Terry Dora v. State of Mississippi ( 2004 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-CT-00487-SCT
TERRY DORA
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 11/23/2004
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: TERRY DORA (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED. THE JUDGMENT
OF THE CIRCUIT COURT OF LOWNDES
COUNTY IS REINSTATED AND AFFIRMED -
06/12/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. A jury found Terry Dora (“Dora”) guilty of possessing more than thirty grams of
cocaine. The Circuit Court of Lowndes County sentenced him to sixty years in the custody
of the Mississippi Department of Corrections (“MDOC”) as a habitual offender and prior
violator of the Mississippi Uniform Controlled Substances Act. On appeal, the Mississippi
Court of Appeals reversed and remanded for a new trial, finding the circuit court had abused
its discretion in overruling Dora’s objection and accompanying motion for mistrial based on
Dora’s claim that improper statements by the prosecutor were used in rebuttal closing
argument. The Court of Appeals further instructed the circuit court to conduct a
constitutional speedy-trial hearing on remand. Thereafter, the State filed a “Petition for Writ
of Certiorari,” which this Court granted. We reverse the Court of Appeals and reinstate and
affirm the judgment of the circuit court.
FACTS
¶2. On August 3, 2001, after obtaining a search warrant for a house where suspected drug
sales had occurred, the Columbus Police Department entered the home, which was owned
and occupied by Rebecca Dora (“Rebecca”), defendant Dora’s aunt. Rebecca and her
seventeen-year-old daughter Alicia were sitting on the couch in the living room. Less than
a minute after the police entered the home, Dora was seen exiting the bathroom.1 Dora was
ordered to the ground, with his feet still inside the bathroom. The investigating officer found
35.63 grams of crack cocaine (estimated street value of $3,500) in a plastic baggy underneath
tissue paper in a garbage can in the same bathroom. Cash totaling $1,050 was found under
towels on shelves in the same bathroom. A plastic bag of coffee grounds was in Dora’s
pocket. A set of digital scales was found on the table in the kitchen, only three to five feet
from the bathroom door. In Rebecca’s bedroom, the police found crack cocaine, marijuana
and $2,500 in cash.2
1
According to Sergeant Larry Taylor, locating the bathroom is significant in order
“[t]o keep them from flushing any dope . . . .”
2
According to a forensic scientist with the Mississippi Crime Laboratory, “[t]here is
a dramatic difference in coloration” between the crack cocaine found in the bathroom and
2
¶3. Dora, Rebecca, and Alicia were arrested for possession. The charges against Alicia
were later dropped. Initially, Rebecca claimed responsibility for all the drugs found.
However, at trial, she admitted responsibility only for what was found in her bedroom. She
explained that Dora offered her $5,000 to “take the rap” while Dora, Rebecca, and Alicia
were in the police car on the day of their arrest.3 She said she did not know anything about
the cash in the bathroom, but the $2,500 in the bedroom was money that Dora had asked her
to hold for him. Rebecca reaffirmed that the crack cocaine and marijuana found in her
bedroom belonged to her.
PROCEEDINGS
¶4. Dora was indicted on November 7, 2001, but was not served with the indictment until
May 13, 2002. On May 21, 2002, Dora waived arraignment and entered his plea of not
guilty. That same day, the circuit court set his trial for August 22, 2002.4 Prior to the first
date set for trial, Dora filed numerous pre-trial motions.5 On August 19, 2002, an “Agreed
the crack cocaine found in Rebecca’s bedroom.
3
Alicia corroborated Rebecca’s testimony. Rebecca admitted to initially lying to
Taylor in telling him the cocaine belonged to her.
4
The order of the circuit court noted that “1. The Defendant is remanded to the
custody of the Sheriff unless lawful approved bond is posted in the amount of None -
Probation/Parol violation.” On August 20, 1997, Dora was convicted of sale of cocaine in
the Circuit Court of Lowndes County and sentenced to twenty years in the custody of the
MDOC. On November 12, 2001, Dora was convicted of possession of cocaine greater than
0.1 gram but less than two grams in the Circuit Court of Winston County and sentenced to
two years in the custody of the MDOC.
