (“Jones”), that he

killed Ferris. Later, Shabazz attempted to influence Jones’s testimony by

having a guard pass Jones a threatening note—an interaction that was captured

on surveillance video. Smith also received a note from Shabazz telling him to

“[k]eep it solid” and informing him that Darling had died. Ex. Vol. 2 at 29. He

suggested that Smith “say she did it” and that they could use Darling as a

“scapegoat on this case!” 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 (“DOC”) 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 State’s request over Shabazz’s 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 Shabazz’s involvement with

the robbery of Wright’s 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

Jones’s placement a few months before Shabazz’s 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 Shabazz’s

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 “rather

have him here in person but you can see his whole body. You can see his face.

You can see he’s 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.” 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 “to

expand trial courts’ ability to conduct remote proceedings through audiovisual

communication[.]” 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 “emergency conditions that necessitated the Emergency Order

no longer remain[,]” 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 “[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.” 2 Id.

[17] Commentary to the Rule provides that “[p]resenting live testimony in court

remains of utmost importance” in Indiana and, therefore, findings of good

cause “require particularized and specific factual support.” 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 “something specific to the moment, the case, the court,

the parties, the subject matter, or other relevant considerations.” B.N., 199

N.E.3d at 364-65. “[W]e review a trial court’s good-cause determination for an

abuse of discretion.” Id at 363.

[18] The Sixth Amendment to the United States Constitution instructs that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” “The 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.” Howard v. State, 853

N.E.2d 461, 465 (Ind. 2006). “[T]he right to adequate and effective cross-

examination is fundamental and essential to a fair trial.” Id. Indiana’s

confrontation right is mostly “co-extensive” with the federal right of

confrontation but “differs from its federal counterpart in that it contemplates a

2 Under the Rule, a ‘testimonial proceeding’ is “a proceeding in which the judge receives sworn oral testimony;” a ‘remote proceeding’ is a proceeding that uses “telephone or videoconferencing capabilities to allow case participants to appear virtually;” and ‘case participants’ 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.” 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 court’s finding of good cause to allow Jones to testify via Zoom

was supported by case-specific circumstances that made physical transport

unfeasible. Jones’s 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, Shabazz’s 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 (“The 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.”). 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 Shabazz’s 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 court’s admission of his involvement in the

robbery of Wright committed at the Hawthorne Suites shortly after Ferris’s

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

“extremely narrow” exception that “applies 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.” Id.

[22] Rule 404(b) “serves to safeguard the presumption of innocence in favor of

criminal defendants” and “prevents the jury from indulging in the ‘forbidden

inference’ that a criminal defendant’s ‘prior wrongful conduct suggests present

guilt.’” 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 “[e]vidence of

a crime, wrong, or other act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in accordance with

the character.” However, such evidence “may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” Rule 404(b)(2).

Rule 404(b) is also subject to Rule 403’s balancing test. Thus, when assessing

the admissibility of evidence under Rule 404(b), the trial court must: (1)

“determine that the evidence of other crimes, wrongs, or acts is relevant to a

matter at issue other than the defendant’s propensity to commit the charged

act;” 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 ‘other purposes’ in Rule 404(b) is “not

exhaustive.” 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 “relevant and probative to the relationship of the alleged

accomplices.” Appellant’s 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 Ferris’s 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 Wright’s 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 Ferris’s murder. Specifically, the bloodstained shoes

Shabazz discarded at Wright’s residence were later determined to contain

Ferris’s DNA—evidence that was particularly probative given Shabazz’s 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. “All 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.” 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 court’s limiting

instruction and the highly probative testimony detailing Shabazz’s leading role

in the robbery committed a few hours after Feris’s 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. Darling’s 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 “wondering where she is, why she’s

not here,” but that informing the jury she had committed suicide was

inappropriate because it would “leave [the jurors] . . . speculating as to why she

did that.” Tr. Vol. 1 at 5-6. Defense counsel argued that “just as much

speculation” would occur “if we don’t tell [the jury] how or why” 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 court’s evidentiary ruling was prejudicial to

Shabazz and “allow[ed] the State to have ‘its cake and eat it too.’” 3 Appellant’s

Br. at 35. Trial courts have “broad discretion in ruling on the admission or

exclusion of evidence” 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 defendant’s suicide attempt, which we find inapposite to the issue of an unavailable witness’s 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 “pass[ed] away” 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 Moore’s 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 victim’s 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 court’s

“refusal to allow the admission of any evidence tending to show the witness’

death was a suicide, coupled with the admission of evidence strongly suggesting

she was murdered,” had deprived Moore of his right to a fair trial and

constituted fundamental error. Id. at 1094 (noting that jurors were left “free to

infer appellant had arranged for, or himself committed the murder of [the

victim] to prevent her from testifying against him”).

