Jackson v. State, 90-KA-0454

• Decision Date: 25 February 1993
• Docket Number: No. 90-KA-0454,90-KA-0454
• Parties: Larry P. JACKSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 965

614 So.2d 965

Larry P. JACKSON v. STATE of Mississippi.

No. 90-KA-0454.

Supreme Court of Mississippi.

Feb. 25, 1993.

Irene Mikell Buckley, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and ROBERTS and SMITH, JJ.

SMITH, Justice, for the court:

Larry P. Jackson was indicted, tried and convicted in the Circuit Court of Washington County, Mississippi, for the crime of conspiracy pursuant to Miss.Code Ann. Sec. 97-1-1, and seven counts of house burglary pursuant to Miss.Code Ann. Sec. 91-17-19 (1972), and as an habitual offender pursuant to Miss.Code Ann. Sec. 99-19-81. Although originally indicted on nine counts of house burglary, Jackson was found guilty by the jury on seven counts and acquitted on two others. The trial judge sentenced Jackson as an habitual offender to serve twenty-five years without parole in the custody of the Mississippi Department of Corrections. Jackson's counsel, Stan Perkins, filed for a J.N.O.V. or, in the alternative, a new trial on October 31, 1988. The September term of Circuit Court ended on Saturday, October 29, 1988.

Jackson, pro se, filed a motion for an out of time appeal and for appointment of counsel. The motions were granted and the trial judge ordered the Washington County Public Defender to file all necessary motions. The Public Defender, however, was relieved for cause and the original trial counsel, Stan Perkins, filed another motion for J.N.O.V. or, in the alternative, a new trial, which was overruled. Aggrieved, Jackson appeals, assigning the following errors:

I. THE LOWER COURT COMMITTED REVERSIBLE ERROR IN FAILING TO DISMISS THE CHARGES AGAINST JACKSON SINCE HIS RIGHT TO A SPEEDY TRIAL WAS VIOLATED.

II. LARRY JACKSON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE RIGHTS SECURED HIM BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.

III. THE EVIDENCE PRESENTED AGAINST LARRY JACKSON WAS LEGALLY INSUFFICIENT TO SUPPORT THE CONVICTIONS OF CONSPIRACY AND HOUSE BURGLARY.

IV. THE VERDICT RENDERED AGAINST LARRY JACKSON IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE.

Finding Jackson's assignments of error to be devoid of any merit and no error by the lower court, we affirm.

FACTS

During the fall months of 1987, many homes were burglarized in Washington County, Mississippi. Sheriff Eugene Parker of Franklin Parish, Louisiana, who testified in this case, received information that someone was selling a large number of guns in his area. He obtained one of the guns from Wayne Turbeville and determined it to have been stolen from a home in Greenville, Mississippi. Turbeville told Sheriff Parker that he had bought several guns from Larry Jackson and Donald Brister. Sheriff Parker testified that he recovered approximately 42 guns from Turbeville and immediately contacted the sheriff's office in Washington County, Mississippi, where Captain Chuck Haynes and the Sheriff of Washington County identified the guns by description and serial numbers.

Jackson, Brister and Vickie Elliott lived in a mobile home with William Dukes in Florence, Rankin County, Mississippi. A search of the trailer revealed jewelry, a jewelry box, a coon hunting light, a radio and some guns that were all stolen from homes in Washington County. Brister gave a statement after his arrest. Captain Haynes, at Brister's request, drove him around the Greenville area and Brister pointed out the homes that he and Jackson had burglarized.

A warrant was issued for Jackson and he was arrested December 8, 1987, in Winnsboro, Louisiana. He executed a waiver of extradition and was transported to Hinds County, Mississippi on charges of burglary in Hinds County, totally unrelated to the burglary charges in Washington County. On January 11, 1988, the Hinds County charges were dismissed.

On January 15, 1988, Jackson was indicted on the Washington County charges. Jackson was moved from Hinds County to Washington County on February 1, 1988, arraigned February 3, 1988, and he plead not guilty to all counts. On March 9, 1988, Jackson filed a demand for trial.

Jackson's trial began October 17, 1988, and lasted two days. Jackson was sentenced on October 18, 1988, as an habitual offender. Jackson, aggrieved, appeals his conviction to this Court.

