Howard Moffitt, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] In July of 2023, Howard Moffitt shot and killed Anthony Drummer in an Indianapolis park. A jury found Moffitt guilty of murder, and the trial court sentenced him to sixty years of incarceration. Moffitt contends that (1) the evidence was insufficient to disprove his claim of self-defense, (2) the trial court committed fundamental error when it admitted portions of video evidence containing Moffitt's own statements while alone in a police interview room, and (3) the State committed prosecutorial misconduct in its closing arguments which resulted in fundamental error. Because we disagree with each of these contentions, we affirm.

Facts and Procedural History

[2] On the morning of July 20, 2023, Indianapolis Metropolitan Police Department (“IMPD”) officers were dispatched to the American Legion Mall to investigate reports of a person shot. Sometime before then, Hermel Martin had been sleeping in a windowsill at the park when she was awakened by Moffitt. Moffitt told Martin that he had shot Drummer for “throwing rocks at people.” Tr. Vol. II p. 177. Martin knew Drummer and Moffitt because they had all been sleeping at the park around that time. Moffitt further told Martin that he had seen Drummer performing oral sex on a man, that Drummer was “fixing to rob someone,” and that Drummer “wouldn't take the rocks out of his pocket when [Moffitt] asked him.” Tr. Vol. II p. 177.

[3] When police officers arrived at the scene, they found Drummer's body surrounded by a pool of blood. He had been shot in the head. Moffitt approached the officers, identified himself, and reported that he had shot Drummer. He also told the officers that the weapon he had used was inside a drawstring bag on the ground nearby. Officers also recovered another bag, which contained rocks, from the scene.

[4] Moffitt was transported to an interview room at the IMPD station, and, while alone in the interview room, said, “glad I shot that b***h in the head.” Ex. 101A at 0:21–0:28. He then said “f[**]k you f[****]ts.” Ex. 101A at 0:28–0:30. He further stated that he “felt some type of way about that punk a[**] sh[*]t”, which a detective later determined to mean that Moffitt was “highly agitated and mad that somebody would be having sex in front of him in what he considered his park, his area.” Tr. Vol. III p. 57. Moffitt said the word “f*g” multiple times in the video, and made several other comments, including that he had rights to the park and that the area in front of the library belonged to him.

[5] Once a detective entered the room and began interviewing Moffitt, Moffitt told the detective that he had seen Drummer attempting to purchase a jogging suit from another individual for five dollars. Moffitt appeared “kind of agitated that he wasn't given the opportunity” to buy the jogging suit. Tr. Vol. III p. 47. Moffitt told the detective that he had gone to a gas station to purchase a beverage, and when he had returned, he had heard “some commotion.” Tr. Vol. III p. 49. Moffitt told the detective that he had seen Drummer disposing of a third person's possessions in a trash can and Drummer and the third man engaging in oral sex. According to Moffitt, he had said, “you're not going to do that out here. You're not going to do that in front of me.” Tr. Vol. III p. 51.

[6] Moffitt reported to the detective that he had approached with his gun drawn, “people dispersed,” and Drummer had hidden behind a tree. Tr. Vol. III p. 50. Moffitt told the detective that he had had a conversation with Drummer, during which Drummer had asked Moffitt “[w]hat type of narcotics or alcohol” Moffitt had been using. Tr. Vol. III p. 50. Moffitt indicated to the detective that he “was upset that they had performed some type of sex [act] there in front of him.” Tr. Vol. III p. 51. Moffitt told the detective that Drummer had “walked over to where his bags were and that's when he shot him.” Tr. Vol. III p. 51.

[7] Moffitt also reported to the detective that he had “felt kind of scared and he hesitated,” and that he “didn't want [Drummer] to pick up any weapons,” but he had not seen a gun or a knife with Drummer, just rocks. Tr. Vol. III p. 68. On July 24, 2023, the State charged Moffitt with murder and Level 4 felony unlawful possession of a firearm by a serious violent felon. The State subsequently added an allegation that Moffitt was a habitual offender and dismissed the unlawful-possession charge.

[8] At the trial, the State moved to admit the video recording of Moffitt's statements made while he had been alone in the interview room. Moffitt had “[n]o objection” to the exhibit being admitted, and the trial court admitted the video into evidence. Tr. Vol. III p. 46. Furthermore, Martin testified at trial about the conversation she had had with Moffitt after he shot Drummer. Martin also indicated that Moffitt had seemed upset about seeing Drummer engaging in oral sex with another man.

