IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-KA-01286-COA

TOMMY AMES A/K/A TOMMY LEE AMES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 07/26/2013 TRIAL JUDGE: HON. M. JAMES CHANEY JR. COURT FROM W HICH APPEALED: W A RREN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND DISTRICT ATTORNEY: RICHARD EARL SMITH JR. NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF TW O COUNTS OF AGGRAVATED ASSAULT, AND SENTENCED TO TW ENTY YEARS FOR COUNT I, W ITH FIVE YEARS SUSPENDED, FIFTEEN YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION, AND SENTENCED TO TW ENTY YEARS FOR COUNT II, W ITH FIVE YEARS SUSPENDED, FIFTEEN YEARS TO SERVE, AND FIVE YEARS OF POST-RELEASE SUPERVISION, W ITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED – 10/06/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.IRVING, P.J., FOR THE COURT:

¶1. Af ter a jury c onvicted Tom m y Am es of t wo counts of aggravated assault, the Circuit Court of W arren County sentenced him to two consecutive twenty -y ea r t e r ms o f im p risonm ent in the custody o f the Mississippi Departm ent of Corrections. On appeal, he
argues that during trial, the trial court erred in adm itting certain witness testim ony under Rule 804(b)(1) of

the Mississippi Rules of

Evidence and that he was denied a speedy trial. ¶2. Finding no error, we af f irm

. FACTS ¶3. On Novem

ber 2 , 2007, Keny a J ohnson and Christopher Blackm ore tra v e l e d to Vicksburg, Mississippi, in a c ar driven by Johnson. As Johnson w as driving down First East S t reet in Vicksburg, Am es, an acquaintance of J ohnson’s and a stranger to Blackm o r e , f l a g g e d t hem down. Af

ter Johnson stopped the c ar and rolled his window down, he and
Am es conversed m o m entarily

. At the end of Johnson and Am es’s d iscussion, A m es opened

one of the back doors of the car a nd entered the c ar. Af ter that, A m es shot J oh n s o n in the back of his head and in h is n eck. Am es also s h o t Blackm o re in the back of his head. At

som e point, Johnson elbowed Am es, causing him t o b e ejected f r om the c ar. Im m ediately af ter the shooting, Johnson a n d B l a c k mo r e traveled, i n t he car, a s hort distance to the law of f ice of W i nf

ield & M oran, where Attorney Paul W i nf ield provided f

irst-aid to them

. Paul
W i nf i eld’s s ecretary called 911, and p aram edics arrived to transport the m en to a hosp ital. Johnson and Blackm ore survived the shooting.

2¶4. At the t i m e of the i ncident, Am es was on f ederal post-release supervision (PRS). During the f

our weeks af

ter t he i ncident, A m es h id o ut at h is brother’s house. Af ter that, he relocated to Arkansas, where h e was arrested by the United States Marshals Service. During

a f ederal PRS-revocation hearing, Johnson testif ied against A m es, and A m e s ’ s c o u n s e l c r o s s exam ined Johnson. The hearing r esulted in t he revocation of Am es’s PRS and his sentence of f if t y m o nths of im

prisonm ent in the custody of the Federal Bureau of Prisons. ¶5. Approxim ately six m o nths af ter his arrest by f

ederal m arshals, while incarcerated in the f ederal prison, Am es w a s indicted b y the S tate o f Mississippi f or two counts of aggravated assault. About f ive y ears l ater, his case went to trial. During trial, the trial court deem ed Johnson unavailable under Rule 80 4 ( b ) ( 1 ) a nd allowed the State to read his prior testim o ny f rom the revocation hearing into evidence. DISCUSSION
I. Johnson’s Rule 804( b) ( 1) Testimony ¶6. On appeal, A me s a r g u e s that the trial court erred in deem ing Johnson unavailable under Rule 8 04(b)(1) because the State f ailed to use reasonable, diligent ef f orts to secure his
presence at t r i al. A m es highlights the f act that the State f

ailed to issue a subpoena f or Johnson and insists t hat Johnson’s prior t e s t i m o n y should not have been adm i tted during trial.
In response, the State argues that the reco r d belies Am e s’s claim s. The State points to the testim o ny of Investigator Deway ne Sm ith, who o utlined the steps taken b y the State to locate Johnson. The S tate also argues that it was not required to do every thing c onceivable to locate

