Page v. State

• Decision Date: 27 May 1974
• Docket Number: No. 47938,47938
• Parties: Sam P. PAGE, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 279

295 So.2d 279

Sam P. PAGE, Jr. v. STATE of Mississippi.

No. 47938.

Supreme Court of Mississippi.

May 27, 1974.

W. S. Moore, Julie Ann Epps, Jackson, Clyde Ratcliff, McComb, for appellant.

A. F. Summer, Atty. Gen., by William D. Boerner, Sp. Asst. Atty. Gen., Jackson, for appellee.

BROOM, Justice:

Appellant, Page, appeals after being convicted of the sale of marijuana. Trial was in the Circuit Court of Pike County, where appellant was sentenced to serve three years in the state penitentiary and pay a fine of $1,000. We affirm.

Briefly stated, the record shows that appellant was convicted upon the testimony of one Cockerham, an undercover agent. Cockerham revealed that he purchased a lid of marijuana from appellant, using his own funds which were later refunded to him by the sheriff. Other salient facts will be stated as the different legal propositions before us are discussed.

I.

Appellant contends he was denied due process because of the pre-indictment and pre-trial delays. The date of the offense was August 14, 1971, and on March 21, 1972 the indictment was returned. Appellant voluntarily surrendered to the sheriff on December 6, 1972 and was tried on April 5, 1973. A simple delay between the date of an offense and the date of an indictment is not per se reversible error, especially where (as in this case) the delay is to conceal the identity of an undercover agent for a reasonable period of time so that he may continue to effectively work as such an agent. United States v. Judice, 457 F.2d 414 (5th Cir. 1972).

Upon the facts and circumstances of this case, the lapses of time between the commission of the offense, date of indictment, and the trial are not reversible error. The four-way balancing test applicable here was articulated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and adopted by this Court in Wells v. State, 288 So.2d 860 (Miss. 1974) cf. Cummings v. State, 219 So.2d 673 (Miss. 1969). In Barker, supra, the high court stated that the balancing test should be applied in each individual case in order to determine if the right to a speedy trial has been violated.

Before applying the balancing test to the record before us, we should determine at what juncture the appellant had the right to object to any further delay prior to trial. According to United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the right is not available until an indictment is returned, the accused is arrested, or a showing at the trial is made that undue prejudice resulted from the government's delay. We have already determined that the delay between the night of the sale and the date of the indictment was justifiable. It was also within the two year time frame set forth in Mississippi Code Annotated section 99-1-5 (1972) during which prosecutions may be commenced. Therefore, the appellant's right to a speedy trial as regards delay of prosecution could have accrued no earlier than the date of the return of the indictment.

We now apply the four factors set out in Barker, supra, and Wells, supra. First, the length of the delay was slightly over a year from the time of the indictment until trial date. Second, the reason for the delay, as testified to by representatives of the state, was the inability of the state to locate the appellant. Third, as to the appellant's assertion pertaining to his right for a speedy trial, he voluntarily turned himself in to the sheriff in December 1972, less than five months prior to his trial, and failed to demand a speedy trial. As to the fourth factor, he argues that he was prejudiced by a loss of witnesses who could have testified in his favor, but the record does not substantiate that claim. Therefore, application of the balancing test of Barker, supra, to the circumstances shown by the record before us leads us to the conclusion that the appellant was not denied due process because of pre-indictment and pre-trial delays.

II.

Appellant next contends that the trial judge committed reversible error in excluding the testimony of a witness (Mr. Reeves). Profert of Reeves' testimony was made by appellant in an attempt to impeach the credibility of the state's chief prosecuting witness (undercover agent Cockerham). On cross-examination the undercover agent testified that he was not pressured or caused to work as such on account of 'heat' having been applied to him. After the state rested, appellant sought to have Reeves (an attorney) testify concerning his conversation with Cockerham which occurred prior to the trial. Reeves said that he was 'under the impression' that Cockerham told him a narcotics officer (Butler) was 'pressuring or someting to that effect' in order to induce Cockerham to work in the capacity of an undercover agent. At another point in his testimony Reeves said that Cockerham related to him that he was 'encouraged' to work as such an agent. The trial judge, having heard Reeves in the absence of the jury, exclueded this testimony on the basis that it was opinion testimony and therefore inadmissible.

We find no reversible error as to this proposition. In not permitting the jury to hear the impression or opinion or inference which the witness Reeves gleaned from what he heard agent Cockerham say the trial court was correct. The record does not clearly reveal the dialogue between Reeves and Cockerham or the utterances made by...