Flores v. State
| Citation | 574 So.2d 1314 |
| Decision Date | 19 December 1990 |
| Docket Number | No. 07-KA-58937,07-KA-58937 |
| Parties | Raul Rolando FLORES and James Ray Vanetten v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
G. Gilmore Martin, Martin & Sherard, Vicksburg, for appellants.
Mike C. Moore, Atty. Gen., Charles W. Maris, Jr. and Deirdre McCrory, Sp. Asst. Attys. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and ANDERSON and PITTMAN, JJ.
This is an appeal from the Circuit Court of Hinds County, wherein the appellant, James Ray VanEtten was convicted of conspiracy to distribute more than one kilogram of marijuana and sentenced to fifteen years imprisonment. Now, VanEtten appeals to this Court assigning four errors. Finding that only one assignment has merit and requires us to reverse this case, we address the following:
THE COURT ERRED IN NOT DISMISSING THE INDICTMENT FOR FAILURE
ARRAIGNMENT
During this trial six witnesses testified. In addition to the two defendants, three officers and another co-conspirator (co-defendant), and Bobby Layton took the stand.
At the time of the conspiracy Layton lived in Edwards, MS. When the trial was held Layton had known defendant for approximately eleven years. Layton testified that VanEtten came to him in December 1983 to borrow $300 so that he could go to Texas to "score some marijuana." In addition to repayment, Layton was to receive more money and all the marijuana he wanted to smoke. VanEtten went to Texas and returned with nothing.
A month or so later Layton and VanEtten went to Texas in VanEtten's van to score (pick up) some marijuana to sell. They went to an apartment in Pasadena, Texas, a suburb of Houston. VanEtten was to get payments from what he sold, and Layton was to receive payment for storing the marijuana in his home. He did not know of what other arrangements VanEtten may have made with the people in Texas. Layton and VanEtten returned to Edwards. They kept the marijuana at Layton's home. Periodically VanEtten would come to Layton's home to take some to sell.
Layton and VanEtten took another trip to Texas in April 1984. This time they went in VanEtten's car. Joining them was VanEtten's friend, Tink. VanEtten had asked Layton for more money, but Layton chose to travel with him instead. Again, Layton was to get some payments, but he was also to get payment in kind--all the marijuana he wanted to smoke.
When they arrived in Pasadena, they went to a bar where VanEtten made some phone calls. A few hours later Flores joined them. It was Layton's impression that Flores was the connection to "score some weed." After they left the bar, Layton, Tink, VanEtten and Flores went to the same apartment where Layton and VanEtten had gone during their first visits to Texas. While they were at the apartment they were joined by a Roy and Migel. During the night they loaded two suitcases with about thirty pounds of marijuana, and loaded them into the car for the return trip to Edwards.
According to Layton, Migel was to ride back with him and Tink to make sure the marijuana arrived in Vicksburg. Flores, however, was to meet the parties in Jackson the following day. He was coming to Jackson to collect money from the sale of the marijuana, which was stored at Layton's house. Of course, Layton was to be paid some money, but he was also allowed to smoke what he wanted.
When they arrived at his home Layton stored the marijuana in his bedroom closet. Migel remained at Layton's home to make sure "nobody ripped them off" while Tink and VanEtten went somewhere else. The following night Layton and Migel went to the airport to pick up VanEtten and returned to Layton's home. During the next few days, several pounds of the marijuana were sold. Apparently, VanEtten was the seller because he would take pounds of the marijuana and return with money. Layton, however, only saw an exchange of money between VanEtten and Flores on one occasion. They were at the house two or three days before they were busted. Once when VanEtten was coming to make a purchase or pick up a package, he blew his engine in his car, and it had to be towed to Layton's house where it remained.
On Sunday, May 6, 1984, law officers executed a search warrant at Layton's residence. They recovered nine pounds of marijuana, which was still in the suitcase in the closet. Pursuant to this search everyone in the house was arrested. This included Layton and his wife, Flores, and Migel. Officers also confiscated $6,223.48 from Flores' pocket. They also discovered VanEtten's car at the scene and found that it was registered to him.
