Berryman v. State

• Decision Date: 09 November 2021
• Docket Number: 2020-KA-00710-COA
• Parties: Brian Scott BERRYMAN a/k/a Brian Berryman, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

337 So.3d 1116

Brian Scott BERRYMAN a/k/a Brian Berryman, Appellant

v.STATE of Mississippi, Appellee

NO. 2020-KA-00710-COA

Court of Appeals of Mississippi.

November 9, 2021

Rehearing Denied February 15, 2022

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

EN BANC.

WILSON, P.J., FOR THE COURT:

¶1. Brian Berryman was arrested for unlawful possession of a firearm by a felon and other offenses. Prior to his arrest, Berryman had been on parole from a life sentence for capital murder and had absconded from supervision. Based on his prior parole violations, Berryman's parole was revoked, and he was returned to the custody of the Mississippi Department of Corrections (MDOC) while he awaited trial in the present case. Berryman eventually was tried and convicted of unlawful possession of a firearm by a felon. The trial judge sentenced Berryman as a violent habitual offender to a term of life imprisonment without eligibility for parole.

¶2. On appeal, Berryman argues that his constitutional right to a speedy trial was violated by the forty-month delay between his arrest and trial; that his statutory right to a speedy trial was violated by the nineteen-month delay between his arraignment and trial; and that he should not have been sentenced as a violent habitual offender because his indictment did not put him on notice that the State was seeking a life sentence. For the reasons discussed below, we find no reversible error and affirm.

FACTS AND PROCEDURAL HISTORY

Berryman's Arrest

¶3. In the early morning hours of February 6, 2017, David Thacker called 911 and reported that his neighbor, Berryman, had come inside his trailer and fired a gun into his bedroom. Deputy Scott Dalton from the Tishomingo County Sheriff's Office responded to the trailer on County Road 344 in the Goat Island area in the northern part of Tishomingo County. Dalton took statements from Thacker and Thacker's girlfriend, Tina Alexander. Thacker and Alexander both identified Berryman as the shooter. Dalton then entered the trailer and recovered eight spent shell casings from a .22 caliber gun, one live round for a .22-caliber gun, and a pink dog leash that did not belong to Thacker or Alexander. Dalton also observed bullet holes in the bedroom door and in the wall inside the bedroom.

¶4. Dalton and two other deputies then proceeded to Berryman's house, which was two houses away. Two large dogs were chained up outside the home, and the deputies ordered Berryman to come out and put up the dogs. Berryman put the dogs in a pen and was then arrested. Berryman's face was bruised and bloodied, and he claimed that Thacker had "beat him up." Berryman then told the deputies that he did not have any guns in his house but that they "were free to check." The deputies entered the house and found a .380-caliber pistol behind a speaker in the living room and a .22-caliber rifle in the laundry room behind the washer and dryer. The deputies also found a box of .22-caliber ammunition in the bedroom and a box containing both .22-caliber and .380-caliber ammunition in the laundry room. The deputies also found hydrocodone and oxycodone inside the house.

¶5. Berryman was taken to the Tishomingo County Sheriff's Office. He was advised of and waived his Miranda rights and agreed to talk to Investigator Greg Mitchell. Berryman subsequently signed a written statement setting out his version of events. In his written statement, Berryman claimed,

I have known my neighbor "Tennessee" for less than a year. That was the nickname I knew him by. I was told today by the investigator that his name was David Thacker. I told "Tennessee" that my name was "Rick." I had let "Tennessee" borrow tools from me and DVDs. When he would borrow DVDs, they would be scratched up or something would be wrong with them. "Tennessee" worried me to death about one movie all the time and finally this past weekend, he knew I had some moonshine and asked me to bring it to him where he could get a few shots of it. I went over to his trailer and let him and his girlfriend, Tina, have a couple shots of the "shine." While I was sitting on the couch, "Tennessee" began asking me again about borrowing that DVD. I told him again he couldn't borrow it and the next thing I knew, "Tennessee" had hit me across the face and knocked my glasses off. He hit me about three times in the face and was telling me, like he has always, that I didn't know who I was messing with. I left and I was really pissed about him hitting me, so a little bit later, I grabbed my .22 rifle and my .380 pistol and drove over to "Tennessee" trailer. I went up the back porch and opened the door. The bedroom was to the right and I yelled "Hey Tennessee!" At this time, he jumped up from the bed and grabbed the barrel of my rifle. [Tina] ran toward the front door and I then fired off what I thought was three or four rounds to make him let go of the barrel. When he let go, "Tennessee" ran past me on the wooden porch and fell through it. He pulled himself up and ran down the stairs of the porch heading back down the road toward my house. At some point, my dog lead fell out of my jacket and I didn't know that it had until I was shown a picture of it laying in the floor of "Tennessee" trailer by the investigator. I walked back to my vehicle and drove back to my house. I knew the law would be coming, so I turned on the lights to my house and started getting drunk. My only intention that night was to "scare" him and I think I done that. I wasn't going to kill them because if I was, I would had just shot them both while they were in bed, but I didn't.

