IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-01491-COA GLEN JOSEPH DAVIS A/K/A GLEN DAVIS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/18/2015 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM W HICH APPEALED: HANCOCK COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 10/03/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON, WILSON AND GREENLEE, JJ. WILSON, J., FOR THE COURT: ¶1. A Hancock C ounty jury convicted G len Joseph D avis of m urder, and t he circuit court sentenced him as a habitual of f ender to lif

e in prison without e l igibility f or p arol e or early release. Davis’s appointed appellate counsel f iled a brief

pursuant to L indsey v. State , 939 So. 2d 743 (Miss. 2005 ) , c e r t i f y i n g that he had exam ined the record thoroughly and could identif y no arguable issues f

or a ppeal. Davis subsequently f iled a pro se brief in which he
argues, am ong other things, that his trial counsel provided inef f ective assistance by

f ailing

to disclose a witness, which resulted in t he e xclusion of the witness’s testim ony . W e address this i ssue and Davis’s other claim s below. Based on our independent review of the record,we c onclude that there are no issues that warrant reversal. Theref ore, w e af

f irm

. W e also conclude t hat Davis’s inef f ective a ssistance c laim cannot be decided on the record o n appeal. Theref ore, we dism iss that claim w ithout prejudice. He m a y raise such a claim in a properly f iled m otion f

or post-conviction relief

. FACTS AND PROCEDURAL HISTORY ¶2. On March 8, 2 012, eighty -three-y ear-old M aurice Colly was f ound dead in the trunk of his car in the garage o f his Bay S t. Louis h om e. Colly ’s wrists and ankles were b ound, his head was wrapped in a pillow c a s e , p l a s t ic bag, and painter’s cloth, and he had sustained blunt-f orce injuries to his f

ace, scalp, and shoulders. ¶3. Davis was identif

ied a s a suspect in t he hom icide. He was arrested in Michigan af ter the case was f

eatured on the television show America’s M ost W anted

. He was indicted f

or the m urder, and his case proceeded to a seven-day jury trial i n the Hancock County Circuit Court. Twenty -nine witnesses testif ied at trial, and over one hundred exhibits were adm itted into evidence. ¶4. W e begin by sum m a rizing the State’s case agains t D a v i s. W e then d iscuss Davis’s def ense. Through his o wn testim ony and o ther evidence, Davis attem pted t o of

f er an innocent explanation f

o r the circum stantial evidence against him 1 and to s hif t s u s p icion to

1 A t th e ch arg e co n f

e ren ce, th e S tate in itially ag r eed t h at th is w as a circu m stan tial e v i d e n c e case. H o w ev er, th e S tate th en rev ersed its p o sitio n an d arg u ed th at so m e o f th e p h y sical an d D N A ev id en ce an d certain p o st-arrest statem en t s b y D av is c o n stitu ted “d irect ev id e n c e .” T h e trial j u d g e u ltim ately ru led f o r D av is o n th is issu e an d g ran ted circu m stan tial ev id e n c e in stru ctio n s. 2two other one-tim e suspects in the m urder, Otis Stewart and Carol Babb. The State’s Case ¶5. In M arch 2 0 1 2 , C olly o w ned and lived in a two-story building on S econd Street in downtown B ay St. Louis. Colly ’s residence, where he lived alone, occupi e d the entire second f loor of the b u i l ding. T he ground f l oor of the building consisted of three twobedroom apartm ents, which Colly rented to t enants, and a garage, which was connected by interior stairs to Colly ’s residence. The garage could not be accessed f rom any of the f

irstf loor apartm ents. Colly was eighty -three y ears old and a bachelor. His c losest l iving relative was his nephew, W ally , who lived in Atlanta. ¶6. On W ednesday , March 7, 2 012, around 11 a.m ., a f riend o f Colly ’s, Charlotte Tay lor, called the landline telephone at Colly ’s a partm ent. S om e one with a nasally voice answered, said that he did not f

e el l ike ta l k i n g , a n d h ung u p. Tay lor testif

ied that the p erson did not sound like C olly , but at that point she had no reason to do u b t t h a t i t w as Colly , and she thought that he m ight just b e sick and not f eeling well. Tay lor called Colly ’s p hone several

m ore tim es that day

with no answer. ¶7. Colly s till did n o t a nswer when Tay lor called again the next m orning (March 8), so she drove to his hom e to check on him

. No one answered when sh e k n o cked on the door around 10:30 a .m ., so she talked to one of Colly ’s neighbors and then called Colly ’s nephew,
W a lly

. W ally suggested that she call Colly ’s cell phone, which, a ccording to Tay lor, Colly rarely used. Tay l o r w a s surprised when “a strange voice a nswered” Colly ’ s phone. The

3person said, “we’re g oing a f ter t h e plants,” and then hung up. Tay lor thought that “the plants” m ight have b een a ref erence to som e landscaping that Colly h ad planned f or his y ard. However, by this point, she and the neighbor w ere very concerned and soon called the police. ¶8. Of f icers f rom the Bay St. Louis Police Departm ent arrived and conducted a welf are check of C olly ’s hom e. Of f icer Scott Arm entrout recognized Colly ’s green Toy o ta Cam ry because it was the s am e car that he had seen parked at a nearby library at 6:30 p.m . the night bef ore. A caller had reported t he car as “suspicious,” so Arm entrout had gone to the library

to i nvestigate. He f

ound the car backed into a parking s pot next to a garbage dum pster with its windows down and a dark-colored m ountain b i k e o n the backseat. Arm entrout did not do any thing else about the car that evening, but he noticed that it was still parked in the sam e place when he drove by the library around 3 a.m . W hen of f icers f o und the car p arked in Colly ’s garage, its windows were up and the bicy cle was gone. ¶9. Of f icers also noticed that a display case in Colly ’s l iving room was em pty

. Tay lor told them that Colly kept a collection of plates depicting the Ten C om m andm ents in t he c ase. She later testif ied t hat Colly was very proud of the p lates and never would have g iven t hem away . ¶10. The police eventually d iscovered Colly ’s body i n the trunk of h is car. C o lly ’s wrists and ankles were bound, his head was wrapped in a pillow case, plastic bag, a n d pa i n t e r ’s cloth, a nd he had sustained blunt-f orce injuries to his f

ace, scalp, and shoulders. A n autopsy determ ined that the causes of death were those injuries and asphy xiation. The s t ate m edical

exam iner t e s t i f

i ed that autopsy f

i ndings suggested that Colly died about f orty

- eight hours

4bef

ore his body was f

ound—i.e., on or about March 6, 2012—although t he m edical exam iner stated that this estim a te was “not exact.” ¶11. During their investigation, police determ ined that C olly had spoken to an em ploy ee
at a doctor’s of

f ice on the m orning of Monday , M arch 5. The em p loy ee called Colly to conf irm h i s appointm ent f

or the next day

. She knew Colly and was f a m iliar with his voice, and she was certain that she spoke with him that m orning. In addition, records f rom Hancock Bank show that a deposit was m ade in Colly ’s bank account that m o rning. ¶12. Colly did n ot show up at his doctor’s appointm ent a t 10:00 a.m . on Tuesday , March 6. An em ploy ee of Hancock Bank testif ied that the bank received two phone calls requesting increases on the lim its on Colly ’s ATM card. These calls were m ade on March 5 and March 6, although the record does not establish what tim es on those dates the calls were m ade. ¶13. Police obtained C olly ’s bank records and reviewed transactions around t he t im e of his death and af

ter his death. O n March 6, at 1 0:12 a.m ., 10:13 a.m ., and 10:14 a.m ., som eone used the drive-thru ATM at Hancock Bank in Bay St. Louis to m ake successive withdrawals of $500, $500, a nd $400 f r om Colly ’ s account. Video and still photos f rom a c a m era at the bank show t hat the person was driving a car like Colly ’s li g h t green T oy ota Cam ry . The driver appeared to be wearing a blue shirt with a white f loral design and p ossibly a Panam a Jack-sty le hat, but the car’s sun visor was positioned so as to obscure the driver’s f ace. At 10:21 a .m . and 1 0:22 a.m ., s om e one attem pted to u se Colly ’s Keesler F ederal Credit Union
ATM card to m ake a withdrawal at Hancock Bank. And at 10:29 a.m . , s om eone attem pted

