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SEPTEMBER 14, 1988




This is an appeal from the Circuit Court of Smith County, on change of venue from Lauderdale County, wherein a jury convicted Larry R. Fisher of rape and sentenced him to life imprisonment.

On the night of February 11, 1983, the victim was driving home from her job on Highway 80 going from Meridian to Russell in Lauderdale County. A car appeared behind her and blinked its lights as though to signal her. The victim pulled over; a man walked up to the side of her car and told her that her license plate was coming off. The victim got out of the car to check and found the tag securely fastened to the car. The man then pulled a knife and ordered her to enter the truck. Out of fear, she complied. The man drove a short distance, stopped, taped the victim' hands behind her, removed part of her clothing and raped her. He then took her back to her car and shoved her out. The victim drove home and told her son and his girlfriend what had happened, but she did not notify the authorities because she feared publicity and further humiliation.

 During the ensuing months, there were many reports in the Meridian area of a man pulling over lone women at night by blinking his lights. One woman, Carol Formby, disappeared after such an incident, and another young girl Melinda

 Weathers disappeared and was later found dead near the same stretch of road. In response to public appeals from the police for anyone having knowledge of such activity, the victim finally came forward in May 1983 and reported what happened to her.

 Meridian police set up a decoy operation along Highway 80/11 in which an apparently lone police woman would drive through the affected area at night. During one such operation on the early morning of June 4, 1983, policewoman Brenda Hatcher was driving along the highway. To an on looker she would have appeared alone, but in fact Meridian Detective Bobby House was crouching in the backseat. A pickup truck appeared behind the decoy car and began flashing its lights. Officer Hatcher pulled over, whereupon the defendant Larry Fisher got out of his car and moved towards her. Detective Houser then got out of the car and arrested him. On the next day, the victim identified him as her assailant.

 Fisher was indicted for the capital murder of Melinda Weathers and the rape of the victim. In the first Weathers' trial, a Lauderdale jury found Fisher guilty and sentenced him to death. As a result, the Lauderdale County circuit judge continued the present rape trial, in the apparent belief that Fisher's execution would obviate completing it. However, Fisher's conviction and sentence were overturned by this Court. Fisher v. StateL 481 So.2d 202 (Miss. 1985). On remand, a change of venue was granted and a Rankin County jury acquitted Fisher of the murder of Melinda Weathers. After this, the trial judge in the present rape case granted a change of venue to Smith County. The trial then proceeded, and Fisher was convicted and sentenced as noted above.

 Fisher has placed before us numerous assignments of error, not all of which have sufficient merit to warrant prolonged discussion.


 The victim was raped on February 11, 1983. Larry Fisher was arrested on June 4 of that year and indicted on December 1. It was on June 18, 1984, that the trial judge continued the present case until the completion of the appeals process in the Weathers' case. Fisher's second trial in the Weathers' case resulted in his acquittal on December 13, 1985, whereupon the trial of this case began on January 30, 1986.

 There elapsed 790 days between Fisher's indictment and the commencement of this trial. Fisher complains that the delay deprived him of his right to a speedy trial under the United States and Mississippi Constitutions, as well as the Mississippi Speedy Trial statute, Mississippi Code Annotated, Section 99-17-1 (Supp. 1987).


 The Sixth Amendment to the U.S. Constitution states in part that," in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. . . . "Art. 3, Sec. 26, Miss. Const. 1890 offers the same guaranty.

 The leading U.S. Supreme Court case on the speedy trial problem is Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972). An excellent summary, and application of the Barker balancing test is contained in Beavers v. State, 498 So.2d 788, 790 (Miss. 1986):

 Barker enumerates four factors which must be considered: (1) length of delay, (2) reason for the delay, (3) the defendant's assertion of his right to a speedy trial and (4) prejudice resulting to the defendant. No mathematical formula exists according to which the Barker weighing and balancing process must be performed. The weight to be given each factor necessarily turns on the quality of evidence available on each and, in the absence of evidence, identification of the party with the risk of nonpersuasion. In the end, no one factor is dispositive. The totality of the circumstances must be considered.

 We will consider all of the Barker factors seriatim.

 1. Length of the Delay.

 The speedy trial clock begins to tick from the moment the defendant is effectively accused of the offense. Beavers, supra, 498 So.2d at 789; Perry v. State, 419 So. 2d 194, 198 (Miss. 1982). In cases not involving a detainer lodged against a defendant already incarcerated, this means the time of indictment. Beavers, id.; Bailey v. State, 463 So.2d 1059, 1062 (Miss. 1985); Perry, supra, 419 So.2d at 198.

 In Beavers, this Court held a delay of 423 days would be presumed to be a violation of the speedy trial clause, absent any showing that other Barker factors weigh heavily in favor of the state. Beavers, 498 So.2d at 790. Between Fisher's indictment for the victim's rape and the beginning of the victim's trial, 790 days elapsed. Enough said.

 2. Reason for the Delay.

 This is often the most important of the Barker factors and this case is no exception. On June 14, 1984, the circuit court, on its own initiative, issued the following order:


 The Court on its own motion continues the above described cases due to a trial conviction and sentence of the defendant, Larry Fisher, in cause # 694-C of the crime of capital murder. It is the court's understanding that said cause # 694-C is on appeal and based on the foregoing facts, the Court in an effort of judicial economy, and fairness to both sides, continues the above described cases until further motions or request of either the defendant or the state.

