MEMORANDUM DECISION
                                                                   FILED
Pursuant to Ind. Appellate Rule 65(D), this                    Jan 18 2017, 8:54 am
Memorandum Decision shall not be regarded as
                                                                   CLERK
precedent or cited before any court except for the             Indiana Supreme Court
                                                                  Court of Appeals
purpose of establishing the defense of res judicata,                and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                      Curtis T. Hill, Jr.
Marion County Public Defender Agency                   Attorney General of Indiana
Indianapolis, Indiana
                                                       Matthew B. MacKenzie
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Wallace Briscoe,                                           January 18, 2017

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1605-CR-1186

        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Lisa F. Borges,
                                                           Judge
Appellee-Plaintiff.
                                                           Trial Court Cause No. 49G04-1508-
                                                           F3-27202




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017    Page 1 of 7
                                          Case Summary
[1]   On the morning of July 30, 2015, intoxicated Appellant-Defendant Wallace

      Briscoe ran a stop sign and struck and killed Jonathan Harrison, who was riding

      his motorcycle. The State charged Briscoe with several counts, including Level

      4 felony operating a vehicle with a schedule II controlled substance in the blood

      causing death and with being a habitual offender, and he was ultimately

      convicted of both.


[2]   On the first day of Briscoe’s trial, the State sought to introduce a recording of a

      911 call made by an eyewitness the day of the fatal accident, but realized after

      approximately one second that it had mistakenly provided a recording of a 911

      call from another case. Although the State withdrew the recording, Briscoe

      moved for mistrial, which motion the trial court denied. The second day of

      trial, the State sought to introduce the actual 911 call, along with its computer

      aided dispatch (“CAD”) report. Soon after the CAD report was published to

      the jury, the trial court noticed that it indicated that Briscoe had a prior

      conviction for operating a vehicle while intoxicated (“OWI”). Again, Briscoe

      moved for mistrial, which motion the trial court denied. The trial court recalled

      copies of the CAD report from the jury, struck it from the record, and

      admonished the jury not to consider it. During final instructions, the jury was

      instructed not to consider stricken material. Briscoe contends that the trial

      court abused its discretion in denying his mistrial motions. Because we

      disagree, we affirm.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017   Page 2 of 7
                            Facts and Procedural History
[3]   After a night of heavy drinking and cocaine use, Briscoe drove to work in

      Indianapolis on the morning of July 30, 2015. The night before, Briscoe had

      consumed six to nine beers at a concert, continued drinking until approximately

      4:00 a.m., and managed little sleep before leaving for work at approximately

      6:30 a.m. Briscoe’s blood alcohol concentration was later determined to be

      0.19 grams per 100 milliliters of blood.


[4]   Briscoe ran a stop sign at 40th Street and Keystone Avenue, causing Harrison to

      hit his brakes and lay his motorcycle down in an unsuccessful attempt to avoid

      Briscoe’s truck. Harrison was killed instantly by the extensive blunt force

      injuries he sustained in the crash. Harrison’s sternum and all of his ribs were

      fractured; his lungs, heart, aorta, liver, spleen, left kidney, and pancreas were

      lacerated; and he had severe bleeding in his neck, chest, abdomen, and pelvic

      cavity. Joseph Griffin followed as Briscoe fled the scene, called 911, and

      observed Briscoe run a red light and a stop sign and almost hit a bus and a

      police car. Briscoe became boxed in by traffic and was soon stopped by police.


[5]   On August 3, 2015, the State charged Briscoe with Level 3 felony leaving the

      scene of an accident causing death, Level 5 felony OWI causing death, and

      Level 5 felony operating with an alcohol concentration equivalent of 0.08

      causing death. The State also alleged that Briscoe was a habitual offender and

      habitual vehicular substance offender. The State later charged Briscoe with

      Level 4 felony operating a vehicle with a schedule II controlled substance in the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017   Page 3 of 7
      blood causing death and filed Level 4 felony sentencing enhancements to the

      two Level 5 felony charges.


[6]   Briscoe’s jury trial was held on April 11 and 12, 2016. During trial, the State

      attempted to admit into evidence a 911 call and accompanying CAD sheet

      through Kimberly Curry, employed by the Marion County Sheriff’s audio

      records department. Curry’s voice introduced the content of the 911 call.