5
Among those motions, Dora filed a “Motion to Quash Indictment” in which he
claimed violations of the Sixth Amendment to the United States Constitution by virtue of the
method of presentation of evidence to the grand jury and the allegedly vague, ambiguous,
and indefinite nature of the indictment.
3
Order of Continuance” was entered, resetting his trial for November 14, 2002. Subsequently,
eight “Agreed Orders of Continuance” were filed, ultimately resulting in a trial in November
2004.6 In August 2003, the State filed a “Motion to Amend Indictment” to include Dora’s
prior felony convictions for the sale of cocaine and the possession of cocaine greater than 0.1
gram but less than two grams. The State sought to “include the prior offender information
pursuant to Section 41-29-147 M.C.A. (1972) as a second or subsequent offender of the
Mississippi Uniform Controlled Substances Act and the habitual offender status of [Dora]
pursuant to 99-19-81 M.C.A. (1972).” Trial commenced on November 9, 2004.
¶5. Following trial, the jury found Dora guilty. After deferring sentencing, the circuit
court granted the State’s “Motion to Amend Indictment” and ordered that:
the Indictment . . . should be amended to include the following language[:]
“. . . And Further that the said [Dora] was previously convicted in the Circuit
Court of Lowndes County, Mississippi, on August 20, 1997, in cause number
1995-0381-CR1, Count 2, for the crime of Sale of Cocaine, a felony and a
violation of the Mississippi Uniform Controlled Substances Law, and
sentenced to serve a term of twenty (20) years in the [MDOC]; and That the
said [Dora] was previously convicted in the Circuit Court of Winston County,
Mississippi on November 12, 2001, in cause number 2001-0047-CR, for the
crime of Possession of Cocaine greater than .1 gram but less than 2 grams, a
felony and in violation of the Mississippi Uniform Controlled Substances Law,
and sentenced to serve a term of two (2) years in the [MDOC].”
On November 23, 2004, the “Order of Sentence” of the circuit court found “beyond a
reasonable doubt that [Dora] is a Habitual Offender within the meaning of § 99-19-81 MCA,
1972 and a prior violator of the Mississippi Uniform Controlled Substances Act[,]” and
6
As late as October 25, 2004, Dora filed a “Motion for Time Within Which to File
Brief or Memorandum of Law in Support of Motion to Suppress.” The motion specifically
stated that its purpose was “so that justice may be done and not for purposes of delay.”
4
sentenced him to sixty years in confinement, adding that “said sentence shall not be reduced
or suspended, nor shall said Defendant be eligible for parole or probation.” 7 Dora’s “Motion
for Judgment Notwithstanding the Verdict or, in the Alternative, a New Trial” was overruled
by the circuit court. Dora then filed notice of appeal. The case was assigned to the Court of
Appeals.
¶6. The Court of Appeals reversed and remanded for a new trial, concluding that the
circuit court had abused its discretion in overruling Dora’s objection and denying his motion
for mistrial, based on the following statement made by the prosecutor in rebuttal closing
argument:
[y]ou also heard the fact that it is undisputed, [l]adies and [g]entlemen, that
this defendant told Rebecca Dora, I will give you $5,000; I’m sorry I got you
into this trouble, but I will give you $5,000 to go in there and take the rap for
me. That is also undisputed. Nobody came forward and said that didn’t
happen. I submit to you, [l]adies and [g]entlemen, that that is strong evidence
that –
See Dora v. State, 2007 Miss. App. LEXIS 331 at *7-9 (Miss. Ct. App. May 15, 2007). The
Court of Appeals found the aforementioned statement impermissible, relying upon
Livingston v. State, 525 So. 2d 1300 (Miss. 1988), and Whigham v. State, 611 So. 2d 988
(Miss. 1992). See Dora, 2007 Miss. App. LEXIS 331 at *9. Additionally, the Court of
Appeals ordered the trial court to conduct a constitutional speedy-trial hearing as “[w]hen
the constitutional right to a speedy trial violation is raised for the first time on appeal, the
case is remanded to the lower court to consider reasons for the delay.” Id. at *11.
