      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2013-KA-01212-COA

JAMES DOUGLAS MCKNIGHT A/K/A JAMES                  APPELLANT
MCKNIGHT A/K/A JAMES D. MCKNIGHT

v.

STATE OF MISSISSIPPI                                  APPELLEE


DATE OF JUDGMENT:              06/21/2013
TRIAL JUDGE:                   HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED:     PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:        CHARLES E. MILLER
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: STEPHANIE BRELAND WOOD
DISTRICT ATTORNEY:             DEE BATES
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF COUNT ONE, MURDER,
                               AND COUNT TWO, POSSESSION OF A
                               FIREARM BY A CONVICTED FELON, AND
                               SENTENCED AS A HABITUAL OFFENDER
                               ON BOTH COUNTS TO LIFE IN THE
                               CUSTODY OF THE MISSISSIPPI
                               DEPARTMENT OF CORRECTIONS
                               WITHOUT THE POSSIBILITY OF
                               PROBATION, PAROLE, OR EARLY
                               RELEASE, WITH THE SENTENCES TO
                               RUN CONSECUTIVELY, AND TO PAY
                               FINES IN THE AMOUNT OF $10,000 ON
                               COUNT ONE, AND $1,000 ON COUNT
                               TWO, AND $6,000 IN RESTITUTION
DISPOSITION:                   AFFIRMED - 05/19/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE LEE, C.J., BARNES AND MAXWELL, JJ.

     BARNES, J., FOR THE COURT:
¶1.      James McKnight was convicted of murder and possession of a firearm by a convicted

felon and was sentenced to life in the custody of the Mississippi Department of Corrections

(MDOC) on both counts, as a habitual offender without possibility for probation, parole, or

early release, with the sentences to run consecutively.

¶2.      On appeal, McKnight argues that numerous errors warrant a new trial. Finding no

reversible error, we affirm McKnight’s convictions and resulting sentences.

                        FACTS AND PROCEDURAL HISTORY

¶3.      On August 30, 2011, James McKnight contacted Mary Marsalis, asking if she had

seen a mutual acquaintance, Derrick Witherspoon, also known as “Twin.” Mary stated she

had not seen Twin, and McKnight asked her to let Twin know McKnight was looking for

him. A few minutes later, Twin arrived at Mary’s house, and Mary related McKnight’s

desire to talk to him. Mary then called McKnight on the telephone, and Twin spoke with

him. When Twin hung up the phone, he told Mary that McKnight was on his way to her

house.

¶4.      Shortly thereafter, McKnight, his wife, Barbara, and Alreco Hill, a friend of the

McKnights, pulled up in McKnight’s SUV. McKnight was upset because he had not heard

from his adult son, James “J.J.” McKnight Jr., in several days, and he suspected that Twin

was involved with J.J.’s disappearance. Twin claimed he did not know where J.J. was, but

McKnight did not believe him and continued to question him. McKnight asked Twin to get

into the SUV several times, and Twin finally complied.

¶5.      The four drove off and proceeded through the town of McComb, Mississippi, with



                                             2
McKnight continuing to question Twin regarding J.J.’s whereabouts. When the SUV

stopped at a traffic light, Twin tried to jump out of the vehicle. McKnight pulled out a .380

caliber gun and warned Twin that if he tried to run away again, McKnight would shoot him.

Twin sat back in his seat and closed the door. The SUV later stopped at the intersection of

Avenue E and Locust Street, and Twin jumped out of the vehicle and ran away. According

to Hill, McKnight fired two shots and pursued Twin. Hill also got out of the SUV, following

McKnight. McKnight fired more shots at Twin, and then McKnight and Hill returned to the

SUV. McKnight told Hill, “What just happened stays in the truck.”

¶6.    While these events were occurring, David Wells and Terry Williams, McKnight’s

uncle, were helping a neighbor move into a nearby home on Locust Street. Wells was sitting

outside the home, and heard the gunfire. He saw the doors to the SUV open and three people

run from the vehicle. Williams, who was in the garage, also heard the shots and ran outside.

He observed two men running from the SUV, which he recognized as belonging to his

nephew, McKnight. Williams heard more gunfire as he began walking toward the SUV. As

Williams attempted to question Barbara about the situation, he encountered McKnight and

Hill returning to the SUV. McKnight was holding a gun. The two men got into the SUV

with Barbara, and the three drove away. Williams returned to his friend’s home and told

Wells that “his nephew done got himself in some trouble.” Wells called 911 and reported

the incident.

¶7.    Barbara dropped McKnight off at his father’s home, and then drove back to Mary’s

house to instruct her to say that Mary had not seen Twin that day. Hill and Barbara then went



                                             3
to the McKnights’ house to pick up clothes and the McKnights’ two younger sons, picked

up McKnight at his father’s house, and drove to Jackson, Mississippi. Soon thereafter, J.J.,

who was in Oklahoma and avoiding his father because of an argument, called Hill’s phone

and talked to McKnight. Since Hill’s mother lived in Jackson, McKnight dropped him off

there, telling Hill that “it [was]n’t really supposed to happen that way” and instructing him

to keep quiet.

¶8.    Police officers recovered Twin’s deceased body, along with shell casings from a .380

caliber gun and a partial projectile, in a cane patch near the intersection of Avenue E and

Locust Street. An autopsy revealed that Twin died of multiple gunshot wounds, and the

manner of death was ruled a homicide. The projectiles removed from the body were

determined to be .380 caliber, and they were fired from the same gun. McKnight’s SUV was

later found stripped and abandoned in Jackson. After a search warrant was issued, the

Mississippi Bureau of Investigations processed the vehicle and found a .380 shell casing in

the rear cargo area.

