             IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                    NO. 2015-KA-00844-COA

GEORGE LOMAX                                                                   APPELLANT

v.

STATE OF MISSISSIPPI                                                             APPELLEE

DATE OF JUDGMENT:                              02/24/2015
TRIAL JUDGE:                                   HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                     HOLMES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        DAMON RAMON STEVENSON
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL
                                               BY: BILLY L. GORE
DISTRICT ATTORNEY:                             AKILLIE MALONE OLIVER
NATURE OF THE CASE:                            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                       CONVICTED OF SEXUAL BATTERY AND
                                               SENTENCED TO THIRTY YEARS IN THE
                                               CUSTODY OF THE MISSISSIPPI
                                               DEPARTMENT OF CORRECTIONS, WITH
                                               TWENTY YEARS TO SERVE, FOLLOWED
                                               BY FIVE YEARS OF SUPERVISED
                                               PROBATION AND FIVE YEARS OF
                                               UNSUPERVISED PROBATION, AND TO
                                               REGISTER AS A SEX OFFENDER
DISPOSITION:                                   AFFIRMED: 02/21/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

         BEFORE LEE, C.J., BARNES AND FAIR, JJ.

         FAIR, J., FOR THE COURT:

¶1.      George Lomax was convicted of the sexual battery of Abby,1 a sixteen-year-old

student at the high school where Lomax was assistant principal. Lomax was accused of


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             We use fictitious names to protect the identity of minors who are victims of sexual
abuse.
ordering the girl to an unoccupied room, where he instructed her to remove her clothes and

had sex with her. The victim reported the incident a short time later, and Y-DNA consistent

with Lomax’s was found in her underwear. Lomax was convicted, and he appeals,

challenging the trial court’s decisions on jury selection and evidentiary issues. We find no

error and affirm.

                                       DISCUSSION

       1.     Prosecution Challenge for Cause

¶2.    During voir dire, the prosecution successfully challenged for cause a juror whose

niece and nephew had been represented by Lomax’s attorney in a prior felony case. On

appeal, Lomax contends that this was an insufficient basis to strike the juror for cause

because she maintained she could still be fair and impartial.

¶3.    “Generally, a juror removed on a challenge for cause is one against whom a cause for

challenge exists that would likely affect his competency or his impartiality at trial.” Berry

v. State, 703 So. 2d 269, 292 (¶85) (Miss. 1997) (citation omitted). But “[t]he selection of

jurors is a judgment call peculiarly within the province of the circuit judge, and one we will

not on appeal second guess in the absence of a record showing a clear abuse of discretion.”

Adkins v. Sanders, 871 So. 2d 732, 740 (¶31) (Miss. 2004) (citation and internal quotation

marks omitted). The “trial court is entitled to deference when its for cause strikes are

reviewed because of its ability to evaluate the demeanor of potential jurors . . . .” Berry, 703

So. 2d at 292 (¶87).


                                               2
¶4.    Contrary to Lomax’s contentions, it does not appear that the juror was struck for cause

because of her family’s prior representation by Lomax’s attorney. Instead, the juror had

failed to respond when the venire was questioned regarding whether a family member had

been accused of a crime. She attributed this to low blood sugar and back pain.

¶5.    Because of the juror’s failure or inability to respond to questions during voir dire and

her admitted health issues that would have made it difficult for her to serve on the jury, we

can find no abuse of discretion in the trial court’s decision to excuse her for cause.

       2.     Defense Challenge for Cause

¶6.    Next, Lomax challenges the trial court’s refusal to remove for cause Juror 8, who had

stated he was “friends with” the victim’s father. When questioned whether he could be

impartial, Juror 8 stated that he could. No further information was elicited from this

venireman, and the trial court refused to strike him for cause.

¶7.    As noted in our discussion of the previous issue, we afford great deference to the trial

court in deciding whether to remove a juror for cause. See Berry, 703 So. 2d at 292 (¶85).

Moreover, “[b]efore a claim related to a denial of a challenge for cause may be valid, (1) the

defendant must have exhausted all of his peremptory challenges and (2) an incompetent juror

must be forced by the trial court’s erroneous ruling to sit on the jury.” Burgess v. State, 178

So. 3d 1266, 1276 (¶28) (Miss. 2015).

¶8.    Lomax struck Juror 8 with a peremptory challenge, and he used all six of his

peremptory challenges.     But he makes no effort to show that an incompetent juror


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nonetheless sat on the jury. Thus, Lomax has failed to show reversible error on this point.

       3.       Batson Challenge

¶9.    Next, we address Lomax’s contention that the trial court erred in overruling his

Batson2 challenge to the prosecutor’s use of peremptory challenges, which were alleged to

have been used in a discriminatory manner against African-American males.

¶10.   “When a Batson issue arises, the trial judge acts as the finder of fact.” Walker v.

State, 815 So. 2d 1209, 1215 (¶12) (Miss. 2002). Appellate courts therefore afford “great

deference to a trial-court ruling on a Batson challenge.” Hughes v. State, 90 So. 3d 613, 626

(¶38) (Miss. 2012).

