The opinion of the court was delivered by: McMILLIN, C.j.
DATE OF JUDGMENT: 01/17/96
TRIAL JUDGE: HON. RICHARD WAYNE MCKENZIE
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: STRONG ARMED ROBBERY: SENTENCED TO SERVE A TERM OF 15 YRS IN THE CUSTODY OF THE MDOC
¶1. On October 4, 1993, Mary Mathis was assaulted and robbed by a man later identified as the defendant in this cause, Marvin Beckum. Beckum was subsequently arrested and charged with the crime. His initial appearance before a magistrate occurred on October 8, 1993, at which time bond was set at $50,000. After that appearance, Beckum signed a waiver of his Miranda rights and gave a statement to an investigating officer that admitted his involvement in the incident. Beckum was subsequently formally indicted for armed robbery, tried, and convicted. He has now appealed to this Court raising three issues which he claims warrant a reversal of his conviction. We disagree and affirm the judgment of sentence.
I. The First Issue: The Trial Court's Refusal to Suppress Beckum's Confession
¶2. Beckum sought unsuccessfully to suppress his post-arrest statement and he now raises its admission at trial as reversible error. The State counters Beckum's assertion of error with essentially three arguments. First, the State argues that the confession met all of the requirements for voluntariness under applicable precedent regarding Miranda warnings and proper procedures for waiving the Fifth Amendment right to assistance of counsel under Miranda. Second, the State seems to suggest that Beckum is procedurally barred from raising the separate issue of whether his Sixth Amendment right to the presence of counsel was violated by the interrogation. Third, the State alternatively argues that the admission of Beckum's confession was, even if improper, harmless error because of the overwhelming evidence of his guilt.
¶3. To begin our evaluation of the arguments we look to see if Beckum was in fact represented by counsel at the time of his confession. The order entered by the magistrate conducting Beckum's initial appearance after his arrest is, to a certain extent, contradictory when addressing the matter of Beckum's representation. In the first paragraph, the order states that Beckum "appeared in Court represented by Hon. Jeff Bradley, Attorney of Record." The order, however, states elsewhere that "[t]he defendant is unrepresented," and declares that he was advised of his right to representation that included appointed counsel in the event he was without the necessary legal fees to hire an attorney. The law is well-settled that, once a suspect has invoked his right to counsel after initiation of formal adversarial proceedings by the State, no subsequent waiver of right to counsel connected with a police-initiated interrogation as to that crime can be effective. Kirby v. Illinois, 406 U.S. 682, 688 (1972); Cannaday v. State, 455 So. 2d 713, 722 (Miss. 1984). The issue, therefore, becomes whether Beckum had, at the time of his interrogation, invoked his right to representation in regard to the particular offense involved in this case. The only evidence in the record on the point is the magistrate's order referred to above. Beckum presented no evidence at the suppression hearing that he ever did anything further to invoke his right to counsel at the initial appearance or at any time prior to making the incriminating statement to the investigating officer. We find the magistrate's rather inconclusive order insufficient to suggest unequivocally that Beckum had invoked his Sixth Amendment right to counsel. The Mississippi Supreme Court, in considering a similar question in the case of Wilcher v. State, quoted with approval the following passage from a Fifth Circuit opinion:
"A defendant's Sixth Amendment right to counsel attaches upon the initiation of adversary proceedings. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). Wilcher asserts that even if his waiver was voluntary and knowing, the questioning in this case violated the prophylactic rule of Michigan v. Jackson, 475 U.S. at 635, 106 S.Ct. at 1411. The Supreme Court held in Jackson that "if police initiate interrogation after a defendant's assertion at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." Id. The State argues that Wilcher never took any action to invoke his right to counsel and therefore had not triggered the Jackson rule."