¶9.    McKnight was arrested and charged with murder and possession of a firearm by a

convicted felon. Barbara and Hill were both charged with accessory after the fact.1 After

a jury trial in Pike County Circuit Court, McKnight was convicted on June 13, 2013, on both

counts, and sentenced as a habitual offender pursuant to Mississippi Code Annotated section

99-19-83 ( Rev. 2007) to life in the custody of the MDOC for each count, with the sentences

       1
        Their cases were severed from McKnight’s case. The record is silent as to the
outcome of Barbara’s case. Hill, who agreed to testify against McKnight, pleaded guilty and
was sentenced to ten years, with eight years suspended and two years to serve in the custody
of the MDOC.

                                             4
to run consecutively.2 He was also fined $10,000 for the murder count, and $1,000 for the

possession of a firearm by a convicted felon count.

¶10.   Prior to sentencing, McKnight was granted a substitution of counsel; his new attorney

filed several post-trial motions, including a motion for a judgment notwithstanding the

verdict (JNOV), or alternatively, a motion for a new trial.3 After a hearing, the circuit court

denied all motions. McKnight now appeals, alleging several errors. Upon review, we find

no reversible error and affirm the circuit court’s judgment.

                                       DISCUSSION

       I.     Whether the evidence was sufficient to sustain the verdict.

¶11.   In his motion for a JNOV, McKnight argued that the State’s case relied entirely on

circumstantial evidence; thus, the evidence was not sufficient to sustain the verdict. The

circuit court denied his motion. On appeal, he reasserts this argument, claiming that the

witnesses’ testimonies were unreliable.

¶12.   “A motion for JNOV challenges the legal sufficiency of the evidence.” Abeyta v.

State, 137 So. 3d 305, 311 (¶14) (Miss. 2014) (quoting Taylor v. State, 110 So. 3d 776, 782

(¶19) (Miss. 2013)). In its determination of whether to grant or deny the motion, the circuit


       2
         McKnight had two prior felony convictions, for which he served a term of one year
or more, with at least one conviction being a crime of violence. See Miss. Code Ann. § 99-
19-83. On October 21, 1981, McKnight pleaded guilty to attempted armed robbery without
a firearm, and he was sentenced to twelve years in the custody of the MDOC. On March 30,
1992, he pleaded guilty to accessory before the fact of robbery, and was sentenced to five
years.
       3
        The substituted counsel, Charles Miller, also made an appearance at the trial, stating
that he would represent McKnight at trial if a continuance could be granted. As the circuit
judge denied the continuance, McKnight proceeded with his already-assigned trial counsel.

                                              5
court “considers the credible evidence in the light most favorable to the verdict.” Id.

       If after viewing all credible evidence in the light “most favorable to the State,
       the evidence shows beyond a reasonable doubt that the accused committed the
       act charged, and that he did so under such circumstances that every element of
       the offense existed,” then the evidence will be deemed legally sufficient and
       the verdict will be upheld.

Riley v. State, 126 So. 3d 1007, 1010 (¶12) (Miss. Ct. App. 2013) (quoting Melton v. State,

118 So. 3d 605, 610 (¶20) (Miss. Ct. App. 2012)).

¶13.   McKnight was convicted of murder under Mississippi Code Annotated section 97-3-

19(1)(a) (Rev. 2006), which defines murder as “[t]he 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[.]” He was also convicted of

possession of a weapon by a convicted felon pursuant to Mississippi Code Annotated section

97-37-5(1) (Supp. 2012), which states that “[i]t shall be unlawful for any person who has

been convicted of a felony under the laws of this state, any other state, or of the United States

to possess any firearm[.]”      We find the evidence sufficient to support McKnight’s

convictions on both counts.

¶14.   Marsalis saw Twin get into the SUV with McKnight and the others shortly before his

death. Hill testified that McKnight threatened Twin with a gun and then fired the gun at

Twin multiple times when he ran from the SUV. The evidence revealed that Twin died as

a result of gunshot wounds, and the projectiles retrieved from Twin’s body match the caliber

of the gun that McKnight was believed to have possessed.             McKnight’s uncle, Terry

Williams, stated that he saw a gun in McKnight’s hand after he heard the gunshots fired.



                                               6
McKnight’s other uncle, Bruce Williams, testified that he saw McKnight the morning of

Twin’s murder and that McKnight was upset over his son’s disappearance. He further stated

he saw a .380 caliber gun in McKnight’s vehicle approximately a week prior to the shooting.

The shell casings confiscated from McKnight’s SUV and the crime scene were .380 caliber.

¶15.   Viewing the evidence and testimony in the light most favorable to the verdict, this

Court finds there is sufficient evidence to support McKnight’s convictions.

       II.    Whether the verdict was against the overwhelming weight of the
              evidence.

¶16.   McKnight also argues that a new trial is warranted, as the verdict was against the

overwhelming weight of the evidence. “[A] motion for a new trial challenges the weight of

the evidence.” Riley, 126 So. 3d at 1010 (¶12) (quoting Melton, 118 So. 3d at 609 (¶17)).

Unless the jury’s verdict “is so contrary to the overwhelming weight of the evidence that to

allow it to stand would sanction an unconscionable injustice,” we will not disturb it on

appeal. Id. (quoting Melton, 118 So. 3d at 610 (¶17)).