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 “narrow” holding following a “fact-specific

inquiry.” Id. We found that the trial court had “acted in the best interest of

both parties” 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.’s

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 “affect[] any of the

elements of [the] case.” Tr. Vol. 1 at 7. Additionally, unlike in Moore, the trial

court did not allow the State to introduce evidence of Darling’s 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 “pass[ed] away” 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 “dead so we got a scapegoat on this case!” 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, ‘it must look at the evidence presented in the case by both parties’ 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), reh’g 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 “[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[.]” 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), reh’g

denied. Furthermore, “the 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.” Hauk, 729 N.E.2d at 999.

Court of Appeals of Indiana | Opinion 24A-CR-909 | March 18, 2025 Page 19 of 38 [35] “To 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.” Id. “If 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[.]” Wright,

690 N.E.2d at 1108.

[36] Here, the charging information alleges that “Shabazz, while acting in concert

with Terry Smith Jr., and/or Ariona Darling, did knowingly or intentionally

kill another human being, to wit: Tiffany Ferris.” Appellant’s App. Vol. 2 at 25.

This charge contemplates Shabazz’s 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. “It is well settled that the proper scope of final argument is

within the trial court’s sound discretion.” Nelson v. State, 792 N.E.2d 588, 591

(Ind. Ct. App. 2003), trans. denied. The trial court does not abuse its discretion

“unless its decision is clearly against the logic and effect of the facts and

circumstances before it.” 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. “In 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.” Id.

[38] In Dixey, the State had charged Dixey with theft and the trial court ruled that

Dixey’s 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 “the 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.” 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 murder—and therefore equally guilty of murder under

the law—if they only sheltered or assisted the killer after the fact. See Dean v.

State, 222 N.E.3d 976, 988 (Ind. Ct. App. 2023) (“[A]n accomplice is criminally

responsible for all acts committed by a confederate which are a probable and

natural consequence of their concerted action.”), 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

Ferris’s legs and dragging her to the bathroom with Smith. However, he stated

that he did so “[u]nder duress of a gun” Smith had pointed at him while

demanding Shabazz “grab her fu***** legs.” Tr. Vol. 2 at 194, 200. He then

claimed that Smith was the one who cleaned up the crime scene, that he did not

“carry evidence out” of the motel, and that he did not trash any evidence. Id. at

201. At the conclusion of evidence, Shabazz asked the trial court’s 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 closing—that his only participation in the murder was moving

Ferris’s 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

Shabazz’s closing argument.

5. Accomplice Liability Instructions [42] Shabazz argues that the trial court’s instructions on accomplice liability were

fundamentally flawed because they failed to define the phrase ‘acting in

concert’ 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, “[f]undamental error

occurs only when the error ‘makes 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.’” 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, “considered as a whole, does not

mislead the jury as to a correct understanding of the law.” 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.

Appellant’s App. Vol. 2 at 170-71.

[44] While the trial court has a duty to define words for the jury that have “technical

or legal meaning[s] normally not understood by jurors unversed in the law[,]” it

can expect the jury to “rely on its collective common sense and knowledge

acquired through everyday experiences.” Yeary v. State, 186 N.E.3d 662, 680

(Ind. Ct. App. 2022). Here, the jury did not need a special instruction defining

‘acting in concert’ because the phrase could be commonly understood when

read alongside the accomplice liability instruction. Moreover, when taken

together, the instructions “contain[ed] the pertinent language regarding

accomplice liability to instruct the jury.” 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] Shabazz’s 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 “an accomplice is criminally

responsible for all acts committed by a confederate which are a probable and

natural consequence of their concerted action.” Appellant’s 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 Shabazz’s 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 Shabazz’s 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 “was the product of the jury’s emotional and

visceral reaction to Ferris being slain” and the State’s decision to pursue

Shabazz over other likely suspects. Appellant’s 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, “the same

standard applies as to other challenges to the sufficiency of evidence.” Gallagher

v. State, 925 N.E.2d 350, 353 (Ind. 2010). Sufficiency claims “trigger a

deferential standard of review in which we ‘neither reweigh the evidence nor

judge witness credibility, instead reserving those matters to the province of the

jury.’” 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 “offense against the person as defined in IC 35-42,” 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 “[t]hat’s fine with the State.” Tr. Vol. 3 at 223. Regardless of any waiver or the propriety of the duress instruction, we find that sufficient evidence supports Shabazz’s 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), reh’g denied, cert. denied, 586

U.S. 1090 (Jan. 7, 2019)). “A conviction is supported by sufficient evidence if

‘there 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.’” Id. (quoting Willis v. State, 27 N.E.3d 1065,

