         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-KA-00765-COA

CHRISTOPHER BROWN A/K/A CHRISTOPHER                                          APPELLANT
DALTON BROWN

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          04/13/2018
TRIAL JUDGE:                               HON. M. JAMES CHANEY JR.
COURT FROM WHICH APPEALED:                 WARREN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                           BY: W. DANIEL HINCHCLIFF
                                               GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BILLY L. GORE
DISTRICT ATTORNEY:                         RICHARD EARL SMITH JR.
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 09/24/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., WESTBROOKS AND C. WILSON, JJ.

       CARLTON, P.J., FOR THE COURT:

¶1.    A Warren County jury found Christopher Brown guilty of attempted murder and

armed carjacking. Brown was sentenced to terms of thirty-five years for attempted murder,

and thirty years, with twenty years to serve, for armed carjacking, to be served consecutively

in the custody of the Mississippi Department of Corrections (MDOC). Brown was also

sentenced to serve five years of post-release supervision.

¶2.    Brown appeals, asserting that he received ineffective assistance of counsel when his

lawyer conceded Brown’s guilt on the carjacking charge in his opening and closing
arguments.

¶3.    Brown also asserts that his case should be reversed and remanded for a new trial

because a cautionary instruction was not given to the jury on their use of interview transcripts

at trial. Recordings of two of Brown’s police interviews were admitted into evidence and

played at trial. The interviews were transcribed and the jurors were given copies of the

transcripts to use in following the recordings while they were played. Brown asserts that the

trial court erred when it failed to give an unrequested cautionary instruction to the jury that

the recordings, not the transcripts, were the primary evidence of what occurred during the

interviews. Alternatively, Brown asserts that he received ineffective assistance of counsel

when his lawyer failed to request such a cautionary instruction.

¶4.    For the reasons addressed below, we deny Brown’s ineffective-assistance-of-counsel

claims without prejudice to his right to pursue relief on these alleged errors in a petition for

post-conviction relief. Additionally, we find no merit in Brown’s assertion that he is entitled

to a new trial because the trial court did not, sua sponte, issue a cautionary instruction to the

jury about the interview transcripts. As such, we affirm Brown’s convictions and sentences.

           STATEMENT OF FACTS AND COURSE OF PROCEEDINGS

¶5.    On March 5, 2016, an injured man was found lying in the parking lot of Blackburn

Motor Company in Vicksburg, Mississippi. The record reflects that the injured man was

identified as Jonathan Thomas. He had been shot in the left hand and in the left side of his

face and his 2014 silver Honda Accord was missing. On March 12, a week after Thomas

was shot, Brown and Christopher Livingston were arrested in Las Cruces, New Mexico.



                                               2
They were implicated in Thomas’s shooting and the theft of Thomas’s car.

¶6.      On July 27, 2016, Brown and Livingston were jointly indicted for attempted murder

and armed carjacking.

¶7.      Brown was interviewed three times while in police custody. On March 12, 2016,

Sergeant Chase Thouvenall of the Dona Ana County Sheriff’s department interviewed

Brown after his arrest in New Mexico. This interview was recorded but not transcribed. On

March 16, 2016, Jeff Merritt and Curtis Judge, investigators with the Vicksburg Police

Department, interviewed Brown in New Mexico. This interview was recorded by audio and

video and was transcribed. On March 22, 2016, Investigator Merritt and Troy Kimble, who

was an officer with the Vicksburg Police Department at the time, interviewed Brown in

Vicksburg, Mississippi. This interview was conducted, recorded, and transcribed in two

parts.

¶8.      During most of Part One of the March 22 interview, Brown denied shooting Thomas

and said that Livingston shot Thomas twice, just as Brown had stated in his March 16

interview. At the end of Part One, however, Brown confessed to shooting Thomas. The

record reflects that the officers then ended Part One and gave Brown time “to collect

himself.” Part One of Brown’s March 22 statement was recorded by audio and video and

was transcribed. Later that same day, Investigator Merritt and Officer Kimble continued the

interrogation (Part Two of the March 22 interview) and Brown confessed that he shot

Thomas and took his car. There is only an audio recording of Part Two, and it was

transcribed.



