Mcbride v. State
| Decision Date | 17 August 2010 |
| Docket Number | No. 2008–KA–01347–COA.,2008–KA–01347–COA. |
| Citation | 61 So.3d 174 |
| Parties | Jerry McBRIDE, Appellantv.STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
W. Daniel Hinchcliff, attorney for appellant.Office of the Attorney General by Lisa L. Blount, attorney for appellee.Before LEE, P.J., IRVING and BARNES, JJ.BARNES, J., for the Court:
¶ 1. A Coahoma County Circuit Court jury found Jerry McBride guilty of sexual battery of his minor daughter.1 The trial court sentenced McBride to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). McBride now appeals his conviction and sentence, claiming that his right to a speedy trial was violated, and there was insufficient evidence to sustain the verdict. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶ 2. In May 2006, McBride was indicted for sexual battery of his daughter, who was under the age of fourteen at the time of the incident, pursuant to Mississippi Code Annotated section 97–3–95(1)(d) (Rev.2006). The indictment stated the battery occurred “on or about or between January 2002, and December 2005” in Coahoma County. McBride was subsequently arrested, arraigned, and assigned a court-appointed attorney.
¶ 3. McBride did not go to trial until several terms of court had passed. The court docket indicates that in September 2007, an order setting trial was filed. Representations at the pre-trial hearing indicated that this trial setting was for November 2007. Then, the record shows that in December 2007, an order reset trial for January 2008, but in January 2008 an agreed order reset trial to February 2008. In December 2007, McBride filed two pro se “Motion[s] for Directed Verdict of Acquittal,” within days of one another, complaining that he had been incarcerated for sixteen months in violation of his constitutional rights. Therefore, he asked that the charges against him be dismissed. Additionally, he noted he never received a copy of the indictment, never had a preliminary hearing, and never asked for a continuance of his trial, among other complaints. Also, in January 2008, McBride, dissatisfied with his court-appointed attorney's performance, filed a motion requesting termination of the services of his attorney. Pretrial hearings were held on McBride's motions, which were denied. The trial judge, considering McBride's pro se motions together, stated that McBride's “most significant complaint” was concerning the delay in his trial. However, the trial judge made a detailed analysis of the appropriate factors outlined in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) regarding the speedy-trial complaint and found no prejudice.
¶ 4. McBride's trial commenced on February 19, 2008. The State produced three witnesses: the victim, a middle-school counselor, and a Department of Human Services (DHS) specialist. The victim, who was eighteen years old at the time of trial, testified regarding two sexual incidents with McBride. At the time of the sexual incident, she was approximately eleven years old and McBride was living with his mother. He drove her and his seven-year-old son to “a friend's house,” which was in “the Brick Yard” in Clarksdale, Mississippi. When they arrived at the house, nobody was home. McBride took his daughter to the back of the house. He began hugging and touching her. Then, he pulled down her pants, unzipped his pants, and put his penis in her vagina. She testified she fought and screamed, but she did not tell anyone about the incident because she was scared.
¶ 5. The victim also testified about a second sexual incident with McBride that occurred when she was approximately fifteen years old. She and McBride went on the back roads outside of Clarksdale in order to let her drive. McBride's daughter testified she did not want to go with him. When they were approximately thirty minutes from Clarksdale, while she was driving, McBride began fondling her breasts and touching her between her legs, on top of her clothes. The victim, who lives with her mother, admitted that McBride had been mostly absent from her life and did not provide her money or material possessions. Also, there was “bad blood” between her mother and her father, who did not live together. The victim stated these were the only incidents of sexual abuse by her father.
¶ 6. The next witness for the State was a counselor from Oakhurst Middle School in Clarksdale. She testified that the victim approached her at school. Based on what the victim told her, the counselor alerted DHS, which came to the school and interviewed the victim. The last witness for the State, a family-protection specialist with DHS, explained she was employed by DHS to investigate allegations of child abuse. She testified that she investigated the allegation and spoke with the victim, as well as the victim's family members. The victim had a “forensic interview” with DHS in December 2005.
¶ 7. No witnesses testified for the defense. The jury returned a verdict of guilty, and McBride was sentenced to twenty-five years in the custody of the MDOC. McBride filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was denied. The trial court granted McBride's motion for an out-of-time appeal, and he now appeals his conviction and sentence.
ANALYSIS
¶ 8. McBride claims that he was denied his constitutional and statutory rights to a speedy trial, as he was incarcerated approximately nineteen months before being brought to trial. McBride argues it was error for the trial court to dismiss his pro se motions to have the charges dismissed; the dismissal was sought, in part, on his constitutional right to a speedy trial. However, McBride did not argue before the trial court that his statutory right to a speedy trial was violated; he raises this issue only on appeal.
¶ 9. The standard of review regarding claims of speedy-trial violations is as follows:
Review of a speedy trial claim encompasses the fact question of whether the trial delay rose from good cause. Under this Court's standard of review, this Court will uphold a decision based on substantial, credible evidence. If no probative evidence supports the trial court's finding of good cause, this Court will ordinarily reverse. The [S]tate bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion.
DeLoach v. State, 722 So.2d 512, 516 (¶ 12) (Miss.1998) (internal citations omitted).
¶ 10. The Sixth Amendment to the United States Constitution states that “the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. The Fourteenth Amendment applies the federal constitutional right to the states. Klopfer v. North Carolina, 386 U.S. 213, 222–23, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Also, Article 3, Section 26 of the Mississippi Constitution of 1890 guarantees the criminal defendant a right to “a speedy and public trial.” While there is no set time that a defendant must be brought to trial, the United States Supreme Court has set out factors to consider when a challenge is made on the issue of the constitutional right to a speedy trial in Barker, 407 U.S. at 530, 92 S.Ct. 2182. The factors are: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay. Stark v. State, 911 So.2d 447, 450 (¶ 7) (Miss.2005) (citing Barker, 407 U.S. at 530–32, 92 S.Ct. 2182). No mathematical formula exists for weighing and balancing the Barker factors, and no one factor is dispositive. The totality of the circumstances must be considered. Jefferson v. State, 818 So.2d 1099, 1106 (¶ 11) (Miss.2002) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182).
¶ 11. The following time line of events is pertinent to the Barker analysis:
+----------------------------------------------------------------------------+
¦ ¦May 30, 2006: ¦McBride's indictment ¦
+--+--------------+----------------------------------------------------------¦
¦ ¦ ¦ ¦
+--+--------------+----------------------------------------------------------¦
¦ ¦August 4, ¦McBride served with capias, arrested ¦
¦ ¦2006: ¦ ¦
+--+--------------+----------------------------------------------------------¦
¦ ¦ ¦ ¦
+--+--------------+----------------------------------------------------------¦
¦ ¦August 10, ¦McBride arraigned ¦
¦ ¦2006: ¦ ¦
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¦ ¦ ¦ ¦
+--+--------------+----------------------------------------------------------¦
¦ ¦August 10, ¦McBride appointed an attorney ¦
¦ ¦2006: ¦ ¦
+--+--------------+----------------------------------------------------------¦
¦ ¦ ¦ ¦
+--+--------------+----------------------------------------------------------¦
¦ ¦September 21, ¦Docket entry (read in conjunction with hearing transcript)¦
¦ ¦2007: ¦reflects trial setting for November 2007 ¦
+--+--------------+----------------------------------------------------------¦
¦ ¦ ¦ ¦
+--+--------------+----------------------------------------------------------¦
¦ ¦December 21, ¦Order setting trial for January...To continue reading
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