1066 (Ind. 2015)). When conducting this review, “we consider only the

evidence that supports the jury’s determination, not evidence that might

undermine it.” Id. We will “affirm a defendant’s conviction unless ‘no

reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt.’” 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 Shabazz’s 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 “a 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.” Appellant’s 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 Shabazz’s conviction for murder—

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. Shabazz’s shoes bore Ferris’s 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 “keep it solid” and that

Darling’s death meant they had a “scapegoat on this case!” 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 Shabazz’s 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

Shabazz’s 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 majority’s

finding that “good cause was shown under Administrative Rule 14(C)” 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 majority’s decision to affirm Shabazz’s 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, “the jail told us they cannot transport [Jones]

here because they sent him to a prison that’s 4 hours away. So, they cannot

bring him back for [t]rial. [T]hey don’t have the resources unfortunately.” 7 Tr.

Vol. I p. 16. The trial court then stated: “[T]he County doesn’t have unlimited

resources as in if they can’t get him, they can’t get him, but I mean so I guess

we’ll talk to George and have the T.V. rolled in. And have [Jones] testify via

video.” 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 prosecutor’s statements were not evidence. See Piatek v. Beale, 999 N.E.2d 68, 69 (Ind. Ct. App. 2013) (“It is axiomatic that the arguments of counsel are not evidence”), aff’d on reh’g, 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:

“In all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. amend VI.

[58] “The [United States] Supreme Court has interpreted this clause as guaranteeing

‘the defendant a face-to-face meeting with witnesses appearing before the trier

of fact.’” 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 reh’g, 206 N.E.3d 1195,

trans. denied. The right to face-to-face confrontation is not absolute, but this

“‘does not . . . mean that it may easily be dispensed with.’” Id. (quoting

Maryland v. Craig, 497 U.S. 836, 850 (1990)). The “primary object” 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, “the right guaranteed by the Confrontation Clause includes not only a

‘personal examination’ but also ‘permits the jury that is to decide the

defendant’s fate to observe the demeanor of the witness in making his

statement, thus aiding the jury in assessing his credibility.’” Id. at 1204

(quoting Craig, 497 U.S. at 845-46) (emphasis added). Although “‘physical

confrontation may constitutionally be denied where the denial is necessary to

further an important public policy and ‘the reliability of the testimony is

otherwise assured,’” “‘face-to-face confrontation at trial is preferred.’” Id.

(emphasis added) (quoting Craig 497 U.S. at 847). Accordingly, there must be a

“case-specific” 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 Shabazz’s constitutional right to confront Jones was necessary to

further an “important public policy,” 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 Jones’s 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 Amendment’s Confrontation Clause.

B. Article 1, Section 13

[61] Article 1, Section 13 of the Indiana Constitution provides: “In all criminal

prosecutions, the accused shall have the right . . . to meet the witnesses face to

face . . . .” (emphasis added). Our Supreme Court has long recognized that this

basic trial right is “an ancient one with roots in the common law and that its

design has more than a single part.” Brady v. State, 575 N.E.2d 981, 986-87

(Ind. 1991).

[62] The Brady Court explained:

Indiana’s 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 State’s 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 defendant’s 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 defendant’s right to cross-examine the witness is scrupulously honored does not guarantee that the requirements of Indiana’s 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 State’s 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 defendant’s right to meet the witnesses face to face cannot simply be read out of our State’s Constitution.

Id. at 988 (emphasis added). “Because this right is secured by the Constitution,

it cannot be abridged by judicial or legislative action.” 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 “to a considerable degree . . . co-extensive,” the Confrontation

Clause of Article 1, Section 13 “has a special concreteness and is more

detailed[.]” Brady, 575 N.E.2d at 987. Still, our Supreme Court has recognized

that this right “must occasionally give way to considerations of public policy

and the necessities of the case.” 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

State’s 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 Shabazz’s 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 “for good

cause shown.” Id. But as the comment to the rule emphasizes, “Presenting live

testimony in court remains of utmost importance.” 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 person’s statute, Indiana Code § 35-37-4-6, which does involve a matter of important public policy, are thus distinguishable. More importantly, the protected person’s 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 defendant’s constitutional rights. Here,

Shabazz’s 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 defendant’s

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 witnesses—such 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. Pol’y 451, 473 (2022) (“[I]n-person court sessions allow factfinders

to more easily see nonverbal body gestures, which may facilitate

communication in other ways.”). 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, “face to face” 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 defendant’s 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

“impair witness credibility for adults,” 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 “harmless

beyond a reasonable doubt” 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 reh’g. 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. Jones’ 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 Jones’ 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 Jones’ 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