Scott v. State, 2014–CT–00572–SCT

• Decision Date: 29 November 2017
• Docket Number: No. 2014–CT–00572–SCT,2014–CT–00572–SCT
• Citation: 231 So.3d 995
• Parties: James Wesley SCOTT a/k/a James W. Scott a/k/a James Scott, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Supreme Court

231 So.3d 995

James Wesley SCOTT a/k/a James W. Scott a/k/a James Scott, Appellant

v.STATE of Mississippi, Appellee

No. 2014–CT–00572–SCT

Supreme Court of Mississippi.

November 29, 2017

ORDER

Four of the justices of this Court are of the opinion that the judgment of the Court of Appeals should be affirmed, and four are of the opinion that it should be reversed. Consequently, that judgment must be, and is, affirmed.

Issuing conflicting opinions on the issues raised on certiorari would serve no purpose, as neither opinion would carry any authority. Hentz v. State , 152 So.3d 1139, 1143 (Miss. 2014) (Randolph, P.J., specially concurring) (citing Hertz v. Woodman , 218 U.S. 205, 212–14, 30 S.Ct. 621, 622–23, 54 L.Ed. 1001 (1910) ; Durant v. Essex Co. , 74 U.S. (7 Wall.) 107, 19 L.Ed. 154 (1868) ; Etting v. Bank of U.S. , 24 U.S. (11 Wheat.) 59, 78, 6 L.Ed. 419 (1826) ; Rockett Steel Works v. McIntyre , 15 So.2d 624 (Miss. 1943) ).

Accordingly, as the judgment of the Court of Appeals has not been decided to be erroneous by a majority of the justices sitting in this case, the judgment of the Court of Appeals is affirmed without opinion. The costs on appeal are assessed to Forrest County.

SO ORDERED.

/s/ James D. Maxwell II

JAMES D. MAXWELL II, JUSTICE

AFFIRMED: RANDOLPH, P.J., MAXWELL, BEAM AND CHAMBERLIN, JJ. SEPARATE WRITTEN STATEMENT OBJECTING TO THE ORDER BY KITCHENS, P.J., JOINED BY WALLER, C.J., KING AND COLEMAN, JJ. ISHEE, J., NOT PARTICIPATING.

KITCHENS, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶ 1. Because James Wesley Scott's constitutional right to a speedy trial was violated by the nearly five-year delay between his arrest and trial, I would reverse his conviction and render judgment in his favor. Accordingly, I object to the order affirming the judgment of the Mississippi Court of Appeals.

¶ 2. On September 26, 2011, a Forrest County grand jury indicted James Scott for attempted rape, kidnapping, and burglary of a dwelling. He was arraigned on March 14, 2012. Scott filed a motion for recusal of the trial judge on April 12, 2012. No ruling on that motion appears in the record; however, the trial judge recused on his own motion on September 6, 2012. This Court appointed a special judge on September 20, 2012.

¶ 3. On March 24, 2014, and May 2, 2014, respectively, Scott, pro se , filed motions to dismiss in which he alleged speedy trial violations. His appointed counsel filed a third motion to dismiss alleging speedy trial violations on August 14, 2014. Scott's third motion was denied, and his trial took place on August 19 and 20, 2014.

¶ 4. A Forrest County jury found Scott guilty of all three charges and he was sentenced, as an habitual offender under Mississippi Code Section 99–19–83, to three consecutive life sentences without the possibility of parole. Scott then filed a Motion for a Judgment Notwithstanding the Verdict, or in the alternative, for a New Trial, which the trial court denied. Scott appealed his conviction, and this Court assigned his case to the Court of Appeals, which affirmed. Scott v. State , 231 So.3d 1024, 1046, 2016 WL 3391630, *19 (Miss. Ct. App. June 21, 2016). This Court granted Scott's petition for a writ of certiorari .

¶ 5. On direct appeal, Scott argued that his constitutional right to a speedy trial was violated. After analyzing the factors set forth in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Court of Appeals held that it was not.

¶ 6. The Sixth Amendment to the United States Constitution guarantees criminal defendants "the right to a speedy and public trial ...." U.S. Const. amend. VI. Additionally, Article 3 Section 26, of the Mississippi Constitution guarantees criminal defendants a "speedy and public trial by an impartial jury ...." Miss. Const. art. 3, § 26. "A formal indictment or information or an arrest—whichever first occurs—triggers the constitutional right to a speedy trial." McBride v. State , 61 So.3d 138, 142 (Miss. 2011) (citing United States v. Marion , 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971) ; Smith v. State , 550 So.2d 406, 408 (Miss. 1989) ).

¶ 7. In Barker , the United States Supreme Court set forth four factors that appellate courts must balance and consider when a defendant contends his constitutional right to a speedy trial has been violated: length of delay, reason for delay, whether the defendant asserted his right to a speedy trial, and prejudice to the defendant. Barker , 407 U.S. at 530, 92 S.Ct. 2182. The Barker Court explained that each case must be considered on "on an ad hoc basis" and no one factor is outcome determinative. Id. at 531, 533, 92 S.Ct. 2182.