                                             3
¶9.    Thomas died on December 30, 2017. The prosecutor and defense counsel stipulated

that the March 5, 2016 shooting did not cause Thomas’s death.

¶10.   Brown filed a number of motions that were heard prior to his March 2018 trial,

including Brown’s motion to sever his trial from Livingston’s trial because each defendant

had given statements exculpating themselves while inculpating their co-indictee in Thomas’s

shooting. The trial court granted Brown’s severance motion, and Brown was tried separately

from his co-indictee, Livingston.

¶11.   Brown also moved to suppress the confession he gave on March 22, 2016. Brown

asserted that the confession was coerced. The trial court denied this motion. Additionally,

Brown moved, in limine, to redact portions of the police interviews referencing a prior

conviction for shoplifting and other parts of these interviews that “mention other crimes,

prison gang membership, drug trafficking, and working for a drug cartel.” The trial court

granted this motion. The recordings were edited, and the transcripts were redacted, in

accordance with the trial court’s order.

¶12.   The three-day trial began on March 19, 2018. The State’s first witness was Vicksburg

police officer Eric Perkins who testified that he found an injured man lying in the Blackburn

Motor Company parking lot on March 5, 2016. Officer Perkins testified that he believed that

the man was alive based upon movements of his right arm. He identified the man as

Jonathan Thomas by looking in the injured man’s wallet.

¶13.   Penny Jones, Patrol Commander Manager with the Vicksburg Police Department,

testified that when she arrived on the scene Thomas had already been taken to the hospital,



                                             4
so she went to the hospital and observed that he had injuries to his left eye and cheek areas.

She testified that Thomas was not responsive.1 Captain Jones testified that she also

interviewed Thomas’s family members and learned that Thomas drove a 2014 silver Honda

Accord. She testified that a nationwide “Be On The Lookout” (BOLO) was entered on the

car.

¶14.   Curtis Judge, an investigator with the Vicksburg Police Department, testified that

when he arrived on the scene, he noticed a pool of blood near a red Ford truck and took

photos of the scene. Investigator Judge testified that later that day he went to the hospital and

observed what he believed were gunshot wounds to Thomas’s left hand and to his face.

¶15.   Sergeant Benjamin Martin of the Dona Ana County Sheriff’s Department was the

State’s next witness. He testified that he spotted the 2014 silver Honda Accord in Las

Cruces, New Mexico, and pursued the vehicle. The vehicle ultimately jumped a curb, and

the occupants fled. Sergeant Martin testified that he apprehended Livingston, and then

turned the case over to an investigator in his office, Investigator Chase Thouvenall.

Investigator Thouvenall testified that he confirmed that the Vehicle Identification Number

(VIN) of the recovered car was Thomas’s silver Honda Accord. He also testified that he

interviewed Livingston, who told him that Brown could be found in “Tent City,” a charity

outreach place where people generally would go to get their lives back on track. Investigator

Thouvenall testified that he found Brown at Tent City, and Brown took him to a site where

Brown told Investigator Thouvenall that he had disposed of a pair of boots and Thomas’s

       1
        As noted, Thomas died on December 30, 2017. The record reflects that Thomas
gave no statement concerning the March 5, 2016 incident.

                                               5
identification card. Investigator Thouvenall further testified that Brown told him that the

boots were his, and that there was what appeared to be blood on the boots.

¶16.   Investigator Judge was recalled as a witness and testified that he and Investigator

Merritt traveled to New Mexico, where the missing Honda Accord had been recovered and

where Brown had been apprehended. Investigator Judge testified that he examined the

vehicle on March 15. He observed what appeared to be blood on the driver’s side of the car

and collected samples. Investigator Judge also inspected the car’s trunk and found the car’s

license plate and a brown Carhartt jacket. The jacket appeared to be bloodstained. He sent

the brown jacket and the swabs from the driver’s side of the car to the Mississippi Crime Lab

for testing.

¶17.   Amy Malone was accepted as a forensics expert specializing in serology. She testified

that the samples collected from the boots, the brown Carhartt jacket, and the swabs from the

Honda were blood. Kathryn Rogers was accepted as a forensics DNA analyst. She testified

that she was able to obtain a DNA profile from a bucal swab taken from Thomas, and his

DNA profile matched that of the blood from the boots, the Carhartt jacket, and the swabs

from the blood in the car. Dr. William Tew was accepted as an expert in radiology. He

testified that based upon his review of Thomas’s CT scans, there was a bullet path entering

below Thomas’s left eye with fragments along the trail and the projectile remaining in

Thomas’s brain.

