ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN R. OREILLY JEFFREY A. MODISETT
Lafayette, Indiana Attorney General of Indiana
SARAH E. SCHERRER
Deputy Attorney General
SUPREME COURT OF INDIANA
DANNY FLOWERS, )
) Supreme Court Cause Number
v. ) 79S00-9908-CR-411
STATE OF INDIANA, )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald C. Johnson, Judge
Cause No. 79D01-9204-CF-32
ON DIRECT APPEAL
December 5, 2000
A jury convicted Danny Flowers of rape as a Class A felony and
burglary as a Class B felony. The jury also adjudged him a
habitual offender. The trial court sentenced Flowers to forty-three years imprisonment for
the rape conviction enhanced by twenty-five years for the habitual offender adjudication.
The trial court also sentenced Flowers to fifteen years for burglary to be
served consecutively to the rape conviction. In this direct appeal, Flowers raises
five issues for our review which we consolidate into four and rephrase as
follows: (1) did the trial court err in denying Flowers motion to quash
probable cause affidavit and to dismiss; (2) did the trial court err in
admitting the victims in-court identification; (3) did the trial court err in denying
Flowers motions for mistrial; and (4) did the trial court err in denying
Flowers motion for change of judge. Finding no error, we affirm.
In the early morning hours of May 17, 1991, H.B. was awakened to
discover that a man she did not know had climbed through her window
and was standing on the back of her couch. The intruder grabbed
H.B., and the two fought and struggled. Ultimately the intruder raped H.B.
Subsequent genetic testing showed a match between Flowers DNA and that of
the intruder. At trial H.B. identified Flowers as her attacker. A
jury convicted Flowers of rape and burglary and also adjudged him a habitual
offender. The trial court sentenced Flowers to an aggregate term of eighty-three
years. This appeal ensued in due course. Additional facts are set
forth below where relevant.
Prior to trial Flowers filed a pleading entitled Motion To Quash Probable Cause
and to Dismiss, which the trial court denied. R. at 673.
Complaining that the probable cause affidavit was based in part on incredible hearsay,
Flowers argues that the trial court erred in denying his motion. Flowers
argument is flawed in several respects. First, lack of probable cause is
not grounds for dismissing a charging information.
Hicks v. State, 544 N.E.2d
500, 505 (Ind. 1989). Under Indiana Code § 35-24-1-4, a court may,
upon motion of a defendant, dismiss a defective indictment or information. However,
the statute contains no provision regarding a defective probable cause affidavit. As
this Court has previously observed,
The probable cause affidavit is not the means by which the accused is
charged with a crime, but is a means of satisfying the constitutional and
statutory requirements that the pre-trial detention of the accused to face the charge
be based upon a determination, by a neutral and detached magistrate, that probable
cause exists to believe that the accused committed the crime.
Gilliam v. State, 383 N.E.2d 297, 303 (Ind. 1978). II.
Thus, if Flowers were correct in his contention that the probable cause affidavit
was deficient then his only remedy would have been release from pre-trial detention
predicated upon an illegal arrest. Id.; see also Felders v. State, 516
N.E.2d 1, 2 (Ind. 1987) (An invalid arrest does not affect the right
of the State to try a case nor does it affect the judgment
of conviction.). At this stage of the proceedings, we may address only
whether the alleged illegal arrest affected the admissibility of evidence obtained through a
search incident to arrest. Thomas v. State, 451 N.E.2d 651, 654 (Ind.
1983); Williams v. State, 261 Ind. 385, 386-87, 304 N.E.2d 311, 313 (1973).
This brings us to the next flaw in Flowers argument.
The record shows that the State charged Flowers with rape and burglary on
April 24, 1992. It does not show when he was arrested.
However, on May 13, 1992, while Flowers was in custody, the State filed
a motion to obtain samples of Flowers blood, hair, and saliva. R.
at 3. The trial court entered an order granting the motion.