5to use Colly ’s K eesler card at an ATM at the People’s Bank in Bay St. Louis. T he attem pts
to use the Keesler card were all unsuccessf ul. Photos taken at t he People’s Bank appear to show t he sam e car, but the sun visor was again positioned s o as to obscure the driver’s f ace. As discussed i n m ore detail b elow, C olly ’ s Hancock Bank c a rd was used once m ore on March 9, 2012, at 2:37 a.m ., to withdraw $400 f rom a drive-thru ATM in Gulf p ort. Video showed a dif

f e rent car, a silver Honda A ccord. The car’s sun visor w as again positioned to obscure the driver’s f

ace. ¶14. A f t e r C o l l y ’ s b o dy was discovered, the police and the Mis s i s s i p p i B u r e a u o f
I nvestigation collected v arious evidence f rom the garage and residence, which we wi l l discuss below. The police then turned the hom e over to W ally and his wif

e, Carol. W ally later noticed that a rectangular hole had b ee n c u t i n t he bottom of the exterior door t o a storage room that was c onnected to Colly ’s g arage. The c ut-out piece had been taped back into the d oor f

rom the inside. W ally showed t he h ole to Detective G ary H udgens of the Bay St. Louis Police Departm ent, a nd they f o und a cigarette butt in the storage room about three f eet f rom the hole. Hudgens suspected that the hole was the m u rderer’s point of

entry into Colly ’s hom e. ¶15. In late April, in t he course of cleaning Colly ’s h om e, C arol f ound a plastic Km art bag behind the living room sof a. The bag contained m edical t ape, ace bandages, one blue glove, and gauze. The bag a lso contained a receipt showing a purchase o f me d i cal tape and bandages at 6:25 p.m . on March 7 , 2012, at the Km art on H ighway 90 in W aveland. Carol

6knew t hat Colly was dead by M arch 7, so s h e a nd W ally turned t h e b a g over to Detective

Hudgens. Detective Hudgens collected the bag and its contents as evidence, along with som e cleaning rags, Ly s ol, and m ineral spirits that were f o und near the b ag. W a lly and Carol also f ound an e m

pty package f

or a salt-and-pepper wig i n the living room , which t hey also turned over to police. ¶16. Km art provided video f ootage of the transaction r ef lected in the receipt, and on April 27, 2012, the police released the video to the m edia, d escribing the custom er as a person of interest in Colly ’s m

urder. The sam e day , m

ultiple callers to Crim e Stoppers identif ied Davis

as the custom er in the video. The cashier then identif ied Davis in a photo lineup. At trial, she testif ied that Davis seem ed “nervous” while m a k ing the purchase. ¶17. At trial, f

our wom en—Jo, Jodi, Rene, and Lori—who m et Davis on a dating website ( “ P l enty o f Fish”) t estif

ied about his whereabouts and actions in March and Apr i l 2 0 1 2 , beginning around the tim e of t he m urder. J o testif

ied that Davis called her a round 9 p.m . on Monday , March 5, 2012, and asked her t o pick h im up at an E x x o n s t a tion o n N icholson Avenue in W aveland. Jo picked up Davis, a nd they went back to h er house in W aveland and then to a c asino. According to J o , t h e y l e f t the c asino and r eturned to h er house around

m idnight. She testif

ied that a round 2 a.m ., Davis borrowed her car t o go b uy beer. She said that w hen Davis returned to her house around 3 a . m ., she asked him w hy he h ad been gone so long, and he said that he had been talking to a f riend. Jo then went to bed alone. ¶18. Jo testif

ied that s he next s aw Davis f or “a brief period of tim e” around 8 or 9 a.m . on

7March 6. 2 Jo did not see Davis again until she returned hom e f rom work at 11 p.m . that night. She testif

ied that Davis lef

t h er house at som e point tha t mo r n i ng, but she did not know when he l ef

t, where he went during the d ay , o r when h e r e t u r n e d t o h er house. As discussed above, som eone used Colly ’s ATM cards at banks in Bay St. Louis beginning at 10:12 a.m . that m orning. D avis’s cell phone records, which were adm itted i nto evidence without objection, show that his c ell phone utilized the Perniciaro Lane cell tower, which is near downtown Bay

St. Louis, at 1:41 p.m . that af ternoon. ¶19. Davis s pent the night at Jo’s house again on March 6, but at trial Jo c o uld not recall what tim e of day he l e f

t on March 7 o r any

t hing else that occurred on March 7. The State presented no direct evidence of Davis’s whe r e a b o u t s during the d ay on March 7 until he

m ade the above-discussed purchase at the Km art in W aveland at 6:25 p.m

. Also, as noted above, Of f icer Arm entrout testif

ied t hat Colly ’s car was parked w ith its windows down and a bicy cle in the b a ckseat at the library in Bay S t. Louis f rom som etim e bef

ore 6:30 p.m . on March 7 until at least 3 a.m

. on March 8. ¶20. Around noon o n March 8, Davis m ade a s eries of p hone calls to taxi services. His cell phone utilized the Marti Street tower in downtown Bay St. Louis f or those c alls. Around 4
p.m ., his cell phone utilized a cell tower in Biloxi, and around 6 p.m ., his cell phone utilized cell to w e r s i n S a u c i er and Gulf port. Jodi testif

ied t hat on March 8 Davis t exted her throughout t he day asking her to m eet him f or a drink t hat e vening. He continued to text her

2 O n cro ss-ex am in atio n , Jo said th at sh e d ran k co f f ee w it h D a v i s o n h er p o rch , p o ssib ly u n til 1 0 :3 0 o r 1 1 a.m . 8af

ter she got hom e f

rom work, s o she f

inally ag r eed to m eet h im b etween 7 and 8 p.m . at Michael’s, a bar on Highway 49 in Gulf

port. ¶21. Jodi testif

ied that when she m et Davis a t Michael’s, “ [ h]e was dressed a little dif f erent f rom his norm .” H e was wearing what she considered to be “an older gentlem an’s shirt and

an older gentlem a n’s hat that he wouldn’t ty p ically wear.” She “ picked on him about” his clothes, and “he got a little bit of f ended.” Af

ter they had one drink at Michael’s, Davis asked her to take h i m t o W a l m art to buy new clothes, and he bought a t-shirt a nd a baseball cap. Next, they

went to the Day s Inn on Highway 49 in Gulf

port. Davis asked Jodi to go to the f ront desk to g et the room , but he ga v e h e r c a s h t o p a y f or it. D a v is changed into his new clothes, and around 9:30 or 10 p.m ., they went to the Island View casino in Gulf port. Davis bought drinks f

or Jodi, and she t estif

ied that D avis “had m ore m o ney than he’d ever h a d [ when they

had] gone out.” Davis and Jodi were at the Island View f or about two hours. ¶22. From the Island View, Davis and Jodi went to Nate’s Sports Bar on Highway 49 in Gulf port. At trial, Davis adm itted that while he and Jodi were at Nate’s, he lef t brief ly in her

car and drove to a nearby bank. At 2:37 a.m ., he u sed Colly ’s ATM card to withdraw $400. The w ithdrawal was recorded on the bank’s video cam era. Jodi did not know that Davis lef t the bar and did not give h im perm ission to use her car. Jodi explained t hat they m et several of her f riends at Nate’s, and she did not keep track o f D avis the entire tim e they were there. She testif ied t hat she and Davis lef

t Nate’s together around 3 a . m . on March 9 and returned to the Day s Inn.

