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Berry v. State

January 14, 1999

MERLINDA BERRY
v.
STATE OF MISSISSIPPI MERLINDA BERRY
v.
STATE OF MISSISSIPPI



Before Sullivan, P.j., Banks And Roberts, JJ.

The opinion of the court was delivered by: Sullivan, Presiding Justice,

DATE OF JUDGMENT: 08/30/96 TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 01/14/99

¶1. Merlinda Berry was indicted on August 9, 1993, along with Rayford Jordan, in the Jasper County Circuit Court for transfer of cocaine on or about January 7, 1993. Jordan pled guilty to the charge, and Berry proceeded to trial. The evidence showed that on the evening of January 7, 1993, Homer Kemp, an undercover officer with the Jasper County Sheriff's Department, went to Jordan's home and asked him about making a drug purchase. Jordan did not have any drugs to sell him, but got into Kemp's car with him and directed him to Berry's house. Kemp gave Jordan thirty dollars, which he used to buy a couple of pieces of crack cocaine from Berry. Jordan then handed the crack over to Kemp. Both Kemp and Jordan testified to these facts at Berry's trial. Berry testified on her own behalf and stated that Jordan and Kemp came to her house on the night in question wanting to buy drugs, but denied selling either of them any crack cocaine.

¶2. The jury found Berry guilty of transfer of cocaine, and Circuit Court Judge Robert G. Evans sentenced her to serve an eight-year sentence. Berry appeals to this Court, assigning as error violation of her statutory and constitutional speedy trial rights, insufficient jury instructions on the definition of an accessory, and the discriminatory use of peremptory challenges in her case. We find that Berry's assertions have merit and therefore must reverse this case and remand it to the Jasper County Circuit Court for further proceedings. STATEMENT OF THE LAW

I. WAS THE APPELLANT DENIED HER STATUTORY AND CONSTITUTIONAL SPEEDY TRIAL RIGHTS SUCH THAT THE INDICTMENT SHOULD HAVE BEEN DISMISSED?

¶3. On August 16, 1996, Judge Evans held a hearing on Berry's motion to dismiss based upon violation of her right to a speedy trial. At the close of the hearing, Judge Evans advised Berry's counsel that he could call the court on the following Monday to obtain a ruling on the motion before trial was to begin on Tuesday. The record contains no order on Berry's motion to dismiss. The State contends that Berry's failure to obtain a ruling on her motion to dismiss precludes her from raising this issue on appeal. "The record does not reflect that any order was entered on the motion to change venue. It is the responsibility of the movant to obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of same." Martin v. State, 354 So.2d 1114, 1119 (Miss. 1978). See also Holly v. State, 671 So.2d 32, 36 (Miss. 1996)(failure to obtain ruling on motion in limine results in procedural bar). However, the right to a speedy trial is a fundamental constitutional right, and a defendant may only waive her speedy trial right by knowing and intelligent waiver.

The right to a speedy trial is subject to a knowing and intelligent waiver. Vickery, 535 So.2d at 1377. This Court will "indulge every reasonable presumption against the waiver of a constitutional right." Id., quoting Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393, 57 S.Ct. 809, 812, 81 L.Ed. 1177, 1180 (1937). Even when a defendant fails to assert his right to a speedy trial he does not permanently waive this right. Vickery, 535 So.2d at 1377.

Jenkins v. State, 607 So.2d 1137, 1140 (Miss. 1992). We find that Berry did not waive her right to a speedy trial in this case. The trial court erred in failing to enter a ruling in the record on Berry's motion to dismiss. As a result, we must remand this case to the circuit court for further proceedings on this matter. II.

DID THE TRIAL COURT COMMIT PLAIN ERROR IN GRANTING JURY INSTRUCTION S-3, WHICH RELIEVED THE STATE OF THE FUNDAMENTAL REQUIREMENT OF PROVING EVERY ELEMENT OF THE CHARGE?

¶4. Without objection by Berry, the jury was given Instruction S-3 on the definition of an accessory. That instruction reads as follows:

The Court instructs the jury that each person present at the time, and consenting to and encouraging the commission of a crime, and knowingly, willfully and feloniously doing any act which is an element of the crime, or immediately connected with it, or leading to its commission, is a principal. One who aids, assists and encourages a transfer of cocaine is a principal and not an accessory, and his guilt in nowise depends upon the guilt or innocence, the conviction or acquittal of any other alleged participant in the crime. Therefore if you believe from the evidence, beyond a reasonable doubt, that Merlinda Berry did willfully, unlawfully and feloniously do any act which is an element of the crime of transfer of cocaine, as defined by the Court's instructions, or immediately connected with it, or leading to its commission, then and in that event, you should find Merlinda Berry guilty of transfer of cocaine as charged in the indictment.

ΒΆ5. Berry maintains that this instruction is insufficient in that it does not require the jury to find that the crime was actually completed. Berry also asserts that the instruction unconstitutionally relieves the State of its burden to prove every element of the crime beyond a reasonable doubt. The State's position is that read as a whole, the jury instructions adequately informed the jury of the State's burden, because additional instructions (Instructions S-2, D-2, C-5, and C-2) ...


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