IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-01415-COA DAVID LEE MAY A/K/A DAVID L. MAY A/K/A DAVID MAY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/10/2017 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES PHILLIP BROADHEAD ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN LADONNA C. HOLLAND DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/21/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. J. WILSON, P.J., FOR THE COURT: ¶1. Following a jury trial in the H a r r i s o n C o u n t y C i r c u i t Court, David Lee May was convicted of two c ounts o f aggravated a ssault and sentenced, a s a violent habitual of f ender,

to concurrent term s of lif

e im prisonm ent. May raises one issue o n appeal: whether the circuit

court should have dism issed his indictm ent b ased on a violation of his constitutional right to a speedy trial. W e f

ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY¶2. On October 27, 2012, May w as arrested f or t he a g gravated assaults of Jessica McLard and Arnold Quave. May was indicted f or two c ounts of aggravated assault on June 17, 2013,

as a violent habitual of

f ender, and the court appointed counsel ( Phillip W ittm an) to represent him three day s later. O n July 22, 2013, in a s e parate cause num b er, May was indicted f

or possession of cocaine, again as a violent habitual of f e n der. The s a me d a y , May f iled a

m otion f o r a continuance in b oth cases. T he reason given f or M a y ’ s r e q u e s t was “new discovery f

or the def endant.” The m otion stated t hat May waived his speedy trial rights and objections. The court granted the m otion “upon consideration of good cause.” The court set trial f or Septem b er 23, 2013. However, trial did not c om m ence on that d ate. It appears that trial m ay have been continued on that date because May i nf orm ed the court that he wanted to proceed pro se with W ittm an as “standby counsel.” ¶3. On October 14, 2013, May and the State f iled a joint m o tion f

or a continuance on the grounds that a witness f or th e S t a t e was unavailable and May needed tim e to review discovery m aterials. The court granted the m otion “upon consideration o f good cause” and reset the trial f

or Novem ber 4, 2013. ¶4. On Novem

ber 12, 2013, May f

i led a pro se m otion f

or a speedy trial in this case. T he

next day , the court entered an o r der applicable to both o f M ay ’s cases. The order stated that both cases had been set f

o r trial t he week of Novem ber 4, 2 013, b ut neither was tried because

a c a se above them on the docket had gone to trial. The o rder also s t ated that the parties had agreed to a hearing date on May ’s m otion to suppress in the drug case (Decem b er 2, 2013) and a new trial date f

or both cases (Decem

ber 9, 2013).

2¶5. On Decem ber 9, 2013, May ’s drug case w ent t o trial. He w as convicted o f possession of cocaine and sentenced to lif e im prisonm ent as a violent habitual of f ender. May a

ppealed. ¶6. Nothing else happened in May ’s assault case u ntil April 30, 2015. O n that date, the

court entered an o rder a llowing Wi t t m an to withdraw and appointing Jim Davis as May ’s

new attorney

. The o r der also set May 18, 2015, as the new p lea or trial date. The case was not tried on that date. On June 5 , 2015, May f iled a pro se m otion to dism iss f or f ailure to provide a speedy

trial. ¶7. On October 15, 2 0 15, May and the State f iled a j oint m otion f

or a continuance. T he

m otion indicated t hat May was not present in c ourt but, through counsel, waived all speedy trial r ights and objections. The m otion gave “appeal pending in other c a se” as the reason f or the continuance. T he court granted the joint m otion “upon due consideration of good cause,” and the trial was reset f

or April 18, 2016. ¶8. On Novem

ber 2, 2015, Jim Davi s s e n t a l e t ter to the assistant district a ttorney to inf orm her that May

was not w aiving his right to a speedy trial and desired a trial “as soon as possible” and “bef

ore April.” In response, t he State f i led a “Motion to Set Earlier Trial
Date.” However, the State’s m otion advised the court that Davis had stated that he was “not available f

or any of the next s i x ( 6 ) a v a ilable trial weeks” in D ecem ber 2 015 or January
2016. Consequently , the State s im ply asked the trial c ourt f

or “the earliest trial setting that [ would f it Davis’s] schedule.” ¶9. On No v e mb e r 1 7 , 2 0 1 5, May f i led a pro se petition f

or a writ of m andam

us in the Mississippi Suprem e Court. May ’s petition s ought a ruling on his m otion t o d ism iss f or

3f

ailure to provide a speedy t r i a l

. A panel o f the Suprem e Court d enied May ’s petition. In re: David Lee May , No. 2015-M-01700 (Miss. Dec. 9, 2015). ¶10. O n A p r i l 1 8 , 2 0 1 6 , May , through counsel, f iled a m o tion f

or a continuance. T h e

m otion stated t hat discovery w as “ongoing” a nd “not com pleted.” The mo t i on also stated that May again waived all speedy trial rights and objections. The court granted the m otion “upon due consideration of good cause” and reset the trial f or July 5, 2016. ¶11. On July 5, 2016, Davis f iled another m otion f

or a c ontinuance. Davis’s m otion stated that he had m et w ith May only t wice b ecause M ay had been in the custody o f the D epartm ent of Corrections (due to his conviction and lif e s entence f

or possession o f

cocaine). Davis’s

m otion also stated t hat he needed m ore tim e to r eview the “volum inous” discovery , that he

m ight need tim e to retain an expert witness to address f ingerprint evidence, and that he m ight need t im e to request the toxicology test results o f both victim s. At the hearing on the m otion, Davis argued that he needed additional tim e to prepare f or trial and that a continuance was in May ’s best intere s t , but D avis also acknowledged t hat May objected to a continuance. May told the court that h e wanted to go to trial pro se that day despite counsel’s m otion. However, the court granted a continuance and reset the trial f or October 3, 2016. ¶12. On October 3, 2016, the t ri a l w a s p o s t p o n e d a g a i n , this t im e on t he court’s own

m otion. The court’s order stated that the trial w a s postponed because a ju r y could not be brought to the courthouse because t he “streets all a round [ the] courthouse [ were] to be closed” “ during a c oast event.” The record does not identif y “ coast event.” On appeal, May alleges that it was t he Cruisin ’ t h e C o a s t classic c a r show and f estival. Trial was reset f

or

4April 25, 2017.

