         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-KA-01415-COA

DAVID LEE MAY A/K/A DAVID L. MAY A/K/A                                       APPELLANT
DAVID MAY

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          10/10/2017
TRIAL JUDGE:                               HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT,
                                           SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                           BY: GEORGE T. HOLMES
                                           PHILLIP BROADHEAD
ATTORNEYS FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                           BY: JOSEPH SCOTT HEMLEBEN
                                               LADONNA C. HOLLAND
DISTRICT ATTORNEY:                         JOEL SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 05/21/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       J. WILSON, P.J., FOR THE COURT:

¶1.    Following a jury trial in the Harrison County Circuit Court, David Lee May was

convicted of two counts of aggravated assault and sentenced, as a violent habitual offender,

to concurrent terms of life imprisonment. May raises one issue on appeal: whether the circuit

court should have dismissed his indictment based on a violation of his constitutional right to

a speedy trial. We find no error and affirm.

                       FACTS AND PROCEDURAL HISTORY
¶2.    On October 27, 2012, May was arrested for the aggravated assaults of Jessica McLard

and Arnold Quave. May was indicted for two counts of aggravated assault on June 17, 2013,

as a violent habitual offender, and the court appointed counsel (Phillip Wittman) to represent

him three days later. On July 22, 2013, in a separate cause number, May was indicted for

possession of cocaine, again as a violent habitual offender. The same day, May filed a

motion for a continuance in both cases. The reason given for May’s request was “new

discovery for the defendant.” The motion stated that May waived his speedy trial rights and

objections. The court granted the motion “upon consideration of good cause.” The court set

trial for September 23, 2013. However, trial did not commence on that date. It appears that

trial may have been continued on that date because May informed the court that he wanted

to proceed pro se with Wittman as “standby counsel.”

¶3.    On October 14, 2013, May and the State filed a joint motion for a continuance on the

grounds that a witness for the State was unavailable and May needed time to review

discovery materials. The court granted the motion “upon consideration of good cause” and

reset the trial for November 4, 2013.

¶4.    On November 12, 2013, May filed a pro se motion for a speedy trial in this case. The

next day, the court entered an order applicable to both of May’s cases. The order stated that

both cases had been set for trial the week of November 4, 2013, but neither was tried because

a case above them on the docket had gone to trial. The order also stated that the parties had

agreed to a hearing date on May’s motion to suppress in the drug case (December 2, 2013)

and a new trial date for both cases (December 9, 2013).



                                              2
¶5.    On December 9, 2013, May’s drug case went to trial. He was convicted of possession

of cocaine and sentenced to life imprisonment as a violent habitual offender. May appealed.

¶6.    Nothing else happened in May’s assault case until April 30, 2015. On that date, the

court entered an order allowing Wittman to withdraw and appointing Jim Davis as May’s

new attorney. The order also set May 18, 2015, as the new plea or trial date. The case was

not tried on that date. On June 5, 2015, May filed a pro se motion to dismiss for failure to

provide a speedy trial.

¶7.    On October 15, 2015, May and the State filed a joint motion for a continuance. The

motion indicated that May was not present in court but, through counsel, waived all speedy

trial rights and objections. The motion gave “appeal pending in other case” as the reason for

the continuance. The court granted the joint motion “upon due consideration of good cause,”

and the trial was reset for April 18, 2016.

¶8.    On November 2, 2015, Jim Davis sent a letter to the assistant district attorney to

inform her that May was not waiving his right to a speedy trial and desired a trial “as soon

as possible” and “before April.” In response, the State filed a “Motion to Set Earlier Trial

Date.” However, the State’s motion advised the court that Davis had stated that he was “not

available for any of the next six (6) available trial weeks” in December 2015 or January

2016. Consequently, the State simply asked the trial court for “the earliest trial setting that

[would fit Davis’s] schedule.”

¶9.    On November 17, 2015, May filed a pro se petition for a writ of mandamus in the

Mississippi Supreme Court. May’s petition sought a ruling on his motion to dismiss for



                                              3
failure to provide a speedy trial. A panel of the Supreme Court denied May’s petition. In

re: David Lee May, No. 2015-M-01700 (Miss. Dec. 9, 2015).

¶10.   On April 18, 2016, May, through counsel, filed a motion for a continuance. The

motion stated that discovery was “ongoing” and “not completed.” The motion also stated

that May again waived all speedy trial rights and objections. The court granted the motion

“upon due consideration of good cause” and reset the trial for July 5, 2016.

¶11.   On July 5, 2016, Davis filed another motion for a continuance. Davis’s motion stated

that he had met with May only twice because May had been in the custody of the Department

of Corrections (due to his conviction and life sentence for possession of cocaine). Davis’s

motion also stated that he needed more time to review the “voluminous” discovery, that he

might need time to retain an expert witness to address fingerprint evidence, and that he might

need time to request the toxicology test results of both victims. At the hearing on the motion,

Davis argued that he needed additional time to prepare for trial and that a continuance was

in May’s best interest, but Davis also acknowledged that May objected to a continuance.

May told the court that he wanted to go to trial pro se that day despite counsel’s motion.

However, the court granted a continuance and reset the trial for October 3, 2016.

