IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-01579-COA CARLOS C. JONES A/K/A CARLOS JONES A/K/A CARLOS J. JONES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/18/2016 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM W HICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: HALDON J. KITTRELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/08/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND WILSON, JJ. IRVING, P.J., FOR THE COURT: ¶1. Carlos Jones appeals h i s conviction f o r s econd-degree m

urder, a lleging three issues: (1) the trial court erred i n adm i tting a video depicting testim onial e vidence; (2) the trial court erred in ref

using to allow h i s witness to testif y as an expert; a n d ( 3 ) h i s t rial counsel was constitutionally inef

f ective. Finding no reversible error, we af f irm

. FACTS ¶2. At the tim e of the events giving r ise to trial, J ones and his wif e , Tabatha Sm ith, wereliving with Tabatha’s two children in Jef f erson Davis County , Mississippi. Jones testif ied that on the m orning of Decem ber 5, 2014, he awoke, got out o f bed, and lef t his and Tabatha’s bedroom to w a k e the c hildren. Upon returning to the b edroom , he and Tabatha

— w h o was awake but s till in bed at t his point—began “f ussing.” 1 Tabatha rolled

over onto the handgun that J ones k ept under his p illow a nd said, “You and this g un.” Jones pulled the gun out f

r om under t he pillow and assured Tabatha that it was not loaded. He then put the gun in the back pocket of his pants, but it f ell through a hole i n the pocket a nd hit the f loor. Jones later testif

ied at trial as f

ollows: BY DEFENSE COUNSEL Q. And y ou’re not say ing [ the gun] f ired when it hit the f

loor? A. I’m not say ing it f

ired when i t hit the f

loor. I’m say ing when I grabbed it, I don’t know how did I [ sic] grab it, the gun went of f

. I know [ sic]. I didn’t even know how m any t im es she was shot until, y ou know, I - - I just - - when she - - when that gun went of f , she sa[ id], “I told y ou.” I looked at m y

wif e. She was bleeding.

* * * * A. W hen I was com i ng up, the gun went of f

. BY THE PROSECUTOR Q: All right. So y ou - - y ou’re say ing apparently that y ou didn’t even pull the trigger. A. I don’t know how I retrieved that gun. . . .

1 A t t r i a l , J o n es d ef

in ed “f u ssin g ” as “[ d ] isag reein g ab o u t th in g s” an d j u st ty p ical “b an ter” b etw een h u sb an d s an d w iv e s. 2* * * *

Q. W ell, where did y ou point the gun when y ou cam e up? A. I didn’t - - I didn’t know it hit her. I just heard it go of f

. She just said, “I told y o u.” I didn’t point the gun.

* * * * A. In m y

attention [ sic], I think the gun just shot. I didn’t pull no trigger on no gun [ sic]. It was an accident. It was an accident. ¶3. According to Jones, Tabatha, upon r e a lizing that she had been shot, said, “I t old y ou.”
Jones a sserted that T abatha told hi m n o t t o c all 911 because i t would take t oo long, so he d r a g g e d h e r o ut of the house and placed her into t he back seat o f his car. Then, w i t h Tabatha’s two children in the f ront seat, he drove to Prentiss Regional Hospital. ¶4. Jones testif

ied that when he reached the em e rgency room , he shouted f or help f rom

a m an standing nearby

. The m an, later identif ied as A ntonio M cClendon, h elped Jones alert the nurses, who l oaded Tabatha into a wh e e lchair and adm itted h er. Tabatha was still conscious at this point. ¶5. McClendon later t estif ied at trial that h e h a d been standing o utside of a n apartm ent

com plex near t he e m e rgency room when J ones drove up. He r ecognized Jones and Tabatha f rom m eeting them on a p rior occasion and wa l k e d o v e r t o the hospital to i nvestigate. McClendon f

urther testif

ied: Q. Okay . Did [ Jones] tell y ou what had happened to her? A. Af t er - - a f ter w e g ot her out [ o f the car and into the hospital], he was -

