                           IN THE SUPREME COURT OF MISSISSIPPI

                                        NO. 2001-KP-01239-SCT



ALBERT JUNIOR CRAFT
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT:                                 6/14/2001
TRIAL JUDGE:                                      HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED:                        HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                          PRO SE

                                                  TOM SUMRALL
ATTORNEY FOR APPELLEE:                            OFFICE OF ATTORNEY GENERAL

                                                  BY: CHARLES W. MARIS, Jr.
DISTRICT ATTORNEY:                                CONO A. CARANNA, II
NATURE OF THE CASE:                               CRIMINAL - FELONY
DISPOSITION:                                      AFFIRMED - 10/24/2002
MOTION FOR REHEARING FILED:                       10/31/2002
MANDATE ISSUED:



     BEFORE McRAE, P.J., EASLEY AND CARLSON, JJ.

     EASLEY, JUSTICE, FOR THE COURT:


                                      PROCEDURAL HISTORY

¶1. Albert Junior Craft (Craft) was convicted in the Circuit Court of the First Judicial District of Harrison
County of the crimes of (1) aggravated assault with a deadly weapon against Raymond Hubbard (Hubbard)
, a fireman, for shooting Hubbard and (2) possession of a firearm by a felon. He was thereafter sentenced
as a habitual offender, to serve concurrent terms of twenty years and three years, respectively, day for day
without parole, in the custody of the Mississippi Department of Corrections. The trial court denied Craft's
motion for a new trial. Feeling aggrieved by the judgments thus entered against him, Craft appealed. His
counsel, Tom Sumrall (Sumrall), however, believing that the appeal is frivolous, filed a brief in compliance
with the Turner v. State, 818 So.2d 1186 (Miss. 2001). Craft has also filed his own pro se supplemental
brief.
                                                    FACTS

¶2. Craft's attorney, Sumrall, represents to this Court that in his opinion the trial record does not support an
appeal. Sumrall sets out that he thoroughly scoured the record three times and considered all possible issues
that might be raised on appeal without finding an issue for appeal. Sumrall filed a notice of appeal to this
Court on August 6, 2001, and subsequently filed a brief setting out an abstract of the trial record indicating
the testimony of all the State's witnesses insofar as they relate to the elements of the crime. Sumrall found
nothing at all in the record to support an arguable basis for an appeal. Sumrall notified Craft of his rights and
his right to file a pro se supplemental brief.

¶3. The facts set out by Sumrall in his brief are as follows:

      The first witness called by the state was [Hubbard], the victim. Hubbard testified that he knew Craft
      and he identified him in the courtroom. Hubbard said that on December 12, 1999, there was a
      cookout and present at the cookout was Craft, Nelson Craft [Nelson] ([Craft's] brother), Edwina
      Craft [Edwina] (Craft's ex-wife), another man whom he did not name, Terry Brown [Brown] and
      Tracy Marshall [Marshall]. Hubbard stated that Craft asked him if Derrick was messing with his old
      lady and Hubbard replied that Derrick didn't know his old lady. Hubbard continued saying that before
      he could ever sit down good, he was laying on the ground. He said that the reason he was laying on
      the ground is that Craft shot him with a .38. He shot him in the chest on the left side a little beneath the
      collarbone and while he was still on the floor, Craft shot him in the back. Craft then put the pistol to
      the head of [Brown] and Hubbard asked Craft why he shot him. Craft's response to that question
      was "He told me to squash it." Hubbard further stated that [Nelson] and [Brown] took him to the
      hospital. In relation to Hubbard's testimony, the state offered into evidence a Nautica shirt that
      Hubbard was wearing at the time of the shooting. The shirt has tears in it and blood on it that were not
      present at the time of shooting.

      [Brown] was the second witness that the state called and Brown stated that he knew Craft and
      identified him in the courtroom. Brown said that he saw Craft on December 12, 1999, at a baby
      shower. According to Brown, Craft stood up and asked Hub [Hubbard] "was his cousin messing
      with his wife?" and Hub stood up and said "no, he wasn't." Brown continued that Craft shot Hubbard
      in the chest and then he shot him again in the back after Hubbard had fallen to the floor. Brown said
      that Craft then put the gun to his head. It was a .38 handgun. He further stated that he and [Nelson]
      took Hubbard to the hospital.

