Dies v. State


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Docket Number: 2004-KA-01782-SCT

Supreme Court: Opinion Link
Opinion Date: 04-20-2006
Opinion Author: Cobb, P.J.
Holding: Affirmed

Additional Case Information: Topic: Possession of cocaine - Right to speedy trial - Suppression of evidence - Probable cause
Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson and Dickinson, JJ.
Non Participating Judge(s): Diaz and Randolph, JJ.
Concurs in Result Only: Graves, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 08-25-2004
Appealed from: Lowndes County Circuit Court
Judge: Lee J. Howard
Disposition: Appellant was convicted for possession of cocaine in the Lowndes County Circuit Court. He was sentenced to serve eight years and pay a $50,000 fine as habitual offender.
District Attorney: FORREST ALLGOOD
Case Number: 2002-0537-CR1

  Party Name: Attorney Name:  
Appellant: Kirby Dies a/k/a Kirby Donovan Dies




GARY STREET GOODWIN



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS  

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Topic: Possession of cocaine - Right to speedy trial - Suppression of evidence - Probable cause

Summary of the Facts: Kirby Dies was convicted of possession of cocaine and was sentenced to eight years and to pay a $50,000 fine as habitual offender. He appeals.

Summary of Opinion Analysis: Issue 1: Right to speedy trial Dies argues that his statutory right to a speedy trial was violated, but does not assert a constitutional violation. When the accused is not brought to trial within 270 days, absent good cause, the defendant is entitled to dismissal. Dies alleges that the State violated the 270-day rule when he was indicted on August 9 and arraigned on August 23, 2002 but not tried until August 23, 2004. The August 23, 2002, arraignment order was signed as “agreed” by state and defense counsel, and the trial was set for December 3, 2002. The trial court docket reflects that an agreed order of continuance was filed on December 4, 2002, apparently referring to an agreed order entered that date, setting Dies’ motion for a suppression hearing for February 10, 2003. A subsequent order, filed February 27, reset the suppression hearing for May 6, 2003, and counsel for both defense and prosecution agreed. An agreed order was signed and entered on May 13, 2003, stating that the state’s motion for trial setting, joined by the defendant, must be continued due to “case not set for trial/continued from motion day”, and setting for trial on May 27. Although the court docket indicates that an agreed order of continuance was signed and entered, nunc pro tunc, on May 30, 2003, continuing the trial date from May 27, 2003, until August 26, 2003, the order itself does not indicate agreement. Another order of continuance was signed and filed, nunc pro tunc, on September 5, 2003, which continued the trial until November 18, 2003. Dies failed to object to the State’s requests for continuances and only pursued his speedy trial right on June 3, 2004, after nine continuances had been granted. Even though the statutory 270-day rule exists to protect a defendant’s rights, it does not relieve the defendant from the obligation of vigorously pursuing them. In addition, the record leads to the conclusion that there was substantial evidence of real docket conflicts and congestion which meets the standard of “good cause shown”. Of the 731 days between the date of Dies’ arraignment and the trial, only 47 must be assessed solely to the State. Agreed continuances account for 281 days. Of the remaining delays, 76 days were attributable to Dies, and the remaining 327 days were excused for good cause shown. Thus, there is no merit to Dies’ argument that the 270-day rule was violated. Issue 2: Suppression of evidence Dies argues that the evidence obtained as a result of the traffic stop and his subsequent arrest should have been suppressed, because the traffic stop was not based on reasonable suspicion and the agents lacked probable cause to initiate a warrantless arrest. An investigative stop is allowed as long as an officer has reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a felony or as long as the officers have some objective manifestation that the person stopped is, or is about to be engaged in criminal activity. Probable cause may come from any one of an officer’s five senses, including an officer’s sense of smell. If an officer clearly smells contraband, such as marijuana, that smell can give rise to the probable cause necessary to search a vehicle and its passengers. The record clearly reflects that the agents identified the smell of burnt marijuana, and their experience with the Mississippi Bureau of Narcotics exposed them to that smell on multiple occasions. They were able to trace the smell back to the red camaro through an open window. The smell of burnt marijuana coming from an identified location, such as a car, creates enough articulable fact to give rise to a reasonable suspicion that criminal activity had been committed and that further investigation is warranted. The agents did not use the traffic stop to search for evidence of wrong doing but rather to confirm their reasonable suspicion that already existed. The agents possessed reasonable suspicion that Dies was engaged in criminal activity. His flight from the officer created the probable cause for which he was lawfully arrested.


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