3J o h n s o n and that “it would have been f u tile to p repare a request f o r [ a] subpoena and a subpoena when the prosecution k n e w that Johnson could n ot be s e rved since he had been

m issing f or f our y ears.” ¶7. The hearsay

exceptions f

ound in Rule 804 of

the Mississippi Rules of

Evidence are inapplicable if the declarant is available. And, u nder t hat r ule, if t he declarant is available, then the in-court repetition of his statem ents constitutes inadm issable hearsay

. See M.R.E. 804(b). As stated, Am es argues t hat the trial court erred in deem ing Johnson unavailable under R ule 804(b)(1); however, the crux of his argum ent is that the court erred in adm itting inadm issable hearsay

testim ony . ¶8. The standard of review f or the adm ission o r exclusion o f e vidence is w ell settled: “[ It] will be reviewed by the appellate court f or an abuse o f discretion.” Talley v. State , 164 So. 3d 516, 518 (¶11) (Miss. Ct. App. 2015) (citing Osbourne v. State , 54 So. 3d 841, 845 (¶12) (Miss. 2011)). “ Reversal is p roper only w here the error adversely af f ects a substantial right of a party .” Talley , 164 So. 3d at 518 (¶11) (citing Osbourne , 54 So. 3d at 845 (¶12)). ¶9. Under Rule 804(b)(1), [ t]es t i mo ny given as a witness at another hearing of the sam e or a dif f erent proceeding, or in a dep o s i t ion taken in com pliance with l aw i n t he course of t h e s a me o r another proceeding, if the party against whom the testim ony is now of f e red, or, in a c ivil action or proceeding, a p redecessor i n interest, had an opportunity and s im i lar m otive to d evelop the testim ony by direct, cross, or redirect exam ination[ , is excluded f rom the hearsay r

ule if the declarant is unavailable as a witness]. ¶10. According to Mississippi Rule of Evidence 804(a)(5), a witness is unavailable if he

4“[ i]s absent f rom the hearing[ , ] and the proponent of his statem e nt h as been unable to procure his attendance

. . . b y proce s s o r o t h e r reasonable m e ans[ .]” W hile the State m ust m ake a

“ d i l i g ent ef

f ort” t o procure the witness’s attendance, it is not required “to do every t h i n g conceivable.” Naylor v
. State , 759 So. 2d 406, 409 (¶7) (Miss. 2 000) (citations om itted). A trial court’s determ ination that the State m ade a diligent ef f ort to procure t h e w i t n ess’s attendance will not be disturbed on appeal unless t he t rial court abused i ts discretion. Russell v. State , 670 So. 2d 816, 827 (Miss. 1995) (citations om itted). ¶11. During trial, which was held July 1-3, 2 013, Investigator Sm ith testif ied that he had last seen Johnson on June 24, 2 0 0 8 , a n d that he and the State had been “in constant conversation about

. . . Johnson” f or nearly f

our y e a rs. Investigator S m ith also testif ied that in attem pting to locate Johnson, he had spoken w ith som e of Johnson’s “known associates” and “som e inf

orm ants that p oss i b l y k n e w [ Johnson’s] location and f ollowed those leads.”
He f urther testif

ied that he h a d s o u g h t the assistance of law enf o rcem ent in other jurisdictions. Investigator Sm ith stated t hat h e h ad “used [ a search engine sim i l a r t o the National Crim e Inf

orm ation Center] that helps [ law enf o rcem ent] locate suspects [ using the suspect’s] nam e[ ,] address[ ,] possible location [, ] a n d the nearest relative.” H e also stated that he had searched places in W arren County and Hinds County and that w i t h i n t h e two y ears preceding trial, in attem

pting to locate Johnson, h e had exhausted every p o s s i b l e t o ol and resource at his disposal. ¶12. In Naylor , 759 So. 2d at 409-10 (¶11), a c a ptain o f the Lauderdale C ounty Sherif f ’s

5Departm ent testif i ed t hat, in a ttem

p ting t o locate a n unavailable witness, his agents h ad m ade

contact with the witness’s p arents, who ref u sed to reveal the witness’s location. I d

. He also testif i ed that he had m ade contact with the Philadelphia Police Departm e nt and Neshoba County Sherif

f ’s Of f ice and had s t a k e d out a child-care f a cility that t he witness was reportedly running. Id

