IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Jul :39: KA COA Pages: 21 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JERRY DEUNTAY CARR APPELLANT VS. NO KA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LAURA H. TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE ISSUES iii STATEMENT OF THE CASE iv STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Federal Cases Bullcoming v. New Mexico, U.S., 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011) Melendez Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) State Cases Armstrong v. State, 214 So.2d 589 (Miss.1968)), , 15 Capler v. State, 237 So.2d 445 (Miss.1970), , 15 Grim v. State, 102 So.3d 1073 (Miss.2012) , 11, 12 Jenkins v. State, 102 So.3d 1063 (Miss.2012) , 11, 12 McGowen v. State, 859 So.2d 320 (Miss.2003) Peterson v. State, 268 So.2d 335 (Miss.1972) , 15 Rhone v. State, 254 So.2d 750 (Miss.1971) , 15 State Statutes Mississippi Code Annotated Mississippi Code Annotated (2)(e) ii

4 STATEMENT OF THE ISSUES I. Applying the rules from Melendez Diaz and Bullcoming, Carr's right to confront the witnesses against him was not violated by the testimony of William Jones, a supervisor who served as the technical reviewer of the DNA analysis performed by Alexandria Brady. II. The trial court did not err in using a random selection method to choose two alternates prior to deliberations. iii

5 STATEMENT OF THE CASE On June 2, 2011, a Coahoma County Grand Jury indicted Brymon Shield Hamp and Jerry Deuntay Carr for the July 29, 2010 murder of Gerald Simmons while engaged in the commission of the crime of robbery as set forth in the Mississippi Code Annotated (1972, as amended). C..P. 7,8. The trial court severed the cases and Carr was tried separately on August 11-12, Carr was convicted of capital murder in violation of Mississippi Code Annotated Section (2)(e). Following the verdict, the trial court sentenced Carr to serve a term of life in prison in the custody of the Mississippi Department of Corrections without eligibility for parole or any other type of early release. Aggrieved of his conviction, Carr file post trial motions for JNOV or in the alternative for a new trial. C.P. 48. The trial court denied Carr s post trial motions and Carr timely filed his notice of appeal. C.P. 61, 65. iv

6 STATEMENT OF THE FACTS Tracy Vance, a Coahoma County Deputy Sheriff, testified that on July 29, 2010, he was employed by the Friars Point Police Department as the Chief of Police. Tr Deputy Vance was on duty on the afternoon of July 29, Tr Deputy Vance responded to a report to that someone fell out in Simmon s Package Store. Tr Deputy Vance went to the package store which was about half a block away. It took him less than a minute to arrive at the scene, at approximately 2:45 p.m. Tr Deputy Vance found Simmons lying on the floor behind the counter. Simmons was laying on his side and blood was on him and on his shirt and splattered on the floor. Blood was coming from Simmon s head and a footprint was on his shirt. Simmons was not able to speak to Deputy Vance. Tr The cash register was open and Deputy Vance could see that the bills in the cash drawer had been removed. Tr The scene appeared to be a robbery and a few people were outside the store. The front door to the package store was open. Tr Deputy Vance called for an ambulance and contacted the sheriff s department for assistance. Tr Deputy Vance took photos of the scene. Tr Deputies Oliver Mitchell and Dewayne Harvey arrived at the scene to assist Deputy Vance. Tr While he was at the scene, Deputy Vance received a phone call regarding the case. He passed in the information along to Investigator Neal Mitchell. Deputy Vance spoke with the people outside the package store and was not able to gain any additional information regarding the case. Tr Deputy Vance turned the investigation over to Neal Mitchell. Tr Dewayne Harvey testified that he is currently employed by the West Helena Police Department as a Detective. On July 29, 2010, Vance was employed by the Coahoma Sheriff s 1