In this appeal Flowers asserts that his bodily samples were taken on the
strength of [the] defective affidavit of probable cause and that the evidence gleaned
from [his] bodily samples should have been excluded. Brief of Appellant at 11,
We first observe that Flowers has failed to provide any citation to the
record supporting his claim that the trial courts order was premised on the
probable cause affidavit at issue in this appeal. And our own examination
of the record reveals no such support. Rather, the record merely shows
the existence of the probable cause affidavit and a CCS entry where the
trial court granted the States motion for blood, hair, and saliva samples.
In any case, Flowers neither objected to the taking of the samples nor
filed a motion to suppress the evidence. Further, at trial Flowers only
objection to the admission of the blood, hair, and saliva samples was that
there was an insufficient chain of custody and thus the State has failed
to lay a proper foundation. R. at 2367. In like fashion
Flowers made the same objection to the DNA evidence derived from the blood
sample evidence. A party may not object on one ground at trial
and then assert a different ground on appeal.
Willsey v. State, 698
N.E.2d 784, 793 (Ind. 1998). To the extent Flowers now claims the evidence
was inadmissible because it was the product of a search incident to an
illegal arrest, the issue is waived for review. See id.
Similarly, to the extent Flowers claims that the alleged defective affidavit provided the
basis for a body search warrant and thus the evidence seized thereby was
inadmissible, this issue is waived also because it is a different claim than
that made at trial. We note, however, that this Court has held
that [p]olice are allowed to take samples of [hair, blood, and saliva] from
a defendant without a warrant provided no unreasonable intrusion is involved. Jackson
v. State, 597 N.E.2d 950, 959 (Ind. 1992) (rejecting defendants claim that a
body search obtained by police violated his right to due process and to
be free from illegal searches and seizures), cert. denied, 507 U.S. 976 (1993),
appeal after remand, 625 N.E.2d 1219 (Ind. 1993); see also Heald v. State,
492 N.E.2d 671, 681 (Ind. 1986) (upholding discovery order authorizing the taking of
blood samples and rejecting claim that a search warrant was required). In
sum, we find no error in the trial court denying Flowers motion.
And because Flowers makes an argument on appeal not raised before the trial
court concerning the admission of evidence, this issue is waived for review.
Prior to trial Flowers filed a motion in limine seeking to preclude the
rape victims in-court identification. Characterizing her identification of him at his first
trial in 1992 as a pre-trial identification, Flowers contended that it was an
unduly suggestive show-up and would provide the sole basis for the in-court identification
in the instant case. After a hearing, the trial court denied the
motion. Over Flowers objection, the trial court allowed the victim to identify
Flowers at trial as her attacker. Making the same argument before this
Court that he made before the trial court, Flowers contends the trial court
erred in overruling his objection.
First, we reject the notion that Flowers appearance in court at his first
trial amounted to a show-upunduly suggestive or otherwise. A show-up presupposes an
out-of-court confrontation conducted by police for the purpose of allowing a witness to
identify a suspect. See, e.g., Wethington v. State, 560 N.E.2d 496, 501 (Ind.
1990) (commenting on the exigencies associated with the police decision to utilize a
show-up procedure as opposed to other alternatives . . . .). No
such conduct occurred here. Second, even if Flowers were subjected to an
unduly suggestive pre-trial procedure, the law is settled that an in-court identification is
nonetheless admissible if the witness has an adequate independent basis for [the] in-court
identification. Logan v. State, 729 N.E.2d 125, 131 (Ind. 2000) (quoting Brown v.
State, 577 N.E.2d 221, 225 (Ind. 1991)); see also French v. State, 516
N.E.2d 40, 42 (Ind. 1987); Henson v. State, 467 N.E.2d 750, 753 (Ind.
1984). Although not an exhaustive list, the factors a court considers in
determining whether an independent basis exists include:
[T]he amount of time the witness was in the presence of the perpetrator
and the amount of attention the witness had focused on him, the distance
between the two and the lighting conditions at the time, the witnesss capacity
for observation and opportunity to perceive particular characteristics of the perpetrator, the lapse
of time between the crime and the subsequent identification. . . .
