Dedeaux v. State

• Decision Date: 03 February 1988
• Docket Number: No. 57479,57479
• Citation: 519 So.2d 886
• Parties: Curley DEDEAUX v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 886

519 So.2d 886

Curley DEDEAUX v. STATE of Mississippi.

No. 57479.

Supreme Court of Mississippi.

Feb. 3, 1988.

Thomas D. Berry, Jr., Gulfport, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.

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

ZUCCARO, Justice, for the Court:

Curley Dedeaux was convicted of the sale of a controlled substance by the Circuit Court of Harrison County and sentenced to thirty (30) years imprisonment, with said sentence to run consecutive with a prior sentence of fifteen (15) years for a total of forty-five (45) years to serve. Dedeaux appeals this adverse verdict and sentence making five (5) assignments of error.

FACTS

On December 12, 1984, Roy Sanderfer, an agent with the Mississippi Bureau of Narcotics, was acting in an undercover capacity. On the above date, in a pre-arranged meeting, Agent Sanderfer purchased cocaine from Curley Dedeaux, a black man, for $300.00. The transaction took place in Pass Christian. Another agent was strategically placed so as to observe the transaction.

Not until September 19, 1985 was Dedeaux formally charged with selling cocaine by the Harrison County Grand Jury. There was no arrest or preliminary hearing carried out prior to the rendition of the indictment against appellant. This was done due to the fact that there was an ongoing undercover drug operation being conducted on the Mississippi Gulf Coast that would have been "blown" if Dedeaux had been arrested or charged at an earlier date. Following the indictment, Dedeaux was arrested on October 4, 1985.

In the trial below, conducted February 24-25, 1986, two (2) law enforcement officers testified that Dedeaux had sold the cocaine, and that he had, following the arrest, made an oral confession to the charge. Appellant denied all charges against him. At the end of the trial, a jury verdict of guilty was returned, and appellant was sentenced to thirty (30) years imprisonment, with the sentence to run consecutive with a fifteen (15) year sentence from a prior conviction for a total of forty-five (45) years to serve. From this adverse determination, Dedeaux perfected his appeal to this Court.

I. DID THE LOWER COURT ERR IN OVERRULING APPELLANT'S MOTION TO STRIKE THE JURY PANEL ON THE GROUND THAT THE STATE IMPERMISSIBLY USED ITS PEREMPTORY CHALLENGES TO STRIKE ALL MEMBERS OF APPELLANT'S RACE, THE BLACK JURORS?

In the trial below, the State utilized four (4) of its peremptory challenges to strike all four (4) remaining black members of the final jury panel made up of twenty-four (24) persons. Dedeaux entered a timely motion that the jury panel be stricken on the grounds that the State "systematically and arbitrarily" excluded members of the black race, wherein a black was being tried, for no reason through the use of peremptory challenges. The State upon request of Dedeaux refused to give any reason why The present case was tried in the latter part of February, 1986. On April 30, 1986, the United States Supreme Court rendered its decision in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Under Batson, a state criminal defendant can establish a prima facie case of the impermissible exclusion of black jurors through use of peremptory challenges by showing: (1) that he is a member of a "cognizable racial group," (2) that the prosecutor has exercised peremptory challenges toward the elimination of veniremen of the defendant's race and (3) that attendant facts and circumstances infer that these challenges were made for the purpose of striking minorities from the jury. Batson, 476 U.S. at 94-98, 106 S.Ct. at 1722-1723, 90 L.Ed.2d at 87. Further, the defendant may rely on the fact, in making his claim, that peremptory challenges constitute a jury selection practice that provides "those to discriminate who are of a mind to discriminate." Id.

the black members of the panel were stricken other than stating that such was not racially motivated. The lower court declined to make the State give its reasons for utilizing its peremptory challenges in such a manner stating, "... I can't make either one of you, under the law to my knowledge, state why you struck somebody peremptorily."

When the defendant has made a prima facie case in accord with the above standard, the burden of proof shifts to the State to come forward with a racially neutral explanation for each of the challenges. The explanation must be related to the particular case being tried. Batson, supra. The above stated Batson reasoning has been recognized and adopted by this Court. See Harper v. State, 510 So.2d 530 (Miss.1987) and Williams v. State, 507 So.2d 50 (Miss.1987).

