IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-KA-00524-COA
SHAMELL HILL A/K/A SHAMELL ANTWANTE APPELLANT HILL A/K/A SHAMELL A. HILL
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/21/2022 TRIAL JUDGE: HON. ROBERT THOMAS BAILEY COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK SHAMELL HILL (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DANIELLE LOVE BURKS DISTRICT ATTORNEY: KASSIE ANN COLEMAN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/06/2023 MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., McCARTY AND EMFINGER, JJ.
McCARTY, J., FOR THE COURT:
¶1. A man was convicted of capital murder for stabbing his wife after breaking into her
home. Finding no error on appeal, we affirm.
FACTS
¶2. Shamell Hill and Lashawnda Wooten married in 2013. Before marrying Shamell,
Lashawnda had three children, and Shamell had at least two children of his own. The two
lived together for almost four years until their relationship became tumultuous.
¶3. Shamell alleged he “started getting early signs of her having an affair.” He recalled two particular instances in their marriage. First, he stated he received a voicemail from
Lashawnda in which he heard her with another man. Second, he recalled going through his
wife’s phone and finding messages between her and another man. The couple separated, and
Lashawnda moved into another home. According to Hill, the couple was separated for “a
year and a half.” But Shamell did not want the separation from his wife. Shamell called
Lashawnda and expressed he loved her and was “ready to come home.” But Lashawnda was
unyielding. She denied his advances, stating she needed “a little space” and asked for time
to herself.
¶4. The next night, Hill said he went to the casino with his friend. He stated after they
left, he told his friend, “Take me home, man.” Resistant to this idea, his friend replied, “Bro,
I’m not taking you home.” But Hill steadily insisted that his friend take him to his wife. So,
the friend drove him to Lashawnda’s home. Once he made it there, Hill went to the door and
rang the doorbell. He looked inside the window and noticed that the children were home
alone. He then walked away from the front door and saw Lashawnda driving “around the
bend” with a man in the car. Hill got into his friend’s car, and they followed Lashawnda.
She did not drive straight home, though. She instead turned left and “got away.”
¶5. Hill then called her and accused her of cheating. He told his wife, “You told me you
wasn’t fooling with nobody. You just said that you wouldn’t cheat.” She responded, “I told
you I wanted a divorce.” This angered Shamell. He then told his friend to go back to his
wife’s house. Once they made it back to her house, he noticed the man was no longer in the
car. He then got out of his friend’s car and “threw [his] phone at Lashawnda’s car.” After
2 his wife kept driving, he then “threw a stick” at her car. His wife then got out of her car and
told Shamell, “[D]on’t put your hands on me.” Hill told his wife, “Shawnda, you shouldn’t
have did me like that.” He stated he “grabbed her” and “slammed her on the ground.” His
wife was later taken to the hospital as a result of the injuries she sustained during the assault.
¶6. The next night, Shamell went to a local club with three of his friends. He stated he
felt like “something wasn’t right.” He looked around and saw Lashawnda’s brother walk
into the club. He said he knew it was “fixing to go down.” Hill, Lashawnda’s brother, and
one of the brother’s friends began fighting. During the fight, Lashawnda’s brother allegedly
hit Shamell with a pool stick. Then, he claimed his brother-in-law “shot at [him],” hitting
him “on [his] right elbow.”
¶7. On December 27, 2018, Lashawnda got an emergency protective order against Hill.
And on January 7, 2019, Hill was summoned to county court for a hearing on the protective
order. After the hearing, a permanent protective order was entered. The order enjoined Hill
from “abusing, harassing, stalking, following or threatening” Lashawnda. It further enjoined
him from having “any contact with his wife either in person, by phone, electronic
communication, or through a third party” except the court. Hill was further enjoined from
“going within 100 yards” of his wife. The order was to remain in effect until one year later
on January 7, 2020. Both Hill and his wife consented to the order.
¶8. Also at the hearing, Lashawnda stated she would be filing for divorce. A few days
later on January 9 and January 10, respectively, Lashawnda and Hill separately met with an
attorney and signed a joint complaint for divorce.
