Raul Rolando FLORES and James Ray Vanetten
v.
STATE of Mississippi.
Supreme Court of Mississippi.
*1315 G. Gilmore Martin, Martin & Sherard, Vicksburg, for appellants.
Mike C. Moore, Atty. Gen., Charles W. Maris, Jr. and Deirdre McCrory, Sp. Asst. Attys. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and ANDERSON and PITTMAN, JJ.
ANDERSON, Justice, for the Court:
This is an appeal from the Circuit Court of Hinds County, wherein the appellant, James Ray VanEtten was convicted of conspiracy to distribute more than one kilogram of marijuana and sentenced to fifteen years imprisonment. Now, VanEtten appeals to this Court assigning four errors. Finding that only one assignment has merit and requires us to reverse this case, we address the following:
THE COURT ERRED IN NOT DISMISSING THE INDICTMENT FOR FAILURE OF THE STATE TO PROSECUTE WITHIN 270 DAYS OF ARRAIGNMENT
STATEMENT OF THE FACTS
During this trial six witnesses testified. In addition to the two defendants, three *1316 officers and another co-conspirator (co-defendant), and Bobby Layton took the stand.
At the time of the conspiracy Layton lived in Edwards, MS. When the trial was held Layton had known defendant for approximately eleven years. Layton testified that VanEtten came to him in December 1983 to borrow $300 so that he could go to Texas to "score some marijuana." In addition to repayment, Layton was to receive more money and all the marijuana he wanted to smoke. VanEtten went to Texas and returned with nothing.
A month or so later Layton and VanEtten went to Texas in VanEtten's van to score (pick up) some marijuana tо sell. They went to an apartment in Pasadena, Texas, a suburb of Houston. VanEtten was to get payments from what he sold, and Layton was to receive payment for storing the marijuana in his home. He did not know of what other arrangements VanEtten may have made with the people in Texas. Layton and VanEtten returned to Edwards. They kept the marijuana at Layton's home. Periodically VanEtten would come to Layton's home to take some to sell.
Layton and VanEtten took another trip to Texas in April 1984. This time they went in VanEtten's car. Joining them was VanEtten's friend, Tink. VanEtten had asked Layton for more money, but Layton chose to travel with him instead. Again, Layton was to get some payments, but he was also to get payment in kind all the marijuana he wanted to smoke.
When they arrived in Pasadena, they went to a bar where VanEtten made some phone calls. A few hours later Flores joined them. It was Layton's impression that Flores was the connection to "score some weed." After they left the bar, Layton, Tink, VanEtten and Flores went to the same apartment where Layton and VanEtten had gone during their first visits to Texas. While they were at the apartment they were joinеd by a Roy and Migel. During the night they loaded two suitcases with about thirty pounds of marijuana, and loaded them into the car for the return trip to Edwards.
According to Layton, Migel was to ride back with him and Tink to make sure the marijuana arrived in Vicksburg. Flores, however, was to meet the parties in Jackson the following day. He was coming to Jackson to collect money from the sale of the marijuana, which was stored at Layton's house. Of course, Layton was to be paid some money, but he was also allowed to smoke what he wanted.
When they arrived at his home Layton stored the marijuana in his bedroom closet. Migel remained at Layton's home to make sure "nobody ripped them off" while Tink and VanEtten went somewhere else. The following night Layton and Migel went to the airport to pick up VanEtten and returned to Layton's home. During the next few days, several pounds of the marijuana were sold. Apparently, VanEtten was the seller because he would take pounds of the marijuana and return with money. Layton, however, only saw an exchange of money between VanEtten and Flores on one occasion. They were at the house two or three days bеfore they were busted. Once when VanEtten was coming to make a purchase or pick up a package, he blew his engine in his car, and it had to be towed to Layton's house where it remained.
On Sunday, May 6, 1984, law officers executed a search warrant at Layton's residence. They recovered nine pounds of marijuana, which was still in the suitcase in the closet. Pursuant to this search everyone in the house was arrested. This included Layton and his wife, Flores, and Migel. Officers also confiscated $6,223.48 from Flores' pocket. They also discovered VanEtten's car at thе scene and found that it was registered to him.
Subsequently, Layton agreed to cooperate with the authorities. For what it is worth, Layton agreed to cooperate, and if his testimony was sufficient enough, then he and his wife would not be prosecuted. If he did not cooperate, he would be charged with possession with the intent to distribute. Of course he would probably lose his wife, house and children. And, since he was an habitual offender, he could *1317 possibly face fifteen to twenty years without parole.[1]
At the conclusion of the trial Flores and VanEtten were convicted of conspiracy to distribute more than a kilogram of marijuana and sentenced to fifteen years in prison.[2]
LAW
The Sixth and Fourteenth Amendments of the United States Constitution and Article 3, Section 26 of the Mississippi Constitution of 1890 guarantee a defendant the right to a speedy trial. In addition, Mississippi Code Ann. § 99-17-1 (Supp. 1990) requires that a defendant be brought to trial within 270 days after arraignment "unless good cause [can] be shown, and a continuance duly granted by the Court." This language is plain and unambiguous. See, Payne v. State,
Because this is a speedy trial issue, a chronology is provided:
6/19/84 Indictment filed against VanEtten.
