Milton Porter, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] Milton Porter was convicted of murder and Level 4 felony unlawful possession of a firearm by a serious violent felon and found to have used a firearm in the commission of murder. Porter now appeals, arguing the trial court abused its discretion by limiting Porter's closing argument. We affirm.

Facts and Procedural History

[2] On the morning of October 14, 2022, Calvin Lawson suffered from a drug overdose in the parking lot of his apartment complex. While Ashley Davis, Lawson's girlfriend, administered Narcan, she watched Porter go through Lawson's pockets and take something. After recovering, Lawson realized he was missing money. Davis told Lawson that Porter went through his pockets while he was overdosing. Lawson became irate and exchanged texts with Porter about the money. Porter texted Lawson, “One of us going to end up dieing [sic] boy and I'm not going[.]” Ex. Vol. II p. 38. Later that night, Porter returned to the parking lot to fight Lawson.

[3] Lawson met Porter outside while Davis and their roommate, Jaheim Miller, watched the encounter by the entrance to their apartment. Porter then drew a handgun, shot Lawson, and left the scene. When Miller called 9-1-1 to report the shooting, he identified the shooter as “Mildred” and repeatedly exclaimed that “Milly just shot him, bro!” State's Ex. 9, 001-2 at 1:05-1:25.¹ Davis also told law enforcement that “Milly” shot Lawson. State's Ex. 12 at 00:30-00:55. Davis and Miller both knew Porter as “Milly” and did not know his real name at the time. Tr. Vol. II pp. 163, 210. Lawson later died from the gunshot wound.

[4] The State charged Porter with murder and Level 4 felony possession of a firearm by a serious violent felon and filed a firearm sentencing enhancement. A two-day jury trial began on December 2, 2024. Before opening statements, the parties requested preliminary rulings pertaining to Miller testifying for the State. The State disclosed that Miller had a pending criminal case and was being transported from jail to testify. Porter planned to ask Miller about his pending criminal case, the possible penalties he faced, and whether he had an agreement with the State to testify. In rebuttal, the State intended to introduce a prior consistent statement Miller made to law enforcement identifying Porter as the shooter. The court ruled that Porter could question Miller about his pending case and, depending on how cross-examination proceeded, the State would be able to admit Miller's prior statement in rebuttal.

[5] On direct examination, Miller testified that he recognized Porter's blond dreads during the shooting and was “110 percent” confident that Porter shot Lawson. Id. at 227. When the State asked Miller about his criminal case, he acknowledged that he had pending murder and kidnapping charges. Miller also stated he did not have an agreement with the State and was not promised anything in exchange for his testimony.

[6] On cross-examination, Porter did not question Miller about his pending case. Instead, Porter explored differences between Miller's account of the shooting, Davis's testimony identifying Porter, and the surveillance footage. For example, Miller testified he was able to immediately tell Porter was the shooter, which Porter challenged with Miller's prior deposition testimony. Porter also asked Miller about a fight between himself and Miller “over a girl” the day before the shooting. Id. at 231. Throughout, Porter asked no questions and introduced no evidence to suggest Miller's pending charges motivated him to testify or change his testimony. The State thus did not move to admit Miller's prior consistent statement on re-direct.

[7] Before closing arguments, the State moved to prohibit Porter from arguing that Miller was unreliable or had improper motivation to testify because of his pending criminal case. The State noted that since Porter did not question Miller's credibility based on those charges, it was unable to rebut with Miller's prior consistent statement. Porter argued the State “opened the door” to such argument by way of its direct examination of Miller. Tr. Vol. III p. 7. Porter then clarified that he “didn't necessarily intend to argue that [Miller's] statement has changed” because of his charges, id. at 11; rather, Porter said he intended to argue that Miller “maybe has reason to keep his story the same and say the things that the State might want to hear.” Id.

[8] The court granted the State's motion as follows:

The Court: Well, I'm going to agree with the State with regard to whether or not -- there hasn't been an inconsistent statement. Looking back at the cross-examination and the direct examination, I don't see anything where you could lean on and say he's been inconsistent in his testimony. So, for the purpose of argument, I really don't like to limit people in terms of what they say in the closing argument, especially because you get the opportunity to rebut what they say. But I understand that if you don't have the evidence in, then you can't point to it. I think we can -- I will clearly direct the Defense that there isn't any evidence up to date or at this point in the trial, where Mr. Miller has made any inconsistent statement.

So I think that argument, if there were -- if you said it and there was an objection, I would sustain the objection and I would let the jury know that there wasn't any evidence to support what you said. And I'm sure you don't want me saying that to the jury. Now, if it's your intent to argue that he had motivations because of those pending charges to tell the story the way he told it, I think that does -- I am more than willing to let the State bring that consistent testimony in, so --

[Porter]: Judge, I think then we'll agree not to discuss it in close.

The Court: All right. So that's off the table.

Id. at 11-12.

[9] Accordingly, Porter did not discuss Miller's pending criminal case in closing. Porter did, however, highlight differences between Miller's testimony and the surveillance footage. Porter argued Miller “change[d] his story to say” he identified Porter by the sound of his voice rather than by his dreads because Porter's dreads were not visible in the surveillance video. Id. at 70. Porter also distinguished differences in Miller's and Davis's recollection of the same events. He suggested Davis and Miller were motivated to lie because Porter stole from Lawson, Miller fought with Porter the day before the shooting, and because they wanted “street justice” for Lawson. Id. at 71.