3 ¶9. Nine days later, on January 19, 2019, Hill stated his “heart was aching,” so he called
Lashawnda “several times.” He said he “knew the restraining order was on there,” but he
“wanted to save [his] marriage.” He stated that when they finally talked, he asked her if “she
care[d] about the dude.” She told him that she did. He then asked Lashawnda if she loved
him. Hill stated she told him, “Yeah, Shamell, I do.” Hill described his wife’s response as
“the sword that broke the camel’s back.”
¶10. After hanging up with his wife, Hill made a series of phone calls. First, he called his
sister. He stated his sister knew something was wrong, but he told her that “everything [was]
fine.” Next, he called his sons and talked to them. He also called two of his friends, but
neither of them answered. After not getting in contact with his two friends, he talked to his
brother and told him that he loved him. Lastly, he talked to his mother. She asked him
several times if something was wrong. He told his mother that nothing was wrong with him
and said, “I want to be by myself.” He stated he told his mother he loved her. Afterward,
Hill said he “laid back on [his] bed” and began “crying” and “praying.” He stated he began
thinking about the “betrayal” and his brother-in-law’s “attempt to take [his] life.”
¶11. Hill then “got up, went to the kitchen, and . . . got the knife.” He then went back into
his room and “got a stick.” He stated, “I just took off walking. I just walked. I just walked.
I just walked.”
¶12. After walking a total of five miles, Hill made it near Lashawnda’s house. He saw
Lashawnda’s cousin “pulling out” of the driveway. After realizing that she recognized him,
Hill stated he “just took off running.” He then walked to Lashawnda’s home. He looked
4 inside the window and saw his wife in the kitchen. He then “busted the window” and went
through it. He began charging through the house to the bedroom hoping that another man
was there. However, he saw Lashawnda in the bathroom with the phone to her ear. He
stated that she “just screamed” and shut the door.
¶13. He then “hit the door with [his] shoulder” and “went in.” He told his wife, “I told you
you ain’t gonna hurt me.” He then said, “You played me for the last time.” He told his wife
“Till death do us part, baby. That was our vows.” He began stabbing her, and she fell back
into the bathtub.
¶14. As Hill attacked his wife, her oldest daughter came into the bathroom and screamed,
“Daddy, get off my mama.” He told her to get her sister and get out of the house. But
Lashawnda fought back. She told her daughter to “go grab the mace.” Her daughter came
back into the bathroom and sprayed the mace, missing Hill’s face. Hill continued attacking
Lashawnda. He stated he “plunged the knife in her chest” and then stabbed her in the neck.
In total, Hill stabbed Lashawnda eighteen times.
¶15. Afterward, Hill got out of the tub and attempted to cut himself. He stated, “I took the
knife to my neck two times.” He stated he then “took the knife and started hitting [himself]
in the stomach.” Lashawnda’s other daughter then came into the bathroom and asked,
“Where mama?” He told her he was sorry and “ran out the back door” and into the woods.
After running into the woods, he cut himself again. But this time, Shamell cut himself across
his wrists.
¶16. He then ran back across the street near Lashawnda’s house. He stated he came out
5 of the woods “with [his] hands up” and told the officer, “I’m the man you looking for.” He
was arrested and brought in for an interview with the detectives. Hill gave a video
confession recalling all the events that took place. In his interview with detectives, he
admitted he left his home with the intention of killing his wife.
¶17. Hill was indicted in Lauderdale County for capital murder in the commission of a
burglary and charged as a habitual offender.
PROCEDURAL HISTORY
¶18. At trial, the jury first heard from Lashawnda’s father, Charles Wooten. He stated he
talked to his daughter every night, and the night of the attack was no different. He told the
jury that “no more than 20 minutes” into their conversation, he “heard a loud [noise] like an
explosion.” Her father believed this was the moment Hill “busted into the door.” He said
he knew Lashawnda was running. Mr. Wooten stated, “She called for me to help her, but I
couldn’t.” He testified he heard Hill say, “I told you I was going to get you.” Lashawnda’s
father stated at that point he was “en route to her destination” and dialed 911.
