IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-CT-01931-SCT
PHELAN TERRELL GUICE
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 05/04/2004
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOSHUA AARON TURNER
MERRIDA COXWELL
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: FAYE PETERSON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/11/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. Aggrieved by the his conviction for aggravated assault and sentence of twenty years’
imprisonment as a habitual offender, Phelan Terrell Guice appealed to us. This case was
assigned to the Court of Appeals, which affirmed the final judgment of conviction and
sentence entered by the Circuit Court for the First Judicial District of Hinds County. We
thereafter granted Guice’s petition for writ of certiorari. Upon a meticulous review of the
record and the applicable law, we affirm.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. We glean the following facts from the opinion of the Court of Appeals:
On the evening of September 2, 2001, a person came to the Bolles's residence.
Anita Bolles answered the door, and the man at the door asked to speak with
her brother, Clarence "Brian" Bolles, Jr. After hearing the doorbell ring, Brian
proceeded to go answer the door, not knowing that his sister had already
answered it. When Brian reached the door, the visitor pulled out a gun and
began shooting. Brian suffered a gunshot wound to the abdomen, while Anita
escaped unharmed.
Anita Bolles was able to pick out her brother's assailant from a police
photographic line-up. She identified [Phelan Terrell] Guice as the person who
came to their house on the evening of September 2, 2001, and shot her brother.
At trial, Guice testified that he did not shoot Brian. He also testified that he
was at his grandmother's house in Yazoo City on the evening of the incident.
Guice further testified that there were no witnesses who could substantiate his
claim that he was out of town when the incident occurred.
Guice v. State, 2006 Miss. App. LEXIS 72, *2, ¶¶ 3-5 (Miss. Ct. App. 2006).
¶3. On April 9, 2002, Phelan Terrell Guice, hardly a stranger to our criminal courts, was
indicted for the crime of aggravated assault for shooting one Clarence (Brian) Bolles, Jr. in
the stomach with a 9-millimeter handgun. This indictment also charged Guice with being
a habitual offender pursuant to the provisions of Miss. Code Ann. § 99-19-81 (Rev. 2000),
inasmuch as Guice had prior felony convictions in Yazoo County for possession of stolen
property and auto theft. Guice was arraigned on the aggravated assault indictment on
October 30, 2002, and he promptly thereafter received court-appointed counsel. On the long
2
road to trial, there were various motions filed by the State, Guice, through counsel, and
Guice, pro se. As these motions become relevant during the course of our addressing the
relevant issue presented, these motions will be discussed in more detail, but suffice it to state
here that in due course, Guice went to trial, with court-appointed counsel, on the aggravated
assault indictment.
¶4. We present here a summary of the evidence presented in the State’s case-in-chief.
Anita Bolles testified that on the date of the incident, September 2, 2001, she answered the
doorbell to find a person she did not know inquiring about her brother, Clarence Bolles, Jr.
(who was also known as “Brian”). Not knowing that his sister had already answered the
door, Brian appeared, whereupon the stranger asked “Are you Brian,” and before Brian could
respond, the stranger “pulled out a gun and started shooting,” hitting Brian in the abdomen.
Later, while at the hospital with her brother, Anita stated to police detectives that, while she
did not know the name of the man who shot her brother, she would definitely be able to
identify the shooter. A couple of days later, when shown a photographic lineup with six
photographs of different men, Anita immediately picked out the photograph of Phelan Terrell
Guice as being the person who shot her brother. She likewise identified Guice at trial as the
shooter. After pointing out Guice, the prosecutor asked Anita, “Are you absolutely sure
that’s the man you saw shoot your brother on September 2 nd , 2001?” Anita responded, “Yes,
I am.”
¶5. Jackson police officer Gregory Robinson, who was one of the officers who
investigated this incident, stated that when he arrived at the Bolles’ home, the victim had
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already left, but the victim’s sister (Anita) was still on the scene. Anita described the shooter
to Officer Robinson as a “[b]lack male, medium complexion, about 160 pounds.” Officer
Robinson also recovered shell casings at the scene, and stated that he noticed blood and a
bullet hole in the screen door.
¶6. Bryon McIntire, a nine-year employee of the Mississippi Crime Laboratory, was
tendered and accepted, without objection, as an expert “in the field of firearms and tool
marks.” McIntire identified two projectiles offered into evidence as having “class
characteristics consistent with a .38 caliber and 9 millimeter caliber.”
¶7. William (Will) Gardner, a 25-year JPD employee who worked in the violent crimes
division, received a call to travel to the University of Mississippi Medical Center. Upon
arrival at the hospital, Officer Gardner talked with Anita Bolles, and then later, made a
second trip to the hospital after generating a photograph lineup, which included Guice’s
photograph. In putting together the photo lineup, Officer Gardner attempted to obtain six
photographs of individuals with similar features, such “as facial hair, facial features, anything
like that.” According to Officer Gardner, when shown the photo lineup, Anita, without any
hesitation, picked out Guice as the person who shot her brother.
¶8. Rozerrio Camel, a 12-year JPD employee who also worked in the violent crimes
division, traveled to the hospital and retrieved projectile fragments which had been taken
from the body of the victim.
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¶9. Lynn Goodwin, a 7-year JPD employee, worked as a crime scene investigator.
Officer Goodwin collected evidence at the scene, including shell casings, which she
identified as a Winchester 9-millimeter Luger shell.
¶10. The victim, Clarence (Brian) Bolles, Jr., testified that he did not get a good look at the
person who shot him in the abdomen, and that when the person started shooting him, he
pushed his sister, Anita, out of the way and slammed the door, and after the door was closed,
two more shots came through the door. Brian also informed the jury of his extensive injuries
suffered as a result of the gunshot wound.
¶11. After the State rested and the defendant’s motion for a directed verdict was denied,
Guice was the only witness who testified in the defendant’s case-in-chief. Guice offered up
an alibi defense, claiming to have been at his grandmother’s house in Yazoo City. Guice
expressly denied shooting Brian Bolles. On cross-examination by the State, Guice again
stated that on the day and evening of the shooting on September 2nd, which was a Sunday,
he was at his grandmother’s house, but his grandmother was not present. Guice testified that
on Sundays, his grandmother was ordinarily at church from between 8:00 or 9:00 in the
morning, until around 10:30 at night. Even though Guice stated that he had been to church
with his grandmother on prior occasions, he did not know the name of the church she
attended. Guice stated that his aunt and uncle also lived with his grandmother, but they were
likewise not at the house while Guice was there on that day. Guice also testified that he had
a cousin who knew he was in Yazoo City on that day. Interestingly, Guice did not subpoena
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his grandmother, aunt, uncle, or cousin to testify. Guice explained that he did not subpoena
any of these relatives because they did not personally know he was in Yazoo City that day.
¶12. After only fifty-five minutes of deliberations, Guice was found guilty by the jury, and,
in due course, the trial judge sentenced Guice to twenty years’ imprisonment as a habitual
offender, pursuant to Miss. Code Ann. § 99-19-81 (Rev. 2000). Guice timely perfected his
appeal to this Court, and this case was assigned to the Court of Appeals.
PROCEEDINGS BEFORE THE COURT OF APPEALS
¶13. Before the Court of Appeals, Guice, with appellate counsel different than his trial
counsel, claimed trial court error in (1) refusing to dismiss his case for violations of his
federal and state constitutional rights to a speedy trial, as well as for violation of his statutory
right to a speedy trial; (2) refusing to allow Guice to submit an alternate theory of his case
to the jury; and, (3) refusing to allow Guice’s trial counsel to cross-examine Anita Bolles on
this alternate theory that somehow Mario Jones, Anita’s ex-boyfriend and the father of her
child, had supposedly made threats to the Bolles family, and may have somehow been
involved in the shooting of Brian. Guice, through his appellate counsel, likewise claimed on
appeal that his trial counsel rendered ineffective assistance by (1) failing to assert his federal
and state constitutional and statutory rights to a speedy trial; and, (2) failing to investigate
the State’s witnesses before trial.
