IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00630-COA AKEEM RASHEED A/K/A AKEEM MUWAKKIL RASHEED A/K/A AKEEM ABDULLAH RASHEED A/K/A LEE MORRIS SHARP A/K/A LAMAR SHARP APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/20/2016 TRIAL JUDGE: HON. LEE J. HOW ARD COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: SCOTT W INSTON COLOM NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF AGGRAVATED ASSAULT AND BURGLARY OF A DW ELLING AND SENTENCED AS A HABITUAL OFFENDER TO TW O CONCURRENT TERMS OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W I THOUT ELIGIBILITY FOR PROBATION OR PAROLE DISPOSITION: AFFIRMED - 08/01/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. F o l l o w i ng a jury trial i n the Oktibbeha County Circuit Court, Akeem R asheed was convicted of aggravated assault and burglary of a d welling b ased on evidence t hat h e kickeddown the door of Renee Childs’s apartm ent in Starkville and stabbed M ichael Randle in the

back with a knif

e. Rasheed and C hilds h ad been in a rom antic r e l a t i o n s hip, while Randle

was the f a ther o f Childs’s daughter. A short tim e af te r R a n d le was stabbed, Rasheed was arrested a f

ew blocks f

r om the a partm ent c a rry ing a knif

e . At trial, t he jury heard testim ony f rom R a n d l e, Childs, and Rasheed, as well as 911 calls p laced b y Randle and Childs and other evidence. Following his conviction, Rasheed was s entenced a s a habitual of f ender to
two c oncurrent t erm s of l i f e in the custody of the M ississippi D epartm ent of Corrections without eligibility

f or parole or probation. ¶2. On appeal, Rasheed’s a ppointed counsel a r g u e s t h a t t h e t r i a l j u d g e abused his discretion by ref

using Rasheed’s request e d j u r y instructions on self

- def e nse. However, because Rasheed testif

i ed at t rial and d e n ied that h e stabbed Randle, a nd b ecause the evidence did not s upport a self -def ense claim , the trial judge did n ot abuse his discretion by declining to instruct t he jury on s e lf -def ense. Rasheed’s a

ppointed c ounsel also argues that Rasheed was denied a f

air trial as a result o f various a llegedly prejudicial com m ents by the prosecutors during voir dire and closing argum ent. However, Rasheed did n ot o bject to any of t hese com m ents, m ost if not all of the com m e n ts were entirely proper and innocuous, and

none of t he com m ents were so inf lam m atory o r prejudicial as to require a new trial. Finally , in a p ro se supplem e ntal b rief , Rasheed a lleges a series of additional errors. However, m ost of the issues raised in Rasheed’s pro se brief are procedurally barred because they were not raised in the trial c ourt, and all are without m erit. Accordingly , f or the r easons discussed in

2m ore detail below, we af f irm Rasheed’s convictions and sentences. FACTS AND PROCEDURAL HISTORY ¶3. Around 9 p . m . on July 29, 2014, Randle was visiting Childs and their f ive-y ear-old daughter a t Childs’s a p a r tm ent in Starkville. Rasheed knocked on the door and identif ied him self to Childs. W ithout opening the door, Childs asked Rasheed to leave, and he did. ¶4. Rasheed and Childs had been in a rom antic r elationship. Although Rasheed believed that the relationship was “exclusive,” Childs testif ied that i t w as n ot. Childs t e s t i f i e d t h at Rasheed had called her earlier that day , and she h ad asked him not to com e t o her apartm ent because Randle would be there to visit. Randle and Rasheed did not know one another. ¶5. Rasheed returned to the apartm ent ten to twenty m inutes l ater and kicked in the door. Rasheed then entered the apartm ent and attacked Randle. Childs ran f rom the apartm ent and

went to a neighbor’s apartm ent to call 911. Af ter a short struggle w i t h R a n d le, Rasheed pulled a knif

e f rom his b a ck pocket and stabbed Randle i n the back. R asheed t hen f led, and Randle called 911. ¶6. Recordings of

the 911 calls f

rom Childs and Randle were adm itted into evidence at trial. Childs told the dispatcher that A keem Abdullah 1 had broken i n t o h e r a partm ent and “had a knif

e.” Randle t old the dispatcher that a black m an in a red shirt had stabbed him in the back with a knif

e and then f

led. ¶7. O f f icers f r om the Starkville Police Departm ent responded to C hi l d s ’ s a p a r t me n t

.