¶12.   On October 3, 2016, the trial was postponed again, this time on the court’s own

motion. The court’s order stated that the trial was postponed because a jury could not be

brought to the courthouse because the “streets all around [the] courthouse [were] to be

closed” “during a coast event.” The record does not identify “coast event.” On appeal, May

alleges that it was the Cruisin’ the Coast classic car show and festival. Trial was reset for



                                              4
April 25, 2017.

¶13.   On December 13, 2016, this Court reversed May’s drug conviction. See May v. State,

222 So. 3d 1074 (Miss. Ct. App. 2016), cert. denied, 223 So. 3d 765 (Miss. 2017). This

Court denied rehearing on April 11, 2017. The State then filed a petition for a writ of

certiorari, which the Mississippi Supreme Court denied on August 3, 2017.

¶14.   May’s case was not tried in April, as had been scheduled. On May 16, 2017, the court

entered an order that stated only that the court had been “unavailable for a trial the week of

April 25, 2017.” The court reset the trial for September 11, 2017.

¶15.   On August 1, 2017, Davis moved to withdraw because a “conflict ha[d] arisen

between” him and May. Davis noticed his motion for hearing on August 28, 2017.

¶16.   On August 28, 2017, May, through counsel, filed a motion for a continuance

requesting a “short delay.” May’s motion stated that he waived his speedy trial rights and

objections “for this 2 week delay” only. The court granted the continuance “upon due

consideration of good cause.” The court set a hearing for September 11, 2017, and

rescheduled the trial for September 25, 2017.

¶17.   On September 14, 2017, the court held a motions hearing and addressed Davis’s

motion to withdraw. Counsel stated that he would remain as trial counsel but May would

also participate in his own defense. The court also heard May’s motion to dismiss for failure

to provide a speedy trial. May testified that he “always wanted to go to trial on the charges”

and that he had not approved of any of the continuances requested by his attorneys. The

court reserved ruling on May’s motion.



                                              5
¶18.   On September 26, 2017, the trial court orally denied May’s motion to dismiss, and

May’s trial finally began later that day.1 Jessica McLard testified that in July 2012 she was

staying at a house in Biloxi with her boyfriend (Bobby Cook), Arnold Quave, and Brandon

Birchfield. McLard and Cook were in Biloxi to work on a short-term construction job.

McLard testified that Quave allowed May to spend one night on a couch in the living room

of the house. May apparently worked with Quave on a shrimp boat, but Quave only knew

him as “David” and did not know his last name. McLard did not know May and only saw

him briefly on the porch when she returned home that evening. The next morning McLard

awoke to find May in her bedroom staring at her. May then demanded sex. McLard refused,

but May persisted and eventually grabbed McLard by the throat, put her in a choke hold,

punched her in the face, and cut her face with a knife. Quave heard McLard screaming and

tried to intervene, but May cut Quave’s arm with the knife. McLard escaped the house, and

a neighbor heard her screaming and called the police. Photographs of McLard’s and Quave’s

injuries and blood spattered through the house were admitted into evidence at trial.

¶19.   The jury found May guilty on both counts of aggravated assault, and the court

sentenced May to concurrent terms of life imprisonment as a violent habitual offender. May

filed a timely notice of appeal. May does not challenge the weight or sufficiency of the

evidence against him or allege any other error during his trial. As stated above, his only

claim on appeal is that the delay in bringing his case to trial violated his state and federal

constitutional rights to a speedy trial.

       1
       In a post-trial written order, the court addressed the “Barker factors,” see Barker v.
Wingo, 407 U.S. 514 (1972), and explained its reasons for denying May’s motion.

                                              6
                                          ANALYSIS

¶20.   The Mississippi Constitution and the United States Constitution both protect the

defendant’s right to “a speedy . . . trial.”2 Miss. Const. art. 3, § 26; U.S. Const. amend. VI.3

“When considering an alleged violation of a defendant’s [state or federal constitutional] right

to a speedy trial, [the Mississippi Supreme] Court applies the four-part test developed by the

United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972).” Newell v. State, 175

So. 3d 1260, 1269 (¶19) (Miss. 2015); accord Flora v. State, 925 So. 2d 797, 815 (¶61)

(Miss. 2006). “The Barker test ‘requires a balancing of four factors: (1) length of delay; (2)

reasons for the delay; (3) defendant’s assertion of his right to a speedy trial; and (4) prejudice

to the defendant.’” Reed v. State, 191 So. 3d 134, 139 (¶8) (Miss. Ct. App. 2016) (quoting

Taylor v. State, 162 So. 3d 780, 783 (¶6) (Miss. 2015)). “[T]he [United States] Supreme

Court has held that courts must ‘engage in a difficult and sensitive balancing process’ of the

four factors because none of the factors is ‘either a necessary or sufficient condition to the

finding of a deprivation of the right of speedy trial. Rather, they are related factors and must



       2
         The dissent cites the speedy trial statute, Miss. Code Ann. § 99-17-1 (Rev. 2014).
However, May does not develop such an argument on appeal, so the issue is waived. See
Randolph v. State, 852 So. 2d 547, 558 (¶29) (Miss. 2002). May chooses not to develop that
argument because he concedes that there is no record that he was arraigned prior to the first
day of his trial. “[O]ur speedy trial statute is plain and unambiguous, and it requires that the
defendant be tried no later than 270 days after arraignment unless good cause be shown.
Thus, under this statute, the time prior to arraignment is not computed to determine
compliance with the statute.” Perry v. State, 419 So. 2d 194, 198 (Miss. 1982) (emphasis
added). Because May was tried the same day he was arraigned, there was no violation of
the speedy trial statute. Id.
       3
       The Sixth Amendment right to a speedy trial is applicable to the states through the
Fourteenth Amendment. See Klopfer v. North Carolina, 386 U.S. 213, 223-26 (1967).