¶18.   Investigator Merritt of the Vicksburg Police Department, who traveled with

Investigator Judge to New Mexico, testified that they interviewed Brown on March 16, 2016.



                                             6
The video recording of this interview, edited pursuant to the trial court’s order granting

Brown’s motion in limine described above, was admitted into evidence. At the request of

defense counsel, properly redacted transcripts were also given to the jurors for their use while

they viewed the interview. The parties agreed that there were some sound problems with the

video. No cautionary instruction regarding the jury’s use of the transcripts was requested,

nor did the trial court give any such instruction. The transcripts were collected when the

video was over.

¶19.   The record reflects that in the March 16, 2016 interview, Brown told the officers that

he and Livingston had “walked away from” a restitution center and that, after living in a

wooded area for about a week, he and Livingston decided that they “[were] going to steal a

vehicle and get somewhere.” This was the evening of March 5, 2016. Brown said that when

he and Livingston got to Blackburn Motor Company, they saw a man sitting in a grey Honda

Accord with the driver’s side door open and looking at a truck. Brown said that he began

talking to this person (Thomas), and Livingston jumped in the passenger seat. According to

Brown, Thomas and Livingston began “tussling,” and Livingston shot Thomas twice. Brown

admitted that he was present during the incident but denied, a number of times, that he had

shot Thomas. Brown said that after Thomas had been shot, he fell on Brown, and Brown

pulled Thomas from the vehicle. Brown said that he then got in the driver’s seat and drove

the Honda off the lot with Livingston in the passenger seat. They drove to New Mexico.

Brown said that he drove the “whole time.” During the course of the interview, Brown also

told the officers he was wearing a brown Carhartt jacket on March 5.



                                               7
¶20.   The State’s final witness was Troy Kimble, an officer with the Vicksburg Police

Department in March 2016. He testified that he and Investigator Merritt interviewed Brown

on March 22, 2016 in Vicksburg. As noted above, this interview had two parts. The edited

recordings of both parts were admitted into evidence at trial, and the jury was provided

properly redacted transcripts of the interviews for their use while the recordings were played.

No cautionary instruction regarding use of the transcripts was requested or given. As noted

above, in Part One Brown denied shooting Thomas for most of the interview, and he

described the same circumstances relating to the shooting that he described in his March 16

interview. Brown also said that after Livingston shot Thomas, Brown pulled Thomas out of

the car, got in the driver’s seat of the car, drove the vehicle off the Blackburn Motor

Company lot and “stayed with the car all the way to New Mexico.” In the course of this

explanation, Brown stated, “I’m not saying I’m not guilty of anything.”

¶21.   Officer Kimble testified that he used interview techniques, including bluffing about

information known to the police, while interviewing Brown. He further testified that this

other information did not exist and that this technique was used to put pressure on Brown.

The record reflects that when Brown asked the officers what proof of the shooting they had

against him, Officer Kimble said: “When they’re sticking a needle in your arm, then you ask

them to tell me to come back and ask [me] to show you that sh–. You understand?” Shortly

after that statement was made, Brown apologized “for lying to y’all” and admitted that he

shot the gun. Part One of the interview closed with Officer Kimble telling Brown he would

give him some time to “collect himself.”



                                              8
¶22.   Part Two of the interview was only an audio recording and contained Brown’s

detailed confession that he, not Livingston, shot Thomas two times. He also said that he then

pulled Thomas out of the car, left Thomas lying in the car lot, got into the driver’s seat of the

Honda, and drove out of the lot with Livingston in the passenger seat. Brown stated that he

drove the whole way to Las Cruces, New Mexico, with Livingston.

¶23.   The State rested. The defense moved for a directed verdict, which the trial court

denied. Brown did not testify on his own behalf, and the defense did not put on any other

evidence.

