IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-KA-01481-COA JERRY DEUNTAY CARR A/K/A BOOTCHIE A/K/A JERRY CARR APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/12/2014 TRIAL JUDGE: HON. CHARLES E. W EBSTER COURT FROM W HICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ERIN ELIZABETH PRIDGEN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF CAPITAL MURDER AND SENTENCED TO LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W I THOUT ELIGIBILITY FOR PAROLE OR ANY OTHER TYPE OF EARLY RELEASE, TO RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED DISPOSITION: AFFIRMED - 11/24/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., MAX WELL AND JAMES, JJ.
MAX WELL, J., FOR THE COURT: ¶1. The Sixth Am e ndm e nt to the United States Constit ution g uarantees a crim inal def endant both the right t o c onf ront and cross-exam ine the witnesses against him and theright to a f

air trial by an im

partial jury

. In Jerry D euntay Carr’s trial f or capital m

urder, we f ind both of

those rights were protected. ¶2. Contrary to Carr’s assertion, there was no Conf rontation Clause violation, despite the
f act the DNA analy st who testif ied was not the one who actually tested the blood sam

ples. The testif y ing analy st had reviewed all t esting procedures, perf orm ed his own analy sis, and signed the f

inal D NA report. So any questions Carr m ay have had a bout the a c curacy of this report could have been lodged against this witness on cross-exam i nation. ¶3. There was also no violation of Carr’s right to a n im partial jury

. For the f

irst tim e on appeal, Carr challenges the circuit judge’s irregular p rocedure f or selecting regular j u

r o rs and alternates. B ut “ [ w]here there i s no evidence to show tha t t he def endant was not, in f

act, tried b y a f

air and im partial j ury , ‘error m ay not b e p redicated f or a n i rregularity i n drawing or im paneling the jury .’” 1 Here, Carr has n ot even argued—let alone provided e vidence to show—the irregular jury -selection procedure led to an i m partial jury

. Thus, we f

ind no plain

error. ¶4. W e af

f irm the judgm ent convicting Carr of capital m urder and sentencing him to lif e im p risonm ent.
B ackground Facts and Procedural History
I. Robbery ¶5. On the af

ternoon of

July 29, 2010, the Friars Point Police Departm ent responded to

a c a ll that som eone “f

ell out” in Sim m ons Package Store. W hen the f irst of f i cer arrived, he

1 H a va rd v. S ta te , 9 8 6 S o . 2 d 3 3 3 , 3 3 6 (¶ 1 1 ) ( M i s s . 2 0 0 7 ) (q u o tin g D a v i s v. S ta te , 6 6 0 S o . 2 d 1 2 2 8 , 1 2 6 1 (M iss. 1 9 9 5 )). 2f

ound Gerald Sim m ons ly ing on the f loor behind the cash register. The c a s h register was
open, with no cash in i t. Sim m ons was badly injured. His head was oozing blood, which was

on his clothes and spattered on the f loor. On S im m ons’s shirt was a bloody f ootprint. The door t o the store had b een lef t wide open. And according to t he of f icer, the scene appeared to be a robbery

. ¶6. That sam e af

ternoon, T y onda Tinner w atched her room m ate, Bry m on Ha mp , a n d
Ham p’s f riend, Jerry Carr, walk toward Friars Point. They r eturned thirty m inutes later with a case of gin, which they

loaded in the back of

Ham p ’s black Chevrolet Caprice. ¶7. As a condition f

o r living with Tinner, Ham p had been responsible f

or the gas bill. But he had n o m oney and no job, so the b ill w ent unpaid, and the gas had been cut of f weeks earlier. But af

ter putting the gin in the c ar, Ham p told Tinner he now had m oney f or the gas bill. Ham

p and Carr star t e d to leave. Tinner was af raid Ham p would not actually pay her the gas m o ney . So she got in the car with them

. ¶8. Ham

p started spending m oney a r o und town—getting his c e ll p hone turned back on and replacing his spare tire. H am p told Tinner he had robbed Sim m ons, knocking him on the h ead to get the m oney out o f Sim m ons’s pocket. C arr chim ed in too. He said he was the

one who s tole the m oney f rom the cash register. The two m en then dropped of f Tinner

som ewhere outside of

Friars Point, where her sister picked her up.
II. Arrest and Indictm ent for Capital Murder ¶9. A BOLO 2 h ad gone out f or Ham p’s Caprice. Coahom a County sherif f ’ s deputies