7
Dora was also fined the statutory maximum amount of $2,000,000.
5
ISSUES
¶7. Following the decision of the Court of Appeals, the State filed a “Petition for Writ of
Certiorari,” which this Court granted. See Miss. R. App. P. 17(a). Mississippi Rule of
Appellate Procedure 17(a) provides, in part, that:
[s]uccessive review of a decision of the Court of Appeals by the Supreme
Court will ordinarily be granted only for the purpose of resolving substantial
questions of law of general significance. Review will ordinarily be limited to:
(1) cases in which it appears that the Court of Appeals has
rendered a decision which is in conflict with a prior decision of
the Court of Appeals or published Supreme Court decision . . .
.
Miss. R. App. P. 17(a) (emphasis added). Based upon that criteria, this Court will consider:
(1) Whether 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.
(2) Whether Dora was denied his constitutional right to a speedy trial.8
8
In Dora’s “Motion to Amend ‘Written Response to Writ of Certiorari,’” he requested
this Court’s consideration of “two issues which should have been considered by the
Mississippi Court of Appeals.” Those issues are: (1) whether the circuit court erred by
failing to grant Dora’s motion for a directed verdict and motion for judgment
notwithstanding the verdict and/or whether the jury verdict was against the overwhelming
weight of the evidence and (2) whether the circuit court erred in denying Dora’s motion to
quash the indictment. Finding no error on the part of the circuit court in its rulings thereon,
this Court exercises its authority to “limit the question on review[,]” Miss. R. App. P. 17(h),
and denies Dora’s motion.
Relatedly, however, the Court of Appeals properly noted that the jury instruction on
the law of possession did not include the element of character of the substance. While this
Court agrees that was error, we find it harmless in light of clear evidence showing beyond
a reasonable doubt that Dora “committed the act charged . . . under such circumstances that
every element of the offense existed.” Carr v. State, 208 So. 2d 886, 889 (Miss. 1968).
6
ANALYSIS
I. Whether 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.
¶8. This Court has stated that:
[a]ttorneys are allowed a wide latitude in arguing their cases to the jury.
However, prosecutors are not permitted to use tactics which are inflammatory,
highly prejudicial, or reasonably calculated to unduly influence the jury. Hiter
v. State, 660 So. 2d 961, 966 (Miss. 1995). The standard of review that
appellate courts must apply to lawyer misconduct during opening statements
or closing arguments is whether the natural and probable effect of the
improper argument is to create unjust prejudice against the accused so as to
result in a decision influenced by the prejudice so created. Ormond v. State,
599 So. 2d 951, 961 (Miss. 1992).
Sheppard v. State, 777 So. 2d 659, 661 (Miss. 2000) (emphasis added). Furthermore,
“[w]hether to grant a mistrial is within the sound discretion of the trial court. Shelton v.
State, 853 So. 2d 1171, 1183 (Miss. 2003). The standard of review for denial of a motion
for mistrial is abuse of discretion. Pulphus v. State, 782 So. 2d 1220, 1222 (Miss. 2001).”
Wright v. State, 958 So. 2d 158, 161 (Miss. 2007) (emphasis added).
¶9. The rebuttal closing-argument statement of the prosecution at issue was as follows:
[y]ou also heard the fact that it is undisputed [l]adies and [g]entlemen, that this
defendant told Rebecca Dora, I will give you $5,000; I’m sorry I got you into
this trouble, but I will give you $5,000 to go in there and take the rap for me.
That is also undisputed. Nobody came forward and said that didn’t happen.
I submit to you, [l]adies and [g]entlemen, that that is strong evidence that –
Dora objected to this statement and moved for a mistrial. According to the circuit court:
[t]he defendant has stated that in his opinion that the State’s comments in his
argument that certain evidence was uncontradicted, undisputed arises to the
level of being a comment on the failure of the defendant to testify as a witness.
The Court did not view it that way, and therefore, overrules the objection and
the motion for a mistrial.
