MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 21 2015, 9:07 am 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 ATTORNEYS FOR APPELLEE Bruce W. Graham Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Matthew Flowers, August 21, 2015 Appellant-Defendant, Court of Appeals Case No. 79A05-1501-CR-20 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Donald L. Daniel, Appellee-Plaintiff Senior Judge Trial Court Cause No. 79C01-1408-F4-5
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 1 of 9 Case Summary [1] Matthew Flowers burglarized a house and took various items including a
television, several gaming systems, and a collection of foreign coins. The police
found him walking around with the some of the items in his backpack and
arrested him. Flowers was charged with burglary, residential entry, and theft.
He chose to represent himself during the two-day jury trial and asserted an
insanity defense. At the beginning of the second day of trial, Flowers, who was
incarcerated at the time, requested a two-day continuance so that he could have
more time to perform research in the jail law library. The State objected to the
request due to the late stage of the trial and the fact that both psychiatrists were
present to testify. Ultimately the trial court denied the request, finding that
Flowers had had ample time to perform research. On appeal, Flowers contends
that he is entitled to a new trial due to his insufficient access to legal materials
and the trial court’s denial of his request for a continuance. Because a
defendant who waives his right to appointed counsel also waives his right to
law-library access, we find that Flowers is not entitled to a new trial on these
grounds. And because Flowers has not and could not possibly show how he
was prejudiced by the trial court’s denial of his request for a continuance, we
find that the trial court did not abuse its discretion in denying his request.
Therefore we affirm his convictions.
Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 2 of 9 [2] On the afternoon of August 1, 2014, Matthew Flowers went to the house of an
acquaintance, Brittney Smith, offering to sell her a Playstation 4 and an Xbox
One. Smith said she wanted to see if they worked before she bought them, and
she started hooking up the Xbox One. In the meantime, Smith’s husband
noticed that his cell phone was missing. Smith accused Flowers of taking the
cell phone, and Flowers “grabbed the equipment” and left. Tr. p. 37. But he
accidentally left behind a few items, including a prescription-pill bottle with
Marla Stroup’s address on the label. Smith called the police to report the stolen
cell phone, and when police came to her house, she gave them the address that
was on the pill bottle. When police went to the address on the pill-bottle label,
they discovered the burglary of Stroup’s house.
[3] That morning, Stroup had activated her home-security system before leaving
her house at 1413 Center Street in Lafayette. Later that afternoon, the police
contacted Stroup about a possible burglary of her home. When Stroup arrived
home, she saw that her back door had been kicked in. The alarm system had
been disarmed. Numerous items were missing from her house, including a
television, a Playstation 4, an Xbox One and an Xbox 360, and various games
and other items that went along with those gaming systems. It was later
discovered that a bottle of pills prescribed for one of her sons was missing, as
well as a collection of foreign coins. Stroup provided the police with the name
of a suspect: Matthew Flowers, who had recently stayed at her house for
approximately one month and was the only person—aside from her two sons,
aged twelve and seven—who knew her alarm-system security code.
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 3 of 9 [4] Officer James Quesenberry of the Lafayette Police Department then returned to
Smith’s house to get a statement from her. Smith’s husband told Officer
Quesenberry that Flowers had just walked past the house. After searching the
area, Officer Quesenberry came across a man carrying a backpack; the officer
pulled up alongside him and said “Matt” and Flowers acknowledged that that
was his name. The officer got out of the car and told Flowers that Stroup had
accused him of taking some things from her house. Flowers was cooperative,
and he and Officer Quesenberry went to the police station. Once there, police
officers went through the backpack and found several of the items that were
missing from Stroup’s house.
[5] Detective William Dempster of the Lafayette Police Department interviewed
Flowers; the detective read Flowers his Miranda rights, and Flowers was
arrested approximately one hour and forty-five minutes into the interview.
Flowers then told Detective Dempster “how he did the burglary.” Tr. p. 106;
Ex. 19.
