Thomas Glynn Flynt v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2013-KA-01973-SCT
THOMAS GLYNN FLYNT a/k/a THOMAS FLYNT
a/k/a THOMAS G. FLYNT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 10/21/2013
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: PHILLIP BROADHEAD
OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY: PATRICIA BURCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/22/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. Thomas Flynt (“Tommy”) was convicted of manslaughter for the death of Teresa
Groover, his daughter’s girlfriend, after an altercation with Teresa. According to Tommy,
he and Teresa were struggling over the gun when it went off, and he does not remember
pulling the trigger. Several people were present during the altercation and at the location
where Teresa was shot, but no one saw Tommy shoot her. After the trial, Tommy filed a
motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The
trial judge denied the motion, and Tommy appeals.
Factual Background
¶2. On April 11, 2009, Tommy Flynt and his family went to a cousin’s house for a large
family Easter egg hunt. Tommy arrived around noon with his wife, Melissa, and their two
children, Charee, fourteen, and Charles, ten. Samantha Crabtree, a friend of Charee’s, was
with them as well. The adults were drinking, and Tommy admits to having two beers.
¶3. At some point, Tommy’s older daughter, Krystal, arrived with her girlfriend, Teresa
Groover. According to Tommy, Krystal tried to pick a fight with him – she shoved him and
said she was grown now and could “whip his ass.” Tommy decided to leave because of
Krystal’s behavior; he does not remember what time they left, but he said it was still daylight.
Tommy, Melissa, Charles, Charee, and Samantha left the party and went to Tommy’s auto
repair shop. Tommy testified that, at the shop, Charles went out back to ride a four-wheeler,
Charee and Samantha listened to music in the car, and Tommy and Melissa went inside to
eat and watch television.
¶4. Krystal and Teresa showed up at the shop some time later, and Krystal began trying
to provoke Tommy again. Tommy claims that Krystal “was in a drunken stupor state.” He
told Krystal to leave and escorted her outside. Krystal kicked the door open and came back
inside, again “leaning” on Tommy and saying things like “try me now.” Tommy claims that
he repeatedly asked Krystal to leave. Tommy testified that he was trying to ignore Krystal,
but she eventually pulled him off the barstool on which he was sitting, so he picked her up
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by the waist and attempted to carry her outside. As Tommy was carrying Krystal out the
door, Teresa walked in.
¶5. Teresa separated Tommy and Krystal, pushing Krystal to the side and slamming
Tommy to the floor. Tommy admits that Teresa, a former Marine, was bigger and stronger
than he was. Tommy testified that Teresa pinned him to the ground with one hand on his
neck, strangling him. Tommy was able to get up, but Teresa took him down a second time.
Teresa choked him again, and Tommy claims that he was about to pass out when he heard
Krystal say, “Stop T, you’re killing him.” Tommy testified that Krystal pulled Teresa off
Tommy, and Tommy got to his feet. Tommy said he was choking and gasping for air when
Teresa got away from Krystal and charged him a third time. Tommy testified that he was
able to pry Teresa’s hand off his throat and roll out from under her.
¶6. After escaping Teresa for the third time, Tommy testified that he needed something
to drink because he said his Adam’s apple was stuck in the bottom of his throat and he
needed something to loosen it up. He located a beer and drank it. Tommy told his wife to
call 911, but she informed him that the phone was broken. He had another phone in his
office, so he went to the office in search of a telephone to call the police. Tommy testified
that he kept a loaded gun in plain sight in his office. Tommy maintained that he was going
to get the telephone, not his gun.
¶7. Tommy testified that Teresa charged into the office and attacked him again. He said
Teresa picked him up by the neck, lifted him off the ground, and had him against a shelf.
Tommy testified, “She was strangling me. . . . she was in a vicious mode. Slobber was
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coming out of her mouth, and she was telling me, ‘I’m going to kill you, you [expletive].’”
Tommy claimed that he does not know how the gun came into play; he does not remember
picking it up. He testified that he does not know if he picked it up or if Teresa picked it up,
but they both had their hands on the gun when it went off. He said that he does not
remember firing the gun, and he claims he did not even hear it go off. On cross-examination,
Tommy testified that Teresa was trying to point the gun at him and shoot him, and he was
trying to keep the gun away from himself. He said “it could have just as well been me shot.”
¶8. Tommy testified that Teresa was still choking him and they were still struggling for
the gun when the police came in. He testified that the police pulled Teresa off him and took
the gun. Tommy said the police officers handcuffed both him and Teresa and made them lie
on the floor. He said Teresa was still trying get up and she was looking at him saying “I’m
going to kill you, you [expletive]” while she was handcuffed and lying on the floor.
¶9. Others who were present that day recall the events somewhat differently. Charee
Flynt and Samantha Crabtree, both fourteen years old at the time, were the only eyewitnesses
to the altercation who testified. However, numerous police officers testified about what they
saw when they arrived at the scene after the shooting.
¶10. Charee testified that all of the adults had been drinking that day; she would not say
that her father was intoxicated, just that he had consumed a couple of beers. However, in her
original statement, made after the incident when she was fourteen years old, she wrote that
Tommy was “very intoxicated.” She also wrote that Krystal was intoxicated. At trial, Charee
maintained that Krystal was drunk, saying she was slurring her words and staggering, but she
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said her father was not drunk. Charee agreed that her impression about being intoxicated had
changed since she was fourteen and made the statement. Charee said Teresa had been
drinking as well, but she was not acting drunk.
¶11. Charee testified that Krystal and Teresa arrived at the shop, and Krystal started
arguing with Tommy and shoving him, and Tommy asked her to leave. At trial, Charee said
that Tommy was trying to push or pull Krystal toward the door. When presented with her
written statement, she admitted that Tommy had grabbed and pushed Krystal. Charee also
had written that Tommy choked Krystal, but she would not admit that at trial. Charee
testified that Tommy and Krystal started tussling, and Teresa walked in and separated them.
Charee testified that Teresa grabbed Tommy “by his throat and took him to the ground.”
