D'sean Bigbee-Cummings, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] D'sean Bigbee-Cummings appeals his conviction for felony murder, arguing that the trial court violated his right to confrontation under the Sixth Amendment to the U.S. Constitution and erred in instructing the jury on accomplice liability. Finding no error, we affirm.

Facts and Procedural History

[2] The evidence most favorable to Bigbee-Cummings's conviction is as follows. On December 7, 2022, Bigbee-Cummings and four others—Cristina Clark, Josselyn Johnson, Jaheim Miller, and Daniel Jackson—took Corbin Rogers captive because Clark believed he had stolen, or knew who had stolen, a car she was driving. The group beat and threatened Rogers throughout the day as he insisted he didn't know where the car was. At one point, Rogers called his grandmother and said he needed $5,000. Rogers's grandmother then received a photo from Rogers's phone showing him in the back seat of a car with two masked people on either side of him pointing handguns at him. The masked people were later identified as Bigbee-Cummings and Jackson. Bigbee-Cummings was holding what appeared to be a Rock Island Armory .45 caliber, and Jackson was holding what appeared to be a Ruger. The group eventually brought Rogers to an abandoned house. Bigbee-Cummings, Miller, and Jackson took him inside. According to Miller, Bigbee-Cummings shot Rogers multiple times, killing him.

[3] The next day, police entered the abandoned house while chasing a burglary suspect and discovered Rogers's body. A firearms examiner analyzed several bullet casings and a bullet found near Rogers's body, and a bullet found in Rogers's body, and determined that they were all fired by a Rock Island Armory .45 caliber that was recovered during an unrelated investigation.

[4] The State charged Bigbee-Cummings, Clark, Johnson, Miller, and Jackson with felony murder, Level 2 felony kidnapping for ransom, and Level 3 felony kidnapping while armed with a deadly weapon. Miller and Jackson entered into plea agreements under which they were allowed to plead guilty to Level 1 felony conspiracy to commit murder in exchange for cooperating and testifying truthfully in the prosecution of the other defendants, with sentencing to follow a joint jury trial for Bigbee-Cummings, Clark, and Johnson.

[5] That trial was held in June 2025. When Jackson testified, his attorney was in the courtroom. A few minutes into his testimony, Jackson stated that he possessed the Rock Island gun at the beginning of the incident and that Bigbee-Cummings didn't have a gun at that time. He admitted that this was contrary to his pretrial deposition testimony, during which he said that Bigbee-Cummings possessed the Rock Island gun. He said he was telling the truth in his trial testimony and that before trial he lied—under oath—to get a favorable plea agreement. The State asked him if the rest of his testimony would differ from his deposition testimony. He said it would, so the State stopped its questioning and moved to exclude Jackson as a witness. Bigbee-Cummings's attorney initially asked for Jackson to be excluded but then asked for time to consider her options. The court asked, “Can I also then allow his attorney to talk to him, now that he is not a witness?” Tr. Vol. 3 p. 69. Bigbee-Cummings's attorney responded, “Well, no, I mean -- because we are at the point where we're talking about whether we're going to do cross, and so he's still presenting.” Id. She then withdrew her motion to exclude Jackson. The following exchange ensued:

THE COURT: And do you have any cross at this time?

[Bigbee-Cummings's Attorney]: I would potentially have cross for him, and so I think it's a matter of whether [Jackson's attorney] does have the right to advise his client prior to that cross. And I think that would be if [Jackson's attorney] --

THE COURT: Well, he's admitted perjury and so I am going to allow it. I do believe he has a right because he is represented to have a right to talk to his attorney about his Fifth Amendment right privileges [sic].

[Bigbee-Cummings's Attorney]: So I may have cross, so [Jackson's attorney] probably should have a discussion with him.

Id. at 70. After Jackson spoke with his attorney, the court asked him what he would do if cross-examined. He responded, “Read my Fifth Amendment right.” Id. at 71. As a result, the court released Jackson without further questioning.¹

[6] The jury found Bigbee-Cummings and the other defendants guilty as charged. As to Bigbee-Cummings, the trial court entered a conviction only on the felony-murder count to avoid double jeopardy and imposed a sentence of 60 years in the Department of Correction (55 years plus a 5-year firearm enhancement).

[7] Bigbee-Cummings now appeals.

Discussion and Decision

I. Bigbee-Cummings waived his argument that the trial court violated his Sixth Amendment right to confrontation by allowing Jackson to speak with his attorney, and he hasn't shown that allowing the consultation was fundamental error

[8] Bigbee-Cummings contends the trial court violated his Sixth Amendment right to confrontation by “suggesting and allowing the consultation” between Jackson and his attorney, Appellant's Br. p. 14, which resulted in Jackson invoking his Fifth Amendment privilege against self-incrimination and Bigbee-Cummings being unable to cross-examine him.² Bigbee-Cummings argues that he adequately preserved this issue for appeal and that, even if he didn't, allowing the consultation was fundamental error.

