                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-KA-01496-SCT

RICKY FRANKLIN a/k/a RICKY LEVERT
FRANKLIN a/k/a RICKY L. FRANKLIN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         03/01/2012
TRIAL JUDGE:                              HON. JEFF WEILL, SR.
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: HUNTER NOLAN AIKENS
                                              GEORGE T. HOLMES
                                          BRICE RASHOD WHITE
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: ELLIOTT GEORGE FLAGGS
DISTRICT ATTORNEY:                        ROBERT SHULER SMITH
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED IN PART; REVERSED IN PART
                                          AND REMANDED - 02/20/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    Ricky Franklin appeals a judgment of conviction from the Circuit Court of Hinds

County, Mississippi, Second Judicial District. Franklin was convicted on one count of

kidnapping and on one count of aggravated assault with a deadly weapon. He was sentenced

to thirty years and twenty years, respectively, to run consecutively. A mistrial was entered
for one count of forcible rape, and a not-guilty verdict was entered for one count of sexual

battery.

¶2.    Franklin was denied his motion for judgment notwithstanding the verdict (JNOV) or,

in the alternative, for a new trial. He appeals, alleging the following five issues: (1) the trial

court erred in refusing to instruct the jury on simple assault as a lesser-included offense of

aggravated assault, (2) the trial court erred in allowing improper opinion testimony from

numerous witnesses concerning whether a bottle could cause serious bodily injury, (3) the

trial court erred in allowing prejudicial hearsay statements that Randolph White allegedly

made to police, (4) Franklin’s right to a fair trial was violated by inflammatory statements

in the prosecution’s closing argument, and (5) the trial court erred in denying Franklin’s

motion to dismiss for violation of his right to a speedy trial. The sufficiency of the evidence

regarding the kidnapping and aggravated-assault convictions was not raised on appeal.

¶3.    We reverse and remand the conviction of aggravated assault under issue one; therefore

we will not discuss the merits of issue two. We affirm the conviction of kidnapping under

issues three, four, and five.

                                STATEMENT OF THE FACTS

¶4.    Ricky Franklin and Jessica Nolan met for the first time at a barbeque on the day of the

alleged incidents. They were thereafter seen together at Dick’s Pool Hall and Richie’s One

Stop Shop. After leaving the pool hall, Nolan and Franklin went to Franklin’s home, where

the assault and kidnapping occurred. It is undisputed that Nolan had numerous injuries from

the altercation and that blood spatter was found on the floor and walls of the home.

                                                2
¶5.    At trial, Nolan was the State’s key witness to the events that transpired. Nolan

claimed that Franklin was acting like a “big shot” at the barbeque by handing out money to

people, and that he had promised to give her at least one hundred dollars. He had also given

her fifty dollars to purchase marijuana. Nolan stated that, while they were at Franklin’s

house, he tried to give her forty-five dollars, but she rejected the money because he had

promised to give her more. She claimed that the money was not for sex, but instead, he

merely promised her the money for no reason. After she refused to accept the money,

Franklin began to beat her and began to claim that she had stolen his money. Among other

allegations, Nolan testified that he raped her several times that night and that he beat her with

his fists and a bottle.

¶6.    Darrell Davis and Randolph White both testified to going to the home and seeing that

Franklin and Nolan had been in a physical altercation. Davis stopped by the home first and

alerted White, Franklin’s uncle, that he should check on the situation. Both witnesses

testified to being concerned with what exactly was taking place between Franklin and Nolan,

and it appeared that they had been fighting. Nolan claimed that she asked both men to help

her when they were at the home, but Davis and White both testified that she did not ask them

for help. White instructed his sister, Deborah Robinson, to call 911 after Franklin refused

to let White take Nolan home. Robinson told the 911 dispatcher that a woman had been

beaten and that they could hear it. At trial, Robinson claimed she did not hear anything that

night nor did she see Nolan; instead, she was only relaying what her brother had told her.




                                               3
She testified to going to the house with White, but she saw Franklin only, who appeared to

have a knot on his forehead.

¶7.    The State presented testimony from several of the officers who were present at the

scene and entered the home. Testimony described the blood spatter found on the walls and

floor and the overall appearance that an altercation had taken place. Testimony revealed that

Nolan was found unresponsive on a couch in one of the back rooms. Officers Leggette and

Mahaffey were among the testifying officers who were present at the scene.

¶8.    Nurse Regina Morgan, who treated Nolan in the emergency room, testified that Nolan

had stated she had been beaten with fists and a bottle. Nolan’s medical records also reflected

this statement. Morgan also testified that Nolan told her Franklin had raped her, choked her,

and tried to kill her. Nurse Morgan and Dr. Andrew Anderson, Nolan’s treating physician,

identified Nolan’s injuries: a fractured nose; bruising and swelling of the face, nose, left eye,

and bottom lip; abrasions to her right knee, both elbows, and neck; small abrasions to her left

cheek; and redness on her right cheek.

¶9.    Kathryn Rodgers, a forensic DNA analyst, testified to the blood samples and DNA.

Rodgers established that the blood spatter found on the walls and floor was a match to

Nolan’s blood sample. She provided that one of the liquor bottles from Franklin’s home had

small splatters of blood on the bottom of the bottle, which matched Nolan’s blood, and the

DNA on the neck of the bottle could not exclude Franklin’s DNA. Rodgers explained that

the blood on the bottle could be present from direct contact with Nolan or from the bottle

otherwise coming into contact with the blood, such as from blood spatter. She also provided

                                               4
that the DNA on the neck of the bottle could be present from holding the bottle for drinking

purposes, from holding it to hit someone, or otherwise.

¶10.   Subsequently, a mistrial was entered for the charge of rape, and Franklin was found

not guilty of sexual battery. He was found guilty of kidnapping and aggravated assault.

                                         ANALYSIS

       I.       Whether the trial court erred in refusing to instruct the jury on
                simple assault as a lesser-included offense of aggravated assault.

¶11.   The trial court’s denial of a lesser-included-offense instruction is reviewed de novo.

Gilmore v. State, 119 So. 3d 278, 286 (Miss. 2013) (citing Downs v. State, 962 So. 2d 1255,

1258 (Miss. 2007)). This Court has decided, time after time, that lesser-included-offense

instructions should not be “indiscriminately granted;” instead, the jury should not be

presented with a lesser-included-offense instruction unless the record provides an

“evidentiary basis” for the instruction. Lee v. State, 469 So. 2d 1225, 1230 (Miss. 1985)

(citing Ruffin v. State, 444 So. 2d 839, 840 (Miss. 1984); Colburn v. State, 431 So. 2d 1111,

1114 (Miss. 1983)). Additionally, lesser-included-offense instructions should not be granted

on mere speculation. Moody v. State, 841 So. 2d 1067, 1097 (Miss. 2003) (citing McGowan

v. State, 541 So. 2d 1027 (Miss. 1989) (citing Mease v. State, 539 So. 2d 1324, 1329 (Miss.

