Corley v. State, 07-KA-59449

• Citation: 584 So.2d 769
• Decision Date: 07 August 1991
• Docket Number: No. 07-KA-59449,07-KA-59449
• Parties: Wilton Wade CORLEY, Jr. a/k/a Bubba Corley v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 769

584 So.2d 769

Wilton Wade CORLEY, Jr. a/k/a Bubba Corley v. STATE of Mississippi.

No. 07-KA-59449.

Supreme Court of Mississippi.

Aug. 7, 1991.

Thomas M. Flanagan, Jr., Lott Franklin Fonda & Flanagan, Greenwood, for appellant.

Mike C. Moore, Atty. Gen. and Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ROBERTSON and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

Wilton Wade Corley, a/k/a "Bubba", and his brother were indicted for burglary in 1986. The Corley brothers were tried in December, 1986, and Jimmy Ray O'Bannon testified against the Corleys. Arthur Crigler was subpoenaed to testify at the trial, but he was not called by the State.

The Corleys' trial resulted in a mistrial, and the case was set for a second trial in January 1987. Both Ray O'Bannon and Arthur Crigler were subpoenaed to testify in the second trial.

Around 9:30 a.m. approximately a week and a half before Corley's second trial, O'Bannon was walking near the post office in Sidon, Mississippi, when he was almost hit by a reddish-colored Ford pick-up truck. O'Bannon saw three males in the truck, and recognized the driver as Corley. Crigler's mother and sister saw this incident. O'Bannon then went to see his brother, who lived nearby.

A short time after O'Bannon's incident, Crigler, who happened to be at O'Bannon's brother's house, decided to leave. As he began to walk down the street, he, too, almost was hit by a reddish-colored truck. O'Bannon and his brother both saw this incident, and Crigler and O'Bannon identified Corley as the driver of truck which almost hit Crigler.

When the truck was gone, O'Bannon and Crigler went to a phone booth and called the sheriff's department. When the sheriff arrived, O'Bannon told him that Corley was driving the truck and two white males were riding with him.

Based on the two incidents, Corley was indicted on two counts of attempted assault. The State, later, reduced the charges to one multi-count indictment for attempting to intimidate a witness.

At trial, Corley denied knowing Crigler and knowing that Crigler had given information against him or intended to testify against him at the second trial. Corley also put on evidence showing that he had left town at approximately 8:30 a.m., the morning of the alleged incident to go fishing.

The jury found Corley guilty on both counts of attempting to intimidate a witness. Corley moved for a new trial or j.n.o.v., but the motion was denied. Corley was sentenced to two (2) years in the custody of the Mississippi Department of Corrections on each count, with said sentences to run consecutively. Additionally, Corley was ordered to pay a fine of $500.00 on each count and court costs. Corley, proceeding in forma pauperis appeals the verdict and sentence raising three errors.

I. WAS CORLEY DENIED HIS RIGHT TO A SPEEDY TRIAL PURSUANT TO MISS.CODE ANN. SEC. 99-17-1?

The record shows that three hundred and forty-three (343) days elapsed between Corley's arraignment and trial. Our speedy trial statute requires that a defendant be brought to trial within 270 days after arraignment "unless good cause be shown, and a continuance duly granted by the Court." Miss.Code Ann. Sec. 99-17-1 (Supp.1990).

Corley's trial was delayed due to a continuance granted to Corley. Generally, delays in bringing a defendant to trial which are caused by continuances granted to a defendant toll the running of the 270 day period and are deducted from the total number of days between arraignment and trial. Flores v. State, 574 So.2d 1314, 1319 (Miss.1990). Corley, however, argues that the continuance did not toll the running of the statutory period on his indictment for intimidating a witness because, due to an administrative error in transferring Corley's indictment from circuit court to county court, the continuance was not granted on the multi-count indictment for attempting to intimidate a witness, but on one of the prior aggravated assault charges that had been dismissed by the circuit court. Due to this error, Corley believes the period should not be tolled as he was not in any way responsible for the delay in the trial on his charge of attempting to intimidate a witness.

