The opinion of the court was delivered by: Banks, Justice
DATE OF JUDGMENT: 03/25/95
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: NOXUBEE COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL
¶1. This is an appeal from a conviction and sentence to death for the rape and murder of a three-year-old child. Because we find no error of a magnitude requiring reversal, we affirm.
¶2. In May 1992, Gloria Jackson lived in a small community close to Brooksville, Mississippi known as Pilgrim's Rest. She resided in a six-room house that contained two bedrooms; however, she only used one of the bedrooms furnished only with a chair, a bed, a dresser and a television. The window in that bedroom was broken out when Jackson initially moved in the house in June 1991. Two doors led to the outside of the house. One door was in the living room and the other one in the kitchen.
¶3. During the spring of 1992, three of Jackson's four children lived with her in this house -- Christine who was three years old; Keithshawn who was twenty-two months old; and Nicole who was thirteen months old. *fn1 Jackson was dating the appellant, Kennedy Brewer, during this time. They had been dating for approximately three years before May 1992. Brewer would sleep at Jackson's house "every now and then." During the weekend of May 2, 1992, he came to her house Friday morning at 3:00 a.m. He stayed all day Friday, spent Friday night and was there all day Saturday as well.
¶4. On Saturday May 2, Jackson and Brewer had planned to go out together, but Brewer changed his mind. Jackson therefore decided to go out with her sister. She dressed to go out, but before she left Brewer wanted to have sex. Jackson told him to wait until she returned. When Jackson left at 8:00 or 8:30 p.m., Brewer was wearing a pair of light blue overalls, a blue shirt with a black design in it and a pair of black shoes.
¶5. As Jackson drove down the road away from her house, she met Dewayne Graham and Leshone Williams walking towards her home. The teenagers lived in houses very close to Jackson's home. She stopped and briefly talked with them. They later went to Jackson's home and spent some time with Brewer and the children. Jackson then went to her sister's house, but her sister was not home. She eventually found her sister at a friend's house, and after a number of stops, they went to a night club.
¶6. The owner of the Santa Barbara Club would not allow Jackson in the club because she and Brewer had fought there recently. Thus at 12:09 a.m., she and her sister left the club. Jackson's sister dropped Jackson off at home around 12:30 a.m. Jackson did not knock on her front door because she did not want her landlord to know that Brewer was over there. *fn2 Jackson therefore went to the bedroom, pulled back the blanket covering the broken window pane and told Brewer to open the door. He did, and she locked the door by pushing a bent nail over the door's frame.
¶7. Brewer returned to the bedroom. He was wearing a pair of Jackson's white shorts. No lights were on in the bedroom, but the television was on. As Jackson walked into the bedroom, she asked about Christine's whereabouts because she wanted to make a pallet on the floor on which the child usually slept. Brewer told her that Christine was in the bed. He then went over, picked up a form wrapped in a blanket and laid the form on the pallet. Jackson did not see a head, any arms or legs on the form that Brewer placed on the pallet. She was not paying much attention.
¶8. Brewer then went into the living room and brought back a makeshift light. He plugged the light up and placed it over the dresser. Jackson did not check on her children as she trusted Brewer with them. As Jackson undressed, she and Brewer talked while he ate a hot dog. They then had sex. Afterwards, they got up and Brewer drank his beer as Jackson drank a Champale. Jackson was "a little high." She told Brewer that she was going into another room to douche. He told her to wait until morning, but she refused. According to Jackson, Brewer did not want her to get out of the bed. She nevertheless went into the next room and douched without any source of light. Brewer came into the room and "stood over" her while she washed.
¶9. Once in bed, Jackson laid down on the outside. Her twenty-two-month-old toddler was sleeping next to the wall, and the youngest child was at the foot of the bed. Brewer was in the middle of Jackson and the twenty-two-month-old baby. Brewer told Jackson he wanted to sleep on the outside. She refused to move.
¶10. The next morning Jackson woke up around 7:00 a.m. due to Brewer's attempts to initiate sex. She told him to stop and the youngest child began to cry. Jackson asked Brewer to fix a bottle for the baby. He left the bed and went into the kitchen. He returned with the bottle and got back in bed. By this time, Jackson noticed that the baby was "soaking wet." She again asked Brewer to pass her a Pamper. He obliged. During the two times he got up from the bed, he did not mention anything about Christine.
¶11. Brewer began to question Jackson about her car -- how long Jackson's sister would have her car. Jackson told him that she would have to call her sister. She recalled that Brewer had also asked about the car when she returned home earlier that morning. Jackson left the bed at 7:30 a.m. It was daylight at this time, just as it had been light outside when Brewer left the bed to get a bottle and Pamper. Immediately upon leaving the bed, Jackson noticed that Christine was not on the pallet. She asked Brewer about Christine's whereabouts. He replied, "I don't know." She looked in the other room, but the child was not there. Brewer was showing "no concern at all." Jackson then went outside -- unlocking the door first -- and asked her neighbor if Christine was over there. She was not.