1989))).

            A lesser-included offense instruction should be granted unless the trial
            judge and ultimately this Court can say, taking the evidence in the light
            most favorable to the accused and considering all the reasonable
            inferences which may be drawn in favor of the accused from the
            evidence, that no reasonable jury could find the defendant guilty of a


                                               5
          lesser-included offense (conversely, not guilty of at least one essential
          element of the principal charge).

Moody, 841 So. 2d at 1097 (citing Harper v. State, 478 So. 2d 1017, 1021 (Miss. 1985);

Fairchild v. State, 459 So. 2d 793, 800 (Miss. 1984); Lee, 469 So. 2d at 1230-31)). “A

defendant must point to some evidence in the record from which a jury reasonably could

find him not guilty of the crime with which he was charged and at the same time find him

guilty of a lesser-included offense.” Gilmore, 119 So. 3d at 286 (quoting Goodnite v. State,

799 So. 2d 64, 69 (Miss. 2001)).

¶12.   Franklin was indicted pursuant to the language of Mississippi Code Section 97-3-

7(2)(a)(ii), which provides:

       A person is guilty of aggravated assault if he . . . (ii) attempts to cause or
       purposely or knowingly causes bodily injury to another with a deadly weapon
       or other means likely to produce death or serious bodily harm. . . .

Miss. Code Ann. § 97-3-7 (2)(a)(ii) (Rev. 2006).

¶13.   Franklin argues that the trial court, in denying the simple-assault instruction,

improperly presumed that the bottle was a deadly weapon; thus the jury was not allowed

to consider simple assault. At trial, Franklin asserted that it was for the jury to weigh and

decide whether Nolan was hit with a fist or a bottle or both; therefore, the lesser-included-

offense instruction was warranted in the event the jury found she was not hit with the bottle

or that the bottle was not a deadly weapon. Under the facts of this case, we agree.

¶14.   The jury was given the following instructions:

       (1) If you find from the evidence in this case beyond a reasonable doubt that:
       . . . Ricky Levert Franklin . . . did wilfully and unlawfully, cause or attempted

                                               6
       to cause bodily injury; to Jessica Renee Nolan . . . with a deadly weapon.
       Then you shall find the defendant . . . guilty of aggravated assault as charged.
       ...

       (2) It is a question of fact for you to determine whether the bottle claimed to
       have been used by the defendant . . . was a deadly weapon in the manner in
       which it was claimed to have been used to strike the victim in this case.

       (3) A deadly weapon is defined as any object, article or means which, when
       used as a weapon under the existing circumstances is reasonably capable of
       producing or likely to produce death or serious bodily harm upon whom the
       object, article or means is used.

¶15.   Franklin was denied the following simple-assault instruction:

       If you find from the evidence in this case beyond a reasonable doubt that:
       Ricky L. Franklin . . . did purposefully, knowingly or recklessly; cause bodily
       harm to Jessica Nolan; then you shall find Ricky L. Franklin guilty of Simple
       Assault.

¶16.   In proving aggravated assault, the State chose to center its case solely on the bottle

being a deadly weapon. The jury was not instructed that Franklin could be guilty of

aggravated assault by other means, as is provided in the language of the statute.

¶17.   Thus, because of the substantial credible evidence that some type of assault had

occurred and because defense counsel took the position that Franklin hit Nolan with his fists

alone, the jury should have been given the lesser-included-offense instruction in the event

of a finding that the bottle was not a deadly weapon or that the bottle was not used. Lee v.

State, 469 So. 2d 1225, 1231 (Miss. 1985) (The jury’s findings may be altered without a

lesser-included-offense instruction where the only other option would be to find the

defendant not guilty).




                                               7
¶18.   This Court stands firm on the long-standing principle that it is the jury’s

responsibility to decide if an instrument constitutes a deadly weapon. Duckworth v. State,

477 So. 2d 935, 938 (Miss. 1985) (citing Jackson v. State, 404 So. 2d 543 (Miss. 1981);

Shanklin v. State, 290 So. 2d 625 (Miss. 1974); Johnson v. State, 230 So. 2d 810 (Miss.

1970); Cobb v. State, 233 Miss. 54, 101 So. 2d 110 (1958); Golden v. State, 233 Miss. 649,

78 So. 2d 788 (1955)) (citations omitted).

¶19.   When determining whether to allow the lesser-included-offense instruction, the trial

court improperly stated that there was evidentiary support that Nolan’s head injury was

caused by the bottle alone. Whether her injuries were caused by the bottle was an issue of

fact to be determined by the jury. The trial court expressly stated it believed there was no

evidentiary support for the lesser-included-offense instruction by referencing Nolan’s

isolated testimony during the State’s direct examination, when she described being hit in

the head by only the bottle. However, an examination of the record reveals that, during the

State’s redirect, Nolan expressly stated that she was hit with both a fist and a bottle. Also,

Nurse Morgan testified that Nolan told her at the hospital that she had been hit with both

fists and a bottle. Accordingly, it was for the jury alone to determine whether the bottle

actually was used.

¶20.   We find that the trial court erred by not allowing the jury to consider the lesser-

included-offense instruction of simple assault, because we cannot say that it would be

impossible for a reasonable juror to find that Franklin did not use the bottle or that the bottle

was not a deadly weapon. Moody, 841 So. 2d at 1097 (citing Harper, 478 So. 2d at 1021;

                                                8
Fairchild, 459 So. 2d at 800; Lee, 469 So. 2d at 1230-31). Therefore, we reverse in part

and remand this case for a new trial.

       II.    Whether the trial court erred in allowing statements that Randolph
              White allegedly made to police.

¶21.   Franklin argues that the trial court erred by allowing inadmissable hearsay statements

from Officer Ladnier. Over the objection of defense counsel, Officer Ladnier stated that

once he arrived on the scene, he spoke with Randolph White, Franklin’s uncle, who

instructed them to “. . . get down there before he killed her.” Officer Ladnier also provided

that White stated he saw Franklin holding Nolan by the hair and that Nolan had asked him

for help. Randolph White testified at trial, stating that he did not communicate those

statements to Officer Ladnier.

¶22.   Admission or suppression of evidence is based on the discretion of the trial court, but

the trial court’s discretion must be consistent with the Mississippi Rules of Evidence.

Clemons v. State, 732 So. 2d 883, 887 (¶18) (Miss. 1999) (citations omitted). Reversal is

required only where abuse of that discretion can be shown to cause prejudice to the

defendant. Id. at 888.