- he was s ay i ng that, y ou know, there was som e kind of - - it was early
3i n t h e mo r n ing. He was - - y ou know, they was just [ sic], y ou know , having words I guess or whatever, and he was, like, he was play ing with her w ith - - with the g un, y ou know, l ike, [ “Y]ou going to get this right here. Now give m e som e,[ ”] y ou know.
I g uess som ething they alway s d o [ s i c ]

. Y ou know, I don’t know. You know, that’s what he was telling m e. And he w as, l i k e, such and s uch, and the g un went o f f and shot her , l i k e , three or f our tim es. Q. Okay . That’s what [ Jones] told y ou? A. Yes, m a’am

. Q. Did he tell y ou any thing in particular about the condition of the gun? A. Yeah. He told [ m e] it was, l ike, t he gun kind of m essed up. It had l ike a little hair t rigger, y ou know, like. Like, i t just went o f f , a nd it got stuck, and that’s h o w she got shot f our or f i ve tim es, or t hree or f

o ur tim es. Finally , McClendon opined t hat Jones appeared t o be high when Jones a rrived at the hospital.
He m aintained that J ones acted a s if he did not want to sign any papers, and that he believed Jones would have lef

t the hospital if

McClendon had not asserted that he needed to stay

. ¶6. Shortly af

ter Tabatha was adm itted, the hospital alerted l aw e n f orcem ent authorities. Of f icer David Marshall with the Prentiss Police Departm e n t w as the f irst t o arrive, and testif i ed at trial that Jones told him the f ollowing: [ He told m e t]hat he keeps a Hi-Point .45 underneath his p illow at hom e and that he retrieved it and placed it in his rear, right pocket, which had a hole in it, [ and] that the f

i rearm f e ll through the hole. He picked it u p, and he said t hat he pointed towards h i s wif e and said, “I told y o u it wouldn’t f ire,” and once he did that, the weapon f

i red. Jones gave the gun—which he had brought with him t o the hospital—to Of f icer M arshall,
4who secured it in his patrol vehicle.

¶7. Subsequently , Deputy Denise Jackson and Invest i g a t o r C h a r l e s J o h n s o n , both with the Jef f erson Davis County Sherif f ’ s Departm ent, arrived at the hospital. Deputy Jackson retrieved t he gun f

r om O f f i c er Marshall and placed Jones into custody

. Both Investigator Johnson and Deputy Jackson attem pted to speak with T abatha, b u t I n vestigator Johnson testif i ed t hat “she was not really t alking” and “ the only thing she was say ing w as, ‘Help m e, help m e, help m e .’” Sim ilarly , Deputy J ackson t estif ied that when she went into t he hospital

room , all Tabatha said was “help m e.” ¶8. Investigator Johnson obtained a search warrant f or Jones and Tabatha’s hom e, and he

a n d D eputy Jackson c onducted a search of the prem ises. Som e tim e thereaf ter, Jone s w a s arrested on charges of “ dom estic vi o l ence, a ggravated assault.” Jones w aived h is rights pursuant to Miranda v. Arizona , 384 U.S. 436 (1966), and wrote the f ollowing statem ent: [ Tabatha] rolled over o n my s i d e [ of the bed.] She s aid[ , “Y]ou and this gun[ .”] I got m y gun out f rom under m y pillow and stuck it in m y back pocket and i t f ell out[ .] I picked it up and said[ , “T]his gun ain’t loaded[ .”] W h en I tur e n e d [ , ] [ sic] it w en t o f f [ .] S h e said [ , “I] to ld y o u [ .”] Wh en I l o o k ed u p [ ,] sh e w as b leed in g . ¶9. On Decem

ber 10, 2014, I n v e s t i g a tor Johnson again attem pted to speak to Tabatha. This conversation, which lasted f if ty -f ive seconds, was video-recorded. The video depicts
I n v e stigator Johnson asking, “Tabatha, d id C arlos shoot y ou? ” Tabatha did not verbally respond. Investigator Johnson said, “Let m e know by shaking y o u r head or r aising y our hand.” Tabatha lif

ted her hand slightly

. Investigator Johnson then said, “ O kay

. How m any

5tim es he [ sic] shoot y ou? ” Tabatha m oved h er f i ngers. 2 Investigator Johnson said, “Okay