¶14. After addressing these issues, the Court of Appeals, in a unanimous decision (two
judges not participating), found these issues to be without merit and thus affirmed the trial
court judgment of conviction and sentence. After the Court of Appeals denied his motion for
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rehearing, Guice filed his petition for writ of certiorari, asserting grounds for this Court’s
review of the Court of Appeals’ decision similar to those asserted by way of assignments of
error for consideration by the Court of Appeals.
DISCUSSION
¶15. We have already set out the issues addressed by the Court of Appeals, and we have
likewise stated that virtually the same issues were asserted by Guice in his cert petition.1
While we have the authority to address all issues raised before the Court of Appeals and
addressed by that court, we likewise unquestionably have the authority to “limit the question
on review.” We do so today. While the issues addressed by the Court of Appeals could have
been addressed in a myriad of ways, we do not disagree with the conclusions reached, nor
do we find that the Court of Appeals’ decision in this case conflicts with any prior decision
of the Court of Appeals or this Court, or fails to consider and address a controlling
constitutional provision. With this having been said we now restate for clarity in discussion
the one issue we have chosen to address upon our grant of certiorari in this case.
1
In his petition for writ of certiorari, Guice, through counsel, asserted that he was
denied (1) his sixth amendment right to a speedy trial under both the federal and state
constitutions, as well as his statutory right to a speedy trial pursuant to Miss. Code Ann.
§ 99-17-1 (Rev. 2000); (2) his sixth amendment right to cross-examination as well as his
right to present an alternate theory of the case; and, (3) effective assistance of counsel as
guaranteed under our federal and state constitutions.
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WHETHER THE TRIAL COURT ERRED IN FAILING TO DISMISS
GUICE’S INDICTMENT FOR VIOLATION OF MISS. CODE ANN.
SECTION 99-17-1.
¶16. Guice was arraigned on October 30, 2002, and went to trial on May 3, 2004, some five
hundred fifty-one (551) days after the date of his arraignment.2 Our speedy trial statute,
Miss. Code Ann. § 99-17-1 (Rev. 2000), states:
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.
¶17. With this statute squarely before us, we must return to the procedural history of this
case. After Guice received court appointed counsel, his counsel forthwith filed a motion for
discovery. On April 22, 2003, Guice filed a pro se motion requesting public records. Of
significant import, Guice, on February 5, 2004, filed a pro se motion to dismiss the
aggravated assault indictment due to a failure to provide a “fast and speedy trial.” On April
20, 2004, Guice, through his court-appointed counsel, filed a motion in limine seeking
exclusion of any evidence concerning Anita Bolles’s pretrial identification of Guice, as well
as Bolles’s in-court identification of Guice. On the next day, Guice, through counsel, filed
a second motion in limine seeking a prohibition of the State’s impeachment of Guice with
his prior felony convictions in the event Guice testified at trial. On April 28, 2004, the State
filed a motion in limine seeking exclusion of any evidence concerning the criminal history
of the victim, Clarence (Brian) Bolles, Jr. The trial court conducted a hearing on April 28,
2
2004 was a leap year; thus, there were 29 days in February.
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2004, concerning Guice’s motion to exclude Anita Bolles’s identification testimony, and on
April 29, 2004, the trial court entered an order denying Guice’s motion in limine concerning
Bolles’s identification testimony.
¶18. On April 30, 2004, three days before the scheduled trial date, Guice’s court-appointed
counsel, an assistant public defender, filed a motion to withdraw as Guice’s attorney. In this
motion, the assistant public defender asserted, inter alia:
That on April 29, 2004, the Defendant was indicated [sic] he was unsatisfied
with counsel and that he wanted another counsel.
That on April 29, 2004 the Defendant also indicated that he did not want any
evidence brought out, direct or by cross-examination, that Mario Jones was the
assailant rather than Defendant. There is testimony in the Discovery of
numerous threats by Mario Jones to the victim’s family and some questions as
to identity. The Defendant has instructed counsel not to use this evidence,
which counsel contends is crucial to the Defendant’s defense.
Additionally, the Defendant refuses to cooperate with counsel in the
preparation of trial, even in the event the Court denies this motion.
¶19. With this backdrop, it is now critical to set out in detail what occurred when Guice’s
case was called up for trial on May 3, 2004. Although the following quote from the record
is lengthy, we deem it critical to a complete understanding of what occurred before the trial
judge concerning the statutory speedy trial issue. Here is what occurred before Judge Kidd
on the day of trial (for the sake of clarity, we mention here that “Mr. Alexander” is the
prosecutor, and “Ms. Harris” and “Mr. Knapp” are the court-appointed attorneys representing
Guice):
THE COURT: We have two cases set today. The first is State versus Phelan
Guice. A motion to withdraw has been filed in that matter and a motion in
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limine has been filed by the State. Let me go ahead and hear both of those
matters.
MR. ALEXANDER: Your Honor, I would think that in the best interest of
judicial economy we should hear the motion to withdraw first because if
they're allowed to withdraw, the other two matters will probably be academic.
THE COURT: We'll hear the motion to withdraw.
MR. KNAPP: Your Honor, if it please the Court. I, along with Greta Harris,
represent the defendant, Mr. Guice, and I am relatively new to the case but I
am personally aware of the facts that underlie my motion to withdraw.
Ms. Harris was fired, if you will, by the Defendant and, as I understand, the
reasons for that was the Defendant was unhappy with Ms. Harris' conduct
regarding the pretrial motions that were heard. I would ask that at some point
relevant and convenient to the Court that the Defendant himself address this
issue.
We filed the motion to withdraw to comply with the rules of professional
conduct which say when we're terminated we are obligated to move to
withdraw.
THE COURT: I received the motion to withdraw. It was filed on April 30th
and I received it this morning. When did the defendant terminate counsel?
MR. KNAPP: Your Honor, may I ask Ms. Harris?
THE COURT: Ms. Harris?
MS. HARRIS: Your Honor, I went over to speak with [Guice] on April 29th
and he informed me at that time that he was not satisfied with the way things
were conducted at the motion in limine hearings. And just to be clear that I
had heard what he had said, I asked Mr. Knapp to go over with me the
following day so that he could in fact hear from Mr. Guice.
THE COURT: Okay.
MR. KNAPP: And, Your Honor, we filed this motion pursuant to the rules of
professional conduct and we would request that the Court allow the Defendant
to express his own reasons for terminating our services at the proper time.
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More problematic, Your Honor, are Counts 2 and 3 and these are the lawyers'
objections and motions. The defendant has instructed us not to use any
reference or defense that someone else may have committed this crime. Some
of this evidence may very well be hearsay and some may not be, but as you
can imagine, it's extremely important and it is primary to the case that if the
Defendant says he didn't do it any evidence of -- specifically threats by another
party to imply that the other party may have done this crime is crucial to our
defense. However, we've been instructed not to pursue that line of questioning
or presentation of evidence.
Additionally -- and I speak first-hand at this point in time -- I did indeed on the
30th go over with Ms. Harris and talked to the Defendant myself and we have
had no cooperation and were told that we would not have any cooperation
from the Defendant.
THE COURT: Cooperation to do what?
MR. KNAPP: To help in the trial because I told the Defendant we may lose
these motions and I said if we lose these motions you've got us and we need
to get ready for testimony and everything else. And the Defendant at that point
in time said he's not going to help us with anything and doesn't want to do
anything except to get us off the case.
Your Honor, I speak to the Court from a few years of experience. I've had
unhappy clients before and I've had them file motions to terminate before, even
on the day of trial, but I've never had them just completely refuse to talk to me.
Usually they talk my ear off.
In the event the Court denies our motion -- and I tried to prepare him -- I told
him that the Court has authority to deny this motion and we need to be ready
anyway. He was not going to prepare for his testimony or anything else.
Of course, Ms. Harris and I have done what we can to prepare for trial today
but we are severely undercut by not being able to bring up the most viable
defense and this lack of cooperation is not exaggerated. I got mostly nods and
not many of them. The only authority I have, Your Honor, are the Rules of
Professional Conduct and on this particular rule it says may withdraw, whereas
the first rule I cited says shall withdraw.
THE COURT: Shall withdraw for what reason?
