Johnson v. State, 2008-CT-00537-SCT

Decision Date30 June 2011
Docket NumberNO. 2008-CT-00537-SCT,2008-CT-00537-SCT
PartiesVIRGIL N. JOHNSON v. STATE OF MISSISSIPPI
CourtMississippi Supreme Court

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 03/13/2008

TRIAL JUDGE:HON. TOMIE T. GREEN

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: DONALD W. BOYKIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE MCCRORY

DISTRICT ATTORNEY: ROBERT SHULER SMITH

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 06/30/2011

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

PIERCE, JUSTICE, FOR THE COURT:

¶1 Virgil Johnson was convicted of aggravated assault and armed robbery in Hinds County Circuit Court. Johnson appealed, and the Court of Appeals affirmed his conviction and sentence. We granted certiorari. Because Johnson's right to a speedy trial was not violated, and because Johnson was not prejudiced by the trial court's refusal to grant Johnson's for-cause challenges of two prospective jurors, we affirm the trial court and the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

¶2. On February 28, 2006, Jeremy Boyd was shot four times at his home in Jackson, Mississippi. While at the hospital, Boyd told police officers that he had been shot by Virgil Johnson. Boyd also identified Johnson from a photographic lineup. On April 20, 2006, officers arrested Johnson, and he was indicted on February 6, 2007, and charged with aggravated assault and armed robbery. On April 4, 2007, a year after Johnson was arrested, he moved the court for a "fast and speedy trial." Johnson was arraigned on April 16, 2007. His bond was set at $100,000, which he could not pay, so he remained in jail. Johnson filed a motion for a reduction in bond. On December 10, 2007, Johnson moved to dismiss for failure to grant a speedy trial. The trial court did not address any of Johnson's motions.

¶3. Johnson's trial was held March 11, 2008. At trial, Boyd testified as to what had occurred on the day he was shot. According to Boyd, he invited Johnson over to his home because he had planned to buy a vehicle and wanted Johnson's advice. Boyd was a professional barber, and when Johnson arrived he offered to give him a haircut. After the haircut, Boyd recounted that he and Johnson smoked weed and played video games. Boyd noticed that Johnson had become quiet, and he asked Johnson if things were all right. Boyd continued to play the video game. Boyd recalled that his gun was on the floor beside his feet, and that he saw Johnson get up. Boyd said he thought Johnson had gone to the restroom, but instead, Johnson came up behind him and shot him in the back of the neck. Boyd testified that Johnson immediately shot him again. Boyd said that Johnson shot him two more times, even though he was pretending to be dead. Then, Johnson flipped Boyd over and took $1,900 that Boyd had planned to use to purchase the vehicle. According to Boyd, Johnson then fled the scene. Boyd called 911.

¶4. The jury convicted Johnson of aggravated assault and armed robbery. The Court of Appeals affirmed the conviction, finding no reversible error. Johnson petitioned for writ of certiorari, which this Court granted, and raises two issues.

I. Whether Johnson's right to a speedy trial was violated.
II. Whether Johnson's for-cause challenges should have been granted.

DISCUSSION

I. Whether Johnson's right to a speedy trial was violated.

¶5. Johnson asserts that his constitutional right to a speedy trial was violated, because 680 days passed between the time of arrest and the date of his trial. The Court of Appeals found no merit in Johnson's averment. We agree with the Court of Appeals, and affirm the trial court.

¶6. The Sixth Amendment to the United States Constitution provides an accused the right to a "speedy and public trial."1 And the Mississippi Constitution establishes an almost identical protection.2 In Barker v. Wingo, the Supreme Court provided four factors to consider whenever a defendant claims that his constitutional right to a speedy trial has been violated: length of delay, reasons for delay, whether the defendant asserted his right to a speedy trial, and whether the defense suffered any prejudice from the delay.3 Where the length of delay exceeds eight months, the delay is presumptively prejudicial and triggersfurther analysis of the remaining three Barker factors. These factors must be considered together with other relevant circumstances.4

Length of delay

¶7. In Smith v. State, this Court determined that a delay of eight months or longer is presumptively prejudicial.5 But let us be clear; when the delay is presumptively prejudicial that does not mean that actual prejudice to the defendant exists. Rather, actual prejudice is determined at a different point in the Barker analysis. A "presumptively prejudicial delay" acts as a triggering mechanism for further inquiry into the Barker analysis, and shifts the burden to the State to show the reason for delay.6 Even the United States Supreme Court recognized this logic in Doggett v. United States, when it noted that "as the term is used in this threshold context, 'presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry.7 To the extent Smith says otherwise, that portion of the opinion is overruled.