. Thank y ou,” and the video concluded. ¶10. Af ter f if teen day s in the hospital, on Decem b er 20, 2014, Tabatha succum bed to her injuries. Dr. John Brentley Davis, a f orensic pathologist and Deputy Chief Med ical
Exam i ner f

or the State of M ississippi, reviewed Tabatha’s autopsy report 3 and testif ied that she had been struck by

two bullets: one bullet hit Tabatha’s lef t shoulder a nd the right side of her neck, and another bullet hit her right shoulder. As a result of t he gunshots, Tabatha sustained injury

to her jugular vein and to vertebrae in her neck and upper back. ¶11. The G rand Jury of Jef f e rson Davis County indicted Jones f or one count of m

urder, in

v i o l a t i o n of Mississippi Code Annotated section 97-3-19 (Supp. 2017). Jones’s trial wa s conducted over the course of t hree day s, f rom October 1 0, 2 016, to October 1 2, 2 016. The jury heard testim ony f

rom T abatha’s oldest son, Daniel, 4 who was seven y ears old at the t im e of the shooting. Daniel testif ied that, on the m orning of the incident, he h eard his m other and
Jones arguing. The arguing stopped f or som e t im e, then it resum ed, and then Daniel heard three gunshots. Daniel indicated what the gunshots sounded like by knocking his f ist against

2 T h e S t a te in its b rief o n ap p eal say s th at T ab ath a i n d i cated Jo n es s h o t h er tw ice, w h ile Jo n es d o es n o t p u rp o rt eith er th at T ab ath a d id o r d id n o t m ak e su c h an in d icatio n . It is t h is C o u rt’s o p in io n t h at T ab a th a’s m o v em en ts w ere n o t in tellig ib le to t h e ex ten t th at w e can d ef in itiv ely say sh e in d i cated C a rlo s sh o t h er tw ice.

3 T ab ath a’s au to p s y w a s actu ally p e rf o rm ed b y D r. E rin B a rn h art, w h o w as u n av ailab le to testif

y at Jo n es’s trial.

4 T h e m i n o r ch ild ’s n am e h as b een ch an g ed to p ro t ect h is p riv acy . 6the ledge of the witness stand three tim es. W hile t he record is unclear as to t he exact tim ing

pattern of Daniel’s knocks, the State m aintain e d d uring closing argum ents that t wo of the knocks were closer together t han the third, which dif f ers f rom an episode of rapid f

ire, during which all shots would have occurred in quick succession with no variance in tim ing between them

. J ones’s counsel did not ref u te the State’s r ecollection of Daniel’s knocks against the witness stand, but i nstead argued that Daniel w as incorrect in rem em bering t he tim ing pattern of the shots or that he had been coached prior to his testim ony . ¶12. Investigator Johnson also t estif ied at trial, during which the video of his intervie w with Tabatha at the hospital was adm itted into e vidence. J ones’s def ense counsel objected

on the basis that the video was m ore prejudicial than probative. The court allowed the video into evid e n c e on the basis that it w as a part of Investigator Johnson’s c ontinuing investigation. Investigator Johnson f u rther testif

ied as to his investigativ e r e p o r t, wherein he recounted the f

ollowing: [ Jones] stated that he had the gun under the pillow and h e accidentally shot his wif e, and he also told Of

f i cer Marshall the sam e thing.

* * * *
Mr. Jones stated t hat the gun was u n der the pillow and Tab[ ath]a was com plaining about it[ ,] so he took the gun f rom under the pillow and p ut it in his back pocket, and the gun f e ll out [ of