9¶23. The S tate did not present any f urther t estim o ny a

bout where Davis went o r what he did on M arch 9, 2012. Davis’s cell phone records s uggest that he was in G ulf port, as there

were a num

ber of calls placed f

rom his phone between noon a nd 6:20 p.m . t hat utilized Gulf port cell towers. ¶24. On the af

ternoon of March 10, 2012, D avis and Rene drove to New O rleans in Rene’s

car. Rene testif

ied that Davis did not h ave a car of his own at the tim e, so he relied on his bicy cle, which was a dark color, or others f o r t ransportation. Davis and Rene stay e d in New Orleans only

a brief tim e and returned to her house in Ocean Springs the sam e day

. ¶25. A t s o me p o i nt in March 2012, Davis brought a num ber of silver-plated dishe s , a n

ornam ental knif

e, a p e wter subm arine, and other i tem s to Rene’s house. 3 Rene h elped polish

som e of the item s. D avis told her that he had inherited the i tem s f rom his grandf

ather, and he lef t them at her house. However, W ally testif ied that the item s belonged to Colly

. ¶26. Around March 26 or 27, 2012, Davis called Lori a n d t o l d h e r t h a t h e w a s at her apartm ent in Ocean Springs a nd that he had som e things that he w anted to leave there. Lori agreed, and Davis lef

t a plastic s torage bin and two cardboard boxes outside her a partm ent. W h en she later m oved the b i n and boxes, Lori noticed t hat they contained ornam ental plates and a cry s tal vase, am ong other item s. At t rial, Lori identif ied t he p lates as Colly ’s prized
Ten Com m andm ents plates, and she identif ied the vase as one t hat W ally testif ied belonged to Colly

.

3 R en e co u ld n o t rem e m

b er w h en in M arch th is in cid en t o ccu rred

.

1 0¶27. As discussed above, on April 27, 2 012, police released the Km art v ideo to the m edia,

and Davis was identif

ied as t he c ustom er. The sam e day , D avis asked Jo if he could borrow her car to check on his f

ather, who he said was injured. Jo agreed b u t asked Davis not to keep the car long. Davis n ever r e t u rned Jo’s c ar or spoke to her again. D avis a lso called Lori a nd asked if he could r e t r ieve his s torage bin and boxes f rom her apartm ent. Lori testif i ed that Davis “was in a hurry ” when he cam e to her apartm ent and lef t quickly

. ¶28. Detective Hudgens learned that Davis had b een stay i ng at his f ather’s house in Kiln. Davis’s f a ther, Larry , consented to a search of Davis’s room , and Det e c t i ve Hudgens collected a pair of Asics tennis s hoes as evidence. 4 Jim m y Perdue, a f orensic scientist at the Mississippi Crim e Lab, determ ined that the shoes m atched three f ootprints ( one right and two lef t ) o n a large plastic sheet that was under Colly ’s body i n the trunk of h is car. Perdue testif i ed t hat the f

o otprints and the shoe were c onsistent w ith respect t o “phy sical s i ze, shape, outsole design, and som e general wear characteristics.” ¶29. In A ugust 2012, the United States Marshals S ervice r eceived inf orm ation that Davis

was in W alker, Michigan, a suburb o f G r a n d R a p ids, where Davis had once lived. Law enf orcem ent spotted D avis riding a bicy cle and arrested him af ter a short chase. At the t im e of his arrest, Davis was wearing a salt-and-pepper wig. ¶30. W h ile in jail in Michigan, D avis r eceived a call f rom a f riend ( “Sue”), which the local

4 In h is testim o n y at trial, D av is d en ied th at th e sh o es w ere h is. H o w ev er, H u d g en s testif i ed th at t h ey w ere f

o u n d in D av is’s ro o m an d th at L arry ack n o w led g ed th at th e sh o es w e re D av i s’s. 1 1sherif

f ’s departm ent recorded. Davis told Sue that he was “busted,” that he was “in som e hot water,” and that he was “not innocent.” Davis also com plained that “every

body d espised” Colly , but the m edia had “put him up on a pedestal.” ¶31. The l o c a l s h e r i f

f ’ s d e p a r t m ent learned that Davis had abandoned Jo’s car at an apartm ent com

plex i n the city of W y om ing, Michigan, a nother s uburb o f Grand R apids. The car’s Mississippi license plate had been replaced with stolen Michigan plates. C olly ’s Ten Com m a ndm ents plates, his ornam ental knif e , and other property belonging to C o lly were all f ound hidden in the wheel well of the car. ¶32. T h e S t a t e ’ s c a s e - i n - c h ief also included expert t estim o ny regarding the f or e n s i c analy sis of several pieces of evidence collected at Colly ’s residence. First, Davis’s m iddle f ingerprint m atched one of t wo latent f in g e r p r i n t s taken f

r om the d river’s d oorhandle of Colly ’s car. Second, Davis’s DNA was on the cigarette that Detective Hudgens f ound in the storage r oom near the hole i n the door. Third, Davis’s DNA was on t he inside of a blue glove f ound in the Km art bag. Colly was e x cluded a s the source of other DNA f ound on the glove, and Davis and Colly were also e xcluded as sources of a sm all am o unt of blood on the glove, which was described as only a “weak indication of a presence of blood.” Fourth, two dif f erent persons’ D NA was f o un d o n t h e g auze and bandages f ound in the K

m art bag. Davis and h i s p atrilineal relatives could not be excluded as a source of som e of the DNA. C o l ly and his p a trilineal relatives could not be e x cluded as a source o f other D NA on th e

sam e gauze and bandages.

1 2¶33. Final l y , D etective H udgens also collected a shirt f r om Colly ’s closet with a pattern that a ppeared sim ilar to t he shirt w orn by the person captured on video using Colly ’s ATM card on M arch 6. Both Davis and Colly could not be excluded as c o ntributors of DNA f ound on and inside the shirt.
D avis’s Defense ¶34. W e begin discussion of Davis’s def ense w ith Davis’s o wn testim ony . D avis testif ied that he had k

nown Colly s ince 2007, that he did odd jobs f or him as a h andy

m an, and that he “considered him a f

riend.” In Novem

ber 2011, Davis and his f

ather, Larry , w ere doing som e work at a property next door t o Colly ’s hom e, and Colly of f ered to let Davis borrow a ladder. Colly t old Davis to m ove his (Colly ’s) car bef ore attem pting to r em ove the ladder f rom the
garage, s o Davis b acked the car onto the driveway a nd drove it b ack into the garage af ter he was f inished with the ladder. 5 ¶35. Davis t e stif

ied that he cut the hole in Colly ’s storage room d oor in February 2 012. He claim ed that Colly asked him to cut the hole because Colly was considering installing a vent in the door. D avis had ridden his bi c y c l e to Colly ’s hom e, so h e borrowed Colly ’s car to retrieve his Sawzall (a reciprocating saw) f r om h is storage unit. D a v is testif ied that he had driven Colly ’s car w ith Colly ’s perm ission on a n u mber of occasions. Af ter h e f inished cutting the hole, Davis used tape to replace the cut-out piece beca u s e Colly had not purchased a vent f

o r the door y et. Davis l ef t the Sawzall a t Colly ’s h o u s e, and at trial he

5 L arry sim ilarly testif

ied th at in N o v em

b er 2 0 1 1 h e an d D av is b o rro w ed C o lly ’s lad d e r an d D av is m o v ed C o lly ’ s car. 1 3pointed it out in a picture of Colly ’s garage. He also sm oked a cigarette that day , so he was

not surprised that a butt with his DNA on it was f ound in the storage room

. ¶36. Davis testif

i ed that t he sam e day he cut the hole i n the s t orage room door, Colly hired him to put up som e dry

wall and paint in Colly ’s residence and garage. Davis agreed to do the w ork f

or $480. C olly asked Davis to do the job between M arch 5 and March 1 2 because Colly planned to be out of

town that week. ¶37. Davis t estif

ied that he next stopped by Colly ’s h o u s e o n Saturday , March 3, 2012. Colly still did n o t have a vent f or t he door. Colly s aid that he would leave h is ATM card f or Davis in case Davis needed it to buy paint f or the j ob. Colly also lef

t a garage door opener in a planter outside of

the garage f

or Davis to use to access the garage and residence. ¶38. Davis next testif

ied about h is whereabouts o n Tuesday , March 6 , 2012. He woke up

at Jo’s house in W aveland around 8:30 or 9 a.m . He then had cof f ee w i th Jo, worked on her lawnm ower, and m owed her back y ard. Davis claim ed t hat h e did not leave Jo’s h ouse until Larry picked him up there around 12:30 p.m . Davis a n d Larry drove back to Larry ’s house in K iln, w h i c h w as where Davis prim arily lived a t the tim e. Davis t hen b orrowed Larry ’s truck to m eet Oliver Cuevas f or lunch in Bay

