Court of Appeals of Indiana | Memorandum Decision 49A02-1605-CR-1186 | January 18, 2017 Page 1 of 7

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be regarded as 

precedent or cited before any court except for the 

purpose of establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Ellen M. O’Connor

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Matthew B. MacKenzie

Deputy Attorney General

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Wallace Briscoe,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 18, 2017

Court of Appeals Case No.

49A02-1605-CR-1186

Appeal from the Marion Superior

Court

The Honorable Lisa F. Borges,

Judge 

Trial Court Cause No. 49G04-1508-

F3-27202

Bradford, Judge.
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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. 
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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 
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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 
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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 
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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. 
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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.