Simmons v. State, 95-KA-00427-SCT

• Decision Date: 27 June 1996
• Docket Number: No. 95-KA-00427-SCT,95-KA-00427-SCT
• Citation: 678 So.2d 683
• Parties: Aretha L. SIMMONS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 683

678 So.2d 683

Aretha L. SIMMONS v. STATE of Mississippi.

No. 95-KA-00427-SCT.

Supreme Court of Mississippi.

June 27, 1996.

David M. Ratcliff, Ratcliff & Ratcliff, Laurel, for appellant.

Michael C. Moore, Attorney General, Jackson; DeWitt T. Allred, III, Sp. Asst. Attorney General, Jackson, for appellee.

En Banc.

SMITH, Justice, for the Court.

Aretha Simmons was convicted on April 10, 1992, in the Circuit Court of the Second Judicial District of Jones County of capital murder of her one-year old child while engaged in the commission of felonious abuse and/or battery of a child pursuant to Miss.Code Ann. § 99-17-1 (Supp.1976). The jury determined that she should be sentenced to life imprisonment and the trial court entered judgment. On April 17, 1992, the trial court denied her post-trial motions. Aggrieved, Simmons appeals to this Court raising four issues, three of which are without merit.

Only the issue of speedy trial violation under the Sixth Amendment of the United States Constitution and Miss.Code Ann. § 99-17-1 is worthy of discussion. After thorough consideration, we find no violation of Simmons' statutory or constitutional right to a speedy trial. We must affirm Simmons' conviction for the capital murder of her son.

FACTS

Aretha L. Simmons, [hereinafter Simmons], along with her boyfriend, Johnny Newell and her three children, one of whom was one-year-old Maurice Hakeen Simmons [hereinafter Maurice], lived in a government housing project in Laurel.

During the evening hours of June 23, 1990, Simmons attended a party outside her home, but left prior to its ending. Newell discovered the "cold" body of Maurice when he returned home from the party. He then awakened Simmons, told her that something was wrong with the child. Simmons dialed 911 from a neighbor's house.

The autopsy revealed the nature and extent of the child's injuries and cause of death to be blunt force trauma, with extensive bruising of internal organs and the large bowel had been torn in half. The injuries ruled out accident as the cause of death, and the injuries could not have been inflicted by a child.

Initially, the police regarded both Simmons and Newell as suspects. Both were asked to come to the police station the following morning. Simmons accused Newell of beating the child, ultimately causing his death. Both parties were released without charges being filed. Later, the police decided to question both parties further.

On June 26, 1990, after the burial of Maurice, police asked Simmons and Newell to again come to the Laurel Police Department. Simmons confessed to killing Maurice, resulting in her indictment and conviction of capital murder while engaged in the commission of felonious abuse and/or battery of a child. The appeal to this Court followed.

DISCUSSION OF LAW

WHETHER DEFENDANT WAS DENIED A SPEEDY TRIAL?

A. STATUTORY RIGHT TO A SPEEDY TRIAL

Simmons was arraigned on January 22, 1991, and tried on April 6, 1992. In considering whether the 270 day rule was violated, for purposes of § 99-17-1, the total time between arraignment and trial was 439 days. There were three continuances granted, one formal, where a written order of continuance was filed on August 7, 1991. Two other de facto continuances were granted and agreed to by the defense in open court. All three of these continuances were for good cause shown: the first, from the original trial date of April 8, 1991, was at Simmons' request to permit a psychiatric or psychological examination; the second, on August 7, 1991, was for the purpose of having Simmons examined by the Mississippi State Hospital; the third, on February 18, 1992, was to allow the defense time for trial preparation.

Simmons' case was set for trial on April 8, 1991. At a March 29, 1991, status hearing, the State requested to be advised by the defense of any matters which would interfere with the trial date setting, to which the defense advised a motion for psychological or psychiatric examination would be forthcoming. While no formal order was entered, it is clear that the purpose of the March 29th hearing was to determine whether the defense was ready to go to trial so that the State would know whether to issue its subpoenas. The defense was informing the State and the trial court that as of March 29th, the case could not go to trial on April 8th as scheduled.

