                                                                                    FILED
                                                                               Apr 08 2019, 10:12 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                       Attorney General of Indiana
                                                            Monika Prekopa Talbot
                                                            Supervising Deputy Attorney
                                                            General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Michael Hickingbottom,                                      April 8, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-627
        v.                                                  Appeal from the
                                                            Miami Superior Court
State of Indiana,                                           The Honorable
Appellee-Plaintiff.                                         J. David Grund, Judge
                                                            Trial Court Cause No.
                                                            52D01-1711-F5-109



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019                             Page 1 of 18
[1]   Michael Hickingbottom (“Hickingbottom”) was convicted after a jury trial of

      battery resulting in bodily injury to a public safety officer 1 as a Level 5 felony

      and was sentenced to six years. Hickingbottom appeals, raising the restated

      issues, which we find dispositive: whether the trial court abused its discretion

      when it denied his motion for mistrial based on the failure of the State to

      produce the Indiana Department of Correction (“DOC”) manual that contains

      policies and procedures on the use of force by DOC officers.


[2]   We reverse and remand.


                                      Facts and Procedural History
[3]   Hickingbottom is an inmate at the Miami Correctional Facility (“the Facility”).

      When inmates first arrive at the Facility, they go through an orientation

      process, are familiarized with the rules and regulations of the Facility, and

      receive a booklet called the Miami Correctional Facility Rules and Regulations.

      Tr. Vol. III at 194-96; State’s Ex. 4. The rules include that inmates are to be

      respectful to the staff and that all complaints are to be exhausted through the

      proper procedures. Tr. Vol. III at 198; State’s Ex. 4. Rule 7 specifically instructs

      the inmates as follows: “Do what you are told by any staff member. If you feel

      the order is unjust, you may request to talk to a supervisor or pursue it via the

      grievance procedure after you have done as you have been instructed.” Tr. Vol.




      1
          See Ind. Code § 35-42-2-1(c)(1), (g)(5)(A).


      Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019             Page 2 of 18
      III at 198-99; State’s Ex. 4. Hickingbottom signed the booklet on October 12,

      2016. State’s Ex. 5.


[4]   Inmates at the Facility receive three meals a day in the dining hall. Tr. Vol. III

      at 106-07. There are DOC officers assigned to the dining hall to control the

      area and ensure that food is not stolen. Id. at 113. Meals are passed to the

      inmates through windows, but inmates on crutches or in wheelchairs do not

      have to stand in line and can go to a gap between the windows to receive their

      meal. Id. at 113-14. Inmates have identification (“ID”) cards that they are

      required to have on their persons at all times, and those inmates who are

      entitled to a special dietary meal have a special card to identify that distinction.

      Id. at 114-15. Inmates may not have another inmate’s ID card with them. Id.

      at 116. Each inmate receives one tray per meal, and an inmate without an ID

      card is not permitted to eat. Id. If an inmate attempts to obtain a second tray of

      food, the inmate is asked to surrender the tray. Id. at 117. If the inmate does

      not surrender the tray, he is ordered to do so, and if he does not comply, the

      DOC officer has the option of writing a discipline report and removing the tray

      from the inmate. Id.


[5]   DOC officers are trained regarding when the use of force is appropriate and

      how to de-escalate a situation. Id. at 118-20, 217-18. The DOC has a force

      continuum, which outlines the various methods available in a “ladder of

      progression” to assist in attempting to resolve situations with inmates without

      moving into a situation of physically handling the inmate where both the

      inmate and the DOC officer could get injured. Id. at 118. This force

      Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019           Page 3 of 18
      continuum is a ten-step continuum that, depending on the situation, moves

      from the concept of mere presence all the way up to the use of lethal force, if

      necessary. Id. DOC officers carry a duty belt with mechanical restraints,

      chemical agents, a radio, and a first aid kit, but they do not carry firearms. Id.

      at 122.


