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IN THE COURT OF APPEALS 10/01/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-00927 COA

SAMMY JOE ROSS 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. BARRY W. FORD COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DANNY L. LOWREY ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEWITT ALLRED, III DISTRICT ATTORNEY: JOHN YOUNG NATURE OF THE CASE: CRIMINAL: BURGLARY TRIAL COURT DISPOSITION: SENTENCED TO 15 YEARS IN MDOC, 5 YEARS SUSPENDED. SENTENCE TO RUN CONSECUTIVE TO CURRENT SENTENCE. CERTIORARI FILED: 12/21/98

MANDATE ISSUED: 4/12/99

BEFORE BRIDGES, P.J., DIAZ, AND SOUTHWICK, JJ. DIAZ, J., FOR THE COURT: Sammy Joe Ross (Ross) was convicted of burglary of a dwelling in the Alcorn County Circuit Court. He was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections with five years suspended. This sentence is to run consecutively to the sentence that he is now serving for another offense. Aggrieved, Ross appeals to this Court. We find no reversible error, and therefore, affirm the judgment of the lower court. Although Ross raises at least sixteen issues on appeal, both parties have only briefed and argued twelve of the issues. Therefore, we have condensed the issues and address only the issues that were briefed. FACTS At the time of this incident, the victim, (K.A.) lived in a trailer home with her infant daughter. On February 4, 1986, K.A. was watching her daughter and babysitting another young child. Around three o'clock that afternoon, a man, identified by K.A. as Ross, knocked on her door and asked her if she knew where J.W. Rose lived to which she responded in the affirmative. Ross then asked K.A. to whom she used to be married. K.A. answered Ross' question. After this exchange, Ross pulled out a gun and pointed it at K.A. through the screen door. Ross then entered the trailer with the gun pointed at K.A. Ross twice told K.A. to remove her clothes, and she refused. Instead, she told Ross that he could take anything he wanted from the house. The two struggled for a while. Ross eventually got K.A. onto a sofa in the living room, and pulled down her trousers and underwear. K.A. screamed the entire time. Her screams in turn, woke up the babies, who began crying. K.A. asked Ross if she could go check on the babies. Eventually, Ross let her get up, but he told her not to turn around when she came back from checking on the babies. When K.A. returned, Ross had left the trailer, and was pulling out of her driveway in his truck.

DISCUSSION I. WHETHER THE TRIAL COURT ERRED IN DENYING HIS MOTION TO DISMISS FOR WANT OF A SPEEDY TRIAL? a. Constitutional Right To Speedy Trial

Ross is currently serving a life sentence, and fifteen years for similar, but unrelated charges. Ross was originally arrested on September 16, 1987 for five of the unrelated charges which he faced at the time. On November 12, 1987, Investigator Pickens of the Mississippi Highway Patrol took a statement from K.A. On November 14, 1987, K.A. picked out Ross as her assailant from a lineup at the county jail. Ross was indicted for the present charge on October 3, 1988, and arraigned on October 10, 1988. Ross argues that he does not agree with settled case law, and asserts that the right to speedy trial should have attached at the time he was brought to the jail for the line up because that is when the criminal process began. For constitutional purposes, the right to speedy trial attaches at the time of the accused's arrest, indictment, or information. Ross v. State, 605 So. 2d 17, 21 (Miss. 1992). Therefore, for constitutional speedy trial purposes, time began running against Ross on October 3, 1988. Approximately four years and three months passed from the time Ross was indicted and arraigned until he was actually tried in this particular case. This obviously triggers a Barker analysis. See Barker v. Wingo, 407 U.S. 514, 530 (1972). Four factors must be balanced in determining whether the Defendant's claim that his right to a speedy trial has been violated. Johnson v. State, 666 So. 2d 784, 792 (Miss. 1995). These factors are: (1) length of delay, (2) reason for the delay, (3) whether the defendant has timely asserted the right to a speedy trial, and (4) whether the defendant has been prejudiced by the delay. Johnson, 666 So. 2d at 792 (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). No single factor is dispositive; however, we must consider the totality of the circumstances in addition to any relevant circumstances beyond the four factors, when making the determination. Id. 1) Length of Delay The state supreme court has held that a delay of eight months or more between arrest and trial is presumptively prejudicial. Id. (citations omitted). This factor in itself will not require reversal. However, it will require that we examine the remaining factors closely. Id. (citations omitted). The delay in Ross' case of over four years is presumptively prejudicial. Therefore, we closely examine the remaining factors. 2) Reason for Delay Simply stated, the rule governing reason for delay is two-pronged: 1) the State must prove either that the Defendant prompted the delay, or 2) that the State prompted the delay, but with good cause. Ross, 605 So. 2d at 23. Ross' original trial date for this case was set for January 24, 1989. Because we are concerned with the length of the overall delay in this case, we will go through the chronology of the events. February 4, 1986- Commission of the crime. September 16, 1987- Ross' initial arrest and incarceration on other charges. November 14, 1987- Lineup and identification of Ross by victim of the offense. October 3, 1988- Indictment filed. October 10, 1988- Ross' indictment by waiver. Arrest on capias.