7/02/84 VanEtten waives arraignment.
7/09/84 Opening of July Term.
7/10/84 VanEtten moves for severance.
9/12/84 Court grants State's motion for continuance
until February '85 term.
[There is no indication from the record when
the mоtion was originally filed].
2/01/85[*] Case continued until June 1985 term.
6/20/85 VanEtten submits motion to dismiss.
6/21/85 VanEtten files motion to dismiss.
7/08/85 July Term of Court begins.
7/11/85 Court enters order granting State's Motion for
Continuance from July 23 to August 8.
7/11/85 Court overrules VanEtten's motion to dismiss
for failure to prosecute.
7/24/85[*] VanEtten files motion for continuance.
9/04/85 Court grants Flores' motion for continuance to
allow him time to move for dismissal of charge
under the 270-day rule.
*1318 9/23/85 September term of Court begins.
1/28/86 January (February) Term of Court begins.
2/18/86 Trial begins and both defendants renew their
motions to dismiss; however, Court overrules
both motions.
The parties agree that 596 days elapsed between the time of the waiver of arraignment and the time of the trial. Where the state has demonstrated good cause, and a continuance has been granted those dates are not counted against the state. Reed v. State,
Time to Count
On September 12, 1984, when the first continuance was granted, seventy-two (72) days had already elapsed. The trial court granted this continuance because "an indictment was returned only several weeks ago and discovery between the defense and thе state has just begun and remains incomplete at this time." This continuance was granted until the February term, which incidentally began on January 28. Consequently, a total of 138 days cannot be counted against the state. VanEtten maintains, however, the number of days total 139.
The state contends that a continuance was granted during the February term, and the trial was set for July 23, 1985. This order, however, is not a part of the record, and it is silent regarding the reason for delay. Consequently, this time must "tick against" the State. See, e.g., Vickery,
On July 11, the trial court also overruled VanEtten's motion to dismiss for failure to prosecute which had been filed on June 20. On July 24, 1985, VanEtten filed a Motion for continuance. He alleged that he needed additional timе because "the trial was originally set for July 23, reset to August 5 and is now set for July 30." The record contains no order from the court granting VanEtten's request. But, the state argues that "presumably the court would not have granted it on less than good cause shown." However, the state concedes that if "this delay is pinned on the state, it was a delay of only 31 days from August 5, 1985 until September 5, 1985."[3]
On September 4, 1985, the trial court granted Flores' Motion for continuance "to allow defendant to move for a dismissal of the charge under the 270 [sic] Rule." There is no evidence in the record regarding when Flores filed this mоtion. Moreover, the court did not include how long this continuance was supposed to last. VanEtten argues that this motion should not be charged to him because he did not make it. Furthermore, VanEtten argues that Flores' motion should simply be treated as a special appearance.
The February 1986 term of Court began on January 27, 1986, and the trial was held February 18, 1986. Of course, this simply means that the State allowed twenty-two (22) more days to slip by; therefore, the total number of days has reached 289. VanEtten maintains, however, the number *1319 of days was 290. As a consequence, the State hаs exceeded the 270 day limit.
What Does The State Argue?
The State concedes that it lost the first seventy-two days between the waiver of arraignment and the first continuance order. But, the State maintains that VanEtten should not get the benefit of the second delay because he did not object or demand a speedy trial at the February 1985 period.
In support of this proposition the State relies on Nations v. State,
In Sistrunk, good cause obviously was demonstrated when the trial judge granted the prosecution's motion for a continuance because of the absence of two material witnesses.
In Davis, this Court also relied on the fact that the defendants did not protest, object or request trial. Moreover, the Court continued, "[t]he delay resulting from this continuance cannot be considered as having been without good cause, especially in the absence of any showing in the record to the contrary."
