Court of Appeals of Missouri, Western District, Second Division
JOSE F. FLORES, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Clay County, Missouri The Honorable
Larry D. Harman, Judge
Thomas H. Newton, P.J., James Edward Welsh, and Karen King
Edward Welsh, Judge
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
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.
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
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.
. . .
was no further discussion of the matter at trial.
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).
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 ...