Jasso v. State
| Citation | 655 So.2d 30 |
| Decision Date | 13 April 1995 |
| Docket Number | No. 91-KA-01161-SCT,91-KA-01161-SCT |
| Parties | Jose Luis JASSO and Juan Vela Sanchez, Jr. v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Earl B. Stegall, Gulfport, for appellants.
Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PRATHER, P.J., and PITTMAN and SMITH, JJ.
INTRODUCTION
This case concerns a conviction of Jose Luis Jasso (Jasso) and Juan Vela Sanchez, Jr. (Sanchez) for drug possession with intent to deliver. The trial court judge sentenced both Jasso and Sanchez to twenty years in the custody of the Mississippi Department of Corrections. Jasso and Sanchez moved for a new trial on October 24, 1991. The trial judge denied this motion. Aggrieved, Jasso and Sanchez appeal to this Court on the following issues:
1) DID THE TRIAL COURT ERR IN OVERRULING THE MOTION FOR DISMISSAL FOR LACK OF A SPEEDY TRIAL UNDER THE UNITED STATES CONSTITUTION?
2) DID THE TRIAL COURT ERR IN OVERRULING THE MOTION TO DISMISS FOR FAILURE TO GRANT A TRIAL WITHIN 270 DAYS OF ARRAIGNMENT?
3) DID THE TRIAL COURT ERR IN OVERRULING THE MOTION TO SUPPRESS CERTAIN EVIDENCE?
4) DID THE TRIAL COURT ERR IN FAILING TO GRANT A MISTRIAL?
5) DID THE TRIAL COURT ERR WHEN IT FAILED TO GRANT A DIRECTED VERDICT AT THE CLOSE OF THE STATE'S CASE AND THEN AT THE CONCLUSION OF THE TRIAL?
6) DID THE TRIAL COURT ERR WHEN REFUSING TO GRANT DEFENSE INSTRUCTION A-8?
On December 2, 1989, Officer Potts, of the Mississippi Highway Patrol, was traveling on Interstate 10 in Harrison County and Officer Potts noted that the car, occupied by Sanchez and Jasso, was speeding while traveling eastbound. His radar noted the speed at 74 MPH.
The vehicle was stopped and Officer Potts asked Sanchez where they were going. Jasso could not tell Officer Potts their destination. When Officer Potts stuck his head in the car through the window to talk to Sanchez, who was sitting in the back seat, he noted a very strong odor of marijuana, which came from the trunk. Jasso opened the trunk voluntarily upon request.
Officer Potts looked into the trunk and found three bags and two suitcases containing marijuana. Officer Potts issued two citations, for speeding and possession of marijuana to each occupant. He also gave them their Miranda 1 rights on the interstate.
On October 17, 1991, the jury found Sanchez and Jasso guilty of possession of marijuana of more than one kilogram, with intent to deliver. The trial court sentenced both men to 20 years in the custody of the Mississippi Department of Corrections.
There are two assignments of error which this Court addresses in its remand. All other issues are affirmed.
The federal constitutional speedy trial question, and the Mississippi statutory requirement of a trial within 270 maximum days between indictment and trial, are the two issues this Court addresses. Before this question can be answered, a chronology of the events of this case is required:
12/2/89 Arrest of Jasso and Sanchez by Officer Potts of the Mississippi Highway Patrol.
12/8/89 Sheriff accepts bail for Jasso and Sanchez.
8/16/90 Indictment of Jasso and Sanchez.
8/28/90 Waiver of arraignment and entry of plea by Jasso and Sanchez.
10/19/90 Order resetting trial granted on motion of State because prosecutor is unavailable.
12/15/90 Order resetting trial granted on motion of the trial court because the judge is unavailable.
4/23/91 Jasso and Sanchez file motion to dismiss on speedy trial grounds.
4/23/91 Jasso and Sanchez file motion to dismiss on 270 day rule, under Miss.Code Ann. Sec. 99-17-1 (1972).
5/23/91 Jasso and Sanchez file motion to reset trial based on conflict with trial schedule, and waive their constitutional and 270 day rule objections for the period between 6/10/91 and 10/14/91.
6/10/91 Waiver period begins.
6/18/91 Trial court grants defendant's motion.
10/14/91 Beginning of October term.
10/17/91 Trial begins and ends.
There were 684 days which elapsed between their arrest and trial. Sanchez and Jasso argue that such a period of time infringes their Sixth Amendment rights to a speedy trial under the United States Constitution, and under Section 26 of the Mississippi Constitution.
