ON WRIT OF CERTIORARI
PIERCE, Justice, for the Court:
¶ 1. Virgil Johnson was convicted of aggravated assault in Hinds County Circuit Court. Johnson appealed, and the Court of Appeals affirmed his conviction and sentence. We granted certiorari. Because Johnson's right to a speedy trial was not violated, and because Johnson was not prejudiced by the trial court's refusal to grant Johnson's for-cause challenges of two prospective jurors, we affirm the trial court and the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
¶ 2. On February 28, 2006, Jeremy Boyd was shot four times at his home in Jackson,
¶ 3. Johnson's trial was held March 11, 2008. At trial, Boyd testified as to what had occurred on the day he was shot. According to Boyd, he invited Johnson over to his home because he had planned to buy a vehicle and wanted Johnson's advice. Boyd was a professional barber, and when Johnson arrived he offered to give him a haircut. After the haircut, Boyd recounted that he and Johnson smoked weed and played video games. Boyd noticed that Johnson had become quiet, and he asked Johnson if things were all right. Boyd continued to play the video game. Boyd recalled that his gun was on the floor beside his feet, and that he saw Johnson get up. Boyd said he thought Johnson had gone to the restroom, but instead, Johnson came up behind him and shot him in the back of the neck. Boyd testified that Johnson immediately shot him again. Boyd said that Johnson shot him two more times, even though he was pretending to be dead. Then, Johnson flipped Boyd over and took $1,900 that Boyd had planned to use to purchase the vehicle. According to Boyd, Johnson then fled the scene. Boyd called 911.
¶ 4. The jury convicted Johnson of aggravated assault. The Court of Appeals affirmed the conviction, finding no reversible error. Johnson petitioned for writ of certiorari, which this Court granted, and raises two issues.
I. Whether Johnson's right to a speedy trial was violated.
II. Whether Johnson's for-cause challenges should have been granted.
I. Whether Johnson's right to a speedy trial was violated.
¶ 5. Johnson asserts that his constitutional right to a speedy trial was violated, because 680 days passed between the time of arrest and the date of his trial. The Court of Appeals found no merit in Johnson's averment. We agree with the Court of Appeals, and affirm the trial court.
¶ 6. The Sixth Amendment to the United States Constitution provides an accused the right to a "speedy and public trial."
Length of delay
¶ 7. In Smith v. State, this Court determined that a delay of eight months or longer is presumptively prejudicial.
¶ 8. Here, 680 days passed between Johnson's arrest and his trial, so the delay is presumptively prejudicial. The benefit of this presumption is further examination of the Barker factors,
Reasons for delay
¶ 9. The Court of Appeals found the record contained evidence of the delay and noted the overcrowded docket as the reason. "Overcrowded dockets" falls within the realm of neutral reasons for delay but should be considered since the "ultimate responsibility for such circumstances must rest with the government."
Whether defendant asserted his right to a speedy trial.
¶ 10. The State bears the burden of bringing a defendant to trial.
Prejudice to the defendant
¶ 11. We start this discussion with this Court's inconsistent analysis of this prong, and which party bears the risk of nonpersuasion. In State v. Ferguson, the Court proposed that "[w]here the delay has been presumptively prejudicial, the burden falls upon the prosecution" to show the lack of prejudice to the defendant.
¶ 12. Until Ferguson, Mississippi caselaw did not require that the State bear the burden under the fourth prong of Barker, where the delay was presumptively prejudicial.
¶ 13. In Moffett v. State, the defendant was incarcerated for 1,656 days before his trial, which the Court found presumptively prejudicial.
¶ 14. In Manix v. State, 1,430 days elapsed between the date of arraignment and trial.
¶ 15. The dissent maintains that, "[I]n Ferguson, this Court followed Moore exactly," with regard to the prejudice prong. But a closer reading of Moore v. Arizona indicates otherwise. In Moore, the United States Supreme Court addressed Arizona's misreading of Barker, in which the court expressly rejected any notion that an affirmative showing of prejudice was necessary to prove a denial of a constitutional right to a speedy trial.
¶ 16. Under the prejudice prong of Barker, the Court is to consider prejudice to the defendant, bearing in mind three interests: (1) prevent oppressive pretrial incarceration; (2) minimize anxiety and concern of the accused; and (3) limit the possibility that the defense will be impaired.