St. Louis. 6 ¶39. Davis picked up Cuevas at W alm art, where C uevas w o r k e d , a n d t hey ate lunch at KFC. Af ter lunch, Davis drove C uevas back to W alm art and dropped him of f a f ew m inutes

6 L arry sim ilarly testif

i ed th at h e p ick ed D a v is u p in Wav elan d o n M arch 6 an d th en allo w ed D av is to b o rro w h is tru ck . L arry n ev er p ro v id ed th is in f o rm atio n to th e p o lice. 1 4bef

ore 3 p.m . 7 Davis then went to pay his cell p hone bill and t o get a new driver’s license

to replace one that h e had lost. 8 Around 5 p.m ., Davis drove b ack to L arry ’s house in Kiln.
H e w a s a t Larry ’s house f or about an hour bef

ore he “ headed to Hattiesburg to s ee a gi r l ” (another wom an he m et on Plenty of Fish). Just as Davis was arriving in Hattiesburg around
7 o r 7:15 p.m ., t he w om an called to c ancel their date. Davis ate at W endy ’s, went to Hom e Depot, and then drove b ack to Jo’s house in W aveland. Davis arrived at Jo’s house around 10:30 or 10:45 p.m ., just bef ore Jo got hom e f

rom work around 11 p.m

. ¶40. Davis testif

ied that on March 7 he again w o ke up at Jo’s house a round 8:30 or 9 a.m

. and had cof

f ee with her. He then m owed her f ront y ard, washed Larry ’ s t ruck, and lef t about 12:30 p.m . He d

rove to h is storage unit f

or supplies to use at Colly ’s h ouse. W h ile he was
at the storage unit, he spilled a can of paint, and i t took him o ver an hour to clean up the

m ess. He then ate lunch at Subway

. “W hile [ Davis] was at Subway , a f riend [ (Liz)] texted and wanted som e c ough m edicine. So [ he] lef t to go look f

or s om e cough m edicine at CVS

or W algreens.” Liz was “very particular” about h er c ough m edicine—it had to be a specif ic brand, size, and f

lavor. Neither C VS nor Wa l g r e e n s h a d the right kind, s o Davis drove to Rouses Market in Diam ondhead, where he f inally f ound it. D avis then drove back to Larry ’s house in Kiln. He arrived at Larry ’s around 4 p.m . and then m owed Larry ’s y ard.

7 C u ev as sim ilarly testif

ied th at h e a te lu n ch w ith D av is a t K F C a n d w as w ith h im f ro m ap p r o x im ately 1 :4 5 p .m . to 2 :5 0 p .m . C u e v as n ev er p ro v id e d th is in f o rm atio n to th e p o lice.

8 D av is in t ro d u ced a p rin t o u t f ro m t h e D e p artm e n t o f P u b l i c S a f e t y w eb site t h at ap p ears to co n f

irm th at h e o b tain ed a n ew licen se o n M arch 6

. 1 5¶41. A f

t e r he m owed Larry ’s y ard, Davis drove back to Bay St. Louis and then went to Km art in W aveland, w here at 6:25 p.m . he m ade t h e purchase discussed above. Davis testif i ed that he bought bandages at K ma r t t o w r ap old shoulder and elbow injuries that bothered him when he painted. He also testif ied that the cashier asked him why he needed the bandages, and h e m ade a joke ref erencing a Seinfeld episode i n which the characters
Kram e r and Mickey g ot acting jobs portray ing illnesse s f o r m edical students to d iagnose. 9 According to Davis, the cashier did not get the joke. However, the cashier testif i ed that she did not r em em

ber him m aking a joke. Af ter leaving Km art, Davis went back to his storage unit f or m ore supplies and then drove to Colly ’s hom e to begin work. ¶42. Davis testif

i ed that w hen he arrived at Colly ’ s h om e around 7 p.m ., the door f rom the
garage to Colly ’s residence was open, lights were on upstairs, a n d he could hear a wom an’s voice and the television. Davis put on gloves and wrapped his elbow and shoulder to start work. But he decided to go upstairs f irst. W h en he did, h e saw a blonde wom an whom he had seen at Colly ’s hom e once bef ore. Davis introduced him s elf and told the wom an that he

was there to paint. A t the tim e, Davis did not know the wom an’s nam e, but at trial he identif ied her f rom a photograp h as Carol Babb. Davis f ound it “odd” t hat Babb was in Colly ’ s hom e when Colly was s u pposed to be o ut of town, and he f e lt that “ [ s]om ething wasn’t right.” Davis also saw a m an with B abb. At the tim e, Davis did not know the m an’s

nam e, but at trial he i d e n t i f i e d him f rom a photograph as O tis Stewart. Davis did not say

9 S ein feld : T h e B u rn i n g

(N B C T elev isio n b r o ad cast M ar. 1 9 , 1 9 8 8 )

.

1 6m

uch to either Babb or Stewart. The situation was “awkward,” s o Davis went out to the balcony to sm oke a cigare t t e a n d to decide what to do. Davis apparently lef t one of his gloves and his bandages in the Km art bag in the living room

. ¶43. W h ile h e was o n the balcony , Davis “heard a d oor slam ,” and h e thought that Stewart had departed. However, B abb was still inside. Af ter waiting o n t he balcony about twenty minutes, Davis decided t hat he should leave. He went back downstairs to the gara g e . H e took h i s c i garette butt with him , but he f orgot to pick up the Km a r t b ag. Davis took Colly ’s ATM card f

rom his Sawzall case, which was still in the garage. Davis testif i ed that he did

not have possession of the ATM card until he took it f rom the Sawzall c ase as he lef t Colly ’s house that evening. 1 0 Davis t hen closed the garage door and lef t in L a rry ’s truck. Davis took Liz’s cough m edicine to her at her house in Bay S t. Louis and then drove to Larry ’s house in Kiln. He arrived at Larry ’s house around 9 p.m . and spent the night there. ¶44. On March 8 , Davis asked Larry to drive him b ack to L iz’s house in Bay St. Louis, and Larry dropped him of

f there around noon. D avis testif ied that he needed to pick up “a shirt

or som ething” at Liz’s h ouse. He only spoke to Liz f or “[ t]wo m inutes,” as “[ s ]he was in her bed on her back.” He was at Liz’s house f or only f ive or ten m inutes bef

ore he began try ing

to call a t axi because he “was going out” and “needed a ride.” He e v entually f o und a taxi, and the driver took him

to the Island View. ¶45. Davis had lunch at the Island View. He texted Rene and a s ked her to m eet him

. She

10 D av is d en ied th at h e u sed th e card in th e m o rn in g o n M arch 6

. 1 7m et him at the Island View around 1:30 p.m . but could only stay until 3 p.m . Rene then gave

