MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Jan 31 2020, 8:06 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Michael Brandon Swafford,                                January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-724
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G04-1603-F1-9391



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020          Page 1 of 11
                                                Case Summary


[1]   Michael Swafford appeals his convictions for attempted murder, a Level 1

      felony, and resisting law enforcement, a Level 6 felony, claiming that the trial

      court erred in denying his motion for a mistrial.


[2]   We affirm.


                                 Facts and Procedural History
[3]   At approximately 4:00 a.m. on March 8, 2016, IMPD officer Christopher

      Maher was interviewing Chuck Yowler in a southside neighborhood regarding

      the whereabouts of a suspected car thief. At some point, a blue Chevrolet

      Cavalier approached the area. The driver of the vehicle, later identified as

      Swafford, advanced toward Officer Maher’s police car, shined his bright lights,

      and remained stopped for a few seconds. Officer Maher activated his police

      cruiser’s rotating red and blue lights with the intention of encouraging Swafford

      to “move on.” Transcript Vol. II at 25. Swafford, however, continued to slowly

      approach Officer Maher without dimming his lights.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020   Page 2 of 11
[4]   Officer Maher told Yowler that he needed to leave so he could conduct a traffic

      stop based on Swafford’s failure to dim his bright lights. 1 Officer Maher made a

      U-turn and parked on the street. Once Swafford passed him, Officer Maher

      began following the vehicle. Swafford ran a stop sign, and a chase ensued.

      Swafford ran at least three stop lights. Officer Maher radioed the Cavalier’s

      license plate to the police dispatcher and learned that the vehicle was registered

      to Nicole Salinas, who was the mother of one of Swafford’s children.


[5]   Swafford eventually slowed down to nearly five miles per hour and pointed a

      rifle at Officer Maher’s vehicle. Swafford fired several rounds at Officer Mayer,

      shattering a window and penetrating the police car’s windshield. Officer Maher

      was hit in the chest with shards of glass. As the chase continued, Swafford

      fired several more rounds at Officer Maher, shattering the back window of the

      police cruiser. Officer Maher returned fire, but his handgun eventually

      jammed. Swafford then accelerated and drove away. Officer Maher lost sight

      of the Cavalier and terminated the chase. A subsequent investigation revealed

      that one 7.62 mm shell headstamped “TulAmmo 7.62 x 39” was located

      approximately 600 feet from shell casings that had come from Officer Maher’s

      handgun. Transcript Vol. II at 143, 156.




      1
        Ind. Code § 9-21-8-51 provides that “[a] person who operates a vehicle and fails to dim bright or blinding
      lights when meeting another vehicle . . . commits a class B infraction.”



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020                   Page 3 of 11
[6]   Near the time of the chase, Swafford telephoned Salinas and told her to report

      the car stolen. At some point, Salinas called the police and left a message to

      that effect. IMPD Sergeant Jeffrey Augustinovicz and other officers conducted

      surveillance on Salinas’s residence. When Salinas returned to her apartment

      around noon, the officers obtained her consent to search the residence. The

      search revealed a .50 caliber gun box containing empty shell casings and live

      rounds, some mail from Swafford to Salinas bearing a Department of

      Correction return address, and a photo of Swafford and his daughter.


[7]   During the evening of March 8, Swafford contacted a friend, Brian Gearlds,

      and the two dropped off the Cavalier at an abandoned apartment complex near

      38th street. Swafford told Gearlds that he had been in a shootout with the

      police and needed “to get rid of this car.” Transcript Vol. III at 31. Swafford set

      the car on fire, fled the area, and IMPD officers were subsequently dispatched

      to the scene. After the fire was extinguished, the officers recovered several

      spent 7.62 mm shell casings in the back seat of the Cavalier. All but one of the

      casings had the same “TulAmmo” headstamp as that found on the street where

      Swafford had shot at Officer Maher. Transcript Vol. II at 43, 56, 239-42.


[8]   On March 18, 2016, Officer Erik Forestal made a “deal” with Gearlds to assist

      the police in apprehending Swafford. Transcript Vol. III at 70, 77. Gearlds

      agreed to help, and pursuant to a plan arranged with police, he picked up

      Swafford on March 20th and drove him to a Speedway gas station. Swafford

      was carrying a handgun and a duffle bag when he got into Gearlds’s vehicle.

      The police arrested Swafford at the Speedway, and during a search incident to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020   Page 4 of 11
      arrest, the officers seized a .50 caliber handgun from Swafford’s waistband.

      The officers also recovered the rifle that Swafford fired at Officer Maher during

      the March 8 police chase, along with a 75-round drum magazine, and unspent

      rounds of ammunition from the duffle bag. Forty-one of the unfired casings

      were stamped with “TulAmmo 7.62 x 39.” Id. at 98.


