191 So. 3d 746
Miss. Ct. App.2015Background
- On Nov. 2, 2007, Tommy Ames entered a car driven by Kenya Johnson and shot Johnson and passenger Christopher Blackmore; both survived. Ames was on federal post-release supervision at the time.
- Ames was arrested by U.S. Marshals in Arkansas and, after a federal PRS-revocation hearing at which Johnson testified, was sentenced to federal prison; Mississippi later indicted him on two counts of aggravated assault.
- While Ames was incarcerated federally, the State attempted to locate Johnson but could not serve him; at trial (July 1–3, 2013) the court found Johnson unavailable under M.R.E. 804(a)(5) and admitted his prior testimony from the federal revocation hearing under Rule 804(b)(1).
- Ames was convicted of two counts of aggravated assault and sentenced to consecutive twenty-year terms (with portions suspended and post-release supervision); he appealed asserting (1) improper admission of Johnson’s prior testimony and (2) denial of a speedy trial (both constitutional and statutory).
- The trial court found the State made diligent efforts to locate Johnson and that delays leading to trial were largely attributable to changes in defense counsel, Ames’s failure to appear once, or were for good cause; the court affirmed conviction and sentence.
Issues
| Issue | Ames’s Argument | State’s Argument | Held |
|---|---|---|---|
| Admissibility under M.R.E. 804(b)(1) of Johnson’s prior testimony | State failed to use reasonable, diligent efforts (e.g., no subpoena), so Johnson was not "unavailable" and prior testimony was inadmissible hearsay | Investigator’s testimony shows diligent, reasonable efforts; subpoena futile given Johnson’s long absence | Court: No abuse of discretion; State made diligent efforts; prior testimony admissible under 804(b)(1) |
| Sixth Amendment speedy-trial violation (constitutional) | 1,995‑day delay between federal arrest and trial violated right to a speedy trial; prejudice and denial of confrontation | Delay largely not attributable to State (writ sought; counsel changes; defendant failed to appear); no specific prejudice shown; 804(b)(1) admission does not violate confrontation | Court: Although delay was presumptively prejudicial and Ames asserted the right, Barker factors overall do not show constitutional violation |
| Statutory speedy-trial violation (Miss. Code § 99-17-1) | 626 days from arraignment to trial exceeded 270‑day limit | Many delays are attributable to defendant or for good cause (defense continuances, counsel substitution, failure to appear) | Court: Delays attributable to defendant or for good cause; no statutory violation |
| Prejudice from missing witnesses (including Irene Ward) | Delay impaired defense because defendant could not locate witnesses (Johnson, Ward) | No showing Ward had relevant firsthand knowledge; testimony under 804(b)(1) does not violate confrontation | Court: No specific showing of prejudice; factor favors State |
Key Cases Cited
- Barker v. Wingo, 407 U.S. 514 (balancing test for Sixth Amendment speedy-trial claims)
- Russell v. State, 670 So. 2d 816 (Miss.) (testimony admitted under M.R.E. 804(b)(1) does not violate Confrontation Clause)
- Naylor v. State, 759 So. 2d 406 (Miss.) (diligent-effort standard to locate unavailable witnesses)
- Talley v. State, 164 So. 3d 516 (Miss. Ct. App.) (standard of review — abuse of discretion for evidentiary rulings)
- Ben v. State, 95 So. 3d 1236 (Miss.) (speedy-trial delay >8 months considered presumptively prejudicial)