¶ 17. We now move forward and consider the three interests under the fourth prong: oppressive incarceration, anxiety or concern, and impairment of defense. Although Johnson's pretrial incarceration was lengthy, incarceration alone does not constitute prejudice.
¶ 18. Moreover, the possibility of impairment of the defense is the most serious consideration in determining whether the defendant has suffered prejudice as a result of the delay.
¶ 20. Additionally, we address the dissent's comments regarding this Court's "undue emphasis on the prejudice factor," and its belief that the right to a speedy trial does not serve to prevent prejudice.
¶ 21. Lastly, the dissent makes a bold claim that, "given the history and trend of speedy-trial motions in Mississippi ... viewed against the backdrop of our precedent... the right to a speedy trial is simply no longer recognized in Mississippi." While we greatly disagree with such an assertion, it should be noted that our learned colleague has had a hand in crafting the very "trend" at which he now balks.
¶ 22. In conclusion, this Court has stated "that where the delay is neither intentional nor egregiously protracted, and there is an absence of actual prejudice to the defense, the balance is struck in favor of rejecting a speedy trial claim."
II. Whether Johnson's for-cause challenges should have been granted.
¶ 23. In his second assignment of error, Johnson contends that his constitutional right to an impartial jury was violated because he was forced to use two of his six peremptory challenges on two jurors who should have been excused for cause by the trial court. The Court of Appeals found that this issue lacked merit, because Johnson failed to show how he was prejudiced as a result of the trial court's rulings, as the jurors ultimately were excluded. We agree.
¶ 24. The mere loss of a peremptory challenge is not enough to constitute a violation of the constitutional right
¶ 25. Even though Johnson used all of his peremptory challenges, he fails to meet the second prerequisite. The two jurors in question did not sit on the jury. And Johnson does not argue, or much less show, that any of the jurors who sat on the jury were biased or incompetent. Therefore, we need not address whether the trial court erred in denying Johnson's for-cause challenges. This issue is without merit.
¶ 26. Because none of Johnson's constitutional rights were violated, we agree with the Court of Appeals and affirm the trial court.
CARLSON, P.J., AND RANDOLPH, J., CONCUR. LAMAR, J., CONCURS IN RESULT ONLY. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ. WALLER C.J., JOINS THIS OPINION IN PART. KING, J., NOT PARTICIPATING.
WALLER, Chief Justice, dissenting:
¶ 28. Because I believe that Johnson's constitutional right to a speedy trial was violated, I respectfully dissent. I join Presiding Justice Dickinson's dissent in part only to the extent that he finds that a speedy-trial violation occurred under the facts of this specific case.
DICKINSON, Presiding Justice, dissenting:
¶ 29. It is no secret that, for the past twenty years, the Sixth-Amendment right to a speedy trial has been under attack and on life support. Although this Court's previous decisions have suggested that — given the right set of facts — a speedy trial claim could possibly be won, today's final, fatal blow mercifully puts the criminal-defense bar out of its misery. Whereas previous decisions have been less than clear, today's plurality opinion is as subtle as a stick of dynamite — the Sixth-Amendment right to a speedy trial in Mississippi is dead.
¶ 30. In previous cases, this Court at least paid lip service to a few speedy-trial maxims, such as "an eight-month delay is presumptively prejudicial" and "no single Barker factor controls" (both discussed later). But today, the plurality — purporting to overrule Smith v. State and its progeny,
¶ 31. Because I believe the Sixth-Amendment right to a speedy trial is as important to us today as it was when it was proposed by our Founding Fathers in 1789, and ratified by the people in 1791, I respectfully dissent.
BACKGROUND FACTS AND PROCEEDINGS
¶ 32. After he was indicted, Virgil Johnson quickly moved — pro se, in writing — for a speedy trial. When he didn't get one, he moved — pro se, in writing — for dismissal. He never requested a continuance.
¶ 33. At the beginning of the hearing on Johnson's speedy-trial motion — despite the 680-day delay — the trial judge observed that Johnson's trial seemed "pretty speedy." The State, in addressing why Johnson's trial had been delayed for 680 days, offered only a casual comment that "it was just due to a congested trial docket." How crowded, we do not know, as the record includes no evidence to support the State's claim.
¶ 34. Then, in the following exchange with Johnson's counsel, Donald Boykin, the trial judge addressed prejudice:
¶ 35. The trial court denied Johnson's motion, and the case proceeded to trial. Johnson was convicted. He filed a timely appeal, arguing (among other things) that he was denied his constitutional right to a speedy trial.