                                                7
be considered together with such other circumstances as may be relevant.’” Id. (quoting

Barker, 407 U.S. at 533). “No mathematical formula exists according to which the Barker

weighing and balancing process must be performed.” Flora, 925 So. 2d at 815 (¶61)

(quoting Beavers v. State, 498 So. 2d 788, 790 (Miss. 1986)).

       1.     Length of the Delay

¶21.   “For constitutional speedy-trial claims, both the United States Supreme Court and the

Mississippi Supreme Court have clearly held that the starting point for the calculation of the

time begins with the defendant’s formal indictment or information or arrest. Thus, the

precise point at which the right attaches is when the individual has been accused.” McBride

v. State, 61 So. 3d 174, 179 (¶11) (Miss. Ct. App. 2010), aff’d, 61 So. 3d 138 (Miss. 2011)

(citations omitted). Under Barker, “[t]he length of the delay is to some extent a triggering

mechanism. Until there is some delay which is presumptively prejudicial, there is no

necessity for inquiry into the other factors that go into the balance.” Barker, 407 U.S. at 530.

“In Mississippi, any delay from the date of arrest, indictment, or information until trial

exceeding eight months is presumptively prejudicial.” Wise v. State, 263 So. 3d 668, 672

(¶17) (Miss. Ct. App. 2018), cert. denied, 263 So. 3d 665 (Miss. 2019). This shifts the

burden to the State to show the reasons for delay. Graham v. State, 185 So. 3d 992, 1005

(¶41) (Miss. 2016). However, the fact that “the delay is presumptively prejudicial . . . does

not mean that actual prejudice to the defendant exists. Rather, actual prejudice is determined

at a different point in the Barker analysis.” Id.; see infra.

¶22.   May was arrested in October 2012 and indicted in June 2013. His case did not



                                               8
proceed to trial until September 2017. The delay of almost five years between May’s arrest

and trial is “presumptively prejudicial.” Wise, 263 So. 3d at 672 (¶17). This does not mean

that May suffered any actual prejudice. Graham, 185 So. 3d at 1005 (¶41). It only means

that this one factor weighs against the State, that we must proceed to analyze the remaining

Barker factors, and that the State bears the burden of showing the reasons for the delay. See

Barker, 407 U.S. at 530; Graham, 185 So. 3d at 1005 (¶40).

       2.     Reasons for the Delay

¶23.   “When the length of the delay is presumptively prejudicial, the burden shifts to the

prosecution to produce evidence justifying the delay.” Bateman v. State, 125 So. 3d 616, 629

(¶45) (Miss. 2013). “This Court must then determine if the delay is attributable to the State

or the defendant.” Collins v. State, 232 So. 3d 739, 745 (¶20) (Miss. Ct. App. 2017), cert.

denied, 299 So. 3d 123 (Miss. 2017). Different reasons for delay are assigned different

weights. Barker, 407 U.S. at 532. “‘Deliberate attempts to delay the trial in order to hamper

the defense are weighted heavily against the State. On the other hand, ‘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.’” Collins, 232 So. 3d 745 (¶20) (quoting

Hardy v. State, 137 So. 3d 289, 299 (¶30) (Miss. 2014)). Basically, “the State must prove

either that the defendant prompted the delay or that the State had good cause.” De la

Beckwith v. State, 707 So. 2d 547, 606 (Miss. 1997). “We will uphold a trial court’s factual

determination regarding whether delay arose from good cause if it is based on substantial,



                                             9
credible evidence.” Reed, 191 So. 3d at 139 (¶9) (citing DeLoach v. State, 722 So. 2d 512,

516 (¶12) (Miss. 1998)). In this case, we find it useful to divide the time prior to trial into

five periods, which we address below chronologically.

¶24.   First, May was arrested in October 2012 but not indicted until June 2013. Based on

testimony presented by the State, the trial court found that this initial delay was caused by the

“heavy docket in [the] district” and delay in obtaining the victims’ medical records from

medical providers. The trial court found that this delay was “reasonable” and that “the State

ha[d] shown good cause for [it].” Thus, the trial court did not count the delay against the

State. See Collins v. State, 817 So. 2d 644, 653-54 (¶¶18-21) (Miss. Ct. App. 2002) (holding

that delay caused by post-arrest, pre-indictment investigation did not favor the defendant

when the State provided “legitimate” reasons for it). On appeal, May states that he “does not

put at issue the . . . delay between his arrest and indictment.” Therefore, we will also treat

this delay as neutral. See id.

