IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-KA-00245-COA
TIMOTHY DEWAYNE TAYLOR A/K/A APPELLANT TIMOTHY D. TAYLOR A/K/A TIMOTHY TAYLOR
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/14/2023 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JULIANNE KAY BAILEY DISTRICT ATTORNEY: HALDON J. KITTRELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/18/2025 MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., WESTBROOKS AND WEDDLE, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. This appeal stems from Timothy Dewayne Taylor’s conviction and sentence for
aggravated assault with a deadly weapon. A Jefferson Davis County Circuit Court jury found
Taylor guilty of the crime charged, and the circuit court subsequently sentenced Taylor to
serve twenty years in the custody of the Mississippi Department of Corrections (MDOC).
On appeal, Taylor asserts that his constitutional right to a speedy trial was violated after a
span of 2,883 days passed from the day he was arrested to the date his trial began. After a
review of the record, and considering the totality of the circumstances, we affirm the trial court’s decision and affirm Taylor’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2. On March 25, 2015, Elvadus Rhodes was visiting his ex-wife at the Meadow Hill
Apartments in Prentiss, Mississippi. While Rhodes was walking down the sidewalk, Taylor
came out of a nearby apartment and said to Rhodes, “You must think I’m playing about my
money.” Taylor and Rhodes were friends, and Taylor had loaned Rhodes ten dollars to get
to work earlier that morning. Rhodes said, “Tim, man,” and then Taylor pulled out a pistol
and shot at Rhodes. Taylor’s bullet missed Rhodes, who then “took off running.” As he was
running away, Rhodes could hear shots being fired at him, and one bullet hit him in the back,
causing him to fall the ground.
¶3. A bystander attempted to help Rhodes stand up after he was shot. Taylor continued
to go toward Rhodes with the pistol. Instead of shooting Rhodes again, Taylor kicked him
and ran off. Rhodes was treated at Forrest General Hospital, where doctors repaired his liver
and colon. Rhodes’s ex-wife Sylvia Hathorn testified that she heard the gunshots from inside
her apartment. She then heard someone say, “That [man] done shot Red.” When Sylvia ran
outside to get to Rhodes, Taylor passed her while holding a black gun and a bag. Sylvia then
called 911. When police arrived, Rhodes told them that Taylor had shot him.
¶4. Taylor was arrested on the same day (March, 25, 2015) for aggravated assault with
a deadly weapon. Taylor was indicted on December 15, 2016; however, Taylor would not
stand trial on the charge until 2,883 days (nearly eight years) later, on February 14, 2023.
¶5. Because Taylor’s claim in this appeal is that his right to a speedy trial was violated,
2 it is important that we also include other significant dates that occurred between the date of
Taylor’s arrest and the date of his trial.
¶6. As previously stated, the alleged crime at hand occurred on March 25, 2015. In July
2015, Taylor was indicted in Jefferson Davis County for a separate charge of aggravated
assault (Circuit Court Case Number 1:15-cr-00022). The State was ready for a March 2016
trial in that case and had issued subpoenas to witnesses; however, after Taylor was arrested
for aggravated assault for the July 2015 offense, the State and Taylor became involved in
plea negotiations for both of his charges. Apparently, the plea negotiations broke down.
Then on December 15, 2016, after having posted a bond set on October 13, 2016, Taylor was
indicted on the instant aggravated assault charge and “no-bonded because he had a pre-
existing charge.”
¶7. On June 14, 2017, an order was entered granting Taylor’s ore tenus motion requesting
a mental evaluation. Forensic Services of the Mississippi State Hospital at Whitfield
(Whitfield), where Taylor’s mental evaluation was directed to be conducted, was unable to
complete the evaluation in a timely manner. Therefore, on March 1, 2018, Taylor again
requested a mental evaluation, and on March 9, 2018, the trial court amended its order to
reflect that Dr. Beverly Smallwood would conduct the mental evaluation instead of personnel
at Whitfield “at the earliest date possible.” After receiving the forensic report containing
Taylor’s evaluation, the trial court entered an order finding Taylor competent to stand trial
on October 4, 2018.
