IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2013-KA-01592-COA LARRY WALKER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/09/2010 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM W HICH APPEALED: LAW RENCE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: HALDON J. KITTRELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, CARJACKING, AND SENTENCED TO LIFE; AND COUNT II, KIDNAPPING, AND SENTENCED TO LIFE, ALL AS A HABITUAL OFFENDER, W I TH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W ITHOUT ELIGIBILITY FOR PAROLE DISPOSITION: AFFIRMED: 11/10/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Larry W alker appeals his convictions f o r carjacking and kidnapping. He argues that

a def ective indictm ent p rejudiced him , the circuit court e r red in s entencing him as a habitualof

f ender, and his c onstitutional and statutory rights to a speedy trial were violated. W e f ind no error and af

f irm

. FACTS ¶2. On April 25, 2001, W alker f orced a m inor into h er car at gunpoint a n d drove her car
to a secluded f

ield where he attem

pted to r ape h er. W h en he f ailed to com

ple t e t h e a ct of rape, W alker f

orced her to perf

o rm oral sex on him , then released her. ¶3. On February 19, 2002, a Lawrence County grand jury indicted W alker f or carjacking, kidnapping, robbery , two counts of sexual battery , a nd a ttem p ted f orcible sexual intercourse.
W a lker f iled a m otion f

or a change of v e n u e , which the trial court granted. H is f irst trial occurred in Marion County , f rom January 14 to January 16, 2004. The trial concluded with

an acquittal f

or one count of sexual battery a n d the robbery count. The circuit court granted

a m istrial on the rem aining counts, and then set those counts f or retrial. ¶4. W a lker’s second trial b egan o n J u n e 22, 2004. The jury f o und W a l ker guilty of carjacking, kidnapping, and attem pted f orcible s exual intercourse. H e was acquitted of the

rem aining sexual-battery charge. W alker appealed this conviction. In Wa lker v. State ( W alker I ), 937 So. 2 d 9 5 5 , 958 (¶11) (Miss. Ct. App. 2006), this Court reversed the judgm ent and rem anded the case f or a new trial. ¶5. W a l k e r ’ s t

h i r d t r i a l on the rem a ining c h arges of carjacking, kidnapping, and attem pted f orcible sexual intercourse began on April 7, 2010. T he jury f ound him guilty f

o r carjacking and kidnapping, but f

ound h im not guilty of attem pted f orcible sexual interco urse. The circuit court sentenced W alker, as a habitual of f ender, to two lif

e sentences without parole.

2The circuit court granted W alker’s out-of -tim e appeal on Septem

b er 13, 2013. I t is f

rom this judgm ent we consider his appeal. ANALYSIS
I. W hether the indictment for attempted forcible sexual intercourse was defective and prejudiced W alker. ¶6. W a lker asserts t he i ndictm ent f or attem pted f o r c i b l e s exual intercourse om itted an allegation of a n overt act as required by statute, which rendered the indictm ent insuf f icient.
W a lker relies on Short v. State , 9 90 S o. 2d 818, 819 (¶3) (Miss

. C t. App. 2 008), f or the proposition that an indictm e n t for a ttem pted f orcible sexual i ntercourse m ust include an overt
act. In Short , t his Court reversed the conviction because t he i ndictm ent f ailed t o include any language of an overt act or a ny ref eren c e t o the attem

pt statute of Mississippi Code Annotated section 97-1-7 (Rev. 2014). Unlike S hort , t he indictm ent in this c a se included ref erences to both an overt act and section 97-1-7. ¶7. The inclusion of the language “overt act,” however, did n ot describe W alker’s alleged specif ic conduct. The Mississippi Suprem e Court has held “that indictm ents under Mississippi Code Annotated [ sec t i o n ] 97-1-7 (1972), the general attem pt statute, m

ust set f orth an overt act toward the com m ission of t he o f f e n s e .” Durr v. State , 446 So. 2d 1016, 1017 (Miss. 1984). W hile this requirem ent m ay have r endered the indictm ent insuf f icient,
W a lker was acquitted. ¶8. Despite the acquittal, W alker arg u e s t h e d ef ective indictm ent allowed f or the adm ission of prejudicial evidence that w ould h ave otherwise been e xcluded. T his p rejudicial inf orm ation, W alker contends, inf lam e d t h e j u r y and colored their perceptions in the two

