DeLoach v. State

• Decision Date: 08 October 1998
• Docket Number: No. 97-KA-00685-SCT.,97-KA-00685-SCT.
• Parties: Bobby Ray DeLOACH v. STATE of Mississippi.
• Court: Mississippi Supreme Court

722 So.2d 512

Bobby Ray DeLOACH v. STATE of Mississippi.

No. 97-KA-00685-SCT.

Supreme Court of Mississippi.

October 8, 1998.

Anthony J. Buckley, Laurel, Attorney for Appellant.

Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.

Before PRATHER, C.J., and JAMES L. ROBERTS, Jr. and MILLS, JJ.

JAMES L. ROBERTS, Jr., Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. On July 10, 1995, the Grand Jury of the Second Judicial District of Jones County, Mississippi, indicted Bobby Ray DeLoach (hereinafter "DeLoach") for the crime of possession of cocaine pursuant to Miss.Code Ann. § 41-29-139. After presentation of preliminary discovery and preliminary motions from the defense and prosecution, the DeLoach trial commenced with a jury on May 27, 1997 with the Honorable Billy Joe Landrum presiding. The trial concluded the same day with a guilty verdict of possession of cocaine being returned. The lower court sentenced DeLoach to three (3) years with the M.D.O.C. with one (1) year suspended and two (2) to serve. DeLoach was also sentenced to pay a fine of $10,000.00 with $5,000.00 suspended. DeLoach timely filed his Motion for a New Trial which was denied by the trial court. It is from the foregoing events that DeLoach brings this timely appeal asserting the following issues:

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING, WITHOUT ARTICULATION, THE DEFENDANT'S MOTION TO DISMISS ON GROUNDS OF A VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT SPEEDY TRIAL RIGHTS AND WITHOUT EVEN REQUIRING THE STATE TO RESPOND?

II. WHETHER A UNIFORMED PRIVATE SECURITY GUARD, EMPLOYED AND ACTING UNDER AUTHORITY OF A PUBLIC HOUSING AUTHORITY, SHOULD BE REQUIRED TO MIRANDIZE AN INDIVIDUAL UPON PROBABLE CAUSE THAT A CRIME IS BEING COMMITTED?

III. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO ASK THE DEFENDANT, OVER DEFENSE OBJECTION, IF HE HAD EVER BEEN CONVICTED OF A PRIOR FELONY AND IN NOT CONDUCTING A WEIGHING TEST?

STATEMENT OF THE FACTS

¶ 2. DeLoach was arrested at the Laurel Housing Authority property for possession of cocaine on February 6, 1995. He filed a motion for a speedy trial on September 18, 1996, while he was incarcerated at Parchman on a burglary charge. DeLoach was released from Parchman on February 17, 1997. He was arraigned a week after his release from Parchman for the crime of possession of cocaine and then tried on May 27, 1997. There is record evidence that DeLoach's court appointed attorney accepted a trial date as well as refused earlier trial dates because of scheduling conflicts with other cases he was trying. He presented a speedy trial motion prior to trial which the trial court denied prior to the State providing reasons for the delay. Neither DeLoach nor his attorney stated any prejudice to DeLoach as a result of the delay in trying him or that the state had attempted to gain any tactical advantage over him by delaying the case for trial.

¶ 3. After opening statements from the State, Patrick Paige, a private security officer assigned to patrol the Laurel Housing Authority was called to testify. He testified to receiving a call concerning a speeding vehicle on the road near the Housing Authority property. When he went to investigate, he saw a car parked on Housing Authority property on Park Street. After the people got out of the car, Paige recognized DeLoach who was a passenger of the car. Paige knew that DeLoach was not allowed on the property as a result of a ban that had occurred a few months prior to this incident.

¶ 4. Paige further testified that he told DeLoach that he was not supposed to be on Laurel Housing property. He patted DeLoach down and asked him whether he had anything else on him. DeLoach responded that he did have some drugs on him and proceeded to take some drugs out of his shoe. A Laurel police officer was called on the dispatcher. After the alleged drugs had been placed on the top of the car, Officer Kevin Jackson with the Laurel Police Department took DeLoach into custody.

¶ 5. The second State's witness was John L. Smith, also employed as security for the Laurel Housing Authority. He testified that DeLoach was banned from the Laurel Housing Authority on December 19, 1994. This notice was hand delivered to him by Smith. He also testified that he was working on the night in question with Paige. He testified about getting a call about a car speeding and upon investigating found a car parked at 630 Park Street which was on Housing Authority property. He stated that Paige told DeLoach that he was not supposed to be on housing property. After patting him down, Paige asked him if he had anything on him. Smith testified that it was at this time that he saw DeLoach reach in his shoe and pull out some cocaine. The Laurel police were called and DeLoach was given his Miranda rights and placed in a police car. On crossexamination, Smith denied that Paige had asked DeLoach for drugs when DeLoach handed him the cocaine. He also testified that the guard on the housing authority property had the power to detain people for trespassing until the Laurel police arrive.