. In that case, the Mississippi Suprem e C o urt f ound that the State had

m ade a diligent ef

f o rt to procure t h e w i t n e ss’s attendance. Id

. at 4 10 (¶16). B ecause the State’s ef f orts in this case m atch its ef f orts in N a ylor , we d o not f

ind t hat t he trial court abused its discretion in concluding that the State m a de a diligent ef f ort to procure Johnson’s attendance at trial or in adm itting his testim ony under Rule 804(1)(b). This issue is without

m erit.
II. Lack of Speedy Trial

A. Constitutional Right ¶13. Am es argues that h is constitutional right to a f a st and speedy t rial was violated by the 1,995-day delay b etween his arrest by f ederal m arshals and his trial. In response, the State
argues that the reasons f

or d elay were not attributable to i t and that Am e s f ailed to show prejudice. ¶14. The r i g h t t o a speedy trial is protected by the Sixth and Fourteenth Am endm ents to the United St a t e s C o n s titution a nd Article 3, Section 26 of the Mississippi Constitution of 1890. To determ ine whether there was a s peedy -trial violation, t h i s C o urt applies the balancing test f

rom Barker v. W

ingo , 407 U.S. 514, 530 (1972), which requires us to exam ine

6the f

ollowing f

our f actors: (1) length of d e l a y , ( 2) r eason f or delay , (3) the def

endant’s assertion of his right, and (4) prejudice to the def endant. 1. Length of Delay ¶15. “The Sixth Am endm ent speedy -trial right attaches at t he tim e of [ the ] f o r m a l indictm ent or inf

orm ation or [ the] arrest—whichever occurs f irst.” Ben v. State , 95 So. 3d 1236, 1242 (¶10) (Miss. 2012) (citation om itted). “[ A] delay of m ore than eight m onths is considered presum

ptively prejudicial.” Id . at (¶9) (citation om i tted). ¶16. On August 2 0, 2008, while Am es was s till serving his sentence in the f ederal prison, he was i n d i cted f

or the aggravated-assault charges. T hen, on October 7, 2011, af ter his release f rom t h e f ederal prison, he was t a k e n i n to custody in Mississippi. So Am es was indicted bef

ore h is arrest f

o r the a ggravated-assault charges, and his speedy -trial right attached when he was i ndicted. His trial began o n July 1, 2013, which was m ore than eight

m onths a f ter his indictm ent. As such, t he length-of -delay f a ctor weighs in f

avor of Am es. W h ile that f

actor alone is not suf

f icient f or a reversal, a close exam ination of the rem aining Barker f actors is required. DeLoach v. State , 722 So. 2 d 512, 517 (¶16) (Miss. 1998) (citing Handley v. State , 574 So. 2d 671, 676 (Miss. 1990)).

2. Reason for Delay ¶17. In Barker , 407 U.S. at 531, the United States Suprem e Court stated: Closely related to [ the] length of delay is the reason the governm ent assigns to justif y the d elay

. Here, too, dif f erent weights should be assigned to dif f erent reasons. A deliberate attem pt t o delay the trial in order to ham p er the def

ense should be weighted heavil y a g a i n st the g overnm ent. A m ore n eutral reason
7such as negligence or overcrowded courts should be weighted less heavily but

nevertheless should be considered since the u ltim ate respon s i bility f or such circum stances m

ust rest with the governm ent rather than with the def endant. ¶18. The State issued a detainer warrant f or Am es on April 2, 2008, and indicted him on A u g u s t 2 0 , 2 008. O n April 13, 2009, Am es asserted his right t o a s peedy trial. “[ O]nce a prisoner m akes dem and f

or s peedy trial on any pending charges in another jurisdiction, that other j urisdiction has ‘a constitutional duty

. . . to m ake a diligent, good-f aith ef f ort to bring the prisoner bef

ore that jurisdiction f

or trial.’” C

ressionnie v. State , 797 So. 2d 289, 291 (¶6) (Miss. Ct. App. 2001) (quoting Smith v. Hooey , 393 U.S. 374, 383 (1969)). ¶19. More t han f

our m onths l ater, on August 20, 2009, the trial court f i led a n o rder
g r a n t i n g the State’s request f or a writ of h abeas corpus ad prosequendum and an order t o transport Am es f

rom the United States Penitentiary in Pollock, Louisiana. In Cressionnie , 797 So. 2d at 292 (¶¶8-9), this C ourt r ecognized t he issuance of a writ of habeas corpus ad prosequendum

as one way

of seeking the tem

porary return of a prisoner f

or the purpose of standing trial. W hile the procedure does not g uarantee success, since t here is no enf orcem ent

m echanism as between t he state and the f ederal g o v e r n me nt, the State m ust still m ake the ef f ort. I d

