IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-01273-COA
C ONSOLIDATED WITH
2005-KA-00526-COA
AND
2006-KA-01607-COA
TERRELL PATRICK CORVETTE HOPPER A/K/A TERRELL P. HOPPER A/K/A PATRICK APPELLANT

v.
STATE OF MISSISSIPPI APPELLEE
DATES OF JUDGMENT: 11/12/2003; 07/24/2003 TRIAL JUDGE: HON. LARRY O. LEW IS COURT FROM W HICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED IN CAUSE NO. 2003-0005 OF COUNT I, AGGRAVATED ASSAULT, AND COUNT II, AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER, AND SENTENCED TO TW ENTY YEARS ON COUNT I AND THIRTY YEARS ON COUNT II, TO RUN CONSECUTIVELY; AND CONVICTED IN CAUSE NO. 2003-0006 OF COUNT IV, ARMED ROBBERY, AND SENTENCED TO THIRTY-SEVEN YEARS, TO RUN CONSECUTIVELY TO THE SENTENCES IN CAUSE NO. 2003-0005; AND COUNTS II, V, VI, VIII, AND IX, AGGRAVATED ASSAULT ON A LAWENFORCEMENT OFFICER, AND SENTENCED ON EACH COUNT TO THIRTY YEARS, TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT IV, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED: 03/28/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. The M ississippi Suprem e Court has granted out-of -tim e a p peals of two convictions
rendered m ore than ten y ears ago
. 1 We a ddress Hopper’s claim s o n direct appeal in
accordance with the suprem e c ourt’s order. 2 Hopper’s attorney originally subm i tted a single
issue – that he is entitled to new trials because he r eceived constitutionally inef f ective
assistance of counsel. Hopper has since f iled a pro se s u p p l e me n t a l b rief a sserting other
issues.
FACTS

1 T h e S tate arg u e s t h at H o p p er’s claim s w o u ld b e b est b r o u g h t o n a p o st-co n v ictio n relief m o ti o n rath er th a n a d irect ap p eal. A rev iew in g co u r t m ay a d d ress an in ef

f ectiv eassistan ce-o f

-co u n sel claim o n d irect ap p e a l if th e issu es p resen ted are “b ased o n f acts f u lly ap p aren t f

ro m th e reco r d .” A rch er v. S ta te, 9 8 6 S o
. 2 d 9 5 1 , 9 5 5 (¶1 6 ) (M iss. 2 0 0 8 ) (citin g M .R .A .P . 2 2 (b )). T h e reco rd b ef o re u s is su f

f icien t to d ecid e all o f

H o p p er’s claim s.

2 D o c k et n u m

b er 2 0 1 4 -K A -0 1 2 7 3 -C O A i s th e d irect ap p eal o f C o a h o m a C o u n ty C i rcu it C o u rt c rim in al cau s e n u m b ers 2 0 0 3 -0 0 0 6 an d 2 0 0 3 -0 0 0 5

. T h e d ism issed ap p eals, d o ck et n u m

b ers 2 0 0 5 -K A -0 0 5 2 6 -C O A an d 2 0 0 6 -K A

- 0 1 6 0 7 -C O A , ha ve be e n c o n so lid ated
w i th th is ap p eal f

o r reco r d p u rp o ses o n ly

. 2¶2. Hopper has provided a thorough procedural history and set of

f acts on appeal: Procedural History of Trial 1
On June 3, 2 003, a C oahom a County [ g]rand [ j]ury r eturned a m

u lti-count indictm ent against Terrell Patrick Corvette H opper
. . . and Patrick Parker, charging Hopper with aggrava t e d a s s a ult and aggravated assault of a law enf orcem ent of

f icer and Patrick Parker with accessory af ter the f act. Hopper was arraigned on June 13, 2003, represented by Charles M cPherson. The case was assigned to the Honorable Circuit C ourt Judge Larry O. Lewis. A l ittle ov e r o n e mo nth af ter his arraignm ent, Hopper and P arker were tried together. H opper was convicted o f both counts, and Parker was acquitted. Hopper was sentenced to t wenty y ears f or aggravated assault and thirty y ears f or aggravated assault against a law enf orcem ent of

f icer, t o run consecutively

. Hopper f iled his m o tion f

or a new trial on August 25, 2003. That m otion was denied on Novem

ber 12, 2003. Procedural History of Trial 2
On June 3, 2 003, a C oahom a County [ g]rand [ j]ury r eturned a m

u lti-count ind i c t me n t a gainst [ Hopper,]

