Folk v. State, 90-KA-0093

• Decision Date: 20 February 1991
• Docket Number: No. 90-KA-0093,90-KA-0093
• Citation: 576 So.2d 1243
• Parties: Alfred FOLK v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1243

576 So.2d 1243

Alfred FOLK v. STATE of Mississippi.

No. 90-KA-0093.

Supreme Court of Mississippi.

Feb. 20, 1991.

William M. Frisbie, Greenville, for appellant.

Mike C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and ROBERTSON and BANKS, JJ.

ROBERTSON, Justice, for the Court:

I.

This appeal of a capital rape conviction features the difficulties our increasingly under-staffed and under-funded trial courts and prosecuting officials have in affording accuseds their right to a speedy trial. We surmount that hurdle, only to encounter a second going to the integrity of the jury system and arising in the unusual context of the trial court's removal of a juror two hours after the jury had retired and begun its deliberations. On this latter point, we reverse and remand for a new trial.

II.

Around midnight on August 6-7, 1988, twelve-year-old Linda Simmons ¹ had been at her cousin's house on Eureka Street in Greenville, Mississippi. Linda and four of her cousins, two boys and two girls, left and walked to a store to get some popcorn. As they were walking back to the cousin's home, a man drove up and stopped his car beside them and said they had stolen some tools or something from his house. All denied the charge, but the man grabbed Linda by the arm and shoved her into his car, telling the others that he was taking her to the police station. Instead, the man drove Linda to a deserted park and brutally raped her at knife point.

On September 29, 1988, the grand jury of Washington County returned a two-count indictment formally charging Alfred Folk, first, with kidnapping Linda, see Miss.Code Ann. Sec. 97-3-53 (Supp.1988), and, second, with raping her. See Miss.Code Ann. Sec. 97-3-65(1) (Supp.1988). On November 2, 1988, Folk appeared in Circuit Court for arraignment and entered a plea of not guilty to each charge. Seven days later, Folk filed in the Circuit Court "Demand for a Speedy Jury Trial" and asked, "in default of such trial, that he be fully acquitted and discharged for said trial."

The case then lapsed into formal silence. Eight months later the Court ordered trial set for July 20, 1989, but when that day arrived, the Court continued the case. It appears that the case was rescheduled for September 15, at which point in time the Court ordered another continuance.

On October 16, 1989, the case was finally called for trial, only to find the Circuit Court ordering a mistrial because of "tainted identification" testimony. After this false start, the Circuit Court called the case again on November 20, 1989, and on the following day the jury returned a split verdict. First, the jury found Alfred Folk not guilty of kidnapping and upon that charge he stands finally discharged. On the other hand, the jury found Folk guilty of capital rape of Linda Simmons, upon which the Circuit Court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections. Miss.Code Ann. Sec. 97-3-65(1) (Supp.1988).

Folk now appeals from this conviction and sentence.

III.

Folk first argues that his conviction must be reversed on grounds he was denied his statutory right to a speedy trial. Folk refers to our familiar 270 day rule, first enacted in 1976, which reads:

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. Sec. 99-17-1 (Supp.1990).

All agree the statutory speedy trial clock began to tick on November 2, 1988, the date of Folk's arraignment. He was not, in fact, brought to trial until October 16, 1989--some 349 days later. Folk accepts responsibility for 21 days of this delay--August 31 to September 21, 1989--but says this still leaves the state not affording him a trial until 328 days after arraignment. By reason of all of this, Folk says we must order that he now be finally discharged.

The problem of delays in the processing and prosecution of criminal charges has plagued this nation for many years. Society, as well as the accused, suffer when indictments lie idle on the docket. Constitutional speedy trial guarantees, so elastic in their language and judicially encrusted balancing tests, ² are difficult of principled and effective enforcement. In the late 1960's and early 1970's, the several states began adopting specific, fixed cut-off dates within which criminal cases must be brought to trial. In the wake of this nationwide activity, our legislature enacted the 270 day rule, one of the more lenient in the country. ³