¶13. On Decem

ber 13, 2016, this Court r eversed M ay ’s drug conviction. See May v. State , 222 So. 3 d 1074 (Miss. Ct. App. 2016), cert. denied , 223 So. 3d 765 (Miss. 2 0 1 7 )

. This
Court denied rehearing on April 11, 2017. The S t a t e t h e n f i led a p etition f

or a writ of certiorari, which the Mississippi Suprem e C ourt denied on August 3, 2017. ¶14. May ’s case was not tried i n April, as had been scheduled. O n May 16, 2017, the c o urt entered an order that stated only that the court had been “ unavailable f or a trial the week of April 25, 2017.” The court reset the trial f or Septem

ber 11, 2017. ¶15. O n A ugust 1, 2017, Davis m oved t o withdraw because a “ c o n f l i c t h a [ d ] a r i s e n between” him

and May . Davis noticed his m otion f or hearing on August 28, 2017. ¶16. On August 28, 2 0 1 7 , M a y , t h r o u g h c o u n s e l , f iled a m o tion f

or a continuance requesting a “short dela y . ” M ay ’s m otion stated t hat he waived his speedy t rial rights and objections “ f

or this 2 week d elay ” only

. The court granted t he continuance “upon due consideration of good cause.” The cour t s e t a hearing f or Septem

b er 1 1, 2 017, and rescheduled the trial f

o r Septem

ber 25, 2017. ¶17. On Septem

ber 1 4, 2017, the court h eld a m otions hearing and a d d r e s s e d D a v is’s

m otio n t o withdraw. Counsel stated that he would rem ain as trial c ounsel but May would also participate in his own d ef ense. The court also heard M ay ’s m o tion to dism iss f or f ailure

to p rovide a speedy trial. May t estif ied that he “alway s wanted to go to t rial on t he charges” and t ha t h e h a d not a

pproved of any of the continuances requested by his attorney s. The court reserved ruling on May ’ s m otion.

5¶18. On Sept e mb e r 2 6 , 2017, the trial court orally denied May ’s m otion to d ism iss, and

May ’ s t rial f

inally b egan later that day

. 1 Jessica McLard testif ied that in July 2012 she was stay ing at a house in B iloxi with her boy f riend (Bobby Cook), Arnold Quave, and Brandon Birchf ield. McLard and Cook we r e in Biloxi t o work on a s hort-term construction job. McLard t estif

ied that Quave allowed May to spend one night o n a couch in the living room of the house. May

apparently

worked with Quave on a s hrim p boat, but Quave only

knew
him a s “David” and did n ot know his last nam e. McLard did not know May and only saw him brief ly on the porch when s he returned h om e that evening. The next m orning McLard awoke to f

ind May in her bedroom staring at her. May then dem anded sex. McLard ref used, but M ay persisted and eventually grabbed M cLard by the throat, p ut her in a c hoke hold, punched her in the f

ace, a nd cut her f

ace with a knif

e. Quave h eard McLard scream ing and tried to intervene, but May cut Quave’s arm with the k nif e . McLard escaped the h ouse, and

a neighbor heard her scream ing and called the police. Photographs of McLard’s a nd Quave’s injuries and blood spattered through the house were adm itted into evidence at trial. ¶19. The jury f

ound M ay guilty on both co u n t s o f a g g r a v a t e d assault, and the court sentenced May to concurrent term s of lif e im prisonm e nt as a violent habitual of f ender. May f iled a tim ely notice of a

ppeal. M ay does not c h allenge th e w e i g h t o r suf f iciency of the evidence agai nst him o r allege any other error d uring his trial. As stated above, his only

c l a i m on appeal is that the delay i n bringing his c ase to trial violated his state a n d f e d e r a l constitutional rights to a speedy trial.

1 In a p o st-trial w ritten o rd e r, th e co u r t ad d ressed th e “ B a rker f

acto r s,” see B a rker v. Win g o , 4 0 7 U .S . 5 1 4 (1 9 7 2 ), an d ex p lain ed its reaso n s f o r d en y in g M ay ’s m o tio n . 6ANALYSIS

¶20. The Mississippi Constitution and the U n i t e d S t a t e s C o n s t i t ution both protect the def endant’s right t o “a speedy

. . . trial.” 2 Miss. Const. art. 3, § 26; U.S. Const. am end. VI. 3
“W hen considering an alleged v i olation of a def endant’s [ state or f

ederal constitutional] right

to a speedy trial, [ the Mississippi Suprem e] C ourt applies the f our-part t est developed by the United States Suprem e Court i n Barker v. W ingo , 407 U.S. 514 (1972).” Newell v. State , 175
S o . 3 d 1 2 60, 1269 (¶19) (Miss. 2015); accord Flora v. State , 925 So. 2d 797, 815 (¶61 ) (Miss. 2006). “The Barker t est ‘requires a b alancing of f our f actors: (1) length of delay ; (2)

reasons f or the d elay ; (3) def

e ndant’s assertion of his right to a speedy t rial; and ( 4) prejudice

to the def e ndant.’” Reed v. S

tate , 191 So. 3d 134, 139 (¶8) (Miss. Ct. App. 2016) (quoting Taylor v. State , 162 So. 3d 7 8 0, 783 (¶6) (Miss. 2015)). “[ T]he [ United Stat e s ] S u prem e Court has held that c ourts m ust ‘engage in a d if

f icult and sensitive balancing process’ of the
f our f a ctors because none of

the f actors is ‘either a necessary or suf f i cient condition to the
f inding of a deprivation of the right of speedy trial. Rather, they a re related f actors and m

ust

2 T h e d issen t cites t h e sp eed y trial statu te, M iss. C o d e A n n . § 9 9 -1 7 -1 (R ev . 2 0 1 4 ). H o w ev er, M ay

d o es n o t d e v elo p su ch an a rg u m en t o n ap p eal, so th e issu e is w aiv ed

. S ee R a n d o lp h v. S ta te , 8 5 2 S o . 2 d 5 4 7 , 5 5 8 (¶2 9 ) (M iss. 2 0 0 2 ). M ay ch o o ses n o t t o d ev elo p t h at arg u m en t b ecau se h e co n ced es th at th ere is n o reco rd th at h e w as arraig n e d p rio r to th e f irst d ay o f h is trial. “[ O ] u r sp eed y trial statu te is p l ain an d u n am b ig u o u s, an d it req u ires th at th e d ef en d a n t b e tried n o l ater th an 2 7 0 d a y s a f t e r a rra ig n m en t u n less g o o d cau se b e sh o w n . T h u s, u n d er th is s tatu te, t h e t i m e p rio r to a rra ig n m en t is n o t co m p u t ed to d

eterm in e co m p lia n c e w i th th e sta t u te .” P e rry v. S ta te , 4 1 9 S o . 2 d 1 9 4 , 1 9 8 (M iss. 1 9 8 2 ) (em p h asis ad d ed ). B ecau s e M ay w as tried th e sam e d ay h e w as arraig n ed , t h e re w a s n o v i o l a tio n o f th e sp e ed y

trial statu te. I

d

. 3 T h e S ix th A m en d m en t rig h t to a sp e e d y trial is ap p licab le to th e s t ates th ro u g h th e F o u rteen th A m en d m e n t. S ee K lo p fer v. N o rth C a r o lin a , 3 8 6 U .S . 2 1 3 , 2 2 3 -2 6 (1 9 6 7 ). 7be considered together with such other circum stances a s m ay b e relevant

