author: ROBERTS, J., BARNES, J., JAMES, J.,

text:
    Johnny Ray SIMS a/k/a Johnny R. Sims, Appellant v. STATE of Mississippi, Appellee.
    No. 2011-CP-01459-COA.
    Court of Appeals of Mississippi.
    March 5, 2013.
    Rehearing Denied June 25, 2013.

      Johnny Ray Sims, appellant, pro se.
    Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
   ROBERTS, J.,

for the Court:

¶ 1. Johnny Ray Sims entered what was described as a “best-interest plea” to one count of aggravated assault in the Marion County Circuit Court. Approximately three years and four months later, Sims filed a motion for post-conviction relief (PCR) in the trial court, challenging his conviction and sentence. His motion was summarily dismissed as time-barred and successive-writ barred.

¶ 2. He now appeals, asserting the following issues, which we have reordered for clarity: (1) his indictment was defective; (2) he was wrongfully ordered to pay restitution; (3) his counsel was ineffective; (4) the trial judge should have recused himself; (5) his guilty plea was involuntary; (6) he was entitled to an evidentiary hearing; and (7) the State failed to provide discovery to the defense. All of Sims’s issues are procedurally barred or, alternatively, without merit. Accordingly, we affirm the trial court’s dismissal of Sims’s PCR motion.

FACTS AND PROCEDURAL HISTORY

¶3. On September 13, 2003, Sergeant Pearlie Hendricks saw Sims’s vehicle outside an AutoZone store in Columbia, Mississippi. Sergeant Hendricks knew Sims and believed he had warrants for his arrest. She contacted dispatch to confirm that the warrants were active, and they were. Sims’s girlfriend, Angelina Robinson, was a passenger in the vehicle. When Sergeant Hendricks approached the vehicle, she asked Robinson to open the door. Robinson complied. Sergeant Hendricks tried to speak to Sims through the opening, but Sims told Robinson to close the door. He then drove off at a high rate of speed with police officers in pursuit.

¶ 4. During the pursuit, Sims ran a red light and collided with a vehicle driven by Mary Beth Broome. Sims continued to drive, striking a second vehicle driven by Virgie Stevens. Sims’s vehicle then struck a tree, injuring Robinson. Sims exited the vehicle and fled on foot.

¶ 5. On September 3, 2004, Sims was indicted on one count of aggravated assault against Stevens and one count of aggravated domestic violence against Robinson. On March 2, 2005, Sims was re-indicted. The count of aggravated assault against Stevens remained the same. However, the second indictment included a count of aggravated assault against Broome, and it changed the aggravated-domestic-violence count against Robinson to aggravated assault. Two days later, an order was entered dismissing the first indictment. In this order, the State reserved the right to re-indict Sims. On July 6, 2005, Sims entered what was described as an Alford, or best-interest, plea to the charge of aggravated assault against Broome. The State dismissed the other two counts. In exchange for dismissing these two counts, the State requested that the trial court consider ordering restitution to all three victims.

¶ 6. The trial court sentenced Sims to twenty years in the custody of the Mississippi Department of Corrections, with one year and two months to serve, and eighteen years and ten months of post-release supervision. Sims had one year and two months of pretrial custody time. The judge also ordered Sims to pay restitution of $6,000 to Stevens and $4,000 to Broome. In March 2006, Sims’s post-release supervision was revoked after he was charged with capital murder — a clear violation of the terms of his post-release supervision. Sims was ordered to serve the remainder of his sentence.

¶ 7. In October 2007, Sims filed a “Motion to Vacate Revocation Hearing.” In this motion, he argued his due-process rights were violated because the trial court failed to advise him of his right to be represented by counsel at the revocation hearing. The trial court summarily dismissed the motion, treating it as a PCR motion.

¶ 8. On December 5, 2008, Sims filed another PCR motion, arguing his conviction should be overturned because his indictment was defective, his sentence was illegal, his counsel was ineffective, and his plea was involuntary. The trial court summarily dismissed Sims’s motion.

¶ 9. Sims next filed for an out-of-time appeal, which was granted. Sims now appeals.

STANDARD OF REVIEW

¶ 10. “A trial court’s dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous.” Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss.2010). Issues of law are reviewed de novo. Id.

ANALYSIS

¶ 11. Sims’s December 5, 2008 PCR motion is procedurally barred. Sims has not shown any exception to the procedural bars; thus, his PCR motion was correctly dismissed by the trial court.

¶ 12. Sims’s PCR motion is barred as a successive writ because he has previously challenged his conviction in the trial court, and the previous motion was dismissed. See Miss.Code Ann. § 99-39-23(6) (Supp.2012) (“[A]ny order dismissing the petitioner’s [PCR] motion or otherwise denying relief under this article is a final judgment and ... shall be a bar to a second or successive [PCR] motion. ...”). Although his first motion was not styled as a PCR motion, “[a] pleading cognizable under the [Uniform Post-Conviction Collateral Relief Act] will be treated as a motion for post-conviction relief that is subject to the procedural rules promulgated therein, regardless of how the plaintiff has denominated or characterized the pleading.” Knox v. State, 75 So.3d 1030, 1035 (¶ 12) (Miss.2011). Sims’s first motion was titled “Motion to Vacate Revocation Hearing.” However, because the motion challenged his conviction, it was correctly treated by the trial court as a PCR motion. Sims raises no statutory exception to the successive-writ bar, as authorized by section 99-39-23(6).

¶ 13. The motion is time-barred because more than three years have passed since the entry of his conviction. See Miss.Code Ann. § 99-39-5(2) (Supp.2012). Sims’s conviction was entered on July 21, 2005. His PCR motion was filed on December 5, 2008—approximately three years and four months later. Sims has asserted no statutory exception under section 99-39-5(2).

¶ 14. In addition to the statutory exceptions to the procedural bars, Mississippi appellate courts have recognized an exception “[w]here the petitioner asserts a ‘fundamental right.’ ” Moss v. State, 45 So.3d 305, 306 (¶ 7) (Miss.Ct.App.2010) (citing Davis v. State, 958 So.2d 252, 254 (¶ 6) (Miss.Ct.App.2007)). However, this must be proven, as “merely raising” a fundamental right is not sufficient to overcome the procedural bars. Bevill v. State, 669 So.2d 14, 17 (Miss.1996). We will briefly discuss the merits of Sims’s arguments to determine if Sims has shown the violation of a fundamental right such that he has overcome the procedural bars.

I. INDICTMENT

A. SIMULTANEOUS INDICTMENTS

¶ 15. Sims argues his due-process rights were violated because the second indictment against him was returned by the grand jury before the first indictment was dismissed.

¶ 16. Sims was first indicted on September 3, 2004. He was re-indicted on March 2, 2005. Two days later, on March 4, 2005, the trial court granted the State’s motion to nolle prosequi the first indictment—that is, the prosecutor voluntarily withdrew the criminal charges and did not further prosecute them. See Black’s Law Dictionary 1048 (6th ed.1990). Sims entered a best-interest plea to the second indictment on July 6, 2005.

¶ 17. It is well settled that, “with only two exceptions, the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment.” Joiner v. State, 61 So.3d 156, 159 (¶ 7) (Miss.2011) (quoting Conerly v. State, 607 So.2d 1153, 1156 (Miss.1992)). These two exceptions are (1) an indictment’s failure to charge an essential element of the crime, and (2) lack of subject-matter jurisdiction. Id. Neither of these exceptions are asserted, and the plea colloquy reveals that Sims’s plea was knowing and voluntary; thus, Sims’s guilty plea waived the challenge to the indictment. Notwithstanding this waiver, we would find that this issue is without merit.

¶ 18. The constitutionality of two simultaneous indictments was addressed by the Mississippi Supreme Court in Mitchell v. State, 792 So.2d 192, 199 (¶24) (Miss.2001). The supreme court held that “there is no double jeopardy violation when a second indictment is returned by a grand jury, and then the prosecution successfully moves the court to enter a nolle prosequi motion regarding the first indictment.” Id. However, before the trial court dismisses the earlier indictment, it must first determine “whether [the defendant] actually incurred any harm from having simultaneous indictments against him.” Id. at 200 (¶ 25). In making this determination, the trial court should consider questions such as: “Was [the defendant] subjected to multiple prosecutions in this case, and was he aware of the grounds for the prosecution against him?” Id.

¶ 19. There is no evidence that Sims was harmed by having simultaneous indictments against him. He was not subjected to multiple prosecutions, as he did not go to trial on either indictment, and he only entered a plea on one indictment. And there is no contention that Sims was unaware of the grounds charged in the indictments. Further, there was no question which indictment was being prosecuted, as the first indictment was promptly dismissed two days after the second indictment was returned.

¶ 20. We find that any error from the issuance of the second indictment before nolle prosequi of the first indictment occurred was harmless. This issue is without merit.

B. DEFECTIVE INDICTMENT

¶ 21. Sims argues the indictment was defective because it was not signed by the grand jury foreman or the circuit clerk, and it was not dated. This argument was waived when Sims entered his plea. See Joiner, 61 So.3d at 159 (¶ 7). Regardless, the record contains a fully signed and executed indictment dated March 2, 2005, and stamped filed by the circuit clerk on that same day. The indictment met all the requirements of Rule 7.06 of the Uniform Rules of Circuit and County Court; thus, Sims’s argument is without merit.

II. RESTITUTION

¶ 22. Sims next argues his entire sentence is illegal because he was ordered to pay restitution to a victim whose count was dismissed. The trial court ordered Sims to pay $6,000 in restitution to Stevens and $4,000 to Broome. However, the charge relating to Stevens was withdrawn by the prosecutor. Sims also argues he was entitled to a hearing to address the necessity of restitution and whether he was financially able to pay restitution.

¶ 23. First, we note that the imposition of restitution was not objected to by Sims or his counsel. The Mississippi Supreme Court has held that the failure to object to restitution during sentencing waives the issue for appeal. Harris v. State, 757 So.2d 195, 199 (¶ 19) (Miss.2000). Consequently, this issue was waived.