As seen from the facts of the trial below, Dedeaux properly put the improper use of peremptory challenges to exclude blacks into issue, pursuant to Batson, supra. As such, the State erred when it refused to provide a neutral explanation for each of the challenges. This is not to place fault with the State for not providing or the court for not requiring neutral reasons, because Batson had not been decided at the time of trial. But, due to the fact that Batson has been given retroactive effect to all cases pending on direct review or not yet final, Griffith v. Kentucky, 479 U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Harper, supra; Williams, supra, it must necessarily be the governing law of the case sub judice. In a retroactive application of Batson the case may be remanded to the trial court for a hearing in which the State is afforded the opportunity to come forward with neutral explanations for each black juror stricken by peremptory challenge. This is the course we must ultimately follow today.

II. WAS DEDEAUX DENIED A SPEEDY TRIAL?

Appellant argues that his right to a speedy trial under the Sixth Amendment of the United States Constitution was violated due to the fact that the crime for which he was charged (sale of cocaine) occurred on December 12, 1984, and he was not indicted until September 19, 1985. Further, no arrest was made until October 4, 1985. As such, there was a delay of approximately ten (10) months from the time of the criminal act to the charge and arrest. The State counters Dedeaux's argument by explaining that the indictment was not handed down until September, 1985 due to the fact that there was an ongoing undercover drug operation in process on the Mississippi Gulf Coast, which would have been "blown" if appellant had been arrested or indicted at an earlier date.

This Court has stated that a simple delay between the date of an offense and the date of an indictment is not per se reversible error, particularly when the reason for the delay (as in the case sub judice) is for the purpose of concealing the identity of an undercover agent for a reasonable period of time so that he may continue to work effectively as an agent. Campbell v. State, 309 So.2d 172 (Miss.1975); Page v. State, 295 So.2d 279 (Miss.1974). But, as recognized and adopted by the Court in

                both Page and Campbell, the determination of whether or not a defendant's right to a speedy trial has been violated must be measured by the four (4) part balancing test espoused by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).  The proper inquiry is:  (1) what was the length of delay;  (2) what was the reason for the delay;  (3) did the defendant assert his right to a speedy trial;  (4) was the defendant prejudiced by the delay.  Page, supra;  Campbell, supra.   In the present case, there was a ten-month delay caused by the State's pursuance of a continuing undercover operation.  Dedeaux did not assert his right to a speedy trial until the first day of the trial below.  Finally, the only apparent prejudice suffered by appellant as a result of the delay was that he could not remember where he was on the date of the charged offense, December 12, 1984.  This did not prevent Dedeaux from absolutely denying that he had anything to do with any drug transaction.  Appellant's disability to remember his whereabouts on December 12th may have adversely affected the credibility of his absolute denial;  nevertheless, all of the above factors are balanced together as required by the Barker case, it can hardly be said that Dedeaux's right to a speedy trial was denied. 1  The assignment of error is without merit
                

III. DID THE LOWER COURT ERR IN ALLOWING AN ORAL CONFESSION INTO EVIDENCE?

At trial, the State sought to prove that immediately after the October 4, 1985 arrest was effected, while in the police car driving to the station, Dedeaux orally confessed to selling cocaine to Agent Sanderfer on December 12, 1984. Dedeaux promptly made a motion to suppress the statement, and a hearing on appellant's motion was held. During the hearing, Agent Sanderfer testified that Dedeaux was given his full Miranda warnings. Subsequently, Dedeaux stated to Sanderfer that there was no need to fight all of the drug-sale charges against him, because he and another person were the parties that sold the drugs to him (Sanderfer). Further, Sanderfer testified that Dedeaux's statement was not the product of any promises, threats, or coercion, and that the statement was voluntarily and freely given. Another police officer, Sergeant Clay McDonald corroborated all of Sanderfer's testimony as set forth above. On the contrary, Dedeaux flatly denied ever giving the...