¶23.   Hearsay is an out-of-court statement offered in court by someone other than the

declarant to prove the truth of the matter asserted. Miss. R. Evid. 801(c). The trial court

overruled defense counsel’s objections on the basis that the statements were offered to show

why the officer acted as he did. Franklin disagrees, submitting that the statement was to

prove the truth of the matter asserted: (1) that Randolph thought Franklin was going to kill


                                              9
Nolan; (2) that Randolph saw Franklin holding Nolan by her hair; and (3) that Franklin asked

Randolph for help. After a close inspection of the record, we agree with the trial court’s

ruling that the statement was not offered to prove the truth of the matter asserted but to prove

why Officer Ladnier acted as he did.

¶24.   When the State elicited these statements from Officer Ladnier, the record reflects that

the State was unfolding the series of events that transpired that night. Prior to trial, a motion

hearing was held regarding suppression of evidence from Franklin’s home, because the

officers entered the home without a warrant based on exigent circumstances. The trial court

ruled sufficient evidence existed to support that an exigent circumstance had existed.

Although White denied making the alleged hearsay statements to Officer Ladnier, he did

provide that he was concerned that the situation could escalate without intervention. Officer

Ladnier’s statements were used to show how the events progressed that night and to show

the urgency of the situation, which both were important at the trial stage to explain to the jury

why and how the officers entered the home, where they subsequently found Nolan

unconscious.

¶25.   The State correctly points to the fact that Officer Ladnier’s statements concerned what

was said to him during his investigation. In Gayten v. State, this Court ruled testimony by

a police officer repeating statements made over a wire tap by an undercover agent was not

hearsay, since the only purpose of the statements was to present that they were, in fact, said.

Clemons, 732 So. 2d at 888 (¶20) (citing Gayten v. State, 595 So. 2d 409, 415 (Miss. 1992)).

Further, the statements provided “the nature of the transaction” and “that there was a

                                               10
transaction.” Id. (citing Gayten, 595 So. 2d at 414). See also Swindle v. State, 502 So. 2d

652, 657-58 (Miss. 1987) (“an informant’s tip is admissible to the extent required to show

why an officer acted as he did and was at a particular place at a particular time. . . .”); Smith

v. State, 984 So. 2d 295, 300 (Miss. Ct. App. 2007) (statements are nonhearsay when offered

to show the course of investigation).

¶26.   When determining whether a statement is prejudicial, this Court has established an

objective test asking “. . . how a reasonable objective observer would under the

circumstances be likely to perceive the statement.” Clemons, 732 So. 2d at 888 (¶22)

(quoting Turner v. State, 573 So. 2d 1335, 1338 (Miss. 1990)). By applying this rule, this

Court found:

       The Statement testified to by Sheriff McKee that he had heard that Clemons
       and his brother were in possession of a pistol that may have been involved in
       the murder when heard by the jury would be perceived as a statement proving
       that Clemons did in fact have possession of the murder weapon, the truth of the
       matter asserted. There is no reason for Sheriff McKee to explain why he went
       to Davis’s home.

Clemons, 732 So. 2d at 888 (¶22). Even though this Court found the admission of the

statements to be in error, we find the error here to be harmless. Id. at 899 (¶23).

¶27.   The case at bar differs from Clemons, because it is undisputed that Nolan was

assaulted by Franklin. The crux of the case questioned whether Franklin assaulted Nolan

with a deadly weapon. None of the statements concerned whether Franklin had possession

of the bottle. Additionally, the statements do not create the perception that Nolan was being




                                               11
kidnapped by Franklin. Rather, the statements explain the reason for the officers’ belief that

a dangerous and emergency situation existed inside Franklin’s home.

¶28.   Therefore, Officer Ladnier’s statements repeating what White had told him were not

to prove that White was afraid Franklin would kill Nolan, that Franklin was holding Nolan

by the hair, nor that Nolan had asked White for help. Consequently, we find these statements

were not hearsay and therefore were admissible. Further, Officer Ladnier’s statements were

more probative in value than prejudicial and therefore were admissible under the Rule 403

balancing test.1

¶29.   Additionally, Franklin argues that the statements were used improperly to bolster the

State’s case and relies on Bridgeforth v. State, condemning trial courts for allowing

statements obtained during the course of investigation. Bridgeforth v. State, 498 So. 2d 796,

800 (Miss. 1986). The State properly refutes this argument by noting that this Court based

its finding of improper bolstering in Bridgeforth on “. . . the lack of direct evidence . . .” to

support the case. Id. Comparatively, there is extensive direct evidence in the case sub

judice; therefore, Franklin’s claim of improper bolstering is without merit.

¶30.   Lastly, there is further support for the trial court’s decision to allow the testimony of

Officer Ladnier because White himself testified to the statements at trial. Franklin was given

ample opportunity to cross-examine Officer Ladnier and White about the statements, which


       1
         Mississippi Rule of Evidence 403 states, “Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” Miss. R. Evid. 403.

                                               12
resulted in White claiming he had never made those statements. The State argues that,

because White testified at trial, the jury was able to consider both testimonies and fulfill their

duty “. . . to resolve the conflict in the testimony they hear. They may believe or disbelieve,

accept or reject the utterances of any witness.” Groseclose v. State, 440 So. 2d 297, 300

(Miss. 1983) (quoting Gandy v. State, 373 So. 2d 1042, 1045 (Miss. 1979) (citing Shannon

v. State, 321 So. 2d 1 (Miss. 1975))). We agree. Therefore, we find no error in the trial

court’s admission of the testimony.

       III.    Whether Franklin’s right to a fair trial was violated by
               inflammatory statements in the prosecution’s closing argument.

¶31.   When evaluating prosecutorial statements called into question because of their alleged

impropriety, we must ask “whether the natural and probable effect of the improper argument

of the prosecuting attorney is to create an unjust prejudice against the accused as to result in

a decision influenced by the prejudice so created.” Dancer v. State, 721 So. 2d 583, 589

(Miss. 1998) (quoting Davis v. State, 530 So. 2d 694, 701 (Miss. 1988)). Any supposed

improper statements must be considered within context while also taking into account the

facts surrounding the particular case. Dancer, 721 So. 2d at 589 (citing Davis v. State, 660

So. 2d 1228, 1248 (Miss. 1995) (citing Ahmad v. State, 603 So. 2d 843, 846 (Miss. 1992)).

¶32.   First, Franklin contends that the prosecutor’s statements during his closing argument

exclaiming that Franklin’s family was scared of him, that Franklin is aroused by beating

women, and that he beat Nolan “because that’s what he does,” unfairly prejudiced his case

because they appealed to the jury’s passions and were not based on facts in the evidence.


                                               13
Second, Franklin argues the prosecutor unfairly vilified him by calling him a “predator” and

“dangerous,” which also appealed to the jury’s passions and prejudices.