¶17.   McKnight argues that he is entitled to a new trial because Hill’s testimony was

“unreliable” and “self-serving,” as he was a co-defendant. He cites Flanagan v. State, 605

So. 2d 753 (Miss. 1992), a case in which the defendant was convicted solely on testimony

by an alleged co-conspirator. The Mississippi Supreme Court concluded in Flanagan that

the uncorroborated testimony of alleged accomplice, which was contradictory and

substantially impeached, would not support a conviction for conspiracy to manufacture

marijuana. Id. at 758.

¶18.   The State argues that Hill was not an accomplice; he was charged as an accessory after


                                             7
the fact for assisting McKnight after Twin’s murder. We agree.

       Our supreme court has described an accomplice as “a person who is implicated
       in the commission of the crime.” Slaughter v. State, 815 So. 2d 1122, 1134
       (¶66) (Miss. 2002). In other words, if the evidence gives a reasonable
       inference that the person may have been a co-perpetrator or the sole
       perpetrator, then the person is an accomplice. Id. (quoting Williams v. State,
       729 So. 2d 1181, 1188 (¶31) (Miss. 1998)). On the other hand, an accessory-
       after-the-fact has been defined as “a person assisting one who has completed
       the commission of a felony to avoid being apprehended, arrested, convicted,
       etc.” Chase v. State, 645 So. 2d 829, 851 (Miss. 1994).

Bailey v. State, 960 So. 2d 583, 590 (¶30) (Miss. Ct. App. 2007). In Bailey, we found “[n]o

evidence . . . that Tharpe agreed with Bailey to murder Kirtland, that she planned the murder,

that she helped Bailey stab Kirtland or that she encouraged Bailey at any time during the

murder.” Id. at (¶31). Rather, the evidence demonstrated that Tharpe helped Bailey clean

up after the murder and failed to notify authorities of the murder until confronted with

evidence more than a year later. Id. Because “Tharpe’s actions assisted Bailey after the

murder[,] and . . . her silence allowed Bailey to avoid being apprehended and punished[, her]

actions are considered those of an accessory-after-the-fact, the charge to which she pled

guilty.” Id.

¶19.   Similarly, in this case, there was no evidence presented that Hill helped plan or

facilitate Twin’s murder. While Hill did leave the SUV with McKnight, there is no evidence

that he assisted McKnight in shooting Twin or had planned to do so. The only other

evidence of his participation was going to Mary’s house to instruct her to keep silent and

assisting McKnight and his wife in going to Jackson to avoid arrest. He also waited a few

days before notifying authorities of his involvement.



                                              8
¶20.   Moreover, the alleged accomplice’s testimony in Flanagan was refuted by other

testimony and entirely uncorroborated. Here, although Hill was the only person who testified

that McKnight shot Twin, several witnesses corroborated Hill’s version of the events

surrounding Twin’s murder. Marsalis saw Twin get into the vehicle with McKnight and Hill.

Terry Williams saw McKnight with a gun in his hand after he heard the shots and saw the

men running. Thus, Hill’s testimony was not substantially impeached. As to the reliability

and weight of Hill’s testimony, the supreme court has held that “the jury will be the sole

judge of the credibility of witnesses and the weight and worth of their testimony.” Gathright

v. State, 380 So. 2d 1276, 1278 (Miss. 1980). The jury listened to Hill’s testimony, including

his admission that he had initially lied to police and evidently believed his testimony that

McKnight shot at Twin multiple times.

¶21.   When viewed in the light most favorable to the verdict, we find the weight of the

evidence does not preponderate so heavily against the verdict that to allow it to stand would

sanction an unconscionable injustice. Accordingly, we hold that the circuit court correctly

denied McKnight’s motion for a new trial.

       III.   Whether probable cause existed to arrest McKnight.

¶22.   After an arrest warrant was issued for McKnight, he surrendered to authorities in

Tulsa, Oklahoma, and waived his right to extradition. McKnight did not address this issue

prior to trial. Rather, in his motion for a JNOV, McKnight claimed for the first time that he

was subject to an illegal arrest. He claims on appeal that his arrest was illegal and not based

on probable cause because of the “lack of corroborative evidence and the unreliability of



                                              9
[S]tate witnesses.”

¶23.   We find no basis for McKnight’s argument on appeal. “Arrest warrants or search

warrants shall be issued only by the judge after a judicial determination that probable cause

exists based upon the affidavit or other evidence before the court.” State v. Woods, 866 So.

2d 422, 425 (¶10) (Miss. 2003). Based on the investigation by law enforcement and the

conclusions of the medical examiner, there was cause to believe a homicide had been

committed. Marsalis told police that Twin had gotten into the SUV with McKnight shortly

before his murder. Furthermore, Hill gave a statement to police, claiming that McKnight was

responsible for the shooting. Consequently, we find probable cause existed to arrest

McKnight for Twin’s murder.

       IV.    Whether the circuit court erred in denying McKnight’s motion to
              suppress evidence obtained as a result of the search warrants.

¶24.   McKnight claims there was insufficient probable cause to support the issuance of

search warrants for his vehicle and mobile phone. However, McKnight never filed a motion

to suppress the evidence obtained from the search warrants. At trial, when evidence from

the SUV was introduced, no objection was made as to its admissibility. As McKnight did

not raise this claim in circuit court, it is barred from review by this Court. “Failure to raise

an issue at trial bars consideration on an appellate level.” Parisi v. State, 119 So. 3d 1061,

1066 (¶19) (Miss. Ct. App. 2012) (citing Walker v. State, 913 So. 2d 198, 224 (¶86) (Miss.

2005)). Furthermore, no evidence obtained from McKnight’s mobile-phone records was

actually admitted at trial. This issue is barred from appellate review.

       V.     Whether the circuit court erred in allowing evidence stemming

                                              10
              from the photographic lineups.