. ’ ” I d

. (quoting Barker , 407 U.S. at 533). “No m athem atical f orm ula exists according to w h ich t he Barker weighing an d b a l a ncing p rocess m ust be perf

orm ed.” Flora , 9 25 So. 2d at 8 15 (¶61) (quoting Beavers v. State , 498 So. 2d 788, 790 (Miss. 1986)).
1. Length of the Delay ¶21. “For constitutional speedy

- trial claim s, both the United States S uprem e Court and the Mississippi Suprem e Court have clearly held that the starting p oint f or the calculation of the tim e begins with the def endant’s f

orm al indictm e n t o r i n f

orm ation or arrest. Thus, the precise point at which t he right attaches is when t he individual has been accused.” McBride
v. State , 61 So. 3d 1 74, 179 (¶11) (Miss. Ct. App. 2010), aff’d , 61 S o. 3d 138 (Miss. 2011) (citations om itted). Under Barker , “[ t]he length o f the delay is t o som e extent a triggering

m echanism

. Until there is som e delay w h i c h is presum p tively prejudicial, there is no necessity f

or inquiry i nto the other f

actors that go into the balance.” Barker , 407 U.S. at 530.
“In Mississippi, any delay f rom the dat e o f a r r e s t , indictm e nt, or inf orm ation u ntil trial

e xceeding eight m onths is presum ptively prejudicial.” W

ise v. State , 263 S o. 3 d 6 6 8 , 6 7 2 (¶17) (Miss. Ct. A pp. 2018), cert. de n i e d , 263 So. 3d 665 (Miss. 2019). This shif ts the burden to the State to show the reasons f or delay

. Graha m v
. S t a t e , 1 8 5 So. 3d 992, 1005 (¶41) (Miss. 2016). H owever, the f act that “the delay is presum ptively prejudicial

. . . does

not m ean that a ctual prejudice t o the def e ndant exists. Rather, actual prejudice is determ ined at a dif f e rent point in the Barker

analy sis.” Id. ; see infra

. ¶22. May was arrested in October 20 1 2 a n d i n d i c t e d i n June 2013. His case did not

8proceed to trial u ntil Septem ber 2017. T he delay of alm ost f ive y ears between May ’s arrest and trial is “presum

ptively prejudicial.” W

ise , 263 So. 3d a t 672 (¶17). This does not m ean that May suf f ered any actual

prejudice. G raham , 185 So. 3d at 1005 (¶41). It only m eans that this o n e f

actor weighs against the State, that we m u st proceed to a n aly

ze t he rem aining Barker f actors, and that the S tate bears the burden of showing the reasons f or the delay

. See Barker , 407 U.S. at 530; Graham , 185 So. 3d at 1005 (¶40).
2. Reasons for the Delay ¶23. “W hen the length of the delay is presum ptively prejudicial, the burde n s h i f ts to the prosecution to produce e vidence justif y ing the delay .” Bateman v. S tate , 125 So. 3 d 616, 629 (¶45) (Miss. 2013). “ This C ourt m ust then determ ine if the delay is attributable to the State

or the def endant.” Collins v. State , 23 2 So. 3 d 739, 745 (¶20) (Miss. Ct. A pp. 2017), cert. denied , 299 So. 3d 123 (Miss. 2017). Dif f erent r easons f

or delay are a s s i g n e d d if f erent weights. Barker , 4 0 7 U.S. at 532. “‘Deliberate attem pts to d elay the trial i n order to ham per the def ense are w eighted heavily against the State. On the other hand, ‘a m o re neutral reason such a s negligence o r overcrowded courts should b e w eighted less heavily b ut nevertheless should be considered since the ultim ate responsibility f or such c i rcum stances m

ust rest with the g o vernm ent rather than with the def e ndant.’” Collins , 232 So. 3d 745 (¶20) (quoting Hardy v
. S

tate , 1 3 7 So. 3d 289, 2 99 ( ¶30) (Miss. 2014)). Basically , “the State m ust prove either that t he def

e ndant prom

p ted the delay o r that t he Stat e h a d good cause.” De la Beckwith v. State , 707 So. 2d 547, 606 (Miss. 1 997). “ W e will uphold a trial court’s f actual determ ination regarding whether d e l a y arose f rom good cause if it is based on substantial,

9credible e vidence.” R eed , 191 So. 3d at 139 ( ¶9) ( citing DeLoach v. State , 722 So. 2d 512,

516 (¶12) (Miss. 1998)). I n this c ase, we f i nd it usef ul to divide the tim e prior to trial into
f ive periods, which we address below chronologically

. ¶24. First, May was arrested in October 2012 but not indicted until June 2013. Based on testim o ny presented by the State, the trial c o urt f ound that this initial delay was caused by the
“h e a v y d o c k et in [ t he] district” and d elay in obtaining the v ictim s’ m edical r ecords f rom

m edical providers. The trial court f ound that this delay w as “reasonable” and that “the State ha[ d] shown g ood cause f or [ it].” Thus, the trial court did not c ount the delay against the
State. See Collins v. State , 817 So. 2d 644, 653-54 (¶¶18-21) (Miss. C t. A pp. 2002) (holding that d e l a y caused by post-arrest, pre-indictm ent investigation did not f avor the def

endant when the State provided “legitim ate” r easons f or it). On appeal, May states that he “does not put at issue the . . . delay

between his arrest and indictm ent.” Theref ore, w e will also treat this delay as neutral. See id. ¶25. Second, the period f rom May ’s f

irst request f

or a continuance in July

2013 until his
Decem ber 2013 trial i n his drug case is attributable to continuance m o tions that May either
f iled o r joined. Through counsel, May waived speedy trial objections to the d elay s, and the trial court f

ound good cause f

or the c ontinuances. Moreover, a joint mo t i o n f or a continuance is treated “as if it were sought by t he def ense” and will be “charged against” the def endant. S harp v. State , 786 So. 2d 372, 378 (¶7) (Miss. 2 001). Theref ore, the d elay f

rom May ’ s indictm ent until his Decem ber 2013 trial in his drug case weighs against May