¶ 24. Regardless, the sentence imposed on Sims, including the order of court costs and restitution, was not, on its face, an illegal sentence. The term of imprisonment and assessment of court costs were within the parameters of punishment for aggravated assault. Additionally, a requirement that a defendant pay restitution to a victim is statutorily authorized as part of a criminal sentence. Miss.Code Ann. § 99-37-3(1) (Rev.2007). Section 99-37-3(1) states that restitution may be ordered “[w]hen a person is convicted of criminal activities which have resulted in pecuniary damages.” For purposes of this section, “criminal activities” are defined as “any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant,” and “‘[vjictim’ shall mean any person whom the court determines has suffered pecuniary damages as a result of the defendant’s criminal activities.” Miss.Code Ann. § 99-37-1 (a), (d) (Rev.2007).

¶25. Although the counts relating to Stevens and Robinson were dismissed, Sims admitted guilt to all three counts before the dismissal. The record includes Sims’s written and sworn guilty-plea petition as well as the guilty-plea colloquy. Neither the petition nor the colloquy indicates that Sims was pleading guilty to a specific count of aggravated assault — that is, we do not know if Sims intended to plead guilty to Count I, II, or III. When asked by the trial judge, “[H]ow do -you plead?” Sims responded, “Guilty.” The trial judge followed this by asking: “And you say you’re pleading guilty in your best interest?” Sims responded, ‘Tes, sir.”

¶ 26. Prior to acceptance of the plea, the trial judge required the district attorney to state the underlying facts the State intended to prove. The prosecutor outlined in detail the motor-vehicle chase, including the crashes that injured all three victims. The trial judge then accepted Sims’s plea to aggravated assault without specifying which count. Immediately thereafter, the prosecutor informed the trial judge that “the State agrees, upon acceptance of [Sims’s] guilty plea in Count Three [ (Broome) ], the State agrees to dismiss Counts One [ (Stevens) ] and Two [ (Robinson) ], but asks that restitution be considered for all three counts.” No objection was made by Sims or his attorney at any point.

¶ 27. From the lack of objection, it seems obvious that Sims had a plea agreement or, at the least, an understanding, that if he pleaded guilty to one of the aggravated-assault counts, the State would dismiss the other two counts upon Sims’s agreement that he would pay restitution to all the victims. Sims was not entitled to a hearing on restitution since he agreed to the plea bargain. Essentially, it seems Sims’s real complaint is that he was ordered to pay $10,000 in restitution instead of $4,000. Regardless, the imposition of an “illegal” sentence — that is, one that violates a fundamental-constitutional right— is a prerequisite to trump the procedural bars, and there is no illegal sentence here. Thus, this issue is procedurally barred.

¶ 28. Judge Barnes’s dissent asserts that this Court has the authority to address the restitution issue because it was raised within Sims’s ineffective-assistance-of-counsel argument. The dissent would permit, through the ineffective-assistance-of-counsel claim, a modification of the order of restitution. However, the ineffective-assistance-of-counsel claim is clearly-barred by the three-year statute of limitations in Mississippi Code Annotated section 99-39-5(2). Havard v. State, 86 So.3d 896, 904 (¶ 26) (Miss.2012). Further, because Sims’s sentence is legal on its face, there is no exception to this procedural bar. As to his attorney’s effectiveness, Sims swore at his plea hearing that he was satisfied with the advice and assistance of his attorney. Sims faced a possible sixty-year sentence, which was reduced to twenty years. Of his twenty-year sentence, he was only ordered to serve one year and two months — the exact amount of time he had served while awaiting sentencing. Thus, Sims’s sentence effectively released him from prison immediately to start his term of post-release supervision. The dissent does not take issue with this portion of the sentence; rather, the dissent finds Sims’s counsel was ineffective only as to the restitution portion of the sentence. If Sims’s counsel was truly constitutionally ineffective, such deficiency would infect the entire proceeding and justify setting aside Sims’s plea and sentence, reinstating Sims’s three aggravated-assault counts on the trial docket. This issue is without merit, as Sims has failed to show how his attorney was ineffective.

¶ 29. Since we find no merit to Sims’s argument that his sentence is illegal, this issue is procedurally barred.

III. EFFECTIVENESS OF COUNSEL

¶ 30. In order to demonstrate ineffective assistance of counsel, Sims must show (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In the context of guilty pleas, this means the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Bmrough v. State, 9 So.3d 368, 375 (¶ 22) (Miss.2009).

¶ 31. Sims alleges at least nineteen deficiencies by his attorney. However, Sims raises no deficiencies that show he would have chosen to proceed to trial but for his counsel’s performance, and had he gone to trial, the outcome would have been different. Sims does not deny he was the driver of the vehicle or that he injured the three victims, and the State had a strong case against him for aggravated assault. Sims was charged with three counts of aggravated assault, and each count carried a possible twenty-year sentence. See Miss.Code Ann. § 97-3-7(2)(a) (Supp.2012). With the help of his attorney, he was able to plead guilty to only one count. Sims’s potential sixty-year sentence was reduced to twenty years, of which eighteen years and ten months were post-release supervision. Sims was ordered to serve one year and two months — the exact amount of time he had served while awaiting sentencing. Thus, Sims’s sentence effectively released him from prison immediately to start his term of post-release supervision. We cannot find that Sims has shown that but for errors of his counsel, he would have insisted on going to trial.

¶ 32. Further, Sims’s ineffective-assistance-of-counsel argument is without merit because it is based solely on his own allegations in his brief. Our supreme court “has implicitly recognized in the post-conviction relief context that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State, 653 So.2d 920, 922 (Miss.1995) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)). Sims has not produced a sufficient affidavit to support his claims; thus, we can find no merit to his argument.

¶ 33. This issue is procedurally barred. Even absent the procedural bar, this issue is without merit because there is no evidence that Sims’s counsel was ineffective.

IV.PARTIALITY OF TRIAL JUDGE

¶ 34. Sims next argues the trial judge was biased because he presided over a related civil suit brought by Broome against the City of Columbia.

¶ 35. Broome’s civil suit against the City of Columbia alleged the City and its police officers were negligent in pursuing Sims. Broome v. City of Columbia, 952 So.2d 1050, 1052 (¶ 7) (Miss.Ct.App.2007). A bench trial was held, and the trial court found the City was immune under the Mississippi Tort Claims Act. Id. at (¶ 9). The trial court’s judgment was affirmed on appeal. Id. at 1051-52 (¶¶ 2, 8-9).

¶ 36. This issue was not raised before the trial court and, thus, is not proper before this Court. See Sumrell v. State, 972 So.2d 572, 575 (¶ 11) (Miss.2008). Further, there was no basis for the judge to recuse himself. Canon 3E(l)(a) of the Code of Judicial Conduct states that a judge must disqualify himself if “the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding....” There is no evidence of personal bias or- prejudice against Sims, and there were no disputed evidentiary facts, as Sims entered a plea. This issue is procedurally barred and without merit.

V. VOLUNTARINESS OF PLEA

¶ 37. “A plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and intelligently.” Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). A plea is “voluntary and intelligent” when the defendant is advised of the nature of the charge against him and the consequences of the plea. Id.

¶ 38. Sims argues his plea was not knowingly and intelligently given because the trial judge was biased, his attorney allowed him to plead guilty to a defective indictment, and he was denied a separate hearing on restitution. We have addressed these issues and found them to be without merit. Further, Sims testified at the plea hearing that he had not been threatened, mistreated, or pressured into pleading guilty. He stated that he understood his plea, and he had received no promises in exchange for pleading a certain way. “Great weight is given to statements made under oath and in open court during sentencing.” Gable v. State, 748 So.2d 703, 706 (¶ 11) (Miss.1999). Sims has presented no evidence to contradict the statements he gave under oath during sentencing.

VI. EVIDENTIARY HEARING

¶ 39. Sims argues the trial court erred in denying his PCR motion without an evidentiary hearing.

¶ 40. A trial court may summarily dismiss a PCR motion without an evidentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits!,] and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99-39-11(2) (Supp.2012). The trial court acted within its discretion in finding that Sims’s PCR motion was procedurally barred. Since it was plain from the face of the motion that it was barred, there was no need for an evidentiary hearing. This issue is without merit.

VII. DISCOVERY

¶ 41. Finally, in an addendum to his brief, Sims argues the State failed to provide him with an “item package” from the Columbia Police Department regarding the aggravated assault of Broome. He states he had received these materials on Stevens and Robinson, but no packet was sent after he was indicted on Count III relating to Broome.

¶ 42. Sims argues the contents of this package would have affected the outcome of his case had it gone to trial. However, Sims does not state what this package-would have contained. We first note that this issue is not properly before this Court, as it was not raised in his PCR motion before the trial court. See Sumrell, 972 So.2d at 575 (¶ 11). Further, by choosing to enter a plea, Sims “waived his right to receive evidence which may have been presented through discovery.” Swift v. State, 815 So.2d 1230, 1234 (¶ 12) (Miss.Ct.App. 2001) (citing Jefferson v. State, 556 So.2d 1016,1019 (Miss.1989)).

¶ 43. Within this issue, Sims argues that he was never formally charged with committing aggravated assault against Broome. Again, this issue was not raised before the trial court and is not proper before this Court. This issue is also without merit because the indictment returned on March 2, 2005, formally charged Sims with aggravated assault against Broome.

¶ 44. All of Sims’s issues raised on appeal are proeedurally barred or, alternatively, without merit. The trial court’s dismissal of Sims’s PCR motion is affirmed.

¶ 45. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

IRVING AND GRIFFIS, P.JJ., CARLTON, MAXWELL AND FAIR, JJ„ CONCUR. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND ISHEE, J. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

BARNES, J.,

concurring in part and dissenting in part:

¶ 46. I respectfully dissent in part from the majority opinion, as I find Sims’s restitution claim meritorious and properly before the Court. I concur in part that the remaining issues are proeedurally barred and/or without merit.

¶ 47. The trial court ordered Sims to pay restitution of $6,000 to Stevens and $4,000 to Broome. However, the charges relating to Stevens’s injuries were nol prossed, or dropped. In its April 2009 order, the trial court found imposing restitution for both individuals was within the court’s right “for the benefit of a person determined by the court of have been a victim of [Sims’s] criminal activities.”

