Jay v. State, No. 2008-KA-01264-SCT.

• Decision Date: 29 October 2009
• Docket Number: No. 2008-KA-01264-SCT.
• Citation: 25 So.3d 257
• Parties: Douglas JAY, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

25 So.3d 257

Douglas JAY, Jr. v. STATE of Mississippi.

No. 2008-KA-01264-SCT.

Supreme Court of Mississippi.

October 29, 2009.

Rehearing Denied January 28, 2010.

Henry Palmer Marvin E. Wiggins, Jr., attorneys for appellant.

Office of the Attorney General by Stephanie B. Wood, attorney for appellee.

EN BANC.

DICKINSON, Justice, for the Court.

¶ 1. Douglas E. Jay, Jr., was tried in absentia and convicted on multiple counts of drug possession. He appeals, claiming he was incompetent to stand trial.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. After obtaining a search warrant, reading Jay his Miranda¹ rights, and searching him, law enforcement officers found three bags on his person, one of which contained an off-white substance. The second bag contained a leafy green substance, and the third contained pills. These substances were later determined to be methamphetamine, marijuana, and alprazolam (Xanax), respectively. During the search of Jay's bedroom, marijuana was found in a night stand and in a metal tube under a pillow.

¶ 3. Deputy Sheriff Mark Spence testified that the officers prepared to take Jay and Theresa Chapman—an adult female who was also at the residence at the time the search warrant was executed—to jail. While transporting Jay and Chapman out of the home, Jay said, "why are you taking [Chapman]?" Spence replied, "with everything we found here, she was here, we're going to take her in also," to which Jay replied, "there's no need for that . . . everything that you found here was mine."

¶ 4. Jay was indicted as a second-time drug offender for four felonies: possession of methamphetamine, possession of marijuana, possession of alprazolam, and possession of a firearm by a convicted felon. Trial was set for April 11, 2005.

¶ 5. While out on bond awaiting trial, Jay was attacked on his motorcycle and hit in the head with a rifle stock. As a result of the attack, Jay was diagnosed with traumatic brain injury.

¶ 6. On April 4, 2005, Jay's trial counsel filed a motion for continuance, claiming Jay was incompetent to stand trial. In support of the motion, counsel provided the court a letter from Dr. Stuart A. Yablon, the Director of the Brain Injury Program at Methodist Rehabilitation Center in Jackson, Mississippi, which stated that Jay was "unable to participate in any court proceedings at this time" due to his injuries.

¶ 7. On April 6, 2005, the trial court ordered that psychiatrist Mark C. Webb conduct a psychiatric examination of Jay the next day to determine his ability to stand trial and assist his attorney in his defense. Although Dr. Webb's report had not been received, Jay's case was called to trial in the Circuit Court of Newton County on April 11, 2005. Prior to the docket being called at 9 a.m., Jay was present at the courthouse. However, he could not be located when his case was called. After Jay could not be located during a fifteen-minute recess, the case proceeded to trial without him.

¶ 8. Two days after the trial began, Dr. Webb filed his report with the trial court. The report stated that Jay "admits that he had all of the drugs in his possession" at the time he was arrested, and Jay "states to being intoxicated with methamphetamine and marijuana on the day of his arrest." The report further stated that, "Mr. Jay is very aware of the court proceedings and is working with his attorney," and that Dr. Webb had "made Mr. Jay completely aware of the purpose and ramifications of this interview and [Jay] consent[ed] to both." The report concluded that Jay was "able to stand trial, assist his attorney in his defense, able to know the difference between right and wrong, and understood the quality of his actions at the time of the alleged offense." In summary, the report stated, "Mr. Jay is competent to stand trial and is not criminally insane."

¶ 9. At trial, the State presented numerous witnesses in its case-in-chief. When the State rested, Jay's attorney moved for a directed verdict. The motion was denied, and the trial judge inquired into the amount of testimony the defense would present. Jay's attorney announced that he would have "none."

¶ 10. Jay's attorney objected to the trial being conducted in his client's absence and moved for a continuance. In denying the motion, the trial judge stated:

[T]his man voluntarily left this courthouse. . . . he has known . . . since December of last year, that his case was being tried today, and he was here Monday of last week. It was announced that the case would be tried today. He was here Thursday on his motion. It was announced that the case would be tried today. . . . He was here this morning and he met with you, and . . . you told him to go on in the courtroom and that you'd come and get him. He left . . . We looked for him. We waited . . . if there's any harm that comes from him not being here, he's the one that caused it.