[6]   On October 13, 2017, DOC Officer Larrie Fleenor (“Officer Fleenor”) and

      DOC Officer Jabari Hillman (“Officer Hillman”) were working in the dining

      hall and standing between the windows through which the food was served. Id.

      at 160-61, 224-25. Hickingbottom went up to an inmate who was on crutches,

      took the inmate’s ID card, walked to the opening between the two windows to

      obtain a tray for the inmate, and handed Officer Fleenor the other inmate’s ID

      card. Id. at 163, 226. At that point, another DOC officer working in the dining

      hall, told Officer Fleenor that the inmate on crutches had informed her that he

      was not going to eat that day. Id. at 226. Officer Fleenor told Hickingbottom

      that he could only get his own tray. Id. Officer Fleenor took the other inmate’s

      ID card, looked at it, and put it in his pocket. Id. at 163, 226-27.

      Hickingbottom repeatedly asked Officer Fleenor why he had taken the ID card,

      and Officer Fleenor told him that he would give it back at the end of the meal

      and told Hickingbottom at least three times to step back. Id. at 163, 227.

      Hickingbottom became angry and reached into Officer Fleenor’s pocket to

      retrieve the ID. Id. at 163. This action made Officer Fleenor angry, and he

      “smacked” Hickingbottom’s hand away. Id. at 163. Vulgar language was used

      by both men – including a reference by Officer Fleenor to Hickingbottom as

      Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019          Page 4 of 18
      “boy.”2 Id. at 164; Tr. Vol. IV at 12, 28-30. Hickingbottom “stepped into

      [Officer Fleenor’s] face,” getting within approximately five inches from the

      officer, and Officer Fleenor shoved him away. Tr. Vol. III at 164-65, 227-28; Tr.

      Vol. IV at 12, 28. Hickingbottom then began swinging at Officer Fleenor,

      punching him six or eight times. Tr. Vol. III at 164-66, 228. Other DOC

      officers arrived to assist, and they subdued Hickingbottom with a chemical

      agent. Id. at 166, 177, 185. As a result of the altercation, Officer Fleenor had a

      “busted lip,” which required stitches, his nose and ears were bleeding, and he

      had abrasions to his head and arms. Id. at 166, 177, 202; State’s Exs. 6-11.


[7]   On October 25, 2017, Lorna Harbaugh (“Harbaugh”), the DOC officer in

      charge of investigations at the Facility, talked to Hickingbottom about the

      incident after he waived his Miranda rights. Tr. Vol. III at 207. Hickingbottom

      told Harbaugh that he was helping another inmate, Lottie, who was on crutches

      and was unable to obtain his own tray. State’s Ex. 18. Hickingbottom said that

      Lottie gave Hickingbottom his ID, and Hickingbottom went to the gap between

      the windows to obtain Lottie’s food. Id. Hickingbottom said that when he gave

      Lottie’s ID to the DOC officer, the DOC officer snatched both Lottie’s ID and

      his ID, and the DOC officer put them in his pocket. Id. Hickingbottom

      pointed to the DOC officer’s pocket and said that his ID was there too and that

      he was only trying to help someone with crutches. Id. He and the DOC officer




      2
       One of Hickingbottom’s witnesses testified that, when a white man uses the word “boy” toward a black
      man, it is used to “belittle” or to try “to bring [him] down.” Tr. Vol. IV at 29-30.

      Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019                             Page 5 of 18
      exchanged words, the DOC officer pushed Hickingbottom, and Hickingbottom

      hit the DOC officer. Id. Hickingbottom told Harbaugh that it was his belief

      that the DOC officer initiated the physical contact. Id.


[8]   The State charged Hickingbottom with Level 5 felony battery resulting in bodily

      injury to a public safety officer. Hickingbottom elected to represent himself

      throughout the proceedings. Hickingbottom filed a motion for a speedy trial,

      and a jury trial was set for January 31, 2018. Prior to trial, Hickingbottom filed

      a motion to dismiss and a motion to continue trial due to discovery issues.

      Appellant’s App. Vol. II at 51-55. The discovery issues Hickingbottom raised

      were that the State only provided him with the video of the incident and

      statements regarding the incident but did not provide him with information he

      could use to impeach the witnesses such as prior criminal records and

      grievances against the witnesses. Id. at 54. The trial court denied both motions.

      Id. at 130-31.