Since 1992, the Sixth-Amendment right to a speedy trial has been on life support in Mississippi.
¶ 36. In 1972, the United States Supreme Court handed down Barker v. Wingo,
¶ 37. Of those first forty cases, all decided prior to 1992, this Court found speedy-trial violations approximately one-fourth of the time. But in the fifty-eight cases decided since 1992, this Court has not found a single violation. Fifty-eight cases in a row over the past nineteen
¶ 38. This appalling statistic cannot be explained by a more efficient judiciary that provides quicker trials; indeed, a review of the cases reveals that delays have been getting longer.
¶ 39. The plurality — pointing out that, as a member of the post-1992 Court, I personally have "had a hand in crafting the very trend" I now criticize
We are required to apply the
Barker factors, all four of which weigh in favor of Johnson.
¶ 40. The U.S. Constitution's Supremacy Clause requires all state courts to recognize federal law — including the provisions of the United State Constitution — as "the supreme law of the land."
¶ 41. Forty years ago, the United States Supreme Court decided Barker v. Wingo
¶ 42. Most would agree that our precedent should provide stability, consistency, and predictability to the law. But this Court's method of weighing and balancing the Barker factors has so significantly shifted since Barker was decided in 1972, that recent opinions bear no resemblance to those of a few decades ago.
1. Length of Delay
¶ 43. The first Barker factor — length of delay — generally concerns the length of time that passes from an accused's arrest until trial.
¶ 44. Smith and its twenty-year progeny clearly hold that "prejudice will be presumed" when a trial is delayed for "eight months or longer," and that an eight-month delay requires analysis of the remaining three Barker factors.
¶ 45. So if (as our precedent indicates) we really do presume prejudice at eight months (240 days), we certainly must presume it at 680 days, the length of delay in this case. Interestingly, the delay in this case is longer than the delay in almost all of the post-Barker cases reversed by this Court on constitutional speedy-trial grounds.
¶ 46. On the "presumptively prejudicial" point, the plurality takes an interesting position addressed in the "Prejudice" discussion below. But for purposes of analyzing the first Barker factor, the plurality concedes (1) that the 680-day delay is, indeed, presumptively prejudicial, (2) this factor weighs in Johnson's favor, and (3)
2. Reason for the delay
¶ 47. The plurality correctly recognizes that where (as here) the length of delay is presumptively prejudicial, the burden shifts to the State to provide a satisfactory reason for the delay.
A. Crowded docket
¶ 48. The plurality correctly points out that the trial judge said there were several "older cases" that were set before Johnson's, which "may have" caused his case to be put off. This statement has several problems.
¶ 49. First, "may have caused" hardly rises to the level of evidence. Second, in referring to "older cases," the trial judge was referring to Johnson's date of arraignment (not relevant in a Barker analysis), rather than his date of arrest.
¶ 50. Finally, we pretty clearly said in Flora v. State that "[t]his Court should not be expected to simply accept at face value the claims of crowded dockets, backlogged laboratory testing, and other similar logistical problems, which undeniably exist."
B. Trial dates
¶ 51. The plurality mistakenly believes the State produced trial dates from the computer system used throughout Hinds County, which showed that Johnson's case had been set for trial three months after he was arraigned. The record before us does not support this claim. Here's what really happened:
¶ 52. At the pretrial hearing on Johnson's motion to dismiss, the prosecutor stated that "[t]he first trial setting was July 16th of '07 from the record that I've seen." When Johnson's attorney challenged the State to produce proof of that date from the docket or otherwise, the prosecutor could not. And the appellate record, which includes the trial court's docket sheet, indicates that Johnson had no trial setting earlier than March 11, 2008. No other proof of a trial date — or of an overcrowded docket — was produced by anyone.
C. Even if the delay was caused by an overcrowded docket, this factor — according to Barker — weighs in favor of Johnson.
¶ 53. Because the State produced no evidence to explain the delay, this second Barker factor — reason for the delay — should weigh in favor of Johnson. The Barker Court stated:
¶ 55. The plurality awards this second Barker factor "slightly" to Johnson. Even though the plurality's appreciation of the facts and law on this point are quite different from mine, I do not quarrel with this point. Johnson has, so far, won two out of two factors.
