DATE OF JUDGMENT: 08/26/95 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT
Before: Sullivan, P.j., Banks And Mills, JJ.
The opinion of the court was delivered by: Mills, Justice
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION AFFIRMED - 3/12/98
MOTION FOR REHEARING FILED:
¶1. David Duplantis was indicted in the circuit court of Newton County for the capital murder of Gary Thrash during the commission of a robbery on July 18, 1991. Due to Duplantis' extensive criminal record, the indictment charged him as an habitual offender in violation of Miss.Code Ann. § 99-19-81 (1972).
¶2. Duplantis was thereafter convicted of capital murder and given the death penalty. On October 27, 1994, this Court reversed his conviction and remanded the case for a new trial. *fn1
¶3. A second jury trial commenced on August 22, 1995 in the new venue of Attala County. Once again, Duplantis was convicted of capital murder. This time, however, he was sentenced only to life imprisonment without parole. On September 28, 1995, the trial court entered a nunc pro tunc order that sentenced Duplantis as an habitual offender pursuant to Miss.Code Ann. § 99-19-83 (1972). The sentence was originally pursuant to § 99-19-81 (1972).
¶4. Duplantis' motion for judgment of acquittal or new trial was denied on September 1, 1995. Shortly thereafter, Duplantis timely filed this appeal. He assigns the following issues as error.
I. WHETHER THE TRIAL COURT DENIED DUPLANTIS' RIGHT TO A SPEEDY TRIAL.
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DUPLANTIS ACCESS TO HIS ATTORNEY FOR TRIAL PREPARATION.
III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DUPLANTIS' MOTION TO DISMISS THE INDICTMENT OR IN THE ALTERNATIVE TO COMPEL DISCOVERY OF EXCULPATORY EVIDENCE.
IV. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING DR. STEVEN HAYNE TO TESTIFY AS AN EXPERT WHEN HE HAD NOT BEEN TENDERED AS SUCH.
V. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING JURY INSTRUCTION S-11.
VI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING DUPLANTIS' PROPOSED JURY INSTRUCTION DGPS-7.
VII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DUPLAINTIS' MOTION FOR JNOV/ NEW TRIAL ON THE BASIS THAT THE VERDICT WAS NOT SUPPORTED WITH SUFFICIENT EVIDENCE.
VIII.WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN OVERRULING DUPLANTIS' MOTION FOR JNOV/ NEW TRIAL ON THE BASIS THAT THE EVIDENCE WAS INSUFFICIENT TO SHOW THAT DUPLANTIS POSSESSED INTENT TO ROB THE VICTIM AT THE TIME OF THE KILLING.
IX. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING JURY INSTRUCTIONS S-5 AND S-8.
X. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING JURY INSTRUCTIONS S-2 AND S-9 AND IN DENYING DG-12.
XI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ENTERING A NUNC PRO TUNC ORDER AMENDING DUPLANTIS' SENTENCE.
XII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING THE STATE TO READ THE PREVIOUS TRIAL TESTIMONY OF ABSENT WITNESS MARY PARKS INTO THE RECORD.
XIII.WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DUPLANTIS' REQUEST THAT HE BE ALLOWED TO ACT AS HIS OWN COUNSEL.
XIV. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DUPLANTIS' MOTION TO RECUSE.
XV. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DUPLANTIS' REQUEST FOR A COURT-APPOINTED AND TAXPAYER FUNDED INVESTIGATOR FOR THE DEFENSE.
XVI. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING A PORTION OF THE FEES AND EXPENSES FOR DEFENSE COUNSEL.
XVII.WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING A PORTION OF THE PAYMENT FOR DUPLANTIS' FINGERPRINT EXPERT.
XVIII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING JURY INSTRUCTION S-4.
XIX. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DUPLANTIS' MOTION FOR JNOV/ NEW TRIAL BASED UPON THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE TRIAL COURT'S FINDING THAT DUPLANTIS WAS AN HABITUAL OFFENDER.
XX. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING DUPLANTIS' MOTION FOR JNOV/ NEW TRIAL BASED UPON THE COMPLIANCE WITH THE REQUIREMENTS OF SEELY v. STATE.
¶5. Ken Strickland and David Duplantis escaped from the Lauderdale County Jail on June 14, 1991. *fn2 Two days later, Ruth Ann Dean read of the escape in her local newspaper and grew fearful. She remembered that Strickland's mother had previously rented a house located only a quarter of a mile from her home, and feared that he might try to seek cover there. The house was located about twelve miles from the jail. Its present occupant was Charlene Thrash.
¶6. Dean called Charlene's ex-husband, Gary Thrash, on the early morning of June 16 and asked him to check on the house. Gary assured her that he would do so later that morning. True to his word, Gary went to the house. A few hours later he was found lying in a pool of his own blood on Charlene's kitchen floor. His pockets had been emptied and his truck had been stolen.
¶7. On June 17, Gary Thrash's truck was found abandoned in Memphis, Tennessee. Among the items recovered from his truck was a pair of bolt cutters. Sometime between June 14 and June 16, burglars had taken a pair of bolt cutters and bubble gum from the Meridian Stockyard. An employee of the Meridian Stockyard testified at trial that the bolt cutters recovered from Thrash's truck were "similar" to the pair taken from the stockyard.
¶8. Dr. Stephen Hayne performed forensic testing on the bolt cutters and an autopsy on Thrash. The tests confirmed the presence of human hair, blood and tissue on the cutters. Dr. Hayne testified that Gary Thrash's mortal wounds were inflicted by an object comparable to the bolt cutters he tested.
¶9. Charlene Thrash's phone records show two incriminating phone calls made from the Thrash residence in the early morning of June 16. One call was made to Duplantis' stepfather. The other was made to the Lauderdale County Jail.
