Milton Flora, Jr. v. State of Mississippi

• Court: Mississippi Supreme Court
• Decided: December 4, 2003
• Docket: 2004-KA-00634-SCT
• Status: Published

Opinion

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2004-KA-00634-SCT

MILTON FLORA, JR. a/k/a MILTON HAYES

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 12/4/2003 TRIAL JUDGE: HON. W. SWAN YERGER COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: VIRGINIA LYNN WATKINS THOMAS M. FORTNER ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: FAYE PERTERSON NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 01/19/2006 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC.

COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1. This is an appeal by Milton Flora, Jr., from the Hinds County Circuit Court where he

was convicted of murder under the provisions of Miss. Code Ann. § 97-3-19 and sentenced

to life in the custody of the Mississippi Department of Corrections.

FACTS

¶2. Around midnight on September 10, 2001, Flora and his cousin, Roger Johnson, went

to the apartment of Flora’s former girlfriend, Subrenda Levy. There was contradictory evidence as to whether Flora knocked on the door or whether the door was kicked in by

either Flora or Johnson, and as to which one was actually carrying a gun. Once the door was

opened, Flora and Johnson were met by Ray Spann and an altercation followed between

Flora and Spann in which shots were fired. Following the confrontation, Spann left the

apartment and was soon found dead in a nearby vacant lot. An autopsy revealed the cause

of Spann’s death was a gunshot wound from a .32 caliber pistol.

¶3. Flora and Johnson left Levy’s apartment and were later found by police in the

apartment of Johnson’s mother, Sebrina Johnson. Upon arriving at Sebrina Johnson’s

apartment, the police awakened Flora, who was asleep on a sofa, wearing blood stained

clothing. When told to stand up, he did so, and the police recovered two weapons from

where he had been sleeping: the .32 caliber pistol later identified as the murder weapon, and

a .380 caliber pistol. At that point, the officers asked Flora his name without first informing

him of his Miranda rights. He gave the officers a false name and was subsequently arrested.

A gunshot residue test revealed that Flora had residue on both of his hands and DNA test

results showed that the blood on his clothing was that of Spann.

¶4. Flora testified in his own defense. Aggrieved by his conviction and sentence, he now

appeals, raising nine issues: 1) denial of motions for mistrial; 2) denial of requests for

handwriting exemplars and for authentication of exculpatory documents by the Mississippi

crime lab; 3) exclusion of the handwritten statement of a co-defendant; 4) overruling of

repeated objections to prosecutorial misconduct; 5) denial of introduction of a weapon other

2 than the murder weapon; 6) speedy trial violations; 7) denial of names of arresting officers

and criminal histories of the victim and witnesses; 8) denial of questions regarding a blood

test of the victim; and 9) denial of motions for directed verdict, peremptory instruction, and

J.N.O.V. Finding no reversible error, we affirm.

ANALYSIS

I. DENIAL OF MOTION FOR MISTRIAL.

¶5. The standard of review for the denial of a mistrial is abuse of discretion. Spann v.

State, 771 So. 2d 883, 889 (Miss. 2000). This Court has held that a trial judge is best suited

to determine the prejudicial effect of an objectionable remark and is given considerable

discretion in deciding whether the remark is so prejudicial as to merit a mistrial. Roundtree

v. State, 568 So. 2d 1173, 1177 (Miss. 1990). Unless “serious and irreparable damage”

results from an improper comment, the judge should “admonish the jury then and there to

disregard the improper comment.” Johnson v. State, 477 So. 2d 196, 210 (Miss. 1985).

While deference is given to the decisions of trial judges, each case must stand on its own

facts in order to determine whether a particular decision constitutes reversible error.

Henderson v. State, 403 So. 2d 139, 140 (Miss. 1981).

¶6. During the direct examination of Officer Dexter McLaurin, the State questioned him

about a conversation he had with Subrenda Levy, who was an eyewitness to the events. Flora

objected to the question, “did you ask her to identify the shooter?” The trial court initially

overruled that objection, and, when the State re-asked the question, Officer McLaurin stated:

“Yes, I did. Once she identified Milton Flora as one of the suspects, then I asked her then

3 was he the shooter, and she had told me yes . . . . ” Flora again objected to this statement

on the basis of hearsay, and moved for a mistrial. The trial court sustained the objection;

instructed the jury to disregard the statement; and denied the motion for a mistrial.

¶7. Flora correctly argues that the statement in question was hearsay, but the issue to be

addressed here is whether the trial court should have granted Flora’s motion for a mistrial

based on the jury hearing the improper comment. Flora maintains this Court’s holding in

Snelson v. State, 704 So. 2d 452 (Miss. 1997), should apply in this case. In Snelson,

prosecutors elicited testimony in violation of a motion in limine, to show that the defendant

had told the testifying witness the victim was the “third or fourth” person he had killed. The

defense objected and moved for a mistrial; the trial court sustained the objection, denied the

motion for mistrial, and instructed the jury to disregard the statement. Snelson was convicted

and sentenced to death. On appeal, this Court reversed, finding the trial court’s admonition

to the jury was insufficient, and such improper testimony could “inflame or improperly

influence the jury” and the trial court erred in not declaring a mistrial. Id. at 458.

¶8. However, Snelson is clearly distinguishable because it involved improper evidence

which informed the jury that the defendant may have committed as many as three other

murders - violent crimes similar to the one for which he was on trial. This testimony in

Snelson was no doubt highly prejudicial to his case.

¶9. While the statement made by Officer McLaurin was improper, it certainly did not rise

to the level of resulting prejudice as did the statement made in Snelson. Quite simply, the

4 comparison of the Snelson statement to the statement in question in the present case is

inapposite. The Snelson statement was highly prejudicial, and, in reality, could not be

disregarded by a reasonable jury.

¶10. When a trial judge sustains an objection to testimony and directs the jury to disregard

the statement, “it is presumed, unless otherwise shown, that the jury followed the directions

of the trial judge to disregard such comment or testimony.” Holifield v. State, 275 So. 2d

851, 856 (Miss. 1973) (emphasis added). Flora failed to show the improper testimony was

not disregarded or could not have been disregarded by the jury. The statement of Subrenda

Levy to Officer McLaurin was far from being the only piece of evidence linking Flora to the

murder scene, the victim and the murder weapon. After McLaurin’s testimony, the statement

was not mentioned again. Proper action was taken in sustaining Flora’s objection and

instructing the jury to disregard the statement. We must presume the jury followed the

directions of the trial judge. The denial of Flora’s motion for mistrial was not an abuse of

discretion.

II. DENIAL OF REQUESTS FOR HANDWRITING EXEMPLARS AND FOR AUTHENTICATION OF DOCUMENTS BY THE MISSISSIPPI CRIME LAB.

¶11. The standard of review of the trial court’s denial of expert assistance is whether an

abuse of discretion occurred such that the defendant was denied due process whereby the trial

was fundamentally unfair. Richardson v. State, 767 So. 2d 195, 197 (Miss. 2000) (citing

Coleman v. State, 697 So.2d 777, 780 (Miss. 1997)). “The State does not have a

constitutional obligation to provide indigent defendants with the costs of expert assistance

5 upon every demand.” Townsend v. State, 847 So. 2d 825, 829 (Miss. 2003) (citing Johnson

v. State, 476 So. 2d 1195, 1202 (Miss. 1985)). “Mississippi case law states expert assistance

should be granted upon showing of substantial need.” King v. State, 784 So. 2d 884, 888,

(Miss. 2001) (citing Holland v. State, 705 So. 2d 307, 333 (Miss. 1997)).

¶12. Flora requested the trial court to order Roger Johnson (Flora’s cousin and co-

defendant) and Derrick Jones to submit to handwriting exemplars, in order to authenticate

two statements allegedly written by Johnson and Jones. These statements suggested

Johnson was the person who actually shot Ray Spann, and thus could be exculpatory

evidence for Flora. The State opposed the motion, arguing that the statements were neither

signed nor dated, that forcing a co-defendant to submit to a handwriting exemplar would

violate his Fifth Amendment right against self-incrimination, and that they were blatant

hearsay. The trial court denied the motion, but Flora renewed it at a subsequent hearing.

