May v. State
| Decision Date | 21 May 2019 |
| Docket Number | NO. 2017-KA-01415-COA,2017-KA-01415-COA |
| Citation | 285 So.3d 639 |
| Parties | David Lee MAY a/k/a David L. May a/k/a David May, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson, PHILLIP BROADHEAD, Oxford
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN, LADONNA C. HOLLAND, Jackson
EN BANC.
J. WILSON, P.J., FOR THE COURT:
¶1. Following a jury trial in the Harrison County Circuit Court, David Lee May was convicted of two counts of aggravated assault and sentenced, as a violent habitual offender, to concurrent terms of life imprisonment. May raises one issue on appeal: whether the circuit court should have dismissed his indictment based on a violation of his constitutional right to a speedy trial. We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On October 27, 2012, May was arrested for the aggravated assaults of Jessica McLard and Arnold Quave. May was indicted for two counts of aggravated assault on June 17, 2013, as a violent habitual offender, and the court appointed counsel (Phillip Wittman) to represent him three days later. On July 22, 2013, in a separate cause number, May was indicted for possession of cocaine, again as a violent habitual offender. The same day, May filed a motion for a continuance in both cases. The reason given for May's request was "new discovery for the defendant." The motion stated that May waived his speedy trial rights and objections. The court granted the motion "upon consideration of good cause." The court set trial for September 23, 2013. However, trial did not commence on that date. It appears that trial may have been continued on that date because May informed the court that he wanted to proceed pro se with Wittman as "standby counsel."
¶3. On October 14, 2013, May and the State filed a joint motion for a continuance on the grounds that a witness for the State was unavailable and May needed time to review discovery materials. The court granted the motion "upon consideration of good cause" and reset the trial for November 4, 2013.
¶4. On November 12, 2013, May filed a pro se motion for a speedy trial in this case. The next day, the court entered an order applicable to both of May's cases. The order stated that both cases had been set for trial the week of November 4, 2013, but neither was tried because a case above them on the docket had gone to trial. The order also stated that the parties had agreed to a hearing date on May's motion to suppress in the drug case (December 2, 2013) and a new trial date for both cases (December 9, 2013).
¶5. On December 9, 2013, May's drug case went to trial. He was convicted of possession of cocaine and sentenced to life imprisonment as a violent habitual offender. May appealed.
¶6. Nothing else happened in May's assault case until April 30, 2015. On that date, the court entered an order allowing Wittman to withdraw and appointing Jim Davis as May's new attorney. The order also set May 18, 2015, as the new plea or trial date. The case was not tried on that date. On June 5, 2015, May filed a pro se motion to dismiss for failure to provide a speedy trial.
¶7. On October 15, 2015, May and the State filed a joint motion for a continuance. The motion indicated that May was not present in court but, through counsel, waived all speedy trial rights and objections. The motion gave "appeal pending in other case" as the reason for the continuance. The court granted the joint motion "upon due consideration of good cause," and the trial was reset for April 18, 2016.
¶8. On November 2, 2015, Jim Davis sent a letter to the assistant district attorney to inform her that May was not waiving his right to a speedy trial and desired a trial "as soon as possible" and "before April." In response, the State filed a "Motion to Set Earlier Trial Date." However, the State's motion advised the court that Davis had stated that he was "not available for any of the next six (6) available trial weeks" in December 2015 or January 2016. Consequently, the State simply asked the trial court for "the earliest trial setting that [would fit Davis's] schedule."
¶9. On November 17, 2015, May filed a pro se petition for a writ of mandamus in the Mississippi Supreme Court. May's petition sought a ruling on his motion to dismiss for failure to provide a speedy trial. A panel of the Supreme Court denied May's petition. In re: David Lee May , No. 2015-M-01700 (Miss. Dec. 9, 2015).
¶10. On April 18, 2016, May, through counsel, filed a motion for a continuance. The motion stated that discovery was "ongoing" and "not completed." The motion also stated that May again waived all speedy trial rights and objections. The court granted the motion "upon due consideration of good cause" and reset the trial for July 5, 2016.
¶11. On July 5, 2016, Davis filed another motion for a continuance. Davis's motion stated that he had met with May only twice because May had been in the custody of the Department of Corrections (due to his conviction and life sentence for possession of cocaine). Davis's motion also stated that he needed more time to review the "voluminous" discovery, that he might need time to retain an expert witness to address fingerprint evidence, and that he might need time to request the toxicology test results of both victims. At the hearing on the motion, Davis argued that he needed additional time to prepare for trial and that a continuance was in May's best interest, but Davis also acknowledged that May objected to a continuance. May told the court that he wanted to go to trial pro se that day despite counsel's motion. However, the court granted a continuance and reset the trial for October 3, 2016.
