Box v. State

• Decision Date: 10 December 1992
• Docket Number: No. 90-KA-0303,90-KA-0303
• Citation: 610 So.2d 1148
• Parties: Jimmy D. BOX v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1148

610 So.2d 1148

Jimmy D. BOX v. STATE of Mississippi.

No. 90-KA-0303.

Supreme Court of Mississippi.

Dec. 10, 1992.

Edward C. Fenwick, Jackson & Fenwick, Kosciusko, for appellant.

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

Before ROY NOBLE LEE, C.J., and PRATHER and BANKS, JJ.

BANKS, Justice, for the court:

Jimmy D. Box prosecutes this appeal from his conviction of bribery of a public official entered in the Circuit Court of Choctaw County. He was sentenced to serve ten (10) years in the custody of the Mississippi Department of Corrections.

Box raises four issues concerning (1) his right to a speedy trial; (2) double jeopardy following trial after mistrial; (3) the denial of a motion for change of venue, and (4) allegedly improper closing oratory. Finding no error, we affirm.

FACTS

On April 3, 1989, Box attempted to bribe and influence the official action of Mike Hutchinson, Sheriff of Choctaw County. The proof established that Box gave $500 cash to Sheriff Hutchinson in an attempt to influence Hutchinson to allow Box to sell controlled substances in Choctaw County without interference by the sheriff's office and to keep Box informed of any pending investigations.

The main transaction, which took place in Choctaw County on Little Mountain at the Jeff Busby State Park, was video and audio taped by George Beckett, a criminal investigator for the office of the district attorney, and Lee McGlothin, a narcotics agent. After Box left the scene of the transfer, he was pursued by Sheriff Hutchinson, who intended to arrest him. Box, however, evaded a roadblock and managed to elude his captors and escape on foot after abandoning his automobile. The defendant testified that after the events of April 3, he hid in the forests of Choctaw County for nearly three months. His whereabouts were unknown until July 5, 1989, when he was arrested in Jackson.

Various audio and video tapes inextricably linking Box to the bribe were introduced into evidence by the State, and neither the weight nor the sufficiency of the evidence has been assailed on appeal. Box testified in his own behalf and freely admitted he gave $500 in cash to Sheriff Hutchinson on the morning of April 3, 1989. Box claimed, however, he did so only to obtain evidence of the sheriff's corruptibility. This defense was rejected by the jury.

ISSUES

1. Speedy Trial

Box contends the State violated his constitutional right, as opposed to his statutory right, to a speedy trial when it sustained the State's motion for a continuance predicated on the unavailability of a material witness. According to Box, this allegedly substantial and unjustified six-month delay prejudiced him because he was compelled to spend an additional six months incarcerated inside the county jail. No claim is made that any delay prejudiced Box in the preparation of his defense to the crime charged.

Following the crime committed on April 3, 1989, Box successfully eluded his captors until he was arrested in Jackson on July 5, 1989. An indictment was returned on August 18, 1989, and Box was arraigned on August 21, 1989. He was first put to trial on February 20, 1990, 230 days following his arrest. That trial ended in a mistrial. Box was retried and convicted six days later on February 26, 1990.

Trial had originally been set for August 31, 1989, however, on August 30, the State moved for a continuance due to the unavailability of Mr. George Beckett, who was in Czechoslovakia on a mission for the United States Department of State, as well as the unavailability of the video tape he had taken of the transaction. The motion for a continuance was resisted by Box who made a demand for a speedy trial in open court on August 31, 1989. The trial court granted the State's request for a continuance because "... there cannot [be] any better evidence for a jury than a videotape ...", and because the defendant was a fugitive from justice at the time Mr. Beckett left the country.

The constitutional right to a speedy trial, unlike the statutory right created by Miss.Code Ann. Sec. 99-17-1 (Supp.1992), attaches when a person has been effectively accused of a crime. Beavers v. State, 498 So.2d 788 (Miss.1986). Box's right to a speedy trial attached on July 5, 1989, the date he was arrested. Jenkins v. State, 607 So.2d 1137 (Miss.1992); Handley v. State, 574 So.2d 671, 674 (Miss.1990); Jaco v. State, 574 So.2d 625, 629 (Miss.1990). Box was tried for the first time on February 20, 1990, exactly 230 days (7 1/2 months) following his arrest. See Kinzey v. State, 498 So.2d 814, 816 (Miss.1986).