      The next witness called by the state was [Edwina], [Craft's ex-wife]. According to her, she was in
      attendance at the party on December 12, 1999, at [Marshall's]. Craft asked Hubbard if his cousin
      was [f-----g] his wife?". Then Craft shot Hubbard.

      The next witness to testify on behalf on the state was [Nelson]. Craft's brother. He said that his
      brother ... came to his house for a baby shower in December of 1999. He said when he arrived he
      was disturbed. He thought that Hubbard and Edwina were having a fling or something like that. He
      continued and said that [Craft] stood up and said to Hubbard "I heard you been messing with my
      woman," and then pulled the gun out and shot him. He put the gun to the head of [Brown]. [Nelson]
      stated that he got his brother, [Craft] off Terry and then Craft shot [Hubbard] again. He said that he
      and [Brown] took [Hubbard] to the hospital.
The next witness called by the state was [Marshall] who testified that she was present at the shooting
incident. She was in the kitchen, heard a gunshot and ran out the back door. She stated that [Nelson],
[Craft], [Hubbard] and [Brown] were in the living room at that time. She did not see anything she only
heard the shots.

Keith Gardner [Gardner] was the next witness to testify on behalf on the state. Gardner stated that he
had known Craft since they were kids and he identified Craft in the [c]ourtroom. He stated that he
saw Craft on December 12, 1999, at his home late in the evening. Craft told him he was in trouble or
something. The state called Ray Miller [Miller], a deputy sheriff with the Harrison County Sheriff's
Department. Miller heard a dispatch broadcast that Craft was wanted on an [a]ggravated [a]ssault
charge. He spotted Craft in the north Gulfport area. When he passed, the subject that matched
dressing of Craft ... saw him and stepped in the back door of a residence. He drove by and called for
backup and approached the residence. Officers stopped Craft as he was running out the front door of
the house. Miller arrested him. The next witness called by the state was Eric Baker [Baker], a
registered nurse working in the emergency room at Gulfport Memorial Hospital. Baker stated that he
was on duty on December 12, 1999, and he saw Hubbard in the emergency room. He had two
gunshot wounds and he described the treatment given Hubbard and stated that one bullet was in the
area of the shoulder and one was lower down in the chest cavity, "kind of in the kidney area".

The last witness called by the state was Joey Tracy [Tracy], a Harrison County Sheriff's Deputy, who
was an investigator. Tracy responded to the crime scene apartments on 34th Avenue in Gulfport to
document the crime scene. He took numerous photographs using a 35mm camera. Tracy
authenticated Exhibits 1, 2, 3 and 4, which the state had marked for identification and they were
admitted into evidence through Tracy's testimony.

It should be noticed that counsel for Craft made numerous objections throughout the trial, some of
which were overruled but in the opinion of counsel would not be of such magnitude to warrant
reversal of the trial. It should be further noted that although several witnesses testified that the victim
was shot with a .38 caliber weapon, no weapon was ever produced at the trial. However, counsel
does not believe that this is a significant issue in this appeal. The cases are numerous in which
convictions are affirmed and also in which the weapon, which was the instrument of the crime, was
never produced in Court.

At the conclusion of the state's case, counsel for defendant made a Motion for a Directed Verdict
which was overruled.

The defense announced that it would not call any witnesses and that the defendant did not desire to
testify. The usual questioning by the Court to insure that Craft had been advised properly of his 5th
Amendment rights took place.

The Court: Have you visited with the defendant concerning his right to testify and his right not to
testify?

[Sumrall]: Yes, sir. I have advised him. We talked about that on several occasions and I advised Mr.
Craft that under the 5th Amendment that he has a right to testify or not to testify and that is strictly his
decision and not mine. I can give him advice on him. But it's strictly his decision and he was indicated
to me every time that I brought up the subject that he is not going to testify.
      The Court [questioned] Craft [as follows]:

      [The Court]: You heard what your attorney said. Do you agree with what he said as to y'all's
      discussion about this?

      [Craft]: Yes, sir, I agree.

      [The Court]: So I take it then it's your own choice not to testify.

      [Craft]: Yes, sir.