¶8. Here, 680 days passed between Johnson's arrest and his trial, so the delay is presumptively prejudicial. The benefit of this presumption is further examination of theBarker factors,8 and the burden of persuasion shifts to the State to establish good cause for the delay.9

Reasons for delay

¶9. The Court of Appeals found the record contained evidence of the delay and noted the overcrowded docket as the reason. "Overcrowded dockets" falls within the realm of neutral reasons for delay but should be considered since the "ultimate responsibility for such circumstances must rest with the government."10 Contrary to what the dissent may believe, the record sheds light on the reason for delay. The trial court found the delay was necessary due to the backlog of cases, and noted that several, older cases were set before Johnson's that may have caused his case to be put off until the court's next term. Further, the State provided three trial dates from the computer system used throughout Hinds County, which showed that Johnson's case had been set for trial three months after he was arraigned. At most, this prong weighs slightly against the State.

Whether defendant asserted his right to a speedy trial.

¶10. The State bears the burden of bringing a defendant to trial.11 But where the defendantasserts his right to a speedy trial, "he gains far more points" under this prong of Barker.12 Johnson asserted his right to a speedy trial. This prong weighs in Johnson's favor.

Prejudice to the defendant

¶11. We start this discussion with this Court's inconsistent analysis of this prong, and which party bears the risk of nonpersuasion. In State v. Ferguson, the Court proposed that "[w]here the delay has been presumptively prejudicial, the burden falls upon the prosecution" to show the lack of prejudice to the defendant.13 The Ferguson Court relied on a Fifth-Circuit case, Prince v. Alabama,14 to support this proposition. In Prince, the Fifth Circuit held that a defendant must first establish a prima facie case that his right to a speedy trial has been violated before the burden shifts to the State to show that the defendant was not prejudiced by the delay.15 The defendant in Prince claimed "that his defense has been impaired due to the lapse of time both in the disappearance or death of key alibi witnesses and in the dimming of the memories of those witnesses who were available at trial," and the record held evidence of personal prejudice to the defendant as well.16 Further, the defendant in Ferguson had asserted claims of prejudice in the form of missing witnesses, and the record contained evidence of such. So in both cases, each defendant produced evidence of prejudice before theburden shifted to the State to show the lack thereof. But Johnson does not come close to showing a prima facie case of actual prejudice, nor does the record reveal that Johnson suffered any prejudice other than being incarcerated. This Court will not infer prejudice out "of the clear blue."17

¶12. Until Ferguson, Mississippi caselaw did not require that the State bear the burden under the fourth prong of Barker, where the delay was presumptively prejudicial.18 And even after Ferguson, this Court has declined to shift the burden to the State in cases where the delay was presumptively prejudicial.19

¶13. In Moffett v. State, the defendant was incarcerated for 1,656 days before his trial, which the Court found presumptively prejudicial.20 But even so, the burden remained with Moffett to show actual prejudice under the fourth prong of Barker.21 In Jenkins v. State, 626 days passed between Jenkins's arrest and his trial, which the Court found to bepresumptively prejudicial.22 The Court went on to discuss the remaining Barker factors. But the Court's analysis under the "prejudice" prong of Barker never included shifting the burden from the defendant to the State to show the lack of actual prejudice, even though the delay was presumptively prejudicial.23

¶14. In Manix v. State, 1,430 days elapsed between the date of arraignment and trial.24 Of course, this delay was presumptively prejudicial. Even so, the Court did not shift the burden to the State to show the lack of actual prejudice under the "prejudice" prong of Barker.25 And, in Sharp v. State, 731 days passed between Sharp's arrest and trial, which exceeded the eight-month threshold and established presumptive prejudice.26 Nevertheless, the Court did not shift the burden from the defendant to the State under the "prejudice" prong of Barker.27

¶15. The dissent maintains that, "[I]n Ferguson, this Court followed Moor...

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