. ¶26. Third, there was an e xtended period of i n a c t i v i ty and delay in this case af ter May ’s

1 0Decem

ber 2013 conviction f

or p ossession of cocaine. Thereaf ter, nothing else happened in this case until April 30, 2015, when M ay ’s orig i n a l c ounsel (W ittm an) was allowed to withdraw 4 and new counsel (Davis) was appointed. The record does not provide any good cause f o r the near-seventeen-m onth delay f rom Decem ber 2013 to April 30, 2015. ¶27. In C

o l l i ns , supra , we reasoned that the def endant’s conviction and lif e sentence on

one charge did not relieve t he State of its obligation to bring him to trial another charge. See Collins , 2 32 So. 3d a t 7 4 5 ( ¶ 2 2 )

. “[ I]n general, the constitutional speedy trial clock is not tolled sim ply because the def

endant is already serving a sentence on a separate charge.” Id. (citing Smith v. Hooey , 393 U.S. 374, 378-79 (1969)). Moreover, “[ i]t is well settled that any unexplained trial d elay

tolls heavily

against the S tate[

. ]” Rowsey v
. State , 188 So. 3d 486,
494 (¶23) (Miss. 2 015). Theref ore, although there is n o evidence that the State intentionally delay ed May ’s trial, the u nexplained seventeen-m onth delay f ollowing May ’ s conviction f or drug possession m

ust be weighed against the State. ¶28. A f

ourth period of delay f

ollowed W ittm an’s withdrawal and Davis’s appointm ent on April 30, 2 015. A new plea or trial date was set f or May 18, 2015, but the case was not tried

on that date. 5 On October 1 5 , 2015, t he State and Davis f iled a joint m otion f

o r a continuance, but the o nly explanation given was “appeal pending in o ther case.” The court

4 T h e S tate’s ap p ellate b rief states th at M ay “f i red ” Wittm an . T h at m ay b e tru e, b u t w e a re u n ab le to f

in d an y th in g in th e reco rd to co n f i rm it. Wittm an ap p aren tly m ad e an o ral m o tio n to w ith d raw at a h earin g th at w as n o t t ran scrib ed , an d th e co u rt’s su b seq u en t w ritten o rd er g ran tin g Wittm an ’s m o t io n d o es n o t p ro v id e an y reaso n s.

5 N o o rd er co n tin u in g th e case w as e n t ere d

. I t a p p e ars th at th e case m ay n o t h av e b een p laced o n th e trial co u rt’s d o ck et f o r M ay 1 8 , 2 0 1 5

. 1 1granted the joint m otion without a ny additional explanation and reset the t rial f or April 18,
2016. However, on Novem ber 2, 2015, Davis inf

o rm ed the State that May wanted a trial “as

soon as possible” and bef

ore April 2016. Despite asking f or a p rom pt trial, Davis also stated that h e (Davis) was unavailable f or the court’s next six available trial dates in Decem ber
2015 and January 2016. Moreover, Davis subsequently sought continuances in April 2016 and July 2 016. In each of those mo t i o n s , D a v is explained that he needed m ore tim e to
prepare f or trial. The court granted Davis’s m o tions—the l atter over May ’s objection—and ultim ately

reset the trial f

or October 3, 2016. ¶29. T h e a p proxim ately seventeen-m onth d elay f rom April 30, 2 015 to October 3, 2 0 1 6 def ies easy analy sis under Barker

. So m e delay subsequent to Davis’s appointm ent is understandable and does not weigh against the State. 6 M onths later, however, Davis requested additional c ontinuances and r epresented t o the court that he needed m ore tim e to prepare, while May personally objected to any f

urther continuance and sought a trial. The trial court granted def

e nse counsel’s requests and ultim ately ruled as f

ollows:
Mr. May , a s y ou c an a p preciate, even though y o u don’t want a continuance, y o u r l a wy er, under his obligations to the court, has to l et m e know if h e i s ready or not ready

. And he is telling m e h e i s not ready because he hasn’t adequate tim e to m eet with y ou or prepare y our def ense. I’m going to grant his m otion f or continuance, not f

or any long period of tim e, n ot f or six m onths or a y ear, but just f

or a m onth or two to allow h im m o re opportunity to m eet with y ou and prepare him self

. A trial court has broad discretion t o grant a continuance, s ee, e.g. , McClendon v. State , 335

6 S ee, e.g
. , S h a rp , 7 8 6 S o . 2 d at 3 7 9 (¶9 ) (“[ A ] d elay cau sed b y th e w ith d raw al o f th e d ef en d a n t ’s atto rn ey w h ich en tails allo w in g th e n ew atto rn ey a reaso n ab le tim e t o b eco m e f am iliar w ith th e case an d p rep are f o r trial can n o t b e w eig h e d ag ain s t th e S tate b ecau se it is b ey o n d th e S tate’s co n tro l .”). 1 2So. 2d 887, 888 (Miss. 1 976), and we cannot say that t he trial judge abused his discretion by

granting a continuance t o give counsel tim e to prepare. Nor can we say that the judge clearly erred in f inding good cause f

or the continuance. See Reed , 191 So. 3d at 139 (¶9). ¶30. In addition, May is bound by hi s lawy er’s decisions as to the t im ing o f trial and the need f o r a continuance. See S

ummers v. S t a t e , 914 So. 2d 245, 254 (¶23) ( Miss. Ct. App. 2005) (holding that def

e nse counsel “was responsible f or all a s pects of tim i ng [ of the def endant’s] t rial” and had f

u ll authority to waive s peedy t rial objections); s ee also Thomas

v
. S t ate , 2 49 So. 3d 331, 349 (¶62) (Miss. 2018) (“[ W ] ith certain exceptions, crim i na l def endants are b ound by the actions of t heir l awy ers.”). A p ro se dem and f or a speedy trial does n o t a b solve the def

endant o f responsibility f

o r a continuance that h is own lawy er sought and obtained. S

e e State v
. Oliveir a , 1 2 7 A .3d 65, 77 (R.I. 2015). “[ I]n the course of attributing delay s caused by def e nse counsel t o the d ef

endant f or speedy -trial purposes, when

an attorney -client relati onship exists, the client m ay not pick and choose which of his attorney ’s actions shall bind h i m .” Id. (quotation m arks om itted). Thus, May is charged with delay s c aused by his own a ttorney

