Brengettcy v. State, 1999-KA-01516-SCT.

• Decision Date: 06 September 2001
• Docket Number: No. 1999-KA-01516-SCT.,1999-KA-01516-SCT.
• Citation: 794 So.2d 987
• Parties: Kwame Kenyetta BRENGETTCY a/k/a MAC 10, v. STATE of Mississippi.
• Court: Mississippi Supreme Court

794 So.2d 987

Kwame Kenyetta BRENGETTCY a/k/a MAC 10, v. STATE of Mississippi.

No. 1999-KA-01516-SCT.

Supreme Court of Mississippi.

September 6, 2001.

Bradley Stuart Peeples, Coffeeville, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.

Before PITTMAN, C.J., COBB and DIAZ, JJ.

COBB, Justice, for the Court:

¶ 1. In February of 1998, Kwame Kenyatta Brengettcy was jointly indicted with three other individuals for the drive-by shooting death of Mark Martin, which had occurred on August 31, 1997. The threecount indictment charged all four men with conspiracy to commit a drive-by shooting and murder. The Yalobusha County Circuit Court granted each of the defendant's motions to sever, and Brengettcy was tried separately on March 8, 1999. That jury was unable to reach a unanimous verdict, and Brengettcy was tried a second time on August 9, 1999. In his second trial, the jury convicted Brengettcy of murder, and the trial court sentenced him to life imprisonment. Aggrieved, Brengettcy now appeals raising the following issues:

I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S PRO SE MOTION TO DISMISS, THEREBY VIOLATING HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.

II. THE TRIAL COURT ERRED IN FINDING SUFFICIENT EVIDENCE TO DENY THE APPELLANT'S MOTIONS FOR A DIRECTED VERDICT AND JUDGMENT NOT WITHSTANDING THE VERDICT.

III. THE TRIAL COURT ERRED IN FINDING THE WEIGHT OF THE EVIDENCE ADEQUATE TO

DENY THE APPELLANT'S MOTION FOR A NEW TRIAL.

IV. THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION 9(S-1) AND DENYING JURY INSTRUCTION D-12.

¶ 2. We conclude that Brengettcy's assignments of error are without merit, and we affirm the judgment of the trial court.

FACTS

¶ 3. On the night of August 31, 1997, Mark Martin was shot and killed in Coffeeville, Mississippi. Earlier that evening, Martin had been involved in an altercation with a man named John Bland at a Coffeeville nightspot. Three other men were present at the scene: Joe Armstrong, Larry Carr, and the appellant, Kwame Kenyetta Brengettcy. Bland, Armstrong, Carr and Brengettcy left the scene in separate cars, but returned about fifteen minutes later in Armstrong's car. Four eyewitnesses positively identified Brengettcy as the person sitting in the front passenger seat of Armstrong's car.

¶ 4. As Armstrong's vehicle approached, gunfire erupted from it, mortally wounding Martin. Although the testimony was disputed, eyewitnesses said that the gunfire came from the front passenger seat, and one witness expressly stated that Brengettcy was the person who fired. As the gunmen's car sped away, friends of Martin who were eyewitnesses transported the dying man to a hospital in Grenada, Mississippi.

¶ 5. After learning the identity of the four men involved, police tracked them to a motel in Batesville, Mississippi, and gave chase from there. Police eventually managed to shoot out the tires and bring the vehicle to a stop. At the scene of the capture, Mississippi Highway Patrolman Jerry Eastridge retrieved a .38 Rossi handgun which was later identified as the murder weapon. The four men were arrested at that time.

ANALYSIS

I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S PRO SE MOTION TO DISMISS, THEREBY VIOLATING HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.

¶ 6. Brengettcy's first issue arises from a pro se motion to dismiss the charges against him which was denied by the trial court. Although Brengettcy states that the trial court erred in denying his pro se motion to dismiss, his motion may be more accurately viewed as a demand for a "fast and speedy trial." At the conclusion of his brief in support of this motion, Brengettcy prays for dismissal of the charges against him.

¶ 7. Alleged speedy trial violations are examined and determined on a case-by-case basis due to the factual specifics of each action. Sharp v. State, 786 So.2d 372, 377 (Miss.2001). A defendant's right to a speedy trial is secured by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 3, Section 26 of the Mississippi Constitution of 1890. Beavers v. State, 498 So.2d 788, 789 (Miss.1986). The Mississippi Code also provides a statutory right to a speedy trial, stating: "Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are present to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned." Miss.Code Ann. § 99-17-1 (2000). This statutory right, often referred to as the 270 day rule, attaches at arraignment rather than at arrest. Handley v. State, 574 So.2d 671, 674 (Miss.1990). The 270 day rule is satisfied when the defendant has been brought to trial. Id. at 674.

