Adams v. State

• Decision Date: 19 June 1991
• Docket Number: No. 89-KA-0335,89-KA-0335
• Citation: 583 So.2d 165
• Parties: Steve (Steven) Allen ADAMS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 165

583 So.2d 165

Steve (Steven) Allen ADAMS v. STATE of Mississippi.

No. 89-KA-0335.

Supreme Court of Mississippi.

June 19, 1991.

Rehearing Denied Aug. 21, 1991.

Charles P. Leger, Jackson, Pete Halat, Halat & Sherry, Albert H. Pettigrew, Biloxi, for appellant.

Mike C. Moore, Atty. Gen., W. Glenn Watts, Sp. Ass't Atty. Gen., Jackson, for appellee.

En Banc.

BANKS, Justice, for the court:

Steve Allen Adams (hereinafter Adams) appeals his conviction by a Hancock County jury of two counts of sexual battery. Following his conviction, the trial judge sentenced him to a term of ten years each on both counts to be served consecutively. He now appeals to this Court assigning three errors. Two of the errors, the sufficiency of the evidence and an alleged discovery violation, are without merit and require no discussion. The third claimed error requires us once again to confront an issue which plagues the criminal justice system throughout our nation and which seems especially acute in our state--speedy trial. In the end we find that Adams was denied neither his statutory nor his constitutional right to speedy trial.

Because we restrict ourselves to a discussion of the speedy trial issue we may truncate our discussion of the facts in order to protect the privacy of the victim and others. It should suffice to say that Adams, a thirty-one year old male, had supervisory responsibilities with regard to the fifteen year old male victim and others for a period during the summer of 1987. On the occassion in question he subjected his charge to nonconsensual sexual relations, including reciprocal fellatio.

Adams' defense was that he could not have done that with which he is accused within the available time period. That was a matter submitted to the jury and we find that there is ample evidence to support the jury's resolution of that issue. Similarly, the trial court appropriately concluded that there was no discovery violation where Adams complained that he had not been kept up to date as to the witness' whereabouts. It was shown that Adams had all of the information that the state had, including a telephone number through which the witness could have been located. This brings us to the speedy trial issue.

WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION

TO DISMISS FOR DENIAL OF HIS CONSTITUTIONAL AND

STATUTORY RIGHT TO A SPEEDY TRIAL

The course of proceedings pertinent to this issue is as follows:

7/26/87 Alleged sexual battery occurred.

10/26/87 Adams arrested.

2/1/88 Hancock Grand Jury returned 2-count indictment in cause no. 6653 charging Adams with sexual battery by (1) inserting a suppository in the victim's anal cavity and (2) performing fellatio on the victim.

2/22/88 Adams waives arraignment and pleads not guilty in # 6653.

4/28/88 Adams granted a continuance by the court until July 5, 1988.

6/30/88 Adams reindicted in two single count indictments, one charging sexual battery by fellatio on the victim and another charging sexual battery by fellatio on Adams.

7/1/88 State entered an Order of Nolle Prosequi in indictment # 6653.

7/7/88 Adams' reindictment on single count indictments filed as Nos. 6754 and 6755.

8/9/88 Adams waives arraignment and enters not guilty plea.

9/19/88 Adams files Motion to Quash Nos. 6754 & 6755.

9/21/88 Court grants Adams Motion to Quash.

10/17/88 Adams re-indicted by grand jury on two counts of sexual battery in Nos. 6841 & 6842.

11/14/88 Adams waives arraignment and pleads not guilty in Nos. 6841 & 6842.

11/21/88 The case came on for trial but was not first on the docket and was bumped, whereupon, Adams suggested that his speedy trial rights may have been violated and indicated an intention to file a motion to dismiss. Adams' attorney was unavailable for trial the following week and indicated that if it was 12/2/88 Court on its own motion continues Nos. 6841 & 6842 among others which had not been reached during the term because of the trial of other matters.

to be bumped he preferred the January term.

1/20/89 Adams files Motion to Dismiss in Nos. 6841 & 6842 asserting speedy trial violations.

1/23/89 Court denies Adams' Motion to Dismiss

1/25-6/89 Trial.