DISCUSSION

I.

Jackson contends the lower court erred in failing to dismiss the charges against him since his right to a speedy trial was violated.

Jackson requested that the lower court dismiss all charges for lack of a speedy trial, arguing that the constitutional right to a speedy trial attached at the "time of formal indictment or information or else restraints imposed by arrest and holding to answer criminal charge." Relying on Perry v. State, 419 So.2d 194 (Miss.1982), Jackson argues that the 270-day period began running on December 8, 1987, the date of his arrest. The motion was overruled by the trial judge. Jackson complains this was reversible error.

The right to a speedy trial pursuant to Miss.Code Ann. Sec. 99-17-1 (Supp.1992) does not attach until arraignment:

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.

The trial was conducted exactly 257 days after arraignment. Accordingly, the statute is inapplicable to this situation, and Jackson must rely on constitutional grounds.

The State contends that Jackson has failed to allege a constitutional speedy trial violation before this Court. Jackson's counsel on appeal contends, "the Constitution is clear. One is entitled to go before a judge as quickly as possible and reasonable after one is physically being restrained under arrest." Defense counsel also cites Perry wherein this Court's decision was based on constitutional grounds because the State had complied with Sec. 99-17-1 of Miss.Code Ann. (Supp.1992). Jackson's constitutional right to a speedy trial is properly before this Court.

The right to a speedy trial for constitutional purposes attached at "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). See also Vickery v. State, 535 So.2d 1371, 1376 (Miss.1988). This Court, in Smith v. State, 550 So.2d 406, 408 (Miss.1989), held that for constitutional purposes, the right to a speedy trial attached at 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." Handley v Barker factors are weighed and balanced in each case according to its facts. The factors that must be considered are (1) length of delay, (2) reason for the delay, (3) defendant's assertion of his right to a speedy trial, and (4) prejudice resulting to the defendant. No single factor alone is dispositive. Jaco v. State, 574 So.2d 625, 630 (Miss.1990).

State, 574 So.2d 671, 674 (Miss.1990). See also Vickery, 535 So.2d at 1376.

1. LENGTH OF DELAY

This Court has held that an eight month delay is presumptively prejudicial. Smith v. State, 550 So.2d 406, 408 (Miss.1989).

Jackson contends that the length of delay should be measured from December 2, 1987, the date of the issuance of the warrant for his arrest. He was not arrested until December 8, 1987. The date of his actual arrest is the beginning point. Lightsey, 493 So.2d at 378.

After his arrest and waiver of extradition, Jackson was taken to Hinds County jail on charges of burglary in Hinds County totally unrelated to the Washington County charges. On January 11, 1988, the Hinds County charges were dismissed. The State argues that the time Jackson was being held by Hinds County on completely unrelated charges should not be counted.

Since there is no connection between the burglaries in Hinds County and those in Washington County, the period prior to January 11, 1988, should not be counted. The total length of delay beginning January 11, 1988, until trial on October 17, 1988, amounts to a total of 281 days. Regardless of whether the delay is calculated from December 8, 1987, or January 11, 1988, the length of delay is greater than eight months and is presumptively prejudicial. Smith, 550 So.2d at 408.

However, as noted in Barker, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. The case at bar certainly fits the description as noted in Barker. Here we have a defendant convicted of a conspiracy charge and seven house burglaries, not an ordinary street criminal.

2. REASON FOR THE DELAY

The State does not provide a reason in the record for the delay. The State contends that this is not a typical case and further alleges the delay was reasonable because the case involves nine counts of burglary and one count of conspiracy. There is no evidence in the record to support that the delay was a deliberate attempt to delay the trial in order to hamper the defense. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

3. DEFENDANT'S ASSERTION OF RIGHT

It is the State that bears the burden of bringing the accused to trial in a speedy fashion. Perry, 419 So.2d at 199; Vickery, 535 So.2d at 1377. Jackson, on March 9, 1988, filed a demand for trial. This prong of the Barker test must essentially weigh in favor of the defendant as he has demanded a speedy trial. Jaco, 574 So.2d at 632.

4. PREJUDICE TO THE DEFENDANT

The final prong of the Barker analysis encompasses two dimensions. The first involves the actual prejudice...