The trial court again denied Flora’s motion and allowed the statements to be marked for

identification purposes only.

¶13. Rule 901 of the Mississippi Rules of Evidence governs the authentication of

documents in Mississippi trial courts. Flora sought to have the exemplars and the statements

in question authenticated by an expert witness under Rule 901(b)(3), which provides that a

document may be authenticated by “comparison by the trier of fact or by expert witness with

specimens which have been authenticated.” M.R.E. 901(b)(3). While this is an acceptable

form of authentication, it is certainly not the only form.

6 ¶14. A handwritten document may be authenticated by someone who is familiar with the

handwriting of the purported writer of the document. M.R.E. 901(b)(2). This rule of

evidence is well-established in Mississippi case law. “A witness who in the course of official

business or in any other way has acquired by experience a knowledge of a person’s

handwriting, may state his opinion as to whether a particular writing was made by such

person.” Wiggins v. State, 80 So. 2d 17, 19 (Miss. 1955). In Wiggins, a criminal defendant

was convicted of capital murder due, in part, to a handwritten letter in which he confessed

to the murder. Id. On appeal, this Court upheld the admission of that letter which was

authenticated by a woman who was familiar with the defendant’s handwriting. Id.

¶15. In Schmerber v. California 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966),

the U.S. Supreme Court discussed the reach of the Fifth Amendment right against self-

incrimination. Schmerber dealt with the withdrawal of blood from a DUI suspect, and the

Supreme Court held that such withdrawal did not violate the suspect’s Fifth Amendment

privilege. Id. at 772. It further held that the Fifth Amendment privilege reaches to

compulsion of an “accused’s communications” and not to “compulsion which makes a

suspect or accused the source of real or physical evidence.” Id. at 763-64. This holding was

specifically extended to handwriting exemplars in Gilbert v. California, 388 U.S. 263, 87 S.

Ct. 1951, 18 L. Ed. 2d 1178 (1967). We recognized the Gilbert holding in Burns v. State,

729 So. 2d 203, 216 (Miss. 1998), where we stated that “a mere handwriting exemplar, in

7 contrast to the content of what is written, like the voice or body itself, is an identifying

characteristic outside [the] protection [of the Fifth Amendment].”

¶16. The handwriting exemplars requested by Flora would have been used to authenticate

the statements allegedly written by Johnson and Jones, not as testimonial evidence at trial.

Therefore, in light of the holdings of the U.S. Supreme Court and this Court, there would

have been no violation of the United States and Mississippi Constitutions in requiring Roger

Johnson and Derrick Jones to submit handwriting exemplars in order to authenticate their

alleged statements. However, if the trial court had ordered the handwriting exemplars as

requested by Flora (assuming that Johnson and Jones would have cooperated), a handwriting

expert would have been required to compare the exemplars to the alleged written statements

in order to authenticate them. Flora requested that an expert be appointed by the trial court

at the expense of the State because his client “[was] indigent and [could] not afford to obtain

the requested assistance.”

¶17. There is nothing in the record that indicates Flora ever attempted to have these

statements authenticated by locating someone familiar with the handwriting of Johnson or

Jones. There is no indication there was a good faith effort to locate anyone who might have

been able to authenticate these statements. Instead, Flora immediately asked the State of

Mississippi to provide the funds for him to hire an expert who may or may not have found

that these statements of mysterious origin 1 were actually what Flora purported them to be.

1 The statements were unsigned, not dated and had no indicia of reliability whatsoever. When questioned about when he obtained these statements, which were not

8 Because there was never an attempt by Flora to authenticate these statements in any other

way, we cannot properly hold there was a “substantial need” for expert assistance under the

standard from King and Holland.

¶18. Though a court-ordered handwriting exemplar would not have violated the Fifth

Amendment privilege of either Jones or Johnson, it is unlikely they would have cooperated

with the trial court’s order. Even if they had cooperated, a handwriting expert still would

have been required to authenticate the statements. There was no error in denying Flora’s

motion to compel handwriting exemplars from Johnson and Jones, and to appoint the

Mississippi crime lab to authenticate the documents. Further, it was not an abuse of

discretion for the trial judge to refuse to provide funds for experts to aid in Flora’s defense.

III. EXCLUSION OF THE HANDWRITTEN STATEMENT OF ROGER JOHNSON.

¶19. This assignment of error is not properly before the Court. There is no indication in

the record that Flora ever attempted to put into evidence the statement allegedly written by

Roger Johnson. However, even if he had attempted to put the statement into evidence, its

exclusion by the trial court would not have been error, as explained in Issue II, supra.

¶20. In support of his argument, Flora relies on Green v. Georgia, 442 U.S. 95, 99 S. Ct.

2150, 60 L. Ed. 2d 738 (1979), in which the United States Supreme Court found a violation

of the Due Process clause of the Fourteenth Amendment when a Georgia trial court excluded

revealed in reciprocal discovery, counsel for Flora replied, “I don’t know,” and “It doesn’t matter . . . .”

9 exculpatory evidence based upon a hearsay objection at the sentencing phase of a capital

murder case. Flora’s reliance is misplaced, however, because Green differs in numerous

significant ways.

¶21. The exculpatory evidence in Green was testimony from a witness with personal

knowledge of what was told to him by Green’s co-defendant. Further the exculpatory

evidence was being presented at the sentencing phase, not the trial phase. The co-defendant

had claimed he killed the victim while Green was out running an errand. The co-defendant

had already been convicted and sentenced to death, and the testimony of the same witness

was allowed at the co-defendant’s trial. See also Moore v. State, 243 S.E.2d 1, 4 (Ga. 1978).

¶22. In contrast, this is a non-capital case, and the statement which Flora sought to have

admitted had no indicia of trustworthiness. Flora argues: “[h]ad the trial court taken

exemplars as requested and had the documents been authenticated, it would [have been] up

to the jury to decide the weight and credibility of the evidence.” However, the fact remains

that the statement was not authenticated and thus, could not be admitted into evidence.

¶23. Because Flora never attempted to put the statement into evidence, this issue is not

properly before this Court, and thus is procedurally barred. However, if Flora had attempted

to put the statement in at trial, it would have been proper to find it inadmissible. This

assignment of error is without merit.

IV. OVERRULING OF REPEATED DEFENSE OBJECTIONS TO PROSECUTORIAL MISCONDUCT.

¶24. A defendant is entitled to a fair and impartial trial before a jury not exposed to abusive arguments appealing to their passions and prejudices. Although ours

10 is an adversary system, prosecuting attorneys must exercise caution and discretion in making extreme statements in their arguments to the jury, if for no other reason than to save themselves, the defendant, the court and the jury the additional time, expense and effort involved in a retrial.

Dunaway v. State, 551 So. 2d 162, 163 (Miss. 1989) (citing Keyes v. State, 312 So. 2d 7, 10

(Miss. 1988)).

¶25. The test to determine if an improper argument by a prosecutor requires reversal is

whether the natural and probable effect of the prosecuting attorney’s improper argument

created unjust prejudice against the accused resulting in a decision influenced by prejudice.

Johnson v. State, 596 So. 2d 865, 869 (Miss. 1992) (quoting Dunaway, 551 So. 2d at 163).

Flora alleges several instances of prosecutorial misconduct, and we address each of them in

turn.

A. Prosecutors questioned witnesses and commented upon matters contrary to the rulings of the trial court

¶26. Flora argues generally that misconduct by the prosecution prejudiced the jury against

him, and more specifically that improper comments were made by the prosecution during the

examination of witnesses and were pervasive throughout the trial. One such comment was

made at the beginning of cross-examination of Flora by the State, when the first phrase

spoken by the prosecutor was “[p]oor, poor Milton Flora”. Flora also complains that earlier

in the trial, the prosecutor said, “[l]et’s try again,” in response to an objection as to leading,

which was sustained by the court during the direct examination of a witness. In both of these

instances, timely objections were made by defense counsel, sustained by the trial court, and

the jury was instructed to disregard the comments. There were other comments made by the

11 prosecution and pointed out by Flora which were arguably improper, but objections to them

were likewise sustained by the trial court. It cannot be said that individually or cumulatively

these comments prejudiced Flora to the point of depriving him of a fair trial. “A criminal

defendant is not entitled to a perfect trial, only a fair trial.” McGilberry v. State, 741 So. 2d

894, 924 (Miss. 1999) (citing Sand v. State, 467 So. 2d 907, 911 (Miss. 1985)).

