McBride v. State
| Docket Number: | 2008-CT-01347-SCT Linked Case(s): 2008-KA-01347-COA ; 2008-KA-01347-COA ; 2008-CT-01347-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 05-12-2011 Opinion Author: Waller, C.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Sexual battery - Right to speedy trial - Sufficiency of evidence Judge(s) Concurring: Carlson, P.J., Randolph, Lamar and Pierce, JJ. Non Participating Judge(s): King, J. Dissenting Author : Dickinson, P.J., With Separate Written Opinion Dissent Joined By : Kitchens and Chandler, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-20-2008 Appealed from: Coahoma County Circuit Court Judge: Charles E. Webster Disposition: The jury returned a verdict of guilty, and McBride was sentenced to twenty-fve years in the custody of the MDOC. McBride filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. District Attorney: Laurence Y. Mellen Case Number: 2006-0021 |
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| Note: | The decision of the Court of Appeals from May 04, 2010, can be found at http://www.mssc.state.ms.us/Images/Opinions/CO62956.pdf. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Jerry McBride |
OFFICE OF INDIGENT APPEALS: W. DANIEL HINCHCLIFF |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LISA LYNN BLOUNT |
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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: | Sexual battery - Right to speedy trial - Sufficiency of evidence |
| Summary of the Facts: | Jerry McBride was convicted of sexual battery and sentenced to twenty-five years. He appealed, and the Court of Appeals affirmed. The Supreme Court granted certiorari. |
| Summary of Opinion Analysis: | Issue 1: Right to speedy trial McBride argues that he was denied his constitutional and statutory rights to a speedy trial. Factors to consider whenever a defendant alleges that his constitutional right to a speedy trial has been violated include the length of delay; reason for the delay; whether the defendant asserted his right; and prejudice to the defendant. McBride’s constitutional right to a speedy trial attached when he was indicted on May 30, 2006. His trial, however, did not occur until February 19, 2008 – a delay of almost twenty-one months. The delay here is thus presumptively prejudicial. The initial, seven-month delay should not be weighed against the State. Substantial evidence supports that the sheer timing of McBride’s indictment and arrest practically foreclosed the setting of any trial date during these first seven months. McBride’s case was not set for trial during either the January-to-February 2007 term or the July-to-August 2007 term. The trial court attributed this to negligence or oversight on the part of the State. The trial court, however, found no evidence to suggest that the State had acted deliberately or intentionally. Based on the docket sheet and the representations of the State, there is substantial evidence to support that McBride’s case was set for trial during the November 2007 miniterm, but that it was not tried then due either to an overcrowded docket or the unavailability of one of the State’s witnesses. McBride’s case finally was set for trial on January 22, 2008. But since one of the State’s witnesses was unavailable for trial on that date, both parties agreed to reset the case for trial on February 19, 2008. In sum, there is substantial, credible evidence to support the trial court’s conclusion that the reasons-for-the-delay factor should weigh against the State, but not heavily. A significant portion of the delay – ten months at least – was due to negligence or oversight by the State. But, as the trial court noted, there is no evidence to suggest that the State acted deliberately. More than a year and a half after being indicted, McBride filed a pro se motion for directed verdict of acquittal, alleging, in part, that his constitutional and statutory rights to a speedy trial had been violated. He filed a similar pro se motion the following month as well. Though McBride sought dismissal of his case, he never demanded a trial. It is clear that McBride never sought to have his case heard; he simply wanted it dismissed. The trial court specifically questioned McBride as to whether he had suffered any prejudice because of the delay. McBride’s only response was that the events were “fresher” in his mind a year ago. McBride failed to show actual, significant prejudice from the delay. Given this evidence, McBride’s constitutional right to a speedy trial was not violated. Because McBride failed to assert his statutory right to a speedy trial, and because he showed no prejudice in the ability to conduct his defense, he acquiesced in the delay and waived his right to now complain that his statutory right to a speedy trial was violated. Issue 2: Sufficiency of evidence McBride argues that the State failed to prove that the sexual battery occurred “on or about or between January 2002 and December 2005,” as charged in both the indictment and offense-tracking instruction. He argues that the only evidence introduced at trial was that the victim was eleven years old during the time of the sexual battery, and since she was born on November 11, 1989, the incident could not have occurred within the range of dates set forth in the indictment and offense-tracking instruction. Both the indictment and the offense-tracking instruction reflected that the sexual battery occurred “on or about or between January 2002 and December 2005.” But the offense could not have occurred within these specific dates if the victim had been eleven years old at the time it happened. She maintained at trial that she was “around eleven” at the time of the first incident. She added at one point, though, that she “could have been twelve.” She acknowledged that, in December 2005, she told a Department of Human Services interviewer that she had been thirteen or fourteen at the time of the first incident. She explained at trial, however, that she had not been sure of her age at the time of the DHS interview. Her difficulty recalling exact times and dates is not uncommon in child-abuse cases. She turned twelve on November 11, 2001. Thus, if she had been eleven at the time of the first incident, the incident would have had to have occurred between November 11, 2000, and November 11, 2001. The sexual battery then feasibly could have occurred the first week or so of November 2001 – two months or so before January 2002. The date(s) proven at trial may within reasonable limits vary from date(s) alleged in the indictment. In defining “reasonable limits,” a court must consider whether the defendant had adequate notice of the charge(s) against him so that he was able to prepare his defense and not be surprised at trial. The court must also consider whether the defendant is protected against a second prosecution for the same offense. Basically, the variance in dates must not unfairly prejudice the defendant. In this case, the State’s failure to establish that the sexual battery occurred precisely within the January 2002 to December 2005 timeframe did not prejudice McBride in any way. For example, he never asserted an alibi defense; thus, any failure to prove the alleged dates could not have affected or hampered such a defense. Moreover, he does not allege inadequate notice of the charges against him, contend that he was unfairly surprised, or raise double-jeopardy concerns. Where, as here, “on or about” language is used in an indictment, the government is not required to prove an exact date(s) so long as a date reasonably near is established. Because a period of two months is within reasonable limits of, or reasonably near, the January 2002 to December 2005 timeframe, the variance between the indictment and offense-tracking instruction and the proof at trial does not render the evidence insufficient to support McBride’s conviction. |
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