                         IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2003-KA-00151-SCT

LARRY VINCENT HERSICK

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                            10/30/2002
TRIAL JUDGE:                                 HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED:                   GEORGE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     ROSS PARKER SIMONS
                                             LARRY VINCENT HERSICK PRO SE
ATTORNEYS FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                             BY: JOHN R. HENRY
DISTRICT ATTORNEY:                           KEITH MILLER
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 11/10/2004
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE COBB, P.J., DICKINSON AND RANDOLPH, JJ.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    An eleven-year old girl and her eight-year-old brother    finished shopping at the Wal-

Mart in Lucedale and raced to the nearby Winn-Dixie where their parents were grocery

shopping. Larry Hersick, a transient, was sitting outside the Wal-Mart on a block of concrete.

As the children raced passed Hersick, he grabbed the girl by her upper right arm and pulled her

a distance of about five to ten feet into the parking lot. The girl jerked away from Hersick and

ran to the Winn-Dixie with her brother.
¶2.     The girl's father called the police, who rushed to the Wal-Mart to find Hersick still

sitting on the block of concrete.        Hersick was arrested, indicted, tried and convicted of

attempted kidnaping, and sentenced to ten years' imprisonment. Hersick now appeals, claiming

that his right to a speedy trial was denied, the indictment was flawed, the trial court improperly

admitted a statement he made to police, and the jury verdict was against the overwhelming

weight of the evidence. Finding no reversible error, we affirm.

        I.      Issues raised by Hersick's counsel

        Speedy Trial -- The Constitutional Claim.

¶3.     Defendants in criminal cases are guaranteed the right to a speedy trial by the sixth and

fourteenth amendments to the United States Constitution and Article 3, Section 26 of the

Mississippi Constitution of 1890.        Watts v. State, 733 So.2d 214, 235 (Miss.1999).           In

Barker v. Wingo, 407 U.S. 514, 92 S.C.2182, 33 L.Ed.2d 101 (1972), the United States

Supreme Court has provided a test we must follow. Under Barker, we examine the following

factors: (i) length of the delay, (ii) reason for the delay, (iii) defendant’s assertion of his right,

and (iv) prejudice to the defendant. 407 U.S. at 530. See Taylor v. State, 672 So.2d 1246,

1258 (Miss. 1996).

        (i). Length of the Delay

¶4.     The length of the delay is a “triggering mechanism” for the Barker test. Until there is

some delay that is presumptively prejudicial, there is no need for further inquiry under Barker.

407 U.S. at 530; Mitchell v. State, 792 So.2d 192 (Miss. 2001). We recognize a delay of eight

months to be presumptively prejudicial. Smith v. State, 550 So.2d 406, 408 (Miss. 1989).



                                                    2
¶5.     The constitutional right to a speedy trial attaches at the time of the accused’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.” Id.

¶6.     Hersick was arrested on February 25, 2001, and his trial commenced 611 days later,

on October 29, 2002.          Thus, the delay is presumptively prejudicial and requires that we

examine the remaining Barker factors.

        (ii). Reason for the Delay

¶7.     The second Barker factor requires the court to determine the reason for the delay,

including the party to whom the delay is attributable. Brengettcy v. State, 794 So.2d 987, 993

(Miss. 1999). 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. Smith v. State, 550 So.2d at 409; Wiley v. State, 582

So.2d 1008, 1012 (Miss. 1991).

¶8.     Delays caused by the defense, such as requests for continuances, will toll the running

of the speedy trial clock for that length of time attributable to the continuance. Wiley v. State,

582 So.2d 1008, 1011 (Miss. 1991), citing Flores v. State, 574 So.2d 1314, 1318 (Miss.

1990). A time line of the relevant dates and events in Hersick’s case is as follows:

        • February 25, 2001:            Hersick arrested; provides false name to the police.

        • April 2001:                   Hersick’s true identity is determined by law enforcement
                                        officers.

        • November 28, 2001:            Hersick is indicted.


                                                    3
        • January 30, 2002:              Hersick is arraigned.

        • March 21, 2002:                Ross P. Simons is appointed to represent Hersick.

        • April 15, 2002:                Hersick’s request for a continuance is granted. Trial is
                                         continued to the next term.

        • July 29, 2002:                 The State requests a continuance because a witness is
                                         unavailable to testify. Trial is continued to October 28,
                                         2002.

        • September 20, 2002:            Hersick files a motion to dismiss for failure to grant a
                                         speedy trial filed by defense.

        • October 1, 2002:               Hersick’s motion to dismiss is denied.

        • October 29, 2002:              Hersick’s trial begins.

¶9.     We must now calculate all days attributable to Hersick’s request, or other good cause,

and weigh them in the context of all the Barker factors.

¶10.    When Hersick was arrested on February 25, 2001, he was uncooperative with police,

and provided a false name to the police officers.          His true identity was not established until

seven weeks later in April 2001.          Thus, the seven weeks (49 days) during which Hersick

withheld his true identity from authorities must be subtracted from the delay.