¶24.   A unanimous jury found Brown guilty of attempted murder and armed carjacking. At

the sentencing hearing, the trial court sentenced Brown to terms of thirty-five years for

attempted murder, and thirty years, with twenty years to serve, for armed carjacking, to be

served consecutively in the custody of MDOC. Brown was also sentenced to serve five

years’ post-release supervision. Brown moved for a judgment notwithstanding the verdict

(JNOV) or a new trial, which was denied by the trial court. Brown appeals.

                                       DISCUSSION

       I.     Ineffective Assistance of Counsel: Concession of Guilt on Brown’s
              Carjacking Charge

¶25.   Brown asserts that he received ineffective assistance of counsel because his lawyer

conceded Brown was guilty of carjacking in his opening and closing arguments. According

to Brown, “[I]t cannot be said with absolute certainty that a conviction for car[]jacking would

have been returned by the jury.” The State asserts that deciding whether to concede one

charge in a two-count indictment is a matter of trial strategy and is not a basis for an


                                               9
ineffective-assistance claim in this case. For the reasons explained below, we deny Brown’s

ineffective-assistance-of-counsel claim without prejudice to his right to seek relief as to this

claimed error in a properly filed petition for post-conviction relief. See Miss. Code Ann.

§ 99-39-7 (Rev. 2015) (providing that when the petitioner’s conviction and sentence have

been affirmed on direct appeal, the petitioner must obtain leave of the Mississippi Supreme

Court before filing a petition for post conviction relief in the circuit court).

¶26.   In opening argument, Brown’s counsel stated as follows:

       I think that when you hear the evidence you will have no choice and I think you
       should convict Christopher Brown of the charge of car-jacking. All right. He
       drove the car. He drove it away from the scene but I think the proof will leave
       a doubt in your mind and you must abide by that reasonable doubt as to his
       involvement . . . [in] actually shooting John Thomas.

(Emphasis added to portions concerning the carjacking charge against Brown).

¶27.   In his closing argument, Brown’s counsel began by emphasizing Brown’s defense to

the attempted murder charge. He reminded the jury that Brown said that Livingston shot

Thomas, and that Brown denied that he had shot Thomas “twenty-four times.” Brown’s

counsel further stated that it was not until Officer Kimble “threaten[ed] [Brown] with the

death penalty” that Brown confessed. Brown’s counsel then stated:

       What I am asserting to you is that is a coerced confession[,] and ladies and
       gentlemen, it happens.

       All right, that is what I am asking you to do. You’ve got to look beyond the
       superficiality and follow the speech and the speech patterns in [Brown’s] prior
       statements and then follow the way Troy Kimble coerced and manipulated.

       [A]fter John Thomas is shot by Christopher Livingston, Christopher Brown
       pulls his body out of the car and gets in the car and they drive off.



                                              10
       All right, I will assert to you ladies and gentlemen, Count 2, carjacking—he
       is there with Christopher Livingston and he is guilty of car-jacking. But I am
       asking you to think about this. I mean, he needs to go to jail for that but don’t
       send him to jail for something that he did not do that day. Don’t do that.

       One of the theories of the State’s case is that Christopher Brown was an aider
       and abetter. Okay. I would assert that is true as to the car-jacking and
       stealing the car[—there] is no doubt that he testified that he drove the car. But
       as to the attempted murder, . . . mere presence [at] the scene of a crime and
       knowledge that a crime is being committed are not sufficient to establish that
       a Defendant either directed or aided and abetted the crime unless you find
       beyond a reasonable doubt that the Defendant was a participant and not merely
       a knowing spectator. All right. So, at the point where Christopher Livingston
       is fighting with . . . Thomas inside the car, has the gun, ends up and does
       shoot him twice. Christopher Brown is outside of the car. He is not an aider
       and abetter to that attempted murder. He is not an aider to that.

(Emphasis added to portions concerning the carjacking charge against Brown).

¶28.   To establish his ineffective-assistance claim, Brown must “prove, under the totality

of the circumstances that (1) his attorney’s performance was defective and (2) the deficiency

deprived the defendant of a fair trial.” Collins v. State, 221 So. 3d 366, 372 (¶20) (Miss. Ct.

App. 2016); see Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, a “defendant

must demonstrate that his counsel’s performance was deficient and that the deficiency

prejudiced the defense of the case.” Brown v. State, 798 So. 2d 481, 493 (¶14) (Miss. 2001).

