MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jan 18 2017, 8:54 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Wallace Briscoe, January 18, 2017
Appellant-Defendant, Court of Appeals Case No. 49A02-1605-CR-1186
v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Judge Appellee-Plaintiff. Trial Court Cause No. 49G04-1508- F3-27202
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 1 of 7 Case Summary [1] On the morning of July 30, 2015, intoxicated Appellant-Defendant Wallace
Briscoe ran a stop sign and struck and killed Jonathan Harrison, who was riding
his motorcycle. The State charged Briscoe with several counts, including Level
4 felony operating a vehicle with a schedule II controlled substance in the blood
causing death and with being a habitual offender, and he was ultimately
convicted of both.
[2] On the first day of Briscoe’s trial, the State sought to introduce a recording of a
911 call made by an eyewitness the day of the fatal accident, but realized after
approximately one second that it had mistakenly provided a recording of a 911
call from another case. Although the State withdrew the recording, Briscoe
moved for mistrial, which motion the trial court denied. The second day of
trial, the State sought to introduce the actual 911 call, along with its computer
aided dispatch (“CAD”) report. Soon after the CAD report was published to
the jury, the trial court noticed that it indicated that Briscoe had a prior
conviction for operating a vehicle while intoxicated (“OWI”). Again, Briscoe
moved for mistrial, which motion the trial court denied. The trial court recalled
copies of the CAD report from the jury, struck it from the record, and
admonished the jury not to consider it. During final instructions, the jury was
instructed not to consider stricken material. Briscoe contends that the trial
court abused its discretion in denying his mistrial motions. Because we
disagree, we affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 2 of 7 Facts and Procedural History [3] After a night of heavy drinking and cocaine use, Briscoe drove to work in
Indianapolis on the morning of July 30, 2015. The night before, Briscoe had
consumed six to nine beers at a concert, continued drinking until approximately
4:00 a.m., and managed little sleep before leaving for work at approximately
6:30 a.m. Briscoe’s blood alcohol concentration was later determined to be
0.19 grams per 100 milliliters of blood.
[4] Briscoe ran a stop sign at 40th Street and Keystone Avenue, causing Harrison to
hit his brakes and lay his motorcycle down in an unsuccessful attempt to avoid
Briscoe’s truck. Harrison was killed instantly by the extensive blunt force
injuries he sustained in the crash. Harrison’s sternum and all of his ribs were
fractured; his lungs, heart, aorta, liver, spleen, left kidney, and pancreas were
lacerated; and he had severe bleeding in his neck, chest, abdomen, and pelvic
cavity. Joseph Griffin followed as Briscoe fled the scene, called 911, and
observed Briscoe run a red light and a stop sign and almost hit a bus and a
police car. Briscoe became boxed in by traffic and was soon stopped by police.
[5] On August 3, 2015, the State charged Briscoe with Level 3 felony leaving the
scene of an accident causing death, Level 5 felony OWI causing death, and
Level 5 felony operating with an alcohol concentration equivalent of 0.08
causing death. The State also alleged that Briscoe was a habitual offender and
habitual vehicular substance offender. The State later charged Briscoe with
Level 4 felony operating a vehicle with a schedule II controlled substance in the
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 3 of 7 blood causing death and filed Level 4 felony sentencing enhancements to the
two Level 5 felony charges.
[6] Briscoe’s jury trial was held on April 11 and 12, 2016. During trial, the State
attempted to admit into evidence a 911 call and accompanying CAD sheet
through Kimberly Curry, employed by the Marion County Sheriff’s audio
records department. Curry’s voice introduced the content of the 911 call.
Approximately one second into publication of the recording, the prosecutor
realized that there had been a mistake and that a different 911 call from
another, unrelated case had been mixed in. The audio heard by the jury was
limited to Curry’s identification of the recording’s contents. The State moved
to strike the 911 call from evidence, and Briscoe moved for mistrial on the basis
that a 911 call not related to his case was prejudicial. The trial court denied
Briscoe’s mistrial motion and allowed the State to strike the call, which it did
on the basis that it was the “State’s error in admitting State’s Exhibit 11. And
for that reason, because it is irrelevant to this case, we would move [to] strike.”
Tr. p. 77.
[7] The second day of trial, the State proceeded to introduce the correct 911 call
and CAD report. After the 911 call and CAD report were admitted, but before
the 911 call was played for the jury, the State elicited additional testimony
about the CAD report. At that point, the trial court called a recess and notified
that parties that the fourth page (of six) in the CAD report contained a reference
to Briscoe’s prior conviction for OWI. After Briscoe’s objection and mistrial
motion, the trial court granted the State’s motion to strike the CAD report and
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 4 of 7 admonished the jury that “[t]he Court has stricken the CAD from State’s 17
from the record. You are instructed to disregard any written information
contained therein and you may not discuss or consider it in any way, all right.”
