Kirsch, J.
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 DOC officers.
We reverse and remand.
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. …
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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. 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. 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. Officer Fleenor told Hickingbottom that he could only get his own tray. Officer Fleenor took the other inmate’s ID card, looked at it, and put it in his pocket. 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. Hickingbottom became angry and reached into Officer Fleenor’s pocket to retrieve the ID. This action made Officer Fleenor angry, and he “smacked” Hickingbottom’s hand away. Vulgar language was used by both men – including a reference by Officer Fleenor to Hickingbottom as “boy.” Hickingbottom “stepped into
[Officer Fleenor’s] face,” getting within approximately five inches from the officer, and Officer Fleenor shoved him away. Hickingbottom then began swinging at Officer Fleenor, punching him six or eight times. Other DOC officers arrived to assist, and they subdued Hickingbottom with a chemical agent. 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. …
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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. …
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. 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. …
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. 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. …
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. …
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. … The trial court denied Hickingbottom’s motion for mistrial. …
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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 when they are involved in incidents, including arguments and physical altercations, with inmates. … 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.
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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. …
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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. …
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. 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. … 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. …
… 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.
Reversed and remanded.
Riley, J., and Robb, J., concur.