¶ 48. Under Mississippi Code Annotated section 99-37-3(1) (Rev.2007), a court may order restitution to a victim “[w]hen a person is convicted of criminal activities which have resulted in pecuniary damages.” For purposes of this section, “criminal activities” are defined as “any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant.” Miss.Code Ann. § 99-37-l(a) (Rev.2007). “Victim,” in turn, means “any person whom the court determines has suffered pecuniary damages as a result of the defendant’s criminal activities.” Miss.Code Ann. § 99-37-1(d) (Rev.2007).

¶ 49. Because the charges relating to Stevens’s injuries were dropped, Sims was not convicted of a criminal activity regarding Stevens, but only Broome. Therefore, it is my opinion that restitution would be improper for Stevens.

¶50. The State argues that the facts of the charged crime — the accident with Broome’s vehicle — encompassed the collision with Stevens’s vehicle. Once Sims sped away in his vehicle from Sergeant Hendricks at the AutoZone, the State contends, all of his conduct was part of the crime charged, which would include the collision with Stevens’s vehicle and Stevens’s injury. The State claims that Stevens’s injury occurred during the commission of the crime against Broome. Therefore, when Sims entered an Alford plea, it could be construed as his admission that the State could prove the facts presented at the plea hearing. The State concludes that this “admission” of criminal conduct would thereby satisfy the definition of “criminal activities” in section 99-37-l(a).

¶ 51. I am not persuaded by this argument. The record reflects that Sims ran a red light and collided with motorist Broome, who was proceeding south through Old Sumrall Road through a green light. He continued to drive recklessly, striking a second motorist, Stevens, who was traveling north on Old Sumrall Road. Sims’s vehicle then struck a tree, injuring Robinson. The record indicates Broome’s and Stevens’s accidents were separate, and not a chain reaction whereby Broome was pushed into Stevens. I cannot say that an Alford plea regarding the accident with Broome constitutes an admission regarding the accident with Stevens. Further, I cannot accept the majority’s contention that it is “obvious that Sims had a plea agreement” where he would pay restitution to all of the victims. We are required to rely upon the record made in the trial court; we cannot presume matters not reflected therein.

¶ 52. Additionally, I find the restitution claim properly before the Court. In his PCR motion, Sims raised his restitution argument within his ineffective-assistance-of-counsel claim. Mississippi appellate courts have recognized that “[wjhere the petitioner asserts a ‘fundamental right,’ procedural bars will not prevent a court from hearing the petition.” Moss v. State, 45 So.3d 305, 306 (¶ 7) (Miss.Ct.App.2010) (citing Davis v. State, 958 So.2d 252, 254 (¶ 6) (Miss.Ct.App.2007)). As the majority acknowledges, just because the petitioner asserts a fundamental right does not necessarily overcome the procedural bar. Be-vill v. State, 669 So.2d 14, 17 (Miss.1996). However, Sims’s defense counsel failed to object to the order of restitution. “[F]ail-ure to object to an order of restitution during sentencing bars appeal on that point.” Green v. State, 631 So.2d 167, 176 (Miss.1994) (citing Shook v. State, 552 So.2d 841, 851 (Miss.1989)); see Powell v. State, 536 So.2d 13, 17 (Miss.1988). Because defense counsel’s failure to object waived the issue for direct appeal, I find it properly a matter to be raised in a motion for post-conviction relief.

LEE, C.J., AND ISHEE, J., JOIN THIS OPINION.

JAMES, J.,

concurring in part and dissenting in part:

¶ 53. I dissent in part from the majority’s ruling because I disagree that Sims should be ordered to pay restitution for Stevens’s injuries. The charges relating to Stevens’s injuries were dismissed without any request by the State for restitution from Sims being included as part of the plea petition. The plea petition does not comply with Rule 8.04 of the Uniform Rules of Circuit Court and County Court.

¶ 54. Rule 8.04(B)(2)(b) requires that a plea petition include “a recommendation to the trial court for a particular sentence, with the understanding that such recommendation or request will not be binding upon the court.” The rule also states that “the court shall require disclosure of the recommendation in open court, with the terms of the recommendation to be placed in the record.” URCCC 8.04(B)(4). In this case, the terms of any offer made by the State that restitution be paid to Stevens were not included in the plea petition. The court ordered Sims to pay restitution of $6,000 to Stevens and $4,000 to Broome. However, the plea petition makes no reference to these terms. Not only does the petition lack information about the terms of the restitution to be paid to Stevens regarding the charges that were dismissed, but more importantly, it fails to provide for restitution for Broome’s injuries, regarding the charge to which Sims agreed to plead guilty. Without this information being in the plea petition, it cannot be ascertained exactly what Sims agreed to in exchange for his guilty plea, or whether he was informed of the restitution fees. Rule 8.04 requires a showing that the defendant’s guilty plea was voluntary. “A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.” URCCC 8.04(A)(3). Because Sims’s plea petition lacked pertinent terms of the agreement, it cannot be concluded from the record that Sims’s guilty plea was voluntarily and intelligently made as required by Rule 8.04 regarding the $6,000 in restitution to Stevens. Not ordering Sims to pay $6,000 to Stevens promotes fundamental fairness and assures that Sims’s fundamental rights are protected. Complying with Rule 8.04 protects an attorney in that it allows the appellate courts to see the terms of the State’s recommendations in the plea petition. Compliance with Rule 8.04 also ensures that the defendant’s fundamental rights are protected.

      . North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). We acknowledge that there is a handwritten note at the top of Sims’s guilty-plea petition that says “in best interest.” However, when asked during his plea colloquy how he pleaded to aggravated assault, Sims responded, "Guilty.” Nothing appears in the record indicating that Sims asserted his innocence to any of the three aggravated-assault charges. This is inconsistent with a plea under Alford, which occurs when a defendant is unwilling to admit his or her participation in the acts constituting a crime. Id.

      . This entire issue of restitution appears to be a "tempest in a teapot.” Sims will likely never be required to pay any restitution to any victim for any aggravated assault. Shortly after his release on post-release supervision, he committed a capital murder and received a sentence of life without parole as a habitual offender for the kidnapping and brutal murder of an innocent ten-year-old child. That conviction has been affirmed by this Court on direct appeal, and certiorari was denied by the Mississippi Supreme Court. Sims v. State, 93 So.3d 37, 42 (¶ 27) (Miss.Ct.App.2011) (rehearing denied May 1, 2012), cert. denied, 95 So.3d 1274 (Miss.2012).

      . North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).


source: Caselaw Access Project

author: MAXWELL, J.,

license: Public Domain

text:
    In the Matter of the ESTATE OF Kenneth Lee DRAKE, Deceased. Benjamin Lee Drake, Appellant v. Bennie Larry Drake, Appellee.
    No. 2011-CA-01587-COA.
    Court of Appeals of Mississippi.
    July 30, 2013.
    Rehearing Denied Nov. 5, 2013.
    Certiorari Denied March 20, 2014.

      John R. McNeal Jr., Jackson, attorney for appellant.
    John Denver Fike, attorney for appellee.
    Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. Absent an express certification by the chancellor that there is “no just reason for delay” and an explicit direction “for the entry of the judgment,” an appeal from a judgment resolving less than all issues or claims against all parties cannot be taken. M.R.C.P. 54(b). Because we are faced with an appeal from an order that both parties and the chancellor have acknowledged is clearly non-final and interlocutory, we must dismiss for lack of jurisdiction.

¶ 2. Benjamin Lee Drake (Benjamin Lee) sued his uncle Bennie Larry Drake (Bennie Larry). The suit, which was brought in Benjamin Lee’s father’s estate matter in Rankin County Chancery Court, alleged that Bennie Larry unduly influenced Benjamin Lee’s father to change the beneficiary of his life-insurance policy from Benjamin Lee to Bennie Larry. There was also an allegation that Bennie Larry unduly influenced Benjamin Lee’s father to convey a piece of real property to Bennie Larry’s son. Specifically, Benjamin Lee sought to set aside both the change in his father’s life-insurance beneficiary, and the real-property conveyance.

¶ 3. By order dated September 27, 2011, the chancellor resolved one of Benjamin Lee’s two claims. He dismissed the life-insurance claim because Benjamin Lee had failed to file the claim within three years of discovering his uncle’s alleged fraud. See Miss.Code Ann. §§ 15-1-49, 15-1-67 (Rev. 2012). But the chancellor correctly recognized that the real-property claim was governed by a longer ten-year statute of limitations and, thus, was still viable. See Miss.Code Ann. § 15-1-9 (Rev.2012). So he did not dismiss the property claim.

¶ 4. Under Mississippi Rule of Civil Procedure 54(b), absent certification by the trial court of the order’s finality, “a trial court order which disposes of less than all of the claims against all of the parties in a multiple party or multiple claim aetion[] is interlocutory.” Lundquist v. Todd Constr., LLC, 75 So.3d 606, 608 (¶ 11) (Miss.Ct.App.2011) (quoting M.W.F. v. D.D.F., 926 So.2d 897, 900 (¶ 4) (Miss.2006)). And here, there was no Rule 54(b) certification. Instead, the chancellor made clear his judgment was not final. When announcing his ruling from the bench, Judge Grant explicitly told Benjamin Lee that his order was not final because of the pending real-property claim and that if Benjamin Lee “wish[ed] to take an interlocutory appeal,” the “same was granted.”

¶ 5. So Benjamin Lee sought an interlocutory appeal of the September 27, 2011 order with the Mississippi Supreme Court, under Mississippi Rule of Appellate Procedure 5, which concerns interlocutory appeals. However, Benjamin Lee also filed a separate general notice of appeal of this same order under Mississippi Rule of Appellate Procedure 4-the rule governing appeals of final judgments.

¶ 6. “[F]ind[ing] that [Benjamin Lee] filed a notice of appeal from the same trial order,” the supreme court dismissed his separate petition for permission for an interlocutory appeal under Rule 5. At that point, recognizing the other appeal — the Rule 4 non-interloeutory appeal — was not from a final order, Bennie Larry filed two motions to dismiss the general appeal. But the supreme court denied these motions as “not well taken.”

¶ 7. The appeal has since been assigned to this court. But since the order under review is — as Judge Grant and both parties acknowledge — non-final, we lack jurisdiction to grant an interlocutory appeal and must dismiss. See Lundquist, 75 So.3d at 608 (¶ 12).