¶19. Next, Lashawnda’s son testified. He stated he and his mother were in the kitchen
when they “heard a lot of noise at the door.” He said he thought it was a gunshot at first. He
testified after hearing it again, Lashawnda “started crying” and “told [him] to run.” He told
the jury his mother screamed, “Dad, daddy, help me. He’s here,” and she ran into the
bathroom. At that point he stated he heard Hill say, “I told you I was going to get you. I told
you, didn’t I.”
¶20. The jury also heard from Lashawnda’s oldest daughter. She told the jury that on the
6 night of the attack, she “heard a loud sound at the back door” of the house. She stated she
thought the noise was a gunshot. She then “ran in the room with [her] sister to check on her”
and noticed her mother in the bathroom. Lashawnda’s daughter said she “stayed in [her]
room for a few minutes” until her mother called her into the bathroom. She testified her
mother yelled to her, “[G]rab the mace.” She said she grabbed it and sprayed Hill, but his
face was “turned the other way.” She told the jury that at the time she sprayed the mace at
Shamell, “he was on top of [her] mother in the bathtub.” She then testified that her brother
and sister were also in the house during the attack. She stated she “ran across the street to
try to get the police officer that [lived] in front of [their house].”
¶21. Lastly, Hill took the stand in his own defense. He alleged his wife cheated on him
several times before and after their marriage. He recalled “hitting” and “slamming” his wife
onto the ground after seeing her with another man during their separation.
¶22. Hill then admitted calling Lashawnda despite the court order enjoining him from just
such contact. He testified he called and asked Lashawnda if she loved the other man, and she
replied that she did. Shamell said he got up and “got the knife.” He stated the knife shown
at trial was “not the knife [he] used” but ultimately testified he did grab a knife.
¶23. Hill also testified, contrary to the statement he gave during his interview, that he did
not leave his house with the intention of killing his wife. He told the jury, “I didn’t try to go
to her house and take her life[.] I told you. I was in the wrong . . . state of mind, man.”
When asked why he grabbed the knife, he responded, “The knife was really for myself, to
be honest with you.” He also testified the stick was for his protection. He further told the
7 jury that after making several calls to people before the attack, he “didn’t know” he was
going to kill her. He stated, “I was not myself[.]”
¶24. During his testimony, Shamell argued that the photographs of the knife and the stick
were wrong. Specifically, he testified, “[A]ll this stuff that’s been showed here has been
trumped up and altered and everything, man, just so y’all can . . . try to get a severe . . .
sentence on me.”
¶25. At the end of trial, Hill proposed a jury instruction for the lesser included offense of
heat-of-passion manslaughter. He argued there was testimony that the knife was not grabbed
for the purpose of seeing his wife but, instead, for the purpose of protecting himself because
there had been threats from her family members. The State argued that it was “not required
to prove malice to obtain a conviction of capital murder[.]” Furthermore, the State argued,
“When a defendant arms himself prior to an encounter with the victim and in preparation for
an encounter of the victim, that the heat of passion defense would not be supported[.]”
¶26. The trial court refused the instruction, stating that “there is no evidence in this case
that would trigger some heat of passion.” The trial court further stated, “There was a
substantial cooling off period that existed between the provocation and the killing.”
¶27. Hill was found guilty of capital murder and sentenced to serve life imprisonment
without eligibility for parole in the custody of the Mississippi Department of Corrections.
DISCUSSION
I. The trial court properly refused Hill’s lesser-included-offense jury instruction.
¶28. Hill argues the trial court erred in refusing his lesser-included-offense instruction of
8 heat-of-passion manslaughter.
¶29. “The standard of review for a claim that a defendant was entitled to a lesser-included-
offense instruction is de novo, as this is a question of law.” Pierce v. State, 107 So. 3d 1011,
1014 (¶11) (Miss. Ct. App. 2012).
¶30. “To be entitled to a lesser-included-offense instruction, a defendant must point to
some evidence in the record from which a jury reasonably could find him not guilty of the
crime with which he was charged and at the same time find him guilty of a lesser-included
offense.” Gilmore v. State, 119 So. 3d 278, 286 (¶13) (Miss. 2013). As with all instructions,
“[a] lesser-offense instruction can be refused if it is without foundation in the evidence.”