Corley relies on Turner v. State, 383 So.2d 489 (Miss.1980), as support for his argument that an administrative error is not sufficient good cause to toll the running of the statute. In Turner, the trial court granted defendant's motion for a psychiatric examination, but the order was never entered on the court docket and was loosely placed in the court file. Turner, 383 So.2d at 490. Approximately nine and a half months later, a new request was filed and the order was entered. Id. By the time the report was returned, the 270 day statutory period had elapsed. Id. This Court found that the State had the responsibility of having a psychiatric examination made in compliance with the order, and the inaction of the State deprived the defendant of his constitutional right to a speedy trial. Id. at 491. We find Turner distinguishable from the instant case because in the instant case the State had no responsibility associated with carrying out either the order of transfer or the order granting a continuance.

In the instant case, the order of transfer was filed with all parties, as well as the circuit court, believing that the two indictments for aggravated assault had been dismissed and that the cause charging Corley with two counts of attempting to intimidate a witness had been transferred. Corley sought, and was granted, a continuance from county court while proceeding under the assumption that he was being charged with intimidating a witness. It was only when the error was discovered that Corley sought to have the continuance construed as applying to the previously dismissed indictments for aggravated assault.

We conclude that Corley did not believe when the cause was transferred to the county court that the transferred charge was for aggravated assault. We further find that Corley was responsible for the delay and that the State showed good cause for not bringing Corley to trial within 270 days. This argument has no merit.

Corley next argues that the time to begin the running of the 270 day period should have been the date of his arraignment on his first indictment because the indictment for aggravated assault and the later indictment for attempting to intimidate a witness arose out of the same transaction and occurrence. Even if Corley had been re-indicted on the same offense, the 270 day period would commence on the date of arraignment of the re-indictment. See, e.g., Moore v. State, 556 So.2d 1031, 1033 (Miss.1990). If, as Corley hypothetically suggests, the State attempts to circumvent the 270 day rule by dismissing an indictment and re-indicting a defendant on a separate charge arising out of the same facts and circumstances, we would reach that issue under the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In this case the issue is moot as Corley does not suggest that the State re-indicted him to circumvent the 270 day rule and Corley limited this assignment to whether the 270 day rule was violated. We find no merit to this assignment of error.

II. DID THE COUNTY COURT ERR BY FAILING TO SEVER THE TWO COUNTS FOR ATTEMPTING TO INTIMIDATE A WITNESS IN THE INDICTMENT AGAINST CORLEY?

The State charged Corley in a multi-count indictment with two counts of attempting to intimidate a witness. Corley filed a demurrer. At a pre-trial hearing, the county court concluded that the demurrer was untimely filed, and alternatively the multi-count indictment was proper because there was a common scheme or plan and Corley would not be prejudiced by trying the two offenses in one trial.

Historically, this Court prohibited multi-count indictments until 1986 when the Legislature adopted a multi-count indictment statute which this Court later adopted. McCarty v. State, 554 So.2d 909, 914 (Miss.1989). In allowing a multi-count indictment, this Court agreed with the Legislature that the offenses must be based on the same act or transaction, or be based on two or more acts or transactions, connected together or constituting parts of a common scheme or plan. McCarty, 554 So.2d at 914-916; see also, Miss.Code Ann. Sec. 99-7-2 (Supp.1990). We have been, and remain, unwilling to allow separate and distinct offenses to be tried in the same criminal proceeding. We do so in order to avoid potential problems of a jury finding a defendant guilty on one unproven count due to proof of guilt on another, or convicting a defendant based upon the weight of the charged offenses, or upon the cumulative effect of the evidence. See generally, Gray v. State, 549 So.2d 1316, 1322 [citing U.S. v. Foutz, 540 F.2d 733, 738, n. 5 (4th Cir.1976) and 2 W. LaFave and J. Israel, Criminal Procedure Sec. 17.1(b) at 354-55 (1984) ].

When a defendant raises the issue of severance, we recommend that a trial court hold a hearing on the issue. The State, then, has the burden of making a prima facie case showing that the offenses charged fall within the language of the statute allowing multi-count indictments. If the State meets its burden, a defendant may rebut by showing that the offenses were separate and distinct acts or transactions. In making its determination regarding severance, the trial court should pay particular attention to whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, ¹ and whether the crimes are interwoven. See Allman v. State, 571 So.2d 244, 248 (Miss.1990); McCarty, 554 So.2d at 914-916.

If a trial court follows this procedure, this Court will review the trial court's decision under the abuse of discretion standard giving due deference to the trial court's findings. McCarty, 554 So.2d at 916. On review, we will defer to the trial...