Davis a ride to the Hard Rock casino. Davis w as at the Hard Rock o nly about ten m inutes b e f o r e he called another taxi. Davis explained that h e was c arry ing his backpack, “wh i c h
goes where [ he] go[ es],” but “they don’t c heck bags” at the Hard Rock, so h e c o uld not stay f or c o cktails, a s he had planned. The taxi dropped D avis of f at W alm art on Highway 49, and he eventually

walked to a Mexican restaurant while he waited f or Jodi to get of

f of work. ¶46. Davis testif

ied that he m e t Jodi at Michael’s b ar, and his account of the evening was generally consistent with Jodi’s testim ony —i.e., they w ent to the Day s Inn, the Island View, Nate’s, and e ventually b a ck to the Day s Inn. See s upra ¶¶20-22. Unlike Jodi, Davis did not testif y t hat she took him to W alm art to buy n ew clothes. Davis acknowledged that while he and Jodi were at Nate’s, he lef t b rief ly in Jodi’s car and used C olly ’s A TM c a rd to withdraw $400 f rom an ATM. Davis considered this prepay m e n t f or the dry wall and painting job that he still intended to f

i nish at Colly ’s hom e. ¶47. According to Davis, Jodi lef t around 8 a.m . t he f

ollowing m orning (March 9), but he slept late. Af

t er he woke up, he went to the f r ont desk and paid cash f

or another n ight. “And that night, [ h e] did it all over again with another girl”—nam ely , Rene. Davis testif ied that he m et Rene around 9 p .m . at the Island View, and they stay ed there “f

or a f e w hours” and “then hit the rest o f the town.” He testif ied that he and Rene “stay ed up a ll night” together,
presum ably

returning to the Day s Inn at som e point. ¶48. Davis testif

i ed that the n ext day

—Saturday , Ma r c h 1 0

— h e a n d Rene drove to her

1 8house in Ocean Springs. Consistent with Rene’s testim ony , D a v is testif ied that he and Rene drove to New Orleans in the af ternoon but stay ed only a short tim e bef ore r eturning to Ocean Springs. 11 According to Davis, his f ather texted him w hile they were in New Orleans and told him t h a t C o l l y was dead. This “upset” Davis because Colly w a s his “f riend.” Davis spent the rest of

the weekend at Rene’s house. ¶49. The next week, Davis got a ne w p h o n e a n d q u i t u s i n g h i s o l d phone. He was “f reaking out” that h e would be accused of the m urder, but h e did n ot go to t he police to tell them about Babb and Stewart. As will be discussed i n m ore detail below, B abb and Stewart

were identif

ied as suspects in the m

urder, and f

or a t im e Davis thought “every t hing would get worked out.” From March 11 to April 27, Davis “picked up and carried on w ith [ his] lif e” and tried to act as though every thing was norm al. ¶50. Davis testif

ied that his f

ather or “som ebody ” texted him on April 27 and told him that he was on the news in connection with Colly ’s m urder. D avis c laim e d t hat he b orrowed Jo’s

car bef o re he learned that the police were looking f o r him

. He denied that he borrowed the

car w ith the intent “to f

lee.” He testif

ied that he f

led because he was w anted f or questioning and b e c a u s e h e “had som e things of [ Colly ’s],” i ncluding the Ten Com m a n dm e n ts plates. Davis claim ed that C olly had g i ven h im the plates and o ther item s. He denied t hat he stole

11 R en e d id n o t testif

y th at sh e m et D av i s at th e Islan d V iew o n M arch 8

. N o r d id sh e testif y th at sh e w en t to a casin o , “h it th e to w n ,” “ stay ed u p all n ig h t,” o r stay ed at th e D ay s In n w i th D av is o n M arch 9

- 1 0 , 2 0 1 2

. T h e S tate called R en e as a w itn e s s, an d o n cro ssex am in atio n D av is q u estio n e d h er ab o u t t h eir trip to N ew O r lean s o n th e af t ern o o n o f M arch 1 0

. H o w ev er, D av is d id n o t q u estio n h er ab o u t th e tim e t h e y alleg ed ly sp en t to g eth er o n M arch 8 , M arch 9 , o r th e m o rn in g o f M a rch 1 0

. 1 9any

thing f rom Colly

. Davis claim ed t hat other item s f ound in his car did not belong to Colly and that W ally

and Tay lor were m istaken or ly ing when they testif ied otherwise. ¶51. Davis f

led to Chattanooga, Tennessee, and then drove to Michi g a n , w h e re he had
grown up. At trial, Davis testif ied about the recorded phone conversation f rom the Michigan jail. H e claim ed t hat when he told “Sue” that he was “ n ot i nnocent,” h e m e ant only that he

“ t o o k a c ar” and “ lied to get t hat car.” Davis testif ied that he did not m

u rder Colly

. H e adm itted that his testim ony at trial was the f irst tim e that he had disclosed h is claim that he saw Stewart and Babb at Colly ’ s house the night of March 7, 2012. ¶52. In support o f his theory that Babb and/or Stewart m u rdered Colly , D avis called Sindi
R o g e r s a s a witness. Rogers m anaged the Manor House apartm ents, which were located behind Colly ’s r esidence and a partm ents. Babb and S tewart had separate apartm e nts at the
Manor House i n March 2012. Rogers testif i ed that Babb a nd Stewart broke their leases by

m oving out of the i r a p a r t m ents without notice in March 2012. She also testif ied that both Babb and Stewart lef

t b ehind personal property , including som e clothes and f urniture, and that Stewart ty

pically rode a bicy cle. ¶53. Davis also c alled Joe Kepf er, a f o r me r d e t e c t i v e w i t h t h e B a y S t. Louis Police Departm ent. Kepf

e r had been one of the lead investiga t o rs on the Colly m urder, but his

em ploy m ent was term inated early in the i nvestigation. Kepf er t estif ied that he was f

ired af ter h e w as accused of m aking f alse statem ents in connection with a pplications f

or s e a r c h warrants in this case. However, Kepf er denied m aking any f

alse statem ents.

2 0¶54. Kepf er initially considered Stewart and B abb the prim ary suspects i n t h e mu r d er. Kepf e r testif ied that the “ i n f

o r m a tion [ he] had was that [ Babb and Stewart] m oved out of their apartm ents without notice to th e a p a r t me n t m anager in the m iddle of the night” on March 7-8

. S t e w a r t and Babb were detained in Louisiana on charges of c redit card f raud,

a n d K epf er interviewed them in Louisiana. Kepf er and o ther of

f icers w orking th e c a s e eventually concluded t h a t Stewart and Babb were not involved in Colly ’s m u rder. Kepf

er

was not involved in or f

am iliar with the any p art of the investigation a f t e r h i s suspension f rom the police departm ent, which occurred about two weeks af ter the m urder. ¶55. One o f C olly ’s d ownstairs tenants, Latonja Ervin, also testif i ed as a def

ense witness. Ervin testif

ied that o n March 6, 2012, she was in f ront of the building about to leave f or work when s he saw Colly ’s car drive down the street and pull into Colly ’s g arage. She thoug ht that this occurred between 8:30 and 9 a.m ., but she was not positive a bout the exact tim e. Ervin testif

ied that the car pulled into the g arage f aster than norm al. She also testif ied that the driver was wearing a g reen coat and hat, his arm s were “ straight out and s tif f ,” and he did

not return her waive, w hich w as unusual. Ervin did n ot get a good look at the driver’s f ace,

so she w as unsure whether Colly was driving. Ervin also thought that she saw a “shadow” in the car like there could have been another person in the car, but she was not sure. ¶56. Davis attem

pted to call one other witness—Paula Jacobson—in support of h is theory that Babb and/or Stewart m u r d e r e d Colly

. However, as will be discussed in m ore detail below, the trial judge excluded Jacobson’s t estim ony because Davis f ailed to disclose her as

2 1a witness until well af ter the State had rested i ts case-in-chief

. Def ense counsel stated that his “only reason” f or calling Jacobson was that she would testif y that Babb knew Colly

. V erdict and Sentencing ¶57. The jury deliberated f or about two h ours a n d returned a verdict f inding Davis guilty of deliberate d e sign m

urder. The court sentenc e d D a v i s as a habitual o f f ender to lif

e im p risonm ent withou t t h e p o s sibility of parole or early release. Davis f iled a m otion f

or judgm ent notwithstanding the verdict or, in the alternative, a new trial. The t rial court denied the m otion, and Davis then f iled a tim ely

notice of appeal. ANALYSIS ¶58. D a v i s ’ s a p p o i n t e d a p p ellate counsel f iled a Lindsey brief