Wethington, 560 N.E.2d at 503. Although H.B. could not quantify the exact
amount of time that Flowers was present in her apartment, she did testify
that he was there a few minutes during which time she fought and
struggled with him and she got a good look at him. R.
at 1446, 1448. H.B. also testified that after the struggle Flowers placed
a blanket over her head and raped her. When the assault was
over, H.B. removed the blanket, and she saw him again as Flowers pulled
up his pants and ran out the door. R. at 1482, 1448.
According to H.B., during the entire encounter, the room was illuminated with
light from the television that lit up the whole front room. R.
at 1447. Based on this evidence, we conclude a basis for H.B.s
in-court identification existed independent of any alleged unduly suggestive pre-trial procedure. The
trial court did not err in admitting the in-court identification.
During the course of trial Flowers made two motions for mistrial:
See footnote one during
voir dire and the other during closing arguments. Both were denied, and
Flowers now claims error.
A. Motion for mistrial made during voir dire
During jury selection, a potential juror recounted that he was a friend and
neighbor of another member of the jury pool and the two had talked
about this case. Before he said anything further, a hearing was conducted outside
the presence of the other members of the pool. The potential juror
then recounted that while present in the jury room, his friend and neighbor
informed him that this was a retrial of Flowers. After questioning both
potential jurors outside the presence of the other members of the pool, the
trial court discharged them for cause. Flowers moved for mistrial on grounds
that other members of the jury pool may have overheard the conversation between
the two discharged jurors. Indicating he was satisfied that no one else
overheard the conversation, the trial court denied the motion. Further voir dire
indicated that another juror had overheard the conversation as well, and he too
was discharged for cause.
In this appeal, Flowers contends the trial court erred in denying his motion
and that at the very least, the trial court should have polled the
seated jurors individually regarding whether they heard the conversation. Brief of Appellant
at 21-22. To support his contention, Flowers cites Monserrate v. State, 352
N.E.2d 721 (Ind. 1976). In that case, the defendant had been found
guilty of murder and sentenced to death. The judgment was reversed and
the cause remanded for a new trial. During voir dire upon retrial,
it was revealed that a newspaper article concerning the defendant had been passed
among some of the prospective jurors. In order to insure that the jury
did not possess knowledge of the defendants prior conviction and death sentence, the
trial judge attempted to eliminate any prospective juror who had even heard of
the word retrial. Id. at 722. When it became apparent that
a large number of jurors had at least heard of the existence of
the article, the court announced that all previous challenges by the defense would
be treated as challenges for cause. Also, the trial court individually polled
each juror who had already been accepted to determine whether he or she
had seen or heard of the article. On appeal the defendant claimed error
in the trial court denying his motion for mistrial or, in the alternative,
quashing the panel of prospective jurors on the ground that they had been
exposed to improper and prejudicial out-of-court information. This Court concluded there was
no error, reasoning in part that the defendant presented no evidence suggesting that
the trial courts efforts did not succeed in selecting an impartial jury.
Id. at 723.
Monserrate is of no help to Flowers. Unlike the facts in that
case, here Flowers has not alleged that the panel of prospective jurors was
actually exposed to improper out-of-court information. Rather, he suggests that the trial
court in this case was required to use the procedure employed by the
trial court in Monserrate to determine whether any juror had been exposed to
any improper information. Flowers is mistaken. This Court outlined the correct
procedure in Lindsey v. State, 260 Ind. 351, 295 N.E.2d 819 (1973). The
Lindsey procedure anticipates an in-court collective interrogation where there has been a suggestion
that the jury has been exposed to improper and prejudicial publicity. Id.
at 358-59, 295 N.E.2d at 824. Pursuant to Lindsey, once presented with
the possibility of extra-judicial comments made to a juror, the trial court must
first make a threshold determination of whether there is an actual likelihood of
prejudice. If the risk of prejudice appears substantial, as opposed to imaginary
or remote then the court must interrogate the jury collectively to determine who,
if any, has been exposed and take additional remedial action. Id. at
358-59, 295 N.E.2d at 824; see also Gregory v. State, 540 N.E.2d 585,
589 (Ind. 1989) (citing Lindsey, 260 Ind. at 358-59, 295 N.E.2d at 824).
