                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2002-CT-00798-SCT

JAMES WESLEY SCOTT

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          09/06/2001
TRIAL JUDGE:                               HON. RICHARD W. McKENZIE
COURT FROM WHICH APPEALED:                 FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JAMES WESLEY SCOTT (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BILLY L. GORE
DISTRICT ATTORNEY:                         JON MARK WEATHERS
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               THE JUDGMENT OF THE COURT OF
                                           APPEALS IS REVERSED. CONVICTION
                                           OF ROBBERY AND SENTENCE OF
                                           FIFTEEN (15) YEARS IN THE CUSTODY
                                           OF THE MISSISSIPPI DEPARTMENT OF
                                           CORRECTIONS, AFFIRMED - 05/15/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    On April 5, 2000, the Forrest County Grand Jury indicted James Wesley Scott for

simple robbery, attempted kidnaping, and attempted sexual assault. On August 29, 2001, a

jury pool was called. After voir dire, but before empanelment, Scott alleged that the state’s

use of peremptory challenges was racially motivated in violation of Batson v. Kentucky, 476

U.S. 79; 106 S. Ct. 1712, 90 L. Ed. 2d 79 (1986). The trial judge responded with a brief
discussion of the jurors who were dismissed for cause and then asked: “Now those having

been excused, do you wish to be heard on Batson?” Defense counsel responded, “No sir.”

The circuit court discussed Batson and the facts of this case, and concluded that Scott failed

to establish a prima facie case of discrimination, and therefore a Batson hearing was

unnecessary. The jury was empaneled, including three African-Americans. The alternate

juror also was African-American.

¶2.    On August 31, 2001, the jury found Scott guilty of simple robbery but not guilty of

attempted kidnaping. The jury was not able to reach a verdict on the third count, attempted

sexual battery. On September 13, 2001, Scott filed a motion for judgment notwithstanding

the verdict or in the alternative for a new trial, which was overruled on December 6, 2001.

¶3.    Aggrieved, Scott raised the following issues on appeal:

       I.     WHETHER THE CIRCUIT COURT ERRED IN DENYING
              SCOTT’S MOTION FOR JNOV AND/OR A NEW TRIAL AND
              IN REFUSING TO GIVE HIS PEREMPTORY INSTRUCTIONS.

       II.    WHETHER THE CIRCUIT COURT PROPERLY OVERRULED
              SCOTT’S BATSON OBJECTION WITHOUT REQUIRING THE
              PROSECUTION TO PROVIDE RACE-NEUTRAL REASONS
              FOR USING PEREMPTORY CHALLENGES AGAINST
              AFRICAN-AMERICAN JURORS.

¶4.    The state filed its brief. Scott then filed a reply brief, pro se, and claimed that he

received ineffective assistance of counsel at both the trial and appellate levels, that he was

denied a “fair and speedy trial,” and that his conviction was improper since it was based

primarily on the victim’s eyewitness testimony.

¶5.    The Court of Appeals remanded the matter for a Batson hearing. The trial judge,

Richard W. McKenzie, had retired. Circuit Judge Robert Helfrich recused himself, and this

                                              2
Court appointed Special Judge R. I. Prichard, III, to conduct the Baston hearing. In

accordance with the order, Judge Prichard conducted a special hearing and agreed with the

original trial court judge, finding that Scott had failed to demonstrate a prima facie case of

discrimination by the prosecution’s use of peremptory challenges. Accordingly, Judge

Prichard held that it was unnecessary for the prosecution to have to assert a racially neutral

basis for its use of peremptory challenges. The case was then returned to the Court of

Appeals, which reversed the conviction of the Forrest County Circuit Court and remanded

the case for a new trial, based on the Court of Appeals’ findings that Scott did in fact

demonstrate a prima facie case of discrimination and that the prosecution should have been

required to offer reasoning for its use of the peremptory challenges.

¶6.    The State of Mississippi sought certiorari review, which was granted on January 10,

2008. The state asserts that the Court of Appeals erred by failing to grant proper deference

to the lower court’s decision on the Batson issue. We agree with the state and thus reverse

the Court of Appeals decision and reinstate the judgment of the trial court.

                               STANDARD OF REVIEW

¶7.    “On appellate review, a trial court’s determinations under Batson are accorded great

deference because they are largely based on credibility.” Berry v. State, 802 So. 2d 1033,

1037 (Miss. 2001) (citing McGilberry v. State, 741 So. 2d 894, 923 (Miss. 1999)). The

appellate court will reverse only when such decisions are clearly erroneous. Berry, 802 So.

