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Perry v. State

Supreme Court of Mississippi, En Banc

June 1, 2017

BYRON PERRY a/k/a BYRON LEVAR PERRY a/k/a BYRON L. PERRY
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 07/22/2015

         CLAY COUNTY CIRCUIT COURT HON. LEE SORRELS COLEMAN, Judge

          TRIAL COURT ATTORNEYS: SCOTT ROGILLIO KRISTEN W. WILLIAMS

          ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: JUSTIN T. COOK GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA H. TEDDER

          DISTRICT ATTORNEY: SCOTT WINSTON COLOM

          CHAMBERLIN, JUSTICE

         ¶1. In the Circuit Court of Clay County, a jury convicted Byron Perry of aggravated assault and possession of a weapon by a previously convicted felon. The circuit court sentenced him as a habitual offender to twenty years for the aggravated-assault conviction and ten years for the weapon conviction, to run consecutively. Perry appeals, arguing that his constitutional and statutory rights to a speedy trial were violated and that the evidence was insufficient to support the trial court's finding that he was a habitual offender.

         ¶2. We hold that Perry's constitutional and statutory rights to a speedy trial were not violated. Further, we find no merit in Perry's argument that one of the two sentencing orders submitted by the State was insufficient to support a finding beyond a reasonable doubt that Perry was sentenced to one year or more and qualified as a habitual offender under Mississippi Code Section 99-19-81. Therefore, this Court affirms Perry's convictions and sentences.

         FACTS

         ¶3. In the fall of 2009, Shetamarah "Tamie" Willis met Perry, a sometime construction worker and gravedigger, at a nightclub in Columbus, Mississippi. The two embarked on a relationship that was physically intimate but not exclusive. Willis also was involved romantically with James Henry. In April 2010, Willis told Perry that she did not want to take their relationship any further because she was getting serious with Henry. Nonetheless, at around 8:00 p.m. on May 23, 2010, Perry and his cousin, Alvin Franklin, visited Willis's home in West Point and the three watched a movie. After the movie, Perry and Franklin left, but Perry shortly returned alone. At this point, Perry and Willis were alone in the house, because Willis's daughter, who resided there, was spending the night with her aunt. During the visit, Perry noticed that Willis's bags had been packed and placed in the living room. Willis explained that she and Henry were about to leave together for the Black Bike Week motorcycle rally in Myrtle Beach, South Carolina.

         ¶4. According to Willis, she and Perry then watched another movie, after which they fell asleep. When Willis awoke, she thought Perry had left. The aunt dropped off Willis's daughter, and Willis left home briefly to take her daughter to her mother's house for the day. Willis then got ready for work. She was in the kitchen making a sandwich to take to work when she looked up and saw Perry standing in the living room. He was staring at Willis with a "funny look" on his face, and she asked him if he was going crazy. Abruptly, he raised a handgun and fired a shot at her. The shot missed Willis, whereupon Perry grabbed her and the two began tussling in the kitchen. During the struggle, Willis's shoulder was burned by the hot muzzle of the gun. At some point, Perry tried to cock the gun, but the clip fell out, spilling cartridges across the kitchen floor. Willis managed to escape Perry's grasp and bolted from her home. Panicked, she ran directly into the home of her neighbor.

         ¶5. Willis testified that she ran inside her neighbor's home with full knowledge that the neighbor, Heather McClure, kept a blue nose pit bull guard dog inside the home, and that this dog "probably would get" her. Indeed, as soon as Willis closed the door, the dog attacked and bit her leg. As Willis testified, her thinking was "I didn't want to get killed. I would rather get bit." McClure heard Willis screaming, called off the dog, then called the police. When the police arrived a few minutes later, Willis, still panicked, informed them that Perry had shot at her. She testified that, before the shooting, Perry always had seemed like a nice fellow and that she never had felt threatened by him. Photographs of Willis's injuries from both gun and dog were admitted into evidence.

         ¶6. Perry next was spotted on the doorstep of Classie Hatchett, who lived about a mile from Willis. About 10:00 o'clock that morning, a man matching Perry's description knocked on Hatchett's door and said that someone in a black car was after him with a gun. He asked her to call the police and also for a glass of water. Hatchett closed and locked the door and called the police. When she returned, the man was gone. She testified that the man was hot and sweaty and out of breath, as if he had been running. At trial, Hatchett identified Perry as the hot and sweaty man.

         ¶7. Perry turned himself in the next day. The police recovered one .380 spent shell casing from just inside Willis's living room and three .380 unfired rounds from the kitchen floor. A photograph of a bullet hole in the kitchen wall was admitted into evidence. The gun never was recovered. The parties stipulated that Perry was a prior convicted felon on the date of the alleged crime, and the jury found Perry guilty of aggravated assault and possession of a weapon by a previously convicted felon. After reviewing the State's evidence of Perry's prior convictions, the trial court determined that Perry was a habitual offender and sentenced him to the maximum penalty for each crime, to be served consecutively and without eligibility for parole or probation.

         DISCUSSION

         I. WHETHER THE APPROXIMATELY FIVE-YEAR DELAY BETWEEN INDICTMENT AND TRIAL VIOLATED PERRY'S CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL.

         ¶8. A criminal defendant is guaranteed "the right to a speedy and public trial" by the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI; U.S. Const. amend. XIV. Additionally, the Mississippi Constitution guarantees the defendant "a speedy and public trial by an impartial jury of the county where the offense was committed." Miss. Const. art 3, § 26. This Court applies the four-part balancing test from Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to constitutional speedy-trial claims. That test requires balancing four factors to determine whether the right to a speedy trial was violated: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the speedy-trial right; and (4) prejudice to the defendant. Id. at 530, 92 S.Ct. 2182. Under Barker, each case must be considered on an ad hoc basis, and no single factor is outcome-determinative. Id. at 530, 533. Instead, "they are related factors and must be considered together with such other circumstances as may be relevant." Id. at 533. Because the factors are not talismanic, "courts must still engage in a difficult and sensitive balancing process." Id.

         ¶9. "The state bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of non-persuasion." DeLoach v. State, 722 So.2d 512, 516 (Miss. 1998). On review of the trial court's ruling on a speedy-trial claim, this Court "will uphold a decision based on substantial, credible evidence." Id. We will reverse if no probative evidence supports the trial court's good-cause finding. Id. In this case, Perry filed three motions for a speedy trial, but he never secured from the trial court a ruling on the motions. This Court has held that, when the defendant has asserted his speedy-trial right but the trial court did not hold an adequate hearing, we have two alternatives: "(1) decide the case based on a de novo review of the record before us, if good cause for the delay is apparent, or (2) remand the case to the circuit court to allow the State to present evidence explaining the delay and to conduct a proper Barker analysis." Rowsey v. State, 188 So.3d 486, 493 (Miss. 2015). Because, in this case, good cause for the delay is apparent from the record, remand is unnecessary.

         A. Length of Delay

         ¶10. The constitutional right to a speedy trial attaches at the time of formal indictment or information, or when the defendant is arrested. Smith v. State, 550 So.2d 406, 408 (Miss. 1989). We have held that a delay of eight months or longer is presumptively prejudicial and triggers the need for balancing the other three Barker factors. Id. Perry was arrested on May 25, 2010. He was not indicted until October 11, 2010. The next day, Perry waived arraignment, and his trial was set for January 11, 2011. But due to a series of continuances, he was not tried until July 21, 2015, a delay of approximately five years and two months. This period of delay, far exceeding eight months, was presumptively prejudicial.

         B. ...


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