IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-KA-00201-COA X AVIER LARRY A/K/A X AVIER GIOVANNIE LARRY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/02/2013 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: DAMON RAMON STEVENSON L. ABRAHAM ROW E JR. ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE JASON L. DAVIS DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF BURGLARY OF A DW ELLING AND SENTENCED TO TW ENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH FIVE YEARSSUSPENDED AND FIVE YEARS OF POSTRELEASE SUPERVISION DISPOSITION: AFFIRMED - 08/23/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GREENLEE, J., FOR THE COURT: ¶1. A Madison C o u n t y j u ry convicted Xavier Larry of house burglary

. The trial court sentenced Larry to twenty -f i ve y ears, with twenty y ears to serve. Larry appeals, arguing that the prosecution struck three Af rican Am erican jurors f or pretextual reaso n s , t hat hisconf

rontation r ights were violated, that his trial counsel was inef f ective f or f ailing to request a circum stantial-evidence instruction, and that the evidence was insuf f i cient to support the verdict or, in the alternative, that the verdict was against the weight of the evidence. Finding no error, we af

f irm

. FACTS AND PROCEEDINGS BELOW ¶2. The Ridgeland h om e of Cam eron W illiam s was burglarized on June 9, 2011. The day of the burglary , W illiam s’s baby sitter lef t the house with W illiam s’s child at approxim ately 11:45 a.m . to go t o W alm art. They returned to the h o u se a t approxim ately 12:45 p.m . The baby sitter noticed that a television was m issing. She called W i lliam s, who cam e hom e and called the police. In addition to the television, W i lliam s i dentif i ed as m issing a Dell laptop,

s p eakers, and a CD play er. W illiam s initially told the police that she believed th e s t o l e n television was a Vizio. ¶3. On that sam e day , Of f icer Michael Martin of the Jackson Police Departm ent pulled

over a car f

or speeding. The driver got out of the car and ran away , dropping his cell phone. Martin p icked up the phone. The phone r ang. M art i n answered the phone. The caller, thinking that Martin was the owner of the phone, told Martin that they had “hit a lick” and that “he had som e stolen item s, TVs, and he was wanting to know i f [ Martin] wanted to purchase the i tem s.” M a r t i n r e c e i ved that call at 12:51 p.m . Martin agreed to a tim e and location to purchase the s tolen item s. W hen Larry and a m an nam ed W illiam Jones arrived

at the location, Of

f icer Martin asked where the stolen TVs were, and Larry replied that they were in the trunk. The police recovered f rom the trunk an Em erson television and a Canon

2video recorder. W illiam s later identif i ed the television as the one stolen f rom her hom e. ¶4. Larry denied burgling the h ouse and testif ied in his own def

ense at trial. Prior to trial, he stated t o the p o lice that he had purchased the item s in the trunk f rom a drug addic t

. At trial, he testif

ied that he purchased the item s f r o m a p o p - up thrif

t m arket at a gas-station parki n g lot on Ellis Avenue. Larry ’s testim ony , as well as that o f W i lliam s’s previous boy f riend, John Staten, established that Larry had been inside W illiam s’s house previously when working f

or Staten’s lawn-care com pany . ¶5. W h en the prosecution exam ined Of f icer Martin concerning the item s recovered f rom the trunk of

the car Larry and Jones were driving, Of f i cer Martin recounted a conversation with Jones and stated in part: [ Jones] stated that Xavier Larry had burglarized this house, at that point was a[ n] unknown location to m e, but I k new it was in Ridgeland, and h e said that [ Larry ] took a Dell l aptop, a large T V, a 32-inch TV[ , ]

. . . and a Canon cam corder. That’s why I put [ the Dell laptop] o n my [ evidence] sheet, I listed it as still being stolen, because it wasn’t in the car. Jones did not testif

y a t trial. Larry

did not object to O f

f icer Martin’s testim ony concerning Jones’s statem ents. Jones’s statem ents were ref e r e n c e d a g ain later at trial, both by the def ense and prosecution. ¶6. Prior to trial, Larry objected to the State’s use of three of f our perem

ptory strikes on Af rican Am ericans. E ach s ide was perm i tted up t o six perem p tory strikes. T he race-neutral

reasons put f

o rth by the S tate f

or exercising the s trikes were unem ploy m ent and la c k o f education. The f

irst Af rican A m erican struck was unem ploy ed and had a high-school degree. The second Af

rican Am erican struck had not liste d e mp l o y me n t or education on the jury