¶25.   Second, the period from May’s first request for a continuance in July 2013 until his

December 2013 trial in his drug case is attributable to continuance motions that May either

filed or joined. Through counsel, May waived speedy trial objections to the delays, and the

trial court found good cause for the continuances.          Moreover, a joint motion for a

continuance is treated “as if it were sought by the defense” and will be “charged against” the

defendant. Sharp v. State, 786 So. 2d 372, 378 (¶7) (Miss. 2001). Therefore, the delay from

May’s indictment until his December 2013 trial in his drug case weighs against May.

¶26.   Third, there was an extended period of inactivity and delay in this case after May’s



                                               10
December 2013 conviction for possession of cocaine. Thereafter, nothing else happened in

this case until April 30, 2015, when May’s original counsel (Wittman) was allowed to

withdraw4 and new counsel (Davis) was appointed. The record does not provide any good

cause for the near-seventeen-month delay from December 2013 to April 30, 2015.

¶27.   In Collins, supra, we reasoned that the defendant’s conviction and life sentence on

one charge did not relieve the State of its obligation to bring him to trial another charge. See

Collins, 232 So. 3d at 745 (¶22). “[I]n general, the constitutional speedy trial clock is not

tolled simply because the defendant is already serving a sentence on a separate charge.” Id.

(citing Smith v. Hooey, 393 U.S. 374, 378-79 (1969)). Moreover, “[i]t is well settled that any

unexplained trial delay tolls heavily against the State[.]” Rowsey v. State, 188 So. 3d 486,

494 (¶23) (Miss. 2015). Therefore, although there is no evidence that the State intentionally

delayed May’s trial, the unexplained seventeen-month delay following May’s conviction for

drug possession must be weighed against the State.

¶28.   A fourth period of delay followed Wittman’s withdrawal and Davis’s appointment on

April 30, 2015. A new plea or trial date was set for May 18, 2015, but the case was not tried

on that date.5 On October 15, 2015, the State and Davis filed a joint motion for a

continuance, but the only explanation given was “appeal pending in other case.” The court



       4
        The State’s appellate brief states that May “fired” Wittman. That may be true, but
we are unable to find anything in the record to confirm it. Wittman apparently made an oral
motion to withdraw at a hearing that was not transcribed, and the court’s subsequent written
order granting Wittman’s motion does not provide any reasons.
       5
        No order continuing the case was entered. It appears that the case may not have
been placed on the trial court’s docket for May 18, 2015.

                                              11
granted the joint motion without any additional explanation and reset the trial for April 18,

2016. However, on November 2, 2015, Davis informed the State that May wanted a trial “as

soon as possible” and before April 2016. Despite asking for a prompt trial, Davis also stated

that he (Davis) was unavailable for the court’s next six available trial dates in December

2015 and January 2016. Moreover, Davis subsequently sought continuances in April 2016

and July 2016. In each of those motions, Davis explained that he needed more time to

prepare for trial. The court granted Davis’s motions—the latter over May’s objection—and

ultimately reset the trial for October 3, 2016.

¶29.   The approximately seventeen-month delay from April 30, 2015 to October 3, 2016

defies easy analysis under Barker. Some delay subsequent to Davis’s appointment is

understandable and does not weigh against the State.6 Months later, however, Davis

requested additional continuances and represented to the court that he needed more time to

prepare, while May personally objected to any further continuance and sought a trial. The

trial court granted defense counsel’s requests and ultimately ruled as follows:

       Mr. May, as you can appreciate, even though you don’t want a continuance,
       your lawyer, under his obligations to the court, has to let me know if he is
       ready or not ready. And he is telling me he is not ready because he hasn’t
       adequate time to meet with you or prepare your defense. I’m going to grant his
       motion for continuance, not for any long period of time, not for six months or
       a year, but just for a month or two to allow him more opportunity to meet with
       you and prepare himself.

A trial court has broad discretion to grant a continuance, see, e.g., McClendon v. State, 335

       6
         See, e.g., Sharp, 786 So. 2d at 379 (¶9) (“[A] delay caused by the withdrawal of the
defendant’s attorney which entails allowing the new attorney a reasonable time to become
familiar with the case and prepare for trial cannot be weighed against the State because it is
beyond the State’s control.”).

                                              12
So. 2d 887, 888 (Miss. 1976), and we cannot say that the trial judge abused his discretion by

granting a continuance to give counsel time to prepare. Nor can we say that the judge clearly

erred in finding good cause for the continuance. See Reed, 191 So. 3d at 139 (¶9).

¶30.   In addition, May is bound by his lawyer’s decisions as to the timing of trial and the

need for a continuance. See Summers v. State, 914 So. 2d 245, 254 (¶23) (Miss. Ct. App.

2005) (holding that defense counsel “was responsible for all aspects of timing [of the

defendant’s] trial” and had full authority to waive speedy trial objections); see also Thomas

v. State, 249 So. 3d 331, 349 (¶62) (Miss. 2018) (“[W]ith certain exceptions, criminal

defendants are bound by the actions of their lawyers.”). A pro se demand for a speedy trial

does not absolve the defendant of responsibility for a continuance that his own lawyer sought

and obtained. See State v. Oliveira, 127 A.3d 65, 77 (R.I. 2015). “[I]n the course of

attributing delays caused by defense counsel to the defendant for speedy-trial purposes, when

an attorney-client relationship exists, the client may not pick and choose which of his

attorney’s actions shall bind him.” Id. (quotation marks omitted). Thus, May is charged with

delays caused by his own attorney. For all these reasons, this fourth period of delay, which

was primarily due to continuances sought by defense counsel, weighs against May.