. For all these reasons, this f ourth period of d elay , which was prim arily

due to continuances sought by def ense counsel, weighs against May

. ¶31. The f

if th and f inal s ignif

icant period of delay is attributable to the court. I n October 2016, the court postpon e d t h e t r i al again b ecause the streets around t he courthouse were going to be closed f

or a “ coast event.” In a d dition, in April 2017, the trial was p ostponed again. The court’s order stated only that the court h ad been “ unavailable f or trial the week of April 25, 2017.” The trial was rescheduled f or S eptem

ber 2017, and May did f

inally go

1 3to t rial in Septem ber 2017. Our Suprem e Co u r t h a s h e l d that, “[ a]s a general rule, delay s resulting f

rom docket congestion are to be w eighed against the S tate, but not he a v i l y .”
Stevens v. State , 808 So. 2d 908, 916 (¶20) (Miss. 2002); accord L ee v. State , 134 So. 3d 834,
837 (¶¶9-10) (Miss. Ct. App. 2014). It is the State’s obligation to bring t he d ef endant to trial,

so “ the ultim ate responsibility f or such circum stances m

ust r est with the governm ent rather th a n w ith the def

e ndant.” B arker , 407 U.S. at 531. Likewise, we conclude that the trial
court’s unavailability in October 2015 and again i n A pril 2 017—whatever the reasons m ay have been—m

ust be weighed against the State, though not heavily

. See Booker v. State , 5 So. 3d 411, 421 (¶25) (Miss. Ct. App. 2 008) (holding that unavailability of the court weighed slightly against the State). ¶32. In sum m ary , two signif icant periods of

tim e m ust be weighed against the State, two periods of delay are chargeable against M a y , a n d one p eriod of d elay is neutral. The approxi ma t e l y seventeen-m o nth delay subsequent to May ’ s conviction f or possession of cocaine (Decem

ber 2 013 to April 2015) w ei g h s a g a inst t he State, and t he approxim ately eleven-m o nth delay attributable to the court (October 2016 to Septem ber 2017) also weighs slightly against the State. T he trial court f ound t hat t he post-arrest, p re-indictm ent delay of alm ost eight m onths was reasonable and neutral, and M ay d oes not challenge that f inding on appeal. Finally , two perio ds of delay weigh against May because they are related to continuance m otions that he f iled or joined. These periods are July 2013 to Decem ber 2013 (about f ive months) and May 2015 to October 2016 (about seventeen m onths). Thus, although signif

icant periods of delay are attributable to May , a som ewhat l arger part of the

1 4overall d elay weighs against t he State. A ccordingly , we c o n c l u d e t hat this f actor weighs slightly in f a vor of May and slightly

against the State.
3. Assertion of the Right to a Speedy Trial ¶33. “Although it is the State’s duty to ensure that the def e ndant receives a s peedy trial, a def endant has som e responsibility to assert this right.” Bateman , 125 So. 3 d a t 6 3 0 (¶48) (quoting Taylor v. State , 672 S o. 2 d 1246, 1261 (Miss. 1996)). “Theref ore, ‘the def

endant’s assertion of his right to a speedy trial weighs i n h i s f avor.’” Reed , 1 91 So. 3d at 140 (¶16) (quoting Fran k l i n v. State , 1 3 6 S o. 3 d 1021, 1 034 (¶50) (Miss. 2014)). “In contrast, ‘a def endant’s f ailure to d em and a speedy trial between his arrest and indictm e nt is critical to the analy sis of

a speedy -trial claim .’” Id. ( quoting Taylor , 162 So. 3d at 785 (¶10)). ¶34. May f

irst asserted his right to speedy trial on Novem ber 12, 2013. This w as an actual dem and f o r a s peedy t rial rather than only a dem and f or dism issal. See, e.g ., Smiley v. State , 798 So. 2d 584, 589 (¶18) (Miss. Ct. App. 2011) (noting the “distinct dif f erence” between the two and the greater signif i cance of a dem and f

or trial). However, May ’s d em and cam e

m ore than a y e a r af

ter his arrest a nd nearly f ive m onths af

ter his indictm ent. In addition, bef ore May a s s e r t e d h i s right to a speedy trial, he h ad already requested a nd obtained two continuances. In W

illiams v. State , 5 So. 3d 496, 502-03 (¶¶15-16) (Miss. Ct. App. 2008), this Court reasoned that the def e ndant’s f ailure t o a ssert his right to speedy trial until nearly
one y ear af

ter his arrest weighed against him

. ¶35. May

also f iled a pro se m otion to dism iss f o r lack of a s p eedy

trial on June 5, 2015, and a pro se petition f

or writ of m andam

us with the Mississippi S uprem e Court on Novem ber

1 517, 2015, seeking a ruling on that m otion. May ’s attorney , Davis, also wrote a letter to the

assistant district attorney stating that May wanted to go to trial “as soon as possible” and did

not waive his right to s peedy trial. However, as discussed above, the State responded with

a m otion to grant May a sooner trial, but Davis advised t hat he w as unavailable f or any of the
f irst six available trial dates that the State of f ered. ¶36. Moreover, May , through counsel, joined in or f iled m otions f

or f urther c ontinuances in October 2015, April 2016, and July 2016. “[ A] def

e ndant’s assertion of

his speedy

trial rights should m anif

est his desire to be tried prom ptly

. ” P erry v
. State , 233 So. 3d 750, 758 (¶17) (Miss. 2017) (quotation m arks om itted). “W hen a def endant m oves f

or a s peedy trial but sim ultaneously requests a continuance, the d e f e ndant’s speedy -trial request c annot be viewed as a request to be tried prom ptly .” Id. (citing Rowsey , 188 So. 3d at 495 (¶28)). ¶37. In sum m a ry , May

did dem and a speedy t rial, but he waited over a y e a r to do so, and his pro s e dem and was underm ined by his attorney ’s subsequent requests f or continuances. Under the circum s tances, this f actor weighs in f

avor of May but only slightly

. See Jasso v. State , 655 So. 2d 30, 34 (Miss. 1995) (holding that this f actor weighed only slightly in f avor of def e ndants who dem anded a speedy trial but subsequently

