                        IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2000-KA-01789-SCT

JUSTIN STARK a/k/a JUSTIN ALLEN STARK

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                            01/31/2000
TRIAL JUDGE:                                 HON. T. LARRY WILSON
COURT FROM WHICH APPEALED:                   JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     H. BERNARD GAUTIER
                                             PRO SE
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: W. DANIEL HINCHCLIFF
DISTRICT ATTORNEY:                           ANTHONY LAWRENCE, III
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 07/28/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE SMITH, C.J., CARLSON AND DICKINSON, JJ.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    This is an appeal of an aggravated assault conviction. The appellant says he was denied

his constitutional and statutory rights to a speedy trial.   Finding no reversible error in the

record, we affirm.

                           FACTS AND PROCEDURAL HISTORY

¶2.    On February 21, 1998, Justin Allen Stark and Robert Preston Cooper attended a party

at the home of Aaron Missy. Intoxicated, Cooper passed out on Missy’s living room couch and

then urinated on the floor. Upon learning of this, Missy punched Cooper, knocking him to the
floor.   Stark then stomped on Cooper’s head several times with force sufficient to render

Cooper unconscious and permanently brain damaged.

¶3.      Stark was arrested and charged with aggravated assault,1 for which he was indicted by

the Jackson County, Mississippi, Grand Jury on July 7, 1998, under file number 98-10,345

(the “345 Indictment”). However, on May 7, 1999, Stark was re-indicted under cause number

99-10,320 (the “320 Indictment”) for the same incident, but with two changes in the language

of the indictment.2

¶4.      On November 8, 1999, the case proceeded to trial on the 320 Indictment.                       The jury

found Stark guilty, and he was sentenced to fifteen years in the custody of the Mississippi

Department of Corrections with three years suspended and twelve years to serve.3                        Stark’s

motion for JNOV or in the alternative for a new trial, was denied.

¶5.      Stark now appeals, claiming that his constitutional and statutory rights to a speedy trial

were violated.

                                                 ANALYSIS

         I. The Constitutional Claim


         1
         The date of Stark’s arrest is not evident in the record. February 22, 1998, is the date on which
Stark claims he was arrested.
         2
           Specifically, the 345 Indictment stated, in pertinent part, that Stark “unlawfully, feloniously,
willfully, purposely and recklessly, under circumstances manifesting extreme indifference to the value of
human life, cause serious bodily injury to Preston Cooper III.”
          The 320 indictment charged that Stark “purposely, knowingly, or recklessly, under circumstances
manifesting extreme indifference to the value of human life, cause serious bodily injury to Preston Cooper
III.”
         3
         Interestingly, the Notice of Criminal Disposition filed with the Mississippi Department of
Corrections incorrectly indicates that Stark pled guiltyand further indicates that Stark is entitled to no credit
for the year and a half he claims he had already served as of the trial date.

                                                       2
¶6.     The Sixth4 and Fourteenth5 Amendments to the United States Constitution, along with

Article 3, Section 26 of the Mississippi Constitution,6 guarantee a defendant the right to a

speedy trial. Young v. State, 891 So. 2d 813, 816 (Miss. 2005); Hersick v. State, 2004 WL

2535397 *1 (Miss. 2004).          There is no set amount of time within which a defendant must be

brought to trial. Rather, the United States Supreme Court has developed a balancing test to

determine whether a defendant’s constitutional rights to a speedy trial have been violated. See

Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).                         This Court has

consistently applied the Barker test in cases involving constitutional speedy trial analysis.

Price v. State, 898 So. 2d 641, 647-48 (Miss. 2005); Young, 891 So. 2d at 816; Hersick,

2004 WL 2535397 *1.

¶7.     The Barker test consists of four factors – (1) length of delay, (2) reason for delay, (3)

the defendant’s assertion of his right, and (4) prejudice to the defendant – which must be

considered together and balanced. 407 U.S. at 530-32, 92 S.Ct.at2192-93. See Taylor v.

