State v. Torres

Decision Date15 June 2021
Docket NumberWD 83487
Citation626 S.W.3d 316
CourtMissouri Court of Appeals
Parties STATE of Missouri, Respondent, v. Miguel A. TORRES, Appellant.

Eric S. Schmitt, Attorney General, and Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Samuel Buffaloe, Assistant Public Defender, Columbia, MO, Attorney for Appellant.

Before Division Two: Mark D. Pfeiffer, Presiding Judge, and Alok Ahuja and Karen King Mitchell, Judges

Karen King Mitchell, Judge

Miguel Torres appeals, following a jury trial, his convictions of three counts of possession of an unlawful item in a county jail, § 221.111,1 and one count of damage to jail property, § 221.353, for which he was sentenced as a persistent offender to concurrent terms of twenty years’ imprisonment for each possession count and five years’ imprisonment for the damage to jail property. Torres raises three claims on appeal. First, he argues that the court erred in admitting evidence of his prior convictions because the State violated Rule 25.032 by failing to timely disclose the evidence. Second, he argues that his right to be free from double jeopardy was violated by his convictions on Counts II and III because § 221.111 is ambiguous as to the allowable unit of prosecution. And, third, he argues that the court erred in refusing his proposed instruction on an entrapment defense. Finding no error, we affirm.


In September 2018, Torres was detained at the Daviess-DeKalb Regional Jail (DDRJ), where Keven Jacques worked as a sergeant and assistant shift commander. On September 22, 2018, Torres advised Jacques that detainees were making weapons out of a missing food tray. Torres suggested that Jacques not act on the information at that time to avoid the risk that the weapons would be moved. Two days later, Jacques met with Torres again to follow up on the prior report, and, at that time, Torres produced "a cardinal tool and two different weapons that appeared to be made out of the tray that was missing."3 Torres also advised Jacques of where the weapons had been hidden. Torres indicated that the weapons had been created in E Hall (the protective custody area) and were being passed to detainees in B tank through the cleaning cart inside the mop bucket.

The same day that Torres provided the weapons to Jacques, Lieutenant Jeremy Allen of the DDRJ conducted a sweep of B tank, where Torres was housed, and discovered a little sharp piece of metal hidden on the top of the doorframe near Torres's bunk. A still image captured from video surveillance showed Torres accessing the metal piece two weeks earlier on September 9, 2018.

Jacques met with Torres again on September 28, 2018, and, at that time, Torres advised that the detainees now had a plastic cereal bowl that they were using in an attempt to create another weapon by microwaving and manipulating the plastic.

On September 26, 2018, Torres met with Investigator James Baker of the DDRJ and reported that "inmates in E hall were making weapons that were being transferred on the mop bucket or cleaning cart tools under the bucket, and they were being taken to B tank to give to another inmate to take revenge on a guard." Following Torres's reports, Baker began looking into Torres's claims by first reviewing video footage from E hall. After reviewing the video footage of the areas Torres identified, Baker was unable to confirm Torres's reports, so he went back to where the weapons were found and started working backwards to discern the source of the weapons. He reviewed video footage depicting Torres from August 27, 2018, through September 24, 2018.

A video image from September 3, 2018, showed Torres sharpening the small metal blade found above his doorframe and then brushing

the floor of his cell to disseminate the shavings. Another video clip from the same day showed Torres with a cord, stretching and twisting it with a pencil. Video footage from September 12, 2018, showed Torres placing the same cord around another inmate's neck, demonstrating how it could be used. Two days later, another clip showed Torres "pointing out toward the walkway where the guards traverse back and forth, and he's showing ... cutting motions as how you would use that cord." More footage from later that day showed Torres shaving his arm with the small metal blade to test its sharpness.