7
(Emphasis added). Conversely, the Court of Appeals concluded that “[t]he jury could reach
no other conclusion except that the prosecutor was telling them, ‘Look, if Rebecca and her
daughter were not telling the truth, Dora would have taken this witness stand and denied
it[,]’” Dora, 2007 Miss. App. LEXIS 331 at *8, and, therefore, reversed the trial court,
finding it abused its discretion in not granting the mistrial. See id. at *9. The Court of
Appeals decision cited this Court’s holdings in Whigham and Livingston. See id.
¶10. Shortly before the Court of Appeals released its decision in Dora, this Court held that:
Livingston and its progeny are overruled to the extent that they are
inconsistent with this opinion because: (1) the reversal of Livingston’s
conviction was based in large part on an evidentiary statute [Mississippi Code
Annotated Section 13-1-9] which has since been repealed; and, (2) this Court
in Livingston erroneously interpreted the U.S. Supreme Court’s decision in
Griffin [v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)],
as clarified by [United States v. Robinson, 485 U.S. 25, 108 S. Ct. 864, 99 L.
Ed. 2d 23 (1988)], which this Court failed to acknowledge in Livingston.
Wright, 958 So. 2d at 166.9 In Robinson, the United States Supreme Court specifically
stated:
[t]he Court of Appeals and respondent apparently take the view that any
“direct” reference by the prosecutor to the failure of the defendant to testify
violates the Fifth Amendment as construed in Griffin. We decline to give
Griffin such a broad reading, because we think such a reading would be quite
inconsistent with the Fifth Amendment, which protects against compulsory
self-incrimination.[10 ] The Griffin court addressed prosecutorial comment
9
The date of this Court’s opinion in Wright was April 5, 2007, however, the motion
for rehearing was not denied until June 28, 2007. In the interim, on May 15, 2007, the Court
of Appeals released its opinion in Dora.
10
What does the Fifth Amendment expressly guarantee? The applicable clause of the
Fifth Amendment states, “[n]o person . . . shall be compelled in any criminal case to be a
witness against himself.” U.S. Const. amend. V. In Robinson, the United States Supreme
Court chose to construe the Griffin broad reading, relied upon by the dissent, as being
inconsistent with the constitutional protection against compulsory self-incrimination.
8
which baldly stated to the jury that the defendant must have known what the
disputed facts were, but that he had refused to take the stand to deny or explain
them. We think there is considerable difference for purposes of the privilege
against compulsory self-incrimination between the sort of comments involved
in Griffin and the comments involved in this case.
Robinson, 485 U.S. at 31-32 (emphasis added). The Court added that:
[t]he broad dicta in Griffin to the effect that the Fifth Amendment “forbids .
. . comment by the prosecution on the accused’s silence,” 380 U.S. at 615,
must be taken in the light of the facts of that case. It is one thing to hold, as we
did in Griffin, that the prosecutor may not treat a defendant’s exercise of his
right to remain silent at trial as substantive evidence of guilt; it is quite
another to urge, as defendant does here, that the same reasoning would forbid
the prosecutor from fairly responding to an argument of the defendant by
adverting[11 ] to that silence.
Robinson, 485 U.S. at 33-34 (emphasis added).
¶11. In Wright, we “clarif[ied] the holdings in our prior cases. 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.” Wright, 958 So. 2d at 161. In other words:
“[t]here 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.
[Jimpson v. State, 532 So. 2d 985, 991 (Miss. 1988)] (emphasis in original).
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. Shook v. State, 552 So. 2d 841, 851 (Miss. 1989)
(emphasis added). The question is whether the prosecutor’s statement can be
construed as commenting upon the failure of the defendant to take the stand.
Ladner v. State, 584 So. 2d 743, 754 (Miss. 1991).
Wright, 958 So. 2d at 161 (emphasis added). This approach effectively prevents “the
protective shield of the Fifth Amendment” from being “converted into a sword that cuts back
11
“Advert” is defined as “[t]o call attention: allude or refer.” Webster’s II New
College Dictionary 17 (3d ed. 2001).
9
on the area of legitimate comment by the prosecutor on the weaknesses in the defense case.”