¶ 8. THIS APPEAL IS DISMISSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

      . Benjamin Lee had also sued State Farm Insurance Company, which provided his father’s life-insurance policy. After State Farm inteipled the life-insurance proceeds into the registry of the court, the chancellor discharged State Farm from any further liability, in accordance with Mississippi Rule of Civil Procedure 22(b). State Farm was finally dismissed from this case in a September 1, 2010 order. Though this order was certified as final under Mississippi Rule of Civil Procedure 54(b), Benjamin Lee did not appeal this order.


text:
    Brandon GRINDLE a/k/a Bam, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-KA-00006-COA.
    Court of Appeals of Mississippi.
    Aug. 27, 2013.
    Rehearing Denied Dec. 3, 2013.
    Certiorari Denied March 20, 2014.

      Merrida Coxwell, Charles Richard Mullins, attorneys for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before IRVING, P.J., CARLTON and MAXWELL, JJ.
   MAXWELL, J.,

for the Court:

¶ 1. The hearsay exception for dying declarations is so firmly rooted in our common law that it was incorporated as a historical exception to the Sixth Amendment right to confront one’s accuser. This long-recognized evidentiary exception’s interplay with the Confrontation Clause is front and center in Brandon Grindle’s appeal of his deliberate-design murder conviction. On appeal, Grindle challenges the trial judge’s decision that the shooting victim’s nonverbal responses to a police officer’s questions about who shot him, made immediately before his death, were admissible as dying declarations. He also claims the admission of these statements violated his Sixth Amendment confrontation right.

¶2. We disagree with Grindle’s insistence that the officer’s testimony describing the victim’s deathbed identification— initially given at a pretrial hearing and later admitted at trial — became retroactively inadmissible because a nurse later testified the victim may have lost consciousness during the officer’s interview. We instead find any conflicts raised by the subsequent testimony merely challenged the officer’s credibility and reliability, creating an issue for jury resolution. And the nurse’s later-given testimony neither altered the fact.that the dying declaration, which met all requirements of Mississippi Rule of Evidence 804(b)(2), had already been properly admitted, nor required the judge to sua sponte strike the officer’s testimony and give a curative instruction. Thus, we find the trial judge did not abuse his discretion in admitting the victim’s dying declaration. And since dying declarations have been accepted under common-law tradition since well before the founding and ratification of America’s Constitution, we find applying this exception does not offend Grindle’s Sixth Amendment confrontation rights.

¶ 8. As to Grindle’s other claimed errors, none of which were preserved at trial, we find no plain error. We also decline to consider whether Grindle’s trial attorney, who does not represent Grindle on appeal, was constitutionally ineffective. We find this issue more appropriate for post-conviction-relief proceedings, where, if Grindle chooses to pursue this avenue, a record on trial counsel’s performance can be developed.

¶ 4. For these reasons and those discussed below, we affirm Grindle’s conviction for deliberate-design murder and his life sentence.

Facts and Procedural History

I. Fatal Shooting

¶ 5. Charles Brown was walking down the street in front of his house when he was shot twice by the driver of a green Ford sport utility vehicle. When officers arrived, Brown was still conscious but bleeding heavily. Paramedics transported him to the hospital while officers remained at the scene to interview witnesses.

¶ 6. After interviewing several witnesses, officers determined there had been bad blood between Brown and Grindle. Brown’s girlfriend, with whom he had a child, was also the mother of Grindle’s daughter. And Grindle believed Brown was mistreating his young daughter. A month earlier, the two fathers had gotten into an argument during which Brown had purportedly pulled a gun on Grindle. But on the day of the shooting, it was Grindle who had a gun.

¶7. Although the actual pistol used to kill Brown was never recovered, two different witnesses testified that on the day of the shooting they saw Grindle riding around in a Ford SUV with a pistol. One of these witnesses, Michael Smith, Grin-dle’s daughter’s uncle, was flagged down by Grindle. The two got into a fight about Brown. Smith testified that Grindle reached behind his seat, grabbed a gun, and put it in his lap. Another witness, Terrell Cruz, claimed to have been riding around with Grindle in the SUV earlier that day. He also testified that Grindle had a pistol in the SUV, which he described as a .45 caliber — the same caliber pistol used to shoot Brown.

¶ 8. Two other witnesses who were in the vicinity of the shooting testified at trial. Oscar Walker saw Grindle drive by in a green Ford Expedition fifteen minutes before the shooting. Walker described hearing gunshots, then seeing the same Ford vehicle drive away. Rashad Newton was also near Brown when he was shot. Newton testified that he saw Grindle’s vehicle pull up to Brown and saw Brown start backing away. Shots were then fired from Grindle’s vehicle, hitting and ultimately killing Brown.

¶ 9. While a variety of witnesses implicated Grindle as the killer, Grindle primarily focuses his appeal on Officer Richard Browning, the responding officer who interviewed Brown in the emergency room. The victim, Brown, was intubated at this point and could not speak. But Officer Browning, who was familiar with Brown and Grindle from their prior run-in, testified that he was able to ask Brown a series of questions to which Brown responded by nodding his head affirmatively. The questions were aimed at identifying the shooter. According to Officer Browning, when he asked Brown if Grindle was the person who shot him, Brown emphatically nodded “yes.” Shortly after this exchange, Brown died from his wounds.

¶ 10. After a day of being sought by the police, Grindle turned himself in. He was charged with killing Brown by deliberate design without authority of law — i.e., “first-degree murder.” Miss.Code Ann. § 97-3-19(l)(a)(Rev.2006).

II. Motion in Limine

¶ 11. Before trial, Grindle filed a motion in limine to exclude Officer Browning’s testimony about the emergency-room exchange with Brown. The State conceded Brown’s affirmative responses were hearsay, but argued they were admissible as statements under belief of impending death — commonly referred to as “dying declarations.” M.R.E. 804(b)(2). Grin-dle’s counsel disagreed and argued Brown’s alleged nodding did not meet the criteria of a dying declaration.

¶ 12. At the motion hearing, Officer Browning testified about his interaction with Brown in the emergency room. While doctors were trying to save Brown’s life, Officer Browning asked Brown if he could hear him. When Brown nodded “yes,” Officer Browning further inquired if Brown knew who shot him. Brown gave another affirmative nod. Officer Browning followed up by asking if it was the same person Brown had trouble with earlier — a reference to the altercation with Grindle a month earlier. Again, Brown nodded “yes.” Officer Browning then asked if that person was “Grindle,” to which Brown gave a final nod. At some point after this exchange, Brown began to decline rapidly and, within minutes, died.

¶ 13. Grindle’s attorney cross-examined Officer Browning, honing in on Brown’s condition at the time the interview. Counsel asked Officer Browning about Brown’s “Glasgow score” and his responsiveness level. Throughout questioning, Officer Browning remained consistent that he believed Brown could understand him and was responding to his questions. Grindle rested without calling any witnesses or offering any evidence to contradict Officer Browning’s testimony.

¶ 14. The trial judge held that Brown’s nodding, while nonverbal, met the criteria of a “dying declaration” and denied Grin-dle’s motion to exclude Officer Brown’s recitation of his questioning of Grindle. And though he ruled Officer Browning’s testimony was admissible, the judge informed Grindle he was free to offer evidence challenging the credibility of Officer Browning’s testimony at trial. Thus, ultimately the jury would weigh the credibility of Officer Browning’s testimony.

III. Trial

A. Officers’ Testimony

¶ 15. In addition to the witnesses pointing to Grindle as the shooter, the State also called the officers who investigated Brown’s murder.

¶ 16. One of them, Officer Chris Brum-field, searched Grindle’s vehicle the day after the shooting. He was looking for both a gun as well as shell casings to compare with those found at the scene, but found neither. The State asked Officer Brumfield, without objection by Grindle, if Grindle had been found in possession of a .45 caliber pistol when he was arrested five months after the shooting. Officer Brum-field answered “yes,” but clarified that the Mississippi Crime Lab had ruled out the possibility that the gun seized in Grindle’s later arrest was the one used to shoot Brown.

¶ 17. The State also called Officer Browning, whose trial testimony about his hospital interview with Brown mirrored his testimony from the motion in limine hearing.

B. Nurse’s Testimony

¶ 18. Kayla Breland, the registered nurse who was in the emergency room while Brown was being treated, also testified in the State’s case. Breland confirmed that Officer Browning was in the emergency room that evening. But she could not recall if any conversation took place, as she was busy with Brown’s medical treatment. On cross-examination, Grindle’s counsel questioned Breland about her responsibility for monitoring Brown’s brain functioning though observing his verbal communication, eye response, and movement. Breland’s records showed she gave him a low Glasgow score when he arrived that decreased as the minutes passed. Breland testified that Brown’s score meant he could not verbally communicate or control his bodily movements. But on redirect, Breland testified Brown “possibly could have” nodded his head in response to Officer Browning’s questions. Grindle’s counsel neither renewed her objection to Brown’s dying declaration in light of Breland’s testimony nor asked for any instruction limiting Officer Browning’s testimony.

¶ 19. Grindle chose not to testify but called several defense witnesses.

C. Verdict

¶ 20. After deliberating, the jury found Grindle guilty of deliberate-design murder. He was sentenced to life imprisonment. Grindle filed a post-trial motion, which was denied, then timely appealed. Grindle then obtained new counsel who have thoroughly and vigorously pursued his appeal.

Discussion

¶ 21. Grindle seeks a new trial, claiming that one preserved and numerous unpre-served errors require reversal of his conviction. He argues the evidence of both Brown’s dying declaration and Grindle’s second arrest were admitted in error, the jury was wrongly instructed, and the State made improper remarks during closing argument. He also claims his trial counsel’s deficient performance prejudiced his defense.

¶ 22. Because Grindle forfeited review of the majority of his appellate challenges by not urging them at trial, he proceeds solely under the more stringent plain-error doctrine on these unpreserved issues. Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). Under this standard, we will generally only exercise our discretion to review and correct a clear or obvious error if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. Thus, our review on the waived issues focuses on whether there was a manifest injustice. Starr v. State, 997 So.2d 262, 266 (¶ 11) (Miss.Ct.App.2008) (citation omitted).