[9]   The State charged Swafford with attempted murder, a Level 1 felony, and

      resisting law enforcement, a Level 6 felony. Swafford was also alleged to be an

      habitual offender. During a two-day jury trial that commenced on December

      17, 2018, twenty-four witnesses testified for the State. At some point during the

      trial, the State questioned Sergeant Augustinovicz about the items that were

      seized during the search of Salinas’s apartment. In response, Sergeant

      Augustinovicz testified about some mail found in a back bedroom that was

      addressed to “Ms. Salinas from [Swafford] when he was incarcerated earlier.”

      Transcript Vol. II at 204 (emphasis added). The prosecutor immediately

      interjected and directed Sergeant Augustinovicz to “stop.” Id. He then

      requested the trial court to admonish the jury to disregard Sergeant

      Augustinovicz’s statement and to have it stricken from the record. The trial

      court granted the motion to strike and admonished the jury to “act as if you

      never heard the question or answer. You may not refer to it or discuss it in any

      way during any of your discussions or during deliberations.” Id. at 205. At a

      hearing outside the jury’s presence, Swafford’s counsel addressed the trial court

      as follows:




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020   Page 5 of 11
               Judge, at this time, based upon the statement that was made by
               Officer Augustinovicz, I have no choice but to move for a
               mistrial. . . . And it’s based upon the evidentiary harpoon that
               has been created by his—and I don’t think it was intentional at all.
               But I think it did come out in the flow of his answer. It was—it
               was loud and clear to me. Caught me so off guard that I was
               shocked and surprised by it. . . . And again, that’s an evidentiary
               harpoon that we can’t recover from. No admonishment is going
               to assist us in recovering from that harpoon. And I just think it
               was loud and clear.


       Id. at 207 (emphasis added). The trial court denied Swafford’s motion for a

       mistrial, finding that “the testimony that came in was the word incarcerated,

       which was really not responsive to the State’s question,” and “the State did not

       elicit that information.” Id. at 209.


[10]   Swafford was found guilty as charged and determined to be an habitual

       offender. Thereafter, on March 6, 2019, Swafford was sentenced to a total of

       fifty-five years of incarceration. He now appeals.


                                      Discussion and Decision
[11]   A mistrial is an extreme remedy that should be used only when no other

       curative measure will rectify the situation. Moore v. State, 652 N.E.2d 53, 57

       (Ind. 1995). In reviewing the denial of a motion for a mistrial, the defendant

       must demonstrate that the conduct complained of was both in error and had a

       probable persuasive effect on the jury’s decision. Pierce v. State, 761 N.E.2d 821,

       825 (Ind. 2002). More specifically, the appellant must establish that the

       questioned conduct was so prejudicial and inflammatory that he was placed in a


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020   Page 6 of 11
       position of grave peril to which he should not have been subjected. Gregory v.

       State, 540 N.E.2d 585, 589 (Ind. 1989). The gravity of the peril is measured by

       the conduct’s probable persuasive effect on the jury, not the degree of

       impropriety of the conduct. Id. A trial judge’s discretion in determining

       whether to grant a mistrial is afforded great deference, because the trial judge is

       in the best position to gauge the surrounding circumstances of an event and its

       impact on the jury. Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001).


[12]   In certain circumstances, the injection of an evidentiary harpoon may constitute

       prosecutorial misconduct requiring a mistrial. Roberts v. State, 712 N.E.2d 23,

       34 (Ind. Ct. App. 1999), trans. denied. An evidentiary harpoon is the placing of

       inadmissible evidence before the jury with the deliberate purpose of prejudicing

       the jurors against the defendant. Kirby v. State, 774 N.E.2d 523, 535 (Ind. Ct.

       App. 2002), trans. denied. To prevail on such a claim, the defendant must show

       that the prosecution acted deliberately to prejudice the jury and that the

       evidence was inadmissible. Id. A defendant need not prove that he would have

       been acquitted but for the harpooning. Jewell v. State, 672 N.E.2d 417, 424 (Ind.

       Ct. App. 1996), trans. denied. However, when the jury’s determination is

       supported by independent evidence of guilt and it was likely that the evidentiary

       harpoon did not play a part in the defendant’s conviction, the error is harmless.

       Perez v. State, 728 N.E.2d 234, 237 (Ind. Ct. App. 2000), trans. denied.


