Walton v. State

• Decision Date: 25 April 1996
• Docket Number: No. 90-KA-00466-SCT,90-KA-00466-SCT
• Citation: Walton v. State, 678 So.2d 645 (Miss. 1996)
• Parties: Joseph WALTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 645

678 So.2d 645

Joseph WALTON v. STATE of Mississippi.

No. 90-KA-00466-SCT.

Supreme Court of Mississippi.

April 25, 1996.

Rehearing Denied Aug. 8, 1996.

John Booth Farese, Farese Farese & Farese, Ashland, for appellant.

Michael C. Moore, Attorney General, Wayne Snuggs, Assistant Attorney General, Jackson, and Ellen Y. Dale, Ridgeland, for appellee.

En banc.

JAMES L. ROBERTS, Justice, for the court:

INTRODUCTION

Joseph Walton was convicted in the Marshall County Circuit Court of selling cocaine, and sentenced to twenty-five years in prison. Finding that Walton was not denied his statutory right to a speedy trial, we affirm.

FACTS

On March 28, 1988, Lieutenant Randy Corban, Sergeant Eddie McCullough, and Sergeant Donna Conner, all of the Mississippi Bureau of Narcotics, and Charles Moore, a confidential informant, went to a residence at 355 North Walthall Street in Holly Springs, Marshall County, Mississippi. The purpose was to perform a "controlled buy," in which Charles Moore would purchase cocaine from Joseph Walton, an acquaintance of Moore's, who was suspected by the Bureau of dealing drugs.

Moore and Conner drove to 355 North Walthall Street, while Corban and McCullough took up a surveillance post in a van parked just north of the residence on North Walthall Street. Shortly after Conner and Moore pulled into the driveway of the residence, Walton drove up with a male passenger later identified as "Maurice." Walton met briefly with Moore outside the house, and then he, Moore, and Conner entered the house.

Walton asked Moore how much Conner wanted. Conner told Moore she wanted one gram; upon being informed that the price would be one hundred dollars, she handed this amount in cash to Moore. Walton and Moore then went into another room and closed the door. A few minutes later, Walton called to "Maurice," at that time sitting in the living room with Conner, to go outside and "get the scale." Maurice left the house, returned, and went into the room where Walton and Moore were. Maurice came back out and sat down again in the living room. A few minutes later, Moore and Walton emerged from the room. As Walton and Conner were about to leave the house, Conner saw Walton hand Moore an object, later identified as a Brillo pad, which Walton told Moore was to be used to strain cocaine. When Moore and Conner got back into the car, Moore handed Conner a packet and the Brillo pad. Moore and Conner then drove away, met up with McCullough, and the two agents took a sworn statement from Moore. The substance in the packet was identified by the North Mississippi Crime Lab as cocaine.

Walton was indicted October 14, 1988, for sale of cocaine, a Schedule II controlled substance, in violation of Miss.Code Ann. (1972) § 41-29-115(A)(a)(4), to "Charles Williams and Donna Conner," and with receiving from them one hundred dollars for the controlled substance, in violation of Miss.Code Ann. (1972) § 41-29-139(a)(1). On November 10, 1988, Walton waived arraignment and entered a plea of not guilty. The case was set for trial on February 22, 1989, as a fifth backup setting, in the Marshall County Circuit Court. Subpoenas for witnesses were requested by the State, including one for "Charles Moore, Holly Springs." The case was not tried that term.

On March 14th, Walton's case was set for trial on May 16, 1989, as a fourth backup setting. Again, subpoenas were requested by the State and granted. The case was not tried that term, and on June 19, 1989, it was, along with twenty other cases, set for trial on August 28, 1989. The order stated that "(e)ach case will be continued from day to day and will be subject to trial on any date during the next term of Court in Marshall County, Holly Springs."

The State's third request for subpoenas included one for "Charles Williams, c/o Mississippi Bureau Narcotics--Oxford." Walton's case was not tried that term, and on October 25th, it was set for trial, along with eight others, on November 7, 1989, in the order listed. ¹ The order stated that "Each case will be continued from day to day and will be subject to trial on any date during the term of Court in Marshall County." On November 9, the State requested a subpoena for "Charles Vern Moore," at an address in Nashville. The subpoena was issued on November 15, for "Charles V. Moore, Holly Springs." The case was continued from day to day from November 7th, and by agreement set for jury trial on November 14th. On November 14th, the State requested that the case be continued until the next day, because one of its witnesses (Moore) had informed them the night before that he would not appear that day (the 14th).

