IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 2001-KA-01343-COA

MCKINLEY BELL APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF TRIAL COURT

JUDGMENT:

07/17/2001

TRIAL JUDGE: HON. FRANK G. VOLLOR

COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PATRICK JOSEPH MCNAMARA JR.

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: BILLY L. GORE

DISTRICT ATTORNEY: G. GILMORE MARTIN

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: BURGLARY OF A DWELLING, AS A VIOLENT

HABITUAL OFFENDER - LIFE WITHOUT BENEFIT OF

PAROLE

DISPOSITION: AFFIRMED - 10/22/2002

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

BEFORE THOMAS, P.J., MYERS, AND BRANTLEY, JJ.

BRANTLEY, J., FOR THE COURT:

¶1. McKinley Bell was convicted of burglary of a dwelling by a Warren County Circuit Court jury. Bell

appeals, arguing that the trial court erred by violating his constitutional and statutory right to a speedy trial

and in allowing in-court identification by two witnesses. In addition, Bell argues that the prosecution failed to

prove venue and that the trial court erred in taking judicial notice that Vicksburg is located in Warren

County. Finding no error, we affirm.

FACTS

¶2. On April 12, 2000, Patricia Steed and Mike Curtis, employees of Vicksburg Paint and Glass, observed

an African American male with long hair emerge from the woods behind the home of Teresa Reed which is

across the street from their business. They watched him for several minutes until they saw the man they later

identified as Bell leave the home pushing a lawn mower down the street and carrying a weed eater.
¶3. Bell was arrested and indicted for burglary of a dwelling and grand larceny. The grand larceny portion

of the indictment was quashed. During the trial both witnesses testified and identified Bell as the person they

saw at Reed's home taking away the mower and weed eater. In addition, several officers from the

Vicksburg Police Department along with the victim, Reed, testified as to the events and investigation. Bell

testified on his own behalf, denying any involvement in the crime.

¶4. The jury convicted Bell of burglary of a dwelling. A sentencing hearing was later held, at which time Bell

was adjudicated an habitual offender. Aggrieved, Bell appeals to this Court alleging several errors on the

part of the trial court.

ANALYSIS OF THE ISSUES PRESENTED

I. WHETHER THE TRIAL COURT ERRED IN DENYING BELL'S MOTION TO

DISMISS FOR VIOLATING HIS RIGHT TO A SPEEDY TRIAL.

¶5. Bell argues that the State violated his right to a speedy trial by failing to bring him to trial within the 270-

day period prescribed by statute and by the U.S. Constitution and as a result his case should have been

dismissed. However, the State contends that the delays were due to the Bell's own actions. The record

discloses the following pertinent dates:

04/28/00 arrest

07/18/00 indictment

07/20/00 arraignment

07/27/00 motion by defendant for psychiatric examination

08/11/00 order granting defendant's motion for psychiatric examination

10/02/00 psychiatric report completed

12/07/00 motion to reduce bond

01/30/01 notice of trial date for 6/4/01

05/01/01 motion to dismiss

undated letter demanding speedy trial

06/06/01 order denying motion to dismiss

06/07/01 order reducing bond

notice of trial date 06/25/01

06/14/01 renewal of motion to dismiss

06/20/01 motion to quash count II of indictment

motion to suppress evidence
06/25/01 trial date

1. Constitutional right to a speedy trial

¶6. Although Bell alleges both that his constitutional and statutory right to a speedy trial was violated, only

the statutory argument was pursued at the trial court level. At the June 14, 2001 hearing on the re-motion,

the statutory ground was only discussed by the defendant and ruled on by the court. The statutory right and

constitutional right are separate rights which require separate analysis. Simmons v. State, 678 So. 2d 683,

686 (Miss. 1996). Bell failed to acquire a ruling on the constitutional issue. "It is the responsibility of the

movant to obtain a ruling from the court on motions filed by him and failure to do so constitutes a waiver of

same." Martin v. State, 354 So. 2d 1114, 1118 (Miss. 1978). Therefore, the constitutional issue is

waived. Bell v. State, 733 So. 2d 372, 376 (¶11) (Miss. Ct. App. 1999).