October 10, 1988- Continuance order on motion of Ross. January 20, 1989- Continuance order on motion of Ross due to counsel's heavy case load. May 8, 1989- Order granting Ross' attorney Langton's motion to withdraw due of conflict of interest. Attorney Windsor was appointed, and the case was continued until further order of the court. Attorney Windsor moved to withdraw due to conflict of interest. June 20, 1989- Attorney Windsor's motion to withdraw was granted. Attorney Coleman was appointed. July 17, 1989- Continuance order granted on motion ore tenus of Ross.

October 6, 1989- Continuance order to next term on motion of Ross because material witness unavailable to testify. January 11, 1990- Continuance order to May term due to illness of Ross' attorney. April 19, 1990- Continuance order to July term due to illness of Ross' attorney. July 16, 1990- Continuance order to October term on motion of Ross because material witness unavailable to testify. October 8, 1990- Continuance order to next term on motion ore tenus of Ross. January 4, 1991- Continuance order until further order of the court on motion ore tenus of Ross. May 13, 1991- Continuance order to next term on court's own motion due to pre-emption by trial of another case. July 22, 1991- Continuance order on motion of Ross. October 10, 1991- Continuance order to January term on motion of Ross. January 22, 1992- Continuance order to next term on motion ore tenus of Ross. May 14, 1992- Continuance order on motion ore tenus of Ross. July 30, 1992- Continuance order to next term on motion ore tenus of Ross. September 16, 1992- Writ of habeas corpus ad prosequendum for Ross' presence at October term. No continuance order was entered at October 1992 term. December 19, 1992- Writ of habeas corpus ad prosequendum for Ross' presence at January term. January 19, 1993- Entry of appearance by attorney Lowery for Ross. January 22, 1993- Continuance order to May 3, 1993 on Ross' motion.

May 3, 1993- Trial. Ross' case was continued eighteen times, and as a result, Ross was not tried until May 3, 1993. Of the eighteen continuances, fourteen were granted on motions made by Ross, three orders of continuances resulted from continuance orders on the court's own motion and one continuance occurred without an entry of an order. "Any delays in prosecution attributable to a defendant under either the constitutional or statutory scheme tolls the running of time." Handley v. State, 574 So. 2d 671, 674 (Miss. 1990) (citations omitted). Furthermore, any continuances for "good cause" will also toll the running of time unless the "record is silent regarding the reason for delay," in which case "the clock ticks against the State because the State bears the risk of non-persuasion on the good cause issue." Handley, 574 So. 2d at 674. Accordingly, the fourteen continuances granted pursuant to Ross' motions cannot be charged against the State. Next, we look to the three continuances granted on the court's own motion. The first continuance on the court's own motion was on May 8, 1989. On that day, the court appointed Ross' second attorney and accordingly ordered a continuance from the May term of the court until further notice. His second attorney, Ronald Windsor, immediately filed a motion to withdraw on the same day due to a conflict of interest. Ross's third attorney, David Coleman was appointed on June 20, 1989. This was a period of forty-four days. The next continuance on January 11, 1990 was granted apparently on the court's own motion due to attorney Coleman's continued illness. The trial was set for May 14, 1990. On April 19, 1990, the defense filed another motion to continue the case until the next term because Coleman was still recovering from his illness. The period between January 11, 1990 and April 19, 1990 consists of ninety-eight days. On May 13, 1991, the court ordered another continuance on its own motion due to a backlog of cases. At that point, there was no request for speedy trial. The case was continued until the next term. The period from May 13, 1991 to July 22, 1991 consists of sixty-five days bringing the total to 207 days of delay due to continuances from the court. On September 16, 1992, a writ of habeas corpus ad prosequendum was issued for Ross, but no continuance order was ever entered here. On December 19, 1989, another writ of habeas corpus ad prosequendum was issued for Ross. The prosecutor testified at the motion to quash the indictment hearing. He testified that Ross was anticipating the outcome of another case that was before the supreme court. Ross wanted to wait until the other case was resolved in order to decide whether he wanted to plea bargain with the State. His attorney informed the State that Ross would not plead in October, but he might plead in January depending on the outcome of the other case. Both sides agreed that he would not go to trial before the other case was resolved. No continuance order was entered here. The trial was set for January 23 , 1993. Assuming that the October term began on the first of the month, this delay may be calculated to consist of 115 days bringing the total to 322 days. Apparently, the first court continuance granted on the court's own motion was due to the fact that Ross' second attorney filed a motion to withdraw on the same day that he was appointed due to a conflict of interest. A delay caused by the withdrawal of the Defendant's attorney which entails allowing the new attorney a reasonable time to become familiar with the case and prepare for trial cannot be weighed against the State because it is beyond the State's control. Johnson, 666 So. 2d at 792 (citations omitted). Subtracting this from the total leaves 278 days. The second continuance was due to attorney Coleman's illness. The trial court has broad discretion in granting continuances, and