1 R ash e ed is also k n o w n as A k eem A b d u llah R ash eed

. 3Childs and Randle told the of f icers that Rasheed had s tabbed Randle and then f led wearing

a r ed shirt. Randle showed the o f f icers the stab wound to his back. O f f icers also observed that the apartm ent door had been knocked of f its hinges f

r om the outside into the a

partm ent. ¶8. Of f icers arrested Rasheed on Jackson Street a f e w b locks f

rom Childs’s apartm ent. Rasheed was wearing a brown shirt, but he was carry ing a plastic bag with a red shirt in it. Af ter the of f icers returned to the police station, they also f ound a f ilet knif e w ith a seven-inch blade in the bag. No blood w as apparent on the knif e o r the s h irt. At the tim e of his arrest, Rasheed denied that h e knew Childs. At the police station, Rasheed s igned a waiver of his Miranda 2 rights and gave a recorded statem ent to Detective Stephanie Perkins. ¶9. An Oktibbeha County grand jury indicte d R a s h e e d fo r a g g r a v ated assault and burglary of a dwelling. The indictm ent was later am ended to charge Rasheed a s a habitual of f ender under Mississippi C ode A nnotated section 99-19-83 (Rev. 2015). The case proceeded to a jury trial on April 19, 2016. ¶10. At trial, Rasheed testif ied that when he f

irst went to Childs’s apartm ent, she asked him

t o l eave and c om e back later. Rasheed c laim ed that when he r eturned thirty or f o r t y - f i v e

m inutes later, he knocked o n the door, and Childs invited him into the apartm ent. 3 He testif i ed that Randle then b ecam e angry and attacked him . Rasheed claim ed that as he and Randle were “tussling” in the k i tchen, Randle p icked up a knif e and attem

pted to stab him ,

2 M ira n d a v. A rizo n a , 3 8 4 U

. S . 4 3 6 (1 9 6 6 ).

3 R ash e ed claim ed t h at C h ild s p rev io u sly to ld h i m th at R an d l e h a d k ick ed th e d o o r in o n an o t h er o ccasio n . 4but he was able to wrestle t he knif e away f rom Randle. Rasheed then testif ied t hat, af

ter he took the knif

e f rom Randle, “I just -- I laid the k nif e on the table, and I just backed on out of the door.” Rasheed clearly and repeatedly denied that h e e v e r s t a b b ed R andle d uring the altercation. Rasheed claim ed that the knif e that the police later discovered in h is plastic bag

was a dif f ere n t k n i f e . R a s heed also claim ed that he was under the inf luence of drugs and alcohol during his post-arrest interview with Detective Perkins. ¶11. Af ter Rasheed testif

ied, the State called Detective Perkins as a rebuttal w itness, and

a v ideo o f her interview of Rasheed was adm itted into e vidence. In t he interview, Rasheed told Perkins that he went to Childs’s apartm e n t t hat evening, but Childs told him that “she had com pany ,” so he l ef

t. Rasheed said that he went to his aunt’s apartm ent across the street b u t returned to C hilds’s apartm ent when she called and told him that she needed to t a l k t o h i m . Rasheed said that when he returned to Childs’s apartm ent, he a nd Randle t u s s l e d , Randle pulled out a knif

e, and he took the knif

e f rom Randle. Perkins then asked whether he stabbed Randle with the k nif e. At one point, Rasheed answered, “apparently .” Rasheed later s a id that he did not r e me mb e r stabbing R andle but that it “was p ossible” “because it happened so f

ast.” Rasheed said that whatever had occurred was “not intentional” and that he was “rem orsef

ul.” Near the end o f t he in t e r v i e w, Perkins asked Rasheed whether he stabbed Randle af

ter taking the knif

e f rom him , and Rasheed answered, “Yes, m a’am

. ” ¶12. The jury f

ound Rasheed g uilty of both a ggravated assault a nd b urglary of a dwelling. A separate hearing was held on Rasheed’s status as a habitual of f ender under section 99-19-