¶11.    Hersick was indicted by the October 2001 grand jury, which was the first available grand

jury after Hersick’s true identity was determined.            The indictment was handed down on

November 28, 2001.          Where a defendant is indicted by the first available grand jury in the

county, the time between arrest and indictment is not counted against either the state or the

defense. Brengettcy, 794 So.2d at 993.




                                                     4
¶12.    The time between Hersick’s indictment on November 28, 2001 and his trial on October

29, 2002, is 335 days.          However, the continuance granted to Hersick on April 15, 2002,

accounts for 105 days of this period, reducing the total period of delay to 230 days.1

¶13.    The State further argues that the time between Hersick’s arraignment on January 30,

2002, and the continuance granted on April 15, 2002, should be tolled against Hersick because

of his action in seeking new representation.      At arraignment, Hersick was represented by Mr.

Barnett from the Public Defender’s office.         However, Barnett explained to Hersick and the

court that he had a potential conflict of interest because he had previously represented the

victim’s family in other matters.       Hersick and Barnett agreed that Barnett would stand in for

Hersick for the limited purpose of the arraignment, and afterward another attorney could be

appointed to represent Hersick. The record is devoid of any other documentation concerning

Hersick’s representation until an order appointing Ross Parker Simons was entered on March

21, 2002.      Although the State alleges Hersick caused the delay by switching attorneys, there

is nothing in the record to indicate that he is at fault for this delay. 2 Hersick certainly can not

be faulted for Barnett’s conflict of interest.




        1
        A continuance granted to the defense tolls the running of the speedy trial clock. See Wiley v.
State, 582 So.2d 1008, 1011 (Miss. 1991).
        2
         Simons stated during the hearing on the motion to dismiss:
        So there has been some attorney switching in this case, and I guess the issue in this case
        is whether or not Mr. Hersick caused any of that. And I don’t find anything in the record
        where Mr. Hersick asked the Court formally to replace attorneys in this case. There may
        have been some discussions or disagreements, or he might not have like his attorneys at
        some times, but I don’t think that he actually formally made a motion to remove his
        attorney. I don’t know that any attorneys made motions on their own that asserted
        conflicts or personal conflicts or legal conflicts to the Court.

                                                    5
¶14.     Finally, a continuance was granted to the State on July 20, 2002, which accounts for the

92 days before Hersick’s trial.          Because this continuance was granted for good cause,3 it tolls

the running of the constitutional speedy trial clock, and reduces the total period of delay to

138 days.

¶15.     The total period of delay remains at 138 days, or approximately four and a half months,

a delay which is not presumptively prejudicial.            Therefore, this factor weighs in favor of the

State.

         (iii). Assertion of the Right

¶16.     Under Barker, the defendant’s assertion of his speedy trial right is entitled to strong

evidentiary weight.       Failure to assert the right will make it difficult for a defendant to prove

denial of a speedy trial.      Barker v. Wingo, 407 U.S. at 531-32.           Hersick filed a motion to

dismiss for failure to grant a speedy trial on September 20, 2002, a year and a half after he was

first incarcerated and five weeks before his trial was set to begin.             The events related to

Hersick’s request for a speedy trial are as follows.




         July 29, 2002:                     The State requested a continuance because arresting
                                            officer Darryl Brewer was unavailable to testify. At that
                                            time, defense counsel for Hersick objected and demanded
                                            that the state follow statutory procedure.

         September 20, 2002:                Hersick filed his Motion to Dismiss for Failure to Grant
                                            a Speedy Trial under Miss. Code Ann. 99-17-1, Article 3,



         3
         This continuance was granted to the State because Darryl Brewer, the arresting officer and
one of the State’s key witnesses, was overseas on active military duty. See Box v. State, 610 So.2d
1148, 1150 (Miss. 1992) (continuance was granted - State’s witness was unavailable because was on
a mission for the United States Department of State).

                                                       6
                                           Section 26 of the Mississippi Constitution and the Sixth
                                           Amendment to the U.S. Constitution.

        October 1, 2002                    Hersick’s motion for speedy trial was denied.

        October 18, 2002:                  Hersick makes another demand for speedy trial.

        October 29, 2002:                  Hersick’s trial begins.

¶17.    The record reflects that Hersick asserted his right to a speedy trial on several

occasions, but his first request was only a few weeks before the trial.           Therefore, this factor

does not favor the State or the defendant.

        (iv). Prejudice to the Defendant

¶18.    The Barker Court identified three interests protected by the right to a speedy trial that

are to be considered when determining whether a defendant has been prejudiced by a delay in

bringing him or her to trial.        They are (1) the interest in preventing oppressive pretrial

incarceration, (2) the interest in minimizing anxiety and concern of the accused, and (3) the

interest in limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532.

Of these three interests, the last is the most important; and when violated, the most prejudicial

to the defendant. See id.

¶19.    The first of these interests, preventing oppressive pretrial incarceration, is best

considered closely with the first two Barker factors, the length of and reasons for the delay.

