DAVID LEE MAY A/K/A DAVID L. MAY A/K/A DAVID MAY APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 10/10/2017
HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON.
CHRISTOPHER LOUIS SCHMIDT TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
GEORGE T. HOLMES PHILLIP BROADHEAD
PHILLIP BROADHEAD ATTORNEYS FOR APPELLEE: OFFICE OF THE
ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN LADONNA C. HOLLAND
DISTRICT ATTORNEY: JOEL SMITH
Following a jury trial in the Harrison County Circuit Court,
David Lee May was convicted of two counts of aggravated
assault and sentenced, as a violent habitual offender, to
concurrent terms of life imprisonment. May raises one issue
on appeal: whether the circuit court should have dismissed
his indictment based on a violation of his constitutional
right to a speedy trial. We find no error and affirm.
AND PROCEDURAL HISTORY
On October 27, 2012, May was arrested for the aggravated
assaults of Jessica McLard and Arnold Quave. May was indicted
for two counts of aggravated assault on June 17, 2013, as a
violent habitual offender, and the court appointed counsel
(Phillip Wittman) to represent him three days later. On July
22, 2013, in a separate cause number, May was indicted for
possession of cocaine, again as a violent habitual offender.
The same day, May filed a motion for a continuance in both
cases. The reason given for May's request was "new
discovery for the defendant." The motion stated that May
waived his speedy trial rights and objections. The court
granted the motion "upon consideration of good
cause." The court set trial for September 23, 2013.
However, trial did not commence on that date. It appears that
trial may have been continued on that date because May
informed the court that he wanted to proceed pro se with
Wittman as "standby counsel."
On October 14, 2013, May and the State filed a joint motion
for a continuance on the grounds that a witness for the State
was unavailable and May needed time to review discovery
materials. The court granted the motion "upon
consideration of good cause" and reset the trial for
November 4, 2013.
On November 12, 2013, May filed a pro se motion for a speedy
trial in this case. The next day, the court entered an order
applicable to both of May's cases. The order stated that
both cases had been set for trial the week of November 4,
2013, but neither was tried because a case above them on the
docket had gone to trial. The order also stated that the
parties had agreed to a hearing date on May's motion to
suppress in the drug case (December 2, 2013) and a new trial
date for both cases (December 9, 2013).
On December 9, 2013, May's drug case went to trial. He
was convicted of possession of cocaine and sentenced to life
imprisonment as a violent habitual offender. May appealed.
Nothing else happened in May's assault case until April
30, 2015. On that date, the court entered an order allowing
Wittman to withdraw and appointing Jim Davis as May's new
attorney. The order also set May 18, 2015, as the new plea or
trial date. The case was not tried on that date. On June 5,
2015, May filed a pro se motion to dismiss for failure to
provide a speedy trial.
On October 15, 2015, May and the State filed a joint motion
for a continuance. The motion indicated that May was not
present in court but, through counsel, waived all speedy
trial rights and objections. The motion gave "appeal
pending in other case" as the reason for the
continuance. The court granted the joint motion "upon
due consideration of good cause," and the trial was
reset for April 18, 2016.
On November 2, 2015, Jim Davis sent a letter to the assistant
district attorney to inform her that May was not waiving his
right to a speedy trial and desired a trial "as soon as
possible" and "before April." In response, the
State filed a "Motion to Set Earlier Trial Date."
However, the State's motion advised the court that Davis
had stated that he was "not available for any of the
next six (6) available trial weeks" in December 2015 or
January 2016. Consequently, the State simply asked the trial
court for "the earliest trial setting that [would fit
On November 17, 2015, May filed a pro se petition for a writ
of mandamus in the Mississippi Supreme Court. May's
petition sought a ruling on his motion to dismiss for failure
to provide a speedy trial. A panel of the Supreme Court
denied May's petition. In re: David Lee May, No.
2015-M-01700 (Miss. Dec. 9, 2015).
On April 18, 2016, May, through counsel, filed a motion for a
continuance. The motion stated that discovery was
"ongoing" and "not completed." The motion
also stated that May again waived all speedy trial rights and
objections. The court granted the motion "upon due
consideration of good cause" and reset the trial for
July 5, 2016.