[13]   In this case, Swafford asserts that a mistrial should have been granted because

       Sergeant Augustinovicz remarked during his testimony that Swafford had been

       previously incarcerated. This comment, claims Swafford, amounted to a
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020   Page 7 of 11
       prejudicial evidentiary harpoon because an inference arose that “Swafford is a

       bad character who was more likely to be guilty of the charged offenses,” and

       that inference could not be cured by an admonishment. Appellant’s Brief at 9.


[14]   First, we note that Swafford’s trial counsel conceded that the State did not

       deliberately seek to have that prejudicial statement introduced into evidence.

       Moreover, immediately after Sergeant Augustinovicz made the comment, the

       State stopped the questioning and requested an admonishment.


[15]   In our view, there was no evidentiary harpoon in this instance that warranted a

       mistrial, as we cannot say that there was any deliberate act by the State with the

       intent to prejudice the jury against Swafford. That said, the admonishment that

       the trial court gave following Sergeant Augustinovicz’s testimony was

       presumed to correct any error. See Ramsey v. State, 853 N.E.2d 491, 500 (Ind.

       Ct. App. 2006) (holding that an admonishment to ignore a detective’s comment

       about the defendant’s possible involvement in a federal drug conspiracy was

       presumed to correct any error, and a mistrial was not warranted), trans. denied.


[16]   Nonetheless, Swafford claims that a mistrial was warranted because Sergeant

       Augustinovicz, a twenty-one-year veteran police officer, should have known

       better than to testify about a defendant’s prior incarceration. In support of that

       contention, Swafford directs us to several cases where law enforcement officers

       were found to be the source of an evidentiary harpoon. See, e.g., Baker v. State,

       506 N.E.2d 817, 818 (Ind. 1987) (observing that a police officer’s testimony that

       the defendant had been offered a polygraph examination could not be presumed


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020   Page 8 of 11
       harmless or inadvertent in the absence of any corroborating evidence to support

       the victim’s testimony in a prosecution for child molesting); Perez, 728 N.E.2d

       at 237 (concluding that a police officer’s unsolicited statement on direct

       examination that he was told by another officer that the defendant was a

       convicted felon was an evidentiary harpoon, yet the error was harmless because

       the jury’s determination of guilt was supported by independent evidence and

       the evidentiary harpoon likely did not play a role in the conviction); Houchen v.

       State, 632 N.E.2d 791, 794 (Ind. Ct. App. 1994) (holding that the trial court

       erred in denying the defendant’s motion for a mistrial and warranted reversal in

       a child molesting prosecution where a detective twice deliberately volunteered at

       trial that the defendant had been offered a polygraph examination, and it was

       established that the defendant “could not have been convicted without [the

       detective’s] testimony,” in light of the four-year-old victim’s confusing and

       equivocal testimony).


[17]   In each of the cases cited above, it was readily apparent that the inadmissible

       evidence was intentionally placed before the jury to prejudice the defendant.

       We cannot say the same here. Sergeant Augustinovicz reviewed his notes

       relating to the search of the apartment to refresh his recollection just prior to

       responding to the State’s question. He did not testify that Swafford had been

       previously convicted of a crime, did not describe Swafford as a felon, or make a

       statement that would have placed Swafford in grave peril. Rather, the

       comment was in reference to a piece of mail that he and other police officers




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020   Page 9 of 11
       discovered during the search that connected Swafford to Salinas’s residence,

       and to the vehicle that was involved in the police chase and shooting.


[18]   Finally, we note that the independent evidence the State presented at trial,

       including the lengthy testimony presented by numerous witnesses, established

       Swafford’s guilt in the charged offenses. Specifically, the State demonstrated

       that Swafford had been in possession of the Cavalier since November 2015. His

       ongoing use of that vehicle was confirmed by several witnesses, and it was

       established that at some point during the March 8 episode, Swafford urged

       Salinas to report the vehicle stolen. Swafford and Gearlds abandoned the

       vehicle and set it on fire later that evening, and the police recovered the

       Cavalier where the two men had abandoned it.


[19]   The evidence further established that the rifle recovered from Swafford’s duffle

       bag was the one used in the shooting. The forty-five rounds of ammunition

       found in the bag and those seized from the back seat of the Cavalier were of the

       same brand and type that were recovered from the scene of the shooting.


[20]   We cannot say that Sergeant Augustinovicz’s isolated comment played a role

       in the conviction and amounted to a prejudicial evidentiary harpoon that

       warranted a mistrial, When considering the independent evidence that the

       State presented to support Swafford’s guilt, any alleged error that may have

       resulted from Detective Augustinovicz’s testimony was harmless. For these

       reasons, we conclude that the trial court properly denied Swafford’s motion for

       a mistrial.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020   Page 10 of 11
[21]   Judgment affirmed.


       Robb, J. and Bradford, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-724 | January 31, 2020   Page 11 of 11
