Dies v. State

• Decision Date: 20 April 2006
• Docket Number: No. 2004-KA-01782-SCT.,2004-KA-01782-SCT.
• Citation: 926 So.2d 910
• Parties: Kirby DIES a/k/a Kirby Donovan Dies v. STATE of Mississippi.
• Court: Mississippi Supreme Court

926 So.2d 910

Kirby DIES a/k/a Kirby Donovan Dies v. STATE of Mississippi.

No. 2004-KA-01782-SCT.

Supreme Court of Mississippi.

April 20, 2006.

COPYRIGHT MATERIAL OMITTED

Gary Street Goodwin, Columbus, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorneys for appellee.

EN BANC.

COBB, Presiding Justice, for the Court.

¶ 1. Kirby Donovan Dies is before this Court on appeal of his conviction for possession of cocaine in the Lowndes County Circuit Court. He was sentenced to serve eight years in the custody of the Mississippi Department of Corrections, and pay a $50,000 fine as habitual offender. On appeal, Dies argues that the trial court erred: (1) by overruling the defendant's pretrial motion to dismiss for violation of the statutory 270-day rule; and (2) by denying the defendant's motion to suppress evidence obtained as it was the result of an illegal seizure. Finding no merit to these arguments, we affirm the trial court.

FACTS

¶ 2. During the early morning hours of May 1, 2002, Agents Brent Young and Wes Stapp of the Mississippi Bureau of Narcotics (the agents) were dispatched to the Office Sports Bar (the bar) in Columbus, Mississippi. They had received a call about a "female of interest" who was either in possession of narcotics or trying to sell narcotics at that location. Upon arriving at the bar they parked in the parking lot located at the rear of the building. As they were pulling into the parking lot, Young noticed three individuals, one female and two males, sitting in a red camaro near the corner of the building.

¶ 3. The agents decided to wait for the individuals in the red camaro to exit their vehicle and enter the bar before they did the same, because Stapp had been a uniformed police officer in Columbus, and was concerned that he might be recognized. Other than the gender of the individuals in the vehicle, the agents were not able to ascertain any other descriptive information. The agents exited their vehicle and walked to a nearby window to look inside the bar to see if a woman matching the description that they were given was present. They did not see any such woman and therefore returned to their vehicle.

¶ 4. As they were returning to their vehicle they passed near the red camaro and noticed the distinct smell of burnt marijuana. The agents traced the smell back to the red Camaro which had its passenger window rolled-down one to two inches, and then contacted the Columbus Police Department and requested that a K-9 unit come to meet them. The agents agreed that they wanted to investigate further but not in the bar's parking lot. They contacted the Columbus Police Department because they wanted to conduct a traffic stop away from their present location. The agents testified that the bar was about to close and the parking lot would soon be crowded with patrons, some under the influence of alcohol. Therefore, they desired a confrontation away from this environment. Further, they needed the Columbus Police Department's assistance because they were in an unmarked vehicle and lacked the blue lights necessary to indicate a traffic stop.

¶ 5. Officer Wade Beard of the Columbus Police Department met the agents at the Creekstone Chevron, located across the street from the bar, where they had a full view of the exit and entrance to the parking lot. The agents told Beard that they smelled burnt marijuana in a parked car and they wanted him to conduct a traffic stop along the roadway after the car left. They gave him a full description of the car and alerted him when it left. Beard followed the red camaro for a short period of time and then initiated his blue lights. The car did not immediately respond and continued down the street for approximately 1/10th of a mile before pulling into a driveway of a residence that joined the road. The agents followed Beard but remained in support of him at a safe distance. Once stopped, an individual, later determined to be Dies, exited the driver's side of the red camaro and fled on foot into the wooded area along the driveway. The agents pursued him, first by car and then on foot, into the wooded area.

¶ 6. The individual was located in the woods and placed under arrest for failure to yield, disobeying a police officer and resisting arrest. As the agents returned to the road with the arrested subject, they were informed by another officer that someone had dropped something on the ground. On the ground near the side of the road Young found several bags of a substance that later was identified as marijuana. There were five bags, four of which contained marijuana and one that was empty. Young then conducted a search incident to arrest of the subject and on his person found a sixth bag of a substance, which was in similar packaging to the ones that were found lying on the ground, and also discovered rolling papers and a powdery white substance which was later identified as cocaine.

