Buckley v. State

772 So. 2d 1059, 2000 WL 1835808
CourtMississippi Supreme Court
DecidedDecember 14, 2000
Docket1999-KA-01390-SCT
StatusPublished
Cited by17 cases

This text of 772 So. 2d 1059 (Buckley v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Buckley v. State, 772 So. 2d 1059, 2000 WL 1835808 (Mich. 2000).

Opinion

772 So.2d 1059 (2000)

Bobby BUCKLEY a/k/a Bobby L. Buckley
v.
STATE of Mississippi.

No. 1999-KA-01390-SCT.

Supreme Court of Mississippi.

December 14, 2000.

*1060 James B. Everett, Decatur, Attorney for Appellant.

Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.

Before PITTMAN, P.J., McRAE and SMITH, JJ.

PITTMAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Bobby Buckley ("Buckley") appeals his conviction from the Circuit Court of Newton County, Mississippi for the crime of murder and sentence of life imprisonment with the Mississippi Department of Corrections. On August 9, 1999, Buckley was tried and convicted of the murder of Michael Smith by a Newton County Circuit Court jury, Circuit Judge Marcus D. Gordon presiding. The pertinent facts will be developed as the analysis continues, as such facts concern the motions made by Buckley and the circuit court's rulings on those motions.

STATEMENT OF THE ISSUES
I. WHETHER THE TRIAL COURT ERRED IN OVERRULING BUCKLEY'S MOTION FOR A CONTINUANCE.
II. WHETHER THE TRIAL COURT ERRED IN DENYING A MISTRIAL WHEN A WITNESS ENTERED THE COURTROOM IN CHAINS.
III. WHETHER THE TRIAL COURT ERRED IN DENYING A NEW TRIAL WHERE A JUROR FAILED TO RESPOND TO A QUESTION DURING VOIR DIRE.
IV. WHETHER BUCKLEY IS ENTITLED TO A NEW TRIAL DUE TO CUMULATIVE ERRORS.
DISCUSSION OF THE LAW

I. WHETHER THE TRIAL COURT ERRED IN OVERRULING BUCKLEY'S MOTION FOR A CONTINUANCE.

¶ 2. The decision to grant or deny a continuance is left to the sound discretion of the trial court, and this Court shall not reverse for the denial of a continuance unless it appears that manifest injustice *1061 resulted from the denial. Stidham v. State, 750 So.2d 1238, 1242 (Miss.1999)(collecting authorities). As no manifest injustice resulted from the denial of the continuance, this issue is without merit.

¶ 3. On the morning of trial, Buckley filed his motion for continuance alleging that Antonio Griffin ("Griffin"), for whom two subpoenas had been issued, was not present for trial and that Buckley could not continue as Griffin was a material witness to Buckley's alibi defense. Buckley alleged that the Newton Police Department failed to serve Griffin when they had him in custody prior to the date of trial. Newton Assistant Chief of Police Harvey Curry and Deputy Circuit Clerk Ann French were called to the stand to testify concerning the service of process on Griffin. During testimony, the following facts were clarified:

* Griffin was served while in the custody of the Newton Police Department on June 30, 1999.
* James Everett ("Everett"), Buckley's attorney, asked Curry several times whether Griffin had been served, and Curry assured Everett that Griffin had been served.
* Everett repeatedly asked Curry to bring the return on the process to the courthouse to which Curry stated that he had it at the station but could not find it.
* The Saturday before trial Everett requested Curry to supply him with the phone number of Griffin's mother to which Curry replied that he could not locate it and that Everett should have the number as Griffin was his "client."
* Curry had contacted Griffin's mother and was informed that Griffin would be flying in to Newton over the weekend because the Mississippi Bureau of Narcotics had a warrant for Griffin.
* A second subpoena for Griffin had been issued on August 3 for his appearance at the witness call on August 6 for which Griffin did not present himself.
* No additional subpoena was issued for Griffin when he failed to show on August 6.
* After testimony on the morning of trial, Curry brought the return on the process to the circuit court.

¶ 4. After the testimony of Curry and French, the circuit court denied Buckley's motion for a continuance. The judge stated that he believed the testimony of Griffin was cumulative, neither vital nor necessary. A review of Griffin's testimony at Buckley's previous trial, which ended in a mistrial due to jury deadlock, reveals that Griffin's testimony is indeed cumulative to the testimony of defense witnesses Chevette and Shannon Lindsey. Griffin's previous testimony simply stated that Griffin picked Buckley up around 4:00 the afternoon of the alleged homicide; that Griffin informed Buckley that the police were looking for him and if Buckley killed Michael Smith then he should turn himself in; that Griffin gave Buckley a ride to his grandparent's house, arriving between 4:40 and 5:00; and that Griffin had no knowledge of what happened before 4:00 the afternoon Smith was murdered.[1]

¶ 5. The judge, however, went further, explaining that Buckley's motion did not meet the standards for granting a continuance due to an absent witness as set out in Miss.Code Ann. § 99-15-29 (2000), which states in pertinent part:

On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance *1062 is not sought for delay only, but that justice may be done. The court may grant or deny a continuance, in its discretion.... A denial of the continuance shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom.

The judge specified that Buckley's motion for a continuance did not set forth the necessary allegations of diligence. Indeed, the only action Everett or Buckley took was to ask Curry if the Newton Police Department had served process on Griffin, which Everett was repeatedly assured had been done and in fact was done on June 30, 1999.

¶ 6. Furthermore, the judge noted that the motion did not detail the substance of the testimony of the absent witness or allege that the witness could be produced at a succeeding term of court. The judge also commented that it was unknown whether the witness would ever be available as he was outside the state and faced criminal charges if he returned. Buckley's motion was subsequently denied.

¶ 7. After the denial of the written motion, Everett made a motion ore tenus for a continuance, stating the same grounds and adding those statutory requirements left out of his written motion. The judge denied this motion as an attempt to cure the deficiencies of his previous motion and skirt the court's ruling. The judge, however, declared Griffin to be unavailable and granted Buckley the opportunity to develop Griffin's prior trial testimony and have it read into the record. The trial lasted only a day, and Griffin's prior testimony was not read into the record. The prosecution offered to stipulate that Griffin picked Buckley up at 4:00 and dropped Buckley off at his grandparents' house between 4:40 and 5:00. However, the stipulation was not agreed upon and was not entered in the record.

¶ 8.

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Cite This Page — Counsel Stack

Bluebook (online)
772 So. 2d 1059, 2000 WL 1835808, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckley-v-state-miss-2000.