Jaco v. State

• Decision Date: 19 December 1990
• Docket Number: No. 89-KA-0557,89-KA-0557
• Citation: 574 So.2d 625
• Parties: Steve Dean JACO and Jerry Jaco v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 625

574 So.2d 625

Steve Dean JACO and Jerry Jaco v. STATE of Mississippi.

No. 89-KA-0557.

Supreme Court of Mississippi.

Dec. 19, 1990.

Steve Jaco, Parchman, appellant pro se.

Jerry Jaco, Parchman, appellant pro se.

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

Before ROY NOBLE LEE, C.J., and ROBERTSON and SULLIVAN, JJ.

ROBERTSON, Justice, for the Court:

I.

Today's appellants, brothers in crime as in blood, challenge their burglary convictions and recidivism sentences and claim they have been denied various rights secured to them by the constitution and laws of the United States and of this state. We have reviewed the record with care and, for the reasons presently to be presented, find that they are entitled to no relief on their direct appeal. The brothers present an alternative application for post-conviction relief, which similarly avails them nothing.

II.

Jerry Jaco was born April 15, 1958. His brother, Steve Dean, was born a few months short of five years later, on February 20, 1963. By their mid-twenties, the Jaco brothers had become experienced offenders in the field of property crimes ¹ and in early October of 1986, each was out on parole incident to previous convictions.

On the morning of October 11, 1986, the Jaco brothers went fishing with Mike Lewis Mills, Steve's twenty-year-old brother-in-law. The three were traveling in Mills' Gremlin automobile, later an obvious mistake. Later that day they pursued a more dubious fishing expedition. On the way home from browsing around the Oxford Mall, they took the Clear Creek Exit south off of Highway 6. The apparently unoccupied home of Paul Brisco seemed inviting. After driving by a few times, Mills let the Jaco brothers off at the Brisco house and drove down the road to a dumpster to throw out some garbage. The Jaco brothers broke in Brisco's back door and took a gun, a watch and other items. Mills returned and picked them up, catch in hand.

As fate would have it, Paul Brisco topped the hill a short distance from his house as a rather odd "little pink looking" car was pulling out of his driveway. Brisco ultimately managed to get close enough to the car to get the tag number. He returned to his home and found the back door wide open, the door facing broken. Not knowing whether anyone was still in the house, Brisco went a short distance to his shop. About this time the same pink looking car came by going in the opposite direction, and Brisco instructed one of his employees at the shop to follow it. Brisco called the Sheriff and then returned to his house to find the master bedroom had been "ramshackled" and that his gun and his wife's watch were missing.

To make a long story short, later that evening a Lafayette County Deputy Sheriff located the Gremlin, identified it by tag, but found only Mark Mills with the car. Although he had first denied any wrongdoing, Mills ultimately told all, and, on the following day, Steve and Jerry Jaco were taken into custody.

The precise details of what happened next are not clear from the record, but we do know that parole was revoked for the Jaco brothers, and each was immediately returned to custody of the Mississippi Department of Corrections which afforded them secure housing at the Mississippi State Penitentiary at Parchman.

On December 19, 1986, while the Jaco brothers were at Parchman, the Lafayette County Grand Jury returned an indictment charging all three, Steve Jaco, Jerry Jaco and Mike Mills, with the burglary of a dwelling. Miss.Code Ann. Sec. 97-17-19 (1972). The Jaco brothers were indicted as habitual offenders. Miss.Code Ann. Sec. 99-19-81 (Supp.1986). Months passed without event. Neither Jaco brother made any efforts to secure counsel, either paid or appointed variety.

On July 7, 1987, Jerry Jaco completed his prior sentence and was released from Parchman and returned to the custody of the Sheriff of Lafayette County, whereupon he was released upon bond. Steve languished in the penitentiary.

On December 1, 1987, the Jaco brothers stood trial jointly in the Circuit Court of Lafayette County. By this time Mills had entered a plea of guilty in exchange for a suspended sentence and provided substantial credible testimony that all but assured the Jacos' conviction. Brisco afforded testimony that verified the fact of the burglary, and he told of his fortuitous close encounter with the all too noticeable automobile bearing the burglars. Two Brisco employees also had seen the little Gremlin, although one described it as maroon and the other called it "purple-like." In the end the jury found Steve Jaco and Jerry Jaco each guilty of burglary, and upon receiving evidence that each had committed two prior felonies arising out of separate incidents and on separate occasions, the Circuit Court sentenced each to the custody of the Department of Corrections for a period of ten years without eligibility for probation or parole. Miss.Code Ann. Sec. 97-17-19 (1972). Miss.Code Ann. Sec. 99-19-81 (Supp.1986).