¶4. While Craft makes many unsupported and unconnected claims and allegations in his pro se brief, he
attempts to raise the following issues on appeal:

      I. Whether Craft was denied his constitutional right to a speedy trial.

      II. Whether the trial court properly amended the indictment to charge him as a habitual
      offender.

                                                DISCUSSION

                                                I. Speedy Trial

¶5. In his pro se appeal, Craft argues that he was denied his constitutional right to a speedy trial. Craft filed
various motions and demands that he receive a speedy trial, but no motion was ever called up to obtain a
pre-trial ruling from the trial court. Craft did attempt during his sentencing phase to raise his motion for
speedy trial, having already been found guilty. The trial court determined that waiting until the sentencing
phase, having already gone to trial, to pursue the motion for speedy trial rendered the motion moot. Craft
was arraigned on September 20, 2000, and the trial began on June 12, 2001, 265 days later. Craft does
not set forth any specific prejudice or problems that resulted from the incarceration. "Alleged speedy trial
violations are examined and determined on a case-by-case basis due to the factual specifics of each
action." Brengettcy v. State, 794 So.2d 987, 991 (Miss. 2001). See also Sharp v. State, 786 So.2d
372, 377 (Miss. 2001). The Court has "not set a specific length of time as being per se unconstitutional" in
reviewing a constitutional challenge for lack of speedy trial. Brengettcy, 794 So.2d at 992.

¶6. This Court has recently examined the constitutional right to a speedy trial and stated that pursuant to
Miss. Code Ann. § 99-17-1 (2000), the 270 day speedy trial rule provides:

      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. "The right to a speedy trial is guaranteed by the sixth and
      fourteenth amendments to the United States Constitution and Art. 3, § 26 of the Mississippi
      Constitution of 1890." Watts. v. State, 733 So.2d 214, 235 (Miss. 1999). 'The constitutional right to
      speedy trial attaches at the time when the defendant is first effectively accused of the offense.' Gray v.
      State, 728 So.2d 36, 47-48 (Miss. 1998) (citing Perry v. State, 419 So.2d 194, 198 (Miss. 1982))
      . This Court has held this to begin at the "'time of a formal indictment or information or else the actual
      restraints imposed by arrest and holding to a criminal charge.'" Perry v. State, 637 So.2d 871, 874
      (Miss 1994) (quoting Lightsey v. State, 493 So.2d 375, 378 (Miss. 1986)).
Mitchell v. State, 792 So.2d 192, 210 (Miss. 2001).

¶7. When a denial of the constitutional right to a speedy trial is claimed, the four-part balancing test of
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), must be employed. Mitchell
v. State, 572 So.2d 865, 870 (Miss. 1990); Kinzey v. State, 498 So.2d 814 (Miss. 1986). In Taylor v.
State, 672 So.2d 1246, 1258 (Miss. 1996), this Court held:

      In analyzing the constitutional right to a speedy trial, we must again visit the familiar realm of Barker v.
      Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed. 2d 101 (1972), and apply the four factors to the
      present case. The four Barker factors, to be balanced in light of surrounding circumstances, are: (1)
      length of delay; (2) reason for delay; (3) defendant's assertion of the right to a speedy trial; and, (4)
      prejudice to the defendant resulting from the delay.

¶8. The first step in this analysis is for Craft to satisfy the presumptively prejudicial element under Barker v.
Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed. 2d 101 (1972); Smith v. State, 550 So.2d 406,
408 (Miss. 1989). "The delay is the triggering mechanism" and "must be presumptively prejudicial" or the
analysis is halted. Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 2693 120 L.Ed.2d 520
(1992); Jaco v. State, 574 So.2d 625, 630 (Miss. 1990).

¶9. Once the trial court has determined whether the defendant's incarceration is presumptively prejudicial to
the defendant, the trial court must then examine the four factors laid out in Barker. The United States
Supreme Court stated in Barker that, "until there is some delay which is presumptively prejudicial, there is
not necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530, 92 S.Ct.
at 2191.

¶10. We find that Craft's claim fails on two grounds. First, Craft never pursued his motion for a speedy trial
until the trial court began the sentencing phase. The trial court determined that the motion was moot since
the trial had already been concluded. This Court has held that a party is obligated to seek a ruling on an
objection or motion. A party making a motion must "follow up that action by bringing it to the attention of
the judge and requesting a hearing upon it." Sharplin v. State, 357 So.2d 940, 942 (Miss. 1978). The
movant bears the responsibility to "obtain a ruling from the court on motions filed by him and failure to do so
constitutes a waiver of same." Martin v. State, 354 So.2d 1114, 1119 (Miss. 1978).

