holding that the defendant’s statement that he shot the victim “out of fear for [his] own life” was not admissible because it was not against his penal interest
How later courts described this case
- holding that the defendant’s statement that he shot the victim “out of fear for [his] own life” was not admissible because it was not against his penal interest
- holding that when a defendant shows presumptively prejudicial delay, the burden shifts to state to show reason for delay
- where the defendant never demanded a speedy trial and waited 931 days to file a motion to dismiss, this factor favored the State
Written by the judges who cited it.
The opinion
DICKINSON, Presiding Justice,
dissenting:
¶ 66. After conceding that the first two Barker factors favor Bailey, the majority finds that the final two favor the State: (1) whether the defendant asserted his right; and (2) whether the delay prejudiced the defendant. The majority resolves this stalemate by considering the “totality of the circumstances” and finds that the State wins. But I find that three Barker factors favor Bailey and that his right to a speedy trial was violated.
¶ 67. First, the majority holds that because Bailey moved to dismiss his case, as opposed to demanding a speedy trial, he failed to assert his right — and the majority weighs this factor in the State’s favor. But this Court has long held that a defendant has no duty to bring himself to trial. 10 *326 If a defendant does demand a speedy trial, however, “points are placed on his side of the ledger.” 11 So if Bailey is not required to demand a speedy trial — but given credit if he does — it is illogical to hold that the failure to do so favors the State. Instead, as here, this factor remains neutral; it favors neither party.
¶ 68. Second, the majority holds that Bailey suffered no “actual prejudice” and that a defendant must prove that some prejudice — such as lost evidence or diminished memories — impaired the outcome of the trial. Because Bailey was unable to offer proof of prejudice, the majority holds that this fourth factor favors the State. But as I stated in a previous dissent, a defendant is not required to make an affirmative showing of prejudice to win a Barker analysis. 12 And if an affirmative showing is not required, how can the failure to do so score points for the State? Proving actual prejudice, like demanding a speedy trial, adds points to a defendant’s ledger; while the failure to do so benefits neither party.
¶ 69. But here, the prejudice factor is not neutral. Prejudice is presumed. Bailey’s trial was delayed 931 days — a delay that, as the majority puts it, “far exceeds the eight-month mark” 13 when prejudice is presumed. And once presumed, it became the State’s burden to rebut Barker’s three prejudice interests. 14 The majority places this burden on Bailey, when it was actually on the State. And because the State failed to meet its burden, I find that three of the four Barker factors favor Bailey, and his constitutional right to a speedy trial was violated. Therefore, I would reverse.
KITCHENS, J., JOINS THIS OPINION.
. State v. Magnusen, 646 So.2d 1275, 1283 (Miss.1994); Barker v. Wingo, 407 U.S. 514, 527 , 92 S.Ct. 2182, 2190 , 33 L.Ed.2d 101 (1972).
. Magnusen, 646 So.2d at 1283 .
. Johnson v. State, 68 So.3d 1239, 1253 (Miss.2011) (citing Moore v. Arizona, 414 U.S. 25, 26 , 94 S.Ct. 188 , 38 L.Ed.2d 183 (1973)).
.Maj. Op. at ¶ 45.
. Barker, 407 U.S. at 532 , 92 S.Ct. 2182 . ((1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3) impairment of the defendant’s defense).