IN THE SUPREME COURT OF MISSISSIPPI NO. 2009-KA-00560-SCT MICHAEL TAY

LOR a.k.a. MICHAEL A. TAY

LOR

v. STATE OF MISSISSIPPI
DATE OF JUDGMENT: 03/09/2009 TRIAL JUDGE: HON. TOMIE T. GREEN COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN GEORGE T. HOLMES ALICE THERESA STAMPS VIRGINIA LYNN W ATKINS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 04/30/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. The C ircuit Court of Hinds County convicted Michael Tay lor of a g gravated assault and sentenced him

to f ive y ears. On appeal, Tay lor’s counsel f iled a L indsey brief

, stating that she had identif

ied no appealable issues. 1 A f ter an i ndependent review o f t he record and the brief s, we conclude that there are no reversible issues.

1 L in d sey v. S t a te , 9 3 9 S o . 2 d 7 4 3 (M i ss. 2 0 0 5 )

.Facts and Procedural History

¶2. On January 6, 2007, Michelle Finney arrived at a child’s b irthday party a nd parked her

car on t he st r e e t , b locking Michael Tay lor’s car in a driveway

. An argum ent and f istf ight ensued. Af

ter b y standers broke up the f ight, Tay lor shot Finney

in the arm and f

led. Two day s later, T a y l o r was a t f riend’s house when law enf o rcem ent of

f i cers arrived to execute unrelated arrest warrants. T ay lor w as detained af ter he t ried to f

lee out a window in the back of the house. The of

f i c e r s brought every one present to t he living r oom and searched f or
weapons. An investigator noticed a black c oat on the couch, which Tay lor claim e d. Upon discovering a handgun and narcotics in the jacket, the of f icers a rrested T ay lor f

o r p ossessing the narcotics and f

or being a f

elon in possession of a f

irearm

. Later that day , police obtained an arrest warrant f

o r Tay lor’s alleged aggravated assault on Finney

. ¶3. In May 2007, a Hinds County grand j ury indicted Tay l or f or the aggr a v a t e d a s s ault

on Finney and f

o r being a f

elon in p ossession of a f

irearm o n the day of the a s sault. Eighteen

m onths passed f

rom the tim e Tay lor was i n d i cted until h is trial. He raised a speedy trial claim in the circuit court, but it was d enied by the trial judge. Tay l or’s trial was held in
Decem ber 2008. The jury returned a g u i l t y v erdict on the aggravated-assault c h arge; the
f elon-in-possession charge was retired to t he f iles. T ay lor was sentenced to f i ve y ears in the custody of the Mississipp i Departm ent of Corrections with three y ears suspended. On appeal, T ay lor’s counsel f i led a b rief stating that she had identif ied no appealable issues. The
Court r eviewed t he r ecord and requested supplem ental brief ing, which t he p arties subm itted.
Discussion

2¶4. The instant appeal is governed by Lindsey v. State , 939 So. 2d 743 (Miss. 2005), in

which the Court established the p rocedure to be f ollowed when “appellate counsel represents

an indigent crim inal def

endant and d o e s n o t b e l ieve h is o r her client’s case presents any arguable issues on appeal.” Lindsey , 939 So. 2d at 748 (¶ 18).
F i rst, appellate c ounsel “m ust f ile and serve a brief in com pliance with M i s s i s s i p p i R

u le o f Appellate Procedure 28(a)(1)-(4), (7)[ .]” [ Lindse y , 9 3 9 S o . 2d at 748 (¶ 18)]. Second, counsel m ust certif y in his or her brief

that: there are no arguable issues supporting the client’s appeal, and he or she has reached this conclusion a f ter scouring the record thoroughly , s pecif

ically exam ining: (a) t he reason f or the arrest and t he circum stances surrounding arrest; ( b) any p os s i b l e violations of the client’s right to counsel; (c) th e entire trial t ranscript; (d) all rulings of the trial c ourt; (e) possibl e prosecu t o r i al m isconduct; (f ) all jury instructions; ( g) all exhibits, whether a dm itted into evidence or n ot; and (h) possible m i sapplication of the law in sentencing.
Id. Third, c ounsel m

ust send a c opy of h i s b r ief t o t he d ef endant, inf

orm the def endant that counsel c ould not f ind any appealable issues, a n d advise the client of the right to f

ile a pro se b rief

. Id. Fourth, t he appellate court will determ ine, based on its review of the record and any p ro se brief f iled, if there is a ny arguable issue. Id. If so, the c ourt will require appellate counsel to subm it supplem ental brief ing on that i s s ue, “regardless of the probability of the def endant’s s u c c e ss on appeal.” Id. Last, “[ o]nce brief ing is com

plete, the appellate court m

ust consider the case on the m e rits and render a decision.” Id. Easley v. State , 46 So. 3d 345, 347 (¶ 1 1) (Miss. 2010). See also L yons v. State , 125 So. 3d 653, 656-57 (¶¶ 12-13) (Miss. 2013). ¶5. Tay lor’s counsel com plied with the requirem ents set f orth in Lindsey and f

iled a brief stating that she had scoured the r e c o rd and had identif i ed no appealable issues. The State agreed that the c ase w as devoid of arguable issues and asked that T a y lor’s conviction and

sentence be af

f i rm ed. Tay lor did not f

ile a pro se brief

. Pursuant to L i n d

s e y , t h e Court

3r e v i e w e d the record and requested supplem ental brief ing o n two issues – one issue bei n g whether Tay lor’s right to a s peedy trial was violated. A f ter reviewing the brief

s and the record, we conclude that there are no issues that warra n t r e versal. B ecause the dissent disagrees on the speedy -trial issue and addresses that issue in depth, we provide o ur analy sis as well. ¶6. Speedy

- trial claim s are analy zed under the Barker test, which requires a balancing of
f our f actors: (1) lengt h o f d e l ay ; (2) r easons f or the delay ; ( 3) def

endant’s a ssertion of his right to a speedy

trial; a nd (4) prejudice to the def endant. B arker v. Wingo , 407 U.S. 514, 530 (1972). The B arker Court explained that each case m ust be considered “ on an ad hoc basis” and that i t sought only t o “identif y som e of the f

actors which courts should assess in determ ining whether a particular d ef endant has been deprived of h is right” to a speedy trial.
Id. The Court wrote:
W e regard none of the f

our f act o r s i d e n t i f

i ed above a s either a n ecessary or suf f icient condition to the f

inding of a d eprivation of the right of speedy trial. Rather, they are related f actors and m

ust be consid e r e d together with such other circum stances as m ay b e r e l e v ant. In sum , these f actors have no talism anic quali t i e s ; courts m ust s till engage in a dif f icult a nd sensitive balancing process.
Id. a t 533. See also Batem an v. State , 125 So. 3d 616, 633 (¶ 5 9) (Miss. 2013) (the Barker f actors m ust be balanced “along with other relevant circum s tances”).
1. Length of Delay ¶7. Both parties recognize that f if teen m onths elapsed f

rom the d ate Tay lor was indicted
in August 2007 until h is trial in Decem ber 2008. However, T ay lor was in custody f or several

m onths p rior to being indicted, creating a total delay o f eighteen m onths or 550 day s. The