There are numerous cases which demonstrate that Hersick’s period of pretrial incarceration

was not oppressive and did not violate his constitutional rights. Jefferson v. Stat e, 818 So. 2d

1099 (Miss. 2002) (480 days); Skaggs v. State, 676 So. 2d 897 (Miss. 1996) (554 days);

Strogner v. State, 627 So. 2d 815 (Miss. 1993) (25 months); Ross v. State, 605 So. 2d 17


                                                      7
(Miss. 1992) (378 days); Watson v. State, 848 So. 2d 203 (Miss. Ct. App. 2003) (817 days);

Malone v. State, 829 So. 2d 1253 (Miss. Ct. App. 2002) (915 days); Thompson v. State, 773

So. 2d 955 (Miss. Ct. App. 2000) (1031 days); Bingham v. State, 775 So. 2d 426 (Miss. Ct.

App. 1999) (640 days).

¶20.    Hersick had 611 days of pretrial incarceration.           However, all but 138 days were

attributed to Hersick or good cause.          Therefore, Hersick has failed to demonstrate how his

pretrial incarceration has been oppressive.

¶21.    An analysis of the second interest, minimizing anxiety and concern of the accused, is

related to the considerations discussed under the third Barker factor, the defendant’s assertion

of the right. Although he waited until a few weeks before trial to assert his right to a speedy

trial, Hersick did demonstrate some frustration about the delay.         During the hearing on the

motion to dismiss, his counsel stated:

        Mr. Hersick’s greatest concern in this case, I think at this point, is that he’s been
        in jail for approximately 620 days – maybe 610 days. And I believe that I might
        have miscalculated the date of this crime by about 20 days or 10 days or so, but
        still, it’s been well over 600 days, which is going into -- by the time he’ll be
        tried in this case on October 28th, if the case goes forward, he’s going to be
        about 100 days short of two years in jail.

¶22.    This statement by counsel is the only indication in the record of anxiety or frustration

caused by pretrial incarceration.

¶23.    The State asserts that, because he was homeless, Hersick was not in a position to

complain about unlawful incarceration. Specifically, the State claims:

        It seems the Appellant was incarcerated during this period, and no doubt living
        a much more satisfactory life in jail than the nomadic, hand-to-mouth existence
        he had apparently been living when arrested. Bail had apparently been set, once
        his actual identity had been determined, but naturally he was unable to make it.

                                                    8
        Still, one must recognize that the provision of three square meals a day, a bed,
        heat in winter, [sic] long warm showers, were certainly material improvements
        in the Appellant’s life, and all at the expense of the good citizens of George
        County. For the Appellant to speak of prejudice under these circumstances
        would be impertinent and ingracious [sic], but we get ahead of ourselves.

¶24.    This Court rejects these comments as inconsistent with the rights secured to all citizens

under the Constitution. They also ignore the realities of prison life. Constitutional protections

do not depend upon the economic status of the individual asserting them. The State discredits

itself by making such assertions, and they carry no weight with this Court.

¶25.    The third and most important interest is limiting the possibility that the defense will be

impaired.    While the length of time between arrest and trial is substantial, Hersick has not

shown how his case was prejudiced by the delay. He does not provide us with any explanation

or analysis of how the delay adversely affected his trial, and the record does not indicate that

the delay caused any of Hersick's witnesses to be unavailable, or unable to remember

information helpful to his defense.4       Incarceration alone is not sufficient to establish prejudice

under Barker, and without some showing of actual prejudice to his case resulting from the

delay, Hersick fails to prove that the delay was so prejudicial as to warrant reversal.

¶26.    Because of Hersick’s failure to demonstrate that he was “oppressed”, that he suffered

anxiety and concern (other than concern regarding sitting in jail), or that his defense was

impaired by the delay, this factor favors the State.




        4
          At trial, Hersick’s attorney put on no witnesses or other evidence. While the fact that no
evidence was presented in the defense’s case in chief may itself have been prejudicial to the defense,
there is no evidence that the delay resulted in the lack of evidence or that the delay caused any
prejudice resulting therefrom.

                                                       9
¶27.      Under the totality of the circumstances, and upon examination and analysis of the

Barker factors, we find Hersick’s constitutional right to a speedy trial was not violated.

          Speedy Trial -- The Statutory Claim

¶28.      Miss. Code Ann. § 99-17-1 (Rev. 2000), known as the “270 day 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.

(emphasis added).

¶29.      This Court has held “that compliance with section 99-17-1 does not necessarily mean

that a defendant’s constitutional right to a speedy trial has been respected.” Smith, 550 So. 2d

at 408.

¶30.      Hersick was arraigned on January 30, 2002. His trial commenced on October 29, 2002.

However, the total period of delay is 138 days, after tolling 49 days for the false identity

period, tolling the period of time between finding out Hersick’s true identity and being indicted

by the next grand jury, 105 days for the continuance requested by defense counsel, and 92 days

for continuance requested by the state because of the absence of Darryl Brewer, the arresting

officer. Hersick objected to the State’s request for this continuance, but the trial court granted

the Motion, finding Brewer to be a material witness, and that good cause5 existed for the

continuance.