. . . charging [ h im ] with a rm e d robbery , kidnaping, and nine counts of agg r a v a t e d assault against a law enf orcem ent of f icer. Hopper was arraigned on J une 13, 2 003, [ and again] represented by [ McPherson]. The c a s e w a s assigned to [ J u dge] Lewis. O n N ovem ber 10, 2003, Hopper was brought to trial and ultim ately acquitted o f three counts of aggravated assault, but convicted of six counts of aggravated assault. Hopper
was sentenced t o serve a total of thirty y e a r s c o n current on all counts of aggravated assault and t hir t y -seven y ears o n a rm ed robbery , to be served consecutive t o H opper’s s e ntences in Trial 1, f or a total of eighty -seven y ears putting the two trials’ sentences together. Hopper f iled his m o t ion f

or a new trial on Decem

b er 6, 2003. That m otion was denied on Decem

ber 10, 2003. Additional Procedural History
This Court originally docketed the appeals of Trials 1 and 2 as 2 006-KA[

- 0]1607 and 2005-KA-[ 00]526, respectively

. B e c ause Hopper’s attorney never

3proceeded with his appeal, both appeals w ere dism issed. T he cases languished

until, t hrough a series o f post-convi c t ion[ -]relief and habeas p etitions, the Mississippi S uprem e Court allowed H opper to proceed in an out[ -]of [ -]tim e appeal, and cons o l idated both trials into this cause num ber. The S uprem e Court appointed t h e I ndigent Appeals Division of t he Of f i ce of State Public Def ender. This case was subsequently assigned to [ this Court]. Facts of Trial 1
On August 16th, 2002, in Friars Point, Mississippi, Doy le Hunter was in f ront of a local store when h e was shot by [ Hopper]. H u nter was hit i n the f ace and in the shou l d e r b l a d e
. Hunter was transported to a hospital in Mem phis and lived. Earlier that night H unter and Hopper had a disagreem ent. Hunter was intoxicated. Hunter testif ied that he “didn’t think” that the argum e nt was over drugs and denied b eing in a gang. Hopper, h owever, testif i ed that Hunter had told h im that Chief Anthony Sm ith [ of the Friars Point Police Departm ent] wanted to see Hopper.
The a f ternoon of the n ext d ay , C hief [ ] Sm ith

. . . having developed Hopper as a suspect in the shooting o f Hunter, sp o t t e d w h o h e believed to be Hopper. Chief Sm ith parked his vehicle, and, when he reached over to p ut h is key s in his passenger seat, Chief Sm ith w as shot through the lowe r n e c k, near his
s h o u l d er. W hen Chief Sm ith turned, he saw Hopper with a gun pointe d towards him

. Chief S m i th y elled f or a passerby , and directed h i m t o use the radio to call the s herif

f ’s departm ent

. . . By the tim e Chief Sm ith r egained his f aculties, Hopper had already f led the scene.
That evening, a u t h o r i ties com m unicated with [ ] Parker, who told them t hat Hopper had stopped b y Parker’s residence. Police attem pted to arrest Hopper at Parker’s h ouse, but w ere unable to, the circum stances of which resulted in the charges in Hopper’s second trial, discussed below. Hopper w as eventu a l ly apprehended at his g randm other’s house. He was f ound hiding in a trunk. P olice recovered a 9m m h andgun. Hopper s tipulated that the weapon was a ssigned to and used by Of f icer John Martin Harris with the Friars Point Police Departm e nt.
He was interviewed while at the hos pital. Hopper had been shot prior to his arrest. Investigators testif i ed that Hopper told them t hat Hopper had shot both Chief Sm ith and [ ] Hunter. Hopper testif

i ed that o n the night of [ ] H unter’s shoo t i n g , [ ] Hunter was

4speaking to him about som e drugs m issing f rom Chief Sm ith

. . . Hopper t hen realized that Joseph B rown had a gun in his f ace. Hopper and Edwin Brown, who was als o t h e r e , wrestled over t he g un and it accidently went of f , hitting Hunter. In his testim ony , Hopper f latly denied shooting Hunter. Hopper testif

ied that he, H unter, Marcus W illiam s, and Edwin Brown were selling drugs. Hopper wished to s top selling drugs, because “it was getting too deep.” Hopper testif

ied t hat 15 kilos of cocaine had gone m i ssing, a nd that he
was being accused of stealing it. Hopper testif ied that the Friars P oint P olice Departm ent was i n the business of selling drugs, a n d Chief Sm ith and he had “m ade transactions” in the past. Hopper adm itted to shooting Chi e f S mi t h , but claim ed to d o so b ecause if Chief S m ith had taken him into custody , Hopper believed he would not m ake it to the jail and would be killed. H o p per testif i ed that later that evening, he went to Parker’s house when Parker was not there . . . . Facts of Trial 2