[9]   In a pretrial conference, the parties discussed proposed testimony by State’s

      witness, Charles Williams (“Williams”), who the State said would testify

      regarding the policies and procedures of the Facility and what training the

      officers working at the Facility received. Tr. Vol. II at 106-07. Hickingbottom

      told the trial court that, in reference to Williams’s testimony, he wished to have

      access to the DOC’s “rulebook” for the DOC officers to determine if Williams’s

      training tactics were correct. Id. at 107. The State responded that it was not

      sure if such a manual existed but that it was attempting to acquire information

      on the use of force, the force continuum, and any related standard operating

      Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019         Page 6 of 18
       procedures or training related to what was at issue in the case if such

       information existed. Id. at 107-08.


[10]   The day before trial was to begin, another pretrial hearing was held, and the

       parties again discussed the manual of the policies and procedures for the

       officers working in the DOC. Id. at 166. The State told the trial court that it

       was not able to obtain any manual because the Facility stated that an actual

       manual given to the DOC officers that explained procedures did not exist. Id.

       The State, therefore, told the trial court that it would not be offering into

       evidence any manual. Id. at 166-67. Hickingbottom insisted that he had

       observed a manual and continued to take issue with Williams’s testimony

       regarding training procedures without Hickingbottom having access to the rules

       because it would hinder his cross-examination of Williams. Id. at 168. The

       trial court stated that the State would not be allowed to admit any written

       manual into evidence at trial and that Hickingbottom would be able to cross-

       examine Williams regarding the training of DOC officers. Id. at 169-70.


[11]   At trial, the State presented the testimony of Williams, who was the Facility

       training coordinator, and he testified regarding the training that DOC officers

       received on when the use of force is appropriate. Tr. Vol. III at 117-18. He

       discussed how the DOC officers were trained to de-escalate a situation and

       about the force continuum that outlines the various methods available to

       attempt to resolve situations without resorting to a physical altercation. Id. at

       118. He testified that this continuum contained ten steps that progressed from



       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019           Page 7 of 18
       mere presence of DOC officers to various kinds of physical force. Id. at 118-21.

       On cross-examination, Hickingbottom questioned Williams as follows:


               Q: Are there or is there a rulebook on how you should train other
               [DOC] officers?


               A: Can you define what you mean by “rulebook”?


               Q: A rulebook explaining the techniques or what’s to be done
               during a tragic [sic] situation?


               A: Our training is governed by departmental policies and
               procedures. The division of staff training issues approved lesson
               plans that we use to train with.


               Q: Does the rulebook also explain how [DOC] officers should
               conduct themselves?


               A: Yes, there is information there about being -- acting in a
               professional manner.


       Id. at 123.


[12]   After Williams’s testimony, Hickingbottom moved for a mistrial, arguing that

       he had not received the manual explaining the conduct that DOC officers

       should engage in when dealing with inmates, particularly when faced with a

       situation similar to what occurred here. Id. at 127-28. He stated that he knew

       the manual existed because he had seen it before, and that although the Facility

       had told the State that a manual did not exist, Williams had testified that it in

       fact did. Id. at 128. Hickingbottom asserted that, without the manual, he was

       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019            Page 8 of 18
       not able to properly cross-examine Williams as to whether Officer Fleenor had

       acted improperly on the date of the altercation. Id. He claimed that he was,

       therefore, unable to adequately prepare a defense and was being denied a fair

       trial. Id. The trial court denied Hickingbottom’s motion for mistrial. Id. at

       149. The next day, Hickingbottom again questioned Williams, and Williams

       testified that no DOC officer manual existed – only training materials. Id. at

       156. Harbaugh also testified that DOC officers do not have rule books or other

       manuals. Id. at 216. When Officer Fleenor testified, he compared DOC

       officers to daycare workers or babysitters and that the DOC officers give the

       inmates “recess,” three meals,” bedtime when they must be quiet, and timeout

       when they misbehave. Id. at 220.


[13]   At the conclusion of the trial, the jury found Hickingbottom guilty of Level 5

       felony battery resulting in bodily injury to a public safety officer.

       Hickingbottom filed several motions to correct error and a motion for a new

       trial due to newly discovered evidence, claiming that he had confirmation of the

       existence of the manual from other DOC officers at the Facility. Appellant’s

       App. Vol. III at 61-64. The trial court denied all of these motions.

       Hickingbottom now appeals.