Our 270 day rule is in form and nature not unlike a statute of limitations. It reflects a societal imperative for prompt trials. Beyond this the rule confers a right upon the accused which he may claim no matter how inconvenient society may otherwise deem it. Moore v. State, 556 So.2d 1031 (Miss.1990); In re Brown, 478 So.2d 1033, 1036 (Miss.1985). The right is entailed by the provision that the statute may be tolled upon good cause shown and a continuance duly granted by the Court. Our cases recognize various causes as "good cause." Continuances granted to the defendant stop the clock. Vickery v. State, 535 So.2d 1371, 1376 (Miss.1988). Under certain circumstances, this Court has recognized "good cause" for the delay has existed when trial court dockets are congested. Williamson v. State, 512 So.2d 868, 876 (Miss.1987). Agreed continuances do not count, either. Arnett v. State, 532 So.2d 1003, 1010 (Miss.1988). Today, as always, the question is whether, sitting in our appellate capacity, we may find enough of the delay over 270 days good-cause-justified, so that the clock has not expired.

The Circuit Court originally set this case for trial on July 20, 1989--261 days after arraignment. All concede that the 270 day clock had theretofore been running without interruption. On that date--July 20, 1989--the Circuit Court entered an order continuing the case. The Court found as a "fact that another cause previously set on the trial docket was tried on the day this cause was set," and cited this as the cause for the continuance. The record reflects that the Circuit Court had begun the trial of a criminal prosecution against one Anthony Winder on Wednesday, July 19, and that the Winder case had continued over into Thursday, "bumping" the Folk trial. This is "good cause" within Section 99-17-1, tolling the ticking of the speedy trial time clock.

All of this transpired during the July, 1989, term of the Circuit Court of Washington County. That term began on Monday, July 3, and was scheduled to run through Friday, August 25, 1989. We have searched the record for evidence that there may have been other dates later within the term when the case could have been tried. What we find is less than conclusive. What does appear is Folk's motion, filed July 28, 1989, arguing that the 270 day clock had expired and asking that the prosecution be dismissed. On August 15, the Circuit Court denied the motion, finding conclusorily that the prosecution had "shown good cause for its failure to bring this cause to trial within 270 days of arraignment." By way of contrast with the July 20 order, this one fails to identify the factual predicate for the good cause finding.

There is no further record of activity during the July, 1989, term of court. On August 31, 1989, Folk moved for a continuance, reciting that a principal witness in the case had undergone back surgery and was hospitalized in Memphis. On the same day the Court ordered the case continued and reset it for trial on Thursday, September 21, 1989, a day in the second week of the September, 1989, term. When that date arrived, the parties agreed ⁴ orally to set the case over to Monday, October 16, 1989, when Folk's first trial began, only to end in a mistrial. See Arnett v. State, 532 So.2d 1003, 1010 (Miss.1988).

Following the mistrial of October 16, Folk renewed his motion to dismiss. The Circuit Court reviewed the course of proceedings reiterated above and on November 17, 1989, held

... that the facts clearly establish beyond any doubt whatsoever good cause for Alfred Folk not being brought to trial within the 270 days.

Because we have in the past, see Nations v. State, 481 So.2d 760, 762 (Miss.1985), we will accept this finding for purposes of this case. We are disturbed that the record is not nearly so positive as the Circuit Court's sweeping and conclusory findings would suggest.

Going back to July 20, we certainly recognize, as a matter of common sense and good practice, when a case is "bumped," it cannot necessarily be rescheduled the next day. This case involved two out-of-town expert witnesses associated with the FBI Crime Laboratory in Washington, D.C. Such witnesses keep busy schedules and can seldom appear on a moment's notice. All of this occurs within a setting in which we judicially know that the Circuit Court of Washington County has an extremely busy docket. Rule 201(b), (c), and (e), Miss.R.Ev.

On the other hand, where the speedy trial clock had but nine days before it expired, we find it disturbing to encounter orders like those of August 15 and November 17, which merely find "good cause" but provide not a clue in the way of specifics just what the Court considered that cause to have been. We regard it settled that the prosecution "bears the risk of non-persuasion on the good cause issue." Vickery v. State, 535 So.2d 1371, 1375 (Miss.1988); Reed v. State, 506 So.2d 277, 281 (Miss.1987); Nations v. State, 481 So.2d 760, 761 (Miss.1985); Turner v. State, 383 So.2d 489, 491 (Miss.1980). From this it follows that the clock ticks where the record is silent regarding the reason for delay. The question is, what quality record the prosecution must tender that the clock be tolled.

A finding of good cause is a finding of ultimate fact. We should treat a good cause...