McCune v. State, 989 So. 2d 310, 319 (¶17) (Miss. 2008).
¶31. Hill was charged with capital murder pursuant to Mississippi Code Annotated section
97-3-19(2)(e) (Rev. 2020). Under this statute, “the killing of a human being without
authority of the law shall be capital murder . . . [w]hen done with or without any design to
effect death, by any person engaged in the commission of the crime of rape, burglary,
kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age
of twelve (12), or nonconsensual unnatural intercourse with mankind, or any attempt to
commit such felonies.” (Emphasis added).
¶32. In contrast, heat-of-passion manslaughter is “[t]he killing of a human being, without
malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous
weapon, without authority of law, and not in necessary self-defense[.]” Miss. Code Ann.
§ 97-3-35 (Rev. 2020).
9 ¶33. Furthermore, our caselaw has defined heat of passion as
[a] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from a grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.
Maye v. State, 350 So. 3d 263, 268 (¶15) (Miss. Ct. App. 2022) (emphasis added). “To
reduce a homicide from murder to manslaughter, the impassioned reaction of the accused
must have been reasonable: the passion felt by the person committing the act should be
superinduced by some insult, provocation, or injury, which would naturally and instantly
produce, in the minds of ordinarily constituted men, the highest degree of exasperation.” Id.
at (¶16). “[T]here must be such circumstances as would indicate that a normal mind would
be roused to the extent that reason is overthrown and passion usurps the mind destroying
judgment.” Id. “[S]uch an instruction should not be indiscriminately or automatically
given.” Id. “Moreover, a heat-of-passion jury instruction is not warranted where a
cooling-off period exists between the provocation and the killing.” Id. “[T]he provocation
must be immediate—that is, occurring at the time of the killing.” Alford v. State, 5 So. 3d
1138, 1143 (¶17) (Miss. Ct. App. 2008) (emphasis added).
¶34. Hill contends sufficient evidence showed that he was experiencing an “emotional state
of mind characterized by anger, rage, hatred, and furious resentment.”
¶35. But there was a substantial cooling-off period in this case. Hill testified the “sword
that broke the camel’s back” was Lashawnda’s statement that she loved another man.
However, the jury heard Hill testify he took several actions after talking to his wife. First,
10 Hill testified he called several people. He called his sister, his two sons, two of his friends,
his brother, and lastly his mother. Second, Hill testified he “laid back in bed” and “cried and
prayed.” Then, he grabbed both a stick and a knife out of his house. Critically, Hill admitted
he then walked five miles to Lashawnda’s home. And during his interview with detectives,
he confessed he left home with the intention of killing his wife.
¶36. Again, precedent requires the provocation to be “immediate and reasonable.” There
was ample evidence, including from the defendant himself, that a substantial cooling-off
period existed between his conversation with Lashawnda and the fatal attack. Because this
provocation, if any, was not immediate, the lesser-included-offense instruction of heat-of-
passion manslaughter was without foundation and properly refused.
¶37. Hill also contends the testimony that he was armed in anticipation of needing to
defend himself separates him from the underlying felony—burglary with the intent to assault
someone. However, the jury heard Hill’s confession that he left home with the intention of
killing his wife. The jury also heard Hill confess to using his stick to “break the window”
of Lashawnda’s home. While Hill now argues that he did not leave home with the intention
of killing his wife and that the stick was used for his protection, this directly contradicts his
filmed confession. It is well settled that “when the evidence is conflicting, the jury will be
the sole judge of the credibility of witnesses and the weight and worth of their testimony.”
Thompson v. State, 338 So. 3d 730, 736 (¶32) (Miss. Ct. App. 2022). The jury heard this
split in testimony and found his taped confession more credible.
¶38. Furthermore, evidence that he broke into Lashawnda’s home with the intent to kill her
11 is not required. Hill was charged with capital murder. To be found guilty of capital murder,
Mississippi Code Annotated section 97-3-19(2)(e) requires only that a killing took place
while the accused was engaged in the commission of a felony, such as the one
here—burglary. Therefore, Hill’s argument is without merit.