¶27. Flora also points to instances where the prosecution asked improper questions of

witnesses. First, during the cross-examination of Flora, the prosecutor asked him about the

results of the gun powder residue test. Defense counsel objected before Flora could answer

and the trial court sustained the objection. Later in the cross-examination, the prosecutor

asked Flora if he had gun residue on him, and he said he didn’t know, and again an objection

by defense was sustained.

¶28. Flora cites Henderson v. State, 403 So. 2d 139 (Miss. 1981), in support of his

argument that this duplicate questioning was reversible error. The prosecutor in Henderson

was cross examining a defense witness and inquired about past convictions of the witness.

An objection and motion for mistrial were made, and the trial court sustained the objection

and denied the motion for mistrial. During cross-examination of the very next witness, the

prosecutor asked essentially the same question. Again the trial court sustained a defense

objection and denied a motion for mistrial. This Court said that the compounding of the

improper conduct by the prosecutor, who had just heard the court’s admonishment to the jury

12 on the same subject, created too great a prejudice, and the case was reversed and remanded.

Id. at 140-41.

¶29. Flora also complains that during the direct examination of another witness, the

defense objected to an improper question, and the prosecutor asked the same question after

the objection was sustained. In this instance, however, the record reflects that the prosecutor

was simply trying to rephrase the question to make it acceptable to the trial court. The

misconduct found in Henderson is clearly distinguishable from the actions of the prosecutor

in the present case.

¶30. The trial judge took proper action to ensure Flora received a fair trial. There is no

proof any of the comments made by the prosecution were improper enough to meet the

Henderson standard, nor is there any proof that the comments resulted in the jury being

prejudiced against Flora.

B. Denial of motion for mistrial for violation of a suppression order

¶31. During opening statements, the prosecutor told the jury that when the police arrived

at Sebrina Johnson’s apartment, they awakened Flora, asked him his name, and he gave them

false names. The defense objected and moved for a mistrial, claiming this was a violation

of a pretrial order. Following a bench conference, the court overruled the objection and

denied the motion for mistrial.

¶32. In a pretrial hearing there had been a lengthy discussion about statements that were

made by Flora at the time of his arrest. Flora argued that because he was not given a

13 Miranda warning before the police asked him his name, that he gave false names was not

admissible at trial. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694

(1966). Flora now alleges the court granted the pretrial motion to suppress those statements,

and thus the prosecution was in violation of the pretrial order. However, the court

specifically, and correctly, ruled that despite his not being given Miranda warnings prior to

being asked his name, that Flora gave false names to the police was admissible evidence at

trial. In Lewis v. State, 445 So. 2d 1387, 1388 (Miss. 1984), Lewis argued the testimony

from police officers, that he had given a false name at the time of his arrest, was inadmissible

because he had not been given a Miranda warning before being asked his name. This Court

held that “Miranda does not preclude an arresting officer from asking the detained individual

his name. . . .” Id. Thus, the trial judge correctly denied the Flora’s motion to suppress the

false names he gave the police.

¶33. Flora next asserts the trial court erred by allowing the prosecution to impeach him on

cross-examination with a statement he made prior to being given a Miranda warning. Before

Flora was arrested he was asked by the police about the blood on his clothing, and he told

them it was from a nosebleed. This statement was ruled inadmissible as substantive evidence

by the trial court at a pretrial hearing, and the prosecution did not mention it during the

State’s case-in-chief. However, outside the presence of the jury, the prosecution argued they

had the right to use the nosebleed statement on cross-examination, to impeach some of

14 Flora’s testimony from direct examination, and the trial court agreed to allow the prosecution

its use for that limited purpose.

¶34. In Harris v. New York, 401 U.S. 222, 225, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), the

United States Supreme Court said that a criminal defendant’s right to testify in his or her own

defense “cannot be construed to include the right to commit perjury.” The Supreme Court

further held that “[h]ad inconsistent statements been made by the accused to some third

person, it could hardly be contended that the conflict could not be laid before the jury by way

of cross-examination and impeachment.” Id. at 226. This Court recognized the holding in

Harris, stating: “[t]he United States Supreme Court has held that the prosecution may use

the statements of a defendant, inadmissible in the state’s case-in-chief because of a defective

Miranda warning or procedure, to impeach a defendant’s testimony.” Booker v. State, 326

So. 2d 791, 792 (Miss. 1976).

¶35. During the State’s case-in-chief, investigator Charles Taylor testified that Flora had

blood on his clothes when he was arrested, and the clothes were admitted as physical

evidence. In his direct testimony, Flora never specifically identified the origin of the blood

on his clothes but did talk extensively about the physical altercation with Spann. The trial

judge reasoned that “it was implicit in the way [Flora] described the blood appearing on him

following the tussle” that Flora said the blood came from the fight. This implied statement

was inconsistent with what Flora told the police before he was arrested, and the trial judge

properly allowed the prosecution to use it to impeach Flora’s direct testimony.

15 ¶36. Under the holdings in Harris and Booker, it was not an abuse of discretion for the

trial judge to allow impeachment of Flora with his statement to police, even though he had

not been given Miranda warnings prior to making the statement. After this ruling, the

prosecution asked Flora if he remembered when the police asked him where the blood on his

clothes came from and what he told the police. Flora admitted telling the police the blood

was from a nosebleed.

C. Denial of motion for mistrial due to improper and prejudicial cross- examination

¶37. Flora next argues it was error for the trial court to overrule his motion for mistrial after

the prosecution asked him on cross-examination if he had screamed “where’s the money,

where’s the money?” when he entered Subrenda Levy’s apartment on the night of the murder.

The defense objected, claiming the State had no proof that Flora had asked this question.

The prosecutor responded, saying “there are statements that have been taken by witnesses--”

just before being cut off by another defense objection. The trial judge properly excused the

jury and discussed he matter outside their presence.

¶38. Flora asserts this Court’s holding in Flowers v. State, 773 So. 2d 309 (Miss. 2000),

should apply in this situation. In Flowers, the State questioned a defense witness about the

witness purchasing a pair of shoes worn at the murder scene, and the witness denied buying

the shoes for the defendant. On rebuttal, the State offered no proof of a basis in fact for

asking whether the witness had purchased the shoes for the defendant, and this Court held

that it was plain error for the State to leave “an impression in the minds of the jurors that the

16 prosecutor actually had such facts in hand and that the insinuations through questioning

contained some truth.” Id. Flora’s reliance on Flowers is misplaced, however, because it is

clearly distinguishable. The testimony in Flowers involved key evidence that would help to

place the defendant at the scene of the murders, while Flora’s testimony pertained to a

collateral matter. There was already evidence, including his own direct testimony, that Flora

was at Levy’s apartment when Ray Spann was shot. The question of “where’s the money?”

is not key to the ultimate issue in this case, which is whether Milton Flora was guilty of

murder.

¶39. This Court has held that “[s]pecific instances of conduct under our rules of evidence

may not be proved by extrinsic evidence for impeachment purposes; they may only be

inquired about on cross-examination.” Pinson v. State, 518 So. 2d 1220, 1223 (Miss. 1988);

see also Lewis v. State, 580 So. 2d 1279, 1287 (Miss. 1991). This subject arose in Ball v.

Sloan, 569 So. 2d 1177 (Miss. 1990), when the defendant sought to impeach the credibility

of the plaintiff by asking her if it was true that she had altered a prescription given to her by

a doctor. The plaintiff denied having done so, and in its case in chief, the defense called a

pharmacist who testified that he refused to fill the prescription for the plaintiff. Id. at 1179.

