Jamison v. State

741 So. 2d 359, 1999 Miss. App. LEXIS 288, 1999 WL 309102
CourtCourt of Appeals of Mississippi
DecidedMay 18, 1999
DocketNo. 98-KA-00683-COA
StatusPublished
Cited by2 cases

This text of 741 So. 2d 359 (Jamison 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
Jamison v. State, 741 So. 2d 359, 1999 Miss. App. LEXIS 288, 1999 WL 309102 (Mich. Ct. App. 1999).

Opinion

DIAZ, J.,

for the Court:

¶ 1. Michael Jamison appeals the decision of the Attala County Circuit Court convicting him of the crime of sale of a Schedule II controlled substance, cocaine, and as a habitual offender. Jamison’s attorney raises the following issues in this appeal: (1) whether the trial court erred in [361]*361forcing him to choose between his constitutional right to confront a witness against him and his constitutional and statutory-rights to a speedy trial and (2) whether the trial court erred in admitting evidence regarding drug enforcement operations not involving him. Jamison filed a separate, hand-written brief raising the claim of mistaken identity. Nevertheless, we find no error and accordingly affirm the trial court.

FACTS

¶ 2. On March 11, 1998, Michael Jamison a/k/a “Hop Sing” a/k/a Michael Hughes was found guilty by a jury hearing the case in the Attala County Circuit Court. Prior to the commencement of this trial, Jamison was told that the case would be set for trial on March 9, 1998. Upon this case being called on for trial on March 9, 1998, the State moved for a continuance due to the absence of a witness. David White, an investigator with the Kosciusko Police Department was called into active duty with the United State Military for a period of 120 days. The court granted the State’s motion for a continuance despite Jamison’s assertion of his right to a speedy trial. Thereafter, Jamison waived his objection to Officer White’s testimony about the chain of custody of the cocaine even though his attorney advised him otherwise. The case proceeded to trial.

¶ 3. Jamison’s primary defense was one of mistaken identity. He claimed that his name was Michael Hughes rather than Michael Jamison. Outside the presence of the jury, Jamison, who claimed to be Michael Hughes admitted that he was also known as both Michael Jamison and Hop-Sing. The trial court took judicial notice of the fact that Jamison had been tried previously as Michael Jamison and had answered to that name in other court proceedings.

¶ 4. Sergeant Phillip Franks of the Kosciusko Police Department stated the reasons why Jamison was not arrested after the alleged cocaine purchase on July 13, 1996. Sergeant Franks explained that the police were involved in a continuing investigation with the same informants as used in Jamison’s case, and therefore, they did not make any arrests until they completed their operations in that area of Kosciusko.

¶ 5. Jamison and his attorney disagreed over evidentiary issues relating to his defense. Notably, it was made clear that Jamison’s primary defense was a “wrong name defense,” and that he was not Michael Jamison' but rather Michael Hughes. Jamison admitted to having been called Michael Jamison in the past and to having been tried for robbery in the past as Michael Jamison. Additionally, Jamison wanted to use race as a defense to attack the character of State witnesses. However, the trial court found these questions irrelevant. Neither Jamison nor his attorney contested the prior felonies in the name of Michael Jamison as being incorrect statements of identity.

¶ 6. Neither Jamison nor his attorney raised any questions about the collection, storage, transportation, or identification of the cocaine which Jamison allegedly sold. An undercover agent identified Jamison, whom he had known for nearly five months prior to the sale, as the person from whom he purchased the cocaine. The undercover agent also identified Jami-son’s image on a video-tape of the sale made on July 13, 1996. Additional evidence was presented that the cocaine sale at the car wash was less than 300 feet from the Wesley Methodist Church.

¶ 7. After a trial on the merits, Jamison was found guilty by the jury of sale of a Schedule II substance, cocaine, as a habitual offender. The trial court sentenced Jamison to serve sixty years in the custody of the Mississippi Department of Corrections with no possibility of parole. Feeling aggrieved, Jamison perfects this appeal.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN FORCING JAMISON TO [362]*362CHOOSE BETWEEN HIS CONSTITUTIONAL RIGHT TO CONFRONT A WITNESS AGAINST HIM AND HIS CONSTITUTIONAL AND STATUTORY RIGHTS TO A SPEEDY TRIAL

A. Constitutional Right to a Speedy Trial

¶ 8. Jamison argues that he was denied his constitutional right to a speedy trial. The important dates are as follows: Jamison was arrested on November 20, 1996; he was initially indicted and arraigned as Michael Jamison in February 1997 but that indictment was dismissed without prejudice; he was reindicted and arraigned in August 1997 as Michael Jamison a/k/a Michael Hughes a/k/a Hop-Sing; and he was tried and convicted on March 11, 1998.

¶ 9. The constitutional right to a speedy trial, which exists separate from the statutory right, “attaches at the time of the accused’s arrest.... ” Ross v. State, 605 So.2d 17, 21 (Miss.1992) (citation omitted). Once this right has attached this Court will follow the test laid out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Barker test consists of four factors: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) whether the defendant has been prejudiced by the delay. Id. at 533, 92 S.Ct. 2182.

¶ 10. The time between Jamison’s arrest and trial was 474 days. “[A]ny delay of eight (8) months or longer is presumptively prejudicial.” Smith v. State, 550 So.2d 406, 408 (Miss.1989) (citation omitted). This factor standing alone is insufficient for reversal, but requires a close examination of the remaining factors. Handley v. State, 574 So.2d 671, 676 (Miss.1990).

¶ 11. “The [Sjtate bears the risk of non-persuasion regarding the reasons for delay and must show whether that the defendant caused the delay or that good cause existed for the delay.” Fleming v. State, 604 So.2d 280, 299 (Miss.1992) (citations omitted). Jamison’s first indictment was dismissed without prejudice because it did not include his aliases. He was presented to the next grand jury in August 1997 which was a routine procedure. His case was then set for trial. This delay was in no way a deliberate attempt to harm the defense and therefore, weighs less heavily against the State. State v. Magnusen, 646 So.2d 1275, 1281 (Miss.1994).

¶ 12. Prior to the trial, the State requested a continuance because a material witness was out of state on military duty and could not be present. At this point, the trial court gave Jamison the option of continuing to trial if he chose to waive his chain-of-custody objection. Although his attorney objected, the record indicates that Jamison voluntarily chose to waive his objection to the testimony of this witness in order to proceed to trial on March 11, 1998. Therefore, this factor weighs in favor of the State.

¶ 13. Jamison did not assert his right to a speedy trial until the State requested this continuance on March 9, 1998. Under these circumstances, the assertion of right weighs, at most, only slightly in Jamison’s favor. McGhee v. State, 657 So.2d 799, 803-04 (Miss.1995).

¶ 14. Jamison failed to state any prejudice to him or to his defense in this case.

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741 So. 2d 359, 1999 Miss. App. LEXIS 288, 1999 WL 309102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jamison-v-state-missctapp-1999.