Returning to the case sub judice, there is no evidence that there was a motion for a continuance. VanEtten had no knowledge of one; consequently, he could not agree to one. No good cause was demonstrated. As a matter of fact, there is no evidence in thе record that shows that the judge even considered a motion. There simply was a delay for no apparent reason. It must be remembered that VanEtten had no duty to bring himself to trial. Reed, supra,
In the above analysis, supra at pp. 1318-1319 VanEtten concedes that the second continuance was properly granted, and it tolled the time. The third continuance is somewhat tricky. There is no order granting a continuance, but there is evidence that VanEtten filed a motion requesting a continuance. Obviously in a generous mood, the State gives VanEtten these 31 days. The simple way to deal with this is to leave with the State the burdеn of establishing that there was good cause for delay. Nations,
The State next contends that VanEtten "wholly ignore[s]" the continuance order entered at the request of his co-defendant. Moreover, the state asserts that this time cannot be charged to it. VanEtten, however, has discounted this time period and has not charged it to the state and *1320 still has arrived at a number exceeding the 270 day limit. See, supra, pp. 1318-1319. If it is determined that this time period should be charged to the State then this would add to the number of days VanEtten was held without a trial. In support of the contrary proposition, that the state cannot be charged, the appellee relies on three cases.
In Hollis v. Superior Court (People),
The State also relies on People v. Teale,
On appeal the court found that good cause had been demonstrated requiring a continuance, which forced Chapman to trial after the sixty day period. Forcing a trial before the sixty day period would have sufficiently deprived Teale of adequate representation and a fair trial. Cf. Hollis, supra,
Finally the State relies on People v. Jones,
The State's reliаnce on these cases is misplaced. In those cases the courts determined that a co-defendant moving for a continuance demonstrated good cause when he would not have an adequate opportunity to prepare for trial, which would preclude him from having a fair trial. In the case sub judice, good cause was not shown for the continuance granted to Flores.
In this case the order which granted Flores' continuance was entered before the September term of court. Therefore, the operative question becomes, "How lоng does it or should it take counsel to prepare a motion to dismiss?" Moreover, the record is not clear nor do the briefs indicate whether VanEtten knew of or received notice of the fact that Flores filed this motion. Clearly, the court still could have scheduled the trial before the February term, instead of adding more than four months to the time that VanEtten had to wait for his trial.
When the State indicted VanEtten it had an obligation to bring him to trial without any unnecessary delay. State v. Anthony,
Moreover, since the right to a speedy trial is a right personal to the accused, the right should not be waived because of delays occasioned by a co-defendant for which the accused was not in any way responsible. People v. Roberts,
Therefore, when these days are added to the number of days that the State had already allowed to pass, it is beyond a doubt that the State violated its statutory obligation under § 99-17-1. This statute commands that the state bring a defendant to trial within 270 days, and it allows for very little, if any, wiggle room.
Constitutional Guarantee to Speedy Trial
Assuming arguendo the State met its statutory obligation, it does not necessarily mean that VanEtten's constitutional right to a speedy trial has been respected. Smith v. State,
In Klopfer v. North Carolina,
The Barker Court identified four factors which are to be considered in making such a determination: (1) the length of delay; (2) the reason for delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether the defendant has been prejudiced by the delay. No one of the factors is, in itself, dispositive. Rather, they must be considered together in light of all the circumstances. Smith,
Length of Delay
This factor is the triggering mechanism. The State concedes that it was at least 610 days from the date of indictment to the date of trial. Seven months delay is enough to cause further inquiry into the other factors. See, Smith,
Reason for Delay
From our calculation explained at pp. 1318-1319, 1321-1322, supra, which excludes the continuance granted to the defendant, VanEtten was tried more than 290 days after he was arraigned. If one were to add the number of days that elapsed between the time he was indicted and arraignеd, the total number of days increases to 303. Moreover, when the days for Flores' continuance granted on September 4, 1985, which delayed the trial until February 18, are added to this, the number surges to 469 days. When thirty-one days are deducted because VanEtten moved for a continuance, though there is nothing in the record which proves that the court granted it, the total number of days that elapsed equals 438.
In Perry v. State, this Court stated:
Where the defendant has not caused the delay, and where the prosecution has declined to show good cause for the delay, we must weigh this factor against the prosеcution. It is the burden of the state to see that a defendant receives a speedy trial.
The state contends that where the record is silent to orders granting continuances, the defendant should be responsible for the delays. This proposition has been refuted sufficiently, and it appears that this time must tick against the state. Vickery,
In response, VanEtten did file a motion for severance as early as July 10, 1984. There is no indication, however, that this motion was denied before September 16, 1985. Secondly, there has been no showing that VanEtten knew that Flores had moved for a continuance. Whether he knew about it or not, VanEtten should not be charged with the actions of his co-defendant. His right to speedy trial should not be denied in such a casual manner. Even subtracting this delay, as well as those attributable to VanEtten, it still is obvious that the State is to blame for most of the delay. Consequently, this factor weighs in Van Etten's favor.
*1323 Defendant's Assertion of His Right to a Speedy Trial
As early as June 21, 1985, VanEtten filed a motion to Dismiss for Failure to comply with the 270 day rule. At that time, however, the State had not violated the rule because it had been granted a continuance. Now the state argues "[t]he point is, on June 21, 11985, [sic], VanEtten demanded dismissal, not a speedy trial." Brief of Appellee at 11 (emphasis in original). In addition, the State contends that VanEtten was not interested in a speedy trial because he himself would later move for a continuance. Id.
