Kinzey v. State, No. 56273

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtDAN M. LEE; WALKER; ROBERTSON
Citation498 So.2d 814
PartiesDonnell C. KINZEY v. STATE of Mississippi.
Docket NumberNo. 56273
Decision Date19 November 1986

Page 814

498 So.2d 814
Donnell C. KINZEY
v.
STATE of Mississippi.
No. 56273.
Supreme Court of Mississippi.
Nov. 19, 1986.

Page 815

Carroll Rhodes, Hazlehurst, for appellant.

Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

DAN M. LEE, Justice, for the Court:

On March 14, 1983, Donnell Kinzey was indicted for the possession of more than one ounce but less than one kilogram of marijuana. He was tried in the Circuit Court of Simpson County and, on September 21, 1984, found guilty as charged. On September 28, 1984, Kinzey was sentenced to serve three years in the custody of the Mississippi Department of Corrections.

I.

On February 26, 1983, Andrew Parhams was stopped at a roadblock on Highway 28, just west of Pinola, Mississippi. The roadblock was manned by two Simpson County Sheriff's officers and a Simpson County Constable. Parhams was asked to pull his truck over; he was driving with an expired tag. According to the officers' testimony, Parhams was asked to exit the truck and he complied. While one officer was writing out the traffic citation, two other officers noticed that Donnell Kinzey, the passenger in Parham's truck, was acting in a manner which aroused their suspicion. Kinzey was sitting rigidly in the truck and staring straight ahead. The officers indicated that usually passengers are curious and turn to watch as tickets are issued.

One officer, Johnny Abernathy, approached the truck, opened the door and asked Kinzey to step out and walk to the back of the truck. Kinzey complied but continued to walk down the road so that Abernathy was forced to call upon another officer to stop Kinzey.

On the floor of the truck was a brown paper bag which Abernathy had seen between Kinzey's legs. The bag was open and Abernathy was able to view two plastic bags within it which contained a substance later identified as marijuana. Kinzey and Parhams were both arrested and charged with possession of marijuana.

On March 14, 1983, Donnell Kinzey was indicted by a Simpson County grand jury for possession of marijuana with intent to deliver. Subsequently, on April 8, 1983, the indictment was amended to charge Kinzey with possession of more than one ounce but less than one kilogram of marijuana.

Kinzey was first tried on the charge on October 5, 1983. That trial resulted in a hung jury, and the trial court properly declared a mistrial.

On April 7, 1984, the court sustained the state's motion for a continuance of this case due to a crowded trial docket and the fact that the district attorney was busy with other cases.

On August 31, 1984, Kinzey filed a motion to dismiss the indictment against him on the grounds that he had not been granted a speedy trial and that thereby his constitutional

Page 816

and statutory rights were violated. The motion was denied and the case proceeded to trial on September 21, 1984.

II.

DID THE TRIAL COURT ERR IN OVERRULING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AND THE CASE?

The crux of Kinzey's assertion is that retrial, after a mistrial has been declared, should take place within the 270 days following the first trial in order to satisfy the requirements of the Sixth Amendment to the United States Constitution and Section 26 of the Mississippi Constitution. Kinzey wishes to use the statutory time frame specified in Sec. 99-17-1 Miss.Code Ann., as amended, to establish a reasonable period of time within which retrial should take place. However, that section requires only that indictments be tried within 270 days of arraignment.

The use of Sec. 99-17-1 is foreclosed by Carlisle v. State, 393 So.2d 1312 (Miss.1981), where this Court stated:

Some states take the position that under speedy trial statutes, a mistrial constitutes a trial and therefore the statutory period begins anew. Other states hold that when a mistrial results, the speedy trial statute has been complied with and the time for retrial is discretionary with the court.

* * *

In Ruester v. Turner, 250 So.2d 264 (Fla.1971) the Florida Supreme Court summarized the positions taken by other states with reference to speedy trial statutes after a mistrial and stated:

We now agree with those courts that have determined that if a mistrial results compliance with the statutory requirements is satisfied. The time for retrial then becomes a matter of discretion with the trial court, which is to be measured by constitutional standards of reasonableness and fairness under the constitutional speedy trial right.... (250 So.2d at 267).