¶12. Charee testified that while Teresa had Tommy pinned down she was telling him to
“stay down and calm down.” Charee testified that Teresa let Tommy get up, but then she
“took him right back down.” However, in her original statement, Charee indicated only that
Tommy had been pinned down one time. Charee testified that, after Teresa released Tommy
the second time, Tommy asked for something to drink, then he went into his office. Charee
testified that Tommy was in the office for two or three minutes before Teresa went in; in her
written statement, she wrote that Tommy was in the office for five minutes before Teresa
followed him. Charee testified that Teresa walked into the office calmly. She heard someone
yell “gun.” Charee knew that Tommy kept a gun in his office, but she said it was unloaded
because she and her little brother were at the shop often. Charee testified that she could not
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see Tommy and Teresa after they went into the office, but, in her statement, Charee wrote
that Tommy did not appear to be in danger.
¶13. At some point during the altercation, Krystal’s shirt and bra came off. Samantha
testified that Tommy tore them off when they were fighting, but Tommy said they came off
when Teresa pulled Krystal and Tommy apart. Samantha said Teresa came in and split up
Tommy and Krystal, putting Tommy in a chokehold until he agreed to stop fighting.
Samantha said Teresa was trying to get Tommy to calm down. Samantha testified that, when
Teresa let Tommy up, he went into his office. She said Teresa followed Tommy into his
office a few seconds later; she was not right behind him. Someone yelled, “He’s getting a
gun.” After they had been in the office a few seconds; the gun went off. Samantha testified
that she could see Tommy and Teresa standing in Tommy’s office; she could not hear what
they were saying, but Teresa did not seem to pose a threat to Tommy.
¶14. According to the 911 call log, a call came in at 8:06 and the caller reported that her
husband had just shot her daughter. However, the call log indicated that the caller’s name
was Teresa Groover. When asked who called 911, Charee testified, “We did.” Officer
Blaine Stansell was one of the first officers to arrive at the scene. When he arrived, a lady
in the parking lot was talking on the telephone, and he assumed she was talking to 911.
Stansell entered the building, followed by three other officers. When he approached the
office, he saw a female sitting on top of a male. She was straddling him, and they were
struggling over a gun. Stansell identified the male as Tommy. He testified that they were
sitting on the right side of the couch, and Tommy’s back was against a shelf. Stansell
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testified that he took the gun away from Tommy, and then he noticed a second female on the
couch who was “unconscious and bleeding from the abdomen.”
¶15. Sergeant Laron Smith arrived at the scene as well. When he arrived, several officers
were there already and several people were standing outside. Contrary to Officer Stansell’s
testimony, Sergeant Smith testified that he saw Tommy standing over Krystal and Teresa,
and he heard Tommy tell Krystal to move so he could “shoot the bitch again.” Sergeant
Smith said Tommy was pointing the gun at the two females and that Krystal was lying on top
of Teresa so Tommy would not be able to shoot her again. He testified that Tommy was
irate. After the officers got the gun away from Tommy, Krystal became more irate and tried
to attack Tommy, so Sergeant Smith restrained Krystal.
¶16. Lieutenant Dale Bounds also responded to the scene. He initially went around to the
side of building, where the air conditioning window unit from the office was located. He
could not see into the office, but he could hear a male and a female screaming. Lieutenant
Bounds testified that the female said, “Why did you shoot her?” And the male responded,
“Move. I was going to shoot and kill her.” Lieutenant Bounds then followed Officer Stansell
and the others into the building and approached an interior window that looked into the
office. He saw a male and a female struggling over a gun and a second female lying on the
couch with a gunshot wound to the abdomen.
¶17. Lieutenant Bounds testified that the male, whom he identified as Tommy, “had a gun
in his hand, and the female had her hands on his hands trying to keep him from shooting the
female again.” Lieutenant Bounds said Tommy had full control over the gun and it was
7
pointed toward the female on the couch; when Tommy saw the officers come in, he rotated
the gun toward the officers. Lieutenant Bounds had his weapon drawn and was prepared to
shoot Tommy when Officer Stansell grabbed the gun from Tommy. Lieutenant Bounds
testified that Teresa was not handcuffed, as it is not normal to handcuff someone who is
critically injured. He said Teresa was just moaning when they came in. Teresa died from
the gunshot wound two days later.
¶18. Photographs from the crime scene were entered into evidence through the testimony
of the crime scene investigator, Jeff Byrd. Byrd testified that a photograph of Teresa’s
gunshot wound showed stippling, indicating that the gun was fired at close range.
Investigator Byrd’s report indicated that, when officers arrived, Tommy was lying on top of
Teresa and Krystal was on top of both of them, and both Tommy and Teresa had their hands
on the gun. Byrd swabbed Tommy’s hands for gunshot residue. Testing revealed gunshot
residue on the front and back of both of Tommy’s hands.
¶19. Forensic scientists from the Mississippi Crime Laboratory testified that Teresa did not
have drugs or alcohol in her system. However, the alcohol test was performed two days after
the incident, and the toxicologist testified that any alcohol that was in her system on the day
of the shooting would have been gone by then. The samples for the drug tests were drawn
on April 15, four days after the incident, and the toxicologist testified that samples taken
postmortem would indicate what was in the body at the time of death, but not two days
before death, which was the day of the shooting.
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¶20. A firearms analyst testified that the bullet that was taken from the scene was fired
from the gun that was taken from the scene. A box of cartridges also was taken from the
scene, and it was consistent with the bullet that was fired. The gun in question, a Rossi .38
revolver, holds five rounds. The box of ammunition taken from the scene was open and
sitting on a table near the couch; it was missing five bullets. However, one shot had been
fired, and only three bullets remained in the gun. Tommy testified that he kept the gun at the
shop because he had a lot of cash on hand and it was a deterrent to robbers, but he testified
that he had not had to use the gun before. Based on Charee’s testimony that Tommy kept the
gun unloaded, as well as her testimony that he was in the office for two to five minutes
before Teresa went in, the State’s theory is that Tommy went into the office and hurriedly
loaded the gun, without loading it to capacity, with the intent to shoot Teresa.