7 Office as a deputy. (Tr. 132) On that date, Deputy Harvey came into contact with Jerry Carr on Port Road. TR Deputy Harvey had received a BOLO. As a result, at about 6:00 or 7:00 p.m., he came in contact with a black Chevrolet four door Caprice in which Carr was a passenger. The car was driven by Brymon Hamp. Deputy Harvey tried to pull the vehicle over on Port Road. The vehicle did not stop so Deputy Harvey followed the vehicle to Friars Point 61 Road. The vehicle ran a stop sign and made a left term on Friars Point 61 Road off of Port Road and headed toward Highway 1. Detective Harvey pursued the vehicle and his overhead lights were on at that point. The vehicle did not stop. As they approached Highway 1, the vehicle ran the stop sign at Highway one and narrowly missed an elderly couple in another vehicle. The vehicle was traveling at about 70 to 75 miles per hour, which was above the speed limit. Tr Deputy Harvey followed Hamp and Carr toward Coahoma, but kep in contact with other officers letting them know where he was. When Deputy Harvey looked in his rear view mirror he could see that other deputies had caught up. The two sheriff s department cars then boxed in the vehicle and forced it to stop. They got Hamp and Carr out of the vehicle and waited for the investigators to arrive. Tr The other officers on the scene were Rico Smith and Officer Billy Joe Haley. Investigator Herb Thomas was also on the scene. Deputy Harvey transported Byrom Hamp to the station. Tr Someone pointed out blood on Jerry Carr s shoes. Tr On July 29, 2010, Neal Mitchell was employed by the Coahoma Sheriff s Department as an investigator and a K-9 handler. Investigator Mitchell received information from the Coahoma County Sheriff s Department in reference to an alleged assault and robbery which occurred in Friar s Point. The dispatcher told Mitchell that the victim, Gerald Simmons, was the owner of the liquor store in Friar s Point and was in the hospital. Tr Mitchell attempted to speak 2

8 with Simmons who had some lacerations or cuts to his head. Mitchell could not see any other injuries. Tr Investigator Herbert Thomas was also assigned to the case. Thomas went to Friar s Point to the package store. After he left Friar s Point, he joined Mitchell at the hospital. Mitchell discovered a tennis shoe print on Mr. Simmon s clothing. He gathered the clothing as part of the investigation. Officer Herbert Thomas relayed to Mitchell that Chief Tracy Vance had gotten a phone call regarding the incident. Investigator Neal Mitchell then called Deputy Oliver Mitchell and gave him the information. Tr Neal Mitchell testified that he and Investigator Herbert Thomas left the hospital and began looking for suspects based on the information they had. They eventually went to Friar s Point since Deputy Dewayne Vance had notified them that he had come in contact with a black Chevrolet Caprice. Vance told them that he had the vehicle stopped, so Neal Mitchell and Thomas went to the area and observed that two subjects had been taken out of the vehicle and were in handcuffs on the ground. The two individuals who had been taken out of the car were Brymon Hamp and Jerry Carr. Neal Mitchell testified that he observed several bottles of alcohol or whiskey on the back seat. Tr There was a case of Seagram s Gin in the front seat area. Mitchell noticed some blood on Hamp s shoe and then collected the shoes of both of the subjects. When they arrived at the Coahoma County Jail, Mitchell also collected items of clothing from the Hamp and Carr. Neal and Investigator Thomas met with Mr. Simmon s son back at the package store. There were broken beer bottles all over the floor, a strong smell of alcohol and blood everywhere on the floor. Tr Herbert Thomas testified that he is employed in criminal investigations with the Coahoma County Sheriff s Department and that he was an investigator on July 29, Investigator 3

9 Thomas testified that he was investigating Jerry Carr and Brymon Hamp with regards to an aggravated assault and a robbery. Tr Based on a phone call he received from Sergeant Neal Mitchell, Investigator Thomas went out to Friar s Point to look into the assault of Mr. Simmons at the package store. The business was closed to Investigator Thomas went back to Clarksdale and met with Neal Mitchell at the hospital, where Simmons was being treated. Investigator Thomas observed that Simmons was being treated for head injuries. Investigator Thomas left to return to Friar s point, but he learned that there was a pursuit of a black box chevy. Thomas responded and discovered the black vehicle in the middle of the road and other deputies at the scene. Tr There were two suspects, Brymon Hamp and Jerry Carr sitting on the ground. The two subjects were search and money and clothing were taken. Hamp was in possession of $ and Jerry Carr was in possession of $ There was a liter of Absolute Vodka on the front seat and a case of gin on the backseat on the driver s side. Thomas took the bottle of vodka and the case of gin into evidence and they was placed in the property room at the Coahoma County Sheriff s Office. Tr. 187, 188. A shoes and clothing belonging to Jerry Carr and Byrom Hamp were sent to the Mississippi Crime Lab as well. The victim, Gerald Simmons died on Friday, August 6, Jerry Carr and Byrom Hamp were then charged with capital murder. Tr Mr. Steven Little, a forensic scientist specializing in serology at the Mississippi Crime Laboratory, testified that he was asked to examine for blood State s Exhibit 8, which included two black tennis shoes, and a small coin envelope containing the sample from the black tennis shoes. Mr. Little found the presence of blood on the right shoe. Regarding the testing of State s Exhibt S-9 and S-9(A), Little confirmed the presence of blood on the pair of shorts. Tr