                                        Discussion and Decision
[14]   Hickingbottom argues that the trial court abused its discretion when it denied

       his motion for mistrial based on the State’s failure to produce the manual

       containing DOC’s written policies governing the behavior of DOC officers


       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019        Page 9 of 18
       when they are involved in incidents, including arguments and physical

       altercations, with inmates. Hickingbottom contends that he repeatedly sought

       this manual and that the State never provided it to him. He asserts that,

       although the State indicated repeatedly that the manual did not exist, it later

       conceded it did exist but that it would not be disclosed by DOC. Based on the

       failure of the State to produce this manual, Hickingbottom claims his ability to

       prepare a proper defense was unfairly compromised, and he was deprived of a

       fair trial.


[15]   The decision to grant or deny a motion for mistrial lies within the discretion of

       the trial court. Ray v. State, 838 N.E.2d 480, 486 (Ind. Ct. App. 2005) (citing

       Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001)), trans. denied. The grant of a

       motion for mistrial is an extreme remedy that is warranted only when less

       severe remedies will not satisfactorily correct the error. Lucio v. State, 907

       N.E.2d 1008, 1010-11 (Ind. 2009). “To prevail, the defendant ‘must show that

       he was placed in a position of grave peril to which he should not have been

       subjected.’” Ray, 838 N.E.2d at 480 (quoting Francis, 758 N.E.2d at 532). The

       gravity of the peril is determined by the probable persuasive effect on the jury’s

       decision. Id. (citing James v. State, 613 N.E.2d 15, 22 (Ind. 1993)).


[16]   Here, Hickingbottom was charged with battery resulting in bodily injury on a

       public safety officer, and at trial, he sought to present a defense that he used

       reasonable force in his altercation with Officer Fleenor because Officer Fleenor

       had not followed proper DOC procedures in his use of force. Prior to trial,

       Hickingbottom requested that the State produce the manual used by the

       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019          Page 10 of 18
       Facility, and the DOC generally, to set the policies and procedures on the use of

       force by DOC officers working for the DOC. The State never produced the

       manual and told the trial court that such a manual did not exist. However, at

       trial, Williams testified as to the training that DOC officers received regarding

       when the use of force is appropriate. Tr. Vol. III at 117-18. He discussed how

       the DOC officers were trained to de-escalate a situation and about the force

       continuum that outlines the various methods available to attempt to resolve

       situations without resorting to a physical altercation. Id. at 118. Williams

       testified that this continuum contained ten steps that progressed from mere

       presence of the DOC officers, to various kinds of physical force, all the way to

       lethal force. Id. at 118-21. On cross-examination, Hickingbottom questioned

       Williams as to whether there was a “rulebook on how you train other [DOC]

       officers” “explaining the techniques or what’s to be done during a tragic [sic]

       situation.” Id. at 123. Williams responded that the DOC officers’ training is

       governed by departmental policies and procedures and that lesson plans are

       approved to use for training purposes. Id. Hickingbottom then asked whether

       the rulebook explained how DOC officers should conduct themselves, and

       Williams responded “Yes, there is information there about being – acting in a

       professional manner.” Id.


[17]   Hickingbottom moved for a mistrial on the grounds Williams’s testimony

       confirmed a rulebook or manual existed. Hickingbottom asserted that the

       manual was critical to his cross-examination of Williams and his overall

       defense that he was authorized to use the force he did against Officer Fleenor


       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019         Page 11 of 18
       because Officer Fleenor acted outside his official capacity when he forcefully

       shoved Hickingbottom. Id. at 127-128,131. Hickingbottom claimed the State’s

       failure to produce the manual violated his rights under the Sixth Amendment

       and the Fourteenth Amendment and that he was unable to properly prepare a

       defense and was being denied a fair trial. Id. at 128, 131.


[18]   Although the State represented that a manual detailing the use of force by DOC

       officers did not exist, the manual is referenced specifically, and included in part,

       on the DOC website. See https://www.in.gov/idoc/2830.htm (last visited

       Mar. 21, 2019). We take judicial notice of the existence of this manual of DOC

       policies and procedures pursuant to Indiana Evidence Rule 201(a)(2)(A), which

       states that a court may judicially notice the existence of published regulations of

       governmental agencies.3 Subsection XIV on page 9 of Section 02-03-117 of the

       manual states,


                The use of physical force by Correctional Police Officers shall be
                in compliance with the use of force continuum in the
                administrative procedure for Policy 02-01-109, “The Use of
                Physical Force,” . . . . Correctional Police Officers shall only use
                that amount of physical force necessary to control the situation
                and ensure the safety and security of all persons involved.