2 “B e o n th e lo o k o u t.” 3s p o t t e d the vehicle and initiated a traf f ic stop. Once t he car was pulled over, the deputies noticed the c ase of g in, along w ith a bottle o f vodka. They also saw blood o n Ham p’s shoe. They arrested both Ham

p and Carr and collected t heir clothes a n d shoes. These item s were
sent to the Mississippi Crim e L aboratory

. H am p’s clothes t ested positive f or blood, which later was m atched to Sim m ons’s DNA. At the tim e of arrest, Ham

p had $304 in cash, and Carr had $282. ¶10. Eight day s later Sim m ons died f rom his injuries. ¶11. Ham

p and Carr were indicted f or killing Sim m ons in the c o m m ission o f a robbery

. See Miss. Code A nn. § 97-3-19(2)(e) (Supp. 2015) (def ining c a pital m urder as “[ t]he killing of a hum an being without the authority of law[ , ]

. . . [ w]hen done with or w ithout any design
to ef f ect death, by any person engag e d in the com m ission of the crim e of

. . . r obbery ”). Their cases were severed bef ore trial.
III. Trial A. Jury Selection ¶12. At Carr’s separate trial, both the State and Carr’s def ense c ounsel were given twelve
perem ptory challenges. See URCCC 10.01 (providing f o r twelve p erem

ptory chall e n ges wh e n “ the p unishm ent m ay be death or lif e im prisonm ent”); Miss. Code Ann. § 99-17-3 ( R e v . 2 0 15) (“In capital cases the def endant and the state shall each be a l lowed twel v e
perem ptory challenges.”). Because the circuit judge deem e d a lternates were necessary , they each were also given an additional perem ptory challenge. See Miss. Code Ann. § 13-5-67 (Rev. 2 012); URCCC 10.01. But contrary to section 1 3-5-67 a nd Rule 1 0.01, the circuit

4judge did not k e e p t h e p erem ptory challenges separate. Instead, he lum ped each side’s twelve perem

ptory c hallenges f

or regular jurors and one perem ptory c hallenge f

or alternate jurors together—f

or a total of thir t e e n challenges. But see URCCC 10.01 (prohibiting the twelve p erem

ptory challenges f

rom being “used in the selection of a n a l t e r n a te juror or jurors” and “challenges f or alternate jurors [ f

rom being] used in the selecti o n of regular jurors”). ¶13. Nor did the judge k eep the select i o n p r o c e ss f o r regular jurors and alternate jurors separate, as Rule 4.05 directs. See URCCC 4.05. Af ter strikes f

or c ause, t he venire had f

orty

m em bers. And the judge f

elt that if each side used all t hirteen of t heir p e r e mp tory challenges—twenty -six in total—there would end up being f ourteen jurors, enough f

or the twelve regular jurors and two alternates. He t hen asked the State t o tender to def ense counsel

a panel of f

ourteen accepted j u r o rs. The State used eight perem ptory challenges bef

ore tendering f

ourteen a ccepted jurors. Def ense counsel then used eight perem ptory challenges, leading to six jurors being accepted in t he f irst round. The process was repeated, with each side u s ing three m o re challenges (f or a t o t a l o f e l e ven each) bef ore com i ng up with a f ourteen-m em

ber panel. But see U RCCC 4.05. 3 ¶14. These f

ourteen jurors were sworn i n and em paneled without any objection. At the end of closing argum e nt, the circuit judge placed th e n u mb e r s o n e through f ourteen in a paper

3 U n d er R u le 4 .0 5 , af

t er ch allen g es f

o r cau s e, th e S tate sh o u ld h av e u sed its o rig i n al tw elv e p erem

p to r y ch allen g es f

irst to ten d er a p an el o f tw elv e reg u lar j u ro rs. U R C C C 4 .0 5 (A )(1 ), (2 ). T h e d ef en s e t h e n s h o u l d h av e b een req u i red to u se its p erem p to ry ch allen g es o n th at p an el. U R C C C 4 .0 5 (A ) ( 3 )

. T h i s p ro cess sh o u ld h av e rep e ated u n til a f u ll p an el o f j u ro rs h ad b een accep ted b y b o th sid e s. U R C C C 4 .0 5 (A )( 5 )

. T h e n t h e t w o altern ates sh o u ld h av e b een selected f o llo w in g th e sam e p ro ced u re. U R C C C 4 .0 5 (A ) (6 ). 5cup. He drew two num bers out—juror six and juror seven—an d d e clared them to be the alternates. But see Miss. Code Ann. § 13-5-67; U R C C C 4 .05. T he judge then sent the

rem aining twelve jurors into the jury room to deliberate.
B. Evidence ¶15. The jur y h a d h e a r d t e s tim ony f rom the of

f icers involved in the investigation and arrest, as w ell as Tinner. The State also called Steven Little, a serologist with the Mississippi Crim e Lab. Little conf

irm ed Ham

p’s right s hoe and shorts had blood on them

. Little also
f ound blood on the victim ’s clothing. The S tate next called W i lliam Jones, a DNA analy st who served as section chief of the biosciences division of t he Mississippi Crim e Laboratory