When a defendant's constitutional right to a speedy trial is at issue, the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is applicable. The factors to consider are: (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 was prejudiced by the delay.

(1) Length of the Delay: 230 days.

In our opinion, 230 days (7 1/2 months) is not an inordinate delay. Box has not cited any case where a delay of fewer than 298 days has inured to the benefit of the defendant. In Smith v. State, 550 So.2d 406, 408 (Miss.1989); Beavers v. State, supra; Burgess v. State, 473 So.2d 432, 433 (Miss.1985); Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985); and Perry v. State, 419 So.2d 194, 199 (Miss.1982), each defendant, in the wake of a Barker analysis, was discharged following delays of 370, 423, 480, 298, and 566 days, respectively. This factor weighs heavily in favor of the State.

We observed in Adams v. State, 583 So.2d 165, 168 (Miss.1991), that a seven-month delay was sufficient delay to necessitate further inquiry into the other factors contained in the Barker equation. Under Adams, expanded inquiry is required.

(2) Reason for the Delay: Unavailability of a material witness and unavailability of material evidence.

A majority of the delay (173 days) was embraced by the continuance granted to the State. On the date originally scheduled for trial, the State did not have access to the video tape depicting the transaction or to the witness, who operated the video camera.

In June of 1989, prior to Box's arrest, George Beckett, the district attorney's investigator, had been summoned to Czechoslovakia by the United States Department of State and was unavailable for trial. Although Beckett had retired from active service with the Department of State, he was still subject to recall for special assignment. He had an understanding with the district attorney that from time to time he might be recalled into service. In addition to having custody of the video tape located inside a vault under his supervision and control, Beckett was also a chain of custody witness for introduction of the five one hundred dollar bills he received from Sheriff Hutchinson after the attempted bribery. There can be no doubt Beckett was a necessary and material witness for the State.

We think the reason for the nearly six-month delay occasioned by the continuance was both a reasonable and legitimate one. Beckett's absence from both the state and the continent was not created by the prosecution. Nor was the unavailability of the tape and the witness a product of the State's shortsightedness or negligence. At the time of Beckett's departure in June, the defendant was still at large. In our opinion, the delay was fully explicable and justified. This factor also favors the State.

(3) Assertion of Right: A single request for speedy trial was made by Box on August 31, 1989, approximately six months prior to retrial.

Box's only demand for a speedy trial was made during the course of resisting the State's motion for a continuance. Box was tried at the next succeeding term of circuit court. This was as soon after his request as possible, without the intervention of a special term. This factor favors the defendant, albeit slightly.

(4) Prejudice to the Defendant: At best, an additional six months of pretrial incarceration.

In Smith v. State, supra, 550 So.2d at 408 we observed that "it may generally be said that any delay of eight (8) months or longer is presumptively prejudicial." See also Jenkins v. State, supra, 607 So.2d at 1139; Adams v. State, supra, 583 So.2d at 168. The 7 1/2 month delay in the case sub judice passes the eight-month test. A 230-day delay from the date of arrest until trial of the defendant is not presumptively prejudicial. It was incumbent upon the defendant to demonstrate actual prejudice.

Box does not claim he was in any way prejudiced in the preparation of his defense by the delay itself or that his six months in the county jail interfered with the preparation of his defense. We cannot equate hardship with prejudice to Box. Six months of incarceration in the county jail, standing alone, is not sufficient to demonstrate the type of prejudice required here. In any event, a former bond had been revoked after Box's arrest on the bribery charge. It is possible, therefore, Box would have remained in jail regardless of when he was brought to trial on the new charge. In other words, Box has failed to demonstrate he would not have been in jail anyway. This factor favors the State.

On balance, an analysis of the Barker factors favors the State. The length of the delay was not inordinate; there was both a reasonable and legitimate justification for the delay for which the State was not at fault; the defendant's assertion of his right was made 173 days prior to trial in conjunction with his objection to the State's request for a continuance, and there was no actual prejudice to Box in his defense. Adams v. State, supra; Wiley v. State, 582 So.2d 1008 (Miss.1991); Handley v. State, supra; Jaco v. State, supra. Accordingly, we reject the defendant's contention he was denied his constitutional right to a speedy trial.

2. Double Jeopardy

Box...