¶8. On August 19, 2019, the trial court, on its own motion, ordered Taylor to undergo a
3 second mental evaluation. Even though the court previously found Taylor to be competent
to stand trial, the second mental evaluation was requested by the circuit court “based upon
the [c]ourt’s observations of the Defendant’s conduct and behavior, and based upon verbal
reports of the Defendant’s recent conduct and behavior in jail.” An order setting trial for
August 21, 2019, had been previously entered on March 13, 2019. However, due to the
second order for a mental evaluation, the trial court continued the trial date to August 24,
2020. A second order finding Taylor competent was entered by the trial court on August 17,
2020. Subsequently, due to the COVID-19 pandemic, on January 14, 2021, the trial court
continued Taylor’s trial date from August 24, 2020, to February 2, 2021, after he filed a
motion requesting, inter alia, a speedy trial. A second continuance order (still due to
COVID-19) followed on August 6, 2021, resetting the trial date to February 15, 2022.
¶9. The next day, on September 22, 2021, the trial court held a hearing on Taylor’s pro
se letter that he wrote to the circuit clerk, in which Taylor argued that the charge against him
should be dismissed due to his right to a speedy trial being violated. At that hearing, Taylor
requested another mental evaluation, and the trial court ordered a third mental evaluation,
stating that “after interacting with and observing the Defendant in open court and at the
urging of defense counsel, the Court will order the Defendant be mentally evaluated again.”
(Emphasis added). A continuance order was later entered on February 2, 2022, continuing
the trial date to August 29, 2022, to allow time for the third mental evaluation to occur and
the results to be received. On July 11, 2022, the trial court entered another order finding
Taylor competent and issued an order on September 13, 2022, setting trial for February 14,
4 2023. Meanwhile, also in September 2022, Taylor went to trial for charges of attempted
murder and possession of controlled substances in Jefferson Davis County Circuit Court Case
Number 1:19-cr-00073.
¶10. Taylor’s trial for the present case was held on February 14, 2023. A jury convicted
Taylor of aggravated assault with a deadly weapon for causing serious bodily injury to
Rhodes. Taylor was then sentenced by the court to serve twenty years in the custody of the
MDOC. This sentence was ordered to run consecutively to the sentence given to Taylor in
Case Number 1:19-cr-00073.1 Following his trial, Taylor moved for a judgment
notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The trial court denied
this motion. Taylor subsequently filed a motion to dismiss on the basis of a “lack of
constitutional and/or statutory speedy trial,” which the trial court also denied. Taylor now
appeals his conviction and sentence, claiming a violation of his constitutional right to a
speedy trial.
STANDARD OF REVIEW
¶11. “Review of a speedy trial claim encompasses a fact question of whether the trial delay
rose from good cause.” Giles v. State, 306 So. 3d 830, 835 (¶9) (Miss. Ct. App. 2020)
(quoting DeLoach v. State, 722 So. 2d 512, 516 (¶12) (Miss. 1998)). When an accused raises
a speedy trial violation before the trial court, the judge must consider the questions of
“whether there was ‘good cause’ for a delay” and whether “the defendant has been
prejudiced by any delay.” Berryman v. State, 337 So. 3d 1116, 1127 (¶33) (Miss. Ct. App.
1 Taylor’s appeal of the conviction in Case Number 1:19-cr-00073 is reported at Taylor v. State, 374 So. 3d 617 (Miss. Ct. App. 2023) (affirming convictions and sentences).
5 2021) (citing State v. Woodall, 801 So. 2d 678, 680-81, 687 (¶¶7, 29, 31) (Miss. 2001)). We
will affirm the trial court’s findings on good cause and prejudice if they are supported by
substantial credible evidence. Id. “If no probative evidence supports the trial court’s finding
of good cause, this Court will ordinarily reverse.” Giles, 306 So. 3d at 835 (¶9) (quoting
DeLoach, 722 So. 2d at 516 (¶12)).
DISCUSSION
¶12. The sole issue is whether Taylor’s right to speedy trial was violated. Criminal
defendants are guaranteed the right to a speedy trial by the United States and Mississippi
Constitutions. U.S. Const. amend. VI; Miss. Const. art. 3, § 26. As established in Bateman
v. State, 125 So. 3d 616, 628-29 (¶40) (Miss. 2013), we must consider the totality of the
circumstances in determining whether a speedy-trial violation occurred. The United States
Supreme Court developed a four-part test to determine if a defendant’s right to a speedy trial
was violated. Bateman v. State, 125 So. 3d 616, 628 (¶40) (Miss. 2013) (citing Barker v.