[6] The State charged Flowers with burglary as a Level 4 felony, residential entry
as a level 6 felony, and theft as a Level 6 felony. Appellant’s App. p. 18-20. At
the initial hearing, Flowers informed the trial court that he would be
representing himself. Id. at 11. The court appointed stand-by counsel. Several
weeks later, Flowers—who was incarcerated—filed a motion entitled “Motion
for Court to Order Habeas Corpus Hearing” regarding his access to the jail law
library. See id. at 30. Flowers specifically told the trial court that although he
was able to go to the jail law library twice a week, consistent with jail policy,
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 4 of 9 the computer was old and slow and he had had problems with the CD-ROM
containing the Indiana Code. Following a hearing, the trial court issued a
written order denying Flowers’ request to “dismiss” the case and clarifying the
following: Flowers wished to represent himself, but his stand-by counsel, who
was playing a strictly advisory role, would provide legal materials upon request;
further, the order found that Flowers had access to the jail law library and had
not been denied access to the courts but requested that the Sheriff’s Department
examine the CD containing the Indiana Code to ensure that the contents were
viewable and the computer was functioning properly. See id. at 42-43. Flowers
then requested a speedy trial and filed a witness list, at the bottom of which
Flowers indicated that he would be pleading not guilty by reason of insanity.
The trial court ordered two psychiatric evaluations. See id. at 46.
[7] A jury trial was held on December 9 and 10, 2014. During the first day of trial,
the jury was selected, the State presented its evidence, Flowers rested without
presenting any evidence, and the parties offered final jury instructions to the
court. At the beginning of the second day of trial, a Wednesday, Flowers asked
for a continuance until Friday so that he could perform additional legal
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 21 2015, 9:07 am 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 ATTORNEYS FOR APPELLEE Bruce W. Graham Gregory F. Zoeller Lafayette, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Matthew Flowers, August 21, 2015 Appellant-Defendant, Court of Appeals Case No. 79A05-1501-CR-20 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Donald L. Daniel, Appellee-Plaintiff Senior Judge Trial Court Cause No. 79C01-1408-F4-5
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 1 of 9 Case Summary [1] Matthew Flowers burglarized a house and took various items including a
television, several gaming systems, and a collection of foreign coins. The police
found him walking around with the some of the items in his backpack and
arrested him. Flowers was charged with burglary, residential entry, and theft.
He chose to represent himself during the two-day jury trial and asserted an
insanity defense. At the beginning of the second day of trial, Flowers, who was
incarcerated at the time, requested a two-day continuance so that he could have
more time to perform research in the jail law library. The State objected to the
request due to the late stage of the trial and the fact that both psychiatrists were
present to testify. Ultimately the trial court denied the request, finding that
Flowers had had ample time to perform research. On appeal, Flowers contends
that he is entitled to a new trial due to his insufficient access to legal materials
and the trial court’s denial of his request for a continuance. Because a
defendant who waives his right to appointed counsel also waives his right to
law-library access, we find that Flowers is not entitled to a new trial on these
grounds. And because Flowers has not and could not possibly show how he
was prejudiced by the trial court’s denial of his request for a continuance, we
find that the trial court did not abuse its discretion in denying his request.
Therefore we affirm his convictions.
Facts and Procedural History
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 2 of 9 [2] On the afternoon of August 1, 2014, Matthew Flowers went to the house of an
acquaintance, Brittney Smith, offering to sell her a Playstation 4 and an Xbox
One. Smith said she wanted to see if they worked before she bought them, and
she started hooking up the Xbox One. In the meantime, Smith’s husband
noticed that his cell phone was missing. Smith accused Flowers of taking the
cell phone, and Flowers “grabbed the equipment” and left. Tr. p. 37. But he
accidentally left behind a few items, including a prescription-pill bottle with
Marla Stroup’s address on the label. Smith called the police to report the stolen
cell phone, and when police came to her house, she gave them the address that
was on the pill bottle. When police went to the address on the pill-bottle label,
they discovered the burglary of Stroup’s house.