10 The Mississippi Crime Laboratory follows a review process to ensure that work is done correctly and properly. The packets go through two separate analysts after the first review is completed before the results can be released from the laboratory. Tr There was also blood found on a pair of blue jeans and trace amounts of blood found on a pair of suspenders which were in the package with the blue jeans, which were labeled as the victim s clothes. William H. Jones, the section chief of the bioscience section in the Mississippi Crime Laboratory. Three items were submitted to the lab for analysis. One was a known sample or reference sample from Gerald Simmons. There was two unknown samples, one taken from the toe of a shoe and the other taken from a cutting from a right front pocket. Jones testified that he did a technical review of the analyst s work in testing the two unknown specimens against the known specimen. Jones testified that he reviewed all of the aspects of the analyst s DNA analysis. The analyst in this case was Alexandria Bradley who is also a member of the Mississippi Crime Lab in Jackson. Bradley concluded that the samples of the swab from the left side toe and the cutting from the stain on the right pocket produced a DNA profile that was consistent with the known sample obtained from the medical examiner that was identified as from the victim, Gerald Simmons. Tr Jones testified that the frequency for the profile was that it was approximately one in greater than 10 billion individuals who would have had that genetic profile. The match indicated that it is an extremely rare profile in the human population. Tr Dr. Feng Li testified that she performed the autopsy of the victim, Gerald Simmons. She testified that Simmons died of blunt force trauma and head trauma and that the manner of the death was homicide. Tr

11 Toynda Tinner testified that in July of 2010, Carr lived right behind her in the next apartment. Tinner knew Hamp from school and he was a roommate during summer school. Hamp did not have a job. As a condition of living with Tinner, Hamp was responsible for the gas bill. But he didnot have any money and the gas got turned off or disconnected in June or July of that summer. At noon on July 29, 2010, Hamp and Carr left the apartment. The two were walking uptown. They were gone for a minute but when they came back they had a big case of gin. Hamp and Carr were running with the case of gin. They put it in the back seat of Hamp s black Chevy. Hamp came into Toynda Tinner s residence, told Tonya he had the money for the gas bill, and got a small bag like a shaving kit. Tinner saw that they were leaving and she was afraid they would not come back, so she got in the car with them to get the money. Hamp was in the driver s seat, Carr was in the front passenger seat and Tinner was in the rear passenger seat. Tr They went to get some gas and then went to Cellular south to get Hamp s phone turned on. Next, they went to Moton s to get a tire to replace Hamp s back tire which had a donut. Hamp told Tinner that he robbed Simmons and he hit Simmons upside the head with the gun to get the money out of his pocket. Carr told Tinner that he took the money out of the cash register. The two men were flashing or showing their money. Hamp and Carr took Tinner halfway to Friar s Point and dropped her off at Elmore s, where her sister picked her up. Tinner testified that she was not involved with the robbery. 6