] his pocket a n d h i t t h e f l oor[

. H ]e stated that Tab[ ath]a s tated[ , “Y]o u n e e d to put that gun up[ .”] Mr. Jones sta t ed that he pick[ ed] the gun up a n d w as try ing t o show h er that it wasn’t loaded, and the gun went of f [ ,] shooting her in the neck[ ,] both shoulder[ s], and chest. ¶13. Two witnesses testif i ed about the h andgun’s f unctionality : Darrell Carey , a f irearm s
7instructor who testif ied f or the def ense, and Carl Fullilove, a f orensic scientist who testif ied f or the State. Af

ter conducting a voir dire e xam ination of Carey , the t r i a l c o u r t r ef used to adm it h im as an expert under Rule 702 of the Mississippi Rules of E vidence, on the basis that he had not shown that his testim o ny was “based o n s uf f i cient f acts or data” or “ based on reliable prin c i p l e s a nd m ethods.” Specif ically , t he trial j udge noted that Carey had not produced written docum entation or p u b l i c a tion that could be cross-exam ined by counsel opposite, and that “his testim ony was strongly w eighted or heavily weighted toward f irearm shooting and not the m e chanics o f the f irearm i tself

, i.e., the assem

bling, disassem

bling, [ or] the m ethodology of h ow it operates.” Jones’s counsel argued that Carey ’s testim ony was relevant b ecause a theory o f its case was t hat “if y ou hold the weapon without a r igid wrist,

. . . due to the weight o f the slide,

. . . when y o u f ire the weapon, y ou can get basically a repetitive f

iring, very , very

rapidly .” As Carey

was experienced in s hooting handguns, the def ense argued t h a t h e w a s an expert and should be able to testif y as s uch. However, the

court ultim ately ref

used t o allow Carey to testif y as an expert, and allowed him to testif y only as to his personal observations as a lay witness. ¶14. C a r e y , as a lay witness, t estif ied t hat he a ttem

p ted to recreate Jones’s theory o f def ense: that he had picked up the gun and it som ehow discharged several tim e s. A video recording of

this recreation is included in the record. Carey testif ied to the f

ollowing: It [ did] not occur with every pick up of the f

i rearm , b ut w h at I did observe is that if y ou g r asp that f

irearm

. . . like this (indicating) w ith that f inger on t hat trigger

. . . and t hat weight of that f irearm basically weighs against y our h and, it will go of

f several tim es in quick succession.
8Carey f

urther noted that h e had personally observed that, o n one occasion, when he lif ted the
gun up, “the heavy weight of [ the] slide (indicating) basically c ause[ d] the f irearm to bum

p against [ m y ] t r i gger f

inger.” Carey testif

ied that once, as he lif

ted up the gun, it “actually

went of f twice, and then t here was a second tim e where it actually wen t o f f t h r ee tim es without m e consciously pulling the trigger. Just the w eight of that slide (indicating) reciprocating back and f

orth caused it to continue f i ring.” ¶15. Fullilove, as an exper t witness f or the State, testif

i ed that, like Carey , he had f ired Jones’s gun to ascertain its f unctionality

. F ullilove testif ied that he conducted several tests
to see if the gun would m i sf ire, e ven using a rawhide ham m er to strike the weapon. Fullilove opined that, to f

ire the weapon, a person would have had to pull the trigger once per shot. ¶16. At the conclusion of trial, the jury

f o und Jones guilty

of second-degree m

urder. He

was sentenced to f

orty y e a r s in the custody o f the Mississippi Departm ent of Corrections, with thirty -f

ive y ears to serve. Jones f iled a tim ely m otion f

or judgm ent notwithstanding the verdict, which was denied. Jones now appeals his conviction. DISCUSSION
I. Admission of the Video ¶17. Jones argues that t he trial court’s adm ission of Inv e s t i g a t or Johnson’s video of Tabatha a t t h e h o s pital violated his f undam e n tal rights under the Sixth Am endm ent’s Conf r ontation Clause. Jones c oncedes that his counsel did n ot properly o bject, but m aintains that this i ssue m ay proceed under the d octrine of plain error. The S tate, i n r esponse, argues