[3] That morning, Stroup had activated her home-security system before leaving
her house at 1413 Center Street in Lafayette. Later that afternoon, the police
contacted Stroup about a possible burglary of her home. When Stroup arrived
home, she saw that her back door had been kicked in. The alarm system had
been disarmed. Numerous items were missing from her house, including a
television, a Playstation 4, an Xbox One and an Xbox 360, and various games
and other items that went along with those gaming systems. It was later
discovered that a bottle of pills prescribed for one of her sons was missing, as
well as a collection of foreign coins. Stroup provided the police with the name
of a suspect: Matthew Flowers, who had recently stayed at her house for
approximately one month and was the only person—aside from her two sons,
aged twelve and seven—who knew her alarm-system security code.
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 3 of 9 [4] Officer James Quesenberry of the Lafayette Police Department then returned to
Smith’s house to get a statement from her. Smith’s husband told Officer
Quesenberry that Flowers had just walked past the house. After searching the
area, Officer Quesenberry came across a man carrying a backpack; the officer
pulled up alongside him and said “Matt” and Flowers acknowledged that that
was his name. The officer got out of the car and told Flowers that Stroup had
accused him of taking some things from her house. Flowers was cooperative,
and he and Officer Quesenberry went to the police station. Once there, police
officers went through the backpack and found several of the items that were
missing from Stroup’s house.
[5] Detective William Dempster of the Lafayette Police Department interviewed
Flowers; the detective read Flowers his Miranda rights, and Flowers was
arrested approximately one hour and forty-five minutes into the interview.
Flowers then told Detective Dempster “how he did the burglary.” Tr. p. 106;
Ex. 19.
[6] The State charged Flowers with burglary as a Level 4 felony, residential entry
as a level 6 felony, and theft as a Level 6 felony. Appellant’s App. p. 18-20. At
the initial hearing, Flowers informed the trial court that he would be
representing himself. Id. at 11. The court appointed stand-by counsel. Several
weeks later, Flowers—who was incarcerated—filed a motion entitled “Motion
for Court to Order Habeas Corpus Hearing” regarding his access to the jail law
library. See id. at 30. Flowers specifically told the trial court that although he
was able to go to the jail law library twice a week, consistent with jail policy,
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 4 of 9 the computer was old and slow and he had had problems with the CD-ROM
containing the Indiana Code. Following a hearing, the trial court issued a
written order denying Flowers’ request to “dismiss” the case and clarifying the
following: Flowers wished to represent himself, but his stand-by counsel, who
was playing a strictly advisory role, would provide legal materials upon request;
further, the order found that Flowers had access to the jail law library and had
not been denied access to the courts but requested that the Sheriff’s Department
examine the CD containing the Indiana Code to ensure that the contents were
viewable and the computer was functioning properly. See id. at 42-43. Flowers
then requested a speedy trial and filed a witness list, at the bottom of which
Flowers indicated that he would be pleading not guilty by reason of insanity.
The trial court ordered two psychiatric evaluations. See id. at 46.
[7] A jury trial was held on December 9 and 10, 2014. During the first day of trial,
the jury was selected, the State presented its evidence, Flowers rested without
presenting any evidence, and the parties offered final jury instructions to the
court. At the beginning of the second day of trial, a Wednesday, Flowers asked
for a continuance until Friday so that he could perform additional legal
research. When asked by the trial court what he wanted to research, Flowers
responded, “Everything. These jury instructions.” Tr. p. 140. The State
objected to the continuance based on the late stage of the trial and on the
grounds that both psychiatrists were present to testify. The trial court
nonetheless asked Flowers if one hour at the law library would satisfy his
request. Flowers responded that “an hour is really not reasonable but I’m going
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 5 of 9 to take the hour if you give it to me.” Id. at 143-44. The trial court took the
motion under advisement and proceeded with the trial. After the psychiatrists
testified regarding Flowers’ insanity defense, Flowers stated that he was still
interested in a continuance: “Because I wasn’t able to . . . prepare for the
doctors correctly so I am trying to come back on the closing statement at least
so I can clarify something with that.” Id. at 190. The trial court responded that
the insanity issue had been known for some time and Flowers had access to the
law library during that time, so his request for a continuance was denied.
[8] The jury found Flowers guilty as charged. Flowers now appeals his
convictions.