In the ea r l y mo r n ing h ours of August 18, 2002, C oahom a S herif f Andrew Thom pson was called to Parker’s house w here police believed t h e y had l ocated Hopper. W hen h e arrived, it becam e apparent that two of f icers had been shot.
Of f icer Harris had gone to the house t o s peak with Parker. Parker w as initially uncooperative, but agreed to go with o f f icers. Parker asked i f he c ould secure the residence, and Of

f icer Harris and Deputy Victor Randal l f ollowed him , with guns drawn, b e cause i t was dark i nside. O tha H unter and Oliver Mitchell
were also on the porch at t h e t i me
. Of f icer Harris t old Deputy Randall to cover t h e right s i d e of the house, and Harris was t o take the lef t. Of f i cer Harris testif

ied that he took three to f our s t eps into the house and shots rang out.
Of f icer Harris s aw that he was hit in the right elbow. Af ter going to the hospital, he learned that he had been hit three tim es. Of f i cer Harris testif

ied he never f ired a s hot. Deputy Randall[ , w ho] was behind Of f icer Harris, tried to grab h i m, but was shot h im self

. Deputy Randall b acked out of the house, and Hopper shut the door and p laced a p iece of f urniture in f

ront of it. Hopper took Harris’s gun, his extra m agazine, and h is h andheld radio. Of f icer H arris testif ied that at o ne point Hopper t ried to drag Of f icer Harris to the door to be released, but he could not because Hopper had been injured.

H o p p e r h ad taken a police radio and was scream ing o ver the radio. W hil e

5Of

f icer Harris was down, several shots were f ired f rom the house, striking several vehicles. Eventually , law en f orcem ent tried to enter the house using
a stack, where several of

f icers l ine up in a row b ehind a shield. W h en o f f icers used the battering ram on the door, nothing happened. Af t er us i n g the ram again, it b ecam e apparent t hat s om ething was against the door. At that point, shots rang out, hitting the shield. [ Several of

f i cers hid be h i nd a shield], w ith Deputy Neil Mitchell

. . . and Of f icer Kenny Scott i n the back. Both [ Deputy ] Mitchell and [ Of f i cer] Scott
were shot. Deputy Mitchell testif ied that while he was behind the shield, shots rang out, and he was hit in the right leg. Eventually , O f

f icer H arris had 911 call t he law enf orcem ent outside to let them k n o w t h a t Hopper h a d lef t the house

. . . . Police r ecovered a [ .]40 c a libe r pistol f rom the house. The parties stipulated that the f i rearm was Hopper’s.
As noted above, Hopper was eventually arrested at his grandm other’s house. Because he was shot, he was taken to th e h o s pital, where he received treatm e n t

. I n a statem ent to police, h e a d m itted to shooting Of f icer Harris’s 9m m handg u n. At H opper’s grandm other’s [ h ouse] police f o und a 9 m m pistol. The parties stipulated that the pistol was that of Of f icer Harris. Hopper testif

ied that he was in Parker’s house “try ing t o lay low,” because he f elt that h is lif

e was in danger. Hopper testif ied [ that] when authorities were entering t he house, he h eard them y ell[ , ] “Sherif f ’s Departm ent,” b ut bef

ore Hopper could raise his hands, D eputy Randall began t o open f i re, shooting Hopper in the a rm , and Of f icer Harris in the back. Hopper testif ied that when the next g roup o f o f

f i c e r s a t t em

pted t o e nter the house, they , too, f ired f irst. Hopper testif

ied t hat he explained to H arris his f ears of the Friars P oint P olice Chief , because of his involvem ent in the drug trade. Event u a l l y , H o pper [ handed] the phone to Of f icer Harris . . . and lef

t the house. (Internal citations om itted).
DISCUSSION ¶3. Hopper’s attorney m akes variou s a s s e r t i o n s o n a p p e a l r e garding Hopper’s inef fectiveassistance-of