9(1) that the issue is waived due to Jones’s f ailure to p roperly o bject, and (2) e v en assessing the issue under plain error, “the adm ission of the video is not grounds f or r eversal because the statem ents that Tabatha m ade on the video were cum ulative o f other evidence that was adm itted at trial, including the adm issions that Jones, him self , m a de.” ¶18. First, we note that regardless of whether Jones’s counsel objected, we m ay proceed with this analy sis under the plain- error doctrine. “Under the plain-error d octrine, we can recognize obvious error which was not properly raised by the def endant on appeal, and which af f ects a def endant’s ‘f

undam e ntal, substantive right.’” Smith v. State , 986 So. 2d 290, 294 (¶10) ( M i s s . 2008). “A Conf rontation Clause violation is a violation of a ‘f undam ental, substantive right.’” Bufford v. State , 1 9 1 S o . 3d 755, 760 (¶18) (Miss. Ct. App. 2015) (quoting Ezell v. S

tate , 132 So. 3 d 611, 612 (¶3) (Miss. Ct. App. 2013)). T hus, this issue is proper f or our review even though it m ay not have been properly

preserved f

or appeal. ¶19. “ T h e C o n f

rontation Clause guarantees a crim inal def endant the right ‘to be c o n fr o n t e d with the witnesses against h im

. ’” Id

. at 759 (¶13) (quo ting U.S. C onst. a m end. VI). “In Crawford v. W

ashington , 541 U .S. 36[ , 54] (2004), the United States Sup r e m e Court held that ‘ testim onial’ evidence c ould not be adm itted against a crim inal d e f e n d a n t unless the declarant w as unavailable a t trial, and the def endant had a prior opportunity to cross-exam ine him .” Id

. (citation om i tted). The Suprem e Court provided in Michigan v. Bryant , 562 U.S. 344, 370 ( 2011) , t h a t , w h en determ ining whether a statem ent is testim onial and theref ore barred by the Conf

rontation Clause, “ i t s h o uld determ i ne the ‘prim ary purpose of the

1 0interrogation’ by objectively evaluating the statem ents a n d a c tions of the parties to the

encounter, in light of the circum stances in w hich the interrogation occurs.” The Court held: Statem ents are nontestim onial when m ade i n the course of police interrogation under circum s tances obj e c t ively indicating t hat the prim ary purpose of the int e rrogation i s to enable police a ssistance to m eet an ongoing em ergency . They are testim onial w hen the circum stances objectively indicate that there is no such ongoing em ergency , and t hat the p rim ary purpose o f t he interrogation is t o establish o r prove past events p otentially r eleva n t t o l a t er c rim i nal prosecution. Id . at 356 (citing Davis v. W ashington , 547 U.S. 813, 822 (2006)). ¶20. W e hold that the v ideo was, under this standard, testim onial. Investi g a t o r J o h n son asked T abatha two questions: (1) whether Jones shot her and (2) how m any t im es he shot her.
W e see n o purpose f

or those questions other than to establish e vents potentially r elevant to Jones’s later c rim inal prosecution. Further, we note that Tabatha was unavailable to testif y
at trial due to her unf

ortunate death, and that Jones had no opportunity to c ross-exam ine her. ¶21. Howeve r , w h ile we f ind t hat the circuit court erred in a d m itting the video, we also f ind that Jones was not prejudiced by this violation. The Suprem e Court has held that “[ a] def endant is entitled to a f air trial but not a p e r f

e c t o ne,” and that, theref ore, “m ost constitutional errors can be harm less.” In Delaware v. Van Arsdall , 4 7 5 U.S. 673, 684 (1986), the Suprem e Cou r t p r o v i d ed the f o llowing w ith respect to when ConfrontationClause violations m ay

be considered harm less error: The correct inquiry is whether, a ssum ing that the dam aging p o t e n t ial of the cross-exam ination [ was] f ully realized, a reviewing court m ight nonetheless say that the error was harm less bey ond a r easonable d oubt. W h ether such an error is harm less in a particular case depends upon a h ost of f actors, all readily
1 1accessi b l e to reviewing courts. These f actors include the im

portance of the witness’ testim o ny in the p r o s e cution’s case, whether the testim ony was c u m ulative, t he presence or absence of evidence corroborating or c o n t r a d i c t i n g the testim ony of the witness on m aterial points, the e x tent of cros s - e x a m ination otherwise perm itted, and, of course, the overall strength of the prosecution’s case. ¶22. Under these param e ters, w e are satisf ied that the trial court’s error i n adm itting the video was harm l ess bey ond a reasonable doubt. First, we note that T abatha’s testim ony was
not particularly benef