583. The State presented certif ied pen-packs showing Rasheed’s prior convictions, and the trial judge f

ound that the State had m et its burden o f proof t h a t R a s h e e d w as a habitual of f ender under section 9 9-19-83. Rasheed subsequently f i led a tim ely m otion f

or a j udgm ent notwithstanding the verdict or a new trial, which was denied, and a t im ely notice of appeal. DISCUSSION ¶13. Rasheed ’ s a p p o i n t e d c o u n s e l f rom the Of

f i ce of State P ublic Def

ender, Indigent Appeals D ivision, f

iled a brief raising f

our issues: ( 1) whether t he trial court erred by deny ing

a self -def ense instruction that Rasheed requested; (2) whether the t rial court erroneously instructed the jury o n the elem ents of aggravated assault; ( 3) whether the trial court should have declared a m istrial sua s ponte because “m u ltiple i nstances o f p rosecutorial m isconduct denied [ Rasheed] a f

a ir trial”; and (4) whether trial counsel’s f ailure t o object to the alleged prosecutorial m isconduct constituted inef f ective assistance of

counsel. Rasheed then f iled

a pro se supplem ental brief raising eight a d ditional issues. W e address the i ssues raised by appointed counsel f

irst and then turn to Rasheed’s additional issues. I. Jury Instructions A. Self-Defense Instruction ¶14. Rasheed f

irst argues that the trial judge e r r e d b y r ef using his proposed self

-def ense instruction. During the charge conf erence, t he trial judge stated that he saw n o evidence of self -def e nse given t hat Rasheed denied that he stabbed Randle. In response, Rasheed’s trial counsel twice stated that h e a g r e e d with the judge’s a ssessm ent of the e vidence, although

6counsel did n ot w ithdraw the self -def ense instruction that he had subm itted prior to trial. The judge ref used the instruction. ¶15. “The trial court enjoy s considerable discretion regarding the f orm and s u

bstance of jury instructions.” H

iggins v . State , 725 So. 2d 2 20, 223 (¶15) (Miss. 1998). Theref ore, we review the grant or denial of jury instructions f or an abuse of discretion. Newell v. State , 49 So. 3d 66, 73 ( ¶20) (Miss. 2010). The instructions m u st be read as a whole and “m ust f airly

announce the l aw of the case and not create a n in j u s t i ce against the d ef

endant.” Davis v. State , 18 So. 3d 842, 847 ( ¶14) (Miss. 2009). “In other words, if a ll instructions taken a s a whole f airly , but not necessarily perf ectly , a nnounce the applicable rules o f l a w , no error results.” Milano v. State , 7 90 So. 2d 1 79, 184 (¶14) (Miss. 2001). Moreover, a def endant’s “right to jury instructions that present his t heory o f the case . . . is not absolute.” Davis , 18 So. 3d at 847 (¶15). A def endant is not entitled to an instruction that is “ without f oundation in the evidence.” Morgan v. State , 117 So. 3d 6 19, 623 (¶14) (Miss. 2013) (quoting Bailey v. State , 78 So. 3d 308, 315 (¶20) (Miss. 2012)). ¶16. In O atis v. State , 7 26 So. 2d 1230 (Miss. C t. A pp. 1998), the def endant was charged with assaulting a police of f icer and re q u e s t e d a self

- def ense instruction even though he “denied ever k

neeing or otherw i s e hitting t he o f f icer.” Id. a t 1233 (¶¶6-7). H e c ontended that the jury could inf

er f rom “the evidence f

rom other w itnesses” that he struck the of f icer because the of

f icer “elbowed him and otherwise started hurting him .” Id

. “The trial judge

rem ained unconvinced” and ref used the instruction, and this Court af f irm ed. I d. at (¶¶7-9).