Robinson, 485 U.S. at 32 (quoting United States v. Hastings, 461 U.S. 499, 515, 103 S. Ct.
1974, 1984, 76 L. Ed. 2d 96, 110 (1983) (Stevens, J., concurring) (citation omitted)).
¶12. “[P]rosecutorial comment must be examined in context[.]” Robinson, 485 U.S. at 33.
“When the statement is not an outright violation, this Court will review the facts on a case-
by-case basis.” Wright, 958 So. 2d at 166 (citing Logan v. State, 773 So. 2d 338, 348 (Miss.
2000)). Furthermore, “not every comment regarding the lack of any defense is automatically
deemed to point toward the defense’s failure to testify.” Id. (citing Jimpson, 532 So. 2d at
991). The statement at issue was clearly not an “outright violation,” id., therefore, this Court
must determine whether the circuit court abused its discretion in overruling Dora’s motion
for a mistrial. See id. at 161.
¶13. Taken in context with Dora’s theory of the case,12 this Court finds that 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. See id. “Such a
comment was not addressing, or even alluding to, the defendant’s failure to testify. . . . The
[S]tate was simply pointing out that the defense’s position [or theory] . . . was unsupported
by the evidence.” Id. at 167. At most, the prosecutor was “fairly responding to an argument
of the defendant by adverting to that silence.” Robinson, 485 U.S. at 34. Therefore, we
12
In closing argument, counsel for Dora stated “our theory of the case . . . is that
[Rebecca] stood to go to prison, and that they did not want to see Rebecca go to prison. So
they put it on my innocent client, [Dora], who has the presumption of innocence before you,
the jury.”
10
cannot conclude that the circuit court abused its discretion in overruling Dora’s motion for
a mistrial. Given the applicable standards, as announced in Robinson and Wright, the
learned circuit judge’s finding that the comment that certain evidence is uncontradicted and
undisputed when made, given the context and posture of the proceedings at the time, is
unworthy of a mistrial. The trial judge’s ruling complies with the standards announced in
Robinson and Wright.
¶14. In light of the “wide latitude” extended to attorneys in their closing arguments,
Sheppard, 777 So. 2d at 661, the deferential abuse-of-discretion standard applicable to the
circuit court’s denial of Dora’s motion for mistrial, see Wright, 958 So. 2d at 161, the
principle that “any doubts should be resolved in favor of the integrity, competence and proper
performance of the official duties of the judge and prosecuting attorney,” Thomas v. State,
247 Miss. 704, 712, 159 So. 2d 77, 80 (1963), and the fact that the prosecutor’s statement is
nothing more than “a comment on defendant’s failure to put on a credible defense,” Wright,
958 So. 2d at 164, this Court concludes that the Court of Appeals erred in ruling otherwise.
II. Whether Dora was denied his constitutional right to a speedy trial.
¶15. Regarding Dora’s constitutional right to a speedy trial, the Court of Appeals found
that:
[u]nlike the statutory right, failure to assert the constitutional right is not fatal
to the claim. State v. Woodall, 801 So. 2d 678, 685 (Miss. 2001) (quoting
Barker [v. Wingo, 407 U.S. 514, 528, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972)]); Smith v. State, 550 So. 2d 406, 409 (Miss. 1989). When the
constitutional right to a speedy trial violation is raised for the first time on
appeal, the case is remanded to the lower court to consider reasons for the
delay. State v. Woodall, 744 So. 2d 747, 749-50 (Miss. 1999). On remand,
the court is instructed to conduct a constitutional speedy trial hearing.
11
Dora, 2007 Miss. App. LEXIS 331 at *10-11 (emphasis added).
¶16. There is no dispute that Dora raised the speedy-trial issue for the first time on appeal.
In his brief, Dora argued that three of the four Barker factors (length of delay, the reason for
delay, and prejudice to the defendant) weighed in his favor13 and, therefore, the violation of
his constitutional right to a speedy trial was reversible error and should result in his
discharge. The State countered that “[t]he record reflects a lack of evidence for either a
demand for trial, or of any prejudice to Dora’s defense as a result of any delay.”
