                           IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2002-KA-01170-SCT

BRIAN ANTHONY YOUNG

v.

STATE OF MISSISSIPPI

                                 ON MOTION FOR REHEARING

DATE OF JUDGMENT:                                    04/12/2002
TRIAL JUDGE:                                         HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED:                           JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                              GEORGE S. SHADDOCK
ATTORNEY FOR APPELLEE:                               OFFICE OF THE ATTORNEY GENERAL
                                                     BY: W. GLENN WATTS
DISTRICT ATTORNEY:                                   KEITH MILLER
NATURE OF THE CASE:                                  CRIMINAL - FELONY
DISPOSITION:                                         AFFIRMED - 01/20/2005
MOTION FOR REHEARING FILED:                          06/08/2004
MANDATE ISSUED:


        EN BANC.

        COBB, PRESIDING JUSTICE, FOR THE COURT:

¶1.     The motion for rehearing is denied. The original opinion is withdrawn, and this opinion

is substituted therefor.

¶2.     In this direct appeal from the Jackson County Circuit Court, we consider whether the

trial court erred in finding Brian Anthony Young guilty of murder and sentencing him to life

in prison. Finding no reversible error, we affirm.

                                                 FACTS
¶3.     Michael Coleman and his wife, Lelie Coleman, were living at the Budget Inn in

Pascagoula, Mississippi.     According to the testimony of hotel manager Leroy Hyatt, Lelie

returned to the Budget Inn at approximately 5:00 a.m. on July 1, 2000.                Shortly thereafter,

around 7:00 a.m., Hyatt saw Michael leave the hotel room he shared with his wife and begin

walking to his job at West Building Supplies.           Hyatt further testified that, at approximately

7:15 a.m., he saw Brian Anthony Young arrive at the motel in a brown Cadillac, park in the rear

of the motel, and go upstairs to Coleman’s room.            Approximately one-half hour later, Hyatt

saw Young leave in a hurry. When Michael returned to the Budget Inn around 11:30 a.m., he

found his wife dead.     Testimony at trial established that Young had been involved in an affair

with Lelie Coleman.

¶4.     Young was arrested on July 5, 2000, and charged with Lelie’s murder.                He was not

indicted until one year later, and his trial commenced on April 2, 2002.          At the conclusion of

the four-day trial, the jury found Young guilty of murder, and he was sentenced to life

imprisonment.     Young raises six issues on appeal, including:         denial of speedy trial, police

officer’s improper opinion testimony that Young murdered Lelie, challenges to three jury

instructions, and the jury’s verdict was against the overwhelming weight of the evidence.

                                              ANALYSIS

        I.      Speedy Trial.

¶5.     Young argues that the trial court erred in denying his motion to dismiss the charge

against him due to denial of his right to a speedy trial, where the one-year delay between his

arrest and his indictment was both presumptively and actually prejudicial.          A defendant’s right

to a speedy trial is guaranteed by the sixth and fourteenth amendments to the United States


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Constitution and under Article 3, Section 26 of the Mississippi Constitution of 1890.           The

United States Supreme Court, in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d

101 (1972) established the following factors to be considered in determining if the right to

a speedy trial has been violated:         (1) length of delay, (2) reason for the delay, (3) the

defendant’s assertion of his right, and (4) prejudice to the defendant.           When this Court

addressed the question of what length of time must elapse before prejudice will be presumed,

in Smith v. State, 550 So.2d 406, 408 (Miss. 1988), we determined that while there are some

exceptions to the rule, it may generally be said that any delay of more than eight months is

presumptively prejudicial.     Id.   However, the delay factor alone is not sufficient for reversal,

but it requires a close examination of the remaining Barker factors. DeLoach v. State, 722

So.2d 512, 517 (Miss. 1998).           The Court will uphold the trial court's decision based on

substantial, credible evidence of a finding of good cause. Folk v. State, 576 So.2d 1243, 1247

(Miss. 1991).

¶6.    Young was arrested on July 5, 2000. Charged with capital murder, he remained in jail,

without bail. No mention is made in the record or the briefs that he made any attempt to obtain

release, or to request a speedy trial during that time.     In June 2001Young filed a motion for

bail, a petition for writ of habeas corpus and a motion to dismiss the charge for denial of his

right to a speedy trial.     On or about July 1, 2001, at the hearing on these motions, the State

announced Young’s indictment.        Young's motions were then deferred by his attorney, pending

a review of the indictment. Young did not pursue these motions to a ruling by the trial court.

Instead, defense counsel asked the trial court for a recess so that the State could file the

indictment. Young's indictment was filed on July 6, 2001.