7This Court reasoned: “W ithout [ the def endant] say ing that h e h it the o f f icer in necessary self -def e nse, there [ was] no basis to instruct the jury a s t o t h at possibility

. Quite sim ply , self -def e nse was not [ the def

e ndant’s] explanation f

or what happened.” Id. at (¶8); accord Osborne v. State , 843 S o. 2d 99, 101-02 (¶¶7-9) (Miss. Ct. App. 2 003) ( holding that the trial

court did not abuse its d iscretion i n deny ing a self -def ense instruction where the def endant denied any contact with t he victim ); cf. Morgan , 117 So. 3d at 6 22-24 (¶¶13-17) (holding that the trial court did not a

buse its d iscretion by deny ing the def e ndant’s requested instruction

on im perf e ct self -def ense because “the o nly theory p resented through witnesses called by the def ense was that [ the def

endant] was not the shooter”). ¶17. The s ame r e a s o n i n g a p p lies in this case. Rasheed d enied that he stabbed Randle. According to Rasheed’s version of events, he “ just

. . . laid the knif

e on the table,” and then “just backed on o u t of the door.” Indeed, d uring the charge conf

erence, even Rasheed’s trial counsel f elt obliged to acknowledge that the evidence d id not seem to support a claim of self

def ense. The trial judge did n ot abuse his discretion by ref using the instruction prof

f ered by Rasheed. B. Aggravated-Assault Instruction ¶18. Rasheed also m akes a related argum ent that t he jury was im properly instructed on the elem ents of aggravated assault. The trial court i nstructed t he jury that t he State was required

to p rove bey ond a reasonable doubt that “Rasheed knowingly and unlawf ully caused bodily injury to . . . Randle by

using a deadly

weapon, a knif

e, to stab . . . Randle.” However, the

8trial judge ref used Rasheed’s proposed instruction, which would have also r equired the jury to f i nd that Rasheed did not act “in necessary self -def e nse.” ¶19. For the reasons discussed in the im m ediately p receding section, t he trial judge did not abuse his discretion by deny ing Rasheed’s requested instruction. Because Rasheed denied that he stabbed Randle, h e was not entitled to instructions on self -def ense or on the State’s burden to disprove a properly raised claim of self

- def ense. Shelton v. State , 728 S o. 2d 105, 116-17 (¶62) (Miss. Ct. App. 1998). “Generally , to prove aggravated assault, in the m anner charged here, the S tate has to prove two e lem ents—that the d ef endant (1) attem

pted to cause

or purposely or knowingly caused bodily injury to a nother (2) w ith a d eadly weapon.” Duke

v. S tate , 146 So. 3d 401, 405 (¶16) (Miss. Ct. App. 2 014). The State’s “additional burden” of proving “a third required elem ent—that the [ assault] was ‘not in necessary self -def e nse’”—arises only if the evidence is s uf f icient to support a self

-def ense claim

. Id.

at 405-06 (¶16); see also McIntosh v. State , 749 So. 2d 1 235, 1 2 4 0 (¶17) (Miss. Ct. App. 199 9 ) ( “ O nce a defendant properly raises self-defense , the burden of proof r ests with the prosecution to disprove that a def endant a c t ed in necessary self -def ense.” (Em

phasis added)). Because the evidence in this case did not s upport a c laim of self -def ense, the trial judge did not abuse his discretion by ref using to i nstruct the jury

on this additional burden. Shelton , 728 So. 2d at 116-17 (¶62). II. Alleged Prosecutorial Misconduct ¶20. Rasheed n ext argues that statem ents by the district attorney (DA) and a ssistant district

9attorney (ADA) prejudiced h is right to a f air trial. Rasheed contends that, beginning in voir dire and continuing through closing argum ents, the prosecutors made a litany of im proper

com m ents. Although Rasheed’s trial counsel did not o b j e c t to any of these com m ents, Rasheed now i nsists that the trial judge should have ordered a m i stri a l s u a sponte and that his trial counsel’s f

a ilure to object constituted inef f ective assistance of counsel. ¶21. Rasheed’s “f

ailure t o object to the prosecutor’s com m ents d u r i n g voir dire renders this issue procedurally barred.” Neal v. State , 15 So. 3d 388, 401 (¶27) (Miss. 2009). Likewise, “[ c]ontem

poraneous objections to allegedly erroneous com m ents of the p rosecuting attorney in c losing argum ents m

ust be m ade or the point is waived.” Gray v. State , 487 So. 2d 1304, 1312 (Miss. 1986). I f no contem poraneous objection is m ade, “the point m ay b e considered”

o n appeal only “if the argum e nt [ was] so ‘inf lam m a tory ’ that the trial judge sh o u l d h a v e objected on his own m otion.” I d