State, 672 So. 2d 1246, 1258 (Miss. 1996).                The Barker analysis is triggered when there is

a presumptively prejudicial delay. Barker, 407 U.S. at 530, 92 S.Ct. at 2192. This Court has

held that any delay exceeding eight months is presumptively prejudicial.             Smith v. State, 550




        4
           The Sixth Amendment provides that “the accused shall enjoy the right to a speedy and public trial
. . . .” U.S. Const. amend. VI.
        5
        The Fourteenth Amendment guarantees that a state shall not “deprive any person of life, liberty
or property, without due process of law; . . .” U.S. Const. Amend. XIV, § 1. See Skaggs v. State, 676
So. 2d 897, 900 (Miss. 1996) (Fourteenth Amendment guarantees speedy trial).
        6
          Article 3, Section 26 provides that “the accused shall have a right to . . . a speedy and public trial
. . . .” Miss. Const. Art. 3, § 26.

                                                      3
So. 2d 406, 408 (Miss. 1989). The calculation of the time elapsed begins with the defendant’s

arrest, indictment, or information. Smith, 550 So. 2d at 408. “In short the constitutional right

to a speedy trial attaches when a person has been accused.” Hersick, 2004 WL 2535397 *1

(citing Smith, 550 So. 2d at 408).

¶8.     Except for statements by counsel, the record is silent as to when Stark was arrested.

Stark’s counsel claims Stark’s arrest took place on February 22, 1998, and that he remained

incarcerated for the year and a half until trial.       The State does not contest this assertion, and

we shall therefore calculate the time from February 22, 1998.

¶9.     Stark’s trial began on November 8, 1999, resulting in a delay to trial of 624 days, or 20

½ months.       Since this exceeds eight months, it is presumptively prejudicial, requiring an

analysis of the Barker factors.

        1. The Length of Delay

¶10.     Although Stark’s appeal is from his conviction of the charges brought under the 320

Indictment, we must give Stark the benefit of calculating the speedy trial delay beginning with

his arrest which led to the 345 Indictment, since the 320 Indictment was a rewording of the

345 Indictment and was for the same incident. As stated supra, the period between Stark’s

arrest and the trial was 624 days, or 20 ½ months.              Therefore, the delay is presumptively

prejudicial and requires the application of the remaining Barker factors.

        2. The Reason for Delay

¶11.    Once a delay is found to be presumptively prejudicial, the burden of proof shifts to the

State to show cause for the delay. Price, 898 So. 2d at 647 (citing State v. Ferguson, 576 So.

2d 1252, 1254 (Miss. 1991)). The Court must determine whether the delay should be charged

                                                    4
to the State or the defendant. Brengettcy v. State, 794 So. 2d 987, 993 (Miss. 2001). This

Court has previously held:

       The burden is on the State to provide a defendant with a speedy trial. Therefore,
       the State bears the concomitant burden of showing that either the delay was
       caused by the defendant or that the delay was for a good cause. Where the State
       is unable to do either, this factor must be weighed against the State.

Hersick, 2004 WL 2535397 *1 (citing Wiley v. State, 582 So. 2d 1008, 1012 (Miss. 1991);

Smith, 550 So. 2d at 409). Practical application of the holdings in Hersick, Smith and Wiley

requires a subtraction of the amount of delay attributed to the defendant and “good cause” from

the total period of delay. This Court has held that “good cause” is a factual finding which is not

different from any other finding of fact on appeal.      Such findings should be left undisturbed

when based upon “substantial credible evidence” identified in the record. McGhee v. State, 657

So. 2d 799, 803 (Miss. 1995) (citing McNeal v. State, 617 So. 2d 999, 1007 (Miss. 1993);

Folk v State, 576 So. 2d 1243, 1247 (Miss. 1991)).

¶12.   This Court has validated consideration of oral agreements for continuances in McGhee

v. State, 657 So. 2d at 805; Carson v. State, 607 So. 2d 1132, 1134 (Miss. 1992); and Arnett

v. State, 532 So.2d 1003, 1011 (Miss. 1988).7

       Fred Lusk Testimony

¶13.   On August 16, 1999, the trial court conducted a hearing on Stark’s motion to dismiss

an unrelated indictment for failure to provide him with a speedy trial.8        Fred Lusk, Stark’s



       7
        However, this Court has stressed its preference for documentation over oral negotiations. See
Taylor, 672 So. 2d at1259.
       8
        This unrelated indictment is discussed infra.

