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Hickingbottom v. State

Court of Appeals of Indiana

April 8, 2019

Michael Hickingbottom, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal 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, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

          Kirsch, Judge.

         [¶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. 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 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 "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 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 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 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 ...

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