. ( q u o t i n g Griffin v. State , 292 S o. 2d 159, 1 63 (Miss. 1974)). Howev e r , “ [ w ] i d e latitude is g enerally available t o counsel to a rgue his case on closing argum ent.” W

i lliams v. State , 684 So. 2d 1179, 1205 (Miss. 1996)

. ¶22. “The benchm ark f or judging any claim of inef f ectiveness m

ust be whether counsel’s conduct so underm i ned the p roper f unctioning of the adversarial process that the t rial cannot be relied o n as having p roduced a just result.” Strickland v . W ashington , 466 U.S. 668, 686 (1984). The def

endant m ust show both (1) “that c o unsel’s perf o rm a n ce was def

icient”—i.e., “that counsel m ade errors so serious t hat counsel w as not f unct i o n i n g as the ‘counsel’ guaranteed the def

endant by the Six t h A me n d ment”— and (2) that he was prejudiced as a

1 0result—i.e., “that c ounsel’s errors were so serious as to deprive the def endant of a f

air trial,

a trial whose result is reliable.” Id. at 687. As to S trickland ’s f

irst prong, our Suprem e Court has held that, in general, “ ‘counsel’s choice of w hether or not t o . . . m a k e certain o bjections f all[ s ] within the a m

bit o f trial s trategy ’ and cannot give rise to an inef f e ctive assistance of counsel claim

. ” Carr v. State , 873 So. 2d 991, 1003 ( ¶27) (Miss. 2004) (quoting Cole v. State , 666 So. 2d 767, 777 (Mis s . 1 9 9 5)). As t o the second prong, “[ t]he def endant m ust show that there is a reasonable probability that, but f o r counsel’s unprof

essional errors, the result of the proceeding would have been dif f erent. A reasonable probability is a probability suf f i cient to underm i ne conf

idence in the outcom e.” Strickland , 466 U.S. at 694. ¶23. W i th these principles in m ind, we c onsider the various com m ents that Rasheed alleges were im proper. First, near the beginning of voir dire, the ADA stated as f ollows: This is a hugely i m

portant case to the parties,

. . . Akeem Rasheed and also the State of M ississippi. I represent the S tate o f Mississippi. It’s an im portant case because one of t he governm e nt[ ’]s m ost im portant role[ s] i s t o m a intain law and order on behalf of the whole society , to hold people accountable f or the crim es t hat they c om m it, and t o ensu r e t h a t justice is done; not h eld accountable f

or the crim es they don’t com m it. And i t c a r r i es with it a grave responsibility to be a juror, okay ? Because convicting som eone of a c rim e and po t e ntially t aking away their liberty would be one of the m ost s erious things that a governm ent could ever do. And so t h i s i s about m aking sure that Mr. Rasheed and the State o f M i s s i s s ippi get a f air t rial, okay ? Does every body agree h ere that justice can only be done with a f air trial, with a f

air an d im p artial jury ; is that right? Rasheed selectively

quotes f rom these com m e nts and argues that the ADA inappropriately asked jurors to “act on behalf of t he whole s ociety

. ” However, that was neither stated nor im p lied. T he A DA stated that i t was the role of the government to act on b ehalf of society ;
1 1the ADA em phasized that it was the jury ’s role to be “f air and im

partial.” ¶24. Rasheed next com

plains that, during voir dire, the ADA asked t he jurors a brief series of questions such as whether they thought it was “im portant to be able t o f

eel saf e and secure in [ their] o wn hom e[ s]” and “to def end their child[ ren] f

rom danger,” and whether they had

ever “been jealous” or taken any “sort of violent ac t i o n ” o u t of jealousy

. Although he did

not object at trial, Rasheed now argues t hat t hese were im proper “Golden Rule” argum ents and i m properly asked the jurors to place t hem selves i n the position of t he victi m. These open-ended voir d ire questions w ere not i m proper. In addition, the issue is procedurally barred, and the com m ents certainly were not so inf lam m atory as to m andate s u a s ponte intervention by