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MR. KNAPP: If a client terminates you, you shall withdraw. But what I'm
arguing now is a subparagraph of 1.16, Your Honor, that says counsel may
withdraw, perhaps an important distinction. And I rely on the "may withdraw"
under Section B-3. A client insists on pursuing an objective that the lawyers
considers repugnant or imprudent.
Well, I don't consider it repugnant, Your Honor, but there is no doubt that this
is not a careful, reasoned decision on the part of the client. I know what
imprudent means but I took the liberty of looking it up in the dictionary to
make sure that I wasn't getting old and had forgotten it, and it says showing
good judgment [sic] in handling practical matters. I do not believe the
Defendant understands the repercussions of the instructions he's given to us
and his refusal to help us.
And there's a catch-all under that Rule 1.16 for other good cause and I have no
further argument on that point, but I would ask again that the Court allow the
client to testify as to why he wanted to terminate us because that's the client's
doing. But we do join in the motion as we are required to under Rule 1.16. I
have no further argument but the second two allegations are indeed
problematic, Your Honor, to us giving the Defendant a fair trial.
THE COURT: Thank you. Mr. Guice.
MR. ALEXANDER: Your Honor, may we respond prior to Mr. Guice's
testimony?
THE COURT: You may.
MR. ALEXANDER: First of all, Your Honor, the State received this motion
on April the 30th at approximately 2:30 on Friday. We did first receive a
verbal notification at about 10 o'clock that morning from Ms. Harris. She did
call me and tell me that she anticipated filing a motion to withdraw.
Today, Mr. Knapp, who told the Court that he just became affiliated with the
case very recently but he is familiar with the issue of withdrawing as counsel,
he states the reason as the Defendant was unhappy with the performance of his
attorney during the pretrial motions. That is not mentioned per se in the
motion that was filed with the Court.
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What is mentioned per se as the disagreements was that the Defendant has a
problem with implicating Mario Jones as the possible assailant and also a
problem with them even mentioning Mario Jones at all.
The reason that is important, Your Honor, is that the State has a question as to
whether or not those threats made by Mario Jones are relevant at all. If the
Court will recall, last week we had a motion in limine that was brought on by
the defense and during that motion in limine our witness, Miss Bolles, testified
and there was a question asked of Miss Bolles regarding threats that were
made at the daycare center and the State objected as to relevance. The Court
asked the defense what was the relevance and the defense, Ms. Harris, after
attempting to come up with some relevance, then stated: I'll withdraw that
question, Your Honor.
It's the State's assertion, Your Honor, that the threats made, if they were made,
by Mr. Mario Jones are, first of all, hearsay and there is no hearsay exception
that would allow that in because he's not a party to this action.
Secondly, it's irrelevant. The only thing that's relevant is on the day of this
crime did Phelan Guice go to the home of the victim and shoot him.
Attempting to bring in the name of a third party or showing that some other
person threatened the victim or the victim's sister is not relevant to this case.
If the State were trying to prove motive and brought that in, then it would
become relevant. But as the Court knows and the defense knows, the State
does not have to show motive. The only thing we have to show is that he did
shoot the victim on that date in the First Judicial District of Hinds County.
It's our argument that based upon their motion in which the Defendant says
that he's not allowing them to bring up or to implicate Mario Jones, it's our
assertion that Mr. Guice is following the rules of evidence because that
information is not relevant. All that would serve to do is to muddy the water
and confuse the jury. They have the duty to defend their client but their
defense should be that he did not shoot him. I don't know how but that's their
job. But they can't do it by bringing irrelevant evidence or hearsay evidence.
The reason that's important, Your Honor, is because if in fact the State is
correct on this assumption on the evidence about Mario Jones and what he did
or didn't say, if that is deemed irrelevant, then the entire assertion in their
motion is moot. Mr. Guice is only saying that they can't bring up stuff, for
whatever reason he has, but he's only saying that they can't bring in evidence
that's not relevant to this case.
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THE COURT: Thank you, counsel. Mr. Guice.
MR. KNAPP: Your Honor, may it please the Court. I can address the issues
raised by Mr. Alexander if you would like.
THE COURT: You will be given an opportunity to do that. Mr. Guice, a
motion has been filed to withdraw. This Court previously appointed Ms.
Harris to represent you when you advised the Court that you could not afford
to hire an attorney. The Court appointed Ms. Harris since you had a
constitutional right to have an attorney if you could not afford one. It is now
the Court's understanding that you wish to terminate Ms. Harris' services. Is
that correct.
MR. GUICE: Yes, Your Honor.
THE COURT: Why?
MR. GUICE: Well, the main reason is a conflict of interest, Your Honor. I
have asked Ms. Harris several times to raise arguments on motions that I have
filed, for one, the right to a speedy trial which was violated. I asked her to
raise that. She did not raise it. And, Your Honor –
THE COURT: You've asked for a speedy trial. I've reviewed that in the file
and you're going to get a speedy trial today. You're going to get a trial, so let's
move on.
MR. GUICE: Okay, Your Honor. She did not raise that argument. Then
another thing, I do not feel like my lawyers have been loyal to me either. I
have been asked by my lawyers several times to enter a plea and if I didn't
commit a shooting, she wants to know –
THE COURT: Well, your lawyer has an obligation to discuss any and all plea
offers with you so I assume she was doing that. She has an obligation to have
those discussions with you. If that offer has been made –
MS. HARRIS: Excuse me, Your Honor. I believe there are some potential
witnesses in the courtroom.
THE COURT: Okay. If any witnesses in this case are in the courtroom, you
need to step to the witness room. Go ahead.
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MR. GUICE: Your Honor, my reason for saying this, like I said, I don't think
she's been loyal to me. She's supposed to be defending me or helping me to
defend myself and if she's to help me defend myself, why is she asking me if
we need to accept a plea or anything like that. So I don't feel like she's being
loyal to me.
And, as I said, the conflict of interest goes to another thing; not just by the
motion being filed for the violation of my rights to a speedy trial. The Lyman
(phonetic) motion, or whatever it was that was filed, I don't think it should
have been filed and what she was explaining to me, Your Honor, was that my
cousin Mario -- to make him look as an enemy in this case. Now, if we were
to bring up Mario in this case, it would be to my betterment for him to explain
why would the Court suggest that I had something to do with the crime that
was committed.
THE COURT: Do you have anything else?
MR. GUICE: I just wanted to talk to you -- I'm so nervous -- I just wanted to
talk to you, Judge Kidd, about me and my lawyer have a conflict of interest
and I do not feel she's been loyal to me.
THE COURT: So who do you intend to hire to represent you or do you intend
to represent yourself?
MR. GUICE: Your Honor, I do not plan on representing myself and at this
time my family is working to come up with the money to provide me with a
lawyer and, if not, then I assume –
THE COURT: You've had two years to hire a lawyer and you've not done
so and you've filed motions asking this Court to dismiss for speedy trial. So
certainly you're not asking the Court to delay the trial from today's date, are
you, in light of the fact that you want your day in court, you want your
speedy trial.
MR. GUICE: Your Honor, the thing about the speedy trial, I was not asking
for a speedy trial. I was asking for my charges to be dismissed on the
grounds of a violation of a speedy trial.
THE COURT: Well, I'm denying that. But in light of the fact that you filed a
motion to dismiss for lack of speedy trial, I assumed you wanted a speedy trial,
didn't you?
15
MR. GUICE: Yes, I did.
THE COURT: Well, I'm going to give you one today. You're going to get
your day in court which you are constitutionally afforded.
You have certain rights for you to come to court and to defend yourself and I'm
going to go ahead and give you your day in court today at one. Do you
understand?
MR. GUICE: Your Honor, will I have to go to court with Ms. Harris
representing me?
THE COURT: You will have to go to court with Ms. Harris representing you.
The motion to withdraw is denied. Ms. Harris and Mr. Knapp will represent
you at trial because you're not telling this Court that you have anyone else at
one o'clock to represent you, do you?
MR. GUICE: At the time, I do not.
THE COURT: Do you wish to proceed and represent yourself?
MR. GUICE: No.