¶33.    Franklin admits that “attorneys are allowed a wide latitude in arguing their cases to

the jury. However, prosecutors are not permitted to use tactics which are inflammatory,

highly prejudicial, or reasonably calculated to unduly influence the jury.” Sheppard v. State,

777 So. 2d 659, 661 (¶7) (Miss. 2000) (quoting Hiter v. State, 660 So. 2d 961, 966 (Miss.

1995)). Further, the jury’s decision must be based on the evidence, thus any verdict based

on “bias, passion, or prejudice” will be overturned. Sheppard, 777 So. 2d at 662( ¶10)

(citing Fuselier v. State, 468 So. 2d 45, 53 (Miss. 1985)).

¶34.   We must determine if the trial court, in overruling defense counsel’s objections to the

prosecutor’s alleged improper statements, allowed error to stand; and if such error is found

to stand, is that error reversible. Sheppard, 777 So. 2d at 661-62 (citing Williams v. State,

445 So. 2d 798, 808-09 (Miss. 1984)).

¶35.   The defense relies on the reasoning in Sheppard, which in turn relies on Williams, but

both are distinguishable from the present case. In both Williams and Sheppard, the

statements in controversy had no basis in the evidence and were clearly meant to prejudice

the defense. Williams 445 So. 2d at 809; Sheppard, 777 So. 2d at 661. Williams provided

that error existed in the prosecutions’ statements, because they allowed the jury to believe

that they would be accountable to explain their decision after the trial concluded. Sheppard,

777 So. 2d at 661 (citing Williams, 445 So. 2d at 808). Similarly in Sheppard, the

prosecution’s statements were in error because they allowed the jury to believe that, unless

                                             14
they convicted the defendant, “. . . the prosecutor was going to subject them to personal

ridicule, embarrassment, and questioning.” Sheppard, 777 So. 2d at 662. Because the trial

court sustained defense counsel’s objections in Williams, the error was deemed cured;

whereas, the trial court in Sheppard overruled defense counsel’s objections; thus a new trial

was granted. Williams, 445 So. 2d at 808-809; Sheppard, 777 So. 2d at 662.

¶36.   Applied to the case at bar, the trial court did sustain an objection to one statement

while overruling the objections to all other alleged improper statements. Regardless, the

statements in this particular case were deduced and inferred from the evidence, unlike the

statements in both Williams and Sheppard. Franklin v. State, 72 So. 3d 1129, 1144 (Miss.

Ct. App.), reh’g denied (June 21, 2011), cert. denied, 71 So. 3d 1207 (Miss. 2011)

(Prosecutors are permitted to comment on the facts presented in the evidence, and they are

permitted to draw proper deductions and inferences from those facts.).

¶37.   Franklin argues that the prosecutor’s statements were not based on the facts presented

in the evidence or any inferences therefrom, citing Dancer v. State, 721 So. 2d 583, 589 ¶31

(Miss. 1998) (citing Tubb v. State, 217 Miss. 741, 744, 64 So. 2d 911 (1953)). Franklin fails

to acknowledge that, while this Court in Dancer found the prosecution’s remarks referencing

the defendant going free in the jurors’ neighborhoods to be improper, the statements did not

constitute reversible error, because the jury could not have been influenced due to the

overwhelming evidence of Dancer’s guilt. Id. at 590.

¶38.   As the State correctly asserts, the case at bar is more similar to Harris v. State, in

which the prosecutor referred to the defendant as a savage animal, a predator, and a pervert,

                                             15
and he apologized to the animal kingdom for calling the defendant a savage animal. Harris

v. State, 537 So. 2d 1325, 1329 (Miss. 1989). In Harris, this Court stated that prosecutors

should refrain from statements that are “unbecoming to dignified courts of justice” and

should avoid personally abusing or vilifying defendants. Id. at 1330. This Court quoted

Bridgeforth v. State, in which we previously stated that discipline for statements

encompassing inflammatory remarks and vilification should be enforced by the trial judge.

Harris, 537 So. 2d at 1330 (citing Bridgeforth v. State, 498 So. 2d 796, 801 (Miss. 1986)).

And it is assumed that jurors follow the instructions of the trial court to disregard statements

by counsel. Harris, 537 So. 2d at 1330 (citing Shoemaker v. State, 502 So. 2d 1193 (Miss.

1987)) (citations omitted.)

¶39.   This Court, in Harris, found that, even had the trial court overruled defense counsel’s

objections and also neglected to inform the jury to disregard the comments, the substantial

evidence presented to the jurors could not result in prejudice to the defendant based on the

prosecution’s statements. Id. at 1331. Comparing the case before us, the State argues that

the jury also was provided with “ample incriminating evidence” that could not be prejudiced

by the statements of the prosecutor. We agree.

¶40.   At trial, the jury was provided with extensive evidence, including pictures of the

victim’s serious injuries, the victim’s testimony, medical personnel testimony describing the

victim’s injuries, pictures of the inside of the home showing blood spatter on the walls and

floors, officers’ testimony explaining the severity of the situation, and testimony from the

defendant’s uncle and friend describing seeing Franklin and Nolan in an altercation and

                                              16
being concerned that things might escalate. The evidence presented also included pictures

of the alleged deadly weapon, which displayed marks of blood matching Nolan’s blood type,

and testimony that the defendant’s DNA could not be excluded from the neck of the bottle.

¶41.   Although we find that the statements by the prosecutor were not necessary and were

inappropriate, the insurmountable evidence presented to the jury could not be prejudiced by

these statements. Id. at 1330-31. Accordingly, any error left standing by the trial court does

not require reversal. Sheppard, 777 So. 2d at 661-62 (citing Williams, 445 So. 2d at 808-

09).

       IV.    Whether the trial court erred in denying Franklin’s motion to
              dismiss for violation of his right to a speedy trial.

¶42.   An analysis of Franklin’s constitutional right to a speedy trial must be made apart

from his statutory right. Simmons v. State, 678 So. 2d 683, 686 (Miss. 1996) (citing Bailey

v. State, 463 So. 2d 1059, 1062 (Miss. 1985)).

              A. Constitutional Right to a Speedy Trial

¶43.   Franklin’s assertion of a violation of his constitutional right to a speedy trial must be

evaluated in accordance with the analysis established by Barker v. Wingo. Four factors must

be considered and weighed: (1) the length of delay, (2) the reason for delay, (3) whether the

defendant timely asserted his right, and (4) whether the defendant was prejudiced by the

delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 (1972).

