Walker v. State

196 So.3d 978

Larry WALKER, Appellant

v.STATE of Mississippi, Appellee.

No. 2013–KA–01592–COA.

Court of Appeals of Mississippi.

Nov. 10, 2015.

Rehearing Denied April 26, 2016.

Office of State Public Defender by George T. Holmes, Justin Taylor Cook, attorneys for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before GRIFFIS, P.J., BARNES and JAMES, JJ.

GRIFFIS, P.J., for the Court:

¶ 1. Larry Walker appeals his convictions for carjacking and kidnapping. He argues that a defective indictment prejudiced him, the circuit court erred in sentencing him as a habitual offender, and his constitutional and statutory rights to a speedy trial were violated. We find no error and affirm.

FACTS

¶ 2. On April 25, 2001, Walker forced a minor into her car at gunpoint and drove her car to a secluded field where he attempted to rape her. When he failed to complete the act of rape, Walker forced her to perform oral sex on him, then released her.

¶ 3. On February 19, 2002, a Lawrence County grand jury indicted Walker for carjacking, kidnapping, robbery, two counts of sexual battery, and attempted forcible sexual intercourse. Walker filed a motion for a change of venue, which the trial court granted. His first trial occurred in Marion County, from January 14 to January 16, 2004. The trial concluded with an acquittal for one count of sexual battery and the robbery count. The circuit court granted a mistrial on the remaining counts, and then set those counts for retrial.

¶ 4. Walker's second trial began on June 22, 2004. The jury found Walker guilty of carjacking, kidnapping, and attempted forcible sexual intercourse. He was acquitted of the remaining sexual-battery charge. Walker appealed this conviction. In Walker v. State (Walker I ), 937 So.2d 955, 958 (¶ 11) (Miss.Ct.App.2006), this Court reversed the judgment and remanded the case for a new trial.

¶ 5. Walker's third trial on the remaining charges of carjacking, kidnapping, and attempted forcible sexual intercourse began on April 7, 2010. The jury found him guilty for carjacking and kidnapping, but found him not guilty of attempted forcible sexual intercourse. The circuit court sentenced Walker, as a habitual offender, to two life sentences without parole. The circuit court granted Walker's out-of-time appeal on September 13, 2013. It is from this judgment we consider his appeal.

ANALYSIS

I. Whether the indictment for attempted forcible sexual intercourse was defective and prejudiced Walker.

¶ 6. Walker asserts the indictment for attempted forcible sexual intercourse omitted an allegation of an overt act as required by statute, which rendered the indictment insufficient. Walker relies on Short v. State, 990 So.2d 818, 819 (¶ 3) (Miss.Ct.App.2008), for the proposition that an indictment for attempted forcible sexual intercourse must include an overt act. In Short, this Court reversed the conviction because the indictment failed to include any language of an overt act or any reference to the attempt statute of Mississippi Code Annotated section 97–1–7 (Rev.2014). Unlike Short, the indictment in this case included references to both an overt act and section 97–1–7.

¶ 7. The inclusion of the language “overt act,” however, did not describe Walker's alleged specific conduct. The Mississippi Supreme Court has held “that indictments under Mississippi Code Annotated [section] 97–1–7 (1972), the general attempt statute, must set forth an overt act toward the commission of the offense.” Durr v. State, 446 So.2d 1016, 1017 (Miss.1984). While this requirement may have rendered the indictment insufficient, Walker was acquitted.

¶ 8. Despite the acquittal, Walker argues the defective indictment allowed for the admission of prejudicial evidence that would have otherwise been excluded. This prejudicial information, Walker contends, inflamed the jury and colored their perceptions in the two guilty verdicts. In particular, Walker asserted the circuit court's use of the word “minor” in the jury instructions when the age of the victim was irrelevant to the other two counts caused prejudice.

¶ 9. However, Walker fails to show how the introduction of this evidence caused actual prejudice or affected the outcome of the trial. Walker does not question the sufficiency or weight of the evidence of the carjacking and kidnapping charges. As such, Walker cannot say the alleged prejudicial evidence from the attempted-forcible-sexual-intercourse charge alone resulted in the guilty verdicts. Therefore, we find this issue meritless.

II. Whether the State failed to prove Walker's habitual-offender status beyond a reasonable doubt.

¶ 10. Walker contends the State failed to sufficiently prove his habitual-offender status at the sentencing hearing. Specifically, Walker argues the “pen-packs” introduced at the sentencing hearing by the State did not include a sworn affidavit, and the circuit court did not make a finding as to Walker's habitual-offender status.