¶25.   Although McKnight argues that evidence of the photographic evidence was violative

of his rights, the record reflects that no evidence of the photographic lineup was presented

at trial, which the circuit judge noted in the post-trial motions hearing. Accordingly, this

issue is without merit.

       VI.    Whether McKnight received ineffective assistance of counsel.

¶26.   McKnight argues that his trial counsel’s failure to file certain motions prejudiced his

defense and constituted ineffective assistance of counsel. A claim of ineffective assistance

of counsel should only be addressed on direct appeal when “(1) the record affirmatively

shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record

is adequate to allow the appellate court to make the finding without consideration of the

findings of fact of the trial judge.” Luster v. State, 143 So. 3d 636, 642 (¶23) (Miss. Ct. App.

2014) (quoting Colenburg v. State, 735 So. 2d 1099, 1101 (¶5) (Miss. Ct. App. 1999)).

“Review of an ineffective-assistance-of-counsel claim on direct appeal is ‘confined strictly

to the record.’” Gill v. State, 126 So. 3d 128, 134 (¶27) (Miss. Ct. App. 2013) (quoting

Colenburg, 735 So. 2d at 1102 (¶6)).

¶27.   We find that the record does not affirmatively show ineffectiveness of constitutional

dimensions, nor have the parties stipulated that the record is adequate to allow this Court to

make a finding without consideration of the circuit court’s findings of fact. Consequently,

we deny relief on this issue without prejudice so that McKnight may, if he desires to do so,

raise his claim in a proper motion for post-conviction relief.



                                              11
       VII.   Whether the circuit court erred in failing to order a mental
              evaluation of McKnight.

¶28.   Prior to being sentenced, McKnight filed a post-trial motion for a psychological

evaluation. In the motion, McKnight stated the purpose for requesting the evaluation was

“twofold: (1) to determine defendant’s mental capacity (2) [to m]itigate sentence.” After

hearing arguments, the circuit judge denied the motion. In his motion for a JNOV, McKnight

again raised the issue of a psychological evaluation, but provided no evidence to support a

finding that he may have been incompetent to stand trial. “The movant bears the burden of

proof to demonstrate by substantial evidence that the defendant is mentally incompetent to

stand trial.” Vanwey v. State, 55 So. 3d 1133, 1136 (¶6) (Miss. Ct. App. 2011) (citing Jones

v. State, 976 So. 2d 407, 412 (¶13) (Miss. Ct. App. 2008)).

¶29.   McKnight now claims on appeal that he “has possible preexisting mental conditions.”

However, McKnight never states what those mental conditions are.             McKnight did

supplement the appellate record with a medical report from MDOC dated April 30, 2014.

However, as this evidence was never presented to the circuit court, it is not eligible for

consideration on appeal. See Parisi, 119 So. 3d at 1066 (¶19).

¶30.   Accordingly, we find no error in the circuit court’s denial of the motion.

       VIII. Whether McKnight was entitled to a change of venue.

¶31.   McKnight filed a motion for a change of venue on February 27, 2013, arguing that “an

impartial jury [could not] be obtained” due to “a highly inflammatory” news article in the

local paper regarding the alleged murder. However, at a docket call on March 19, 2013,

defense counsel explicitly stated that he was not “going forward” with the motion for a


                                            12
change of venue. “[A circuit] judge will not be found in error on a matter not presented to

him for decision.” Hampton v. State, 148 So. 3d 992, 996 (¶8) (Miss. 2014) (quoting

Ballenger v. State, 667 So. 2d 1242, 1256 (Miss. 1995)). Therefore, this issue is barred on

appeal.

       IX.    Whether the first assigned circuit judge’s recusal and the
              withdrawal from representation by the public defender’s office due
              to conflict of interest prejudiced McKnight.

¶32.   A hearing was held on December 4, 2012, to discuss a potential conflict of interest

with McKnight’s appointed defense counsel, with counsel admitting that he had represented

Hill in municipal court to have his bond reduced. The circuit court granted a continuance and

explained to McKnight the necessity because his attorney could not represent him and also

represent a witness or co-defendant in the same case. An order granting substitution of

defense counsel was granted on January 14, 2013.

¶33.   Then, on May 20, 2013, Judge Michael Taylor, the circuit judge originally assigned

to the case, entered an order of recusal and a transfer of the case to Judge David Strong. The

recusal was due to the fact that Judge Taylor discovered he had signed a search warrant on

the case. During the hearing on the motion for a new trial, Judge Strong stated the reason for

the recusal, explaining:

       Well, I’ll just state for the record again, that Judge Taylor could have heard the
       case. The only reason he recused himself in this case is simply an agreement
       between myself and Judge Taylor that when one of us signs warrants, that it
       might be the better practice, if those warrants are challenged, for the other
       judge to hear challenges on the warrants. So it’s simply an agreement between
       the sitting judges in the Fourteenth Circuit Court District, that when one judge
       rules on warrants, then the other judge will preside over the trial of that case
       in case those warrants are challenged. Again, no legal requirement. Judge


                                              13
       Taylor could have – could have heard the case. But due to our agreement, he
       transferred it to me. And it was tried expeditiously thereafter.

(Emphasis added). McKnight claims that he was prejudiced by the delay in Judge Taylor’s

recusal and original counsel’s withdrawal due to the conflict of interest.

¶34.   “When a judge is not disqualified under the constitutional or statutory provisions, the

decision [to recuse] is left up to each individual judge and is subject to review only in a case

of manifest abuse of discretion.” Ford v. State, 121 So. 3d 325, 327-28 (¶10) (Miss. Ct. App.