"We recently addressed the effect of appointment of counsel on the rights of a defendant who has never asserted or accepted the counsel. We held that a defendant's Sixth Amendment rights are not violated by questioning in the absence of his attorney unless the defendant has asserted his right to an attorney. Montoya v. Collins, 955 F.2d 279 (5th Cir.1992). . . . We held that "for purposes of Jackson, an 'assertion' means some kind of positive statement or other action that informs a reasonable person of the defendant's 'desire to deal with the police only through counsel.' " Id. at 283. Thus, we concluded that Montoya's interrogation did not violate the rule of Jackson because he did not assert a right to counsel and thereby trigger its protection."
"Wilcher likewise did not assert a right to counsel in his interrogation by the officers. Under Montoya he was not protected by the rule in Jackson and voluntarily waived his right to counsel under the Sixth Amendment. Wilcher IV, 978 F.2d at 876."
"Therefore, because Wilcher did not request an attorney or in any way assert his Sixth Amendment right to counsel, his argument on this point is without merit. Furthermore, the evidence indicates that, upon being given his Fifth Amendment/Miranda warnings, Wilcher waived his right to counsel before each inculpatory statement was given. As a general rule, a defendant may waive his Sixth Amendment right to counsel when he waives his Fifth Amendment rights. Patterson v. Illinois, 487 U.S. 285, 296, 108 S.Ct. 2389, 2397, 101 L.Ed.2d 261 (1988); Mettetal v. State, 602 So.2d 864, 868 (Miss.1992)." Wilcher v. State, 697 So. 2d 1087, 1096-97 (Miss. 1997) (citing Wilcher v. Hargett, 978 F.2d 872 (5th Cir. 1992)).
¶4. In the absence of any affirmative evidence that Beckum accepted the representation of Attorney Bradley at the time of his initial appearance, we conclude that there is no basis to exclude Beckum's subsequent apparently voluntary statement based on the violation of any right accruing to him under the Sixth Amendment.
¶5. As to his claim that the statement was not voluntary because it was obtained while he was under the influence of narcotics and was extracted through promises of favorable treatment, the officer who took the statement and another witness who was present both testified as to the voluntariness of Beckum's confession. The trial court concluded that the State had demonstrated that Beckum freely and voluntarily made the incriminating statement after having been fully informed of those rights guaranteed him under the Fifth Amendment to the United States Constitution. Once the trial court has reached such a Conclusion, this Court may not interfere except when an incorrect legal standard was applied, manifest error was committed, or the decision is contrary to the overwhelming weight of the evidence. Willie v. State, 585 So. 2d 660, 665 (Miss. 1991). On that standard of review, we find no basis to interfere with the trial court's decision to admit Beckum's statement.
The Second Issue: A Procedural Defect in Sentencing
¶6. Beckum complains that he was improperly sentenced because of the failure of the trial court to announce his sentence in open court while he was present. The record is clear that Beckum was not present in open court when sentence was pronounced by the trial court from the bench. In fact, there is no indication in the record that such a pronouncement ever occurred. A nunc pro tunc sentencing order was entered purporting to reflect the date Beckum last appeared in person in court; however, that avails the State nothing because the transcript of that appearance shows that the trial court did not pronounce sentence at that time, but rather deferred the matter because Beckum had a new attorney who said, in regard to the sentencing, "I don't know what the sentence was." Beckum's new counsel was not alone in that predicament since there is no evidence that sentence had been set. Uniform Circuit and County Court Rule 11.01 requires that "sentence shall be pronounced in open court at any time after conviction, in the presence of the defendant . . . and recorded in the minutes of the court." U.R.C.C.C. 11.01. Although a defendant's right of allocution in Mississippi is not absolute (see Johnson v. State, 461 So. 2d 1288, 1292 (Miss. 1984)), it is nevertheless a recognized privilege that may be exercised if asserted. Entering a judgment of sentence without a formal sentencing proceeding in open court at which the defendant is present effectively destroys even the possibility of the defendant exercising his right of allocution. Nevertheless, Section 99-35-143 of the Mississippi Code states that:
"[a] judgment in a criminal case shall not be reversed because the transcript of the record does not show . . . that the prisoner was present in court during the trial or any part of it, or that the court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict . . . unless the record show that the errors complained of were made ground of special exception in that court." Miss. Code Ann. §99-35-143 (Rev. 1994). In Jones v. State, the defendant specifically raised as an issue on appeal that the record did not show that he was in court when sentence was pronounced. Jones v. State, 227 Miss. 518, 527, 86 So. 2d 348, 349 (1956). The Mississippi Supreme Court, relying on this statute, said that Jones's failure to point out this perceived procedural defect at the trial level constituted a waiver of the issue on appeal. Id. at 527-28, 86 So. 2d at 350. We conclude that the same considerations apply in this case. Beckum had ample opportunity to present his grievance in the manner in which he was sentenced to the trial court. Had he done so, we have little doubt that this defect could have been remedied by appropriate action of the trial court. We decline to grant relief on this issue raised for the first time on appeal.
