Blakley v. State, 2000-KA-01156-COA.

• Decision Date: 31 July 2001
• Docket Number: No. 2000-KA-01156-COA.,2000-KA-01156-COA.
• Citation: 791 So.2d 326
• Parties: Calvin Anthony BLAKLEY, Jr. a/k/a Calvin Antonio Blakley, Jr., Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

791 So.2d 326

Calvin Anthony BLAKLEY, Jr. a/k/a Calvin Antonio Blakley, Jr., Appellant v. STATE of Mississippi, Appellee.

No. 2000-KA-01156-COA.

Court of Appeals of Mississippi.

July 31, 2001.

Jim Davis, Attorney for Appellant.

Office of the Attorney General by W. Glenn Watts, Jackson, Attorney for Appellee.

BEFORE KING, P.J., LEE, and CHANDLER, JJ.

LEE, J., For The Court:

¶ 1. Calvin Anthony Blakley was found guilty of the transfer of a controlled substance (i.e., cocaine) for which he received an enhanced penalty, and was sentenced to fifteen years under Miss.Code Ann. § 99-19-81 (Rev.2000), without the hope of parole or probation. Blakley now appeals the verdict and sentence and presents two issues: (1) whether he was denied his constitutional right to a speedy trial, and (2) whether the trial court erred and condoned a discovery violation when it allowed Officer Davis to testify regarding a photographic lineup. We conclude these issues are without merit and affirm the trial court.

FACTS

¶ 2. Blakley was indicted on four counts for the sale or transfer of cocaine under the enhanced penalty and as a habitual offender. However, he did not receive a trial on all of these counts at once. Instead, Count IV for the sale or transfer of cocaine which occurred between Blakley and Officer Davis, an undercover agent, was severed and tried separately. The proceedings regarding Count IV are what we are reviewing on appeal.

¶ 3. Blakley's first issue is based on the denial of his constitutional right to speedy trial. The record discloses that several continuances were granted in this case. Additionally, the record reveals that Blakley's motion to dismiss for lack of speedy trial was heard on May 23, 2000, the day of Blakley's trial. The trial court denied this motion. To avoid repetition we will take a closer review of the sequence and reasons for the continuances in our discussion of this issue. Blakley's second issue asserts that a discovery violation occurred in relation to the use of a photographic lineup by the State during the trial.

¶ 4. This issue focuses on the identification of Blakley as the individual involved in the crime. The record shows that Officer Davis, an undercover agent, was placed in an automobile equipped with video and audio tapes to make undercover drug purchases. Eventually, Officer Davis encountered an individual whom he later identified as Blakley and inquired about making a drug purchase from him. Blakley instructed him to circle the block. After doing so, Officer Davis purchased twenty dollars worth of crack cocaine from Blakley. This transaction was recorded by the videotape equipment in Officer Davis's automobile. Testimony during the trial showed that several days after the drug purchase, Officer Davis was presented with a photographic lineup by Officer Ponthieux which contained a photograph of Blakley.

¶ 5. Officer Davis identified Blakley as the perpetrator from the photographic lineup. Thereafter, Officer Davis drew an arrow to Blakley's picture, as well as putting his initials, the date, and time beside his photograph. The record reveals that neither Officer Davis nor Officer Ponthieux made a narrative to document the photographic lineup. This is where Blakley asserts an error occurred. Blakley concedes that he received a copy of the photographic lineup; however, he did not receive a narrative in regard to any anticipated testimony by Officer Davis, the State's witness. With these facts in mind, in issue two we will more specifically address whether the failure to provide a narrative with the photographic lineup constitutes a discovery violation.

DISCUSSION

I. WHETHER BLAKLEY WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.

¶ 6. Blakley argues that he was denied his constitutional right to a speedy trial; therefore, his conviction should be reversed and his charge dismissed. Blakley argues that he never agreed to any continuances and that he has desired to go to trial since his arrest on April 30, 1998. Blakley contends that not only was the delay unconstitutional, but the delay in trying his pending charge also prejudiced him. Blakley argues that he was prejudiced because this charge, as well as his other pending charges did not allow a change in his custody level and prevented him from participating in school programs or attending alcohol and drug abuse treatment programs.

