Wiley v. State, 90-KA-0218

• Decision Date: 05 June 1991
• Docket Number: No. 90-KA-0218,90-KA-0218
• Citation: 582 So.2d 1008
• Parties: Rufus WILEY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1008

582 So.2d 1008

Rufus WILEY v. STATE of Mississippi.

No. 90-KA-0218.

Supreme Court of Mississippi.

June 5, 1991.

Leonard H. Rosenthal, Natchez, for appellant.

Mike C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and McRAE, JJ.

PRATHER, Justice, for the Court:

Rufus Wiley appeals his conviction for armed robbery with a firearm under Miss.Code Ann. Sec. 97-3-79 (Supp.1990), in the Circuit Court of the Sixth Judicial District of Adams County. Wiley was sentenced to twenty (20) years in the Mississippi Department of Corrections. Finding that there was no violation of Wiley's constitutional right to a speedy trial, nor prejudice to him by his being seen momentarily by some of the jurors in shackles, this Court affirms the conviction.

I. STATEMENT OF THE CASE

About 7:30 on the evening of August 4, 1988, in Natchez, Mississippi, Rufus Wiley approached Varnado Rshon Cage at a nightclub, showed him a gun, and asked him if he wanted to go and "knock something off with him." Cage agreed, and the two started walking, arriving at Wiley's apartment where Cage was told to wait. Wiley left and came back in a green Monte Carlo. The two then began to drive around Natchez. As they were riding, they passed a Pizza Hut Restaurant and decided that it was the place that they would "knock off." They parked the car in a nearby parking lot and walked toward the Pizza Hut.

Upon arriving at the Pizza Hut, Cage looked in to see if there was someone that knew Wiley inside. Cage informed Wiley that such a person was inside, and Wiley then put a stocking mask over his face. The two then entered the Pizza Hut, and while Wiley waited in a little hallway near the restrooms, Cage approached the cash register and asked for some change. With the cashier distracted, Wiley came to the cash register, pointed the gun, and informed the cashier that it was a holdup. The cashier opened the cash register, and the money ($1,070.00) was put in a brown paper bag brought in by Cage. Once they had the money, Wiley ordered that the phones be pulled out of the walls. The two then ran from the Pizza Hut and back to their car. Four days later Cage was picked up by the police and confessed to the crime. This led to the indictment of Wiley on November 14, 1988, and his arrest on November 18, 1988. Wiley was later released on bond.

On February 21, 1990, the day before the trial, Wiley came before the court and was arraigned. A motion to dismiss was made on the basis that the State failed to provide Wiley with a speedy trial under Miss.Code Ann. Sec. 99-17-1 (1972). The court overruled the motion, finding that the numerous delays and the appointment of the various attorneys was no fault of the State and that the delay beyond the 270 days was caused either by Wiley or by events beyond the State's control.

The trial began on February 22, 1990, and the trial judge ordered that Wiley be brought over to the courtroom. While the court waited for Wiley, the jurors were given a recess. During this short break, some of the jurors were outside of the courtroom in the hall when Wiley was brought to the courtroom in shackles; the shackles were removed before Wiley entered the courtroom. Counsel for Wiley requested that the court exclude from the jury panel all of the jurors who saw Wiley being brought to the courtroom in restraints. After brief argument and a discussion off the record, the trial court overruled the motion, finding that the action was not prejudicial, as defense counsel had already mentioned to the jury that Wiley was in jail.

The trial proceeded and Wiley was found guilty. He appeals and assigns two errors: (1) that he was denied his constitutional right to a speedy trial by the delay of more than 460 days from the date of the arrest, and (2) that he was prejudiced by the fact that some of the jurors witnessed him being brought to the courtroom in shackles and the trial court erred in not dismissing those jurors.

II. DISCUSSION

A. The Speedy Trial Issue

The constitutional right to a speedy trial is guaranteed by both the United States Constitution and the Mississippi Constitution. ¹ There is also a statutory right which is specifically provided in Miss.Code Ann. Sec. 99-17-1 (Supp.1990), stating that:

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.

