Barnes v. State, 89-KA-0552

• Decision Date: 06 March 1991
• Docket Number: No. 89-KA-0552,89-KA-0552
• Citation: 577 So.2d 840
• Parties: Baxter Trent BARNES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 840

577 So.2d 840

Baxter Trent BARNES v. STATE of Mississippi.

No. 89-KA-0552.

Supreme Court of Mississippi.

March 6, 1991.

Vaughn Davis, Jr., Davis & Rogers, P.A., Jackson, for appellant.

Mike C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PRATHER, Justice, for the Court:

ON PETITION FOR REHEARING

The opinion formally released December 12, 1990, is modified to read as follows:

I. INTRODUCTION

In this case, Baxter T. Barnes contends that he was denied his rights to a speedy trial and effective assistance of counsel. This Court agrees and concludes that reversal is warranted.

Unless otherwise indicated, the facts are undisputed. On August 11, 1987, a Hinds County Grand Jury returned an indictment against Baxter T. Barnes--charging him with possession of a controlled substance (less than an ounce of marijuana) with intent to distribute. On August 26, 1987, Barnes waived arraignment and entered a plea of "not guilty." Barnes was initially scheduled to be tried on January 6, 1988. However, continuances were granted: (1) on December 28, 1987--which continued trial from January 6, 1988, to February 11, 1988; (2) on July 18, 1988--which continued trial from July 19, 1988, to September 14, 1988; (3) on January 23, 1989--which continued trial from January 23, 1989, to February 1, 1989; and (4) on February 1, 1989--which continued trial to March 23, 1989. The State received the first continuance, and Barnes received the rest.

Judge William Coleman held trial on March 23, 1989. A jury found Barnes guilty--upon which he received a suspended sentence of three years' imprisonment, placed on three years' probation, fined $1,000, required to complete forty hours' community service, and ordered to pay court costs, taxes, and assessments.

On appeal, Barnes presented two issues which are addressed in the following section.

II. ANALYSIS

A. Whether Barnes Was Denied a Speedy Trial?

Whether Barnes was denied a speedy trial actually is not a matter of dispute. Both Barnes and the State agree that, in the very least, 423 days transpired before Barnes was finally brought to trial on March 23, 1989. See Appellant's Brief at 3; Appellee's Brief at 5.

This Court's computation of time reveals that 576 days transpired from the date of arraignment to the date of the trial. Of the 576 days, continuances involved 158 days. Thus, the total number of days which transpired from arraignment to trial--not including the time of continuances--is 418 days (i.e., 576 days - 158 days = 418 days). This means the prosecution missed the statutory deadline for a speedy trial by 148 days (i.e., 418 days - 270 days = 148 days). See MISS.CODE ANN. Sec. 99-17-1 (Supp.1990) ("Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than ... (270) days after the accused has been arraigned."). Accordingly, the State concedes that "it would appear that Sec. 99-17-1 was violated." Appellee's Brief at 5.

While conceding that "it would appear that [the speedy-trial statute] was violated," the State contends that Barnes should be procedurally barred from raising the speedy-trial issue on appeal since he failed to raise the issue at the trial level. Appellee's Brief at 5-6 (citing Colburn v. State, 431 So.2d 1111 (Miss.1983); Callahan v. State, 419 So.2d 165 (Miss.1982)). In Colburn, this Court held that, because the appellant failed to question the constitutionality of a statute at the trial level, he could not raise the question on appeal. 431 So.2d at 1113. And in Callahan, this Court held that, because a "constitutional question was not raised in the lower court or in the assignments of error" on appeal, the question may not be addressed. 419 So.2d at 171.

Barnes counters that the State's contention should be rejected because: (1) the State's only authoritative support--Colburn and Callahan--are not factually nor philosophically analogous to the case sub judice; and (2) this Court has held that a party may not be procedurally barred from raising issues for the first time on appeal if the error affects fundamental rights. Appellant's Reply Brief at 1 (citing Read v. State, 430 So.2d 832, 837 (Miss.1983) ("Error affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal.") (quoting Brooks v. State, 209 Miss. 150, 155, 46 So.2d 94, 97 (1950)).

Alternatively, Barnes counters that the State's contention should be rejected because this Court has held: "[B]efore there can be a waiver of a constitutional right, [he] must [have been] given a meaningful and realistic opportunity to assert the right." Appellant's Reply Brief at 1 (quoting Read, 430 So.2d at 838). Barnes explains that he was not provided a "meaningful and realistic opportunity to assert the right" because he was denied effective assistance of counsel. This conveniently leads to the second issue presented on appeal.