On appeal, this Court held it was error for the trial court to allow, for impeachment purposes,

the extrinsic evidence of the pharmacist’s testimony on the collateral matter of the plaintiff

altering her prescription. Id. (Citing 608(b), M.R.E.). In the present case, however, Levy

had given the police a written statement, of which the prosecution and the defense were both

17 aware, stating that Flora “pointed a gun at me, saying ‘bitch, where is the money’” when he

entered her apartment. The defense saying, in the presence of the jury, that “they have no

proof” when objecting to the questioning on this matter was in bad faith, and the State had

every right to question Flora as to whether he said “where’s the money?” when he entered

Subrenda Levy’s apartment, and Flora had the right to admit or deny. When a lawyer seeks

to impeach a witness in this risky manner, they must accept the answer given by the witness.

¶40. Flora denied the accusation, and that should have been the end of the matter. When

the prosecutor improperly repeated the question several times, the defense objected, and the

trial court properly sustained the objection. The attempted impeachment was proper. As to

the comment by the prosecutor alluding to the existence of witness statements to corroborate

the accusation, the trial judge had wide discretion to determine whether the comment was so

prejudicial as to merit a mistrial. Spann, 771 So.2d at 890. There was no abuse of discretion

in denying Flora’s motion for mistrial based on this issue.

¶41. Flora also argues it was error for the trial court to allow the State to ask questions

alluding to Flora’s having kidnapped and beaten Levy, crimes for which Flora was not on

trial. While this issue may have some merit, the defense never objected to the allegedly

inflammatory and prejudicial questions, and did not move for a mistrial after this line of

questioning.

¶42. If no contemporaneous objection is made at trial, a party must rely on the plain error

rule to raise the assignment of error on appeal. Foster v. State, 639 So. 2d 1263, 1289 (Miss.

18 1994) (citing Gray v. State, 487 So. 2d 1304, 1312 (Miss. 1986)). “The plain error doctrine

requires that there be an error and that the error must have resulted in a manifest miscarriage

of justice.” Williams v. State, 794 So. 2d 18, 187 (Miss. 2001) (citing Gray v. State, 549 So.

2d 1316, 1321 (Miss. 1989)). The plain error rule will only be applied when a defendant’s

substantive or fundamental rights are affected. Grubb v. State, 584 So. 2d 786, 789 (Miss.

1991).

¶43. The questions asked by the prosecutor on cross-examination of Flora were questions

about the events that took place on the night of the murder. Flora was able to answer all of

the questions. It is the jury’s job to weigh the credibility of Flora’s testimony. Turner v.

State, 726 So. 2d 117, 125 (Miss. 1998). The trial court’s ruling was not error.

D. Flora’s objections to prosecutor’s remarks made in closing.

¶44. Flora next argues it was error for the trial court to overrule his objections to improper

and prejudicial comments made by the prosecutor on closing rebuttal. The prosecutor

reminded the jury of all of the physical evidence against Flora and then said “if you acquit

him, you will disregard every piece of physical evidence entered by the State ... and you will

only believe Milton Flora.” The prosecutor added “[t]hat’s the only way you let him go.”

Flora objected, arguing that the jury should not be told that they “let him go.”

¶45. The standard of review that appellate courts must apply to lawyer misconduct during

opening statements or closing arguments is whether the natural and probable effect of the

improper argument is to create unjust prejudice against the accused so as to result in a

decision influenced by the prejudice so created. Sheppard v. State, 777 So. 2d 659, 661

19 (Miss. 2000). Attorneys are allowed a wide latitude in arguing their cases to the jury.

However, prosecutors are not permitted to use tactics which are inflammatory, highly

prejudicial, or reasonably calculated to unduly influence the jury. Id.

¶46. Flora argues that Banks v. State, 725 So. 2d 711 (Miss. 1997), should apply in this

case. In Banks, this Court addressed a similar issue, where the prosecutor in closing

arguments told the jury that if they set Banks free, that he would “walk out of [the]

courthouse” was “the most frightening part.” Id. at 718. This Court found that statement to

be improper, stating it implied a possibility that Banks would commit crimes in the future if

acquitted. Id. However, there were many other errors leading to a reversal in Banks, not the

least of which was that there was virtually no evidence linking Banks to the crime. Id. at

713.

¶47. This Court also addressed improper comments during closing arguments in Dancer

v. State, 721 So. 2d 583, 589 (Miss. 1998), in which the prosecutor had warned jurors that

if they acquitted Dancer, he would walk out of the courtroom and into their neighborhood.

Although this statement was made to arouse fear in the jurors, an impermissible tactic, this

Court held that, due to the overwhelming evidence against Dancer, the improper comment

did not result in a decision made out of prejudice, and therefore, did not constitute reversible

error. Id. at 590.

¶48. The comment in the present case simply informed the jury that they were the ones who

had the power to convict Flora or to acquit him. It in no way implied that Flora would

20 commit any crimes if acquitted. Unlike Banks, and much like Dancer, there was ample

evidence against Flora to conclude the jury’s decision was not improperly influenced by the

prosecutor’s comment.

¶49. Flora also complains of another comment made by the prosecutor during closing

rebuttal. When discussing the jury instructions, the prosecutor said that a verdict of

manslaughter would be a “cop-out” and that this was not a manslaughter case. Flora

objected, stating that the comment is “accusing the court of getting them to compromise or

cop-out.” The trial judge overruled the objection and said, “[w]ell, that’s her language, her

argument. The jury has been instructed on following the jury instructions, and that what the

lawyers say is not facts if it goes outside the record. So overruled. It’s argument.”

¶50. Flora also relies on Sheppard, in which this Court held it was improper for the

prosecutor to tell the jury that “if the jury voted to acquit, he wanted them to call him and

explain their rationale for finding the defense witnesses credible, so he could explain it to the

victim’s family.” Sheppard, 777 So. 2d at 661. We held that “[t]he purpose of the remarks

was to prejudice the defense, as well as to give the jurors the impression that if they did not

convict, the prosecutor was going to subject them to personal ridicule, embarrassment and

questioning.” Id. at 662. In the present case, the prosecutor’s statement that a verdict of

manslaughter would be a “cop-out,” while possibly riding the line between acceptability and

unacceptability, in no way threatened the jury. The added safeguard of the trial court’s

admonition to the jury that they were to follow the instructions and that what the prosecutor

21 said that went outside the record was not fact, but “her language,” was sufficient for us to

hold that, at most, this was harmless error.

E. Allowing presentation in rebuttal of evidence of physical injuries to Levy, an uncharged crime irrelevant to this trial

¶51. “The standard of review of an admission or exclusion of evidence is abuse of

discretion.” Smith v. State, 839 So. 2d 489, 496 (Miss. 2003) (citing Stallworth v. State, 797

So. 2d 905, 908 (Miss. 2001)). In this assignment of error, Flora contends the trial court

erred by admitting into evidence a photograph of Levy, depicting her appearance on the night

of Spann’s murder. The trial court allowed the photograph for the limited purpose of

impeaching Flora’s credibility as to his testimony that Levy got into his car voluntarily that

night and that he did not remember hitting her, especially with a gun.

¶52. Flora argues the holdings of this Court in Flowers v. State, 773 So. 2d 309 (Miss.

2000), Flowers v. State, 842 So. 2d 531 (Miss 2003), and Stringer v. State, 500 So. 2d 928

(Miss. 1986), should apply in this case. Although each of these cases involved multiple

murders, the defendants were being tried separately for each victim. In each one of these

trials, the prosecutors put in evidence of the murders of the other victims for which the

defendants were not then on trial, and this Court held the admission of that evidence

constituted reversible error.

¶53. The present case and those cited by Flora are clearly distinguishable. The evidence

questioned by Flora is much less severe than that found to be improper in the Flowers and

Stringer, in which the prosecution introduced pictures of and testimony about the bodies of

22 the other murder victims. The facts and photographs were particularly gruesome in Stringer,

in which the trial court permitted the prosecutor to show the jury pictures of the second

victim, a woman who was decapitated by a point-blank shotgun blast. The photograph

challenged by Flora is black and white, and the photocopy contained in the record is not

clear. It was admitted for a legitimate purpose, and does not rise to the level of gruesomeness

or repetitiveness which requires denial of admission into evidence. The trial court did not

err in allowing it on rebuttal.