¶11. In Copeland v. State, 423 So.2d 1333, 1335 (Miss. 1982), this Court reviewed the appellant's
argument on appeal that his constitutional rights were violated by a preindictment delay. This Court stated
as follows:

      This question is not before us because the record reveals that no objection or motion was presented
      to the trial court which would have alerted the judge to the fact that the delay may have prejudiced the
      appellant's right and which, more importantly, would have allowed the state an opportunity to justify
      the delay. We steadfastly refuse to depart from our rule that, we will not consider an error raised for
      the first time on appeal, except in exceptional cases. See Brooks v. State, 209 Miss. 150, 46 So.2d
      94 (1950). Such a rule is founded, in part, on the fair assumption that an accused, in the face of
      incarceration, will make and preserve all objections available to him. The rule is further supported by
      our hesitancy to place a trial judge in error on a matter not presented to him for decision. See Ponder
      v. State, 335 So.2d 885 (Miss. 1976).
¶12. In the case sub judice, Craft is conclusively barred from raising this issue on appeal since he never
presented the speedy trial issue below in a timely manner to secure a ruling from the trial court.

¶13. Second, the record reflects that Craft had multiple changes in the attorneys representing him. The
record indicates that Craft had been represented by court-appointed counsel, Kay L. Wilkerson, then by
voluntary contract criminal defender, Felicia Dunn-Cooper Burkes (Burkes), and then by court-appointed
counsel Sumrall. The record reflects that Craft claimed he was not satisfied with the service of any of the
listed attorneys. Notations in the record reflect that Craft had problems with every attorney the trial court
provided for him.

¶14. While Craft did not timely bring his motion for speedy trial in order for the trial court to conduct a
hearing, the fact that Craft had at least three different attorneys appointed to represent him cannot be
ignored in considering Craft's claim that he did not receive a speedy trial.

¶15. This Court has held that "[d]elays associated with the switching of defense counsel are beyond the
control of the State, and therefore, should be charged to the defendant." Taylor v. State, 672 So.2d at
1259. See Wiley v. State, 582 So.2d 1008, 1012 (Miss. 1991).

¶16. Therefore, this Court finds that this issue is wholly without merit.

                                        II. Habitual Offender Status

¶17. On the State's motion, the trial court amended the indictment to reflect that Craft was a habitual
offender pursuant to Miss. Code Ann. § 99-19-81 (2000). The State's motion stated:

      On August 12, 1985, he, the said ALBERT JUNIOR CRAFT, was convicted in the Circuit Court of
      Harrison County, Mississippi, First Judicial District, in Cause Number 20,336 of the felony of
      Burglary of a Dwelling, and, on August 12, 1985, in said [c]ourt, was sentenced to a term of [t]en
      (10) years in the custody of the Mississippi Department of Corrections; and,

      On October 24, 1985, he, the said ALBERT JUNIOR CRAFT, was convicted in the Circuit Court
      of Harrison County, Mississippi, First Judicial District, in Cause Number 20,623 of the felony of
      Grand Larceny, and, on October 24, 1985, in said [c]ourt was sentenced to a term of [f]our (4)
      years in the custody of the Mississippi Department of Corrections, and on December 30, 1986, by
      [o]rder Nunc Pro Tunc was again sentenced to term of [f]our (4) years in the custody of the
      Mississippi Department of Corrections; and against the peace and dignity of the State of Mississippi.

      This information was not available to timely present to Grand Jury, accordingly this motion is tendered
      in the interest of [j]ustice.

¶18. The order granting the amendment was executed on June 13, 2001. When the State's motion to
amend the indictment was taken up for consideration by the trial court, the record reflects the following
exchange:

      The Court: We've got those two motions pending. I've done some research on the amendment, and
      the only thing I had to do was determine whether or not there's been a subsequent case to overrule
      the one that says they can amend the indictment to reflect the habitual portion.
     Do you want to articulate the grounds upon which you object to the amendment?

     Defense: No, sir. I'd just like for the record to reflect my objection.