[9] Moffitt testified that he had, the night before the shooting, witnessed Drummer and another man, “Tone,” transacting over a jogging suit, in which “Tone” had appeared to be “getting bullied out of his – his jogger.” Tr. Vol. III p. 81. Moffitt testified that he had seen Drummer with a bag of rocks. He also testified that, early the next morning, he had seen Drummer “going through Tone's stuff.” Tr. Vol. III p. 85. He stated that he had also seen Drummer strike Tone on the head with a rock and attempt to rob the man. Moffitt then testified that he had witnessed Drummer attempting to force Tone to perform a sexual act with him, at which point Moffitt had approached the men and asked them to leave.

[10] Moffitt testified that Tone appeared “very scared” and “paranoid” and that Drummer had gone “to the tree, act like he's using the bathroom.” Tr. Vol. III p. 90. At this point, Moffitt testified that he had said, “Whatever you're doing, you caught. You need to leave. We -- we don't want to see that. We don't want that going on. Now enough is enough. You need to go.” Tr. Vol. III p. 90. Moffitt testified that, after some back-and-forth, he had told Drummer “I got a gun, leave[ ]” and Drummer had replied “I'm going to show you why I don't care you got that gun,” before reaching for his bag. Tr. Vol. III p. 91. Moffitt testified that after Drummer had reached into his bag, he had shot Drummer.

[11] During closing, the prosecutor stated the following:

So what is self-defense? A person can use reasonable force against another person to protect himself from what he reasonably believes to be imminent use of unlawful force. You are allowed to use deadly force and do not have a duty to retreat only if he reasonably believes that the deadly force is necessary to prevent serious body [(sic)] injury to himself or a third party or commission of a forcible felony.․

* * * *

Then the detective comes in and the story gets even more elaborate. And as we go through that, he says, you know, for all the same reasons: the rocks, the sex. Like he could have called 911. They dispersed. The rocks are things that you can put distance between. He had other options. That's why the—you don't have a duty to retreat, only if you reasonably believe that deadly force is necessary to prevent serious bodily injury. He had a duty to retreat. That doesn't even come into play. He could have left. That's it. If the individuals had left each other, those two that he's so bothered by, they've left each other, then he too can leave. He didn't have to bring a gun. No one had a weapon at this point.

Tr. Vol. III pp. 133–34, 139.

[12] The jury found Moffitt guilty of murder and to be a habitual offender. The trial court sentenced Moffitt to an aggregate term of sixty years of incarceration.

Discussion and Decision

I. Sufficiency of the Evidence

[13] Moffitt contends that “[t]he State failed to disprove [his] claim of self-defense beyond a reasonable doubt.” Appellant's Br. p. 12. A valid claim of self-defense is a legal justification for an otherwise criminal act. McCullough v. State, 985 N.E.2d 1135, 1138 (Ind. Ct. App. 2013), trans. denied. Indiana Code section 35-41-3-2(c) defines the defense:

A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person, employer, or estate of a person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

[14] A person raising a claim of self-defense is required to establish three things: he (1) was in a place where he had a right to be, (2) acted without fault, and (3) had a reasonable fear of death or serious bodily harm. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). Once a person claims self-defense, the State bears the burden of disproving at least one of these elements beyond a reasonable doubt. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). “Whether the State has met its burden is a question of fact for the factfinder.” McCullough, 985 N.E.2d at 1138.

[15] If a person is convicted despite his claim of self-defense, we will reverse only if no reasonable person could say that self-defense was negated by the State beyond a reasonable doubt. The standard on appellate review of a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same as the standard for any sufficiency of the evidence claim. We neither reweigh the evidence nor judge the credibility of witnesses. If there is sufficient evidence of probative value to support the conclusion of the trier of fact, the verdict will not be disturbed.

Id. at 1138–39 (internal citations omitted).

[16] We conclude that the State produced sufficient evidence to rebut Moffitt's claim of self-defense. While there seems to be no dispute that Moffitt had a right to be at the park, the only evidence that even comes close to showing that he had acted without fault or that he had had a reasonable fear of death or serious bodily harm is Moffitt's own testimony or statements. The jury, however, was not required to believe Moffitt's self-serving statements, and, apparently, did not. See id. at 1139 (providing that the jury was under no obligation to credit McCullough's self-serving statements).

[17] The State presented evidence from which the jury could have found that Moffitt had killed Drummer because he had been offended that Drummer had engaged in sexual activity with another man in front of him at the park. For instance, Moffitt initially told Martin that he had shot Drummer for “throwing rocks at people,” but later mentioned that he had seen Drummer performing oral sex on a man. Tr. Vol. II p. 177. Martin indicated that Moffitt had seemed upset about seeing Drummer engaging in oral sex with a man.