2d 1033, 1037 (citing Woodward v. State, 726 So. 2d 524, 530 (Miss. 1998); Lockett v.

State, 517 So. 2d 1346, 1349-50 (Miss. 1987)).

                                        ANALYSIS

                                              3
¶8.    There must be “a prima facie showing of discrimination before the party exercising

the strike is required to provide an explanation for the basis of the peremptory strike.” Ryals

v. State, 794 So. 2d 161, 165 (Miss. 2001).

       I. Batson

              A.         Whether Scott’s general Batson objection preserved a Batson
                         challenge for appeal.

¶9.    “Failure to make a contemporaneous objection waives an issue for purposes of

appeal.” Spicer v. State, 921 So. 2d 292, 309 (Miss. 2006).

¶10.   The discussion quoted below reveals that the Batson challenge occurred during a

bench conference held after the drawing of the jury was complete and after Scott had verbally

assented to the jury.1


       THE COURT: . . . Mr. Scott, I want to make absolutely certain. I know there
       has been some possible personality clash between you and your lawyer, but I
       want to make absolutely certain on this record that you had the opportunity to
       confer with your lawyer as far as the drawing of this Jury and that you have
       participated in that?

       THE DEFENDANT (James Scott): Yes, sir.

       THE COURT: And are you satisfied with that?

       THE DEFENDANT (James Scott): Excuse me?

       THE COURT: Are you satisfied with the Jury?




       1
         The record reflects a pause in proceedings followed by the bench conference quoted
below. It is unclear, but it is assumed that Mr. Price’s objection fell within this period of
time, during the pause in the proceedings but before the judge requested the sidebar be on
the record. Apparently, the judge recognized that this discussion needed to be on the record
despite the parties’ failure to request it.

                                               4
       THE DEFENDANT (James Scott): Yes, sir.

       THE COURT: All right, so noted. Let’s get the Jury in – or is there anything
       before we get the Jury in?

       (PAUSE IN PROCEEDINGS, FOLLOWED BY THE FOLLOWING
       CONFERENCE AT THE BENCH, OUTSIDE THE HEARING OF THE
       JURY PANEL.)

       THE COURT: Note for the record that at this point in time Mr. Price has
       indicated that he wishes to raise the Batson challenge to certain members of
       the jury panel. We will hear from you.

       MR. PRICE [Counsel for the Defense]: Your Honor, at this time we would
       challenge the State’s use of peremptory challenges, under Batson v. Kentucky.
       It appears that the State has exercised every peremptory challenge in order to
       exclude certain members of the Jury. The defendant is of the African-
       American Race and is entitled to his Constitutional rights.

       We would ask that the State be required to show the race neutral reasons for
       the challenges of all the African-American jurors.

       THE COURT: Note for the record the Court observed the following members
       of the African-American Race; 2, Calvin Boykins, 10, 12, 13, 14, 15, 24, 25,
       27, 31, 33, 34, 36, 38, 40 and 41, Hill. That is as far as we got.

       The following individual members are African-American members of the
       venire panel: 43, 47, 48, 51, 54, 58, 62, 63, 65, even though we did not get to
       those. I should note that of that number, number 62, who was the fourth from
       the last, was excused because she was emotional.

       As far as the others being excused for cause are as follows: Would be number
       14, Burket; 15, Terrell; Lee, 22: and 27, Crosby. Now, those having been
       excused do you wish to be heard on Batson?

       MR. PRICE: No, sir.

¶11.   In Thomas v. State this Court adopted the Fifth Circuit’s rationale for requiring a

timely Batson objection when it quoted:

       Now it is too late for appellants to insist on an explanation they did not request
       at trial. The “timely objection” rule is designed to prevent defendants from

                                               5
       “sandbagging” the prosecution by waiting until the trial has concluded
       unsatisfactorily before insisting on an explanation for jury strikes that by then
       the prosecutor may have largely forgotten.

Thomas v. State, 517 So. 2d 1285, 1287 (Miss. 1987) (quoting United States v. Forbes, 816

F. 2d 1006, 1011 (5th Cir. 1987)). This rationale is applicable to Scott. Scott stated he did

not wish to be heard on Batson and asserted no further facts in support of the objection.

Because of Scott’s failure to follow through with specific facts to establish a prima facie case

of discriminatory use of peremptory strikes, the trial court concluded that Scott had not

established a prima facie case. Since a prima facie case was not established, the state was

not required to offer a non-discriminatory basis for its use of peremptory strikes. Then, when

the Court of Appeals remanded for a Batson hearing, the original defense attorney and

prosecutor were unavailable and the special judge was left with a review of the record.