“Prejudice” in this context that means that there “is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 494 (¶14). Finally, “[t]here is a strong presumption that counsel’s performance falls within

the range of reasonable professional assistance.” Collins, 221 So. 3d at 372 (¶20) (quoting

Hiter v. State, 660 So. 2d 961, 965 (Miss. 1995)).

¶29.   Ordinarily, this Court does not consider an ineffective-assistance of counsel claims

                                              11
when the claim is made on direct appeal “because there is usually insufficient evidence

within the record to evaluate the claim.” Pustay v. State, 221 So. 3d 320, 350 (¶97) (Miss.

Ct. App. 2016). This Court, however, “may address the claims on direct appeal if the issues

are based on facts fully apparent from the record.” Schrotz v. State, 179 So. 3d 1200, 1204-

05 (¶11) (Miss. Ct. App. 2015) (quoting Sandlin v State, 156 So. 3d 813, 819 (¶20) (Miss.

2013)). “If the record is not sufficient to address the claims on direct appeal, the Court

should dismiss the claims without prejudice, preserving the defendant’s right to raise the

claims later in a properly filed motion for post-conviction relief.” Id.

¶30.   In Nelson v. State, 222 So. 3d 318 (Miss. Ct. App. 2017), we also recognized that an

ineffective-assistance-of-counsel claim may be considered where “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.” Id. at 322 (¶5). However, we have recently

clarified this statement. In Bishop v. State, No. 2018-KA-00487-COA, 2019 WL 3297038

(Miss. Ct. App. July 23, 2019), we found that “although the parties stipulate that the record

is adequate, we find [defendant’s] ineffective-assistance-of-counsel claim is based on facts

not fully apparent from the record, including facts related to his counsel’s trial strategy and

tactics.” Id. at *8 (¶47). For this reason, we “declin[ed] to address the claim on direct appeal

but preserv[ed] [defendant’s] right to pursue his claim through a petition for post-conviction

collateral relief.” Id. Likewise, in this case, both the State and Brown assert that the record

is sufficient to allow the Court to decide this issue on direct appeal. Nevertheless, our own

review of the record and the applicable law, as addressed below, indicates that this issue



                                              12
involves our consideration of defense counsel’s trial strategy. Id. This point is beyond the

contents and face of the record. Cf. Evans v. State, 725 So. 2d 613, 706 (Miss. 1997)

(deciding, on direct appeal, whether defense counsel’s decision to concede guilt constituted

ineffective assistance of counsel where the record reflected defense counsel’s trial strategy

in doing so). For this reason, we dismiss Brown’s ineffective-assistance claim based upon

defense counsel’s concession that Williams was guilty of Count 2, armed carjacking, without

prejudice to Brown’s right to seek post-conviction relief on this alleged error. Bishop, No.

2018-KA-00487-COA, 2019 WL 3297038, at *8 (¶47).

¶31.   In support of his ineffective-assistance argument, Brown relies upon a statement made

by the Mississippi Supreme Court in Farraga v. State, 514 So. 2d 295, 308 (Miss. 1987), that

“no attorney representing a client who has pleaded not guilty should concede in his oral

argument to a jury that his client was in fact guilty of the crime charged in the indictment.”

Farraga involved a one-count indictment for capital murder. Id. at 296. Defense counsel

conceded in closing argument that Farraga was guilty of murder, a lesser-included offense

of capital murder. Id. at 307-08.

¶32.   The supreme court rejected Farraga’s ineffective-assistance claim based upon this

concession, observing that “[w]hen proof of certain facts is overwhelming . . . an attorney

may find it strategically prudent to concede such facts while still denying that his client is

guilty of the crime charged in the indictment.” Id. at 308. The supreme court recognized that

“[t]he proof offered at trial was overwhelming that [Farraga] did murder the infant,” id., and

that his attorney’s “candor at the guilt phase could have helped Farraga in the sentencing



                                             13
phase.” Id. The supreme court further recognized that “[a]n attorney who, while sincerely

trying to help his client, at the same time is open and honest with the jury is more likely to

receive a sympathetic and open ear in his other arguments.” Id. Under these circumstances,

the supreme court found that defense counsel’s “closing argument was the product of a

tactical decision and the best argument he could make given the circumstances under which

he found his client.” Id.