Wingo, 407 U.S. 514 (1972)). “The relevant factors to be considered are: (1) the length of
delay; (2) the reason for delay; (3) whether the defendant asserted his right to a speedy trial;
and (4) whether the defendant has been prejudiced by the delay.” Id. When the trial court
does not articulate findings of fact, this Court “act[s] de novo in performing the Barker
analysis.” DeLoach, 722 So. 2d at 516 (¶15). “This Court looks at the totality of the
circumstances, and no [Barker] factor alone is dispositive.” Thomas v. State, 48 So. 3d 460,
477 (¶42) (Miss. 2010) (citing Price v. State, 898 So. 2d 641, 648 (¶11) (Miss. 2005)); see
also Bateman, 125 So. 3d at 633 (¶59) (“After reviewing all of the factors relevant to the
6 analysis of a speedy-trial claim, we must balance each factor along with other relevant
circumstances.”).
I. Length of Delay
¶13. The Mississippi Supreme Court has held that the right to a speedy trial attaches “at the
time of a formal indictment or information or else the actual restraints imposed by arrest and
holding to a criminal charge.” Johnson v. State, 235 So. 3d 1404, 1417 (¶45) (Miss. 2017).
Our supreme court has further held a delay of eight months or longer between the date of
arrest and the defendant’s trial is presumptively prejudicial. Ward v. State, 346 So. 3d 868,
870 (¶6) (Miss. 2022). “A presumptively prejudicial delay acts as a triggering mechanism
for conducting” the balancing test set out by the United States Supreme Court in Barker. Id.
¶14. Taylor was arrested on March 25, 2015, for aggravated assault and indicted on
December 15, 2016. Taylor’s trial began on February 14, 2023. Because the period between
Taylor’s arrest and his trial exceeded eight months, it is presumptively prejudicial.
Therefore, a Barker analysis is triggered, “and the burden of persuasion shifts to the State to
establish good cause for the delay.” Johnson v. State, 68 So. 3d 1239, 1242 (¶8) (Miss.
2011).
II. Reason for Delay
¶15. “[D]ifferent reasons for delay are assigned different weights.” Williams v. State, 305
So. 3d 1122, 1132 (¶31) (Miss. 2020). “Deliberate attempts to delay the trial to hamper the
defense are weighted heavily against the government.” Id. “More neutral reasons for the
delay, such as negligence or overcrowded courts, are weighted against the government, albeit
7 less heavily.” Id. “Delays caused by the defense, such as requests for continuances, will toll
the running of the speedy-trial clock for the length of time attributable to the continuance.”
Courtney v. State, 275 So. 3d 1032, 1042 (¶27) (Miss. 2019); see also Brewer v. State, 725
So. 2d 106, 119 (¶55) (Miss. 1998) (finding that time which passes during the consideration
of numerous defense motions does not count against the State). If “the record is silent
regarding the reason for the delay, then the time is counted against the State because the State
bears the risk of non-persuasion on the good cause issue.” Harris v. State, 311 So. 3d 638,
665 (¶80) (Miss. Ct. App. 2020). However, delays before an indictment are considered
investigative delays, and an “investigative delay is fundamentally unlike delay undertaken
by the government solely to gain tactical advantage over the accused.” Id. And when the
trial court has found good cause for the delay, the finding “will be left undisturbed where
there is in the record substantial credible evidence from which it could have been made.”
Walton v. State, 678 So. 2d 645, 648-49 (Miss. 1996); accord McNeal v. State, 617 So. 2d
999, 1007 (Miss. 1993); Folk v. State, 576 So. 2d 1243, 1247 (Miss. 1991).
a. Pre-Indictment
¶16. Taylor was arrested on March 25, 2015, but his trial did not begin until February 14,
2023. This means approximately 2,883 days passed from the day of his arrest to the start of
his trial. However, Taylor was not indicted until December 15, 2016. This occurred
approximately 631 days after his arrest. As this Court has previously held, delays that occur
before the indictment are considered “investigative delays.” Harris, 311 So. 3d at 665 (¶80).