[9] We disagree that Bigbee-Cummings preserved this issue for appeal. When the trial court indicated its intent to allow Jackson's attorney to speak with him, Bigbee-Cummings didn't argue that allowing such consultation would violate his constitutional right to confrontation. To the contrary, as he concedes on appeal, his trial attorney “acknowledged that [Jackson's] attorney should have a discussion with Jackson.” Id. at 13. Arguably, Bigbee-Cummings invited any error. At the very least, he waived any Sixth Amendment objection. Therefore, we turn to his claim of fundamental error.

[10] Fundamental error is an “extremely narrow” exception to the general rule that a party's failure to object at trial results in a waiver of the issue on appeal. Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018). “An error is fundamental, and thus reviewable on appeal, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Id. (quotation omitted). This exception “encompasses only errors so blatant that the trial judge should have acted independently to correct the situation.” Id.

[11] Bigbee-Cummings hasn't made such a showing. The U.S. Supreme Court has made clear that trial courts have discretion in deciding whether to allow mid-testimony consultation between a witness and their attorney. See Perry v. Leeke, 488 U.S. 272, 280-85 (1989); see also Patch v. State, 13 N.E.3d 913, 917 (Ind. Ct. App. 2014) (explaining that Perry gives trial courts “discretion to allow or disallow consultation between direct and cross examination”), reh'g denied, trans. denied, cert. denied. Here, the trial court let Jackson speak with his attorney after he admitted that he had lied under oath—i.e., committed perjury—and indicated his intent to admit additional lies. Given the potential criminal liability these statements created for Jackson, this decision wasn't an abuse of discretion, let alone fundamental error.³

II. The trial court didn't abuse its discretion in instructing the jury on accomplice liability

[12] Bigbee-Cummings also argues that the trial court erred by giving the jury the following instruction about accomplice liability, over the objections of the defendants:

A person is responsible for the actions of another person when, either before or during the commission of a crime, he knowingly aids, induces, or causes the other person to commit a crime. To aid is to knowingly support, help, or assist in the commission of a crime.

In order to be held responsible for the actions of another, he need only have knowledge that he is helping in the commission of a crime. He does not have to personally participate in the crime, nor does he have to be present when the crime is committed.

Proof of the defendant's failure to oppose the commission of a crime, companionship with the person committing the offense, and conduct before and after the offense may be considered in determining whether aiding may be inferred.

Appellant's App. Vol. 3 p. 47 (Final Instruction No. 6D). A trial court has discretion in deciding how to instruct the jury, and we review such a decision only for an abuse of that discretion. McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015).

[13] As an initial matter, it is unlikely that the challenged instruction contributed to the jury's guilty verdict as to Bigbee-Cummings. The State presented evidence that he fired the fatal shots and then pointed to him as the killer in its closing argument. See Tr. Vol. 4 pp. 21-22, 25-26. Therefore, the instruction was more relevant to the other defendants than to Bigbee-Cummings.

[14] In any event, Bigbee-Cummings's challenges to the instruction are vague, conclusory, and unpersuasive. He first argues that “[t]he substance of the first paragraph was covered by another instruction stating the statutory language defining accomplice liability.” Appellant's Br. p. 20. It is true that there was some overlap between the first paragraph of the challenged instruction and the following instruction that gave the jury the language of Indiana's accomplice-liability statute (Indiana Code section 35-41-2-4):

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.

Appellant's App. Vol. 3 p. 46 (Final Instruction No. 6C). But Bigbee-Cummings offers no explanation why this partial overlap was reversible error.

[15] Bigbee-Cummings next asserts that giving the challenged instruction placed “undue emphasis” on the concept of accomplice liability. Appellant's Br. p. 21. But again, he doesn't explain how.

[16] Finally, Bigbee-Cummings notes that the State took the instruction from our Supreme Court's 2001 decision Hubbard v. State, 742 N.E.2d 919 (Ind. 2001), and argues that the instruction is “not consistent” with an accomplice-liability instruction we approved more recently in Paul v. State, 189 N.E.3d 1146 (Ind. Ct. App. 2022), trans. denied. Appellant's Br. p. 21. The instruction we approved in Paul provided:

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 actions, even though the acts may not have been originally conceived or intended in the plan.

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.

189 N.E.3d at 1153 (citation modified). While this instruction from Paul and the instruction being challenged here are different, Bigbee-Cummings makes no argument as to how the two instructions are inconsistent, or why the instruction from Paul is preferable.

[17] Bigbee-Cummings has not shown that the trial court abused its discretion by giving the challenged instruction.

[18] Affirmed.

FOOTNOTES

1.   Jackson's original plea agreement called for the minimum sentence of 20 years for Level 1 felony conspiracy to commit murder. After changing his story at his co-defendants’ trial, he entered into a revised plea agreement that called for the advisory sentence of 30 years. See Cause No. 49D27-2301-MR-512.

2.   Bigbee-Cummings states at one point in his brief that the trial court also violated his right to confrontation under Article 1, Section 13 of the Indiana Constitution, but he doesn't develop a separate argument under that provision.

3.   Bigbee-Cummings could have asked the trial court to strike Jackson's brief direct-examination testimony but didn't, presumably because his testimony that he possessed the Rock Island gun was favorable to Bigbee-Cummings.

Vaidik, Judge.

Altice, J., and Foley, J., concur.