V. DENIAL OF INTRODUCTION INTO EVIDENCE OF THE .380 HANDGUN

¶54. Flora argues the trial court erred by prohibiting him from introducing into evidence

a chrome .380 handgun that was discovered at the scene of Flora’s arrest. Flora claims that

Spann pulled out the chrome .380 handgun when he entered Levy’s apartment, and argues

that the exclusion of the gun deprived him of his right to present his theory of the case.

Flora alleges that the murder weapon, the .32 pistol, was possessed by his cousin, Roger

Johnson, on the night of Spann’s murder.

¶55. As stated supra, this Court applies an abuse of discretion standard to the admission

or exclusion of evidence by a trial court. Smith, 839 So. 2d at 496. Flora argues that he

should have been allowed to put the .380 handgun into evidence because his theory of the

case was that he was in possession of the .380, and Roger Johnson had the .32. However,

Flora’s own testimony was that Spann had the chrome .380 when Flora and Johnson entered

Levy’s apartment, which clearly contradicts Flora’s theory of the case. In addition, Flora

23 apparently wanted to tell the jury that Johnson was in possession of the murder weapon,

leading the jury to believe that Johnson was the shooter. However, when the prosecutor

asked on cross-examination: “Are you blaming your cousin for shooting Ray Spann?” Flora

replied, “No Ma’am.” To say the least, Flora’s “theory” is confusing.

¶56. The trial judge ruled it was never shown that the chrome .380 had any relevance

whatsoever in this case. There was never any evidence presented to the trial court that tied

the .380 handgun to the murder scene. That it was found underneath Flora at the apartment

of Sebrina Johnson does not make it relevant evidence when the murder occurred in another

part of the city.

¶57. Flora finally renews his argument that the State opened the door for the admission of

the .380 handgun. On direct examination of Investigator Taylor, the State asked him, “Why

did you respond to the Lincoln Garden Apartments?” to which Taylor responded “I received

a call from the police communications to respond to the apartments in reference to Precinct

3 officers recovering a car and possibly some handguns.” Flora argued, outside the presence

of the jury, that the use of the plural “handguns” opened the door for the admission of the

.380. The State never asked any questions about multiple handguns found at the scene, and

the trial judge correctly ruled that the reference to the “handguns” by Taylor was “very

obscure and vague” and that “nothing specific” was said about multiple handguns. The trial

judge did not abuse his discretion in denying the admission of the .380 handgun into

evidence.

24 VI. DENIAL OF MOTIONS TO DISMISS FOR VIOLATION OF RIGHT TO A SPEEDY TRIAL

¶58. The standard of review for a speedy trial claim focuses on the fact question of

whether the trial delay arose from good cause. DeLoach v. State, 722 So. 2d 512, 516 (Miss.

1998). If substantial credible evidence exists from which a finding of good cause may fairly

have been made, we will leave the finding undisturbed. Folk v. State, 576 So. 2d 1243, 1247

(Miss. 1991). Defendants in criminal cases are guaranteed the right to a speedy trial by the

sixth and fourteenth amendments to the United States Constitution and Article 3, Section 26

of the Mississippi Constitution of 1890. Watts v. State, 733 So.2d 214, 235 (Miss.1999).

Flora alleges a violation of both his constitutional and statutory right to a speedy trial.

A. The Constitutional Right

¶59. The Sixth Amendment to the United States Constitution provides: “[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial.” U.S. C ONST.

amend. VI. The Sixth Amendment is applicable to the states through the Due Process Clause

of the Fourteenth Amendment. U.S. C ONST. amend. XIV; see Klopfer v. North Carolina,

386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967).

¶60. In 1972, the United States Supreme Court established a balancing test to determine

whether a defendant has been deprived of his Sixth Amendment right to a speedy trial.

Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The four factors

to be considered are: (i) length of the delay, (ii) reason for the delay, (iii) defendant’s

assertion of his right, and (iv) prejudice to the defendant. In regard to these four factors, the

25 Court admonished that they "are related factors and must be considered together with such

other circumstances as may be relevant." Id. at 533.

¶61. This Court has adopted and applied these factors on several occasions. Hersick v.

State, 904 So. 2d 116, 121 (Miss. 2004); State v. Woodall, 801 So. 2d 678, 680-81 (Miss.

2001); Perry v. State, 637 So. 2d 871, 874 (Miss. 1994); Flores v. State, 574 So. 2d 1314,

1321 (Miss. 1990). “No mathematical formula exists according to which the Barker

weighing and balancing process must be performed.” Beavers v. State, 498 So. 2d 788, 790

(Miss. 1986).

1. Length of Delay

¶62. The constitutional right to a speedy trial attaches at the time of arrest, indictment, or

information, when a person has been accused. It is a “triggering mechanism” and unless

there is delay which is presumptively prejudicial, there is no need for further inquiry under

Barker. We recognize a delay of eight months to be presumptively prejudicial. Hersick, 904

So.2d at 121 (citing Smith v. State, 550 So. 2d 406, 408 (Miss. 1989)), Flora was arrested

on September 11, 2001, was indicted on December 11, 2001, and waived arraignment on

February 19, 2002. The trial began on December 1, 2003, far more than eight months later.

Flora’s constitutional right to a speedy trial attached on September 11, 2001, because it was

at this time “actual restraints were imposed by the State against [Flora] through an arrest and

institution of criminal charges.” Price v. State, 898 So. 2d 641, 648 (Miss. 2005). Thus the

delay of more than two years was presumptively prejudicial, and “the burden shifts to the

prosecution to produce evidence justifying the delay and to persuade the trier of fact of the

26 legitimacy of these reasons.” State v. Ferguson, 576 So. 2d 1252, 1254 (Miss. 1991). This

factor weighs in favor of Flora, and we must proceed to consider the other three factors.

2. Reason for Delay

¶63. A total of 810 days elapsed from the date of Flora’s arrest on September 11, 2001, to

December 1, 2003, the date on which the trial began. Several occurrences may justify a delay

in a criminal case, one of these being “well-taken” motions for continuance. In the case at

bar, several motions for continuance were made: some by agreement; some by the State, and

some by Flora. The record is difficult to follow regarding the number of motions for

continuance, who filed the motions, when they were filed, and what period of time each

covered. The trial court’s computerized court docket information shows only that this case

was continued on April 11, 2002; May 22, 2002; August 1, 2002, August 17, 2002, and

November 4, 2003, and states no facts about any of these2 . Also shown within the docket

information are Flora’s motions to dismiss and demands for a speedy trial which are

discussed infra.

¶64. The first hearing on these motions was held by the trial court on January 24, 2003,

and the transcript of that hearing provides the information for our speedy trial analysis. First,

defense counsel gave a brief overview of actions taken on Flora’s behalf, without specificity

beyond the months on which the motions for speedy trial and to dismiss were filed. She

2 The designation of the record is not an all inclusive one, and it does not make any specific reference to orders. While there are many orders found within the clerk’s papers, none of them address the continuances.

27 pointed out that there are two cases involved, in two separate actions, one for capital murder

and the present one for murder, and the arguments she makes are for both. She mentioned

generally the court granting motions for continuances ore tenus to the prosecution, and that

the prosecution and the court had ignored all requests for speedy trial. She concluded by

asking the trial court to dismiss the case, release Flora on his own recognizance, or allow the

trial to go forward on February 3, 2003. At that point, the prosecutor provided more specific

information, including that when Flora waived arraignment in February 2002, the case was

continued to the June 10, 2002, term of court. On March 7, 2002, and June 6, 2002, Flora

requested more time for investigation and discovery, and trial was continued to the August

term. On August 5, the defense requested another continuance, which was granted to

September 23, 2002. On that date the State requested more time for a psychological

evaluation of a then co-defendant. On November 20, 2002, Flora filed his first request for

a speedy trial, although the trial date had already been set by the court for December 2, 2002.

Ultimately that trial setting was continued until February 3, 2003, because the trial court

judge had a scheduling conflict with another “special setting” case. At the January 16 docket

setting, the trial court granted the prosecutor’s motion for continuance, over Flora’s objection

that although the prosecutor announced ready for trial of other cases also scheduled on

February 3, those defendants had not been incarcerated as long as Flora. The record is silent

as to whether any date certain was set for the trial. At the January 24, 2003, hearing the trial

court considered the arguments of counsel and reviewed the history of the case to that point.

