Noe v. State

• Decision Date: 25 March 1993
• Docket Number: No. 90-KA-1062,90-KA-1062
• Citation: 616 So.2d 298
• Parties: Herwins NOE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 298

616 So.2d 298

Herwins NOE v. STATE of Mississippi.

No. 90-KA-1062.

Supreme Court of Mississippi.

March 25, 1993.

Mark E. McLeod, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Mary Margaret Bowers, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and PITTMAN and SMITH, JJ.

PRATHER, Presiding Justice, for the Court:

Herwins Noe prosecutes this appeal from his conviction of murder and the life sentence imposed by the trial court. Noe contends that the Hinds County Circuit Court erred in (1) denial of his constitutional right to a speedy trial, (2) denial of his motion for a directed verdict, and (3) the admission into evidence of allegedly gruesome post-mortem (autopsy) photographs of the victim, which deprived him of a fundamentally fair trial. Finding no error, we affirm.

I. FACTS

The defendant, Herwins Noe, was a resident of Miami, Florida, and a purveyor of cocaine. The victim, Steve Wilson, was a twenty-three (23) year old resident of Jackson, Mississippi, and a prospective purchaser. Wilson was shot by Noe as Wilson attempted to steal a bag of crack cocaine.

On Tuesday, March 28, 1989, officers of the Jackson Police Department were summoned to the scene of a shooting that took place at the Christian Brotherhood Apartments in Jackson, Mississippi. Upon their arrival, they found twenty-three (23) year old Steve Wilson lying unconscious and face down outside one of the apartment buildings. Wilson had been shot once in the chest with a pistol.

Bonita Washington, a resident of building # 20, testified that prior to the shooting, Noe, known to her and others as "Miami," was dealing coke from inside her apartment. Steve Wilson had come to this location for the purpose of purchasing cocaine. Wilson snatched a bag of cocaine from the defendant and attempted to leave without paying for it. As he did, the defendant unzipped his jacket, pulled a gun from underneath the garment, and hotly pursued Wilson. While at the top of the stairway near Washington's apartment, Noe fired the first shot. Washington later heard a second shot.

Kenneth Earl Bailey testified that he had taken the defendant to the apartments where Bonita Washington lived and that Noe had furnished him with cocaine.

Evette Wells, an ear and eyewitness to the fatal shooting, testified that she had gone to Bonita Washington's apartment where she purchased $150 worth of cocaine from the defendant. Wells testified that Noe fired the first shot from in front of the door to Washington's apartment. The second shot was fired after Wilson had fallen to the ground near one of the apartments and was attempting to return the bag of cocaine to Noe. According to Wells, Noe stood over Wilson and fired down at him. After shooting Wilson, Noe turned and walked away.

Joseph Greer was inside Washington's apartment with Wilson shortly before the shooting. He observed Wilson grab the bag of cocaine from the defendant and saw Noe pull what appeared to be a .357 from his jacket. Wilson ran past Greer pursued closely by Noe. When Noe reached the top of the stairway, a shot was heard. Greer heard a second shot while leaving the area.

Robert Martin, Hinds County Coroner, testified that Wilson died from massive bleeding caused by a single gunshot wound to the left chest which exited his right chest.

Detective Mike Presley testified the Jackson Police Department, after obtaining a description of "Miami" from witnesses at the scene, issued a warrant for Noe's arrest. Noe was arrested two months later on June 1, 1989, in Miami, Dade County, Florida.

II. ISSUES

A. Speedy Trial

Noe contends the State violated his constitutional right, as opposed to his statutory right, to a speedy trial when a period of four hundred seventy five (475) days elapsed between his arrest in Miami, Florida, and his trial in Hinds County for murder. Noe seeks dismissal of the charges.

The constitutional right to a speedy trial, unlike the statutory right created by Miss.Code Ann. Sec. 99-17-1 (Supp.1992), attaches when a person has been effectively accused of a crime. Box v. State, 610 So.2d 1148 (Miss.1992); Beavers v. State, 498 So.2d 788 (Miss.1986). Noe's constitutional right to a speedy trial attached on June 1, 1989, the date he was arrested. Jenkins v. State, 607 So.2d 1137, 1138 (Miss.1992); Handley v. State, 574 So.2d 671, 674 (Miss.1990); Jaco v. State, 574 So.2d 625, 629 (Miss.1990). He was tried on September 18, 1990, 475 days (approximately 16 months) following his arrest.

When a defendant's constitutional right to a speedy trial is at issue, the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is applicable. The factors to consider are: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay.

