Beavers v. State
| Decision Date | 12 November 1986 |
| Docket Number | No. 55809,55809 |
| Citation | 498 So. 2d 788 |
| Parties | Wesley BEAVERS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Shannon Waller, Jr., Gulfport, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Henry C. Clay, III, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J. and PRATHER and ROBERTSON, JJ.
I.
This appeal presents important questions concerning the rights of an accused to a speedy trial under the federal and state constitutions.On this record we have a largely unexplained delay of almost 400 days in bringing the accused to trial, aggravated by some 216 unjustified days in delay following the accused's demand that he be brought to trial.Applying the familiar balancing test emanating from Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101(1972), we hold that the accused's right to a speedy trial was violated and that he must be discharged.
II.
The entire matter began with the burglary of a dwelling said to have occurred in Harrison County, Mississippi, on March 10, 1982.On March 23--some thirteen days later--Wesley Beavers, Defendant below and Appellant here, was arrested and charged with this burglary.On May 4, 1982, some 42 days later, Beavers was charged with burglary in an indictment returned by the Harrison County Grand Jury.
The matter did not proceed to trial.Instead, some two weeks later, it was ascertained that Beavers was at the time of the burglary subject to a parole order.Beavers had been previously convicted of sale of a controlled substance, had been incarcerated at the Mississippi State Penitentiary, and was out on parole at the time of the burglary in issue.Upon Beavers' return to the penitentiary for his parole violation, the burglary charge acquired a dormant posture.
On September 8, 1982, Beavers, acting through his attorney, made a written demand for trial.He subsequently moved to dismiss the proceedings against him and to quash the indictment for violation of his right to a speedy trial.On April 7, 1983, this motion was overruled and denied, and on April 11, 1983, the prosecution responded with a new grand jury indictment charging Beavers again with the March 10, 1982 burglary but this time alleging that he was an habitual offender within Miss.Code Ann. Sec. 99-19-81(Supp.1985).This second indictment was thereafter reduced from burglary to grand larceny, again with the recidivism feature appended, and on May 20, 1983, Beavers was tried and convicted of grand larceny.By reason of two prior convictions, Beavers was sentenced on May 31, 1983, to a term of five years imprisonment without eligibility for parole, suspension or reduction of sentence.Following the usual post-trial motions all of which were denied, this appeal has been perfected.
III.
The matter before us is whether there has been a violation of Wesley Beavers' right to a speedy trial on the charges arising out of the March 10, 1982, burglary/larceny.That right is secured to Beavers by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 3, Section 26 of the Mississippi Constitution of 1890.1
A chronology of events may be helpful.
Date Action
---- ------
March 10, 1982 Burglary committed
March 23, 1982 Wesley Beavers arrested
May 4, 1982 Indictment returned in Cause No. 18,537
charging Beavers with burglary of occupied
dwelling
May 24 or 25, 1982 Beavers transferred to state penitentiary
because of parole violation
August 4, 1982 Beavers' parole revoked
September 8, 1982 Beavers files demand for trial
March 11, 1983 Detainer lodged against Beavers by
D.A. of Harrison County
March 31, 1983 Waiver of arraignment in Cause No
18,537, non-recidivism burglary charge
April 5, 1983 Beavers' motion to dismiss/quash indictment
in Cause No. 18,537 for lack of
speedy trial
April 7, 1983 Order overruling motion to quash indictment
April 11, 1983 Indictment returned in Cause No. 18,870
charging Beavers with burglary of an
occupied dwelling on March 10, 1982, as
habitual offender
April 12, 1983 Motion for continuance by Defendant
Beavers in Cause No. 18,537
May 4, 1983 Arraignment of Defendant in Cause No
18,870 as an habitual offender
May 19, 1983 Indictment for burglary of occupied
dwelling reduced to grand larceny by
D.A
May 19, 1983 Order transferring Cause No. 18,870
from Circuit Court to County Court of
Harrison Co.
