IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-01064-COA ALVIN LEE JOHNSON A/K/A ALVIN JOHNSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/01/2015 TRIAL JUDGE: HON. LAMAR PICKARD COURT FROM W HICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: M.A. BASS JR. MICHAEL R. BONNER ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA AINSW ORTH JASON L. DAVIS DISTRICT ATTORNEY: ALEXANDER MARTIN NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, STATUTORY RAPE, AND SENTENCED TO LIFE; AND COUNT II, STATUTORY RAPE, AND SENTENCED TO FIFTEEN YEARS, W ITH THE SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED: 02/28/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Alvin J o h n s o n was convicted of two counts of statutory rape i n violation of Mississippi Code Annotated section 97-3-65 (Rev. 2014). Johnson w as sentenced to a term of lif e f o r Count I and f

if teen y ears f

or Count II, t o run c oncurrently

. T he c i r c u it courtdenied Johnson’s posttrial m otions. Johnson now appeals. W e f ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Between June and August of 2014, Alvin Johnson was a f requent visitor to the hom e of Angie Harris and Clif t on Green. Johnson, a long-tim e f am ily f riend, spent num erous hours at the hom e and was w ell k nown to Angie’s daughters, A .H. and T.H. 1 A.H., who was eleven y ears o ld, inf

orm e d h er g odm other that she had sex wi t h Johnson and believed she

m ay be pregnant. Angie reported the allegation to the Port G i bson Police Departm ent. Af ter

an investigation, it was d eterm ined that A .H. had been sexually activ e . Wh e n q uestioned, T.H., who was f

i f teen at the t im e , also adm itted to having a sexual r elationship with Johnson. Johnson was twenty -nine y ears old when the allegations were m ade. ¶3. Johnson w as indicted on two counts of statutory rape, in v iolation of Mississippi Code Annotated section 97-3-65. Statutory rape is com m itted when: [ A]ny person seventeen (17) y ears o f age or older h as sexual intercourse with a child who

. . . [ i]s at least f ourteen (14) b ut u nder s i xteen (16) y ears of age; [ i] s t h i rty -six (36) o r m ore m o nths y ounger than the person; and [ i]s not the person’s spouse; or [ w hen a] person o f any age has sexual intercourse with a child who

. . . [ i]s under the age of f ourteen (14) y ears; [ i]s twe n t y -f our (24) or m ore m onths y ounger than the person; and [ i]s not the person’s spouse. Miss. C ode Ann. § 97-3-65. A f ter a jury trial, on May 27, 2015, Johnson was f ound guilty and sentenced to a term of lif e f or Count I and f

i f teen y ears f

or C ount II, with the sentences to run concurrently

. ¶4. Johnson f

iled m o t ions f

or a new trial and f

or judgm ent notwithstanding the verdict. Both were denied. J ohnson n ow appeals and argues: (1) a n ew trial m ust be g ranted because

1 T o p ro tect th e m in o rs’ p riv acy , w e h av e su b stitu t ed in itials in p lace o f th eir n am es. 2a j uror withheld substantial i nf o rm ation or m isrepresented m aterial f acts, and (2) testim ony was adm itted in violation of his right to conf

ront the witnesses against him

. S TANDARD OF REVIEW ¶5. “This Court m ay not reverse the [ trial] court’s decisions regarding jury selec t i on unless there is an abuse of d iscretion.” W illiams v. State , 61 So. 3d 9 81, 984 (¶14) (Miss. Ct. Ap p . 2 0 1 1 )

. “ T he standard of review f or either the adm ission or e xclusion of evidence is abuse of discretion.” M

c G r i ggs v. S tate , 987 So. 2d 455, 457 (¶3) (Miss. Ct. A pp. 2008) (citation om itted). “ Even if this C o u r t f inds an erroneous adm ission or exclusion of evidence, we will not reverse unless the error adversely af f ects a substantial right of a party .” Id. (citation om itted). ANALYSIS I. Voir Dire ¶6. Johnson argues the trial court erred when it qualif ied Shirley Darden as a juror. He contends that Darden f

a iled to respond when asked if she knew John son or his f am ily

m em bers. He argues the om ission im plies prejudice and warrants a new trial. ¶7. The State contends Johnson never objected to Darden sitting as a juror. Rather, it was the State’s objection, af

ter the trial com m enced, that initiated the trial judge’s voir dire of Darden. The State asserted Darden had k nowledge of Johnson and h i s c h ildren through a convoluted relationship. 2 The State f urther contends it was Johnson’s attorney who argued Darden could still be f

air and im partial despite her knowledge of him

. The trial court f ound

2 D ard e n h ad a c h ild w ith K en t H ill, w h o se b ro th er is Jo e H ill. Jo e H ill’s d au g h ter, K i w a n a H ill, w as Jo h n so n ’s g irlf rien d an d th e m o th e r o f

