Dennie Moore v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-01497-COA
DENNIE MOORE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
9/8/2001
HON. MARCUS D. GORDON
LEAKE COUNTY CIRCUIT COURT
EDMUND J. PHILLIPS
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
KEN TURNER
CRIMINAL - FELONY
MANSLAUGHTER: SENTENCED TO SERVE A
TERM OF 10 YEARS IN THE CUSTODY OF THE
MDOC.
AFFIRMED - 02/18/2003
BEFORE MCMILLIN, C.J., IRVING AND MYERS, JJ.
MCMILLIN, C.J., FOR THE COURT:
¶1.
Dennie Moore was convicted of manslaughter following a jury trial in the Leake County Circuit
Court and was sentenced to serve ten years in the custody of the Mississippi Department of Corrections.
Aggrieved by his conviction, Moore appeals and raises two issues for consideration. First, he contends
that the delay between the time of his arrest and subsequent trial – which was shown to span the period
of March 1997 to September 2001 – constituted a denial of his constitutionally-protected right to a speedy
trial. Alternatively, he claims that certain inculpatory statements made by him and introduced into evidence
at trial should have been excluded and that their wrongful admission violated his Fifth Amendment right
against self-incrimination. Finding no error as to either issue, we affirm the conviction and judgment of
sentence.
I.
Facts
¶2.
In March of 1997, Danny Crossland was shot to death under circumstances that, based upon the
initial investigation by law enforcement officials, implicated Dennie Moore as the person who fired the fatal
shots. The shooting appeared to have followed a verbal altercation between Moore and Crossland.
Investigating officers arrested Moore shortly after the shooting incident; however, Moore was not formally
indicted for the crime until May 9, 2001. He was tried and convicted in a trial that commenced on
September 6, 2001.
¶3.
There is evidence in the record that the case against Moore had been presented to several grand
juries in the period from 1997 until mid-2001, but that the grand juries had declined to return a true bill
because of the State’s inability to produce several purported eyewitnesses to the crime; namely, Tom
Wiggington, Carnice Moore, and Jerry Pike. There was also testimony in the record that, after a new
Sheriff of Leake County assumed office in January 2000, a different investigator was assigned the
Crossland homicide case. This investigator was informed approximately a year later by Crossland’s sister
that an individual named Chris Smith and his mother, Martha Ogletree, were also eyewitnesses to the
shooting and that Chris Smith was, at the time, confined in the Scott County jail. Acting on this information,
the investigating officer interviewed these purported eyewitnesses to assess the worth of their evidence.
The ultimate outcome was that the case was once again presented to a grand jury in May 2001. Smith and
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Ogletree both testified before that grand jury. Based on that presentation, the grand jury returned an
indictment charging Moore with murder.
¶4.
In August of 2001, Moore moved to quash the indictment against him on the basis that his
constitutional right to a speedy trial had been violated. The trial court denied the motion after a hearing
conducted on August 30, 2001. The trial on the merits commenced on September 6, 2001, and at its
conclusion, the jury found Moore guilty of the lesser offense of manslaughter.
II.
Speedy Trial Claim
¶5.
The Mississippi Supreme Court has stated that speedy trial claims necessarily entail questions of
fact regarding "whether the trial delay rose from good cause." DeLoach v. State, 722 So. 2d 512 (¶ 12)
(Miss.1998). This Court must uphold the trial court's findings on the issue of speedy trial where supported
by "substantial, credible evidence; [but] if no probative evidence supports the trial court's finding[s] . . .,”
our duty is to reverse. Ross v. State, 605 So. 2d 17, 21 (Miss. 1992). As in other cases in which the trial
court must make factual determinations, our Court reviews those findings using the "clearly erroneous"
standard. Stokes v. State, 548 So. 2d 118, 122 (Miss. 1989).
¶6.
The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United
States Constitution, as well as Article 3, Section 26 of the Mississippi Constitution of 1890. An alleged
violation of the constitutional right to a speedy trial is examined under the four part test first announced in
Barker v. Wingo, 407 U.S. 514, 531 (1972). The factors, which must be balanced in light of all
surrounding circumstances, are: (1) the length of delay; (2) the reason for the delay; (3) the defendant's
assertion of his right to a speedy trial; and (4) any prejudice to the defendant resulting from the delay. Id.
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at 533; Sharp v. State, 786 So. 2d 372 (¶ 15) (Miss. 2001). We now proceed to examine each factor
individually.
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A.
Length of Delay
¶7.