we do not think that it abused its discretion in so granting a continuance under these circumstances. Atterberry v. State, 667 So. 2d 622, 631 (Miss. 1995). Furthermore, Coleman testified that his law partner filed for a continuance on his behalf for the January 1990 term. Arguably, this was filed by the Defendant and cannot be charged against the State. Subtracting this from the total, the delay consists of 180 days. The next continuance from the court's own motion was due to a backlog of cases. Continuances due to docket congestion do not weigh as heavily against the State as would periods where no cause for the delay was seen. Jasso v. State, 655 So. 2d 30, 33 (Miss. 1995); See, e.g., Hurns v. State, 616 So. 2d 313, 318 (Miss. 1993) (overcrowded court dockets and trial schedules are neutral reasons in Barker analysis); McGee v. State, 608 So. 2d 1129, 1133 (Miss. 1992) (docket congestion can furnish good cause for delay). The continuance from the October 1992 term was by agreement between the parties pending the outcome of Ross's other case for plea negotiation purposes. Plea negotiations constitute good cause and should not be charged against the State. See Taylor v. State, 672 So. 2d 1246, 1259 (Miss. 1996). We do stress however, the importance of docum entation in negotiations in order to substantiate claims of plea negotiations. Taylor, 672 So. 2d at 1259. The district attorney testified at the motion to quash the indictment as to the agreement reached between the parties regarding the continuance at the October 1992 term. We feel that this constitutes adequate documentation; however, even if we were to charge this time against the State, the total number of days delayed by the State totalled 180. 3) Assertion of Right Although Ross was not required to demand a speedy trial, his assertion of such a right will weigh more heavily in his favor under this analysis. Johnson v. State, 666 So. 2d 784, 793 (Miss. 1995). Although we are unable to find a specific motion for a speedy trial, Ross did make a motion to quash the indictment because his right to a speedy trial was violated. Therefore, the fact that Ross made this motion may favor his argument. However, the fact that Ross moved for a continuance at the time of trial could be considered contrary to any concerns about a speedy trial. See Atterberry, 667 So. 2d at 627. 4) Prejudice Ross alleges that he suffered prejudicial effects from the delay. The prejudice prong of this analysis seeks to prevent oppressive pre-trial detention, to minimize the anxiety and concern of the accused, and to limit the impairment of the defense. Taylor v. State, 672 So. 2d 1246, 1261 (Miss. 1996). The supreme court has stated that the State must actually show lack of prejudice in order to prevail on this factor. Jasso v. State, 655 So. 2d 30, 35 (Miss. 1995). Ross was a previously convicted felon at the time of trial, and his incarceration at the time was not due to the present incident. Therefore, he cannot claim oppressive pre-trial detention. Ross wanted the trial continued until his other federal appeals were resolved in order to effectively plan his trial strategy. Anxiety may be presumed from the mere fact of delay even where the defendant does not claim that he has suffered anxiety. Johnson v. State, 666 So. 2d 784 793 (Miss. 1995). Impairment of the defense may occur as a result of witnesses dying. See Johnson, 666 So. 2d at 793. Although it is true that J.W. Rose passed away and therefore was not able to testify, the victim's father was allowed to testify about the conversation which he had with J.W. Rose. However, the statements were not admitted as substantive evidence.

After reviewing the reasons why Ross' trial was repeatedly continued, the continuances were either on motion of the defendant, or for good cause by the court. Although Ross did move for a speedy trial, the fact that he moved for a continuance up to the time of trial could be considered contrary to his interest in a speedy trial argument. Finally, although J.W. Rose was unable to testify at trial, considering the totality of the circumstances, the defense was not impaired, nor was it prejudiced. Ross has not been denied his constitutional right to a speedy trial. b. Statutory Right To Speedy Trial Section 99-17-1 of the Mississippi Code 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.

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