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).
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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
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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
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“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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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,
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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
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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.
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