Absent a showing in the first instance that the supposed extra-judicial comments
actually raised a risk of substantial prejudice, the trial court has no responsibility
to engage in a collective interrogation.
Here, the record does not show that the two prospective jurors discussed the
merits of this case or any of its details. Rather, one prospective
juror simply commented to his friend and neighbor that this was a retrial.
Even though the trial court discharged the two prospective jurors as well
as a third prospective juror who overheard the comment, the trial court could
very easily have determined there was no risk of substantial prejudice necessitating an
inquiry of those jurors already accepted by the parties. A trial courts
ruling on a motion for mistrial is afforded great deference on appeal because
the trial court is in the best position to evaluate the circumstances and
their impact on the jury. Kent v. State, 675 N.E.2d 332, 335
(Ind. 1996). A mistrial is an extreme remedy invoked only when no
other measure can rectify the situation. Id. This extreme remedy was
not warranted here.
B. Motion for mistrial made during closing argument
During its case-in-chief the State introduced evidence that Flowers DNA matched samples taken
from the rape kit swabs received from H.B. The States DNA experts
testified that the probability the DNA belonged to someone other than Flowers was
one in seventy million. During the presentation of his defense, Flowers introduced
testimony from his own DNA expert criticizing the conclusions reached by the States
DNA experts. Although Flowers expert could not say that Flowers should have
been excluded as a suspect, he testified that additional testing should have been
done. R. at 2627, 2629. Flowers expert did not actually conduct
DNA testing of his own. Rather, he examined the tests conducted by
the States experts.
During closing argument defense counsel followed up on the theme that the conclusions
reached by the States DNA experts were faulty. In rebuttal the prosecutor
Nobody else did the [DNA] testing. It was the states experts.
Now, ladies and gentlemen, dont misunderstand me. Its the states burden.
We had the burden to prove to you beyond a reasonable doubt.
But obviously the defense doesnt (inaudible) a lot of testing. The evidthe
evidence was that there was sample left. They arent precluded.
R. at 2753-54. Flowers objected and moved to strike the prosecutors comment.
The trial court overruled the objection and denied the motion to strike.
After the State completed its closing argument but before the jury retired
for deliberations, Flowers moved for a mistrial. The trial court denied the
motion. In this appeal Flowers argues the trial court erred in denying
his mistrial motion insisting that that the prosecutors comments shift[ed] the burden of
proof to the defense . . . . Brief of Appellant at 15.
To preserve an issue regarding the propriety of a closing argument for appeal,
a defendant must do more than simply make a prompt objection to the
argument. Defendant must also request an admonishment, and if further relief is
desired, defendant must move for a mistrial. Wright v. State, 690 N.E.2d
1098, 111 (Ind. 1997). Failure to request an admonishment results in waiver
of the issue for appellate review. Phillips v. State, 719 N.E.2d 809,
811 (Ind. 1999). Here, although Flowers objected to the prosecutors remarks at
trial, he failed to request an admonition. This issue is waived.
Waiver notwithstanding, Flowers still cannot prevail. In Pettiford v. State, 506 N.E.2d
1088 (Ind. 1987), we held that the impropriety of a prosecutors comments during
closing argument inferring that the burden of proof shifted from the State to
the defendant was de minimis and cured by the courts preliminary and final
instructions which advised the jury that the defendant was not required to present
any evidence or prove his innocence. Id. at 1089-90; see also Chubb
v. State, 640 N.E.2d 44, 48 (Ind. 1994) (applying the Pettiford rationale).
