State v. Ferguson, No. 07-KA-59394

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: Before ROY NOBLE LEE; ROBERTSON; ROY NOBLE LEE
• Citation: 576 So.2d 1252
• Parties: STATE of Mississippi v. James M. FERGUSON.
• Docket Number: No. 07-KA-59394
• Decision Date: 27 February 1991

Page 1252

576 So.2d 1252 STATE of Mississippi
v.
James M. FERGUSON. No. 07-KA-59394. Supreme Court of Mississippi. Feb. 27, 1991.

Page 1253

Mike C. Moore, Atty. Gen., Joseph A. Runnels, Jr., Sp. Asst. Atty. Gen., Jackson, Glenn Cannon, Dist. Atty., Harold O. Grissom, Jr., Asst. Dist. Atty., Gulfport, for appellant.

Dale Robinson, Gulfport, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and ROBERTSON, JJ.

ROBERTSON, Justice for the Court:

I.

Before us today is the question whether James M. Ferguson's constitutional right to a speedy (re)trial has been offended so that the attempted burglary charge heretofore outstanding against him should be finally dismissed. The Circuit Court of Harrison County, Mississippi, heard the matter, reluctantly accepted Ferguson's point, and dismissed the indictment. The District Attorney appeals. We affirm.

II.

On March 16, 1983, law enforcement authorities arrested James M. Ferguson in Biloxi, Mississippi, and charged him with attempted burglary. Ferguson was subsequently indicted as an habitual offender, and, on August 7, 1984, the Circuit Court convened a three-day bench trial at the conclusion of which the Court found Ferguson guilty as charged and sentenced him to life imprisonment without eligibility for parole. Miss.Code Ann. Sec. 99-19-83 (Supp.1986). Ferguson appealed to this Court, and, on May 6, 1987, we reversed and remanded the case for a new trial. Ferguson v. State, 507 So.2d 94 (Miss.1987).

Two hundred eighty-eight (288) days later--on February 18, 1988, to be exact--the Circuit Court held that Ferguson had been denied his right to a speedy (re)trial and dismissed the indictment. The Court acted

Page 1254

upon its perceived duty to respect and enforce rights secured to Ferguson by the Sixth and Fourteenth Amendments, as elaborated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and progeny.

Where constitutional speedy (re)trial rights are asserted, Barker mandates that we consider (1) length of delay, (2) reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice. No mechanical formula exists according to which these factors must be weighed and balanced. The weight given each necessarily turns on peculiar facts and circumstances of each case, the quality of evidence available on each factor, and, in the absence of evidence, identification of the party bearing the risk of non-persuasion. No one factor is dispositive. A sensitive weighing and balancing of all remains our touchstone.

A. Length of Delay

Ferguson's claim is denial of his right to speedy (re)trial. Accordingly, we have no occasion to return to the date of his original arrest in 1983 or his original indictment in 1984. Instead, the speedy trial clock began to run on the date we reversed his original conviction. Mitchell v. State, 572 So.2d 865 (Miss.1990); see also, Darby v. State, 476 So.2d 1192, 1194 (Miss.1985).

Once our beginning and ending dates be established, this Barker factor becomes a function of mathematics and the calendar. The delay at issue is 288 days. Our precedents establish beyond peradventure that a delay of this length is "presumptively prejudicial." Smith v. State, 550 So.2d 406, 408 (Miss.1989); Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985); and, see most recently, Handley v. State, 574 So.2d 671, 676 (Miss.1990). Common sense suggests that, ordinarily on retrial, less time will be necessary to bring a case to trial than before. State v. Fife, 632 P.2d 712, 714 (Mont.1981), for example, discharged a defendant after a 194 day delay following reversal and remand.

B. Reason for the Delay

Once we find the delay presumptively prejudicial, the burden shifts to the prosecution to produce evidence justifying the delay and to persuade the trier of fact of the legitimacy of these reasons. By analogy we have repeatedly held in the context of our statutory 270 day rule that the prosecution bears the risk of non-persuasion on the cause issue. Vickery v. State, 535 So.2d 1371, 1375 (Miss.1988); Reed v. State, 506 So.2d 277, 281 (Miss.1987); Turner v. State, 383 So.2d 489, 491 (Miss.1980).

At the hearing below, the prosecuting attorney offered only the docket of the court. That...