requested continuances).
4. Prejudice ¶38. “ T o d e t e r

m i n e w h e ther the d elay resulted in actual prejudice, t he Court considers thr e e interests that the right to a speedy trial was m eant to p rotect: ‘(i) to prevent oppr essive pretrial i ncarceration; (ii) to m inim ize anxiety and concern of the accused; a nd (iii) to lim it the possibility that the def e nse will be im

paired.’” Taylor , 162 So. 3d at 787 (¶16) (quoting

1 6Jenkins v. State , 947 So. 2 d 270, 277 (¶21) (Miss. 2006)). “Of these three interests, the last

is the m ost im

portant; and when violated the m ost prejudicial to the d ef endant.” C

ollins , 232
So. 3d at 746 (¶26) (quoting Hersick v. State , 904 So. 2d 116, 123 (¶18) (M i s s . 2 004)). “Generally , proof

of prejudice entails the loss of evidence, death of

witnesses, or staleness of an investigation.” McCormick v. State , 183 So. 3 d 898, 903 (¶21) (Miss. Ct. App. 2015) (quoting Sharp , 786 So. 2d at 381 (¶19)). M a y “ b e a r s the burden of s howing actual prejudice, since t h e d e f

e n d a nt i s clearly in the b est position to show p rejudice under this prong.” Reed , 191 So. 3d at 141 (¶19) (brackets and quotation m arks om itted). ¶39. May generally alleges t h a t h e s u f f e r e d “ a n x i e t y a n d c o n c e r n ” f r om pretrial incarceration. However, “the [ M ississippi] Suprem e Court has held that a def endant f ails to establish actual prejudice b y ‘sim ply repeating the f

actors to b e considered’ with ‘ n a r y a scintilla of e vidence to s upport his claim s.’” Collins , 232 So. 3 d at 7 46 (¶27) (quoting Taylor , 162 So. 3d at 787 (¶16)). Thus, May ’s g eneralized assertions d o not establish actual prejudice. Id. ¶40. May also asserts that h i s d e f e n s e w a s i mp a i r e d b e c ause “[ e]vidence was lost,

m em ories f

aded, and testim ony c oncerning the assault was rendered unreliable all due to the
f ive-y ear delay .” May specif ically claim s t hat he was prejudiced b ecause (1) a photo lineup

was lost; (2) Quave could not be f ound and did n ot t estif

y at t rial; and (3) McLard, the sole testif y ing ey ewitness, was unreliable due to the delay . W e address these issues in turn. ¶41. Investigator Nick Sonnier o f the Biloxi Police D epartm ent (BPD) t estif ied that, soon

1 7af

ter t he assault, BPD received i nf orm ation t hat the assailant’s n am e was David Cobb. 7 BPD then obtained a p h otograph of Cobb f rom another law enf

orcem e nt agency

and included it
in a six-person photo lineup. The lineup did not include May because May ’s nam e had not
y et s urf aced in the investigation. BPD showed the photo l ineup to McLard and Quave on the day o f the assault, but neither of them identif ied C obb (or any one e lse in t he lineup) as their assailant. Later that day , BPD ma t ched a f ingerprint in the house to May

. Sonnier then

crea t e d a new photo lineup that included May , a nd the next m o rning both Q uave and Birchf ield identif

ied Ma y a s the assailant. The new lineup was not shown to McLard because she had a lready been transported to t he University of South Alabam a Medical Center f or plastic surgery

on her f ace and ey e. ¶42. On appeal, M a y asserts that he was prejudiced because th e f i r s t photo lineup with Cobb was not retained. This argum ent is without m erit. To begin with, that l i n e u p is irrelevant and would not have h elped May ’ s case. It did not in c l u d e M a y , a n d no witness identif ied Cobb or any one else in it as the assailant. Moreover, the issue has nothing to do with a n y delay in b ringing May to trial. Sonnier testif ied that the lineup with Cobb was not saved as part o f BPD’s case f i le because May was not in it and it did not result in a positive identif ication. The lineup was not “lost” because of any later delay s in the trial. ¶43. Q u ave did not testif y at trial. At one point during the trial, t h e a s s i s t a n t d i s t r i c t attorney s tated t hat Quave could not testif y at tria l b e c a u s e he was “ in t he af f ected area of Houston,” presum ably ref erring t o f

looding in H o u s t o n , T e x a s. That is all that the record

7 A s n o ted ab o v e, Q u a v e k n ew M a y o n ly as “D av id ” an d d id n o t k n o w h is last n am e. 1 8discloses as to Quave’s absence. There is nothing to show that May wan t ed to call Quave

as a witness. Nor does May attem pt to explain how he was prejudiced by t he a bsence o f a victim /ey ewitness who had positively identif ied him as the assailant. ¶44. Finally , May ’ s claim that M c L a r d w a s n o t a r e l i a b l e w i t n e s s i s based on a

m isunderstanding of the record. May asserts that McLard’s “inability to identif y a suspect in the f irst six-pack lineup at Biloxi [ Regional] Medical [ Center]” is inconsistent with “her ‘absolute’ identif

ication of Mr. May as the assailant som e f ive y e ars later at t rial.” However, there is no inc o n s i s t e n cy . As explained above, the photo lineup shown to McLard did not include May , and McLard was not shown t he second lineup ( with May ) b eca u s e she had already been transported to A labam a f or additional m edical t reatm ent and surgery . There is nothing inconsistent or unreliable about McLard’s trial testim ony or her positive identif ication of May as h e r assailant. May f ails t o show that the delay had any im pact on McLard’s testim ony

or caused him

any sort of prejudice at trial. ¶45. “[ W ]e w ill n o t i n f e r p r e j u d i c e to the def

ense out of the ‘clear blue.’” State v. Magnusen , 6 46 So. 2d 1275, 1285 (Miss. 1994). Moreover, “a def endant f ails to establish actual prejudice by ‘sim

ply r epeating the f

a ctors t o b e considered’ with ‘nary a scintilla of evidence to support his claim s.’” Collins , 232 So. 3d a t 746 (¶27) (quoting Taylor , 162 So. 3d at 787 (¶16)). May has not established a ny actual prejudice w hatsoever. The absence of
any prejudice “weighs heavily against [ May ] and in f avor of the State.” DeLoach , 722 So. 2d at 518 (¶23); a ccord, e.g. , Smiley , 798 So. 2d at 589 (¶20).
CONCLUSION