¶31.      On October 1, 2002, following the hearing on the Motion to Dismiss, the trial court

found that Hersick’s right to a speedy trial had not been violated. A trial judge’s finding will




          5
              Brewer was in Afghanistan serving in the U.S. Army.

                                                     10
not be reversed unless manifestly wrong. Mitchell v. State, 792 So.2d 192, 213 (Miss. 2001),

Humphrey v. State, 759 So.2d 368, 375 (Miss. 2000). We are unable to say that the trial

court’s ruling was manifestly wrong. Accordingly, this issue is without merit.

        Did the trial court err in denying Hersick’s demurrer?

¶32.    Hersick contends that the indictment was flawed because it failed to specify which form

of attempted kidnaping was being charged. Hersick cites Conley v. State, 790 So. 2d 773, 796

(Miss. 2001) which discussed the statute:

        A plain reading of the statute leads to the sound conclusion that one may commit
        the crime of kidnaping either by secretly confining a victim or by confirming or
        imprisoning another against his or her will regardless of whether the
        confinement is secret.

¶33.    Miss. Code Ann. § 97-3-53 (Rev. 2000), provides for three instances of kidnaping: (1)

“Any person who shall without lawful authority forcibly seize and confine any other person,”

(2)    “inveigle or kidnap any other person with intent to cause such person to be secretly

confined or imprisoned against his or her will,” and/or (3) “forcibly seize, inveigle or kidnap

any child under the age of ten (10) years and secretly confine such child against the will of the

parents or guardians or person having lawful custody of such child.”

¶34.    Hersick contends that, although the indictment accused him of attempted kidnaping, it

failed to specify which kind of kidnaping he was attempting.            Therefore, Hersick argues, the

indictment failed to place him on notice of what crime against which he was to defend.

Furthermore, he alleges that the indictment failed to allege that he intended to confine the

victim, as required by statute.

¶35.    The indictment specifically stated:



                                                   11
        Larry Vincent Hersick in George County, Mississippi, on or about February 25,
        2001, did wilfully, unlawfully and feloniously design and endeavor to commit
        the offense of attempted kidnaping, a felony denounced by Sections 97-1-7 and
        97-3-53, Miss. Code of 1972 (as amended), in that he did intend to kidnap the
        victim; and did an overt act toward the commission thereof, to-wit: by grabbing
        the victim by the arm and pulling her approximately ten (10) feet from a
        sidewalk into the Wal-Mart parking lot; but he failed therein in that was able to
        jerk herself from the grasp and run to her mother, contrary to the form of the
        statute in such cases made and provided, and against the peace and dignity of the
        State of Mississippi.

¶36.    The indictment gave details of the alleged attempted kidnaping, including details of how

the attempt failed. The trial court stated:

        I think the indictment is proper because it goes beyond just simply saying there
        was an intent to kidnap the victim. It describes those acts in clear and concise
        language as required by the rules, wherein it states that a victim was grabbed by
        the arm and pulled approximately 10 feet from the sidewalk into the parking lot,
        but that the kidnaping failed because she was able to jerk herself loose and run
        away. So I think that that satisfies the requirement that the essential elements
        of the crime be stayed, and clearly the State is proceeding under the forcibly
        seizing and confine portion of the statute, and I think that’s evident readily
        apparent from the reading of the indictment, so I will deny the demurrer.

¶37.    We find the indictment is not fatally flawed because it charged Hersick under two

statutes.   Nor is it fatally flawed because it failed to state which kind of kidnaping Hersick

intended to commit.      Hersick was on sufficient notice of the charge against him.   Rule 7.06

of the Uniform Circuit and County Court Rules states that an indictment "shall be a plain,

concise and definite written statement of the essential facts constituting the offense charged

and shall fully notify the defendant of the nature and cause of the accusation. Formal and

technical words are not necessary in an indictment, if the offense can be substantially

described without them." The indictment against Hersick states the essential facts, and fully




                                                12
notified him of the nature and cause of the accusation.            We therefore find that this issue is

without merit.

        Did the trial court err in denying Hersick’s Motion in Limine?

¶38.    Hersick contends that the trial court’s denial of his motion in limine resulted in the jury

hearing his misleading and ambiguous statement to the Lucedale Police Department at the time

of his booking.

¶39.    The record reflects that, during the booking process, Hersick allegedly said, “I want to

know what happens to little girl snatchers in this town.”            Hersick filed a motion in limine

regarding this statement, arguing that if presented to the jury it would have a prejudicial effect

beyond any probative value, thus violating M.R.E. 401, 402 and 403.

¶40.    In denying the motion in limine, the trial court stated:

        All right, I’m going to deny this part of the Motion in Limine. The Court will
        find that these statements were spontaneous, not in response to questioning, and
        therefore they were initiated by the defendant, and would not be subject to the
        Miranda ruling. Further, the statements would appear to be relevant insofar as
        they may be considered as an admission, and that the relevant probative value
        would outweigh any prejudicial effect. So I’ll deny the motion.