¶11.   Batson challenges in the trial court proceed through a three-step process:

       (1) the defendant must make out a prima facie case by showing that the totality
       of the relevant facts gives rise to an inference of discriminatory purpose;

       (2) once the defendant has made out a prima facie case, the burden shifts to the
       State to explain adequately the racial [or sexual] exclusion by offering
       permissible, race-neutral justifications for the strikes; and

       (3) if a race-neutral explanation is tendered, the trial court must then decide
       whether the opponent of the strike has proved purposeful racial [or sexual]
       discrimination.

Pruitt v. State, 986 So. 2d 940, 942-43 (¶8) (Miss. 2008).

¶12.   Here, the Batson challenge did not proceed past the first step. The State tendered a

jury to Lomax after using two of its six peremptory challenges, which Lomax challenged



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           Batson v. Kentucky, 476 U.S. 79 (1986).

                                              4
under Batson.3 Both of the strikes were against black males. The panel tendered by the State

consisted of eleven African-Americans (three male and eight female) and one white male.

Lomax offered in support of his challenge only what was essentially a conclusory statement

that the jurors could not be struck for cause.

¶13.   On appeal, Lomax contends that this case presents a novel question under Mississippi

law – whether race/sex combinations constitute a cognizable group for Batson purposes. In

Ross v. State, 16 So. 3d 47, 58-60 (¶¶28-32) (Miss. Ct. App. 2009), this Court observed that

the question was one of first impression in Mississippi and “a developing and divisive issue”

in other courts. But the issue arose in Ross in the context of assertions of plain error and

ineffective assistance of counsel, and this Court did not reach the merits of the argument.

See id. at 60 (¶32). We likewise find no need to resolve the question today, because Lomax’s

challenge fails even if we assume black male veniremen are a cognizable group for the

purposes of this analysis.

¶14.   “A defendant satisfies the requirements of Batson’s first step by producing evidence

sufficient to permit the trial judge to draw an inference that discrimination has occurred. If

the defendant fails to make out a prima facie case showing a discriminatory purpose, the

inquiry ends.” Smith v. State, 90 So. 3d 122, 132 (¶37) (Miss. Ct. App. 2012) (citations and

internal quotation marks omitted).


       3
       Lomax initially made the Batson challenge immediately after the State struck its first
venireman, who was the very first venireman on the list (i.e., Juror 1). The trial judge
withheld ruling on the objections until the entire panel was tendered.

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¶15.   Lomax bases his argument almost entirely on his unsupported assertions that the

prosecutors struck two of the three black male veniremen offered and that the only remaining

black male juror was Juror 8, who had identified himself as a “friend” of the victim’s father.

But the record simply does not bear that claim out. Instead, it was observed on the record,

without contradiction, that the jury tendered by the prosecution had four males, three of

whom were black, and eight black females. Otherwise, Lomax offers only the unsupported

claim that there was nothing to distinguish the struck jurors from those who were accepted

by the State. This assertion seems to be manifestly false, as both of the veniremen who were

struck admitted to previously having been accused or convicted of crimes – one had served

three years of nonadjudicated probation for grand larcey, and the other had recently faced

charges in a second-offense DUI. We find no abuse of discretion in the trial court’s finding

that Lomax failed to make a prima facie case of discrimination in the prosecutor’s

peremptory strikes.

       4.     Admission of Hearsay

¶16.   Next, Lomax contends that his attorney was constitutionally ineffective in failing to

object to hearsay testimony relating statements of the victim to a friend, an investigator, and

an attending nurse. He also contends that admission of the statements was erroneous. We

address that contention first.

¶17.   Lomax admits that he failed to object at trial to any testimony he now complains of

on appeal, but he does not argue that admitting the evidence amounted to plain error.


                                              6
Consequently, these contentions are barred on appeal. Redmond v. State, 66 So. 3d 107, 110-

11 (¶11) (Miss. 2011).

       5.      Ineffective Assistance of Counsel

¶18.   The gravamen of Lomax’s complaints on these issues is his claim that his counsel was

constitutionally ineffective for failing to object to hearsay statements of the victim. The first

was a short summary of the incident, related by a schoolmate of the victim. The friend was

the first person the victim told about the incident, a short time after it actually occurred. She

described the victim as visibly shaken – trembling, hyperventilating, and crying. Lomax also

complains about short summaries of the incident as related by the victim to a police

investigator, and, a short time later, to an attending nurse. Both of these also occurred within

a few hours of the incident. The nurse testified that the account given to her was for the

purpose of the victim’s medical treatment, but she also described the victim as still under the

stress of the incident; while she was examined, the victim looked downwards and manifested

a “flat affect” (meaning a severe reduction in emotional expressiveness). Finally, Lomax

complains about hearsay testimony from the victim’s friend that, some time later, the victim

had stated that she was telling the truth. We note also that the victim testified at the trial and

was subject to cross-examination.

¶19.   The Mississippi Supreme Court has stated:

       It is unusual for this [c]ourt to consider a claim of ineffective assistance of
       counsel when the claim is made on direct appeal. This is because we are
       limited to the trial court record in our review of the claim[,] and there is
       usually insufficient evidence within the record to evaluate the claim . . . .

