Rhymes v. State, 91-KA-00396

• Decision Date: 16 June 1994
• Docket Number: No. 91-KA-00396,91-KA-00396
• Citation: 638 So.2d 1270
• Parties: Tony C. RHYMES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1270

638 So.2d 1270

Tony C. RHYMES v. STATE of Mississippi.

No. 91-KA-00396.

Supreme Court of Mississippi.

June 16, 1994.

Shirley C. Byers, McTeer & Byers, Greenville, for appellant.

Michael C. Moore, Atty. Gen., Kenneth C. O'Neal, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and BANKS and JAMES L. ROBERTS, Jr., JJ.

BANKS, Justice, for the Court:

On April 1, 1991, Tony C. Rhymes, then a twice-convicted felon, was convicted of burglary of an occupied dwelling and sexual battery and sentenced to terms of fifteen and thirty years in the Mississippi Department of Corrections. Following the trial, the circuit court dismissed the habitual offender charge. Here Rhymes challenges the convictions on two grounds:

(1) Denial of his constitutional right to a speedy trial; and

(2) The erroneous court-ordered amendment to the indictment changing the charge from sexual battery against a female under the age of fourteen years to a female over the age of fourteen years.

We reject his speedy trial claim but conclude that Issue (2) has merit and reverse and remand for a new trial.

I.

Rhymes was charged in a two-count indictment returned by the Washington County Grand Jury on June 27, 1990. In Count 2 Rhymes was charged with sexual battery of a female under the age of fourteen years under Miss.Code Ann. Sec. 97-3-65(1) (1972). Count 1 charged him with the crime of burglary of an occupied dwelling under Miss.Code Ann. Sec. 97-17-21 (1972). Additionally, the indictment charged that Rhymes was an habitual offender under Miss.Code Ann. Sec. 99-19-81 (1972).

Rhymes was arrested on the same date the crimes were committed, and on June 6, 1990, requested a continuance and a preliminary hearing. He was arraigned July 7, 1990. On February 19, 1991, trial began. Following impaneling of the jury, the indictment was amended on state's motion changing "under" fourteen years to "over" fourteen years [Miss.Code Ann. Sec. 97-3-65(2) (1972) ]. At that point, a mistrial was declared by Circuit Judge Gray Evans. No order amending the indictment was entered until March 28, 1991. Judge Evans, in an order entered nunc pro tunc ruled the amendment, one of form, not substance, was permissible. Following a hearing conducted on March 27 before Circuit Judge Eugene Bogen, an order was entered on March 28, denying an ore tenus motion to quash the amended indictment.

Following a pretrial hearing on defense's motion to dismiss for violation of Rhymes' constitutional rights to a speedy trial, the trial began. The victim, Lisa Nettles, a female 26 years old at the time of the alleged crime, testified that Rhymes broke into her home and forced her to have oral sex. Her seven-year-old son was in the house at the time. Proof shows Nettles was Rhymes' former live-in girlfriend and the mother of four (three living) of his children.

Rhymes testified in his own defense and claimed that Nettles consented and brought charges because she got angry when he did not pay her for her service. Following his conviction and sentence on both counts of the indictment he perfected an appeal to this court in a timely manner.

II.

a.

A period of 266 days elapsed from Rhymes' arrest to the first trial which ended in a mistrial. Three hundred and five days elapsed from time of his arrest until the second trial and conviction on April 1, 1991. This delay is presumptively prejudicial under our precedents, see, e.g., Smith v. State, 550 So.2d 406, 408 (Miss.1989), requiring inquiry into the other Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), factors:

(2) Reason for delay;

(3) Assertion of speedy trial; and

(4) Prejudice.

The record is silent as to the cause of delay which weighs against the state. The state argues that the record reflects that it was making plans for trial when it subpoenaed witnesses as early as November 13, 1990, and the circuit judge signed a transportation order on November 15 for Rhymes to be transported from Parchman to the Washington County Jail. A second order of transfer was signed by the judge on January 8, 1991. The defendant did not have witness subpoenas issued until February 14, 1991, and filed four pretrial motions on February 19, 1991. Those motions were not called up for ruling by the trial court until March 27, 1991. The state urges this Court to infer from these circumstances that the defendant was not ready for trial in November and that, perhaps he was searching for the witness, the victim's brother, who, it is claimed, the defendant was not able to "touch base" with after the delay.