i cial to either the State or Jones. T abatha w as unable to provide def inite

answers t o either of Investigator Johnson’s questions, as she appeared to b e only sem iconscious when she lif

ted h e r h a n d or m o ved her f i ngers. Second, the evidence was

cum ulative, at least with respect to Investigator Johnson’s q uestion of whether Jones shot Tabatha, a s Jones, h i m self , adm itted that he was in control of the g un when Tabat h a was shot. Third, we cannot say that there was evidence corroborating or contradicting Tabatha’s testim o ny on ma t e r i a l points, because s he m ade no m aterial points, a s her nonverbal

c o mmu n i c a t ion was am

biguous at best. As d iscussed earlier in this opinion, there w a s suf f i cient adm issible and credible evidence upon which t he jury could rely to convict Jones without considering Tabatha’s nonve r b a l am biguous c om m

unication about w ho shot her. Based on these f

acts , w e h o l d that, while adm ission of the video was erroneous due to its testim o nial nature, the error was harm less.
II. Expert W

itness ¶23. Jones argues that the trial court e r r e d i n f a iling to adm it Carey a s an e xpert witness in the f ield of f irearm operations and f

unctions, which consequently prejudiced his right to
1 2present h is def ense that the shooting was accidental. I n response, the State contends that the trial court did not err, because Carey did not disclose “what his expert opinion w ould be, as

was required by URCCC 9.04(c)(3),” 5 and because Jones did not show that Carey satisf ied the requirem ents f

or adm ission of expert testim ony under the Mississippi Rules of Evidence. Further, the State m a intains that J ones never m a d e a prof f e r of what Carey ’s testim ony would have been, had h e been qualif i ed as an expert, r endering the re c o r d i n s u f f i cient f or us to determ ine whether the trial court’s ref usal of his expert testim ony was reversible error. Finally , the State m a intains t hat the trial court d id not deny Jones the o pportunity t o present his theory of def

ense, in part because Carey ’s p urported testim ony and personal observations did not prove that Tabatha’s death was accidental. ¶24. “The standard of review regarding adm ission or exclusio n o f e v i d ence is abuse of discretion.” Tillis v. State , 176 So. 3d 37, 45 ( ¶15) (Miss. Ct. A pp. 2 014). Rule 702 of the Mississippi Rules of

Evidence provides:
A witness who is qualif ied as a n expert by knowledge, s k i l l , e xperience, training, or education m ay testif y in the f orm of an opinion or otherwise if : (a) the expert’s scientif ic, techni c a l , or other specialized knowledge will h e lp the trier of f act to understand the evidence or to determ ine a f

act in issue; (b) the testim ony is based on suf f icient f acts or data;

5 We n o te t h at th e U n if

o rm R u les o f C ircu it an d C o u n t y C o u rt relatin g to crim i n al p ractice h a v e b een s uppl a nted b y t h e M ississip p i R u les o f C rim in al P ro c ed u re, ef f ectiv e Ju ly 1 , 2 0 1 7 . B ecau se th e f

o r m er ru les w ere still in ef

f ect d u rin g Jo n es’s trial, R u le 9 .0 4 (c)(3 ) ap p lies to Jo n es’s case. T h e sam e ap p lies to an y o th er f o r m er ru les cited in th i s o p in io n . 1 3(c) the testim ony is the product of reliable principles and m e thods; and (d) the expert h as reliably applied the principles and m ethods to the f acts of the case. In contrast, Rule 701 of

the Mississippi Rules of Evidence provides that a lay witness m ay testif y as t o his opinion if t hat opinion is “(a) rationally based o n the witness’s p erception; (b) h elpf ul to clearly understanding the witness’s testim o ny or t o determ ining a f a c t in issue; and (c) n ot based on s cientif ic, technical, o r other sp e c i a l i zed k nowledge within the scope of Rule 702.” ¶25. W e do n ot f

ind that the trial court abused its discretion i n allowing Carey t o testif y as a lay witness, but not as an expert. As previously stated, the t rial judge f

ound that Carey ’s testim o ny was not “based on suf f icient f acts and data,” because it concerned f i rearm shooting and not t he actual m echanics of t he f irearm

