Black v. State, 97-KA-00714 COA

• Citation: 724 So.2d 996
• Decision Date: 18 December 1998
• Docket Number: No. 97-KA-00714 COA,97-KA-00714 COA
• Parties: Richard BLACK, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

724 So.2d 996

Richard BLACK, Appellant, v. STATE of Mississippi, Appellee.

No. 97-KA-00714 COA

Court of Appeals of Mississippi.

December 18, 1998.

David Lee Daniels, Tupelo, Attorney for Appellant.

Office of the Attorney General by Pat Flynn, Attorney for Appellee.

BEFORE THOMAS, P.J., DIAZ AND SOUTHWICK, JJ.

THOMAS, P.J., for the Court:

¶ 1. Richard Black appeals his conviction of burglary, count one; armed robbery, count two; and aggravated assault, count three. Black was sentenced as an habitual offender to the custody of the Mississippi Department of Corrections to serve a term of seven years on count one, twenty years on count two, and twenty years on count three, with all three sentences to run consecutively. Feeling aggrieved, Black appeals on the following issues of error:

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION TO DISMISS FOR VIOLATION OF HIS RIGHT TO SPEEDY TRIAL

II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR, IN REFUSING

DEFENDANT'S CIRCUMSTANTIAL EVIDENCE INSTRUCTION

III. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT PURSUANT TO MISSISSIPPI CODE ANNOTATED, § 99-19-81

Finding no error, we affirm.

FACTS

¶ 2. During the evening hours of January 20, 1995, the Marshall Durbin, Inc. processing plant in Tupelo, Mississippi was burglarized. While making his normal rounds, John Anderson, a security guard with Marshall Durbin, discovered an intruder in the business office. Anderson was searching for a light switch when he was struck in the face with some type of heavy rod or stick with such force as to render Anderson temporarily unconscious. As a result of the blow, considerable damage was inflicted to the bone structure of Anderson's face. Anderson regained consciousness sometime later and managed to make his way back outside where an employee aided him and called the police. He was treated in the emergency room for a long laceration to his face and hospitalized that night for observation. Anderson later underwent reconstructive surgery to repair both the ceiling and the floor of his orbid, the area surrounding the eye socket. Dr. Duong testified that in order to repair Anderson's orbid, bone was taken from Anderson's hip and transplanted to his damaged orbid.

¶ 3. At trial Anderson testified to the events of January 20, 1995. Anderson testified that he was on duty at the entrance gate to the Marshall Durbin plant checking in the night shift employees when a man approached the plant entrance at around 7:25 p.m. and identified himself as Richard Black. Anderson testified that Black looked familiar but that he did not know his name. Anderson questioned Black. Black produced a Marshall Durbin I.D. and stated that he had been transferred from the day shift to the night shift. After producing proper I.D., Black was allowed to enter the plant.

¶ 4. At around 7:30 p.m., Anderson began his security checks at the plant and noticed some suspicious activity in the business office. Anderson testified that the main door was unlocked and had signs of forced entry. He entered the office and spotted another open office door at the end of the hallway. Anderson testified he heard some noise down the hallway and called out, "Who's back there?" A man answered and said, "It's me Richard Black, I've caught a drunk that was breaking in the office." Anderson called out, "Where is he?" and Black answered, "I've got him back here." As Anderson was looking for a light switch, Black approached him. Anderson testified a light was shining from the hallway and that he could identify the man as Richard Black. Anderson further testified that as he turned back around, Black struck him in the face with some object and that he fell to the floor and lost consciousness. Anderson later discover that his wallet was missing and that approximately $60 was in the wallet.

¶ 5. Anderson testified that while he was in the hospital, he was asked to view a photo lineup and to try to identify his assailant. Anderson declined to make an identification at that time due to the swelling in his eyes. He further testified that a few weeks later he did view a photo lineup and that by that time the swelling had subsided and he was able to identify the person who had hit him on January 20, 1995. Anderson identified Richard Black from the lineup. Anderson also positively identified Richard Black at trial as the person who had assaulted him.

ANALYSIS

I.

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DEFENDANT'S MOTION TO DISMISS FOR VIOLATION OF HIS RIGHT TO SPEEDY TRIAL

¶ 6. Black argues that his statutory right to a speedy trial was violated as protected under Miss.Code Ann. § 99-17-1 (Rev.1994). We must note from the outset that Black has advanced convoluted speedy trial arguments to this Court. In his brief, Black bases his argument on § 99-17-1. However, at trial Black presented a motion to dismiss on United States constitutional grounds. In addition, we note that the orders setting trial are not included in the clerk's papers, and therefore, this Court is placed in the arduous position of reviewing an incomplete record. We have, however, constructed a case chronology from the dates stated in the briefs and from the record as submitted to this Court.