the trial judge or to establish prejudice under Strickland

. ¶25. Rasheed next asserts t hat t he ADA im properly sought to elicit sy m pathy during voir dire b y m entioning that he h a d som e dif f iculty hearing a nd that he had once injured his back. This argum ent is without m erit. The ADA sim ply told jurors that he som etim es talked too l oud because of his h earing i ssue. H e m entioned his b ack injury only in t h e c o u r s e o f explaining t hat voir dire was intended in part to identif y any potential juror who m ight not be “the right person to be a juror on a particular c ase”—to illustrate the point, he said that he probably should not s e rve as a juror on a c ase about a serious back i njury

. The ADA’s

com m ents were neither im proper nor prejudicial. ¶26. Rasheed also argues that the prosecutors m ade several im prope r c o mme n t s d uring opening and closing argum ents. During his opening argum ent, the DA stated as f ollows:

1 2W e ll, t hat b egs the question if the case is that sim p le what are we doing here? W e ll, I ’ l l t e ll y ou. I’m s u re t he def endant will com e up with som e sort of def ense. He’s got a sm art lawy er. He’ll f ind som e reason t o c l a im that he shouldn’t b e f

ound guilty of these crim es. He m ay say that he didn’t break into the apartm e nt. That Ms. C hilds l et him in. Thankf ully the police of

f icers took pictures of the scene. And so y ou’ll get to look at the pictures of that door and decide f or y ourself w hether that picture s h ows a door that’s been kicked in or a door where s om ebo dy was let in.

. . . He m ay also try to claim

. . . t hat this is som ehow self

-def ense; t hat Mr. Randle i nitiated the conf rontation or som e other reason to justif

y his actions. The problem with this s t ory is there are no f acts to support it. ¶27. R a s h e e d argues that the DA’s rhetorical q u e s t i o n

— “ [W ] h a t a r e w e d o i n g h e r e ?”

—

w a s

an im proper suggestion t hat his def ense was “a f

raud or scam .” However, in context, there

was nothing i m

proper about the com m ent. The D A was sim ply addressing the lack of evidence to support potential def enses. In addition, while a prosecutor s h ould ref rain f rom personal attacks o n def

e nse counsel, see, e.g. , Edwards v. State , 7 37 So. 2d 27 5 , 3 0 0-01 (¶¶54-56) (Miss. 1999), and should not com m e nt on the d ef endant’s right to a trial by jury , see, e.g. , P ayne v. State , 207 So. 3d 1282, 1287-88 ( ¶¶19-22) ( M i s s . Ct. App. 2 016), the above-quoted com m e nts were neither of these things. The DA’s c om m ents were not im p roper, prejudicial, or grounds f or the trial judge to order a m istrial sua sponte. ¶28. Finally , Rasheed asserts that during closing argum ent the ADA “ repeatedly vouched f or the truthf

ulness of the [ State’s] witnesses.” R asheed cites a handf ul of instances in which the prosecuto r a r g u e d that a witness told “the truth” or testif ied “honestly .” Once again, Rasheed did not o bject to any of the alleged im proper vouching. “W hile a prosecut or is prohibited f

rom stating his personal opinion a s to the veracity of a witness, objections m ust

1 3be m ade s o that t he trial judge m ay take corrective action.” Palmer v. S tate , 8 78 So. 2d 1009, 1012 (¶9) (Miss. Ct. App. 2004). Furtherm o re, “ the p rosecution i s e n t i tled to argue the credibility of its witnesses af ter it h as been challenged,” Brown v. State , 798 So. 2d 481, 492 (¶10) (Miss. 2001), and Rasheed plainly challenged Childs’s and R andle’s credibility at trial. In any event, the com m ents that Rasheed now cites were not so inf lam m atory as to com

pel the t rial judge to act sua s ponte, and t rial counsel’s decision not to object was not an error of such seriousness as to im

plicate Rasheed’s Sixth Am endm ent right to counsel. ¶29. In s um m a ry , Rasheed did not object to any o f the statem e n ts that he now say s deprived him of a f air trial. Most of the statem ents he now cites were innocuous and entirely proper, and none were so inf