      Approximately one second into publication of the recording, the prosecutor

      realized that there had been a mistake and that a different 911 call from

      another, unrelated case had been mixed in. The audio heard by the jury was

      limited to Curry’s identification of the recording’s contents. The State moved

      to strike the 911 call from evidence, and Briscoe moved for mistrial on the basis

      that a 911 call not related to his case was prejudicial. The trial court denied

      Briscoe’s mistrial motion and allowed the State to strike the call, which it did

      on the basis that it was the “State’s error in admitting State’s Exhibit 11. And

      for that reason, because it is irrelevant to this case, we would move [to] strike.”

      Tr. p. 77.


[7]   The second day of trial, the State proceeded to introduce the correct 911 call

      and CAD report. After the 911 call and CAD report were admitted, but before

      the 911 call was played for the jury, the State elicited additional testimony

      about the CAD report. At that point, the trial court called a recess and notified

      that parties that the fourth page (of six) in the CAD report contained a reference

      to Briscoe’s prior conviction for OWI. After Briscoe’s objection and mistrial

      motion, the trial court granted the State’s motion to strike the CAD report and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017   Page 4 of 7
      admonished the jury that “[t]he Court has stricken the CAD from State’s 17

      from the record. You are instructed to disregard any written information

      contained therein and you may not discuss or consider it in any way, all right.”

      Tr. p. 163. During final instructions, the trial court instructed the jury that it

      was not to consider any evidence stricken from the record.


[8]   Ultimately, judgment of conviction was entered against Briscoe for Level 4

      felony operating a vehicle with a schedule II controlled substance in the blood

      causing death and he was found to be a habitual offender. The trial court

      sentenced Briscoe to an aggregate term of sixteen years of incarceration with

      four suspended to probation.



                                 Discussion and Decision
[9]   Briscoe contends that the trial court abused its discretion in denying his two

      mistrial motions, which were based on the jury hearing a portion of the

      mistaken 911 call and the temporary admission of the CAD report before it was

      stricken.

              We review a trial court’s decision to deny a mistrial for abuse of
              discretion because the trial court is in “the best position to gauge
              the surrounding circumstances of an event and its impact on the
              jury.” McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004). A
              mistrial is appropriate only when the questioned conduct is “so
              prejudicial and inflammatory that [the defendant] was placed in a
              position of grave peril to which he should not have been
              subjected.” Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001)
              (quoting Gregory v. State, 540 N.E.2d 585, 589 (Ind. 1989)). The


      Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017   Page 5 of 7
               gravity of the peril is measured by the conduct’s probable
               persuasive effect on the jury. Id.

       Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008).

                                                 I. 911 Call
[10]   Briscoe contends that he was prejudiced by the short portion of withdrawn

       State’s Exhibit 11 that was played to the jury, which consisted of approximately

       one second of identification information. We fail to see how this could have

       prejudiced Briscoe, because the jury never heard any of the actual call. In any

       event, the exhibit was stricken, it was made clear that the State had mistakenly

       attempted to introduce the wrong 911 call, and the jury was admonished not to

       consider evidence that has been stricken. In such cases, “[w]e presume the jury

       followed the trial court’s admonishment and that the excluded testimony played

       no part in the jury’s deliberation.” Francis v. State, 758 N.E.2d 528, 532 (Ind.

       2001). Briscoe does not point to any evidence that the jury might have

       disregarded the trial court’s admonition.


                                            II. CAD Report
[11]   As for the CAD report listing Briscoe’s previous OWI conviction, the record

       indicates that it was published to the jury before being stricken. The record

       indicates, however, that the trial court recalled copies of the CAD report from

       the jury as soon as it noticed mention of a prior conviction and observed that

       the jurors appeared to be listening to the 911 recording instead of reviewing the

       CAD report in any event. Consequently, any claim that any member of the

       jury actually reviewed the CAD report, or even had a chance to, is speculation.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017   Page 6 of 7
       Moreover, the trial court struck the CAD report from the record and specifically

       admonished the jury not to consider it. Even assuming that any member of the

       jury did read of Briscoe’s prior conviction, the evidence against Briscoe was

       overwhelming. This evidence included Briscoe’s stipulations that his BAC was

       0.19 and that he had cocaine in his system at the time of the accident and his

       admissions that he was the driver of the vehicle in question, did not stop at the

       stop sign, and had caused the accident. In addition, the jury heard testimony

       from Sarah Ellson and Griffin who witnessed the accident and called 911. This

       evidence, in addition to the trial court’s final instructions, demonstrates that

       Briscoe suffered no prejudice from the temporary admission of the CAD report

       and that the trial court did not abuse its discretion in denying Briscoe’s mistrial

       motion.


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


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017   Page 7 of 7
