Ross v. State, No. 89-KA-0069

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: PRATHER; ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PITTMAN; SULLIVAN; SULLIVAN
• Citation: 605 So.2d 17
• Docket Number: No. 89-KA-0069
• Decision Date: 22 July 1992
• Parties: Sammy Joe ROSS v. STATE of Mississippi.

Page 17

605 So.2d 17 Sammy Joe ROSS
v.
STATE of Mississippi. No. 89-KA-0069. Supreme Court of Mississippi. July 22, 1992.

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Joseph C. Langston, Langston Langston Michael & Bowen, Booneville, Sarah C. Jubb, Oxford, for appellant.

Michael C. Moore, Atty. Gen., Patricia W. Sproat, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PRATHER, Justice, for the Court:

I. INTRODUCTION

This rape case arose on appeal from the September 29, 1988 judgment of the Tippah County Circuit Court, which found Ross guilty and sentenced him to life in prison. The appellant timely filed a notice of appeal on October 25, 1988, alleging constitutional and statutory speedy trial violations. The delay between Ross's arrest and trial was 378 days; the delay between arraignment and trial was 370 days. Because the state supported the delays with good cause on both constitutional and statutory grounds, the lower court's decision is affirmed.

The facts on which Ross bases his claim are shown below. The date and days since arrest appear in the left-hand column. This Court's speedy trial computations appear in the right-hand columns:

 Speedy Trial Clock
                 Date Event Const'l Statutory
                09/16/87 Tippah County officials arrested Ross for rape. 0 0
                 Day 0
                09/22/87 A Tippah County grand jury indicted Ross rape.
                09/24/87 Ross waived arraignment and pled not guilty. 8 0
                 Day 8
                10/16/87 Ross moved for a change of venue. 30 22
                 Day 30
                 Clock tolled
                 59 days.
                11/29/87 The court set a date of December 14, 1987, to
                 hear Ross's change-of-venue motion.
                12/14/87 The court overruled Ross's change-of-venue 30 22
                 Day 89 motion.
                 Ross moved for speedy trial, requesting a Clock running 45
                 setting for the February, 1988 term. days.
                01/28/88 The state requested a continuance until the May 75 67
                 Day 134 term in order to first try a case against
                 Ross in
                 another county. 1 Clock running 88
                 days.
                02/18/88 The court set trial for May 12, 1988.
                04/19/88 Ross moved to suppress identification.
                04/21/88 The court heard motions.
                04/25/88 Ross amended his motion to suppress 163 155
                 Day 222 identification.
                 Clock tolled 25
                 days.
                05/09/88 The court set a first back-up trial date of May
                 19, 1988. The court began hearing the amended
                 suppression motion.
                05/12/88 Trial date passed while the court heard Ross's
                 amended suppression motion.
                05/19/88 Back-up trial date passed while the court heard
                 Ross's amended suppression motion
                05/20/88 The court completed hearing Ross's amended 163 155
                 Day 247 suppression motion.
                 Clock tolled 129
                 days, until next
                 court term.
                 2
                08/09/88 The court set a first back-up trial date of
                 September 27, 1988.
                09/22/88 Ross moved to dismiss for failure to timely
                 prosecute, which he alleged violated his
                 statutory right to speedy trial.
                09/26/88 The court overruled Ross's motion for failure 163 155
                 Day 376 to timely prosecute and set trial for the
                 next day. The court explicitly rejected
                 Ross's argument that trying one case before
                 another can constitute prejudice.
                09/27/88 The court deferred the trial one day to allow 164 156
                 the defense to prepare for a change in the
                 order of causes to be heard.
                09/28/88 Ross went to trial, and the next day was 164 156
                 Day 378 convicted of rape and sentenced to life in
                 prison. 378 days had elapsed since arrest,
                 370 since arraignment.
                

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II. LEGAL ANALYSIS

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. Folk v. State, 576 So.2d 1243, 1247 (Miss.1991). The state bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990); Vickery v. State, 535 So.2d 1371, 1377 (Miss.1988); Beavers v. State, 498 So.2d 788, 791 (Miss.1986); Perry v. State, 419 So.2d 194, 199 (Miss.1982).

A. Did the delay in bringing the defendant to trial violate his right to a speedy trial as guaranteed under the United States Constitution and Mississippi Constitution of 1890?