¶21. Dr. Thomas Deering performed the autopsy on Teresa. He testified that the bullet
entered her upper left abdomen and exited out the right flank. Based on the tight stipple
pattern and soot that was present, he testified that there would have been six inches or less
between the barrel of the gun and Teresa’s skin. Dr. Deering testified that Teresa also had
blunt trauma – scrapes and bruises that resulted from falling or getting hit with something
– on her knees, chin, and eyebrow. Dr. Deering concluded that the cause of death was
gunshot wound to the abdomen and the manner of death was homicide.
¶22. The State paints the relationship between Tommy and Krystal as a tumultuous one,
also implying that Tommy had issues with Krystal’s and Teresa’s relationship. Tommy
admitted that Krystal had drug and alcohol problems and said that he had told her she needed
9
to get help. But he said she was his daughter, he loved her, and he did not have anything
against her. Tommy also testified that he liked Teresa, he did not have any problems with
her, and she was a friend. He said Krystal was “a drughead and an alcoholic,” and Teresa
made sure that his grandchildren (presumably Krystal’s children) were taken care of.
¶23. Tommy was indicted for murder in September 2009. Trial was held in October 2013,
more than four years after the shooting. The jury convicted Tommy of manslaughter. He
was sentenced to twenty years, with five years suspended and fifteen to serve. After the
trial, Tommy filed a motion for judgment notwithstanding the verdict (JNOV) or, in the
alternative, for a new trial. The motion was denied and Tommy appealed.
Discussion
¶24. On appeal, Tommy asserts that the trial court erred by denying his motion for JNOV
or for a new trial, because the evidence was legally insufficient to support the jury’s verdict
and the verdict was against the overwhelming weight of the evidence. He also asserts that
the jury could not have fully considered his self-defense claim. We apply an abuse-of-
discretion standard of review to post-trial motions, such as motions for JNOV or for a new
trial. Beasley v. State, 136 So. 3d 393, 401 (¶ 28) (Miss. 2014).
I. Whether the trial court erred by denying the motion for JNOV.
¶25. A motion for JNOV “challenges the legal sufficiency of the evidence.” Beasley, 136
So. 3d at 401 (¶ 29) (quoting Ivy v. State, 949 So. 2d 748, 751 (Miss. 2007)). The Court has
summarized the standard of review for the denial of a motion for JNOV as follows:
“[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable
doubt that the accused committed the act charged, and that he did so under
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such circumstances that every element of the offense existed[.]’” Id. (quoting
Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). In reviewing the sufficiency
of the evidence, this Court will view all evidence in the light most favorable
to the verdict. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005). If this Court
determines that “reasonable fair-minded men in the exercise of impartial
judgment might reach different conclusions on every element of the offense,”
this Court will hold that the evidence was legally sufficient to support the
jury’s verdict. Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985).
Beasley, 136 So. 3d at 402 (¶ 29). Tommy claims that the State’s evidence was not legally
sufficient to support the jury’s verdict.
¶26. Tommy was charged with deliberate-design murder under Mississippi Code Section
97-3-19(1)(a), which provides: “The killing of a human being without the authority of law
by any means or in any manner . . . [w]hen done with deliberate design to effect the death of
the person killed, or of any human being, shall be first-degree murder[.]” Miss. Code Ann.
§ 97-3-19(1)(a) (Rev. 2014). The jury instruction on murder read:
If you find from the evidence in this case beyond a reasonable doubt that:
1. On or about April 11, 2009[,] in Forrest County, Mississippi;
2. That Teresa Groover was a human being;
3. That Thomas Flynt without authority of law did willfully and with malice
aforethought kill Teresa Groover by shooting her with a gun, all with the
deliberate design to effect the death of Teresa Groover;
4. And not in self defense;
then you shall find the defendant guilty as charged.
If the prosecution has failed to prove any one or more of the above listed
elements beyond a reasonable doubt, then you shall find Thomas Flynt not
guilty of murder.
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The jury was instructed that if it found the defendant did not have the mental requirement to
commit murder, he could be guilty of the lesser-included offense of manslaughter. The
manslaughter instruction read:
If the defendant killed another person with an actual, genuine belief that the
killing was necessary in order to protect himself from great bodily harm or
death, even though that belief was not reasonable under the circumstances,
then the defendant did not have the mental requirement to commit murder.
However, the killing may be manslaughter.
If you find from the evidence that:
1. On or about April 11, 2009, Thomas Flynt shot and killed Teresa Groover;
2. Acting with an actual, genuine belief that the killing was necessary in order
to protect himself from great bodily injury or death; but
3. That belief was not reasonable under the circumstances;
then you may find Thomas Flynt guilty of the lesser included offense of
Manslaughter.
12
The jury also was instructed as to manslaughter in the heat of passion1 and manslaughter
while the victim was engaged in trespass. Tommy asserted a theory of self-defense, and the
jury was given a self-defense instruction. He also argued that he was protected by the Castle
Doctrine because he was in his place of business, and the jury was instructed accordingly.
The jury found Tommy guilty of manslaughter.
¶27. Tommy claims that no rational trier of fact could have found every element of murder
or manslaughter. We disagree. Mississippi Code Section 97-3-35 provides that the “killing
1
The jury instruction for manslaughter in the heat of passion read:
If you find that the State has failed to prove any one or more of the essential
elements of the crime charged, you must find the defendant not guilty of the
charge. You will then proceed with your deliberation to decide whether the
State has proved beyond a reasonable doubt all the elements of the lesser crime
of Manslaughter while in the heat of passion.
If you find from all the evidence in this case beyond a reasonable doubt that:
1. Thomas Flynt on or about April 11, 2009, in Forrest County,
Mississippi;
2. That Teresa Groover was a human being; and
3. That Thomas Flynt did kill Teresa Groover, without malice, but in the
heat of passion by the use of a deadly weapon; and without authority of
law and not necessary in self defense;
then you shall find the defendant guilty of the lesser included offense of
Manslaughter.
If the State has failed to prove any one or more of the above listed elements
beyond a reasonable doubt, then you shall find Thomas Flynt not guilty.