, certif y ing that he h a d

exam ined the record and had i dentif ied no a r guable issues f

o r a ppeal. See Lindsey , 939 So. 2d at 748 (¶18). Davis subsequently exercised his right to f

ile a supplem ental pro se brief

. His pro s e b rief m akes f

our argum ents: (1) that his a ppellate counsel provided inef f ective assistance; (2) that his trial counsel provided inef f ective assistance by f

ai l i n g to include Jacobson on his witness list and by not objecting to Detective Hudgens’s testim ony , which
D a v is alleges w as perjured; (3) that he “was deprived of a f a ir trial because of prosecutor

m isconduct,” i.e., the u s e o f H udgens’s allegedly perjured testim ony and allegedly “inf lam m a tory r em arks” during closing argum ent; a n d ( 4) that he “ w a s denied a f air trial because the trial judge f

ailed to address f

alse statem ents m ade by

Detective Hudgens.” ¶59. For clarity , we organize our discussion a s f o llows: First, we address t he exclusion o f

2 2Jacobson’s testim ony and Davis’s related inef f ective assistance claim

. Second, we address Davis’s various claim s that Detective Hudgens’s testim ony denied him a f air trial. Third, we address Davis’s claim that he w as prejudiced by “inf lam m a t ory rem arks” during c l o s i n g argum ent. Having “conducted an i n dependent and thorough review of the record,

. . . we conclude that there are no issues that warrant reversal.” Taylor v. State , 162 So. 3d 780, 787 (¶18) (Miss. 2015). W e dism iss Davis’s claim alleging inef f ective assistance of trial counsel without pre

j u d i ce. He m ay raise that issue in a p roperly f i led m otion f

or post-conviction relief

. Finally , o ur thorough review of t he re c o r d r e n d e r s m oot Davis’s claim that he received inef

f ective assistance of

appellate counsel. S

ee Johnson v
. State , 191 So. 3d 732, 737 (¶17) (Miss. Ct. App. 2015).
I. Ex c lusion of Jacobson’s Testim ony ¶60. Davis argues his trial counse l ’ s f a i l u r e t o disclose Jacobson as a witness, which resulted in t h e e x c l u sion of her testim ony , violated his constitutional right to the ef f ective

a s s i s t ance of counsel. W e f irst a ddress the trial judge’s ruling precluding Jacobson f rom testif y ing, and we f

ind n o abuse of discr e t i o n i n t h a t ruling. 12 W e t hen address Davis’s inef f ective assistance claim

.

12 We co n sid er th is issu e arg u ab le in lig h t o f recen t d ecisio n s o f t h e S u p rem e C o u rt an d th is C o u rt. S

ee O verto n v. S ta te , 195 So. 3d 715 ( Miss. 2016) (rev ersin g f o r a n ew trial af t e r f i n d i n g th at th e trial co u rt ab u sed its d iscretio n b y ex clu d in g a d ef en se w itn ess as a san cti o n f

o r a d isco v ery v io latio n ); Willa rd v. S ta te , 2 1 9 S o . 3 d 5 6 9 , 5 7 4 -7 6 (¶¶1 9 -2 9 ) (M iss. C t. A p p . 2 0 1 7 ) (sam e ). T h eref o re, p u rsu an t to L in d

sey , 9 3 9 S o . 2 d a t 7 4 8 (¶1 8 ), w e ad d ress th e issu e o n o u r o w n m o tio n . B ecau se th e law o n t h i s issu e is straig h tf o rw ard , w e co n clu d e th a t s u p p lem e n tal b rief in g is u n n ecessary . S

ee id

. (statin g th at th e ap p ellate co u rt sh o u ld o rd er su p p l em en tal b rief in g o n “an y a rg u ab le issu e ” “if th e circu m stan c es w arran t”).

2 3A. The Trial Judge’s Ruling

¶61. Af ter the State had rested and Davis’s f irst three witnesses had t estif ied, the trial judge becam e aware that Davis intended to call Jacobson a s a witness. One of the jurors knew Jacobson and had t alked to her while leaving the courthouse f or lunch. The j uror was surprised to learn that Jacobson was a witness, as she had not been identif ied as a potential witness d uring jury v o ir dire. The juror inf orm ed the court o f the issue, which the court then raised with the parties. 1 3 ¶62. Davis’s counsel represented that Jacobson would testif y that she lived at the Manor
House apartm ents in March 2012, that she knew Babb, and that Babb knew Colly

. Counsel also stated that Jacobson would testif y that Babb introduced her to Colly and that she “saw [ Babb] going over to [ Colly ’s] property s everal tim e s.” Counsel acknowledged that he had

not listed Jacobson as a potential witness even though f or “ several m onths” he had intended

to call her to testif

y . C o u n s el of

f ered two justif

i cations: F irst, Jacobson’s n am e was

m entioned in discovery provided t o Davis by the State, 14 and counsel “didn’t know that [ he] had to v et [ t he S tate’s] discovery f or t hem .” S econd, counsel characterized J a c obson a s a “rebuttal” witness, s tating that s he would rebut the State’s “position that t here was no link at all between . . . Colly

and Babb.”

13 T h e j u r o r w as d ism issed at th e S t ate’s req u est. D av is d id n o t o b j ect.

14 C o u n sel f

o r th e S tate in d icated th at B ab b m en tio n ed Jaco b so n in a p h o n e call t h at B a b b m ad e f ro m j ail, w h ich w as reco rd ed an d p ro d u ced t o th e d ef en se, an d i n a n i n terv iew w i th p o lice. T h e reco r d d o es n o t ref lect w h at B ab b said ab o u t Jaco b so n . 2 4¶63. Consistent with Unif orm Rule of Circuit and County C ourt Prac t i c e 9

. 0 4 ( I ) , 1 5 t he court granted t he State an opportunity to interview J acobson, af ter which the State argued that she should not be allowed t o t estif y . The S t a te acknowledged that exclusion was an “exceptional” reme dy ; however, the State argued it was an a p propriate rem edy because Davis’s violation of Rule 9.04 was “willf ul” and because the State did not have Babb under subpoena or know where she was. The trial judge agreed and ruled that Jacobson would not be allowed to testif

y . ¶64. T h e trial j udge’s ruling was not an abuse of discretion. 16 Rule 9.04 ( C ) ( 1 ) c l e a r l y required Davis to di s c l o s e the “ [ n]am es and addresses of all witnesses in chief which the def endant m ay of

f er a t t rial,” together with a copy of any written or recorded statem ent “and the s ubstance of any o ral statem e nts m ade by such witness.” URCCC 9.04(C)(1) (em phasis added). T he rule contains no exception f or a witness who is ref

erenced in m aterials that the State produced in discovery

. ¶65. Nor was Davis’s f ailure to disclose Jacobson j ustif iable on the theory that she was a

15 T h e req u irem en ts an d p r o ced u res o f f o r m er R u le 9 .0 4 , w h ich w as in ef f ect at th e tim e o f D av is’s trial, are n o w f o u n d in R u le 1 7 o f th e M ississip p i R u les o f C rim i n al P ro ced u re, w h ich w en t in t o ef f ect o n Ju ly 1 , 2 0 1 7

. 16 “T h e stan d ard ap p lied f o r ap p e llate rev iew o f a trial co u rt’s san ctio n f o r d isco v ery ab u ses is ‘ w h e th er th e trial co u r t ab u sed its d iscretio n in its d e cisio n .’” L ip sey v. S ta te , 5 0 S o . 3 d 3 4 1 , 3 4 6 (¶1 2 ) (M iss. C t. A p p . 2 0 1 0 ) (q u o tin g G ra y v. S t a te , 7 9 9 S o . 2 d 5 3 , 6 0 (¶2 6 ) (M iss. 2 0 0 1 )). “ U p o n w eig h i n g a ll relev an t f a cto rs in th e case, u n less th ere is clear erro r in j u d g m en t as to th e san ctio n s i m p o sed f o r v i o l a t i o n o f th e d isco v ery r u le, th is C o u rt w ill af f irm th e im p o sed san ctio n .” M

c G reg o ry v. S ta te , 9 7 9 S o . 2 d 1 2 , 1 7 (¶7 ) (M iss. C t. A p p . 2 0 0 8 ). 2 5“rebuttal” witness. A def ense witness is not a rebuttal witness just “because [ her t estim ony ] is given in answer t o s om e of the testim ony of f ered as part of the [ the State’s] case in chief .” Harris v. Gen. Host Corp. , 503 So. 2d 795, 797 (Miss. 1986). If that were the case, “there would be no basis in principle f or ever requiring the def

endant to d isclose i n advance the evidence [ he] w ould of

f er a t trial, f

or all such def

ense evidence i s in this s ense rebuttal.” Id. The Suprem e Court has “ef f ectively dispatched the ‘ rebuttal witness’ ruse f or n on-disclosure of w itnesses in the c ontext of crim inal c ases.” Id. ; see, e.g. , Coates v. State , 495 S o. 2d 464, 466 (Miss. 1986). H ere, D avis’s purpose i n calling Jacobson to testif y was to establish a link between Colly and B abb to support his theory o f the case: that Babb and Stewart m urdered Colly

