Vickery v. State, No. 57950
| Court | United States State Supreme Court of Mississippi |
| Writing for the Court | ZUCCARO; ROY NOBLE LEE; PRATHER; PRATHER |
| Citation | 535 So.2d 1371 |
| Parties | Patricia VICKERY v. STATE of Mississippi. |
| Decision Date | 30 November 1988 |
| Docket Number | No. 57950 |
Page 1371
v.
STATE of Mississippi.
Page 1373
Donald J. Steighner, Columbus, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen., by Harrison S. Ford, Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
ZUCCARO, Justice, for the Court:
Patricia Vickery was indicted, tried and convicted in the Circuit Court of Lowndes County for possession of more than one kilogram of marijuana. Vickery was sentenced to eighteen years in the custody of the Mississippi Department of Corrections and fined $40,000.00. On appeal, Vickery assigns the following as error:
(1) THE DELAY OF THREE AND ONE-HALF YEARS FROM INDICTMENT AND ARRAIGNMENT TO TRIAL CONSTITUTED A DENIAL OF VICKERY'S RIGHT TO A SPEEDY TRIAL.
(2) THE TRIAL COURT ERRED IN ADMITTING THE CONTENTS OF APARTMENT 119 AT THE RIVERGATE APARTMENT COMPLEX INTO EVIDENCE.
(3) THE STATE FAILED TO PROVE THAT PATRICIA VICKERY HAD DOMINION AND CONTROL OVER APARTMENT 119.
(4) THE TRIAL COURT ERRED IN ALLOWING THE STATE'S WITNESS, HARRY DOWDLE, TO MAKE PREJUDICIAL COMMENTS OVER THE OBJECTION OF THE DEFENSE COUNSEL.
We find all assignments have merit and therefore, we reverse, render and appellant is discharged.
The appellant, Patricia Vickery, was arrested on January 17, 1983. Vickery was indicted on February 18, 1983 of possession of more than one kilogram of marijuana. Vickery was arraigned and pled innocent on February 23, 1983. The trial did not take place until August 28, 1986, approximately one thousand two hundred eighty three (1,283) days later.
The facts leading to the arrest of Patricia Vickery are as follows:
Patricia was living in a home with a man named Gary Hall at Route 7, Box 1995, Perkins Road in Columbus, Mississippi. Gary Hall was arrested at the National Bank of Commerce in Columbus, Mississippi after a bank employee witnessed him acting suspiciously while placing items in a safety deposit vault. After the arrest of Gary Hall, the police obtained search warrants to search Hall's home on Perkins Road and apartment number 119 at the Rivergate Apartment complex in Columbus. The police were aware of the connection between Gary Hall and apartment number 119 because they found a rent receipt for the apartment in Gary Hall's vehicle when they inventoried it following Hall's arrest.
The search of the Perkins Road home where Patricia Vickery lived yielded nothing to suggest criminal activity. However, the search of apartment number 119, rented to a Pat Williams, produced 142.12 pounds (64.5 kilograms) of marijuana. Following the seizure of the marijuana in that apartment, the officers returned to the Perkins Road address and arrested Patricia Vickery. A jury returned a guilty verdict against Patricia Vickery and on September 2, 1986 she was sentenced to serve 18 years in the Mississippi Department of Corrections and fined $40,000.00.
WAS PATRICIA VICKERY DENIED THE RIGHT TO A SPEEDY TRIAL?
Lowndes County has four circuit court terms: 1) beginning the second Monday in February for eighteen days 2) beginning
Page 1374
the second Monday in May for eighteen days 3) beginning the third Monday in August for eighteen days and 4) beginning the second Monday in November for twenty four days.The right to a speedy trial is secured to Vickery by the Sixth Amendment and the Fourteenth Amendment to the United States Constitution and by Article 3, Section 26 of the Mississippi Constitution of 1890. Mississippi Code Ann. Sec. 99-17-1 (Supp.1981) requires that a defendant be brought to trial within 270 days of arraignment by providing that:
Unless good cause can be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred and seventy days after the accused has been arraigned. (Emphasis added)
The record reflects that approximately one thousand two hundred and eighty three (1,283) days elapsed between the time of arraignment and the time of trial. The following chronology of events will be helpful to illustrate the unreasonable amount of delay existing before Vickery went to trial.