Discussion and Decision [9] First, Flowers contends that he is entitled to a new trial based on insufficient
access to the courts. The United States Supreme Court held in Bounds v. Smith,
430 U.S. 817, 828 (1977), that the fundamental constitutional right of access to
courts requires prison authorities to assist inmates in preparation and filing of
meaningful legal papers by providing prisoners with adequate law libraries or
adequate assistance from persons trained in the law. See also Engle v. State, 467
N.E.2d 712, 715 (Ind. 1984). However, a defendant who proceeds pro se
accepts the burdens and hazards incident to his position, Boykin v. State, 702
N.E.2d 1105, 1107 (Ind. Ct. App. 1998), and, as the Seventh Circuit has
consistently held, “when a person is offered appointed counsel but chooses
instead to represent himself, he does not have a right to access to a law library.”
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 6 of 9 United States v. Byrd, 208 F.3d 592, 593 (7th Cir. 2000) (citing United States v.
Chapman, 954 F.3d 1352 (7th Cir. 1992)); see also Piper v. State, 770 N.E.2d 880,
885 (Ind. Ct. App. 2002) (“We agree with the State that Piper waived the issue
of access to legal materials because he waived his right to appointed counsel at
the initial hearing . . . .”).
[10] Here, the record clearly shows that after a full advisement of rights by the trial
court, the court appointed stand-by counsel after Flowers insisted on
representing himself. Furthermore, Flowers, even by his own admission, had
access to the Indiana Code, and through his stand-by counsel access to other
legal material. We find Flowers is not entitled to a new trial on these grounds.
[11] Next Flowers argues that the trial court abused its discretion in denying his
motion for a two-day continuance on the morning of the second day of trial.
Rulings on non-statutory motions for continuance lie within the discretion of
the trial court and will be reversed only for an abuse of that discretion and
resultant prejudice.1 Barber v. State, 911 N.E.2d 641, 645-46 (Ind. Ct. App.
2009). An abuse of discretion occurs where the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before the Court. Id.
at 646. Requests for continuances are not generally favored and will be granted
only in the furtherance of justice on a showing of good cause; further, the
appellant must make a specific showing that the additional time requested
1 Flowers does not argue that he was entitled to a statutory continuance under Indiana Code section 35-36-7- 1.
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 7 of 9 would have aided him in order to show an abuse of discretion on the part of the
trial court. Clark v. State, 539 N.E.2d 9, 11 (Ind. 1989).
[12] In this case, Flowers’ request came on the morning of the second day of trial
after the parties had presented their cases. The State objected to the request due
to the late stage of the trial and on the ground that both psychiatrists were
already present to testify. The trial court seriously considered Flowers’
continuance request and asked him what he wanted to research. Flowers
responded: “Everything. These jury instructions.” Tr. p. 140. The trial court
then asked Flowers if one hour at the law library would satisfy his request.
Flowers responded that “an hour is really not reasonable but I’m going to take
the hour if you give it to me.” Id. at 143-44. The trial court took the motion
under advisement and proceeded with the trial. After the psychiatrists testified
regarding Flowers’ insanity defense, Flowers stated that he was still interested
in a continuance: “Because I wasn’t able to . . . prepare for the doctors correctly
so I am trying to come back on the closing statement at least so I can clarify
something with that.” Id. at 190. The trial court responded that the insanity
issue had been known for some time and Flowers had access to the law library
during that time, so his request for a continuance was denied.
[13] On appeal Flowers has not and cannot make a specific showing that the
additional time requested would have aided him. See Clark, 539 N.E.2d at 11.
Indeed, in light of the overwhelming evidence of Flowers’ guilt—including his
own admission that he committed the crimes—and the complete lack of any
evidence whatsoever to support an insanity defense, it is inconceivable that any
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 8 of 9 further research could have made a difference in Flowers’ case. Flowers has
not shown how he was prejudiced by the trial court’s denial of his request for a
continuance, and we find no abuse of discretion.
[14] Affirmed.
Robb, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 79A05-1501-CR-20 | August 21, 2015 Page 9 of 9