3. Assertion of the right
¶ 56. The plurality concedes that Johnson wins this factor. According to Barker, a "defendant's assertion of his speedy trial right ... is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right."
¶ 57. Less than two months after he was indicted, Johnson filed a pro se "motion for a fast and speedy trial." After filing a pro se motion to dismiss for violation of his speedy-trial right, Johnson filed what he called a "Motion to Compel," in which he stated:
¶ 58. Johnson's motions were heard on the morning of trial. Nowhere in the transcript of proceedings before the trial court — or in its brief to this Court — does the State even hint that it thinks Johnson should have (or could have)
¶ 59. To its credit, the plurality does not contest that, by winning this factor, Johnson is entitled to the "strong evidentiary weight" referred to in Barker, and the extra Barker "points" referred to in Jaco and Ferguson. So this factor weighs "strongly"
This Court's inconsistent record on three-to-one cases is disturbing.
¶ 60. Before moving to the fourth and final Barker factor, I pause to make a brief observation about where we are at this point. So far, the first three Barker factors clearly weigh in favor of Johnson. Giving the plurality the benefit of the doubt, here is how the factors stack up:
¶ 62. And as set forth below, I believe the fourth factor — prejudice — also weighs in his favor. But even assuming it doesn't, Johnson wins three factors (two heavily) and loses one. This Court has been confronted with this same three-to-one scenario eighteen times in the forty-year history of the Barker factors — five times through 1992, and thirteen times since. An analysis of those eighteen cases is both instructive and disturbing.
¶ 63. This Court found speedy-trial violations and reversed all five of the three-to-one cases decided through 1992.
¶ 64. The only conclusion one can fairly draw from reviewing the three-to-one cases decided since 1992 is that, in reality, defendants cannot win speedy-trial claims before this Court unless they win all four factors. And given this Court's history, even if a defendant could do all that, there's still no reason to believe the defendant would actually prevail.
¶ 65. In analyzing the prejudice factor, the plurality's main concern seems to be who had the burden of proof. Yet the plurality seems to be untroubled by the fact that, when the defendant, Johnson, attempted to take the witness stand and testify concerning prejudice, the trial judge prohibited him from doing so.
¶ 66. The plurality's discussion of this factor is perhaps more disturbing than any of the other three. The plurality concedes, as it must, that the United States Supreme Court has stated, more than once, that a defendant is not required to show prejudice affirmatively to win a Barker analysis.
¶ 67. Well, if "an affirmative demonstration of prejudice is not necessary to prove a denial of the constitutional right to a speedy trial," how in the world can one explain the outcome of the case before us today?
¶ 68. Conceding (solely for the sake of argument) that there was no "affirmative demonstration of prejudice," even the plurality admits that Johnson won everything else — and two of the factors, he won heavily. So affirmatively demonstrating prejudice was certainly necessary for Johnson "to prove a denial of the constitutional right to a speedy trial."
¶ 69. Prejudice is the only factor the plurality finds Johnson didn't win, so it is beyond argument that, in this case, it was indeed necessary for him affirmatively to prove prejudice. Put differently, under the law announced today, how on earth could Johnson or anyone else prevail on a speedy-trial issue without affirmatively demonstrating prejudice? The plurality's thinking on this point is far above my head and completely escapes me.
¶ 70. As already stated, this Court has said many times that no single Barker factor should control. But in previous cases, this Court has come perilously close to admitting that a Mississippi defendant's speedy-trial claim is dead, unless he shows actual prejudice.
¶ 71. The plurality's undue emphasis on the prejudice factor may be due, in part, to its mistaken belief that preventing prejudice is what the constitutional right to a speedy trial was primarily intended to accomplish. But the United States Supreme Court cleared that up nearly thirty years ago:
¶ 72. It is not possible to fairly conclude from the plurality opinion anything other than the incorrect notion that the right to a speedy trial is important only to prevent prejudice.
A. Prejudice presumed
¶ 73. The plurality makes far too much of the presumptively-prejudicial issue. All it means is that, where the delay is eight months or more and nothing else gets in the record, prejudice is presumed. And where the defendant offers no additional evidence of prejudice, the State's burden of overcoming the presumption is light.
B. The plurality misreads
Ferguson v. State and can't distinguish it.
¶ 75. In State v. Ferguson, this Court explicitly held: "[T]he burden of production and persuasion are critical. Where the delay has been presumptively prejudicial, the burden [on the prejudice factor] falls upon the prosecution."
