Williams v. State

• Decision Date: 14 October 2008
• Docket Number: No. 2007-KA-00270-COA.,2007-KA-00270-COA.
• Citation: 5 So.3d 496
• Parties: Herman Lee WILLIAMS a/k/a Herman Williams a/k/a Stank, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

5 So.3d 496

Herman Lee WILLIAMS a/k/a Herman Williams a/k/a Stank, Appellant v. STATE of Mississippi, Appellee.

No. 2007-KA-00270-COA.

Court of Appeals of Mississippi.

October 14, 2008.

Rehearing Denied February 3, 2009.

Certiorari Denied March 26, 2009.

Lee Davis Thames, Jackson, attorney for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

Before MYERS, P.J., ISHEE and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. A Warren County grand jury indicted Herman Lee Williams in October 2005 for possession of cocaine, more than ten grams, but less than thirty grams. After a jury trial on September 5-6, 2006, Williams was convicted of the drug possession charge. He was sentenced to serve twenty-four years in the custody of the Mississippi Department of Corrections (MDOC), with the sentence to be served in full without parole or probation. Williams now appeals his conviction, alleging numerous errors in the trial court, which he believes warrant a new trial. Finding no reversible error, we affirm.

FACTS

¶ 2. On July 10, 2005, Vicksburg Police Officer Jeremy Brassard was patrolling the area of Vicksburg that includes Navy Circle, a scenic lookout area known as the Overlook. The Overlook is closed after dark, and there are signs posted to notify the public of the closure. As Officer Brassard patrolled the area, he noticed a couple of cars parked at the Overlook. As he approached, one car drove away, but the other car stayed. Officer Brassard used his spotlight to look into the car and asked the driver for his information. The driver, Williams, produced a learner's permit and the title and insurance for the vehicle. He did not have a driver's license.

¶ 3. Officer Brassard asked Williams to exit the car. Upon exiting the car, Williams ran down the hill, away from the officer. Officer Brassard noticed Williams reach into his pocket as he ran; Williams pulled out a cellophane bag, which he threw to the ground. Officer Brassard was able to catch up to Williams and search him. Other officers subsequently arrived at the scene and assisted Officer Brassard in his search for the cellophane bag. The bag contained a substance that was later determined to be cocaine. Williams was arrested.

¶ 4. Upon his arrest, Williams was taken to the Warren County jail. The Mississippi Department of Corrections (MDOC) put a hold on Williams due to an earned-release-supervision violation. Williams was released from the Warren County jail and transported by the MDOC to the Central Mississippi Correctional Facility in Pearl. He was transferred on August 16, 2005, to the South Mississippi Correctional Institution in Leaksville. Williams was indicted on October 19, 2005, by a Warren County grand jury for possession of cocaine, more than ten grams, but less than thirty grams, which is the charge before this Court. The Warren County district attorney was informed that Williams was in the custody of the MDOC on an unrelated charge. On October 31, 2005, the Warren County District Attorney's Office filed a detainer to obtain custody of Williams for the possession charge upon his release from the MDOC. Williams was subsequently released on February 28, 2006, to Warren County authorities. Williams was then released on bond on March 1, 2006, for the current possession charge. On June 15, 2006, Williams was arrested on a separate charge for the sale of cocaine, for which he was denied bond. He was arraigned on July 21, 2006, on the possession charge before this Court. At his arraignment, Williams asserted his right to a speedy trial for the first time. On August 10, 2006, he filed a motion to dismiss the possession charge, alleging that he was denied his right to a speedy trial. On September 18, 2006, his trial began.

¶ 5. On appeal, Williams alleges ten separate errors. Because they are similar, Williams's final four issues have been combined. Williams argues (1) he was denied his right to a speedy trial; (2) the state court did not have jurisdiction; (3) the sentence is unconstitutional and disproportionate; (4) the trial court improperly found that Williams opened the door on his prior convictions; (5) he was denied advice of counsel and due process; (6) the finding of guilt was against the overwhelming weight of the credible evidence and/or is contrary to the law or the right of the evidence; and (7) the trial court erred in granting and denying certain jury instructions and in redacting portions of defense instructions.

¶ 6. Finding no reversible error, we affirm the trial court.

DISCUSSION

I. Whether Williams was denied his right to a speedy trial.

¶ 7. Williams claims that because he was not tried for the possession charge until fourteen months after his arrest, he was denied a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, as well as Article 3, section 26 of the Mississippi Constitution.