1 9¶46. T o s u mma r i z e o u r d i s cussion of the Barker f actors, t he length of the de l a y i s
presum ptively prejudicial, and the reasons f or the delay weigh i n f

avor of May

—though only slightly because signif

icant delay s are also attributable to May and his trial counsel. May ’s dem and f or a speedy t rial also weighs in his f avor—but only slightly because he waited m ore than a y ear bef

ore he asserted his righ t a n d t h en, through counsel, repeatedly requested continuances. Finally , the absence of any actual prejudice weighs heavily against May

. ¶47. Smiley , supra , was another case in which the f irst three f

actors a ll w eighed in f

avor

o f t h e d e f

e n d a n t but the f

ourth weighed heavily in f avor of the State. First, t he delay of twenty

- seven m onths i n that case was presum p tively prejudicial. Smiley , 7 98 So. 2d at 588 (¶¶12-13). Second, the State f ailed to show “good cause f or the delay in bringing Sm iley to trial.” Id. at (¶15). Indeed, this Court took the “ opportunity to chastise the State f or . . . the absence o f good cause,” stating that “good cause” was “[ n]otably absent.” Id. at 589 (¶21). Third, Sm iley m ade t wo pr o s e dem ands f or a speedy t rial and later f iled t wo m otions to dism iss on that ground. Id. at ( ¶ ¶ 1 7

- 1 8 )

. Nonetheless, we held that Sm iley ’ s “f ail[ ure] to dem onstrate any prejudice whatsoever” “weigh[ ed] heavily a gainst [ him ] a nd in f avor of the
State.” Id. at 589 ( ¶20). W e then concluded: “Under the totality of t h e B a r k e r f actors,

w e i g h e d and considered together, we hold t hat the balance is struck in f avor of t he State

. There is no m erit to Sm iley ’s claim of d enial of a constitutional right to a speedy trial.” Id. ¶48. The balance of t he Barker f actors in this case is com

p arable. W e acknowledge that the overall delay in this case is considerably longer than in Smiley , but the second and third
f actors m ore clearly f

avored Sm iley than May

. Moreover, as in S miley , M ay has “f

ailed to

2 0dem onstrate any prejudice whatsoever.” Id. As i n Smiley , we conclude that “ the totality of

the Barker f

actors, weighed and considered together, . . . f avor . . . the State.” Id. ¶49. Smiley is consistent with decisio n s o f o u r S u prem e Court. For exam ple, in Flora , supra , the delay between arrest and trial exceeded t wo y ears, and the Suprem e Court held that the second and third f

actors also f

avored the d ef

endant. Flora , 925 So. 2d at 8 15-18 (¶¶62- 67). H o w e v e r, the Court held t hat “no actual prejudice existed,” and, “[ u]nder the totality of t he circum stan c e s , a n d upon exam ination and a naly sis of the Barker f actors,” the def endant’s “constitutional right to a speedy trial was not v i olated.” Id. at 8 18-19 (¶69). Sim ilarly , in Manix v. State , 895 S o. 2d 167 (Miss. 2005), the delay f rom indictm ent to trial

was m ore than f

our y ears, and the Suprem e Court h eld that the second a nd third f actors also
f a v o r e d t h e def

e ndant, if o nly slightly

. See id. at 172, 1 75-76 ( ¶¶4, 16-21). H owever, th e Court then held that the def e ndant “f ailed t o prove any actual prejudice” a nd t h a t t h e “absence of actual prejudice” “overwhelm ed” the other Barker f actors. Id. at 177 (¶¶23-24). Theref ore, the Court f

ound no violation of the right to a speedy trial. Id. 8 ¶50. Consistent with Flora and Manix , the absence of any p r e j u d i c e t o M ay ’s def

ense weighs heavily i n f

a vor of the State and outweighs t he other Barker f actors. Theref

ore, the trial court properly

denied May ’s m otion to dism iss the indictm ent. ¶51. AFFIRMED. BARNES, C.J., CARLTON, P . J ., GREENLEE, WESTBROOKS, TINDELL,

8 S ee a lso R eed , 1 9 1 S o . 3 d at 1 4 1 -4 2 (¶2 1 ) (f in d in g n o v io latio n in th e ab sen ce o f actu al p rej u d ice, alth o u g h tw en ty m o n th s e l a ps e d be t w e en a r rest an d trial an d th e seco n d an d th ird B a rker f

acto rs b o th slig h tly f

av o red th e d ef

en d a n t); M

cC a in v. S t a t e , 8 1 S o . 3 d 1 1 3 0 , 1 1 3 5 -3 6 (¶¶1 7 -2 1 ) (M iss. C t. A p p . 2 0 1 1 ) (sam e), a ff’d , 8 1 S o . 3 d 1 0 5 5 (M iss. 2 0 1 2 ). 2 1LAWRENCE AND C. WILSON, J J . , CONCUR. McCARTY, J., D ISSENTS WITH

SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J. McCARTY, J., DISSENTING: ¶52. Because the State violated David May ’s guaranteed right to a s peedy trial under any calculation, I m

ust respectf

u l ly dissent. Five y ears and three m o nths passed between the t im e May w as arrested and w hen he was f inally b rought to trial. Of this delay , a back-breaking 1,081 day s—or just shy of three y ears—are a t tributable to t he State. 9 A delay of this

m agnitude warrants autom atic reversal. ¶53. As the m ajority opi n i o n r e c o u nts, M ay s ought several continuances. However, the lion’s share of the delay s were attributable to the State. 10 T he m a jor ity f inds that “[ t]he

9 The dates used to calculate the length of delay are as f ollows: Date Length of Delay May ’ s indictm ent to his f irst m otion f

or a continuance 36 Docket congestion on Novem ber 14, 2013 to next trial date on May 18, 2015 562 Trial on May

18, 2015 rescheduled f

or October 3, 2016 152 Trial set f or October 3, 2016 rescheduled due to unspecif i ed reasons 205 Court unavailable on April 25, 2017 126

10 T h e trial co u rt d id n o t h o ld th e d elay b etw e en t h e arrest an d in d i ctm en t ag ain st th e S tate. B e cau se M ay f

ailed to ad d ress th e issu e in h is b rief , I ex clu d ed it f

ro m m y sp eed y trial calcu latio n . T h at said , I d o f eel th e n eed to ad d ress th e trial c o u rt’s r easo n i n g . T h e reaso n s f o r th e d e lay w e re a n o v ercro w d ed d o ck et an d d if f icu lty o b tain in g th e v ictim ’s m ed ical r eco rd s. C ro w d ed co u rts w eig h ag ain st t h e S tate as i t is th e S tate’s d u ty to b rin g a d ef en d a n t to trial. O b tain i n g e v id en ce is a b u rd en t h at g o es alo n g w ith th is d u ty