Video from September 19, 2018, showed Torres hiding a meal tray under his mattress, and video from the following day depicted Torres with a meal tray that appeared to be missing a portion. Another video from September 22, 2018, depicted Torres making a sawing motion, with a partial meal tray sitting in the back of his cell. Video from later that morning showed Torres hiding a homemade knife in the bed frame of the top bunk. On September 23, 2018, Torres was again seen on video making a sawing motion in his cell, followed by him brushing off debris, and holding a piece of a meal tray. Another clip from that day showed Torres sliding a piece of paper in a gap near a shower stall to test if a knife would fit. And yet another clip from later that day showed Torres holding the longer of the two knives. A final clip showed Torres placing the knives in his sock, where he later removed the knives to provide them to Jacques.

The State charged Torres with three counts of possession of an unlawful item in a county jail based on the metal blade (Count I), the plastic knives (Count II), and the braided cord4 (Count III); one count of damage to jail property based on the destroyed meal tray (Count IV); and one count of making a false report based on Torres's representations to Baker about other inmates fashioning weapons (Count V). At a pre-trial hearing on October 8, 2019, the State indicated that it had not yet charged Torres as a persistent felony offender but suggested, "That likely will happen the morning of trial as well." Then, on October 21, 2019, three days before trial, the State filed an amended information, charging Torres as a persistent felony offender. The following day, the State filed a second amended information, deleting two of the four alleged prior offenses from the persistent offender allegations. On the morning of trial, the court took up the State's request to file the second amended information and, at that time, defense counsel objected, arguing that there had been a discovery violation resulting from the State's late disclosure of the prior offenses underlying the persistent offender allegations. In response, the State argued that it had just received the certified copies of Torres's prior convictions the day before after having "a lot of trouble getting them," but it had immediately disclosed them to defense counsel. The State then offered the certified copies of Torres's prior convictions into evidence, defense counsel objected on the basis of a claimed discovery violation, and the court overruled defense counsel's objections, accepted the exhibits, and found Torres to be a persistent felony offender.

Following the presentation of evidence, the jury found Torres guilty, as charged, in Counts I-IV and not guilty of Count V. The court sentenced Torres, as a persistent offender, to twenty years’ imprisonment for each of the possession counts and five years’ imprisonment for the damage to jail property count, with all sentences to run concurrently. Torres appeals.


Torres raises three claims on appeal. First, he argues that the court erred in admitting evidence of his prior convictions because they should have been excluded as a result of the State's late disclosure in violation of Rule 25.03. Second, he argues that the court plainly erred in accepting the jury's verdicts for both Counts II (possession of the plastic knives) and III (possession of the garrote) because he simultaneously possessed the items and separate convictions constituted multiple punishments for the same crime in violation of his right to be free from double jeopardy. And finally, Torres argues that the court erred in refusing his proffered instruction on the entrapment defense to the charges in Counts II and III. Finding no error, we affirm.

I. Torres has failed to demonstrate either a discovery violation or resulting fundamental unfairness from admission of the certified copies of his prior convictions.

In Point I, Torres argues that the State violated Rule 25.03 by failing to disclose State's Exhibits 100 and 101 (his certified prior convictions) until the day before trial. He concludes, therefore, that the trial court erred in admitting the exhibits. We disagree.

"In reviewing an alleged discovery violation, we must answer two questions: first, whether the State's failure to disclose the evidence [sooner] violated Rule 25.03, and second, if the State violated Rule 25.03, then what [would have been] the appropriate sanction [for] the trial court [to] impose[ ]." State v. Henderson , 410 S.W.3d 760, 764 (Mo. App. E.D. 2013). We review the court's ruling on the discovery question for an abuse of discretion. Id. "A trial court abuses its discretion where admission of the evidence results in fundamental unfairness to the defendant." Id. "Fundamental unfairness occurs when the State's failure to disclose results in the defendant's ‘genuine surprise,’ [which thereby] prevents meaningful efforts to consider and prepare a strategy to address the evidence." Id. (quoting State v. Thompson , 985 S.W.2d 779, 785 (Mo. banc 1999) ).

Rule 25.03(b)(7) requires the State, upon written request of defense counsel, to disclose any documents "the State intends to introduce into evidence at the hearing or trial." "The duty to disclose includes not only information actually known to the prosecutor[ ] but also information that she may learn through reasonable inquiry." Henderson , 410 S.W.3d at 764. And, where the information sought is in the possession or control of government personnel...

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