THE COURT: Ms. Harris and Mr. Knapp will be your attorneys. Let me hear
the motion in limine.
(emphasis added).
¶20. When the record is read in its totality, it is obvious that even as of the day of his trial,
Guice did not want a speedy trial, and in fact, on his trial date, according to Guice, his family
was still working to secure retained counsel for him. As Guice so candidly stated to Judge
Kidd, Guice did not want a speedy trial, he wanted the charges against him “dismissed on the
grounds of a violation of a speedy trial.” Human nature being what it is, anyone, when
confronted with an unpleasant situation, would hope that “it” would simply go away. Many
a defendant charged with a crime has no doubt, “hoped against hope” that a criminal
16
indictment would somehow evaporate in thin air so that he/she would not have to face a jury.
Guice was not so much aggrieved by the fact that he had been deprived of a trial; instead, he
was more aggrieved by the fact that Judge Kidd would not dismiss his case for supposedly
violating the speedy trial statute.
¶21. Both our federal and state constitutions provide that an accused enjoys the right to a
speedy trial. The Sixth Amendment to the United States Constitution states, inter alia, that
“the accused shall enjoy the right to a speedy and public trial.” U.S. Const. amend. VI. Our
state constitution states, inter alia, “the accused shall have a right to . . . a speedy and public
trial.” Miss. Const. art. 3, § 26 (1890). When one reads these federal and state constitutional
provisions, there can be absolutely no question that the accused in a criminal proceeding has
a constitutional right to a speedy trial. However, Guice requests that we reverse his
conviction and discharge him, not only for the violation of a federal or state constitutional
right, but also for a perceived violation of our speedy trial statute. Again, our speedy trial
statute, Miss. Code Ann. § 99-17-1 (Rev. 2000), states:
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.
Contrary to our federal and state constitutions, which undeniably afford an accused the right
to a speedy trial, we find no such right afforded to an accused under our speedy trial statute.
The statute simply states that “all offenses for which indictments are presented” shall be tried
within 270 days after “the accused” is arraigned.
17
¶22. It is argued that absent a showing of good cause and a continuance duly granted by
the trial court, the statute provides for a per se discharge of a defendant. However, we have
to ask how a violation of a statute could bring about such a drastic result when a violation of
a constitutional provision does not. If an accused claims a denial of a speedy trial under our
federal constitution, the defendant’s case is not automatically dismissed simply because a
constitutional violation may be shown. Instead, the trial court, and ultimately the appellate
court, must conduct the familiar balancing test under Barker v. Wingo, 407 U.S. 514, 92
S.Ct. 2182, 33 L.Ed.2d 101 (1972):
A balancing test necessarily compels courts to approach speedy trial cases on
an ad hoc basis. We can do little more than identify some of the factors which
courts should assess in determining whether a particular defendant has been
deprived of his right. Though some might express them in different ways, we
identify four such factors: Length of delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to the defendant.
407 U.S. at 530. In Barker the United States Supreme Court also observed:
A second difference between the right to speedy trial and the accused's other
constitutional rights is that deprivation of the right may work to the accused's
advantage. Delay is not an uncommon defense tactic. As the time between the
commission of the crime and trial lengthens, witnesses may become
unavailable or their memories may fade. If the witnesses support the
prosecution, its case will be weakened, sometimes seriously so. And it is the
prosecution which carries the burden of proof. Thus, unlike the right to counsel
or the right to be free from compelled self-incrimination, deprivation of the
right to speedy trial does not per se prejudice the accused's ability to defend
himself.
Id. at 521.
¶23. We are convinced that Justice Roy Noble Lee got it right in his dissent in Turner v.
State, 383 So.2d 489 (Miss. 1980), when he stated that the statute did not mandate “a
18
discharge of the accused unless the statute is clearly violated and the accused has sustained
prejudice by reason thereof.” Id. at 491 (Lee, R. N., J., dissenting) (emphasis added). Justice
Lee went further and correctly opined:
I think that the provisions of the Federal and State constitutions and of Section
99-17-1 only require that an accused be discharged in denying him a speedy
trial which results in prejudice and in the denial of a fair trial to him. Except
for those reasons, I do not think an accused should be discharged and I do not
think the legislature intended otherwise.
Id. at 492. Sixteen years later, in Walton v. State, 678 So.2d 645 (Miss. 1996), this Court
adopted Justice Lee’s reasoning and, in the end, concluded:
There is substantial evidence of the congested trial docket in Marshall County
which would support the trial court’s “good cause” finding. Walton waived
his right to complain about not being tried within 270 days, because he neither
requested nor asserted his right to a speedy trial or objected to a delay and
prejudice has not been shown by Walton.
Id. at 650.
¶24. Delving a little more into the facts of Walton, the defendant was put to trial 370-days
after arraignment, which was 100-days beyond the time limit provided by the statute;
however, until the day before trial commenced, the defendant had never demanded his right
to a speedy trial under the statute, nor moved to dismiss for failure to provide a statutory
speedy trial. Although we cited several reasons for affirming the trial court’s refusal to
dismiss under the speedy trial statute, we stated, inter alia:
Walton never raised the speedy trial issue within the time frame prescribed by
the statute. Walton never filed a demand for speedy trial until November 14,
1989, the day his case was set for trial. A one-day continuance was given the
State to secure the attendance and testimony of Charles Moore, a material
State's witness. Trial was conducted the very next day, November 15, 1989.
19
The very first time the State was called upon to make a showing of "good
cause" was in their response to the Motion for New Trial. The State promptly
filed a report of the enormous criminal caseload handled during the applicable
terms of the Marshall County Circuit Court, and as previously noted, the trial
judge accepted the congested trial docket as "good cause" shown. Should
Walton, out on bond this entire period of time, sitting idly by without filing a
speedy trial demand until the day of trial, be allowed to "sandbag" the trial
court? We do not believe this is what the legislature contemplated under § 99-
17-l, nor what this Court intended either.
¶25. This Court in State v. Davis, 382 So. 2d 1095, 1098 (Miss. 1980) stated:
In 57 A.L.R. 2d 303, 306, Waiver or Loss of Accused Right to Speedy Trial
(1958), appears the following:
A majority of the cases hold that by failing to demand a trial, or by failing to
make some effort to procure a speedier trial than that actually accorded to him
by the state, accused waives his right to trial within the period prescribed by
the statute, this being particularly true when accused is on bail. And it has been
expressly pointed out that a failure to demand trial within the period prescribed
by the statute will defeat a motion for discharge even though the statute does
not expressly make such demand a requirement. And in the absence of an
affirmative request or demand for trial it will be presumed that defendant
acquiesced in the delay.
678 So. 2d at 649-50.
¶26. In considering what we said in Walton, we return to the relevant facts of today’s case.
On February 5, 2004, some four hundred sixty three (463) days after arraignment, and eighty-
eight days before his trial commenced, Guice for the first time “complained” about his lack
of a speedy trial when he filed his pro se motion to dismiss for failure to provide a speedy
trial. We must remember that, as correctly pointed out by the Court of Appeals in today’s
case, “a demand for dismissal for violation of the right to a speedy trial is not the equivalent
of a demand for a speedy trial.” Guice, 2006 Miss. App. LEXIS 72, *7, ¶13 (citing Perry
20
v. State, 637 So.2d 871, 875 (Miss. 1994)). While we readily acknowledge that defendants
have no obligation to put themselves to trial, and that the State no doubt is shouldered with
the responsibility of bringing defendants to trial after indictment, a defendant does have some
responsibility in asserting the right to a speedy trial. Taylor v. State, 672 So.2d 1246, 1261
(Miss. 1996) (citing Wiley v. State, 582 So.2d 1008, 1012 (Miss. 1991); Flores v. State, 574
So.2d 1314, 1323 (Miss. 1990)).3
¶27. Analogous to today’s case is this Court’s decision in Jones v. State, 776 So.2d 643
(Miss. 2000). In Jones, the defendant, in his appellate brief, set out a time line from the date
of arraignment until his trial date, and asserted that there was a passage of time of nine
hundred seventy-five (975) days, with 709 days being classified by the defendant as the total
days of “non-defense delay.” Id. at 649. However, the only information actually revealed
in the record (as opposed to the appellate briefs), was certain trial court clerk docket sheet
information that continuances were granted on certain dates. Id. We noted that this general
information on the clerk’s docket sheet did not reveal the length of the continuances or who
requested the continuances, nor did the docket sheet reveal any motions for continuance or
orders of continuance. Id. With this in mind, we stated:
3
While Taylor, Perry, Wiley and Flores all discussed the constitutional speedy trial
issue in weighing the Barker factors, we conclude that “the demand for dismissal for not
providing a speedy trial vs. the demand for a speedy trial” distinction is applicable to our
discussion of the statutory speedy trial issue. In other words, whether the discussion of an
issue concerning denial of a speedy trial is focused on a constitutional violation or a statutory
violation, we see a difference in a defendant demanding a speedy trial as opposed to
demanding a dismissal for failure to provide a speedy trial.