¶6. Berryman had been paroled from his life sentence for capital murder in 2009, but he had absconded from supervision in 2013. Thus, by the time of Berryman's arrest in this case, there was already an outstanding warrant for his arrest for parole violations. After Berryman's arrest, he was remanded to MDOC's custody, and his parole was revoked.

Pretrial Proceedings

¶7. In September 2017, a Tishomingo County grand jury indicted Berryman for shooting a firearm into a dwelling and unlawfully possessing a firearm as a felon.¹ Berryman was indicted as a violent habitual offender based on his prior convictions for robbery, armed robbery, burglary of a dwelling, and capital murder.

¶8. In June 2018, Berryman filed a pro se demand for trial and motion to dismiss in which he alleged a denial of his right to a speedy trial. Berryman also requested appointed counsel. In October 2018, Berryman filed another pro se demand for trial and motion to dismiss.

¶9. On November 7, 2018, Berryman was finally arraigned. The court appointed John White to represent Berryman. However, White had been elected to the circuit court (without opposition) on November 6, 2018. Therefore, White was unable to represent Berryman after his arraignment. The arraignment order, which both White and Berryman signed, stated that the case was "continued on motion of the Defendant and set for trial during the next regularly scheduled term." On November 21, 2018, Berryman filed another pro se demand for trial, motion to dismiss, and motion for appointed counsel.

¶10. On January 7, 2019, the court entered an order appointing Richard Bowen to represent all indigent defendants in Tishomingo County. However, the order was not filed in this case, and Berryman was never told that Bowen was representing him. Bowen was listed as Berryman's attorney on the criminal dockets for the May 2019, September 2019, January 2020, and April 2020 court terms. However, sometime in the first half 2019, Bowen, a former assistant district attorney, realized that he had a conflict because he had previously prosecuted Berryman for capital murder. Bowen then informed Daniel Sparks, who was the conflict public defender, that he would need to represent Berryman.

¶11. In April 2019, Berryman filed another pro se demand for trial and motion to dismiss.

¶12. In June 2019, the court entered an order continuing the case. The order stated that the continuance was granted "on Motion of the Defendant" and was signed by Sparks as counsel for Berryman. However, the record does not contain a prior motion for a continuance, entry of appearance by Sparks, or order appointing Sparks. At a subsequent hearing, Berryman testified that he met Sparks for the first and only time in September 2019. He said that Sparks "introduced himself" and that they "had about a fifteen minute conversation."

¶13. In October 2019, Berryman filed a pro se motion to dismiss for want of prosecution, again alleging a denial of his right to a speedy trial. He also filed another pro se motion for appointed counsel.

¶14. In November and December 2019, Berryman attempted to appeal the June 2019 order continuing his case. Berryman alleged that he had only recently become aware of the order. He also alleged that Sparks lacked authority to request a continuance because Sparks had never been appointed to represent him. Berryman also continued to maintain that he had been denied a speedy trial. However, the Supreme Court dismissed Berryman's appeals for lack of an appealable final judgment. Berryman v. State , No. 2020-TS-00198 (Miss. July 9, 2020); Berryman v. State , No. 2020-TS-00218 (Miss. July 9, 2020).

¶15. In January 2020, Berryman filed a motion for the recusal of Circuit Judge Paul Funderburk. Berryman argued that Judge Funderburk should recuse because he had been a prosecutor in a case in which Berryman was convicted of robbery in 1983. In March 2020, Judge Funderburk recused himself "[t]o avoid even the appearance of impropriety."

¶16. In March 2020, Circuit Judge Kelly Mims (the trial judge) ruled on Berryman's multiple motions to appoint counsel. The trial judge stated that although Berryman was correct that no order appointing counsel had been entered, Berryman had been and continued to be represented by counsel. The judge noted...