¶ 8. Even when that trial results in a mistrial or hung jury, the time of retrial remains within the discretion of the trial court, although a substantial delay may still violate the constitutional right to a speedy trial. Id. Because this case involves two trials, an analysis of Brengettcy's speedy trial claim requires the calculation of three time periods: (1) the time between the arrest and the first trial for constitutional purposes; (2) the time between arraignment and the first trial for 270 day rule purposes; and (3) the time between mistrial and retrial for constitutional purposes.

¶ 9. A chronology of the relevant dates in this case is as follows:

Aug. 31, 1997 Crime Occurs Sept. 1, 1997 Brengettcy and co-defendants arrested Feb. 19, 1998 Indictment filed against all four defendants March 16, 1998 Counsel appointed for Brengettcy April 10, 1998 Brengettcy's Motion for Discovery filed July 23, 1998 Order to Transport Brengettcy from Parchman on or before August 8th July 31, 1998 Motion to Sever filed Aug. 18, 1998 Agreed Order of Continuance Sept. 16, 1998 Order of Continuance and Resetting of Trial Date for March 8, 1999 Nov. 20, 1998 Brengettcy's pro so motion to dismiss filed March 3, 1999 Brengettcy's Waiver of Arraignment and Entry of Plea March 8, 1999 Brengettcy's first trial resulting in a hung jury March 10, 1999 Notice that jury was unable to reach unanimous verdict in first trial March 12, 1999 Order of Continuance and Setting 2nd Trial for August 9, 1999 August 9, 1999 Brengettcy's second trial

A. The Constitutional Right

¶ 10. In reviewing such a constitutional challenge, we have not set a specific length of time as being per se unconstitutional, but instead have applied the four-part balancing test articulated by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Handley, 574 So.2d at 674. The four Barker factors to consider are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) the prejudice to the defendant. Barker, 407 U.S. at 530, 92 S.Ct. 2182. None of the four factors is determinative; rather, a totality of the circumstances test is used. Beavers, 498 So.2d at 790. "We are mindful indeed that no one factor is dispositive of the question. Nor is the balancing process restricted to the Barker factors to the exclusion of any other relevant circumstances." McGhee v. State, 657 So.2d 799, 802 (Miss.1995).

1. The length of the delay.

¶ 11. The first Barker factor is the length of the delay. In Beavers, this Court identified the relevant dates used to calculate the length of the delay as being the arrest date and the trial date. Id. Although all the factors are relevant for the balancing test, this Court has recognized that a delay of eight months or more is presumptively prejudicial. Smith v. State, 550 So.2d 406, 408 (Miss.1989). Where the delay is not presumptively prejudicial, there is no need to review the remaining Barker factors. Handley, 574 So.2d at 677.

¶ 12. Brengettcy was arrested on September 1, 1997, and first brought to trial on March 8, 1999, for a total of 554 days or more than 18 months. This delay is presumptively prejudicial and requires an analysis of the remaining Barker factors. The length of time between the disposition of his first trial and the commencement of his second trial is only 154 days, which is not presumptively prejudicial, and there is no need to consider the remaining factors with regard to Brengettcy's retrial.

2. The reason for the delay.

¶ 13. The second Barker factor requires determination of the reason for the delay and the party to whom the delay is attributable. Delays which are attributable to one party count against that party. Beavers, 498 So.2d at 791. Furthermore, the "risk of non-persuasion rests with the prosecution," and where the record is silent as to the cause of a delay, this factor must weigh in favor of the defendant. Id.

¶ 14. The docket in Brengettcy's case reflects that he was indicted by the first grand jury convened following his arrest. The Yalobusha County Circuit Court, First Judicial District, has only two terms of court each year, each consisting of only 12 days. This dearth of available dates for trial necessarily makes it virtually impossible to expeditiously hear cases, whether civil or criminal. The 172 days prior to the indictment should not be counted against either side. During the 180 days between the indictment and the first agreed continuance, routine activities including appointment of counsel and discovery were conducted with regard to all four defendants. No severance was requested by Brengettcy or his three co-defendants until July 31, 1998, (162 days after indictment), and it understandably took longer because there were four attorneys to be appointed and four sets of discovery to be completed.

¶ 15. The decision to sever the first of Brengettcy's co-defendants was not made until August 18, 1998, and the trial of that severed defendant began that day. An "Agreed Order of Continuance" signed and approved by Brengettcy's lawyer was filed that same day. A second "Order of Continuance" pertinent to Brengettcy and the...