. D avis planned f

or “several m onths” to call Jacobson as a witness in his case-in-chief

. Jacobson w as not a rebuttal witness, and Davis violated Rule 9.04(C)(1) b y f ailing to disclose her on his pretrial witness list. See Coates , 495 So. 2d at 466. ¶66. I n certain c ases, a trial c ourt has discretion to exclude a def ense witness who was not disclosed to the S tate prior to trial. “[ I]f ‘the om ission w as willf ul a nd m otivated by a desire

to obtain a t a c t i c a l a d

v a n t a g e t hat would m inim ize the ef f ectiveness of cross-exam i nation and the ability to adduce rebuttal evidence,’ it [ is] entirely appropriate to exclude the witness’[ s] testim o ny .” D e La Beckwith v
. State , 707 So. 2d 5 47, 575 (¶103) ( Miss. 1997) (quoting Taylor v
. Illinois , 484 U.S

. 4 0 0 , 4 1 5 ( 1 988)); accord Overton , 195 S o. 3d at 718 (¶10) (“[ T]he record m

ust contain evidence that the def endant com m itted a discovery violation to obtain a tactical advantage bef o re exclusion becom es the appropriate sanction.”).

2 6¶67. Here, t he record doe s c o n t a i n e vidence that the discovery violation was w illf ul and that the def

ense did not disclose Jacobson in order “to obtain a tactical advantage.” Def ense counsel understood that Jacobson’s testim ony would be a surprise to the State. He simp l y stated t h a t he did not think that he was required “to disclose the part of [ the State’s] investigation that [ t he State] didn’t do.” However, at l e a s t t o t h e extent of disclosing the

nam es of potential trial witnesses, that is what Rule 9.04 requires. Rule 9 .04(C)(1) plainly required Da v i s t o d isclose all potential witnesses, and the State w as entitled t o rely on his disclosures. Counsel acknowledge d t h a t he had planned to call Jacobson f or “several

m onths,” and his reasons f or not disclosing her as a witness are not supported by any objectively

reasonable interpretation of Rule 9.04. The record thus s upports a f inding that the violation was willf

ul and that exclusion was an appropriate rem edy

. ¶68. Moreover, as noted a bove, Jacob s o n w a s n o t d isclosed as a w itness until af ter the State had rested i ts case-in-chief and Davis’s def ense was well underway

. Indeed, Davis did

not disclose Jacobson at a ll—a juror brought the issue to the court’s attention. T h is extrem e delay in her disclosure provides f urther support f

or t he t rial court’s ruling. The State did not have Babb under subpoena and did not know where she was, m aking it im practical f

or the State t o i n v e s t igate Jacobson’s p roposed testim ony or prepare any rebuttal. Both the Suprem e Court and this C ourt h ave af f i rm e d the exclusion of

def ense witnesses who were k n o w n t o t he def

ense well bef

o re trial but were not disclosed until af ter the prosecutio n rested its case-in-chief

. See De La Beckwith , 707 So. 2d at 573-67 (¶¶95-106); Pelletier v.

2 7State , 207 So. 3d 1263, 1268-71 (¶¶24-33) (Miss

. C t

. A p p . 2016) (af f irm ing by an evenly divided Court), cert. granted , 204 So. 3d 2 9 1 , c e r t

. dismissed , 2014-CT-00869 (Jan. 19, 2017). ¶69. Finally , o n t h e p r e s e n t r e c o r d w e c a n n o t c o n c l ude that Jacobson’s exclusion prejudiced or harm e d Davis’s def ense. See, e.g. , W

ilson v. State , 156 So. 3d 808, 810 (¶5) (Miss. 2013) ( “A conviction will not be reversed based o n t h e i mp r oper exclusion of evidence unless the exclusion results in p r e j udice and harm .” (quotation m arks om itted)). Counsel represented t o the court only that Jacobson would t estif y that Babb knew Colly and walked “to his property ” on unspecif ied occasions. The record on appeal does not include
any other detail about J acobson’s proposed t estim ony . There is no indication in t he record

on appeal that her testim ony would have l inked B abb or Stewart to the m urder or provided
any m otive f

or e i t h e r of t hem t o have com m i tted the m urder. W e cannot s ay that the exclusion of

such lim ited testim ony

prejudiced or harm ed Davis’s def ense. B. Ineffective Assistance Claim ¶70. In his pr o s e b r i e f , D a v i s e s s entially concedes that his trial counsel com m itted a discovery violation when h e f ailed to disclose Jacobson as a wi t n e s s . H e argues that this

error constituted inef

f ective assistance of counsel and t hat he suf f e red prejudice b ecause the error resulted in the exclusion of Jacobson’s testim ony . ¶71. “The benchm ark f or judging a ny claim of inef f ectiveness m

ust be whether counsel’s conduct so underm i ned the proper f unctioning of the adversarial process that the t rial cannot

2 8be relied on as having produced a just r esult.” S t r i ckland v. W ashington , 466 U.S. 668 (1984). The def

endant m ust show both (1) “ that counsel’s perf orm ance was def

icient”—i.e., “that counsel m ade errors so serious t hat counsel w as not f u n c tioning as the ‘counsel’ guaranteed the de f

e n d a n t b y the Sixth Am endm e nt”— and (2) that he was prejudiced as a result—i.e., “that c ounsel’s errors were so serious as to deprive t he def endant of a f

air trial,

a trial whose result is reliable.” Id

. Stated dif f e r ently , “[ t]he def

endant m u st show that there is a reasonable p r obability that, but f or c o u n sel’s unprof

essional errors, the result of the proceeding w o u l d have been dif f erent.” I d. “A reasonable probability is a probability suf f i cient to underm i ne conf

idence in the outcom e.” Id. ¶72. “It is unusual f

or this Court to consider a c l a i m o f i n ef f e ctive a ssistance o f

counsel when the claim is m ade on direct appeal” b e c a u s e “ t h ere i s usually insuf f icient evidence

w i thin the record to evaluate t he claim

. ” McClendon v
. State , 152 So. 3d 1189, 1 1 9 1

- 9 2 (¶12) (Miss. Ct. App. 2014) (quoting Aguilar v. S tate , 847 So. 2d 8 71, 878 (¶17) (Miss. Ct. App. 2002)). Because an appellate court “is lim ited to t he t rial r ecord on direct appeal, issues of inef f ective assistance of counsel are m o r e appropriate i n a m otion f o r post-conviction relief

. ” Sandlin v. State , 1 56 S o. 3d 813 , 8 1 9 ( ¶ 2 0 ) ( Miss. 2013). W e m ay address i n ef f ective assistance claim s on direct appeal only if “the i ssues are based on f ac t s f u l l y apparent f rom the record,” id. , or the “parties stipulate that the record is adequate,” and we conclude t hat there i s no need f or the trial judge to m a ke additional f indings. Read v. State , 430 So. 2d 832, 841 (Miss. 1983). If the record on direct appeal is not suf f i cient to address

