Smiley v. State

798 So. 2d 584, 2001 WL 808274
CourtCourt of Appeals of Mississippi
DecidedJuly 17, 2001
Docket2000-KA-00261-COA
StatusPublished
Cited by6 cases

This text of 798 So. 2d 584 (Smiley 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
Smiley v. State, 798 So. 2d 584, 2001 WL 808274 (Mich. Ct. App. 2001).

Opinion

798 So.2d 584 (2001)

Mark Anthony SMILEY, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2000-KA-00261-COA.

Court of Appeals of Mississippi.

July 17, 2001.
Rehearing Denied October 23, 2001.

*586 Chester D. Nicholson, Gulfport, Gail D. Nicholson, Attorneys for Appellant.

Office of the Attorney General by Charles W. Maris Jr., Jackson, Attorney for Appellee.

BEFORE KING, P.J., PAYNE, THOMAS, and MYERS, JJ.

THOMAS, J., for the Court:

¶ 1. Mark Anthony Smiley appeals his conviction for kidnapping, raising the following issues as error:

I. WHETHER SMILEY'S SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL AS WELL AS HIS STATUTORY RIGHT PURSUANT TO MISSISSIPPI CODE ANNOTATED § 99-17-1 WERE VIOLATED BY THE STATE OF MISSISSIPPI?
II. WHETHER STATE'S EVIDENCE WAS SUFFICIENT TO SUSTAIN A CONVICTION OF KIDNAPPING UNDER MISSISSIPPI CODE ANNOTATED § 97-3-53?
III. WHETHER THE JURY INSTRUCTIONS WERE INADEQUATE TO DEFINE THE CRIME OF KIDNAPPING AND WAS THE STATEMENT BY THE PROSECUTOR IN CLOSING IMPROPER?
IV. WAS THE SENTENCE OF THE TRIAL JUDGE ILLEGAL IN CONTRAVENTION OF MISSISSIPPI CODE ANNOTATED § 99-19-23?

Finding no error, we affirm.

FACTS

¶ 2. On the night of November 25, 1996, Mark Anthony Smiley went to the home of his ex-wife Sandy Coleman. Coleman resides at her home with her boyfriend Keith Albright, her daughter, and his two daughters. Coleman heard a noise at the front door and went to investigate. When she opened the door, Smiley was standing there dressed in camouflage and holding a shotgun. Coleman grabbed the shotgun and struggled with Smiley. Smiley fended off Coleman's efforts and then grabbed her by the hair and pulled her into the house. Albright, realizing that it was Smiley outside, got the children out of the area and called 911 to report that a man with a shotgun was trying to get into the house. Smiley confronted Albright and demanded to know if Albright was armed or if he had called the police. Albright told Smiley that he had not called the police.

¶ 3. Smiley informed Coleman and Albright that he was going to take Coleman's car because Coleman owed him money from his last military check. Coleman stated that Smiley felt she owed him this money due to the fact that she had put his check into her account at the time of their divorce. Smiley sat down and kept the shotgun either in his hand or close by as he smoked a cigarette.

*587 ¶ 4. The police arrived on the scene, and Smiley allowed Coleman to go talk to the police in order to get rid of them. After Coleman went outside to talk to the police, Albright tried to persuade Smiley to escape out the back door, but Smiley refused. Lt. Doug Wells then rushed into the house where Smiley was sitting on the couch and tackled him. Smiley was arrested without further incident. In the pockets of Smiley's pants, police found a small knife, a larger knife that folded, extra shotgun shells, duct tape, and a rope.

¶ 5. Coleman later testified that while she was in the house, she did not feel free to leave. She went on to state that "the man was dressed in camouflage with gloves and a shotgun, I didn't feel that I could just get up and leave." Coleman also stated that she was terrified: "I mean, I didn't know if I was going to die that night or not." Albright testified that he was scared as well, and he knew "for a fact" that he was not free to leave.