¶39. “When viewing the evidence in the light most favorable to [Hill], no reasonable jury
could find him not guilty of capital murder and yet guilty of heat-of-passion manslaughter.”
Maye, 350 So. 3d at 269 (¶20). Therefore, the judge did not err in refusing Hill’s lesser-
included-offense instruction.
II. Hill’s indictment was not defective.
¶40. Next, Hill argues his indictment was defective. He first argues his indictment was
defective because it failed to state the judicial district of the county in which his indictment
was brought. Second, he argues his indictment was defective because it failed to give a
sufficient description of the crime charged because it did not state the word “did” before the
words “kill and murder.” Third, he argues his indictment was defective because it did not
state the cause and manner of the victim’s death.
¶41. “Whether an indictment is fatally defective is a question of law, which this [C]ourt
reviews de novo.” Spearman v. State, 80 So. 3d 116, 119 (¶12) (Miss. Ct. App. 2011). “An
indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts
to fairly inform the defendant of the charge against which he must defend, and (3) sufficient
facts to enable him to plead double jeopardy in the event of a future prosecution for the same
offense.” Id. “[S]o long as from a fair reading of the indictment, taken as a whole, the nature
12 and cause of the charge against the accused are clear, the indictment is legally sufficient.”
Davis v. State, 171 So. 3d 537, 540 (¶11) (Miss. Ct. App. 2015).
¶42. Hill argues his indictment failed to state the judicial district of the county that his
indictment was brought. He contends the Mississippi Rules of Criminal Procedure “require[]
the indictment to state whether it is brought in the first and second district.”
¶43. An indictment should include “the county and, in two-district counties, the judicial
district in which the indictment is brought.” MRCrP 14.1(a)(2)(D). Because Lauderdale
County is not a two-district county, no further action was required. Therefore, Hill’s
argument is without merit.
¶44. He next argues his indictment was defective because it failed to give a description of
the crime committed. Specifically, he contends it failed to state the word “did” before the
words “kill and murder.” However, the indictment in fact states Hill “did unlawfully,
wilfully, and feloniously, with or without the design to effect death, kill and murder
Lashawnda Wooten.” Therefore, this claim is without merit.
¶45. Finally, he argues his indictment was defective because it failed to include the
victim’s cause of death.
¶46. But Mississippi Code Annotated section 99-7-37(1) (Rev. 2020) states, “In an
indictment for homicide it shall not be necessary to set forth the manner in which or the
means by which the death of the deceased was caused, but it shall be sufficient to charge in
an indictment for murder, that the defendant did feloniously, willfully, and of his malice
aforethought, kill and murder the deceased.” Because Hill was indicted for capital murder,
13 language regarding the manner or cause of death was not required. Therefore, this issue is
without merit.
III. Hill’s indictment was not constructively amended.
¶47. Hill argues his indictment was constructively amended because the State presented
evidence of a murder weapon, though his indictment never charged such a weapon.
¶48. Because Hill’s claim that the “indictment was improperly amended is a question of
law . . . we review [the issue] de novo.” Roberson v. State, 287 So. 3d 219, 230 (¶25) (Miss.
Ct. App. 2017).
¶49. Our caselaw instructs there is a “difference between a claim of constructive
amendment of an indictment . . . and a variance in the proof and the allegations of the
indictment.” Graham v. State, 185 So. 3d 992, 1001 (¶25) (Miss. 2016). “A constructive
amendment of the indictment occurs when the proof and instructions broaden the grounds
upon which the defendant may be found guilty of the offense charged so that the defendant
may be convicted without proof of the elements alleged by the grand jury in its indictment.”
Short v. State, 349 So. 3d 193, 195 (¶7) (Miss. Ct. App. 2022). “We recognize that not all
variances between the indictment and instructions constitute a constructive amendment or
rise to plain error.” Id. “Instead,” our jurisprudence has “previously recognized” the
following:
[a]s long as the change does not materially alter [the] facts which are the essence of the offense on the fac[e] of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood in a way that would prejudice the defendant’s case, then the amendment is permissible. Determining whether the defendant is prejudiced by the amendment depends on whether a defense under the original indictment would be equally available
14 under the amended indictment.