¶12. Shortly after that, some of Jackson's neighbors came over and helped searched for the missing child. During this time, Brewer "was just standing in the room." The search moved to the outside of the house; however, all of the windows and doors in the house were locked and the child would have been unable to open any of the windows or doors by herself. Jackson called the police. She and Brewer were taken to jail that day. Jackson was eventually charged with accessory to murder after the fact, but the charges were dropped. She remained in jail for seven months. While in jail, Jackson and nearby Brewer talked. On one occasion -- the first day they were taken into custody -- Jackson took off her shoe, hit Brewer in the face with it and asked him what had he done to her daughter. About a week after their arrest, Jackson screamed from her cell to Brewer that when he went to prison other inmates were going to do him the way he did her baby. Brewer replied, "It need to been you dat [I] kilt." *fn3
¶13. Brewer was indicted for Christine's murder on September 15, 1992. The indictment alleged that he murdered Christine while engaged in the crime of sexual battery. At his trial, Jackson testified to the preceding account of events. Additionally, she testified that she did not notice any blood on Brewer's crotch area, nor on herself after having sex with him. As far as she could recall, Brewer did not leave the bed after they went to sleep. The blanket Jackson found on the floor at 7:30 a.m. Sunday morning was the same blanket that Jackson observed Brewer place on the floor earlier that morning, except at 7:30 a.m. the blanket was spread out. She did not notice any blood on the blanket. She did not look for any. According to Jackson, Brewer was not acting nervous when she arrived home at 12:30 a.m., but he was later that day.
¶14. Dewayne Graham testified for the State. He lived very close to Jackson in Pilgrim's Rest. He had known Brewer for a couple of years, and he is Jackson's first cousin. On May 3, 1992 around 8:00 or 8:30 p.m., Graham and his friend, Leshone Williams, were walking toward their homes when they ran into Jackson. After talking to her for a few minutes, they went to their grandmother's house where they stayed for about five or ten minutes. They then went to Jackson's house and visited with Brewer for about twenty minutes, after which they returned to their homes to do chores. After finishing their chores, the teenagers returned to Jackson's house and hung out with Brewer. Brewer was then wearing a pair of white shorts. They watched television in the bedroom. All of the children were in the bed. Christine was sleeping at the foot of the bed. Graham and Williams stayed at Jackson's home until about 11:50 p.m. The teenagers were certain it was close to midnight when they left because "Soul Train" was coming on as they arrived at their own homes.
¶15. Leshone Williams' testimony was consistent with that of Graham. The only addition was that when they returned to Jackson's home the second time, all of the children were alive because they were playing upon their arrival. The children fell asleep about five minutes after Williams and Graham came into the bedroom.
¶16. Jackson's landlord, R. Bell Williams, testified that after Jackson called the police Jackson said something to Brewer and he responded, "Didn't I tell you I laid that damn gal on that pallet." Bell Williams did not see Brewer go down to the creek that morning when people began to search for the child.
¶17. Bud Permenter, a deputy sheriff with the Noxubee County Sheriff's Department, arrived on the scene at about 9:30 a.m. Upon his arrival, there were approximately forty to sixty people at the house. Some people were searching for the missing child, and some were just standing around. After being there for about fifteen or twenty minutes, Sheriff Permenter saw Brewer standing in the front yard. Permenter talked to Jackson before going into the house and investigating the interior. He found the kitchen door and all of the windows locked. He searched the loft, outside the house, under the house and around the broken window for footprints or any suspicious evidence. He found nothing. There was no evidence of forced entry into the house, and there was no way that someone could have climbed through the broken window as he found it.
¶18. As Permenter conducted his investigation of the house and the surrounding area, he could hear Jackson shouting in the yard, asking Brewer what had he done with her child. The crowd, in turn, was becoming upset with both Jackson and Brewer regarding the missing child. To prevent an altercation, Permenter placed Jackson and Brewer in his car for safety. Shortly thereafter, Sheriff Walker came and took them to jail while Permenter continued his investigation of the scene.
¶19. The following day Permenter and others again searched the area for the missing child. Their search was fruitless. On May 5, 1992, the search resumed, this time aided by a dog team from Newton County. Permenter had obtained Brewer's clothes from jail after taking him to the hospital to have a rape kit completed. These clothes were given to the dog handler to pick up Brewer's scent. The dog team was made up of three dogs. The first dog, Judy, sniffed Brewer's clothes and carried the handler around the north side of the house where the hog pen was located. The dog had picked up Brewer's trail, but she became frightened when a big hog came along. As such, Judy was retired and Jim was chosen to sniff out Brewer's scent. Jim led the dog handler to the edge of the creek behind Jackson's house.
¶20. Later that morning with the assistance of a helicopter, Christine's body was found in the creek behind Jackson's house. The child's body was found near the location the dog Jim had previously indicated. Right across from where the child's body was found, a smeared footprint was seen on the creek's edge.
