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.
18 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
19 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
20 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.