STATUTORY SPEEDY TRIAL

The statutory right to a speedy trial attaches and time begins running after the accused has been arraigned. Sec. 99-17-1 MCA (Supp.1990). In calculating the statutory time, the date of arraignment is not included, but the date of trial is, as are weekends, unless the last day of the 270 day period falls on Sunday. Ransom v. State, 435 So.2d 1169, 1169-70 (Miss.1983). ¹ Where the state has demonstrated good cause and a continuance has been granted the time elapsed during the period of continuance is not counted against the state. Reed v. State, 506 So.2d 277, 281 (Miss.1987). In addition, continuances granted to the defendant also toll the running of the statute and should be deducted from the total number of days. Vickery v. State, 535 So.2d 1371, 1376 (Miss.1988).

From Adams' original arraignment until the first day of his trial, a total of 338 days elapsed. Of those days at least sixty-three must be deducted because Adams was granted a continuance on April 28, 1988 until July 5, 1988. The trial court entered an order on December 2, 1988 continuing the case until the January 1989 term of court. The order reflects that there was congested docket. This Court has recognized that a congested docket may give rise to good cause for a continuance. See, Williamson v. State, 512 So.2d 868, 877 (Miss.1987). The January 1989 term of the Hancock County Circuit Court began on the second Monday, January 9. See, Mississippi Judiciary Directory And Court Calender, 73, (1989). This continuance, therefore, equalled thirty-seven days. Now the total number of days that must be deducted from the 338 days is 100. As a consequence Adams was tried within the 270 day period. It is readily apparent then that Adams' statutory right to a speedy trial was not violated. We need not reach the issue of the twenty-six day period which elapsed after the second indictments were quashed and before the final indictments were served and arraignment waived.

CONSTITUTIONAL GUARANTEE TO A SPEEDY TRIAL

Unlike the statutory right to speedy trial, Adams' constitutional guarantee to a speedy trial attached at the time he was arrested. Smith v. State, 550 So.2d 406, 408 (Miss.1989). See also, Perry v. State, 419 So.2d 194, 198 (Miss.1982). Once the right attaches, this Court must apply factors laid out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether Adams was denied his constitutional right. The four factors include: (1) the length of delay; (2) the reason for delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant has been prejudiced by the delay. Id. at 533; 92 S.Ct. at 2193. No one of the factors is, in itself, dispositive; rather, they must be considered together in light of all the circumstances. Smith, 550 So.2d at 408 citing Barker, 407 U.S. at 533, 92 S.Ct. at 2193; see also Trotter v. State, 554 So.2d 313, 316 (Miss.1989).

Length of Delay

Between the time Adams was arrested and his first waiver of arraignment 118 days elapsed. When these days are

added to the other 338 days which elapsed before the start of trial, 456 days had passed before Adams was brought to trial. We have held that seven months delay is enough to cause further inquiry into the other factors. See, Smith, 550 So.2d at 408 citing Blake v. Katter, 693 F.2d 677, 681-82 (7th Cir.1982). Furthermore, any delay of eight months or longer is presumptively prejudicial. Smith, 550 So.2d at 408 (citations omitted). Therefore, the delay in the case sub judice is sufficient to trigger the Barker balancing analysis. It is necessary, then, to examine the other factors.

Reason for Delay

From the record, there appears to be several reasons why there was a delay in bringing Adams to trial. Two of the reasons have been explained. One of these delays is attributable to Adams while the other came upon the court's own motion and for good cause. The other delays bear some discussion.

First, as to the delay between arrest and indictment and arraignment we note that Hancock County, by order of the circuit court pursuant to Section 9-7-3, Miss.Code Ann. (1972), impanels grand juries in its January and July terms. Adams was indicted by the January grand jury which was the first one impaneled after his arrest. We also note that Adams was free on bond and that he is a Louisiana resident. Considering that fact, and the fact that as to each indictment he entered a waiver of arraignment and plea of not guilty, we may readily assume that some accommodation was given to his schedule. The brief delays between indictment and arraignment, then, should not be weighed heavily against the state.

There is no record explanation for the time between arraignment and the April 28 request for a continuance, but some time must be allowed for the completion of discovery. Moreover, it is apparent that the defendant was not ready for a May trial. Under the circumstances, none of the time prior to July 5, 1988 should be weighed against the state.

In the last days of June 1988 the state reindicted Adams, changing the facts of one of the counts and separating the counts into separate indictments. The record before this court fails to reflect the reason for this action. There is no indication that a motion was filed attacking the multi-count indictment. In reciting his concerns about speedy trial, defense counsel referred to the indictment as an "illegal multi-count indictment" and attributed illegality as the reason for its nolle proseque. That statement was not challenged, but in the context of the discussion then occurring there was no compelling reason to challenge it.

It should suffice to say that the delay occasioned by reindicting Adams should be charged against the state. At best for Adams, however,...