Tr. p. 163. During final instructions, the trial court instructed the jury that it
was not to consider any evidence stricken from the record.
[8] Ultimately, judgment of conviction was entered against Briscoe for Level 4
felony operating a vehicle with a schedule II controlled substance in the blood
causing death and he was found to be a habitual offender. The trial court
sentenced Briscoe to an aggregate term of sixteen years of incarceration with
four suspended to probation.
Discussion and Decision [9] Briscoe contends that the trial court abused its discretion in denying his two
mistrial motions, which were based on the jury hearing a portion of the
mistaken 911 call and the temporary admission of the CAD report before it was
stricken.
We review a trial court’s decision to deny a mistrial for abuse of discretion because the trial court is in “the best position to gauge the surrounding circumstances of an event and its impact on the jury.” McManus v.
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jan 18 2017, 8:54 am Memorandum Decision shall not be regarded as CLERK precedent or cited before any court except for the Indiana Supreme Court Court of Appeals purpose of establishing the defense of res judicata, and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Wallace Briscoe, January 18, 2017
Appellant-Defendant, Court of Appeals Case No. 49A02-1605-CR-1186
v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Judge Appellee-Plaintiff. Trial Court Cause No. 49G04-1508- F3-27202
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 1 of 7 Case Summary [1] On the morning of July 30, 2015, intoxicated Appellant-Defendant Wallace
Briscoe ran a stop sign and struck and killed Jonathan Harrison, who was riding
his motorcycle. The State charged Briscoe with several counts, including Level
4 felony operating a vehicle with a schedule II controlled substance in the blood
causing death and with being a habitual offender, and he was ultimately
convicted of both.
[2] On the first day of Briscoe’s trial, the State sought to introduce a recording of a
911 call made by an eyewitness the day of the fatal accident, but realized after
approximately one second that it had mistakenly provided a recording of a 911
call from another case. Although the State withdrew the recording, Briscoe
moved for mistrial, which motion the trial court denied. The second day of
trial, the State sought to introduce the actual 911 call, along with its computer
aided dispatch (“CAD”) report. Soon after the CAD report was published to
the jury, the trial court noticed that it indicated that Briscoe had a prior
conviction for operating a vehicle while intoxicated (“OWI”). Again, Briscoe
moved for mistrial, which motion the trial court denied. The trial court recalled
copies of the CAD report from the jury, struck it from the record, and
admonished the jury not to consider it. During final instructions, the jury was
instructed not to consider stricken material. Briscoe contends that the trial
court abused its discretion in denying his mistrial motions. Because we
disagree, we affirm.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 2 of 7 Facts and Procedural History [3] After a night of heavy drinking and cocaine use, Briscoe drove to work in
Indianapolis on the morning of July 30, 2015. The night before, Briscoe had
consumed six to nine beers at a concert, continued drinking until approximately
4:00 a.m., and managed little sleep before leaving for work at approximately
6:30 a.m. Briscoe’s blood alcohol concentration was later determined to be
0.19 grams per 100 milliliters of blood.
[4] Briscoe ran a stop sign at 40th Street and Keystone Avenue, causing Harrison to
hit his brakes and lay his motorcycle down in an unsuccessful attempt to avoid
Briscoe’s truck. Harrison was killed instantly by the extensive blunt force
injuries he sustained in the crash. Harrison’s sternum and all of his ribs were
fractured; his lungs, heart, aorta, liver, spleen, left kidney, and pancreas were
lacerated; and he had severe bleeding in his neck, chest, abdomen, and pelvic
cavity. Joseph Griffin followed as Briscoe fled the scene, called 911, and
observed Briscoe run a red light and a stop sign and almost hit a bus and a
police car. Briscoe became boxed in by traffic and was soon stopped by police.
[5] On August 3, 2015, the State charged Briscoe with Level 3 felony leaving the
scene of an accident causing death, Level 5 felony OWI causing death, and
Level 5 felony operating with an alcohol concentration equivalent of 0.08
causing death. The State also alleged that Briscoe was a habitual offender and
habitual vehicular substance offender. The State later charged Briscoe with
Level 4 felony operating a vehicle with a schedule II controlled substance in the
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 3 of 7 blood causing death and filed Level 4 felony sentencing enhancements to the
two Level 5 felony charges.
[6] Briscoe’s jury trial was held on April 11 and 12, 2016. During trial, the State
attempted to admit into evidence a 911 call and accompanying CAD sheet
through Kimberly Curry, employed by the Marion County Sheriff’s audio
records department. Curry’s voice introduced the content of the 911 call.