¶12. On October 3, 2016, the trial was postponed again, this time on the court's own motion. The court's order stated that the trial was postponed because a jury could not be brought to the courthouse because the "streets all around [the] courthouse [were] to be closed" "during a coast event." The record does not identify "coast event." On appeal, May alleges that it was the Cruisin' the Coast classic car show and festival. Trial was reset for April 25, 2017.
¶13. On December 13, 2016, this Court reversed May's drug conviction. See May v. State , 222 So.3d 1074 (Miss. Ct. App. 2016), cert. denied , 223 So.3d 785 (Miss. 2017). This Court denied rehearing on April 11, 2017. The State then filed a petition for a writ of certiorari, which the Mississippi Supreme Court denied on August 3, 2017.
¶14. May's case was not tried in April, as had been scheduled. On May 16, 2017, the court entered an order that stated only that the court had been "unavailable for a trial the week of April 25, 2017." The court reset the trial for September 11, 2017.
¶15. On August 1, 2017, Davis moved to withdraw because a "conflict ha[d] arisen between" him and May. Davis noticed his motion for hearing on August 28, 2017.
¶16. On August 28, 2017, May, through counsel, filed a motion for a continuance requesting a "short delay." May's motion stated that he waived his speedy trial rights and objections "for this 2 week delay" only. The court granted the continuance "upon due consideration of good cause." The court set a hearing for September 11, 2017, and rescheduled the trial for September 25, 2017.
¶17. On September 14, 2017, the court held a motions hearing and addressed Davis's motion to withdraw. Counsel stated that he would remain as trial counsel but May would also participate in his own defense. The court also heard May's motion to dismiss for failure to provide a speedy trial. May testified that he "always wanted to go to trial on the charges" and that he had not approved of any of the continuances requested by his attorneys. The court reserved ruling on May's motion.
¶18. On September 26, 2017, the trial court orally denied May's motion to dismiss, and May's trial finally began later that day.1 Jessica McLard testified that in July 2012 she was staying at a house in Biloxi with her boyfriend (Bobby Cook), Arnold Quave, and Brandon Birchfield. McLard and Cook were in Biloxi to work on a short-term construction job. McLard testified that Quave allowed May to spend one night on a couch in the living room of the house. May apparently worked with Quave on a shrimp boat, but Quave only knew him as "David" and did not know his last name. McLard did not know May and only saw him briefly on the porch when she returned home that evening. The next morning McLard awoke to find May in her bedroom staring at her. May then demanded sex. McLard refused, but May persisted and eventually grabbed McLard by the throat, put her in a choke hold, punched her in the face, and cut her face with a knife. Quave heard McLard screaming and tried to intervene, but May cut Quave's arm with the knife. McLard escaped the house, and a neighbor heard her screaming and called the police. Photographs of McLard's and Quave's injuries and blood spattered through the house were admitted into evidence at trial.
¶19. The jury found May guilty on both counts of aggravated assault, and the court sentenced May to concurrent terms of life imprisonment as a violent habitual offender. May filed a timely notice of appeal. May does not challenge the weight or sufficiency of the evidence against him or allege any other error during his trial. As stated above, his only claim on appeal is that the delay in bringing his case to trial violated his state and federal constitutional rights to a speedy trial.
ANALYSIS
¶20. The Mississippi Constitution and the United States Constitution both protect the defendant's right to "a speedy ... trial."2 Miss. Const. art. 3, § 26 ; U.S. Const. amend. VI.3 "When considering an alleged violation of a defendant's [state or federal constitutional] right to a speedy trial, Court applies the four-part test developed by the United States Supreme Court in Barker v....
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Berryman v. State
...Ordinarily we would agree that a continuance requested by defense counsel for such reasons would weigh against the defendant. May v. State , 285 So. 3d 639, 649 (¶30) (Miss. Ct. App. 2019) (holding that a defendant "is bound by his lawyer's decisions as to the timing of trial and the need f......
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Berryman v. State
...we would agree that a continuance requested by defense counsel for such reasons would weigh against the defendant. May v. State, 285 So.3d 639, 649 (¶30) (Miss. Ct. App. 2019) (holding that a defendant "is bound by his lawyer's decisions as to the timing 16 of trial and the need for a conti......