¶10. In order to confirm that the call was made to the jail, the state introduced testimony given by Mary Parks in Duplantis' first trial. Parks' testimony was that at exactly 1:05 a.m. on the morning of June 16 she logged a call from Duplantis into the jailhouse phone log. She did testify, however, that the call was actually received by another officer.
¶11. Physical evidence also indicated that the two escapees were present in Charlene Thrash's home at some point prior to Gary Thrash's brutal murder. Mississippi Highway Patrol crime scene investigator, Don Sumrall, recovered Duplantis' fingerprint from a coffee pot lid in the home. He also found Ken Strickland's fingerprint on a bubble gum container in the residence.
¶12. The two fugitives were apprehended on June 17 by Tennessee authorities in Jackson, Tennessee. They were later extradited to Newton County. Once safely within the confines of their respective jail cells, Duplantis and Strickland were overheard by Willie Graham discussing the cleanup of Charlene Thrash's house.
I. WHETHER THE TRIAL COURT DENIED DUPLANTIS' CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.
¶13. On August 15, 1995, Duplantis filed a Motion to Dismiss with the trial court that states in pertinent part,
On October 27, 1994, the Mississippi Supreme Court remanded this case for a new trial. Defendant filed his motion for a speedy trial and for access to his attorney in November, 1994, at which time Defendant was housed at the State penitentiary at Parchman, Mississippi. Defendant was moved to the Madison County jail on July 27, 1995, 270 days after the Mississippi Supreme Court remanded this case for a new trial, subsequent to which the charges in the indictment in this case must be dismissed for failure to provide Defendant a speedy trial as he had requested immediately after the remand of this case by the Mississippi Supreme Court. The State, having denied Defendant his speedy trial, is now estopped from trying the issues against him raised by the indictment in this case under both the applicable statute of the State of Mississippi and the Mississippi Constitution as well as the Constitution of the United States of America.
The trial Judge responded to this motion by ruling Duplantis' constitutional right to speedy trial had not been violated.
¶14. Barker v. Wingo, 407 U.S. 514 (1972) sets forth the test for a defendant's constitutional right to speedy trial. The Barker factors are:
(1) the length of the delay;
(2) the reason for the delay;
(3) the defendant's assertion of his right to a speedy trial; and
(4) whether any prejudice resulted to the defendant as a result of the delay.
Barker, 407 U.S. at 530-32.
¶15. As for the first factor, the speedy trial clock begins to run for purposes of determining a violation of a defendant's right to speedy retrial on the date this Court reverses his first conviction. State v. Ferguson, 576 So.2d 1252, 1254 (Miss.1991). Furthermore, "ommon sense suggests that, ordinarily on retrial, less time will be necessary to bring a case to trial than before." Id. at 1254. We have held delays of 370 days, 298 days and 280 days as presumptively prejudicial in initial trials of defendants. *fn3
¶16. The speedy trial clock began to run in this case on October 27, 1994, the date of the issuance of the mandate in Duplantis v. State, 644 So.2d 1235 (Miss.1994). Duplantis was not retried until August 22, 1995, 299 days after the court's reversal. Therefore, the delay in this case is presumptively prejudicial.
¶17. When determining the reason for the delay, those delays which are not attributable to the defendant will count against the state, unless the prosecution can show good cause. Vickery v. State, 535 So.2d 1371, 1377 (Miss.1988). However, a bad motive on the prosecution's part significantly affects the balancing test. Perry v. State, 419 So.2d 194, 199 (Miss.1982). In fact, the United States Supreme Court has acknowledged that an intentional delay by the prosecution in order to gain a tactical advantage is improper. United States v. Marion, 404 U.S. 307, 324 (1971). Nonetheless, the Court found no error in Barker when the prosecution deliberately delayed the defendant's trial for five years while it awaited the outcome of a separate trial of his alleged accomplice in criminal activity. The Court held there was no speedy trial violation because Barker failed to demonstrate prejudice to his defense. The Court particularly noted that Barker made no motion for a speedy trial until the state's twelfth continuance. Barker v. Wingo, 407 U.S. at 516-518.
¶18. In the case sub judice, the state argued, and the trial court agreed, that it was divested of jurisdiction until the United States Supreme Court ruled upon the state's petition for writ of certiorari on the determinative issue in the first trial. The defense responds by emphasizing that the state neither requested nor received a stay of the mandate issued by this Court after the first trial to "forthwith" try the defendant. Thus, following the defense's argument, jurisdiction was in fact in the circuit court. Accordingly, the defense asserts that the trial Judge should suffer a reversal for not proceeding with trial more expeditiously.
¶19. Although Duplantis is technically correct that jurisdiction of this case remained in the trial court, that fact alone does not invalidate the state's reason for delay. The policy goal of the speedy trial requirement is simply that defendants should not be made to wait for trial so long that Justice is impaired. Ross v. State, 605 So.2d 17, 23 (Miss.1992). The record reveals no action by the state to deliberately delay or impede this case from going to trial in order to gain a tactical advantage. Neither does it reflect any bad faith on the state's behalf to undermine the defense's resources. Therefore, this factor does not weigh heavily against the state. Id.
C. ASSERTION OF THE RIGHT TO SPEEDY TRIAL
¶20. Duplantis made numerous requests that he be given a speedy trial to the trial Judge. His first request came on November 3, 1994, only one week after we reversed his conviction in the first trial. Next, he asserted his right to a speedy trial in a letter to Judge Gordon dated May 23, 1995. On June 2, 1995, he filed a motion requesting that there be no speedy trial delays. He requested a speedy trial again at his motion hearing in July, 1995. He filed a motion to dismiss for lack of a speedy trial on August 15, 1996. He again ...