[18] Furthermore, while he was alone in the interview room, Moffitt said, “glad I shot that b***h in the head” and “f[**]k you f[****]ts.” Ex. 101A at 0:21–0:30. He further stated that he “felt some type of way about that punk a[**] sh[*]t”, which a detective later determined to mean that Moffitt was “highly agitated and mad that somebody would be having sex in front of him in what he considered his park, his area.” Tr. Vol. III p. 57. Moffitt said the word “f*g” multiple times in the video, and made several other comments, including that he had rights to the park and that the area in front of the library belonged to him. Ex. 101A at 0:40–1:36. Moffitt also testified that “the best thing I could have done was have them separate. If they would have did whatever they did after that, it wouldn't have been my business. But the situation boiled over from me witnessing it.” Tr. Vol. III p. 115. Moffitt had also indicated to police that he had approached Drummer initially with his gun drawn, and that Drummer had then retreated behind a tree.

[19] The evidence most favorable to the jury's verdict supports a reasonable inference that Moffitt killed Drummer because he had witnessed Drummer engaging in sexual activity with another man at the park. The jury was entitled to reject Moffitt's self-defense claim and find that Moffitt was the initial aggressor when he approached Drummer and the other man with his gun drawn, causing people to disperse and Drummer to hide behind a tree. The evidence was, therefore, sufficient to prove that Moffitt had not acted in self-defense when he shot Drummer in the head. Ultimately, Moffitt's argument amounts to nothing more than a request to reweigh the evidence, which we will not do. See McCullough, 985 N.E.2d at 1138–39.

II. Admission of Evidence

[20] Moffitt contends that the trial court committed fundamental error when it admitted portions of Exhibit 101, which contained the video of Moffitt in the IMPD interview room, into evidence at trial. Specifically, Moffitt contends that the video was “unfairly prejudicial and made a fair trial impossible.” Appellant's Br. p. 15.

[21] “Failure to object at trial waives the issue for review unless fundamental error occurred. The fundamental error doctrine is an exception to the general rule that the failure to object at trial constitutes procedural default precluding consideration of the issue on appeal.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013) (internal citation and quotations omitted).

[T]he fundamental error exception is extremely narrow, and 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. The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process. This exception is available only in egregious circumstances.

Id. (internal citations and quotations omitted).

[22] At trial, the State moved to admit the video recording of Moffitt's statements made while alone in the interview room. Moffitt expressly stated that he had “[n]o objection” to the exhibit being admitted, and the trial court admitted the video into evidence. Tr. Vol. III p. 46. Citing Halliburton, the State argues that because Moffitt expressly stated that he had “no objection” to the admission of the video evidence at trial, he may not now claim that the admission of the video amounted to fundamental error, and he has therefore waived this claim for appellate review. We choose, however, to address this argument on the merits and conclude that Moffitt has failed to persuasively show that his statements in the video were more prejudicial than probative such that their admission could have possibly amounted to fundamental error.

[23] Moffitt contends that his statement that he was “glad [he] shot that b***h in the head” was of “little relevance” and highly prejudicial. Appellant's Br. p. 17. Moffitt also contends that his use of the word “b***h” may not have been about Drummer. Appellant's Br. p. 17. However, Moffitt was free to argue an alternative meaning of the word to the jury, and the jury was entitled to conclude that the “b***h” to which Moffitt was referring was the person he had shot in the head, i.e., Drummer. Furthermore, at trial, Moffitt had the opportunity to explain the statement: when asked whether he had said that he was glad that he had shot Drummer in the head, Moffitt responded, “[t]o be reasonable, I felt like my life was threatened. My life was threatened. The third person's life was threatened.” Tr. Vol. III p. 110. In any event, Moffitt cites to no relevant authority that the use of the word “b***h” would be so prejudicial as to outweigh any probative value of a statement including it.

[24] Moffitt also contends that the admission of his use of the word “f****t” had “minimal, if any, probative value in determining whether he acted in self-defense when he shot Drummer.” Appellant's Br. p. 18. The State, on the other hand, argues that Moffitt's use of the word “f****t,” when combined with his other statements in the video, including that he was glad he shot that “b***h” in the head, was probative of his state of mind and motive to kill Drummer for engaging in a sex act with another man in the park. We agree. We cannot conclude that the prejudicial impact of Moffitt's statements outweighed the probative value of the statements, especially in light of Martin's testimony that Moffitt had seemed upset about seeing Drummer engaging in oral sex with another man and Moffitt's indication to police that he was upset about the sex act performed in front of him. Moffitt has failed to show that the admission of the video rendered a fair trial impossible or constituted clearly blatant violations of basic principles of due process. See Halliburton, 1 N.E.3d at 678. Moffitt has therefore failed to show that fundamental error occurred.¹