- counsel c laim : (1) in t rial one, h is attorney e r red in f ailing to r equest an
accident instruction; (2) in trial one, his a ttorney f ailed to m o ve to sever his trial with

6codef

endant Patrick Parker; (3) h i s attorney f ailed to object to inadm issible evidence; (4) his
attorney f ailed to m ove f

or a change of venue; and (5) his attorney f ailed to p rovide adequate representation. Hopper f

iled a p ro se s upplem ental brief , including the f

ollowing issues: (6)
f orensic expert D ave Z elif f ’s testim ony violated t he Conf rontation Clause and was prejudicial; (7) the State withheld exculpatory evidence; (8) his i ndictm ents w ere def ective; and (9) he was denied a speedy trial. W e address each contention below. ¶4. To prove his counsel was inef f e c t i v e , H o p p e r mu s t s h o w ( 1 ) h i s c o u n s e l ’ s perf orm ance was d ef

icient, and (2) the def

icient perf

orm ance prejudiced his def ense.
Strickland v. W

ashington , 4 66 U .S. 668, 687 (1984). “Judicial s crutiny of c o unsel’s perf orm ance m

u st be highly def

erential.” Id

. at 689. A strong but rebuttable presum ption
exists that counsel’s p erf

orm ance was ef

f ective. Gilley v. State , 748 So. 2d 1 23, 129 (¶20) ( M i s s. 1999). “To overcom e this presum ption, ‘ the def

endant m ust show t hat t h e r e i s a
reasonable probability that, but f or counsel’s unprof

essional errors, the r esult of the proceeding would have been dif f erent.’” Id . (quoting Strickland , 466 U.S. at 694).
1. Jury Instruction ¶5. Hopper f

irst argues that h is counsel erred in f ailing to request an accident instruction.
“W h i l e a d e f

e n d a nt i s entitled to jury instructions that support his theory of the c ase, even
where that theory is based s olely on the def endant’s own testim ony , an evidentiary basis m ust
still exist f

or the jury

instruction.” Laurent v. State , 94 So. 3d 1232, 1235 (¶13) (Miss. Ct. App. 2012). Here, Hopper stated that, in an altercation with Hunter, the gun “accidentally ”

went of f several tim es. H e als o s t a t e d t h at he shot Chief Sm ith because of a “ conspiracy ”

7between the police f orce and other drug dealers in the area. However, “[ s]im ply say ing that

y ou s hot in self

-def ense or that the shooting was an accident [ without other corroborating evidence] does not provide a def endant with an autom ati c r i g h t to instructions thereon.”
Robinson v. State , 726 S o. 2d 189, 194 (¶19) (Miss. Ct. App. 1 998). W ithout any evidentiary basis, Hopper’s counsel would have no reason to request such an instruction. Hopper’s f irst

argum ent f

ails.
2. Severance of Trials ¶6. Hopper a nd Parker had dif f e r e n t r e p r esentation in a joint trial. Hopper argues his
counsel was inef

f e ctive f or f ailing to request severance of their trials.
The granting or ref

u sing of severance of def

endants in cases not involving the death pe n a l t y s h a l l be in the discretion of the trial judge. The c o urt m ay , on m otion of the [ S]tate or def

endant, grant a severance of of f enses whenever:
1. If bef ore trial, it is dee me d appropriate to prom ote a f air determ inati o n o f the def endant’s guilt or innocence of each of f ense; or
2. If duri ng trial, upon t he consent of the def endant, i t is deem ed necessary to achieve a f

air d eterm ination o f the d e f endant’s guilt or innocence of

each of f ense.
URCCC 9.03. ¶7. “W here all the evidence at trial went to the guilt of both [ def endants] and not to one

m ore than the other, it is not error to try the def endants jointly .” Buggs v. State , 754 So. 2d 569, 573 (¶16) ( Miss. 2000). The record shows t hat P arker was indicted a s accessory af ter
the f act. Parker’s theory of def e nse was that he was under duress, with Hopper pointing a
gun at his back. Hopper s tated that he never h ad a gun to Parker’s back and t hat he only saw