12 SUMMARY OF THE ARGUMENT Carr's right to confront the witnesses against him was not violated by the testimony of William Jones, a supervisor who served as the technical reviewer of the DNA analysis performed by Alexandria Brady. Applying the rules from Melendez Diaz and Bullcoming, the Mississippi Supreme Court has held that a defendant's right of confrontation is satisfied by the testimony of an analyst who reviewed the report for accuracy and signed it as a technical reviewer. Grim v. State, 102 So.3d 1073, 1081 (Miss.2012); Jenkins v. State, 102 So.3d 1063, 1069 (Miss.2012). "a supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was actively involved in the production of the report and had intimate knowledge of analyses even though he or she did not perform the tests first hand." Grim, 102 So.3d at 1081; Jenkins, 102 So.3d at 1069 (internal citations omitted). In each case, the Court held that the defendant "had the opportunity to confront and cross-examine [the analyst] at trial, which satisfied his Sixth Amendment right to confront the witness against him." Grim, 102 So.3d at 1081; Jenkins, 102 So.3d at Based on the testimony of William Jones, who served as the technical and administrative reviewer of the testing, the evidence put on by the State satisfied Grim and Jenkins. Accordingly, there is no error and the jury s verdict and the rulings of the trial court should be affirmed. The trial court did not err in using a random selection method to choose two alternates prior to deliberations. At the close of voir dire, the parties selected 14 jurors to hear the case. The trial court stated on the record: BY THE COURT: Well, then let me do some math and see where we are. I ve got 40. I did a little reading while y all were in your voir dire and discovered only in death penalty cases do I have to give each side a challenge for 7

13 each of the alternates. So I can just give y all one challenge for each of the alternates. So, if I ve got 40 jurors and I have you each one challenge, that s 13. Why goodness, that would be 26. That would leave me 14 jurors. So we could have two alternates. I think that s what we ll do. All right. Mr. or the State, y all know my practice. That is, y all will tender y all will tender 14 jurors to the Defense. You can use up to 13 challenges. We ll begin with Juror No. 3. No jurors were designated as alternates and neither party requested that the alternates be identified prior to trial. Tr. 91. By that process 14 jurors were selected and none were designated as alternates. There were no objections by either party. Tr At the close of trial, the trial judge had the Clerk put the numbers 1-14 in a paper cup and pull out two numbers to determine which jurors would be alternates. The two jurors, numbers 6 and 7, were instructed to remain in the courtroom when the jury retired to deliberate. Tr All of the jurors were from the regular venire and all jurors were selected by the parties in the normal process of jury selection. There were no objections by either party during any part of the process. U.C.C.C.R provides: In cases wherein the punishment may be death or life imprisonment, the defendant and the prosecution shall have twelve (12) peremptory challenges for the selection of the regular twelve jurors. These challenges may not be used in the selection of an alternate juror or jurors. While this process is a technical violation of Rule 10.01, there is not indication of any prejudice to Carr. Carr was allowed to use all of his peremptory strikes. The alternates were selected in an unorthodox but patently unbiased method. Without any prejudice to the Appellant, any error would be harmless. Mississippi Code Annotated Section (Supp.2001) states: 8

14 Alternate jurors impaneled: Except in cases in which jury selection and selection of alternate jurors is governed by rules promulgated by the Mississippi Supreme Court, whenever, in the opinion of a circuit judge or chancellor presiding in a case in which a jury is to be used, the trial is likely to be a protracted one, such circuit judge or chancellor, in his discretion, may direct that one (1) or two (2) jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged at the time the jury retires to consider its verdict. In capital cases the defendant and the state shall each be allowed two (2) peremptory challenges to alternate jurors in addition to those otherwise provided by law. In all other cases each party shall be allowed one (1) peremptory challenge to alternate jurors in addition to those otherwise provided by law. In any criminal case all peremptory challenges by the state shall be made before the alternate juror is presented to the defendant. The additional peremptory challenges provided for herein may be used against an alternate juror only, and other peremptory challenges allowed by law may not be used against an alternate juror. [T]he statutory method of selecting jurors is directory, not mandatory, and unless it is shown that the method used was fraudulent or such a radical departure from the method prescribed by the statute as to be unfair to the defendant or to prevent due process of law, this Court will not reverse. Capler v. State, 237 So.2d 445, 448 (Miss.1970), vacated in part, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 754, on remand, 268 So.2d 338 (Miss.1972) (quoting Armstrong v. State, 214 So.2d 589, 594 (Miss.1968)), cert. denied, 395 U.S. 965, 89 S.Ct. 2109, 23 L.Ed.2d 750 (1969). The jury laws of this state are directory and the selection of the jury in an irregular manner does not render it illegal. Rhone v. State, 254 So.2d 750, 752 (Miss.1971). Rather, the question is whether the jury lists reasonably reflect a cross-section of the 9

