Sharp v. State

• Citation: 786 So.2d 372
• Decision Date: 24 May 2001
• Docket Number: No. 1999-KA-01488-SCT.,1999-KA-01488-SCT.
• Parties: James Earl SHARP v. STATE of Mississippi.
• Court: Mississippi Supreme Court

786 So.2d 372

James Earl SHARP v. STATE of Mississippi.

No. 1999-KA-01488-SCT.

Supreme Court of Mississippi.

May 24, 2001.

Thomas L. Kesler, Columbus, for Appellant.

Office of the Attorney General by Scott Stuart, for Appellee.

Before PITTMAN, C.J., COBB and DIAZ, JJ.

DIAZ, Justice, for the court:

¶ 1. James Earl Sharp was convicted in the Lowndes County Circuit Court for the sale of cocaine. Sharp was also found to be a habitual offender under Miss.Code Ann. § 99-19-83 and thus was sentenced to "life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation." Miss.Code Ann. § 99-19-83 (2000). Sharp appeals the conviction and sentence contending that the trial court erred by (1) denying his motion to dismiss for failure to have a speedy trial and (2) refusing several proposed jury instructions. In addition, Sharp claims that (3) his counsel was ineffective and suffered a conflict of interest which denied Sharp due process of law.

FACTS

¶ 2. Sharp was initially charged with two counts of the sale of cocaine. The charges stem from a sting operation in which Sharp was videotaped and audio recorded selling cocaine to undercover agents. Although Sharp was later held for additional obstruction of justice and kidnaping charges, this appeal arises solely from the trial for the sale of cocaine. Since Sharp's appeal deals largely with a speedy trial claim, the applicable facts revolve around the procedural posture of the case and are as follows:

Date Event 7-24-97 Sharp arrested 11-19-97 Waived arraignment 2-10-98 First trial date Date Event 2-24-98 Agreed order for continuance 4-?-98 Sharp writes Mississippi Bar complaining about attorney, Walters 4-22-98 Walters moves to withdraw as counsel 15-12-98 Burdine appointed as new defense counsel 15-14-98 Second trial date 5-29-98 Master Order continuance "for good cause" issued 8-25-98 Third trial date 9-4-98 Master Order continuance "for good cause" issued 11-24-98 Sharp files pro se motion to dismiss 12-3-98 Defense (Burdine) files continuance for "additional time to review" 1-14-99 Sharp files second pro se motion to dismiss 1-20-99 Kesler (as new counsel) moves for discovery 2-17-99 Fourth trial date Defense (Kesler) files continuance "to prepare for trial" 5-20-99 Sharp files affidavit rejecting all plea agreements and negotiations 5-24-99 Fifth trial date State continuance due to ill witness 8-19-99 Sixth trial date, but no trial because judge sitting on civil trial 18-26-99 Seventh and actual trial date Defense files consolidated motion to dismiss for lack of a speedy trial 9-1-99 Motion is denied

¶ 3. The two other points raised by Sharp deal with specific occurrences during the trial and for brevity, will be described as they are discussed.

DISCUSSION

I. WHETHER SHARP'S MOTION TO DISMISS FOR FAILURE TO HAVE A SPEEDY TRIAL SHOULD HAVE BEEN SUSTAINED.

¶ 4. A defendant in a criminal case has a right to a speedy trial, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Article 3, § 26 of the Mississippi Constitution. Humphrey v. State, 759 So.2d 368, 375 (Miss.2000). In addition, Miss.Code Ann. § 99-17-1 (2000) creates a statutory right to a speedy trial. Although Sharp's brief only alleges a violation of his statutory right (the 270-day rule), the original motion from which this appeal arises argued that all aspects of Sharp's speedy trial right had been violated. Therefore, it is appropriate that the issue be examined from both legal standpoints. Thus, Sharp's case must be tested under both the 270-day rule and the four-factor balancing test as laid out by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Handley v. State, 574 So.2d 671, 674 (Miss.1990). Alleged speedy trial violations are examined and determined on a case-by-case basis due to the factual specifics of each action. McGhee v. State, 657 So.2d 799, 802 (Miss. 1995). "We are mindful indeed that no one factor is dispositive of the question. Nor is the balancing process restricted to the Barker factors to the exclusion of any other relevant circumstances." Id. Another factor necessitating a dual examination is that merely because a particular factual situation complies with the 270-day rule does not necessarily mean that the constitutional requirement has been met. Flores v. State, 574 So.2d 1314, 1321 (Miss. 1990).