I. THE 270-DAY RULE

¶ 7. Dies asserts that his statutory right to a speedy trial under Miss.Code Ann. Section 99-17-1 (Rev.2000) was violated, but does not assert a constitutional violation. The statute, commonly referred to as the 270-day rule, reads as follows:

Unless 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. Miss.Code Ann. § 99-17-1 (Rev.2000). When the accused is not brought to trial within 270 days, absent good cause, the defendant is entitled to dismissal. Reynolds v. State, 784 So.2d 929, 933 (Miss. 2001). Dies alleges that the State violated the 270-day rule when he was indicted on August 9 and arraigned on August 23, 2002 but not tried until August 23, 2004. Therefore, Dies argues he is entitled to have his conviction reversed and the indictment dismissed with prejudice. We disagree, based on our careful review of the record, and the analysis which follows.

¶ 8. This Court has created a two-step test for dealing with 270-day rule analysis. The first step is to determine the total number of days between arraignment and trial.¹ Manix v. State, 895 So.2d 167, 174 (Miss.2005); Sharp v. State, 786 So.2d 372, 378 (Miss.2001). For this purpose, the date of arraignment is not counted but the date of trial and weekends are counted unless the 270th day falls on a Sunday. Adams v. State, 583 So.2d 165, 167 (Miss.1991). The second step is to consider each delay separately, because only those delays attributable to the State count toward the 270 days. Manix, 895 So.2d at 174; Baine v. State, 604 So.2d 258, 264 (Miss.1992). For the second step this Court must determine which party is responsible for the delay and their reason. Sharp, 786 So.2d at 377.

¶ 9. The August 23, 2002, arraignment order was signed as "agreed" by state and defense counsel, and the trial was set for December 3, 2002. "The necessary time for the accused and his counsel to prepare his trial must necessarily be left largely to the sound discretion of the trial judge, bearing in mind the facts and circumstances of the particular case." Sharp, 786 So.2d at 378 (quoting Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991); Gilmore v. State, 225 Miss. 173, 189, 82 So.2d 838, 846 (1955)). This time period does not appear to be overly lengthy for preparation of a drug related offense and therefore does not count against either the State or Dies. See Sharp, 786 So.2d at 378. The trial court docket reflects that an agreed order of continuance was filed on December 4, 2002, apparently referring to an agreed order entered that date, setting Dies' motion for a suppression hearing for February 10, 2003. A subsequent order, filed February 27, reset the suppression hearing for May 6, 2003, and counsel for both defense and prosecution agreed. The record is silent as to any hearing² on May 6, which was a motion day, but an agreed order was signed and entered on May 13, 2003, stating that the state's motion for trial setting, joined by the defendant, must be continued due to "case not set for trial/continued from motion day", and setting for trial on May 27. Although the court docket indicates that an agreed order of continuance was signed and entered, nunc pro tunc, on May 30, 2003, continuing the trial date from May 27, 2003, until August 26, 2003, the order itself does not indicate agreement. However, the order states as cause for the continuance, that "the State was in trial in another cause, another Judge was not available to hear another jury trial, and Friday, May 30, 2003, is the last day of the present term of Circuit Court." The court then ordered that the "cause be continued to the next term" and rescheduled the trial for August 26, 2003. The same problem arose on August 26, and another order of continuance was signed and filed, nunc pro tunc, on September 5, 2003, which continued the trial until November 18, 2003, similarly stating "the trial court was in trial on another cause, and there were no additional trial dates available in this term of court to hear this case." Dies argues this delay was attributable to the State because the State can choose which case to bring and the trial court had the right to extend its term.

¶ 10. However, in both instances, the trial court found the motion was well taken and issued the continuance. No challenge to these continuances, nor the reason they were ordered, was raised by Dies. This Court has held that even though the statutory 270-day rule exists to protect a defendant's rights, it does not relieve the defendant from the obligation of vigorously pursuing them. Walton v. State, 678 So.2d 645, 650 (Miss.1996). Dies failed to object to the State's requests for continuances and only pursued his speedy trial right on June 3, 2004, after nine continuances had been granted. Although a defendant may have the right to procure a speedier trial than that afforded to...