4Court has h eld that a “delay o f e i g h t m onths or longer is p resum ptively p rejudicial.”
Johnson v. S

tate , 68 So. 3d 1239, 1242 (¶ 7) (Miss. 2011) (citing Sm ith v . State , 550 So. 2d 406, 408 (Miss. 1989)). The J ohnson C ourt w rote: “[ L]et u s be clear[ : ] when the delay is
presum ptively prejudicial that does not m ean that actual p rejudice t o t h e d ef endant exists. Rather, actual p r ejudice is determ i ned at a dif f erent point in the Barker analy sis.” J ohnson , 68 So. 3d at 1242 (¶ 7). Thus, a d elay exceeding eight m onths serves to trigger an analy sis of the rem aining Barker f

actors. Id.
2. Reasons for the Delay ¶8. The only reason f

or t he d elay c i t ed by the State and evident f r om the record is the congested docket. The Court has he l d r e p e a t e dly that “[ d]elay s caused by overcrowded d o c k ets are not to be w eighed heavily a gainst t he State.” State v. Magnusen , 6 4 6 S o . 2 d 1275, 1282 (Miss. 1 994) (citing Adam s v. State , 583 So. 2d 1 65, 169 (Miss. 1991)); Kinzey

v. State , 498 So. 2d 81 4 , 8 1 7 ( M i s s. 1986) (did not weigh in f avor of def

endant because overcrowded d ockets were “good cause f or continuance”); B ailey v. S tate , 463 So. 2d 1059,
1062-63 ( Miss. 1 9 85). 2 Speedy -trial claim s are r aised f requently in Hinds County

2 I n B a iley v. S

ta te , t h e C o u r t r e co g n ized th at w h en t h e d elay is th e resu lt o f u n in t en tio n al cau ses, i n clu d in g a cro w d ed d o ck et o r th at t h e g ran d j u ry d id n o t co n v en e d u rin g a certain term , th e d ef en d a n t m u st sh o w p rej u d ice f

o r th e reaso n -f

o r-d elay f acto r to b e w eig h ed ag ain st th e S tate. B a iley , 4 6 3 S o . 2 d at 1 0 6 2 -6 3 ( citin g D i d d lem eyer v. S

ta te , 3 9 8 S o . 2 d 1 3 4 3 , 1 3 4 4 -4 5 (M iss. 1 9 8 1 ) ( “T h e d elay in th e trial resu l ted f ro m th e f act t h at th e g ran d j u ry w as n o t i n sessio n w h en th e crim e w a s co m m itted an d b ecau se o f a cro w d ed d o ck et. It w as n o t an u n r e aso n ab l e d elay i n trial, ap p ellan t h as n o t sh o w n p r ej u d i ce, an d w e f in d n o m e rit in th is co n ten tio n . ”); M a co n v. S ta t e , 2 9 5 S o . 2 d 7 4 2 , 7 4 4 (M iss. 1 9 7 4 ) (“T h e reaso n f o r th e d e lay w a s th at a g r a n d j u r y w as n o t called f o r th e M ay term

. T h e reco rd is ab sen t o f an y sh o w in g th at d ef en d an t w a s p rej u d iced

. T h e r e f o r e, th e C o u rt h o ld s th at th e d ef en d a n t w as n o t en titled to b e d isch arg ed o n th e a sserted g ro u n d t h at h e d id n o t receiv e a sp eed y trial.”)). In B a iley , th e C o u rt h eld t h a t u n in ten tio n al d elay s

– in th at case, th e g ran d 5prosecutions, and the crowded docket is alm ost alway s at l e a s t part of the reason f or the delay

. I n Travis v. State , 1 3 S o . 3 d 320 ( M iss. Ct. App. 2008), nearly three y ears passed
f rom arrest to trial, and the delay was due, in p art, to the crowded docket. Travis , 13 So. 3d

at 326-27 (¶¶ 18, 22). The Court o f Appeals held t hat Travis did not suf f er prejudice and that his right to a speedy trial was not v io l a t e d

. I d . a t 330 (¶ 32). Then-Chief Judge King recognized, “W h ile lam e ntable, it is nonetheless true that courts in the m ore p opulated areas of o ur state m aintain a crim i nal docket which is so large that delay in bringing def endants to trial is a ruef

ul by product.” Id. at 329 (¶ 28). ¶9. In Jenkins v. State , 947 S o. 2d 2 7 0 ( M i s s . 2 0 0 6 ) , t h e ma j ority of the delay

was

“ a t t ributed to either the state crim e lab or the private com pany subsequently hir e d t o

com plete the DNA testing requested by t h e State.” Jenkins , 947 So. 2d at 2 77 (¶ 17). Recognizing t hat t he delay s were unintentional and caused prim arily by t he crim e lab, which

was “an instrum entality of the State,” the Court held that the reason-f or-delay f actor did not f avor either party

. I

d. a t 277 ( ¶¶ 17-18). See also Manix v . State , 8 95 So. 2d 167, 176 (¶¶ 18-20) ( Miss. 2005) (f

actor weighed only slightly against the State where delay s r e s u lted
f rom crim e lab backlog and replacem ent of the prosecutor); G r ay v. State , 728 So. 2d 36, 48 (¶ 34) ( Miss. 1998) (delay due to wait f or D NA evidence f

rom FBI crim e lab “weigh[ ed]
very slightly , if at all, in f a vor of the def

endant”) (citing Hull v. State , 687 So. 2d 708, 730 (Miss. 1996)); Magnusen , 646 So. 2d at 1281 (reasons f or delay included: congested trial

j u ry n o t b ein g co n v en ed , n eg lig en ce in serv in g a w arran t , an d a cro w d ed d o ck et