With this argument the State is putting the responsibility on the defendant to request a trial. That duty is always on the state. Moreover, in his pretrial motions on the day of trial VanEttеn moved to dismiss on the speedy trial violation. As has been repeated throughout this opinion, a defendant may have some responsibility to assert his speedy trial claim, but the primary burden is on the courts and the prosecutors to assure that cases are brought to trial. Trotter,
Prejudice
In Trotter,
Inordinate delay, wholly aside from possible prejudice to a defense on the merits, may `seriously interfere with the defendant's liberty, whether he is free on bail or not, and ... may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety, in him, his family and his friends.' United States v. Marion,404 U.S. 307 , 320 [,92 S.Ct. 455 , 463,30 L.Ed.2d 468 ] (1971). These factors are more serious for some than for others, but they are inevitably present in every case to some extent .. .
See Moore v. Arizona,
The right to a speedy trial means what it says. The duty of a defendant to request a trial is less than the duty on the state to bring the trial forward. The right itself is "intricately related to the needs of well ordered society," for example, inter alia,
[d]efendants who are not bailed must spend `dead' time in local jails exposed to conditions destructive of human character. For those who are eventually found innocent, their potential to be contributing members of society through any kind of employment is lost during pre-trial incarceration. On the other hand, the possibility of rehabilitating those who are eventually found guilty is diminished since correction procedures cannot be started until after trial. These productive conditions are achieved at a great financial expense to society.
Harvey v. State,
Balancing
The only Barker factor that does not favor VanEtten is that he did not aggrеssively assert his right to a speedy trial. All the other Barker factors weigh in his favor. Therefore, VanEtten was denied his constitutional right to a speedy trial. See, Smith,
*1324 In conclusion, we must do what we are required to do by this State's Constitution and the United States Constitution. As of this day, because he was denied his statutory and constitutional rights to a speedy trial, James Ray VanEtten's conviction must be reversed and rendered, and he is discharged.
REVERSED, RENDERED AND DEFENDANT DISCHARGED.
ROY NOBLE LEE, C.J., HAWKINS, P.J., and PRATHER, ROBERTSON, SULLIVAN, PITTMAN and BLASS, JJ., concur.
DAN M. LEE, P.J., concurs in result only.
NOTES
Notes
[1] Flores also testified during the trial. Of course his testimony indicated that he was in no way involved in a conspiracy. The gist of his defense was that he had borrowed $6,000 from а bank to buy a truck, presumably an 18-wheeler. He just happened to run into Migel, a person he had known for a long time, at a bar in Houston. Migel informed Flores that he knew where he could get a truck in Lake Providence, Louisiana, however, Migel was returning to Jackson. Instead of riding with Migel to Jackson or Lake Providence, Flores flew to Jackson the following night. That night Layton and Migel picked up Flores from the airport, and they went to Layton's home.
While Flores was at Layton's he only saw VanEtten come to the house once. Layton, his wife, Flores and Migel subsequently went to Lakе Providence to look at the truck that Migel had informed him about. They were arrested the night they returned to Edwards.
In explaining why he had this $6,000+ in cash in his pocket, Flores explained that the bank gave him a cash loan in 100's and 20's. He had borrowed this money in January or February and since that time he was looking for a truck. During this time he was doing little or no work. When he made payment on this loan, he paid them with cash, but he did not know when he began the payments. Moreover, he assured the jury that the money did not come from the sale of marijuana. As a matter of fact, he did not know that marijuana was in thе house, and he never saw anyone come to purchase any. Finally, he denied having met with VanEtten in Texas.
VanEtten also took the stand and denied the conspiracy. He testified that he met Flores and Migel for the first time at Layton's house. He stated that he only met them because he was taking his car to Layton's house because Layton indicated that his friend, Migel, who was working on his van, could fix Layton's car as well. He denied ever going to Texas with Layton, selling or dealing marijuana or entering an agreement to buy any. He, however, did say that he smoked some marijuana when hе was at Layton's. Moreover, he indicated that he had no problem with people selling or smoking marijuana. Finally, he had this to say about criminals:
I've been there whenever I've seen folks stab ice picks in folks' eyes for snitching on somebody at nighttime ... I ain't got nothing to do with snitches. I ain't got nothing for one, and I ain't gonna have nothing to do with one in the future, and won't do nothing to one because I don't want nothing to do with one ...
[2] Just in case anyone is wondering what happened to Migel Garza he skipped bond apparently, never to be seen again.
[3] Of course if this is the case then these thirty-one days must be added to the delay; thereby bringing the total to 267 days.
[4] Incidentally the district attorney was obligated to bring them to trial within sixty days of the indictment. Id.