2013) (quoting Johnson v. State, 70 So. 3d 262, 264 (¶7) (Miss. Ct. App. 2011)). McKnight

does not allege that he suffered prejudice as a result of the circuit judge’s partiality or bias;

he merely claims the delay in the recusal was prejudicial. However, as Judge Strong noted,

McKnight’s trial was held only one month after Judge Taylor recused himself. As there was

no delay as a result of Judge Taylor’s recusal and the transfer of the case to Judge Strong, we

find McKnight was not prejudiced by the recusal.

¶35.   Citing Armstrong v. State, 573 So. 2d 1329, 1334-35 (Miss. 1990), McKnight argues

that representation by an attorney with an actual conflict of interest constitutes ineffective

assistance of counsel and warrants automatic reversal. However, Armstrong is wholly

inapplicable to the present case. In Armstrong, the trial court appointed the same defense

counsel to represent two co-defendants, and he represented them in all proceedings leading

up to entry of guilty pleas and their sentencing. Id. at 1331. Here, once the public defender,

Paul Luckett, discovered he had represented Hill in obtaining his bond, he immediately

withdrew, and new counsel was promptly substituted.

¶36.   We find that McKnight did not suffer any prejudice as a result of defense counsel’s

                                               14
withdrawal. McKnight was granted a continuance and newly appointed counsel had several

months to prepare for the trial. This issue is without merit.

       X.     Whether McKnight’s constitutional right to a speedy trial was
              violated.

¶37.   On June 10, 2013, McKnight entered a motion to dismiss for lack of a speedy trial,

arguing that it had been more than one year since he had been indicted (April 24, 2012) and

arraigned (June 4, 2012). At the pretrial motions hearing, McKnight reasserted his right to

a speedy trial. It was noted that his originally appointed defense counsel had to withdraw six

months after McKnight’s arraignment due to a conflict, and new counsel had to be

substituted. The circuit judge concluded:

       [I]n a technical sense while the length of delay might weigh in Mr.
       McKnight’s favor, the reason for delay certainly does not. The State can’t be
       held responsible for counsel not discovering a conflict and withdrawing from
       a case. It’s just impossible to count that against the State in any manner
       whatsoever. Consequently, that time that first six months while Mr. [Paul]
       Luckett was on the case would have to qualify or be counted against Mr.
       McKnight. In addition to that, there has never been a demand for a speedy
       trial unless and until the filing of this motion for a speedy trial which was
       yesterday, I believe – within the last week.

On appeal, McKnight claims that the delay between the date of his arrest and the date of his

trial was sufficient to trigger a violation of his right to a speedy trial. Although the exact

date of McKnight’s arrest is not apparent from the record, it may be presumed from the

record to have occurred in September 2011. (A newspaper article in the record, dated

September 19, 2011, reported his arrest.)

¶38.   Mississippi Code Annotated section 99-17-1 (Rev. 2007) states: “Unless good cause

be shown, and a continuance duly granted by the court, all offenses for which indictments


                                             15
are presented to the court shall be tried no later than two hundred seventy (270) days after

the accused has been arraigned.” When addressing the question of a whether a defendant’s

constitutional right to a speedy trial has been violated, the balancing test set forth by the

United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972), is applied. “Those

factors to be considered are: ‘(1) the length of the delay, (2) the reason for the delay, (3)

whether the defendant has asserted his right to speedy trial, and (4) whether the defendant

was prejudiced by the delay.” Ellis v. State, 141 So. 3d 415, 418 (¶8) (Miss. Ct. App. 2013)

(quoting Noe v. State, 616 So. 2d 298, 300 (Miss. 1993)).

       A.     Length of Delay

¶39.   “The constitutional right to a speedy trial attaches at the time of arrest, indictment, or

information, when a person has been accused.” Jackson v. State, 121 So. 3d 313, 319 (¶12)

(Miss. Ct. App. 2013) (citing McBride v. State, 61 So. 3d 174, 179 (¶11) (Miss. Ct. App.

2010)). An eight-month delay or longer between the defendant’s arrest and trial “is

presumptively prejudicial.” Id. (quoting Boone v. State, 964 So. 2d 512, 519 (¶14) (Miss. Ct.

App. 2006)). Since the delay between either McKnight’s arrest (September 2011), or his

arraignment (June 4, 2012), and his trial was longer than eight months, we must presume

prejudice and look to the second factor.

       B.     Reason for the Delay

¶40.   Once the delay is presumed to be prejudicial, the State bears the burden “to produce

evidence justifying the delay and to persuade the trier of fact of the legitimacy of these

reasons.” Jackson, 121 So. 3d at 319 (¶13) (quoting DeLoach v. State, 722 So. 2d 512, 517



                                              16
(¶17) (Miss. 2008)). However, as already stated, the circuit judge found that the main cause

of the trial delay was the substitution of defense counsel six months prior to trial due to a

conflict of interest. Furthermore, the circuit court granted McKnight a continuance on March

19, 2013, so that newly appointed counsel could adequately prepare for trial. Subsequently,

the assigned circuit judge recused himself on May 7, 2013, and the cause was continued.

¶41.   We cannot find fault with the circuit court’s determination that the State bore no

responsibility for any of these delays. Accordingly, we find this factor weighs against

McKnight.

       C.     Defendant’s Assertion of the Right to a Speedy Trial

¶42.   As noted, McKnight filed a “Motion to Dismiss for Lack of a Speedy Trial” on June

4, 2013. “[A] motion for dismissal based on violation of the right to a speedy trial and a

demand for a speedy trial are not equivalent, with regard to the Barker analysis, as one seeks

discharge and the other an immediate trial.” Id. at (¶14) (quoting Mims v. State, 856 So. 2d

518, 521 (¶6) (Miss. Ct. App. 2003)). Since McKnight filed a motion to dismiss a week

before his trial, instead of filing a motion demanding a speedy trial, we find this third factor

weighs against McKnight.