¶21. Ernest Eichelberger, the chief investigator with the Noxubee County Sheriff's Department, became involved in this case on May 4, 1992. He conducted a preliminary investigation of the crime scene, but found no evidence of forced entry, blood or hair. During his follow-up investigation on May 5, he discovered a break in the vegetation around the creek. This break was located north of Jackson's house, over toward where a bridge crosses the creek.
¶22. John Easom was the volunteer canine officer whose dogs were used in this case. He testified that after the second dog, Jim, picked up Brewer's scent and followed it into the bush lining the creek that his third dog Jessie was given an article of clothing containing the child's scent. Jessie went to a big pool of water near the creek and began pawing the water and putting her head in the water. They did not see anything in the water at that time. He did notice, however, an opening or break in the vegetation on the opposite side of the pool of water in an area just a little north of where the body was ultimately found.
¶23. The State's case-in-chief also included testimony from Lori Aria, a forensic scientist specializing in serology and hair comparison analysis. She found hair in the pocket of Brewer's overalls; however she was unable to match this hair with Brewer or Christine. Hair fragments were also recovered from the underwear and clothing of the three-year-old victim; however, these fragments were too small to compare. There was a blood stain in the right front pocket of Brewer's overalls. Brewer's blood type was O, and the child had type A blood. The blood in the overalls was type O blood. There was a blood stain on Brewer's blue shirt, right above the pockets. Aria was unable to detect an ABO blood type from this sample however. Also, there was blood found on the short pants that Christine was wearing and the blanket that was on the pallet. Aria determined that the blood on the blanket was human blood, but she was unable to determine a blood type. She was also unable to determine the blood group type from the blood stain on the little girl's pants.
¶24. Semen was detected on the child's vaginal slide. No Conclusions could be drawn from this semen, however, because there were only five spermatozoa. Semen was also detected on the front of Brewer's underwear. A little girl's dress was submitted to the crime lab for analysis. Aria found a substance which she determined was "possible fecal material" in her report.
¶25. Aria was allowed to testify before the jury that, based upon her visual, smell, microscopic and amylase tests, the substance was fecal material. The fecal matter was located on the front left shoulder and down the front area of the dress -- not in the back of the dress, which would have been consistent with the child having soiled the garment.
¶26. The State also presented the testimony of Dr. Steven Hayne, a physician who qualified in the trial as an expert in forensic pathology. Dr. Hayne examined the body of Christine Jackson on May 09, 1992. An external exam of the child's head revealed non-circumferential abrasions and scrapes to the skin of the neck. Dr. Hayne opined the marks represented the application of force on the child's neck while she was alive. There were similar abrasions on her arms, forearms and hands. Some of them were defensive posturing injuries. In Dr. Hayne's opinion, three-year-old Christine was "thrashing and fighting" as best she could for her life.
¶27. An internal examination of the child's body showed that she did not die of fresh water drowning. Instead, Dr. Haynes opined that she died of manual strangulation by hand. An examination of her vaginal area revealed one-half inch contusions on the top, bottom, right and left sides of the vaginal vault. There was a one centimeter contusion on the labia menorrhea, and there was a laceration extending from the vaginal vault to the rectum and anus, forming one large tract. In short, the child had been brutally raped in such a way that her vaginal vault was ripped open all the way to her anal opening. The injuries were consistent with those caused by the forceful penetration of a male penis. There would not have been a large amount of bleeding from the child's vagina due to the extent of the bruising he found, which indicated that death occurred shortly after the injury was sustained.
¶28. Dr. Hayne also found wound patterns on the child's body which resembled bite marks. He did not believe these wound patterns were from decomposition, slippage or insect bites. As such, he asked Dr. Michael West to evaluate the child's body.
¶29. Dr. West, a general dentist practicing in Hattiesburg, Mississippi was the State's expert forensic odontologist. He testified that he examined the three-year-old child's body on May 5, 1992. On May 8, 1992, Brewer, Gloria Jackson (the victim's mother), Dewayne Graham and Leshone Williams were brought to West's office so that he could obtain dental impressions from them. On May 9 West returned to the morgue to compare the above-named individuals' dental models to the bite mark patterns on the child's body. In looking at the child's body, Dr. West saw three or four marks that he immediately identified as bite marks. There were nineteen bite marks on the child's body. Out of nineteen, five of them were "very good." The other fourteen bite marks were fair to average to poor. *fn4
¶30. When West performed the direct comparison test, none of the dental impressions from the individuals matched the wounds on the three-year-old's body except Brewer's. Dr. West evaluated Brewer's teeth to detect any individualizing characteristics in his impression that matched patterns in the bite mark. The doctor discovered that one of Brewer's front teeth had a chip in it and that his upper teeth were much sharper than his lower teeth. In addition, there was a gap between his front teeth. To a reasonable medical certainty, Dr. West opined that Brewer's teeth inflicted the five bite mark patterns found on the body of Christine Jackson. The doctor further concluded that it was "highly consistent and probable" that the other fourteen bite mark patterns were also inflicted by Brewer.