Chronological Order of Events for Speedy Trial Analysis Delay Following Date Event the Event 01/20/95 Commission of the crime. 0 02/03/95 Arrest. 112 05/26/95 Filing of indictment. 314¹ 04/04/96 Arraignment. Order appointing Roy Farrell as Black's counsel. Trial set for 08/07/96. 123 08/05/96 Motion for continuance by Farrell. Farrell had a death in the family and would have been unable to proceed at trial on 08/07/96. Case was continued until the next regular term of court. Although it is unclear from the record when the new trial date was set, all indications point to 11/19/96. 2 08/07/96 No trial occurred. 76 10/22/96 Order substituting counsel entered because Farrell was leaving the office of the public defender. Wayne Housley was substituted as Black's new counsel. 28 11/19/96 No trial occurred. Order entered continuing for cause until the next regular term of court. 97 02/24/97 Motion by Housley to withdraw due to a conflict of interest. The motion was granted and David Daniels was substituted for Housley. Again it is unclear from the record when trial was reset, however trial was set for 05/28/97. 93 05/28/97 Trial began. Motion to dismiss for speedy trial violation filed and denied. Black was convicted on all three counts and sentenced. 0 TOTAL NUMBER OF DAYS ELAPSED 845

¶ 7. The important dates are as follows: Black was arrested on February 3, 1995; indicted on May 26, 1995; arraigned on April 4, 1996; and tried on May 28, 1997. There is no order setting the original trial date; however, it is apparent from Black's motion for continuance filed on August 5, 1996 that trial was set for August 7, 1996. Having found satisfactory grounds for a continuance, the court granted Black's motion for continuance due to a death in the family of defense counsel Roy Farrell. One hundred twenty-three days elapsed between arraignment and the August 5, 1996 motion for continuance. One hundred twenty-three days are charged to the State.

¶ 8. The trial was continued until the next term of the court; however, it is again unclear from the record when the second trial date was set. Based upon the briefs of both parties, as submitted to this Court, all indications point to November 19, 1996 as the next trial date. Prior to the November 19, 1996 trial date, the court entered an order on October 22, 1996 substituting counsel due to Farrell's departure from the office of the public defender; Wayne Housley was substituted as Black's defense counsel. On November 19, 1996, the trial court entered an order, due to an over crowded court docket, continuing Black's trial until the next regular criminal term of the court. "Delays caused by overcrowded dockets are not to be weighed heavily against the State." State v. Magnusen, 646 So.2d 1275, 1282 (Miss.1994); Adams v. State, 583 So.2d 165, 167 (Miss. 1991); Bailey v. State, 463 So.2d 1059, 1063 (Miss.1985).

¶ 9. On February 24, 1997, Housley filed a motion to withdraw due to a conflict in interest in representing Black. That motion was granted by order of the court on the same day, and David Daniels was substituted as counsel for the defense. Once again, the record is silent as to when trial was reset; however, trial was actually held on May 28, 1997. We note that Black never filed a motion to dismiss or asserted his right to a speedy trial until the day of trial on May 28, 1997.

¶ 10. On May 28, 1997, the day of trial, Black filed a skeletal motion to dismiss asserting that "the delay of this trial has resulted in prejudice in the preparation of Defendant's defense, in that he is unable to recall material events, and is unable to locate material witnesses for his defense to the charge." He asserted, therefore, that he was "deprived of rights guaranteed to him under the due process clauses of the United States Constitution, Fifth and Fourteenth Amendments." Black presented no testimony or evidence on this motion and stood mute before the court when the court addressed the motion to dismiss in stating, "We also had a Motion to Dismiss filed today. That Motion to Dismiss is denied, it having not been timely filed. Anything further?" The court added that the number a continuances filed by Black weighed against him in his motion to dismiss.

¶ 11. Although Black's motion to dismiss at trial appears to be founded under the United States Constitution, the brief he presents to this Court is based upon the Mississippi statutory right to be tried within 270 days. Since Black, at least on the record as it appears before this Court, waited until the day of trial to file a motion to dismiss based on United States constitutional grounds, presented no testimony or evidence, and therefore failed to present any...