Handley v. State

• Decision Date: 27 December 1990
• Docket Number: No. 07-KA-58858,07-KA-58858
• Citation: 574 So.2d 671
• Parties: James Lee HANDLEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 671

574 So.2d 671

James Lee HANDLEY v. STATE of Mississippi.

No. 07-KA-58858.

Supreme Court of Mississippi.

Dec. 27, 1990.

Gerard F. Smith, Gulfport, for appellant.

Mike C. Moore, Atty. Gen., Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and BLASS, JJ.

DAN M. LEE, Presiding Justice, for the Court:

I.

James Lee Handley was found guilty of sale of a controlled substance on June 16, 1987. The following day, June 17, 1987, he was sentenced as an habitual offender pursuant to Miss.Code Ann. Sec. 99-19-81 to 30 years in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction and sentence, Handley perfected this appeal. After a thorough review of the record and arguments presented, we affirm.

II.

The Mississippi Bureau of Narcotics (MBN), in conjunction with the Harrison County Sheriff's Office, conducted an undercover narcotics investigation in Harrison County during the first few months of 1985. The investigation included surveillance of, and undercover transactions at, the Hollywood Lounge, aka the Hot Spot Lounge and Tim's Motel.

Approximately 2:30 p.m. on Monday, January 14, 1985, Jerry Langford (Langford), a narcotics officer with the Harrison County Sheriff's Department assigned to assist a member of the MBN in a drug buy, positioned his vehicle approximately 25 to 30 yards from the Hot Spot Lounge. At this time he observed James Lee Handley (Handley), a person he had known for two to three (2-3) years, sitting on the hood of a car in front of the lounge. Ten minutes Sandefer knew Handley before January 14, 1985. Upon entering the lounge Handley identified himself as "Frisco" and asked what Sandefer was looking for. Sandefer said he was looking for "sets." The men entered the bathroom, Handley removed two (2) "sets" from his shirt pocket and sold them to Sandefer for a total of twenty-four dollars ($24.00). Sandefer, observed by Langford, then left the premises; two or three (2-3) minutes had elapsed from the time Sandefer entered the lounge.

later, 2:40 p.m., Langford observed MBN Agent Roy Sandefer (Sandefer) arrive at the lounge. Langford watched as Sandefer followed Handley into the lounge.

Shortly thereafter, approximately 3:00 p.m., Langford and Sandefer met at a predetermined location. Sandefer showed Langford what he had purchased from Handley: two (2) tin foils, each containing one oblong yellow pill marked T/51 and one round blue pill marked Geigy 43, commonly referred to as T's and Blues, or "sets."

Sandefer placed the two (2) "sets" in an evidence bag and put them in a locked filing cabinet on the 14th of January. He delivered the evidence bag to Betty Dedeaux with the Mississippi Crime Lab in Gulfport on January 16, 1985.

Timothy P. Gross, a drug analyst with the Crime Lab in Harrison County, examined the evidence between April 3 and April 9, 1985. His report, issued April 9, 1985, found the yellow tablet to be a Schedule II controlled substance; the blue tablet was not a controlled substance.

Handley was arrested April 22, 1985, by Officer Langford and charged with sale of a controlled substance. He was indicted as an habitual offender under Sec. 99-19-83 in September 1985. A Waiver of Arraignment and Entry of Plea was filed November 16, 1985, at which time trial was scheduled for February 12, 1986. Handley had a court appointed attorney at this point, Ms. Karen Young, although the Order appointing Ms. Young was not entered until February 6, 1986. That same date, Ms. Young filed a Demurrer to the Indictment.

Handley did not appear on February 12, 1986. The trial court entered its Order February 12, 1986, forfeiting Handley's bond and issuing an instanter alias capias for Handley. The only record reference to the events following February 12, 1986, are found in Handley's May 13, 1987, Motion for Setting of Bond in which it is alleged that he had been continuously incarcerated in the Harrison County Jail since September 1986.

Ms. Young filed another Demurrer to the Indictment and a Motion to Dismiss on November 11, 1986. The basis of the Motion to Dismiss was violation of Handley's constitutional and statutory right to a speedy trial. The Motion to Dismiss also contained a request for a speedy trial. Represented by Ms. Young, Handley was tried beginning December 15, 1986. This trial resulted in a mistrial on December 16, 1986.

Ms. Young was allowed to withdraw as counsel and Otto "Skip" Wusnack was substituted as appointed counsel for Handley on December 19, 1986. On January 9, 1987, Mr. Wusnack was allowed to withdraw and Gerard Smith was substituted as appointed counsel.