2 9the claim s, we will “dism iss the claim s without prejudice, preserving the def endant’s right

to raise the claim s later in a properly f iled m otion f

or post-conviction relief

.” Sandlin , 156 So. 3d at 819 (¶20). ¶73. In this case, the State does not s t i p u l a t e that the record on direct appeal is adequate

to address Davis’s claim , and we agree that the claim should be dism issed without prejudice

to D avis’s right to raise the issue in a properly f iled m otion f

o r post-conviction relief

. Even if t rial c o unsel’s f

ailure t o disclose Jacobson s atisf ies the f irst prong of

the Strickland test, the record on appeal does not dem onstrate that Davis w a s prejudiced as a result—i.e., t h at the error was “so s erious as to deprive [ D avis] of a f air trial, a trial whose result i s reliable.” Strickland , 466 U.S. a t 686. As discussed above, the o nly r epresentations in the r ecord are
t h a t J acobson would have testif ied that Babb knew Colly and w alked “to his property ” o n unspecif i ed occasions. For the sam e reasons discussed just a bove, we cannot s ay that the exclusion of such lim ited testim ony d eprived Davis of a f air trial. Theref

o re, o n the present record, Davis cannot satisf y the second prong of the Strickland test. And “[ i]f e ither prong is not m et, the claim f

ails.” Havard v. State , 928 So. 2d 771, 781 (¶8) (Miss. 2006). ¶74. W e recognize that Davis attached additional docum ents to his pro se a p pellate brief

, and h e argues that if Jacobson had been allowed to testif y , she c ould h ave established a f ar

m ore signif

i cant c onnection between Colly and Babb/Stewa rt. Am o ng other docum ents, Davis attaches what p urports to be a handwritten statem ent by Jac o b son, signed and dated October 21, 2016, which was six m onths af ter Davis’s appointed appellate counsel f iled a

3 0Linds e

y b rief

. The page p receding the statem ent is notarized and purports t o c onf irm that Jacobson signed the statem ent. ¶75. The pu r p o r t e d w r i t t e n statem ent f rom Jacobson m akes a num b er of claim s: Babb f requently went to Colly ’s hom e to clean f or him

. Babb said the job was “ easy m oney ” because it “never took her l o ng t o clean his house.” J acobson speculated that Babb was actually sleeping with Colly because she was n ever g one longer than “30-45 m i n. m ax” when she went to his hom e. B abb never told Stewart, her boy f riend, how m

uch m oney Colly actually pai d h e r b e c a u s e Stewart alway s took her m oney . Stewart pressured Babb to get

m ore m o ney f

rom Colly , and one night Babb and S tewart both went to Colly ’s hom e to “get her m oney h e owed her.” Stewart sold drugs i n hi s a p a r t me n t and constantly talked about

m oney . W hen Jacobson learned of Colly ’ s m urder, she told her m other t hat she thought that Stewart and Babb had killed him

. Babb called Jacobson a t work a f ew day s af

ter the m urder

to a sk whether “any one ha[ d] asked about her.” B abb then t old Jacobson, “[ I]f any one asks
any t hing about m e[ ,] y ou haven’t spoken to m e.” Jacobson subsequently l istened to an unspecif i ed phone call placed to a bank f rom som eone posing as Colly

. J acobson was “100% sure” that the c aller was S tewart. 17 Jacobson and Babb had been f r iends f or m any y ears, and Jacobson said she had no m o tive to im plicate Babb in a m

urder. ¶76. In addition to obvious hears a y a n d a u t h e n t icity issues, the docum ents attached to

17 It is u n clear w h o w o u ld h av e p lay ed th e reco r d in g f o r Jaco b so n . T h ere w as testim o n y at trial r eg ard in g t w o p h o n e calls to H an co ck B an k

. H o w ev er, n o ev id en ce w as p resen ted th at eith er call w as reco rd ed

. 3 1Davis’s brief are not part of t he record in t he circuit c ourt or the record on a ppeal. As noted,

som e of these docum ents were created while this a p peal has been p ending. The law is clear that such docum ents cannot be considered o n d ire c t a p p eal. See, e.g. , Harris v
. State , No. 2015-CA-01193-SCT, 2017 W L 58190, at *6 (¶30) (Miss. Jan. 5, 2017); Hampton v. State , 148 So. 3 d 992, 995-96 (¶¶6

- 8 ) ( M i s s . 2014); S tone v
. State , 94 So. 3d 1078, 1082 (¶11) (Miss. 2 012). Theref

ore, any claim of inef

f e ctive assistance based on the allegations and
argum ents in Davis’s p ro se b rief cannot be addressed o n direct appeal. We d i s mi s s this claim w ithout prejudice t o Davis’s ability to pursue the claim in a properly f iled m otion f

or post-conviction relief

. Sandlin , 156 So. 3d at 819 (¶20). 18
II. Detective Hudgens’s Testim ony ¶77. Davis claim s t hat Detective Hudgens gave f alse test i m o n y , a n d he argues that he is entitled to a new trial because h i s trial counsel f a iled to object to the testim ony a nd f ailed to take other steps to e xpose or rem edy the a l leged perjury ; becau s e t h e p rosecutors engaged in “m isconduct” b y m aking use of Hudgens’s testim ony ; and because the trial judge f ailed to address the alleged perjury

. These argum ents are all without m erit. ¶78. Davis’s argum ents f ocus in large part on H udgens’s t estim ony that he d id not know why the original lead investigators o n the c ase, Detective Kepf er a n d D e t e c t i ve John Mitchell, were r em o ved f r o m t h e case and dism issed f rom the police departm ent. 19 W hen

18 D av is m ay n o t f

ile s u ch a m o tio n i n th e c ircu it co u rt u n less th e S u p rem e C o u rt f irst g ran ts h im

leav e to f

ile. S ee M iss. C o d e A n n . § 9 9

- 3 9

- 7 (R ev . 2 0 1 5 )

. 19 D etectiv e M itch ell w as later rein stated

. 3 2Hudgens was questioned f u rther outside t he presence of the jury , he testif i e d that he understood that Kepf

er a nd Mitchell were d ism issed because of “poor judgm ent” in their investigation of Babb and Stewart, but he lacked f irsthand k nowledge of the reasons f or the dism issals because he was not privy to the paperwork o r a ny civil service hearing. The trial judge i nstructed Hudgens not to “play

. . . gam es” and t o answer questions directly , and she allowed Davis’s counsel t o question Hudgens f urther i n the presence of the jury

. This issue, various o ther alleged inconsi s t ences in Hudgens’s testim ony , and questions a bout the investigation were all explored on cross-exam ination. These issues are without m erit.
III. Closing Argum ent ¶79. In his pro se brief

, D avis also argues that he i s entitled to a new trial based on a long list of allegedly “inf

lam m atory rem arks” during closing argum ent. H owever, Davis did not object to an y o f t h e s e com m ents at trial. “Contem poraneous o bjections to allegedly

erroneous com m ents of

the prosecuting attorney in closing a r gum ents m ust be m ade or the
p o i n t is waived.” Gray v
. State , 487 S o. 2d 1304, 1312 (Miss. 1986). I n the absence of a
contem poraneous objection, “the point m ay be considered” on appeal only “if the a rgum ent [ was] so ‘inf

lam m atory ’ that the trial judge should have object e d on his own m otion.” Id. (quoting Griffin v. State , 292 So. 2d 159, 163 (Miss. 1974)). None of t he c o m m ents cited in Davis’s appellate brief were so “inf lam m atory ” as to r equire a new trial in the absence o f a
contem poraneous objection. CONCLUSION

3 3¶80. Af

ter a thorough and independent review of the entire record, and af

t er considering the issues raised in Davis’s pro se brief , w e con c l u d e t hat there are no issues that warrant reversal. Theref

o re, we af

f irm Davis’s conviction and sentence. D avis’s c laim alleging inef f ective assistance of c ounsel is dism issed without prejudice. He m a y raise s uch a claim in a properly

f iled m otion f

or post-conviction relief

. ¶81. AFFIRMED. LEE, C .J., IRVING A ND GRIFFIS, P . JJ., BARNES, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.

3 4