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¶7.     On July 24, 2001, Young filed a motion for discovery and demand for a speedy trial,

followed by an amended motion to dismiss the charge.         It is unclear from the record whether

a hearing was held on these motions, but, on August 19, 2001, the trial judge set bond upon the

reduced charge of murder and, according to Young's brief, denied the motion to dismiss.1

However, the trial court failed to enter an order on the original motion to dismiss or the

amended motion to dismiss the charge.            Young's trial commenced on April 2, 2002, nine

months after his indictment.

¶8.     Young now asserts that he was denied his constitutional and statutory right to a speedy

trial and was presumptively and actually prejudiced by the 366 days that he was incarcerated

following his arrest.

¶9.     The State argues that this issue is not properly before the Court because Young failed

to pursue his motion to dismiss for denial of a speedy trial, to a ruling by the trial court. The

State also argues that there was no oppressive pretrial detention because Young was released

on bond on August 19, 2001. Finally, the State argues that Young asked for, and was given two

continuances prior to trial, one on August 10, 2001, and another on January 28, 2002.

¶10.    As to the last two of the State's arguments on the speedy trial issue, those arguments

apply only to the post-indictment period prior to Young's trial. We agree that because Young

was released on bond shortly after his indictment there was no oppressive pretrial detention

after Young was indicted.          Further, at least part of the delay to trial, following Young's

indictment, is attributable to the two continuances granted at Young's request.         We find no




        1
            Young remained out on bond through his trial.

                                                     4
merit to Young's denial of a speedy trial claim as to the period of time following his

indictment.

        A.     Length of delay

¶11.    The 366 days that elapsed between Young's arrest and his indictment is subject to

analysis of the denial of his fundamental constitutional right to a speedy trial.     Under Barker

v. Wingo, until there is some delay which is presumptively prejudicial, there is no necessity

for inquiry into the other factors that go into the balance.          Nevertheless, because of the

imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry

is necessarily dependant upon the peculiar circumstances of the case. 407 U.S. at 530-31.

        B.     Reason for the delay

¶12.    The record is devoid of anything relevant to this Court's review of Young's

constitutional speedy trial claim, other than his motion for continuance filed in October 200l,

and an unrelated order of continuance, entered at his attorney’s request in January 2002,

rescheduling the trial for April, 2002.   Young did not pursue his demand for speedy trial, nor

his motion to dismiss, to a ruling by the trial court. Because Young failed to raise this issue

in his motion for a new trial, there is no trial court order to review, no findings on the record,

and no response from the State as to the pre-indictment delay.

        C.     Assertion of the Right

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

evidentiary weight in determining whether the defendant is being deprived of the right.       The

U.S. Supreme Court emphasized that failure to assert the right will make it difficult for a

defendant to prove denial of a speedy trial. Barker, 407 U.S. at 531-32. There is nothing in

                                                   5
the record or in his brief to indicate that Young made any effort to request an attorney, seek

bail or demand a speedy trial prior to June 2001. This Court, in State v. Woodall, 801 So.2d

678, 684 (Miss. 2001), determined that a defendant’s failure to demand a speedy trial between

his arrest and indictment was critical to the analysis of a speedy trial issue.           This Court has

stressed the importance of a defendant’s request for a speedy trial. Perry v. State, 419 So.2d

194, 199 (Miss. 1982). We have repeatedly held that a defendant’s failure to assert his right

to a speedy trial must be weighed against him. Watts v. State, 733 So.2d 214, 236 (Miss.

1999).

         D.     Prejudice to the Defendant

¶14.     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 to trial:    (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.        Of these three interests, the last is the most

important, and when violated, the most prejudicial to the defendant. Barker, 407 U.S. at 532.

There is nothing to indicate that the State delayed bringing Young to trial for any prejudicial

or improper reason. Likewise, there is nothing in the record to indicate any prejudice to Young

by the delay. Young’s motion for discovery and demand for a speedy trial, filed July 24, 2001,

consists of only one sentence stating simply that he demands that the State afford him a speedy

trial as mandated by constitution and statute.        His second motion2 to dismiss indictment, filed


         2
          Neither the trial court’s docket nor the record excerpts contain any mention of a first motion for
dismissal, although Young’s second motion references a motion for reasonable bail filed June 7, 2001, a

                                                     6
August 13, 2001, contains only the conclusory statement that Young “has be[sic] greatly

prejudiced by his continued confinement.”          In his motion, Young recites the four Barker

factors, but fails to mention any specific fact or detail which links to those factors to his case,

other than that it had been “some 400 days since arrest.”            Interestingly, he also states that

“[p]rior to indictment, it is doubtful if the Court would entertain a Motion to Dismiss for

failure to speedy indict in a Capital case until sufficient time had expired, and only then, if

‘extraordinary circumstances’ exist.”    Our law is clear that an appellant must present to us a

record sufficient to show the occurrence of the error he asserts and also that the matter was

properly presented to the trial court and timely preserved. Lambert v. State, 574 So.2d 573,

577 (Miss. 1990) (citing Moawad v. State, 531 So.2d 632, 635 (Miss. 1988) and Williams

v. State, 522 So.2d 201, 209 (Miss. 1988)). This issue is without merit.