3guilty verdicts. In particular, W a lker asserted the circuit court’s use of the word “m inor” in

the jury instructions when t he age of the victim was irrelevant to the o ther two counts caused prejudice. ¶9. However, W alker f a ils to show how the introduction of this evidence caused actual prejudice or af

f e cted the outcom e of the trial. W alker does not question the suf f iciency or weight of the evidence of

the carjacking and kidnapping charges. As such, W alker cannot
say the alleged prejudicial evidence f rom the attem pted-f orcible-sexual-intercourse charge alone resulted in the guilty verdicts. Theref

ore, we f ind this issue m eritless.
II. Wh ether the S

tate failed to prove W

a lker’s habitual-offender status beyond a reasonable doubt. ¶10. W a lker contends t he State f ailed to suf

f iciently prove his habitual-of f ender status at the sentencing hearing. Specif ical l y , W a lker argues the “pen-packs” i ntroduced at the sentencing hearing by the State d id not include a sworn a f f i davit, and the circuit court did not

m ake a f i nding as to W alker’s habitual-of f ender status. ¶11. W a lker, however, raises this issue f or the f irst tim e on appeal. “W hen an a ccused f ails
to object to the habitual of f ender i ssue during the sentencing phase, he is procedurally barred
to d o so the f

irst tim e on a p p e a l

. ” Heidelberg v. State , 45 So. 3d 7 30, 732 (¶6) (Miss. Ct. App. 2010 ) ( c i t a t i o n om itted). At the sentencing hearing, W alker f ailed t o object to the State’s evidence of

his habitual-of

f ender status. Thus, this issue is procedurally barred. ¶12. The procedural bar notwithstanding, this C ourt previously held “certif ied c opies of ‘pen[

- ]packs’ suf

f ice as c om

petent evidence of prior c onvictions.” Frazier v
. State , 907 So. 2d 985, 991 (¶16) (Miss. Ct. App. 2005) (citation om itted). The State s u b m itted certif ied

4p e n - p a c k s a ttesting t o W a lker’s prior convictions, along with W alker’s verif ied signature and Social Security num

ber o n t he d ocum ents. Theref ore, we f ind th e S t a t e met its burden to prove W alker’s habitual-of f ender status, and this issue is without m erit.
III. W hether t he circuit court erred in

failing to dismiss the charges against W alker for violations of his right to a speedy trial. ¶13. As a f

inal issue, W alker asserts the delay s prior to h is f irst trial a nd f

rom his second trial until h is third trial violated his statutory and constitutional rights to a speedy trial. The circuit court f

ound that neither occurrence violated W alker’s rights. A. Procedural Bar ¶14. Bef

ore his f irst trial, W alker f

iled an om nibus m otion on May 6, 2002, which included

a dem and f

or a speedy t rial. The circuit court d enied W alker’s m o tion on January 24, 2003.
W a lker, h owever, did not appeal the circuit court’s decision and f ailed to raise the issue in his previous direct appeal of his second trial. ¶15. “W here the issue was not raised on direct appeal, or not raised at the trial court, the claim s are procedurally

barred a nd not subject t o f urther review by this Court.” W ilcher v. State , 479 S o . 2 d 710, 712 (Miss. 1985) (claim s n ot previously raised at trial or on appeal
p r ocedurally barred i n the post-conviction-relief context). B y not previously raisi n g t h i s issue, W alker waived this claim , and we f i nd h is speedy -trial contention f or the f i rst trial is procedurally barred. Regardless of the procedural bar, we address the m erits of both speedy

trial claim s. B. Statutory Rights to a Speedy Trial ¶16. W a lke r a s s e r ts his statutory right to a speedy t rial was violated. Mississippi Code

5Annotated s ection 99-17

- 1 ( R ev. 2015) s tates: “Unless good cause be shown, and a

continuance duly granted by the court, all o f f enses f or which indictm ents are presented to the
court shall be t ried n o l ater than two hundred seventy (270) day s af ter the accused has been arraigned.” ¶17. W a lker o nly contends the statutory violation occurred p rio r t o h is f irst trial. To determ ine a statutory v iolation, “ [ t ] h e f i rst step is to calculate t he total num ber of day s between arraignm ent (the statute c learly states that is when t he right attaches) and t he actual trial.” Sharp v. State , 786 So. 2d 372, 3 78 (¶5) (Miss. 2001). W alker’s arraignm ent and f irst trial occurred o n J anuary 14, 2004. Converse l y , W a lker a rgues he w aived arraignm ent on March 20, 2002. “If a def endant waives arraignm ent, that date is c onsidered day one on the speedy trial calendar.” Mayo v. State , 886 So. 2d 734, 738 (¶17) (Miss. Ct. App. 2004). ¶18. W a lker, however, f ailed to sign his acknowledgm ent of his right to arraignm ent on March 20, 2002, a nd J une 1 9 , 2002. Regardless of which date begins t he c l ock, the t im e period f r om either M arch 20 or June 19, 2002, to January 14, 2004, exceed s t h e 2 7 0