This Court recognized in Beavers v. State, supra, 498 So.2d 788, 790 (Miss.1986), that

[n]o mathematical formula exists according to which the Barker weighing and balancing process must be performed. The weight to be given each factor necessarily turns on the quality of evidence available on each and, in the absence of evidence, identification of the party with the risk of nonpersuasion. In the end, no one factor is dispositive. The totality of the circumstances must be considered.

The following chronology of events will be useful in our Barker analysis:

March 28, 1989 Noe's Offense

June 1, 1989 Noe's Arrest in Miami, Florida

June 10, 1989 Noe's Extradition to Mississippi

August 8, 1989 Noe's Indictment

August 28, 1989 Indictment Served On Noe

September 5, 1989 Noe's Arraignment

May 22, 1990 First Trial Setting

May 22, 1990 Continuance Granted to Noe

July 18, 1990 Attorney Milner Dismissed

Attorney McLeod Appointed

July 31, 1990 Hearing on Motion to Dismiss Filed by Noe pro se

September 14, 1990 Hearing on Motion to Dismiss Filed by attorney McLeod

September 18, 1990 Trial

We turn now to an analysis of the four Barker factors.

(1) Length of the Delay:

The first factor is only a triggering device and we do not look at the reason for the delay and to whom it is attributed. The length of the delay from arrest to trial was 475 days. ¹

In Smith v. State, 550 So.2d 406, 408 (Miss.1989); Beavers v. State, supra, 498 So.2d 788 (Miss.1986); Burgess v. State, 473 So.2d 432 (Miss.1985); Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985); and Perry v. State, 419 So.2d 194, 199 (Miss.1982), each defendant, in the wake of a Barker analysis, was discharged following delays of 370, 423, 480, 298, and 566 days, respectively.

In Smith v. State, 550 So.2d at 408 we said "that any delay of eight (8) months or longer is presumptively prejudicial." See also Jenkins v. State, supra, 607 So.2d at 1139; Adams v. State, 583 So.2d 165, 168 (Miss.1991). The 475 days delay in the case sub judice fails the test and is presumptively prejudicial. ² Therefore, the length of the delay is not an excessive or inordinate delay.

(2) Reason for the Delay:

The extradition of Noe from Miami to Mississippi required from June 1, 1989 to June 10, 1989. In addition, a substantial portion of the delay (119 days) was embraced by a continuance granted to the defendant on May 22, 1990, the date this case was originally set for trial. After Noe had serious disagreements with his lawyer, counsel was substituted during a hearing conducted two months later on July 18, 1990. All agree that 119 days elapsed between the date of the continuance and the date of trial.

Continuances granted to the defendant toll the running of our speedy trial statute and should not be counted against the State. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990) citing Vickery v. State, 535 So.2d 1371, 1375 (Miss.1988). Accordingly, 119 days must be deducted from the total number of days between Noe's arrest and trial. The length of the delay not attributable to either the defendant or his lawyer is 356 days or approximately 12 months.

However, defense counsel was substituted on July 18, 1990, because of certain disagreements arising between Noe and Lisa Milner, his original attorney. Milner testified she had a "substantial amount of material" to turn over to Noe's new lawyer who was appointed on July 18th. An additional two month delay until September 18, 1990, to allow substituted counsel sufficient time to prepare for trial was neither excessive nor unreasonable. Even if this case was delayed longer than it should have been, we find this factor still favors the State.

(3) Assertion of Right:

Lisa Milner, Noe's original attorney, testified during the hearing conducted on July 18, 1990, that at no time did Noe indicate to her that he wanted a speedy trial. The defendant, in fact, indicated to Milner he did not want to go to trial until December of 1990. Noe testified he never really wanted to wait until December to go to trial but that he agreed with what his lawyer was doing.

Noe filed, pro se, a motion to dismiss for want of a speedy trial but not until after he had been granted a continuance in May of 1990. A second motion to dismiss sought for the identical reason was filed by Mr. McLeod, Noe's new lawyer, less than a week prior to trial. It is enough to say that a fair reading of all the testimony reflects that Noe went nearly an entire year following his arrest on June 1, 1989, without asserting his right to a speedy trial. If asserted at all, it was not done until after Noe had been granted a continuance. Again, this factor favors the State.

(4) Prejudice to the Defendant:

Noe testified he lost contact with certain alibi witnesses residing in Miami, Florida, who could have attested to his presence in Miami on the day of the homicide. Noe gave the names of these witnesses to Lisa Milner, his original lawyer, as well as to McLeod, his new attorney.

Noe testified that his girlfriend, a resident of Georgia, could have testified that...