Length of Delay

¶ 8. "A full Barker analysis is warranted only if the delay was presumptively prejudicial." McBride , 61 So.3d at 142 (citing Stark v. State , 911 So.2d 447, 450 (Miss. 2005) ). Any delay that exceeds eight months is presumptively prejudicial. Johnson v. State , 68 So.3d 1239, 1242 (Miss. 2011) (citing Smith , 550 So.2d at 408 ).

¶ 9. On direct appeal, Scott alleged that he turned himself in to police in October or November 2009. The Court of Appeals found that the record "d[id] not fully support Scott's contention that he was first arrested in late 2009 for this crime," so it calculated the length of the delay from the date of indictment. However, the State conceded that Scott turned himself in to police "sometime in late October or early November... 2009." Giving the State the benefit of the doubt as to the exact date of arrest, I calculate the length of the delay from November 15, 2009, until August 19, 2014, the day Scott's trial commenced. At least 1,739 days or fifty-seven months passed between Scott's arrest and trial. Because this delay far exceeded eight months, the delay was presumptively prejudicial, and this factor weighs against the State.

Reason for Delay

¶ 10. After a delay is found presumptively prejudicial " ‘the burden shifts to the prosecution to produce evidence justifying the delay ....’ " McBride , 61 So.3d at 142 (citing State v.Ferguson , 576 So.2d 1252, 1254 (Miss. 1991) ). " ‘Different reasons for delay are assigned different weights.’ " Hurst v. State , 195 So.3d 736, 741 (Miss. 2016) (quoting Bateman v. State , 125 So.3d 616, 629 (Miss. 2013) ). The State's deliberate attempt to delay the trial in order to hamper the defense is weighted heavily against the State. Barker , 407 U.S. at 531, 92 S.Ct. 2182. But delays due to negligence or docket congestion are weighted less heavily against the State. Id. Additionally, delays that are unexplained are attributed to the State. Perry v. State , –––So.3d ––––, ––––, 2017 WL 2377708, at *4 (Miss. Jun. 1, 2017) (citing Vickery v. State , 535 So.2d 1371, 1377 (Miss. 1988) ). On the other hand, any "delay caused by the actions of the defendant ... tolls the running of the time period for that length of time, and is subtracted from the total amount of the delay." Taylor v. State , 672 So.2d 1246, 1259 (Miss. 1996) (citing Wiley v. State , 582 So.2d 1008, 1011 (Miss. 1991) ; Flores v. State , 574 So.2d at 1314, 1318 (Miss. 1990) ).

¶ 11. The first delay occurred between Scott's arrest and indictment on September 26, 2011. The record indicates this 680–day delay was due to the negligence of the Hattiesburg Police Department. In his opening statement, the prosecutor said, "Our police department ... dropped the ball. They did their work that night. But after that, Hattiesburg Police Department was in shambles. The detectives are leaving, and they drop the ball. That's why you've got the delay. The detectives leave. The files get lost. Statements get lost."

¶ 12. The record further indicates Scott, who was on parole at the time of his arrest, served the remainder of a prior sentence between his arrest and indictment. But this Court has said, "Incarceration via parole revocation ... is not a legitimate reason for the prosecution's failure to bring an accused to trial." Beavers v. State , 498 So.2d 788, 790 (Miss. 1986), overruled on other grounds by State v. Ferguson , 576 So.2d 1252 (Miss. 1991). This 680–day delay weighs against the State.

¶ 13. The next delay occurred between Scott's indictment and arraignment on March 14, 2012. The record provides no reason for this 171–day delay, so we must weigh this delay against the State. A 30–day delay occurred between Scott's arraignment and his motion for recusal of the trial judge on April 12, 2012. This delay is likely attributable to Scott, and should not be weighed against the State. A delay of 148 days occurred between Scott's motion for recusal and the trial court's order of recusal on its own motion. An additional fourteen days passed between the trial judge's recusal and this Court's appointment of a special judge. I would find sixty days of this delay to be neutral, and would weigh the balance of it against the State.

¶ 14. When ruling on Scott's third motion to dismiss, the trial judge said that a majority of delays following Scott's arraignment were caused by Rod Nixon—Scott's second attorney.¹ The trial court noted that Nixon caused delays by not agreeing to a trial date and making repeated assurances that a guilty plea would be entered. The Court of Appeals found Nixon's action's caused a 554–day delay that ran from September 20, 2012, until March 27, 2014.

Scott , 231 So.3d at 1041–42, 2016 WL 3391630, *14. The Court of Appeals subsequently attributed this delay to Scott. Id.

¶ 15. We find that the delays caused by Nixon weigh against Scott. But the record provides little guidance on when these delays started as Nixon did not file an entry of appearance—or any other document. In a letter dated March 24, 2014, Nixon informed the trial judge, assistant district attorney, and circuit court that he could no longer practice law. He further mentioned that he was retained prior to this Court's appointment of the special judge. It appears the Court of Appeals calculated the 554–day delay as beginning...