28 Before announcing his ruling on the motions, without specifically addressing any particular

motion, the trial court noted that Flora was facing “the most serious charges that could be

leveled against any defendant. One is capital murder, the second is murder, and the third is

armed robbery” 3 , and went on to say:

And obviously it takes time on the part of the defendant to prepare the case, the defendant’s attorneys to prepare the case defending the defendant; and it takes also a lot of time for the State to get ready to prosecute the case. And so with that understanding, and in consideration of the nature of the charges, the seriousness of the charges, as well as the necessary continuances which were requested by the defendant to have an opportunity to get everything ready for the defense, and then for the State on that occasion that has been mentioned which related to the codefendant, and for these reasons the Court is of the opinion that there has been no denial of a speedy trial, no violation of the speedy trial requirements of the State. And so the case, you know, will, of course, proceed as soon as the Court can get to it.

This Court has a tremendous volume of criminal cases, and we can only try so many cases in a period of time. But every effort will be made to try this case as soon as possible. . . . The Court is of the opinion that there is no factual basis or legal basis for supporting the defendant’s demand for speedy trial, and the same for the motion to dismiss. . . . So the Court is going to deny each of these motions and each of these causes that have been raised by the defendant.

At that point the trial court asked if there was anything else to be considered, to which

Flora’s attorney answered “No, your honor.”

¶65. On March 7, 2003, a second hearing was held, this time regarding the State’s motion

for continuance requested the previous day. The court granted the State’s motion, which

included need to secure DNA testing, weapons analysis, and the absence of a key witness,

3 The appeal before this Court is from the murder charge only.

29 Subrena Levy. This motion was granted until the next term of court on a date to be assigned

by the court administrator4 and defense counsel acquiesced. On May 8, 2003, Flora filed his

third demand for a speedy trial, and on May 15, the State requested more time in order to get

blood samples tested in addition to needing more time to find a material witness to their case.

On May 23, a third hearing was conducted, this time regarding the blood samples from Flora

for testing, and the trial judge granted the blood testing. The transcript does not reveal that

there was any specific accounting for the days of delay caused by the time necessary to get

the samples and testing done. On June 13, the court ordered the same from witness Subrenda

Levy. On September 12, 2003, Flora renewed his demand for a speedy trial, actually in a

fourth case, in which Flora was charged with possession of a firearm by a convicted felon.

However, that case was also set for trial September 22, and the hearing involved various

matters on all four of the Flora cases, including severance. With regard to the present case,

the prosecutors pointed out that they had been waiting more than six months for DNA results

from Reliagene, which were needed specifically for the murder case, and that a date certain

setting appeared to be necessary to get the testing completed. There was no ruling from the

court at the close of the hearing, other than to instruct the attorneys to get with the court

administrator to select a date, and trial was subsequently set for December 1, 2003. On

October 17, 2003, defense counsel informed the court he was unavailable on that day, and

requested a continuance, but it was denied. From then until the December 1, 2003, trial,

4 Apparently the date set was for September 22, 2003, based on argument by the prosecutor at the May 23, 2003 hearing.

30 there were various motions for, and responses and supplements to, discovery from both Flora

and the State. On October 20, Flora filed six motions in limine, and on the following day

filed motions for funding for DNA expert to assist, and for additional discovery. In

November there were more motions and numerous orders. Although on the record before

us we are unable to allocate a specific number of days of delay to each party, we are

persuaded that sufficient good cause was shown related to matters beyond the control of the

State, for us to uphold the decision by the trial court.

¶66. We cannot say that the trial court abused its discretion in denying Flora’s motions.

We do, however, urge the trial courts and prosecutors of this State to guard against becoming

complacent with regard to making a clear record to allow proper review of speedy trial

claims. This Court should not be expected to simply accept at face value the claims of

crowded dockets, backlogged laboratory testing, and other similar logistical problems, which

undeniably exist. Under the facts and circumstances in the record before us, the reason for

the delay factor weighs in favor of Flora.

3. Assertion of the Right

¶67. This factor weighs in favor of Flora. It is undisputed that Flora asserted his

constitutional and statutory right to a speedy trial on several occasions beginning with his

demand for speedy trial and first motion to dismiss, on November 20, 2002, some 14 months

after his arrest. His second demand was made on January 17, 2003; and his third on May 8,

2003, together with his second motion to dismiss. However, Flora’s assertion of his right

31 to a speedy trial is a ground for reversal or dismissal only if, after viewing together and

evaluating all factors of the Barker analysis, we conclude that his right to a speedy trial was

violated. Stark v. State, 911 So.2d 447, 453 (Miss. 2005).

4. Prejudice

¶68. To assist in analyzing this factor, the Barker Court identified three interests protected

by the right to a speedy trial to be considered when determining whether the defendant has

been prejudiced by the delay in bringing him or her to trial. These interests are: (a) prevent

oppressive pretrial incarceration, (b) minimize anxiety and concern of the accused, and (c)

limit the possibility that the defense will be impaired. Barker, 407 U.S. at 532. Of these,

the most serious is the last, because the inability of a defendant adequately to prepare his case

skews the fairness of the entire system. Id. In State v. Magnusen, 646 So. 2d 1275, 1284

(Miss. 1994), this Court found presumptive prejudice from a fifteen-month delay between

arrest and trial but no actual prejudice and weighed the prejudice factor against the

defendant. We look to such questions as whether witnesses have died or become

unavailable, documents or other evidence have been destroyed, or memories have dimmed

so that the accused is at a disadvantage which would not have attended him at a prompt trial.

Jaco v. State, 574 So. 2d 625, 632 (Miss. 1990); see Perry v. State, 419 So. 2d 194, 200

(Miss. 1982); Wells v. State, 288 So. 2d 860, 863 (Miss. 1974).

¶69. While there are certainly societal disadvantages of a lengthy pretrial incarceration, this

case does not present a situation in which the incarceration was oppressive, especially when

32 one considers the complexities of preparation for multiple charges filed against multiple

defendants, in four separate cases, plus the heavy caseload in the offices of both the Hinds

County Public Defender who represented Flora, and the Hinds County District Attorney who

prosecuted the case, as well as the Hinds County Circuit Court. There were a number of

continuances filed, or agreed to, by Flora. Furthermore, no proof exists of extraordinary

anxiety or of loss of evidence or witnesses. Flora attempts to use “prosecutorial misconduct”

in support of his speedy trial claim. This claim is without merit as we agree with the trial

court’s conclusion that the reasons given for the State’s continuances were for “good cause.”

As to Flora’s allegation that the prosecutor deliberately misrepresented the fact that the DNA

testing was being done, the record reflects that, at that time, the state crime lab was without

an analyst who could perform the DNA testing, and upon learning of this, the prosecutor

promptly proceeded to take the steps necessary to obtain testing from Reliagene. This

unquestionably caused delay, but the record does not reflect that the State’s failure to obtain

timely testing was done to purposefully disadvantage Flora, nor that Flora’s ability to defend

against the charges was affected. Ultimately, all witnesses were available for trial. This factor

weighs in favor of the State, as no actual prejudice existed. Under the totality of the

circumstances, and upon examination and analysis of the Barker factors, we conclude that

Flora’s constitutional right to a speedy trial was not violated. See Hersick, 904 So.2d at 125.

B. The Statutory Claim

¶70. Flora also alleges a statutory violation of his right to a speedy trial, under Miss. Code

Ann. Section 99-17-1 (Supp. 2000), which provides: “[u]nless good cause be shown, . . . all

33 offenses for which indictments are presented to the court shall be tried no later than two

hundred seventy days (270) after the accused has been arraigned.” Therefore, we simply

start Flora’s statutory speedy trial clock two months later, on February 19, 2002, when he

waived arraignment and entered his not guilty plea. However, the same analysis of good

cause shown and continuances duly granted is applicable in the statutory context as in the

constitutional context. After thoroughly reviewing the record, we are convinced that fewer

than 270 days must be counted against the State. The only intervals where it appears that,

arguably, a noteworthy amount of time ran against the State was between the waiver of

arraignment and Flora’s first continuance, which amounted to sixteen days; between the

State’s first motion for continuance on September 23, until December 2, 2002, the first date

set for trial, which was seventy days; between the state’s second motion for continuance on

January 16, until the March 7, 2003 hearing on that and other motions, which was fifty days;

and between March 7, until May 15, 2003, which was sixty-nine days, for a total of 205 days.