“Since investigative delays are considered more neutral reasons for delay, they should be
8 weighed only slightly against the State.” Bradshaw v. State, 371 So. 3d 822, 835 (¶33)
(Miss. Ct. App. 2023) (citation omitted) (citing Williams, 305 So. 3d at 1132 (¶31)). In this
instance, the period between the arrest and indictment was lengthy due to the plea
negotiations between Taylor and the State regarding Taylor’s other aggravated assault charge
in Case Number 1:15-cr-00022. As our supreme court has previously recognized, “allowing
time for plea negotiations to continue[] cannot be weighed against the State in a Barker
analysis.” Graham v. State, 185 So. 3d 992, 1006 (¶43) (Miss. 2016) (citing Taylor v. State,
672 So. 2d 1246, 1259 (Miss. 1996)). Here, the State attempted plea negotiations with
Taylor for the charged crime in this case along with Case Number 1:15-cr-00022. Therefore,
the 631-day investigative delay in this case tolled the speedy trial clock and does not count
against either party because this period was not used as a tactic by the State to take advantage
of Taylor, as explained in Harris, 311 So. 3d at 665 (¶80), and, instead, was used in an
attempt to help Taylor with plea negotiations.
b. Post-Indictment
¶17. Not including the 631 days of investigative delay, 2,252 days post-indictment still
must be considered. From the time Taylor was indicted on December 15, 2016, to the time
the first action in this case was taken on June 14, 2017, when he requested his first mental
evaluation, 182 days had passed. Because the State has the burden of proof and did not
address this period of delay, it will be weighed against the State. See Williams, 305 So. 3d
at 1132 (¶31). “But [Taylor] does not argue nor does the record show anything more than
neglect by the State or trial court. So while this delay weighs against the State, it is not
9 weighted as heavily as an intentional delay.” Id. at 1132-33 (¶35).
¶18. After Taylor was indicted, his initial trial date was set for August 21, 2019. However,
on June 14, 2017, Taylor requested a mental evaluation to be conducted on himself to ensure
that he was fit to stand trial. See Perry v. State, 233 So. 3d 750, 757 (¶15) (Miss. 2017)
(holding that “delay attributable to obtaining a mental evaluation requested by the defense
is not counted against the State” (citing Rowsey v. State, 188 So. 3d 486, 495 (¶26) (Miss.
2015))). The trial court granted this motion. For reasons not caused by either Taylor or the
State, the mental evaluation was not conducted in a timely manner at Whitfield. Therefore,
on March 1, 2018, the trial court amended its order for the evaluation to be completed by Dr.
Smallwood in place of personnel at Whitfield “at the earliest date possible.” The trial court
entered its order on October 4, 2018, finding Taylor competent to stand trial.
¶19. Following Taylor’s first request for a mental evaluation, 477 days passed before the
trial court entered its order finding Taylor competent to stand trial. Because the mental
evaluation was requested by Taylor, this 477-day period of delay is weighed against him.
¶20. After the trial court found Taylor competent, another 319 days passed before any other
action was taken in the case. As previously explained, because the State did not provide
evidence to validate this 319-day delay, it will be weighed slightly against the State.
¶21. On August 19, 2019, the trial court, on its own motion, ordered Taylor to undergo a
second mental evaluation. On August 17, 2020 the trial court judge signed an order finding
Taylor competent to stand trial. This 364-day period of delay was caused by the trial court
and should not weigh against Taylor or the State.
10 ¶22. Well before the trial court entered its order finding Taylor competent, the nation was
facing a state of emergency once the COVID-19 pandemic had been declared. For this
reason, on August 5, 2020, the trial court had continued Taylor’s case to February 2, 2021,
“[d]ue to the health and safety concerns posed by the COVID-19 pandemic.” Two more
continuances were ordered by the trial court due to COVID-19: one on January 14, 2021, and
the other on August 6, 2021.
¶23. This Court recently stated that “the resulting delay from the COVID-19 pandemic is
not weighed against either party.” Martinez v. State, 386 So. 3d 394, 403 (¶12) (Miss. Ct.
