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Flores v. State

Court of Appeals of Missouri, Western District, Second Division

May 2, 2017

JOSE F. FLORES, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Clay County, Missouri The Honorable Larry D. Harman, Judge

          Before Thomas H. Newton, P.J., James Edward Welsh, and Karen King Mitchell, JJ.

          James Edward Welsh, Judge

         Jose F. Flores appeals the circuit court's judgment, after an evidentiary hearing, denying his Rule 29.15 motion for post-conviction relief, in which he claimed ineffective assistance of counsel. We affirm the circuit court's judgment.

         Background

         The State charged Flores with ten counts of first-degree statutory sodomy, six counts of first-degree child molestation, and one count of first-degree statutory rape. The State alleged that, between January 1, 2005 and April 4, 2006, Flores and his girlfriend had sexually abused the girlfriend's two daughters, who were approximately ages eight and six at the time.

         Flores's case went to trial in July 2012. At a bench conference during the testimony of one of the State's witnesses, the circuit court informed the attorneys that "three of the jurors are showing severe signs of trying to struggle to stay awake, and we'll make a record of that later." During a recess after the conclusion of that witness's testimony, the court made this record:

The Court has noticed, because I watch the jury all the time, I watch them consistently and a lot, and I have noticed that Juror [No. 25], has been struggling to stay awake most of the afternoon.
I thought I actually saw his, I know I saw his eyes close, I saw his head bob from about four o'clock on. It would only last for a couple of seconds and he would open his eyes, and look around the room, and he'd stretch.
I'm just telling you, for your informational purposes, I've seen him, it appeared, to be struggling to stay awake. I didn't see him actually asleep. I noticed two other jurors who appeared to have some issues with that.
I tell you that for whatever methods or things you want to do. If that continues with a particular juror and I think it interferes with their ability to hear the evidence, I'll consider replacing that juror with the alternate. And I may also take more frequent breaks, I don't know. That's also why I'm letting them bring the coffee in with them, which is a violation of the court rule, but that's okay. . . .

         There was no further discussion of the matter at trial.

         The jury convicted Flores on all seventeen counts. The circuit court sentenced Flores, who waived jury sentencing, to a combination of concurrent and consecutive sentences that resulted in a total of three consecutive life terms plus thirty years. State v. Flores, 437 S.W.3d 779, 784 (Mo. App. 2014).

         Following this Court's denial of his direct appeal, see id. at 796, Flores filed a timely pro se Motion to Vacate, Set Aside or Correct the Judgment pursuant to Rule 29.15. Appointed counsel filed an amended Rule 29.15 Motion. One of the claims raised in the amended motion was that trial counsel was ineffective in failing to move to replace Juror No. 25 with an ...


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