At this point, Walton's lawyer stated that Walton was ready for trial, and moved for dismissal for failure to prosecute within 270 days. He admitted that no speedy trial motion appeared in the record. He also asked the Court to take notice that the informant was named as Charles Williams in the indictment, and that the defense had learned on discovery that it was Charles Moore. Citing a violation of the constitutional right to confront witnesses, Walton's lawyer asked the Court to dismiss the case. The State asked the Court to take judicial notice that other cases were tried during the previous terms, including a capital murder case. The Court, reviewing the record, determined that the State had been ready for trial at each term, while the defendant had not submitted jury instructions until August 25, 1989. The Court denied Walton's motion to dismiss based on the 270-day rule, finding that good cause had been shown for not trying him within that period. The Court granted the State's motion to continue the case until the next day.

Trial was held on November 15-16, 1989. The jury returned a verdict of guilty, and Walton was sentenced on December 11, 1989, to twenty-five years in prison. Walton complains of the following error:

I. THE TRIAL COURT ERRED IN NOT DISMISSING THE STATE'S CAUSE AGAINST THE APPELLANT FOR FAILURE TO PROSECUTE THE APPELLANT WITHIN TWO HUNDRED SEVENTY DAYS OF ARRAIGNMENT.

I. SPEEDY TRIAL

Walton contends on appeal that he was denied his right to a speedy trial under the Sixth Amendment of the United States Constitution, and under Miss.Code Ann. (1972) § 99-17-1. A chronology of Walton's case follows:

Oct. 14, 1988 Indictment by Marshall County Grand Jury

Nov. 10, 1988 Waiver of Arraignment; Entry of Not Guilty Plea

Jan. 31, 1989 Order of Setting for Feb. 22, 1989

Mar. 14, 1989 Order of Setting for May 16, 1989

June 19, 1989 Order of Setting, along with 20 other cases, for August 28, 1989.

Oct. 27, 1989 Order of Setting, along with at least 9 other cases, for November 7, 1989.

Nov. 14, 1989 Court grants State one-day continuance due to non-availability of witness Charles Moore; denies Walton's motion to dismiss for violation of 270 day rule.

Nov. 15-16, 1989 Trial

Nov. 16, 1989 Jury Verdict: Guilty; presentence investigation ordered;

Dec. 11, 1989 Sentenced to 25 years;

Dec. 13, 1989 Walton files JNOV/New Trial motion, including 270 day grounds

Mar. 2, 1990 Hearing: Motion for substitution of counsel by Walton granted; Walton asks Court to take judicial notice of docket record and to examine it for open dates during 4 prior terms

Apr. 19, 1990 Court denies Walton's Motion for New Trial

Apr. 25, 1990 State petitions for revocation of suspended armed robbery sentence

Apr. 26, 1990 Walton files Notice of Appeal of cocaine conviction

Nov. 5, 1990 Hearing; Order imposing suspended sentence; Walton sentenced to serve 15 years with credit given for five years served; sentence to run concurrently with cocaine conviction

Nov. 14, 1990 Walton committed

Nov. 20, 1990 Walton files appeal of Order revoking sentence

270 DAY RULE

GOOD CAUSE

Miss.Code Ann. (1972) § 99-17-1 provides:

Unless good cause 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 seventy (270) days after the accused has been arraigned.

Walton was tried 370 days after arraignment. Where the accused is not tried within 270 days of arraignment, the State bears the burden of establishing good cause for the delay. Polk v. State, 612 So.2d 381, 387 (Miss.1992); Vickery v. State, 535 So.2d 1371, 1375 (Miss.1988); Williamson v. State, 512 So.2d 868, 877 (Miss.1987) ²; Nations v. State, 481 So.2d 760, 761 (Miss.1985).

The State argues that delays in bringing Walton to trial were for good cause because the Marshall County docket was extremely congested. In particular, the State asks us to "(a)ssume ... that each of the orders setting trial were 'continuances' for good cause" and to "trea(t) each order as a continuance." Under such calculations, 166 days would be subtracted from the 370-day total, shrinking the pre-trial delay to a permissible 204 days.

Docket congestion has been held to constitute good cause for delay. Polk, 612 So.2d at 387; Adams v. State, 583 So.2d 165, 167 (Miss.1991); Yarber v. State, 573 So.2d 727, 729 (Miss.1991); Williamson, 512 So.2d at 877. However, this Court has clearly stated that a crowded docket will not automatically suffice to establish good cause. McGee v. State, 608 So.2d 1129, 1132 (Miss.1992); Williamson, 512 So.2d 868. ³ In McGee, where the trial court held that "it was not physically and humanly possible for the case to be brought forward and tried within the two hundred and seventy days," we directed that on remand the trial court was to determine whether the specific facts of the case had given rise to good cause for delay. The State would bear the burden of positively demonstrating that the backlog had actually caused the delay in this particular case.

During 1994, this Court decided the case of State v. Harrison, 648 So.2d 66 (Miss.1994). While it is true that the cases involving docket congestion were decided prior to Harrison, the Harrison decision did not overrule and delete the prior decisions of this...