THE STATUTORY RIGHT

¶ 5. The 270-day rule analysis is very fact specific and hinges upon which side (prosecution or defense) caused the delays. Section 99-17-1 states that "[u]nless good cause be shown, and continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned." Miss.Code Ann. § 99-17-1 (2000). Thus, the reason for the delay is as important as who is responsible. The first step is to calculate the total number of days between arraignment (the statute clearly states that is when the right attaches) and the actual trial. For this purpose, "[t]he date of arraignment is not counted but the date of trial is and weekends are counted unless the 270th day is a Sunday." Johnson v. State, 756 So.2d 4, 11 (Miss.Ct.App.1999) (citing Adams v. State, 583 So.2d 165, 167 (Miss. 1991)). According to this rule, Sharp was tried 644 days after arraignment. At first blush, this seems like an exorbitant delay for someone to be brought to trial. However, the second step in determining whether the 270-day rule has been complied with is to consider each delay separately, because only those delays attributable to the State count toward the 270 days. Baine v. State, 604 So.2d 258, 264 (Miss.1992).

¶ 6. The first block of time to be considered is from arraignment (11-19-97) to the first date set for trial (2-10-98). "The necessary time for the accused and his counsel to prepare his trial must necessarily be left largely to the sound discretion of the trial judge, bearing in mind the facts and circumstances of the particular case." Wiley v. State, 582 So.2d 1008, 1012 (Miss.1991); Gilmore v. State, 225 Miss. 173, 189, 82 So.2d 838, 846 (1955). Accounting for 82 days, this time does not appear to be overly lengthy for preparation for a drug related offense and therefore does not count against either the State or the defendant.

¶ 7. An agreed motion for continuance was granted February 24, 1998, and a second trial date was set to begin May 14, 1998. Since the motion for continuance was joined by Sharp, it is dealt with as if it were sought by the defense. As such, continuances sought by the defense are charged against them. Herring v. State, 691 So.2d 948, 953 (Miss.1997); Jasso v. State, 655 So.2d 30, 35 (Miss.1995). Therefore, this delay of 79 days cannot be charged against the State. In addition, the continuance was granted for the stated reason that the trial court was busy and lacked time to hear the matter. A congested docket is considered "good cause" for delay if the continuance is actually granted for that reason. Humphrey, 759 So.2d at 377; Johnson v. State, 666 So.2d 784, 791 (Miss.1995), abrogated on other grounds, Hennington v. State, 702 So.2d 403, 414-15 (Miss.1997)

; State v. Harrison, 648 So.2d 66, 69 (Miss.1994),

abrogated on other grounds, Walton v. State, 678 So.2d 645, 648 (Miss.1996). Also, in his denial of Sharp's motion to dismiss, the trial judge further indicated that the court was indeed quite busy at the time of the continuance.

¶ 8. During this time (2-10-98 to at least 4-28-98), plea negotiations were going on. It does not matter that Sharp did not take a plea; the hearing transcripts show that he was interested in a plea if one lenient enough had come along. In fact, due to his changing attorneys, plea negotiations apparently continued until May 1999 when Sharp executed an affidavit rejecting all plea agreements and negotiations. Time associated with an earnest attempt at plea negotiations will not be charged against the State. Taylor v. State, 672 So.2d 1246, 1259 (Miss.1996); Johnson, 666 So.2d at 792.

¶ 9. The May 1998 trial was continued per the master order of the trial court "for good cause." However, the Court has held that orders stating "[f]or good cause shown the following numbered criminal cases are continued to the next regular term of this court" (which is what occurred here) without more does not show that actual "good cause" existed and will not toll the 270-day count. Vickery v. State, 535 So.2d 1371, 1375 (Miss.1988). Although this sort of continuance generally would count against the State, extenuating circumstances exist in the present case. Sharp and his then attorney, Armstrong Walters, were having difficulties that resulted in Sharp writing the Mississippi Bar and Walters withdrawing from the case. Sharp's next attorney, Richard Burdine, was appointed a mere two days before the May 1998 trial date. In his order denying defense counsel's motion to dismiss, the trial judge stated that the master order continuance was granted on the basis that Burdine would need time to prepare. Furthermore, "[a] delay caused by the withdrawal of the defendant's attorney which entails allowing the new attorney a reasonable time to become familiar with the case and prepare for trial cannot be weighed against the State because it is beyond the State's control." Johnson, 666 So.2d at 792 (quoting Wiley, 582 So.2d at 1012). Since the trial judge gave his reason in addition to the "for good cause," "finding of good cause for delay is a finding of ultimate fact and should be treated on appeal as any other finding of fact; it will be left undisturbed where there is in record substantial credible evidence from which it could have been made." Walton, 678 So.2d at 648. The 88-day delay from May 29, 1998, to August 25, 1998, is not charged against the State.

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