 SO ORDERED AND ADJUDGED, this the 18th day of June, 1984.

 Both sides recognize that the lion's share of the delay in this case consists of the 485 days elapsing between the entry of this order and the beginning of the trial in the present case. The mere fact that the defendant is in custody for another crime is generally not a sufficient reason for delaying a trial. E.g. Frankel v. Woodrough, 7 F.2d 796, 799 (8th Cir. 1925); U.S. v. Alagia, 17 F. R. D. 15, 17 D. Del. 1955); Beavers, supra, 498 So.2d at 790; Burgess v. State, 473 So.2d 432, 433-34 (Miss. 1985).

 However, there is authority for the proposition that the situation is different where a death sentence is involved. Jamerson v. Estelle, 666 F.2d 241 (5th Cir. 1982). Jamerson was indicted for armed robbery in Texas. Before he was tried for this, he was convicted of capital murder in another incident and sentenced to death. Texas held that armed robbery prosecution in abeyance, and the armed robbery trial was not resumed until the U.S. Supreme

 Court declared the state's death penalty statute unconstitutional in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972). Jamerson, not surprisingly, objected that he had been deprived of his right to a speedy trial as to the armed robbery. The Fifth Circuit applied the Barker balancing test. Texas argued that Jamerson's being under a death sentence was a justifiable reason for the post-indictment delay in the armed robbery trial. The Fifth Circuit found this contention" manifestly well founded. "Jamerson, 666 F. 2d at 243. Texas was justified in choosing" not to expend scarce judicial and prosecutorial resources in trying defendant facing a death sentence, the execution of which would have eliminated the need for any trial at all. "666 F.2d at 244, quoting Turner v. Estelle, 515 F.2d 853, 856 (5th Cir. 1975) (cert. den. 424 U.S. 955, 96 S. Ct. 1431, 47 L.Ed.2d 361 (1976).

 This applies to the case at bar. The reason for the delay was legitimate, and this weighs heavily in favor of the state.


 On the theory that" the more serious the deprivation, the more likely the defendant is to complain "of delays in trial, the Barker court said the failure to assert the right to a speedy trial" will make it difficult for a defendant to prove he was denied a speedy trial. "Barker 407 U.S. at 531, 32 92 S. Ct. at 2192-93, 33 L.Ed.2d at 117-18. It is undisputed that Fisher filed no motion asking that his rape case be brought to trial during the pendency of his appeal in the Weathers' case or even between his acquittal and the commencement of the trial. In this context it is significant that the circuit judge's continuance order states the rape case is continued" until further motions or requests of either defendant or the state. "

 In Beavers we held that while" a defendant has no duty to bring himself to trial "Beavers, 498 So.2d at 791; Nations v. State, 491 So. 2d 760, 761 (Miss. 1985), the right to speedy trial is subject to" knowing and intelligent waiver. "Thus, Fisher's failure to assert and claim his right would weigh heavily in favor of the state, except for the allegations in his brief that the defense attorneys did not agree with the continuance, were not served with a copy of the order after it was entered, and Fisher himself knew nothing about the continuance. Because the record on this point is unclear as to what Fisher and his counsel knew and when, this factor in the balancing test can be assigned little weight one way or the other.

 4. PREJUDICE TO THE DEFENDANT. In a remarkable admission, Fisher's brief admits that the delay did not prejudice him (appellant's br. p. 11). However, Fisher argues that the conviction in Beavers was reversed despite a record showing" little evidence of prejudice. "Beavers, 498 So.2d at 792. However, in Beavers the court found that there was no adequate reason for the state causing the delay in trial. 498 So.2d at 790-91. Therefore, in the present case the absence of prejudice to the defendant weighs heavily in favor of the state.

 In our opinion, the propriety of the state's reasons for delay and the lack of any prejudice against Fisher weigh so heavily in favor of the state as to dispose of the constitutional challenge altogether.

 B. THE MISSISSIPPI SPEEDY TRIAL STATUTE MCA 99-17-1 (Supp. 1987), states:

 Indictments to be tried within 270 days of arraignment.

 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.

 Fisher's arraignment occurred 787 days before the trial in the rape case began.

 In Nations v. State, 481 So. 2d 760, 762 (Miss. 1985), this Court interpreted the speedy trial statute as meaning that a circuit judge's written order of continuance was" the equivalent of a judicial determination that good cause existed "for granting that continuance and therefore, such a continuance would toll the 270-day time limitation.

 Nevertheless, Fisher argues that even if the delay was for" good cause ", the deduction of the 485 days from the 787 leaves 302 days, still in excess of the time period specified in the speedy trial statute. The state replies that by its terms, the order of continuance was to remain in effect" until further motions or requests of either the defendant or the state. "Fisher never made such a motion; the present case was set for retrial on the district attorney's motion filed January 8, 1986. The trial began 22 days later.

 We think that because the continuance contained a provision for its own termination by motion, it tolled the statutory ...

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