Smith filed a Motion to Dismiss based on violation of Handley's constitutional and statutory right to a speedy trial on March 5, 1987. Handley privately obtained the services of Mr. Douglas Ainsworth, Esquire; Mr. Smith was allowed to withdraw as appointed counsel on May 8, 1987.

Handley, represented by Mr. Ainsworth, was subjected to a second trial beginning June 15, 1987. Handley did not testify. He was found guilty on June 16, 1987, and sentenced as an habitual offender on June 17, 1987.

Through trial counsel Ainsworth, Handley filed a Motion for Judgment Notwithstanding the Verdict or, in the Alternative, a New Trial on June 26, 1987, which was heard and denied July 10, 1987.

Ainsworth filed a Motion to Withdraw as counsel on July 13, 1987. This motion was granted on July 31, 1987, and Gerard F. Smith was substituted as counsel for Handley. Handley's Notice of Appeal, prepared

by Ainsworth, was filed July 31, 1987. Six (6) errors are presented for consideration.

III.

Was the Defendant Denied a Speedy Trial?

A.

The determination of whether a violation of the right to a speedy trial has occurred begins with a calculation of lapse of time. In order to correctly calculate the time lapses, it is necessary to distinguish between the constitutional and statutory periods for when the right to a speedy trial attaches and time begins running.

For constitutional purposes, the right to a speedy trial attaches, and the time begins running, "at the time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge." Lightsey v. State, 493 So.2d 375, 378 (Miss.1986). Accord Vickery v. State, 535 So.2d 1371, 1376 (Miss.1988); Beavers v. State, 498 So.2d 788, 789-91 (Miss.1986); Perry v. State, 419 So.2d 194, 198 (Miss.1982). Our most recent case indicates that, for constitutional purposes, the right to a speedy trial attaches and time begins to run with arrest. Smith v. State, 550 So.2d 406, 408 (Miss.1989). Accordingly, for constitutional speedy trial purposes, time began running against Handley on April 22, 1985, the date of his arrest.

Once the constitutional right to a speedy trial has attached, this Court must examine the facts of the case and engage in a functional analysis of those facts in accordance with Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to determine whether the constitutional right to a speedy trial has been denied. Vickery v. State, 535 So.2d 1371, 1376 (Miss.1988); Dedeaux v. State, 519 So.2d 886, 888 (Miss.1988). This functional analysis requires a three-step process. First, we must calculate the time periods. Second, we must analyze those time periods in light of all circumstances, including the conduct of both the prosecution and the defendant, in conjunction with the Barker factors: (1) length of the delay; (2) reason for the delay; (3) defendant's timely assertion of his right to a speedy trial; and (4) resulting prejudice to the defendant. Vickery, 535 So.2d at 1376. Third, we must weigh each of these factors in light of the particular facts of the case, keeping in mind that it is often "impossible to determine with precision when the right has been denied." Barker, 407 U.S. at 521, 92 S.Ct. at 2187.

Unlike the constitutional time period which is calculated on an ad hoc basis, Mississippi has prescribed by statute a specific time period during which an accused must be tried: 270 days. Miss.Code.Ann. Sec. 99-17-1. Commonly known as the 270-day rule, the statutory right to a speedy trial attaches with arraignment. See Sec. 99-17-1 (1976); Payne v. State, 363 So.2d 278 (Miss.1978). Calculation of statutory time requires exclusion of the date of arraignment and inclusion of the date of trial and weekends, unless the last day of the 270 day period falls on Sunday. Ransom v. State, 435 So.2d 1169 (Miss.1983).

Any delays in prosecution attributable to a defendant under either the constitutional or statutory scheme tolls the running of time. Vickery at 1375; Perry at 199. Likewise, any continuances for "good cause" will toll the running of time unless "the record is silent regarding the reason for delay," in which case "the clock ticks against the State because the State bears the risk of non-persuasion on the good cause issue." Vickery at 1375, 1377.

The statutory 270 day rule is satisfied once the defendant is brought to trial, even if that trial results in a mistrial. Kinzey v. State, 498 So.2d 814, 816 (Miss.1986); State v. Thornhill, 251 Miss. 718, 723, 171 So.2d 308, 310 (1965). Thereafter, the time of retrial is within the discretion of the trial court. Kinzey 498 So.2d at 816; Thornhill 251 Miss. at 723, 171 So.2d at 310. This Court utilizes the Barker factors in determining whether the discretionary length of time between trials violated the defendant's constitutional right to a speedy trial. Kinzey 498 So.2d at 816.

In this case we are concerned with the calculation of three (3) time periods: (1) the time between arrest and first actual trial for constitutional purposes; (2) the time between arraignment and first actual trial for statutory purposes; and (3) the time between mistrial and retrial.

B.

In determining whether Handley was denied a speedy trial we must examine the three (3) time periods previously...