¶ 76. But the plurality — unable to distinguish Ferguson — ignores it. It is possible that the plurality's reticence to follow Ferguson is explained by its misreading of the case, in which we relied on Prince v. Alabama
¶ 77. The plurality first suggests that we were wrong to rely on Prince for the proposition that a presumptively prejudicial delay shifts the burden to the State on the prejudice factor, subtly twisting Prince's language to reach that conclusion. In Prince, the Fifth Circuit said,
¶ 78. The case did not hold — as the plurality reads it — that the defendant must first establish a prima facie case of prejudice, but rather a prima facie case "of denial of the speedy trial right."
¶ 79. Again, a proper reading of Prince along with Hoskins I — the pre-Barker case on which Prince relied — clearly reveals that a defendant must make a prima face case of violation, not of prejudice, to shift the burden to the State
That was the case in Ferguson, and that is the case here.
¶ 80. I also note with bemusement that, in its attempt to use Prince to prove that Ferguson was wrongly decided, the plurality skips right over Prince's observation that
This holding could not be more clear: When the defendant wins the first three Barker factors, prejudice is immaterial, and the court need not even look at it. And this holding is not just a peculiarity of the Fifth Circuit. As Hoskins III noted, this conclusion is mandated by Barker itself:
¶ 81. This simply makes sense. If "none of the four factors [is] a necessary... condition," this has to mean that a defendant cannot lose the test solely by losing one factor (as Johnson does today). The United States Supreme Court has said it, the Fifth Circuit has said it, and this Court said it in Ferguson.
¶ 82. In Moore, the United States Supreme Court reviewed a case in which the Supreme Court of Arizona did
¶ 83. The Arizona Supreme Court weighed the first three Barker factors in favor of the defendant, but nevertheless held that his speedy-trial right was not violated because he had failed to show actual prejudice caused by the delay.
¶ 84. In Ferguson, this Court followed Moore exactly. We held that, because an eight-month delay was presumptively prejudicial, and because the defendant may not be required to affirmatively demonstrate prejudice, it necessarily falls to the State to come forward with some evidence indicating that the delay in fact resulted in no prejudice to the accused.
C. The plurality misreads
Smith v. State, can't distinguish it, and so purports to overrule it.
¶ 85. After conceding that the delay in this case was presumptively prejudicial, the plurality attempts to redefine the term. (Stay tuned in case the meaning of "presumed innocent" is challenged in some future case.) The phrase "presumptively prejudicial" is not complicated. Black's Law Dictionary defines a "presumption" as:
¶ 86. If the phrase "presumptively prejudicial" means anything, it must mean that, in the absence of contrary evidence produced by the State, the court must conclude that the defendant was prejudiced by the delay.
¶ 87. But the plurality rejects this straightforward meaning, opting instead to read "presume prejudice" merely to mean "look at the other Barker factors." For
D. The State produced nothing to rebut the three prejudice interests identified in
¶ 88. In Barker, the United States Supreme Court identified and discussed three prejudice interests: (1) oppressive pretrial incarceration, (2) anxiety and concern of the accused, and (3) impairment of the defendant's defense.
Oppressive Pretrial Incarceration
¶ 89. Johnson was in jail the entire time between his arrest and trial. He made repeated requests for bail reduction, but they were ignored (not denied, ignored). The State offered nothing in rebuttal.
Anxiety and Concern
¶ 90. The plurality refuses to award Johnson this prong because he presented no evidence of "anxiety and concern," never mind that he was prevented from working in order to provide for his child and sick mother,
Impairment of the Defendant's Defense
¶ 91. Of the three prongs of the prejudice factor, this one is the "most serious."
¶ 92. But even assuming the State did not have the burden of production, a defendant
¶ 93. Although one could fairly debate the weight due each of the first three Barker factors,
¶ 94. So even if one agrees that the prejudice factor favors the State, this case still should be reversed.
¶ 95. Constitutional rights are guaranteed to all criminal defendants, regardless of the ultimate disposition of their cases.
KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION. WALLER, C.J., JOINS THIS OPINION IN PART.
The following graph represents every post-Barker case from this Court, in which the length of delay is discernible in the opinion. For each case, the length of delay (in days) is represented by a dot. The dashed line was calculated using the "trend line" function in Microsoft Excel, and indicates that the delays generally are getting longer and longer.