– m u st b e co n sid ered “w ith th e rem in d er th a t p rej u d ice m u st b e sh o w n f

o r M a co n an d D id

d lem eyer n o t to ap p ly .” B a iley , 4 6 3 S o . 2 d at 1 0 6 3

. 6docket, unavailability of evidence, heavy

case load, delay s caused by the crim e laboratory , several d elay s attributed t o the def endant, and u navailability o f the judge; Court h eld that the reason-f or-delay f actor f avored the State slightly , or “[ a]t the very least, it weigh[ ed] equally against the State and the def e ndant”). Because the crowded d ocket was the only r eason f or the delay in the instant case, the f

actor weighs only

slightly against the State, if

at all.
3. Defendant’s Assertion of the Right ¶10. Tay lor m ade a speedy

- trial de m a n d i n A u gust 2008, approxim ately f if teen m onths af ter his arrest and o ne y ear af ter he was indicted; his trial was held three-and-a-half m onths af ter he m ade the dem and. “Although i t is the State’s duty to ensure that t he def endant receives a speedy trial, a def endant has som e responsibility to assert this right.” Batem an , 125 So. 3d at 6 30 ( ¶ 49) (quoting Taylor v. State , 672 So. 2d 1246, 1261 (Miss. 1996)). “This
Court has held that a d e f e n dant’s f

ailure to dem and a speedy trial between his arrest and indictm ent is ‘critical’ to the analy sis of a speedy -trial claim .” Batem an , 125 So. 3d at 630 (¶ 49) (citing State v. Woodall , 801 So. 2 d 678, 6 84 (Miss. 2001)). An d t h e Court has weighed t he instant f

actor against def

endants who, although they e ventually asserted the right, allowed a “signif

icant am ount of tim e” to p ass af ter arrest bef

ore dem anding a speedy trial. Batem an , 125 So. 3d at 630 (¶ 48). ¶11. In Batem an , t he def endant asserted his right to a speedy trial two day s af

ter he was arraigned, but he had been in custody f or 310 d ay s at that tim e . Id. at 631 (¶ 50). The Court noted that the trial court acted prom ptly af ter Batem an’s d em and on February 8 , setting his trial date f

o r A p r i l 26 – only two-and-a-half m onths later. Id. Because Batem an did not

7assert his right to a speedy trial between his a rrest and his indictm ent, the Court h eld that he

had f ailed to assert it “in a tim ely m anner and of f ered no evidence of his inability to do so[ ,]” and the C o u r t w e i g h e d the instant f actor a gainst Batem an. Id. Likewise, the Court of Appeals weighed the assertion-of

- the-right f

actor against a def

endant where he renewed his dem and f or a speedy trial on Apr i l 6, and trial “was prom ptly scheduled and held” the
f ol l o w i n g mo n t h on May 24. McGee v. State , 928 So. 2d 250, 255 (¶ 19) (Miss. Ct. App. 2006). The Court of Appeals weighed the f actor only slightly in the def endant’s f avor where the d ef endant d e m anded a s p eedy trial two-and-a-half y ears af ter arrest and indictm ent, and thereaf ter “his case was prom

ptly assigned to the court’s docket, and he was brought to trial about six m onths later.” Gray v. State , 926 So. 2d 961, 972-73 (¶¶ 28, 3 2) (Miss. Ct. App. 2006). ¶12. Tay lor did not d em a n d a s p e e d y t rial between his arrest a nd indictm ent; rather, he

m ade the dem and one y ear a f t e r h e w a s indicted. T he trial court then a cted prom ptly in

set ting Tay lor’s trial date f or a short three-and-a-half m onths af ter he m a de the dem and. Based on t he Court’s precedent, the instant f actor could be weighed against Tay l or because
h e f ailed to dem and a s peedy trial in a tim e ly m anner. However, because Tay lor d i d eventually m ake a dem and, and because the State a nd the t rial court prom ptly responded, the
f actor is neutral.
4. Prejudice to the Defendant ¶13. The Court of

ten has held that prejudice did n ot result and, thus, the def endant’s right to a speedy

trial was not violated, where the delay was equal to or greater t han the delay in

8the instant case. In Johnson v. State , 680 day s passed f rom Johnson’s arrest t o his trial. The delay was presum

ptively prejudicial, but the only reason f or the delay w as an overcrowded docket, and Joh n s o n f

a i l e d t o show actual prejudice r esulting f rom the delay , so the Court held that his right to a speedy trial had not been violated. J ohnson , 68 S o. 3 d at 1242-46 (¶¶ 8-22). In Moffett v. S

tate , the delay totaled 1,656 day s, “ [ t ]hus, a p resum ption of prejudice ar[ ose], triggering an analy sis of the other t hree f actors (reason, assertion, and prejudice).” Moffett v. State , 49 So. 3d 1073, 1087 (¶ 37) (Miss. 2010). The State cited valid r easons f or the delay , the def

endant h ad not t im ely asserted his right to a speedy trial, and the prejudice
f actor leaned o nly slightly in the def endant’s f avor. Id. a t 1 087-88 (¶¶ 38-41). W eighing all of the f a ctors, t he C ourt h eld that the def endant’s right to a speedy t rial had not b een violated.
Id. at 1088 (¶ 42). ¶14. The Court has held that a “delay of 1,430 d ay s, while extrem e, did no t v i o l a t e [ a def endant’s] statutory right to a speedy trial.” M anix v. State , 895 So. 2d 167, 175 (¶ 15) (Miss. 2005). In Manix , m ost of the de l a y “ r e s u l t e d f rom t he crim e lab backlog or appointm e nt of new c ounsel,” s o the reason-f o r-delay f a ctor weighed only slightly against the S tate. Id. at 176 (¶ 20). As to prejudice, Manix claim ed that th e d e l a y r e s u l t ed in “negative em otional, social, and econom ic im pacts on h is lif

e.” Id. at 1 77 (¶ 23). However, “Mississippi case law d oes n ot recognize such imp a c ts as prejudice.” Id. The Court held that M a n ix’s ri g h t t o a speedy trial was not v iolated because “any presum ptive prejudice Manix m ay have suf

f ered is overwhelm ed by the a bsence of a c tual prejudice.” Id. at 177 (¶ 24).

9¶15. In Sharp v. State , 786 S o. 2d 372 (Miss. 2001), the delay am ounted to 731 day s, but

the d ef endant w as largely responsible f or the delay s. Regarding prejudice, the Court wrote: The only prejudicial ef

f ect Sharp alleges was caused by t he dela y w as his incarceration f

or n early two y e ars without a trial. G enerally , proof of prejudice entails the loss of evidence, death of witnesses, or staleness of an investigation. “The possibility of im

pairm ent of the def

e nse is t he m ost serious consideration in determ ining whether the def endant has suf

f e red prejudices a s a result of delay .”

. . . In the present case, these things did not change; the t rial unf olded the sam e as if it had been held m uch earlier.

. . . “ [ T]he entire drug transaction was recorded o n a v ideo tape that was viewed by t he jury , [ Sharp’s] potential def enses were lim ited, and no real im p airm ent can be c laim e d in t his case.”

.