21
This Court has repeatedly held that “[we] will not consider matters which are
outside the record and must confine [ourselves] to what actually does appear
in the record." Medina v. State, 688 So. 2d 727, 732 (Miss. 1996) (citing
Robinson v. State, 662 So. 2d 1100, 1104 (Miss. 1995). "We can not decide
an issue based on assertions in the briefs alone; rather, issues must be proven
by the record." Medina v. State, 688 So. 2d at 732. Furthermore, Jones has
failed to show any prejudice which might have resulted from the delay. See
Walton v. State, 678 So. 2d 645, 650 (Miss. 1996). Without such information,
we are unable to find a constitutional or statutory violation of the right to a
speedy trial. Therefore, we decline to address this issue.
Jones, 776 So.2d at 649.
¶28. We note that in Jones, we once again stated, consistent with Walton, that in raising
statutory speedy trial issues, defendants must attempt to show any resulting prejudice due to
the delay in trial. However, on the other hand, contrary to Jones, we have proceeded today
to address the merits of this issue in order to make it abundantly clear that while the State
shoulders the burden of putting defendants to trial, on the other hand, defendants, while
endowed with numerous constitutional and statutory rights, cannot in certain situations
supinely wait to be impaled with all of these rights. As we stated in Walton, a defendant may
effectively waive his right to complain of not being tried within the 270-day period set out
in Miss. Code Ann. § 99-17-1, when the defendant does not request or assert his right to a
speedy trial or object to a delay, especially when the defendant fails to show any prejudice
in the failure to be tried within the statutory 270-day period. Walton, 678 So.2d at 650. To
this day, Guice has yet to assert his right to a speedy trial, and it was not until 463 days after
his arraignment that Guice, for the first time via a motion to dismiss, complained of not being
put to trial timely. In fact, even on his trial date, which was 551 days after his arraignment,
22
Guice told Judge Kidd that he was not asking for a speedy trial, but he “was asking for my
charges to be dismissed on the grounds of a violation of a speedy trial.”
¶29. If we were to dismiss the indictment against Guice on the record in today’s case, we
would, in one fell swoop, overrule a line of cases by declaring that Guice, a man who most
assuredly did not want a speedy trial, has the inalienable right to have his case dismissed
because the State, nor the trial court, explained the reason for the delay in his being put to
trial.
¶30. We encourage our trial judges, when confronted with constitutional and/or statutory
speedy trial issues, to make a detailed record on the procedural history of the case under
discussion, such as date of arrest, date of arraignment, eventual trial date, reasons for delay,
and the like. This is no doubt of great benefit to the appellate court, whether it be the Court
of Appeals or the Supreme Court. Without question, it would have helped in this case. For
the reasons already stated, we see no reason to engage in speculation as to what caused the
delays in today’s case, but a fair reading of the record in this case certainly creates fairly
strong inferences that at least part of the delay was caused by Guice’s obstinate refusal to
cooperate with his court-appointed attorneys. As one of Guice’s attorneys stated to Judge
Kidd, he had dealt with unhappy clients (defendants) before, “but I’ve never had them just
completely refuse to talk to me. Usually they talk my ear off.” In the end, Guice would not
even talk to his lawyers. One problem was that, rightly or wrongly, Guice’s court-appointed
counsel wanted to drag Guice’s cousin, Mario Jones, into the case in an effort to divert
attention away from Guice and on Jones. In other words, defense counsel wanted to assert
23
that Jones was the assailant and not Guice. However, Guice did not agree with the defense
theory, plus Guice felt his court-appointed attorneys were selling him out by talking to him
about a possible plea agreement. Again, even as late as the day of trial, Guice unequivocally
told Judge Kidd that he was not asking for a speedy trial and that his family was “working
to come up with the money to provide me with a lawyer.”
¶31. While we find that there was a violation of the speedy trial statute, the trial court did
not err in refusing to dismiss Guice’s indictment for this statutory violation, nor did the Court
of Appeals commit error in affirming the trial court on this issue.
CONCLUSION
¶32. Thus, for the reasons stated, we affirm the judgments of the Court of Appeals and the
trial court.
¶33. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.
CONVICTION OF AGGRAVATED ASSAULT WITH A WEAPON AND SENTENCE
OF TWENTY (20) YEARS, AS AN HABITUAL OFFENDER, WITHOUT PAROLE,
PROBATION, REDUCTION OR SUSPENSION OF SENTENCE, IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND RANDOLPH, JJ.,
CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
BY GRAVES AND DICKINSON, JJ.
DIAZ, JUSTICE, DISSENTING:
¶34. I am compelled to dissent because the majority ignores the unambiguous
pronouncement of our Legislature, entangles state and federal law, and ignores the binding
precedent of the United States Supreme Court. This has resulted in a miscarriage of justice
for not only Phelan Terrell Guice, but all Mississippians. This case presents a question
24
which we have addressed many times before: at what point is the statute providing that
criminal defendants be tried within 270 days after arraignment violated? Because we should
return to a faithful interpretation of the statute, and because the right to a speedy trial cannot
be waived through inaction, the judgments of the circuit court and the Court of Appeals
should be reversed.
¶35. Although the majority spends a great deal of time reciting the facts underlying Mr.
Guice’s arrest and ultimate conviction, the issue of compliance with the 270-day,
legislatively-mandated time frame is dispositive; the relevant facts are only those relating to
his unlawful and unconstitutional deprivation of a speedy trial. Before analyzing the case
at hand, a review of the right to a speedy trial is necessary to clarify the majority’s confusion
of the law.
I. The Speedy Trial.
¶36. In Mississippi, the right to a speedy trial is guaranteed under the authority of both the
federal and state constitutions. The United States Constitution mandates that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”
U.S. Const. amend. VI. The Mississippi Constitution similarly requires that “[i]n all
prosecutions by indictment or information, a speedy and public trial by an impartial jury of
the county where the offense was committed” be granted a criminal defendant. Miss. Const.
of 1890, Art. 3, § 26.
25
The Constitutional Right to a Speedy Trial under the Sixth Amendment.
¶37. In Klopfer v. North Carolina, the United States Supreme Court pronounced the right
to a speedy trial “fundamental,” and that it applied to the states via the Fourteenth
Amendment. 386 U.S. 213, 222, 87 S.Ct. 988, 18 L.Ed. 2d 1 (1967). The Court traced the
origin of a speedy trial to the Assize of Clarendon, an act crafted during the rule of King
Henry II in 1166, and to Magna Carta, that English document of freedoms adopted in 1215.
Id. at 223-24.
¶38. Yet what exactly constituted a “speedy” trial under the federal constitution was not
concretely defined until a few years later, in the case of Barker v. Wingo, 407 U.S. 514, 92
S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Because the U.S. Constitution does not define the
term, the Court found the right difficult to quantify: “the right to speedy trial is a more vague
concept than other procedural rights” because “[i]t is, for example, impossible to determine
with precision when the right has been denied.” Id. at 521.
¶39. Ultimately the Court chose a balancing test where it “identif[ied] four . . . factors:
Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice
to the defendant.” Id. at 530. This landmark test, with some elaboration, is still utilized today
in analyzing constitutional speedy trial violations. See Doggett v. United States, 505 U.S.