3q u e s t ionnaire. The third Af rican A m erican struck h ad a high-school degree. 1 One Af ric a n Am erican served on the j ury . All m em bers o f the jury had college degrees or above. The trial court accepted the State’s race-neutral reasons and denied Larry ’ s Batson challenge. 2 ¶7. The State conceded at v oir dire that the case it would be m aking was c ircum stantial. Larry ’s attorney did not request a circum stantial-evidence jury i nstruction. Larry appeals his conviction and sentence. DISCUSSION I. Batson Challenge ¶8. Larry argues that the trial court erred i n deny i ng his Batson c hallenge. A trial court’s ruling on a Batson challenge is af f orded g reat d ef

erence and will o nly be reversed where the decision is c learly erroneous or against the o verwhelm ing weight o f the evidence. Burnett

v. F ulton , 854 So. 2d 1010, 1013 (¶7) (Miss. 2003). Crim i nal d ef endants “have the right to be tried by a jury w hos e me m b e r s are selected pursuant to non-discrim inatory criteria.” Strickland v. State , 9 8 0 So. 2d 908, 914-15 (¶10) (Miss. 2008) ( quoting Batson v. Kentucky , 476 U.S. 79, 85-86 ( 1 986)). Once a def endant has m ade a prim a f a cie c a s e o f p u rp o sef

ul discrim ination, the party desiring to exercise the c h allenge has the burden to o f f e r a r a c e neutral e xplanation f

or striking the p otential j uror, at w h i c h point the trial court m ust determ ine whether the o bjecting party has m et his burden t o prove there has b een purposef ul discrim ination in the exercise of the perem

ptory challenge. Id . at 915 (¶10).

1 T h e w h ite j u ro r w as stru ckb ecau se sh e w a s a f i f th -g rad e teach er.

2 B a tso n v. K

en t u cky , 4 7 6 U .S . 7 9 (1 9 8 6 ).

4¶9. Unem ploy m en t a n d l a c k o f e d

ucation h ave been w idely accepted as race-neutral

reasons f or exercising a perem

ptory strike. In Lockett v. State , 517 So. 2d 1346, 1352 (Miss. 1987), the M ississippi Suprem e Court f ound that the perem

p tory strike of a n A f

r i c a n Am erican juror on the grounds of y outh, m arital status, and education l evel was race neutral

– eve n though white j urors with less education w ere selected – where none o f the white ju r o r s s e l e cted possessed a sim ilar com bination of y outh, m arital s tatus, and educational background. 3 See also Mack v. S tate , 650 So. 2d 1289, 1298 (Miss. 1994). The United States Court of Appeals f

o r the Seventh Circuit has stated: The a t t a i nm ent of a c ertain education level has b een accepted by num erous circuits as a race-neutral criterion f or exercising a perem

p tory challenge under the Batson m andate

. . . . In United States v. Lane , 866 F.2d 103, 106 (4th Cir. 1989), f or exam ple, educational level w as accepted as a race-neutral reason f or striking a m inority m em

ber where, as here, the prosecutor did not object t o the seating of other m inority

m em bers. United States v. Marin , 7 F.3d 679, 687 (7th Cir. 1993); see also United S tates v. H unter , 86 F.3d 679, 683 (7th Cir. 1996). ¶10. Cases do exist w here l ack of education has f ailed as a r a c i a l l y n e u tral reason f or a perem ptory strike. F or exam

ple, in Haynes v. Union Pacific Railroad Co. , 3 95 S.W .3d 192, 198 ( Tex. Ct. App. 2012), l ack of education was rejected as a race-neutral reason f or striking

an Af rican Am erican juror where three white jurors with less education than the s truck juror

were seated on the jury and the potential jurors w ere not q uestioned about education at any stage of the voir dire. This l ack of questioning suggested pretext f or l ater citing education as

3 A f f irm ed o n h ab eas rev iew . S ee L o ckett v. A n d erso n , 2 3 0 F .3 d 6 9 5 , 7 0 7 (5 th C ir. 2 0 0 0 ). 5a r ace-neutral excuse. See a lso Com. v. Basemore , No. 1 762-65, 2001 W L 36125302 (Pa. Ct.