¶31. The State rested its case-in-chief following Dr. West's testimony. The defense moved for a directed verdict, asserting that the State failed to make out a prima facie case of the offense charged. The trial court overruled the motion.
¶32. The defense presented the testimony of Dr. Souviron, a licensed dentist who was a founding member of the ABFO. Dr. Souviron opined that none of the wounds on the child's body were bite marks. This was his opinion because there were no corresponding lower teeth prints found on the child's body. Dr. West explained that, for some unknown reason, Brewer's lower teeth were not very sharp.
¶33. On cross-examination, it was determined that Souviron had no problem with the direct comparison technique used by West in this case. In fact, he admitted to using the same technique in past bite mark cases.
¶34. The defense also called Brewer's brother, Charlie, as a witness. He testified that on May 3, 1992 he went to visit his mother where he was informed by a niece that Christine was missing. He then went to Jackson's home where he and Brewer purportedly searched for Christine together. According to Charlie, he and Brewer walked right to the edge of the creek behind Jackson's home in their search for the child.
¶35. In rebuttal, the State presented the testimony of Officer Eichelberger, chief investigator of the Noxubee County Sheriff's Department. Eichelberger told the jury that during his investigation of this case, he took a statement from Charlie Brewer and that, in this statement, Charlie never said anything about going to the creek with Brewer on the morning of May 3, 1992 to search for Christine. In fact, Eichelberger specifically asked Charlie when had he last seen Brewer, and Charlie replied, "The Wednesday before he was arrested." Brewer was taken into custody on a Sunday, May 3. Charlie's statement was taken on May 11, 1992.
¶36. Based upon the preceding evidence, the jury found that Brewer committed the offense of capital murder while engaged in the commission of the crime of sexual battery. The jury heard evidence in the penalty phase the next day and sentenced Brewer to death by lethal injection.
¶37. On May 9, 1995, Brewer filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial, which raised fifteen assignments of error. The motion was overruled on August 21, 1995. Aggrieved, Brewer appeals to this Court for relief.
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL
¶38. In his first assignment of error, Brewer argues that his right to a speedy trial under the federal and state constitutions was violated in light of a delay of approximately 1,051 days from the date of arrest to the commencement of trial. Brewer was arrested on May 3, 1992. Trial began on March 20, 1995.
¶39. The right to a speedy trial attaches at the "'time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge.'" Perry v. State , 637 So. 2d 871, 874 (Miss. 1994) (quoting Lightsey v. State , 493 So. 2d 375, 378 (Miss. 1986); see also Vickery v. State , 535 So. 2d 1371, 1376 (Miss. 1988). In Smith v. State , 550 So. 2d 406 (Miss. 1989), this Court held that for constitutional purposes the right to a speedy trial attaches at arrest. Id. at 408. "'Once the constitutional right to a speedy trial has attached, this Court examines the facts of the case and engages in a functional analysis of those facts in accordance with Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) , to determine whether the constitutional right to a speedy trial has been denied.'" Perry , 637 So. 2d at 874 (quoting Handley v. State , 574 So. 2d 671, 674 (Miss. 1990)).
¶40. Under Barker , the factors to be weighed and balanced in light of the facts of each case include (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) the prejudice resulting to the defendant [because of the delay. Barker , 407 U.S. at 530. In Jaco v. State , 574 So. 2d 625, 630 (Miss. 1990), this Court noted that "No one factor is dispositive."
¶41. If the delay complained about is not presumptively prejudicial, the analysis goes no further. Jaco , 574 So. 2d at 630. An eight-month delay was held to be presumptively prejudicial by this Court in Smith v. State , 550 So. 2d 406, 408 (Miss. 1989). Although the length of the delay may be presumptively prejudicial, the other factors must still be considered. Perry , 637 So. 2d at 874 (citing Handley , 574 So. 2d at 676). We now turn to those factors.
¶42. As this is a constitutional speedy trial claim, the triggering event is the date of Brewer's arrest, May 3, 1992. See Smith , 550 So. 2d at 408 (holding that for constitutional purposes the right to a speedy trial attaches at arrest). Brewer was tried on March 20, 1995 -- 1,051 days (more than thirty-four months) after his arrest. It is indisputable that more than eight months had passed from the date of Brewer's arrest to the date his trial commenced. Such a delay is presumptively prejudicial, thereby necessitating an inquiry into the other Barker factors. Id.
¶43. "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government." Barker , 407 U.S. at 531. Also, a more neutral reason for the delay, such as negligence or overcrowded courts, should be weighted against the government, albeit less heavily. Id. This Court has held that delay attributable to the defense is excusable. Smith v. State , 489 So. 2d 1389, 1391 (Miss. 1986) (explaining that such a delay is understandable where the defendant has "deliberately done something to cause the delay") (citing Foran v. Metz , 463 F. Supp. 1088, 1095 (S.D.N.Y. 1979), aff'd , 603 F.2d 212 (2d Cir. 1979), cert. denied , 444 U.S. 830, (1979) (holding that the defendant, by means of various motions, raised issues which "precluded" the case coming to trial)).