May 20, 1983 Trial and conviction of Beavers of grand
larceny as habitual offender in Cause
No. 18,870
Our first question is ascertainment of the point in time when the speedy trial clock began to run against the prosecution.Generally speaking, the starting point appears to be that moment when the defendant is first effectively accused of the offense.Perry v. State, 419 So.2d 194, 198(Miss.1982).ComparePage v. State, 495 So.2d 436, 439(Miss.1986).We have cases treating as this point of accusation the time of indictment and, in cases where the accused is already incarcerated, the point in time when a detainer was lodged against him.Bailey v. State, 463 So.2d 1059, 1062(Miss.1985);Perry v. State, 419 So.2d at 198.Our two most recent pronouncements on the subject held the time of arrest to be the time of accusation.2Lightsey v. State, 493 So.2d 375, 378(Miss.1986);Burgess v. State, 473 So.2d 432, 433(Miss.1985).One's right to a speedy trial as a matter of common sense has reference to that point in time when the prosecution may begin to crank up the machinery of the criminal justice process.It also has reference to the criminal act with which the accused is charged, for that is the event the truth of which must ultimately be probed in open court.The present record reflects that this point in time occurred on March 23, 1982, the date Beavers was arrested, and charged with burglary.Whether Beavers' right to a speedy trial was respected must be determined by reference to that date.Lightsey v. State, 493 So.2d at 378.
Our point of beginning established, we turn to the familiar balancing test engrafted upon the open textured language of the Sixth Amendment in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101(1972).Barker enumerates four factors which must be considered: (1) length of delay, (2) reason for the delay, (3)the defendant's assertion of his right to a speedy trial and (4) prejudice resulting to the defendant.No mathematical formula exists according to which the Barker weighing and balancing process must be performed.The weight to be given each factor necessarily turns on the quality of evidence available on each and, in the absence of evidence, identification of the party with the risk of nonpersuasion.In the end, no one factor is dispositive.The totality of the circumstances must be considered.Burgess v. State, 473 So.2d at 433.
Superficially, this factor is the easiest to ascertain.Beavers was arrested on March 23, 1982.He was brought to trial on May 20, 1983.His trial began 423 days after his arrest.
What constitutes an impermissible delay is problematical.In Perry, where we reversed, the delay was 19 months or 566 days.In Bailey, where we also reversed, the delay was only 290 days or almost ten months.Bailey v. State, 463 So.2d at 1062.In Burgess, where we reversed, the opinion represents the delay as being 16 months, but, according to our computations, the delay was 626 days.In Lightsey, where we did not reverse (on this ground), the delay was approximately 15 months, or 458 days.
While we can draw no emphatic conclusions from application of these cases, we may say with confidence that the delay here is sufficient that, in the absence of the other Barker factors pointing in favor of the prosecution(or in the absence of the defendant's position on the other Barker factors being weak), reversal generally ought follow.CompareLightsey v. State, 493 So.2d at 379.
The record sheds little light on the reason for the delay in bringing Beavers to trial.We accept that a 38 day period of delay may have been caused by Defendant's motion for a continuance filed April 12, 1983.3Past that, the record is simply silent.In his brief the Attorney General argues that Beavers was, following his arrest, taken to the Mississippi State Penitentiary following revocation of his parole on a previous conviction.Incarceration via parole revocation, however, is not a legitimate reason for the prosecution's failure to bring an accused to trial.Burgess v. State, 473 So.2d at 433-34;Bailey v. State, 463 So.2d 1059(Miss.1985).
Here the risk of non-persuasion rests with the prosecution.Because there is nothing in the record attributable to Beavers (except the 38 day delay due to the motion for a continuance) or to any other source not chargeable to the prosecution, explaining why Beavers could not have been brought to trial substantially earlier, we consider this a factor weighing in Beavers' favor.
Significance necessarily attends whether an accused requests a speedy trial, for we are concerned with a constitutional right which like others is subject to knowing and intelligent waiver.We know of no prohibition against an accused waiving his right to a speedy trial.At the same time, we consider this factor in view of our twice repeated statement that "a defendant has no duty to bring himself to trial."Nations v. State, 481 So.2d 760, 761(Miss.19...
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