Com

. Pl. De c . 1 9 , 2 0 0 1) (trial court order granting post-conviction relief on a Batson challenge where Af

rican Am erican jurors were struck due t o level of educati o n b u t w h i te jurors sim ilarly positioned were accepted). ¶11. Here, Larry does not argue that sim ilarly situated white jurors were seated on the jury

. Two of the three struck Af rican Am erican jurors possessed a com bination of unem

ploy m ent and lack of e ducation. All m em b ers of the j ury had higher than a h igh-school education, an Af rican-Am erican w as seated o n the jury , and the S t ate did not use all of i ts available
perem ptory strikes. Considering the totality of the relevant f acts b ef ore i t, the trial court did
not abuse its discretion in determ i ning that Larry f ailed to m eet his b urden to dem onstrate discrim ination on the basis of race in jury selection. This issue is without m erit. II. Confrontation Clause Challenge ¶12. Larry argues that Of f icer M artin’s testim ony relating the statem ents of nontestif y ing codef endant W illiam Jo n e s violated Larry ’ s right to conf rontation, warranting reversal. Statem ents m ade b y a codef endant during a police i nvestigation are inadm issible testim onial hearsay when “the prim ary

purpose of

the interrogation is to establish or prove past events potentially relevant to later crim inal prosecution.” Smith v. State , 986 So. 2d 290, 297 (¶21) (Miss. 2008) (quoting Davis v. W ashington , 547 U.S. 813, 822 (2006)). ¶13. C o n f

r o n t a t i o n C l a u s e violations m ust be objected to c o ntem poran e o u s l y t o b e preserved f

o r appeal. Ronk v. Sate 172 So. 3d 111 2 , 1 1 3 4 ( ¶ 5 1 ) (Miss. 2015). “ W e have consistently

applied the procedural bar to Conf rontation Clause claim s when the issue was

6not raised at trial.” I d

. W e w ill only recognize plain-error review of a Conf rontation Clause violation when the “error af f ects a def endant’ s f

u n d am ental, substantive r ight,” and “the

error resulted in a m anif

est m iscarriage of justice.” Johnson v. State , 155 So. 3d 733 , 740 (¶13) (Miss. 2014) (quoting Conners v. State , 92 So. 3d 676, 6 84 (¶20) (Miss. 2 012)). Even when an objection was properly m ade, “the adm ission o f s t atem ents m ade by a non-testif y ing def endant in violation of the Conf rontation Clause can b e harm less error.” S mith , 986 So. 2d at 300 (¶32) (quoting Clark v State , 891 So. 2d 136, 141 (Miss. 2004)). ¶14. Larry f

ailed t o object to Of

f icer Martin’s statem ents at trial. T his assignm ent of error is theref ore procedurally

barred f rom consideration on appeal. Further, we do not f ind that Of f icer Martin’s statem ents resulted in a m anif est m i scarr i a g e o f j ustice w ar ranting plainerror review. The jury was presented with signif icant evidence of L arry ’s guilt, including his possession of and intent t o sell the stolen property very shortly af ter the tim e of the burglary , his inconsistent stories of how he obtained the item s, and his f am iliarity with the hom e that

was b u rglarized. “[ W ]hen the f act of recent possession o f stolen property is supplem ented with o ther f

a cts inconsistent with the idea that the possession is honest, it then becom es a question of f

act f or the jury t o pass upon the guilt or innocence of the def e n dant.” Shields v. State , 702 So. 2 d 3 80, 3 82 (Miss. 1997) ( a f f irm ing burglary conviction s upported prim arily by proof of possession of

stolen guns). This argum ent is without m erit. III. Sufficiency and Weight of the Evidence ¶15. L arry argues that the State f ailed to present suf

f icient evidence to support h i s g u i l t

. In determ ining whether the State presented legally suf f icient evidence to support the verdict,

7“the critical inquiry is whether the evidence s hows ‘bey o n d a reasonable doubt that [ the]

accused comm itted the act charged, and that h e did so under such c ircum stances that every elem ent of the of

f e nse existed[

. ]’” Bush v. State , 895 So. 2d 836, 843 (¶16) (Miss. 2005). If , viewing the evidence in the l ight m ost f avorable t o the State, any rational trier of f act could have f o und, bey o nd a reasonable d oubt, that the e s sential elem ents of the crim e existed, this Court will af

f irm the conviction. Id

. When a burglary c ase is circum stantial and p ossession of the s tolen property is the prim ary evidence of guilt, “[ t]he circum s tances of possession and the presence or absence of evidence o f p articipation in the crim e other than m ere p ossession

m ust be viewed.” Shields , 702 So. 2d a t 382. The particular circum stances to b e considered

are: 1. T h e tem

poral proxim ity of the possession to the crim e to be inf erred ; 2. The num

ber or percentage of

the f ruits of the crim e possessed; 3. The nature of the possession in term s of whether there [ was] an attem pt at concealm ent or any