The chronology of events between the indictment and the trial is very important in determining whether Wiley's right to a speedy trial was violated. An indictment was entered against Wiley on November 17, 1988. He was arrested on the indictment on November 18, 1988. After his indictment and arrest, Wiley hired George F. West, Jr. as his attorney. West was subsequently suspended from the practice of law. On April 26, 1989, a letter was sent to Wiley by the District Attorney's Office advising him that his trial date was set for May 22, 1989, and that they were aware that he was without legal representation. The letter advised Wiley that if he was without representation, he needed to get a lawyer immediately or the court would appoint an attorney for him. On May 9, 1989, William C. McGehee, Jr. was appointed by the court as counsel for Wiley. No trial took place on May 22.

On August 2, 1989, an order of continuance was filed at the request of Wiley, continuing the cause until the following term of court. No reason was given for the continuance. On September 11, 1989, an order was filed setting the case for trial on December 6, 1989. On September 21, 1989, a motion to withdraw as counsel was filed by Attorney McGehee, requesting that he be allowed to withdraw and that the court appoint new counsel. In his motion, McGehee based his motion on Wiley's hostility toward him. Wiley refused to meet with him to discuss the case, and he was unable to communicate with Wiley in order to prepare a proper defense. The court granted McGehee's motion allowing him to withdraw and appointed Patricia Dunmore as new counsel.

Dunmore was released as counsel for Wiley, because of a possible conflict, by order of the court on September 28, 1989. The court then appointed Stanley Merritt as counsel for Wiley. No trial was held on December 6; the record does not indicate why the trial was not held. On December 12, 1989, Merritt requested to withdraw as counsel for Wiley, because he had prosecuted Cage, the co-defendant, who would testify against Wiley, in Youth Court. On December 14, 1989, a second continuance was ordered at the request of Wiley; again the record does not indicate why the continuance was granted. The court granted Merritt's motion to withdraw on February 7, 1990, and appointed his present counsel L.H. Rosenthal. Wiley was arraigned on February 21, 1990, and went to trial on February 22, 1990.

Wiley's trial occurred 460 days after his arrest and only one day after his arraignment. There was no violation of Sec. 99-17-1, the statutory right to a speedy trial, as the trial occurred only one day after the arraignment. Compare Gator v. State, 402 So.2d 316, 319 (Miss.1981); Nations v. State, 481 So.2d 760 (Miss.1985). However, this Court has made it clear that compliance with Sec. 99-17-1 does not necessarily mean that a defendant's federal and state constitutional right has been respected. Wiley also alleges that his constitutional right to a speedy trial has been denied.

Unlike the statutory right, which attaches upon arraignment, the constitutional right attaches at the time that the defendant became an accused for speedy trial purposes. Perry v. State, 419 So.2d 194 (Miss.1982); Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), established that once the constitutional right to a speedy trial has attached, a balancing test, weighing the conduct of both the prosecution and the defendant, is applied to determine whether the right has been denied. This balancing test identifies four factors that are helpful in determining whether a person's constitutional right to a speedy trial has been denied. Those factors are: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. Neither of the factors, standing alone, is dispositive. But they are all to be considered together in the context of the surrounding circumstances. Barker, 407 U.S. at 530-33, 92 S.Ct. at 2192-93. This Court relies heavily on the application of the Barker balancing test.

1. Length of Delay

According to Barker,

[t]he length of the delay is to some extent a trigger mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the impression of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case ...

Barker, 407 U.S. at 530, 92 S.Ct. at 2191.

The total length of delay in this case, from the arrest on the indictment to the date of the trial, was 460 days. However, Wiley moved for two continuances to the next regular term of court during this period between the indictment and the trial. A continuance granted to a defendant is counted differently from a continuance granted to the State. Any delay as a result of action by the State, without "good cause" causes the time to be counted against the State. A delay caused by the actions of the defendant, such as a continuance, tolls the running of the time period for that length of time, and this time is subtracted from the total amount of the delay. Flores v. State, 574 So.2d 1314, 1318 (Miss.1990).

Calculations based on the time of the continuances and the...