App. 2024); see Emergency Administrative Order–2, In re Emergency Order Related to
Coronavirus (COVID-19), No. 2020-AD-00001-SCT (Miss. Mar. 15, 2020) (authorizing
judges “to postpone any jury trials . . . scheduled through May 15, 2020”); see also
Berryman, 337 So. 3d at 1129 (¶44) (“No trials could be held during the next scheduled term
of court in April 2020 because MDOC was not transporting prisoners due to the COVID-19
pandemic.”). Thus, continuances caused by COVID-19 are neutral and weigh more in favor
of the State, instead of against either party. Here, we would not count from the date of the
first continuance order on August 5, 2020, because it overlapped with the period of time
attributable to the trial court for requesting a mental evaluation. Therefore, we would
calculate this period from the day after the trial court entered its second order finding Taylor
competent on August 18, 2020, to September 22, 2021, the next time any other action not
related to COVID-19 occurred. During this period, 400 days passed. Because we have
found that COVID-19 delays are neutral, this delay of 400 days does not weigh against
11 Taylor or the State.
¶24. On September 22, 2021, the trial court held a hearing on Taylor’s motion to dismiss
on the grounds of a speedy trial violation. During this hearing, Taylor requested another
mental evaluation. The mental evaluation was not conducted by Whitfield in a timely matter,
so the trial court entered another order of continuance on February 2, 2022, to allow the
mental evaluation to be completed. The trial court entered its third order finding Taylor
competent on July 11, 2022. By requesting this mental evaluation, Taylor caused another
292-day delay in his case, and this 292-day delay will be weighed against him, not the State.
¶25. Subsequently, the trial court found this case was ripe for trial, and on September 13,
2022, the trial court entered an order setting trial for February 14, 2023, which was the next
available date on the court’s docket. This schedule added another 218-day delay from the
date the trial court deemed Taylor competent to the date his trial was set to begin. Because
this 218-day delay was due to the court’s docket being full, this period of delay would be at
the fault of the court and is not attributable to Taylor or the State.
¶26. The entire delay that Taylor claims occurred (from the time he was arrested to the day
his trial began) is 2,883 days. As broken down above, approximately 501 of those days
should be weighed against the State because the State did not provide evidence as to why
these periods of delay occurred.
¶27. Further, 769 days of the delay are attributable to Taylor. Taylor requested a mental
evaluation two different times, which caused lengthy delays both times. The total 769 days
of delay for these evaluations are weighed solely and heavily against Taylor because by
12 requesting these evaluations, the speedy trial clock was tolled.
¶28. Lastly, the remaining 1,613 days of delay are attributable to neutral reasons or the trial
court. The delays caused by the trial court were either a product of its own request to have
a mental evaluation conducted on Taylor or a product of the COVID-19 pandemic. None of
this 1,613-day period of delay weighs against either Taylor or the State.
¶29. Immediately following trial, Taylor filed another motion seeking an acquittal by
JNOV or a new trial upon remand. In the trial court’s order denying this motion, the trial
court stated:
While the court finds there was an inordinate delay in bringing Mr. Taylor trial in this Cause, with approximately 2883 days passing between the date of his arrest and his eventual trial on February 14, 2023, the court previously found there was no speedy trial violation between the date of Taylor’s arrest and September 22, 2021. After reviewing the chronology in this Cause from that date, the court finds the trial delays or continuances are not attributable to the State, but attributable to continuances due to COVID-19 numbers, waiting for psychiatric evaluation, multiple substitutions of defense counsel which had occurred over time, and his being tried in the September 2022 court term in another case.
¶30. We agree with the trial court that the almost eight-year delay was disproportionately
large; however, we cannot deem this lengthy delay as a violation of Taylor’s right to a speedy
trial because of the totality of the circumstances of the facts at hand. Out of the 2,883 days,
approximately 501 days were attributable to the State, 769 days were attributable to Taylor,
and 1,613 days were attributable to neutral reasons or acts of the court itself. Even though
501 days of the delay can be attributed to the State because it did not give explanations as to
why those periods of delay occurred, this will not weigh against the State as heavily as an
intentional delay because Taylor “does not argue nor does the record show anything more
13 than neglect by the State or trial court.” Williams, 305 So. 3d at 1132-33 (¶35). Nothing in
the record shows that the State made deliberate attempts to hamper Taylor’s defense, which
is why the 501 days are not weighed heavily against the State. On the contrary, Taylor
actively delayed his case even after asserting his right to a speedy trial, which will be
discussed below. Therefore, the 769 days of delay on Taylor’s behalf weigh against him
heavily. The remaining 1,613 days are due to neutral reasons or acts of the court and do not
count against Taylor or the State.