Subsequently, Layton agreed to cooperate with the authorities. For what it is worth, Layton agreed to cooperate, and if his testimony was sufficient enough, then he and his wife would not be prosecuted. If he did not cooperate, he would be charged with possession with the intent to distribute. Of course he would probably lose his wife, house and children. And, since he was an habitual offender, he could possibly face fifteen to twenty years without parole. 1
At the conclusion of the trial Flores and VanEtten were convicted of conspiracy to distribute more than a kilogram of marijuana and sentenced to fifteen years in prison. 2
The Sixth and Fourteenth Amendments of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890 guarantee a defendant the right to a speedy trial. In addition, Mississippi Code Ann. Sec. 99-17-1 (Supp.1990) requires that a defendant be brought to trial within 270 days after arraignment "unless good cause [can] be shown, and a continuance duly granted by the Court." This language is plain and unambiguous. See, Payne v. State, 363 So.2d 278 (Miss.1978); Vickery v. State, 535 So.2d 1371, 1375 (Miss.1988).
Because this is a speedy trial issue, a chronology is provided:
6/19/84 Indictment filed against VanEtten.
7/02/84 VanEtten waives arraignment.
7/09/84 Opening of July Term.
7/10/84 VanEtten moves for severance.
9/12/84 Court grants State's motion for continuance until February '85 term.
[There is no indication from the record when the motion was originally filed].
2/01/85* Case continued until June 1985 term.
6/20/85 VanEtten submits motion to dismiss.
6/21/85 VanEtten files motion to dismiss.
7/08/85 July Term of Court begins.
7/11/85 Court enters order granting State's Motion for Continuance from July
23 to August 8.
7/24/85* VanEtten files motion for continuance.
9/04/85 Court grants Flores' motion for continuance to allow him time to
move for dismissal of charge under the 270day rule.
9/23/85 September term of Court begins.
1/28/86 January (February) Term of Court begins.
2/18/86 Trial begins and both defendants renew their motions to dismiss;
however, Court overrules both motions.
The parties agree that 596 days elapsed between the time of the waiver of arraignment and the time of the trial. Where the state has demonstrated good cause, and a continuance has been granted those dates are not counted against the state. Reed v. State, 506 So.2d 277, 281 (Miss.1987). Because the accused has no duty to bring himself to trial, however, the state has the burden of establishing that there was good cause for delay. Id. See also Nations v. State, 481 So.2d 760, 761 (Miss.1985). Moreover, continuances granted to the defendant also toll the running of the statute and should be deducted from the total number of days. Vickery, 535 So.2d at 1376. See also Williamson v. State, 512 So.2d 868, 876 (Miss.1987).
On September 12, 1984, when the first continuance was granted, seventy-two (72) days had already elapsed. The trial court granted this continuance because "an indictment was returned only several weeks ago and discovery between the defense and the state has just begun and remains incomplete at this time." This continuance was granted until the February term, which incidentally began on January 28. Consequently, a total of 138 days cannot be counted against the state. VanEtten maintains, however, the number of days total 139.
The state contends that a continuance was granted during the February term, and the trial was set for July 23, 1985. This order, however, is not a part of the record, and it is silent regarding the reason for delay. Consequently, this time must "tick against" the State. See, e.g., Vickery, 535 So.2d at 1375 (). Before July 23, however, the trial court granted a second continuance to the state on July 11, 1985 because the The court granted this continuance until August 5. Thus, the number of days that were allowed to lapse totaled 164. This simply means that VanEtten has gone 236 days without a trial.
On July 11, the trial court also overruled VanEtten's motion to dismiss for failure to prosecute which had been filed on June 20. On July 24, 1985, VanEtten filed a Motion for continuance. He alleged that he needed additional time because "the trial was originally set for July 23, reset to August 5 and is now set for July 30." The record contains no order from the court granting VanEtten's request. But, the state argues that "presumably the court would not have granted it on less than good cause shown." However, the state concedes that if "this delay is pinned on the state, it was a delay of only 31 days--from August 5, 1985 until September 5, 1985." 3
On September 4, 1985, the trial court granted Flores' Motion for continuance "to allow defendant to move for a dismissal of the charge under the 270 [sic] Rule." There is no evidence in the record regarding when Flores filed this motion. Moreover, the court did not include how long this continuance...
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