B. Whether Barnes Was Denied Effective Assistance of

Counsel?

Barnes contends that his counsel, James Fougerousse, provided him ineffective assistance. To determine Fougerousse's effectiveness, this Court must decide whether the evidence sufficiently meets the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984), cited with approval in Wiley v. State, 517 So.2d 1373, 1378 (Miss.1987).

Pursuant to Strickland, the record must evince (1) prejudicial (2) deficiency in counsel's performance. 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. See also Wiley, 517 So.2d at 1378 (totality of the circumstances must be considered) (citing Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir.1983), cert. denied, 469 U.S. 1028, 105 S.Ct. 447, 83 L.Ed.2d 373 (1984)). Barnes cites numerous (potentially) prejudicial deficiencies in Fougerousse's representation of him:

1.

Barnes first explains that, after nearly two years of delay, Fougerousse utterly failed to conduct even a scintilla of discovery. Appellant's Brief at 6. The record reveals the following admissions which were made upon commencement of the trial:

PROSECUTOR: Your Honor ... no discovery has been requested in this case....

. . . . .

JUDGE: [Mr. Fougerousse, a]re you satisfied with discovery so far as you know at this point?

FOUGEROUSSE: Yes, sir.

PROSECUTOR: Your Honor, for the record, there has been no exchange of discovery at this point.

JUDGE: All right.

PROSECUTOR: There has been none requested.

FOUGEROUSSE: Your Honor, I don't know what counsel is getting at....

JUDGE: (interposing) I can't hear you ... speak up.

FOUGEROUSSE: There's been from our end ample discovery....

JUDGE: Well, [the prosecutor] is saying there has been no discovery and you are saying there has. I think for the record it needs to be cleared up. The only thing I see is an order for a continuance.

PROSECUTOR: Your Honor, there has been no formal request, no letter, no oral request for discovery.

Vol. II, at 3 & 7.

2.

Barnes next explains that, because Fougerousse failed to conduct discovery, the prosecutor's files went unscrutinized. That is, Fougerousse failed to peruse the file for possible exculpatory evidence, and he failed to request the trial judge to peruse it. Thus, at this point, only the prosecutor knows if exculpatory evidence exists. Appellant's Brief at 7.

3.

Prior to voir dire, the prosecutor announced that he intended to offer into evidence a misdemeanor conviction for impeachment purposes. Of course, Fougerousse was utterly surprised by the prosecutor's intention and incompetently debated the propriety of introducing the evidence. Fougerousse would not have been caught "off guard" and would not have been left virtually defenseless (speechless) had he conducted discovery and apprised himself of Barnes' record and so forth. Id. at 6-7.

4.

The following exchange, which transpired after the jury was impaneled, is another example: ¹

PROSECUTOR: Your Honor, at this time, the State would move for sanctions to be imposed on defense counsel for violation of discovery. He earlier this morning ... advised the Court that he felt that discovery had been completed and he had told the State of his [only] witness, ... the defendant. [A] couple hours ago, he informed the State that he had other witnesses that had arrived and, Your Honor, this just simply makes a mockery of discovery. The defense counsel comes in with witnesses at the last moment and he hasn't told the State....

FOUGEROUSSE: (interposing) Your Honor, I am gonna object to counsel's characterizations.

JUDGE: Well, you announced this morning in voir dire that you had one witness and that would be the defendant.

FOUGEROUSSE: No, sir, I did not, Your Honor. What I stated, in response to the Court's question, was that I anticipated only the defendant and am still anticipating only the defendant. I do have one other witness that I may or may not use. ²

JUDGE: Well, the way I understood it this morning, there has been no discovery within the case....

. . . . .

Well, just tell me, when did you discover--it's 3:00 ... and I want to get started on the trial. It's obvious that the State is not gonna ask for a continuance. When did you learn of this witness, Mr. Fougerousse?

FOUGEROUSSE: Your Honor, this witness has been around since the case began.

JUDGE: And you never bothered to tell the State that?

. . . . .

When are you gonna furnish the State with the names and addresses of your witnesses? I understand that there had been no ... discovery so that would make the issue moot but you tell me there has been discovery so I don't know what's going on.

. . . . .

I'll take up this matter after the case is over....

Vol. II, at 8-11. Need more be said?

5.

Barnes explains that, during trial, numerous possible violations of his constitutional rights were evinced, but Fougerousse failed...