                                                    5
attorney, testified about numerous conversations he had with the prosecution that addressed

both the unrelated indictment and the two indictments in the case sub judice. The trial settings,

the agreements between Lusk and the prosecution, and the continuances granted on all of these

indictments were so commingled that the trial court ordered the transcript of this hearing

included in the record in the case sub judice. The trial court stated that this testimony “went

to all of the cases.”

¶14.    During the hearing on Stark’s motion to dismiss, Lusk provided a detailed account of

his representation of Stark, including his efforts to obtain a favorable plea agreement.    Lusk

testified that he agreed to numerous continuances because indictments were pending on two

different crimes, one of which he considered very serious.

¶15.    At the conclusion of the hearing, the trial court made findings regarding the reasons for

the various continuances.

        Reasons for delay

¶16.    Stark was arraigned on the 345 Indictment on September 10, 1998, and trial was set for

November 23, 1998. The trial court found that Lusk agreed to continue the November 23 trial

setting to January 25, 1999. Thus, this 63-day delay was attributed by the trial court to Stark.

¶17.    The trial court next found that the January 25, 1999, trial setting was continued to

March 3, 1999, because “the Court was not available and . . . Mr. Lusk agreed to a

continuance.” Thus, this 37-day delay was attributed to Stark and was for good cause.

¶18.    The trial court next found that the March 3, 1999, trial setting was continued to April

20, 1999, by Lusk’s agreement, and thus this 48-day delay is attributed to Stark.




                                                   6
¶19.    The trial court next found that the April 20, 1999, trial setting was continued to August

23, 1999, because the prosecutor was in trial before the trial judge. Thus, this 125-day delay

was attributed to good cause.

¶20.    During the hearing, Stark’s new counsel moved for a continuance of the August 23,

1999, trial setting, and the matter was reset to October 4, 1999, the first day of the October

term. Thus, Stark is charged with this 42-day delay. We are given no explanation for the delay

from October 4, 1999, to the beginning of trial.

¶21.    We cannot say the trial judge abused his discretion in the findings discussed above. To

the contrary, we find the trial court carefully and patiently examined the testimony and other

evidence and provided Stark with ample opportunity to provide evidence that the delay was not

attributable to him or good cause. According to Stark’s counsel, the record in this case was

“saturated” with “confusion.” The trial judge’s thorough analysis must be commended.

¶22.    The trial court found a total of 315 days attributable to Stark and/or good cause.

Subtracting these days from the 624 days from arrest to trial, we find the State is charged with

309 days of delay. This ten-month delay exceeds by two months the eight-month threshold for

presumptive prejudice.

¶23.    Without more, this factor would weigh in favor of Stark. However, the record reflects

that during the initial delay from Stark’s arrest on February 22, 1998, until his arraignment on

the 345 Indictment in September, Lusk was battling another indictment for an unrelated charge

of aggravated assault returned by the Jackson County Grand Jury against Stark in July 1997.

Finding himself representing a client under two indictments for two separate incidents, Lusk

persistently attempted to obtain a favorable plea agreement for Stark. Lusk juggled the two


                                                   7
indictments, arraignments, and trial settings with procedural legerdemain, only to hear through

the grapevine that he had been replaced by new counsel.                    Lusk testified that, in his

conversations with the prosecutor’s office, he was substantially more concerned about the

indictment concerning the assault on Cooper, rather than the prior indictment. Thus, the thrust

of Lusk’s efforts was to gain some advantage for Stark with respect to the indictment in the

case sub judice.

¶24.   At the hearing on Stark’s motion to dismiss the unrelated indictment, the trial court

found good cause for continuance of an April 23, 1998, trial setting on that charge. The case

was reset to July 20, 1998. While this was not a continuance of a trial setting on the 345 or

320 Indictments, Lusk’s purpose in obtaining the continuance was to negotiate all charges

against Stark. Thus, we find good cause for the delay of those 88 days.

¶25.   Based on all of the above, we find this factor (reasons for the delay) to be neutral.