¶31.   The fifth and final significant period of delay is attributable to the court. In October

2016, the court postponed the trial again because the streets around the courthouse were

going to be closed for a “coast event.” In addition, in April 2017, the trial was postponed

again. The court’s order stated only that the court had been “unavailable for trial the week

of April 25, 2017.” The trial was rescheduled for September 2017, and May did finally go



                                             13
to trial in September 2017. Our Supreme Court has held that, “[a]s a general rule, delays

resulting from docket congestion are to be weighed against the State, but not heavily.”

Stevens v. State, 808 So. 2d 908, 916 (¶20) (Miss. 2002); accord Lee v. State, 134 So. 3d 834,

837 (¶¶9-10) (Miss. Ct. App. 2014). It is the State’s obligation to bring the defendant to trial,

so “the ultimate responsibility for such circumstances must rest with the government rather

than with the defendant.” Barker, 407 U.S. at 531. Likewise, we conclude that the trial

court’s unavailability in October 2015 and again in April 2017—whatever the reasons may

have been—must be weighed against the State, though not heavily. See Booker v. State, 5

So. 3d 411, 421 (¶25) (Miss. Ct. App. 2008) (holding that unavailability of the court weighed

slightly against the State).

¶32.   In summary, two significant periods of time must be weighed against the State, two

periods of delay are chargeable against May, and one period of delay is neutral. The

approximately seventeen-month delay subsequent to May’s conviction for possession of

cocaine (December 2013 to April 2015) weighs against the State, and the approximately

eleven-month delay attributable to the court (October 2016 to September 2017) also weighs

slightly against the State. The trial court found that the post-arrest, pre-indictment delay of

almost eight months was reasonable and neutral, and May does not challenge that finding on

appeal. Finally, two periods of delay weigh against May because they are related to

continuance motions that he filed or joined. These periods are July 2013 to December 2013

(about five months) and May 2015 to October 2016 (about seventeen months). Thus,

although significant periods of delay are attributable to May, a somewhat larger part of the



                                               14
overall delay weighs against the State. Accordingly, we conclude that this factor weighs

slightly in favor of May and slightly against the State.

       3.     Assertion of the Right to a Speedy Trial

¶33.   “Although it is the State’s duty to ensure that the defendant receives a speedy trial, a

defendant has some responsibility to assert this right.” Bateman, 125 So. 3d at 630 (¶48)

(quoting Taylor v. State, 672 So. 2d 1246, 1261 (Miss. 1996)). “Therefore, ‘the defendant’s

assertion of his right to a speedy trial weighs in his favor.’” Reed, 191 So. 3d at 140 (¶16)

(quoting Franklin v. State, 136 So. 3d 1021, 1034 (¶50) (Miss. 2014)). “In contrast, ‘a

defendant’s failure to demand a speedy trial between his arrest and indictment is critical to

the analysis of a speedy-trial claim.’” Id. (quoting Taylor, 162 So. 3d at 785 (¶10)).

¶34.   May first asserted his right to speedy trial on November 12, 2013. This was an actual

demand for a speedy trial rather than only a demand for dismissal. See, e.g., Smiley v. State,

798 So. 2d 584, 589 (¶18) (Miss. Ct. App. 2011) (noting the “distinct difference” between

the two and the greater significance of a demand for trial). However, May’s demand came

more than a year after his arrest and nearly five months after his indictment. In addition,

before May asserted his right to a speedy trial, he had already requested and obtained two

continuances. In Williams v. State, 5 So. 3d 496, 502-03 (¶¶15-16) (Miss. Ct. App. 2008),

this Court reasoned that the defendant’s failure to assert his right to speedy trial until nearly

one year after his arrest weighed against him.

¶35.   May also filed a pro se motion to dismiss for lack of a speedy trial on June 5, 2015,

and a pro se petition for writ of mandamus with the Mississippi Supreme Court on November



                                               15
17, 2015, seeking a ruling on that motion. May’s attorney, Davis, also wrote a letter to the

assistant district attorney stating that May wanted to go to trial “as soon as possible” and did

not waive his right to speedy trial. However, as discussed above, the State responded with

a motion to grant May a sooner trial, but Davis advised that he was unavailable for any of the

first six available trial dates that the State offered.

¶36.   Moreover, May, through counsel, joined in or filed motions for further continuances

in October 2015, April 2016, and July 2016. “[A] defendant’s assertion of his speedy trial

rights should manifest his desire to be tried promptly.” Perry v. State, 233 So. 3d 750, 758

(¶17) (Miss. 2017) (quotation marks omitted). “When a defendant moves for a speedy trial

but simultaneously requests a continuance, the defendant’s speedy-trial request cannot be

viewed as a request to be tried promptly.” Id. (citing Rowsey, 188 So. 3d at 495 (¶28)).

¶37.   In summary, May did demand a speedy trial, but he waited over a year to do so, and

his pro se demand was undermined by his attorney’s subsequent requests for continuances.

Under the circumstances, this factor weighs in favor of May but only slightly. See Jasso v.