l am m atory

or prejudicial as to warrant a new trial. III. Rasheed’s Pro Se Briefs ¶30. Rasheed f

i led a pro se supplem ental b r i e f and reply brief that r aise eight additional issues. For the reasons that f o llow, none of these issues warrants reversal or a new trial. ¶31. First, Rasheed argues that the arresting police of f icer and a Starkville m

unicipal judge “conspired” to a rrest him and that it was im proper f or the arresting of

f icer to sign docum ents in t he capacity of the deputy clerk of the m unicipal court. Rasheed cites no aut h o r i t y t hat supports this claim , and it is without m erit. ¶32. Second, Rasheed argues that he should not have been sentenced as a habitual of f ender because the State f

ailed to prove his habitual of f ender status under section 99-19-83. This issue is without m erit. Rasheed’s indictm ent w a s properly am ended to ref lect his habitual

1 4of

f ender status, and at R asheed’s sentencing hearing, certif i ed pen-packs were adm itt e d without objection that proved t hat Rasheed had been convicted of m u ltiple f e lonies, that he had served separate term s of one or m ore y ear in prison, and that he had been convicted of at least one crim e of

violence (arm ed robbery ). ¶33. Third, Rasheed argues that the trial judge erred by allowin g t h e Oktibbeha County Em ergency Managem ent Agency /E-911 director to t estif

y and by adm itting r ecordings of the 911 calls f

rom Randle and Childs. He argues that his rights u nder the Conf r ontation Clause

were violated because the 911 dispatchers were not s u b j e c t t o cross-exam ination. These issues are procedurally barred because they were not raised at trial. Also, the argum ents are without m erit. The recordings were plainly relevant and were p roperly a uthenticated. The dispatchers’ questions a nd R andle’s and Childs’s a n swers were n ot “ testim onial” in nature and thus d id not im

plicate the Conf

rontation Clause. See Davis v. W ashington , 547 U.S. 813, 826-29 (2006) ( concluding that t he usual purpose of a 9 11 call i s “to descr i b e c u r r e n t circum stances requiring police a ssistance” in connection with “an ongoing em ergency ,” not
to prove the f

acts of a past crim e). Moreover, there could be no Conf r o n t a t i on Clause objection to Randle’s or Childs’s out-of -court statem e nts because both testif ied at trial and

were subject to cross-exam ination. See Crawford v. W ashington , 541 U.S. 36, 5 9 n.9 (2004). ¶34. Fourth, Rasheed a rgues that the State should not have b een perm i tt e d t o a m end his indictm ent to correct an e rror, nam ely , that the a partm ent was C hilds’s “dwelling, ” not Randle’s dwelling. The issue is procedurally barred because Rasheed did not object to the

1 5am endm ent in the circuit court. Graham v. State , 935 S o. 2d 1119, 1120-21 (¶7) (Miss. Ct.

App. 2006). In addition, the am endm ent was proper because the correction of the nam e of the a partm ent’s owner was an am endm ent as to f orm , not substance. Furtherm ore, Rasheed f ails to articulate h ow the am endm ent prejudiced his def ense in the slightest. See Odom v. State , 73 So. 3d 550, 552-53 (¶¶8-15) (Miss. C t. App. 2011); Tubby v. State , 65 So. 3d 846, 849-51 (¶¶9-15) (Miss. Ct. App. 2 010). Thus, procedural bar notwithstanding, this issue is without m erit. ¶35. Fif th, Rasheed argues th a t h i s convictions f or aggravated a ssault and burglary of a dwe l l ing ( i.e., b reaking and entering with the intent to a ssault) violated the constitutional prohibition a gainst d o u

b l e j e o p a r d y . H o w e v e r , m a t erially indistinguishable c l aim s have been rejected i n prior cases. See generally Smith v. State , 429 So. 2d 252, 257 ( Mi s s . 1 9 8 3) (holding that conviction f or b o th r ape and burglary of a dwelling w ith the intent to com m it the of f ense of rape therein does not violate double jeopardy b ecause the essential elem ents of t he two of

f enses are dif

f erent); see also, e.g. , W

ashington v . State , 800 So. 2d 1140, 1147 (¶26) (Miss. 2001) (sam e as to burglary and arm ed robbery )

. The crim e of burglary was

com plete the m o m ent Rasheed f orcibly entered the apartm e nt with the intent to c ause bodily injury to Randle; i n contrast, the crim e of aggravated assault was not c om plete until Rasheed stabbed Randle, but that of f ense d id not require p roof that Rasheed entered the apartm ent with a n y particular intent. Rasheed com m itted and was convicted of t wo dif f erent of f enses with dif f erent essential elem ents. The issue is without m erit.