647, 651, 112 S.Ct. 2686, 120 L.Ed. 2d 520 (1992) (the “four separate enquiries” are
“whether delay before trial was uncommonly long, whether the government or the criminal
defendant is more to blame for that delay, whether, in due course, the defendant asserted his
right to a speedy trial, and whether he suffered prejudice as the delay's result”).
26
¶40. While understanding that “such a ruling would have the virtue of clarifying when the
right is infringed and of simplifying courts’ application of it,” the Barker Court explicitly
declined to adopt a “fixed point” at which a speedy trial would be violated. 407 U.S. at 523.
The Court did note that “some legislatures have enacted laws, and some courts have adopted
procedural rules which more narrowly define the right.” Id. In holding it could not craft
such a fixed point, the Court stated that:
[Adopting a fixed point] would require this Court to engage in legislative or
rulemaking activity, rather than in the adjudicative process to which we should
confine our efforts. We do not establish procedural rules for the States, except
when mandated by the Constitution. We find no constitutional basis for
holding that the speedy trial right can be quantified into a specified number of
days or months. The States, of course, are free to prescribe a reasonable period
consistent with constitutional standards, but our approach must be less precise.
Id. at 523.
¶41. This invitation was heeded by many states as well as the United States Congress,
which adopted the Federal Speedy Trial Act of 1974. The Speedy Trial Act contains a
lengthy list of deadlines and details in order to create a precise scheme not inherent in the
vagueness of the Sixth Amendment. See 18 U.S.C.S. § 3162. Congress explained that the
Act was “[t]o assist in reducing crime and the danger of recidivism by requiring speedy trials
and by strengthening the supervision over persons released pending trial, and for other
purposes.” 93 P.L. 619.
The State Right from 1817 to 1975.
¶42. From its birth, Mississippi guaranteed speedy trials for its citizens; the language in our
constitution today has barely changed since July 17, 1817, when we became a state. See
27
Miss. Const. of 1817, Art. I, § 10 (“in all prosecutions by indictment or information, a speedy
public trial, by an impartial jury of the county”); Miss. Const. of 1832, Art. I, § 10 (“in all
prosecutions, by indictment or information, a speedy and public trial by an impartial jury of
the county where the offence was committed”); Miss. Const. of 1868, Art. I, § 7 (“in all
prosecutions by indictment or information, a speedy and public trial by an impartial jury of
the county where the offense was committed”).
¶43. In 1857 our Legislature first codified a statutory definition of “speedy trial”: “All
indictments shall be triable at the first term, unless good cause be shown for a continuance.”
Miss. Code of 1857, Section LIX, Art. 285. That language was modified in 1892 to read
“shall be tried,” and this remained the law until 1976. Miss. Code of 1892, § 1421. This was
a strict standard because terms of court were governed by statute, and so each judicial district
had its own time period in which to provide a speedy trial. This provided a flexible standard
according to population.
¶44. For example, in 1942 there were six terms of court in the first district of Hinds
County, each lasting 36 days, starting on the first Mondays of January, March, May, July,
September, and November. 1942 Miss. Laws, § 1401. So if a defendant was arrested in
June, the “first term” following is the July term of 36 days. Assuming the person was
arrested on June 1, the State was responsible for trying that person within 66 days. Provided,
of course, that there was no continuance, that date was roughly the maximum in that part of
the state.
¶45. Terms of court per judicial district varied. While the first judicial district of Hinds,
28
a large district in general and also the seat of state government, had six terms of court for 36
days, Grenada County only had two: “On the fourth Monday of January and July, twelve
days [each].” 1942 Miss. Laws, § 1399. Those terms were then roughly the end of the month
of January and July. Accordingly, in that county, a speedy trial for a criminal defendant
might be required within roughly 170 days.
¶46. One of the concerns of criminal defendants in the Mississippi of times past was not
the deprivation of a speedy trial, but in receiving too speedy of a trial. As the Supreme Court
noted in Barker, “deprivation of the right [to a speedy trial] may work to the accused’s
advantage.” 407 U.S. at 521. The reason given that “[d]elay is not an uncommon defense
tactic” because “[a]s the time between the commission of the crime and trial lengthens,
witnesses may become unavailable or their memories may fade,” and “[i]f the witnesses
support the prosecution, its case will be weakened, sometimes seriously so.” Id. Of course,
delay can be a two-edged sword, as those witnesses testifying for the defense are also subject
to unavailability or a gradual fading of memory. See generally Doggett, 505 U.S. at 656
(“though time can tilt the case against either side . . . one cannot generally be sure which of
them it has prejudiced more severely”) (internal citations omitted).
¶47. In the case of Robinson v. State we examined a case that demonstrated the concern
over a very speedy trial. The defendant was accused of a rape that occurred on Saturday,
July 10, 1954. 223 Miss. 70, 77, 77 So. 2d 265, 267 (1955). He was arrested on Sunday,
July 11; indicted on Monday; July 12; and filed a motion on Tuesday, July 13, for a
continuance of the trial. Id. at 77, 77 So.2d at 267. The motion was overruled, and the
29
defendant tried that Friday, July 16, where he was sentenced to death. Id. Only six days
elapsed from the attack to the sentencing.
¶48. On appeal, his counsel argued that the continuance should have been granted in order
to allow more time for the preparation of the defense; we concluded that the trial was
properly held in accordance with our speedy trial laws, i.e. within the term of court, and that
the continuance had been improperly requested. Id. at 79, 77 So.2d at 268. Accordingly,
we affirmed the penalty of death. Id. at 82, 77 So.2d at 269.
¶49. Earlier that year we had addressed concerns over a trial that was held 14 days after
indictment and dismissed them, citing multiple other jurisdictions that had held trials of even
shorter time periods—including trials that were held three, two, and even one day after arrest.
Gallego v. State, 222 Miss. 719, 737-38, 77 So. 2d 321, 329-30 (1955) (examining, among
other cases Commonwealth v. Donnelly, 86 Pa. Super. 427, 428 (Pa. Super. Ct. 1925), where
a defendant was tried and convicted of a crime committed the day before). The ultra-speedy
trials in Robinson and Gallego were simply a part of the culture at that time.4
The State Right in Modern Times.
¶50. In 1976 the Legislature altered the statutory right to a speedy trial considerably. Gone
were fluctuating dates based upon terms of court, replaced instead by a uniform standard:
“Unless good cause be shown, and a continuance duly granted by the court, all offenses for
4
Opinions on ultra-speedy trials passed into the cultural lexicon, particularly in one
song lamenting barely a week between arrest and sentencing. See Johnny Cash, “I Got
Stripes,” on At Folsom Prison (Columbia Records 1968).
30
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. 2000).
Made effective on July 1, 1976, the statute set out a crystal-clear rule: defendants were
required to be tried with 270 days after arraignment unless a continuance based upon good
cause was granted by the trial court.5
¶51. We first examined the statute roughly two years later, in Payne v. State, 363 So. 2d
278 (Miss. 1978). In examining the law, we pronounced that “[t]his statute is plain and
unambiguous.” Id. at 279. The indictment in that case was entered on August 16, 1976, and
the defendant was not tried until August 31, 1977—well over a year later. Id. at 278.
¶52. Because “[i]t [was] readily seen that the accused was tried and convicted more than
270 days after his arraignment and plea of not guilty,” we held that “[t]he only question
remains is whether or not the delay comes within the framework of the exceptions in the
statute.” Id. at 279. While a continuance had been sought and granted on behalf of the
5
The latest available data from the Bureau of Justice Statistics, a part of the United
States Department of Justice, indicates that 270 days is ample time between time of
arraignment and sentencing for felonies. In a survey compiling data from all state courts,
the median time between arrest and sentencing for persons accused of a felony is 153 days.
Felony Sentences in State Courts, 2000, NCJ 198821, at 9 tbl. 11, June 2003. For violent
offenses that number rises to 186 days. Id. In the case of aggravated assault, the crime for
which Mr. Guice was convicted, the median number of days between arrest and conviction
is 163 days. Id. Eighty-four percent of all offenses were disposed of within one year. Id.
