Perry v. State

• Decision Date: 02 June 1994
• Docket Number: No. 90-KA-1216,90-KA-1216
• Citation: 637 So.2d 871
• Parties: Ira Joe PERRY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 871

637 So.2d 871

Ira Joe PERRY v. STATE of Mississippi.

No. 90-KA-1216.

Supreme Court of Mississippi.

June 2, 1994.

David L. Walker, Batesville, for appellant.

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

ON PETITION FOR REHEARING

Before En Banc.

BANKS, Justice, for the Court:

The prior decision in this case is withdrawn and these opinions substituted therefor. On petition for rehearing we have concluded that, once again, the trial court has foundered on the rock of failing to give a lesser included offense instruction. Accordingly, we reverse this possession with intent conviction, and remand for further proceedings.

I.

On November 16, 1988, Officers Wayne Mills and Robert King of the University of Mississippi Police Department requested the assistance of the Panola County Sheriff's Department in locating Ira Joe Perry and Anthony Ramone Johnson. An arrest warrant had been issued on the two subjects for burglary of an automobile on the University of Mississippi campus.

James Rudd, a Panola County Deputy Sheriff, assisted Officers Mills and King. Perry and Johnson were located at King's Cafe. Perry gave the officers permission to search his vehicle as well as his home.

According to the officers, Perry reached under the seat and gave them a bank bag containing marijuana and other items. They also found items relating to the arrest warrant. Deputy Rudd took the bag containing the marijuana which was later turned over to the Bureau of Narcotics.

Rod Waller, an agent with the Mississippi Bureau of Narcotics, obtained the bag from the Panola County Sheriff's Department on November 16, 1988. The bag contained rolling Johnson testified that he and Perry had been engaged in the business of selling marijuana for approximately one and one-half weeks. According to Johnson, Perry purchased the marijuana in Memphis, Tennessee. Johnson stated that he and Perry planned to smoke some of the marijuana and sell the rest.

paper, a small pocket calculator, a roach clip, 25 hand-rolled cigarettes containing marijuana, two (2) small manila envelopes containing marijuana and two (2) clear sandwich bags containing marijuana. Waller turned the marijuana over to the Crime Lab. J.C. Smiley, Sr., a forensic drug analyst and forensic toxicologist with the Mississippi Crime Laboratory, confirmed that the substance was marijuana.

Perry denied selling marijuana. He did admit, however, to possessing marijuana on other occasions. Perry stated that he had been smoking marijuana since 1975. Perry also denied pulling the bank bag out of the car and giving it to the officers. He claimed that the bag was found on the floorboard of the car. According to Perry, Johnson had use of the car on the night prior to this incident.

Johnson, in rebuttal, denied having use of Perry's car on the 13th, 14th, or 15th of November. He also denied that he placed the marijuana in the vehicle.

II.

Ira Joe Perry was arrested on November 16, 1988, and released on bail in December of that year. He was not indicted until February 28, 1990. In April of 1990 he was granted a continuance in order to retain an attorney. In June he filed a motion to quash the indictment for lack of a speedy trial. That motion was denied and the case proceeded to trial in October. Perry was convicted of conspiracy to possess with intent to sell marijuana in violation of Miss.Code Ann. Sec. 97-1-1(a) (Supp.1993), Count I, and possession with intent to sell marijuana weighing less than one kilogram but more than one ounce in violation of Miss.Code Ann. Sec. 41-29-139(a)(1), (Supp.1993), Count II. Perry was sentenced to serve a term of four (4) years on Count I and eight (8) years on Count II. The terms were to be served consecutively.

Perry's motion for a new trial, or in the alternative a judgment notwithstanding the verdict, was denied. Feeling aggrieved, Perry filed this appeal assigning the following errors:

I. THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. THE CIRCUIT COURT JUDGE ERRED IN DENYING THE DEFENDANT'S BATSON V. KENTUCKY CHALLENGE.

III. THE CIRCUIT COURT JUDGE ERRED IN PERMITTING THE ASSISTANT DISTRICT ATTORNEY TO QUESTION ANTHONY JOHNSON CONCERNING THE APPELLANT SELLING MARIJUANA PRIOR TO NOVEMBER 16, 1988.

IV. THE CIRCUIT COURT JUDGE ERRED IN FAILING TO SUSTAIN THE DEFENDANT'S MOTION FOR A MISTRIAL AFTER THE STATE QUESTIONED THE DEFENDANT ABOUT THE DIFFERENCE IN THE PENALTY FOR THE SALE OF A CONTROLLED SUBSTANCE AND POSSESSION OF A CONTROLLED SUBSTANCE.