. . I n addition, t his Court has held that incarceration a lone i s not e n o u g h t o warrant a reversal. . . . [ H ]is entire argum e nt is unconvincing. Sharp , 786 So. 2d at 381 (¶ 19) (internal citations om itted). L ike the argum e nts in Manix and Sharp , Tay lor’s prejudice argum ent is unconvincing. ¶16. To determ ine whether the delay resulted in actual prejudice, the Court considers three interests that the right t o a speedy trial was m eant to protect: “(i) t o prevent o ppressive pretrial i ncarceration; (ii) to m inim ize anxiety and c o ncern of the accused; a nd (iii) to lim it the possibility

that the def

ense will be im

paired.” Jenkins v. State , 947 So. 2d 270, 277 (¶ 21) (Miss. 2006) (quoting Mitchell v. State , 792 So. 2 d 192, 213 (Miss. 2001); Barker v. Wingo , 407 U.S. 514, 532 (1972)). Tay lor c l a i ms t hat the “ m ost obvious prejudice” he

s uf f ered was “oppressive pretrial i ncarceration a nd the anxiety and concern of a w a i t i n g t r i a l

. ”
He also claim s that his “ d e f ense w as inherently p rejudiced” because he was incarcerated. Tay lor is sim

ply r epeat i n g t h e f

actors to be considered, and he provides nary a s c intilla of evidenc e t o s u p p o r t h i s claim s. The Court “will n ot indulge in an assum ption

. . . that [ T a y l o r ] e xperienced anxiety a nd concern f rom his incarceration.” Johnson , 6 8 So. 3d a t

1 01245 (¶ 17). Finally , Tay lor asserts that the delay resulted in his inability to s ecure an alibi

witness. However, he identif ied no such witness, and he provided n o support to substantiate the claim

. The Court has held that, generally , “proof of prejudice entails the loss o f e vidence, the death of witnesses, or the staleness of an investigation.” Jenkins , 947 S o. 2d a t 277 (¶ 21) (citing Sharp , 786 So. 2d at 381). Tay lor f ailed to show how his def e n se was im

paired by the delay . The prejudice f actor weighs against Tay lor.
5. Balancing the Barker f actors ¶17. The length of d e l a y i s p r e s u mp tively prejudicial and serves to t rigger the Barker analy sis. T he reason f

or t he d e lay being the crowded docket w eighs only slightly a gainst the State, if at all. Assertion of the right to a speedy trial is n eutral. The actual-prejudice f actor

w e ighs strongly against Tay lor. Because the o ther f actors are n eutral or o nly sl i g h t l y i n Tay lor’s f

avor, at best, t he unquestionable lack of actual prejudice o u t w e i g hs the other
f actors. “[ W ]here, as here, the delay is neither intentional nor egregiously protracted, and where there is a com

plete absence of actual prejudice , t h e b a l a n c e is s truck in f avor of rejecting [ t h e d e f

e n dant’s] s peedy trial claim .” Watts v. State , 733 S o. 2d 214, 236 (¶ 67) (Miss. 1999) (quoting R hym es v. State , 638 So. 2d 1 270, 1275 (Miss. 1994)). Balancing all th e Barker f

actors – and c onsidering the overwhelm ing p recedent of what c onstitutes
p r e j u d i c e and the undisputed absence of actual prejudice here – leads to a h olding t h a t Tay lor’s right to a speedy a trial was not violated.

1 1¶18. Pursuant to Lindsey v . S t a t e , t h e C o u r t h a s r eviewed the brief s and conducted an independent and thorough review of the record, and we c o nclude that there are no issues that warrant reversal. Tay lor’s conviction and sentence are af f irm ed. ¶19. CONVICTION OF A GGRAVA T E D A S S A U L T A N D S E N T E N CE OF FIVE (5) YEARS, WITH THREE (3) YEARS SUSPENDED , AND FIVE (5) YEARS SUPERVISED P ROBATION, WITH CONDITIONS, I N THE CUST O D Y OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. RANDOLPH, P.J., LAMAR, CHANDLER, AND P IERCE, CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P .J.; K ITCHENS, J., JOINS IN PART. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION J OINED BY KITCHENS A ND KING, JJ.; WALLER, C.J., JOINS IN PART. WALLER, CHIEF JUSTICE, DISSENTING: ¶20. Because I believe that T ay lor’ s c o n stitutional right to a speedy trial w as violated, I respectf ully dissent. I join Presiding Justice Dickinson’s dissent in part only to the extent that he f inds that a speedy -trial violation occurred under the f acts of this specif

ic case. DICKINSON, P .J., JOINS THIS OPINION. KITCHENS, J., JOINS THIS OPINION IN PART. DICKINSON, PRESIDING JUSTICE, DISSENTING: ¶21. Michael Tay lor was arrested January 8, 2007. He f iled a m o tion f

or a speedy trial on August 21, 2008, a nd m oved t o dism iss on speedy -trial grounds Novem b er 6, 2008. W hen his trial began o n D ecem ber 1, 2008, he asked the t ri a l j u d g e to a ddress h is m otion to dism iss. Rather than a naly ze t he speedy -trial issue by apply i ng the Barker v. Wingo 3 f actors, the trial judge provided the f ollowing dism issive rem arks:

3 B a rk er v. W

i n g o , 4 0 7 U .S . 5 1 4 , 9 2 S . C t. 2 1 8 2 , 3 3 L . E d . 2 d 1 0 1 (1 9 7 2 ).

1 2THE COU R T : I’ll give y ou tim e to argue because I want us to hurry up and

f inish w ith this. I’m letting her m a ke a record f or it because he’s got a speedy date, and it’s going today , but I’ll let her argue the m o tion f or her record. ¶22. The t rial judge’s s tatem ents clearly indicate she n ever intended to prot e c t—or even consider—Tay lor’s speedy -trial rights. In f act, the com m e n ts evince t he trial judge’s view that, in Hinds County , Tay lor should be thankf ul he was given a trial at all. ¶23. Ta y l o r ’ s appellate counsel did no better than the trial j udge, passing on the opportunity

even to brief that issue to this C ourt, and today ’s m ajority would not have addressed it at all, had I not subm itted this dissent. 4 So it seem s that speedy -trial jurisprudence in this state is

so predictable that m any f eel the issue is not worth addressing. 5 W ithout apology , however, I shall continue to address it as I have bef ore. 6 ¶24. Here, the m ajority continues this Court’s historic indif f e r ence toward this im

portant constitutional right and exposes a f undam ental f

law in the paradigm thr o u g h which this Court has consistently viewed speedy -trial c laim s: that this f undam e n tal, constitutional right m ust

4 “Because the dissent d isagrees on the speedy -trial issue and addresses that issue in depth, we provide our analy sis as well.”