III. Assertion of Right to a Speedy Trial
¶31. The Mississippi Supreme Court has held that “[a]lthough it is the State’s duty to
ensure that the defendant receives a speedy trial, a defendant has some responsibility to assert
this right.” Taylor v. State, 162 So. 3d 780, 785 (¶10) (Miss. 2015) (quoting Bateman, 125
So. 3d at 630 (¶49)). A “failure to demand a speedy trial between . . . arrest and indictment
is ‘critical’” to a speedy-trial analysis. Id. The defendant’s “failure to assert the right will
make it difficult for [him] to prove that he was denied a speedy trial.” Barker, 407 U.S. at
532.
¶32. In Taylor’s appellate brief, he claims to have asserted his right to a speedy trial
multiple times. However, Taylor only truly asserted his right to a speedy trial once, which
was in his motion that was filed on September 9, 2020. Taylor’s letter to the circuit court
clerk and his motion to dismiss for lack of speedy trial both were seeking dismissal based on
an alleged speedy trial violation, not asserting his right to a speedy trial. As our supreme
court has held, a request for dismissal is separate and distinct from an assertion of right. See
14 Franklin v. State, 136 So. 3d 1021, 1035 (¶54) (Miss. 2014).
¶33. Even when Taylor asserted his right to a speedy trial in his September 9, 2020 motion,
eighteen months had already passed since the first order setting a trial date had been entered,
and 1,996 days had passed after his arrest. After asserting his right to a speedy trial, Taylor
requested another mental evaluation, tried to fire his attorneys on three separate occasions
(once on the day before his trial), and twice sought the recusal of the trial judge. Also, “at
the urging of and on the ore tenus motion of defense counsel,” the trial court conducted
another competency hearing on September 22, 2021, and the results prompted the trial court
to enter an order for another mental health evaluation.
¶34. These actions undercut Taylor’s assertions of his speedy trial right because our
supreme court has held “the invocation of the right to a speedy trial is actually a request to
go to trial.” Rowsey, 188 So. 3d at 495 (¶28) (holding that the defendant failed to properly
assert his right to speedy trial when he was unable to go to trial because he was waiting for
the mental evaluation he requested). Here, when Taylor asserted his right to a speedy trial,
he did nothing to further the case to trial. If anything, he delayed the case from going to trial
even more by requesting a subsequent mental evaluation after two had already been
conducted.
¶35. Since the Barker analysis is a balancing test, this third factor weighs against Taylor
because even though Taylor asserted his right to a speedy trial, he further delayed the process
by requesting another mental evaluation, trying to fire his attorneys, and seeking to have the
trial judge recuse.
15 IV. Prejudice
¶36. “To determine whether the delay resulted in actual prejudice, the Court considers three
interests that the right to a speedy trial was meant to protect: ‘(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.’” Taylor v. State, 162 So. 3d 780, 787 (¶16)
(Miss. 2015) (quoting Jenkins v. State, 947 So. 2d 270, 277 (¶21) (Miss. 2006); Barker, 407
U.S. at 532)). “Of these three interests, the last is the most important; and when violated, [it
is] most prejudicial to the defendant.” Collins v. State, 232 So. 3d 739, 746 (¶26) (Miss. Ct.
App. 2017) (quoting Hersick v. State, 904 So. 2d 116, 123 (¶18) (Miss. 2004)).
¶37. “Generally, proof of prejudice entails the loss of evidence, death of witnesses, or
staleness of an investigation.” McCormick v. State, 183 So. 3d 898, 903 (¶21) (Miss. Ct.
App. 2015) (quoting Sharp v. State, 786 So. 2d 372, 381(¶19) (Miss. 2001)). The defendant
“bears the burden of showing actual prejudice, since the defendant is clearly in the best
position to show prejudice under this prong.” Reed v. State, 191 So. 3d 134, 141 (¶19) (Miss.
Ct. App. 2016) (internal quotation marks omitted).
