Davis v. State

• Citation: 406 So.2d 795
• Decision Date: 09 September 1981
• Docket Number: No. 52659,52659
• Parties: Malcolm Joe DAVIS v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 795

406 So.2d 795

Malcolm Joe DAVIS v. STATE of Mississippi.

No. 52659.

Supreme Court of Mississippi.

Sept. 9, 1981.

Opinion Modified On Denial of Rehearing Dec. 16, 1981.

F. Kent Stribling, Dixon L. Pyles, Pyles & Tucker, Jackson, David R. Smith, Smith, Smith, Tate & Stuart, Poplarville, for appellant.

Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PATTERSON, Chief Justice, for the Court:

In the Circuit Court of Pearl River County, Malcolm Joe Davis was tried and convicted of rape and sentenced to thirty years in the Mississippi Department of Corrections. Davis appeals, assigning several errors.

1. The failure of the court to grant the defendant a speedy trial violated his constitutional rights under Amendment VI of the United States Constitution, aggravated his mental condition because the prolonged incarceration prior to his trial was unduly oppressive, maximized his anxiety and concern which accompanied the public accusation of the appellant, and greatly impaired his ability to defend himself.

2. The conduct of the trial judge amounted to an intrusion into the jury's fact finding role because it structured the verdict of guilty; it relieved the state of establishing "beyond a reasonable doubt" the charge against the defendant in the indictment; and it shifted to the defendant the burden of persuasion of his innocence.

3. The defendant's rights under Amendments VI and XIV of the Constitution of the United States and under MCA § 13-5-2 (1975) were violated by the failure of the state to select the special venire from a fair cross section of the population of Pearl River County.

4. The procurement, use and admission into evidence of the several involuntary confessions deprived the defendant of the essential elements of due process guaranteed by Amendment V of the United States Constitution, of the right to the effective assistance of counsel in violation of Amendment VI of the United States Constitution, and of the protection afforded by the "Mississippi Criminal Rules of Circuit Court Practice."

5. Davis' right to a fair trial under Amendments V, VI, and XIV of the United States Constitution were abrogated by the trial court's actions:

(a) in refusing to grant a mistrial on the motion of the defendant when Mason Sistrunk, a witness for the state, purposely exhibited, displayed and exposed certain prejudicial objects to the jury before the objects were admitted into evidence; and, thereafter, when the state failed to offer the prejudicial objects into evidence, denying the defendant the right to cross-examine the witness and procure testimony favorable to the accused;

(b) in refusing to grant a mistrial when the assistant prosecutor was allowed over objection to argue and comment on the failure of the defendant to testify in his own behalf;

(c) in refusing to grant the motion of the defendant to dismiss and discharge him at the conclusion of the state's case when the proof of the elements of the corpus delicti were wholly lacking, and again refusing at the conclusion of the trial to dismiss and discharge the defendant;

(d) in refusing to sustain the objections of the defendant to certain testimony of the state, and in sustaining the objections of the state to the evidence of the defendant.

6. The court abused its discretion in permitting Sheriff L. W. Holliday to serve as a bailiff and remain in the courtroom to hear the testimony of other witnesses and mingle with the other witnesses in the witness room, and in permitting him to testify over the objection of the defendant after all witnesses had been placed "under the rule" at the outset of the trial.

The prosecutrix, on the morning of March 9, 1979, was raped, after a struggle, in her home by a man wearing knee-high stockings over his head and hands. After the rape the man led the prosecutrix into the bathroom and made her take a douche. After he left, the prosecutrix went to her husband's office and with him to the police. She identified her assailant in court as Malcolm Davis, a man who had been to her home to repair the washing machine on a previous occasion. There were witnesses who recalled seeing, just before the time of the rape, Malcolm Davis walking near the prosecutrix' home and his truck parked in the vicinity of the home. Four knee-high stockings were found under a bridge near the prosecutrix' house. The containers were found in Davis' truck. A checkout girl in a local market recalled selling the stockings to Davis a few days before the rape.