The present appeal has followed.

III.

The Jacos do not seriously question the sufficiency of the evidence to support their conviction. Having in mind our familiar scope of review, the jury was more than justified in crediting the witnesses for the prosecution and believing that on the afternoon of October 11, 1986, the Jaco brothers broke and entered the Brisco residence with intent to steal whatever of value they may find therein, in short, to commit the crime of larceny. See, e.g., Leflore v. State, 535 So.2d 68, 70 (Miss.1988); Gillum v. State, 468 So.2d 856, 859-61 (Miss.1985); Lee v. State, 403 So.2d 132, 135 (Miss.1981); Wright v. State, 387 So.2d 735, 736 (Miss.1980).

IV.

The Jaco brothers strenuously argue that each was denied his right to a speedy trial. Every person accused of a crime, of course, enjoys the right to a speedy trial, and the right is secured independently by the Sixth and Fourteenth Amendments to the Constitution of the United States and by Article 3, Section 26 of the Mississippi Constitution of 1890.

Today's circumstances are somewhat unusual and require sensitive attention. The basics are that the Jaco brothers were arrested on October 12, 1986, and were not put to trial until December 1, 1987--some 414 days later. ² No serious question is raised under our 270 day rule, Miss.Code Ann. Sec. 99-17-1 (Supp.1986), under which the clock does not begin to tick until the date of arraignment. ³

If they are to obtain relief, it must be under the constitution(s) where it is settled that the speedy trial clock began to tick on October 12, 1986, the date of arrest. See Smith v. State, 550 So.2d 406, 408 (Miss.1989); Beavers v. State, 498 So.2d 788, 790 (Miss.1986); Lightsey v. State, 493 So.2d 375, 378 (Miss.1986); Burgess v. State, 473 So.2d 432, 433 (Miss.1985). ⁴

Our point of beginning established, we turn to the familiar balancing test encrusted onto the right in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), and which, independently, we have accepted for speedy trial claims under Section 26 of our constitution. The four factors which 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 mechanical formula exists according to which these factors must be weighed and balanced. The weight given each necessarily turns on the peculiar facts and circumstances of each case, the quality of evidence available on each factor and, in the absence of evidence, identification of the party with the risk of non-persuasion. No one factor is dispositive. A sensitive weighing and balancing of all remain our touchstone.

A. Length of Delay

This factor is largely a function of mathematics and the calendar and as we have noted, the delay at issue is 414 days. The delay is the triggering mechanism under Barker and must be presumptively prejudicial or we go no further. If the delay be but--say--50 days, nothing in Barker suggests we need know more, for the claim fails on its face. We have recently held an eight-month delay presumptively prejudicial. Smith v. State, 550 So.2d 406, 408 (Miss.1989), citing 2 W. LaFave and J. Israel Criminal Procedure Sec. 18.2 (1984); see also, Beavers v. State, 498 So.2d 788, 790 (Miss.1986) (423 day delay); Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985) (298 day delay).

B. Reason For The Delay

When we reach for the reason for the delay, we encounter unique circumstances. The record reflects little or no activity from October of 1986 until June of 1987. What is particularly important is that neither Jaco brother lifted a finger to secure counsel. Obviously neither was in a position to go to trial without counsel. Nothing in the record reflects that either Jaco brother made any formal request for counsel. For aught that appears, the two were merely returned to Parchman, their previous parole revoked, whereupon the present prosecution ceased to be a matter of any urgency to anyone. In any event, until June of 1987, at which time Jerry was about to be released upon completion of his sentence, we find that the matter was simply continued on the docket of the Circuit Court. In the present state of the record, we may not charge this time against the prosecution because the evidence prima facie shows the Jacos had made no request for counsel, nor taken any other steps in that direction.

What happened beginning in June of 1987 is equally unusual. It is important to bear in mind the general premise that, upon the Jacos' application and showing indigency, the State of Mississippi was burdened to provide each brother with counsel if it wished to prosecute him for burglary and obtain entry of a valid conviction and impose an enforceable sentence. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Not just any counsel may satisfy the state's duty, only reasonably...