¶38. In the case sub judice, Taylor has not shown any actual prejudice. In his appellate
brief, Taylor claims that the length of the delay being presumptively prejudicial under the
first Barker factor shows actual prejudice under the fourth Barker factor. However, this is
a misapplication of Barker. See Graham, 185 So. 3d at 1005 (¶41) (“[L]et us be clear[:]
when the delay is presumptively prejudicial that does not mean that actual prejudice to the
defendant exists. Rather, actual prejudice is determined at a different point in the Barker
16 analysis.” (quoting Johnson v. State, 68 So. 3d 1239, 1242 (¶7) (Miss. 2011))).
¶39. In Taylor’s September 13, 2021 pro se letter to the circuit court seeking dismissal, all
Taylor claimed was that the delay in this case as well as two other cases he was facing at the
time was “past unjust.” Further, in his motion to dismiss that was filed on February 2, 2023,
Taylor’s only assertion was that the “delay has caused great and irreparable damage to [his]
right to defend himself and to otherwise obtain a fair trial and all other due process.” The
State responded:
[T]he State has been ready and willing to provide a speedy trial to this Defendant upon demand for one, and in fact has given the Defendant in the first available trial term after the demand in another Cause. Now, the State is willing and able to give the Defendant a trial in this Cause and for the second consecutive trial term.
Even after the State filed this response on February 10, 2023, Taylor still did not provide any
specific instances of how he had been prejudiced in the case.
¶40. Undoubtedly, pre-trial detention deprives the accused, who is innocent until proven
guilty, of liberty for an indefinite amount of time. And after an extended period, the
prolonged detention brings about certain collateral consequences. However, here Taylor has
failed to articulate with any degree of specificity how his delay impaired his defense, which
is the most important consideration. Taylor also has not argued that he lost evidence or
witnesses during the delay. Therefore, the final factor of the Barker balancing test weighs
against Taylor.
CONCLUSION
¶41. After reviewing a totality of the circumstances and applying the Barker balancing test,
17 we find that Taylor’s right to a speedy trial was not violated. Thus, we affirm the trial court’s
decision that Taylor’s right to a speedy trial was not violated and affirm Taylor’s conviction
and sentence.
¶42. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., McDONALD, EMFINGER, WEDDLE AND ST. PÉ, JJ., CONCUR. McCARTY, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD AND ST. PÉ, JJ. LAWRENCE, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
McCARTY, J., SPECIALLY CONCURRING:
¶43. In accord with binding precedent from our Supreme Court, I agree with the majority’s
disposition of this case. But the extreme delay presents us with the opportunity to reassess
the unworkable nature of the judicially crafted speedy trial analysis and, instead, return to a
faithful observation of constitution and statute. In doing so, we honor the constitutional
separation of powers between the Judiciary and the Legislature and also restore to
prominence a guaranteed constitutional right.
¶44. Our Legislature enacted a speedy trial law that is as clear as it can be:
Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.
Miss. Code Ann. § 99-17-1 (Rev. 2020) (emphasis added). “[O]ur speedy trial statute is
plain and unambiguous, and it requires that the defendant be tried no later than 270 days
after arraignment unless good cause be shown.” Polk v. State, 205 So. 3d 1157, 1167 (¶44)
(Miss. Ct. App. 2016) (emphasis added) (quoting Perry v. State, 419 So. 2d 194, 198 (Miss.
18 1982)).
¶45. This law provides a precise definition to our more general constitutional rights to a
speedy trial, which guarantee the right in broad terms: “in all prosecutions by indictment or
information,” an accused has the right to “a speedy and public trial by an impartial jury of
the county where the offense was committed.” Miss. Const. art. 3, § 26; see also U.S. Const.
amend. VI.
¶46. Importantly, the 270-day time frame was set by the legislative branch of government,
not our judicial branch. The complicated analyses deployed in recent years are purely
creations of precedent and cannot be found in the plain text of the federal or state
constitutions or Mississippi statutory law. Our laws do not lend themselves to numerous
exceptions or outline how different delays are supposed to be weighed—and against
whom—these concepts are simply nowhere to be found in codified text. In creating these
various tests and measures, our jurisprudence has not only made an unworkable morass of
our constitutional rights, but it has completely hollowed them out. This essentially deletes
them from our constitutions and ignores the plain language of statutory law.
