from the Miami Superior Court The Honorable J. David Grund,
Judge Trial Court Cause No. 52D01-1711-F5-109
ATTORNEY FOR APPELLANT Kimberly A. Jackson Indianapolis,
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Monika Prekopa Talbot Supervising Deputy Attorney
General Indianapolis, Indiana
Michael Hickingbottom ("Hickingbottom") was
convicted after a jury trial of battery resulting in bodily
injury to a public safety officer 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
We reverse and remand.
and Procedural History
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. III at 198-99;
State's Ex. 4. Hickingbottom signed the booklet
on October 12, 2016. State's Ex. 5.
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.
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 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.
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 "boy." 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.
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 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
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
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 procedures or training related to what was at issue
in the case if such information existed. Id. at
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.
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 mere presence of DOC officers to various
kinds of physical force. Id. at 118-21. On
cross-examination, Hickingbottom questioned Williams as
Q: Are there or is there a rulebook on how you should train