¶41.    Hersick argues that his statement was ambiguous, at best, was not an admission, and was

only made after he was informed he was being charged with kidnaping.              Hersick further claims

that the statement was not relevant; and therefore, the trial court abused its discretion and

committed reversible error.       The State contends that the statement meets the M.R.E. 401

standard.

        When reviewing motions in limine, “this Court applies the following standard:
        [A] motion in limine ‘should be granted only when the trial court finds two
        factors are present: (1) the material or evidence in question will be inadmissible
        at a trial under the rules of evidence; and (2) the mere offer, reference, or


                                                     13
        statements made during trial concerning the material will tend to prejudice the
        jury.’”

McGilberry v. State, 797 So. 2d 940, 942 (Miss. 2001) (quoting Whittley v. City of Meridian,

530 So. 2d 1341, 1344 (Miss. 1988)).

¶42.    Hersick’s statement was admissible as a voluntary, spontaneous statement.     We cannot

say the trial court abused its discretion in finding the probative value outweighed the potential

prejudice. Thus, this issue is without merit.

        Was Hersick’s conviction obtained against the overwhelming weight of the

evidence?

¶43.    Hersick made a motion for a directed verdict and submitted a peremptory instruction.

Post-trial, Hersick moved for a new trial or a J.N.O.V.      The motions were denied, and the

instruction was refused.

¶44.    The standard in reviewing the denial of a motion for a new trial is that, viewing all the

evidence which supports the verdict as true, reversal is proper only when we find the trial court

has abused its discretion in failing to grant a new trial. Thornhill v. State, 561 So. 2d 1025

(Miss. 1989).

¶45.    Accepting as true all the evidence in this case which supports the conviction, we are

unable to say that the conviction was against the overwhelming weight of evidence. This claim

is therefore without merit.

        Did the trial court impose the maximum sentence on Hersick because
        he chose to exercise his right to a jury trial?

¶46.    Prior to the trial, Hersick was offered a plea bargain by the State. In exchange for his

guilty plea, the State offered to recommend to the trial court a sentence of ten years, with five


                                                14
years suspended. Hersick exercised his right to a jury trial and, upon his conviction, the State

recommended the maximum sentence of 10 years.

¶47.    Hersick requested the court sentence him to the ten years, with five suspended, the

sentence the State was going to recommend if he had pled guilty.             Hersick contends that the

trial court erred by imposing a heavier sentence than was offered to him pretrial, and that this

heaver sentence was a direct result of his exercise of his constitutional right to a trial by jury.

¶48.    The State responded that Hersick was not being punished for going to trial, but rather

was offered an opportunity to help himself by pleading guilty and accepting responsibility.

¶49.    “This Court has repeatedly held that the imposition of a sentence, if it is within the

limits prescribed by statute, is a matter left to the sound discretion of the trial court, and that

the appellate courts will not ordinarily disturb a sentence so imposed.” King v. State, 857 So.

2d 702, 731 (Miss. 2003). Whether the defendant takes responsibility for his or her actions

is a fair consideration for the trial court in sentencing.       We find nothing in the record that

demonstrates the trial court imposed the maximum sentence to punish Hersick for exercising

his right to a jury trial. Thus, this claim is without merit.

        II. Issues presented pro se.

¶50.    Hersick, pro se, raises numerous issues in his supplemental brief to this Court. The

State did not file a response Hersick’s pro se brief.

        1.       Whether the trial court erred in not allowing testimony from various
                 witnesses.

        A. The victim’s mother.




                                                        15
¶51.       Hersick contends that the failure of the mother of the victim to testify violated his due

process rights by denying him his Fifth Amendment right to confront a material witness at trial.

Hersick contends that the children had to accuse him of attempted kidnaping to their mother

before the police were called.        He asserts that the State never proved the child made this

accusation to her mother, because the mother never testified.

           B. The Lucedale Chief of Police.

¶52.       Hersick questioned Officer Brewer outside the presence of the jury, regarding who

arrested him at Wal-Mart and took him to jail. Brewer testified that he and the Chief of Police

Glen Veil arrested Hersick following the incident. Hersick questioned Brewer as to why Veil

was not there to testify.      The State objected to the line of questioning as irrelevant, claiming

Hersick’s attorney could have subpoenaed Veil to testify.

           C. The security guard at Wal-Mart.

¶53.       Hersick contends that the trial court erred by not allowing the Wal-Mart employee to

testify.    He states that the Wal-Mart employee was in the front entrance watching him and

could have offered proof of his innocence.                Hersick contends that the employee gave a

statement to Police and the failure of the employee to testify violates his Fifth Amendment

rights, in that the prosecution suppressed evidence favorable to the accused.

¶54.       Hersick labels these issues as whether the trial court erred by not allowing these

witnesses to testify.        However, the record does not indicate that the witnesses were

subpoenaed by the State or by the defense to testify. We find nothing to indicate that the trial

court refused to allow the witnesses to testify. Therefore, this issue is without merit.