1. Law

The Sixth Amendment to the United States Constitution and Article 3, Sec. 26 of the Mississippi Constitution of 1890 guarantee that "[i]n all criminal prosecutions the accused shall have a right to ... a speedy and public trial." In Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972), the United States Supreme Court observed that the sixth amendment to the United States Constitution established a fundamental right to a speedy trial, applicable to the states through the due process clause of the fourteenth amendment. The right exists separate from the statutory right to a speedy trial. Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985); Perry v. State, 419 So.2d 194, 198 (Miss.1982). ³

The right attaches at the time of the accused's arrest, indictment, or information. Smith v. State, 550 So.2d 406, 408 (Miss.1989). If the Court finds a constitutional speedy trial violation, the sole remedy is to reverse the trial court's decision and dismiss the charges. Strunk v. United States, 412 U.S. 434, 439-440, 93 S.Ct. 2260, 2263, 37 L.Ed.2d 56, 61 (1973); Barker, 407 U.S. at 522, 92 S.Ct. at 2188, 33 L.Ed.2d 101; Bailey v. State, 463 So.2d 1059, 1064 (Miss.1985); Turner v. State 383 So.2d 489 (Miss.1980); Perry, 419 So.2d at 197. The remedy reflects the underlying rationale that the "amorphous quality" of the right and irrevocable personal harms attending denial of the right render any other remedy ineffective. Strunk, 412 U.S. at 438-39, 93 S.Ct. at 2263, 37 L.Ed.2d 56; Barker, 407 U.S. at 522, 92 S.Ct. at 2188, 33 L.Ed.2d 101.

The Barker decision articulated four factors for analyzing the state's compliance with constitutional speedy trial requirements. Barker, 407 U.S. at 530, 92 S.Ct. at 2191, 33 L.Ed.2d 101. The four Barker factors, to be balanced in light of all surrounding circumstances, are: (1) length of delay; (2) reason for delay; (3) defendant's assertion of the right to a speedy trial; and (4) prejudice to the defendant resulting from delay. Id.; see also Adams v. State, 583 So.2d 165, 167 (Miss.1991); State v. Ferguson, 576 So.2d 1252, 1254-55 (Miss.1991); Handley v. State, 574 So.2d 671, 674 (Miss.1990); Vickery, 535 So.2d 1371, 1376 (Miss.1988); Dedeaux v. State, 519 So.2d 886, 888 (Miss.1988). The speedy trial analysis must turn on the facts of the particular case, the evidence supporting each factor or, barring any evidence,

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identification of the party bearing the risk of non-persuasion; no sole factor is dispositive. Jaco v. State, 574 So.2d 625, 630 (Miss.1990).

a. Length of delay

The United States Constitution does not demand a specific number days to satisfy speedy trial requirements; a state may prescribe its own constitutionally consistent standard. Barker, 407 U.S. at 523, 92 S.Ct. at 2188, 33 L.Ed.2d at 112-13. Under Barker, the defendant must have been subjected to a presumptively prejudicial delay in order to warrant further inquiry. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. Under Mississippi law, a delay of eight months is presumptively prejudicial. Smith, 550 So.2d at 408. Cf. United States v. Maizumi, 526 F.2d 848 (5th Cir. [Tex.] 1976), cited in United States v. Harvey, 897 F.2d 1300, 1302 (5th Cir. [Tex.] 1990), cert. denied, Harvey v. United States, --- U.S. ----, 111 S.Ct. 568, 112 L.Ed.2d 574 (ten and one-half months between arraignment and trial not presumptively prejudicial, but neither were other Barker factors met). In the case of a lesser delay, this Court's decisions have dictated that the defendant demonstrate the strength of the other Barker factors, particularly prejudice. Smith, 550 So.2d at 409.

b. Reason for delay

The basic rule governing reason for delay is twofold: the state must prove either that the defendant prompted the delay or that the state did, but with good cause. Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991); see also Flores v. State, 574 So.2d at 1318; Vickery, 535 So.2d at 1375, 1377. Once the state establishes that the reason for delay justifies tolling the clock, the clock is tolled until the next reasonably available term of court. See Nations v. State, 481 So.2d 760, 762 (Miss.1985); State v. Davis, 382 So.2d 1095, 1097 (Miss.1980).

A bad motive on the prosecution's part significantly affects the balancing test. Perry, 419 So.2d at 199. To determine if a state-prompted delay lacked good cause, the United States Supreme Court articulated the rule that "[a] deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government." Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117 (citing United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971)); see also Williamson v. State, 512 So.2d 868, 877 (Miss.1987) (analyzing state's intentionally delaying trial may weigh against the state). In Marion, the United States Supreme Court acknowledged that an intentional delay by the prosecution in order to gain a tactical advantage would constitute an improper reason for delay. Marion, 404 U.S. at 325, 92 S.Ct. at 466, 30 L.Ed.2d 468. See also Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 485-86, 1 L.Ed.2d 393 (1957) (purposeful or oppressive prosecutorial delay constitutes unconstitutional deprivation of rights).

In comparison, the Barker v. Wingo Court found no error where the State deliberately delayed Barker's trial for more than five years while it tried his alleged accomplice; the state had hoped to gain testimony useful in prosecuting Barker. But because Barker did not want a speedy trial and made no motion for one until the state's twelfth continuance, and because Barker demonstrated no prejudice to his defense, the Court found no speedy...