¶17. According to this Court:
[b]oth our federal and state constitutions provide that an accused enjoys the
right to a speedy trial. The Sixth Amendment to the United States Constitution
states, inter alia, that “the accused shall enjoy the right to a speedy and public
trial.” U.S. Const. amend. VI. Our state constitution states, inter alia, “the
accused shall have a right to . . . a speedy and public trial.” Miss. Const. art.
3, § 26 (1890). When one reads these federal and state constitutional
provisions, there can be absolutely no question that the accused in a criminal
proceeding has a constitutional right to a speedy trial.
Guice v. State, 952 So. 2d 129, 139 (Miss. 2007) (emphasis in original). However, when the
constitutional speedy-trial issue is raised for the first time on appeal:
[t]his Court can only decide this issue if it views it as plain error . . . . As a
rule, the Supreme Court only addresses issues on plain error review when the
error of the trial court has impacted upon a fundamental right of the defendant.
“It has been established that where fundamental rights are violated, procedural
rules give way to prevent a miscarriage of justice.” Gray v. State, 549 So. 2d
1316, 1321 (Miss. 1989).
13
Regarding “the defendant’s assertion of his right,” Barker, 407 U.S. at 530, Dora
argued that while he “failed to assert his right to a speedy trial[,]” he “did not waive his right
to a speedy trial.”
12
Sanders v. State, 678 So. 2d 663, 670 (Miss. 1996). This Court has stated that “the right to
a speedy trial is a fundamental constitutional right[.]” Id. See also Morgan v. State, 793 So.
2d 615, 617 (Miss. 2001) (quoting Gray, 549 So. 2d at 1321) (plain-error review is
applicable when the error is “so fundamental that it generates a miscarriage of justice[.]”);
Klopfer v. North Carolina, 386 U.S. 213, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967).
¶18. This Court and the Court of Appeals previously have found the constitutional speedy-
trial-right issue to be waived for failure to be raised in the circuit court. See Bell v. State, 733
So. 2d 372, 376 (Miss. Ct. App. 1999) (“[b]ecause delays in bringing a matter to trial may
work to the defendant’s advantage, we do not consider a claim that the defendant was denied
a speedy trial to be a matter of plain error or fundamental error that may be raised for the first
time on appeal”); Sanders, 678 So. 2d at 670-71 (“this issue should also not be addressed
because Sanders did not raise this issue below, and has not shown that this is a suitable case
for plain error rev[iew]”). However, in Woodall, this Court stated:
Woodall contends his constitutional right to a speedy trial was violated.
However, he raises this issue for the first time on appeal. We have held that
even when it appears that the speedy trial statute was violated, if it was not
raised in the trial court, we may remand for the lower court to consider the
reasons for the delay. Barnes v. State, 577 So. 2d 840, 844 (Miss. 1991).
When the issue was not raised below and there was no plain error, we have
refused to address allegations regarding speedy trial. [Sanders, 678 So. 2d at
671]. Therefore, the issue is remanded to the trial court for consideration of
this issue.
Woodall, 744 So. 2d at 749-50 (emphasis added). The Woodall ruling was rendered in the
factual context of a 1999 reinstatement of a 1998 indictment, for crimes allegedly committed
by Woodall in 1995. Given the aforementioned scenario, this Court found that the circuit
court erred in ruling that the State was barred from prosecuting Woodall because of an
13
alleged statute-of-limitations violation, while acknowledging this Court was unable to
determine the reasons for the delay. Given such circumstances, the case was remanded to
the circuit court for further proceedings, to include a constitutional speedy-trial inquiry.
¶19. This Court finds that the Court of Appeals erred in citing Woodall for the proposition
that in all cases “[w]hen the constitutional right to a speedy trial violation is raised for the
first time on appeal, the case is remanded to the lower court to consider reasons for the
delay.” Dora, 2007 Miss. App. LEXIS 331 at *11 (emphasis added). Woodall provides that
when a violation of the speedy-trial statute is raised for the first time on appeal, this Court
“may remand for the lower court to consider the reasons for the delay.” Woodall, 744 So.