                                                     16
       2.         Did the trial court err in not admitting Hersick’s backpack as
                  evidence and allowing a brown paper bag to be exhibited in place of
                  Hersick’s backpack?

¶55.   Hersick contends that it was error not to allow his 60 pound backpack into evidence at

trial to be used as exculpatory evidence. He contends that it would have demonstrated that he

could not have kidnaped someone with it on his back.

¶56.   Hersick cites Berger v. United States., 295 U.S. 78, 88, 55 S.C. 629, 79 L.Ed. 1314

(1935), for the proposition that the prosecution must disclose favorable evidence.       In Berger,

the Court held that a prosecutor

       may prosecute with earnestness and vigor-- indeed, he should do so. But, while
       he may strike hard blows, he is not at liberty to strike foul ones. It is as much his
       duty to refrain from improper methods calculated to produce a wrongful
       conviction as it is to use every legitimate means to bring about a just one.

295 U.S. at 88.

¶57.   Here, it was demonstrated on the first day of trial that the items in the police custody

were lost. Therefore, the duffle bag’s contents, which had been listed on an inventory, were

admitted into evidence. However, on the second day of trial, it was stated that the items that

were in the duffle bag were found. By that time, the trial court ruled that they could not be

admitted into evidence because the State, prior to trial, informed Hersick’s counsel that there

was not going to be any physical evidence at trial. This did not constitute “improper methods”

to produce “a wrongful conviction”.

¶58.   Hersick, nevertheless, contends that his backpack was exculpatory before it was lost or

destroyed by the Lucedale          police and, therefore, did not aid in his defense.   Hersick cites

Jackson v. State, 766 So. 2d 795, 801 (Miss. Ct. App. 2000) and Trollinger v. State, 748 So.



                                                   17
2d 167, 171 (Miss. Ct. App. 1999), in support of his argument that it is the State’s duty to

preserve evidence that is expected to play a significant role in the defense.

¶59.    In order to play a significant role, "the exculpatory nature and value of the evidence must

have been (1) apparent before the evidence was destroyed and (2) of such a nature that the

defendant could not obtain comparable evidence by other reasonable means."                 Jackson, 766

So. 2d at 801.           “This constitutional materiality standard is not satisfied by the ‘mere

possibility’ that the evidence will help the defense.” Id.

¶60.    Hersick contends that his 60-pound backpack was indeed exculpatory and that it was

apparent before the backpack was lost, that it was exculpatory.                 Hersick does not address

whether comparable evidence could have be procured in this case, such as a comparable 60-

pound backpack, which could have been procured and used for the demonstration.

Furthermore, there was no evidence that Hersick had his backpack on his back at the time of

the attempted kidnaping.

¶61.    Hersick contends that the trial court erred by allowing Lambert to exhibit a brown paper

grocery bag instead of his 60-pound backpack.             However, we find that the record does not

reflect that a brown paper grocery bag was exhibited instead of his backpack (or duffle bag).

Therefore, this issue is without merit.

        3.       Did the trial court err in allowing the victim and her brother to testify?

¶62.    Hersick contends that, since under the law of Mississippi, a child under the age of

thirteen cannot be charged with a felony, the children6 should not have been allowed the




        6
         At the time of their testimony, the victim was thirteen years old, and her brother was ten.

                                                     18
authority to enforce the law against him, without the mother’s confirmation of the accusations.

Hersick further contends that the trial judge should have examined the children to find out if

they knew the difference between right and wrong, because they are too young and

inexperienced to understand the responsibility of their actions.

¶63.    Hersick cites Mohr v. State, 584 So. 2d 426 (Miss. 1991), in which this Court held:

        Mississippi courts generally allow children of tender years to testify if
        competent. Rule 601 of the Mississippi Rules of Evidence provides that every
        person is competent to be a witness unless they are incompetent or otherwise
        restricted. It is in the sound discretion of the trial judge to determine the
        competency of a child witness. Before allowing the child to testify, the judge
        should determine ‘that the child has the ability to perceive and remember events,
        to understand and answer questions intelligently and to comprehend and accept
        the importance of truthfulness.

Id. at 431 (citations omitted).

¶64.    In Mohr, this Court did state that a judge should determine whether a child “has the

ability to perceive and remember events, to understand and answer questions intelligently and

to comprehend and accept the importance of truthfulness.” Id.        There is nothing in the record

here to indicate that the trial judge made any such determination. However, the Mohr Court

stated that the judge should, not must.         Therefore, pursuant to Rule 601 of the Mississippi

Rules of Evidence, it is presumed that the children were competent witnesses, absent some

indication that they were not.

¶65.    After studying the children’s testimony, it is clear that they were competent witnesses.

Their testimony was consistent, in that they did not contradict themselves or each other. They

were intelligent, had the ability to understand and answer questions, and could remember the




                                                    19
date in question and the events that took place. There is no indication that they were coerced

or provoked into accusing Hersick. Thus, this issue is without merit.