                Additionally, Correctional Police Officers shall comply with the
                administrative procedures for Policy 02-01-112, “The Use of




       3
         Pursuant to Indiana Evidence Rule 201(c)(2), “the court must take judicial notice if a party requests it and
       the court is supplied with the necessary information. In his appellate brief, Hickingbottom specifically
       requests that we take judicial notice of the manual appearing on the DOC website.

       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019                                  Page 12 of 18
               Restraint Equipment,” . . . and Policy 02-01-113, “The Use of
               Firearms and Chemical Agents.”


       https://www.in.gov/idoc/3265.htm (last visited Mar. 21, 2019). However, a

       link to Policy 02-01-109, as well as the other sections of the manual which may

       involve the use of force with inmates (Policies 02-01-112 and 02-01-113), is not

       included on the DOC website. See id.4 Therefore, at all pertinent times, the

       manual existed and was available on the DOC website, even though certain

       polices were omitted.


[19]   During pretrial proceedings and during trial, the State repeatedly told the trial

       court that it did not know of the existence of the manual and blamed the DOC

       for not providing it to the State. However, although the State may not have

       known of the existence of the manual prior to the trial, during trial, Williams’s

       testimony confirmed the existence of the manual and established that DOC

       officers received training on when the use of force is appropriate and that they

       were trained to de-escalate a situation and to follow the ten-step force

       continuum to try to resolve situations without resorting to a physical

       altercation. Id. at 117-21. On cross-examination, Williams admitted that the

       training of DOC officers was governed by DOC policies and procedures and




       4
         Although the State argues that the manual that appears on the DOC website was not available online at the
       time of Hickingbottom’s trial because it was not issued until July 2018, we note that within the manual, the
       pertinent parts contain an effective date of September 1, 2013, which establishes that the manual was
       available at the time of Hickingbottom’s trial, which began on January 31, 2018.

       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019                               Page 13 of 18
       that such policies and procedures explained how DOC officers should conduct

       themselves. Id. at 123.


[20]   The manual was critical to Hickingbottom’s self-defense claim, which arose

       under Indiana Code section 35-41-3-2, providing in relevant part:


               (i) A person is justified in using reasonable force against a public
               servant if the person reasonably believes the force is necessary to:


               (1) protect the person or a third person from what the person
               reasonably believes to be the imminent use of unlawful force; [or]


               ....


               (3) prevent or terminate the public servant’s unlawful trespass on
               or criminal interference with property lawfully in the person’s
               possession, lawfully in possession of a member of the person’s
               immediate family, or belonging to a person whose property the
               person has authority to protect.


               (j) Notwithstanding subsection (i), a person is not justified in
               using force against a public servant if:


               (1) the person is committing or is escaping after the commission
               of a crime;


               (2) the person provokes action by the public servant with intent to
               cause bodily injury to the public servant;


               (3) the person has entered into combat with the public servant or
               is the initial aggressor, unless the person withdraws from the
               encounter and communicates to the public servant the intent to

       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019           Page 14 of 18
               do so and the public servant nevertheless continues or threatens
               to continue unlawful action; or


               (4) the person reasonably believes the public servant is:


               (A) acting lawfully; or


               (B) engaged in the lawful execution of the public servant’s official
               duties.


       Ind. Code § 35-41-3-2(i), (j).


[21]   Hickingbottom, in requesting the manual, expected it to show what the proper

       policies and procedures were for DOC officers when using force and to

       establish that Officer Fleenor acted outside what was the proper use of force

       under the policies and, therefore, acted unlawfully. Hickingbottom’s self-

       defense claim was based on an assertion that such unlawful actions by Officer

       Fleenor justified Hickingbottom’s use of reasonable force against Officer

       Fleenor under Indiana Code section 35-41-3-2(i).