        II.     Motion for mistrial.

¶15.    Young argues that the trial court should have granted his motion for a mistrial after

detective Sheila Jenkins of the Pascagoula Police Department had testified in some detail

about her investigation of several suspects, and then said “[s]o it wasn’t until we made a

determination of who the actual person or the perpetrator was - -.” Young’s attorney objected

at that point, saying that the testimony invaded the province of the jury. The judge overruled

the objection, and the prosecutor rephrased the question.          Again there was an objection, to

which the judge said “[o]verruled as to who should be charged”, and said to the witness: “[y]ou

made the determination, did you not?” The detective then stated: “I filed charges against Brian




petition for writ of habeas corpus filed on June 19, 2001, and a motion to dismiss filed on June 21, 2001.

                                                    7
Young on July 1, 2000, for the murder of Lelie Coleman.” Asking to be heard in chambers,

Young’s attorney argued that Jenkins' testimony amounted to an improper opinion as to

Young's guilt, and that a mistrial should be declared. Observing that “[i]n every case, the police

officer makes a determination as to who to charge,” the judge heard further argument that the

statement was bolstering the officer “as some kind of expert” and there was a prejudicial

inference that the jury should convict Young. The judge denied the motion for mistrial. This

Court has held that the determination of a motion for mistrial rests solely in the discretion of

the trial judge.

        The trial court must declare a mistrial when there is an error in the proceedings
        resulting in substantial and irreparable prejudice to the defendant's case. Miss.
        Unif. Crim. R. Cir. Ct. Prac. 5.15. The trial judge is permitted considerable
        discretion in determining whether a mistrial is warranted since the judge is best
        positioned for measuring the prejudicial effect. Roundtree v. State, 568 So.2d
        1173, 1178 (Miss. 1990).

Gossett v. State, 660 So.2d 1285, 1291 (Miss. 1995). After a thorough review of the record,

we find no abuse of discretion.

        III.       Jury instructions.

¶16.    Young complains of three jury instructions given by the trial court:              S-1a, instructing

the jury on depraved heart murder; S-6a, instructing the jury of the meaning of deliberate

design; and, S-4, instructing the jury on finding the defendant guilty of a lesser crime than

murder. This Court has held the standard of review for jury instructions is as follows:

        [T]he instructions are to be read together as a whole, with no one instruction to
        be read alone or taken out of context. A defendant is entitled to have jury
        instructions given which present his theory of the case. However, the trial judge
        may also properly refuse the instructions if he finds them to incorrectly state
        the law or to repeat a theory fairly covered in another instruction or to be
        without proper foundation in the evidence of the case.


                                                    8
Howell v. State, 860 So.2d 704, 761 (Miss. 2003) (quoting Thomas v. State, 818 So.2d 335,

349 (Miss. 2002) and Humphrey v. State, 759 So.2d 368, 380 (Miss. 2000)).

¶17.   Regarding instruction S-1a, Young argues that the trial court erred when it allowed a

“depraved heart murder” clause to be added to the deliberate design instruction. Because the

indictment was for deliberate design, Young claimed that this was akin to amending the

indictment and specifically objected to it because they were not informed of it by the

indictment. In Mallett v. State, 606 So.2d 1092, 1095 (Miss. 1992), this Court approved just

such an instruction, holding that “as a matter of common sense, every murder committed with

deliberate design is by definition done in the commission of an act imminently dangerous to

others, evincing a depraved heart.”     This conclusion was based on the fact that “[t]hese two

versions of murder are taken straight from the statute, Miss. Code Ann. § 97-3-19 (Supp.

1987)” and “[o]ur cases have for all practical purposes coalesced the two so that Section 97-3-

19(1)(b) subsumes (1)(a).” Id. There is no error here.

