Stack v. State

• Decision Date: 16 October 2003
• Docket Number: No. 2001-KA-01905-SCT.,2001-KA-01905-SCT.
• Citation: 860 So.2d 687
• Parties: Joseph Dreher STACK v. STATE of Mississippi.
• Court: Mississippi Supreme Court

860 So.2d 687

Joseph Dreher STACK v. STATE of Mississippi.

No. 2001-KA-01905-SCT.

Supreme Court of Mississippi.

October 16, 2003.

Jack Lucian Denton, attorney for appellant.

Office of the Attorney General by Deirdre Mccrory, attorney for appellee.

CARLSON, Justice, for the Court.

¶ 1. Joseph Dreher Stack was convicted in the Circuit Court of the Second Judicial District of Harrison County on a two-count indictment for the murders of James Thomas and Larry Albert Chopones. Stack was then forthwith sentenced by Judge Stephen B. Simpson to serve consecutive terms of life imprisonment. Stacks appeals to us from the entry of the circuit court's final judgment consistent with the jury verdicts and sentences. Finding no reversible error, we affirm both the convictions and the sentences imposed.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On the evening of October 24, 1998, Stack and his companion, Gene Livingston, left the Veterans Administration Hospital (VA) and went out for drinks at a local pub. Prior to returning to the VA, they purchased a bottle of Mad-Dog 20/20 which they promptly drank in a vacant lot with Larry Chopones. At some point, Chopones reached out. Stack allegedly believed that Chopones was going to strike Livingston so Stack hit Chopones. Chopones then pulled a knife from his pocket. Stack took the knife away from Chopones, stabbed him, and slit his throat. Chopones was stabbed approximately thirty times and slashed approximately nineteen times.

¶ 3. While Stack was sitting on top of Chopones, James Thomas and Daisy Jones entered the vacant lot. They yelled at Stack to stop, but Stack continued stabbing Chopones. Thomas grabbed a stick or small tree limb and struck Stack, who then stopped stabbing Chopones and turned on Thomas, stabbing him twice. Stack grabbed Livingston, and they left, heading toward the VA. Thomas walked approximately fifty feet, and then fell. He died that evening. Chopones died the following morning.

¶ 4. Stack was stopped by a police officer on Veterans Avenue. Stack was covered in blood and had the knife in his front pocket. Both Stack and Livingston were arrested for public drunkenness. Approximately three hours later, Stack gave a recorded statement in which he admitted killing both Chopones and Thomas.

¶ 5. On May 13, 1999, while incarcerated awaiting grand jury action, Stack filed a pro se motion for speedy trial. On July 1, 1999, Stack was indicted on two counts of murder. Although another attorney represented Stack at the initial appearance, attorney Michael Cox was appointed on July 13, 1999, to represent Stacks. On November 5, 1999, Cox filed numerous motions, including a motion for discovery, motion to suppress the confession, motion for a speedy trial, and a motion for an omnibus hearing. On January 18, 2000, the court entered an order for mental evaluation. Thereafter several motions for continuance were filed by defense counsel. The first such motion was filed on April 10, 2000, citing the need to obtain VA records. The trial court granted the motion on the same day and reset the case for trial for July 17, 2000. A separate order was likewise entered on May 9, 2000, reaffirming both the continuance and the trial date of July 17, 2000. The second motion for continuance was filed and granted on August 7, 2000; however, no reason was given. On February 5, 2001, a third motion for continuance was filed citing the need for psychiatric evaluation. On the same day, the trial court granted the motion and reset the case for trial to commence on May 7, 2001. Cox filed each of these motions on behalf of Stack. The fourth and final written motion for continuance was filed on April 9, 2001. In this motion, attorney Don Smith requested a continuance because Cox was no longer with the Contract Criminal Defender's Program (CCD). The motion was granted, and the trial was again reset for June 11, 2001.

¶ 6. In late April or early May, 2001, John Dawson was hired to replace Cox at the CCD. Dawson made an ore tenus motion for a continuance on June 12, 2001; however, this motion was denied. The trial began on June 14, 2001, at the conclusion of which Stack was convicted on both counts of murder and sentenced to serve consecutive life imprisonment sentences. Stack now appeals to us.

DISCUSSION

I. WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION BY DENYING THE DEFENDANT'S MOTION FOR CONTINUANCE.

¶ 7. Stack contends that the denial of his ore tenus motion for continuance constituted reversible error. In Gray v. State, this Court stated:

This Court has held that the trial court's denial of a continuance should not be reversed unless it appears to have resulted in manifest injustice. Hatcher v. Fleeman, 617 So.2d 634, 639 (Miss.1993).