In evaluating a speedy trial issue arising under general constitutional considerations, as opposed to
Mississippi’s speedy trial statute (Miss. Code Ann. § 99-17-1 (Rev. 2000)), the commencement of the
period begins when a person is “accused." This can be an arrest, an indictment, or any formal charge,
whichever is the first to occur.
Doggett v. United States, 505 U.S. 647, 654-55 (1992) (stating
indictment six years before arrest started speedy trial considerations); United States v. Marion, 404 U.S.
307, 313-15 & 320 (1971) (stating arrest or formal charges begin speedy trial period). In Mississippi,
this key date is construed to be the date of arrest. Taylor v. State, 672 So. 2d 1246, 1257 (Miss. 1996).
Moore was arrested on March 21, 1997. He was not brought to trial on the charges until September,
2001 – over four and one-half years later. A presumption of prejudice arises any time the delay is for more
than eight months. Sharp v. State, 786 So. 2d 372 (¶ 15) (Miss. 2001). The span of time from arrest to
trial in this case far exceeded the presumptively prejudicial period. That factor clearly must be weighed in
favor of Moore.
B.
The Reasons for the Delay
¶8.
The only period of delay during this prolonged period that can fairly be attributed to an intentional
act by Moore is the brief period from the indictment until trial began. On May 15, 2001 – less than a week
after indictment – Moore agreed to an order continuing the trial of the case until the next term of court.
The cause of the extended delay from late 1997 until mid-2001 plainly lies in the fact that the State did not
produce for the various grand juries convened in the interim evidence satisfactory to convince those bodies
that a trial was warranted.
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¶9.
At a hearing on Moore’s motion to dismiss the indictment, the State produced several witnesses
who related the problems that investigators were having in attempting to locate those persons believed to
have information regarding the circumstances of the incident. There was further evidence that, once the
principal investigator became aware of the location of Chris Smith, the State pursued the prosecution of
the case with a reasonable measure of diligence. Moore did not counter this evidence with any showing
of lack of diligence on the part of State officials in their efforts to locate and procure the testimony of
persons believed to have critical eyewitness evidence of the crime. The inability to procure evidence vital
to a proper completion of a criminal prosecution, at least so long as that evidence is pursued with some
reasonable measure of diligence, does not tend to establish the sort of bad faith delay tactics on the part
of the prosecution that call for the enforcement of the constitutional protections afforded a defendant under
the Sixth Amendment. While a deliberate attempt to delay the trial would weigh heavily against the
government a valid reason, such as a missing witness, should serve to justify appropriate delay. Barker
v. Wingo, 407 U.S. 514, 531 (1972).
C.
Assertion of the Right to a Speedy Trial
¶10.
Moore never asserted his right to a speedy trial in the form of a demand. His only action in this
regard was his motion to quash the indictment for lack of a speedy trial filed about three months after his
indictment. The supreme court has held that where a defendant fails to assert his right to a speedy trial, that
failure must be weighed against him. Watts v. State, 733 So.2d 214 (¶ 66) (Miss.1999). Moore seeks
to explain his failure to demand a more speedy resolution of the charges against him by pointing out that
he was not under indictment for the great bulk of the time involved in this case and, thus, could not have
been subjected to a trial no matter how vigorously he might have demanded it.
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¶11.
We do not find that argument compelling. Moore was arrested for the crime, incarcerated for a
time, and then released on bond. If an unindicted suspect who has been the subject of a lawful arrest has
a constitutional right to a speedy resolution of the pending charges against him, then we have little doubt
in concluding that the suspect may demand that the State proceed with reasonable dispatch to resolve the
matter. Whether, in the absence of an existing circuit court criminal proceeding, that demand may be
advanced by more informal means, e.g., a letter to the prosecuting attorney, is a matter we need not reach
in this instance since Moore made no demand, formal or informal, during the long period between his arrest
and indictment that the State proceed by some means to speedily dispose of the pending criminal matter.
It appears on this record that Moore was content to remain free on bond without insisting that the pending
charges against him be resolved. This is, perhaps, understandable in that Moore may have believed that,
with the passing of time, the likelihood of an indictment grew less and less certain. Whether that was, in
fact, Moore’s thinking on the matter is certainly not clear, but it is certain that it was within his power to
make his position definitely known by affirmatively stating it for the record in some manner that would be
preserved for subsequent consideration by this Court. In the absence of any such demand, we think that
Moore’s prolonged failure to demand a speedy resolution of the case must be weighed against his
entitlement to relief.