2d at 749-50 (emphasis added). Given that the constitutional right to a speedy trial is a
fundamental right, see Klopfer, 386 U.S. at 213, this Court must determine whether plain-
error review is applicable, i.e., whether an “error of the trial court has impacted upon a
fundamental right[,]” Sanders, 678 So. 2d at 670, and is “so fundamental that it generates a
miscarriage of justice[.]” Morgan, 793 So. 2d at 617. Absent the plain-error criteria being
satisfied unequivocally, appellate courts are loath to address issues not presented to the trial
court.
¶20. Dora seeks to leapfrog over the required plain-error analysis by making Barker genre
assertions, i.e., prejudice caused by length of delay, prejudice by virtue of the amended
indictment which included prior felony convictions, and prejudice due to a change in
Rebecca’s testimony. Considering the claims of Dora first for a plain-error analysis, we find
the following. Regarding delay, the record reflects that trial was set initially for August 22,
2002. From August 19, 2002, until trial commenced on November 9, 2004, Dora assented
14
to the entry of nine separate “Agreed Orders of Continuance.” Dora also filed numerous pre-
trial motions, including a “Motion to Quash Indictment” in which he claimed violations of
the Sixth Amendment to the United States Constitution, without asserting a violation of his
Sixth Amendment right to a speedy trial. Accordingly, this Court finds this claim to be
without merit.
¶21. Dora next asserts that he suffered prejudice because, prior to August 14, 2003, “he
could not have been sentenced as a subsequent and habitual offender[.]” This Court finds
that his contention that the trial court erred borders on the absurd and is patently untrue.
Following Dora’s conviction for possession of cocaine greater than 0.1 gram but less than
two grams on November 12, 2001, his “subsequent and habitual offender” status was secure.
As such, this Court also finds this claim to be without merit.
¶22. Finally, Dora argues that he suffered prejudice due to a change in Rebecca’s
testimony. This Court recently stated in Miller v. State, 956 So. 2d 221 (2007), that:
“changes in witnesses’ testimony are not necessarily due to the passage of time
and do not, by themselves, constitute proof of prejudice due to delay.” State
of Wisconsin v. Huusko, 2006 WI App 223, 296 Wis. 2d 935, 724 N.W.2d
273, 2006 Wis. App. LEXIS 837 at *4 (Wisc. App. 2006). This Court is fully
aware that witnesses regularly change their testimony and that, standing alone,
does not mean that a delay in trial caused . . . prejudice.
Miller, 956 So. 2d at 225, n.10 (emphasis added).14 Therefore, this Court finds the third
claim to be without merit.
14
Miller is otherwise distinguishable in that this Court remanded for a new trial due
to the denial of a fundamentally fair trial. See Miller, 956 So. 2d at 227. As to the speedy-
trial issue, this Court dismissed without prejudice, to be refiled, if desired, on remand. See
id. at 225.
15
¶23. Dora’s claims neither establish a plain-error basis to justify further appellate review,
nor evidence “a miscarriage of justice[.]” Morgan, 793 So. 2d at 617. Therefore, this Court
concludes that the Court of Appeals erred in remanding this case for a constitutional speedy-
trial hearing.
CONCLUSION
¶24. Accordingly, this Court reverses the Court of Appeals and reinstates and affirms the
final judgment of the Circuit Court of Lowndes County.
¶25. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE
JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY IS
REINSTATED AND AFFIRMED. 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 $2,000,000.00,
AFFIRMED.
SMITH, C.J., EASLEY, CARLSON AND LAMAR, JJ., CONCUR.
DICKINSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER AND DIAZ, P.JJ., AND GRAVES, J.
DICKINSON, JUSTICE, DISSENTING:
¶26. The state called Rebecca Dora to testify that Terry Dora offered her $5,000 to “take
the rap” for him. Rebecca’s daughter, Alicia, corroborated Rebecca’s testimony. The
conversation took place inside a police car, and the only other person present – that is, the
only person who could possibly refute the testimony – was the defendant, Terry Dora, who
was not called to testify. During the state’s rebuttal closing argument, the prosecutor
remarked:
[y]ou also heard the fact that it is undisputed [l]adies and [g]entlemen, that this
defendant told Rebecca Dora, I will give you $5,000; I’m sorry I got you into
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this trouble, but I will give you $5,000 to go in there and take the rap for me.15
That is also undisputed. Nobody came forward and said that didn’t happen.