We agree with the conclusion stated in Ruester and hold that if a mistrial results, or if a case is reversed on appeal for retrial compliance with section 99-17-1 is satisfied. The time for retrial then becomes a matter of discretion with the trial court to be measured by the constitutional standards of reasonableness and fairness under the constitutional right to a speedy trial as enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In Barker the United States Supreme Court announced a four part balancing test involving the following four factors:

1. Length of delay,

2. Reason for delay,

3. The defendant's assertion of his right

4. Prejudice to the defendant.

The Supreme Court, in Barker, promulgated the balancing test because, "The right to a speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied." The balancing test set forth in Barker must be applied on a case by case basis under the particular facts of the case under consideration.

Id. at 1314. See also Darby v. State, 476 So.2d 1192, 1194 (Miss.1985). No one of these Barker factors is dispositive; all must be considered together. Burgess v. State, 473 So.3d 432 (Miss.1985); Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985).

Kinzey was retried on September 21, 1984,--approximately 352 days after the mistrial of October 5, 1983. On April 7, 1984, the state requested a continuance because of a congested docket. The trial judge continued the cause until the next term of court. Simpson County has three circuit court terms: 1) the 24 days following the 2nd Monday in March; 2) the 24 days following the 1st Monday in September and, 3) the 12 days following the 1st Monday in December. See, Sec. 9-7-37 Miss.Code Ann. (Supp.1984).

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The state's continuance on April 7 was requested during the March term; the continuance was granted until the September term. The state urges that, as the continuance was granted on good cause, the 150 days intervening between the close of the March term and the opening of the September term should be deducted. When this is done (and an additional eight (8) days delay added), a balance of 194 days remains chargeable to the state. Even if the entire 352 day delay is charged to the state, this is the only Barker factor in Kinzey's favor.

The second factor, reason for delay, is justified by prior case law. In both State v. Davis, 382 So.2d 1095, 1097 (Miss.1980) and Diddlemeyer v. State, 398 So.2d 1343, 1344-1345 (Miss.1981) overcrowded dockets were considered good cause for continuance.

The third factor, the defendant's assertion of his right, also weighs in the state's favor. Here Kinzey asserted his right to a speedy trial on August 31, 1984--approximately three weeks before his new trial was to begin on September 21, 1984. In Darby v. State, 476 So.2d 1192, 1193-1194 (Miss.1985), the defendant failed to move to dismiss his indictment until approximately one week before his trial. Such militated against his appeal and his conviction was affirmed.

The final factor, prejudice to the defendant, also favors the state. See, Diddlemeyer, 398 So.2d at 1345 ("[A]ppellant has not shown prejudice, and we find no merit in this contention.") But see, Burgess v. State, 473 So.2d 432 (Miss.1985) (Lack of prejudice alone insufficient to support affirmance.)

III.

DID THE TRIAL COURT ERR IN OVERRULING THE DEFENDANT'S OBJECTION TO THE TESTIMONY OF THE DEFENDANT'S WITNESS, ANDREW PARHAMS, AS TO EVIDENCE OF OTHER CRIMES WHICH PARHAMS MIGHT HAVE BEEN ENGAGED IN ON THE DAY THAT THE DEFENDANT RODE TO THE GULF COAST WITH HIM?

The exchange of which Kinzey here complains took place as follows:

Q. So, then you and Mr. Kinzey arrived at James' house, you don't know his last name, is that right?

A. (No answer by the witness.)

Q. Sir?

Q. You go to James' house and you and Mr. Kinzey went inside, is that correct?

A. RIGHT.

Q. And y'all rapped a little while?

A. Uh-huh.

Q. Did y'all talk about Marijuana?

A. No, not there.

Q. Not there? Where did you talk about Marijuana?

A. I talked about the Marijuana on the telephone.

Q. Did you talk to him about it when you pulled up to the house?

A. I didn't have to. I told you it was already paid for. All he had to do was put it in my truck.

Q. When did you pay for it?

A. Six hundred dollars ($600.00).

Q. I said, "When did you pay for it?"

A. I paid for it through a different way. I paid for it through engines that he had owed me, you know BY THE REPORTER: Paid for it what?

A. I didn't pay for it in cash money. I paid for it--this guy that wanted the hot rod, he got it for me; and I had--he owned me some money for that and I didn't pay for it--I didn't have to pay him in cash.