       3. The Defendant’s assertion of his right

¶26.   Stark filed motions to dismiss for failure to provide a speedy trial. However, he never

requested nor moved for a speedy trial. While it is the State’s burden to bring an accused to

trial, we have held that a defendant’s failure to assert his right to a speedy trial must be weighed

against him. State v. Woodall, 801 So. 2d 678, 684 (Miss. 2001) (citing Watts v. State, 733

So. 2d 214, 236 (Miss. 1999); Stogner v. State, 627 So. 2d 815, 819 (Miss. 1993)). We have

also noted that the Barker Court emphasized that “failure to assert that right will make it

difficult for a defendant to prove that he was denied a speedy trial.” Woodall, 801 So. 2d at 684

(quoting Barker, 407 U.S. at 531-32)).




                                                   8
¶27.     This Court has previously held that “a demand for dismissal for violation of the right

to speedy trial is not the equivalent of a demand for speedy trial. Such a motion seeks

discharge not trial.” Perry v. State, 637 So. 2d 871, 875 (Miss. 1994) (citing Adams v. State,

583 So. 2d 165 (Miss. 1991)). As Stark concedes, this factor must weigh in favor of the State.




        4. The Prejudice to the Defendant

¶28.    The United States Supreme Court has identified three interests to be considered when

analyzing whether a defendant has been prejudiced by the delay in bringing the case to trial.

These interests are (1) to prevent oppressive pretrial incarceration, (2) to minimize anxiety and

concern of the accused, and (3) to limit the possibility that the defense will be impaired.   The

last interest is the most important and, if violated, is the most prejudicial to the defendant.

Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

¶29.    The first interest – preventing oppressive pretrial incarceration – is related to the first

two Barker factors, but applies only where the defendant is incarcerated during the delay.

According to Stark’s counsel, Stark was incarcerated during the entire period of delay. Thus,

this factor weighs against the State.

¶30.    The second interest, minimizing anxiety and concern of the accused, does not weigh in

favor of either Stark or the State. Stark cites no facts to support any claim of over-burdensome

anxiety or concern while incarcerated.        The State made no showing that Stark’s incarceration

was free of anxiety or concern. Therefore, this factor is neutral.

¶31.    The third and most important of the interests to be considered under this prong of the

Barker test is the possibility that the defense will be impaired by the delay of the proceedings.

                                                     9
Stark alleges that his incarceration prevented him from investigating the incident and looking

for and interviewing witnesses.         However, Stark fails to suggest any evidence, potential

witness, or case theory which escaped his reach because of the delay. We find no basis to hold

that the delay in the proceedings impaired Stark’s defense of the case.

¶32.    After viewing together and evaluating all factors of the Barker analysis, we conclude

that Stark’s constitutional rights to a speedy trial were not violated.

        II. Statutory Claim

¶33.    The right to a speedy trial is not only guaranteed by the United States and Mississippi

Constitutions, but also by statute.        Although rights guaranteed by the constitution may never

be diminished by statute, they can be expanded. Miss. Code Ann. § 99-17-1 (Rev. 2000), also

known as the “270 day rule,” provides as follows: “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.” (emphasis added).

¶34.    Since the statutory speedy trial clock begins to tick at a different time from its

constitutional counterparts, we are required to apply a different analysis.

¶35.    Stark was first arraigned on September 10, 1998, under the 345 indictment.            His trial

began 393 days later, on November 8, 1999.                Since this period exceeds 270 days, we must

determine whether any portion of the delay can be attributed to “good cause,” with a

“continuance duly granted.”

¶36.    As discussed supra, good cause was shown for the continuances of the November 23,

1998, January 25, 1999, March 3, 1999, April 20, 1999, and August 23, 1999, trial settings.


                                                     10
These continuances for good cause cover a period of 350 days which, when subtracted from

the total delay of 393 days, results in a delay counted against the State of 43 days.

Accordingly, Stark was tried within the 270-day statutory limit.

                                           CONCLUSION

¶37.    Having found no violation of Stark’s constitutional or statutory rights to a speedy trial,

we affirm the judgment of the Circuit Court of Jackson County.

¶38. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN
(15) YEARS, THREE (3) YEARS SUSPENDED AND TWELVE (12) YEARS TO SERVE,
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

    SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON, GRAVES AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




                                                   11