- d ay requirem ent. However, the inquiry does not end there. ¶19. “[ T ]he second s tep in determ ining w hether the 2 70-day rule h as been com plied with is to consider each delay separately , because only those delay s attributable to the State count toward t he 270 day s .” Sharp , 786 So. 2d at 378 ( ¶5). In a J anuary 27, 2003 order, the circuit
court addressed W alker’s s peedy -trial claim

. Though the circuit court determ ined W alker’s constitutional claim s, the order addressed the reasons f or t he delay , which i s relevant to the statutory discussion.

6¶20. W alker m oved f or a continuance f

rom t he original trial date of J u ne 25, 2002, to Decem ber 9, 2002. This 168-day delay counts against W alker. ¶21. The State also sought a continuance because t he victim could not attend the Decem ber 2002 trial, and t he state crim e lab had not concluded scientif ic testing on crucial e vidence.
W a lker did not oppose the contin u ance, and the trial was reset to J une 2 3, 2003. The
suprem e court has held that “[ d]ela y s c a u s e d b y a backlog at [ a ] s tate or f ederal crim e lab constitute good cause and will not be attributed t o t h e S t ate.” Jenkins v. State , 947 So. 2d 270, 2 75 (¶10) (Miss. 2006). Theref ore, the 197 day s d oes not count h eavily against the State. ¶22. The circuit court only considered the delay until the June 23, 2003 t rial date because it ruled on the m otion in January 2003

. H o w ever, on May 29, 2003, W alker subm itted a

m otion f o r a change o f venue. W hile t his m o tion was under c onsideration, the circuit court delay ed t h e June 23, 2003 trial date. On J uly 28, 2 003, the circuit court g ranted W alker’s

m otion, and reset his trial to t h e next available trial date in Marion County on January 14, 2004, when W alker’s trial occurred. T his 2 0 6

- d a y delay due t o t he change of venue is attributable to W alker. ¶23. The d elay caused by W alker totaled 374 day s. The total num ber of day s f

rom March 20, 2002, to January 14, 2004, is 6 66. Subtracting the day s attributed t o W alker leaves 292 day s, w hich exceeds the 270-day r ule. H owever, 197 of those day s are not weighed against the State due to the delay at the crim e lab. Theref

ore, W a lker’s f

irst speedy -trial claim

did not exceed the 270-day

statutory requirem ent.

7¶24. As f or W a lker’s second s peedy -trial claim , “[ t]he s tatutory 270[ -]day rule is satisf ied once the def

endant is brought to trial, even if that trial results i n a m istrial. Thereaf ter, the tim e o f r etrial i s within the discretion of the trial court

. ” Handley v. State , 574 So. 2d 671, 674 (Miss. 1990) (citing Kinzey v. S tate , 498 S o. 2d 814, 816 (Miss. 1986)) (internal citations

om itted). Thus, the statutory rule does not apply to W alker’s speedy -trial claim f or his retrial. ¶25. Instead, “ [ t]his Court utilizes the Barker f a ctors in d eterm ining whether the discretionary

length of tim e between trials violated the def endant' s constitutional right to a speedy trial.” Id. This Court, theref ore, m u st analy ze t h e c l aim s under the constitutional f ram ework. C. Constitutional Right to a Speedy Trial ¶26. W a lker’s a ssertions of constitutional violations o f his r ight t o a s p eedy t rial im plicate the United States and M ississippi Constitutions. “ T he Sixth Am endm ent t o the United States Constitution provides an accused the right to a ‘speedy and public t rial.’ And the Mississippi Constitution establishes an a lm ost identical protection.” Johnson v. State , 68 So. 3d 1239, 1241 (¶6) (Miss. 2011) (citing U.S. Const. am e nd. VI; Miss. Const. art. 3, § 26). ¶27. To conduct a proper constitutional analy sis, “[ t]he United S tate Suprem e Court ‘set f orth f our f actors to consider whenever a def endant a lleges that his constitutional right to a speedy trial has b een violated: (1) the length of d elay ; ( 2) the reason f or t h e d e l a y ; (3) whether the def

endant asserted his right; and (4) prejudice to the def endant.’” McBrid

e v. State , 61 So. 3d 1 38, 1 42 (¶5) (Miss. 2011) (citing B arker v. Wingo , 407 U.S. 514, 530 (1972)).