1 6¶36. Sixth, Rasheed argues that his trial counse l p rovided inef f ective assistance because he f ailed to s u

bpoena potential witnesses and f ailed to “proper l y i nvestigate” the case. Rasheed’s claim is not “based on f acts f ully apparent f

rom the record.” S

andlin v . State , 156 So. 3d 813, 819 (¶20) (Miss. 2013). Theref o re, we decline to address t h e c l a im without prejudice to its assertion in a properly f i led m otion f

or post-conviction relief

. I d. ¶37. Seventh, Rasheed argues that the knif e that w as i n his possessi o n a t the tim e of his

a r r est should not have been adm itted into e vidence because ( he say s) it was not t h e k n i f e used to s tab Randle, b ecause i t was unduly p rejudicial, and b e c a u s e the State f ailed to test the kni f e o r e s t a b l ish a proper chain of custody

. At trial, t he k nif e was adm itted into evidence without objection, so these issues a re a l l waived. Rasheed’s argum ents are also without m erit. Corporal Charlie Jones of the Starkville Police Departm e nt testif i ed that he f ound the knif

e in the sam e p lastic bag that Sergeant Kenny W a tkins took f r om Rasheed at the tim e of his arrest. Jones a lso testif ied to the chain of custody , that he sealed the knif e in a container and placed it in the evidence locker, and that there were no signs of tam pering. The State was not required to subm it the knif e f or f orensic testing. See Flaggs v. State , 999 So. 2d 3 9 3, 399 (¶18) (Miss. Ct. App. 2008) (“[ T]he State [ is not required] to test every i tem of evidence collected.”). And even without such testing, the jury r easonably could inf er that the knif e in R asheed’s possession was the sam e knif e used to stab Randle a f

ew blocks away a f ew m inutes earlier. S

e e Ronk v. State , 172 So. 3d 1 112, 1134 (¶49) (Miss. 2015) (“This Court has held that ‘when there is evidence that a weapon c o uld have caused an injury and

1 7som e c onnection between the def e ndant and t he weapon exists, the weapon will be deem ed relevant a nd adm issible.’” (Quoting Ross v. State , 954 So. 2d 968, 993 (¶46) (Miss. 2007))). In sum m a ry , the trial court properly adm itted the knif

e into evidence without objection. ¶38. Eighth, Rasheed argues t hat the evidence was insuf f icient to sustain his convictions. However, considering all of “the evidence in the light m o st f a vorable to the prosecution,” a “rational trier of f

act” could have believed Randle’s and Childs’s a c counts o f what occurred and “f ound the essential elem e nts” of burglary of the dwelling and aggravated assault “bey ond a reasonable doubt.” Bush v. State , 895 S o. 2d 836, 843 (¶16) (Miss. 2 005) (quoting Jackson v. Virginia , 4 4 3 U

. S

. 307, 315 (1979)). Theref ore, the evidence was suf f icient to sustain both convictions. Id. CONCLUSION ¶39. Given t hat Rasheed testif ied at trial and denied that he stabbed Randle, the trial judge did not abuse his discretion by ref using to instruct the jury on self -def e nse. In addition, there is am p le e vidence to support the convictions, and none o f the other issues raised by Rasheed, either through appointed appellate counsel or in his pro se supplem ental brief s , w a r r a n ts reversal, a new trial, or resentencing. ¶40. AFFIRMED. L E E , C . J . , I R

V I N G A N D G R I F F I S, P.JJ., BARNES, ISHEE, C A R L T O N , F A I R , GREENLEE AND WESTBROOKS, JJ., CONCUR.

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