. at 292-94 (¶¶10-11). By f iling its request f

or a w rit of habeas corpus ad prosequendum , the State satisf ied the requirem e nt that it m ake a diligent, g ood-f aith ef f ort to bring Am es to trial. ¶20. On Sep t e mber 16, 2011, the trial court s igned an order that instructed the W arren County Sherif

f ’s Departm ent to take custody of Am es on October 7, 2011, af ter his release

8f

rom the f ederal prison. Am es was arraigned on O ctober 14, 2011, and a ppointed counsel. Trial w as set f

or March 19, 2012, and Am e s w as released on bond. A s discussed below, over the next twenty and o ne-half m onths, trial was continued f our t im es, a nd A m es’s counsel was substituted f

ive tim es. ¶21. On Mar c h 5 , 2 012, counsel f or Am es, John W

. Bullard, f i led a m otion t o withdraw

as attorney of record based o n a conf lict of interest due to t he f act t hat he was em

p loy ed as

an a ssistant district attorney on the date of the crim e alleged in the indictm ent. The trial court granted Bullard’s m otion, and Jerry Cam pbell was substituted as counsel the f ollowing day

. On March 22, 2012, the trial was continued to Septem ber 10, 2012, and on t hat day , although the State was ready to proceed with trial, Am es f ailed to appear. Am es claim ed that Cam pbell had not inf

orm ed him of his trial d ate. Apparently , Cam pbell m oved to withdraw

as counsel that sam e day

. 1 In ruling on Cam p bell’s m o tion to w ithdraw, the trial c ourt stated: Now, as to M r . Jerry Cam pbell, then being substituted as cou n s e l , t h e re is som e speculation[ —]or[ ] t he representation is m ade t hat the def endant didn’t show up f or his trial on that date. The State is ready f or trial, a date i s set, and y et on that date f

o r t h e t rial t he def

endant doesn’t show up. Now, the def enda n t i s g o ing to s ay

— apparently , he has represented that his attorney didn’t tell him

. There should have

. . . been m ore than just the attorney

. There would have been a court order setting the trial date. The def endant’s bonding com pany knew of or shou l d h a v e known of the trial date. And so t he Court certainly doesn’t attribute that delay to the State. The d ef endant should have been here. Had he b een here, he would have been tried, but he did not stay in contact with his attorney , h is appointed attorney , and that attorney asked to withdraw[ ,] and that request was granted.

1 T h e S tate alleg es th at C am p b ell m o v ed to w ith d raw th at sam e d ay . 9¶22. On Septem ber 14, 2012, the trial was continued to February 25, 2 013. On Decem ber 18, 2 012, Bullard was again a ppointed counsel, and on Decem ber 20, 2012, Justin Jones was substituted f

or Bullard. O n February 7, 2013, the parties s igned an agreed order to continue the trial to June 2 4, 2013. On February 15, 2013, Jones f iled a m otion to w ithdraw as counsel because he accepted new em ploy m ent and closed his law of f i ce. On May 16, 2013, Michael W inf

i eld, Paul W i nf

ield’s brother, was substituted as counsel. On April 16, 2013,
A m e s w a s a r rested and charged with f e lon in possession of a f

irearm

. O n May 16, 2013, Kim berly Nailor w as substituted a s counsel d ue to a conf

lict of interest that arose as a result of Michael and Paul Wi n f ield’s relationship. That sam e day , the t rial court continued the trial to July

1, 2013, when it com m enced. ¶23. Bullard’s, Michael W inf ield’s, and Jones’s withdrawals cannot be attributed to Am es, and w hile the reason f

or the delay associated with their appointm ents and substitutions is a neutral one, this weighs slightly against the State. Bullard and M ichael W i nf ield both had

a c onf lict of interest, a nd the reason f or Jones’s w ithdrawal w as personal in nature and was in no way attributable to Am es. ¶24. The reason f

or Cam pbell’s withdrawal is u nclear, but the record reveals that he was present f o r trial on Septem

ber 10, 2012, when Am e s f ailed to appear. W e cannot s ay that this delay was attributable to the State because the State w as ready to proceed with trial. W hile
Am es claim s he d i d n o t k n o w his trial date because Cam pbell did n ot tell him , nearly six

m onths had passed s ince the o r iginal trial setting. Having appointed counsel d id not absolve