V. THE CIRCUIT COURT JUDGE ERRED IN DENYING THE APPELLANT'S MOTION TO QUASH AND DISMISS THE INDICTMENT.

VI. THE CIRCUIT COURT ERRED IN REFUSING TO GRANT APPELLANT'S JURY INSTRUCTIONS D-1, D-2, and D-3.

III

Most of these assignments are without merit and require no extensive discussion. There was sufficient evidence to support the verdict on both counts. Johnson testified that he and Perry intended to sell the marijuana. The State provided race-neutral It is the rule in this State that where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error. Simpson v. State, 497 So.2d 424, 431 (Miss.1986); Gardner v. State, 455 So.2d 796, 800 (Miss.1984).

reasons for peremptorily challenging three black females. Two were either neighbors or knew the defendant and the third gave responses indicating a lack of understanding, a fact specifically found by the trial judge. Lockett v. State, 517 So.2d 1346 (Miss.1987). Johnson's testimony that he and Perry had been selling marijuana prior to the date in question and that Perry got the marijuana in Memphis was admissible pursuant to M.R.E. 404(b). Carter v. State, 450 So.2d 67 (Miss.1984). The trial court did not err in denying Perry's motion for a mistrial when questioned about his potential sentence.

Marks, 532 So.2d at 981.

Perry's right to a speedy trial was not denied as more fully discussed below. The one error requiring reversal is the failure to give the lesser included offense instruction as to Count II of the indictment.

IV.

Perry contends that he was denied his right to a speedy trial. He filed a motion to quash and dismiss the indictment of June 8, 1990. A hearing was held on this motion on June 22, 1990, and June 25, 1990, after which the trial judge denied the motion with a written opinion finding, among other things, that Perry had failed to assert his right and that he had suffered no prejudice.

Perry was arrested on Counts I and II on November 16, 1988. He made bail in December of 1988, and he was indicted on February 28, 1990. Bail was set on March 27, 1990. On April 13, 1990, Perry was granted a continuance in order to employ an attorney. Perry then filed his motion to quash and dismiss the indictment which was denied. The trial commenced on October 10, 1990.

For constitutional purposes, the right to a speedy trial attaches at "time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge." Lightsey v. State, 493 So.2d 375, 378 (Miss.1986). See also Vickery v. State, 535 So.2d 1371, 1376 (Miss.1988). In Smith v. State, 550 So.2d 406 (Miss.1989), this Court held that for constitutional purposes, the right to a speedy trial attached at arrest. Id. at 408. "Once the constitutional right to a speedy trial has attached, this Court must examine the facts of the case and engage in a functional analysis of those facts in accordance with Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether the constitutional right to a speedy trial has been denied." Handley v. State, 574 So.2d 671, 674 (Miss.1990).

The Barker factors are weighted and balanced in each case according to its facts. The factors that must be considered are (1) length of delay, (2) reason for the delay, (3) defendant's assertion of his right to a speedy trial, and (4) prejudice resulting to the defendant. "The weight given each necessarily turns on the peculiar facts and circumstances of each case, the quality of evidence available on each factor and, in the absence of evidence, identification of the party with the risk of non-persuasion. No one factor is dispositive." Jaco v. State, 574 So.2d 625, 630 (Miss.1990).

A. LENGTH OF DELAY

If the delay is not presumptively prejudicial, the analysis goes no further. Jaco, 574 So.2d at 630. In Smith v. State, 550 So.2d 406 (Miss.1989), this Court held that an eight-month delay is presumptively prejudicial. Id. at 408. In the order overruling the motion to quash the indictment, the trial judge found that the 23-month delay from date of arrest until the date of trial was presumptively prejudicial. "This factor, alone, is insufficient for reversal, but requires a close examination of the remaining factors." Handley v. State, 574 So.2d 671, 676 (Miss.1990).

B. REASON FOR THE DELAY

The Panola County Sheriff's Department sent the substance obtained from Perry to the Mississippi Crime Laboratory (hereinafter The circuit court found that the state provided sufficient reasons for the delay:

Crime Lab). A report confirming that the substance was marijuana was needed to present to the Grand Jury. The Crime Lab did not provide its report until after July 17, 1989. The next meeting of the Grand Jury was in October 1989. The state did not present the matter to the Grand Jury at that time and could not offer any reason except oversight. The matter was presented to the next Grand Jury which met in February 1990.

It does not appear to this Court that there was an effort to delay obtaining the indictment to gain an advantage over the defendant or for any other reason that would assist the State in its prosecution; therefore, the length of delay has been [satisfactorily] explained by the State, and does not weigh against the State or in favor of the defendant.

It is error to assert that in the absence...