¶44. Here, much of the delay is attributable to the defendant. Brewer filed numerous pre-trial motions following his arrest. During the hearing on his motion to dismiss the prosecution, it was noted by the trial court that this case involved "unusual particular circumstances" which had caused the delay. Particularly, the court found that the instant matter involved capital murder which he personally treated differently due to the gravity of the offense and possible punishment to be imposed. Furthermore, the court noted that there had been such a lengthy delay due to the multitude of motions filed by the defense, which required not only the time, effort and due consideration of counsel for both parties -- but of the trial court as well. Additionally, the trial court noted that the delay had been caused by him giving defense counsel more time to file other motions and the necessary post filing time required to review, hear evidence and subsequently rule on those additional motions.
¶45. The record bears out the lower court's findings. From the date of Brewer's arrest -- May 3, 1992 -- until he filed the motion to dismiss, the 498-day delay attributable to the State was not deliberately designed to hamper or harass Brewer and was not unreasonable. Instead this time was used to conduct necessary pre-trial business, including the appointment of counsel, hold a preliminary hearing, indict and arraign Brewer, hear several defense motions, appoint additional counsel, grant a defense expert, hear more motions and rule on expert fees and a suppression motion.
¶46. After Brewer's motion to dismiss was overruled on September 13, 1993, the remainder of the pre-trial delay was clearly attributable to the defense. On this record, it is apparent that most of the delay was caused by Brewer and should therefore weigh heavily against him. It cannot be said that the State made any deliberate attempts to delay the trial in order to harm the defense. That portion of the delay attributable to the State was necessary.
C. DEFENDANT'S ASSERTION OF THE RIGHT TO A SPEEDY TRIAL
¶47. Brewer did not request a speedy trial. He only moved to dismiss the prosecution for a denial of a speedy trial. Indeed, he did not alternatively request an immediate trial in his motion to dismiss. Also on November 20, 1992 during a hearing on various defense motions, counsel for Brewer told the trial court that he had not requested a speedy trial to date, but that he "might" do so. Beyond the motion to dismiss the prosecution, which was premised primarily upon a statutory speedy trial claim, Brewer did not make such a request. Thus, this factor weighs against Brewer. See Perry v. State , 637 So. 2d 871, 875 (Miss. 1994) (stating that "a demand for dismissal for violation of the right to speedy trial is not the equivalent of a demand for speedy trial..."); see also Barker , 407 U.S. at 531-32.
D. PREJUDICE TO THE DEFENDANT
¶48. The final factor to be considered is the prejudice the delay caused to the defendant. The right to a speedy trial was designed to (1) prevent oppressive pretrial incarceration of the accused; (2) minimize anxiety and concern of the accused; and (3) limit the possibility that the defense will be impaired. Barker , 407 U.S. at 532. The most serious of these interests is the last one, as noted by the United States Supreme Court. Id.
¶49. Here, Brewer was incarcerated for almost three years before his trial commenced. We have nevertheless held that a lengthy pre-trial incarceration does not per se mandate reversal. See Ross v. State , 605 So. 2d 17, 23 (Miss. 1992) (maintaining that a defendant's assertion of prejudice attributable solely to incarceration, with no other harm, is typically not sufficient to warrant reversal) (citing Williamson v. State , 512 So. 2d 868, 877 (Miss. 1987); Russell v. Lynaugh , 892 F.2d 1205, 1215 (5th Cir. 1989)).
¶50. Brewer does not even assert that he suffered trial prejudice because of the lengthy pre-trial incarceration. He generally states that an accused's defense may be impaired by a lengthy delay; however, he does not cite any way in which his defense was so prejudiced. He does not argue that witnesses were unavailable because of the delay or that evidence had been lost or destroyed or that his defense against the charge of capital murder was affected in any way by the delay. Indeed, there is a complete absence of any kind of trial prejudice to Brewer flowing from a delay caused primarily by him.
¶51. Considering the Barker factors as a whole, the length of delay in this case was presumptively prejudicial. The vast majority of that delay however was nevertheless not attributable to the State and not prejudicial to Brewer. Thus, we find no merit to this assignment of error.
STATUTORY RIGHT TO A SPEEDY TRIAL
¶52. Brewer next argues that he was denied the right to a speedy trial guaranteed by Miss. Code Ann. § 99-17-1 (1994), which provides in pertinent part that: 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.
¶53. In cases involving § 99-17-1 where the facts reflect that the accused's trial did not commence within 270 days of arraignment, the State bears the burden of establishing that there was good cause for the delay. Vickery v. State , 535 So. 2d 1371, 1375 (Miss. 1988) (citing Nations v. State , 481 So. 2d at 760, (Miss. 1985); Turner v. State , 383 So. 2d 489, 491 (Miss. 1980); Durham v. State , 377 So. 2d 909 (Miss. 1979)). Where the record is silent regarding the reason for the delay, the clock ticks against the State because it is the State which bears the risk of non-persuasion on the good cause issue. Vickery , 535 So. 2d at 1375 (citing Nations , 481 So. 2d at 761).
