Carrier v. State

815 So. 2d 1222, 2001 Miss. App. LEXIS 476, 2001 WL 1468916
CourtCourt of Appeals of Mississippi
DecidedNovember 20, 2001
DocketNo. 1999-KA-01953-COA
StatusPublished
Cited by3 cases

This text of 815 So. 2d 1222 (Carrier v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carrier v. State, 815 So. 2d 1222, 2001 Miss. App. LEXIS 476, 2001 WL 1468916 (Mich. Ct. App. 2001).

Opinion

THOMAS, J., for the Court:

IT 1. Robert J. Carrier was found guilty of armed robbery of a convenience store and sentenced to forty-seven years without parole. Aggrieved, Carrier asserts the following issues:

I. THE LOWER COURT ERRED IN DENYING THE MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL.
II. THE LOWER COURT ERRED IN DENYING CARRIER’S REQUESTED JURY INSTRUCTION D-4.
III. THE LOWER COURT ERRED IN DENYING CARRIER’S MOTION FOR A MISTRIAL MADE AFTER THE LOWER COURT MADE DISPARAGING REMARKS AGAINST THE CHARACTER OF CARRIER’S ATTORNEY.
IV. THE LOWER COURT ERRED IN EXCLUDING THE TESTIMONY OF THE PROPOSED WITNESS LOUIE LUZENIA.

Finding no error, we affirm.

FACTS

¶ 2. In September of 1996, Carrier was indicted in the Pike County Circuit Court for armed robbery, which occurred on April 22, 1996. The indictment was amended so as to charge Carrier as a habitual offender pursuant to Miss. Code Ann. § 99-19-81 (Rev.2000).

¶ 3. On October 7, 1996, Carrier escaped from jail and traveled to California. The State of Mississippi immediately began taking the appropriate steps to locate him. In July of 1997, the State learned that Carrier had been arrested in California and was advised by California authorities that Carrier would be released from custody in that State and made available for return to the custody of Mississippi on May 7,1999.

¶ 4. Extradition proceedings were initiated, and the Mississippi Governor’s request for interstate rendition was executed on August 28, 1998. Carrier was returned [1224]*1224to the custody of Mississippi on May 12, 1999. An omnibus hearing was conducted on May 14,1999, and trial was set for June 28, 1999. On July 1, 1999, an order of continuance was granted on the State’s motion, alleging that there was a conflict between the two prosecutors in the case, and trial was rescheduled for September 27,1999.

¶ 5. A pre-trial hearing on motions, including the motion to dismiss for want of a speedy trial, was conducted on August 20, 1999, and trial began on September 27, 1999. On September 28, 1999, a jury returned a verdict of guilty but was unable to agree on the sentence. On October 1, 1999, following preparation and consideration of a pre-sentencing report, the lower court determined that Carrier was a habitual offender and sentenced him to a term of forty-seven years imprisonment without parole as well as a fine and court costs.

ANALYSIS

I. DID THE LOWER COURT ERR IN DENYING THE MOTION TO DISMISS FOR LACK OF SPEEDY TRIAL?

¶ 6. Carrier asserts that he was deprived of his constitutional and statutory rights to a speedy trial because the State of Mississippi delayed the trial for 1,116 days. Carrier admits that not every day of delay was attributable to the State, however, the State was attributable for more than the 270 day statutory and constitutional limits.

¶ 7. Under the test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), four factors are considered in determining if the defendant’s right to a speedy trial has been denied: (1) length of delay, (2) reason for the delay, (3)the defendant’s assertion of his right to a speedy trial, and (4) prejudice resulting to the defendant. Our supreme court, in its interpretation of Barker, has held “[t]he weighing of the Barker factors is not a mechanistic weighing. We must look at the totality of the circumstances.” Fleming v. State, 790 So.2d 888 (Miss.App.2001) (citing Herring v. State, 691 So.2d 948, 955 (Miss.1997)).

¶ 8. The United States Supreme Court continued to explain in Barker that:

Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant’s assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.

Barker, 407 U.S. at 531-2, 92 S.Ct. 2182. The Supreme Court continued to explain that:

Prejudice ... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.

Id. at 532, 92 S.Ct. 2182.

¶ 9. “The weight given each necessarily turns on the peculiar facts and circumstances of each case, the quality of evidence available on each factor and, in [1225]*1225the absence of evidence, identification of the party with the risk of non-persuasion. No one factor is dispositive.” Jaco v. State, 574 So.2d 625, 630 (Miss.1990). Further, the length of delay factor, “alone, is insufficient for reversal, but requires a close examination of, the remaining factors.” Handley v. State, 574 So.2d 671, 676 (Miss.1990).

¶ 10. It is quite evident from the record that Carrier did not desire a speedy trial and, in effect, rejected his right to a speedy trial when he escaped from jail and fled out of the jurisdiction. We are confident that had Carrier remained in prison awaiting trial, he would have received a speedy trial. However, he made the decision to flee and become a fugitive. This factor, the reason for delay, which is entirely of Carrier’s doing, outweighs the factor of length of the delay. This assignment of error is completely lacking in merit.

II. DID THE LOWER COURT ERR IN DENYING CARRIER’S REQUESTED JURY INSTRUCTION D-4?

¶ 11. Carrier asserts that because this case was one based upon circumstantial evidence, he was entitled to a “Two-Theory” instruction. Givens v. State, 618 So.2d 1313, 1318 (Miss.1993); Henderson v. State, 453 So.2d 708, 710 (Miss.1984).

¶ 12. While there was a significant amount of circumstantial evidence indicating Carrier’s guilt, due to the fact that there was an eyewitness to the armed robbery, this was not a case built upon “purely circumstantial” evidence. Therefore, the “Two-Theory” instruction, which is to be given to the jury when the evidence presented is “purely circumstantial,” was properly rejected by the lower court.

III. DID THE LOWER COURT ERR IN DENYING CARRIER’S MOTION FOR A MISTRIAL MADE AFTER THE LOWER COURT MADE DISPARAGING REMARKS AGAINST THE CHARACTER OF CARRIER’S ATTORNEY?

¶ 13. The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case. URCCC 5.15.

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