                                                7
       [W]here the record cannot support an ineffective assistance of counsel claim
       on direct appeal, the appropriate conclusion is to deny relief, preserving the
       defendant’s right to argue the same issue through a petition for post-conviction
       relief. This Court will rule on the merits on the rare occasions where (1) the
       record affirmatively shows ineffectiveness of constitutional dimensions, or (2)
       the parties stipulate that the record is adequate to allow the appellate court to
       make the finding without consideration of the findings of fact of the trial
       judge.

Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003) (internal citations and quotations

omitted). Here, the State expressly declines to stipulate that the record is adequate to allow

this Court to make a determination.

¶20.   To succeed on an ineffective-assistance-of-counsel claim, Lomax must satisfy the

two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687 (1984), and adopted

by the Mississippi Supreme Court in Stringer v. State, 454 So. 2d 468, 476-77 (Miss. 1984).

“First, the defendant must show that counsel’s performance was deficient . . . . Second, the

defendant must show that the deficient performance prejudiced the defense.” Id. at 477

(quoting Strickland, 466 U.S. at 687).

¶21.   The record here does not affirmatively indicate that Lomax suffered denial of effective

assistance of counsel of constitutional dimensions. Instead, it appears that much of the

complained-of hearsay was either harmless or would have fallen within the hearsay

exceptions for excited utterances and statements for the purpose of medical diagnosis or

treatment. See M.R.E. 804(2), (4). But because the State has not stipulated that the record

is adequate for final disposition of this issue, we decline to decide it, and we deny relief

without prejudice to Lomax’s right to seek post-conviction relief if he chooses to do so.

                                              8
       6.      Prosecutorial Misconduct

¶22.   Lomax next contends that the prosecutor committed misconduct during the direct

examination of the victim’s friend, to whom the victim had first disclosed the incident. The

prosecutor had asked the friend how the other children at school had reacted to the victim’s

allegations. Lomax objected on the grounds of relevance, and his objections were overruled.

The friend answered that the other students’ responses had been negative and that they

treated the victim as if she had lied. The prosecutor then (after another relevance objection)

asked how the victim had felt about this, and the following exchange occurred:

       Q.      Did [the victim] tell you how this made her feel with kids talking [–]
               making fun of her and talking about her?

       A.      Yes, she said. She said it made her feel bad. Because she wasn’t lying.
               She was telling the truth, I mean.

       Q.      As far as your personal knowledge had Mr. Lomax done anything
               inappropriate around you?

       [Lomax’s attorney]: Objection, Your Honor.

       THE COURT: Sustained.

¶23.   Lomax contends on appeal that “this question was wholly inappropriate and

inflammatory and denied [him] a fair trial by implying that [he] was guilty of other

misconduct.”

¶24.   We agree that a prosecutor may not use leading questions to insinuate misconduct of

the defendant, nor may she ask questions without a good faith basis. Hosford v. State, 525

So. 2d 789, 793 (Miss. 1988). But in this particular instance, the prosecutor’s question may

                                              9
have been an attempt to clarify the witness’s prior answer as to whether the witness

personally knew the victim was not lying or whether she was just relating what the victim

had told her. Regardless, Lomax’s objection was sustained. “The rule is well established

that when an isolated prejudicial question or comment by the prosecution is promptly

objected to and the objection is sustained, and particularly when the circuit judge instructs

the jury to disregard the incident, there is a presumption the action on the part of the trial

court cured the error.” Smith v. State, 530 So. 2d 155, 161 (Miss.1988). While the trial court

did not instruct the jury to disregard that particular question, Lomax did not ask it to do so.

The trial judge did, however, give jury instruction C-CR-1, which stated in relevant part that

the jury “should not speculate as to possible answers to questions which the Court did not

require to be answered, and . . . should not draw any inference from the content of those

questions.”

¶25.   We conclude that Lomax has failed to show any reversible error on this point.

       7.     Exclusion of DNA Evidence

¶26.   Finally, Lomax contends that the trial court “erred in refusing to allow evidence that

the DNA testing of [the victim’s] panties revealed the presence of another male profile.”

This contention is perplexing, as the trial judge appears to have made no such decision, and

the jury heard the evidence Lomax claims was precluded – that in addition to Y-DNA

consistent with that of Lomax, trace amounts of Y-DNA from at least two other male

individuals were found on the victim’s underwear. The jury also heard that sexual contact


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was one possible source of the Y-DNA.4

¶27.   We find no merit to this issue.

¶28. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH
TWENTY YEARS TO SERVE, FOLLOWED BY FIVE YEARS OF SUPERVISED
PROBATION AND FIVE YEARS OF UNSUPERVISED PROBATION, AND TO
REGISTER AS A SEX OFFENDER, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON AND GREENLEE, JJ., CONCUR.           WESTBROOKS, J., NOT
PARTICIPATING.




       4
        The State’s expert testified that Y-DNA could be also transferred by casual contact,
from a variety of sources including skin cells, and that the strength of the samples did not
necessarily imply more significant contact.

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