¶ 7. An accused's constitutional right to a speedy trial attaches when the person is effectively charged with a crime. Skaggs v. State, 676 So.2d 897, 900 (Miss. 1996); Noe v. State, 616 So.2d 298, 300 (Miss.1993). This Court determines whether a criminal defendant's right to a speedy trial has been violated, by balancing four factors pronounced by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under Barker we consider: (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant has asserted his right to a speedy trial, and (4) whether the defendant has been prejudiced by the delay. Id. No one of the four factors determines whether an individual's constitutional right to speedy trial has been violated. Skaggs, 676 So.2d at 900.

¶ 8. A delay of eight months has been found to be presumptively prejudicial. Smith v. State, 550 So.2d 406, 408 (Miss.1989). A delay of eight months or longer triggers further inquiry into the Barker factors. Jaco v. State, 574 So.2d 625, 630 (Miss.1990). In Blakley's case, a motion to dismiss contained within the record states that he was arrested on April 30, 1998; therefore, his constitutional right to a speedy trial began to run on this day. Approximately two years had elapsed between his arrest and his trial. While this lapse is presumptively prejudicial, this time lapse alone does not mandate reversal; rather, it requires that we examine closely the remaining factors. See Handley v. State, 574 So.2d 671, 676 (Miss.1990)

.

a. Reason for delay

¶ 9. We must keep in mind that "The [S]tate bears the risk of non-persuasion regarding the reasons for delay and must show whether the defendant caused the delay or that good cause existed for the delay." Fleming v. State, 604 So.2d 280, 299 (Miss.1992). The State argues that the delays were caused by several factors, such as: Blakley's incarceration on other convictions, the trial court's own motion due to exigent circumstances (i.e., the trial judge was ill), and on the court's own motion due to an overcrowded court docket in Harrison County.

¶ 10. On January 11, 1999, the State and defense entered a joint motion for continuance. This continuance was requested by both parties because Blakley had a new indictment and had to be transported for a trial setting. The trial was continued until May 24, 1999. It has been said that "[a] defendant cannot complain of a delay attributable to a continuance by agreement." Horton v. State, 726 So.2d 238, 246 (¶ 35) (Miss.Ct.App.1998). Additionally, although not clear on the length of the delay, the record shows that counsel for Blakley sought a continuance on May 24, 1999, due to his involvement in a capital case. In Vickery v. State, 535 So.2d 1371, 1376 (Miss.1988), the Mississippi Supreme Court explained that when the accused requests a continuance it is attributed to him or her and stops the running of the clock. These delays are deducted from the total number of days before trial. Id. Along with these continuances, there were also two continuances prompted by the trial court.

¶ 11. On July 9, 1999, the trial court entered an order declaring that due to exigent circumstances, the court had cancelled its docket, and the trial was continued until September 20, 1999. On April 19, 2000, an order was entered by the trial court continuing the case to May 22, 2000, due to an overcrowded docket. Delays by the trial court because of an overcrowded docket do not weigh as heavily against the State as if it was a deliberate or purposeful delay. Skaggs, 676 So.2d at 901.

¶ 12. It appears that since the court's actions are counted as that of the State, there are multiple occasions where the delay is attributable to the State. Nevertheless, the record does not reflect deliberate or purposeful delays by the State. In fact, the record contains a couple of orders that were entered at the request of the State to transport Blakley from the Mississippi State Penitentiary to Harrison County Detention Center so he would be present for his trial on the charge in the case at bar. Additionally, since circumstances such as an overcrowded docket have been held to constitute good cause for delay, the delays will not be counted heavily against the State.

b. Assertion of right

¶ 13. Blakley initially raised the speedy trial issue in his motion for production and inspection filed on January 29, 1999. Additionally, the record discloses that on May 22, 2000, Blakley filed a motion to dismiss which incorporated a prior motion to dismiss based on the violation of his constitutional right to a speedy trial. Regardless, it has been stated that a demand for dismissal due to the violation of one's right to a speedy trial is not the same as a demand for a speedy trial. Perry v. State, 637 So.2d 871, 875 (Miss.1994). A motion for dismissal seeks a discharge and not a trial. Id. Furthermore, while an accused is under no duty to bring himself to trial, "he gains far more points under this prong of the Barker test where he has demanded a speedy trial." Id. (quoting Jaco v. State, 574 So.2d 625, 632 (Miss. 1990)). However, Blakley did not have his motion to dismiss heard until the day of his trial on May 23, 2000. Therefore, this factor does not weigh heavily in the favor of Blakley.

c. Presence or absence of prejudice

¶ 14. "Prejudice is assessed in light of the interest of the defendant which the right to a speedy trial is designed to protect: 1) prevention of oppressive pre-trial incarceration, 2) limitation of the...