¶ 8. Our standard of review when analyzing a trial court's findings regarding a speedy trial violation is as follows:

The Mississippi Supreme Court has stated that speedy trial claims necessarily entail questions of fact regarding "whether the trial delay rose from good cause." DeLoach v. State, 722 So.2d 512(¶ 12) (Miss.1998). This Court must uphold the trial court's findings on the issue of speedy trial where supported by "substantial, credible evidence; [but] if no probative evidence supports the trial court's findings ...," our duty is to reverse. Ross v. State, 605 So.2d 17, 21 (Miss.1992). As in other cases in which the trial court must make factual determinations, our Court reviews those findings using the "clearly erroneous" standard. Stokes v. State, 548 So.2d 118, 122 (Miss.1989).

Moore v. State, 837 So.2d 794, 797 (Miss. Ct.App.2003).

¶ 9. A defendant's right to a speedy trial attaches the day he is arrested. Thorson v. State, 653 So.2d 876, 889 (Miss.1994) (citing Spencer v. State, 592 So.2d 1382, 1387 (Miss.1991); Handley v. State, 574 So.2d 671, 674 (Miss.1990); Smith v. State, 550 So.2d 406, 408 (Miss. 1989)). Thus, Williams's right to a speedy trial attached on July 10, 2005. To determine whether a defendant's constitutional right to a speedy trial has been violated, we must consider the four factors set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972):(1) the length of the delay, (2) the reason for the delay, (3) the defendant's timely assertion of his right to a speedy trial, and (4) the resulting prejudice to the defendant. Thorson, 653 So.2d at 890 (citing Barker, 407 U.S. at 530, 92 S.Ct.2182)). Ultimately, "no one factor is dispositive. The totality of the circumstances must be considered." Fisher v. State, 532 So.2d 992, 995 (Miss.1988) (citation omitted).

a. Length of the Delay

¶ 10. The length of the delay triggers analysis of the other three factors, and the delay must be "presumptively prejudicial" to the defendant for the analysis to continue beyond this factor. Atterberry v. State, 667 So.2d 622, 626 (Miss. 1995) (citations omitted). The trial in Williams's case did not begin until fourteen months after his arrest. The Mississippi Supreme Court has held that in non-capital cases, delays of eight months or more are presumptively prejudicial. Thorson, 653 So.2d at 890 (citing Spencer, 592 So.2d at 1387). Because Williams's delay of fourteen months is considered presumptively prejudicial, our analysis must continue to the other Barker factors.

b. Reason for the Delay

¶ 11. The record is silent on the reason for the delay in bringing Williams to trial. The defendant was in custody for most of the time between his arrest and trial. He served some time after arrest for an earned-release-supervision violation. After that, he was jailed after being arrested on a separate drug charge while out on bond.

¶ 12. The trial court found that the delay was caused by the defendant because he was in the State's custody on other charges between arrest and trial; therefore, the trial court did not count most of the time that the defendant was in custody it its analysis of the speedy trial violation. The Mississippi Supreme Court has held "[t]he mere fact that the defendant is in custody for another crime is generally not a sufficient reason for delaying a trial." Fisher, 532 So.2d at 995. Because there is no reason given by the State for the delay in bringing Williams to trial, this factor should be weighed against the State and in favor of Williams. Brengettcy v. State, 794 So.2d 987, 993(¶ 13) (Miss.2001) (citation omitted).

c. Defendant's Assertion of Right to Speedy Trial

¶ 13. Williams did assert his right to a speedy trial at his arraignment on July 21, 2006. His trial was set at that time and commenced within two months of his asserting the right.¹ Williams asserts that it is not the duty of the accused to bring himself to trial. While it is not the duty of the accused to bring himself to trial, the analysis of this prong of the Barker test is weighed more heavily in his favor if he has demanded a speedy trial. Brengettcy, 794 So.2d at 994(¶ 17) (quoting Jaco v. State, 574 So.2d 625, 632 (Miss.1990)).

¶ 14. Williams waited more than one year from the time of his arrest to assert his right to a speedy trial. He asserted the right to a speedy trial on July 21, 2006, at his arraignment. On August 10, 2006, Williams filed a motion to dismiss for denial of a speedy trial, which was denied. His trial began on September 18, 2006, within two months of his asserting his right to speedy trial.

¶ 15. Our supreme court has, in several cases, weighed this factor against an accused when he has waited a significant amount of time before demanding a speedy trial. See Wall v. State, 718 So.2d 1107, 1113(¶ 25) (Miss.1998) (holding that this factor weighed against the accused whose assertion of the right to speedy trial did not come until two months before his trial began). In Noe v. State, 616...