Id.
¶50. The State presented evidence of the stick used to break into the victim’s home and the
knife used to kill the victim. Hill is correct that the weapons were not included in the
indictment, but they were not required. Mississippi Code Annotated section 99-7-37(1) states
it “shall not be necessary to set forth the . . . means by which the death of the deceased was
caused.” (Emphasis added). Therefore, this issue is without merit.
IV. Hill’s right to a speedy trial was not violated.
¶51. Hill argues his constitutional right to a speedy trial was violated because the time
between his arrest and his arraignment was over twenty-four months.
¶52. Criminal defendants are guaranteed the right to a speedy trial by the United States and
Mississippi Constitutions. U.S. Const. amend. VI; Miss. Const. art. 3, § 26 (1890). The
Mississippi Supreme Court has held that the right to a speedy trial attaches “at the time of a
formal indictment or information or else the actual restraints imposed by arrest and holding
to a criminal charge.” Johnson v. State, 235 So. 3d 1404, 1417 (¶45) (Miss. 2017). Our
Supreme Court has further held a delay of eight months or longer between the date of arrest
and the defendant’s trial is presumptively prejudicial. Ward v. State, 346 So. 3d 868, 870
(¶6) (Miss. 2022). “A presumptively prejudicial delay acts as a triggering mechanism for
conducting” the balancing test set out by the United States Supreme Court in Barker v.
Wingo, 407 U.S. 514 (1972). Ward, 346 So. 3d at 871 (¶6) (internal quotation marks
omitted). In Barker, the United States Supreme Court developed a four-part test to determine
15 if a defendant’s right to a speedy trial was violated. Bateman v. State, 125 So. 3d 616, 628
(¶40) (Miss. 2013) (citing Barker, 407 U.S. at 530-33). “The relevant factors to be
considered are: (1) the length of delay; (2) the reason for delay; (3) whether the defendant
asserted his right to a speedy trial; and (4) whether the defendant has been prejudiced by the
delay.” Id. Where the trial court does not articulate findings of fact, this Court “act[s] de
novo in performing the Barker analysis.” DeLoach v. State, 722 So. 2d 512, 516 (¶15) (Miss.
1998).
a. Length of Delay
¶53. Hill was arrested on January 21, 2019, and indicted on January 28, 2021. He was then
arraigned exactly two weeks later on February 11, 2021, and his trial began on April 18,
2022. Because the period between Hill’s arrest and his trial exceeded eight months, it is
presumptively prejudicial. Therefore, a Barker analysis is triggered, “and the burden of
persuasion shifts to the State to establish good cause for the delay.” Johnson v. State, 68 So.
3d 1239, 1242 (¶8) (Miss. 2011).
b. Reason for Delay
¶54. “[D]ifferent reasons for delay are assigned different weights.” Williams v. State, 305
So. 3d 1122, 1132 (¶31) (Miss. 2020). “Deliberate attempts to delay the trial to hamper the
defense are weighted heavily against the government.” Id. “More neutral reasons for the
delay, such as negligence or overcrowded courts, are weighted against the government, albeit
less heavily.” Id. “Delays caused by the defense, such as requests for continuances, will toll
the running of the speedy-trial clock for the length of time attributable to the continuance.”
16 Courtney v. State, 275 So. 3d 1032, 1042 (¶27) (Miss. 2019); see also Brewer v. State, 725
So. 2d 106, 119 (¶55) (Miss. 1998) (finding that time which passes during the consideration
of numerous defense motions does not count against the State).
i. Pre-indictment Delay
¶55. “Where the record is silent regarding the reason for the delay, then the time is counted
against the State because the State bears the risk of non-persuasion on the good cause issue.”
Harris v. State, 311 So. 3d 638, 665 (¶80) (Miss. Ct. App. 2020). However, delays before
an indictment are considered investigative delays, and an “investigative delay is
fundamentally unlike delay undertaken by the government solely to gain tactical advantage
over the accused.” Id.