Here, assuming for the sake of argument that the prosecutors comments can be
interpreted as shifting the burden of proof, the record shows that in both
its preliminary and final instructions the trial court advised the jury:
Under the law of this State, a person charged with a crime is
presumed to be innocent. To overcome the presumption of innocence, the State must
prove the defendant guilty of each essential element of the crime charged, beyond
a reasonable doubt.
The defendant is not required to present any evidence to prove his innocence
or to prove or explain anything.
R. at 921, 1004. Thus, as in Pettiford and Chubb, the jury
here was properly instructed that the defendant was not required to present any
evidence or prove his innocence. Accordingly, we find that any impropriety in
the prosecutors closing argument was de minimis and overcome by the preliminary and
final instructions. The trial court did not err in denying Flowers motion
Eight days before the scheduled trial date, Flowers filed a Belated Verified Motion
For Change of Judge and Appointment of Special Judge. As grounds for
the motion, Flowers claimed that the judge is associated with the pending litigation
and has an interest in the outcome. R. at 708. The
trial court denied the motion. On appeal Flowers elaborates on this claim
asserting bias because the trial court denied his motion for continuance to obtain
an expert witness during the first trial.
Under Indiana Criminal Rule 12, where a cause has been remanded for a
new trial, an application for change of judge must be filed within ten
days after the party has knowledge that the case is ready to be
set for trial. However, if the defendant obtains knowledge of a cause
for change of judge after the ten-day period, then the defendant may file
a verified motion for change of judge specifically alleging when the cause was
first discovered, how it was discovered, the facts showing the cause for a
change, and why such cause could not have been discovered before by the
exercise of due diligence. Crim. R. 12(D)(2).
In this case, Flowers filed his verified motion for change of judge well
after the ten-day period.
See footnote Although alleging facts he contended supported a cause
for change of judge, Flowers failed to allege when he first learned of
the grounds for a change of judge or why these grounds could not
have been discovered earlier in the exercise of due diligence. The law
is settled that a defendant is not entitled to a change of judge
where the mandates of Criminal Rule 12 have not been followed.
e.g., Smith v. State, 477 N.E.2d 857, 864 (Ind. 1985) (declaring that Criminal
Rule 12 requires a specific factual and explanatory statement for belated motions [for
change of judge] to be proper.); Welch v. State, 564 N.E.2d 525, 529
(Ind. Ct. App. 1990) (ruling that the trial court was justified in denying
defendants motion for change of venue which was based on trial judge bias
and prejudice where the motion did not follow the dictates of Criminal Rule
12). Because of the deficiency in Flowers motion for change of judge,
the trial court properly denied it.
In a related argument Flowers seems to contend the trial judge should have
disqualified himself because of bias and prejudice. We say seems to because
on the one hand Flowers refers to the Indiana Code of Judicial Conduct;See footnote
on the other hand, Flowers couches his argument in terms of alleged trial
court error in denying his renewed motion for change of judge made orally
during the course of trial. Flowers oral motion was properly denied because
it did not comply with Criminal Rule 12. As for the contention
that the trial court should have disqualified himself, the facts are these.
During the course of trial Flowers became upset about an evidentiary ruling the
trial court made. When he returned to the custody of the Tippecanoe
County Sheriffs Department at the close of trial that day, Flowers commented: this
is bull****; told a sheriffs deputy that the judge was helping the prosecutors
build a case against him; that he was going to do something; and
that he did not have anything to lose. R. at 1662, 1663.