       D.      Whether the Defendant was Prejudiced by the Delay

¶43.   There are three interests to be considered when determining whether to find if the

defendant has been prejudiced by the delay. Stark v. State, 911 So. 2d 447, 452-53 (¶28)

(Miss. 2005). “These interests are (1) to prevent oppressive pretrial incarceration, (2) to

minimize anxiety and concern of the accused, and (3) to limit the possibility that the defense



                                              17
will be impaired. The last interest is the most important and, if violated, is the most

prejudicial to the defendant.” Id. at 453 (¶28) (citing Barker, 407 U.S. at 532).

¶44.   At the pretrial motions hearing, McKnight was allowed to state, before the circuit

judge, any potential prejudice he suffered as a result of the delay. He merely claimed that

he never had a chance to review discovery or adequately prepare a defense with his appointed

counsel – allegations later rebutted by defense counsel. The circuit court concluded no

assertions made by McKnight “would lead to prejudice due to his lack of a speedy trial,” and

his motion was denied.

¶45.   As McKnight failed to demonstrate how his pretrial incarceration was oppressive, this

interest does not weigh in his favor. As to the second interest, some of the reasons for the

delay were indeed out of McKnight’s control (the withdrawal of defense counsel and the

recusal of the circuit judge), and he did exhibit some concern regarding his defense during

his statements to the circuit court; so we find this interest tends to weigh in his favor.

¶46.   However, McKnight’s defense was not impaired as a result of the delay. In fact,

McKnight’s defense was likely aided by the delay in the proceedings, as it provided newly

appointed counsel with time to prepare for trial. Furthermore, as we have already noted,

there was no delay as a result of Judge Taylor’s recusal. We further note that McKnight also

asked for another continuance immediately prior to trial in order to substitute defense

counsel. Therefore, since McKnight did not suffer any prejudice as a result of the delay, we

find that the fourth factor also weighs against McKnight.

¶47.   Accordingly, based on our analysis of the Barker factors, we find the circuit court did



                                              18
not err in denying McKnight’s motion to dismiss for lack of a speedy trial.

         XI.    Whether the circuit court erred in admitting evidence of
                McKnight’s prior convictions that were ten years or older and
                evidence of prior bad acts.

¶48.     McKnight argues that the circuit court committed error in allowing the State to

introduce evidence of prior convictions or bad acts at trial. McKnight filed a motion in

limine on March 14, 2013, to exclude evidence of other crimes or bad character. However,

as the circuit judge noted at the hearing on McKnight’s post-trial motions, no evidence of

McKnight’s prior convictions was ever introduced at trial, “with the exception of the

defendant’s stipulation that he was a convicted felon.” The circuit judge’s finding is

supported by the record. No evidence of any prior convictions or bad acts was presented at

trial, except for the stipulation, which merely informed the jury that McKnight was a

convicted felon under the laws of the State of Mississippi. Therefore, this issue is without

merit.

         XII.   Whether the circuit court erred in refusing McKnight’s jury
                instruction presenting his theory of defense.

¶49.     Although McKnight argues that a defendant must be allowed to present an alternate

theory of defense, nowhere does he state which jury instruction was allegedly refused, nor

does the record contain evidence that the circuit judge refused any such instruction. This

issue is without merit.

         XIII. Whether the circuit court erred in admitting hearsay testimony
               under Mississippi Rule of Evidence 803(3).

¶50.     McKnight claims that the testimonies of Katrina Harris, David Wells, and J.J.



                                            19
McKnight Jr. were inadmissible as hearsay. After review, we find the testimonies provided

by Wells and J.J. were properly admitted under Mississippi Rules of Evidence 801 and 803.

Further, while a minor portion of Harris’s testimony was inadmissible hearsay, we find its

admission constitutes harmless error and does not warrant a reversal.

       A.     Katrina Harris

¶51.   A week prior to his murder, Twin talked with Harris and asked her for money to leave

town. At trial, Harris related Twin’s statement to her at the time: “Well, ‘Trina, if something

happen to me, Mr. James [McKnight] did it.” Defense counsel objected to Harris’s testimony

as hearsay, and the matter was discussed outside the jury’s presence. The State cited Hall

v. State, 39 So. 3d 981 (Miss. Ct. App. 2010), to support its assertion that Harris’s testimony

was admissible hearsay under Mississippi Rule of Evidence 803(3). That rule exempts a

statement from the hearsay rule if it is “[a] statement of the declarant’s then existing state of

mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental

feeling, pain, and bodily health)”; however, the rule expressly excludes “a statement of

memory or belief to prove the fact remembered or believed.” Id. (emphasis added). The

circuit judge overruled defense counsel’s objection and allowed Harris’s testimony to be

admitted as an exception to the hearsay rule.

¶52.   We find Hall distinguishable from the present case. In Hall, the witness testified that

the victim explicitly stated that the defendant called and threatened to kill her over losing

money at the casino. Hall, 39 So. 3d at 983 (¶7). Here, Harris said that she did not know

why the victim, Twin, was afraid. She merely related his statement to her that if something



                                               20
happened to him, McKnight “did it.” There was no testimony that he was afraid due to any

explicit threat by McKnight.