If you find beyond a reasonable doubt from the evidence in this case that the
defendant is guilty of the crime charged or a lesser crime as defined, but you
have a reasonable doubt as to the crime of which the defendant is guilty, you
must resolve the doubt in favor of the defendant and find him guilty of the
lesser crime which is manslaughter.
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of a human being, without malice, in the heat of passion, but in a cruel or unusual manner,
or by the use of a dangerous weapon, without authority of law, and not in necessary self-
defense, shall be manslaughter.” Miss. Code Ann. § 97-3-35 (Rev. 2014) (emphasis added).
Section 97-3-35 “contemplates alternative theories to sustain a manslaughter conviction in
that the crime may be charged as a killing in ‘a cruel or unusual manner’ or ‘by use of a
deadly weapon.’” Booker v. State, 64 So. 3d 965, 971 (¶ 19) (Miss. 2011) (citations
omitted). In the instant case, “a cruel and unusual manner” has not been asserted, but
certainly a gun is a “dangerous weapon” and it is undisputed that Teresa died from a gunshot
wound. Thus, to convict Tommy of manslaughter, the State was required to prove that
Tommy: (1) killed Teresa; (2) with a dangerous weapon; (3) without authority of law; and
(4) not in necessary self-defense.
¶28. The jury heard testimony from Tommy Flynt, Charee Flynt, Samantha Crabtree,
several officers who responded to the scene, the medical examiner, toxicologists, and a
firearms expert. Those who testified presented some contradictory testimony in their
accounts of the events that had occurred four years before the trial. However, although an
eyewitness did not see Tommy pull the trigger, sufficient evidence pointed to Tommy as the
shooter: Tommy admits to fighting with Teresa; testimony indicated that Teresa pinned
Tommy down at least twice; Tommy was able to escape from Teresa at least twice and walk
to his office; Tommy kept a gun in his office; Teresa was shot in Tommy’s office by
Tommy’s gun; Tommy had gunshot residue on both hands; Tommy had his hands on the gun
when police arrived; and two police officers testified that they heard Tommy say something
14
about shooting Teresa and/or wanting to shoot her again.
¶29. When reviewing a challenge to the sufficiency of the evidence, the Court must
determine “whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Byrd v. State, 158 So. 3d 1146, 1151 (¶ 14) (Miss. 2015) (quoting Bush
v. State, 895 So. 2d 836, 843 (Miss. 2005)). We hold that the evidence presented by the State
was legally sufficient to allow the jury to conclude, beyond a reasonable doubt, that Tommy
was guilty of manslaughter. The trial court’s denial of Tommy’s motion for JNOV was not
an abuse of discretion.
II. Whether the trial court erred by denying the motion for a new trial.
¶30. “A motion for a new trial challenges the weight of the evidence.” Beasley, 136 So.
3d at 403 (¶ 35). The Court has summarized the standard of review for the denial of a motion
for new trial as follows:
In reviewing a challenge to the weight of the evidence, this Court will overturn
a verdict only “when it is so contrary to the overwhelming weight of the
evidence that to allow it to stand would sanction an unconscionable injustice.”
Bush, 895 So. 2d at 844. See also Amiker v. Drugs for Less, Inc., 796 So. 2d
942, 947 (Miss. 2000) (holding that a motion for a new trial is addressed to the
discretion of the court and should be granted only “in exceptional cases in
which the evidence preponderates heavily against the verdict.”). As with
challenges to the sufficiency of the evidence, this Court views all evidence in
the light most favorable to the verdict. Id. Factual disputes are properly
resolved by a jury and do not mandate a new trial. Temple v. State, 498 So. 2d
379, 382 (Miss. 1986).
Beasley, 136 So. 3d at 403 (¶ 35).
A. Weight of the Evidence
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¶31. Tommy asserts that the overwhelming weight of the evidence does not support the
jury verdict, because no eyewitness testified that Tommy fired the shots, forensic evidence
did not tie Tommy to the shooting, and the police officers’ testimony was contradictory.
Tommy is correct that no one testified to seeing him fire the shot that killed Teresa.
However, as discussed above, sufficient evidence pointed to Tommy as the shooter.
Forensic evidence did, in fact, tie Tommy to the shooting – he had gunshot residue on the
front and back of both hands and the bullet was fired from his gun. There was no evidence
to indicate that Teresa fired the gun. Although Tommy is correct that some of the witness
testimony was contradictory, that is a challenge to the witnesses’ credibility, and determining
credibility of witnesses is a jury function. Id.
¶32. The Beasley Court discussed a similar situation:
While Beasley claims that the evidence presented by the State is
“unsubstantiated” or “unconvincing,” his specific arguments merely challenge
the credibility of the State’s witnesses. It is not for this Court to pass on the
credibility of witnesses, for that is a jury function. Bond v. State, 249 Miss.
352, 162 So. 2d 510, 512 (1964) (citation omitted). The jury in this case was
presented with two opposing versions of the circumstances surrounding
Wilkinson’s death. The State presented significant circumstantial evidence
portraying Beasley as Wilkinson’s murderer. In response, Beasley took the
stand in an attempt to rationalize the State’s damning evidence, and his
testimony is the only evidence inconsistent with the jury’s verdict. The jury
was free to accept the testimony of some witnesses and reject that of others,
and this Court “need not determine with exactitude which witness or what
testimony the jury believed or disbelieved in arriving at its verdict.” Brown v.
State, 796 So. 2d 223, 227 (Miss. 2001) (citations omitted). In this case, it is
clear that the jury accepted the State’s witnesses and evidence and rejected
Beasley’s testimony. Allowing the jury’s verdict to stand in this case would not
“sanction an unconscionable injustice,” as the evidence does not “preponderate
heavily against the verdict.” Bush, 895 So. 2d at 844. Accordingly, we find
that the trial court did not err in denying Beasley’s motion for a new trial.