State, 655 So. 2d 30, 34 (Miss. 1995) (holding that this factor weighed only slightly in favor

of defendants who demanded a speedy trial but subsequently requested continuances).

       4.      Prejudice

¶38.   “To determine whether the delay resulted in actual prejudice, the Court considers three

interests that the right to a speedy trial was meant to protect: ‘(i) to prevent oppressive

pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit

the possibility that the defense will be impaired.’” Taylor, 162 So. 3d at 787 (¶16) (quoting



                                                16
Jenkins v. State, 947 So. 2d 270, 277 (¶21) (Miss. 2006)). “Of these three interests, the last

is the most important; and when violated the most prejudicial to the defendant.” Collins, 232

So. 3d at 746 (¶26) (quoting Hersick v. State, 904 So. 2d 116, 123 (¶18) (Miss. 2004)).

“Generally, proof of prejudice entails the loss of evidence, death of witnesses, or staleness

of an investigation.” McCormick v. State, 183 So. 3d 898, 903 (¶21) (Miss. Ct. App. 2015)

(quoting Sharp, 786 So. 2d at 381 (¶19)). May “bears the burden of showing actual

prejudice, since the defendant is clearly in the best position to show prejudice under this

prong.” Reed, 191 So. 3d at 141 (¶19) (brackets and quotation marks omitted).

¶39.   May generally alleges that he suffered “anxiety and concern” from pretrial

incarceration. However, “the [Mississippi] Supreme Court has held that a defendant fails to

establish actual prejudice by ‘simply repeating the factors to be considered’ with ‘nary a

scintilla of evidence to support his claims.’” Collins, 232 So. 3d at 746 (¶27) (quoting

Taylor, 162 So. 3d at 787 (¶16)). Thus, May’s generalized assertions do not establish actual

prejudice. Id.

¶40.   May also asserts that his defense was impaired because “[e]vidence was lost,

memories faded, and testimony concerning the assault was rendered unreliable all due to the

five-year delay.” May specifically claims that he was prejudiced because (1) a photo lineup

was lost; (2) Quave could not be found and did not testify at trial; and (3) McLard, the sole

testifying eyewitness, was unreliable due to the delay. We address these issues in turn.

¶41.   Investigator Nick Sonnier of the Biloxi Police Department (BPD) testified that, soon




                                             17
after the assault, BPD received information that the assailant’s name was David Cobb.7 BPD

then obtained a photograph of Cobb from another law enforcement agency and included it

in a six-person photo lineup. The lineup did not include May because May’s name had not

yet surfaced in the investigation. BPD showed the photo lineup to McLard and Quave on the

day of the assault, but neither of them identified Cobb (or anyone else in the lineup) as their

assailant. Later that day, BPD matched a fingerprint in the house to May. Sonnier then

created a new photo lineup that included May, and the next morning both Quave and

Birchfield identified May as the assailant. The new lineup was not shown to McLard

because she had already been transported to the University of South Alabama Medical Center

for plastic surgery on her face and eye.

¶42.   On appeal, May asserts that he was prejudiced because the first photo lineup with

Cobb was not retained. This argument is without merit. To begin with, that lineup is

irrelevant and would not have helped May’s case. It did not include May, and no witness

identified Cobb or anyone else in it as the assailant. Moreover, the issue has nothing to do

with any delay in bringing May to trial. Sonnier testified that the lineup with Cobb was not

saved as part of BPD’s case file because May was not in it and it did not result in a positive

identification. The lineup was not “lost” because of any later delays in the trial.

¶43.   Quave did not testify at trial. At one point during the trial, the assistant district

attorney stated that Quave could not testify at trial because he was “in the affected area of

Houston,” presumably referring to flooding in Houston, Texas. That is all that the record



       7
           As noted above, Quave knew May only as “David” and did not know his last name.

                                              18
discloses as to Quave’s absence. There is nothing to show that May wanted to call Quave

as a witness. Nor does May attempt to explain how he was prejudiced by the absence of a

victim/eyewitness who had positively identified him as the assailant.

¶44.   Finally, May’s claim that McLard was not a reliable witness is based on a

misunderstanding of the record. May asserts that McLard’s “inability to identify a suspect

in the first six-pack lineup at Biloxi [Regional] Medical [Center]” is inconsistent with “her

‘absolute’ identification of Mr. May as the assailant some five years later at trial.” However,

there is no inconsistency. As explained above, the photo lineup shown to McLard did not

include May, and McLard was not shown the second lineup (with May) because she had

already been transported to Alabama for additional medical treatment and surgery. There is

nothing inconsistent or unreliable about McLard’s trial testimony or her positive

identification of May as her assailant. May fails to show that the delay had any impact on

McLard’s testimony or caused him any sort of prejudice at trial.

¶45.   “[W]e will not infer prejudice to the defense out of the ‘clear blue.’” State v.

Magnusen, 646 So. 2d 1275, 1285 (Miss. 1994). Moreover, “a defendant fails to establish

actual prejudice by ‘simply repeating the factors to be considered’ with ‘nary a scintilla of

evidence to support his claims.’” Collins, 232 So. 3d at 746 (¶27) (quoting Taylor, 162 So.