¶53.   While statements that relate to the declarant’s present state of mind are admissible

under Rule 803(3), statements that merely relate a declarant’s belief are not admissible. In

Vann v. State, 853 S.W.2d 243, 250 (Tex. Ct. App. 1993), the Court of Appeals of Texas

held, “[A] statement that a declarant recognizes a reasonable probability that someone is

going to be waiting with a gun to shoot the declarant goes beyond the state of mind and

enters the realm of belief.” Thus, it is inadmissible hearsay under Rule 803(3). Id.

       [T]he state-of-mind exception does not permit the witness to relate any of the
       declarant’s statements as to why he held the particular state of mind, or what
       he might have believed that would have induced the state of mind. If the
       reservation in the text of the rule is to have any effect, it must be understood
       to narrowly limit those admissible statements to declarations of condition –
       “I’m scared” – and not belief – “I’m scared because Galkin threatened me.”
       Cohen’s witnesses were permitted to relate any direct statements he had made
       concerning his state of mind but were prevented only from testifying as to his
       statements of belief – that he believed that Galkin was threatening him.

United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980) (emphasis added); see also

Linehan v. State, 224 P.3d 126, 131 (Alaska Ct. App. 2010) (finding that “evidence of a

murder victim’s fear of the accused . . . . is not admissible if its probative value depends on

the impermissible inference that, because the victim feared the accused, the accused likely

did something in the past or planned to do something in the future to justify the fear”).

¶54.   Harris’s testimony that Twin had an issue with J.J. and appeared to be afraid is

permissible under Rule 803(3). However, we find Twin’s statement to Harris that McKnight

might do something to him is inadmissible hearsay, as it is merely Twin’s statement of belief



                                              21
as to a speculative future event. It was not evidence of Twin’s existing state of mind.

¶55.   However, in McIntosh v. State, 917 So. 2d 78, 83 (¶10) (Miss. 2005), the supreme

court held that although a circuit court erred in its admission of testimony under Rule 803(3),

“the admission of the hearsay statement was harmless error because the properly admitted

evidence was sufficient to support a jury verdict.” In the present case, McKnight’s uncle

testified that he saw McKnight chasing the victim, heard gun shots, then saw McKnight

walking back to his car with gun in his hand. Hill testified that McKnight threatened Twin

with harm and then chased him down and shot him. As there is ample evidence to support

the verdict without Harris’s statement, we find the admission of the hearsay statement is

harmless error.

       B.     David Wells

¶56.   Wells was questioned as to how he learned the identity of the man he saw running

from the SUV. Defense counsel objected on the ground of hearsay. The circuit court heard

the following proffered testimony outside the jury’s presence:

       Q.     How did you learn that the defendant was James McKnight, or that one
              of the persons you saw was James McKnight?

       A.     I was standing right there with Terry [Williams] and Candy and I just,
              you know, [Williams] turned to Candy and told Candy that, “That was
              my nephew James.”

As Williams’s statement to Wells occurred within minutes of the incident, the circuit judge

concluded that Wells’s testimony was admissible as either a present-sense impression or an

“excited utterance,” both of which are hearsay exceptions. We agree.

¶57.   Mississippi Rule of Evidence 803(1) states that a present-sense impression is “[a]

                                              22
statement describing or explaining an event or condition made while the declarant was

perceiving the event or condition or immediately thereafter.” An excited utterance under

Mississippi Rule of Evidence 803(2) is “[a] statement relating to a startling event or

condition made while the declarant was under the stress of excitement caused by the event

or condition.” According to Wells, Williams made the statement to him approximately five

minutes after Williams saw the men running, heard gunfire, and encountered McKnight, his

nephew, who returned to the vehicle with a gun in his hand. Given the brief amount of time

between the shooting and Williams’s statement to Wells and the other bystanders, we find

no abuse of discretion in the circuit court’s admission of this testimony as either a present-

sense impression or an excited utterance.

       C.     James “J.J.” McKnight Jr.

¶58.   At trial, J.J. was asked what he had told police regarding what Hill said to him on or

around the day Twin was killed. Defense counsel objected, and a hearing was held outside

the presence of the jury. A proffer was made of the following testimony by J.J.:

       Q.     Did you give [police] some information that was about a phone
              conversation that occurred on either the day of the murder of Twin or
              the day after?

       A.     Yes.

       Q.     What did you tell them what [Hill] told you happened when Twin was
              killed?

       A.     I don’t remember word for word what was said, but, like, I had
              refreshed when you let me listen to it, but basically to the point saying
              that it was him, my mom[,] and my dad in the truck.

       Q.     And then what?

                                             23
       A.     And then him and Twin was arguing or something, my dad and Twin
              were arguing, or him, my dad, and Twin were arguing. And then it got
              just out of hand or something like that and then they took off running
              and then [Hill] said that we finished it.

       ....

       Q.     Who did you tell the police that [Hill] told you pulled a gun?

       A.     My dad.

The State argued that this testimony was admissible under Rule 803(d)(1)(B), which says that

a statement is not hearsay if it is “consistent with the declarant’s testimony and is offered to

rebut an express or implied charge against the declarant of recent fabrication or improper

influence or motive[.]”

¶59.   In Ben v. State, 95 So. 3d 1236, 1250-52 (¶¶41-47) (Miss. 2012), the supreme court

found a witness’s testimony that the victim told him the defendant had raped her was

admissible under Rule 801(d)(1)(B), because defense counsel, by emphasizing discrepancies

in the victim’s own testimony, had attempted to show on cross-examination that the victim

had fabricated the rape allegation. Similarly, in the present case, Hill was cross-examined

by the defense, who continually questioned the veracity of Hill’s testimony. Defense counsel

asked Hill, “Isn’t it true you’ve told so many statements, you don’t know what the truth is?”

and, “[W]ith all due respect, how do we know what you’re saying today is the truth?”