8Parker f

or a f ew seconds right when he f led the scene. Because the decision w hether to m ove
f or severance was within the p u r view of trial strategy , Hopper’s claim f ails. See Cox v. State, 793 So. 2d 591, 600 (¶41) (Miss. 2001).
3. Evidence ¶8. Hopper n ext argues that his counsel was inef f e ctive i n f

ailing t o o b

j e c t t o evidence
introduced in each trial regarding the incidents of the other trial. Specif ically he ref

ers to (1)
def ense counsel’s stipulation in trial one that the gun recovered at H opper’s arrest belonged

to Of f icer Harris; and (2) def

ense counsel’s f

ailure to object in trial two to ref erences to the allegations in trial one. Hopper claim s the evidence w as m ore p rejudicial than probative and should have been excluded under Mississippi Rule of Evidence 403. ¶9. “W ith respect to the overall perf orm ance of the a ttorney , counsel’s choice of whether

or not t o f ile certain m otions, call witnesses, ask certain questions, or m a ke certain o bjections
f alls wit h i n t he am

bit of trial strategy and c annot give rise to an inef f e ctive[ -]assistance[ -]
of [ -]counsel claim .” Shinn v. State , 174 So. 3 d 961, 965 (¶10) (Miss. Ct. App. 2015) (citation om itted). Hopper essentially argues that the stipulation o f Of f icer Harris’s gun in
trial one was prejudicial because Hopper was charged with Of f icer Harris’s assault in trial

two. Although Hopper had two separate t rials, the charged crim es stem m ed f rom the sam e

sequence of events. It is plausible that def e n s e counsel stipulated to the gun i n trial one
because the of

f icer w h o t e stif

ied was sim

ply t estif y ing about the g un he recovered af ter Hopper’s arrest. ¶10. “W e presum e that decisions not to object to testim ony were strategic if they f airly can

9b e c h a r a c t e r ized as such.” Id

. a t 967 (¶15). T he “ ref erences” in trial t wo t o t he events of
trial one occurred i n the State’s opening statem ent and Of f icer Thom

pson’s t estim o ny
. Both
of these ref

erences were alm ost unavoidable given t he nexus between the crim e s. W e f ind
def ense counsel’s decisions f ell within the am

bit of trial strategy

. T hus, Hopper’s a rgum ent
f ails.
4. Change of Venue ¶11. Hopper’s next claim f ocuses on his attorney ’s f a ilure to m ove f

o r a change of

venue, despite the local publicity surrounding both cases. Specif ically , he ref

ers to the voir dire in
trial two, when the judge a nd def ense counsel noted that t h e e n tire venire knew about the
f acts of the case. ¶12. Our suprem e court has held that def ense counsel is under no duty to a ttem p t to transf

er

venue and, theref

ore, the decision not to would f all within the realm of strategy

. Faraga v.
State , 514 So. 2d 295, 307 (Miss. 1 987) (citing Murray v. Carrier , 477 U.S. 4 78 (1986)). In Faraga , the entire v enire had heard of the case due t o pretrial publicity

. I d

. Faraga argued
that his counsel was inef

f ective f or f ailing to m ove f

or a cha n g e o f v e n u e
. Id

. T he court
ultim ately held that trial strategy a nd the overwhelm ing evidence kept Faraga f rom m eeting either prong of

the Strickland

analy sis. Id . For the sam e reasons, Hopper’s claim f ails.

5. Defense Counsel’s Representation ¶13. Hopper contends that his attorney f ailed to provide any “m eaningf ul” representation.
“The right to ef

f ective counsel does not entitle the def endant to have an attorney w ho m akes

no m istakes at trial. The def endant just has a right t o have com p etent counsel.” Bell v. State ,

1 0879 So. 2d 423, 4 39 (¶50) (Miss. 2004). To say there was overwhelm ing evidence t o convict

Hopper at both trials is an understatem ent. At the f irst t rial, over twenty witnesses testif ied

on the State’s behalf

, i ncluding b o t h victim s. Fourteen witnesses, including the wounded
of f icers, testif

ied f or t he State at the second trial. I t i s highly im probable that, but f

or any of
counsel’s alleged prof

e ssional errors, the outcom e of Hopper’s trials would have been any
dif f erent. Even s o, i t i s f

ully apparent f

rom t he record that Hopper received ef f ective
assistance of

counsel.
6. Dave Z eliff’s Ex pert Testim ony ¶14. I n H o p p e r ’ s s u

p p l e m ental brief

, he argues that f

orensic expert Dave Zelif

f ’s testim ony
violated the Conf

rontation C lause and was prejudici a l

. Zelif f , a chief technician of the Mississippi Crim e Laboratory , testif ied about the projectiles t hat were r em oved f rom police
vehicles at the crim e scene. Zelif f was present at the crim e scene a nd r e c o v e r e d m ultiple projectiles, but not all. At trial, both parties stipulated to the f ollowing:

A b ullet projectile w as recove red by Arthur Chancellor with the Mississippi Crim e Laboratory f

rom the driver’s side door of t h e Coahom a C ounty Sherif f ’s Departm ent v ehicle num

ber 4. Said b ullet, w hich is exhibit 87, was analy zed at the Mississippi C rim e Laboratory , was f o und to have been f

ir e d by the pistol, which is exhibit 2, previously testif i ed as b e i n g O f

f icer H arris’[ s] service weapon. ¶15. H o p p e r c l a i ms t h at his inability to cross-exam ine the technician w h o a c t u a l l y
recovered this bullet violated the Conf rontation Clause. Hopper m a de no objection at trial
and has t heref

ore waived the issue on appeal. See Jenkins v. S tate , 1 02 So. 3 d 273, 283 (¶30) (Miss. C t. App. 2 011). Procedural bar notwithstanding, our suprem e court held in M cGowen

v. State , 859 So. 3 d 320, 339 ( ¶68) (Miss. 2003), that, “w h e n t h e t estif y ing witness is a

1 1court-accepted expert in the r elevant f ield who participated in the analy sis in som e capacity ,

. . . then the testif

y ing witness’s testim ony does not violate a def endant’s Sixth Am endm ent rights.” Z elif

f was in charge of the crim e scene and processed the crim e s c ene. He clearly participated in the analy sis of the evidence recovered. Thus, w e cannot s ay Hopper’s Sixth

Am endm ent rights were violated. Further, Hopper has f ailed to s h ow how h e was prejudiced by the stipulation or Zelif

f ’s testim ony
. 7. Ex c ulpatory Evidence ¶16. Hopper next claim s that the State withheld exculpatory evidence, n otably that the gun Hoppe r u s e d was registered to Joseph Brown. His contention is sim ply not t rue. In both trials, Agent Joey Hall testif ied t hat, af

ter running a check on the gun, he discovered Brown

was the sole, original owner. He f urther explained that Brown b ought t he g un f o r Hopper

a n d gave it to Hopper s hortly thereaf ter. Hopper also testif

ied to the sam e ef

f ect. Consequently , his argum ent lacks any m erit.
8. Defective Indictm ent ¶17. Hopper also claim s that h i s a g g r avated-assault indictm ents were def ective because they d i d not specif

y “ serious” bodily injury

. Both indictm ents stated that Hopper caused bodily injury with a deadly w eapon (specif ically , a pistol). W hen Hopper was i ndicted in 2003, Mississippi Code Annotated section 97-3-7(2)(b) (Rev. 2002) read, in pertinent part:
A p erson is guilty of aggravated a s sault if he (a) attem pt s to cause serious bodily injury to a nother, or causes such injury purposely , knowingly or recklessly under circum stances m anif esting extrem e indif

f erence t o the value of hum an lif

e; or (b) attem

pts to cause o r purposely or k nowingly causes bodily injury to another with a deadly w eapon or o ther m eans l ikely to produce death or serious bodily

harm

.

1 2¶18. Hopper’s claim is nearly identical to that of the def endant in Russell v

. State , 924 So.
2d 604 ( Miss. Ct. App. 2006). I n that case, the court stated that “[ i]t is clear f rom the plain language of section 97-3-7(2)(b) that a def endant c an b e f

ound guilty of aggravated assault
if , with the aid of

a deadly weapon, he a ttem p ts to cause or purposely or knowingly causes
any degree o f ‘bodily injury .’” Russell , 924 So. 2d at 607 (¶6). Thus, t he court held that “an
indictm ent charging aggravated assault pursuant to section 9 7-3-7(2)(b) m u s t only allege that
the def endant purposef

ully or know i n g l y c a u s ed or attem pted to cause bodily injury to another with a deadly

weapon.” Russell , 924 So. 2d at 607 (¶6). Hopper’s claim f ails.
9. Speedy Trial ¶19. For the f

irst tim e on a

ppeal, Hopper argues that he was denied the right to a speedy
trial. The balancing test set f orth in Barker v. W