Because Scott did not raise a prima facie Batson objection, the trial court did not require that

the state offer non-discriminatory reasons for its peremptory strikes, resulting in an

incomplete record. To allow Scott’s Batson objection now effectively would allow the

“sandbagging” that the Thomas and Forbes courts sought to prevent.

¶12.   In Branch v. State, the Court noted that, “Branch has made no prima facie case that

the strikes were based upon an impermissible reason, such as race or gender. Even though

[counsel] generally raised the issue [of Batson] she made no specific challenge.” Branch

v. State, 882 So. 2d 36, 59 (Miss. 2004). Scott merely raising a Batson objection was not

sufficient to establish a prima facie case.

¶13.   The record reflects that, after raising a Batson objection, counsel for the defendant

withdrew the objection. A similar situation occurred in Wilson v. State, when the state

                                               6
withdrew its Batson objection after defense counsel countered with a Batson objection of

his own. Wilson v. State, 775 So. 2d 735, 739 (Miss. App. 2000). Even though Scott did not

specifically use the term “withdraw” or “waive,” he responded “no” when asked by the trial

judge if he wished to be heard on Batson. This Court finds that this statement by defense

counsel constituted a waiver.

¶14.   The trial court, however, in spite of this exchange, continued to analyze the Batson

issues. The trial court overruled the Batson challenge by finding that Scott had not

established a prima facie case. Therefore, the state was not required to give a valid, racially

neutral basis for its peremptory strikes.

¶15.   In the present case, Scott’s counsel initially raised a general Batson objection, and

requested that the state be required to show racially neutral bases for all of its peremptory

strikes against African-Americans. However, once the judge informed counsel of the venire

persons who were struck for cause, defense counsel then stated he did not wish to be heard

on Batson. Counsel waived his request for a Batson hearing, and declined to assert any facts

to support his objection. By declining to assert any specific facts, defense counsel made an

unsupported objection, and in doing so, he failed to properly raise a Batson objection.

       B. Whether the circuit court properly overruled Scott’s Batson objection.

¶16.   Notwithstanding the procedural bar discussed herein, Scott asserts no facts that

indicate that the Batson objection has merit.

¶17.   In Ryals v. State, the prosecution used ten of its twelve peremptory strikes to exclude

female venire persons, but the Court held that factor alone was not enough to support an

inference of discriminatory intent. Ryals v. State, 794 So. 2d 161, 166 (Miss. 2001).

                                                7
Recently, this Court found “that exercising seven peremptory strikes against African-

Americans, standing alone, absent any other facts or circumstances . . . fails to establish a

prima facie showing that race was the criteria for the exercise of the peremptory challenge.”

Strickland v. State, 2008 Miss. LEXIS 132, *19-20 (Miss. March 6, 2008).

¶18.   In the case sub judice, the state used nine peremptory strikes against African-

American venire persons. During trial, at the special Batson hearing, and in the appellate

brief, the use of nine peremptory strikes against African-American venire persons was the

sole basis Scott’s counsel offered in support of establishing a prima facie case under Batson.

Still, under Strickland and Ryals, that factor alone is not enough to support an inference of

discriminatory intent. When weighed with the totality of the evidence, the trial judge was

not clearly erroneous in overruling the Batson objection.

¶19.   This Court also examines other factors mentioned in Ryals. First, the Court in Ryals

noted that the state tendered three female venire persons. Ryals, 794 So. 2d at 166. In the

instant case, the empaneled jury included three African-Americans. The alternate juror was

also African-American. Next, the Ryals Court noted that there was only one factor in favor

of discriminatory intent but there were several factors against the inference of discriminatory

intent, specifically, “nothing about the prosecutor’s conduct, nothing about the habitual

policies of the district attorney’s office, and nothing about the nature of the case support an

inference of discriminatory intent.” Ryals, 794 So. 2d at 166. Here, we find an identical

situation. The sole factor hinting at discriminatory intent, and the only factor pointed to by

Scott or his counsel below, is that the prosecution used nine of its eleven peremptory strikes

to exclude African-American venire persons. As in both Strickland and Ryals, nothing about

                                              8
the prosecutor’s conduct, the habitual policies of the district attorney’s office, or the nature

of the case supports an inference of discriminatory intent.

¶20.   It is important to note that in Ryals, women constituted fifty percent of the jury pool,

which differs from the instant case, where African-Americans constituted approximately

thirty-seven percent of the jury pool (twenty-five of the sixty-six, according to the record).