I. Admission of Brown’s Identification of the Shooter

¶ 23. Grindle insists the trial judge reversibly erred by admitting Brown’s “dying declaration” that Grindle shot him. We find this general issue is preserved. But his second more specific challenge that Breland’s later testimony rendered Brown’s already admitted dying declarations unreliable and, thus, retroactively inadmissible, was not raised at trial and is waived. Grindle also failed to preserve his suggestion that the admission of Brown’s “dying declarations” violated his constitutional right to confront the evidence against him. So our review of these more specific allegations is for plain error.

A. “Dying Declaration”

¶ 24. We find the hearsay about Brown’s identification of Grindle as the shooter met all the requirements of a dying declaration. Thus, it was within the trial judge’s discretion to deny Grindle’s motion in limine and admit Brown’s dying declaration. While we recognize portions of Breland’s subsequently given testimony about Brown’s consciousness level perhaps call into question the credibility or reliability of Officer Browning’s earlier-admitted testimony, Breland’s later testimony did not negate the fact that the trial judge had already properly admitted the dying declaration. Rather, to the extent discrepancies or inconsistencies exist between Officer Browning’s and Breland’s testimony, they were merely credibility and reliability issues for the jury to resolve. So we are not swayed by his argument that the nurse’s testimony rendered the earlier testimony concerning Brown’s dying declaration inadmissible.

1. Admission Under Mississippi Rule of Evidence 801(b)(2)

¶ 25. We review evidentiary rulings for abuse of discretion, acknowledging that the trial judge “enjoys a great deal of discretion” regarding the admissibility of evidence. Gore v. State, 37 So.3d 1178, 1183 (¶ 13) (Miss.2010) (citation omitted). The trial judge admitted testimony about Brown’s nodding in response to Officer Browning’s questions based on Mississippi Rule of Evidence 804(b)(2). This eviden-tiary rule allows the admission of hearsay statements made “under belief of impending death” in homicide prosecutions. M.R.E. 804(b)(2). To determine whether the statements were properly admitted requires a review of basic hearsay law.

¶ 26. Under Rule 801(a), Brown’s responsive nods to Officer Browning’s questions were “statements.” M.R.E. 801(a) (defining “statement” as including “nonverbal conduct of a person, if it is intended by the person as an assertion”). And these “statements” were indeed “hearsay” because they were offered to prove the truth of what Brown had asserted — that Grindle was the shooter. M.R.E. 801(c) (defining “hearsay” as an out-of-court statement offered to prove the truth of the matter asserted). Though Rule 802 instructs that “[hjearsay is not admissible except as provided by law[,]” Rule 804 provides several exceptions when the de-clarant is “unavailable.” M.R.E. 802, 804.

¶ 27. Since Brown died shortly after making the statements, he was no doubt “unavailable.” M.R.E. 804(a)(4). So Rule 804(b)(2) authorized the judge to admit “in [Grindle’s] prosecution for homicide ..., a statement made by [Brown] while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.” M.R.E. 804(b)(2).

a. Rule 80Jp(b)(2)’s Purpose and Common Law

¶ 28. The purpose behind Rule 804(b)(2) was to codify the long-standing, “firmly rooted hearsay exception” for “dying declarations.” Ellis v. State, 558 So.2d 826, 829 (Miss.1990)); see also M.R.E. 804(b)(2) cmt. “[T]he dying declaration exception found its traditional justification in the once near universal view that no man would meet his maker with a lie on his lips.” Ellis, 558 So.2d at 829. Though “[w]e live in more secular times, ... [t]here remains a broad social consensus that dying declarations are generally reliable.” Id. Also, the more recently codified dying-declaration hearsay exception “is generally regarded as ‘less emphatic than in the common law cases[.]’” Id. 829-30 (quoting McCormick on Evidence, 829 (3d ed.1984)). And a leading legal treatise and the Mississippi Supreme Court have recognized that, after adoption of the rules of evidence, “ ‘perhaps a lesser showing would suffice’ than was required at common law” to secure admission of a dying declaration. Id.

b. Pre-Rules Cases

¶ 29. But Grindle harkens back to a number of pre-rules cases he claims impose common-law requirements grafted onto Rule 804(b)(2) — requirements he insists were not met when the judge ruled Brown’s dying declaration was admissible. After reviewing both pre — and post-evi-dentiary rules decisions on this issue, we do agree that there appears to be some carry-over from the common-law exception for dying declarations to the evidence-rules exception for statements under belief of impending death. See Ellis, 558 So.2d at 829-80 (applying common-law rule that belief of impending death may be proved by circumstantial evidence). In particular, the Mississippi Supreme Court has found three general common-law requirements for a dying declaration — (1) that “[t]he wounded person is in extremis and dies after making the statement,” (2) that “[t]he person realizes that he is mortally wounded,” and (3) that “[h]e has no hope of recovery” — must still be met to admit a statement under belief of impending death under Rule 804(b)(2). Morris v. State, 777 So.2d 16, 23-24 (¶28) (Miss.2000). But Grindle does not contest that the three requirements were met.

¶30. Indeed, Grindle concedes Brown was “in extremis” and did die. And Brown’s realization of his mortal wound and the fact that he had no hope of recovery may be inferred from the nature and extent of his gunshot wounds. See Ellis, 558 So.2d at 830; Moore v. State, 81 So.3d 1147, 1153 (¶ 22) (Miss.Ct.App.2011). To rephrase in Rule 804(b)(2) terms, Grindle does not dispute that Brown’s “statements” were made “while believing that his death was imminent.” M.R.E. 804(b)(2). Since these statements “eon-cern[ed] the cause or circumstances of what he believed to be his impending death,” Brown’s nodding met all requirements of Rule 804(b)(2).

¶ 31. Yet Grindle still argues the trial judge abused his discretion in admitting Brown’s statements under Rule 804(b)(2). His chief complaint is not with the State meeting the three previously mentioned requirements. Rather, it is based on his recent appellate insistence that Brown was “medically unconscious” when Officer Browning interviewed him, thus rendering his purported statements inadmissible. As support, Grindle points to Breland’s later-given testimony and draws from pre-rules cases holding that “[t]o be admissible the declarations must come from one of sound mind.” Waits v. State, 492 So.2d 1281, 1288 (Miss.1986) (citing Walton v. State, 156 Miss. 499, 505, 126 So. 29, 31 (1930)). While we are hesitant to import an additional common-law requirement into Rule 804(b)(2), without instruction by the supreme court to do so, we note the issue of Brown’s consciousness level was indeed raised, explored, and at least implicitly ruled on at the pretrial motion in limine hearing.

¶ 32. Officer Browning was the only ■witness who testified at the hearing. And he was steadfast in his account that Brown was conscious and aware that Officer Browning was asking him questions. Officer Browning testified that the only reason Brown gave nonverbal responses was because he had a tube in his mouth. When Officer Browning asked Brown if knew who shot him, Brown “violently” responded “yes[.]” The officer explained that Brown “was trying to talk, but he had a trach. He was attempting — he even tried to pull it out at one point. They had to hold him down. He was shaking, yes, yes, yes, many times.”

¶ 33. When asked if Brown “was emphatic on knowing who shot him,” Officer Browning responded, ‘Yes, sir.” Officer Browning further explained that “between questions, [Brown] was completely — he was moving, but he wasn’t trying to answer anything. The only time he tried to respond to yes or no is when I asked him a question, at which time he again nodded yes, repeatedly.” From this, the judge held Brown’s statement was admissible as a dying declaration.

¶ 34. During cross-examination about Brown’s consciousness and the volition of his response, Officer Browning did not waiver. He consistently maintained Brown was indeed conscious, could hear and .understand his questions, and was using nonverbal movements to answer his questions. Thus, to the extent Rule 804(b)(2) may have codified the “sound mind” language from Watts, we find this requirement met.

¶ 35. Furthermore, Officer Browning’s trial testimony closely reflected his testimony from the pretrial hearing. Again, while according to the officer’s trial testimony, Brown was unable to speak, the officer believed Brown understood the questions and did not hesitate in responding. Officer Browning maintained that Brown “shook his head yes. He attempted to talk, but he was unable to.” And Brown nodded affirmatively “numerous times” when asked if Grindle was the shooter. As Officer Browning put it, Brown’s responses “were clear to me.”

¶ 36. We find these facts similar to those in Berry v. State, 611 So.2d 924, 925-27 (Miss.1992). In that case, a gunshot victim’s son testified that his father was unconscious when the son arrived to transport him to the hospital. Id. at 925. But according to the son, on them way to the hospital, the father regained consciousness just long enough to identify the shooter. Id. A doctor testified that upon arrival at the hospital the father was unconscious, with a blood-alcohol level of .30. The father never regained consciousness and died soon after. Id.

¶ 37. The question in Berry was whether the father had been “conscious of impending death” and, thus, met the requirements of Rule 804(b)(2). Berry, 611 So.2d at 927. Our supreme court found that based on the severity of the victim’s wounds and testimony from the victim’s son that his father regained consciousness just long enough to identify his shooter, it could be inferred that the father had been conscious of his impending death, making his identification of the shooter admissible under Rule 804(b)(2). Berry, 611 So.2d at 927. Similarly, here, based on Officer Browning’s testimony that Brown was conscious when asked if Grindle was the shooter, along with the severity of Brown’s gunshot wounds, it could be inferred Brown was conscious of his impending death, making his dying declaration admissible under Rule 804(b)(2).

2. Effect of Subsequent Evidence

¶ 38. We further find that Bre-land’s later-given testimony did not alter the admissibility of Brown’s dying declaration. Relying on admittedly “new testimony” presented after Officer Browning had already testified, Grindle suggests the judge should have known his previous ruling was erroneous and “immediately excluded [Officer] Browning’s testimony.” But there is an obvious timing problem with this argument.

¶ 39. As just discussed, the trial judge ruled that Brown’s dying declaration was admissible at the pretrial motion in limine hearing, during which Breland did not testify. Based on this ruling, Brown’s dying declaration was admitted during Officer Browning’s testimony, which was given before Breland took the stand. And after Breland testified, Grindle neither renewed his previous objection, made a new one, nor asked for an instruction limiting Officer Browning’s testimony. While Grindle did not need to renew his objection to preserve the review of the denial of his motion in limine, Goff v. State, 14 So.3d 625, 640 (¶ 46) (Miss.2009), Grindle did need to object to preserve the distinct, new error he claimed arose at trial, based on Breland’s testimony.