Considering the record as a whole, we conclude that while the length of the delay was

substantial, and while Flora undisputedly asserted both his statutory and constitutional right

to a speedy trial, the reasons for the delay were legitimate and “good cause” was shown. In

light of Mississippi’s current case law on this point, we hold that Flora was not denied his

statutory or constitutional right to a speedy trial. This issue is without merit

VII. DENIAL OF MOTION FOR DISCLOSURE OF THE NAMES OF THE ARRESTING OFFICERS AND DISCLOSURE OF THE CRIMINAL HISTORIES OF JOHNSON AND SPANN

34 ¶71. In reviewing rulings of a trial court regarding matters of evidence, relevancy and

discovery violations, the standard of review is abuse of discretion. Montgomery v. State, 891

So. 2d 179, 181 (Miss. 2004).

¶72. Flora asserts the trial court denied to him the names and identities of the police

officers who were present at his arrest in the early morning hours of September 11, 2001, and

also denied him the criminal histories of Roger Johnson and Ray Spann. Flora submits only

that this information may have been favorable and possibly could have supported the defense

that Flora did not fire the murder weapon.

¶73. The law is well-settled on this disclosure issue. In Brady v. Maryland, 373 U.S. 83,

87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the United States Supreme Court established the

principle that suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is either material to guilt or to punishment.

However, the Supreme Court also recognized that not all failures to disclose exculpatory

evidence constitute reversible error, holding that “. . . the question is whether there is a

‘reasonable probability’ that the verdict would have been different but for governmental

evidentiary suppression which ‘undermines confidence in the outcome of the trial.’” Kyles

v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995) (citing United

States v. Bagley, 473 U.S. 667, 678, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985)). Soon

thereafter, we adopted this principle and stated that in order to establish a Brady violation,

a defendant must prove the following:

35 (1) that the government possessed evidence favorable to the defendant (including impeachment evidence); (2) that the defendant does not possess the evidence nor could he obtain it with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

King v. State, 656 So. 2d 1168, 1174 (Miss. 1995) (emphasis added).

¶74. Flora argues the State suppressed favorable evidence; however, Flora fails to show,

as required by Brady, either that the evidence was favorable or that the prosecution even

possessed the same. In fact, Flora acknowledged this through his motion for discovery that

he asked the trial court to order the Jackson Police Department, the Hinds County Sheriff’s

Office, the Mississippi Department of Public Safety and the Mississippi Department of

Corrections to provide him all the records indicating all criminal charges or convictions with

regard to five persons who “may be material witnesses in this case and may be called to

testify”(emphasis added). There is no proof in the record that would allow this Court to

decide whether such evidence was favorable or unfavorable. Even if this Court presumes

that the evidence was favorable and that the evidence was in the prosecution’s possession,

Flora still must satisfy the remaining prongs.

¶75. Under the second prong of Brady, the defendant must prove that he “does not possess

the evidence nor could he obtain it with any reasonable diligence.” King, 656 So. 2d at 1174.

Presuming Flora did not possess the evidence, no proof exists in the record that Flora could

not obtain the evidence with reasonable diligence. Flora argues that “state and federal law

bar Flora from directly accessing the information via the public entities responsible for

36 maintaining national criminal information databases and access to these databases,” but does

not cite authority and does not provide any proof that he sought to obtain such information

and it was denied. Further, this argument is in direct conflict with a recent decision by the

Mississippi Court of Appeals which correctly stated that: “[c]onviction records are a matter

of public record equally available to the defense as to the State.” McNair v. State, 814 So.

2d 153, 157 (Miss. App. 2001). Moreover, while the names and addresses of the police

officers were in the State’s possession, Flora failed to demonstrate he could not obtain this

information through reasonable diligence.

¶76. Even if Flora were to satisfy the first and second prongs, he fails to satisfy the third

and fourth prongs of the Brady test. Under the third and fourth prongs of the test, the

defendant is required to prove that the “prosecution suppressed the favorable evidence and

that had the evidence been disclosed to the defense, a reasonable probability exists that the

outcome of the proceedings would have been different.” King, 656 So. 2d at 1174 (emphasis

added). In 2001, this Court held that “in any case, Brady requires a ‘reasonable probability’

of a different outcome, not a mere possibility.” Todd v. State, 806 So. 2d 1086, 1091 (Miss.

2001). Ultimately, Flora cannot prove to a reasonable probability that the outcome of the

trial would have been different had this evidence been in his possession. Flora not only

admitted to being at the scene of the crime, but he also admitted to being in a struggle with

the victim. Evidence also exists which places the weapon used to commit the crime in

Flora’s possession soon after the crime. Furthermore, gunshot residue was found on Flora

37 soon after the crime, and blood of the victim was found on Flora’s clothing. At best, a mere

possibility exists that the outcome of trial would have been different, certainly not satisfying

Brady or the standard required by this Court’s precedent. See id. at 1091. Moreover, there

is no evidence of suppression by the State. The trial judge did not abuse his discretion in

refusing to allow Flora to discover potentially favorable evidence.

VIII. DENIAL OF FLORA’S REQUEST TO QUESTION STEVEN HAYNE ABOUT ILLICIT DRUGS IN THE BLOOD OF THE VICTIM

¶77. The standard of review for the exclusion of evidence is abuse of discretion. Herring

v. Poirrier, 797 So.2d 797, 804 (Miss. 2000). The trial judge is empowered with the

discretion to consider and to decide which evidence is admissible, and unless this judicial

discretion is so abused as to be prejudicial to the accused, then, the ruling of the lower court

must be affirmed. Clark v. State, 891 So.2d 136,139 (Miss. 2004).

¶78. During direct examination by the State, Dr. Steven Hayne testified that he drew blood

and urine specimens from the body of the victim for toxicological testing by the Mississippi

Crime Laboratory, and that the testing would show the presence or absence of ethyl alcohol

or “drugs of abuse” in the bloodstream. Dr. Hayne also testified on direct examination that

the crime laboratory results showed an absence of ethyl alcohol. Dr. Hayne further testified

that the crime laboratory result of the ethyl alcohol testing was the only report he received.

On cross-examination, Flora attempted to ask whether the urine of the victim showed the

presence of “drugs of abuse” to which the trial court sustained the State’s objection to that

question. Had Flora not possessed the results of both the ethyl alcohol and “drugs of abuse”

38 reports, his argument would certainly be stronger regarding a possible discovery violation.

Flora was, however, in possession of both reports; counsel stated in a proffer outside the

presence of a jury: “I’ve got the testing documents and the results on them which would be

negative for all drugs other than marijuana in the urine -- of the blood of Mr. Spann

[victim].” It is certainly not the State’s duty to enter into evidence all documents in its

possession, especially when the person testifying has no knowledge of the contents of an

offered or proposed document.

¶79. Flora also argues that the State created a “false impression of the evidence” by only

referring to the ethyl alcohol testing. This argument would have merit only if Dr. Hayne was

aware of the “drugs of abuse” report of which he clearly denied having knowledge on several

occasions. By asking Dr. Hayne about the only toxicological report of which he had

knowledge, the State did not create a false impression of the evidence, and Flora cannot

justifiably claim a due process violation.

¶80. The trial court did not abuse its discretion by denying Flora the opportunity to ask Dr.

Hayne about the results of the “drugs of abuse” report.

