        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                             NO. 2014-KA-00787-COA

CHRISTOPHER GRADY A/K/A CHRISTOPHER                                  APPELLANT
V. GRADY A/K/A CHRISTOPHER VANSHONE
GRADY

v.

STATE OF MISSISSIPPI                                                   APPELLEE

DATE OF JUDGMENT:                      11/25/2013
TRIAL JUDGE:                           HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:             LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                OFFICE OF STATE PUBLIC DEFENDER
                                       BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE:                 OFFICE OF THE ATTORNEY GENERAL
                                       BY: BILLY L. GORE
DISTRICT ATTORNEY:                     FORREST ALLGOOD
NATURE OF THE CASE:                    CRIMINAL - FELONY
TRIAL COURT DISPOSITION:               CONVICTED OF POSSESSION OF A
                                       CONTROLLED SUBSTANCE AND
                                       SENTENCED TO THIRTY YEARS IN THE
                                       CUSTODY OF THE MISSISSIPPI
                                       DEPARTMENT OF CORRECTIONS, WITH
                                       FIVE YEARS SUSPENDED UNDER THE
                                       TERMS AND CONDITIONS OF POST-
                                       RELEASE SUPERVISION, AND ORDERED
                                       TO PAY A FINE OF $2,000
DISPOSITION:                           AFFIRMED: 09/08/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., MAXWELL AND FAIR, JJ.

      FAIR, J., FOR THE COURT:

¶1.   Christopher Grady was convicted of possession of a controlled substance and

sentenced to thirty years’ imprisonment. He appeals his conviction, claiming that his
counsel’s failure to move to suppress the marijuana found during an illegal search and

seizure constituted ineffective assistance of counsel. Because we find this issue, the only

issue he asserts, is appropriate for a petition for postconviction relief, we dismiss Grady’s

ineffective assistance of counsel claim without prejudice.

                                          FACTS

¶2.    On the evening of October 25, 2012, Officer Jon Rice pulled Grady over for a

nonfunctioning headlight. Grady had a passenger in the vehicle. While Officer Rice ran

Grady’s license plate, he noticed Grady standing near the bumper of the police car. Officer

Rice immediately exited the police car, asked Grady for his driver’s license, and placed

Grady back in his own vehicle. A check of Grady’s drivers license showed it was suspended.

At that point, Officer Rice engaged in what he called “verbal judo” with Grady, i.e.,

befriending him and asking him about possible contraband in the vehicle. Officer Rice

testified at trial that when he first approached the vehicle, he saw a “green leafy substance”

in a white plastic bag sticking out from a suitcase in the back seat. He stated that he could

also smell a strong odor of raw marijuana coming from the vehicle.

¶3.    Officer Rice testified that he initially arrested Grady for driving with a suspended

license. After he removed Grady and the passenger from the vehicle, he performed a search

incident to arrest. Office Rice then placed Grady in the back of his police car. With the

passenger standing near the rear of Grady’s vehicle, Officer Rice searched the passenger side

of the vehicle. Next, Officer Rice went to the back seat, where he said he had seen the


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“green leafy substance” sticking out of the suitcase when he first approached the vehicle. He

unzipped the suitcase and recovered 10.66 kilograms, or roughly 23 pounds, of marijuana

from Grady’s vehicle.

¶4.    Officer Rice was wearing a body camera on the night he arrested Grady. The State

introduced the camera’s video footage into evidence. Officer Rice first turned on the camera

when he placed Grady back in his vehicle before questioning. The video somewhat

contradicted Officer’s Rice’s testimony. For example, he did not appear to notice the

presence of marijuana until he pulled the suitcase out of the vehicle. Grady’s counsel did not

challenge the validity of the search.

¶5.    Grady’s defense at trial was that the marijuana belonged to his brother. The jury

found Grady guilty, and he was sentenced to thirty years in the Mississippi Department of

Corrections, with five years suspended and twenty-five to serve.

                                        DISCUSSION

¶6.    Grady claims that defense counsel’s failure to move to suppress the marijuana found

during an illegal search and seizure amounted to ineffective assistance of counsel. The State

responds that defense counsel’s decision not to object to the evidence was strategic, and

therefore “fails to trigger an analysis of ineffectiveness.” See, e.g., Hall v. State, 735 So. 2d

1124, 1127 (¶10) (Miss. Ct. App. 1999) (stating that having a trial strategy negates an

ineffective assistance of counsel claim, despite counsel’s insufficiencies).

¶7.    Mississippi Rule of Appellate Procedure 22(b) addresses the propriety of raising the


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issue of ineffective assistance of counsel on direct appeal:

       Issues which may be raised in post-conviction proceedings may also be raised
       on direct appeal if such issues are based on facts fully apparent from the
       record. Where the appellant is represented by counsel who did not represent
       the appellant at trial, the failure to raise such issues on direct appeal shall
       constitute a waiver barring consideration of the issues in post-conviction
       proceedings.

¶8.    Further, the Mississippi Supreme Court has stated:

       It is unusual for this [c]ourt to consider a claim of ineffective assistance of
       counsel when the claim is made on direct appeal. This is because we are
       limited to the trial court record in our review of the claim[,] and there is
       usually insufficient evidence within the record to evaluate the claim . . . .
       [W]here the record cannot support an ineffective assistance of counsel claim
       on direct appeal, the appropriate conclusion is to deny relief, preserving the
       defendant's right to argue the same issue through a petition for post-conviction
       relief. This Court will rule on the merits on the rare occasions where (1) the
       record affirmatively shows ineffectiveness of constitutional dimensions, or (2)
       the parties stipulate that the record is adequate to allow the appellate court to
       make the finding without consideration of the findings of fact of the trial
       judge.

Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003) (internal citations and quotations

omitted). The record does not affirmatively indicate that Grady suffered denial of effective

assistance of counsel of constitutional dimensions. Nor have the parties stipulated that the

record was adequate to allow the appellate court to make a finding without considering the

findings of fact by the trial judge. As a result, we decline to address this issue without

prejudice to Grady’s right to seek postconviction relief if he chooses to do so.

¶9.    This Court hereby dismisses Grady’s ineffective assistance of counsel claim without

prejudice to his ability to raise it in postconviction proceedings.


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¶10. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND
SENTENCE OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED UNDER
THE TERMS AND CONDITIONS OF POST-RELEASE SUPERVISION, AND
ORDERED TO PAY A FINE OF $2,000, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO LOWNDES COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL AND WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART
WITHOUT SEPARATE WRITTEN OPINION.




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