¶56. Hill was arrested on January 21, 2019, and indicted 738 days, or over two years later,
on January 28, 2021. The record is silent as to the reason for the delay between Hill’s arrest
and indictment. But because this delay took place before the indictment, it constitutes an
“investigative delay.” Harris, 311 So. 3d at 665 (¶80). Furthermore, on March 13, 2020, our
Supreme Court entered its first series of Emergency Administrative Orders recognizing the
national emergency related to COVID-19 and authorizing trial courts “to exercise their sound
discretion in extending deadlines, rescheduling hearings and trials and any other matters by
case specific actions or by general orders.” In re: Emergency Order Related to Coronavirus
(COVID-19), No. 2020-AD-00001-SCT (Miss. March 13, 2020).
¶57. Therefore, this reason for the delay only slightly weighs in Hill’s favor.
ii. Post-indictment Delay
17 ¶58. After Hill was indicted on January 28, 2021, he was arraigned two weeks later on
February 11, 2021. His initial trial was set to begin on May 19, 2021. After his arraignment,
Hill began seeking discovery on February 25, 2021. But in his request for discovery, he
simultaneously invoked his right to a speedy trial. On April 26, 2021, he formally filed a
motion to request speedy trial because he was indicted over two years after his arrest. Nearly
a week before trial, Hill stated he would be filing a motion for a mental evaluation. He
subsequently agreed to reset his trial to August 25, 2021.
¶59. On May 17, 2021, Hill filed a motion for a mental evaluation to determine his
competency to stand trial. Ten days later, the trial court granted the motion. Next, on June
1, 2021, Hill filed a motion for funds for investigative assistance. The trial court granted the
motion that same day.
¶60. On June 22, 2021, the trial court sent a letter to Hill’s psychologist stating it would
draft an order to transport when the doctor was ready to evaluate Hill. The order to transport
was filed on July 19, 2021. The order stated that Hill was to be transported to the
psychologist on August 14, 2021.
¶61. On August 26, 2021, Hill’s trial was reset to December 8, 2021, pending the results
of his mental competency evaluation. Both Hill and his attorney signed the order. On
December 8, 2021, Hill’s trial date was reset again to April 18, 2022. The order noted that
the court was “waiting on psych and investigator reports.” The order was also signed by both
Hill and his attorney and specifically indicated, “The defendant hereby waives the right to
a speedy trial.”
18 ¶62. On February 8, 2022, the trial court entered an order resetting Hill’s mental
competency hearing and plea negotiations for March 30, 2022. The defendant’s trial date
was not reset. This order was signed by both Hill and his attorney. On April 1, 2022, the
court entered its order determining Hill was competent to stand trial. Hill’s trial began on
April 18, 2022.
¶63. In sum, the post-indictment delay was 445 days. However, much of the delay is
attributable to Hill’s own motions. Hill’s initial trial date was set for May 19, 2021—111
days after his indictment. However, just two days before the May 2021 trial date, Hill filed
a motion for psychiatric evaluation. Much of the delay centered around the psychiatric
evaluation. The State was then prepared to try Hill’s case on August 25, 2021, but because
of the pending results of his mental evaluation, the trial date was reset again to December 8,
2021. The State was again prepared to try the case on the December date, but because the
trial court was waiting on the psychiatric and investigative reports, the trial date was reset
again to April 18, 2022. The trial proceeded forward on the April date after multiple
continuances, even amidst restrictions due to the COVID-19 pandemic.
¶64. After review, we find there is no evidence of any “deliberate attempts” by the State
to delay the trial. Critically, the record reflects the State was prepared to proceed as early as
111 days after his indictment. Because the “time which passes during the consideration of
numerous defense motions does not count against the State,” we find that the 445-day delay
between Hill’s indictment and his trial weighed against Hill. Brewer,725 So. 2d at 119 (¶55).
iii. Balancing the Weight of the Delay
19 ¶65. The delay between Hill’s arrest and his indictment spanned 738 days. The State did
not provide an explanation for the delay, but because this delay occurred before the
indictment, it constitutes an “investigative delay.” Harris, 311 So. 3d at 665 (¶80). Also
during this period, our Supreme Court entered a series of orders regarding the COVID-19
pandemic. Therefore, this delay weighs slightly in Hill’s favor. On the contrary, the delay
between his indictment and his trial was largely due to his own motion for mental evaluation.