Jay's attorney responded, "Can't argue that fact, Your Honor."

¶ 11. The trial judge instructed the jury, and the attorneys made closing arguments. The jury found Jay guilty on all three drug counts contained in the indictment. The fourth count of the indictment, possession of a firearm by a convicted felon, was ordered nolle prosequi.

¶ 12. A sentencing hearing was scheduled for April 12, 2005. Arguing that Jay could not have known the time and date of the sentencing hearing, Jay's attorney objected to the hearing being held in Jay's absence. The trial court deferred Jay's sentencing until April 15, 2005.

¶ 13. Although Jay did not appear on April 15, the trial court proceeded. Finding that the State had met the burden of proof regarding Jay being a second-time drug offender, the trial court sentenced Jay pursuant to Section 41-29-147 of the Mississippi Code, which provides for enhanced sentencing. Miss.Code Ann. § 41-29-147 (Rev.2005). For possession of methamphetamine, Jay was sentenced to twenty-five years in prison and fined $10,000. For possession of marijuana, he was sentenced to six years in prison to run consecutively with the previous sentence. For possession of alprazolam, Jay was sentenced to two years in prison, to run concurrently with the first two sentences.

¶ 14. On April 22, 2005, Jay's attorney filed several post-trial motions, including a motion for a new trial, which was not ruled upon until June 2008. On October 13, 2005, Jay's attorney filed a motion to set aside judgment of conviction and sentence. A hearing was held on this motion on May 11, 2006, and the motion was overruled on May 24, 2006. Although the trial court had not ruled on Jay's motion for new trial, his attorney filed a motion for an out-of-time appeal on June 2, 2006. This motion was overruled on August 4, 2006.

¶ 15. Jay filed a notice of appeal on September 5, 2006, which Jay claims in his brief was "the next business day following the three-day Labor Day weekend." The State filed a motion to dismiss the appeal pursuant to Rule 4 of the Mississippi Rules of Appellate Procedure. The State argued that Jay's appeal was not ripe because Jay's motion for a new trial had not been disposed of in the trial court before the notice of appeal was filed, and therefore, Jay had not exhausted his remedies in the trial court. Finding this argument persuasive, the Court of Appeals dismissed the appeal, because it was "not timely filed," concluding that "the Court has no jurisdiction to hear the appeal." A motion for reconsideration was denied.

¶ 16. On June 4, 2008, Jay requested that the trial court hold a hearing on his motion for a new trial. The hearing was held on June 18, 2008, and the trial court denied the motion. On June 19, 2008, the trial court amended its June 18 order. This amended order stated that Jay's motion for new trial was denied "for not being timely brought before the Court for a decision thereon." Jay's attorney now claims that this amendment was "unknown to counsel" and that the issue of timeliness was "addressed inconclusively during the hearing."

¶ 17. Jay filed the current notice of appeal to this Court on July 3, 2008. Jay appeals from the judgment of conviction entered April 21, 2005, the order overruling motion to set aside judgment of conviction and sentence entered on May 27, 2006, the order denying motion for new trial entered on June 18, 2008, and the order amending previous order entered June 19, 2008.

¶ 18. Jay raises eight issues. Because we find dispositive the issue of Jay's right to a mental competency hearing, the procedural issues, as well as the trial in Jay's absence, are addressed only briefly. The other issues Jay raises need not be addressed.

DISCUSSION

Post-Trial Motions

¶ 19. Jay first argues that the trial court erred in not granting his multiple post-trial motions, including his motion for a new trial. This Court has stated that "[i]n reviewing the decision of the trial court on a motion for a new trial, this Court views all of the evidence in the light most consistent with the jury verdict." Daniels v. State, 742 So.2d 1140, 1143 (Miss.1999) (citing Strong v. State, 600 So.2d 199, 204 (Miss.1992)). While this issue is not dispositive, the denial of the motion for a new trial is addressed solely regarding the procedural issues involved with perfecting the current appeal.

¶ 20. Jay's trial counsel filed a motion for a new trial on April 26, 2005, days after the judgment and sentence were filed. This motion contained nine assignments of error. The trial court neither denied the motion nor held a hearing until June 18, 2008.

¶ 21. Rule 4 of the Mississippi Rules for Appellate Procedure—which governs when an appeal as of right can be taken—requires that "the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." However, Rule 4(a) excepts from this thirty-day requirement cases in which motions have been filed pursuant to Rule 4(e). Rule 4(e) provides that the thirty-day time...