Kelly v. State
| Citation | 305 So.3d 1134 |
| Decision Date | 19 November 2020 |
| Docket Number | NO. 2019-KA-01044-SCT,2019-KA-01044-SCT |
| Parties | Kasey Boomer KELLY a/k/a Kasey Kelly a/k/a Kasey B. Kelly v. STATE of Mississippi |
| Court | Mississippi Supreme Court |
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN E. BRIGGS, GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ASHLEY LAUREN SULSER
BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.
¶1. Kasey Boomer Kelly was convicted of possession of a weapon by a convicted felon in the Circuit Court of Forrest County, Mississippi. Kelly appeals his conviction, claiming that his constitutional right to a speedy trial was violated and that the evidence was insufficient to support his conviction.
¶2. This Court finds that Kelly's constitutional right to a speedy trial was not violated because he failed to assert that right and because he failed to demonstrate that he was prejudiced by the delay. We find also that the State presented sufficient evidence to show constructive possession of the weapon. Therefore, we affirm.
¶3. During the night of November 11, 2015, Officer Corey Henderson of the University of Southern Mississippi Police Department (USMPD) was on patrol, traveling northbound on Service Road. Upon approaching the intersection at Service Road and West 4th Street, Officer Henderson observed a vehicle he had dealt with on several prior occasions. The officer testified that, as he made a left turn onto West 4th Street, he could "smell the very strong odor of burnt marijuana in the area" when he was "approximately fifteen feet away from the vehicle." He testified also that he remembered the windows of his patrol car were down but that he could not recall whether any of the windows of the other vehicle were down.
¶4. Officer Henderson initiated a traffic stop, and the vehicle pulled into the Hillcrest Dormitory parking lot. Four people were in the car: the driver and three passengers. Kelly was sitting in the back of the car behind the driver's seat.
¶5. While Officer Henderson was talking to the driver of the vehicle, his partner, Officer Annie Bourgoyne, arrived on the scene. Officer Henderson asked Kelly to exit the vehicle to allow Henderson to search it. Kelly was instructed to walk toward Officer Henderson's patrol car and to stay there. While Officer Henderson conducted a search of the vehicle, Officer Bourgoyne was talking with the other passengers. Officer Henderson testified that he would occasionally stop his search to check on Kelly's whereabouts and to tell Kelly to put his hands back on the hood of the patrol car. While Officer Henderson continued searching the vehicle, Kelly fled the scene, running past the front of Hillcrest Dormitory "before turning to the right and beginning to run east across Highway 49." Officer Henderson pursued Kelly on foot and was about forty to fifty yards behind him. Throughout the foot pursuit, Officer Henderson yelled for Kelly to stop, but Kelly did not comply.
¶6. After Kelly had crossed the highway, he ran toward a commercial building. He ran alongside the building, then he turned a corner and headed down an alleyway on the back side of the building. Officer Henderson testified that the only time he lost sight of Kelly was when Kelly turned the corner to head down the alleyway.
When Officer Henderson caught up to Kelly in the alleyway, Kelly was "on top of a fence"; he then dived into the wood line. Officer Henderson testified that he "was not about to jump the fence or go into the woods" to chase Kelly alone. Instead he went around toward 7th Street and regrouped with his supervisor in front of Jr. Food Mart. Officer Henderson noticed there were no fences behind the residences, which allowed him to enter the wooded area that Kelly had entered. He testified that he "went behind the house" and found Kelly "curled up next to the fence." Kelly was "no more than approximately ten to fifteen feet away" from Officer Henderson, who ordered Kelly to stand up and to come toward him. When Kelly complied, Officer Henderson observed a "piece of red material on the ground that resembled a wallet" and a black magazine for a handgun. He did not take these items into his possession at the time he observed them. Henderson arrested Kelly and walked him back to Jr. Food Mart; he then placed Kelly in a patrol car. Once back at Jr. Food Mart, Officer Henderson told his supervisor that Kelly was "laying on something" and that he needed to go back and search the area "to make sure there wasn't anything [Kelly had] tried to get rid of from his person at the time." Officer Henderson went alone to the area behind the house where Kelly had been arrested and collected the items. Officer Henderson testified that the black magazine and wallet were found where Kelly's right leg had been located.
¶7. While in pursuit, Officer Henderson had informed dispatch that he was pursuing a suspect on foot. The dispatcher notified Hattiesburg Police Department (HPD) that their assistance was needed. Hattiesburg Police Department Officers Eric Gannon and Jacob Byrd responded to the call to help Officer Henderson locate Kelly. Officer Byrd testified that, by the time he got to the area where Officer Henderson had located Kelly, Kelly already was in handcuffs. Officer Byrd said also that Officer Henderson had told him he had seen a magazine underneath Kelly. Officer Byrd did not see the magazine. After Officers Byrd and Gannon were made aware of the existence of the handgun magazine, they retraced Kelly's steps, looking for items that Kelly could have disposed during the foot pursuit. Officer Byrd testified that they found a handgun near the corner of the building that Kelly had run behind. The gun was found "approximately fifty feet" from the location at which Kelly was arrested and was located over the fence and to the right of an oak tree in the yard behind 608 North 25th Avenue. Officer Gannon examined the handgun, which was a Ruger P89 nine millimeter, and removed the magazine. Officer Bourgoyne received the gun from the two HPD officers and turned it over to Officer Henderson for him to compare it to the handgun magazine he had found under Kelly's leg. Officer Henderson testified that the handgun magazine found under Kelly's leg "did lock into place" and fit the Ruger pistol. No officer testified that he or she actually had seen Kelly with a firearm.
Kelly's trial commenced on April 8, 2019. The parties stipulated that Kelly was a convicted felon. On April 9, 2019, the jury found Kelly guilty of possession of a weapon by a convicted felon. He was sentenced to serve eight years in the custody of the Mississippi Department of Corrections, and the sentence was to run consecutive to any other sentence he already was serving. Kelly filed his notice of appeal on June 24, 2019.
¶9. "The standard of review of a speedy-trial claim encompasses a review of the facts and questions whether the trial delay arose from good cause." Courtney v. State , 275 So. 3d 1032, 1037 (Miss. 2019) (citing DeLoach v. State , 722 So. 2d 512, 516 (Miss. 1998) ). "If substantial credible evidence supports a finding of good cause, this Court will not disturb that finding." Bateman v. State , 125 So. 3d 616, 628 (Miss. 2013) (citing Folk v. State , 576 So. 2d 1243, 1247 (Miss. 1991) ).
¶11. Kelly asserts that the State violated his constitutional right to a speedy trial1 because the delay was longer than eight months, the trial court erred by finding there was good cause for the delay, and the delay caused Kelly to suffer actual prejudice. The State contends that Kelly's right to a speedy trial was not violated because Kelly failed to assert his right, and he failed to show that he was prejudiced by the delay.
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