h is ch i ld

. 3the sam e and denied the State’s m otion to exclude Darden f rom the jury . The State argues that Johnson neither objected during trial nor i n a n y of his p osttrial m o tions a nd is now procedurally

barred f rom raising the issue. ¶8. The Mississippi Suprem e Court has “recognized a procedural bar on appeal where the def ense has f

ailed [ to] tim ely

. . . object to the State’s perem p tory challen g e s to venire

m em bers.” Keller v. State , 138 So. 3d 817, 842 (¶43) (Miss. 2014) (citations om itted). “Moreover, a party w ho f ails to object to the jury ’ s co mp o s ition bef ore it is em

paneled waives any

right to com

p lain thereaf

ter.” Id. “A def

endant who w ishes to claim error has

an obligation to call to the court’s attention m atters of which he is a ware, and should he f ail

to do so, he waives a ny objection.” Doss v. State , 906 So. 2d 836, 840 (¶16) (Miss. Ct. App. 2004). ¶9. Johnson did n o t o bject to Darden as a j ury m em ber, either bef

ore trial,

contem poraneously w ith th e S t a t e ’ s objection during trial, or in his posttrial m otions. Johnson f i led two posttrial m o tions, and each specif ied w hy he believed that he was entitled to a new trial. But neither m otion asserted the present issue now on appeal. ¶10. Johnson’s f

a ilure to t im ely assert an objection to the trial court’s decision to allow Darden as a jury m em

ber i s procedurally barred. This Court previously held, in Doss , and f inds sim ilarly here, that it was likely Johnson believed D arden “would be a f avorable juror, and theref

ore did not [ initially ] challenge her.” This issue is without m erit. ¶11. Notwithstanding the procedural bar, we analy ze this issue on the m erits. This Court has held “ w hen a p arty s hows that a juror withheld substantial inf o rm a tion o r m i srepresented

4m aterial f

acts, and where a f

ull and com

plete response w ould h ave p rovided a valid basis f or challenge f

or cause, the trial court m ust grant a new trial

. . . .” W alker v . State , 121 So. 3d 320, 323 (¶6) (Miss. Ct. App. 2013) (citations om itted). This Court, in W right v. State , 9 So. 3d 447, 451 (¶14) (Miss. Ct. App. 2009), def e rred to the suprem e court’s a s sessm ent of juror im p artiality : Under M ississippi l aw, a ny p e rson n ot disqualif ied under Mississippi Code Annotated section 13-5-1, who will m ake oath th a t h e o r she is im partial, is com petent to sit as a juror in a crim inal case. The trial judge whose d uty i s to see that a com

petent, f air, and im

partial jury is em

paneled, i s em

powered with broad discretion to determ ine whether a p r o s p e ctive juror can be f air and im p artial—not

w i t h s t a nding the juror’s adm ission u nder o ath that he o r she will be. (Quotin g A rcher v. State , 986 So. 2d 951, 958-59 (¶30) (Miss. 2008)). Further, this Court has h eld “[ a] person is com p etent to be a juror if the juror has no interest, bias or prejudice in the prosecution, and the juror h as no desire t o reach a r esult other than that gained f rom the evidence and the law in the case.” W illiams , 61 So. 3d at 984 (¶14). ¶12. In this case, the trial judge f ound no e v i d e n c e t h at Darden could not be f air and im p artial. Although D arden did not initially disclose knowledge o f Johnson, this om ission

was later cured. The trial judge c onducted a second voir d ire a nd discovered the convoluted, distant relation of D arden and Johnson. W he n a s k ed, Darden did not deny knowledge of Johnson; she adm i tted that she was f am i liar with Johnson f

rom around P ort G ibson. Darden was not a blood relative and did not have a personal relationship with Johnson. ¶13. W e do not f

i nd error o ccurred when Darden was allowed to continue a s a juror, af ter the S tate’s m id-trial objection to her presence. L angston v. State , 791 So. 2d 273, 281 (¶20)

5(Miss. Ct. App. 2001). Thus, the trial court did not abuse its d iscretion when it accepted

Darden’s a ssurance that s he c ould render a f air and im partial judgm e nt. This issue i s without

m erit. II. Confrontation Clause ¶14. Johnson n ext argues that the t e s t i mo n y of Chief Calvin Jackson of the Port Gibson Police Departm ent was a dm itted in violation of the Conf rontation Clause. J ohnson asserts that Chief Jackson w as perm itted, over several objectio n s , to give testim onial evidence concerning the i nvestigation. Johnson c ontends the trial court erred when it allowed Chief Jackson to testif

y as to w hat he was told by witnesses during the course of h is investigation. He argues this deprived him of the ri g h t t o cross-exam ine, im peach, and challenge the credibility

of each witness in the presence of the jury

. ¶15. The State contends t h a t J ohnson a sserted hearsay objections at trial, rather than objections based on violations of his rights under the Conf ront a tion Clause of the Sixth Am endm ent. The State argues Johnson’s f ailure to object, either contem poraneously or in his posttrial m otions, procedurally bars his a ssert i o n o f e r r or on appeal. The State f urther contends that Chief

