Dora v. State
| Docket Number: | 2005-CT-00487-SCT Linked Case(s): 2005-KP-00487-COA ; 2005-KP-00487-COA ; 2005-CT-00487-SCT ; 2005-CT-00487-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-12-2008 Opinion Author: RANDOLPH, J. Holding: THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS REINSTATED AND AFFIRMED |
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| Additional Case Information: |
Topic: Possession of more than thirty grams of cocaine - Comment on failure to testify - Right to speedy trial Judge(s) Concurring: SMITH, C.J., EASLEY, CARLSON AND LAMAR, JJ. Dissenting Author : DICKINSON, J., with separate written opinion. Dissent Joined By : WALLER AND DIAZ, P.JJ., AND GRAVES, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-23-2004 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: Lee J. Howard Disposition: Conviction of possession of more than thirty (30) grams of cocaine and sentence of sixty (60) years, as a habitual offender, in the custody of the Mississippi Department of Corrections, and payment of a fine of $2,000,000. District Attorney: Forrest Allgood Case Number: 2001-0665-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | TERRY DORA |
TERRY DORA (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Possession of more than thirty grams of cocaine - Comment on failure to testify - Right to speedy trial |
| Summary of the Facts: | Terry Dora was found guilty of possessing more than thirty grams of cocaine. The circuit court sentenced him to sixty years as a habitual offender. The Court of Appeals reversed and remanded for a new trial. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Comment on failure to testify Dora argues that the circuit court erred in denying Dora’s motion for mistrial based on Dora’s claim that the prosecutor commented on his failure to testify. What is prohibited is any reference to the defendant’s failure to testify implying that such failure is improper, or that it indicates the defendant’s guilt. There is a difference between a comment on the defendant’s failure to testify and a comment on the defendant’s failure to put on a successful defense. The state is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to the defendant’s failure to testify by innuendo and insinuation. Furthermore, not every comment regarding the lack of any defense is automatically deemed to point toward the defense’s failure to testify. Taken in context with Dora’s theory of the case, the prosecutor’s statement was a permissible comment on the absence of evidence to support Dora’s defense. The prosecutor’s statement neither referred to Dora’s failure to testify, nor by masked implication suggested Dora’s silence was evidence of guilt. Issue 2: Right to speedy trial There is no dispute that Dora raised the speedy-trial issue for the first time on appeal. When the constitutional speedy-trial issue is raised for the first time on appeal, the Court can only decide this issue if it views it as plain error. Absent the plain-error criteria being satisfied unequivocally, appellate courts are loath to address issues not presented to the trial court. Dora’s claims neither establish a plain-error basis to justify further appellate review, nor evidence a miscarriage of justice. |
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