¶18.   With regard to instruction S-6(a), a definitional instruction on deliberate design, Young

now objects, asserting that since deliberate design was a part of S-1a, then use of S-6a served

only to emphasize the issue and promote a second theory of murder.          Young’s objection at

trial, however, was a general objection.      It has long been the rule of this Court that “an

objection at trial can not be enlarged in a reviewing court to embrace an omission not

complained of at trial.” Brown v. State, 682 So.2d 340, 350 (Miss. 1989).          This issue is

procedurally barred. Notwithstanding that bar, it also is without merit. Young asserts that S-6a

gives undue prominence to the deliberate design theory, is confusing and misleading, and in

summary, it is error to present a smorgasbord of conviction options against an accused.     We

                                                  9
do not agree with his assertion. S-6a consists of one paragraph stating the meaning as “intent

to kill, without authority of law, and not being legally justified or legally excusable” and further

stating that it need not exist in the mind for any definite time, and if “it exists . . . but for an

instant before the fatal act, this is sufficient deliberate design to constitute the offense of

murder.” We find no error in this instruction.

¶19.    Instruction S-4 provided that the jury “may find the Defendant guilty of a lesser crime

than Murder” and plainly stated that “[t]his provision is not designed to relieve you from the

performance of an unpleasant duty.        It is included to prevent a failure of justice if evidence

fails to prove the original charge but does justify a verdict for the lesser crime.”       The trial

judge found that this instruction was needed because a lesser-included instruction for

manslaughter was given to the jury.       Young argues that it was improper because there was no

proof of manslaughter. He objected on that specific ground at trial. There was testimony from

two witnesses that Young was having an affair with the victim, was “in love” with her, and

“obsessed” with having her only for himself, which provides the evidentiary basis necessary

here.

¶20.    After reviewing the record, we conclude that the trial court did not err in giving the

complained of instructions where the record shows that the trial court carefully considered the

objections to those instructions and determined that the instructions were appropriate.

Reading the instructions together as a whole, we conclude that this issue has no merit.

        IV.     Weight of the evidence.

¶21.    This Court has established a high standard of review on a claim that a jury's verdict is

against the overwhelming weight of the evidence.             That standard requires that all of the


                                                   10
evidence consistent with the defendant's guilt is accepted as true together with any reasonable

inferences that may be drawn from that evidence. Heidel v. State, 587 So.2d 835, 838 (Miss.

1991); Davis v. State, 530 So.2d 694, 703 (Miss. 1988); Fisher v. State, 481 So.2d 203, 212

(Miss. 1985). Further,

          “In determining whether a jury verdict is against the overwhelming weight of the
          evidence, this Court must accept as true the evidence which supports the verdict
          and will reverse only when convinced that the trial court abused its discretion
          in failing to grant a new trial.” Nicolaou v. State, 612 So.2d 1080, 1083 (Miss.
          1992). “Any factual disputes are properly resolved by the jury and do not
          mandate a new trial.” McNeal v. State, 617 So.2d 999, 1009 (Miss. 1993).

Moore v. State, 859 So.2d 379, 385 (Miss. 2003).

¶22.      Young argues that the proof in this case was weak and circumstantial and falls short of

being proof beyond a reasonable doubt. He asserts that there were two other men with motives

and, perhaps, opportunity to kill Lelie Coleman and that there are too many questions left

unanswered. Young argues that the testimony and evidence presented by the State was subject

to several different interpretations and that even the State's witness, Detective Sheila Jenkins,

contradicted her own analysis of the events leading up to and following the death of Lelie

Coleman.

¶23.      The State asserts that the record reflects an abundance of credible, corroborated,

eyewitness testimony in support of the verdict, including the DNA evidence on Young's

clothing, the testimony of Don Lewis that Young confessed to killing Coleman, and the

testimony of Leroy Hyatt placing Young at the motel in the time period that Coleman was

killed.




                                                11
¶24.     We agree that there is substantial evidence in the record to support the verdict. The trial

court did not abuse its discretion in denying Young's motion, and this argument is without

merit.

                                          CONCLUSION

¶25.     On the speedy trial claim, Young failed to raise this issue on his motion for a new trial,

and there is no trial court order to review, no findings on the record, and no response from the

State as to the pre-indictment delay. There is nothing to indicate that the State delayed bringing

Young to trial for any prejudicial or improper reason. Likewise, there is nothing in the record

to indicate any prejudice to Young by the delay.      Furthermore, after reviewing the record, we

find no abuse of discretion in the trial court's denial of Young's motion for mistrial, and we

conclude that the trial court did not err in giving the complained of instructions where it

appears from the record that the trial court carefully considered the objections to those

instructions and determined that the instructions were appropriate. Lastly, we find that the trial

court did not abuse its discretion in denying Young's motion for a new trial where there is

substantial evidence in the record to support the verdict. Therefore, we affirm the trial court's

judgment.

¶26. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

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




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