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IN THE COURT OF APPEALS 07/02/96 OF THE STATE OF MISSISSIPPI
NO. 92-KA-00948 COA

COREY DAN MCINNIS APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JAMES E. THOMAS COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W.F. HOLDER, II ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY KLINGFUSS DISTRICT ATTORNEY: CONO CARANNA NATURE OF THE CASE: CRIMINAL: AGGRAVATED ASSAULT TRIAL COURT DISPOSITION: SENTENCED TO SERVE 18 YEARS IN THE CUSTODY OF THE MDOC

BEFORE BRIDGES, P.J., COLEMAN, AND PAYNE, JJ.

BRIDGES, P.J., FOR THE COURT: Corey Dan McInnis was convicted of aggravated assault and ordered to serve eighteen (18) years in the Mississippi Department of Corrections. McInnis now appeals his conviction arguing that he was denied a speedy trial, and that his verdict was against the overwhelming weight of the evidence. McInnis also argues that he was denied a fair trial due to overzealous prosecutorial questioning by the trial judge. Finding that his arguments are without merit, we affirm his conviction and the sentence of the lower court.

STATEMENT OF THE FACTS On June 22, 1990, Rodney Stapleton was sitting in his car playing his radio when he saw several people gathered on the corner of Mississippi Street and Tyler Street in Gulfport. Stapleton got out of the car to investigate and noticed two young girls fighting. One of the girls was his cousin. The other girl was Danita Street. Stapleton successfully stopped the girls from fighting and told both girls to go home. Stapleton then overheard someone tell Street that they should go get her brother, Corey Dan McInnis. A few minutes later, McInnis arrived on the scene and asked Stapleton why he was "messing with his sister." Stapleton replied that he "wasn't messing with his sister." McInnis then hit Stapleton causing him to stumble back. McInnis reached into his pants, pulled out a gun, and shot Stapleton in the stomach. The bullet went through his stomach, nicked his liver, and lodged within his body. Stapleton ran to his mother's house a short distance away. While he was running, he heard McInnis shoot at him once again. He also heard two "clicks" or misfires from the gun. When Stapleton reached his mother's house, he was taken to the hospital where surgery was performed to remove the bullet. ARGUMENT AND DISCUSSION OF THE LAW I. WHETHER MCINNIS WAS DENIED HIS CONSTITUTIONALLY GUARANTEED RIGHT TO A SPEEDY TRIAL.

McInnis first argues that he was denied his constitutionally guaranteed right to a speedy trial based upon the eighteen month period between his arrest and trial. We assess, as we must, the merits of that claim under the standards enunciated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), and subsequently interpreted by the Mississippi Supreme Court in a number of cases. Barker lists four primary factors that must be weighed and balanced in each case according to its particular facts: (1) The length of delay; (2) The reasons for the delay; (3) The defendant's assertion of his right to a speedy trial;

(4) Prejudice resulting to the defendant from the delay. Perry v. State, 637 So. 2d 871, 874 (Miss. 1994). The first factor is the only one capable of precise calculation and does not require substantial analysis. We begin our analysis with the date of the arrest until the actual date of trial. McInnis was arrested on June 22, 1990, and released on bond June 29, 1990. An affidavit charging him with the crime was filed July 2, 1990. The case was not presented for indictment until the March 1991 term. On March 28, 1991, 278 days after McInnis' arrest, he was indicted. McInnis' trial was set for August 5, 1991, 404 days after his arrest. A delay of this duration is presumptively prejudicial, albeit rebuttably so, and presumptively violative of the accused's right to a speedy trial. See State v. Ferguson , 576 So. 2d 1252, 1254 (Miss. 1991) (288 days). Establishing the length of delay is not sufficient, however, to prove that the delay denied the Defendant a speedy trial. Handley v. State, 574 So. 2d 671, 676 (Miss. 1990). The second factor, reason for delay, becomes crucial after the length of delay is established to be presumptively prejudicial. McInnis was indicted on March 28, 1991. He waived arraignment on April 30, 1991. The statutory 270 days began to run on that date. Miss. Code Ann.

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