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Beasley, 136 So. 3d at 403-404 (¶ 36). The same is true in the instant case. While some
witness testimony was inconsistent as to specific details, Tommy’s testimony was the most
different from all the others. The jury has the job of weighing witness testimony and
determining credibility. The jury did so, and the evidence does not “preponderate heavily
against the verdict” such that allowing the verdict to stand would “sanction an
unconscionable injustice.” Id.B. Defense Theories
¶33. Tommy also asserts that the jury could not have fully considered his theory of self-
defense or the Castle Doctrine. The jury was given instructions on both self-defense and the
Castle Doctrine. “It is presumed that jurors follow the instructions of the court. To presume
otherwise would be to render the jury system inoperable.” Gray v. State, 728 So. 2d 36, 63
(¶ 127) (Miss. 1998) (quoting Chase v. State, 645 So. 2d 829, 853 (Miss. 1994)). Thus, the
Court presumes that the jury considered the instructions on self-defense and the Castle
Doctrine, as well as any related evidence.
¶34. Although it is not disputed that Tommy and Teresa had been fighting, no evidence
was presented that Tommy had any bruises, cuts, or scrapes. The photographs entered into
evidence showed Tommy’s gold chain intact, no readily apparent bruises or cuts, and no hand
prints on his neck. Regarding self-defense, the Court has written:
In order for a homicide to be justified as self-defense, the actor’s apprehension
of danger must appear objectively real to a reasonable person of average
prudence. Hart v. State, 637 So. 2d 1329, 1339 (Miss. 1994). This Court, in
Wade v. State, 748 So. 2d 771, 775 (Miss. 1999), held that the issue of
justifiable self-defense presents a question of the weight and credibility of the
evidence, rather than sufficiency, and is to be determined by jury. This Court
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further stated that “any factual disputes are properly resolved by the jury and
do not mandate a new trial.” McNeal v. State, 617 So. 2d 999, 1009 (Miss.
1993).
Jones v. State, 39 So. 3d 860, 865 (¶ 28) (Miss. 2010). The Court presumes that the jury
considered all of the evidence and theories of defense and concluded that Tommy did not act
out of “necessary self defense.”
¶35. Tommy failed to cite any authority pertaining to the Castle Doctrine or how it should
be applied to the facts of his case. Therefore, the issue is procedurally barred. Rubenstein
v. State, 941 So. 2d 735, 780 (¶ 196) (Miss. 2006) (citing Bell v. State, 879 So. 2d 423, 434
(Miss. 2004) (“Failure to cite relevant authority obviates the appellate court’s obligation to
review such issues.”). Procedural bar notwithstanding, the claim is without merit.
¶36. Under the Castle Doctrine, “if the defendant is in a place where he had a right to be,
is not the immediate provoker and aggressor, and is not engaged in unlawful activity, he has
no duty to retreat before using defensive force.” Newell v. State, 49 So. 3d 66, 74 (¶ 22)
(Miss. 2010) (discussing Miss. Code Ann. § 97-3-15(4)). The Castle Doctrine is codified
under the justifiable homicide statute at Mississippi Code Section 97-3-15(3) and (4) as
follows:
(3) A person who uses defensive force shall be presumed to have reasonably
feared imminent death or great bodily harm, or the commission of a felony
upon him or another or upon his dwelling, or against a vehicle which he was
occupying, or against his business or place of employment or the immediate
premises of such business or place of employment, if the person against whom
the defensive force was used, was in the process of unlawfully and forcibly
entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle,
business, place of employment or the immediate premises thereof or if that
person had unlawfully removed or was attempting to unlawfully remove
another against the other person’s will from that dwelling, occupied vehicle,
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business, place of employment or the immediate premises thereof and the
person who used defensive force knew or had reason to believe that the
forcible entry or unlawful and forcible act was occurring or had occurred. This
presumption shall not apply if the person against whom defensive force was
used has a right to be in or is a lawful resident or owner of the dwelling,
vehicle, business, place of employment or the immediate premises thereof or
is the lawful resident or owner of the dwelling, vehicle, business, place of
employment or the immediate premises thereof or if the person who uses
defensive force is engaged in unlawful activity or if the person is a law
enforcement officer engaged in the performance of his official duties;
(4) A person who is not the initial aggressor and is not engaged in unlawful
activity shall have no duty to retreat before using deadly force under
subsection (1)(e) or (f) of this section if the person is in a place where the
person has a right to be, and no finder of fact shall be permitted to consider the
person’s failure to retreat as evidence that the person’s use of force was
unnecessary, excessive or unreasonable.
Miss. Code Ann. § 97-3-15(3), (4) (Rev. 2014). Subsections (1)(e) and (f), referenced in
subsection (3), provide:
(1) The killing of a human being by the act, procurement or omission of
another shall be justifiable in the following cases:
...
(e) When committed by any person in resisting any attempt unlawfully to kill
such person or to commit any felony upon him, or upon or in any dwelling, in
any occupied vehicle, in any place of business, in any place of employment or
in the immediate premises thereof in which such person shall be;
(f) When committed in the lawful defense of one’s own person or any other
human being, where there shall be reasonable ground to apprehend a design
to commit a felony or to do some great personal injury, and there shall be
imminent danger of such design being accomplished . . . .
Miss. Code Ann. § 97-3-15(1)(e), (f) (Rev. 2014). To summarize, the Castle Doctrine
includes two prongs:
First, under subsection (4), if the defendant is in a place where he had a right
19
to be, is not the immediate provoker and aggressor, and is not engaged in
unlawful activity, he has no duty to retreat before using defensive force. Miss.
Code Ann. § 97-3-15(4) (Rev. 2006). And second, if the jury finds that any of
the circumstances in subsection (3) are satisfied, the defendant who uses such
defensive force is presumed to have reasonably feared imminent death or great
bodily harm or the commission of a felony upon him. Miss. Code Ann. § 97-3-
15(3) (Rev. 2006).
Newell v. State, 49 So. 3d 66, 74 (Miss. 2010). The circumstances in subsection (3) are that
the person against whom the defensive force was used (1) had unlawfully and forcibly
entered “a dwelling, occupied vehicle, business, place of employment or the immediate
premises thereof” or (2) had unlawfully removed another person “against the other person’s
will from that dwelling, occupied vehicle, business, place of employment or the immediate
premises thereof” – or he or she was in the process of doing one of the enumerated things.
Miss. Code Ann. § 97-3-15(3) (Rev. 2014).