I submit to you, [l]adies and [g]entlemen, that that is strong evidence that –
....
Dora objected and moved for a mistrial. The trial court overruled the objection and denied
the motion. The Court of Appeals, finding the prosecutor’s comments improper, reversed.
I agree with the Court of Appeals.
¶27. The Fifth Amendment to the United States Constitution guarantees criminal
defendants the right to refuse to testify against themselves.16 U.S. Const. amend. V. See also
Miss. Const., art. 3, §26. According to the United States Supreme Court, the Fifth
Amendment also forbids prosecutors from commenting on an accused’s failure to testify.
Griffin v. California, 380 U.S. 609, 615; 85 S. Ct. 1229 ; 14 L. Ed. 2d 106 (1965).
¶28. Until recently, any reference to a defendant’s failure to testify was fatal to the
prosecution. Livingston v. State, 525 So. 2d 1300, 1308 (Miss. 1988). However, we
recently abandoned the hard-and-fast rule followed in Livingston, and held that a
prosecutor’s reference to the defendant’s silence is not, per se, reversible. We held that
reversible error will be found only where the reference to the defendant’s silence implies the
defendant’s guilt. Wright v. State, 958 So. 2d 158, 164-66 (Miss. 2007). Our decision in
Wright was in accord with the United Supreme Court’s decisions in Griffin v. California,
15
Dora’s use of the term “take the rap for me” can only mean that he is guilty and
should be the one to “take the rap.” Thus, the statement can be viewed as nothing less than
an admission of guilt.
16
I do not hold the opinion that prosecutors are always prohibited from referring to
a defendant’s silence. It is only where (as in this case) the prosecutor’s comment implies that
the defendant’s silence equals guilt, that I draw the line.
17
380 U.S. 609, 615; 85 S. Ct. 1229 ; 14 L. Ed. 2d 106 (1965), and United States v. Robinson,
485 U.S. 25, 33-34 ;108 S. Ct. 864, 99 L. Ed. 2d 23 (1988).
¶29. Prosecutors occasionally use innuendo and indirect commentary on the evidence
which may or may not be calculated to focus a jury’s attention on the fact that the defendant
did not testify. Thus, as stated in Robinson, courts must consider the facts on a case-by-case
basis. Id. In Davis v. State, this Court stated:
Elementary to all trial proceedings is the proposition that the occurrence of any
prejudicially incompetent matter or misconduct before a jury, the damaging
effect of which cannot be removed by admonition or instructions, necessitates
a mistrial.
Davis v. State, 530 So. 2d 694, 697 (Miss. 1988).
¶30. Any fair reading of the prosecutor’s comments in this case leads to the same
conclusion reached by the Court of Appeals, that is, that when the jurors heard the
prosecutor’s comments, they “could reach no other conclusion except that the prosecutor was
telling them, ‘Look, if Rebecca and her daughter were not telling the truth, Dora would have
taken this witness stand and denied it[,]’” Dora v. State, 2007 Miss. App. LEXIS 331 at *8
(Miss. Ct. App. October 2, 2007).
¶31. The majority attempts to reconcile its conclusion by relying on Robinson. However,
the prosecutor in Robinson made comments about the defendant’s silence only after defense
counsel argued that the government did not allow his client to present his side of the story.
Id. at 26. The Robinson Court understandably held that the prosecutor’s comments were a
proper response to defense counsel’s comments. By contrast, Dora’s counsel never stated
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or implied that Dora was not allowed to tell his side of the story. Thus, Robinson is easily
distinguishable.
¶32. The prosecutor in this case clearly violated Dora’s Fifth Amendment rights. I would
enforce the constitutional prohibition, reverse, and remand for a new trial.
WALLER AND DIAZ, P.JJ., AND GRAVES, J., JOIN THIS OPINION.
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