5 S ee W ells v. S ta te , N o . 2 0 1 2 -K A -0 1 7 8 1

- S C T , 2 0 1 5 WL 5 7 4 7 6 1 (M iss. F eb

. 1 2 , 2 0 1 5 ) reh ’g d

en ied (A p r il 3 0 , 2 0 1 5 ) (n o t y et released f o r p u b l icatio n i n th e p erm an en t law rep o rts) (f

in d in g n o v io latio n o f th e rig h t to a sp eed y trial w h e re th e S tate f ailed to b rief th e issu e o n ap p eal).

6 S ee M yers v . S ta t e , 1 4 5 S o . 3 d 1 1 4 3 , 1 1 5 2 (M iss. 2 0 1 4 ) (D i ck in so n , P

. J., co n cu rrin g in p art an d d issen tin g in p art) (“If h isto ry teach es u s an y th in g , it is th at th is C o u rt h as little in terest in a d ef

en d an t’s co n s titu tio n al rig h t to a sp eed y trial”); J o h n so n v. S

ta te , 6 8 S o . 3 d 1 2 3 9 , 1 2 4 7 (M iss. 2 0 1 1 ) (D ick in so n , P

. J

. , d i s sen tin g ) (“[ T ] o d a y ’s f in al, f atal b l o w m ercif u lly p u ts th e c rim in al-d ef en se b ar o u t o f its m isery

. Wh ereas p rev io u s d ecisio n s h av e b een less th an clear, to d ay ’s p lu rality o p in i o n is as su b tle as a s tick o f d y n am ite— th e S ix th

A m en d m en t rig h t

to a sp eed y

trial in M ississip p i is d ead .”).

1 3take a back seat to the desire to punish those w ho are alleged t o have com m itted crim es. To

that end, this Court’s decisions consistently have f ound w ay s to contort, twist, a nd repackage the speedy -tria l t e st articulated b y the United States Suprem e Court in Barker 7 to f it the preconceived certainty of doom f or all speedy -trial claim s in this State. ¶25. I did not w rite our Constitution, and n either did any Justice o f this Court. But those who did inf

used it with the idea that the sovereign m ay not em p l o y a n y and all m eans calculated to convict the accused. Rather, we h ave enshrined in our Constitution the notion that som e of the collective power available to im pose a s ocietal c ode o f c o n d u c t

— t he law—m ust give way

to certain individual rights that are m o re im portant than a conviction. And am ong those individual rights f ound in our Constitution is the right to a speedy trial. ¶26. W i th little success, I have tried to kindle som e m odicum of concern f or that right on this Court. Although discouraged, I ref use to lay down m y pen, recog n i z i n g f u l l w ell that this opinion will join m

y previous ones in the boney ard of dissents that f

ell on deaf

ears. I
too loathe the reality that in som e cases—because of errors b y law e nf orcem ent, the prosecutor, the d ef

ense counsel, or the t rial court—a person who com m itted a crim e m ay go f ree. But I loathe even m ore the though t t h a t w e s h ould m ove sy stem ically toward elim inating that risk by ignoring im portant c onstitutional rights in order to obtain and uphold convictions. That view, history teaches, inevitably leads to ty

ranny . ¶27. If in the p revious paragraphs I have not b een p erf ectly clear, let m e sim

ply state that
I believe the Constitution and m y oath of of f ice require m e to zealously protect constitutional

7 B a rk er , 4 0 7 U .S . at 5 3 3

. 1 4rights, e v en where that protection is unpopular under a particular set of f acts. I recognize that
I a m b ound to apply the binding precedent of t he United States Suprem e Court i n B a r k e r , which m any of the opinions cited by the m ajority have f ailed to do. This I will try t o d o . Wi t h those thoughts in m ind, I would f ind that T a y lor’s right to a speedy trial i ndeed was violated, and I would reverse his conviction. So I respectf ully dissent.
I. The B arker Decision and this Court’s Speedy -Trial Precedent ¶28. The constitutional right t o a speedy trial, guaranteed by t he Sixth Am endm ent to the United S tates Constitution 8 and Article 3, Secti o n 2 6 o f the Mississippi C onstitution, 9
attaches “at the tim e o f a f orm al indictm ent or inf

o rm a t i o n o r e l s e the actual restraints
im p osed by arrest and holding to a crim inal charge.” 10 W e are required to analy ze speedy

trial claim s t hrough the f

ram ework set out by the United States Suprem e Court i n B arker v. Wingo

. 11 ¶29. The B arker test balances f our f actors: (1) the length of the delay , (2) the reason f or the delay , (3) the d ef

endant’s assertion of his right, a n d (4) the prejudice to the d ef endant. 12
The Barker Co u r t a l s o h eld that the f our f actors “m ust be c onsidered together with such other circum s tances a s ma y be relevant,” and that “because w e a re dealing with a

8 U .S . C o n st. am en d . V I.

9 M iss. C o n st. art. 3 , § 2 6

. 10 H a n d l ey v. S ta te , 5 7 4 S o . 2 d 6 7 1 , 6 7 4 ( M iss. 1 9 9 0 ) (q u o tin g L ig h tsey v. S ta te , 4 9 3 S o . 2 d 3 7 5 , 3 7 8 (M iss. 1 9 8 6 ), su p erced ed b y sta tu te o n o t

h er g ro u n d

s ).

11 H a n d ley , 5 7 4 S o . 2 d at 6 7 4 (citin g B a r k er , 4 0 7 U .S

. at 5 1 4 )

. 12 B a rk er , 4 0 7 U .S

. at 5 3 0

. 1 5f

undam ental right of the accused, this process m ust be carried out with f

ull recognition that the accused’s interest in a speedy trial is specif

ically af f i rm e d in the Constitution.” 13
W hack-A-Mole Jurisprudence ¶30. Unf

ortunately , this C ourt has not f aithf ully ap p l i e d t

h e B a r k e r b a l ancing test. Today ’s

m ajor i t y p rovides an excellent analy s is o f t his C ourt’s opinions over the y ears, which

seem ingly have p lay ed W hack-A-Mole with the B arker f actors. Every tim e a f

actor pops up that appears to f

avor the def

endant, this Court whacks it into conf o rm ity with the desire to af f irm

. ¶31. For instance, when t he Barker Court articulated the f irst prong of its test—the length of the delay

— it stated that “[ u ]ntil there is s o m e delay which is presum ptively prejudicial, there is no necessity f

or inquiry into the other f actors that g o i n t o t he balance.” 14 In 1991, this Court f

ound that th e p r e s u m

p tively prejudicial threshold of eight m onths 15 shif ted the burden to the State, stating specif ically that “[ w]here the del a y h as been presum ptively prejudicial, the burden f

a lls upon the prosecution.” 16 ¶32. B u t this obvious conclusion—that “presum ptively prejudicial” m eans p r e j u d i c e i s
presum ed, shif

ting t he burden to t he State—did n o t s i t well with later m ajorities. W hen it

13 Id . at 5 3 3

. 14 Id . at 5 3 0

. 15 J o h n s o n , 6 8 S o . 3 d at 1 2 4 2 (citin g S m ith v. S ta te , 5 5 0 S o . 2 d 4 0 6 , 4 0 8 (M iss. 1 9 8 9 )).

