ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KEVIN R. O’REILLY JEFFREY A. MODISETT
Lafayette, Indiana Attorney General of Indiana
SARAH E. SCHERRER
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
DANNY FLOWERS, )
)
Appellant-Defendant, )
) Supreme Court Cause Number
v. ) 79S00-9908-CR-411
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE TIPPECANOE SUPERIOR COURT
The Honorable Donald C. Johnson, Judge
Cause No. 79D01-9204-CF-32
ON DIRECT APPEAL
December 5, 2000
RUCKER, Justice
Case Summary
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
victim’s 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.
Facts
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.[1]
Discussion
I.
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).
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, 12.
We first observe that Flowers has failed to provide any citation to
the record supporting his claim that the trial court’s 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 State’s 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 defendant’s 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.
II.
Prior to trial Flowers filed a motion in limine seeking to preclude
the rape victim’s 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-up”—unduly 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 witness’s 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.
III.
During the course of trial Flowers made two motions for mistrial:[2]
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 defendant’s 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 court’s 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 court’s 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
State’s 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 State’s 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 State’s
experts.
During closing argument defense counsel followed up on the theme that
the conclusions reached by the State’s DNA experts were faulty. In
rebuttal the prosecutor commented:
Nobody else did the [DNA] testing. It was the state’s experts. Now,
ladies and gentlemen, don’t misunderstand me. It’s the state’s
burden. We had the burden to prove to you beyond a reasonable doubt.
But obviously the defense doesn’t (inaudible) a lot of testing. The
evid–the evidence was that there was sample left. They aren’t
precluded.
R. at 2753-54. Flowers objected and moved to strike the prosecutor’s
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 prosecutor’s 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
prosecutor’s 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
prosecutor’s comments during closing argument inferring that the burden of
proof shifted from the State to the defendant was “de minimis” and cured by
the court’s 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 prosecutor’s 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 prosecutor’s closing argument was de minimis and overcome by the
preliminary and final instructions. The trial court did not err in denying
Flowers’ motion for mistrial.
IV.
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.[3] 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. See, 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 defendant’s 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.[4]
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;[5] 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 Sheriff’s Department at the close of trial that
day, Flowers commented: “this is bull****;” told a sheriff’s 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 it.
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 don’t think you
missed too much, did you?” R. at 1915. Flowers raised no objection.
In this appeal, Flowers points to the trial court’s comment, as well
as the trial court’s 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
judge’s 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 court’s denial of Flowers’
motions demonstrated bias or prejudice. Given Flowers’ obvious agitation
with the trial court’s 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 sheriff’s deputies in the courtroom was an acceptable alternative
precautionary measure. As for the trial court’s 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 judge’s action and demeanor
crossed the barrier of impartiality and prejudiced the defendant’s case.
Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997). Flowers has made no
such showing.
Conclusion
We affirm the judgment of the trial court.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] 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 expert witness. 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
State’s motion to transfer jurisdiction to this Court.
[2] 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.
[3] 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.
[4] 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.
Lansley 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).
[5] 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 judge’s impartiality might reasonably
be questioned . . . .”