Therefore, this period of delay weighs in favor of the State. Overall, we find the reason for
the delay weighs against Hill.
c. Assertion of the Right to a Speedy Trial
¶66. “Although it is the State’s duty to insure that the defendant receives a speedy trial, a
defendant has some responsibility to assert this right.” Eubanks v. State, 341 So. 3d 896,
904-05 (¶13) (Miss. 2022). “This Court has held that this factor weighs against a defendant
who waits a significant amount of time after arrest to demand a speedy trial.” Id.; see also
Noe v. State, 616 So. 2d 298, 301 (Miss. 1993) (defendant’s failure to assert his right to a
speedy trial “nearly an entire year following his arrest” weighed against him); Wall v. State,
718 So. 2d 1107, 1113 (¶25) (Miss. 1998) (defendant’s assertion of his right to a speedy trial
“merely two months before he received a trial” weighed against him). “[A] defendant’s
failure to demand a speedy trial between his arrest and indictment is critical to the analysis
of a speedy-trial claim.” Bateman, 125 So. 3d at 630 (¶49).
¶67. Hill first asserted his right to a speedy trial on February 5, 2021, with his motion for
discovery. He then filed a pro se motion for a speedy trial on April 26, 2021. That is, Hill
20 did not assert his right to a speedy trial until over two years after his arrest and nearly three
months after his indictment. Plainly stated, Hill never asserted his right to a speedy trial
between his arrest and his indictment. Furthermore, Hill’s motion for a speedy trial was
contradicted by his own simultaneous motion for discovery.
¶68. Because Hill did not make a timely assertion of his right to a speedy trial, this factor
weighs in favor of the State.
d. Prejudice
¶69. Hill argues his defense was impaired by the delay because “the attorney considered
him and his case less important th[a]n his other cases[.]”
¶70. “When analyzing the last Barker factor, this Court should consider the following three
interests: (1) preventing oppressive incarceration; (2) minimizing anxiety and concern of the
accused; and (3) limiting the possibility that the defense will be impaired.” Eubanks, 341 So.
3d at 905 (¶17). “Of these, the most serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.” Id.
¶71. In his pro se speedy trial motion, he alleged he “ha[d] witnesses that [were] willing
to testify on [his] behalf, but the delay . . . put[] a strain on [his] defense.” He further alleged
that because of the delay, witnesses could become available or the victim’s family would
persuade his witness not to testify. He also argued the witnesses’ memories could fade.
¶72. While Hill argues there were witnesses willing to testify, he failed to identify those
witnesses. Further, he did not explain what the testimony of the witnesses would be and how
this testimony would aid in his defense. The defendant’s heat-of-passion argument centers
21 on the alleged infidelity of Lashawnda. Even if he could identify the witnesses and their
testimony, there is ample evidence from his own testimony at trial that Hill had a substantial
cooling off period. First, the jury heard and saw video footage of Hill’s interview with the
officers. In that interview, he confessed to leaving his home with the intention of killing his
wife, breaking into her home, and stabbing her multiple times. Further, he admitted calling
five people before leaving his house—signifying a substantial cooling-off period. Critically,
Hill never denied the gruesome details of his attack or that he walked five miles to
Lashawnda’s home. Because of such overwhelming evidence, Hill’s failure to provide
testimony regarding his mental or emotional state did not prejudice his defense.
¶73. Balancing the Barker factors, we find that Hill’s right to a speedy trial was not
violated.
CONCLUSION
¶74. We find the trial court properly refused Hill’s lesser-included-offense instruction of
heat-of-passion manslaughter. We also find his indictment was not defective. Furthermore,
Hill’s indictment was not constructively amended. Finally, Hill’s right to a speedy trial was
not violated.
¶75. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE AND EMFINGER, JJ., CONCUR. SMITH, J., NOT PARTICIPATING.