Approximately one second into publication of the recording, the prosecutor
realized that there had been a mistake and that a different 911 call from
another, unrelated case had been mixed in. The audio heard by the jury was
limited to Curry’s identification of the recording’s contents. The State moved
to strike the 911 call from evidence, and Briscoe moved for mistrial on the basis
that a 911 call not related to his case was prejudicial. The trial court denied
Briscoe’s mistrial motion and allowed the State to strike the call, which it did
on the basis that it was the “State’s error in admitting State’s Exhibit 11. And
for that reason, because it is irrelevant to this case, we would move [to] strike.”
Tr. p. 77.
[7] The second day of trial, the State proceeded to introduce the correct 911 call
and CAD report. After the 911 call and CAD report were admitted, but before
the 911 call was played for the jury, the State elicited additional testimony
about the CAD report. At that point, the trial court called a recess and notified
that parties that the fourth page (of six) in the CAD report contained a reference
to Briscoe’s prior conviction for OWI. After Briscoe’s objection and mistrial
motion, the trial court granted the State’s motion to strike the CAD report and
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 4 of 7 admonished the jury that “[t]he Court has stricken the CAD from State’s 17
from the record. You are instructed to disregard any written information
contained therein and you may not discuss or consider it in any way, all right.”
Tr. p. 163. During final instructions, the trial court instructed the jury that it
was not to consider any evidence stricken from the record.
[8] Ultimately, judgment of conviction was entered against Briscoe for Level 4
felony operating a vehicle with a schedule II controlled substance in the blood
causing death and he was found to be a habitual offender. The trial court
sentenced Briscoe to an aggregate term of sixteen years of incarceration with
four suspended to probation.
Discussion and Decision [9] Briscoe contends that the trial court abused its discretion in denying his two
mistrial motions, which were based on the jury hearing a portion of the
mistaken 911 call and the temporary admission of the CAD report before it was
stricken.
We review a trial court’s decision to deny a mistrial for abuse of discretion because the trial court is in “the best position to gauge the surrounding circumstances of an event and its impact on the jury.” McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004). A mistrial is appropriate only when the questioned conduct is “so prejudicial and inflammatory that [the defendant] was placed in a position of grave peril to which he should not have been subjected.” Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001) (quoting Gregory v. State, 540 N.E.2d 585, 589 (Ind. 1989)). The
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 5 of 7 gravity of the peril is measured by the conduct’s probable persuasive effect on the jury. Id.
Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 2008).
I. 911 Call [10] Briscoe contends that he was prejudiced by the short portion of withdrawn
State’s Exhibit 11 that was played to the jury, which consisted of approximately
one second of identification information. We fail to see how this could have
prejudiced Briscoe, because the jury never heard any of the actual call. In any
event, the exhibit was stricken, it was made clear that the State had mistakenly
attempted to introduce the wrong 911 call, and the jury was admonished not to
consider evidence that has been stricken. In such cases, “[w]e presume the jury
followed the trial court’s admonishment and that the excluded testimony played
no part in the jury’s deliberation.” Francis v. State, 758 N.E.2d 528, 532 (Ind.
2001). Briscoe does not point to any evidence that the jury might have
disregarded the trial court’s admonition.
II. CAD Report [11] As for the CAD report listing Briscoe’s previous OWI conviction, the record
indicates that it was published to the jury before being stricken. The record
indicates, however, that the trial court recalled copies of the CAD report from
the jury as soon as it noticed mention of a prior conviction and observed that
the jurors appeared to be listening to the 911 recording instead of reviewing the
CAD report in any event. Consequently, any claim that any member of the
jury actually reviewed the CAD report, or even had a chance to, is speculation.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 6 of 7 Moreover, the trial court struck the CAD report from the record and specifically
admonished the jury not to consider it. Even assuming that any member of the
jury did read of Briscoe’s prior conviction, the evidence against Briscoe was
overwhelming. This evidence included Briscoe’s stipulations that his BAC was
0.19 and that he had cocaine in his system at the time of the accident and his
admissions that he was the driver of the vehicle in question, did not stop at the
stop sign, and had caused the accident. In addition, the jury heard testimony
from Sarah Ellson and Griffin who witnessed the accident and called 911. This
evidence, in addition to the trial court’s final instructions, demonstrates that
Briscoe suffered no prejudice from the temporary admission of the CAD report
and that the trial court did not abuse its discretion in denying Briscoe’s mistrial
motion.
[12] We affirm the judgment of the trial court.
Vaidik, C.J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 7 of 7