IX. DENIAL OF FLORA’S MOTIONS FOR DIRECTED VERDICT, PEREM PTORY INSTRUC TION, AND JUDGMENT NOTWITHSTANDING THE VERDICT

¶81. “[T]he standard of review for denials of a motion for directed verdict, judgment

notwithstanding the verdict and a request for peremptory instruction is the same.” Jefferson

v. State, 818 So. 2d 1099, 1110 (Miss. 2002); see also Shelton v. State, 853 So. 2d 1171,

1186 (Miss. 2003). “A directed verdict, judgment notwithstanding the verdict and a request

39 for peremptory instruction all challenge the legal sufficiency of the evidence presented at

trial.” Jefferson, 818 So. 2d at 1099. This Court considers all of the evidence in the light

most favorable to the State and gives the State the benefit of all favorable inferences that may

be drawn from the evidence. Seeling v. State, 844 So. 2d 439, 443 (Miss. 2003). This Court

is “not at liberty to direct that the defendant be discharged short of a conclusion on our part

that given the evidence, taken in the light most favorable to the verdict, no reasonable,

hypothetical juror could find beyond a reasonable doubt the defendant was guilty.” Ashford

v. State, 583 So. 2d 1279, 1281 (Miss. 1991).

¶82. In Carr v. State, 208 So. 2d 886, 889 (Miss. 1968), we stated that in considering

whether the evidence is sufficient to sustain a conviction in the face of a motion for directed

verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the

evidence shows “beyond a reasonable doubt that accused committed the act charged, and that

he did so under such circumstances that every element of the offense existed; and where the

evidence fails to meet this test it is insufficient to support a conviction.” However, this

inquiry does not require a court to

ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (citations

omitted) (emphasis in original). Should the facts and inferences considered in a challenge

40 to the sufficiency of the evidence “point in favor of the defendant on any element of the

offense with sufficient force that reasonable men could not have found beyond a reasonable

doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse

and render. Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985) (citing May v. State, 460 So.

2d 778, 781 (Miss. 1984)); see also Dycus v. State, 875 So. 2d 140, 164 (Miss. 2004).

¶83. The precise issue is whether, on the evidence before us, fair-minded jurors could have

found Flora guilty of murder beyond a reasonable doubt. Without question, there is ample

evidence pointing to Flora’s guilt. Flora admitted to being at the scene of the crime, and he

admitted to being in a struggle with the victim. Evidence also exists which places the

weapon used to commit the crime in Flora’s possession soon after the crime. Gunshot

residue was also found on Flora soon after the crime. In addition, blood of the victim was

found on Flora’s clothing. Flora’s contention that the case relies entirely on circumstantial

evidence is simply incorrect.

¶84. Considering the evidence offered by the State, as set forth above, Flora’s argument

that the trial court erred in denying the motion for directed verdict, judgment notwithstanding

the verdict and the request for peremptory instruction is without merit. When observed in

the light most favorable to the State, and with the State receiving the benefit of all favorable

inferences, we conclude that the evidence presented was legally sufficient to support the

conviction in this case.

CONCLUSION

¶85. We affirm the trial court on all issues.

41 ¶86. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

SMITH, C.J., WALLER, P.J., AND CARLSON, J., CONCUR. EASLEY, J., CONCURS IN RESULT ONLY. DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY GRAVES, J. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.

DICKINSON, JUSTICE, DISSENTING:

¶87. Because the majority has, in my view, improperly analyzed Flora’s speedy trial issue,

I respectfully dissent. The majority correctly sets out the standard of review for a Sixth

Amendment speedy trial claim which focuses on balancing four Barker factors.

¶88. In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182 (1972), the United States Supreme

Court, in addressing an alleged Sixth Amendment speedy trial violation, set forth four

factors to be considered and weighed by the courts. The four factors “are related factors and

must be considered together with such other circumstances as may be relevant.” Id. at 533.

Length of delay

¶89. A court must first determine whether balancing the four factors is necessary. This

is easily done by calculating whether more than eight months elapsed between arrest and

trial. If so, then the first factor weighs in favor of the defendant. In fact, this Court has held

that a delay of more than eight months is presumed to be prejudicial. The majority correctly

assesses this factor in favor of Flora and against the State. We then move to the second

factor.

42 Reason for the delay

¶90. In analyzing this factor, this Court requires the State to come forward and explain

why the delay extended beyond eight months, and to show that either the delay was caused

by the defendant, or was for good cause. Hersick v. State, 904 So. 2d 116, 121 (Miss.

2004). In that regard, we have clearly held:

The burden is on the State to provide the defendant with a speedy trial. Therefore, the State bears the concomitant burden of showing that either the delay was caused by the defendant or that the delay was for a good cause. Where the State is unable to do either, this factor must be weighed against the State.

Id., citing Smith v. State, 550 So. 2d 406, 409 (Miss. 1989); Wiley v. State, 582 So. 2d

1008, 1012 (Miss. 1991). In addressing the several motions for continuance in the record,

the majority says they are “difficult to follow,” and they are “unable to allocate a specific

number of days of delay to each party.” This, of course, means the State has made little or

no effort to meet its burden.

¶91. This Court does not customarily perform tasks it has previously characterized as the

State’s burden. Where a party does not meet its burden, the party should lose the issue. In

this case, the State does not even attempt to meet its burden. The State demonstrated

nothing. The majority, taking upon itself the State’s burden, painstakingly scoured the

record for explanations for the delay. Finding no attempt by the State to explain the delay,

and unable on its own to discover in the record reasons for the delay, the majority correctly

concludes that the second Barker factor weighs in favor of Flora and against the State.

43 Assertion of the right

¶92. The majority correctly concludes that the third factor, assertion of the right – weighs

against the State, and in favor of the defendant.

Prejudice to the defendant

¶93. The fourth Barker factor is prejudice to the defendant. In addressing this fourth

factor, the Barker Court stated:

A forth factor is prejudice to the defendant. Prejudice, of course, should be asserted 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. (footnote omitted).

Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. Ther3e is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.

We have discussed previously the societal disadvantages of lengthy pretrial incarceration, but obviously the disadvantages for the accused who cannot obtain his release are eben more serious. The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. . . . Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious.

Id. at 532-33.

¶94. With very little analysis, the majority finds – despite the fact that Flora was

incarcerated the entire 810 days before his trial – that this factor weighs in favor of the State.

44 Indeed, the majority finds this factor so heavily weighs in favor of the State, that it

outweighs all other factors combined. In doing so, the majority ignores the obvious

prejudice associated with a lengthy pretrial incarceration, as discussed in Barker. I cannot

agree with the majority’s conclusion that two years of pretrial incarceration is so void of

prejudice that it excused the State’s complete failure to explain two years of delay.

¶95. In conclusion, I first recognize that the United States Supreme Court requires that we

analyze an alleged violation of the Sixth Amendment right to a speedy trial by applying and

weighing four factors. The majority has done so, and concludes that three of the four factors

weigh in favor of the defendant and against the State. That is to say, three of the four

factors suggest Flora’s constitutional right to a speedy trial were violated. Only the fourth

factor – actual prejudice to the defendant – weighs in favor of the State. And despite the

fact that Flora has remained incarcerated for the entire delay, the majority concludes that

Flora is so incredibly unprejudiced, that this fourth factor serves to outweigh all three of the

other factors. So be it. But I cannot agree with or join this analysis or application of the

Barker factors.

¶96. It was not this Court nor any justice on it that decided the Unites States Constitution

should guarantee a defendant a speedy trial. However, this Court and each justice on it is

duty bound to reverse any conviction which occurred at a trial where this right was violated;

whether we like it or not.

45 ¶97. The State had eight months, or approximately 245 days, to bring Flora to trial. Flora

was brought to trial after 810 days. This resulted in a delay (beyond the eight months) of

565 days. The State did not even attempt to meet its burden in this case by showing, or even

offering, good cause for these 565 days of delay. The explanation is not to be found in the

record, and it is conspicuously absent from the majority opinion. Under such circumstances,

unless this Court diligently protects rights guaranteed under the Constitution, the State will

have no incentive to be diligent.

¶98. In this case, with respect to this issue, I cannot in good conscience agree with the

majority’s approach to constitutional interpretation and application. Either our citizens have

constitutional rights, or they do not. Here, the majority begins by recognizing that Flora has

such rights. If that is so, however, they are certainly imperfectly protected today. The

prospect that Flora, who may actually have committed the crime, could walk free because

his constitutional rights were violated, is certainly disturbing on more than one level. But

the protection of constitutional rights is an issue bigger than Milton Flora.

¶99. From what I recognize and know to be a very difficult albeit sincerely held

conclusion reached by the majority, I respectfully dissent.

GRAVES, J., JOINS THIS OPINION.