¶37. As to the first prong, Tommy certainly had a right to be at his auto shop and there was
no evidence that he was engaged in any unlawful activity. The testimony points to Krystal
as the initial aggressor, with Teresa pinning down Tommy after he tried to remove Krystal
from the auto shop. The evidence does not point to Tommy as the “immediate provoker and
aggressor.” Therefore, he did not have a duty to retreat before using defensive force.
¶38. For the second prong, the jury must find one of the circumstances in subsection (3)
for the presumption to apply. There is no evidence that Teresa was attempting to remove
another person from the garage, so that situation is not relevant. Regarding unlawful or
forcible entry, the record indicates that Teresa was a family friend who would have been
welcome in Tommy’s garage under most circumstances. Tommy had asked Krystal to leave
20
and was attempting to escort her outside when Teresa came in. There was no testimony that
Teresa was not welcome when she arrived or that she had entered unlawfully or forcibly.
Once Teresa and Tommy began fighting, her presence may have become unwelcome, but the
standard requires that “the person against whom the defensive force was used, was in the
process of unlawfully and forcibly entering, or had unlawfully and forcibly entered[.]” Miss.
Code Ann. § 97-3-15(3) (Rev. 2014). The evidence does not support, and Tommy does not
argue, that Teresa entered the garage unlawfully or forcibly.
¶39. A question arises however, as to whether Teresa unlawfully or forcibly entered
Tommy’s inner office, where the shooting occurred. The testimony indicated that Tommy
walked into his office to get the phone – according to Tommy, Teresa entered his office after
he stopped to drink a beer – and that he did not shut the door behind himself. Teresa then
followed him into the office. According to Tommy, Teresa charged after him, only seconds
behind him, and he did not have time to close the door. However, Samantha and Charee
testified that Teresa walked calmly into the office after Tommy had been in the office for at
least a few seconds. No one testified that Tommy told Teresa to leave, or that Tommy fled
the office to escape from Teresa, or that Tommy tried to keep Teresa out of the office.
Whether Teresa entered the office “unlawfully and forcibly” certainly is unclear. The only
testimony that she followed him quickly into the office and that he did not have time to shut
the door was from Tommy, but Tommy also testified that he stopped and drank a beer before
going into his office.
¶40. Again, “[f]actual disputes are properly resolved by a jury and do not mandate a new
21
trial.” Beasley, 136 So. 3d at 403 (¶ 35) (citing Temple, 498 So. 2d at 382). As in most
cases, the instant case is not without factual disputes and discrepancies among witness
testimony. However, those issues are for the jury.
On questions of witness testimony, this Court has held that “[t]he jury
determines the weight and credibility to give witness testimony and other
evidence.” Moore v. State, 933 So. 2d 910, 922 (Miss. 2006) (citing Johnson
v. State, 904 So. 2d 162, 167 (Miss. 2005)). This Court “may not ‘pass upon
the credibility of witnesses and, where the evidence justifies a verdict, it must
be accepted as having been found worthy of belief.’” Id. (quoting Davis v.
State, 568 So. 2d 277, 281 (Miss. 1990)).
Barfield v. State, 22 So. 3d 1175, 1187-88 (¶ 46) (Miss. 2009). The Court must presume that
the jury considered the jury instructions – including the Castle Doctrine instruction and the
related evidence and testimony. See Gray, 728 So. 2d at 63 (¶ 127); Chase, 645 So. 2d at
853. The evidence presented supports the jury verdict, and the trial court did not err in
denying Tommy’s motion for a new trial.
C. The Dissent
¶41. The dissent would reverse Flynt’s conviction for a violation of his right to a speedy
trial, despite the fact that never during the pendency of the litigation – either now on appeal
or below in the trial court – has Flynt raised the issue. Two long-held principles direct us
not to consider the issue. First, this Court has long held that issues not raised on appeal are
procedurally barred from consideration. Hood ex rel. State Tobacco Litigation, 958 So. 2d
790, 815 (¶ 86) n.17 (Miss. 2007); Glover v. Jackson State Univ., 755 So. 2d 395, 398 (¶ 7)
n.1 (Miss. 2000). Second, the Court will not hold a trial court in error for issues not
presented to it for consideration. Moffett v. State, 49 So. 3d 1073, 1101 (¶ 91) (Miss. 2010).
22
¶42. Thus, the only avenue available for review of a speedy-trial issue is through the use
of the plain-error doctrine. According to the dissent, the Court is “obligated to grant relief
on the basis of plain error”; however, Mississippi Rule of Appellate Procedure 28(a)(3)
(emphasis added), which provides the basis for the plain-error doctrine, states that the Court
“may, at its option, notice a plain error not identified or distinctly specified.” Accordingly,
the Court’s decision to utilize plain error is discretionary, not obligatory. “It is the immutable
obligation of a court to sit, and to sit only, as an objective and indifferent arbiter of the rights
of the litigants.” Browning v. Shackelford, 196 So. 2d 365, 373 (Miss. 1967). To place
upon ourselves as justices and judges a duty to scour the record in order to discover potential
error where none was suggested at any point by any party would be to put the Court in a
position too closely resembling that of a interested litigant, and that we shall not do.
¶43. Flynt failed to raise a speedy-trial issue at any time during his trial or appeal, and we
now decline to address it utilizing plain error.
Conclusion
¶44. The evidence presented by the State was legally sufficient to allow the jury to
conclude, beyond a reasonable doubt, that Tommy was guilty of manslaughter. The jury
determined the credibility of the witness testimony, and the evidence does not “preponderate
heavily against the verdict” such that allowing the verdict to stand would “sanction an
unconscionable injustice.” Thus, it was not an abuse of discretion for the trial court to deny
Tommy’s motion for JNOV or for a new trial, and we affirm the judgment of the Forrest
County Circuit Court.
23
¶45. CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FIFTEEN (15) YEARS TO SERVE, AN ADDITIONAL
CONSECUTIVE FIVE (5) YEARS TO SERVE, AND FIVE (5) YEARS POST-
RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED. APPELLANT
SHALL PAY A FINE IN THE AMOUNT OF $5,000, AND ALL COURT COSTS
BEGINNING SIXTY (60) DAYS AFTER RELEASE IN A MONTHLY AMOUNT TO
BE DETERMINED BY APPELLANT’S SUPERVISING OFFICER.
WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER AND PIERCE, JJ.,
CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY DICKINSON, P.J., AND KING, J.
KITCHENS, JUSTICE, DISSENTING:
¶46. When it is clear that an error in the trial court adversely impacted a fundamental right
of a criminal defendant, this Court is obligated to grant that defendant relief on the basis of
plain-error review.2 Sanders v. State, 678 So. 2d 663, 71 (Miss. 1996). “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). Moreover, the
Sixth Amendment right to a speedy trial “is one of the most basic rights preserved by our
Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S. Ct. 988, 995, 18 L. Ed.
2d 1 (1967). In this case, 1,483 days passed between Thomas Flynt’s indictment and his
trial. Because Flynt’s right to a speedy trial clearly has been violated and this violation goes
unaddressed by the majority, I respectfully dissent.
2
Thomas Flynt, the criminal defendant in this case, has been limited by the arguments
made by his counsel at both the trial and appellate level. Thus, because Flynt challenges
only the weight of the evidence in his brief on appeal, we cannot consider some of the more
interesting, novel arguments that are lurking beneath the surface. For example, whether the
Castle Doctrine automatically renders insufficient the evidence supporting a conviction for
manslaughter is not before this court at present.
24
Constitutional Right to a Speedy Trial
¶47. The right to a speedy trial is secured by the Sixth Amendment to the United States
Constitution and Article 3, Section 26, of the Mississippi Constitution. U.S. Const. amend.
VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed
of the nature and cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defence.”) (emphasis added); Miss Const. art. 3, § 26 (“In all criminal
prosecutions the accused shall have a right to be heard by himself or counsel, or both, to
demand the nature and cause of the accusation, to be confronted by the witnesses against
him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions
by indictment or information, a speedy and public trial by an impartial jury of the county
where the offense was committed.”) (emphasis added). To analyze constitutional speedy-trial
claims, we utilize the four-part test articulated by the United States Supreme Court in Barker
v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which balances: (1) the
length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and
(4) the prejudice to the defendant. The Barker Court explained that each case should be
considered on an “ad hoc basis” and that no one factor is outcome determinative. Id. at 530.
The Court wrote:
We regard none of the four factors identified above as either a necessary or
sufficient condition to the finding of a deprivation of the right of speedy trial.
25
Rather, they are related factors and must be considered together with such
other circumstances as may be relevant. In sum, these factors have no
talismanic qualities; courts must still engage in a difficult and sensitive
balancing process.
Id. at 533.
(1) Length of the Delay
¶48. The constitutional right to a speedy trial attaches “at the time of a formal indictment
or information or else the actual restraints imposed by arrest and holding to a criminal
charge.” Handley v. State, 574 So. 2d 671, 674 (Miss. 1990) (quoting Lightsey v. State, 493
So. 2d 375, 378 (Miss. 1986), superceded by statute on other grounds). Flynt was indicted
on September 24, 2009. His trial began on October 15, 2013. Some 1,483 days passed
between Flynt’s arrest and indictment. This Court has held that a delay of eight months, or
270 days, is “presumptively prejudicial.” Johnson v. State, 68 So. 3d 1239, 1247 (Miss.
2011). The United States Supreme Court has held that “the presumption that pretrial delay
has prejudiced the accused intensifies over time.” Doggett v. United States, 505 U.S. 647,
652, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). The delay in this case, 1,483 days, exceeds
this Court’s “presumptively prejudicial” threshold more than fivefold. This factor weighs
heavily against the State.
(2) Reason for the Delay
¶49. As for Barker’s second criterion, the Court weighs governmental negligence heavily
against the State. See Doggett, 505 U.S. at 652-653. The record is clear regarding the reason
for the delay. Flynt’s trial was scheduled to commence on February 22, 2010. Because the
prosecutor had another trial scheduled on that date, the trial was rescheduled for May 24,
26
2010, 243 days after Flynt had been indicted. On May 25, 2010, the State moved, ore tenus,
for the case to pass to the Circuit Court of Forrest County’s inactive files. The State averred
that it was not prepared to go to trial because “some evidence has been misplaced, lost, or
inadvertently destroyed while in the custody of the Hattiesburg Police Department.” This
case remained in the inactive files of the court until June 21, 2013, when the State filed a
motion to reinistate the case to the Circuit Court of Forrest County’s active docket. The State
contended that there was no speedy-trial issue with reactivating the case because “the
defendant has been at liberty since the time of his indictment.” When the State filed the
motion to reactivate the case, 1,367 days had elapsed since the date Flynt was indicted. The
prosecutor implied that the State’s failure to prosecute the case was due to the district
attorney’s prosecutorial discretion. The prosecutor explained that,“a different District
Attorney and Assistant District Attorney . . . passed [the case] to files. . . . The indictment
came down in September of [20]09. It was passed on May 25, [20]10, and reinstated on July
25, 2013, under the new administration.” (Emphasis added.) After the case was reactivated
from the court’s files, a trial date was set for October 15, 2013.
¶50. In this case, the government’s negligent loss of its own evidence and failure to
investigate the case should be weighed heavily against the State and not at all against the
accused. Moreover, the case had remained dormant in the circuit court’s files for more than
three years because the district attorney had decided not to pursue this charge. The
government’s decision to forego or defer prosecution in this case should be weighed heavily
against the State for the purpose of a speedy-trial analysis.
27
(3) Whether the defendant asserted his right to a speedy trial.
¶51. Next, we must consider whether Flynt asserted his right to a speedy trial. The record
is clear that Flynt did not raise this right in the trial court. However, this must be considered
in light of the circumstances of the case.