The state argues that its negligence in preparation of the indictment is a neutral reason, not to be weighed "heavily" against it. Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. Because the defendant agreed to the continuance granted as a result of the mistrial following the allowance of an amendment to the indictment, no time after February 18, 1991 should count.

While it is true that the record suggests the inference that the state contemplated a trial in November, there is no order establishing, or notice of, a trial date during that period. More importantly, there is nothing in the record which reflects that the defendant sought any delay at this time. Making plans for trial provides the state no excuse where there is nothing to show that the defendant took any action to frustrate those plans.

The fact that defendant filed pretrial motions in February and not in November does little to suggest a lack of readiness. No trial date was established in November. Moreover, three of the motions spoke to matters of course in trial proceedings (invocation of the rule of sequestration, request that all proceedings be recorded and transcribed and bifurcation of the habitual defendant issue) provide for by rule or practice without the necessity of a motion. The fourth was a motion in limine, addressing evidentiary matters, which is normally presented just prior to trial, if at all.

The state's argument that the delay caused by its negligent preparation of the indictment should not be weighed against it is equally without merit. Clearly the delay following the February mistrial was caused by the state's negligent indictment and negligent failure to correct it at an earlier time. The state can draw no comfort from defendant's acquiescence in a delay caused by the state's negligence and, as shown below, an erroneous ruling of the court urged by the state. Assuming that the allowance of the amendment was proper, any delay caused thereby is attributable to the state even if it does weigh "less heavily". Id.; Adams v. State, 583 So.2d 165, 168 (Miss.1991). It follows that this factor weighs against the state.

The defendant filed a motion for a speedy trial on July 12, 1990, just 15 days after the indictment and only three days after his arraignment. The motion was filed simultaneously with defense's demurrer to the indictment. At that time, the defendant had not supplied the state the requested discovery. The defense never called the motion up for hearing, and seven months later the defendant filed four pretrial motions which were called to the court's attention on March 27, 1991. Not until March 29, 1991, did the defendant file a motion to dismiss for lack of speedy trial. That motion was brought to the court's attention on the day of trial, April 1, 1991. Defense counsel, when asked by the trial judge to explain why the motion was called up so late, stated: "It was through inadvertence."

The state asserts, based on the above that, as in Barker, the record supports the argument that Rhymes did not want a speedy trial. Barker, 407 U.S. at 535-36, 92 S.Ct. at 2194-95, 33 L.Ed.2d at 120. The argument that because Rhymes was obviously not ready for trial at the time that he filed his motion for a speedy trial is of little merit. First, the order of arraignment directed that all motions be filed within five days and not thereafter unless allowed by the court. More importantly, Rhymes did not seek, nor was he entitled to, an immediate trial. He sought a speedy trial. In fact he specifically sought trial at "this term" and failing that, dismissal and discharge. While the indictment was returned, the arraignment and the motion filed during the "vacation" term of the April term, the ensuing term, July, began the following Monday, July 16 and extended for seven weeks. It is not unreasonable to expect that the state could comply with discovery requests and be ready for trial during that term.

We do note, however, that filing an early demand for speedy trial is a fairly routine practice and is considered "boiler plate" by some prosecutors. Indeed the state in its brief attempts to discount the validity of this motion, asserting that defendant did not really want a speedy trial. There is nothing in the record to support the state's claim. We have already discussed the significance of the fact that the motion came before discovery. The fact that the motion to dismiss, once the alleged violation of the right had occurred, was not asserted until the eve of trial provides no basis for reasoning that the defendant did not want a trial to begin with. There is not one item in this record which shows that the defendant ever sought a moment's delay in this trial. What can be said, however, is that Rhymes never renewed his demand nor sought dismissal after it was clear that his request for trial at the July term was denied, and during the passage of two subsequent terms in 1990.

While it is true as the state notes, that the United States Supreme Court ultimately ruled against Barker on grounds that he did not really want a speedy trial, that court did so on a record which reflected no demand for speedy trial, no objection to 16 continuances granted and an inference that Barker gambled upon the acquittal of his co-defendant, the delay in whose trial occasioned the continuances. 407 U.S. at 534, 535, 92 S.Ct. at...