¶ 40. Grindle argues the trial judge erred by not changing course and reversing his previous evidentiary ruling and giving a limiting instruction. But Grindle cites no law that the judge had a duty to sua sponte “correct” a previous evidentiary ruling based on subsequent evidence not before the judge at the time of the ruling. And we decline to create or in any way impose such a duty in this case— especially when the later-given testimony merely challenged Officer Browning’s credibility and reliability, not the admissibility of Brown’s dying declaration.

¶ 41. Breland was the State’s witness, called to prove Officer Browning was in the emergency room questioning Brown before he died. On cross-examination, Grindle’s attorney explored the possibility that Brown had slipped into a coma and would have been unable to hear or have enough control over his movements to give a nonverbal response to Officer Browning’s questions. But Breland’s testimony was equivocal.

¶ 42. On redirect, she admitted it was also possible that Brown was conscious enough to respond. So contrary to Grin-dle’s characterization of Breland’s testimony, it did not necessarily prove Brown could not have made a dying declaration. Rather, it merely challenged the reliability of what Officer Browning testified happened in the emergency room.

¶ 43. To the extent Grindle now argues the trial judge erred by not giving a limiting instruction on the value of Officer Browning’s testimony in light of Breland’s testimony, we find this argument is waived as Grindle never requested such an instruction. Because Brown’s statements were introduced in conformity with a previous evidentiary ruling, we find no reversible error in the trial judge allowing his unchallenged evidentiary ruling to stand— a ruling we find was within his discretion.

B. Confrontation Clause

¶ 44. Grindle’s appellate counsel next asks for reversal based on another argument not raised at trial. He requests that we apply the plain-error doctrine and find Brown’s dying declaration violated his Sixth Amendment right to confrontation. Though this constitutional question was not preserved, the plain-error doctrine permits this court to consider an issue not properly raised if it affects a defendant’s “fundamental, substantive right.” Smith v. State, 986 So.2d 290, 294 (¶10) (Miss.2008) (citation omitted). Because a Confrontation Clause violation affects a fundamental, substantive right, the supreme court has reviewed unpreserved Confrontation Clause issues for plain error. E.g., Corbin v. State, 74 So.3d 333, 337 (¶¶ 10-11) (Miss.2011) (addressing Confrontation Clause argument, even though defendant failed to object at trial); Smith, 986 So.2d at 294 (¶ 10) (addressing Confrontation Clause violation even though not properly asserted as issue on appeal). However, after review, we find Grindle’s fundamental, substantive rights were not violated, because, since its inception, the right to confront one’s accuser has carved out an exception for dying declarations.

1. Confrontation and the Crawford Footnote

¶ 45. The Sixth Amendment of the United States Constitution, incorporated into the Fourteenth Amendment, guarantees the right of a criminal defendant to confront the witnesses against him. U.S. Const, amends. VI, XIV; see also Miss. Const, art. 3, § 26. Consequently, the United States Supreme Court has held that “testimonial” hearsay cannot be admitted against a criminal defendant unless the declarant is unavailable at trial and the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 46. In many cases it is difficult to discern whether a witness’s statement is “testimonial” or “nontestimonial.” But here, there is little dispute that Brown’s identification of the shooter was “testimonial” hearsay. It was made in response to Officer Browning’s questioning. And Officer Browning admitted the purpose of the interview was to get Brown’s statement while he was still alive — not “to meet the ongoing emergency.” Michigan v. Bryant, — U.S. -, -, 131 S.Ct. 1143, 1165, 179 L.Ed.2d 93 (2011). So at first blush, it appears that because Grindle had no opportunity to cross-examine Brown before he died, Crawford supports that Grindle’s Sixth Amendment confrontation right was violated by admitting Brown’s testimonial hearsay. But a closer examination of Crawford and its progeny suggests this is not necessarily so.

¶ 47. In a footnote in Crawford, the Supreme Court acknowledged there is authority that dying declarations — even testimonial ones — are excepted from the Sixth Amendment’s confrontation requirement. The Crawford Court specifically recognized: “The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are.” Crawford, 541 U.S. at 56 n. 6, 124 S.Ct. 1354 (emphasis added and internal citations omitted). But the Court sidestepped the question, reasoning, “We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.” Id.

¶ 48. Four years later, the Supreme Court elaborated on the Crawford footnote: “We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted. The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying.” Giles v. California, 554 U.S. 353, 358, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) (citing Crawford, 541 U.S. at 56 n. 6, 124 S.Ct. 1354).

¶ 49. And recently, in 2011, the Supreme Court again dealt with a dying declaration in context of the Confrontation Clause. Bryant, — U.S. -, 131 S.Ct. 1143, 179 L.Ed.2d 93. But as Justice Ginsburg noted in her dissent, the question whether the Sixth Amendment excepts dying declarations was not actually resolved, because it had been abandoned at the state level and was, therefore, not before the Supreme Court. Id. at 1177, 131 S.Ct. 1143 (Ginsburg, J., dissenting). Still, Justice Ginsburg added this “observation”:

In Crawford v. Washington ..., this Court noted that, in the law we inherited from England, there was a well-established exception to the confrontation requirement: The cloak protecting the accused against admission of out-of-court testimonial statements was removed for dying declarations. This historic exception, we recalled in Giles v. California ..., applied to statements made by a person about to die and aware that death was imminent. Were the issue properly tendered here, I would take up the question whether the exception for dying declarations survives our recent Confrontation Clause decisions.

Id. While the Bryant majority analyzed the dying declaration’s admissibility under the “testimonial” versus “nontestimonial” approach, Justice Ginsburg suggests the question whether dying declarations — even testimonial ones — violate the Confrontation Clause remains open for consideration.

¶ 50. Mississippi applied Bryant last year in Sanders v. State, 77 So.3d 484 (Miss.2012). But the hearsay exceptions at issue were “present-sense impression” and “excited utterance” — not dying declarations. Sanders v. State, 77 So.3d 497, 500 (¶ 9) (Miss.Ct.App.2011). So our state supreme court did not hold in Sanders that a hearsay statement admitted as a dying declaration is subject to testimonial-versus-nontestimonial analysis under Bryant.

¶ 51. Though neither the United States Supreme Court nor our state’s high court have spoken definitively on the matter, we are swayed by the United States Supreme Court’s commentary in Crawford and Giles that, were the matter properly before the Court, the exception would be held to apply. We are also persuaded, given the Mississippi Supreme Court’s adherence to the historical justifications and requirements for the admission of dying declarations, that were it to address the matter, it would find the historical exception for dying declarations is also an exception to the confrontation requirement in Mississippi’s constitution.

2. Other States’ Recognition of the Exception

¶ 52. Another convincing factor is that other states that have confronted the issue have reasoned that, because the dying-declaration exception existed when the Sixth Amendment was adopted, its application does not offend federal or similar state confrontation requirements.

¶ 53. The Supreme Court of California has held that, because the Confrontation Clause “ ‘is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding[,]’

... it follows that the common law pedigree of the exception for dying declarations poses no conflict with the Sixth Amendment.” People v. Monterroso, 34 Cal.4th 743, 22 Cal.Rptr.3d 1, 101 P.3d 956, 972 (2004) (quoting Crawford, 541 U.S. at 54, 124 S.Ct. 1354). And the Supreme Court of Wisconsin, in an opinion handed down after Bryant, found:

Given [Giles’s] recent acknowledgement of the dying declaration hearsay exception under the common law at the time of the founding and specifically the ratification of the Sixth Amendment, as well as the assertion of treatise writers such as Wigmore that the exception was not merely in existence but was centuries old by that point, the logic of Giles cannot support the conclusion that the hearsay exception afforded for dying declarations offends the constitution.

State v. Beauchamp, 333 Wis.2d 1, 796 N.W.2d 780, 792-93 (2011). See also Commonwealth v. Nesbitt, 452 Mass. 236, 892 N.E.2d 299, 311 (2008) (“Considering the Supreme Court’s guidance on the issue, we are reluctant to expand that right beyond the historical parameters indicated in Crawford.” (quoting People v. Gilmore, 356 Ill.App.3d 1023, 293 Ill.Dec. 323, 828 N.E.2d 293, 302 (2005))); People v. Clay, 88 A.D.3d 14, 26-27, 926 N.Y.S.2d 598 (N.Y.App.Div.2011) (“[W]e read Crawford to signify that the substance of the right of confrontation enshrined in the Constitution is informed by the contemporaneous understanding of that right at common law, and is not, instead, an abrogation of it.”); State v. Lewis, 235 S.W.3d 136, 148 (Tenn.2007) (“Because the admissibility of the dying declaration is also deeply entrenched in the legal history of this state, it is also our view that this single hearsay exception survives the mandate of Crawford regardless of its testimonial nature.”); Gardner v. State, 306 S.W.3d 274, 289 (Tex.Crim. App.2009) (“This exception to the hearsay-rule has been accepted under common-law tradition since before the drafting of the American Constitution.”); Satterwhite v. Commonwealth, 56 Va.App. 557, 695 S.E.2d 555, 559 (2010) (“[T]he admission of dying declarations as evidence[ ] is not repugnant to the bill of rights.” (quoting Hill v. Commonwealth, 43 Va. (2 Gratt.) 594, 608 (1845))).

¶ 54. In light of the fact that we are unaware of any federal or state court that has held the admission of a dying declaration offends a defendant’s constitutional right to confront his or her accuser, we too find the admission of Brown’s dying declaration did not violate Grindle’s Sixth Amendment right to confrontation.

II. Admission of Grindle’s Gun-Related Crime

¶ 55. Grindle next argues the trial judge reversibly erred by admitting Officer Brumfield’s testimony about Grindle’s separate arrest for possession of a stolen firearm. Grindle claims this evidence violated Mississippi Rules of Evidence 404(b) and 403. Under Rule 404(b), “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith,” though it may be admissible for other purposes. If a trial judge overrules a Rule 404(b) objection, finding the evidence of another crime or wrong admissible for one of these other purposes, the trial judge must also conduct a Rule 403 balancing test. This filtering analysis requires assessing whether the probative value of the evidence outweighs the danger of undue prejudice before evidence may be admitted. Watts v. State, 635 So.2d 1364, 1368 (Miss.1994).