        4.        Did the trial court err in permitting a police officer to read a record of
                  charges at Hersick’s sentencing?

¶66.    Hersick contends that the trial court erred by allowing Lambert to read a record of

unproven charges at his sentencing.      Hersick contends that these charges were a result of his

indigency. He claims he was without money to contest them.

¶67.    Hersick further alleges that his counsel was ineffective for failing to object to the

reading of his record.    Hersick contends that prior charges not resulting in a conviction were

not admissible.

¶68.    Lambert testified to Hersick’s criminal history as follows:

        MR. MILLER: Mr. Lambert, if you would, please advise the Court of what the
        criminal history of this defendant is, and what you were able to find out in your
        investigation.

        MR. LAMBERT: It took me seven weeks, Your Honor, to find out who this
        gentleman actually was. I’ve got 11 different state ID numbers for him, from 11
        different states where he had been convicted.

        MR. HERSICK: The United States is terrorizing me.

        MR. LAMBERT: He already has three convictions in California for sexual
        assaults, one child molestation that was reduced to a misdemeanor in regard to
        him leaving that county.

        THE COURT: Does he have any felony convictions?

        MR. LAMBERT: He was charged with felony child molestation, and the county
        in California reduced it to a misdemeanor on the grounds that he left that county.

        THE COURT: But he doesn’t have any felony convictions anywhere that you
        know of?



                                                   20
        MR. LAMBERT: Sir?

        THE COURT: He does not have any felony convictions anywhere that you know
        of?

        MR. LAMBERT: No, Sir.

        THE COURT: But he has some misdemeanor convictions in California.           Where
        else?

        MR. LAMBERT: California, Utah. Would it be all right to look at the file?

        THE COURT: Sure.

        THE WITNESS: Oregon. These are the states: Oregon, California, Idaho,
        Nevada, Colorado, Utah, Arizona, Georgia. And like I say, one is in California.
        Every one of these there’s no conviction of a felony. They was charged as
        felonies but somehow reduced as misdemeanors.

        THE COURT: What were the charges? What did he actually get convicted of?

        MR. LAMBERT: Sexual battery twice in California, assault and battery, assault
        of a law enforcement officer in California, attempted burglary and sexual assault
        in California, and also assaulting an officer again.

        THE COURT: And all of those were reduced to misdemeanors?

        MR. LAMBERT: Yes, sir.

We find no error in this discussion of Hersick’s criminal history at sentencing.

        5.      Was defense counsel ineffective because he did not subpoena the victim’s
                 mother?

¶69.    Hersick contends that his counsel was ineffective for failing to subpoena the mother

or the father to testify at trial.     He claims that the child’s mother should have testified to

establish that the child “ran to her mother” as alleged in the indictment. Furthermore, Hersick

argues that the mother must have been a witness. Hersick cites State v. Fristoe, 658 P.2d 825




                                                    21
(Ariz. Ct. App. 1982), in support of his argument that the mother’s testimony was needed to

establish that the child immediately ran to the mother and accused him.

¶70.    In Fristoe, one mother “testified that, at the time the girls came running into the house,

both expressed that the man had offered them money to kiss between their legs. [The other]

mother also testified that [her daughter] had been able to tell her what the man had said at the

time the incident had occurred.” 658 P.2d at 827.              However, Fristoe did not hold that the

mother had to testify in order for the evidence to be sufficient to find the accused guilty.

Therefore, Hersick’s reliance on this case is misplaced.

¶71.    Hersick further contends that his counsel failed to investigate his version of the facts.

He cites Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) in

support of his argument.

¶72.    Hersick must meet a two-part test which is set forth in Strickland and followed by this

Court in Stringer v. State, 454 So. 2d 468, 478 (Miss. 1984).                    Hersick must show that

counsel’s performance was so deficient that it prejudiced his defense.             Strickland, 466 U.S.

at 687. He must also show that but for his attorney’s errors, there is a reasonable probability

that he would have received a different result in the trial court. Id. at 694.

¶73.    Hersick cites State v. Tokman, 564 So. 2d 1339 (Miss. 1990), in support of his

argument that it was his counsel’s duty to interview potential witnesses and make an

independent investigation of the facts and circumstances of the case.             Tokman was a capital

murder in which this Court held: “It is critical that mitigating evidence be presented at capital

sentencing proceedings” Id. at 1342. The Tokman Court further stated: “While it is true that



                                                     22
courts are deferential to lawyers' judgments in such matters, there are limits. It has been held

that at a minimum, counsel has a duty to interview potential witnesses and to make independent

investigation of the facts and circumstances of the case.” Id. (citations omitted).

¶74.    This Court has clearly held that “[c]omplaints concerning counsel’s failure to file

certain motions, call certain witnesses, ask certain questions, and make certain objections fall

within the ambit of trial strategy.” Cole v. State, 666 So. 2d 767, 777 (Miss. 1995).