¶ 11. Walker, however, raises this issue for the first time on appeal. “When an accused fails to object to the habitual offender issue during the sentencing phase, he is procedurally barred to do so the first time on appeal.” Heidelberg v. State, 45 So.3d 730, 732 (¶ 6) (Miss.Ct.App.2010) (citation omitted). At the sentencing hearing, Walker failed to object to the State's evidence of his habitual-offender status. Thus, this issue is procedurally barred.

¶ 12. The procedural bar notwithstanding, this Court previously held “certified copies of ‘pen[-]packs' suffice as competent evidence of prior convictions.” Frazier v. State, 907 So.2d 985, 991 (¶ 16) (Miss.Ct.App.2005) (citation omitted). The State submitted certified pen-packs attesting to Walker's prior convictions, along with Walker's verified signature and Social Security number on the documents. Therefore, we find the State met its burden to prove Walker's habitual-offender status, and this issue is without merit.

III. Whether the circuit court erred in failing to dismiss the charges against Walker for violations of his right to a speedy trial.

¶ 13. As a final issue, Walker asserts the delays prior to his first trial and from his second trial until his third trial violated his statutory and constitutional rights to a speedy trial. The circuit court found that neither occurrence violated Walker's rights.

A. Procedural Bar

¶ 14. Before his first trial, Walker filed an omnibus motion on May 6, 2002, which included a demand for a speedy trial. The circuit court denied Walker's motion on January 24, 2003. Walker, however, did not appeal the circuit court's decision and failed to raise the issue in his previous direct appeal of his second trial.

¶ 15. “Where the issue was not raised on direct appeal, or not raised at the trial court, the claims are procedurally barred and not subject to further review by this Court.” Wilcher v. State, 479 So.2d 710, 712 (Miss.1985) (claims not previously raised at trial or on appeal procedurally barred in the post-conviction-relief context). By not previously raising this issue, Walker waived this claim, and we find his speedy-trial contention for the first trial is procedurally barred. Regardless of the procedural bar, we address the merits of both speedy-trial claims.

B. Statutory Rights to a Speedy Trial

¶ 16. Walker asserts his statutory right to a speedy trial was violated. Mississippi Code Annotated section 99–17–1 (Rev.2015) states: “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.”

¶ 17. Walker only contends the statutory violation occurred prior to his first trial. To determine a statutory violation, “[t]he first step is to calculate the total number of days between arraignment (the statute clearly states that is when the right attaches) and the actual trial.” Sharp v. State, 786 So.2d 372, 378 (¶ 5) (Miss.2001). Walker's arraignment and first trial occurred on January 14, 2004. Conversely, Walker argues he waived arraignment on March 20, 2002. “If a defendant waives arraignment, that date is considered day one on the speedy trial calendar.” Mayo v. State, 886 So.2d 734, 738 (¶ 17) (Miss.Ct.App.2004).

¶ 18. Walker, however, failed to sign his acknowledgment of his right to arraignment on March 20, 2002, and June 19, 2002. Regardless of which date begins the clock, the time period from either March 20 or June 19, 2002, to January 14, 2004, exceeds the 270–day requirement. However, the inquiry does not end there.

¶ 19. “[T]he second step in determining whether the 270–day rule has been complied with is to consider each delay separately, because only those delays attributable to the State count toward the 270 days.” Sharp, 786 So.2d at 378 (¶ 5). In a January 27, 2003 order, the circuit court addressed Walker's speedy-trial claim. Though the circuit court determined Walker's constitutional claims, the order addressed the reasons for the delay, which is relevant to the statutory discussion.

¶ 20. Walker moved for a continuance from the original trial date of June 25, 2002, to December 9, 2002. This 168–day delay counts against Walker.

¶ 21. The State also sought a continuance because the victim could not attend the December 2002 trial, and the state crime lab had not concluded scientific testing on crucial evidence. Walker did not oppose the continuance, and the trial was reset to June 23, 2003. The supreme court has held that “[d]elays caused by a backlog at [a] state or federal crime lab constitute good cause and will not be attributed to the State.” Jenkins v. State, 947 So.2d 270, 275 (¶ 10) (Miss.2006). Therefore, the 197 days does not count heavily against the State.

¶ 22. The circuit court only considered the delay until the June 23, 2003 trial date because it ruled on the motion in January 2003. However, on May 29, 2003, Walker submitted a motion for a change of venue....