Carlisle v. State, 52348
| Decision Date | 07 January 1981 |
| Docket Number | No. 52348,52348 |
| Citation | 393 So.2d 1312 |
| Parties | Teresa CARLISLE v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Albert S. Johnston, III, Karl A. Steinberger, Johnston & Steinberger, Pascagoula, for appellant.
Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before SMITH, P. J., and SUGG and LEE, JJ.
SUGG, Justice, for the Court:
Defendant was convicted of murder and sentenced to life imprisonment by the Circuit Court of Jackson County, December 5, 1978. On appeal defendant assigns the following errors:
1. The court erred in overruling the defendant's motion to dismiss pursuant to Section 99-17-1, Mississippi Code of 1972, Amended.
2. The trial court erred in failing to exclude the testimony of state's witness Long.
3. The appellant did not receive a fair and impartial trial.
Defendant contends she was denied the right to a speedy trial under the provisions of section 99-17-1 Mississippi Code Annotated (Supp.1976). 1
Defendant has been tried four times, found guilty three times, and in another a mistrial resulted after a jury could not agree on a verdict. The chronology of the case follows:
October 14, 1975 Defendant indicted
November 14, 1975 Defendant arraigned
November 14, 1975 First trial--defendant convicted
December 11, 1975 Motion for a new trial sustained
January 12, 1976 Second trial--a mistrial was
declared when the jury could not
agree on a verdict.
February 10, 1976 Third trial--Defendant convicted.
July 27, 1977 Defendant's conviction reversed
by the Supreme Court--Carlisle
v. State, 348 So.2d 765 (Miss.
1977).
August 16, 1977 Supremen Court mandate issued.
December 4, 1978 Fourth trial--Defendant
convicted.
Defendant's fourth trial commenced December 4, 1978, which was 475 days after the mandate of the Supreme Court was filed in the Circuit Court of Jackson County. Section 9-7-49 Mississippi Code Annotated (1972) provides for four terms of Circuit Court to be held in Jackson County. The terms begin on the second Monday of April, the second Monday of July, the first Monday of October, and the second Monday of January in each year.
The case was set for trial during the October, 1977 term of court but was continued because of the absence of one of the witnesses for the state. No order of continuance was entered on the minutes of the court but counsel for defendant agreed that the case was continued because the subpoena on the witness was not served. The case was next set for trial during the January, 1978 term but was continued on motion of the defendant. The case was set for trial at the April, 1978 term but was again continued on motion of the defendant. The case was not tried during the July, 1977 term but her last trial began on December 4, 1978, at the next term of court.
The three continuances which were granted, one for the state and two for the defendant, should be deducted from the computation of the total time elapsed. The continuances were for a period of 282 days from the beginning of the October, 1977 term to the beginning of the July, 1978 term. After deducting the 282 days delay caused by continuances from the total time elapsed of 475 days, 193 days remain. Defendant was tried within 270 days of the filing of the Supreme Court mandate in the Circuit Court of Jackson County.
We have made the above computation to show that defendant was tried within 270 days of the date the mandate was filed; however, we are of the opinion that section 99-17-1 does not apply for the reasons hereinafter stated.
Some states take the position that under speedy trial statutes, a mistrial constitutes a trial and therefore the statutory period begins anew. Other states hold that when a mistrial results, the speedy trial statute has been complied with and the time for retrial is discretionary with the court. At least one state follows this approach with the additional requirement that the retrial must not be delayed longer than the time limitation provided by the speedy trial statute.
In Ruester v. Turner, 250 So.2d 264 (Fla.1971) the Florida Supreme Court summarized the positions taken by other states with reference to speedy trial statutes after a mistrial and stated:
We now agree with those courts that have determined that if a mistrial results, compliance with the statutory requirements is satisfied. The time for retrial then becomes a matter of discretion with the trial court, which is to be measured by constitutional standards of reasonableness and fairness under the constitutional speedy trial right.... (250 So.2d at 267)
We agree with the conclusion stated in Ruester and hold that if a mistrial results, or if a case is reversed on appeal for retrial, compliance with section 99-17-1 is satisfied. The time for retrial then becomes a matter of discretion with the trial court to be measured by the constitutional standards of reasonableness and fairness under the constitutional right to a speedy trial as enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker the United States Supreme Court announced a four part balancing test involving the following four factors:
4. Prejudice to the defendant.
The Supreme Court, in Barker, promulgated the balancing test because, The balancing test set forth in Barker must be applied on a case by case basis under the particular facts of the case under consideration.
Applying the Barker balancing test, we find that the case was delayed 475 days. Defendant had been twice convicted of murder but apparently was free on bond before her fourth trial because one of the witnesses for the state testified that the defendant moved into the same apartment complex that the witness lived in. The Supreme Court mandate was filed in the Jackson County Circuit Court on August 16, 1977, during the July, 1977 term which convened on July 11. This was an eight week term and only two weeks and four days remained during this term of court after the mandate was filed. Continuances were granted at the next three terms of court which carried the case to the July, 1978 term. At the July, 1978 term the judge presiding at the term had been appointed to act in the place of one of the circuit judges of Jackson County who was ill at that time. The presiding judge recused himself because defendant was a former client of his and he was associated with defense counsel at the time defendant employed defense counsel. The case was tried at the next term of court. We hold that, although there was a long delay from the time the mandate was filed in the trial court until defendant was tried, most of the delay was brought about by continuances which were granted, so we hold defendant was not denied a speedy trial under the first two factors of the balancing test.
It is also noted that the defendant did not assert her right to a speedy trial and she did not allege any prejudice that flowed from trial delay. When the four factors of the Barker balancing test are weighed in this case, we are of the opinion that defendant was not denied her right to a speedy trial.
Defendant next argues that testimony of Mrs. Jo Ann Gibson Long should have been excluded. The witness was placed on the stand and asked if she knew Tom Carlisle, the deceased. She responded, "I can't answer." The court excused the jury and the witness' attorney stated to the court in chambers that the prosecuting attorney was advised that the witness "was endangering her respect" and the witness refused to answer on the grounds it might incriminate her. He stated the witness would refuse to answer every question except her name and address. The court then noted that the witness could only invoke the Fifth Amendment on matters that would incriminate her. He stated that if the court could be shown where any question would be incriminating to the witness or cause her to be in jeopardy of criminal prosecution, he would listen to the attorney. The court noted,
The attorney for the witness then stated that the witness had told the district attorney that she had been treated for drugs in the hospital and that she no longer had any memory of the events that took place at the time of Thomas Carlisle's death. He said he anticipated that the district attorney would charge her with perjury if she stated she did not have any recollection and for that reason he advised her to claim her Fifth Amendment rights. He suggested, "If the judge wants to grant her complete immunity that's in private with the court." He further stated that while the jury was out he wanted to get the ground rules laid as to the proper method for the witness to claim the Fifth. The district attorney then stated that he was willing to grant immunity if she said anything about the homicide that would incriminate her.
The court observed that the witness had testified three times and he could not see where there was any incrimination involved. The witness' attorney then asked, "Will they offer her immunity as to any possible perjury in the past?" The court said that if she had perjured herself in the past he would place her in the hands of the sheriff to await the action of the next grand jury. The jury was returned and the witness was again asked if she knew Tom Carlisle. The witness refused to answer on the grounds that it might incriminate her. The judge again excused the jury and she was again asked if she knew Tom...
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