In Arnett v. State, 532 So.2d 1003 (Miss.1988), where trial had been set for May 20th and on that day trial was re-set until August 26th, and no continuance order was entered, this Court held that the time should not be counted toward the allotted 270 days:

There is no written order granting a continuance until the August term, but rather an oral agreement between the attorneys and the judge as to such. Not only did the defendant not object to this, he initially requested that he be allowed time in which to complete other discovery.... [O]n May 20 the case was reset until August 26, 1985. Because the defense counsel actively participated in this resetting which was beneficial to his case, and because he failed to state any objection to the resetting, the statute remained tolled until August 26, 1985.

Arnett, 532 So.2d at 1010-11. See also Reed v. State, 506 So.2d 277 (Miss.1987) (where again there was no formal order of continuance sought by either party or entered by the trial court, nevertheless, this Court held no violation of § 99-17-1). The Reed Court stated, "In the instant case, the State never sought a continuance throughout the plea negotiations. However, it is equally clear that Reed acquiesced in and initiated much of the plea bargaining that caused the resulting delay. If the defendant is the cause of the delay, he cannot complain thereafter." Reed, 506 So.2d at 281. See also McGhee v. State, 657 So.2d 799 (Miss.1995) (where trial court's failure to enter agreed order resetting trial date was of little consequence in determining whether defendant's statutory right to speedy trial was violated, and where record clearly indicated that trial setting was agreed to by both state and defendant).

A continuance was therefore in effect from April 8th until the next term of court which was May 20th, a period of 42 days having elapsed. From August 7th until the psychological report was filed on November 22nd, a period of 107 days was tolled by the continuance order. A total of 89 days elapsed from November 22nd until the next term of court when Simmons' motion to dismiss came before the court.

The total elapsed time between arraignment on January 22, 1991, and the April 6, 1992 trial was 439 days. Deducted from this total should be 42 days from April 8th until May 20th, and 107 days from August 7th until November 22nd, and 89 days from November 22nd till the motion to dismiss, which amounts to 201 days, well within the 270-day statutory rule. We hold that there was no violation of § 99-17-1.

B. CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL

Simmons' constitutional right to a speedy trial attached at the time of arrest. Smith v. State, 550 So.2d 406, 408 (Miss.1989). Once the right attaches, this Court will follow the test established by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184, 33 L.Ed.2d 101 (1972), to determine whether there has been a violation of a defendant's right to a speedy trial. The right exists separately from the statutory right. Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985).

Barker set out a balancing test, delineating four factors to be weighed. Yet, no one factor alone is dispositive. Bailey, 463 So.2d at 1062. The factors must be considered individually, assessed both objectively and dispassionately, then weighed and balanced together. Flores v. State, 574 So.2d 1314, 1322 (Miss.1990).

1. Length of the Delay.

Applying the four-part analysis set out in Barker, we now commence examination of the case at bar. The first Barker factor operates as the "triggering mechanism." Smith v. State, 550 So.2d 406, 408 (Miss.1989). We must calculate the delay from the date of arrest. This Court, in Smith, held "that any delay of eight (8) months or longer is presumptively prejudicial." 550 So.2d at 408. The twenty-one month delay between arrest on June 27, 1990, and trial on April 6, 1992, was presumptively prejudicial and triggers the Barker analysis.

2. Reason for the Delay.

It is more than apparent that a sizable portion of the delay was brought about due to the request by Simmons for a psychological evaluation. Simmons just believed that she had an absolute right not to be examined by the doctors at Whitfield. Simmons viewed those doctors to be agents of the State. Simmons failed to cite authority or argument in support of such contention. Therefore she should be procedurally barred on this issue, same having been abandoned. Thibodeaux v. State, 652 So.2d 153, 155 (Miss.1995) (citing Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982)).

Even considering it alternatively on the merits, we find the issue without any merit. This Court has held in Lentz v. State, 604 So.2d 243, 247 (Miss.1992), that where the defendant "was examined by personnel at the Mississippi State Hospital in Whitfield, [she] was afforded her constitutional rights in regard to her state of mind and competency to stand trial." The Lentz Court refused to appoint an additional expert, thus this issue has already been decided. In the case sub judice, however, the trial judge went further than this Court's pronouncement in Lentz, by stating his willingness to possibly appoint an additional doctor, depending upon what the doctors at Whitfield found.

There was a delay between the trial judge's directive to the State to file its own motion and the time when the State complied, but the delay was minute as to any constitutional violation of Simmons' right to a speedy trial. A case practically on all-fours with Simmons' case is Brady v. State, 425 So.2d 1347 (Miss.1983). In Brady there was a delay of...