8¶28. “Under this Court’s standard of review, this C ourt w ill u p hold a decision based on

substantial, credible evidence.” DeLoach v. State , 722 So. 2d 512, 516 (¶12) (Miss. 1998) (citation o m itted). “ If no probative evidence supports t he trial court’s f inding o f good cause, this Court will ordinarily

reverse.” Id. 1. Length of Delay ¶29. First, we m

ust d eterm ine if the length o f t h e d e l ay prejudiced W alker. “A f orm al indictm ent or i nf

orm ation or an arrest—whichever f irst occurs—triggers the constitutional right to a speedy trial.” McBride , 61 So. 3d at 142 (¶8) (citing United States v. Marion , 404 U.S. 307, 320 (1971)). The Mississippi Suprem e C ourt has held a delay of eight m onths is
presum ptively p rejudicial. Smith v. State , 550 So. 2 d 406, 408 (Miss. 1989) (cit ation

om itted). ¶30. “W hen the d e l a y is presum ptively prejudicial[ ,] that does not m ean that actual prejudi c e t o t h e d ef

endant exists.” Johnson , 68 So. 3d at 1 242 ( ¶7). However, “[ a] ‘presum ptively prejudicial delay ’ acts as a triggering m echanism f or f urther inquiry into the Barker analy sis, and shif

ts the burden to the State to show the reason f or delay .” Id. ¶31. Under the statutor y s p e e d y - trial analy sis, the right attaches at the arraignm ent or

w a i v e r o f arraignm ent, but the constitutional right attaches at the arrest or indictm ent

. W a lker’s i ndictm ent and capias were entered o n February 19, 2002, and the trial c o m m enced on January

14, 2004. Thus, the presum ption of prejudice arises. ¶32. Prior to the third trial , the suprem e court issued a m andate deny ing certiorari in
W a lker’s appeal of his second trial. T h e ma n d a t e w as issued on O ctober 5, 2006, and

9W a lker’s t hird trial started on April 9, 2010. The d elay lasted nearly three and a half y ears.

The length o f the delay creates a presum ption o f p r e

j u dice as the tim e exceeds the eightm onth m a rk. This f

actor weighs in f

avor of W alker. Theref

o re, a f ull analy sis of the Barker prongs is required.

2. Reason for Delay ¶33. Next, we m

ust weigh t he r easons f

or the delay s. As previously discusse d , W alker caused the m ajority of the delay in his f irst speedy -trial c laim

. Theref o re, this f actor weighs in f a vor of the State. ¶34. Regarding W alker’s second claim , the circuit court f ound the State s atisf

ied its burden under Barker by dem onstrating good cause f or the d elay

. Af

ter the suprem e court m andate, the circuit court appointed new counsel on Decem ber 2 7, 2006. However, def e nse counsel f ailed to withdraw until Decem ber 17, 2008. ¶35. Further, the c i r c u i t c ourt noted that “there was essentially no Decem ber 2008 trial term in Lawrence County ” because the assigned judge continued to preside over a com plex case f rom the preceding L am ar County term

. T his unrelated case lasted through a portion of the
Decem ber 2008 term in Lawrence County , whic h p revented the circuit c o urt f rom setting
W a lker’s trial during the Decem ber 2008 term

. However, this delay does not weigh heavily against the State. See Brengettcy v. State , 794 So. 2d 987, 993 (¶14) (Miss. 2001) (172-day delay between arrest and indictm ent not attributable to either party where d elay due to court schedule). ¶36. The c ircuit court reset the case f o r June 17, 2009. The r e c o r d d oes not indicate the

1 0reason f

or resetting the June 17, 2009 trial date. On January 10, 2010, W alker f iled m otions f or a continuance and discovery af ter retaining a third attorney since the 2006 m andate. ¶37. The d elay s f

or the court’s sched u l e s lightly f a vor W alker. However, W alker also contributed t o the delay

. “ A d elay attributable to the def endant tolls the constitutional speedy

t rial clock.” DeLoach , 722 So. 2d at 517 (¶19). First, W alker’s counsel w ai t e d t w o y e a r s af ter the m andate bef

o re withdrawing. W h ile this does n ot n e c e s s a r i l y f a vor the State,
W a lker subsequently obtained two dif f erent attorney s, which served t o delay the trial f urther.
In this instanc e , t h e State provided good cause f or its delay s , and W alker substantially contributed to the delay s. This f actor f a vors the State. 3. Assertion of Right ¶38. W a lker asserted his right to a speedy trial in an om nib u s m otion on May 6, 2002. However, the circuit cour t f o und this f

