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Lomax v. State

Court of Appeals of Mississippi

February 21, 2017

GEORGE LOMAX APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 02/24/2015

         HOLMES COUNTY CIRCUIT COURT HON. JANNIE M. LEWIS JUDGE

          ATTORNEY FOR APPELLANT: DAMON RAMON STEVENSON

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE

          DISTRICT ATTORNEY: AKILLIE MALONE OLIVER

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

          FAIR, J.

         ¶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 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).

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

         3.Batson ...


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