¶ 6. On May 16, 1997, Smiley was formally indicted for two counts of kidnapping. Smiley was tried on February 22, 1999. After a trial on the merits, a guilty verdict of two counts of kidnapping was returned by the trial court. Smiley filed and presented his motion for a new trial, which was denied by the trial court. It is from this denial that Smiley now appeals.

ANALYSIS

I.

WHETHER SMILEY'S SIXTH AMENDMENT RIGHT TO A SPEEDY TRAIL AS WELL AS HIS STATUTORY RIGHT PURSUANT TO MISSISSIPPI CODE ANNOTATED § 99-17-1 WERE VIOLATED BY THE STATE OF MISSISSIPPI?

¶ 7. On appeal, Smiley asserts for the first time that his statutory speedy trial right has been impinged. "A defendant is procedurally barred from raising an objection on appeal that is different than that raised at trial." Jones v. State, 606 So.2d 1051, 1058 (Miss.1992). "A trial judge will not be found in error on a matter not presented to him for decision." Id. Smiley is procedurally barred from arguing that his statutory right to a speedy trial was violated because he did not raise this issue at the trial level.

¶ 8. Smiley was arrested and charged on November 25, 1996. He was indicted for two counts of kidnapping on May 16, 1997. Smiley's trial took place on February 22, 1999, approximately 819 days or two years and three months from the time he was arrested. Smiley did attempt to assert his constitutional right to a speedy trial; however, these motions were never ruled upon.

¶ 9. For constitutional purposes, the right to a speedy trial attaches at "time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge." Lightsey v. State, 493 So.2d 375, 378 (Miss.1986). See also Vickery v. State, 535 So.2d 1371, 1376 (Miss.1988). In Smith v. State, 550 So.2d 406 (Miss.1989), our Supreme Court held that for constitutional purposes, the right to a speedy trial attached at arrest. Id. at 408. "Once the constitutional right to a speedy trial has attached, this Court must examine the facts of the case and engage in a functional analysis of those facts in accordance with Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether the constitutional right to a speedy trial has been denied." Handley v. State, 574 So.2d 671, 674 (Miss.1990).

¶ 10. The Barker factors are weighted and balanced in each case according to its facts. The factors that must be considered *588 are (1) length of delay, (2) reason for the delay, (3) defendant's assertion of his right to a speedy trial, and (4) prejudice resulting to the defendant. Barker, 407 U.S. at 514, 92 S.Ct. 2182. "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 the 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).

¶ 11. If the delay is not presumptively prejudicial, the analysis goes no further. Jaco, 574 So.2d at 630. In Smith, our Supreme Court held that an eight-month delay is presumptively prejudicial. Smith, 550 So.2d at 408. In the order denying the motion to quash the indictment, the trial judge found that the twenty-three month delay from date of arrest until the date of trial was presumptively prejudicial. "This factor, alone, is insufficient for reversal, but requires a close examination of the remaining factors." Handley, 574 So.2d at 676.

1. The Length of the Delay.

¶ 12. The constitutional right to a speedy trial attaches at the time a person is arrested. Smith, 550 So.2d at 408. A delay of at least eight months is presumptively prejudicial. Jaco, 574 So.2d at 630. Twenty-seven months elapsed from the time of Smiley's arrest until his trial. We presume prejudice.

¶ 13. In Flores v. State,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

David Lee May v. State of Mississippi
Court of Appeals of Mississippi, 2019
William R. Edmonson, Jr. v. State of Mississippi
238 So. 3d 1218 (Court of Appeals of Mississippi, 2018)
Patterson v. State
79 So. 3d 549 (Court of Appeals of Mississippi, 2011)
Drummond v. State
33 So. 3d 507 (Court of Appeals of Mississippi, 2009)
Ude v. State
992 So. 2d 1213 (Court of Appeals of Mississippi, 2008)
Russell v. State
832 So. 2d 551 (Court of Appeals of Mississippi, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
798 So. 2d 584, 2001 WL 808274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smiley-v-state-missctapp-2001.