¶75.    Hersick contends that his counsel did not have a strategy to look for witnesses and that

the indictment proves it because he failed to subpoena the mother.                Hersick proceeds, within

his pro se brief, to petition this Court for post-conviction relief alleging that the testimony of

the mother is new evidence of material fact, not previously presented or heard before, and that

his counsel’s failure to subpoena the mother violated his right to confront a witness at trial.

¶76.    We find that Hersick fails to demonstrate a lack of investigation, fails to show how the

testimony of the mother could have helped him, or how he was prejudiced. Therefore, we find

Hersick did not meet the Strickland test, and this issue is without merit.

        6.       Did the trial court err in allowing the jury to be removed from
                 courtroom during Hersick’s questioning of officer Darryl Brewer?

¶77.    Hersick contends that his counsel erred by not objecting to the jury being removed from

the courtroom while he examined Officer Darryl Brewer.               Hersick cites Jones v. State, 381

So. 2d 983 (Miss. 1980), and Gray v. State, 351 So. 2d 1342 (Miss. 1977), in support of his

argument that he has a constitutional right to argue his case before the jury and he was deprived

of his right to have the jury hear Brewer’s testimony during his cross-examination.

¶78.    In Gray, this Court held:


                                                     23
        During the argument at the guilt stage of his trial defendant requested
        permission to ‘make a statement to the jury.’ In effect, defendant was requesting
        the right to argue his own case and his request was erroneously denied.
        Mississippi Constitution Article 3, section 26 (1890) provides in part: In all
        criminal prosecutions the accused shall have a right to be heard by himself or
        counsel, or both, . . . The refusal to permit defendant to argue his case is in
        direct violation of the above constitutional provision and requires reversal.

Id. at 1345.

¶79.    Hersick’s reliance is misplaced. In Jones, this Court held:

        The practical solution to the dilemma presented by the accused who uses his
        constitutional right to argue his case to the jury to give, what is for all practical
        purposes, testimony is to treat the unsworn testimonial statements of the
        accused which were not supported by the record as a partial waiver of the
        privilege against self-incrimination. It is not a total waiver of the privilege, since
        the prosecution is unable to cross-examine the accused at this late stage of the
        trial. But the prosecution may comment to the jury that the defendant's
        statements were not given under oath and that he was not subject to cross-
        examination about them. The constitutional privilege of the criminal defendant
        appearing pro se is adequately protected if the court gives him a clear and direct
        warning out of the presence of the jury prior to beginning his argument that such
        limited comment might follow if he goes outside the record and gives what
        amounts to unsworn testimony.

Jones, 381 So. 2d at 994. In the case sub judice, Hersick was not making an argument to the

jury.   He wanted to cross-examine Brewer himself because his attorney did not ask him the

questions Hersick wanted him to ask. Hersick was represented by counsel and was not a pro

se defendant.

¶80.    Upon review of the testimony of Brewer, we find no error or prejudice to Hersick. The

testimony consisted of hearsay and was irrelevant. Therefore, this issue is without merit.

        7.      Did the trial court err in allowing Hersick to make a decision about
                a plea bargain without the presence of his attorney?




                                                   24
¶81.    Hersick contends that the trial court violated his Sixth Amendment rights when he was

not represented by counsel when offered the plea bargain on March 30, 2002.         He contends

that he was brought into court without his attorney and was offered his freedom if he pled

guilty to attempted kidnapping.      However, the record fails to show any such court appearance.

This issue is without merit.

        8.       Did the trial court err in allowing Judge Backstrom to participate in
                 Hersick’s plea bargain?

¶82.    Hersick next contends that on March 30, 2002, without his counsel present, the trial

judge asked him how he pled. Hersick contends that, because he did not have counsel present,

this amounted to the judge taking part in the plea bargain. Hersick cites Fermo v. State 370

So. 2d 930, 932-33 (Miss. 1979), in support of his argument that a judge is never to participate

or get involved in a plea bargain.

¶83.    In Fermo we stated,

        While a trial judge must control the sentencing phase of a criminal trial and has
        the responsibility and duty of approving or disapproving a recommendation by
        the prosecutor, he should never become involved, or participate, in the plea
        bargaining process. He must remain aloof from such negotiations. The trial
        judge always must be circumspect and unbiased, at all times displaying neutrality
        and fairness in the trial, and consideration for the constitutional rights of the
        accused.

Id. at 933.

¶84.    There is nothing in the record reflecting the alleged March 30, 2002, appearance in

court. Even if there was an appearance, the mere question by the Judge of how Hersick was

going to plead does not constitute involvement or participation in the plea bargain process.

Accordingly, this issue has no merit.



                                                  25
                                         CONCLUSION

¶85.   For the reasons stated, we find that all assignments of error are without merit.

Therefore, we affirm the judgment of the George County Circuit Court.

¶86. CONVICTION OF ATTEMPTED KIDNAPING AND SENTENCE OF TEN (10)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
AFFIRMED.
     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
RANDOLPH, JJ., CONCUR. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.




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