Concerned about courtroom safety, the deputy fitted Flowers with a stun belt
for his appearance at trial the following day. In a hearing outside
the presence of the jury, Flowers objected to wearing the device, renewed his
motion for change of judge, and moved for mistrial. The trial court
denied the motions noting the need for courtroom security and observing that Flowers
was wearing the device under his clothing where the jury could not see
At another point during the course of trial, the trial judge played for
the jury the tape-recorded testimony of a witness taken during the first trial
but who was unavailable for the retrial. To aid the jury in
understanding the tape, the judge provided transcripts. After the tape was played,
a juror indicated that she was missing a portion of the transcript that
contained part of Flowers cross-examination of the witness. After determining that a
page of the transcript was indeed missing and apparently supplying it to the
juror, the trial judge commented, I dont think you missed too much, did
you? R. at 1915. Flowers raised no objection.
In this appeal, Flowers points to the trial courts comment, as well as
the trial courts denial of his renewed change of judge motion and motion
for mistrial, as evidence that the court was biased and prejudiced against him.
The law presumes that a judge is unbiased and unprejudiced in the
matters that come before the judge.
James v. State, 716 N.E.2d 935,
940 (Ind. 1999); Taylor, 587 N.E.2d at 1303; Smith, 477 N.E.2d at 864.
A judge has the discretionary power to disqualify himself or herself sua
sponte whenever any semblance of judicial bias or impropriety comes to the judges
attention. In addition, where a judge harbors actual prejudice in a case,
justice requires that a sua sponte judicial disqualification from the case be made.
Smith, 477 N.E.2d at 864. The record must show actual bias
and prejudice against the defendant before a conviction will be reversed on the
ground that the trial judge should have been so disqualified. Id.
We disagree with the notion that the trial courts denial of Flowers motions
demonstrated bias or prejudice. Given Flowers obvious agitation with the trial courts
ruling, the trial judge was properly concerned about the safety and security of
court personnel as well as observers in the courtroom. Requiring Flowers to
wear a device as opposed to increasing the number of sheriffs deputies in
the courtroom was an acceptable alternative precautionary measure. As for the trial
courts comments, Flowers did not object. Where a defendant fails to object to
comments a trial judge makes during trial, the issue is waived for review.
Mitchell v. State, 726 N.E.2d 1228, 1235 (Ind. 2000). Waiver notwithstanding,
Flowers claim fails. A defendant must show that the trial judges action
and demeanor crossed the barrier of impartiality and prejudiced the defendants case.
Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997). Flowers has made
no such showing.
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
This is the second time this case has come before us.
The first appeal was docketed originally in the Court of Appeals.
On transfer we vacated Flowers conviction and sentence on grounds that the trial
court abused its discretion in denying Flowers motion for continuance, which was required
in order for the defense to obtain the testimony of an essential DNA
See Flowers v. State, 654 N.E.2d 1124 (Ind. 1995).
After remand and retrial, Flowers was again convicted and sentenced. Because Flowers
aggregate sentence for the rape conviction exceeded fifty years as a result of
the habitual offender enhancement, we granted the States motion to transfer jurisdiction to
Actually Flowers made three motions for mistrial. However, the third
motion was made in the context of a claim that the trial court
exhibited bias and prejudice. We discuss this issue in section IV.
The record shows that after remand by this Court in August
1995, the parties agreed on September 11, 1995, that this case would proceed
to trial on January 23, 1996. R. at 10. Because of
a series of continuances by both the State as well as Flowers, this
cause was not tried until September 16, 1997. A timely motion for
change of judge was required to be filed no later than September 21,
1995, ten days after Flowers was on notice that this case was ready
to be set for trial.
Even if Flowers had followed the dictates of Criminal Rule 12
he still cannot prevail. The mere fact that a trial judge has presided
over a previous trial which resulted in a conviction and a subsequent reversal
does not necessarily disqualify the judge from presiding over the retrial.
v. State, 510 N.E.2d 1340, 1341 (Ind. 1987). Further, an adverse ruling
alone is not sufficient to show bias or prejudice. Taylor v. State,
587 N.E.2d 1293, 1303 (Ind. 1992).
Specifically, Flowers directs our attention to Canon 3(E)(1) which provides in
pertinent part: A judge shall disqualify himself or herself in a proceeding in
which the judges impartiality might reasonably be questioned . . . .