State v. Magnusen

• Decision Date: 17 November 1994
• Docket Number: No. 91-KA-00905,91-KA-00905
• Citation: 646 So.2d 1275
• Parties: STATE of Mississippi v. David Eugene MAGNUSEN.
• Court: Mississippi Supreme Court

Page 1275

646 So.2d 1275

STATE of Mississippi v. David Eugene MAGNUSEN.

No. 91-KA-00905.

Supreme Court of Mississippi.

Nov. 17, 1994.

Cono A. Caranna, II, Dist. Atty., Gulfport, for appellant.

Cecil G. Woods, Jr., Gulfport, for appellee.

Before PRATHER, P.J., and BANKS and SMITH, JJ.

SMITH, Justice, for the Court:

David Eugene Magnusen, charged with rape, aggravated assault, two counts of robbery and two counts of burglary of an inhabited dwelling, was incarcerated in the Harrison County Jail for fifteen (15) months without being tried. The charges lodged against him were dismissed by the Circuit Court for the State's failure to grant a constitutionally guaranteed speedy trial. The State of Mississippi, by and through Cono Caranna, the District Attorney for the Second Circuit Court District of Harrison County, requests that this Court find that the trial judge erred in dismissing all charges against Magnusen.

A period of 449 days or fifteen months intervened between Magnusen's arrest on May 30, 1990, for dual felonies in cause numbers 25,691 and 25,692 and the dismissal of those charges following a hearing conducted on August 22, 1991.

The State contends that most of the delay was caused by the defendant and that the remainder of the delay was a product of a congested trial docket and the excusable neglect of an understaffed crime laboratory. The State further contends that under the applicable and traditional balancing test, Magnusen's constitutional right to a speedy trial was not violated and both causes should be remanded for trial.

The trial court paid insufficient attention to the various distinct periods of delay in reaching its conclusion. The delay of some fifteen months was apparently attributed to the State when it is clear that (1) a large part of the delay between February 1, 1991 and August 22, 1991 was attributable to Magnusen and his change of counsel, death in counsel's family, last minute motions, etc., and (2) the delay prior to February 1, 1991 was during a period in which there was no demand for speedy trial and in which the defendant was held on other unrelated older The trial court did not appear to properly apply the Barker standard in considering the "reason for the delay" factor. The court required that the delay be for "good and sufficient cause" rather than considering the various periods of delay with respect to whether the reason weighed "heavily", a bad reason, "lightly", a negligent reason, or "not at all", a good reason. After careful consideration in a close case, we must reverse and remand and require Magnusen to stand trial.

charges. The most egregious delay is that between May 30, 1990 and indictment, which is attributed to the crime lab and the backlog. This weighs lightly against the State under Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

STATEMENT OF FACTS

On December 14, 1990, two indictments were returned against nineteen-year-old David Magnusen charging him in multiple counts with multiple felony offenses.

The indictment in cause number 25,691 returned December 14, 1990, alleged that Magnusen, on May 19, 1990, burglarized the dwelling house of Evelyn Verchinski and, as part of the same common scheme or plan, committed the offenses of aggravated assault, robbery, and forcible rape.

The indictment in cause number 25,692, also returned December 14, 1990, alleged that Magnusen, on May 11, 1990, burglarized the dwelling house of Clara J. Webb and, as part of the same common scheme or plan, committed the offense of robbery.

On June 12, 1990, Danny Holloway, a detective with the Gulfport Police Department, requested the performance of a rape protocol on twelve articles of evidence he delivered to the Mississippi Crime Laboratory (hereinafter "crime lab") in Gulfport. Fifteen months later, on August 22, 1991, only a hair comparison analysis had been completed by the crime lab. None of the serological work requested by Holloway had been performed. The results of the hair analysis linked Magnusen to the rape of Evelyn Verchinski, who had identified Magnusen as her assailant in a police showup conducted on May 30, 1990.