III. Prosecutorial Misconduct

[25] Moffitt last contends that the State “committed prosecutorial misconduct” during final argument, which resulted in fundamental error. Appellant's Br. p. 23. “In reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quotation omitted). However,

[o]ur standard of review is different where a claim of prosecutorial misconduct has been procedurally defaulted for failure to properly raise the claim in the trial court, that is, waived for failure to preserve the claim of error. The defendant must establish not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error.․ In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury—including evidence admitted at trial, closing argument, and jury instructions—to determine whether the misconduct had such an undeniable and substantial effect on the jury's decision that a fair trial was impossible.

Id. at 667–68 (internal citations and quotations omitted, emphasis in original).

[26] In the State's closing argument, the prosecutor stated, “That's why the—you don't have a duty to retreat, only if you reasonably believe that deadly force is necessary to prevent serious bodily injury. He had a duty to retreat. That doesn't even come into play. He could have left. That's it.” Tr. Vol. III p. 139. Moffitt contends that the statement “you don't have a duty to retreat, only if you reasonably believe that deadly force is necessary to prevent serious bodily injury” was an improper misstatement of the law “because it omitted another set of circumstances in which a person has no duty to retreat under Indiana law––to prevent the commission of a forcible felony.” Appellant's Br. p. 25.

[27] Under section 35-41-3-2(c), a person is justified in the use of deadly force and has no duty to retreat “if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony.” While the prosecutor's statement may have omitted part of the law in that particular statement, Moffitt concedes that the jury had received “correct statements of the law” during closing arguments and in the final jury instructions, and that the prosecutor “mentioned preventing a felony three times” in closing argument. Appellant's Br. p. 26.

[28] In fact, the prosecutor had made a correct statement of the law in full before the alleged misstatement. In any event, in the final jury instructions, the trial court instructed the jury that “[a] person is justified in using deadly force and does not have a duty to retreat only if he reasonably believes the deadly force is necessary to prevent serious bodily injury to himself or a third person or the commission of a forcible felony.” Tr. Vol. III p. 156.

It is well settled that the jury is presumed to follow the trial court's instructions and not law recited by counsel during arguments. Thus, our courts have long held that any misstatement of law during closing arguments is presumably cured by the trial court's final jury instructions. Closing arguments are rightly received by the jury as partisan advocacy, not impartial statements of the law, and thus are likely to have little effect on the jury's understanding of the law.

Pritcher v. State, 208 N.E.3d 656, 665 (Ind. Ct. App. 2023) (internal citations, quotations, and brackets omitted). Moffitt points to nothing in the record indicating a possibility that the jury failed to heed the trial court's instructions. Considering the information given to the jury as a whole, the prosecutor's alleged misstatement, even if it had been misconduct, did not render a fair trial impossible. Moffitt has failed to establish that the alleged prosecutorial misconduct amounted to error, much less fundamental error.²

[29] We affirm the judgment of the trial court.

FOOTNOTES

1.   In any event, even if the statements had been improperly admitted, any error in the admission of the video could only be considered harmless. “The improper admission of evidence is harmless error when the reviewing court is satisfied that the conviction is supported by substantial independent evidence of guilt so that there is no substantial likelihood that the challenged evidence contributed to the conviction.” Meadows v. State, 785 N.E.2d 1112, 1122 (Ind. Ct. App. 2003). Moffitt admitted to shooting Drummer, Martin indicated that Moffitt had seemed upset about seeing Drummer engaging in oral sex with another man, and Moffitt had indicated to police that he was upset about the sex act performed in front of him. Moffitt also had told police that he had approached Drummer with his gun drawn and that Drummer had retreated behind a tree before reaching for his rocks. Because the conviction is supported by substantial independent evidence of guilt, any error in the admission of Moffitt's statements in the video was harmless.

2.   To the extent that Moffitt argues that the final jury instructions did not remedy the prosecutor's alleged misstatement because the instructions defined only “serious bodily harm” and not a “forcible felony,” we are not convinced. Appellant's Br. p. 27. Moffitt's argument regarding prosecutorial misconduct is focused on the prosecutor's omission of part of the law regarding the duty to retreat. The final jury instructions provided the entirety of the law that Moffitt claims was omitted by the prosecutor. The fact that the trial court's instruction did not further define a forcible felony did not render the prosecutor's alleged misconduct fundamental error.

Bradford, Judge.

Judges Pyle and Kenworthy concur. Pyle, J., and Kenworthy, J., concur.