3d at 787 (¶16)). May has not established any actual prejudice whatsoever. The absence of

any prejudice “weighs heavily against [May] and in favor of the State.” DeLoach, 722 So.

2d at 518 (¶23); accord, e.g., Smiley, 798 So. 2d at 589 (¶20).

                                      CONCLUSION



                                              19
¶46.   To summarize our discussion of the Barker factors, the length of the delay is

presumptively prejudicial, and the reasons for the delay weigh in favor of May—though only

slightly because significant delays are also attributable to May and his trial counsel. May’s

demand for a speedy trial also weighs in his favor—but only slightly because he waited more

than a year before he asserted his right and then, through counsel, repeatedly requested

continuances. Finally, the absence of any actual prejudice weighs heavily against May.

¶47.   Smiley, supra, was another case in which the first three factors all weighed in favor

of the defendant but the fourth weighed heavily in favor of the State. First, the delay of

twenty-seven months in that case was presumptively prejudicial. Smiley, 798 So. 2d at 588

(¶¶12-13). Second, the State failed to show “good cause for the delay in bringing Smiley to

trial.” Id. at (¶15). Indeed, this Court took the “opportunity to chastise the State for . . . the

absence of good cause,” stating that “good cause” was “[n]otably absent.” Id. at 589 (¶21).

Third, Smiley made two pro se demands for a speedy trial and later filed two motions to

dismiss on that ground. Id. at (¶¶17-18). Nonetheless, we held that Smiley’s “fail[ure] to

demonstrate any prejudice whatsoever” “weigh[ed] heavily against [him] and in favor of the

State.” Id. at 589 (¶20). We then concluded: “Under the totality of the Barker factors,

weighed and considered together, we hold that the balance is struck in favor of the State.

There is no merit to Smiley’s claim of denial of a constitutional right to a speedy trial.” Id.

¶48.   The balance of the Barker factors in this case is comparable. We acknowledge that

the overall delay in this case is considerably longer than in Smiley, but the second and third

factors more clearly favored Smiley than May. Moreover, as in Smiley, May has “failed to



                                               20
demonstrate any prejudice whatsoever.” Id. As in Smiley, we conclude that “the totality of

the Barker factors, weighed and considered together, . . . favor . . . the State.” Id.

¶49.   Smiley is consistent with decisions of our Supreme Court. For example, in Flora,

supra, the delay between arrest and trial exceeded two years, and the Supreme Court held that

the second and third factors also favored the defendant. Flora, 925 So. 2d at 815-18 (¶¶62-

67). However, the Court held that “no actual prejudice existed,” and, “[u]nder the totality

of the circumstances, and upon examination and analysis of the Barker factors,” the

defendant’s “constitutional right to a speedy trial was not violated.” Id. at 818-19 (¶69).

Similarly, in Manix v. State, 895 So. 2d 167 (Miss. 2005), the delay from indictment to trial

was more than four years, and the Supreme Court held that the second and third factors also

favored the defendant, if only slightly. See id. at 172, 175-76 (¶¶4, 16-21). However, the

Court then held that the defendant “failed to prove any actual prejudice” and that the

“absence of actual prejudice” “overwhelmed” the other Barker factors. Id. at 177 (¶¶23-24).

Therefore, the Court found no violation of the right to a speedy trial. Id.8

¶50.   Consistent with Flora and Manix, the absence of any prejudice to May’s defense

weighs heavily in favor of the State and outweighs the other Barker factors. Therefore, the

trial court properly denied May’s motion to dismiss the indictment.

¶51.   AFFIRMED.

       BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL,

       8
         See also Reed, 191 So. 3d at 141-42 (¶21) (finding no violation in the absence of
actual prejudice, although twenty months elapsed between arrest and trial and the second and
third Barker factors both slightly favored the defendant); McCain v. State, 81 So. 3d 1130,
1135-36 (¶¶17-21) (Miss. Ct. App. 2011) (same), aff’d, 81 So. 3d 1055 (Miss. 2012).

                                              21
LAWRENCE AND C. WILSON, JJ., CONCUR. McCARTY, J., DISSENTS WITH
SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J.

       McCARTY, J., DISSENTING:

¶52.   Because the State violated David May’s guaranteed right to a speedy trial under any

calculation, I must respectfully dissent. Five years and three months passed between the time

May was arrested and when he was finally brought to trial. Of this delay, a back-breaking

1,081 days—or just shy of three years—are attributable to the State.9 A delay of this

magnitude warrants automatic reversal.

¶53.   As the majority opinion recounts, May sought several continuances. However, the

lion’s share of the delays were attributable to the State.10 The majority finds that “[t]he


       9
           The dates used to calculate the length of delay are as follows:
                                    Date                                          Length of
                                                                                   Delay
 May’s indictment to his first motion for a continuance                      36
 Docket congestion on November 14, 2013 to next trial date on May            562
 18, 2015
 Trial on May 18, 2015 rescheduled for October 3, 2016                       152
 Trial set for October 3, 2016 rescheduled due to unspecified reasons        205
 Court unavailable on April 25, 2017                                         126


       10
          The trial court did not hold the delay between the arrest and indictment against the
State. Because May failed to address the issue in his brief, I excluded it from my speedy-
trial calculation. That said, I do feel the need to address the trial court’s reasoning. The
reasons for the delay were an overcrowded docket and difficulty obtaining the victim’s
medical records. Crowded courts weigh against the State as it is the State’s duty to bring a
defendant to trial. Obtaining evidence is a burden that goes along with this duty. The State
is responsible for obtaining its evidence, and any delay as a result should be heavily weighed
against the State. In this day and age it is not difficult to obtain medical records. These are

                                               22
record does not provide any good cause for the near seventeen-month delay between

December 2013 to April 30, 2015.” Maj. Op. ¶26. This alone should satisfy the statute’s

requirement for dismissal.