1 0Am es o f his responsibility to inquire about his trial date, and he does not argue that Cam pbell told him not to appear f

or trial. This delay was caused by Am es. ¶25. Upon review, we f ind that the c o n t i n uances were either agreed to, a direct result of changes i n counsel, or a result of Am es’s f ailure to appear. Responsibility f or the changes in counsel and Am es’s f

ailure to appear have already been addressed. This f actor f avors the State. 3. Assertion of the Right ¶26. Am es asserted his right to a speedy trial on April 13, 2009, nearly eight m onths af ter he was indicted. Notwithstanding the assertion of his right, his trial did not com m ence until approxim a tely

f our y ears later. This f

actor weighs in f

avor of Am es. 4. Prejudicial Effect of the Delay ¶27. There are three m ain considerations i n determ ining whether the accused has been prejudiced by a lengthy d e l a y : “ ( 1) preventing oppressive pretrial incarceration[ ,] (2)

m inim izing anxiety a nd concern of the a cc used[ ,] and (3) lim iting the possibility that the def ense will b e im

paired.” Jefferson v. State , 8 1 8 S o . 2d 1 099, 1108 ( ¶21) (Miss. 2002) ( internal quotations om itted). “Generally , proof of prejudice entails the loss of e v i d e n c e , death of witnesses, or staleness of an investigation.” Sharp v. State , 786 So. 2d 372, 381 (¶19) (Miss. 2001). “The possibility of i m p airm ent of the def

ens e i s t h e m ost serious consideration in determ ining whether t he def e ndant has suf

f er e d prejudice[ ] as a result of delay .” Id . (citations om itted).

1 1¶28. Am es does not argue that his pretrial i ncarceration was o ppressive. Instead, he argues

that the delay caused him increased anxiety and concern. This assertion, however, lacks specif icity

. “[ A]nxiety alone does n ot [ alway s] am ount to prejudice worthy of reversal.” Duplantis v. State , 708 So. 2d 1327, 1336 (¶25) (Miss. 1998). Am es m ust show “how this anxiety m anif

estly i m pacted him or his f

am ily .” McBride v. State , 61 So. 3d 138, 147 (¶31) (Miss. 2011). This he f

ailed to do. ¶29. Am es a lso a rgues that the d elay im paired his d ef

ense because he was u nable to locate

two witnesses—Johnson and A m es’s girlf riend at the t im e of the incident, Irene W ard. He insists that he was prejudiced b y the delay b e c a u s e h e was denied h is right to conf ront Johnson. However, according to our su p r e m e court, “testim ony adm itted under [ Rule] 804(b)(1) does not v iolate the Conf rontation Clauses o f the f ederal and state constitutions.” Russell v
. State , 670 So. 2 d 816, 829 (Miss. 1 995) (internal quotation m arks and citation

om itted). Theref

ore, Am es was not denied his right to conf rontation. ¶30. Also, Am es does n ot e xplain how his inability to locate W ard prejudiced his def ense. There was no subpoena issued f or her, and Am es’s counsel did not m ention her when arguing prejudice in Am es’s m otion t o dism iss based on the lack of a speedy trial. The record reveals that W ard was not present at the scene of th e c rim e and that she was not with Am es in Louisiana. T heref

ore, she had no f

irsthand knowledge of

Am es’s whereabouts at the t im e of the crim e. Am es has f

a iled t o show prejudice, and this f actor weighs in f

a v or of the State. ¶31. W h ile the delay w a s presum ptively prejudicial, a nd Am es asserted his speedy -trial

1 2right, we f

ind t hat his constitutional right to a speedy trial w as not violated. The S tate m ade

a good-f aith ef f ort to bring him to trial whil e he was serving tim e in the custody of the f ederal prison, and the withdrawal o f e a ch o f Am es’s counsel, while not his f ault, weighs only slightly a gainst th e S t a t e . The reason f or one delay is d

ue in l arge part to Am es’s absence on th e day of trial and w ithdrawal o f counsel that sam e day

. Am e s also agreed to

one of t he f

our continuances. Furtherm ore, Am e s has f ailed to show how he w as prejudiced by the delay . This issue is without m e rit.