. T h e S tate is resp o n sib le f

o r o b tain in g its ev id en c e, an d an y d elay a s a r esu lt sh o u ld b e h eav ily w eig h ed ag ain st th e S tate. In th i s d a y an d ag e it is n o t d if f icu lt to o b tain m ed i cal reco rd s. T h ese are 2 2record does not provide any good cause f or the n ear seventeen-m onth delay between
Decem ber 2013 to April 30, 2015.” Maj. O p. ¶2 6

. This alone s hould satisf y the statute’s requirem ent f

or dism issal. ¶54. The trial court w as unavailable o n t h e t r i al d ate set f o r April 25, 2017. Generally , court unavailability f

or reasons such a s d o c k e t c ongestion w ill w eigh against the State, although not heavily

. Barker v. W ingo , 407 U.S. 514, 5 31 (1972 )

. H ere, the record states that the trial cou r t w a s u n a vailable but f ails to p rovide f

u rther e xplanation. Unexplained delay s weigh heavily against the St a t e . Rowsey v. State , 188 So. 3d 486, 4 94 (¶23) (Miss. 2015). ¶55. T h e ma

j o r ity goes on to hold that the eleven-m onth delay (due to a “coast event” ) only w eighed “slightly in f avor o f M a y a n d s l i g h tly against the State.” Maj. Op. ¶32. I respectf ully disagree. T here was no actual reason g iven by the State f or the delay

—and even if it were, it i s not an o vercrowded d ocket and t heref o re should not be weighted equally

. Rather, this delay

should weigh heavily

against the State. ¶56. W h en discussing t he f o urth f actor, prejudice, the m a

j ority f inds that “the a

bsence of
any prejudice to May ’s d e f ense weighs h eavily in f

avor of the S tate and outweighs any of the Barker f actors. Theref

ore, the t r i a l c o urt p roperly denied May ’s m otion to dism iss this indictm ent.” Maj. Op. ¶50. The m ajority seem s t o h a v e the view t hat actual prejudice is

r e q u i r e d to establish a s peedy t rial violation. This reasoning is too shallow of a vie w t o take—and one that the Suprem e Court rejected over f orty

- f ive y ears ago.

ro u tin e task s th at all law y e rs can b e ex p ected to p erf o rm w i t h r e l a t i v e ease. In d if f eren t circu m stan ces th is co u ld v ery w e ll b e in clu d e d in a sp eed y -trial calcu latio n .

2 3¶57. In Moore v. Arizona , 4 1 4 U.S. 25, 2 5 ( 1973), a state su p r e me c o u r t h e l d t h a t a

def endant m ust show actual prejudice to establish a speedy trial violation. 4 14 U.S. 25, 25 (1973). Upon review, the U nited States Suprem e Court f ound this to be a m isinterpretation of Barker

. Id

. The Suprem e Court held that no one f actor alone is dispositive “and expressly rejected t he notion that an af f irm ative dem onstration o f p rejudice was necessary to prove a denial of the constitutional right to a speedy trial.” Id

. at 26 (citing Barker , 4 07 U .S. at 533). ¶58. Further, “when the l ength o f the delay is presum p tively prejudicial, the burden shif ts to the prosecution to produce evidence justif y ing the delay .” Bateman v. State , 125 So. 3d 616, 629 (¶43) ( Miss. 2013). As the m ajority notes, the delay of over f ive y ears in the case

a t hand is presum

ptively prejudicial. Maj. Op. ¶ 22; Smith v. State , 550 So. 2d 406, 4 0 8 (Miss. 1989) (holding that a n eight

- mo n t h d elay i s presum ptively p rejudicial). Because prejudice is presum ed in a delay so trem endous, the def e ndant does not have to s how actual prejudice. ¶59. Even though prejudice is presum ed and the burden is no longer o n M ay , prejudice still exists in t his case. May was incarcerated, which should be i nherently prejudicial. “Lengthy
exposure to [ the overcrowded and genera l l y d eplorable] conditions [ o f local j ails] has a destructive ef

f ect on hum an c haracter and m akes the rehabilitation of the i ndividual of f ender

m uch m ore dif

f icult.” Barker , 407 U.S. at 512. ¶60. The right t o a speedy trial shields not just t h e i n d i v i d u al but also s ociety as well. Delay ed t rials result i n a l arge backlog of cases which in turn e nable def endants to negotiate

m ore ef f ectively and otherwise m a nipulate the sy stem

. Id. F urtherm ore, def endants released

2 4on bond a re given am ple t im e t o c o mmi t other crim es. I d

. It is f

or this reason that Mississippi state law provides that “all of 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.” Miss. Code Ann. § 99-17-1 (Rev. 2 014). A def e ndant not brought to trial within this tim e f ram e, unless good cause shown, i s entitled t o dism issal o f the charges against him

. Id .; Dies v
. State , 926 So. 2d 910, 9 1 4 (¶7) (Miss. 2006). As the m a jority points out, May did not i nvoke the s tate statute. Yet all the 270 day law does is illustrate and def ine the right to a speedy

trial. ¶61. The right to a speedy trial is one of

the cornerstones of

our f reedom s as Am ericans.

“ T h e h i s t o ry of the right t o a s peedy trial a n d i ts reception in this country clearly establ i s h that i t i s one of the m ost basic r ights preserved b y our Constitution.” K lopfer v. State of

N.C , 386 U .S. 2 13, 226 (1967). As t h e United S tates Suprem e Court explained, the right to a speedy t rial can b e traced t o “the very f oundation of our English law h eritage”—back to the Magna Carta, written over 800 y e ars ago. Id . at 223. ¶62. From t h at ancient b eginning it traveled to the co l o n i e s , w h e r e a t the birth of our country “the Virginia Declaration of Rights of 1776 provided ‘a m an h ath a right to a speedy trial

. ’ ” I d

. at 225. The Court acknowledged that e v en at “ this early period in our history ,” the right was already

considered f

undam ental. Id

. ¶63. W e m

ust not let this bright light dim af ter centuries of p recedent. It should certainly not be doused given the three y ears of delay in this case. This is not a close decision—the only r esult under the Constitution is to reverse.

2 5¶64. For these reasons that I m ust respectf

ully dissent. McDONALD, J., JOINS THIS OPINION.

2 6