On July 5, 2016, Davis filed another motion for a
continuance. Davis's motion stated that he had met with
May only twice because May had been in the custody of the
Department of Corrections (due to his conviction and life
sentence for possession of cocaine). Davis's motion also
stated that he needed more time to review the
"voluminous" discovery, that he might need time to
retain an expert witness to address fingerprint evidence, and
that he might need time to request the toxicology test
results of both victims. At the hearing on the motion, Davis
argued that he needed additional time to prepare for trial
and that a continuance was in May's best interest, but
Davis also acknowledged that May objected to a continuance.
May told the court that he wanted to go to trial pro se that
day despite counsel's motion. However, the court granted
a continuance and reset the trial for October 3, 2016.
On October 3, 2016, the trial was postponed again, this time
on the court's own motion. The court's order stated
that the trial was postponed because a jury could not be
brought to the courthouse because the "streets all
around [the] courthouse [were] to be closed"
"during a coast event." The record does not
identify "coast event." On appeal, May alleges that
it was the Cruisin' the Coast classic car show and
festival. Trial was reset for April 25, 2017.
On December 13, 2016, this Court reversed May's drug
conviction. See May v. State, 222 So.3d 1074 (Miss.
Ct. App. 2016), cert. denied, 223 So.3d 765 (Miss.
2017). This Court denied rehearing on April 11, 2017. The
State then filed a petition for a writ of certiorari, which
the Mississippi Supreme Court denied on August 3, 2017.
May's case was not tried in April, as had been scheduled.
On May 16, 2017, the court entered an order that stated only
that the court had been "unavailable for a trial the
week of April 25, 2017." The court reset the trial for
September 11, 2017.
On August 1, 2017, Davis moved to withdraw because a
"conflict ha[d] arisen between" him and May. Davis
noticed his motion for hearing on August 28, 2017.
On August 28, 2017, May, through counsel, filed a motion for
a continuance requesting a "short delay." May's
motion stated that he waived his speedy trial rights and
objections "for this 2 week delay" only. The court
granted the continuance "upon due consideration of good
cause." The court set a hearing for September 11, 2017,
and rescheduled the trial for September 25, 2017.
On September 14, 2017, the court held a motions hearing and
addressed Davis's motion to withdraw. Counsel stated that
he would remain as trial counsel but May would also
participate in his own defense. The court also heard
May's motion to dismiss for failure to provide a speedy
trial. May testified that he "always wanted to go to
trial on the charges" and that he had not approved of
any of the continuances requested by his attorneys. The court
reserved ruling on May's motion.
On September 26, 2017, the trial court orally denied
May's motion to dismiss, and May's trial finally
began later that day. Jessica McLard testified that in July 2012
she was staying at a house in Biloxi with her boyfriend
(Bobby Cook), Arnold Quave, and Brandon Birchfield. McLard
and Cook were in Biloxi to work on a short-term construction
job. McLard testified that Quave allowed May to spend one
night on a couch in the living room of the house. May
apparently worked with Quave on a shrimp boat, but Quave only
knew him as "David" and did not know his last name.
McLard did not know May and only saw him briefly on the porch
when she returned home that evening. The next morning McLard
awoke to find May in her bedroom staring at her. May then
demanded sex. McLard refused, but May persisted and
eventually grabbed McLard by the throat, put her in a choke
hold, punched her in the face, and cut her face with a knife.
Quave heard McLard screaming and tried to intervene, but May
cut Quave's arm with the knife. McLard escaped the house,
and a neighbor heard her screaming and called the police.
Photographs of McLard's and Quave's injuries and
blood spattered through the house were admitted into evidence
The jury found May guilty on both counts of aggravated
assault, and the court sentenced May to concurrent terms of
life imprisonment as a violent habitual offender. May filed a
timely notice of appeal. May does not challenge the weight or
sufficiency of the evidence against him or allege any other
error during his trial. As stated above, his only claim on
appeal is that the ...