                     1. The Length of Delay




                                              17
¶44.   Franklin’s right to a speedy trial attached at the moment of his arrest. Simmons, 678

So. 2d at 686 (citing Smith v. State, 550 So. 2d 406, 408 (Miss. 1989)). Because twenty-six

months passed between Franklin’s arrest and trial, the delay is presumptively prejudicial, and

the burden of persuasion must shift to the State to show good reason for the delay. Johnson

v. State, 68 So. 3d 1239, 1242 (¶7) (Miss. 2011) (citing Jenkins v. State, 947 So. 2d 270,

276-77 (Miss. 2006)). A delay of eight months or more triggers a presumption of prejudice

that requires a full analysis under Barker. Johnson, 68 So. 3d at 1242 (¶6) (citing Barker,

407 U.S. at 533, 92 S. Ct. 2182); Smith, 550 So. 2d at 408. This Court in Johnson

emphasized that “. . .when the delay is presumptively prejudicial, that does not mean that

actual prejudice to the defendant exists. Rather, actual prejudice is determined at a different

point in the Barker analysis.” Johnson, 68 So. 3d at 1242. Therefore, as the dissent agrees,

we must further examine the delay according to Barker, thus this factor weighs in favor of

Franklin. Barker, 407 U.S. at 530.

                     2. The Reasons for Delay

¶45.   The following sequence of events transpired, attributing to the delay:

              a.     November 8, 2009 – Arrest

              b.     December 15, 2009 – Indictment

              c.     January 26, 2010 – Arraignment (trial set for September 20,
                     2010)

              d.     August 6, 2010 – Franklin filed motion for continuance

              e.     September 16, 2010 – State filed motion for continuance


                                              18
              f.     March 24, 2011 – Judge’s recusal

              g.     April 4, 2011 – Case reassigned (trial set for June 6, 2011)

              h.     May 26, 2011 – Agreed order of continuance moved for by
                     defense (trial set for September 12, 2011)

              i.     January 10, 2012 – Trial (moved to this date because of a
                     crowded docket).

¶46.   Franklin filed for continuance on August 6, 2010, alleging that he had just been

informed that the trial date would be September 7, 2010, rather than September 20, 2010, as

was set at arraignment. Nothing from the record indicates the motion was granted or that the

trial was actually moved from September 20 to September 7. A hearing was held regarding

the State’s subsequent motion for continuance, and both the motion and the hearing were

based on the trial setting of September 20. Therefore, we will not count any time against

Franklin for his August 6, 2010, motion for continuance. We will attribute the delay to the

defense only from the June 6, 2011, trial setting to the September 12, 2011, trial setting.2

Vickery v. State, 535 So. 2d 1371, 1375 (Miss. 1988) (continuances granted on behalf of the

defense are deducted from the total number of days leading to trial).

¶47.   The State moved for continuance in September 2010 because its key witness and

victim was recovering from a gunshot injury and could not be secured in time for trial. It is



       2
         The motion for continuance set trial for September 12, 2011, but the subsequent
order moving the trial date because of an overcrowded docket stated the trial date was being
moved from August 8, 2011, to January 10, 2012. It is unclear from the record and among
the parties why this discrepancy exists. Using the agreed order of continuance as guidance,
we will use the September 12, 2011, trial setting.

                                             19
also important to consider that, in early 2011, Judge Malcolm Harrison was succeeded by

Judge William Gowan, which the State asserts contributed to a portion of the delay.

Thereafter, Judge Gowan recused himself from the case.

¶48.   When analyzing the reasons for delay, the United States Supreme Court provided the

following guidance:

       different weights should be assigned to different reasons. A deliberate attempt
       to delay the trial in order to hamper the defense should be weighted heavily
       against the government. A more neutral reason such as negligence or
       overcrowded courts should be weighted less heavily but nevertheless should
       be considered since the ultimate responsibility for such circumstances must
       rest with the government rather than with the defendant. Finally, a valid
       reason, such as a missing witness, should serve to justify appropriate delay.

Murray v. State, 967 So. 2d 1222, 1230 (Miss. 2007) (quoting Barker, 407 U.S. at 531).

Accordingly, there is no indication of intentional delay by the State, and the length of delay

caused by the absence of the State’s key witness and victim should not be weighed against

the State, because it is deemed a good-cause reason for delay under Barker v. Wingo.

Murray, 967 So. 2d at 1230 (citing Barker, 407 U.S. at 531). Any delay caused by the

succession of judges and the delay caused by an overcrowded docket should be weighed only

slightly against the State. Id.

¶49.   We find the second factor weighs in favor of Franklin. However, the weight of this

factor against the State should be slight, because a portion of the delay was based on a good

reason, and there is no finding that the State acted intentionally in its delay. Id at 1231.

                      3. Whether the defendant timely asserted his right.



                                              20
¶50.   Since the State must see that the defendant is brought to trial, it is never the

responsibility of the defendant to bring himself to trial, and the defendant’s assertion of his

right to a speedy trial weighs in his favor. Bailey v. State, 78 So. 3d 308, 322 (Miss. 2012)

(citing Stevens v. State, 808 So. 2d 908, 917 (Miss. 2002) (citing State v. Magnusen, 646

So. 2d 1275, 1283 (Miss. 1994))). But, “failure to assert the right will make it difficult for

the defendant to prove that he was denied a speedy trial.” Bailey, 78 So. 3d at 322 (citing

Barker, 407 U.S. at 528).

¶51.   Franklin contends that his right was first asserted on September 30, 2010, almost

eleven months after his arrest. Further, he argues that, while his assertion may be untimely,

fifteen months remained between the assertion and the trial, thus his speedy-trial right was

still violated. However, Franklin also alleges he asserted his right through his motion to

dismiss for failing to provide a speedy trial. This Court has established that asserting the

right to a speedy trial and filing for dismissal for violating that same right are not one and the

same. Id. at 323 (citing Brengettcy v. State, 794 So. 2d 987, 994 (Miss. 2001) (citing Perry

v. State, 637 So. 2d 871, 875 (Miss. 1994)). The dissent finds this to be a distinction without

a difference. We do not.

¶52.   As the Fifth Circuit Court of Appeals has held, “an assertion that charges be dismissed

for a speedy trial violation is not a value protected under Barker.” Cowart v. Hargett, 16

F.3d 642, 647 (5th Cir. 1994)), cert. denied, 513 U.S. 886, 115 S. Ct. 227, 130 L. Ed. 2d 153

(1994). Cowart was a habeas corpus action, in which the United States District Court,

Southern District of Mississippi, granted Llewyn Cowart’s petition for habeas corpus relief

                                               21
following this Court’s denial of post-conviction relief. Id. at 644. There, as the dissent does

here, the federal district court broadly construed the defendant’s pro se motion to “squash”

the indictment for speedy-trial violations, as a demand for a speedy trial. Id. at 647. The

Fifth Circuit found that it was not an acceptable demand, and held that the Barker factor as

to whether the defendant timely asserted his right to a speedy trial “is given ‘strong

evidentiary weight’ in favor of the [S]tate.” Id.