These numbers are similar to the Department of Justice’s study of data taken from 75
large urban counties in the United States. In that report, it was shown that the median time
for all offenses between arrest to adjudication was 92 days. Felony Defendants in Large
Urban Counties, 2000, NCJ 202021, at 23 tbl. 22, December 2003. For violent offenses that
number rose to 128 days, and for assault the time was 120 days. Id. Eighty-six percent of
all offenses were disposed of within one year. Id.
31
defendant, there was no other evidence in the record of a continuance; therefore, a unanimous
Court reversed the conviction and ordered the defendant released. Id.
¶53. The next year we again addressed the statute, this time in a case where we found that
“[a]lthough defendant was tried 584 days after his arraignment, he was tried within the time
fixed by section 99-17-1 because good reason was shown for the delay.” Durham v. State,
377 So. 2d 909, 910 (Miss. 1979). We looked closely at the terms of court in Leake County,
finding that one was devoted to civil cases, in another counsel for the defendant was not
present, in yet another the defendant requested a continuance for trial preparation, and last,
a material witness was absent in another term. Id. at 910. Examining these reasons we
unanimously found “good cause was shown for the delay in the trial of the defendant and his
constitutional right to a speedy trial was not violated.” Id.
¶54. Our unanimity in interpretation did not last. The case of Turner v. State garnered two
spirited dissents that refused to join the majority in releasing a defendant tried long after the
270 days. 383 So. 2d 489 (Miss. 1980). In dissent, Justice Roy Noble Lee, joined by
Justices Walker and Bowling, argued that he would “only require that an accused be
discharged in denying him a speedy trial which results in prejudice and in the denial of a fair
trial to him.” Id. at 492 (Lee, J., dissenting). While the Legislature demanded that a trial
“shall” be within 270 days, it did not specify the remedy for the State’s failure to comply.
Justice Lee reasoned that “if the legislature had intended a discharge for failure to comply
with the statute, that intent would have been expressed in the present statute.” Id. (Lee, J.,
dissenting).
32
¶55. A mere seven days after we delivered the opinion in Turner, we addressed the statute
again in State v. Davis, 382 So. 2d 1095 (Miss. 1980). At this point our analysis of the
statutory right under Mississippi law became hopelessly tangled with the federal
constitutional right. Despite the fact that the United States Supreme Court’s opinion in
Barker rested squarely on interpreting the Constitution, which had no fixed point for speedy
trial analysis, we imported its balancing test and applied it to the statute we formerly held
was “plain and unambiguous.” Id. at 1097-98.
¶56. After that point various interpretations of the statute would arise, at times provoking
increasingly complex and spirited debates between the majority opinion and dissenting
justices, such as in the notable case of Winder v. State, 640 So. 2d 893 (Miss. 1994), which
generated lengthy dissents by Justices Sullivan and Banks.
The Modern Interpretation.
¶57. The critical turning point in our modern interpretation of the statute is Walton v. State,
678 So. 2d 645 (Miss. 1996). In that case a defendant was tried long after the 270 days had
elapsed; there had only been a one-day continuance in the trial. Id. at 646-67. Although the
State had not requested any other continuance, “the State asks us to ‘(a)ssume . . . that each
of the orders setting trial were “continuances” for good cause’ and to ‘treat each order
[setting trial] as a continuance.’” Id. at 648. Despite the plain language of the statute, we did
make that assumption. Further, we found that:
The reasoning of Justice Lee’s dissent in Turner v. State . . . is most
persuasive regarding whether a case is dismissible when tried past the
allotted 270 days. As stated by Justice Lee in Turner, “I think that the
33
provisions of the Federal and State Constitutions and of Section 99-17-
1 only require that an accused be discharged in denying him a speedy
trial which results in prejudice and in denial of a fair trial to him.” . . .
Accordingly, in the absence of a showing of prejudice to Walton's right
to a fair trial by a delay beyond the 270 days, Walton's case should not
be dismissed with prejudice.
Id. at 650.
¶58. Thus we deviated materially from the “plain and unambiguous” language of the
statute in two ways. First, we allowed a case to be tried long after the 270 deadline had
elapsed without virtue of a continuance based on good cause. Second, we judicially grafted
the federal constitutional concept of “prejudice” into the plain and unambiguous language
of our state statutory right.
A Strict Interpretation of the Statute is Required by Law and Precedent.
¶59. It is imperative that we return to strict compliance with the 270-day statute and
overrule the line of cases that stray from the plain and unambiguous language crafted by the
Legislature. The statute requires that “all offenses . . . shall be tried no later than two
hundred seventy (270) days after the accused has been arraigned.” Miss. Code Ann. § 99-17-
1 (emphasis added). There is no exception for a showing of “prejudice,” nor does that word
appear anywhere in the statute; this part of the law has been crafted wholly by the justices
of this Court. There is only one way around the 270-day rule, and this path has two
components: first, “good cause [must] be shown, and a continuance duly granted by the
court.” Miss. Code Ann. § 99-17-1. The 270 days can thus be extended, but only if a
continuance is requested of and granted by the trial court, predicated upon a finding of good
34
cause for the delay.
¶60. It is not simply judicial restraint and a respect for the enactments of the Legislature
that drives this reasoning. The well-settled rule is that criminal statutes must be strictly
construed in favor of the accused. See United States v. Enmons, 410 U.S. 396, 411, 93 S.
Ct. 1007, 35 L. Ed. 2d 379 (1973) (“a criminal statute . . . must be strictly construed, and any
ambiguity must be resolved in favor of lenity”); State v. Burnham, 546 So. 2d 690, 692
(Miss. 1989) (“statutes imposing criminal penalties must be construed strictly in favor of the
accused, a proposition which may not be doubted”). This is the plain and unambiguous rule
as set by the Legislature, and we are bound to follow it “because of our constitutional
mandate to faithfully apply the provisions of constitutionally enacted legislation.” Univ. of
Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (Miss. 2006).
¶61. It is not the purpose of this Court to craft legislation. We have ruled repeatedly in
recent civil cases that we will faithfully apply the language of the statutes in question so long
as they are constitutional. See Pitalo v. GPCHP-GP, Inc., 933 So. 2d 927 (Miss. 2006)
(requiring strict compliance with Section 15-1-36 (15), which requires a 60-day notice be
provided to medical providers prior to suit); Easterling, 928 So. 2d at 819-20 (requiring strict
compliance with Section 11-46-11(1), which requires 90 days notice prior to suit against a
governmental entity).
¶62. We should also abandon caselaw which has unnecessarily intertwined federal law and
our interpretation of a state statute. Simply put, Barker has absolutely no application to the
interpretation of our state 270 day speedy trial statute, nor does it have application to Art. 1
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§ 26 of our state constitution. The Legislature has seen fit to define exactly what “speedy
trial” means via the statute. The Barker analysis is to be reserved only in determining if
there was a speedy trial violation under the Sixth Amendment.
¶63. The proper inquiry first determines if there was compliance with the 270-day
legislatively-mandated time frame, for that statute is far more restrictive on the State than the
federal constitutional right to a speedy trial. Thus, any inquiry into a violation of the right
to a speedy trial must necessarily begin with an analysis of our state statutory right, as the
State has the right to craft laws so long as they are not in violation of the minimum standards
set by the federal constitution.
¶64. For example, a defendant’s speedy trial rights under the statute may be violated in
cases where his constitutional right to a speedy trial is not. Under the proper interpretation
of state law, the rights of this hypothetical defendant are violated if he is tried 300 days after
indictment, provided there are no continuances. At the same time, this might possibly not
constitute a violation of his federal constitutional speedy trial right as analyzed under Barker.
¶65. If and when that analysis determines that a defendant has not suffered a speedy trial
violation, the Barker review of the Sixth Amendment right is proper. Ultimately, “[t]he state
bears the burden of bringing to trial one charged with crime within the time prescribed by
statute or showing good reason for failure to comply with the statute.” Turner, 383 So. 2d
at 491.