¶33.   In Williams v. State, 791 So. 2d 895 (Miss. Ct. App. 2001), this Court applied similar

reasoning under circumstances closely analogous to those in this case—the defendant’s

counsel conceded one count of an indictment in the hope of avoiding conviction on a second

count having a greater maximum sentence. Id. at 899-900 (¶14). Williams was charged with

aggravated assault for shooting the victim, Davis, and for then kidnapping her. Id. at 897

(¶2). There was a videotape of the shooting. Id. at 899 (¶14). Williams asserted that with

respect to the kidnapping charge, he was actually trying to get Davis to the hospital following

the shooting. Id. Aggravated assault carried a maximum sentence of twenty years, while

kidnaping carried a thirty-year maximum sentence. Id. at 899 (¶13) (citing Miss. Code Ann.

§§ 97-3-7, 97-3-53 (Rev. 2000)). Williams’s counsel, in both opening statement and in

closing, conceded Williams’s guilt on the aggravated assault charge. Id. at 899 (¶12).

¶34.   The Court began its analysis by noting that “a trial tactic intended to lessen the

defendant’s maximum punishment in those instances where conviction seems likely does

offer some hope of benefit to the defendant.” Id. at 899 (¶13). Addressing the case before

it, the Court recognized that “it could be argued that a viable trial strategy existed to attempt



                                               14
to win some measure of favor with the jury by candidly conceding the overwhelming nature

of the evidence of guilt on [the aggravated assault] count.” Id. at 899 (¶14). The Court

observed that “[t]he potential advantage [to this strategy] would be that the jury, in reaction

to such a forthright concession, might give more credence to Williams’s assertion that the

automobile journey was not to kidnap [Davis] but to get her to a hospital to receive needed

medical treatment.” Id. Under these circumstances, the Court “decline[d] to find that

counsel’s statements to the jury, acknowledging the existence of evidence that was

essentially beyond dispute and for which the defense could offer no exculpatory explanation,

to be such ineffective assistance of counsel as to require us to set aside this conviction.” Id.

at 900 (¶16); see also Schrotz, 179 So. 3d at 1207 (¶17) (“Given the circumstances, we find

that it was a reasonable trial strategy to admit guilt to misdemeanor failure-to-stop-a-motor

vehicle in an attempt to avoid conviction on the burglary-of-a-dwelling charge. Thus, we

cannot find Schrotz’s counsel ineffective.”)

¶35.   As stated, Brown asserts that he did not receive effective counsel because his lawyer

conceded his guilt on the carjacking charge against him. The statutory elements for

carjacking under section 97-3-117 (Rev. 2000) include “(1) a taking of a motor vehicle (2)

from someone’s immediate actual possession (3) by force, stealth or violence. Force or

violence includes putting the victim in fear of the same. Use of a firearm or other deadly or

dangerous weapon elevates the crime to armed carjacking.” Smith v. State, 907 So. 2d 292,

296 (¶17) (Miss. 2005). The record reflects that Brown’s counsel did not concede anything

that Brown had not already essentially admitted as a factual matter in his recorded statements



                                               15
to the police that were played for the jury.

¶36.   As detailed above, Brown stated that on the night of the incident he and Livingston

were “going to steal a vehicle and get somewhere.” When they came upon Thomas in the

Blackburn Motor Company lot, Brown began talking with Thomas as Thomas was sitting in

his Honda with the driver’s side door open. According to Brown, Livingston jumped in the

passenger seat of the Honda, shot Thomas, Thomas fell on Brown, Brown pulled Thomas out

of the car, and Brown got in the Honda’s driver’s seat. Brown and Livingston left the

Blackburn Motor Company lot, and Brown drove the whole time to New Mexico.

¶37.   Further, as the record reflects, although Brown repeatedly denied that he had shot

Thomas before confessing, Brown never denied his part in the carjacking, as reflected in the

following excerpt from the trial transcript:

       Mr. Brown: I didn’t—I didn’t shoot him. I didn’t do none of that . . . . I
                  still—I still got in the car. I’m not saying I’m not guilty of
                  anything.

       Lt. Kimble: So who—who drove?