¶53.   The Fifth Circuit expounded on Cowart in U.S. v. Frye, 489 F. 3d 201 (5th Cir. 2007).

There, James Frye argued that a motion to dismiss should count as an assertion of speedy-

trial rights. Frye, 489 F. 3d at 211. In support of his argument, Frye relied on Strunk v.

United States, 412 U.S. 434, 440, 93 S. Ct. 2260, 37 L. Ed. 2d 56 (1973), in which the

Supreme Court said, “In light of the policies which underlie the right to a speedy trial,

dismissal must remain, as Barker noted, ‘the only possible remedy.’” Id. The Fifth Circuit

responded as follows:

       By focusing on the remedy, Frye loses sight of the right. The right, in this
       case, is the right to a speedy trial. An assertion of that right is a demand for a
       speedy trial, which will generally be an objection to a continuance or a motion
       asking to go to trial. At the very least, a defendant's assertion of his speedy
       trial rights should manifest “his desire to be tried promptly.” United States v.
       Litton Sys., Inc., 722 F.2d 264, 271 (5th Cir.1984). Frye’s repeated motions
       for dismissal of the capital charge are not an assertion of the right, but are an
       assertion of the remedy. A motion for dismissal is not evidence that the
       defendant wants to be tried promptly. See, e.g., Barker, 407 U.S. at 534-35,
       92 S. Ct. 2182 (“More important than the absence of serious prejudice, is the
       fact that Barker did not want a speedy trial . . . . Instead the record strongly
       suggests that while he hoped to take advantage of the delay in which he had
       acquiesced, and thereby obtain a dismissal of the charges, he definitely did not
       want to be tried.”).


                                              22
Id. at 211-12.

¶54.   Here, the record contains four attempts by Franklin, filing pro se, seeking dismissal

for not providing him with a speedy trial. Franklin alleges in his own motion that he asserted

his right to a speedy trial shortly after his arraignment, but as the trial court found, nothing

in the record supports Franklin’s assertion. The dissent contends that Franklin did in fact

demand a speedy trial, because in his March 2011 motion to dismiss, Franklin stated to the

trial court that he had “demanded and or filed for a speedy trial and wants his wish granted.”

Clearly, though, the trial court interpreted Franklin’s use of the word “wish” to mean a prayer

for dismissal, because in its order denying Franklin’s motion to dismiss, the trial court

expressly found that “Franklin did not seek an instant trial, but solely moved for a dismissal.”

The record supports the trial court’s finding. The only filing pertaining to Franklin’s speedy-

trial rights, preceding the March 2011 motion, was one submitted pro se by Franklin on

September 30, 2010, in which Franklin moved for a dismissal because 270 days had passed

since his arraignment. This was after Franklin’s trial counsel filed, (as mentioned) on August

6, 2010, a motion for a continuance. Thus, the record does not support that Franklin actually

asserted his right to a speedy trial, because Franklin was demanding dismissal rather than

demanding an actual trial. Bailey, 78 So. 3d at 323 (citing Brengettcy, 794 So. 2d at 994

(citing Perry, 637 So. 2d at 875)); see also McBride v. State, 61 So. 3d 138, 144-45 (Miss.

2011) (defendant filing two pro se motions for directed verdict alleging speedy-trial violation

did not assert his right, but rather, only requested dismissal); Bonds v. State, 938 So. 2d 352,

357-58 (Miss. Ct. App. 2006) (relying on this Court’s precedent, the defendant demanded

                                              23
only two pretrial dismissals for violating his speedy-trial rights; therefore, no speedy-trial

right was asserted).

¶55.   Considering all of the facts: (1) Franklin filed his first pro se dismissal almost eleven

months after being arrested; (2) defense counsel was granted a continuance after Franklin’s

third demand for dismissal; and (3) this Court’s numerous rulings that motions to dismiss for

violation of a speedy-trial right do not equate to an assertion of that right; we find this factor

weighs slightly for the State. Simmons v. State, 678 So. 2d 683, 687 (Miss. 1996) (failing

to file to dismiss until after one year slightly favored the State because the “primary” burden

still remains upon the State); see also DeLoach v. State, 722 So. 2d 512, 518 (Miss. 1998)

(filing to dismiss after one year and seven months weighed slightly in the State’s favor).

                       4. Whether the defendant was prejudiced by the delay.

¶56.   To determine whether Franklin was prejudiced by the delay, we must consider that

the speedy-trial right is for: (1) preventing oppressive pretrial incarceration, (2) minimizing

anxiety and concern, and (3) limiting impairment of the defense. Barker, 407 U.S. at 532

(citations omitted).

¶57.   Franklin argues that these three interests clearly weigh in his favor. With regard to

the first two interests, Franklin argues that some anxiety is presumed, citing Jasso v. State,

655 So. 2d 30, 35 (Miss. 1995). He further asserts that he was inherently prejudiced to some

extent since he was incarcerated, and such prejudice impaired his defense because he was

unable take all the steps necessary to prepare for his defense. Barker, 407 U.S. at 533 (“If

a defendant is locked up, he is hindered in his ability to gather evidence, contact witness, or

                                               24
otherwise prepare his defense. Imposing those consequences on anyone who has not yet

been convicted is serious.”)

¶58.   Other than listing these key arguments, Franklin does nothing to apply them to the

facts of his own case. While it is undeniable that every defendant most likely experiences

some anxiety from being incarcerated, Franklin makes no showing of how he was hindered

in preparing his defense, and the record reveals no showing of “evidentiary or tactical

disadvantage.” Jaco v. State, 574 So. 2d 625, 633 (Miss. 1990) (From examining the trial

itself, this Court found no showing that the defendant was subject to evidentiary or tactical

disadvantage due to the delay).

¶59.   Accordingly, the factors protecting pretrial oppressive incarceration and anxiety weigh

neutrally. Without a record reflecting some disadvantage prejudicing Franklin’s trial, or

without Franklin pointing out how he was disadvantaged in preparing for trial, we cannot

speculate based on generalizations of prejudice. Ross v. State, 605 So. 2d 17, 23 (Miss.

1992) (citing U.S. v. Marion, 404 U.S. 307, 325-26, 92 S. Ct. 455, 466, 30 L. Ed. 2d 468

(1971)).