¶ 56. Once again, Grindle did not object or in any way argue that the evidence of his subsequent arrest was being elicited in violation of Rule 404(b). So his Rule 404(b) argument is waived. See Ruben-stein v. State, 941 So.2d 735, 760 (¶ 87) (Miss.2006) (holding that failure to object to statements of prior bad acts barred argument on appeal that statements violated Rules 404(b) and 403, without conducting any plain-error analysis). And by not objecting under Rule 404(b), his right to a weighing of the evidence under Rule 403 and an instruction on the limited purpose of separate-crimes evidence was not invoked. See Rodgers v. State, 111 So.2d 673, 675-76 (¶ 8) (Miss.Ct.App.2000). Thus any resulting error was forfeited.

¶ 57. But Grindle’s waiver aside, we find no merit to his general Rule 404(b) argument. Nor do we agree with his more particular two-fold argument that it was the testimony about the specific crime— possession of a stolen firearm — and the fact it was also firearm related that made Officer Brumfield’s testimony more prejudicial than probative. As to this, we are mindful that Officer Brumfield only testified on direct that Grindle had been arrested and, when he was arrested, a .45-caliber pistol was recovered but did not match the murder weapon. And Grindle did not object to this testimony. It was Grindle’s attorney, not the State, that brought up the underlying reason for his arrest — that he allegedly possessed a stolen pistol. Because Grindle’s lawyer was the one who elicited the testimony, Grindle cannot argue now it was improperly introduced. See Rubenstein, 941 So.2d at 755 (¶¶ 52-53) (holding appellate argument that statement violated Rule 404(b) was improper because it was the defendant who elicited the statement at trial).

¶58. Despite Grindle’s opening the door to this evidence, his appellate counsel argues the trial judge, by not sua sponte striking the testimony about the allegedly stolen second pistol, failed in his duty to protect the “fundamental fairness” of Grindle’s trial. As support, he relies on Flowers v. State, 778 So.2d 809, 324 (V 48) (Miss.2000), a case where the defendant had filed a motion in limine to exclude evidence that he killed three other people before committing the murder for which he was being tried. In Flowers, the Mississippi Supreme Court found that the trial judge erred by admitting the evidence without conducting the required 403 balancing test triggered by the Rule 404(b) objection. Flowers, 773 So.2d at 324 (¶¶ 48-50). This error led to numerous references by multiple witnesses to the fact that the defendant had killed other people. Id. at 323 (¶¶ 44-45). And it was “the cumulative effect of the prosecutor’s pattern of repeatedly citing to the killing of the other three victims throughout the guilt phase proceedings [that led the court] to hold that [the defendant] was absolutely denied a fundamental right to a fair trial.” Id. at 325 (IT 52).

¶ 59. We find Officer Brumfield’s testimony hardly rises to the level of unfairness in Flowers. There was no pattern of testimony emphasizing other murders by Grindle. Instead, only one witness linked Grindle with the .45 caliber pistol found six months after the murder had been committed. And the witness acknowledged this particular pistol was not the one used to shoot Brown. Perhaps the reason Grin-dle’s trial attorney brought up the nature of the later gun-based arrest was to establish that the gun Grindle was later charged with possessing was not the weapon that killed Brown, a fact she may have reasonably deemed more helpful than hurtful to his defense. But we need not get hung on her intentions or defense strategy, since regardless of her motives, we find the admission of evidence of Grindle’s separate arrest — elicited by both the State and Grindle without objection — did not result in a fundamentally unfair trial. Thus, we find no plain error in its admission. See Starr, 997 So.2d at 266 (¶ 11).

III. Jury Instructions

¶ 60. Grindle next challenge the deliberate-design-murder instruction and presumption-of-malice instruction. Before addressing his arguments, we note there was no court reporter at the jury-instruction conference, so if Grindle’s counsel had made any objections to these instructions, they are not part of the record. But there is record evidence that the State and Grin-dle agreed that the jury not be instructed on the lesser-included crime of manslaughter. Thus, essentially, each side took an all-or-nothing approach — either Grindle committed deliberate-design murder or no crime at all.

¶ 61. Because the duty to create a record lies with Grindle, we find he waived challenges to the substantive murder instruction and presumption-of-malice instruction. Neal v. State, 15 So.3d 388, 397 (¶ 13) (Miss.2009) (“This Court has held on numerous occasions that an offended party’s failure to object to jury instructions at trial procedurally bars the issue on appeal.” (quoting Smith v. State, 835 So.2d 927, 939 (¶ 34) (Miss.2002))). So once more we resort to plain-error analysis.

A. Deliberate-Design-Murder Instruction

¶ 62. Jury Instruction 5, the deliberate-design-murder instruction, informed the jury that to find Grindle guilty of murder, it had to find beyond a reasonable doubt that:

1) Charles Brown was a living person; and
2) On or about November 6, 2010, in Marion County, Mississippi, the defendant, Brandon Grindle a/[k]/a “Bam” did kill Charles Brown with a firearm;
3) With deliberate design and malice aforethought;
4) Without authority of law; and
5) Not in necessary self-defense.

See Miss.Code Ann. § 97-3-19(l)(a) (listing elements of deliberate-design, or “first-degree,” murder).

¶ 63. After reviewing this instruction, we find it contained all required elements of the crime. Therefore, we need not contemplate whether Grindle’s substantive rights were affected by giving this instruction.

B. Presumption-of-Malice Instruction

¶ 64. Grindle’s chief instruction-based complaint is that Jury Instruction 6 negated Jury Instruction 5’s requirement that the jury find Grindle killed Brown with malice. Jury Instruction 6 was an “inference-of-malice” or “presumption-of-malice” instruction. See Carter v. State, 493 So.2d 327, 330 (Miss.1986). It informed the jury “that if wounds are inflicted upon a person with a deadly weapon in a manner calculated to destroy life or inflict great bodily harm then intent or purpose to kill may be inferred from the use of the weapon.” Under Mississippi law, malice is “a necessary element of murder but not of manslaughter[J” Anderson v. State, 79 So.3d 501, 507 (¶ 24) (Miss.2012) (emphasis added). And malice “may be inferred from the use of a deadly weapon.” Id.

¶ 65. But “[w]hen all the evidence in a case has been adduced, the presumption, if any at the outset, disappears[,]” and the jury should “draw inferences from the evidence without the State bolstering its evidence” through a presumption instruction. Carter, 493 So.2d at 330. Thus, our supreme court has held that a request for a presumption-of-malice instruction “should be granted only where the evidence has failed to establish the circumstances surrounding use of the weapon. Where the facts have been set forth, even on conflicting testimony, the question of malice should be left for the consideration of the jury.” Id.

¶ 66. Grindle maintains the presumption-of-malice instruction was erroneously given because there was “direct,” versus merely “circumstantial,” evidence that Grindle used a deadly weapon to kill Brown. However, evidence establishing the “circumstances surrounding the use of the weapon” is not a reference to “non-circumstantial” evidence. Instead, “circumstances surrounding the use of the weapon” refers to “facts in evidence explain[ing] the character of the killing.” Dickins v. State, 208 Miss. 69, 93, 43 So.2d 366, 373 (1949).

¶ 67. We agree there was evidence that the “character” of the shooting was deliberate and malicious. On the day of the shooting, Grindle had supposedly been complaining about Brown and had been driving around with a gun. There was also testimony that when he drove past the unarmed Brown, he shot him twice. But while this evidence made the presumption-of-malice instruction unnecessary, it does not necessarily mandate reversal. Like the supreme court in Carter, we too find any error in the giving of the presumption instruction was harmless— particularly when considered in combination with the other instructions and in light of the fact that Grindle made no objection. See Carter, 493 So.2d at 330.

¶ 68. This is not a case like Tran v. State, 681 So.2d 514, 517-18 (Miss.1996). In that case, there was conflicting evidence surrounding the character of the killing. The jury heard several versions of the fatal shooting — including the defendant’s account that he only grabbed his gun after the victim pointed a gun at him and said “one of you are going to die.” Id. at 515. Thus, the instruction that the jury presume the defendant shot the victim with malice infringed on the jury’s role to sift through the contradictory evidence and resolve beyond a reasonable doubt whether the shooting was malicious or in self-defense. Id. at 518.

¶ 69. But here, there was no contradictory evidence about the character of the shooting. See Dickins, 208 Miss, at 93, 43 So.2d at 373. Grindle’s defense theory was misidentifieation — that he was not the shooter. He did not assert self-defense or present any evidence that competed with the State’s theory that the shooting was deliberate. So there was simply no conflicting evidence to support that the shooting was justified, necessary, coerced, or accidental. Because an inference of malice is supported by undisputed evidence of the malicious nature of the shooting, under these circumstances, the judge’s giving of an instruction based on this inference was, at most, harmless error.

IV. State’s Closing Argument

¶ 70. Grindle’s next appellate challenge involves another unpreserved issue, this time involving the State’s closing argument. While Grindle’s trial attorney did not find the State’s closing argument objectionable, Grindle now insists the judge erred in not sua sponte striking what he deems an impermissible “send-a-message” argument. On review, we find the State’s comments were not “so inflammatory” that the trial judge should have objected on the judge’s own motion. See O’Connor v. State, 120 So.3d 390, at 399 (¶ 23) (Miss.2013) (on rehearing).

¶ 71. State prosecutors may not “encourage juries to use their verdict to ‘send-a-message’ to the public or to other potential criminals.” Brown v. State, 986 So.2d 270, 275 (¶ 11) (Miss.2008). This is because “[t]he issue which each juror must resolve is not whether or not he or she wishes to ‘send a message’ but whether or not he or she believes that the evidence showed the defendant to be guilty of the crime charged.” Id. (quoting Williams v. State, 522 So.2d 201, 209 (Miss.1988)). Impermissible comments are those “which tend to cajole or coerce a jury to reach a verdict for the purpose of meeting public favor and not based on the evidence.” Spicer v. State, 921 So.2d 292, 318 (¶ 55) (Miss.2006) (modified by Brown, 986 So.2d at 286 (¶ 16), and partially abrogated by O’Connor, 120 So.3d at 400-01 (¶¶ 28-29)) (citation omitted).