¶ 6. The next State's witness was Officer Earl Reed of the Laurel Police Department. His testimony was of his response to the call to assist the security officers. He also testified that Paige had placed DeLoach under arrest for trespass, and that Paige located the drugs on DeLoach. He further testified that Officer Kevin Jackson arrived on the scene and took possession of the cocaine. Reed testified that he transported DeLoach to the Laurel Police Department.

¶ 7. Kevin Jackson was the fourth witness on behalf of the State. He testified as to his field test and to the positive results of the substances found in possession of DeLoach. He also testified that he was the officer that actually placed DeLoach under arrest and read DeLoach his Miranda rights.

¶ 8. The State's fifth and final witness was Patricia Barnes of the State Crime Laboratory in Jackson, Mississippi. Her testimony was expert testimony in her capacity as a forensic scientist specializing in drug analysis. She testified as to her conclusions in testing the substance found on DeLoach. She determined that the sample contained cocaine. Upon conclusion of Barnes' testimony, the State rested.

¶ 9. After the defense's Motion for a Directed Verdict, which was overruled, the defense called DeLoach to testify on his own behalf. DeLoach testified that he went to the Laurel Housing Authority to visit a friend, and that he was never notified that he was banned from the area. He testified that Paige approached the vehicle and he got out of the vehicle to greet him. He also said that Paige told him if he had any drugs on his person, he needed to give them to Paige because drug dogs were coming to the scene. He was searched for weapons and detained until the police came. He claimed the cocaine was for his personal use and that he was a drug addict at the time of the incident.

¶ 10. On cross examination, DeLoach admitted that he used cocaine on the night in question and that he gave what he had left to security officer Paige. He admitted that he was not employed and that the cocaine he possessed was "found" rather than purchased. He also admitted to buying cocaine in the past and to having previously been convicted of a felony. After DeLoach's testimony, the defense rested.

¶ 11. After the usual deliberation as to the appropriateness of certain jury instructions, closing arguments were delivered to the jury. The jury returned a verdict of guilty of possession of cocaine.

DISCUSSION OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING, WITHOUT ARTICULATION, THE DEFENDANT'S MOTION TO DISMISS ON GROUNDS OF A VIOLATION OF THE DEFENDANT'S SIXTH AMENDMENT SPEEDY TRIAL RIGHTS AND WITHOUT EVEN REQUIRING THE STATE TO RESPOND?

¶ 12. DeLoach argues that his speedy trial rights were violated because the State did not try him until some two years after his arrest. He further argues that the trial court erred by not requiring the State to give "good cause" for the delay and by its failure to articulate a reason for the denial of the motion. Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court's standard of review, this Court will uphold a decision based on substantial, credible evidence. Folk v. State, 576 So.2d 1243, 1247 (Miss.1991). If no probative evidence supports the trial court's finding of good cause, this Court will ordinarily reverse. Folk v. State, 576 So.2d at 1247. The state bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990).

¶ 13. The facts pertinent for consideration of DeLoach's allegation of constitutional violation of his right to a speedy trial are necessarily recited.

CHRONOLOGY OF EVENTS

DATE AND CORRESPONDING EVENTS

2/6/95 DeLoach arrested. 7/17/95 DeLoach indicted. 9/18/96 DeLoach filed speedy trial motion while in the Mississippi State Penitentiary on a burglary charge. 2/17/97 DeLoach released from prison concerning the burglary charge. 2/24/97 DeLoach arraigned and trial date set for 3/25/97 3/6/97 DeLoach's motion to dismiss and motion for continuance filed. 3/24/97 DeLoach's motion for continuance and additional time within which to enter into plea negotiations filed. 3/28/97 Order continuing case entered and motion to dismiss overruled. 5/9/97 Motion for court to reconsider filed. 5/19/97 Order overruling Motion to reconsider entered. 5/25/97 Trial began. (838 days since arrest; 91 days since arraignment)

¶ 14. The right to a speedy trial attaches at the time of the accused's arrest, indictment, or information. Smith v. State, 550 So.2d 406, 408 (Miss.1989). If the Court finds a constitutional speedy trial violation, the sole remedy is to reverse the trial court's decision and dismiss the charges. DeLoach's constitutional right...