ingo , 407 U.S. 514 (1972), applies when a
def endant’s constitutional r ight to a speedy trial is questioned. Ellis v. S tate , 141 So. 3d 415,
418 ( ¶8) (Miss. Ct. A pp. 2 013). The test consists of f our f actors: “ ( 1) the length of the delay , (2) t he reason f

o r t he delay , (3) whether the def endant has asserted his right to a s peedy trial,
and (4) w hether the def

endant was prejudiced by the delay .” Id

. ( quoting Noe v. State , 616
So. 2d 298, 300 (Miss. 1993) ( citing Barker , 407 U.S. at 530)). “The l ength of the delay is

to s om e extent a t riggering m echani s m. U n t i l t here is som e delay which is presum ptively prejudicial, there is no necessity f or inquiry into the other f actors that go i nto the balance.”
Id

. (citing Barker , 4 0 7 U

. S. at 530. A delay of eight m onths o r longer i s presum ptively prejudicial. Noe , 616 So. 2d at 300. Hopper com m i tted t he c r im e s i n A u g u s t 2002, was
indicted in J une 2003, and h ad his trials in July 2003 and Novem ber 2003. So there was

1 3roughly an eleven-m onth delay f or the f irst trial and a f

if teen-m o nth delay f

or the second. ¶20. W hen t he s peedy -trial issue is raised f or the f irst tim e on appeal, we m

ust determ ine
whether plain-error review is a pplicable, i.e., w hether an “ error of the t rial court has im pacted

upon a f undam e ntal right

. ” S

a n d e r s v

. State , 678 So. 2d 663, 670 (Miss. 1996). See also Morgan v. Sta t e , 7 9 3 S o
. 2 d 6 15, 617 (¶19) (Miss. 2001) (Plain-error review is a pplicable
when the error is “so f

u ndam e ntal that it generates a m iscarriage of justice[ .]”). I n Dora v.
State , 986 So. 2d 917, 9 24-26 (¶¶15-20) (Miss. 2008), the Mississippi Suprem e Court noted
that Dora tried to “leapf

rog” over the r equired plain-error analy s is b y ma king assertions
under the Barker f

actors

. The court ultim a t ely f ound t hat t here was n o plain error and that

a def endant’s f ailure to raise the issue of speedy trial with the trial court had waived the issue on direct appeal. Id

. ¶21. Hopper h as in no way shown how his delay resulted in a m iscarri a g e o f j u s t i c e.
Sim ilarly to the d ef

endant in Dora , Hopper f

ailed t o raise a speedy -trial issue at trial, m aking
his claim on direct appeal p rocedurally barred. S ee al s o E llis , 141 So. 3 d at 418 (¶8).
However, we dism iss Hopper’s claim without prejud i c e s o t h a t h e m ay r aise it as an
inef f ective-assistance-of

-counsel claim in a post-conviction relief m otion, if he so chooses.

CONCLUSION ¶22. W e f

ind Hopper r eceived ef

f ective assistance of c o u n s e l

. We also f ind Hopper’s
claim s in his supplem ental brief are without m erit. Theref ore, we af f irm

. ¶23. T H E J U D GMEN T S O F T H E C I R C U I T C O U R T O F C O A H O M A C O U N T Y O F C O N V I C T I O N I N CAUSE NO. 2003-0005 OF C OUNT I, AGGRAVATED ASSA U L T , AND COUNT I I, A G GRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICE R, AND SENTENCE O F TWENTY YEARS O N COUNT I AND THIRTY

1 4YEARS O N COUNT II, TO RUN CON S E CUTIVELY; AND CONVICTION IN

CAUSE NO. 2003-0006 OF COUNT IV, ARMED ROBBERY, AND S ENTENCE OF THIRTY-SEVEN YEARS, TO RUN CONSECUTIVELY TO THE SENTENCES IN CAUSE NO. 2 0 0 3

- 0 0 05; AND COUNTS II, V, V I, VIII, A ND IX , AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER, AND SENTENCE ON EACH COUNT OF THIRTY Y EARS, TO RUN CONCURRENTLY TO THE SENTENCE IN COUNT IV, ALL IN THE CUSTODY OF THE MISSISSIPPI D EPARTMENT OF CORRECTION S , ARE AFFIRMED. ALL C OSTS OF T HIS APPEAL ARE ASSESSED TO COAHOMA COUNTY. LEE, C.J., IRV I N G A N D GRIFFIS, P.JJ., BARNES, I SHEE, CARLTON, WIL S O N AND WESTBROOKS, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.

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