[10] The jury found Porter guilty as charged and that he used a firearm in the commission of a murder. The court sentenced Porter to an aggregate sixty-five years executed in the Indiana Department of Correction. Porter now appeals.

Discussion and Decision

[11] Porter claims the trial court erred by limiting the scope of his closing argument.² The opportunity to make a closing argument is a basic element of the criminal process. Nickels v. State, 81 N.E.3d 1092, 1094 (Ind. Ct. App. 2017). A trial court has “great latitude” in controlling the scope of closing argument to ensure it does not “impede the fair and orderly conduct of the trial.” Herring v. New York, 422 U.S. 853, 862 (1975). “Conduct during final argument is a matter within the sound discretion of the trial court, and a conviction will not be reversed unless there has been a clear abuse of discretion resulting in prejudice to the accused.” Hall v. State, 177 N.E.3d 1183, 1195 (Ind. 2021) (internal quotation and citation omitted). An abuse of discretion occurs when the trial court's decision is “clearly against the logic and effect of the facts and circumstances before it.” Nelson v. State, 792 N.E.2d 588, 591 (Ind. Ct. App. 2003), trans. denied.

[12] Here, the trial court imposed two limitations on Porter's closing argument. First, the court instructed Porter that if he claimed Miller made an inconsistent statement, it would instruct the jury that the evidence did not support his contention. Second, the court ruled that if Porter argued Miller had an improper motive to testify because of his pending case, it would allow the State to present Miller's prior consistent statement. We address each limitation in turn.

[13] With regard to the first, we note that “counsel does not have the right to misstate the law or argue a theory unsupported by the evidence during closing arguments.” Dixey v. State, 956 N.E.2d 776, 783 (Ind. Ct. App. 2011). Despite the State discussing Miller's pending charges on direct examination, Porter elected not to question Miller about whether his charges motivated him to testify—either consistently or inconsistently—at trial. The trial court correctly observed there was no evidence that Miller's testimony changed because of his pending case. The court did not abuse its discretion by ensuring Porter did not make an argument unsupported by the evidence.

[14] Moreover, the court did not prohibit Porter from attacking Miller's credibility. Porter repeatedly referred to Miller's testimony as one of multiple “faulty stories” that “don't stay the same.” Tr. Vol. III pp. 67, 69, 71. Porter argued Miller “change[d] his story to say” he identified Porter by the sound of his voice rather than by his dreads. Id. at 70. Porter suggested Miller was motivated to lie because Porter stole from Lawson, Miller fought with Porter the day before the shooting, and because he wanted “street justice” for Lawson. Id. at 71. These arguments were supported by the evidence.

[15] We also find no error with the court's second direction on Porter's closing. Porter made the strategic decision not to cross-examine Miller about his pending criminal case or motives for testifying. As a result, the State did not admit Miller's prior consistent statement pursuant to Indiana Evidence Rule 801(d)(1)(B).³ If Porter had raised the issue for the first time in closing, he would have circumvented the State's ability to present Miller's prior consistent statement in rebuttal. To prevent potential unfairness, the court explained it would allow the State to introduce Miller's prior statement if Porter raised a new issue to the jury in closing. See Hall, 177 N.E.3d at 1195 (holding court did not abuse its discretion when it prevented defendant from presenting new video evidence in closing argument because the State would not have an opportunity to rebut).⁴

[16] Under these circumstances, the court exercised its discretion to ensure a “fair and orderly conduct of the trial” by permitting the State to present Miller's prior statement if Porter made such an argument. Herring, 422 U.S. at 862; see also Gilman v. State, 65 N.E.3d 638, 642 (Ind. Ct. App. 2016) (holding trial court did not abuse its discretion by allowing the State to reopen its case to present rebuttal evidence after defendant ignored court's forewarning and raised new issue in closing argument). Porter has not persuaded us that the court abused its discretion. We affirm.

[17] Affirmed.

FOOTNOTES

1.   State's Exhibit 9 contains several audio files of 9-1-1 calls with file names ending in 001-1 through 001-5. We cite to the audio files in Exhibit 9 by the corresponding number at the end of the file name.

2.   Initially, the State contends Porter waived his claim by ostensibly agreeing with the court's ruling and failing to timely object. A claim is waived and reviewable only for fundamental error if a party fails to timely object to an alleged error at trial. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). The State also argues Porter waived appellate review by failing to make a fundamental error argument. See Dilts v. State, 49 N.E.3d 617, 628 (Ind. Ct. App. 2015) (holding defendant waived appellate review by not making fundamental error argument), trans. denied. However, appellate courts are not prohibited from addressing waived claims, and we exercise our discretion to do so here. See e.g., Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53-54 (Ind. 2013).

3.   Under Indiana Evidence Rule 801(d)(1)(B) a witness's prior consistent statement is admissible if it “is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying[.]”

4.   Porter also cites to Standifer v. State, 718 N.E.2d 1107 (Ind. 1999), to argue these limitation violated his constitutional rights. See Appellant's Br. p. 12. But Standifer is easily distinguished: there, our Supreme Court found error where a court limited questioning during cross-examination. 718 N.E.2d at 1110. Here, the court only limited Porter's closing argument after Porter opted not to question Miller about his pending case on cross-examination.

Scheele, Judge.

Brown, J., and Felix, J., concur.