Opening of February Term 02/14/83
Indictment 02/18/83
Arraignment and entry of not guilty plea 02/21/83
Defendant's motion for a sample of the marijuana and for a 02/22/83
continuance
Opening of May Term 05/09/83
Defendant's motion for continuance 05/26/83
Opening of August Term 08/15/83
Defendant's motion for continuance 08/19/83
Opening of November Term 11/14/83
Court continued case on its own motion until following 12/09/83
term stating only "for good cause shown"
Opening of February Term 02/13/84
Court continued case on its own motion until following 03/02/84
term stating "for good cause shown"
Opening of May Term 05/14/84
Court continued case on its own motion until next term 06/01/84
stating only "for good cause shown"
Opening of August Term 08/20/84
Defendant and State make joint motion for continuance 08/27/84
Motion for alias capias, which was granted, issuance for 08/29/84
Pat Vickery for reason that defendant's bonding company,
Delta Bonding, was defunct
Opening of November Term 11/12/84
State begins the process to have Patricia Vickery 11/30/84
extradited from Georgia to Mississippi
Court continues case on its own Motion stating only "for 12/06/84
good cause shown"
Opening of February Term 02/11/85
Court continues case on its own motion stating only "for 03/01/85
good cause shown"
Opening of May Term 05/13/85
Court continues case on its own motion stating only "for 05/31/85
good cause shown"
Defendant's motion for continuance 06/04/85
Opening of August Term 08/19/85
Court continues case on its own motion stating only "for 09/08/85
good cause shown"
Opening of November Term 11/11/85
Court continues case on its own motion stating only "for 12/06/85
good cause shown"
State makes motion which court granted requesting that 01/30/86
court order Sheriff of Lowndes County to obtain custody
of Vickery who was confined in Georgia Department of
Corrections. Trial set for February 1986 Term
District Attorney's Office advised that Patricia Vickery 02/07/86
could be brought to Mississippi
Opening of February Term 02/10/86
State makes motion requesting order of court directing 02/21/86
Vickery to provide blood, hair and handwriting samples
Order directing Vickery to provide samples 02/24/86
State's motion for continuance requesting several months 02/28/86
in order to get results of hair, blood and handwriting
samples
Opening of May Term 05/12/86
State finally provides discovery 05/21/86
Motion of defendant, joined by state, for continuance 05/28/86
State makes motion, which was granted, requesting order of 06/17/86
court directing Vickery to provide handwriting samples
Opening of August Term 08/18/86
State moves for continuance due to unavailability of crime 08/22/86
lab witnesses on August 25, 1986
Trial moved to August 28, 1986 08/22/86
Motion to dismiss for unnecessary delay 08/28/86 1
Note FN1. With all respect to those who dissent, I feel compelled to clarify the
Note record as it pertains to the chronology. The dissenting opinion contains only
Note a partial chronology of the events which constitute the delay suffered by
Note Patriciaia Vickery and which amounted to the denial of Vickery's federal and
Note state constitutional rights to a speedy trial and which violates Miss.Code
Note Ann. Sec. 99-17-1 (Supp.1981). Noted in the chronology of the dissent are three
Note continuauances ordered by the trial court. In reality there were eight such
Note continuauances. Five continuances ordered by the trial court, but not included
Note in the dissent's chronology occurred on the following dates:
Note FN12/6/8 order continued case until next term of court beginning the second
Note Monday in February.
Note FN3/1/85 order continued case until next term of court beginning on the second
Note Monday of May.
Note FN5/31/8 order continued case until next term of court beginning on the third
Note Monday in August.
Note FN9/6/85 order continued case until next term of court beginning on the second
Note Monday in November.
Note FN12/6/8 order continued case until next term of court beginning on the second
Note Monday in February.
Note FNTo list only a partial chronology, as is done in the dissent, has the
Note effect of minimizing the true amount of delay caused by the State and these
Note delays alone amounted to 347 days.
Page 1375
According to the record 423 days of the delay were attributable to continuances granted to Vickery. These days toll the running of the statute leaving a 860 day delay attributable to the State.
We held in Payne v. State, 363 So.2d 278 (Miss.1978) that our speedy trial statute is plain and unambiguous, and it requires that the defendant be tried no later than 270 days after arraignment unless good cause be shown. Generally, a written order to the effect that a motion is "well taken and should be granted" is the equivalent of a judicial determination that good cause existed for the continuance. Nations v. State, 481 So.2d 760, 762 (Miss.1985). That is, Miss.Code Ann. Sec. 99-17-1 (Supp.1981) excerpts from the limitations period delays resulting from "good cause." It is impossible, however, for this Court to ignore that eight orders of continuances existed in this record that simply read:
"For good cause shown the following numbered criminal cases are continued to the next regular term of this court, said causes are numbered on the docket of this court as follows ..."
The orders then listed as many as one hundred and twenty-six (126) cases to be continued until the next term of court. We cannot, in good conscience, allow the spirit of Miss.Code Ann. Sec. 99-17-1 (Supp.1981) to be violated by accepting the eight (8) orders, in their bland and generic form, as showing good cause and thereby tolling the 270 day period. To allow a trial court to...
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