Holloway waited four months for the rest of the test results before submitting the files to the district attorney's office on October 8, 1990. The district attorney's office, in turn, waited another seven weeks until November 30, 1990, before presenting the cases to the Grand Jury. Indictments were finally returned on December 14, 1990, six and one-half months following the defendant's arrest. There was a delay in setting Magnusen's arraignment because of inadvertence in the court administrator's office. On the day the arraignment was set, Magnusen was without counsel, his lawyer having been permitted by the trial court to withdraw from the case the previous week.

On August 30, 1991, in the wake of an evidentiary hearing conducted on August 22, 1991 the Circuit Court of Harrison County entered an order finding as a fact and concluding as a matter of law:

that the accused David Eugene Magnusen has been deprived of his constitutional right to a speedy trial and is entitled to a dismissal of the charges ... [and] that unless other charges are pending at the time of this Order, he is to be forthwith released from the custody of the Sheriff of Harrison County.

Other charges were not pending; thus, Magnusen was released from custody. The State of Mississippi appeals to this Court from the dismissal of the indictments following the evidentiary hearing.

During the hearing, the State produced five witnesses: Danny Holloway, a police detective with the Gulfport Police Department; Debra Butler, a forensic serologist with the Mississippi Crime Laboratory, Gulfport branch; Donette Lee, a secretary and witness coordinator with the district attorney's office; Sandra McAdams Gill, an assistant district attorney; and Carolyn Simmons, an assistant circuit court administrator.

David Magnusen testified in his behalf that he was nearly twenty years of age and that he had been incarcerated in the Harrison County Jail since the date of his arrest on May 30, 1990.

Debra Butler testified she was the only serologist for a fifteen county area on the

Mississippi Gulf Coast. The exhibits in question were received at the Gulfport office and sent to Jackson for hair and fiber comparison. The specimens were then returned to the Gulfport laboratory for a serological analysis. According to Butler, it would take eighty man hours to test the exhibits submitted in this case. There is no statutory provision for the state to contract with private laboratories to perform their work.

DISCUSSION

The State argues vigorously that the trial judge erred in finding as a fact and concluding as a matter of law that the State violated Magnusen's constitutional right, as opposed to his statutory right, to a speedy trial when a period of four hundred forty nine (449) days elapsed between his arrest and the date of the hearing adjudicating Magnusen's motion to dismiss the multiple charges.

In Noe v. State, 616 So.2d 298, 300 (Miss.1993), this Court opined:

The constitutional right to a speedy trial, unlike the statutory right created by Sec. 99-17-1 (Supp.1992), attaches when a person has been effectively accused of a crime. Box v. State, 610 So.2d 1148 (Miss.1992); Beavers v. State, 498 So.2d 788 (Miss.1986).

Magnusen's constitutional right to a speedy trial attached on May 30, 1990, the date he was arrested. Jenkins v. State, 607 So.2d 1137, 1138 (Miss.1992); Handley v. State, 574 So.2d 671, 674 (Miss.1990); Jaco v. State, 574 So.2d 625, 629 (Miss.1990). The charges were dismissed on August 22, 1990, approximately fifteen months or 449 days following his arrest.

In Noe, we also stated:

When a defendant's constitutional right to a speedy trial is at issue, the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), is applicable. The factors to consider are: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay.

616 So.2d at 300.

This Court recognized in Beavers v. State:

No mathematical formula exists according to which the Barker weighing and balancing process must be performed. The weight to be given each factor necessarily turns on the quality of evidence available on each and, in the absence of evidence, identification of the party with the risk of nonpersuasion. In the end, no one factor is dispositive. The totality of the circumstances must be considered.

498 So.2d at 790.

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. In Barker, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118, the Supreme Court stated:

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.

Before analyzing the four Barker factors individually, we set out the following chronology of events, pleadings, and proceedings which will be useful:

CHRONOLOGY OF EVENTS

Pre-Arrest Events

February 18, 1989 Unrelated crimes of unlawful touching for lustful purposes occur. (Cause Numbers 25,266 and 25,267) These were separate offenses from Cause Numbers 25,691 and 25,692.

May 4, 1989 Defendant arrested for unlawful touching for lustful purposes.

May 11, 1989 Defendant posted bond and released from custody for unlawful touching offenses.

March 1, 1990 Defendant arrested for an unrelated offense of aggravated assault and bonded out the same...