15 population. Peterson v. State, 268 So.2d 335, 336 (Miss.1972). be affirmed. This issue is without merit and the jury s verdict and the rulings of the trial court should 10

16 ARGUMENT I. Applying the rules from Melendez Diaz and Bullcoming, Carr s right to confront the witnesses against him was not violated by the testimony of William Jones, a supervisor who served as the technical reviewer of the DNA analysis performed by Alexandria Brady. Applying the rules from Melendez Diaz and Bullcoming (See Melendez Diaz v. Massachusetts, 557 U.S. 305, 310, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Bullcoming v. New Mexico, U.S., 131 S.Ct. 2705, 2717, 180 L.Ed.2d 610 (2011)), the Mississippi Supreme Court has held that a defendant's right of confrontation is satisfied by the testimony of an analyst who reviewed the report for accuracy and signed it as a technical reviewer. Grim v. State, 102 So.3d 1073, 1081 (Miss.2012); Jenkins v. State, 102 So.3d 1063, 1069 (Miss.2012). The Court wrote the following about the testifying analyst in Grim: [The analyst] was able to explain competently the types of tests that were performed and the analysis that was conducted. He had performed procedural checks by reviewing all of the data submitted to ensure that the data supported the conclusions contained in the report. Based on the data reviewed, [he] had reached his own conclusion that the substance tested was cocaine. His conclusion was consistent with the report, and he had signed the report as the technical reviewer. [He] satisfied the McGowen test because he had intimate knowledge of the underlying analysis and the report prepared by the primary analyst. Grim, 102 So.3d at 1081 (citing McGowen v. State, 859 So.2d 320 (Miss.2003)). The instant case is similar to both Grim and Jenkins, in which the Court held that a supervisor, reviewer, or other analyst involved may testify in place of the primary analyst where that person was actively involved in the production of the report and had intimate knowledge of analyses even though he or she did not perform the tests first hand. Grim, 102 So.3d at 1081; Jenkins, 102 So.3d at

17 (internal citations omitted). In each case, the Court held that the defendant had the opportunity to confront and cross-examine [the analyst] at trial, which satisfied his Sixth Amendment right to confront the witness against him. Grim, 102 So.3d at 1081; Jenkins, 102 So.3d at 1069 Williams gave detailed testimony of the tests used to analyze DNA, the process to open the cells to release the DNA, the amplification of the DNA by polymerase chain reaction, and the comparison of the unknown DNA sample to the known sample. Tr Williams testified that he is the section chief over the primary analysts and that in addition to his normal supervisory roles, he has technical roles involving the actual validation of the DNA analysis methods used in the Mississippi Crime Lab. Williams testified that he reviews much of the work that is done. This includes administrative reviews and technical reviews to see that the science is done correctly, that the tests have been performed and the proper controls are used. Williams testified that the lab was called on to review the lab case involving DNA from the victim, Gerald Simmons. He testified that there were three items. One was a known or reference sample from Gerald Williams. The other two were unknown, one from the toe of a shoe and the other was a cutting from an inside right pocket. Williams testified that it was his role to review the work and to be the technical reviewer of the analyst of the work in this particular case. Williams reviewed all aspects of her DNA analysis, right down to reviewing the visual results to look at and observe that the samples did match. As the technical reviewer, he signed the report indicating that he agreed with her results and that he had reviewed all of the technical and administrative portions of the work. Tr Based on the testimony of William Jones, who serve as the technical and administrative reviewer of the testing, the evidence put on by the State satisfied Grim and Jenkins. Accordingly, 12

