Stevens v. State
| Decision Date | 28 February 2002 |
| Docket Number | No. 1999-KA-01779-SCT.,1999-KA-01779-SCT. |
| Citation | 808 So.2d 908 |
| Parties | Glynn STEVENS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Donald W. Boykin, Jackson, Attorney for Appellant.
Office of the Attorney General by Jean Smith Vaughn, Attorneys for Appellee.
EN BANC.
ON MOTION FOR REHEARING
¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted therefor.
¶ 2. Glynn Stevens appeals his conviction for manslaughter in the Circuit Court of Hinds County, First Judicial District. Initially, Stevens and two co-defendants were indicted for murder and aggravated assault. Stevens pled guilty to aggravated assault and received a sentence of seven years in the custody of the Mississippi Department of Corrections. Stevens and the two codefendants were tried together for murder. Stevens was convicted of manslaughter and his co-defendants of murder. Stevens appealed his conviction, and this Court reversed and remanded for a new trial on the ground that Stevens's trial should have been severed from that of his co-defendants. Stevens v. State, 717 So.2d 311 (Miss.1998) (hereinafter Stevens I). Stevens was indicted a second time and again convicted of manslaughter. The Honorable James E. Graves, Jr. sentenced Stevens to a term of twenty years in prison. Stevens timely appealed his conviction to this Court.
¶ 3. This case arises from the April 28, 1995, shooting death of seventeen-year-old Jason Brown and the aggravated assault of Patrick Holiday. The record reflects that the appellant, Glynn Stevens, accompanied Patrick Cavett, Robert Strahan, and Calvin Shelton to the Metrocenter Mall on the evening in question with the intent of stealing an automobile. Upon their arrival at the mall parking lot, the four decided to steal Brown's Chevrolet Malibu. Brown and Holiday left the parking lot in Brown's Malibu with Brown driving and Holiday in the passenger seat. Stevens, Cavett, Strahan, and Shelton followed in a Mercury Cougar driven by Cavett. Stevens was riding in the front passenger seat, and Shelton and Strahan were in the backseat.
¶ 4. The four occupants in the Mercury followed Brown's Malibu along several streets in West Jackson, flashing their lights, still intent on stealing the car. Strahan testified that they eventually decided against stealing the Malibu and ceased following the Malibu, planning instead to go to a party. Nevertheless, when Brown stopped at a traffic light, the Mercury, coincidentally according to Strahan, pulled up behind Brown's Malibu in the lane to the left of the Malibu.
¶ 5. Holiday got out of the Malibu, walked around the back of the Malibu, and approached the Mercury. Holiday asked why the four occupants were following them. Strahan testified that, he waved an unloaded .38 caliber pistol at Holiday, who was unarmed, and instructed Holiday to get away from the car. Strahan stated that Holiday began backing up and running toward the Malibu. According to Strahan, Stevens began firing a .22 caliber revolver, and Cavett fired a 9 millimeter automatic. Shelton, who did not have a gun, never fired. Holiday testified that he saw Stevens and Cavett, the occupants of the front seat, shooting. Holiday also testified that one of the occupants of the backseat was shooting, though his testimony was confused as to where the two occupants on the backseat were sitting.
¶ 6. As he was running back to the Malibu, Holiday was shot in the leg. During the shooting, Brown remained in the car, and he was shot in the head. Brown died after Holiday drove him to University Hospital.
¶ 7. Because the bullet could not be removed from Holiday's leg, whose gun fired the bullet could not determined. However, the transcript from Stevens's plea hearing on the aggravated assault charge contains Stevens's testimony that he shot Holiday with a .22 caliber pistol. The projectile removed from Brown's head indicated that he was shot with either a .38 or a 9 millimeter. John Dial, accepted as an expert in firearms examination and ballistics, testified that the projectile from Brown's head could not have been from a .22 caliber pistol. On August 8, 1995, Stevens, Shelton, Cavett, and Strahan were indicted for Brown's murder. Stevens I, 717 So.2d at 312. Stevens pled guilty to the aggravated assault of Holiday on August 12, 1995, and he received a sentence of seven years, to run consecutively to any sentence received on the manslaughter charge. Stevens, Cavett, and Strahan were tried together for Brown's murder, and Shelton testified against them. Id. at 312. On February 23, 1996, the jury found Stevens guilty of manslaughter, and he was sentenced to twenty years in prison. Id. Stevens appealed his conviction to this Court, and on July 23, 1998, this Court reversed Stevens's conviction and remanded for a new trial on the grounds that Stevens's trial should have been severed from that of his co-defendants. Id. at 313.