However, in terms of numbers, the ten peremptory strikes were more devastating in Ryals

because there were only sixteen women in the jury pool. Ryals, 794 So. 2d at 169. In the

instant matter, there were twenty-five African-Americans in the jury pool. Striking ten of

sixteen venire persons is facially much more prejudicial than striking nine of twenty-five.

¶21.   These facts are all factors which were within the observation of the trial judge. The

above-listed reasons are findings of fact. This Court does not sit as a finder of fact and must

review findings of fact with great deference. Robinson v. State, 761 So. 2d 209 at 211 (Miss.

2000). “This deferential standard of review reflects ‘confidence that trial judges experienced

in supervising voir dire, will be able to decide if the circumstances concerning the

prosecutor’s use of peremptory challenges creates a prima facie case of discrimination

against black jurors.’” Strickland, at *17-18 (quoting Batson, 476 U.S. at 97). When the

totality of the evidence is weighed, the trial judge was not clearly erroneous in overruling the

Batson objection.

¶22.   Because neither Scott nor his trial counsel provided enough facts, either during the

trial or on appeal, to support a prima facie Batson objection, the trial court was correct in

overruling the objection.

       II. Ineffective assistance of counsel.

                                               9
¶23.   Scott first mentioned the issue of ineffective assistance of counsel in his pro se reply

brief. In Sanders v. State, this Court adopted the Fifth Circuit’s rule that “we will not

consider issues raised for the first time in an appellant’s reply brief.” Sanders v. State, 678

So. 2d 663, 669 (Miss. 1996). Because Scott raised the issue of ineffective assistance of

counsel for the first time in his pro se reply brief, we normally would apply the procedural

bar. But because it is also raised in the state’s brief, we address the merits of the issue.

¶24.   In order to succeed on a claim of ineffective assistance of counsel, the defendant has

the burden of showing two things: (1) that the counsel’s performance was deficient, and (2)

that it was sufficient to constitute prejudice to the defense. Branch v. State, 882 So. 2d 36,

51-2 (Miss. 2004); Walker v. State, 703 So. 2d 266, 268 (Miss. 1997). Trial counsel is

presumed competent, and the burden of proving ineffective assistance of counsel rests with

the defendant. Branch, 882 So. 2d at 52.

¶25.   We first must determine if Scott met his burden of proving that counsel’s performance

was deficient. In Branch, this Court considered a defendant who claimed ineffective

assistance of counsel due to failure to make a Batson objection during the guilt phase of a

trial. Branch, 882 So. 2d at 58. The Branch Court concluded, “Failure to raise a meritless

objection is not ineffective lawyering.” Branch, 882 So. 36 at 60. According to Branch,

in order to succeed on a claim of ineffective assistance of counsel based on a Batson

objection, the objection must be valid. Branch, 882 So. 2d 36 at 58. As we discussed in

section II above, Scott provided insufficient, if any, evidence that the Batson objection was

valid. Since Scott has not met the burden of the first prong, there is no reason to reach the

second prong of the test for ineffective assistance of counsel.

                                              10
       III.    Whether the circuit court erred in refusing to give his peremptory
               instructions.

¶26.   Scott was indicted on three charges, robbery, attempted kidnaping, and attempted

sexual battery. During trial, Scott proposed three peremptory instructions, one for armed

robbery, one for sexual battery, and one for attempted kidnaping. All three were refused.

The jury found Scott guilty of robbery, not guilty of attempted kidnaping, and was unable

to reach a verdict on the charge of attempted sexual battery. As Scott did not offer a

peremptory instruction for the crime of simple robbery, this issue is without merit.

       IV.     Whether the circuit court erred in denying Scott’s motion for JNOV.

¶27.   After trial, Scott moved for JNOV or, in the alternative, for a new trial. The trial court

denied the motion. A motion for JNOV challenges the legal sufficiency of the evidence.

Hicks v. State, 973 So. 2d 211, 214 (Miss. 2007). “Reversal can only occur when the

evidence of one or more of the elements of the charged offense is such that reasonable and

fair-minded jurors could only find the accused not guilty.” Randolph v. State, 852 So. 2d

547, 555 (Miss. 2002).

¶28.   The prosecution was required to prove beyond a reasonable doubt each element of

robbery. Mississippi Code Annotated Section 97-3-73 (Rev. 2006) provides that the crime

of robbery is committed by a “person who shall feloniously take the personal property of

another, in his presence or from his person and against his will, by violence to his person or

by putting such person in fear of some immediate injury to his person . . . .” The indictment

alleged that the property was taken from the victim by putting her “in fear of immediate

injury to her person . . . .”