¶54. Brewer was arraigned on September 16, 1992. On November 20, 1992, the trial court held a hearing on a number of defense motions, including a motion to suppress evidence. The trial court ruled on the suppression motion August 25, 1993. Following that order, the defense filed several other motions, including two motions for continuance, a request for change of venue and a request for additional time to locate another expert witness after the initial expert died.
¶55. The days which lapse while a motion to suppress is being considered by the trial court are not counted against the State. Ford v. State , 589 So. 2d 1261, 1262-63 (Miss. 1991). Neither does the time which passes during the consideration of numerous defense motions. Polk v. State , 612 So. 2d 381, 386 (Miss. 1992).
¶56. It is not disputed that a total of 915 days passed from the time Brewer was arraigned to the commencement of trial -- clearly beyond the 270-day maximum prescribed in § 99-17-1. Nevertheless after deducting the time which lapsed due to defense motions, the court's consideration of the motion to suppress, the two continuances requested by Brewer and a change of venue request, this Court finds that he was tried well within the 270 day limit.
¶57. Sixty-five days had passed when Brewer argued his motion to suppress to the trial court on November 20, 1992. On March 22, 1993, he filed additional motions. By this time, 187 days had passed. The trial court ruled on the motions on August 25, 1993 -- after 343 days had passed. Nineteen days later -- on September 13, 1993 -- Brewer filed the motion to dismiss the prosecution.
¶58. The time between the presentation of the motion to suppress and the Judge's ruling on that motion constituted 278 days (November 20, 1992 to August 25, 1993). These days should not be counted against the State. See Ford , 589 So. 2d at 1262-63 (time when motion to suppress is being considered should not be counted against the State). Eliminating these 278 days, only eighty-four (84) days were on the statutory clock. *fn5 On December 21, 1993, Brewer requested a continuance. From the time the motion to dismiss was argued and overruled to the time of Brewer's first continuance, ninety-nine days passed. This brings the total number of days counted against the State to 183. *fn6 The trial court granted Brewer's change of venue request on March 16, 1994, and the trial date was changed on March 25, 1994. There is no justification for this change in trial dates in the record. Since the record is silent on this issue, we will assume that this delay was attributable to the State. That brings the total number of days counted against the State to 192. *fn7
¶59. The record further indicates that on May 27, 1994, defense counsel informally requested a continuance due to the unexpected death of his expert. At that hearing, defense counsel told the trial court Judge that he did not know at the moment whether it was necessary to continue the trial date. It was disclosed that the deceased expert had the State's exhibits, e.g., Brewer's dental models, and that the executrix of his estate had not been very knowledgeable or cooperative regarding the return of those exhibits to the State. The trial court informed both parties that, in light of the death of the expert and the problem with obtaining the State's exhibits, that he would probably end up changing the trial date setting from its previously scheduled date of August 01, 1994. There was no objection from either party to this proposition.
¶60. On July 11, 1994, a new defense expert was appointed and trial was to commence on November 28, 1994. However the defense again moved for a continuance.
¶61. Based upon our careful review of the record evidence and the events which occurred in this matter, this Court concludes that of the 915-day delay between Brewer's arraignment and trial, the State can only be held accountable for 192 days of that total. Following the motion to dismiss, Brewer was responsible for the vast majority of the delay except the nine days between March 16, 1994 and March 25, 1994 -- which are unaccounted for in the record. Furthermore, the subsequent delay following the death of the defense expert was due to Brewer's actions.
¶62. No prejudice resulted from Brewer defending against this charge. Nor was there any oppressive conduct engaged in by the State. See State v. Harrison , 648 So. 2d 66, 71 (Miss. 1994) (explaining that a dismissal with prejudice is not required by the statute unless the state upon finding a violation fails to persuade the court that the violation did not prejudice the defendant's ability to defend against the charge and that the state did not deliberately engage in oppressive conduct). This assignment of error is without merit and does not entitle Brewer to any relief.
¶63. In his third assignment of error, Brewer argues the State violated Uniform Criminal Rule of Circuit Court 4.06, *fn8 in effect at the time of his trial, when the prosecutor allegedly failed to disclose the anticipated opinion of Lori Aria, the forensic scientist who analyzed the victim's and Brewer's clothing for evidence. In her report, Aria stated that she observed a substance on the victim's dress that was "possible fecal material." Defense counsel challenged Aria's ability to testify about her findings about the dress, arguing that her opinion was based on "mere possibilities" and not a reasonable degree of medical certainty.
