Hersick v. State
| Decision Date | 10 November 2004 |
| Docket Number | No. 2003-KA-00151-SCT.,2003-KA-00151-SCT. |
| Citation | 904 So.2d 116 |
| Parties | Larry Vincent HERSICK v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Ross Parker Simons, attorneys for appellant.
Larry Vincent Hersick, Pro Se.
Office of the Attorney General by John R. Henry, attorneys for appellee.
Before COBB, P.J., DICKINSON and RANDOLPH, JJ.
¶ 1. An eleven-year old girl and her eight-year-old brother finished shopping at the Wal-Mart in Lucedale and raced to the nearby Winn-Dixie where their parents were grocery shopping. Larry Hersick, a transient, was sitting outside the Wal-Mart on a block of concrete. As the children raced passed Hersick, he grabbed the girl by her upper right arm and pulled her a distance of about five to ten feet into the parking lot. The girl jerked away from Hersick and ran to the Winn-Dixie with her brother.
¶ 2. The girl's father called the police, who rushed to the Wal-Mart to find Hersick still sitting on the block of concrete. Hersick was arrested, indicted, tried and convicted of attempted kidnaping, and sentenced to ten years' imprisonment. Hersick now appeals, claiming that his right to a speedy trial was denied, the indictment was flawed, the trial court improperly admitted a statement he made to police, and the jury verdict was against the overwhelming weight of the evidence. Finding no reversible error, we affirm.
Speedy Trial — The Constitutional Claim.
¶ 3. Defendants in criminal cases are guaranteed the right to a speedy trial by the sixth and fourteenth amendments to the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890. Watts v. State, 733 So.2d 214, 235 (Miss.1999). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct.2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court has provided a test we must follow. Under Barker, we examine the following factors: (i) length of the delay, (ii) reason for the delay, (iii) defendant's assertion of his right, and (iv) prejudice to the defendant. 407 U.S. at 530, 92 S.Ct. 2182. See Taylor v. State, 672 So.2d 1246, 1258 (Miss.1996).
¶ 4. The length of the delay is a "triggering mechanism" for the Barker test. Until there is some delay that is presumptively prejudicial, there is no need for further inquiry under Barker. 407 U.S. at 530, 92 S.Ct. 2182; Mitchell v. State, 792 So.2d 192 (Miss.2001). We recognize a delay of eight months to be presumptively prejudicial. Smith v. State, 550 So.2d 406, 408 (Miss.1989).
¶ 5. The constitutional right to a speedy trial attaches at the time of the accused's arrest, indictment, or information. Smith, 550 So.2d at 408. "In short, the constitutional right to a speedy trial attaches when a person has been accused." Id.
¶ 6. Hersick was arrested on February 25, 2001, and his trial commenced 611 days later, on October 29, 2002. Thus, the delay is presumptively prejudicial and requires that we examine the remaining Barker factors.
¶ 7. The second Barker factor requires the court to determine the reason for the delay, including the party to whom the delay is attributable. Brengettcy v. State, 794 So.2d 987, 993 (Miss.2001). The burden is on the State to provide a defendant with a speedy trial. Therefore, the State bears the concomitant burden of showing that either the delay was caused by the defendant or that the delay was for a good cause. Where the State is unable to do either, this factor must be weighed against the State. Smith v. State, 550 So.2d at 409; Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991).
¶ 8. Delays caused by the defense, such as requests for continuances, will toll the running of the speedy trial clock for that length of time attributable to the continuance. Wiley v. State, 582 So.2d 1008, 1011 (Miss.1991), citing Flores v. State, 574 So.2d 1314, 1318 (Miss.1990). A time line of the relevant dates and events in Hersick's case is as follows:
¶ 9. We must now calculate all days attributable to Hersick's request, or other good cause, and weigh them in the context of all the Barker factors.
¶ 10. When Hersick was arrested on February 25, 2001, he was uncooperative with police, and provided a false name to the police officers. His true identity was not established until seven weeks later in April 2001. Thus, the seven weeks (49 days) during which Hersick withheld his true identity from authorities must be subtracted from the delay.
¶ 11. Hersick was indicted by the October 2001 grand jury, which was the first available grand jury after Hersick's true identity was determined. The indictment was handed down on November 28, 2001. Where a defendant is indicted by the first available grand jury in the county, the time between arrest and indictment is not counted against either the state or the defense. Brengettcy, 794 So.2d at 993.
¶ 12. The time between Hersick's indictment on November 28, 2001 and his trial on October 29, 2002, is 335 days. However, the continuance granted to Hersick on April 15, 2002, accounts for 105 days of this period, reducing the total period of delay to 230 days.1
¶ 13. The State further argues that the time between Hersick's arraignment on January 30, 2002, and the continuance granted on April 15, 2002, should be tolled against Hersick because of his action in seeking new representation. At arraignment, Hersick was represented by Mr. Barnett from the Public Defender's office. However, Barnett explained to Hersick and the court that he had a potential conflict of interest because he had previously represented the victim's family in other matters. Hersick and Barnett agreed that Barnett would stand in for Hersick for the limited purpose of the arraignment, and afterward another attorney could be appointed to represent Hersick. The record is devoid of any other documentation concerning Hersick's representation until an order appointing Ross Parker Simons was entered on March 21, 2002. Although the State alleges Hersick caused the delay by switching attorneys, there is nothing in the record to indicate that he is at fault for this delay.2 Hersick certainly can not be faulted for Barnett's conflict of interest.
¶ 14. Finally, a continuance was granted to the State on July 20, 2002, which accounts for the 92 days before Hersick's trial. Because this continuance was granted for good cause,3 it tolls the running of the constitutional speedy trial clock, and reduces the total period of delay to 138 days.
¶ 15. The total period of delay remains at 138 days, or approximately four and a half months, a delay which is not presumptively prejudicial. Therefore, this factor weighs in favor of the State.
¶ 16. Under Barker, the defendant's assertion of his speedy trial right is entitled to strong evidentiary weight. Failure to assert the right will make it difficult for a defendant to prove denial of a speedy trial. Barker v. Wingo, 407 U.S. at 531-32, 92 S.Ct. 2182. Hersick filed a motion to dismiss for failure to grant a speedy trial on September 20, 2002, a year and a half after he was first incarcerated and five weeks before his trial was set to begin. The events related to Hersick's request for a speedy trial are as follows.
¶ 17. The record reflects that Hersick asserted his right to a speedy trial on several occasions, but his first request was only a few weeks before the trial. Therefore, this factor does not favor the State or the defendant.
¶ 18. The Barker Court identified three interests protected by the right to a speedy trial that are to be considered when determining whether a defendant has been prejudiced by a delay in bringing him or her to trial. They are (1) the interest in preventing oppressive pretrial incarceration, (2) the interest in minimizing anxiety and concern of the accused, and (3) the interest in limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532, 92 S.Ct. 2182. Of these three interests, the last is the most important; and when violated, the most prejudicial to the defendant. See id.
¶ 19. The first of these interests, preventing oppressive pretrial incarceration, is best considered closely with the first two Barker factors, the length of and reasons for the delay. There are numerous cases which demonstrate that Hersick's period of pretrial incarceration was not oppressive and did not violate his constitutional rights. Jefferson v. State, 818 So.2d 1099 (Miss.2002) (480 days); Skaggs v. State, 676 So.2d 897 (Miss.1996)...
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