¶52. On May 25, 2010, the State made an ore tenus motion to pass this case to the circuit
court’s inactive files 243 days after Flynt had been indicted. In other words, when the case
was active, Flynt’s constitutional right to a speedy trial had not been implicated, because 270
days had not passed. See Johnson, 68 So. 3d at 1247. “It is not the duty of the accused to
bring himself to trial. . . . It is the State, of course, that bears the burden of bringing an
accused to trial in a speedy manner.” McGhee v. State, 657 So. 2d 799, 804 (Miss. 1995)
(citations omitted). A prosecutor’s decision to pass a case to the circuit court’s files, in
effect, holds the indictment in abeyance or acts as a dismissal without prejudice. See Ross
v. Milner, 194 Miss. 497, 12 So. 2d 917, 919 (Miss. 1943) (“[T]he Court said in view of the
fact that the indictment had been remanded to the files that ‘If it be true that the indictment
in question was filed away as claimed by appellant, then there was no prosecution pending
in court at the June term; hence no order forfeiting the bond could be legally made, nor could
any judgment be legally rendered upon said bond, and such judgment would be clearly
erroneous, if not absolutely void.’”) (quoting Hall v. Commonwealth, 17 Ky. Law Reptr.
231, 30 S.W. 877 (1895)). Because passing a case to the files operates as a dismissal without
prejudice, we have recognized in the past that a “district attorney may be willing to pass an
indictment to the files pending good behavior, or for other cause, when he would be
28
unwilling to recommend a nolle prosequi, and it often happens that a defendant is willing to
accept this arrangement as the best settlement available.” Gordon v. State, 127 Miss. 396,
90 So. 95 (1921). Furthermore, we have held that a prosecutor’s decision to pass an
indictment to the court’s inactive files, like an order of nolle prosequi, is not an acquittal on
the merits and does not implicate a criminal defendant’s right against double jeopardy.
Beckwith v. State, 615 So. 2d 1134, 1147 (Miss. 1992). However, it is clear that while the
case remains in the circuit court’s files, the case is inactive. Ross, 12 So. 2d at 919.
Therefore, if the defendant were to file a motion in circuit court while his criminal case was
inactive, any judgment the court made on that motion would be void. See id. Thus, at the
point in time that Flynt’s constitutional right to a speedy trial attached, his case was in
abeyance, there was no reason for him to press a speedy-trial claim, and, even if he had filed
a motion concerning the length of the delay in this case, any judgment that may have issued
on his speedy-trial motion would have been void. See id.
¶53. Flynt’s indictment remained dormant in the court’s inactive files from May 25, 2010,
until June 24, 2013. At that time, the trial court reinstated the State’s case on its active
docket on the prosecutor’s motion. When the Court reinstated the case to its active docket,
1,369 days had passed since Flynt had been indicted. The trial court scheduled Flynt’s trial
for October 15, 2013, giving Flynt a little more than three months to prepare for trial. By this
time Flynt was being represented by the Office of the Public Defender and not the private
attorney who represented him prior to the passing of his case to the court’s inactive files.
Flynt’s new trial counsel averred that the file containing the defense’s investigative materials
29
had been kept in a storage unit during the time that Flynt’s case was inactive. While the
defense investigative file was in storage, it suffered severe water damage. Flynt’s trial
attorney asserted that the file had been damaged beyond repair and that she could not be sure
of what the file contained, but she believed it included the results of investigations into the
case and interviews done with witnesses. The defense attorney asserted that she needed to
reconstruct the contents of the file, but she would not have time to do so in time for the
October 15, 2013, trial date. The trial court denied Flynt’s motion for a continuance for the
purpose of reconstructing the case file. Thus, during the time his case was reinstated to the
trial court’s active docket, it was clear that all preparation that had been done for his original
trial had been destroyed. Under these circumstances, Flynt understandably sought and was
denied a continuance and did not assert his right to a speedy trial.
¶54. Thus, because Flynt did not raise his right to a speedy trial in the trial court, this factor
weighs against him. Jaco v. State, 574 So. 2d 625, 632 (Miss. 1990). But, given the unique
circumstances of this case, it is readily understandable and should not weigh against him.
(4) Prejudice to the Defendant
¶55. The United States Supreme Court has held that unreasonable pretrial delay threatens
to produce more than one sort of harm, including “oppressive pretrial incarceration,” “anxiety
and concern of the accused,” and “the possibility that the [accused’s] defense will be
impaired” by dimming memories and loss of exculpatory evidence. Barker, 407 U.S. at 532.
Of these forms of prejudice, “the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.” Id.30
¶56. In this case, Flynt was not incarcerated between his indictment and his trial.
Moreover, the record is devoid of information concerning his anxiety or concern regarding
trial. But the record is clear that Flynt’s defense suffered significant impairment as a result
of the delay in this trial. When the State moved to pass this case to the court’s inactive files,
the prosecution informed the judge that it was not prepared to go to trial because “some
evidence has been misplaced, lost, or inadvertently destroyed while in the custody of the
Hattiesburg Police Department.” The record is unclear about the nature of this evidence,
given that it was destroyed. But, it is well established that criminal defendants have a
significant constitutional interest in evidence that is “material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S.
83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In Barker, the United States Supreme Court
explicitly recognized that impairment of an accused’s defense is the most difficult form of
speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony
“can rarely be shown.” Barker, 407 U.S. at 532. “And though time can tilt the case against
either side, one cannot generally be sure which of them it has prejudiced more severely.”
Doggett, 505 U.S. at 655. Thus, the United States Supreme Court has held that the
destruction of evidence “presumptively compromises the reliability of a trial in ways that
neither party can prove or, for that matter, identify.” Id. at 655 (emphasis added).
¶57. But the Hattiesburg Police Department’s loss of evidence was not the only instance
in which the record is clear that evidence dissipated prior to Flynt’s trial. During the time
that Flynt’s case lay in the inactive court files, Flynt’s original lawyer had stored his case file,
31
complete with the results of investigations and interviews. During the course of the three-
year delay, the case file suffered irreparable damage, and Flynt lost the benefit of all of the
file’s contents.
¶58. It therefore is clear that Flynt suffered actual prejudice by the delay in his trial due to
loss of evidence. See Doggett, 505 U.S. at 655.
Conclusion
¶59. Having conducted a thorough Barker analysis, I believe that Flynt’s federal and state
constitutional rights to a speedy trial clearly have been violated. I respectfully dissent.
DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.
32