¶ 8. It is here that the procedural posture of this case diverges from the norm. On July 6, 1999, the original date scheduled for Stevens's second trial, the only indictment in existence was the original indictment which charged Stevens with murder. As stated previously, Stevens was convicted at the first trial of the lesser offense of manslaughter. Though this Court reversed that conviction and remanded for a new trial, because Stevens was necessarily acquitted of the murder charge during the first trial, the State was unable to pursue for a second time a conviction on the murder charge. Necessarily, the State was relegated to seek a conviction of the lesser offense.
¶ 9. On July 6, 1999, the date originally set for Stevens's retrial, Stevens argued for the first time that the indictment did not give him notice of the manslaughter statute pursuant to which the State was seeking to convict him. The trial court denied Stevens's motion to dismiss the indictment, but granted Stevens's request for a continuance. Though the trial court did not order the State to do so, the State obtained a second indictment, charging Stevens with manslaughter pursuant to Miss.Code Ann. § 97-3-27, filed August 12, 1999. On September 7, 1999, the second date set for trial, Stevens filed a motion to dismiss the second indictment. The trial court again denied the motion.
¶ 10. Stevens's trial began September 7, 1999, before Hinds County Circuit Court Judge James E. Graves, Jr. The trial court denied Stevens's motion for directed verdict at the close of the State's case-in-chief. Stevens put on no evidence of his own, and his renewed motion for directed verdict was denied by the trial court, as was his request for a peremptory instruction. The jury found Stevens guilty of manslaughter, and Stevens was sentenced to twenty years in prison. On October 12, 1999, the trial court denied Stevens's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.
¶ 11. Aggrieved, Stevens timely appealed to this Court on October 21, 1999. He raises the following issues:
TO DISMISS FOR FAILURE TO GRANT A SPEEDY TRIAL.
¶ 12. Stevens argues that the trial court erred in denying his motion to dismiss for violation of his constitutional right to a speedy trial as secured by the Sixth and Fourteenth Amendments to the United States Constitution and Art. 3, § 26 of the Mississippi Constitution. Stevens points to the fact that the mandate from Stevens I, reversing his original conviction and remanding for a new trial, was issued on August 17, 1998, and that his retrial did not commence until September 7, 1999— some 386 days later.
¶ 13. Stevens filed a demand for speedy trial on December 18, 1998, and he filed a motion to dismiss for failure to grant a speedy trial on July 2, 1999. On July 6, 1999, the day originally set for trial, the trial court conducted a hearing on the motion to dismiss. In denying Stevens's motion, the trial judge stated that any delay was caused by the fact that he had been involved in trials from February 16, 1999, through June 23, 1999, and that there was no evidence that the State sought to gain any tactical advantage by the delay. The trial judge found that the delay was not unreasonable and also noted that Stevens was incarcerated through November 5, 1998, on the sentence for aggravated assault.
¶ 14. Miss.Code Ann. § 99-17-1 (2000) requires that an accused be brought to trial within 270 days of his indictment unless there is good cause for a delay. However, the 270-day rule does not apply to retrials; therefore, Stevens is relegated to the constitutional speedy trial standards. See Mitchell v. State, 572 So.2d 865, 870 (Miss.1990)
(citing Kinzey v. State, 498 So.2d 814 (Miss.1986)).
¶ 15. Stevens argues that Mitchell and Kinzey do not apply because neither involved a defendant who was reindicted prior to the second trial. However, Stevens also refuses...
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