. Further, t he trial judge held that Carey could not of f er any “reli a b l e principles or m ethod[ s ] that could b e cross-exam i ned b y t he opposite counsel,” such as written reports or other docum entation, or any published m aterials. ¶26. The record s upports these conclusions: Carey adm itted that he had n ever w ritten any articles or periodicals o n s h o o t i ng f irearm s, and could not provide the court with any “reliable principles a nd m ethods” on w hich his testim ony was based. Further, Carey did not hold an e n gineering degree and d id not se e k t o t e s t i f y as t o the gun’s m e chanics. Such knowledge p robably would have been mo r e a kin to relevant expert testim ony in this case, which revolved around the gun’s m echanical p rop e n s i ty to m isf ire. Carey ’s testim ony , as 1 4presented during the v o ir dire e xam ination, w as largely contingent upon h i s o wn personal

observations o f the handgun’s f unctionality , in light of Jones’s theory o f def ense. As such,

we h old that he was properly allowed to testif y a s a lay witness, only

. W e d ecline to address the State’s other argum ents regarding Carey ’s testim ony , as they are consequently

m oot. III. Sufficiency of Counsel ¶27. Jones argues that h is counsel was constitutionally inef f ective b e c a

u s e h e fa i l e d t o o ff

er

an accident instruction which would have allowed the jury to consider his theory of def ense. In response, th e S t a t e maintains that Jones’s counsel’s d ecision was t rial strategy and, theref ore, not subject to review. ¶28. To prove inef

f ective assistance of c ounsel, a party m ust show (1) that his counsel’s perf orm ance was def

icient and (2) that this def iciency prejudiced h is d ef ense. Strickland v. W ashington , 466 U.S. 668, 687 (1984). However, we have repeatedly held that: [ T]h e m erits of an inef

f e ctive-assistance-of

-counsel claim on direct appeal sho u ld be addressed only when (1) t he record af f irm atively s hows inef f ectiveness of constitutional d i m ensions, or (2) the parties stipulate that the record is adequate to a llow the appellate c ourt to m ake the f inding without consideration of

the f indings of

f act of the trial judge. Robinson v. State , 68 So. 3d 7 2 1, 7 23 (¶10) (Miss. Ct. App. 2011) (internal quotation m arks

om itted). Here, the record does not af f i rm atively show ine f

f ectiveness of constitutional dim ensions. Further, the parties have not stipulated that the record is adequate to allow this Court to m ake a f

inding w ithout consideration o f the trial judge’s f indings of f

act. Thus, we dism iss with respect to this issue, without prejudice, so that Jones m ay properly seek leave

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rom the Mississippi Suprem e Court to raise this issue in a post-conviction relief m otion. ¶29. Although we f

ound error i n the t rial court’s adm ission of testim onial evidence, that

error was harm l ess, particularly in light of the other evidence presented at trial. W e note, specif ically , that Jones of

f ered vary ing accounts o f the events that occurred just prior to the shooting. As stated above, Jones testif ied at t rial t hat the gun “just went of f ” as he was lif ting it f rom the g round. H owever, in his police statem e nt, Jones said that the gun went of f when he turned. Further, a t trial , Jones m aintained both that he did not know how he retrieved t he gun, and that he did not pull t he trigger on t h e g u n . S u ch a statem ent belies McClendon’s testim ony that Jones told him he and Tabatha had been “play ing,” when he shot her due t o the gun’s “hair t rigger.” In light of these inconsistencies, com b ined with the testim o ny of all witnesses at trial, we af f irm

. ¶30. AFFIRMED. LEE, C.J., CARLTON, FAIR, W ILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. GRIFFIS, P .J., C ONCURS IN P ART AND IN THE RESULT WITHOUT SEPARATE WRITTEN O PINION. BARNES, J ., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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