Q. All right.

A. He already had it--well, not that day. All I had to do was go down there and pick it up. It was already paid for.

Q. Who owed you the money for the engine?

A. (No answer by the witness.)

Q. Somebody owed you $600.00, is that right?

A. No, not exactly Six Hundred Dollars. He owed me Four Hundred Dollars and I didn't need but two more hundred, you know, to put with it, you know, but I had

Page 818

already gave it to him before I event went down there.

Q. Gave it to who?

A. The guy that brought me the Marijuana.

Q. And who is that?

BY MR. RHODES: Your Honor, I'm going to object to this as this might be evidence of...

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61 practice notes
  • Spencer v. State, No. 89-KA-1242
    • United States
    • United States State Supreme Court of Mississippi
    • December 31, 1991
    ...Miss. Const. art. III, Sec. 24. 1 See, e.g., Adams v. State, 583 So.2d 165, 170 (Miss.1991) (Robertson, J., dissenting); Kinzey v. State, 498 So.2d 814, 819 (Miss.1986) (Robertson, J.,...
  • Handley v. State, No. 07-KA-58858
    • United States
    • Mississippi Supreme Court
    • December 27, 1990
    ...statutory 270 day rule is satisfied once the defendant is brought to trial, even if that trial results in a mistrial. Kinzey v. State, 498 So.2d 814, 816 (Miss.1986); State v. Thornhill, 251 Miss. 718, 723, 171 So.2d 308, 310 (1965). Thereafter, the time of retrial is within the discretion ......
  • Nixon v. State, No. DP-65
    • United States
    • United States State Supreme Court of Mississippi
    • November 25, 1987
    ...the jury is the sole judge of the credibility of a witness as well as the weight and worth to be afforded his testimony. Kinzey v. State, 498 So.2d 814, 818 (Miss.1986); Griffin v. State, 495 So.2d 1352, 1354 (Miss.1986); Gathright v. State, 380 So.2d 1276, 1278 Buckley Violation? During th......
  • Winder v. State, Nos. 89-KA-00911
    • United States
    • United States State Supreme Court of Mississippi
    • June 30, 1994
    ...See also Mitchel v. State, 572 So.2d 865, 870 (Miss.1990); Moore v. State, 556 So.2d 1031, 1033 (Miss.1990); Kinzey v. State, 498 So.2d 814, 816 (Miss.1986); Lightsey v. State, 493 So.2d 375, 378 (Miss.1986); Nations v. State, 481 So.2d 760, 761 (Miss.1985); Bailey v. State, 463 So.2d 1059,......
  • Request a trial to view additional results
61 cases
  • Spencer v. State, No. 89-KA-1242
    • United States
    • United States State Supreme Court of Mississippi
    • December 31, 1991
    ...Miss. Const. art. III, Sec. 24. 1 See, e.g., Adams v. State, 583 So.2d 165, 170 (Miss.1991) (Robertson, J., dissenting); Kinzey v. State, 498 So.2d 814, 819 (Miss.1986) (Robertson, J.,...
  • Handley v. State, No. 07-KA-58858
    • United States
    • Mississippi Supreme Court
    • December 27, 1990
    ...statutory 270 day rule is satisfied once the defendant is brought to trial, even if that trial results in a mistrial. Kinzey v. State, 498 So.2d 814, 816 (Miss.1986); State v. Thornhill, 251 Miss. 718, 723, 171 So.2d 308, 310 (1965). Thereafter, the time of retrial is within the discretion ......
  • Nixon v. State, No. DP-65
    • United States
    • United States State Supreme Court of Mississippi
    • November 25, 1987
    ...the jury is the sole judge of the credibility of a witness as well as the weight and worth to be afforded his testimony. Kinzey v. State, 498 So.2d 814, 818 (Miss.1986); Griffin v. State, 495 So.2d 1352, 1354 (Miss.1986); Gathright v. State, 380 So.2d 1276, 1278 Buckley Violation? During th......
  • Winder v. State, Nos. 89-KA-00911
    • United States
    • United States State Supreme Court of Mississippi
    • June 30, 1994
    ...See also Mitchel v. State, 572 So.2d 865, 870 (Miss.1990); Moore v. State, 556 So.2d 1031, 1033 (Miss.1990); Kinzey v. State, 498 So.2d 814, 816 (Miss.1986); Lightsey v. State, 493 So.2d 375, 378 (Miss.1986); Nations v. State, 481 So.2d 760, 761 (Miss.1985); Bailey v. State, 463 So.2d 1059,......
  • Request a trial to view additional results

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