       Mr. Brown: I did.

       Lt. Kimble: You got in the driver’s seat?

       Mr. Brown: I did. I’m not saying I’m not guilty of anything.

¶38.   As the precedent discussed above reflects, a decision to concede guilt on a less serious

offense “where conviction seems likely,” Williams, 791 So. 2d at 899 (¶13), in an effort to

achieve acquittal on the more serious offense, is a matter of trial strategy. Schrotz, 179 So.

3d at 1207 (¶17); Williams, 791 So. 2d at 899 (¶13); see also Faraga, 514 So. 2d at 308-09.



                                               16
Based on these authorities, we deny Brown’s ineffective-assistance claim without prejudice

to his right to pursue post-conviction relief as to this claimed error. The record contains no

information regarding defense counsel’s strategy on this issue, and thus this issue is more

appropriately considered upon petition for post-conviction relief.

       II.    Issuance of a Cautionary Instruction Regarding the Jury’s Use of
              Transcripts While Recorded Statements are Played

¶39.   The recordings of Brown’s March 16 and March 22 interviews were admitted into

evidence at trial and edited to remove reference to Brown’s prior bad acts in accordance with

the trial court’s order granting defense counsel’s motion in limine on that issue. The jury was

given redacted transcripts of these recordings in order to follow along with them while they

were being played. Brown asserts that his case should be reversed and remanded for a new

trial because the trial court erred when it did not, sua sponte, instruct the jury that the

recordings, and not the transcripts, were the primary evidence of Brown’s statements.

Alternatively, Brown asserts that reversal and remand for a new trial is warranted because

his lawyer’s failure to request such an instruction constitutes ineffective assistance of

counsel. For the reasons discussed below, we find no merit in Brown’s first contention, and

we deny Brown’s ineffective-assistance-of-counsel claim without prejudice to his right to

seek post-conviction relief on this claimed error.

¶40.   Regarding Brown’s first argument, precedent reflects that a trial court will not be held

in error for failing to issue a cautionary instruction of this nature where no such instruction

is requested. Fulgham v. State, 46 So. 3d 396, 398-99 (¶¶8-15) (Miss. Ct. App. 2010);

Broadhead v. State, 981 So. 2d 320, 329 (¶31) (Miss. Ct. App. 2007). Relying on the


                                              17
rationale announced in United States v. Onori, 535 F.2d 938, 946-49 (5th Cir. 1976)—“that

defendants must request a transcript-based cautionary instruction”—this Court in Fulgham,

46 So. 3d at 399 (¶15), found that although it is “certainly best practice for trial courts to

fashion appropriate cautionary instructions[] when admitting recordings and purported

transcripts . . . we find the burden falls on the trial counsel to request the limiting

instruction.” Because Fulgham failed “to seek a cautioning instruction, [the Court found] no

error in admission of the transcript.” Id.

¶41.   In Fulgham, although not directly applying Mississippi Rule of Evidence 105 to the

issue before it, the Court recognized that Onori’s rationale “also comports with our own

evidentiary rules. [Rule 105] instructs: ‘When evidence which is admissible . . . for one

purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall

restrict the evidence to its proper scope and instruct the jury accordingly.’” 46 So. 3d at 399

(¶14) (quoting M.R.E. 105).

¶42.   We observe that amended Rule 105 became effective on July 1, 2015, prior to

Brown’s March 2018 trial. Amended Rule 105 eliminates the language that the court, “upon

request,” should issue a limiting instruction. M.R.E. 105. Rule 105 now provides: “If the

court admits evidence that is admissible against a party or for a purpose—but not against

another party or for another purpose—the court, unless expressly waived or rebutted, shall

restrict the evidence to its proper scope [and] contemporaneously instruct the jury

accordingly. . . .” M.R.E. 105 (emphasis added to reflect amendment).

¶43.   Elimination of the “upon request” language in Rule 105 does not change our analysis.



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First, Rule 105 applies to “evidence that is admissible against a party or for a purpose—but

not against another party or for another purpose”—not to the issuance of a transcript-based

cautionary instruction. Rule 105 was merely referenced by analogy in Fulgham, it was not

specifically applied in that context. 46 So. 3d at 399 (¶14).