There is a continuance period the defense requested which reduces the 684 day total chargeable to the State. Using the court order date of June 10, 1991, as the continuance date, there is a waiver period of 125 days. See Spencer v. State, 592 So.2d 1382, 1387 (Miss.1991) (). A delay of 559 days still occurs after the continuance is deducted. This Court has held delays of more than eight months are presumptively prejudicial. Smith v. State, 550 So.2d 406, 408 (Miss.1989). As a result, this Court must inquire into the four Barker factors to determine if a denial of Jasso and Sanchez's Sixth Amendment rights has occurred. These four Barker factors are: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right to speedy trial; (4) any resulting prejudice from the delay. Smith, 550 So.2d at 408, citing Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 2193, 33 L.Ed.2d 101, 117 (1972).
Length of the delay
There were 559 days between arrest and trial, after deducting the continuance. This Court has reversed cases in the time frame given in this case. Burgess v. State, 473 So.2d 432, 433-34 (Miss.1985) (); Perry v. State, 419 So.2d 194, 199-200 (Miss.1982) (). But see Spencer v. State, 592 So.2d 1382, 1387-89 (Miss.1991) (); Adams v. State, 583 So.2d 165, 168-70 (Miss.1991) (); Handley v. State, 574 So.2d 671, 676-84 (Miss.1990) (). This Court has held that a delay of 423 days would result in reversal absent the State's strength in the other factors. Beavers v. State, 498 So.2d 788, 790 (Miss.1986), implicitly overruled on other grounds by State v. Ferguson, 576 So.2d 1252, 1255 (Miss.1991).
Under these circumstances, this factor should weigh heavily against the State. Flores v. State, 574 So.2d 1314, 1322 (Miss.1990) (). However, this Court has never looked at this factor alone to reverse. Beavers, 498 So.2d at 790.
Reason for the delay
There appear to be several periods of delay attributable to the State and one period attributable to the defense. The State explained the first eight month period between arrest and indictment, from December 1989 to August 1990, as normal when investigating multi-state, multi-jurisdictional drug offenses, such as this one. The fact that Sanchez and Jasso were Texans carrying drugs made the resulting investigations more complex and difficult, according to the State. Other states have held that police investigations may serve as a "legitimate reason" to delay trial. Haisman v. State, 242 Ga. 896, 252 S.E.2d 397, 399 (1979). Given this caselaw, there is sufficient reason to weigh this period for the State in terms of reason for the delay.
The next period concerns August 1990 to June 1991, when first the prosecutor, and then the trial judge, were unavailable. This period is the result of docket congestion. This Court has stated that such periods do not weigh as heavily against the State as would periods where no cause for the delay was seen. Adams v. State, 583 So.2d 165, 169 (Miss.1991). However, this Court has said such periods nevertheless weigh against the State. Adams, 583 So.2d at 169. But see, e.g., Hurns v. State, 616 So.2d 313, 318 (Miss.1993) (); McGee v. State, 608 So.2d 1129, 1133 (Miss.1992) ().
The last period concerns June 1991 to October 1991, when the defense requested a continuance. This period is charged to the defense. Handley v. State, 574 So.2d 671, 674 (Miss.1990). The trial commenced on October 17, 1991, three days after the end of that period.
The investigation period, and the defense's period of continuance, which total approximately 382 days, weigh for the State. The period between August 1990 and June 1991 and October 1991, totalling 301 days, is attributable to docket congestion. Given Hurns's holding that docket congestion is neutral, and there is some delay attributable to Jasso and Sanchez, this factor can weigh for the State.
Defendant's assertion of right to speedy trial
Jasso and Sanchez filed a motion to dismiss for lack of speedy trial on April 23, 1991. This date is 187 days before their trial on October 17, 1991. However, there was a continuance by the defense of 125 days between June 10 and October 14, 1991. Tolling this period against the defense, which is a continuation of Handley 's logic, leaves the assertion of a right to speedy trial 62 days before trial.
The State argues that Sanchez and Jasso waived their speedy trial rights by asking for a continuance, as the trial court found. However, a sister state has held that a defendant does not waive his entire right to a speedy trial by asking for one continuance. Butterworth v. Fluellen, 389 So.2d 968, 970 (Fla.1980). But see State v. Brown, 249 Kan. 698, 823 P.2d 190, 194 (1991) (). As the Florida Supreme Court dealt with constitutional speedy trial analysis in its decision, this Court relies upon it. Butterworth, 389 So.2d at 970.
Handley held that such an assertion made 35 days before trial weighs against the defense. Handley, 574 So.2d at 677. Another case held that assertion of the right 202 days before trial weighs for the defense, and against the State. Jackson v. State, 614 So.2d 965, 969 (Miss.1993).
This Court has recently held that analysis slightly favored a defendant who asserted his...
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