D.
Prejudice to the Defense Occasioned by the Delay
¶12.
Although there is a presumption of prejudice resulting from a delay of more than eight months, a
defendant must still show actual prejudice in order to obtain relief. DeLoach v. State, 722 So. 2d 512 (¶
23) (Miss. 1998). In the case before us, Moore seems to rely solely on the presumption of prejudice said
to arise by the fact of the long delay itself. It is a fact that he was incarcerated for a little over a year, but
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the Mississippi Supreme Court has said that incarceration alone does not demonstrate the kind of prejudice
that merits relief. McGee v. State, 608 So. 2d 1129, 1130 (Miss.1992)
¶13.
Generally, proof of prejudice beyond incarceration may include such matters as the loss of
evidence, death of witnesses, or staleness of the investigation. Sharp v. State, 786 So. 2d 372 (¶ 19)
(Miss. 2001). “The possibility of impairment of the defense is the most serious consideration in determining
whether the defendant has suffered prejudices as a result of delay.” Hughey v. State, 512 So. 2d 4, 11
(Miss. 1987). Moore makes no affirmative showing that his defense was prejudiced in any of these ways.
Only two witnesses were called on behalf of the defense–one being Moore himself. He makes no claim
that other witnesses were somehow lost over the period of delay.
¶14.
Where the delay is not “intentional or egregiously protracted, and where there is no showing of
actual prejudice, the balance is struck in favor of rejecting the defendant's speedy trial claim." Rhymes v.
State, 638 So. 2d 1270, 1275 (Miss. 1994). Moore has not demonstrated that the State’s long inability
to assemble the necessary witnesses to obtain an indictment was either intentional or the result of an
inexcusable lack of diligence in the investigative process.
¶15.
For the foregoing reasons, we conclude, when the relevant considerations are fairly assessed in
combination, Moore has failed to demonstrate an entitlement to relief on the claim that his right to a speedy
trial was irretrievably violated.
III.
Evidentiary Error Regarding the Admission of Moore’s Out-of-Court Statement
¶16.
Shortly after his arrest and while sitting in the back of the patrol car, Moore was heard by one of
the investigating officers to loudly remark something to the effect that “he [Moore] had shot the SOB and
if he had any more bullets he would shoot him again.” The officer testifying to having heard this remark said
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that it was not in response to a question from any officer at the scene and that, although Moore had already
received his Miranda warnings, he had not been subjected to any form of interrogation. Moore sought to
have that evidence excluded on the ground that there was unrebutted testimony that Moore appeared
intoxicated at the time of his arrest and that, as a result, his statement could not be considered to be the
result of a knowing and voluntary waiver of his right against self-incrimination.
¶17.
We observe first of all that the issue before us is not governed by the substantial body of law
relating to the admissibility of post-arrest statements produced as the result of questioning by investigating
officers as that law has developed since the landmark decision of Miranda v. Arizona, 384 U.S. 436
(1966). Even though Moore was in custody, the evidence shows that his statements were spontaneous and
were, in no way, the product of police questioning. In Pierre v. State, the Mississippi Supreme Court
upheld the trial court’s decision to admit a defendant’s inculpatory statement overheard by officers after
the defendant’s arrest on the ground that the remarks were not made in response to a custodial
interrogation, and thus, did not invoke the Fifth Amendment protections embodied in Miranda. Pierre v.
State, 607 So. 2d 43, 51-52 (Miss. 1992). The admissibility of the statement, rather than being a matter
of constitutional interpretation, was a purely evidentiary one controlled by Mississippi Rule of Evidence
801(d)(2). Oby v. State, 827 So. 2d 731, 733 (¶ 4) (Miss. Ct. App. 2002); Conley v. State, 790 So.
2d 773, 787 (¶ 42) (Miss. 2001).
¶18.
Because the informed nature of the incriminating statement by Moore is not a relevant issue in
considering the statement’s admissibility, the fact of Moore’s alleged intoxication bears only on the
probative value of the evidence. To the extent that Moore desired to attempt to convince jurors that his
statements were the unreliable pronouncements of a person suffering from excessive alcohol ingestion, he
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was free to do so, but it was certainly not reversible error to let the jury know of Moore’s spontaneous
statements made shortly after his arrest that tended to implicate him in the shooting.
¶19. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY OF
CONVICTION OF MANSLAUGHTER AND SENTENCE OF TEN YEARS IN THE
CUSTODYOF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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