16 S ta te v. F e rg u so n , 5 7 6 S o . 2 d 1 2 5 2 , 1 2 5 5 (M iss. 1 9 9 1 ), a b ro g a ted b y J o h n so n , 6 8 S o . 3 d at 1 2 4 3

. 1 6began to appear that def e ndants w ere experiencing long delay s —som e f or y ears—and som e

w e r e c om ing dangerously close to winning a speedy -trial m otion, this Court changed directions by announcing that “presum ptively pre

j u d i c i a l ” d o e s n o t r e a l ly m ean that prejudice is p resum ed, and am azingly , that “presum ptively p rejudicial” has nothi n g t o d o with the “prejudice” f

actor of the Barker

analy sis. 1 7 ¶33. So, today , the phrase “presum ptively prejudicial”—taken f

rom Barker i tself

—does

not m ean what it say s. B ut I b elieve Barker’s statem ent can be read o nly one way : “presum ptively prejudicial” m

ust m ean that prejudice is presum ed. ¶34. Another exam

ple is f ound in this Court’s analy sis of the “reason f or the delay ” f

actor.
In Barker , the United States Suprem e Court stat e d t h a t , while a deliberate a ttem pt by the
governm ent to stall trial m ust weigh heavily

against the State, [ a] m ore neutral reason such as neg l i g ence o r overcrowded courts should be weighted less h eavily but nevertheless should be c onsidered s ince the ultimate responsibility for such circumstances m ust r est with the government r ather than with the defendant .” 18 ¶35. So, a c c o r d i n g to Barke r, a trial court’s crowded docket weighs the reason-for-thedelay f a c tor against t he State, although not as h e a v ily as it would in cases w here the State deliberately stalls the trial. That idea was not popular here. In cases where def endants have shown t hat long delay s were not their f ault, this C ourt say s that “in the absence of a showing of prejudice t o the d ef

endant, a delay attributable solely to [ c r o w d e d dockets] does not

17 J o h n so n , 6 8 S o . 3 d at 1 2 4 7

. 18 B a rk er , 4 0 7 U .S

. at 5 3 1 (em p h asis ad d ed ). 1 7violate the def endant’s right to a speedy trial.” 19 But under Barker , this delay weighs against the State regardless of

prejudice. ¶36. H e r e i s a n o t h e r o n e . Under the third p rong—the def endant’s a sserti o n o f h i s right—the Barker Court stated t hat “[ a] def e n dant has n o duty to bring h im self to trial; the
State has tha t d u t y a s well as the duty of insuring that the t rial is consistent with due
pro c e s s . ” 2 0 And, while a def endant m ust dem and a speedy trial to win this f actor, the Suprem e Court h as m ade it quite clear that the tim ing of the def e ndant’s assertion should not weigh against him

because: Since under the d em and-waiver rule no tim e runs until the dem and is m ade, the governm e nt will h a v e w h atever tim e is o therwise reasonable to bring the def endant to trial af

ter a dem and has been m a de. Thus, if the f irst dem and is m ade t hree m o nths af

ter arrest in a jurisdiction which prescribes a six-m onth rule, the prosecution will have a total of nine m onths—which m ay be wholly unreasonable under t he circum stance s . T he result in practice is likely t o be either an autom atic, p ro f orm a dem and m ade im m ediately af ter appointm ent of counsel o r d e l a y s w hich, b ut f or the dem and-waiver rule, w ould not be tolerated. Such a result is not consist e n t with t he interests of d ef endants, society , or the Constitution. 21
This i s a clear rejection of this C ourt’s view that because the def endant “f ailed to assert his right to a speedy

trial in a tim e ly

m anner . . . , we m

ust weigh this f

a c tor against” him

. 22

19 B a iley v. S

t a te , 4 6 3 S o . 2 d 1 0 5 9 , 1 0 6 2 -6 3 (M i ss. 1 9 8 5 ) (citin g M a co n v. S ta te , 2 9 5 S o . 2 d 7 4 2 (M iss. 1 9 7 4 ); D id d l em eyer v. S ta te , 3 9 8 S o . 2 d 1 3 4 3 (M iss. 1 9 8 1 )).

20 B a rk er , 4 0 7 U .S

. at 5 2 7

. 21 Id . at 5 2 7

- 2 8

. 22 B a tem a n v. S ta te , 1 2 5 S o . 3 d 6 1 6 , 6 3 1 (M iss. 2 0 1 3 )

. 1 8¶37. Finally , this Court’s r e cent precedent on the f ourth prong—prejudice—conf licts with
Barker in several w ay s. F irst, a s discussed above, r ecent m a j orities sim

ply r ef use to presum e prejudice f

rom a presum

ptively p rejudicial delay

. Second, this C ourt has f ound the existence of “ actual prejudice” is required f or a speedy -trial claim

. For i nstance, in Johnson v. State , the def endant clearly won on three Bark e r f a c tors—length of delay , reason f or delay , and assertion of the right. 2 3 And in addressing the prejudice f actor, the m ajority s aid “‘that where the delay i s neither intentional nor egregiously protracted, and there is an absence of actual prejudice to the def

ense, the balance is struck in f avor of rejecting a speedy

trial claim .’” 24
In other cases, this Court has g o ne even f urther and said that a n y prejudice caused by “incarceration alone i s not e nough to warrant a reversal” 2 5 and that “[ a] def endant’s assertion of prejudice attributable solely to incarceration, with no other harm , t y pically is not suf

f icient to warrant reversal.” 26 ¶38. This stands in clear contradiction to the United States Suprem e Court’s f inding that:
W e regard none of the f

our f actors identif

ied a b o v e a s e i ther a n ecessary or suf f icient c ondition t o the f

inding of a deprivation of t he right of speedy trial. Rather, t h e y are r elated f actors and m

u st be c onsidered together with such ot h e r c i r c u m s tances as m ay be relevant. In sum , these f actors have no talism anic qualities; courts m ust still eng a g e in a dif f icult a nd sensitive balancing process. 27

23 J o h n so n , 6 8 S o . 3 d at 1 2 4 1

- 4 6

. 24 Id . at 1 2 4 6 (q u o tin g S

teven s v. S ta te , 8 0 8 S o . 2 d 9 0 8 , 9 1 8 (M iss. 2 0 0 2 )).