The Third Issue: Denial of a Speedy Trial
¶7. Beckum claims that his conviction should be reversed because he was not tried within 270 days of his indictment as required by Section 99-17-1 of the Mississippi Code or, alternatively, because he was denied a speedy trial as guaranteed him under the Sixth Amendment to the United States Constitution. Miss. Code Ann. § 99-17-1 (Rev. 1994).
¶8. Section 99-17-1 requires that a defendant be tried no later than 270 days after his arraignment, "[u]nless good cause be shown, and a continuance duly granted by the court . . . ." Miss. Code Ann. § 99-17-1 (Rev. 1994). In this case, Beckum was arraigned on June 21, 1994 and was not tried until August 22, 1995. Thus, 427 days elapsed between arraignment and trial. In that circumstance, the burden falls on the State to demonstrate good cause for the delay. Vickery v. State, 535 So. 2d 1371, 1375 (Miss. 1988).
¶9. In this case, the State relied upon proof that, shortly before his first scheduled trial date, Beckum changed attorneys of his own volition. The trial was then reset for approximately three months later, but about a month in advance of the second trial date, Beckum's substitute counsel moved to withdraw, indicating that his client had lost confidence in the attorney's ability to properly represent his interests. On November 30, 1994, the trial court appointed a member of the public defender's office to represent Beckum, and a scheduling order was entered setting a trial date of January 19, 1995. Without explanation appearing in the record, trial was not conducted on that date and there is no further indication in the record as to why Beckum's trial was delayed until August 21, 1995.
¶10. Beckum, by his own actions, prevented the trial from commencing any time prior to the November 15, 1994, trial date. Even then, the case was not triable after November 15 because of Beckum's lack of counsel. However, we conclude that this delay attributable to Beckum was ended by the appointment of counsel to represent him on November 30, 1994. Thus, we find that all delays from the date of arraignment until November 30, 1994, were attributable to Beckum's actions and served to toll the running of the statutory 270 period. Beginning the running of the 270 day period on November 30, 1994, even if it is conceded that there were no further delays chargeable to Beckum that would further toll the running of the period, it appears in the record that trial commenced on August 22, 1995, which was the 265th day. Therefore, excluding those delays caused by Beckum, there was no violation of Beckum's statutory right to a prompt trial as set out in Section 99-17-1. Miss. Code Ann. § 99-17-1 (Rev. 1994).
¶11. Beckum, by motion, raised the separate issue of whether his constitutional right to a speedy trial guaranteed under the Sixth Amendment was violated. He also argues on appeal that the trial court's refusal to dismiss on this separate claim requires reversal. However, our review of the record indicates that Beckum did not present any evidence to the trial court concerning this distinct question and did not obtain a ruling from the trial court on the alleged Sixth Amendment violation by the State. When the speedy trial motion was brought on for hearing, the inquiry was limited entirely to whether the statutory 270 day period from arraignment had been exceeded. The trial court, in ruling ...