Defense counsel also asked Hill if he shot Twin.

¶60.   Consequently, the circuit court allowed the admission of J.J.’s testimony, concluding:

       I just think we have an identical situation here where the motives of Mr. Hill
       were questioned with regard to why he gave multiple statements; whether he
       was lying now or whether he was lying then; whether he was telling the truth

                                              24
       now or the truth then; whether he, in fact, was the man who shot [Twin]; and
       [J.J.’s] testimony recounting the phone conversation seems to rebut any
       implication by the defense of recent fabrication of Mr. Hill based on a
       sweetheart deal or trying to cover himself, quite frankly. So . . . the Court is
       going to allow this gentleman to testify concerning the phone conversation that
       he had soon after the shooting with Mr. Hill.

Since J.J’s statements were admissible to rehabilitate Hill’s credibility as a witness under

Rule 801(d)(1)(B), we find no abuse of discretion in the circuit court’s ruling. This issue is

without merit.

       XIV. Whether Mississippi Code Annotated section 97-37-5 is
            unconstitutional.

¶61.   McKnight contends that his indictment for possession of a firearm by a convicted

felon was unconstitutional as it is violative of his rights under the Second Amendment of the

United States Constitution. Mississippi Code Annotated section 97-37-5(1) states that “[i]t

shall be unlawful for any person who has been convicted of a felony under the laws of this

state, any other state, or of the United States to possess any firearm[.]”

¶62.   In James v. State, 731 So. 2d 1135, 1137 (¶9) (Miss. 1999), the supreme court

concluded that section 97-37-5 was “constitutional as a reasonable exercise of police power.”

We further find the case cited by McKnight to support his contention is not applicable to the

facts of this case. Accordingly, we find no merit to this assignment of error.

       XV.    Whether McKnight’s sentences were excessive and constituted
              cruel and unusual punishment.

¶63.   McKnight claims that his two consecutive life sentences constitute cruel and unusual

punishment and are disproportionate under the Eighth Amendment of the United States

Constitution. McKnight was sentenced as a habitual offender under Mississippi Code


                                              25
Annotated section 99-19-83.

¶64.   The State provided evidence to the circuit judge that McKnight had two prior felonies

arising from separate incidents for which he served a year or more in the custody of the

MDOC, and one of the felonies was a crime of violence. Therefore, McKnight was properly

sentenced as a habitual offender. “Our supreme court has consistently held that sentences

under the habitual-offender statute do not constitute cruel and unusual punishment.”

Cummings v. State, 29 So. 3d 859, 861 (¶5) (Miss. Ct. App. 2010) (citations omitted).

Accordingly, this issue is without merit.

       XVI. Whether Mississippi Code Annotated section 99-19-83 is
            unconstitutional.

¶65.   McKnight argues that he was entitled to a jury trial on the sentencing because his

classification as a habitual offender constituted a capital case, as it subjected him to life

imprisonment. He also argues that because the habitual-offender statute carries a life

sentence without the possibility for parole or probation, it “is in violation of the United States

Constitution[.]”

¶66.   However, McKnight cites no relevant authority to support his argument. “Failure to

cite to relevant authority results in a waiver of the issue on appeal.” Nunnery v. State, 126

So. 3d 105, 109 (¶14) (Miss. Ct. App. 2013) (quoting Bennett v. State, 933 So. 2d 930, 953

(¶86) (Miss. 2006)).

¶67.   Notwithstanding the waiver of the issue, the supreme court has held that it is the

province of the circuit judge “to serve as the finder of fact in determining whether the

habitual[-]offender part of the indictment is established by the requisite degree of proof.”


                                               26
Newberry v. State, 145 So. 3d 652, 662 (¶37) (Miss. 2014) (quoting Seely v. State, 415 So.

2d 213, 215 (Miss. 1984)). Moreover, our supreme court has explicitly held that section 99-

19-83 “is constitutional as written.” See Baker v. State, 394 So. 2d 1376, 1379 (Miss. 1981).

Therefore, we also find no merit to McKnight’s argument.

       XVII. Whether cumulative errors and plain error warrant reversal and
             a new trial.

¶68.   McKnight claims that “[t]he effect of the combined errors in the instant case warrant

a JNOV or a new trial.” Originating from the doctrine of harmless error, the cumulative-

error doctrine “holds that individual errors, which are not reversible in themselves, may

combine with other errors to make up reversible error, where the cumulative effect of all

errors deprives the defendant of a fundamentally fair trial.” Wilson v. State, 72 So. 3d 1145,

1159-60 (¶42) (Miss. Ct. App. 2011) (quoting Thompson v. State, 990 So. 2d 265, 270 (¶12)

(Miss. Ct. App. 2008)). In the present case, we have found only one instance of harmless

error in the admission of hearsay testimony by Harris. As we found no other errors, we can

find no cumulative error that would necessitate a reversal.

¶69. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF
CONVICTION OF COUNT ONE, MURDER, AND COUNT TWO, POSSESSION OF
A FIREARM BY A CONVICTED FELON, AND SENTENCE AS A HABITUAL
OFFENDER ON BOTH COUNTS OF LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY
OF PROBATION, PAROLE, OR EARLY RELEASE, WITH THE SENTENCES TO
RUN CONSECUTIVELY, AND TO PAY FINES IN THE AMOUNT OF $10,000 ON
COUNT ONE, AND $1,000 ON COUNT TWO, ALONG WITH RESTITUTION, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.



                                             27