25 S h a rp v. S ta te , 7 8 6 S o . 2 d 3 7 2 , 3 8 1 (M iss. 2 0 0 1 ) ( citin g M cG ee v. S ta te , 6 0 8 S o . 2 d 1 1 2 9 , 1 1 3 0 (M iss. 1 9 9 2 ); R o ss v. S ta te , 6 0 5 S o . 2 d 1 7 , 2 3 (M iss. 1 9 9 2 )).

26 R o ss , 6 0 5 S o . 2 d at 2 3

. 27 B a rk er , 4 0 7 U .S

. at 5 3 3

. 1 9Stated another way , courts m ay not pick o ut o ne f actor, such as p rejudice, and hold that the def endant m ust win on it to prevail on a s p eedy -trial claim

. T h e o p p o s i t e i s the law in Mississippi. A def

endant who cannot show actual pr e j u d ice cannot win a speedy -trial

m otion, even though the State has won on no f actor. 28 A nd this statem ent has m eaning f or the def endant and m eaning f

or the State. As to the def endant, i t is not “necessary ” to show prejudice to win. And f

or the State, a showing of prejudice, no m atter how pronounced, is not “suf f icient” f or a reversal. ¶39. As a f

inal exam ple, a m ajority of this Court holds that “Mississippi c ase law does not recognize [ negative em otional, social, a nd econom ic] i m p acts [ of incarceration] as prejudice.” 29 This view stands in stark contrast to the Barker C ourt’s specif ic statem ent that:
W e have discussed previously the societal disadvantages of lengthy p retrial incarceration, but obviously the disadvantages f or the ac c used who cannot obtain his release are e ven m ore serious. The tim e spent in jail awaiting trial has a detrim ental im

pact on the individual. It of ten m eans loss of a job; it disrupts f am ily lif e; and i t enf

orces idleness. Most ja i l s o f f e r little or no recreational or rehabilitative program s. The t im e s p ent in jail is s im ply dead tim e. . . . Finally , even if an accused is n ot incarcerated p rior to trial, he i s s t ill disadvantaged by restr a i nts on his liberty and by living under a cloud of anxiety , suspicion, and of ten hostility

. 3 0 ¶40. In sum , i t is clear that this Court has shown little regard f or binding precedent f

rom the United States Suprem e Court interpreting a protection guaranteed by the United States Constitution. I will now attem pt f aithf ully to apply that precedent.

28 J o h n so n , 6 8 S o . 3 d at 1 2 4 6

. 29 M a n ix v. S ta te , 8 9 5 S o . 2 d 1 6 7 , 1 7 7 (M iss. 2 0 0 5 ).

30 B a rk er , 4 0 7 U .S

. at 5 3 2

. 2 0II. The Correct B arker Balancing Test Applied to this Case ¶41. The m aterial f

acts i n this c ase are not dispu t e d

. Tay lor was arrested on January 8, 2007, and held on other charges until M ay 31, 2007. At that tim e he was s e t to be released, but he rem ained in custody because he had been indict e d f o r t he present charges. He dem anded a speedy trial o n A ugust 21, 2008, and m o ved to dism iss on speedy -trial grounds

on Novem

ber 6, 2008. His trial b e g a n o n D e cem ber 1, 2008. No party ever requested a continuance. On these f

acts, I m ust conclude that Tay lor was denied his constitutional right to a speedy

trial. Length of the Delay ¶42. The speedy -trial clock begins t o r u n a t the a rrest. 31 Tay l or w as arrested January 8,
2007. But his arrest stem m ed f rom his possession of a f

irearm and n arcotics on that day , not the charges precipi t a t i ng this appeal. Instead, t he parties agree that T ay lor w as “released”

on the unrelated charges May 31, 2007, but rem ained in custody f or the present charges. So Tay lor was ef

f ectively arrested f

or these charges that day , and the speedy -trial clock began

to r un then. From May 31, 2007, until t he trial began on Decem b er 1, 2008, 550 day s, or eighteen m onths, elapsed. ¶43. Any delay that exceeds e ight m onths is presum p tively prejudic i a l

. 3 2 So this prong weighs i n Tay lor’s f

a vor. But the circu i t j u d g e wholly f ailed e ven to recognize Tay lor’s
presum p t i v e ly prejudicial d elay , let alone b alance it with other f actors. The f

ollowing

31 H a n d ley , 5 7 4 S o . 2 d at 6 7 4 (citin g S m ith , 5 5 0 S o . 2 d at 4 0 8 )

. 32 J o h n so n , 6 8 S o . 3 d at 1 2 4 2 (citin g S m ith , 5 5 0 S o . 2 d at 4 0 8 ). 2 1excerpt f

rom t he record clearly dem onstrates n ot only the trial judge’s dism issive and

erroneous view of Tay lor’s r ight to a s peedy trial, but her inappropriate prejudgm ent of his claim of error and f

ailure to recognize this presum ptive prejudice:
THE COURT: I ’ll give y ou tim e to argue b ecause I w ant u s t o hurry up and f inish w ith this. I’m letting her m a ke a record f or it because he’s got a speedy date, and it’s going today , but I’ll let her argue the m o tion f or her record.
So the trial judge erred in f ailing to view the length of delay as presum ptively prejudicial and
in f a iling to weigh this f

actor against the State. Reason for the Delay ¶44. Neither party requested any continuance in this case. Instead, Decem b er 1, 2008, was the only date ever set f

o r trial. W hen ruling on the m o tion to dism iss, the trial j udge stated:
W i th ref e rence to the dem and f

or a s peedy trial, the Court is going to deny the m otion to d ism iss f

or f a ilure to provide a speedy t rial. T his case was indicted in May of 2 0 0 7

. A lthough it’s been over a y ear since that tim e, t here’s c i r cum stances both relative to this Court’s docket in term s of the speedine s s of him getting a trial bef

ore 12 of his peers. The Court f

inds that there is no prejudice. T h e r u les state that there is arose [ sic] circum stances t hat are outlined that are well within the rules o f law which provide that there has been no violation. ¶45. So the t rial judge’s o nly statem ent concerning t he reason f or t he delay was her cry

ptic ref erence to “circum stances b oth relative to this Court’s d ocket in term s of the speediness of
him getting a trial bef

ore 12 of his peers.” Tay lor was not told what those “ c ircum stances”

were. 33 Neither party

presented any

evidence of

another reason.