2. Statutory right to a speedy trial

¶7. According to Mississippi law. "[u]nless good cause be shown, and a continuance duly granted by the

court, all offenses for which indictments are presented to the court shall be tried no later than two hundred

seventy (270) days after the accused has been arraigned." Miss. Code Ann. § 99-17-1 (Rev. 2000). The

analysis of the statutory right to a speedy trial is extremely fact specific and relies on whether the defendant

or prosecution caused the delays. Sharp v. State, 786 So. 2d 372, 377 (¶4) (Miss. 2001). Therefore, we

first must calculate the number of days between the arraignment and trial date not including the actual date

of the arraignment. Id. at 378 (¶5).

¶8. From arraignment to the date of trial, 339 days elapsed. However, sixty-seven of those days are

attributed to the defendant's request for a psychiatric evaluation which are charged against the defendant.

Elder v. State, 750 So. 2d 540, 543 (¶8) (Miss. Ct. App. 1999). Motions made and granted on behalf of

the defense are charged against them. Herring v. State, 691 So. 2d 948, 953 (Miss. 1997). After the

sixty-seven days attributed to the defendant are subtracted form the total days, the trial commenced on the

272nd day. Although, this would seem to be a violation of the defendant's right to a speedy trial, our

analysis does not end here.

¶9. The record is void of any explanation as to why the trial date was changed from June 4, 2001, which

was within the 270-day rule to June 25, 2001. Bell's original motion to dismiss was denied on June 7,

2001. Another motion was filed renewing his request for dismissal on June 14, 2001, and a hearing on the

motion was held on that same day. During the hearing, the court and the prosecution offered to reschedule

the trial date to an earlier date which would fall within the 270-day requirement. However, Bell's attorney

responded by stating that "to back track now to bring the defendant to trial before the date that the defense

was told to be prepared to go to trial, would - - would be wrong." Bell's response to the prosecution's offer

to change the date showed that Bell was not prejudiced by the delay, and apparently needed extra time to

prepare for the June 25, 2001, trial date. Again, no explanation appears in the record for the trial delay

from June 4, 2001, to June 25, 2001.

¶10. The Mississippi Supreme Court has held that the right to a speedy trial, whether constitutional or

statutory, is waivable. Anderson v. State, 577 So. 2d 390, 391-92 (Miss. 1991). To hold that the State

violated Bell's statutory right to a speedy trial when the defense refused the prosecution's and court's offer

to try the case within the 270-day time frame would place the prosecution in an impossible situation.

Instead, we find that Bell's refusal to reschedule the trial date to an earlier date which would have been
within the 270 days waived his right to a speedy trial.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT VENUE HAD BEEN

SUFFICIENTLY PROVEN.

¶11. At the close of the prosecution's case-in-chief, the defendant moved for a directed verdict arguing that

the prosecution had failed to prove that the crime occurred in Warren County. The trial judge overruled the

motion and took judicial notice that Vicksburg is located in Warren County. Bell argues that the trial court

erred because one of the officers that testified was not working as a Vicksburg police officer on the day of

the crime but as a security officer.

¶12. Several witnesses testified as to street names and that the crime occurred in Vicksburg. Officer Dowe,

the above mentioned officer, working as a security guard, was not the only person to testify as to the

location of the crime being in the city of Vicksburg. The eyewitnesses to the crime both testified that they

worked at Vicksburg Paint and Glass located on Holly Street. Testimony also revealed that the house that

was burglarized was located on Holly Street in Vicksburg.

¶13. A court can take judicial notice that a certain town or city is located within a certain county. See

Jackson v. State, 556 So. 2d 335, 336-37 (Miss. 1990). Accordingly, we find that the trial court was

correct in taking judicial notice that the crime occurred in Vicksburg which is located in Warren County.

III. DID THE COURT ERR IN DENYING BELL'S MOTION TO SUPPRESS

IDENTIFICATION EVIDENCE ARISING FROM AN IMPERMISSIBLY SUGGESTIVE

PRE-TRIAL PHOTOGRAPHIC LINE-UP?

¶14. The admission or exclusion of evidence is largely within the discretion of the trial court. Hentz v.