¶44.   Second, even if Rule 105 applied in assessing a court’s responsibility for issuing a

cautionary instruction about the jury’s use of transcripts, this Court’s discussion in Curry v.

State, 202 So. 3d 294, 299 (¶16) (Miss. Ct. App. 2016), shows that reversal is not warranted

based upon the trial court’s failure to issue such an instruction, sua sponte, in this case. In

Curry, this Court rejected the defendant’s assertion that under amended Rule 105 the trial

court should have, sua sponte, given a limiting instruction with respect to evidence admitted

for a particular purpose under Rule 404(b). Id. The Court observed that “even as amended,

Rule 105 only requires the judge to offer a limiting instruction, which the defendant is free

to ‘waive.’” Id. (citing M.R.E. 105). Recognizing that defense counsel may not have

requested a limiting instruction as part of counsel’s trial strategy, the Court found that

reversal would only be appropriate if we found that “the absence of a limiting instruction

deprived [the defendant] of a fair trial.” Id. at 299 (¶16); Horton v. State, 253 So. 3d 334,

342 (¶¶23-24) (Miss. Ct. App. 2018); Giles v. State, No. 2018-KA-01222-COA, 2019 WL

2590861, at *5 (¶¶18-19) (Miss. Ct. App. June 25, 2019).

¶45.   In this case, Brown makes no argument at all that he was deprived of a fair trial

because the trial court did not issue a transcript-based cautionary instruction. Nor do we find

any indication in the record that the absence of such a cautionary instruction deprived him



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of a fair trial. We find that Brown’s assertion that the trial court erred in failing to issue a

cautionary instruction, sua sponte, is without merit. See, e.g., Brooks v. State, 72 So. 3d 552,

555 (¶6) (Miss. Ct. App. 2011) (rejecting defendant’s contentions where he failed to support

them with record evidence and authorities pursuant to Mississippi Rule of Appellate

Procedure 28); M.R.A.P. 28(a)(7) (The argument portion of Appellant’s brief “shall contain

the contentions of appellant with respect to the issues presented, and the reasons for those

contentions, with citations to the authorities, statutes, and parts of the record relied on.”).

¶46.   Brown’s alternative argument is that his counsel rendered ineffective assistance

because he did not request a cautionary instruction regarding the transcripts. Brown cites no

authority for the proposition that his counsel’s failure to do so constitutes ineffective

assistance under the standard set forth in Strickland v. Washington, 466 U.S. at 687,

addressed above. Indeed, just as he failed to do in the context of the trial court’s purported

responsibility to issue, sua sponte, such an instruction, Brown offers no argument at all that

his lawyer’s purported “deficient performance” in this regard prejudiced Brown’s defense

and thus deprived him of a fair trial, as required under Strickland v. Washington’s second

prong. Id.

¶47.   Further, as the authorities discussed above reflect, the decision whether to seek a

limiting or cautionary instruction is a matter of trial strategy. Curry, 202 So. 3d at 299 (¶16);

Horton, 253 So. 3d at 342 (¶¶23-24); Giles, No. 2018-KA-01222-COA, 2019 WL 2590861,

at *5 (¶¶18-19). The record reflects that in this case the recordings were difficult to

understand, defense counsel had already ensured that Brown’s prior-bad-acts had been



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redacted from the transcripts, and a full understanding of Brown’s coerced confession

defense required that the jury understand what was being said in each of Brown’s statements.

As such, it is certainly plausible that Brown’s counsel had considered seeking a cautionary

instruction, but believed that it may be confusing to the jurors, or that it would have been

detrimental to his overall trial strategy in some other way.

¶48.   Such matters, however, are beyond the contents and face of the record. We find that

resolution of this issue is better left to be assessed on a complete record. Precedent reflects

that on direct appeal, we will deny relief in those matters “where the record cannot support

an ineffective assistance of counsel claim . . . [and we will] preserv[e] the defendant’s right

to argue the same issue through a petition for post-conviction relief.” Johnson v. State, 196

So. 3d 973, 975 (¶8) (Miss. Ct. App. 2015) (quoting McClendon v. State, 152 So. 3d 1189,

1192 (¶12) (Miss. Ct. App. 2014)).

¶49.   AFFIRMED.

    BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.




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