     The Court: Okay. Well, I'll overrule it, and it will be an amendment, and if the jury should find him
     guilty ... will conduct a habitual offender hearing to determine whether or not he is an habitual
     offender, and if so, impose the appropriate penalty. Anything else?

     State: Yes, sir. I've got an order.

     The Court: You probably need to give me an order to that effect. Mr. Sumrall, you've had a chance
     to look at it. I'm not asking you whether you agree to it or not, but in form it seems to be appropriate.

     Defense: Yes, sir.

     The Court: All right. The [c]ourt has signed that. We'll wait until we hear from the jury ...

¶19. During the sentencing phase, the trial court proceeded with the hearing as to habitual offender status.
The record reflects the following exchange:

     The Court: All right, then, on the issue of determining the status as to whether he's a habitual offender,
     is the state ready to proceed?

     State: Yes, sir, we are.

     The Court: Mr. Sumrall, are you ready?

     Defense: Yes, sir.

     State: We would offer as the state's next exhibit a certified copy of the order, and it's styled order
     nunc pro tunc in Cause Number 20,623 in which Albert Craft was adjudged guilty of grand larceny,
     and he was actually sentenced on October 24 of 1985, but the order apparently said that the
     sentence was to be consecutive.

     The order nunc pro tunc was entered December 30 of 1986 correcting that to show that the sentence
     was to run concurrently with the sentence in Cause Number 20,336. That was the order that was
     submitted as State's Exhibit 6, and he was sentenced to four years on a charge of grand larceny in
     Cause Number 20,623.

     The Court: You don't have the one in '85?

     State: Judge, I do not. It is on the records of this court, but this order in fact recites the dates and
     recites what the sentencing was, and it was left open for some post-plea motions and that sort of
     thing.

     That is in fact in the order.

     The Court: All right. Any objection?

     Defense: No, sir.
     The Court: Let it be marked and introduced into evidence.

                                  (STATE'S EXHIBIT 7 IN EVIDENCE)

     State: With that along with State's 6 would be the two prior convictions reflecting the habitual status
     of this defendant.

     The Court: And you rest?

     State: Yes, sir.

     The Court: Mr. Sumrall, you have any proof?

     Defense: No, sir.

     The Court: Nothing in direct?

     Defense: No, sir.

     The Court: All right. In view of the certified copies and in view of the fact that the Court takes judicial
     notice of all the minute entries in the First Judicial District of the Circuit Court of Harrison County, the
     Court finds beyond a reasonable doubt that the defendant has been twice previously convicted of
     felonies arising out of separate incidence for which he was sentenced to a year or more.

¶20. On appeal, Craft now argues for the first time that his "defense was unfairly surprised" by the
amendment, even though, the record reflects otherwise. Craft never offered the trial court any evidence to
show surprise from the State's attempt to charge him as a habitual offender. Furthermore, Craft has failed to
show how his defense was adversely affected by the amendment to the indictment. In fact, he did not even
allege that his defense suffered. We find that the amendment was proper. See URCCC 7.09;(1) Adams v.
State, 772 So.2d 1010, 1019-21 (Miss. 2000).

¶21. Accordingly, Craft's second issue is without merit.

                                              CONCLUSION

¶22. For the foregoing reasons, the judgment of the Harrison County Circuit Court is affirmed.

¶23. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF
TWENTY (20) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION
OF UNLAWFUL POSSESSION OF FIREARM OR WEAPON BY A FELON AND SENTENCE
OF THREE (3) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. EACH COUNT SHALL
RUN CONCURRENTLY FOR A TOTAL OF TWENTY-THREE (23) YEARS TO SERVE,
SAID SENTENCE BEING WITHOUT BENEFIT OF PAROLE OR PROBATION.

     PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, CARLSON AND
     GRAVES, JJ., CONCUR.

1. URCCC 7.09 states as follows:
All indictments may be amended as to form but not as to the substance of the offense charged.
Indictments may also be amended to charge the defendant as an habitual offender or to elevate the
level of the offense where the offense is one which is subject to enhanced punishment for subsequent
offenses and the amendment is to assert prior offenses justifying such enhancement (e.g., driving under
the influence, Miss. Code Ann. § 63-11-30). Amendment shall be allowed only if the defendant is
afforded a fair opportunity to present a defense and is not unfairly surprised.