¶64. During the State's proffer outside the presence of the jury, Aria testified that based upon tests performed it was her opinion within a degree of reasonable medical certainty that the substance was "probably" fecal material. Counsel for Brewer moved to exclude the scientist's testimony since her report only said the material was "possibly" fecal matter. The trial court allowed the testimony, finding that the report was timely furnished in discovery and that the report indicated the substance showed a possible fecal material. Brewer presently argues that Aria's testimony should have been excluded and its admission constituted reversible error.
¶65. Rule 9.04(A)(4) requires that "[a]ny reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case" be disclosed by the prosecutor to the defendant or his attorney. This rule further provides that if, during a trial, the prosecution seeks to introduce evidence which has not been timely disclosed to the defense as required and the defense objects, then the trial court has the authority to either grant the defense an opportunity to examine the documents. If the defendant, upon examination, claims unfair surprise or undue prejudice and requests a continuance the trial court shall either exclude the evidence or grant the requested continuance. URCCC 9.04(I) (emphasis added).
¶66. We have established guidelines for dealing with discovery violations in URCCC 9.04(I) , which provides in pertinent part that: If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of Justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the nondisclosed evidence or grant a mistrial.
See also Box v. State , 437 So. 2d 19, 26 (Miss. 1983) (Robertson, J., specially Concurring).
¶67. Here, we are not presented with a situation involving undisclosed evidence. In fact, the lab report disclosed that "possible fecal material was observed to be present on the front of the dress." Brewer makes much to do about the use of the word "possible," arguing that the report failed to inform him that Aria had reached an opinion within a reasonable degree of medical certainty that the substance was "probably" fecal material.
¶68. The record evidence belies his assertions. The lab report clearly put Brewer on notice that Aria had found "possible fecal material." During the State's proffer on Brewer's motion to exclude Aria's testimony, the scientist explained that there is no substance in fecal material that is unique, thereby enabling one to absolutely identify a substance as fecal matter. Only after a battery of tests -- in this case sight, smell, microscopic and amalyse -- are conducted can one conclude with a reasonable degree of medical certainty that a substance is or is not fecal in nature.
¶69. Brewer's reliance on Acevedo v. State to argue that Aria's Conclusion was a surprise is misplaced. The opinion she rendered at trial did not totally contradict her findings in the lab report as was the case in Acevedo. There, the State's expert witness abandoned the Conclusions in his lab report during trial and rendered a totally different one, of which the defense was not made aware. This Court found error. Acevedo v. State , 467 So. 2d 220, 223-24 (Miss. 1985).
¶70. A totally different situation is presented in this instance. Here, the scientist's use of the word "possible" to describe whether the substance was fecal matter was an exercise in scientific caution in light of her testimony that there is nothing in fecal matter which guarantees or makes possible its absolute identification. Furthermore, assuming that the scientist's opinion did in fact unfairly surprise or prejudice Brewer, he had a duty to request a continuance. URCCC 9.04(I) ; Box , 437 So. 2d at 26. He failed to do so, and such a failure constitutes a waiver.
¶71. Brewer next alleges racial discrimination in the State's use of its peremptory challenges against several black jurors. Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). It is the State's position that Brewer waived the right to claim error when he failed to object to the jury before it was sworn, citing Jones v. State , 517 So. 2d 1295, 1310-11 (Miss. 1987); Pickett v. State , 443 So. 2d 796, 799 (Miss. 1983). *fn9 The State further asserts that Brewer's claim falls short due to his failure to designate a complete record for this Court's review. Lastly, the State maintains that the reasons given by the prosecutor for his exercise of the peremptory challenges were not pretextual.
¶72. In order for a defendant to establish a prima facie case of purposeful discrimination in the selection of jury members, he must show: (1) that he is a member of a "cognizable racial group"; (2) that the prosecutor has exercised peremptory challenges toward the elimination of venire members of his race; and (3) that facts and circumstances raised an inference that the prosecutor used his peremptory challenges for the purpose of striking minorities. Berry v. State , 703 So. 2d 269, 294 (Miss. 1997) (citing Conerly v. State , 544 So. 2d 1370, 1372 (Miss. 1989); Batson , 476 U.S. at 96-97 ; Lockett v. State , 517 So. 2d 1346, 1349 (Miss. 1987)).
¶73. The trial court initially stated that no prima facie case of purposeful discrimination had been shown here; however, the court went on to require the State to give race-neutral explanations for its peremptory challenges. Thus, an analysis of those reasons follows.
¶74. When a Batson issue arises, the trial Judge acts as finder of fact. Berry , 703 So. 2d at 295. This Court may not substitute its judgment for that of the trial Judge if there is sufficient evidence in the record to support the Judge's findings. Id. (citing Turner v. State , 861 S.W.2d 36, 39 (Tex.App. Houston 1993)). Here, Brewer offered no rebuttal to the prosecutor's race-neutral reasons. Thus, the trial court's findings are based on the State's reasons only. Bush v. State , 585 So. 2d 1262, 1268 (1991).
