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