¶66. This approach allows a clear distinction between the analysis of the state statutory
right to a speedy trial from an analysis of the federal constitutional right. An analysis of the
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statutory right requires that this Court adhere to our constitutional duty to faithfully apply the
law as promulgated by the Legislature, regardless of our view of the wisdom of that law. On
the other hand, an analysis of the federal constitutional right under the Barker case allows
this Court to exercise its discretion to determine if constitutional rights have been violated
without the benefit of the guidance provided by clearly worded statutes. That is to say, an
appellate court must necessarily come to its own conclusion of what is meant by the term
“speedy trial” as it applies to the federal constitutional right. No such interpretation is
necessary for an appellate court to apply the number “270,” because it applies without
interpretation, and subject only to the sole exception chosen by the Legislature and included
in the statute.
The Need to Improve Our Criminal Justice System.
¶67. In adhering to a faithful interpretation of the statute, we not only fulfill our proper role
under the state constitution–we also safeguard our society from the plague of crime and
injustice. The right to a speedy trial belongs not only to the accused–it also benefits society.
As one commentator has expressed, the “quick adjudication of criminal cases both protects
the defendant and preserves society’s right to remove convicted criminals from the street. If
this decision forces the government to work faster and with more diligence to accomplish
these ends, society is the ultimate winner.” Daniel A. Conforti, Note: Doggett v. United
States: Breathing New Life Into the Right to a Speedy Trial, 21 W. St. U.L. Rev. 619, 635
(1994).
¶68. Our Court has recently struggled to assist in improving the criminal justice system of
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Hinds County, where Mr. Guice was indicted and tried far in excess of the statutory
requirement. In a letter sent in February of this year to the governor, Hinds County’s four
circuit judges, district attorney, public defender, supervisors, and Jackson city officials, Chief
Justice Smith declared that “‘[t]he overall condition of the Hinds County criminal justice
system is deplorable, unacceptable and in need of a major overhaul.’” Jimmie E. Gates, Smith
Wants Judges to Delay Civil Cases, Work Through Inmate Backlog, Clarion-Ledger, Feb. 21,
2006, at 1A. Speaking to the editorial board of the Clarion-Ledger, the Chief Justice related
his belief that “there’s no excuse for people charged with serious crimes to be walking free
awaiting trial, or arrested criminal suspects to be turned away from the jail due to lack of
space, or for inmates in jail to wait months, even years, without trial, some without even
being formally charged with a crime.” Editorial, Hinds Justice: High Court Should Step in
to Fix It, Clarion-Ledger, Feb. 22, 2006 at 6A.
¶69. Recently the sheriff of Hinds County announced that the county was “in a crisis” and
deemed the need for reform in Hinds County “an emergency.” Leah Rupp, Ideas Few for
Officials Weighing Jail ‘Crisis,’ Clarion-Ledger, December 20, 2006, at 1B. And another
commentator lamented the failures of our Court to enforce the clearly written words of the
statute: “The legislature’s speedy trial law . . . was passed to protect the general public and
make sure our criminal justice officials are held accountable.” Wyatt Emmerich, Editorial,
Northside Sun, Sept. 7, 2006, at 4A.
¶70. Yet today, instead of working to improve this system of justice, we damage it even
further. In doing so, the majority shrinks from our constitutional role in applying statutes as
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written, and more gravely, from our duty to safeguard the constitution and laws of the state
of Mississippi. Whatever the condition of the criminal justice system in Hinds County, with
today’s decision we callously ignore the concerns of society and our constitutional mandate.
II. Waiver of the Right to a Speedy Trial.
¶71. The majority today refuses to apply binding precedent regarding how and when a
defendant may waive his right to a speedy trial. The Court of Appeals previously held in this
case that “even though a clear violation of section 99-17-1 occurred, we hold, based on the
authority of Walton v. State . . . that Guice waived his right to complain about the denial of
his statutory right to a speedy trial because he did not assert his right to a speedy trial until
well after the deadline has passed.” 2006 Miss. App. LEXIS at *11-12.
¶72. We began to allow the idea that a defendant might waive the right to a speedy trial
through inaction in State v. Davis, 382 So. 2d at 1098, which was quoted with approval in
Walton v. State, 678 So. 2d 645, 649 (Miss. 1996), the case upon which the Court of Appeals
relies. However, Barker made it completely clear that a defendant cannot waive her right
to a speedy trial under the Sixth Amendment of the U.S. Constitution: “We reject, therefore,
the rule that a defendant who fails to demand a speedy trial forever waives his right.” 407
U.S. at 528. The Court clarified that “[t]his does not mean, however, that the defendant has
no responsibility to assert his right, but that “the better rule is that the defendant’s assertion
of or failure to assert his right to a speedy trial is one of the factors to be considered in an
inquiry into the deprivation of the right.” Id. at 528-29.
¶73. The reasoning in Davis and Walton was based upon an ALR article from 1958—14
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years before Barker forbade waiver. It is unclear whether these cases were referring to the
state or federal right, but that is unimportant: while states may craft laws and constitutions
granting more freedom than is afforded under the U.S. Constitution, they cannot do less. The
U.S. Supreme Court has determined that a constitutional right to a speedy trial may not be
waived through inaction, and to the extent Davis and Walton contradict binding U.S.
Supreme Court authority regarding the Sixth Amendment right, they must be overruled. This
approach does not eliminate the possibility that a defendant may waive his or her right to a
speedy trial through affirmative action, but simply that such a crucial right may not be
waived by inaction.
The Case at Hand.
¶74. Mr. Guice was held over thirty-one months between his arraignment and trial, from
September 14, 2001, to May 3, 2004. 2006 Miss. App. LEXIS 72, *3 (Miss. Ct. App. 2006).
He brought the 270 day issue before the Hinds County Circuit Court in his own handwritten
motion to dismiss, arguing that he had “been denied his . . . statutory right to a speedy trial
in that it has been over two-hundred seventy (270) days since the(se) charges were brought
. . . [and he] has been continuously held since that date.”
¶75. The record demonstrated no continuances nor requests for them from either the State
or Mr. Guice, and as the Court of Appeals found, the State never provided any reason at all
to the trial court or our appellate courts for the delay. Id. at *4-5. Accordingly, because no
continuance was granted based upon good cause, it is clear based upon the clear and
unambiguous language of the statute that any trial beyond the 270 days is improper, and the
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conviction should be reversed.
¶76. However, under any application of our prior precedent regarding the statutory right
to a speedy trial, or any application of Barker, Mr. Guice has suffered a deprivation. Indeed,
the majority almost wholly fails to even examine his rights under the federal constitutional
analysis set out in Barker, instead looking to the case of Walton for support. Despite that
case’s extension of a misguided doctrine, there was a finding of a congested docket, which
was construed, however thinly, to constitute “good cause.” There was absolutely no finding
of any reason for any delay in the case at hand. In an extraordinary display of audacity, the
State asks that we construe absolute inaction as a good cause for the delay of trial.
Astoundingly, the majority accepts this illogical and destructive theory.
¶77. The majority also seems to create a burden on the defendant to demonstrate that he
has the intent to proceed to trial, a curious analysis that has no basis in either the plainly-
written statute or our previous case law. The mental state of a defendant, and whether he
actually desires a trial or a dismissal is wholly irrelevant to any analysis under the statutory
or federal right to a speedy trial.
¶78. Today I respectfully dissent for six reasons. First, because the majority today
continues down a path that ignores the clear language of a valid and binding state statute.
Second, because we continue to confuse state and federal law regarding speedy trials. Third,
because we disregard binding U.S. Supreme Court precedent regarding the ability of a
defendant to waive his right to a speedy trial. Fourth, because the majority places an
additional burden on a defendant to prove intent in requesting a speedy trial. Fifth, because
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we fail to honor our constitutional responsibility to the citizens of Mississippi to ensure the
integrity of the court system of Mississippi. Sixth, and last, because Phelan Terrell Guice
was denied the statutory right to a speedy trial guaranteed to all Mississippians. For these
reasons, I would reverse the judgments of the Court of Appeals and the circuit court and
render judgment discharging Mr. Guice because of the violation of his right to a speedy trial.
GRAVES AND DICKINSON, JJ., JOIN THIS OPINION.
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