¶60.   Franklin lastly asserts that the delay resulted in the loss of a witness who would have

testified to: (1) seeing Franklin and Nolan together, and (2) Nolan’s willingness to go with

Franklin that night. Franklin argues that the loss of the witness’s testimony presents a

colorable claim of prejudice. Delay can present “. . . loss of evidence, the unavailability of

witnesses, or the erosion of a witness’s memory.” Birkley v. State, 750 So. 2d 1245, 1252

(Miss. 1999) (citing Skaggs v. State, 676 So. 2d 897, 901 (Miss. 1996)). These instances

                                             25
present a strong showing that prejudice exists. Birkley, 750 So. 2d at 1252 (citing Barker,

407 U.S. at 532). As the State points out, the defense admitted that the witness could not be

found. And no showing was made that this was due to any delay in bringing Franklin to trial.

Moreover, the testimony of Anthony Singleton provided that he had seen Franklin and Nolan

earlier in the evening, and, referring to Nolan, he stated, “she seemed happy.” He also

testified that everything appeared to be pleasant between Nolan and Franklin and that she

never asked him to help her get away from Franklin.

¶61.   The testimony provided by Singleton was that he had seen Franklin and Nolan

together that night, and it demonstrated Nolan’s willingness to go with Franklin.

Consequently, the unavailability of the other witness to provide the same or similar testimony

did not prejudice Franklin in his defense. Id. at 1253 (citing Kolberg, 704 So. 2d 1307, 1319

(Miss. 1997)).

¶62.   Therefore, we find that none of the three interests of concern under the fourth factor

weigh in Franklin’s favor to the extent that he has presented a colorable claim of prejudice;

thus this factor weighs in favor of the State.

¶63.   In conclusion, weighing the Barker factors results in two factors favoring Franklin

and two factors favoring the State. When viewing the totality of the circumstances, we

conclude that the trial court did not err by denying Franklin’s motion, because he failed to

demand a speedy trial, and most importantly, he suffered no prejudice from the delay, nor

was there any proof that the delay by the State was deliberate. Bailey, 78 So. 3d at 324.

              B. Statutory Right to a Speedy Trial

                                                 26
¶64.   Mississippi ensures the right to a speedy trial statutorily through Mississippi Code

Section 99-17-1, providing “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.” Miss. Code

Ann. § 99-17-1 (Rev. 2007).

¶65.   Franklin asserts that his statutory speedy-trial right was violated because 714 days

passed between his arraignment and the trial date. This Court established that, for a statutory

speedy-trial violation to stand, the defendant must show that he was tried more than 270 days

after his arraignment and demonstrate that the delay caused prejudice. McBride v. State, 61

So. 3d 138, 147 (Miss. 2011) (citing Guice v. State, 952 So. 2d 129, 139-40 (Miss. 2007)).

¶66.   The State was granted a continuance in order to secure its key witness and victim,

which is established as a good-cause reason for delay and should not count against the State.

Murray v. State, 967 So. 2d 1222, 1230 (Miss. 2007) (quoting Barker, 407 U.S. at 531).

Any delay thereafter caused by the succession of judges and an overcrowded docket should

weigh only slightly against the State. Murray, 967 So. 2d at 1230 (citing Barker, 407 U.S.

at 531).

¶67.   Furthermore, as previously discussed, Franklin attempted to assert his right 237 days

after his arraignment but failed to do so in accordance with this Court’s ruling that a motion

for dismissal for violation of a speedy-trial right is not the same as a motion demanding or

requesting a speedy trial. Bailey, 78 So. 3d at 323 (citing Brengettcy v. State, 794 So. 2d



                                              27
987, 994 (Miss. 2001) (citing Perry v. State, 637 So. 2d 871, 875 (Miss. 1994))). Therefore,

Franklin failed to properly assert his right to a speedy trial.

¶68.   Lastly, no support exists establishing that Franklin was prejudiced.         The same

testimony that would have been provided by the missing witness was presented by another

witness, Anthony Singleton.       And Franklin failed to show how pretrial incarceration

prejudiced him other than stating general allegations. Ross, 605 So. 2d at 23 (citing U.S. v.

Marion, 404 U.S. at 325-26, 92 S. Ct. at 466, 30 L. Ed. 2d 468).

¶69.   Accordingly, we find that the State established good cause for its delay, and no

prejudice was demonstrated as a result of the delay.

                                       CONCLUSION

¶70.   This Court reverses Franklin’s conviction of aggravated assault because the lesser-

included-offense instruction of simple assault should have been submitted to the jury, and

remands this case to the Hinds County Circuit Court for a new trial on aggravated assault

consistent with this opinion. This Court affirms Franklin’s conviction of kidnapping because

we find no error based on the admission of Randolph White’s statements or the denial of

Franklin’s motion to dismiss for violation of his right to a speedy trial, and Franklin’s right

to a fair trial was not violated by the prosecution’s closing argument.

¶71. COUNT III: CONVICTION OF KIDNAPPING AND SENTENCE OF THIRTY
(30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT IV: CONVICTION OF AGGRAVATED
ASSAULT, REVERSED AND REMANDED. APPELLANT IS TO BE GIVEN
CREDIT FOR TIME SERVED.



                                               28
      WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER AND COLEMAN,
JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY KITCHENS AND KING, JJ.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶72.   For the same reasons I stated in my dissent in Johnson v. State 3 – wherein I pointed

out that the right to a speedy trial is dead and gone in the State of Mississippi – I dissent.

¶73.   In recent years, this Court has eroded the United State Supreme Court’s Barker v.

Wingo 4 balancing-test analysis to the extreme. Barker requires courts considering a speedy-

trial violation to analyze and balance four factors: (1) the length of the delay; (2) the reason

for the delay; (3) whether the defendant asserted his right; and (4) whether the delay caused

actual prejudice.5 One can hardly call it balancing in Mississippi, where three of the four

factors are on the defendant’s side of the scale of justice, the fourth factor is slightly, if at all,

on the State’s side, and the State wins anyway.

       Length of delay

¶74.   The majority concedes that twenty-six is more than eight, and that, because an eight-

month delay is presumptively prejudicial, and because the twenty-six-month delay between




       3
           Johnson v. State, 68 So. 3d 1239, 1247 (Miss. 2011) (Dickinson, P. J., dissenting).
       4
           Barker v. Wingo, 470 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972).
       5
           Id. at 530.

                                                 29
Franklin’s arrest and his trial is more than three times the number of months necessary to be

presumptively prejudicial,6 the first factor weighs in favor of Franklin.

       Reason for delay

¶75.   Both Franklin and the State contributed to the delay. But under the facts of this case,

it certainly cannot be argued that Franklin was mostly at fault. And since the State has the

ultimate burden of bringing Franklin to trial,7 the reasons for the delay must weigh, even if

only slightly, in favor of Franklin.