¶75. The State's first peremptory challenge was to a black female. The reasons given were that she had been employed in two other places other than her current one although she was only thirty-nine years old. She had a college degree; yet she was only a cashier at Fred's, which showed a lack of success and that such individuals are frequently bitter with a very sour outlook on life. She had a penchant for soap operas which showed that she tended to live in a fantasy world and believed things that she saw on television, as well as believed in conspiracies, ghosts, goblins and things of that nature. The trial court found the above to be a race-neutral reason.
¶76. The State's third peremptory strike *fn10 was to a black female, and the reasons for that challenge included: she intimated on the questionnaire that she was very religious, loved people, Jesus and her family. The prosecutor did not feel she could give the death penalty in light of her response that she loved people. He found it inherently inconsistent to say that one loves people, but is nevertheless going to kill a person. The trial court initially stated that this was not a sufficient race-neutral reason, but reserved his final ruling until the end of the hearing.
¶77. The State's fourth challenge was to a black man who, the record explicitly shows, had attempted to get off jury duty from the start. The man told the trial court that he was disabled, suffered from headaches and dizzy spells. He had been arrested in 1968 for public drunkenness. The court found this to be a sufficient race-neutral reason. The fifth peremptory challenge was to a black man who had been arrested for a drug offense and convicted of that offense in city court. Also, the man had no children, and his family members were well known to the prosecutor for being in trouble with the law. The trial Judge accepted these reasons.
¶78. The State's sixth peremptory challenge was to a black woman who did not completely fill out the questionnaire -- leaving the party and religious preference parts blank. She was a Rice, and there were many members of the Rice family who were on file with the worthless check unit. Also, a Roger Rice had been tried in the court although the prosecutor could not say if the woman was related to these people. Also, she read the types of publications that frequently "railed" against the death penalty. The Judge accepted the prosecutor's reasons.
¶79. The seventh challenge was to a black woman who had been a juror in a criminal case where no verdict was reached. In addition, the woman had been arrested for shoplifting and she might have been related to a man who was previously tried in the same court. These reasons were acceptable. The State's final peremptory challenge to a black person was to a black woman who stated that she too watched a lot of soap operas, who did not list an occupation on the jury form and who only had a grade school education. The prosecutor did not believe she would be able to understand the testimony of the dental experts. The proffered reasons were accepted by the court as race-neutral.
¶80. "A peremptory challenge does not have to be supported by the same degree of justification required for a challenge for cause." Stewart v. State , 662 So. 2d 552, 558 (Miss. 1995) (citing Batson , 476 U.S. at 97 ); Harper v. State , 635 So. 2d 864, 867 (Miss. 1994); Benson v. State , 551 So. 2d 188, 192 (Miss. 1989)). "The establishment of a race neutral reason is not a difficult task." Stewart , 662 So. 2d at 558. However, the prosecutor does not rebut a prima facie case of purposeful discrimination by merely denying that he had a discriminatory motive or by "affirm[ing] [his] good faith in making individual selections." Instead, the prosecutor must articulate a neutral explanation related to the particular case to be tried. Batson , 476 U.S. at 98.
¶81. The trial court decided in this instance that the State offered sufficient race-neutral reasons for its peremptory challenges, including its third strike which the trial court initially found insufficient. The record supports the trial court's decision. In Lockett , this Court provided a list of race-neutral reasons accepted in other jurisdictions for guidance. Lockett , 517 So. 2d at 1356-57.
¶82. The only reasons not included which were given here were the prosecutor's beliefs about people who watch soap operas and who state they love people but could nevertheless sentence someone to death. This Court concludes that these reasons are also sufficiently race-neutral. In Batson , the Supreme Court pointed out that "'[t]here are any number of bases' on which a prosecutor reasonably may believe that it is desirable to strike a juror who is not excusable for cause." Batson , 476 U.S. at 98 n 20 (quoting McCray v. Abrams , 750 F.2d 1113,1132 (2d Cir. 1984)). The only requirement is that the prosecutor give clear and reasonably specific explanations for his reasons. Id. This Court has implicitly recognized that a prosecutor may follow his intuition so long as his judgment does not tell him that "'... [black jurors] would be partial to the defendant because of their share[d] race.'" Lockett , 517 So. 2d at 1352 (citing Williams v. State , 507 So.2d 50, 52 (Miss.1987)). Regarding the jurors who watched soap operas, and the juror who stated that she loved people, the prosecutor was merely following his intuition or perception as to those jurors' suitability for a capital murder trial. There is absolutely no indication that the prosecutor struck these jurors for racial reasons. The trial court accepted these reasons and effectively overruled Brewer's Batson challenge. The record buttresses the trial court's findings and they will be given deference accordingly. Moreover, this is a case involving a black victim, a black defendant and a jury which was comprised of blacks, thereby diminishing Brewer's contention that the prosecutor purposely struck black jurors. *fn11 See Mack v. State , 650 So. 2d 1289, 1298 (Miss. 1994).
PROPRIETY OF REJECTING AN ACCOMPLICE ...