                                              11
¶29.   At trial, the victim testified that James Wesley Scott followed her to her apartment.

She said that he got out of his car and grabbed her and said, “This is a robbery, give me all

your money.” The victim testified that Scott threatened to shoot her, cut her or hit her over

the head with a beer bottle if she tried to get away. The victim said she was terrified and tried

to get away, but that she tripped and he grabbed her again, tearing her clothes. The victim

testified that she dropped her wallet and keys and that a passing car stopped and chased the

defendant away. The victim testified that inside her wallet was her checkbook and also a

voided Domino’s check. The victim identified Scott as her assailant. Officer Shane Tucker

testified that the victim’s checkbook and the voided Domino’s check were recovered from

Scott’s vehicle pursuant to a search warrant.

¶30.   Consequently, there is evidence in the record which is sufficient to support the jury

verdict that Scott was guilty of robbery. It is clear that a reasonable, fair-minded juror could

find beyond a reasonable doubt that Scott was guilty of robbery. Therefore, this assignment

of error has no merit.

       V.     Whether the circuit court erred in denying Scott’s motion for a new trial.

¶31.   Scott’s post-trial motion sought JNOV or, in the alternative, a new trial. Scott argues

that a new trial is warranted because the state improperly amended his indictment. This

argument was first advanced during trial when Scott moved to dismiss the indictment, then

again in an objection during deliberations over jury instructions, and finally in his motion for

JNOV or, in the alternative, for a new trial. The crux of Scott’s argument is that the original

indictment stated that the personal property taken from the victim was “a wallet.” Through

counsel, Scott argued, “Proof here has not shown the taking and carrying away of a wallet.


                                               12
It has only shown at best that a checkbook and a check were found in Mr. Scott’s car.” The

state responded that there was sufficient evidence to sustain a conviction on each of the

counts charged. The trial court denied Scott’s motion to dismiss the indictment.

¶32.   During deliberations over jury instructions, the state sought to introduce an instruction

that stated that the personal property taken from the victim was a “wallet and checkbook.”

The defendant argued that such an instruction did not track the language of the indictment.

The state responded that a wallet includes in its contents a checkbook. The state then moved

to amend the indictment to conform to the proof. The trial court granted the motion and

amended the indictment to say “wallet and checkbook.” After trial, Scott filed his motion

for JNOV or, in the alternative, for a new trial, and the trial court denied it.

¶33.   “Allowing an amendment to the indictment after the close of evidence does not,

standing alone, constitute reversible error. An indictment may be amended without action

of the grand jury if the amendment is one of form and not of substance.” Goodin v. State,

2008 Miss. LEXIS 143, *4 (Miss. Mar. 20, 2008) (citing Spann v. State, 771 So. 2d 883, 898

(Miss. 2000)). Amendments are permissible if they do not prejudice the defendant by

materially altering the essential facts of the offense or a defense under the original

indictment. Lee v. State, 944 So. 2d 35, 40 (Miss. 2006).

¶34.   In Greenlee v. State, this Court held that amending a murder indictment from “malice

aforethought” to “deliberate design” is one of form, not substance. Greenlee v. State, 725

So. 2d 816, 822 (Miss. 1998). In the present case, the original indictment included the word

“wallet,” and the amendment thereto merely added “and checkbook.” The amendment was

one of form and not of substance. It did not alter the essential facts of the offense charged,

                                              13
nor did it alter an available defense. Therefore, Scott was not prejudiced by the addition, and

this issue has no merit.

                                      CONCLUSION

¶35.   Scott did not meet his burden of proof on his claim of ineffective assistance of

counsel. Even if Scott did not waive the Batson challenge, he failed to establish a prima

facie showing of discrimination. Therefore, even in the absence of waiver, the trial court

correctly dismissed Scott’s Batson challenge. Furthermore, the trial court did not err in

rejecting the peremptory instructions offered by Scott nor in denying Scott’s motion for

JNOV or, in the alternative, for a new trial.

¶36. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.
CONVICTION OF ROBBERY AND SENTENCE OF FIFTEEN (15) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

     WALLER, P.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND
LAMAR, JJ., CONCUR. DIAZ, P.J., CONCURS IN RESULT ONLY. GRAVES, J.,
DISSENTS WITHOUT SEPARATE WRITTEN OPINION.




                                                14
