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
¶ 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
¶ 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”
¶ 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 dec
¶ 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,
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
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,
¶ 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,
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-
¶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,
¶ 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,
¶ 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.
¶ 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,
¶ 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,
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,
¶ 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,
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.
¶ 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. -, -,
¶ 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,
¶ 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,
¶ 49. And recently, in 2011, the Supreme Court again dealt with a dying declaration in context of the Confrontation Clause. Bryant, — U.S. -,
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
¶ 50. Mississippi applied Bryant last year in Sanders v. State,
¶ 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,
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,
¶ 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.
¶ 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,
¶ 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
¶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,
¶ 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,
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
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.
¶ 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,
¶ 66. Grindle maintains the presumption-of-malice instruction was erroneously
¶ 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,
¶ 68. This is not a case like Tran v. State,
¶ 69. But here, there was no contradictory evidence about the character of the shooting. See Dickins, 208 Miss, at 93,
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,
¶ 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,
¶ 72. When reviewing a send-the-message complaint, we begin with two threshold questions, followed by a two-prong test. O’Connor,
¶ 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.
¶ 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,
¶ 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,
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,
¶ 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,
¶ 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,
¶ 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.
Notes
. 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,
. 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,