Davis was taken into custody about 1:50 p. m. on March 9, 1979. Although Davis was advised of his Miranda rights, he signed a waiver of those rights and requested counsel. Deputy Sistrunk phoned Davis' attorney and Davis conferred with him over the phone. Some interrogation was continued that afternoon, but no prejudicial or incriminating statements were obtained from Davis, although Deputy Sistrunk later testified at trial that at some time in the afternoon he encouraged Davis to cooperate. Sistrunk testified:

... If you will talk to us, we'll cooperate with you every way we can, and I told him, I said, "Do you want a lawyer, there's the phone. I'm not going to be hostile to you in anyway." I have a tendency to talk boisterous to people. That's my nature, and a lot of people take me wrong in doing that, but I'm known to be loud, and I was possibly was loud with him. I'm always loud.

... I told him it would be best. It would make it lighter on yourself. I always feel that way.

At 11:00 p. m. on the same day, Sheriff Holliday and Auxiliary Deputy McCaleb talked with Davis when he was again advised of his rights and again signed a waiver of those rights. From this questioning, the sheriff obtained two signed statements from Davis admitting the rape. Sheriff Holliday testified that Davis did not make a request to contact his attorney, explaining as follows: "Whenever I read him his rights, and he signed that waiver of rights, he told me that he had spoken to his attorney, but he was still willing to talk to me at that time." Davis was indicted for rape on March 16, 1979, and arraigned on November 15, 1979. Trial began April 10, 1980.

Although Davis assigns numerous errors in the trial court, we are of the opinion only five of these errors warrant discussion as the remaining errors are believed to be without merit.

First, Davis contends the trial court failed to grant a speedy trial, violating his sixth amendment rights. Specifically, Davis asserts undue delay from the time of indictment, March 16, 1979, to the time of arraignment, November 15, 1979, and to the time of trial, April 10, 1980.

On April 3, 1980, Davis filed a motion to dismiss the indictment based on the state's failure to bring him to trial within the 270 day time period of MCA § 99-17-1 (Supp.1980). This motion was overruled because the delay was the result of continuances granted.

We are of the opinion there was no untimely delay between the arraignment and trial date. MCA § 99-17-1 (Supp.1980) provides that "(u)nless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned."

Since the time prior to arraignment is not computed to determine compliance with this statute and less than 150 days passed between the date of arraignment and the date of trial, we conclude the State adequately met the 270 day limitation as set forth in § 99-17-1. See Speagle v. State, 390 So.2d 990 (Miss.1980).

Moreover, the delay of 150 days is not unreasonable in view of the fact that the court below has two terms of criminal court each year, the March and November terms. Defendant cannot be heard to complain about the first continuance from the March 1979 to the November 1979 term because defense requested it to complete psychological tests of defendant. The State requested and was granted the continuance from the November 1979 term to the March 1980 term, so this delay was not incurred by the defendant; however, the continuance, in our opinion, was not unreasonable because the trial court found the District Attorney was required to be before the grand jury the entirety of that term and there were no assistant district attorneys to try the case at this term. Although the appellant now contends that he objected to this continuance we are unable to find any support for it in the record. We, therefore, think both continuances were necessary and reasonable and within the sound discretion of the trial judge and surely not violative of MCA § 99-17-1 (Supp.1980), which permits continuances for good cause, as here.

Turning to the eight month delay from indictment to arraignment, Davis asserts it was the custom of the trial judge not to arraign criminal defendants unless they were to be tried at the term. Again there is no evidence of this in the record. We, therefore, are of the opinion the delay did not infringe on Davis' constitutional right to a speedy trial. We emphasize, however, the importance of early arraignment within a reasonable time. Although there is no evidence in the record to support the argument, the procedure of arraigning criminal defendants at the term set for trial, if true, has the potential to violate the defendant's right to a speedy trial through the four prong balancing test set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 101 (1972), and adopted in Wells v. State, 288 So.2d 860, 862 (Miss.1974), namely: "(l)ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."

Presently, on balance, we are unable to state there was error in not dismissing the indictment. Although there was some testimony that the appellant's incarceration contributed to both his mental and physical deterioration, it was not conclusive upon the...