Theodosius M. Torrey v. State of Mississippi
229 So. 3d 156
| Miss. Ct. App. | 2017Background
- Defendant Theodosius M. Torrey was indicted for aggravated assault arising from an April 1, 2009 altercation that left the victim permanently disabled and confined to a wheelchair.
- Torrey was arrested the day of the incident, Mirandized, and gave an audio-recorded statement; dispute arose whether he invoked his right to counsel during the interview.
- The State moved to amend the indictment to allege habitual-offender status in December 2012; the court granted the amendment in February 2013.
- Torrey fired multiple attorneys before trial; on the scheduled trial date his most-recent retained counsel had not appeared or prepared, and the court ordered trial to proceed with counsel Brian Alexander.
- A jury convicted Torrey of aggravated assault; he was sentenced as a habitual offender to 20 years’ imprisonment without parole.
- Torrey appealed, raising claims about counsel/continuance, judge recusal, suppression of his statement, ineffective assistance, refusal of a lesser-included instruction, and the habitual-offender amendment process.
Issues
| Issue | Torrey's Argument | State's Argument | Held |
|---|---|---|---|
| Court abused discretion by forcing trial with discharged/unprepared counsel | Court should not have required him to proceed with Alexander; counsel unprepared | Defendant had repeatedly changed counsel; new counsel made no appearance; court properly enforced trial date | Denied — no manifest injustice; Alexander had months to prepare and Crowley did no work |
| Ineffective assistance of trial counsel | Alexander was unprepared, failed investigations, bad voir dire, evidentiary mistakes | Record does not affirmatively show constitutional ineffectiveness on direct appeal | Dismissed without prejudice to PCR — record inadequate to resolve on direct appeal |
| Judge should have recused | Judge previously served as a DA in related counties; potential bias | Motion untimely and lacked required affidavit under URCCC 1.15 | Denied — procedurally barred for failure to comply with recusal rule |
| Motion to suppress recorded statement (invocation of counsel) | Torrey invoked right to counsel during recording; statement should be suppressed | Audio/transcript unclear at key point; officers testified no clear request; later statements showed he declined a lawyer | Denied — court credited officers; invocation not unambiguous under Davis/Barnes; waiver found valid |
| Denial of simple-assault lesser-included instruction | Jury could have convicted of simple assault instead of aggravated assault | Victim’s injuries were indisputably serious; no evidence vehicle/fall caused injuries | Denied — no reasonable juror could find only simple assault given uncontradicted severe injuries |
| Habitual-offender amendment process violated due process/fair notice | Amendment and order timing denied fair notice before sentencing | State moved Dec 2012; order entered Feb 2013; trial May 2013 — months’ notice; no timely objection | Denied — procedure complied with Gowdy; defendant had adequate notice; issue waived at sentencing |
Key Cases Cited
- Davis v. United States, 512 U.S. 452 (clarifies unmistakability standard for invoking counsel)
- Miranda v. Arizona, 384 U.S. 436 (Miranda warnings and waiver principles)
- Barnes v. State, 30 So. 3d 313 (Mississippi application of Davis unambiguous-invocation rule)
- Wilcher v. State, 863 So. 2d 776 (standard on addressing ineffective-assistance claims on direct appeal)
- Gowdy v. State, 56 So. 3d 540 (procedures and limits for amending indictments to allege habitual-offender status)