¶47. Our Supreme Court has recently rejected a related test of this nature in post-conviction
relief cases to conform to Legislative prerogative. After years of allowing a judicially crafted
“exception” to the three-year time-bar lawfully enacted by the Legislature, the Supreme
Court overruled the caselaw creating it. Howell v. State, 358 So. 3d 613, 616 (¶12) (Miss.
2023). The Howell Court wrote that “[t]he statute of limitations is a substantive, legislatively
enacted law and not procedural, and our judicial pronouncements regarding how we would
19 apply judicial procedure in the face of claims of fundamental rights should hold no weight.”
Id. at (¶10). For “[c]ourts have a ‘constitutional mandate to faithfully apply the provisions
of constitutionally enacted legislation.’” Id. (quoting Tallahatchie Gen. Hosp. v. Howe, 49
So. 3d 86, 92 (¶17) (Miss. 2010)).
¶48. Critically, the Howell Court ruled that “we are admonished and have clearly in mind
that penal statutes must be strictly construed, and that the court can neither add to nor take
from them, and we cannot by judicial construction, or considerations of expediency, supply
what is palpably omitted from a statute.” Id. Ultimately, Howell determined that “the
Supreme Court of Mississippi cannot lawfully amend or ignore constitutionally sound law
enacted by the Legislature,” and to the extent it had, the Court overruled numerous cases to
the contrary. Id. at (¶12).
¶49. The same conclusion reached in Howell must be applied to our speedy trial
jurisprudence. Just as in Howell, speedy trial jurisprudence has been judicially written and
stands completely opposite to the Legislature’s clear command that trial shall commence
within 270 days, subject to good cause. Applying such a rule to this case would require that
the case be reversed and the appellant be discharged. To do otherwise is to continue to
wallow in judicially crafted exceptions that provide little protection for the rights of those
facing trial and do not defer to the clear and unambiguous rule established by the Legislature.
¶50. A decade ago, former Presiding Justice Dickinson lamented that our Supreme “Court
has an amazing propensity to fashion a new rule each time a defendant appears with a
legitimate speedy-trial claim.” Newell v. State, 175 So. 3d 1260, 1277-78 (¶40) (Miss. 2015)
20 (Dickinson, P.J., dissenting). Unfortunately, the modern state of our jurisprudence highlights
the correctness in his statement, but Howell provides a principled way forward—one that was
strictly followed in the past.
¶51. In 1990, our Supreme Court discharged a defendant who was not timely tried, ruling,
“The right to a speedy trial means what it says.” Flores v. State, 574 So. 2d 1314, 1323
(Miss. 1990). The Flores Court declined to tinker with the plain language of our
constitutions and state statute: “The duty of a defendant to request a trial is less than the duty
on the state to bring the trial forward.” Id. And the Court was unwavering in its commitment
that “[t]he right itself is intricately related to the needs of well ordered society[.]” Id.; see
Klopfer v. North Carolina, 386 U.S. 213, 226 (1967) (holding our Sixth Amendment right
to a speedy trial “is one of the most basic rights preserved by our Constitution”).
¶52. When I was privileged to first join this Court, I protested that “[i]t is certainly true that
‘[c]rowded dockets, the lack of judges or lawyers, and other factors no doubt make some
delays inevitable.’” Giles v. State, 306 So. 3d 830, 840 (¶34) (Miss. Ct. App. 2020)
(McCarty, J., dissenting) (quoting Dickey v. Florida, 398 U.S. 30, 38 (1970)). “Yet because
some delay is inevitable does not mean all delay is permissible.” Id.
¶53. Dissenting in Giles, I reckoned that “we must follow the Legislature’s command that
criminal cases of this type have to be tried within 270 days,” for our duties as judges sworn
to uphold the law means “[w]e should . . . apply the law as it is written.” Id. at 841 (¶37).
I remain committed to that principle today.
¶54. It is time to return to such a well-ordered stance, and in light of the Supreme Court’s
21 deference to the legislative timeline of post-conviction relief in the Howell decision, it is
imperative our Supreme Court revisit its jurisprudence on speedy trial claims.
McDONALD AND ST. PÉ, JJ., JOIN THIS OPINION.