¶ 72. When reviewing a send-the-message complaint, we begin with two threshold questions, followed by a two-prong test. O’Connor, 120 So.3d at 399 (¶ 23); Brown, 986 So.2d at 275-76 (¶ 13). The threshold questions are: (1) did defense counsel object, and (2) was the comment uninvited by the defense. Id. at 276 (¶¶ 13-14). But here, “[w]e need not proceed beyond the first threshold question[,]” since Grindle’s lawyer did not object to the comments. O’Connor, 120 So.3d at 399 (¶ 26). Still, even where there is no objection at trial, “we will review on appeal a claim that a prosecutor made an improper send-a-message argument ‘if the argument is so “inflammatory” that the trial judge should have objected on his own motion.’ ” Id. (quoting Spicer, 921 So.2d at 317 (¶ 52)). So we look to the particular comments.

¶ 73. During the State’s closing argument, the prosecutor told the jury:

My learned colleague said she is proud that we live in a country where a person is presumed innocent. I am too. I wouldn’t have it any other way. But I am also proud of the fact that what’s reasonable doubt in Florida may not be reasonable doubt here in good old Marion County, Mississippi. I’m proud of that more than anything. I’m proud that here in Marion County we can make our own, whether it’s reasonable doubt or not. And we can see the forest for the trees, is what I’m proud of. And when we’ve got an eyewitness that don’t have no reason or no motive to lie, who says — points the finger at this man right here and tells you that was him and I’ve known him and I know his vehicle and that was him and that’s not impeached, then that’s enough.... And I’m going to sit down. I’m going to let y’all go take y’all’s twelve good ears — y’all’s 24 good ears and twelve good minds and y’all look at all this and put it all back together, and you can come out and say, I don’t know what reasonable doubt is in California and Florida, but this ain’t reasonable doubt in Marion County.

(Emphasis added). Grindle argues the statements mentioning Florida and California were references to the Casey Anthony and O.J. Simpson trials. He claims the improper message the jury was invited to send was that, while Florida and California juries may misunderstand or have incorrect notions of what reasonable doubt is, Marion County, Mississippi juries should show they do not.

¶ 74. However, because Grindle’s attorney did not make a contemporaneous objection to the “Florida” and “California” references, this issue is procedurally barred. See id. For this court to reach the question of reversible error, we must find the argument was “so ‘inflammatory’ that the trial judge should have objected on his own motion.” Id.; see also Brown, 986 So.2d at 276 (¶ 13). While we find the prosecutor’s comments were perhaps ill-advised, they do not rise to the high level necessary for a trial judge to take it upon himself to interrupt and curtail a party’s argument.

¶ 75. Any references to Casey Anthony or O.J. Simpson, if indeed that was the prosecutor’s intent, were minimal in the overall context of the State’s closing. And several courts that have considered references to O.J. Simpson’s trial have deemed the comments harmless. Furthermore, the judge properly instructed the jury that attorney arguments are not evidence — an instruction we must presume the jury followed. Johnson v. State, 475 So.2d 1186, 1142 (Miss.1985).

¶ 76. But even if we were to go past the threshold inquiries and apply the two-prong test, there is no reversible error because Grindle cannot show prejudice. Under this two-prong test, for the remarks to rise to the level of reversible error: (1) the remarks must have been improper, and (2) the improper remarks must have prejudicially affected the defendant’s rights. Brown, 986 So.2d at 286 (¶ 15). Prejudice is lacking when it is “clear beyond a reasonable doubt that, absent the prosecutor’s inappropriate comments, the jury would have found the defendant guilty.” Id. (citation omitted). And based on the overwhelming evidence of Grindle’s guilt, we are confident that without these now-complained-of comments, the jury would have still found Grindle guilty.

V. Ineffective Assistance of Counsel

¶ 77. Grindle’s final argument shifts focus from the trial judge to his trial counsel. He cites a variety of alleged deficiencies, mostly consisting of her silence on issues Grindle’s appellate lawyers now deem objectionable. Grindle argues, because of these inactions or omissions, she provided him constitutionally ineffective assistance. See U.S. Const, amends. VI, XIV. While we acknowledge the seriousness of his allegations, this court and our supreme court are generally hesitant to address the merits of an ineffective-assistance claim on direct appeal. We typically do so only when: “(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.’ ” Jackson v. State, 73 So.3d 1176, 1181 (¶ 20) (Miss.Ct.App.2011) (quoting Colenburg v. State, 735 So.2d 1099,1101 (¶ 5) (Miss.Ct.App.1999)).

¶ 78. Here, the State does not stipulate the record is adequate for review. And even Grindle admits he raises several arguments not readily apparent from the record “out of caution.” So for us to address the merits of Grindle’s ineffective-assistance claim, we would have to find the record affirmatively shows “ineffectiveness of constitutional dimensions,” which we do not.

¶ 79. When considering ineffective assistance on direct appeal, “[t]he question presented is not whether trial counsel was or was not ineffective but whether the trial judge, as a matter of law, had a duty to declare a mistrial or to order a new trial[] sua sponte on the basis of trial counsel’s performance.” Id. (quoting Colenburg, 735 So.2d at 1102 (¶ 8)). Grin-dle argues his counsel’s deficient performance was affirmatively shown by her failure to preserve as error the issues he has raised in his appeal. However, from our review, it appears many of his trial attorney’s decisions were calculated. So we cannot confidently say the trial judge had a duty to sua sponte declare a mistrial.

¶ 80. We have held that a defense attorney’s “choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy and will not stand as support for an ineffective assistance of counsel claim.” Id. at 1181-82 (¶ 22) (quoting Hancock v. State, 964 So.2d 1167, 1175 (¶ 18) (Miss.Ct.App.2007)). This deference to legal strategy is somewhat akin to the instruction appellate courts have been given to “strongly presume that counsel’s conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. In other words, defense counsel is presumed competent.” Liddell v. State, 7 So.3d 217, 219-20 (¶ 6) (Miss.2009) (quoting Bennett v. State, 990 So.2d 155, 158 (¶ 9) (Miss.2008)). Here, we find nothing to overcome this presumption, but admittedly, the record is not as developed as it would be in a post-conviction-relief proceeding.

¶ 81. Instead, we find Grindle’s claim more appropriate for a motion for post-conviction relief, where the record regarding counsel’s performance may be fully developed. We thus deny Grindle’s claim without prejudice, preserving his right to raise the issue of his trial counsel’s performance in a post-conviction-relief proceeding.

¶ 82. Because we find none of the alleged errors, nor any combination of them, require reversal, we affirm.

¶ 83. THE JUDGMENT OF THE MARION COUNTY CIRCUIT COURT OF CONVICTION OF DELIBERATE-DESIGN MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A FINE OF $2,500 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MARION COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

      . The Glasgow Coma Scale is a neurological scale used by medical professionals to gauge a patient’s level of consciousness.

      . At trial, Grindle was represented by Eleanor Faye Peterson. Following the denial of Grin-dle's post-trial motion, Peterson sought on behalf of Grindle in forma pauperis status and court-appointed appellate counsel, which the trial court granted. While the trial court initially appointed George Holmes of the Office of Indigent Appeals to represent Grindle on appeal, this court granted Holmes’s motion to withdraw and substitute Merrida Coxwell and Charles Richard Mullens as Grindle's appellate counsel.

      . The exception does not apply to non-homicide criminal cases. But it does apply to all civil cases. M.R.E. 804(b)(2).

      . Grindle also challenges the admission of evidence that his parents had been arrested for not turning Grindle in to the authorities. Grindle had sought to exclude this evidence as irrelevant. The trial judge permitted the admission of this evidence, so long as it was made clear to the jury that Grindle had voluntarily turned himself in. On appeal, Grindle argues this evidence violated Mississippi Rules of Evidence 608 and 609. But those rules specifically apply to character evidence and impeachment of a “witness.” M.R.E. 608, 609. Grindle’s parents did not testify, so there can be no violation of Rules 608 and 609. Grindle also argues this evidence violated Rule 404(b). But evidence of the crime, wrong, or act — Grindle's parents’ arrest — was not admitted to prove Grindle’s parents "acted in conformity therewith.” Thus, there can also be no Rule 404(b) violation. See M.R.E. 404(b). And to the extent this evidence related to acts by Grindle, the trial judge restricted his ruling to evidence that Grindle turned himself in as soon as he learned authorities were looking for him. So there was no evidence of a "wrong” by Grindle admitted in violation of Rule 404(b).

      . In his initial brief, Grindle had also argued the trial judge’s giving of Jury Instruction 10, an instruction he requested, was plain error. But in its brief, the State pointed out the "familiar rule of law that one may not complain of his own instruction.” Caston v. State, 823 So.2d 473, 508 (¶ 121) (Miss.2002) (quoting Hall v. State, 420 So.2d 1381, 1386 (Miss.1982)). And in his reply brief, Grindle conceded this point and abandoned his challenge to Jury Instruction 10, instead arguing the request for this instruction goes to the issue of his counsel's performance.

      . In 2011, the State of Florida tried Casey Anthony for the murder of her two-year-old daughter, among other crimes. In 1994, the State of California tried Heisman Trophy winner O.J. Simpson for the murder of his wife and her friend. Both trials received national media attention, and both trials resulted in acquittals on the murder charges.

      . E.g., Perdomo v. State, 829 So.2d 280, 281 n. 1 (Fla.Dist.Ct.App.2002); People v. Evans, 209 I11.2d 194, 283 Ill.Dec. 651, 808 N.E.2d 939, 955-56 (2004); State v. Snyder, 750 So.2d 832, 845-46 (La. 1999); State v. Taylor, 650 N.W.2d 190, 207-08 (Minn.2002); State v. Thompson, 578 N.W.2d 734, 743 (Minn.1998); State v. Jones, 320 S.C. 555, 466 S.E.2d 733, 734 (S.C.Ct.App.1996)(all holding improper remarks in closing about O.J. Simpson were harmless errors not affecting the jury’s verdicts).