       Assertion of the Right

¶76.   Initially, the readers of this dissent should know that Franklin did, in fact, demand a

speedy trial. In fact, he actually stated to the trial court that he “demanded and or filed for

a speedy trial and wants his wish granted.” The majority discards this language for reasons

it fails to disclose. One can assume the reason is because Franklin’s motion is styled

“Motion to Dismiss Charges For Failure To Provide A Fast And Speedy Trial.” The majority

fails to tell us why it abandons this Court’s usual practice of ignoring titles and looking to

the substance of pleadings.

¶77.   This Court, in recent cases, draws an arbitrary, unexplainable distinction between a

defendant’s motion to dismiss for lack of a speedy trial and a defendant’s motion demanding


       6
       Perry v. State, 637 So. 2d 871, 874 (Miss. 1994) (holding “an eight-month delay is
presumptively prejudicial”) (citing Smith v. State, 550 So. 2d 406, 408 (Miss. 1989)).
       7
         Vickery v. State, 535 So. 2d 1371, 1377 (Miss. 1988) (holding “It is the burden of
the State to see that a defendant receives a speedy trial.”) (quoting Perry v. State, 419 So.
2d 194, 199 (Miss. 1982)).

                                              30
a speedy trial. According to the majority, only the latter weighs in the defendant’s favor.8

To explain this distinction, the majority leans on a holding by the United States Court of

Appeals for the Fifth Circuit, which explains that a motion to dismiss for a lack of a speedy

trial is an assertion of the remedy for a speedy-trial violation – not an assertion of the right

to a speedy trial.9 I have two problems with this doctrinaire view.

¶78.   First, it escapes me how one can file a motion to dismiss a case for violating a right

that the person does not claim to have. In essence, the majority takes the odd view that

Franklin was saying to the trial court that he was entitled to a dismissal based upon a speedy-

trial claim, but he was not saying he had a right to a speedy trial. The majority fails to inform

us upon what basis Franklin argued he was entitled to dismissal, if it was asserting that he

had a right to a speedy trial.

¶79.   Second, the majority fails to consider that many defendants – including Franklin in

this case – file these motions pro se, and their lack of a legal education does not justify

denying their constitutional rights, simply because they used phraseology that the majority

finds unsuitable. I have seen many lawyers punished less for far more egregious errors in

pleadings.

¶80.   Franklin filed not one, but four, pro se motions seeking dismissal for lack of a speedy

trial. In his motion to “dismiss,” Franklin states that he “demanded and or filed for a speedy


       8
           Perry, 637 So. 2d at 875; see also Adams v. State, 583 So. 2d 165, 169-70 (Miss.
1991)).
       9
           U.S. v. Frye, 489 F.3d 201, 211-12 (5th Cir. 2007).

                                               31
trial and wants his wish granted.” When one “demands” a speedy trial, he generally is

thought to be asserting a right to one. Can anyone doubt he was asserting his right to a

speedy trial? And what about the trial court’s response to the motions? A trial judge, faced

with a motion to dismiss for failure to provide a speedy trial, could certainly be expected to

know the defendant wants a speedy trial and, if not, grant the motion, or at least to go ahead

and set the matter for trial.

¶81.   During four cycles of motions to dismiss for the State’s failure to provide a speedy

trial, that certainly did not happen here. Under the majority’s analysis, had Franklin changed

the word “dismiss” to “demand,” then three of the four Barker factors would weigh in

Franklin’s favor. I decline to seize on this meaningless distinction.

¶82.   The delay in bringing Franklin to trial became presumptively prejudicial after eight

months. Franklin filed his motion within the next ninety days. After he filed his motion, it

was another fifteen months before he was finally brought to trial.

¶83.   The presumption of prejudice does not occur until after eight months of pretrial

incarceration.10 So, under the majority’s framework, a defendant who must wait eight

months to become presumptively prejudiced, has waited too long if he lets another three

months go by, never mind that it is the State that has the burden and duty to bring him to

trial. I find this narrow, three-month window for a defendant to assert his right to a speedy




       10
            Perry, 637 So. 2d at 874.

                                             32
trial to be arbitrary, unfounded, and unexplainable. I would weigh this factor in favor of

Franklin.

       Prejudice

¶84.   The Barker court outlined three interests that the right to a speedy trial is meant to

protect: (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern of

the accused; and (3) limit the possibility that the defense will be impaired.11 The United

States Supreme Court has held that minimizing oppressive pretrial incarceration and anxiety

is exactly what the Sixth Amendment right to a speedy trial was designed to do:

       The speedy trial guarantee is designed to minimize the possibility of lengthy
       incarceration prior to trial, to reduce the lesser, but nevertheless substantial,
       impairment of liberty imposed on an accused while released on bail, and to
       shorten the disruption of life caused by arrest and the presence of unresolved
       criminal charges.12

¶85.   The majority, however, finds that because Franklin’s pretrial anxiety did not hinder

his defense–a completely separate factor for consideration–such anxiety weighs neutrally.

Franklin was incarcerated for twenty-six months prior to his trial; he missed his farther’s

funeral; his wife divorced him; and he lost his home. Clearly, Franklin suffered an

impairment of his liberty and a disruption in his life, resulting in substantial anxiety.

¶86.   More significantly, even though Franklin could not locate a witness, the majority

speculates that his defense was not impaired. The majority reaches this dubious conclusion


       11
            Barker, 407 U.S. at 532.
       12
        United States v. MacDonald, 456 U.S. 1, 8; 102 S. Ct. 1497, 1502; 71 L. Ed. 2d
696 (1982).

                                              33
by further speculating that the witness’s testimony would have been similar to other

testimony offered by defense witnesses.

¶87.   Recently, this Court has held that “the possibility of impairment of the defense is the

most serious consideration in determining whether the defendant has suffered prejudice as

a result of the delay.” 13 This Court will find prejudice to a defendant’s defense where “there

was a loss of evidence, the death of a witness, or the investigation became stale.” 14

¶88.   So, not only was Franklin subject to twenty-six months of pretrial incarceration which

unquestionably hampered his ability to defend himself, but also, because of the delay, he was

unable to locate a witness who saw him and the victim on the night of the incident. At a

hearing on the matter, testimony indicated that a favorable witness was no longer able to be

located. This is precisely the situation in which this Court has held it would find actual

prejudice to a defendant’s case. But instead of finding actual prejudice, the majority finds

a way to marginalize the value of the lost witness by speculating that his testimony would

have been insignificant to the defense.

¶89.   Because I find the loss of a witness is the most severe form of prejudice to a

defendant’s defense, I would weigh this factor in favor of Franklin, causing all four Barker

factors to favor Franklin. Accordingly, I would find that his constitutional right to a speedy

trial was violated.




       13
            Johnson, 68 So. 3d at 1245.
       14
            Id. (citing State v. Magnusen, 646 So. 2d 1275, 1285 (Miss. 1994)).

                                              34
KITCHENS AND KING, JJ., JOIN THIS OPINION.




                           35