State, 542 So. 2d 914, 917 (Miss. 1989). A trial court's ruling on the admissibility of a witness

identification is reviewed for clear error. Neil v. Biggers, 409 U.S. 188, 200 (1972). This Court will not

reverse a trial court's denial of a defendant's motion to suppress a pre-trial photographic lineup identification

unless there was a substantial likelihood of irreparable misidentification. Wingate v. State, 794 So. 2d

1039, 1042 (¶8) (Miss. Ct. App. 2001).

¶15. An impermissibly suggestive pre-trial identification does not necessarily preclude an in-court

identification by an eyewitness who viewed the suspect at the procedure "unless: (1) from the totality of the

circumstances surrounding it, (2) the identification was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification." Buggs v. State, 754 So. 2d 569, 574 (¶22) (Miss.

Ct. App. 2000) (citations omitted). Five factors must be examined in order to determine whether this

standard has been met:

1. Opportunity of the witness to view the accused at the time of the crime;

2. The degree of attention exhibited by the witness;

3. The accuracy of the witness's prior description of the criminal;

4. The level of certainty exhibited by the witness at the confrontation;

5. The length of time between the crime and the confrontation.
Id.

¶16. We find that the photographic line-up viewed by Steed and Curtis was impermissibly suggestive. Bell's

photograph was the only one in which a person was depicted with long hair, in an orange jumpsuit and in

shackles or handcuffs. Therefore, we must go through each of the above five factors to determine whether

the trial court was correct in finding that there was not a substantial likelihood of irreparable misidentification

and allowing the in-court identification by Steed and Curtis.

1. Opportunity of the witness to view the accused at the time of the crime

¶17. Steed testified that she saw Bell on a number of occasions during a thirty to forty-five minute period.

She saw him come out of the woods twice at the back of the house. In addition, she saw him several times

around the house for a number of seconds each time. Then, she watched him as he left the home with the

lawn mower and weed eater.

¶18. Curtis testified that he saw Bell around the house twice. Each time was for a few minutes. He also saw

Bell as he pushed the lawn mower and carried the weed eater away from the house. Both witnesses had

ample opportunity to view Bell during the commission of the crime. The crime occurred during daylight and

across the street from Curtis's and Steed's workplace.

2. The degree of attention exhibited by the witness

¶19. Steed testified that Bell's actions attracted her attention. She found them to be suspicious enough to

watch his movements over the next thirty to forty-five minutes. Curtis testified that he paid attention to Bell's

actions for a few minutes on two occasions.

3. The accuracy of the witness's prior description of the criminal

¶20. Both Steed and Curtis described Bell as an African American male with long hair wearing a baseball

cap, camouflage jacket and brown pants. The only difference was that Curtis included an approximate

height and weight in his description. Their description on that day was accurate enough for one of the police

officers to respond that it sounded like Bell.

4. The level of certainty exhibited by the witness at the confrontation

¶21. Steed and Curtis both testified that they quickly chose Bell out of the line-up after looking at each

picture. Bell argues that they did not pay much attention to the photographs if no one noticed what he was

wearing or that he was in handcuffs. However, Steed and Curtis stated that they were looking at faces not

clothes. Both were certain that the man they picked out of the line-up was the man they saw on the day of

the crime. They additionally testified that they were certain that Bell was the man they saw pushing the

mower and weed eater down the street during their in-court identification testimony.

5. The length of time between the crime and the confrontation

¶22. Nineteen days had passed between the crime and the line-up. This Court has held that three weeks

was not too great a length of time to pass between the crime and the confrontation. Wingate v. State, 794

So. 2d 1039, 1043 (¶16) (Miss. Ct. App. 2001).

¶23. On review, we must determine whether taken as a whole these factors "give rise to a very substantial
likelihood of misidentification." York v. State, 413 So. 2d 1372, 1383 (Miss. 1982). Although we have

found that the line-up was highly suggestive, there is sufficient indicia of reliability in both Curtis's and

Steed's identification to withstand any suggestion of impropriety. In light of the foregoing reasons, we

conclude that substantial evidence supported the reliability of Curtis's and Steed's pre-trial photographic

identification and in-court identification of Bell, and the trial judge's admission of the identification did not

amount to clear error. This issue is without merit.

¶24. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF CONVICTION

OF BURGLARY OF A DWELLING AND SENTENCE AS AN HABITUAL OFFENDER TO

LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS

AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO WARREN COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,

IRVING, MYERS AND CHANDLER, JJ., CONCUR.