actor weighed in f

avor of the State because W alker waived h i s assertion when he f i l e d a c o ntinuance and d id not o bject to the State’s continuance. See McGee v. S tate, 928 So. 2d 250, 254 (¶18) (Miss. Ct. App. 2006) (f inding def endant waived his speedy -trial assertion when he agreed to a continuance). W alker did not reassert his right af

ter the circuit court m ade its ruling on the initial dem and. ¶39. “Although it is the State’s duty to [ e]nsure that the d ef endant receives a speedy trial,

a d ef endant has som e responsibility to assert t his right. Failure to assert t he right will m ake it dif f icult f o r a def endant to p rove that he was denied a s peedy trial.” Id. (quoting Taylor

v. State , 672 So. 2d 1246, 1261 (Miss. 1996)). Theref o re, this f actor weighs against W alker. ¶40. Bef

ore his third trial, W alker f iled a m otion to dism iss f o r lack of a s p e e d y t rial on

1 1June 1, 2009. The circuit c ourt dism issed t h e mo tion on June 16, 2009. The circuit court

f ound this f

actor f avored the State because W a l k e r f a i l e d to assert a dem and f o r a speedy trial. ¶41. “ [ A] dem a nd f

o r dism issal f

or violation of the right to speedy t rial i s n o t t h e equivalent of a dem and f

or speedy trial.” Perry v. State , 6 37 So. 2d 871, 8 75 (Miss. 1994). The suprem e court has f

ound that a f

a i l ure to dem and a speedy trial and a delay in f iling a

m otion t o dism iss w eigh in f avor of t he State. Bailey v
. S tate , 7 8 So. 3d 308, 3 23 (¶52) (Miss. 2 012) (where t he def endant never dem anded a s peedy trial and waited 931 d ay s to f ile

a m otion to dism iss, this f

actor f avored the State); DeLoach , 722 So. 2d at 518 (¶21) (f inding delay of one y ear and seven m onths b ef ore def e n dant brought m otion to d ism iss sli g h t l y f avored State). Theref

ore, we f ind this f actor f a vors the State.
4. Prejudice ¶42. In W alker’s m otion to dism iss, W alker a rgued the length o f his i n c a r c e r ation prejudiced him

. The circuit c ourt f ound W alker f

ailed to dem onstrate actual prejudice. “W hen a naly

zing t he last Barker f

actor, this Court should consider the f o l l o w i n g three interests: (1) preventing oppressive incarceration; ( 2) m inim izing anxiety and concern of the

accus ed; a nd (3) l im i ting the possibility that the def ense will be im

paired.” B ailey , 78 So. 3d at 323 (¶53) (citing Jenkins , 947 So. 2d at 277 (¶21)). ¶43. The o nly prejudice W alker argues is the lengt h o f h is incarceration, but not anxiety

or the im p airm ent of his d ef

ense. “[ A] def

endant’s assertion of prejudice attributable solely
to incarceration, w ith no other harm , ty pically is not suf

f icient to warrant reversal.” Jenkins ,

1 2947 So. 2d at 277 (¶21) (citation om i tted). W ithout m ore, w e cannot sa y Walker suf f ered prejudice, and f

i nd this f actor f avors the State. ¶44. The lengths of the delay s presum ptively prejudiced W a lker in both trials. However,
t h e f a c t o rs of t he r eason f

or delay , the a ssertion of the right to a s p eedy trial, and the prejudice suf

f ered all f avored the State. ¶45. For these reasons, this Court f i nds that t h e s u b stantial evidence shows the State provided good c ause f

or the delay in W a lker’s trials, a nd the State did not violate W alker’s constitutional rights. Further, the indictm ent f o r a t t e m pted f orcible rape was neither def ective n or prejudicial, and t he c ircuit court did not err in sentencing W alker as a habitual of f ender. Thus, this Court af f irm s W alker’s conviction. ¶46. T H E J U D G M E N T O F T H E C I R C U I T C O U R T O F LAWRENCE COUNTY OF CONVICTION OF COUNT I, CARJACKING, A N D S ENTENCE O F LIFE; AND COUNT II, KIDNAPPING, AND SENTENCE O F L I F E, A LL AS A HABITUAL OFFENDER, W ITH THE SENTENCES TO RUN C ONCURRENTLY IN THE C U S T O D Y O F T H E M I S S I S SIPPI DEPARTMENT O F CORRECTIONS WIT H O U T ELIGIBILITY FOR P A R O L E , I S A F F I R M E D . A L L C O S T S OF THIS APPEAL ARE ASSESSED TO LAWRENCE COUNTY. LEE, C .J., IRVING, P .J., BARNES, ISHEE, CARLTON, MAX WELL, FAIR, JAMES AND WILSON, JJ., CONCUR.

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