[22]   Because he needed the manual to establish his claim of self-defense,

       Hickingbottom contends that he was denied his constitutional right to a fair

       trial. Essentially, Hickingbottom is arguing that a Brady violation occurred and

       that the alleged violation placed him in grave peril. Under Brady v. Maryland,

       373 U.S. 83 (1963), the State is required to disclose evidence that is favorable to

       the accused and material to the accused’s guilt or punishment. Hubbell v. State,

       754 N.E.2d 884, 893 (Ind. 2001). “Evidence is material under Brady ‘only if


       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019           Page 15 of 18
       there is a reasonable probability that, had the evidence been disclosed to the

       defense, the result of the proceeding would have been different.’” Williams v.

       State, 714 N.E.2d 644, 649 (Ind. 1999) (quoting United State v. Bagley, 473 U.S.

       667, 682 (1985)), cert. denied, 528 U.S. 1170 (2000). “‘A reasonable probability’

       is a probability sufficient to undermine confidence in the outcome.’” Id.

       (quoting Bagley, 473 U.S. at 682). If the favorable evidence becomes known to

       the defendant before or during the course of a trial, Brady is not implicated. Id.


[23]   The manual was material to a determination of Hickingbottom’s guilt because

       his claim of self defense rested on an assertion that Officer Fleenor acted

       unlawfully through his aggressive physical confrontation and the use of a racial

       slur toward Hickingbottom. Tr. Vol. IV at 69-72. In order to prove that Officer

       Fleenor violated the DOC policies and procedures in reference to the use of

       force and therefore acted unlawfully, Hickingbottom needed access to the

       manual that contained the pertinent policies and procedures. The State

       presented Williams’s testimony regarding training procedures in lieu of the

       manual, but Hickingbottom was not able to effectively cross-examine Williams

       without having access to the manual. Without the manual, Hickingbottom was

       not able to determine whether Williams was accurately testifying regarding the

       DOC policies governing DOC officers and the use of force. “As the Indiana

       Supreme Court has recognized, ‘the right to adequate and effective cross-

       examination is fundamental and essential to a fair trial [and] includes the right

       to ask pointed and relevant questions in an attempt to undermine the

       opposition’s case, as well as the opportunity to test a witness’s memory,


       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019         Page 16 of 18
       perception, and truthfulness.’” Berkman v. State, 976 N.E.2d 68, 77 (Ind. Ct.

       App. 2012) (quoting State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993)), trans.

       denied, cert. denied, 571 U.S. 863 (2013).


[24]   The State’s failure to produce the manual affected the outcome of

       Hickingbottom’s trial and undermined confidence in the outcome. The failure

       of the State to provide Hickingbottom with the manual probably impacted the

       jury’s deliberations because the jury was not given the most important evidence

       regarding Hickingbottom’s self-defense claim. Without the manual,

       Hickingbottom had no ability to substantiate his self-defense claim because it

       necessarily rested on proof that Officer Fleenor violated the manual’s use of

       force provisions when dealing with Hickingbottom and, therefore, acted

       unlawfully. If Officer Fleenor used unlawful force or Hickingbottom

       reasonably believed Officer Fleenor imminently would use unlawful force,

       Hickingbottom contends he was justified in using reasonable force to protect

       himself. See I.C. § 35-41-3-2(i), (j). No remedy other than a mistrial could cure

       the error at that point and ensure Hickingbottom’s right to a fair trial. That is

       because Hickingbottom’s trial was almost completed at the time Williams’s

       testimony made clear that written policies and procedures existed. Williams

       testified DOC officers are trained in accordance with DOC “policies and

       procedures,” and the manual located on the DOC website consists of at least

       some of those written policies and procedures. Tr. Vol. III at 123;

       http://www.in.gov/idoc/2830.htm. Williams’s testimony made clear that the

       policies and procedures which the State had been maintaining did not exist, in


       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019         Page 17 of 18
       fact, did exist. Thus, the State’s failure to produce the manual was so

       prejudicial that Hickingbottom was placed in a position of grave peril to which

       he should not have been subjected. We, therefore, conclude that the trial court

       abused its discretion when it denied Hickingbottom’s motion for mistrial. We

       reverse his conviction and remand for a new trial with instructions that, prior to

       any subsequent proceeding, the DOC shall produce the manual containing its

       policies and procedures pertaining to the use of force by DOC officers to the

       State so that Hickingbottom has the ability to review and utilize it.


[25]   Reversed and remanded.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-627 | April 8, 2019          Page 18 of 18
