May 19, 2015
JAMES DOUGLAS MCKNIGHT A/K/A JAMES MCKNIGHT A/K/A JAMES D. MCKNIGHT, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
OF JUDGMENT: 06/21/2013.
FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT. TRIAL JUDGE:
HON. DAVID H. STRONG JR. 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
APPELLANT: CHARLES E. MILLER.
APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: STEPHANIE
LEE, C.J., BARNES AND MAXWELL, JJ.
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.
On appeal, McKnight argues that numerous errors warrant a new
trial. Finding no reversible error, we affirm McKnight's
convictions and resulting sentences.
AND PROCEDURAL HISTORY
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
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.
The four drove off and proceeded through the town of McComb,
Mississippi, with 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
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.
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 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.
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.
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. 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 to run
consecutively. He was also fined $10,000 for the
murder count, and $1,000 for the possession of a firearm by a
convicted felon count.
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. 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.
Whether the evidence was sufficient to sustain the
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
" 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 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)).
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.
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. 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.
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.
Whether the verdict was against the overwhelming weight of
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)).
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.
The State argues that Hill was not an accomplice; he was
charged as an accessory after 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.
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
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.
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.
Whether probable cause existed to arrest
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 [S]tate
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
Whether the circuit court erred in denying McKnight's
motion to suppress evidence obtained as a result of the
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
Whether the circuit court erred in allowing evidence stemming
from the photographic lineups.
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.
Whether McKnight received ineffective assistance of
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 (¶
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
Whether the circuit court erred in failing to order a mental
evaluation of McKnight.
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)).
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).
Accordingly, we find no error in the circuit court's
denial of the motion.
Whether McKnight was entitled to a change of
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 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.
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
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.
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 Taylor
could have -- could have heard the case. But due to our
agreement, he transferred it to me. And it was tried
(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.
" 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.
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
We find that McKnight did not suffer any prejudice as a
result of defense counsel's withdrawal. McKnight was
granted a continuance and newly appointed counsel had several
months to prepare for the trial. This issue is without merit.
Whether McKnight's constitutional right to a speedy trial
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
[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.
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.)
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
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, 92 S.Ct. 2182, 33 L.Ed.2d 101 (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)).
Length of Delay
" 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.
Reason for the Delay
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
(¶ 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.
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
Defendant's Assertion of the Right to a Speedy Trial
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.
Whether the Defendant was Prejudiced by the Delay
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 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).
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
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.
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
Accordingly, based on our analysis of the Barker
factors, we find the circuit court did not err in denying
McKnight's motion to dismiss for lack of a speedy trial.
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.
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.
Whether the circuit court erred in refusing
McKnight's jury instruction presenting his theory of
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.
Whether the circuit court erred in admitting hearsay
testimony under Mississippi Rule of Evidence
McKnight claims that the testimonies of Katrina Harris, David
Wells, and J.J. 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
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.
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 happened to him, McKnight
" did it." There was no testimony that he was
afraid due to any explicit threat by McKnight.
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" ).
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 as to a
speculative future event. It was not evidence of Twin's
existing state of mind.
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.
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."
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.
Mississippi Rule of Evidence 803(1) states that a
present-sense impression is " [a] 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.
James " J.J." McKnight Jr.
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?
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?
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
. . . .
Q. Who did you tell the police that [Hill] told you pulled a
A. My dad.
State argued that this testimony was admissible under Rule
801(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
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.
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 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.
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.
Whether Mississippi Code Annotated section 97-37-5 is
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[.]"
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.
Whether McKnight's sentences were excessive and
constituted cruel and unusual
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 Annotated section 99-19-83.
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
Whether Mississippi Code Annotated section 99-19-83 is
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[.]"
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)).
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." Newberry v.
State, 145 So.3d 652, 662 (¶ 37) (Miss. 2014)
(quoting Seely v. State, 451 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
Whether cumulative errors and plain error warrant reversal
and a new trial.
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
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.
C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.
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.
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
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