Jackson’s testim ony , regarding witness statem ents, was given to detail the n e x t s t e p s t a ken in the investigation, not to establish the truth of the m atter asserted, which would violate the hearsay rule. ¶16. In E

zell v . State , 132 S o. 3 d 611, 612 (¶3) (Miss. Ct. App. 2013), this Court held that

a crim inal def

end ant’s argum ent was procedurally barred, where he f ailed to m ake a
contem poraneous Sixth Am endm ent (Conf ro n t a t i o n Clause) objection to the adm ission of

6testim o ny and did not raise an objection in his posttrial m otions. This Court h ad previously

recognized that a violation of the Conf rontation Clause im

p acts a f undam e ntal, s u

bstantive right. Id. (citation om i tted)

. However, this Court a l so held “gen e r al hearsay objection[ s] [ are] insuf

f icient to preserve an alleged Conf rontation Clause violation f o r a p p e l l a t e review.” Anthony v. State , 23 So. 3d 611, 620 (¶41) (Miss. Ct. App. 2009) (citations om itted). ¶17. Johnson relied heavily o n Crawford v. W ashington , 541 U.S. 36 (2004), to support his

a r g u me n t f

o r reversible error. In Crawford , the U nited States Suprem e C o urt held that “where the out-of

-court statem ent is ‘testim onial’ in natur e , the statem ent i s generally not adm issible unless the declarant is unavailable t o testif y in court, and the def

endant has had a prior opportunity

to cross-exam ine him or her.” A nderson v. State , 1 So. 3d 905, 914-15 (¶25) (Miss. Ct. App. 2008) (citing C r a w f o r d , 5 41 U.S. at 54). A t the trial-court level, Johnson asserted a standing objection to h earsay evidence. He did not, h owever, object on the basis that he was denied the right to conf ront the witnesses who provided statem ents to Chief Jackson. Thus, he ef

f ectively waived the issue f

or appeal. III. Hearsay ¶18. We n o w a ddress this issue under a h earsay analy s is a s the u nderly ing bas i s o f Johnson’s contention. “ Under Mississippi Rule of Evidence 801(c), hearsay is def ined as ‘a
statem ent, other than one m ade by the declarant w h i l e t e s t i f y ing at the trial or hearing, of f ered in[ to] evidence to prove the truth of the m atter asserted.’” W hittington v. State , 49 So. 3 d 107, 110 (¶13) ( Miss. Ct. App. 2010) (qu o t i n g M

. R

. E

. 801(c)). A trial court’s d e cision t o adm it o r exclude testim ony is reviewed f or abuse of discretion. M cGriggs v .

7State , 9 87 So. 2d 4 55, 457 (¶3) (Miss. Ct. App. 2008). “Even if this Court f i nds an erroneous adm ission or e xclusion of evidence, we will n ot reverse unless the e rror adversely af f ects a substantial right of

a party .” Id. ¶19. J o h nson raises a n argum ent that has previously been placed bef ore this Court. T h e suprem e court has held: “[ A ]dm itting out-of -court statem ents m ade to the police during the

course of their investigations is perm issible.” Gray v. State , 931 So. 2d 627, 631 ( ¶14) (Miss. Ct. App. 2006) ( citing Swindle v. State , 502 So. 2d 652, 658 (Miss. 1 987)). F urther, this C o u r t, in Anderson , aligned with the suprem e court’s f inding that “[ i]t is elem e n tal that a police of f icer m a y show that h e h as received a com plaint, and what he did about the

com plaint[ ,] without going into the details of it.” Anderson, 1 So. 3d at 914 (¶25) (quoting Swindle v. State , 502 So. 2d 652, 658 (Miss. 1987)). ¶20. Here, w e f

ind that Chief

Jackson’s testim ony

was not hearsay , and theref ore, it was adm issible. The trial court did not abuse its discretion when it allowed Chief Jackson to testif y about the witness s tatem ents given to him during the course of his investigation. None of the statem ents were adm itted to prove the truth of the m a tter asserted but rather to explain the next steps in C hief Jackson’s investigation. “Further, even if [ Chief Jackson’s] recitation of the witnesses’ statem ents were considered to be testim onial, any error by the trial court in adm itting the statem ents would be harm less” because the testim ony was given to detail the steps taken to develop Johnson as a suspect. Id. at 915 (¶27). ¶21. THE JUDGMENT O F T HE CLAIBORNE COUNTY CIRCUIT C OURT OF C O N V I CTION OF COUNT I, STATUTORY R APE, AND SENTENCE OF LIFE ; AND CO U N T II, STATUTORY RAPE, AND SENTENCE OF FIFTEEN YEARS, WITH THE SENTENCES TO RUN C O N C U R R E N T L Y , A L L I N T H E C U S T ODY OF

8THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS A F FIRMED. ALL

COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., I R V ING, P.J., BARNES, ISHEE, C ARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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