B. Statutory Right ¶32. Am es argues that his statutory right to a speedy trial was violated by the 654-day delay between his arraignm ent and trial. Again, the State insists that it was not r esponsible f or the delay and that Am es has f

ailed to establish prejudice. ¶33. Under Mississippi Code Annotated section 99-17-1 (R e v . 2 0 0 7 ) , “ [ u]nless g ood cause be shown, and a c o n t i nuance duly granted by the court, all of f e nses f or w hich indictm ents

are presented to the court shall b e tried no later than two hundred seventy

. . . day s af ter the accused has been arraigned.” First, we calculate the num ber of day s between arraignm ent and trial. Because 626 day s passed between arraignm ent and trial, we m ust “consider each delay s eparately , because only those delay s attributable to the State count t oward the 2 7 0 day s.” Sharp , 786 So. 2 d at 378 (¶5) (citing Baine v. State , 604 So. 2 d 258, 264 (Miss. 1992)). ¶34. First, we consider the block of tim e between arraignm ent a nd t he f irst date set f

or trial,

1 3October 1 4, 2011, to March 19, 2012. “The necessary tim e f or the accused and his counsel

to prepare his trial m

ust necessarily be lef

t l argely to the sound discretion of the trial judge, bearing i n m ind the f

a cts and circum stances of the particular c a se.” Id. at 378 ( ¶6) (citations

om itted). Given the nature of the case and the am ount o f tim e that had elapsed since the

com m ission of the alleged crim e, the tim e given to allow A m es’s attorney to p repare was not excessive; theref

ore, the tim e between arraignm ent a nd t he f irst date set f

or trial does not count against either the State or Am es. ¶35. Next, we consider the b lock of tim e between Bullard’s withdrawal and the next date

set f or trial—that is, March 5, 2012, to Septem ber 1 0, 2 012. Af

ter B ullard withdrew, the trial

court appointed Cam

pbell. The trial was t hen c ontinued to S eptem ber 1 0, 2012, to allow Cam pbell tim e to prepare a def ense. “A delay caused by the withdrawal of the def endant’s attorney which entails allowing the new a ttorney a r easonable tim e to becom e f a m iliar with the case and prepare f

or trial cannot be weighed against t he State.” M anix v. State , 895 So. 2d 167, 175 (¶13) (Miss. 2005) (citation om itted). This continuance was f or good cause. ¶36. The next block of tim e was f rom S eptem

b er 10, 2012, to February 25, 2 013. During that t im e, t he State was ready to proceed to trial, but Am es did not appear. This delay cannot be attributed to the State. A f t er Cam pbell withdrew as counsel, the trial was continued to February 25, 2013. ¶37. On February 7, 2 0 13, the parties signed a n agreed order to continue t he trial to June 24, 2013. W hen a m otion f or a continuance is joined by the def e ndant, “ i t is dealt with as

1 4if it were sought by the def ense.” Sharp , 7 8 6 S o . 2 d a t 378 (¶7). “As such, continuances sought by the def

ense are charged against t hem .” I d

. This continuance cannot be attributed to the State. ¶38. Between February 7, 2013, and June 2 4, 2 013, J ones w ithdrew and M ichael W inf ield

was substitut e d as c ounsel. As the trial date neared, Michael W inf ield withdrew based on

a conf lict of interest, and Nai l o r w a s a ppointed counsel on May 16, 2013. The trial was again continued to July 1, 2 013, to allow Nailor tim e to p repare a def ense. As s t a t e d , a preparatory delay f

o r a d e f e ndant’s benef

it is n ot weighed against the State. This continuance was f

or good cause. ¶39. Upon review, we f i nd that all of the delay s were either attributable to Am es or were f or good c ause, and w e f

ind that Am es’s s t a t u t o r y r i g h t to a speedy trial was not violated. Accordingly , we af

f irm

. ¶40. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF C O N V I C T I O N O F T W O C O U N T S O F A G G R A V A T E D A S S A U L T A N D S E N T E N C E OF TWENTY YEARS F OR COUNT I, WITH F I V E Y E A R S S USPENDED, FIFTEEN YEARS TO SERVE, AND F IVE YEARS OF POST-RELEASE SUPERVISION, AND TWENTY Y E A R S F OR COUNT II, WITH F IVE Y EARS SUSPENDED, FIFTEEN Y E A RS TO SERVE, AND FIVE YEARS O F POST-RELEASE SUPERVISION, WITH THE S E N T E N CES T O RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN COUNTY. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAX WELL, FAIR AND WILSON, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

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