other evidence of

guilty knowledge; [ and] 4. W hether a n explanation [ was] given and whether that explanation is plausible or dem onstrably f alse. Id . at 383. ¶16. Here, the tem

poral proxim ity between Larry ’ s possession of the stolen goods and the tim e of the crim e was v ery close. The burglary occurred b etween 11:45 a.m . and 12:45 p .m . Of f icer Martin took the call of f ering t o sell him a stolen TV a t 1 2 : 5 1 p.m . Of f i cer Martin proceed e d t o the m eet-up location and f ound Larry i n possession of the stolen TV. At the

m eet-up, when O f

f icer Martin asked Larry where the “stolen TVs” w ere, Larry indicated the

8t runk, evidencing guilty knowledge. H e gave inconsistent explanations of how he cam e t o

be in possession of the item s. Viewing the evidence in the l ight m ost f avorable to the State,

a rational juro r c o u l d h a v e f ound bey o nd a reasonable doubt that the essential elem ents of the crim e existed. ¶17. In the alternative, Larry argues that the verdict is against the weight of the evidence. “W hen reviewing a denial of a m otion f or a n ew trial b ased on an o bjection t o the weight of the evidence, we will only disturb a verdict when it is s o c o n t r a r y to the overwhelm ing weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush , 8 9 5 S o. 2d at 844 (¶18). The evidence is viewed in the light m ost f avorable to the verdict. Id

. Viewing the evidence in the light m o st f avorable to the verdict, w e f i nd that the verdict is not against the weight of the evidence. These argum ents are without m e rit. IV. Larry ’ s Claim of I neffective Assistance of Counsel Due to Attorney ’ s Failure to Request C irc u m stantial-Evidence Jury Instruction ¶18. L a r r y a r g u e s t h a t h e received inef f ective assistance of counsel due to h i s t r i a l attorney ’s f

ailure to request a circum stantial-evidence jury instruction. To prove inef f ective assistance of counsel, Larry m ust dem onstrate that his counsel' s perf orm ance was def

icient, and t h is def

iciency prejudiced his def ense. S trickland v. W

ashington , 466 U.S. 668, 687 (1984). Larry theref

ore bears the burden to d em onstrate b oth that his attorney ' s perf orm ance “f ell below an objective standard of reasonabl eness,” and that “there is a r easonable probability

that, but f

or counsel' s unprof

essional errors, the result of the proceeding would have been dif

f erent.” Id . at 688.

9¶19. W h en the State’s case is ent i r e l y c i r c u mstantial, the def endant is e ntitled to a jury instruction stating that the State is required to prove the def e ndant guilty b ey ond a r easonable doubt and to the exclusion of every reasonable hy p othesis consisten t w i th i nnocence. Rutland

v. State , 60 So. 3 d 1 87, 192 (¶20) (Miss. Ct. App. 2010). However, the def endant can waive his right to receive this instruction by f ailing to request i t, and the trial judge does not have an obligation to give the instruction sua sponte. Turner v. State , 945 So. 2d 992, 999 (¶23) (Miss. Ct. App. 2007). ¶20. L arry ’s attorney was def icient i n f

ailing to request th e c i r c u ms t a n t i a l

- e v i d e n c e instruction that would have increased the burden of proof on the State. However, we f ind that Larry h a s not m et his burden to dem o nstrate that this d ef iciency p rejudiced his def ense so that “ the result of the proceeding would have been dif f erent.” The jury

was p resented with signif icant evidence of Larry ’s guilt, including h is possession of the stolen property alm ost imm ediately af

t e r t h e b u rglary occurred, h is inconsistent stories of where the item s cam e f rom , and his f

am iliarity with W illiam s’s house. This issue is without m e rit.

CONCLUSION ¶21. Larry ’s argum ents on appeal are without m e r i t

. W e a ffi r m h i s c o nviction an d sentence. ¶22. T H E J U D G M E N T O F THE MADISON COUNTY CIRCUIT CO U R T O F C ONVICTION O F B U R G L A R Y O F A D W E L L I N G A N D S E N T E N C E O F T W E N T Y
FIVE YEARS IN THE CUSTODY OF T H E M ISSISSIPPI D EPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POSTRELEASE SUPERVISION, I S A F FIRMED. A LL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.
L E E , C . J . , I R

V I N G A N D G RI F F I S , P . J J . , B A RNES, I SHEE, CARLTON, FAI R , JAMES AND WILSON, JJ., CONCUR.

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