18 there is no error and the jury s verdict and the rulings of the trial court should be affirmed. II. The trial court did not err in using a random selection method to choose two alternates prior to deliberations. At the close of voir dire, the parties selected 14 jurors to hear the case. The trial court stated on the record: BY THE COURT: Well, then let me do some math and see where we are. I ve got 40. I did a little reading while y all were in your voir dire and discovered only in death penalty cases do I have to give each side a challenge for each of the alternates. So I can just give y all one challenge for each of the alternates. So, if I ve got 40 jurors and I have you each one challenge, that s 13. Why goodness, that would be 26. That would leave me 14 jurors. So we could have two alternates. I think that s what we ll do. All right. Mr. or the State, y all know my practice. That is, y all will tender y all will tender 14 jurors to the Defense. You can use up to 13 challenges. We ll begin with Juror No. 3. No jurors were designated as alternates and neither party requested that the alternates be identified prior to trial. Tr. 91. By that process 14 jurors were selected and none were designated as alternates. There were no objections by either party. Tr At the close of trial, the trial judge had the Clerk put the numbers 1-14 in a paper cup and pull out two numbers to determine which jurors would be alternates. The two jurors, numbers 6 and 7, were instructed to remain in the courtroom when the jury retired to deliberate. Tr All of the jurors were from the regular venire and all jurors were selected by the parties in the normal process of jury selection. There were no objections by either party during any part of the process. U.C.C.C.R provides: In cases wherein the punishment may be death or life imprisonment, the defendant 13

19 and the prosecution shall have twelve (12) peremptory challenges for the selection of the regular twelve jurors. These challenges may not be used in the selection of an alternate juror or jurors. While this process is a technical violation of Rule 10.01, there is not indication of any prejudice to Carr. Carr was allowed to use all of his peremptory strikes. The alternates were selected in an unorthodox but patently unbiased method. Without any prejudice to the Appellant, any error would be harmless. Mississippi Code Annotated Section (Supp.2001) states: Alternate jurors impaneled: Except in cases in which jury selection and selection of alternate jurors is governed by rules promulgated by the Mississippi Supreme Court, whenever, in the opinion of a circuit judge or chancellor presiding in a case in which a jury is to be used, the trial is likely to be a protracted one, such circuit judge or chancellor, in his discretion, may direct that one (1) or two (2) jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges for cause, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged at the time the jury retires to consider its verdict. In capital cases the defendant and the state shall each be allowed two (2) peremptory challenges to alternate jurors in addition to those otherwise provided by law. In all other cases each party shall be allowed one (1) peremptory challenge to alternate jurors in addition to those otherwise provided by law. In any criminal case all peremptory challenges by the state shall be made before the alternate juror is presented to the defendant. The additional peremptory challenges provided for herein may be used against an alternate juror only, and other peremptory challenges allowed by law may not be used against an alternate juror. [T]he statutory method of selecting jurors is directory, not mandatory, and unless it is shown that the method used was fraudulent or such a radical departure from the method 14

20 prescribed by the statute as to be unfair to the defendant or to prevent due process of law, this Court will not reverse. Capler v. State, 237 So.2d 445, 448 (Miss.1970), vacated in part, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 754, on remand, 268 So.2d 338 (Miss.1972) (quoting Armstrong v. State, 214 So.2d 589, 594 (Miss.1968)), cert. denied, 395 U.S. 965, 89 S.Ct. 2109, 23 L.Ed.2d 750 (1969). The jury laws of this state are directory and the selection of the jury in an irregular manner does not render it illegal. Rhone v. State, 254 So.2d 750, 752 (Miss.1971). Rather, the question is whether the jury lists reasonably reflect a cross-section of the population. Peterson v. State, 268 So.2d 335, 336 (Miss.1972). There is no showing of any prejudice and therefore any error is harmless. This issue is without merit and the jury s verdict and the rulings of the trial court should be affirmed. CONCLUSION The assignments of error presented by the Appellant are without merit and the jury s verdict and the rulings of the trial court should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI BY: s/ Laura H. Tedder Laura H. Tedder, MSB # 9530 Special Assistant Attorney General 15

21 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Charles E. Webster Circuit Court Judge Post Drawer 998 Clarksdale, MS Honorable Brenda F. Mitchell District Attorney P. O. Box 848 Cleveland MS Erin E. Pridgen, Esquire Attorney At Law MS Office of the State Public Defender Indigent Appeals Division Post Office Box 3510 Jackson, Mississippi This the 6 th day of July, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/ Laura H. Tedder LAURA H. TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL 16