¶54.     The trial court was unavailable on the trial date set for April 25, 2017. Generally,

court unavailability for reasons such as docket congestion will weigh against the State,

although not heavily. Barker v. Wingo, 407 U.S. 514, 531 (1972). Here, the record states

that the trial court was unavailable but fails to provide further explanation. Unexplained

delays weigh heavily against the State. Rowsey v. State, 188 So. 3d 486, 494 (¶23) (Miss.

2015).

¶55.     The majority goes on to hold that the eleven-month delay (due to a “coast event”)

only weighed “slightly in favor of May and slightly against the State.” Maj. Op. ¶32. I

respectfully disagree. There was no actual reason given by the State for the delay—and even

if it were, it is not an overcrowded docket and therefore should not be weighted equally.

Rather, this delay should weigh heavily against the State.

¶56.     When discussing the fourth factor, prejudice, the majority finds that “the absence of

any prejudice to May’s defense weighs heavily in favor of the State and outweighs any of the

Barker factors. Therefore, the trial court properly denied May’s motion to dismiss this

indictment.” Maj. Op. ¶50. The majority seems to have the view that actual prejudice is

required to establish a speedy trial violation. This reasoning is too shallow of a view to

take—and one that the Supreme Court rejected over forty-five years ago.


routine tasks that all lawyers can be expected to perform with relative ease. In different
circumstances this could very well be included in a speedy-trial calculation.

                                              23
¶57.   In Moore v. Arizona, 414 U.S. 25, 25 (1973), a state supreme court held that a

defendant must show actual prejudice to establish a speedy trial violation. 414 U.S. 25, 25

(1973). Upon review, the United States Supreme Court found this to be a misinterpretation

of Barker. Id. The Supreme Court held that no one factor alone is dispositive “and expressly

rejected the notion that an affirmative demonstration of prejudice was necessary to prove a

denial of the constitutional right to a speedy trial.” Id. at 26 (citing Barker, 407 U.S. at 533).

¶58.   Further, “when the length of the delay is presumptively prejudicial, the burden shifts

to the prosecution to produce evidence justifying the delay.” Bateman v. State, 125 So. 3d

616, 629 (¶43) (Miss. 2013). As the majority notes, the delay of over five years in the case

at hand is presumptively prejudicial. Maj. Op. ¶22; Smith v. State, 550 So. 2d 406, 408

(Miss. 1989) (holding that an eight-month delay is presumptively prejudicial). Because

prejudice is presumed in a delay so tremendous, the defendant does not have to show actual

prejudice.

¶59.   Even though prejudice is presumed and the burden is no longer on May, prejudice still

exists in this case. May was incarcerated, which should be inherently prejudicial. “Lengthy

exposure to [the overcrowded and generally deplorable] conditions [of local jails] has a

destructive effect on human character and makes the rehabilitation of the individual offender

much more difficult.” Barker, 407 U.S. at 512.

¶60.   The right to a speedy trial shields not just the individual but also society as well.

Delayed trials result in a large backlog of cases which in turn enable defendants to negotiate

more effectively and otherwise manipulate the system. Id. Furthermore, defendants released



                                               24
on bond are given ample time to commit other crimes. Id. It is for this reason that

Mississippi state law provides that “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. 2014). A defendant not brought to trial within

this time frame, unless good cause shown, is entitled to dismissal of the charges against him.

Id.; Dies v. State, 926 So. 2d 910, 914 (¶7) (Miss. 2006). As the majority points out, May

did not invoke the state statute. Yet all the 270 day law does is illustrate and define the right

to a speedy trial.

¶61.   The right to a speedy trial is one of the cornerstones of our freedoms as Americans.

“The history of the right to a speedy trial and its reception in this country clearly establish

that it is one of the most basic rights preserved by our Constitution.” Klopfer v. State of N.C,

386 U.S. 213, 226 (1967). As the United States Supreme Court explained, the right to a

speedy trial can be traced to “the very foundation of our English law heritage”—back to the

Magna Carta, written over 800 years ago. Id. at 223.

¶62.   From that ancient beginning it traveled to the colonies, where at the birth of our

country “the Virginia Declaration of Rights of 1776 provided ‘a man hath a right to a speedy

trial.’” Id. at 225. The Court acknowledged that even at “this early period in our history,”

the right was already considered fundamental. Id.

¶63.   We must not let this bright light dim after centuries of precedent. It should certainly

not be doused given the three years of delay in this case. This is not a close decision—the

only result under the Constitution is to reverse.



                                               25
¶64.   For these reasons that I must respectfully dissent.

       McDONALD, J., JOINS THIS OPINION.




                                             26