...

Miss.Code Ann., § 99-15-29 (2000) states as follows:

On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done. The court may grant or deny a continuance, in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine and may introduce evidence by affidavit or otherwise for the purpose of showing to the court that a continuance should be denied. No application for a continuance shall be considered in the absence of the party making the affidavit, unless his absence be accounted for to the satisfaction of the court. A denial of the continuance shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom.

The decision to grant or deny a continuance is left to the sound discretion of the trial court. Johnson v. State, 631 So.2d 185, 187 (Miss.1994); Wallace v. State, 607 So.2d 1184, 1191 (Miss.1992); Morris v. State, 595 So.2d 840, 840 (Miss. 1991); Fisher v. State, 532 So.2d 992, 998 (Miss.1988).

Gray v. State, 799 So.2d 53, 58 (¶ 14, 16-17) (Miss.2001). The burden of showing manifest injustice is not satisfied by conclusory arguments alone, rather the defendant is required to "show concrete facts that demonstrate the particular prejudice to the defense." Burns v. State, 729 So.2d 203, 213 (Miss.1998); Atterberry v. State, 667 So.2d 622, 631 (Miss.1995); Jackson v. State, 538 So.2d 1186 (Miss.1989) (defendant was given "full opportunity" to show prejudice in a hearing on a motion for new trial, but failed).

¶ 8. The denied motion for continuance about which Stack now complains was an ore tenus motion. In other words, neither Stack nor his counsel made any effort to comply with the procedural requirements of Miss.Code Ann. § 99-15-29 in securing a continuance from Judge Simpson. This Court has repeatedly held that a judge did not abuse his or her discretion and would not be put in error in denying a defendant's motion for continuance of a criminal case when that defendant failed to comply with the procedural guidelines set out in this statute in attempting to secure a continuance from the trial judge. Edwards v. State, 594 So.2d 587, 591 (Miss.1992); Gates v. State, 484 So.2d 1002, 1005-06 (Miss.1986); Smith v. State, 278 So.2d 454, 455 (Miss.1973).

¶ 9. Stack also contends that his counsel had only been assigned to the case six weeks before the trial setting. However, this Court has previously held:

Denials of motions for continuance have been upheld where defense counsel was afforded fewer days to prepare for trial than here: Hughey v. State, 512 So.2d 4, 6 (Miss.1987) (defendant caused to go to trial on day of arraignment and nine days after appointment of counsel); Cole v. State, 405 So.2d 910, 911-12 (Miss. 1981) (counsel had seven days to prepare for murder trial); Speagle v. State, 390 So.2d 990, 992 (Miss.1980) (new counsel forced to prepare for incest trial in one day); Shaw v. State, 378 So.2d 631, 633-34 (Miss.1979) (defense counsel afforded eight days to prepare); Garner v. State, 202 Miss. 21, 24, 30 So.2d 413, 414 (1947) (seven-day preparation time for capital murder trial).

Morris v. State, 595 So.2d 840, 843 (Miss. 1991) (counsel had 13 days to prepare for sex crimes trial). See also Fisher v. State, 532 So.2d 992 (Miss.1988)

(no abuse of discretion with 24 days to prepare). Boyington v. State, 389 So.2d 485 (Miss.1980) (over the weekend); Brown v. State, 252 So.2d 885 (Miss.1971) (4 days).

¶ 10. In today's case, there has been no showing that Stack's counsel would have done anything differently or presented any different type of defense had the motion been granted. The record is silent as to any notice of insanity plea by the defendant.¹ This Court is placed in a position, just as the trial court was, where we can only speculate whether the failure to have the mental evaluation performed was negligence, an intentional tactical maneuver, or an intentional effort to attempt to further delay the trial of this case.

¶ 11. After Stack's counsel made the ore tenus motion for a continuance on June 12, 2001, two days before trial, Judge Simpson conducted a motion hearing on that day, and the record was further supplemented on June 13, 2001, with testimony and additional argument of counsel. At this hearing, defense counsel John C. Dawson, Jr., asserted that he had "picked up this file as one of approximately 125 that Mr. Cox, Michael Cox, was appointed on. That was at the very end of April, first of May." Dawson asserted that he had insufficient time to prepare for trial and that he believed that additional psychological testing of his client was necessary to the presentation of a defense. ¶ 12. After noting that Smith was appointed co-counsel in ...