Yarber v. StateYarber v. State
On January 1, 1989, the defendant, Clinton Yarber, was convicted of the burglary of the Oxford Milling Company in Oxford, Mississippi. Later, he was sentenced to 7 years in the custody of the Mississippi Department of Corrections with 2 years suspended.
The defendant appeals the conviction and claims that: (1) the state violated his statutory right to be brought to trial within 270 days; (2) the state violated his constitutional right to a speedy trial; (3) the trial court committed reversible error by admitting certain exhibits that were not relevant or, in the alternative, if they were relevant, they were misleading and confusing to the jury, and (4) the court committed reversible error by admitting lay opinion testimony that the safe insulation from the stolen safe was visually similar to scrapings taken from the defendant‘s tire iron.
STATEMENT OF THE FACTS
The following chronology represents the relevant dates at issue in this appeal:
January 1, 1988 Defendant arrested March 11, 1988 Defendant indicted April 4, 1988 Defendant arraigned and pleads not guilty June 1, 1988 Case set for trial on 7/21/88 June 17, 1988 Trial judge appoints Mr. Barber as defendant‘s counsel July 30, 1988 Entry in minute book stating that “all cases not otherwise disposed of are hereby ordered continued to the next regular term of court” August 4, 1988 Case set for trial on October 21, 1988 November 4, 1988 Entry in minute book stating “all cases not otherwise disposed of are hereby ordered continued to the next regular term of this court” December 6, 1988 Case set for trial on January 10, 1989 January 17, 1989 Defendant files motion to dismiss January 30, 1989 Motion to dismiss overruled January 30-31, 1989 Defendant tried and convicted.
As the chronology indicates, 301 days elapsed between the day of arraignment and the day of the trial.1 As a result, the defendant moves to dismiss the charges against him based on violations of
To support his motion, the defendant testified that he and his lawyer came to court on July 21, 1988, but they were told that another case was in progress that day. The case was then set for trial in October of the same year. The record is not clear as to why the trial was not held on that day in October.2 The trial court did, however, accept defense counsel‘s assertion that he came to the courthouse in October and found that no other trial was being conducted that day.
During the hearing on the motion to dismiss, the court took judicial notice of the fact that no orders of continuance were filed in the case. The court did note, however, that an entry appeared in the minute book at the end of each term stating that, “All cases not otherwise disposed of are hereby ordered continued to the next regular term of court.”
After hearing all the evidence, the judge overruled the motion to dismiss, finding that the constitutional right to a speedy trial was not denied and that good cause was shown for the delays so as not to violate the 270 days statutory rule.
The trial commenced later that day and the defendant objected to the introduction of some physical evidence and the lay opinion testimony of a deputy. More specifically, the defendant objected to the introduction of a tire tool, insulation from the safe, and scrapings that a deputy took from the tire tool. After the hearing, the trial court admitted the physical evidence and the opinion testimony that the scrapings were similar to the safe insulation.3
ANALYSIS
A. Statutory right to a speedy trial.
Miss. Code Ann. § 99-17-1 (Supp. 1990) provides that:Unless good cause can 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 270 days after the accused has been arraigned.
Next, the state tries to stop the statutory clock from ticking by arguing that good cause was shown and continuances were duly granted. At the hearing on the motion to dismiss, the state argued that the reason for the delay of the original trial date in July was a crowded docket. As proof, the state offered, and the trial court took judicial notice of, the fact that a jury verdict in another case was rendered on July 21.
This Court has not been demanding in its requirements for showing good cause. In Nations, supra, 481 So.2d at 762, this Court said, “generally, a written order to the effect that a motion is well taken and should be granted is the equivalent of a judicial determination that good cause existed for the continuance.” Also, this Court has held that docket congestion is “good cause” for delay in certain circumstances. Williamson v. State, 512 So.2d 868 (Miss. 1987); Kinzey v. State, 498 So.2d 814 (Miss. 1986).5 Regardless though, the state never sought a continuance for this or any other reason as required by
From the above it is obvious that a detailed discussion of the constitutional speedy trial claim or the alleged evidentiary errors is unnecessary. Suffice it to say that applying the balancing test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) it appears that this right was also violated.
REVERSED AND APPELLANT DISCHARGED.
DAN M. LEE, P.J., not participating.