33 A s th is case d em o n strates, th is C o u rt a ssu m es— as a m a tter o f law w i th n o p ro o f req u ired

— th at H i n d s C o u n t y C ircu it C o u rt d o ck e t s are p erp etu ally cro w d ed

. T h i s h as n o t g o n e u n n o ticed b y t h e S tate, w h ich h as learn ed th at, in H in d s C o u n ty , it w ill w in th e “reaso n f o r th e d elay ” B a rk er

f acto r w ith o u t b o th erin g to o f

f er an y p ro o f

o r arg u m en t. In lig h t o f 2 2¶46. This Court has stated that “[ w]here the def endant has n ot caused the delay , and where the prosecution has declined to show good cause f o r the delay , w e mu s t w e igh this f actor against the prosecution.” 34 Here, it is indisputable that Tay l or did not cause the delay , and the prosecution s howed nothing at all with respect to the d elay

. And the Barker Court noted that the prosecution ultim ately bears the burden to ensure that the cas e g o e s to trial. 35 So, where unexplained “circum stances” cause the delay , this f actor m ust b e weighed against the
State. 36 ¶47. The trial j udge seem ed to m isapprehend this p rong. At the outset of the speedy -trial
argum ents, this exchange occurred between Tay l or’s attorney and the trial judge: MS. LEGGETT: Also, Your Honor, f or the r ecord, I would like to argue the m otion to dism i ss based upon f ailure to provide a speedy trial.
THE COURT: T his was by August of this y ear, and i t ’s an ’07, and it’s t wo counts. You m ay

proceed brief

ly because it’s quite speedy in Hinds County

. ¶48. T h e s e dism i ssive com m ents expose two f acts a b out how t he trial j u d g e a n a l y z e d Tay lor’s s peedy

- trial c l a i m . F i r s t , s h e w e i g h e d t h e r e a s o n-f

or-the-delay f

actor against Tay lor, and second, she believed a def e ndant’s r ig h t t o a speedy t rial was som ehow dim inished

th e seem in g ly d esp erate c o n d i tio n o f th e H in d s C o u n ty trial d o ck et, I f in d it i n t erestin g th at, o f t h e sev e n n ew trial-j u d g e p o sitio n s th e L eg islatu re created aro u n d th e S tate th is y ear, n o t a sin g l e o n e w as created in H in d s C o u n ty

.

34 H a n d ley , 5 7 4 S o . 2 d at 6 7 4 (q u o tin g P e rry v. S t a te , 4 1 9 S o . 2 d 1 9 4 , 1 9 9 (M iss. 1 9 8 2 )).

35 B a rk er , 4 0 7 U .S

. at 5 3 1

. 36 Id . 2 3because the case was f iled in Hinds County

. B o t h v i e ws expose f lawed constitutional reasoning. ¶49. In Barker , the United States Suprem e Court specif ically noted t hat a delay based on overcrowded dockets m

u st b e weighed against the State. 37 This, accord i n g t o the Barker Court, is necessarily so because the State ultim ately bears the burden to bring the a ccused to trial. 38 W hile it i s true that this reason m ay weigh against the State t o a lesser degree than an intentional delay on t he State’s part, we are r eq u i r e d by precedent f rom the United States Suprem e Court t o w e i g h t h i s f actor against the State. Hinds County v ery well m ay suf f er f rom crowded dockets. If that i s true, it is the State’s decision not to f u nd m o re courts and judges that m akes it so. The Defendant’s Assertion of His Right ¶50. It is undisputed that Tay lor dem anded a speedy trial on August 21, 2008, a nd m oved

to dism i s s t h e c h arges on Novem ber 6, 2008. In Jenkins v. State , this Court weighed this
f actor in the def

endant’s f avor when he asserted his right 433 day s af ter his arrest. 39 Here, Tay lor dem anded a speedy trial 448 day s a f ter his “release” on the unrelated charges and his “arrest” on the present charges. So I would weigh this f actor in Tay lor’s f

avor. Prejudice

37 Id .
38 Id .
39 J en k in s v. S ta te , 9 4 7 S o . 2 d 2 7 0 , 2 7 7 (M iss. 2 0 0 6 ). 2 4¶51. Any delay bey ond eight m onths is presum ptively prejudicial. 40 The State presented

no evidence in the trial court to rebut the presum ption of prejudice. So this f actor should be weighed in Tay l or’s f

avor. Other Relevant Factors ¶52. The Barker c ourt stated that the f our f actors “ m ust be considered together with such other circum stances as m ay be relevant.” 41 I would f ind that, in addition to the f our-f actor analy sis above, the trial judge’s dism issive rem arks and l ack of c oncern with Tay l o r ’s speedy

- trial claim

should be weighed against the State: MS. LEGGETT: Also, Your Honor, f or the record, I would like to argue the m otion to dism i ss based upon f ailure to provide a speedy trial.
THE COURT: This was by August of

this y ear, and it’s an ‘07 case, a nd it’s two counts. You m ay proceed b rief l y because it’s quite speedy i n Hinds County

.

. . . THE COURT: I ’ll give y ou tim e to a r g u e because I want us to hurry up and f inish w ith this. I’m letting her m a ke a record f or it because he’s got a speedy date, and it’s going today , but I’ll let her argue the m o tion f or her record. ¶53. These com m ents show the trial judge’s com p lete lack of o bjectivity o r concern f or the constitutional right to a speedy trial. And her rem a rks b order on bitterness and contem pt f or

a def endant who w ould dare raise such a claim in Hinds County

. S he begrudgingly allowed Tay lor’s counsel to create a record f or appeal, never intending actually t o consider Tay lor’s claim . Bef

ore any argum ent had been m ade, her decision had been m a de.

40 J o h n so n , 6 8 S o . 3 d at 1 2 4 2 (citin g S m ith , 5 5 0 S o . 2 d at 4 0 8 ).

41 B a rk er , 4 0 7 U .S

. at 5 3 3

. 2 5¶54. In sum , T a y lor suf f ered a p r e s u mp t i v e l y prejudicial delay , a nd the State has not rebutted the presum ed prejudice. The reason f or the d elay

—either unexplained or crowded dockets—m

ust lie a t the f

eet of the S t a t e , w hich ultim ately b ears the burden to bring the

a ccused to t rial. Tay l or asserted his right, and t he circuit judge m et his assertion with disinterest and contem

pt. A ll f our Barker f

actors w eigh in the d ef

endant’s f avor, and this

case presents a com

pelling additional circum stance which also s upports h is cause. So I m ust conclude that Tay lor’s right to a speedy trial was violated.
KITCHENS A ND KING, JJ., JOIN THIS OPINION. WALLER, C .J., JOINS THIS OPINION IN PART.

2 6