. Jones s erved as the technical reviewer f or the DNA analy sis perf

orm ed on t he blood sam

ples.
A n a l y st A lexandria Bradley had concluded the blood t aken f r om Ham p’s clothes m atche d the known DNA sam

ple f rom the victim , S i mmo n s . And af ter reviewing her work and ensuring the results m atched and all proper protocols h ad been f ollowed, Jones signed of

f on the report. The report said he agreed with Bradley ’ s conclusion.

C. Conviction and Sentence ¶16. Based on the evidence, t he jury f ound C arr guilty of c apital m urder. T he judge sentenced him to l if

e im prisonm ent, without e ligibility f o r parole or other early r elease. Carr f iled a m otion f

o r a judgm ent notwithstanding the verdict or new trial, challenging the weight and suf f iciency of the evidence. Af

ter this m otion was denied, Carr tim ely appealed.
Discussion
I. Testim ony about DNA Match

6¶17. On appeal, Carr f irst argue s t he circuit judge e rred by perm itting W i lliam s Jones to testif y about the DNA report linking the blood on Ham p’s clothing to the victim

. According
to Carr, Jones provided “ surrogate testim ony ” in v iolation o f his Sixth Am endm ent right to conf ront his accuser. 4 Bullcoming v. New Mexico , 131 S. Ct. 2705, 2710 (2011) (apply ing
U.S. Const. am end VI). ¶18. But in contrast to the witness in Bullcoming , Jones w as no m ere surrogate f or Bradley

. In Bullcoming , an a ggravated-DUI case, the prosecution b u i l t i t s case upon a lab report certif y ing Bullcom ing’s blood-alcohol level w as a bove t he l egal lim it. Id. a t 2709. But “[ a]t trial, the prosecutio n d i d n o t call as a witness the analy s t w h o signed the certif ication.
I n s t e a d , the State called another analy st who was f am i liar with the laboratory ’s testin g procedures, but had neither partici p a t e d i n nor o bserved the test on B ullcom ing’s blood

sam ple.” Id. The United States Suprem e Court held this violated the Conf rontation Clause.
Because the l ab report certif y i ng Bullcom ing’s b lood-alcohol level was a “testim onial
statem ent” by the analy st who produced the report, it was reversible error f or the t rial court
to introduce this statem ent “through the in-court testim ony of a second person.” Id. at 2713. ¶19. Bullcoming , however, did not address the question bef ore us today : D oes the testim o ny of the technical reviewer—who did not p erf orm the i nitial D NA analy sis but

4 T h e S ix th A m e n d m en t “g u aran tee[ s] a d ef en d an t in an y crim in a l p r o secu tio n th e rig h t t o c o n f

ro n t an d cro ss-ex am in e t h e w itn esses ag ain st h im [ .] ” G a llo w a y v. S ta te , 1 2 2 S o . 3 d 6 1 4 , 6 3 6 ( ¶4 2 ) (M iss. 2 0 1 3 ) (citin g U

. S

. C o n st. am en d

. V I ; M iss. C o n st. art. 3 , § 2 6 ). A n d “[ t] h e U n i ted S tates S u p rem e C o u rt h as h eld th at , u n d er th e S ix t h A m en d m en t C o n f ro n t atio n C lau se, testim o n ial statem en t s o f w itn esses a b s en t f r o m trial are ad m issib le o n ly w h ere th e d e c l a r a n t is u n av ailab l e, an d o n ly w h ere th e d ef en d an t h as h ad a p rio r o p p o rtu n ity to cro ss-ex am in e th e w itn ess.” Id

. ( citin g C r a w fo rd v. Wa s h in g to n , 5 4 1 U .S

. 3 6 , 5 9 (2 0 0 4 )). 7reviewed the initial analy st’s work, conducted his own independent analy sis, a nd u ltim ately

signed the report v erif

y ing the DNA f

ound o n the codef

endant m a tched the victim —satisf y the Conf rontation Clause? A s Justice Sotom ay or noted in her concurrence, B ullcoming was “not a case in w hich the person testif y ing [ wa]s a supervisor, r eviewer, o r som eone else with

a personal, albeit lim ited, c onnection to the scientif i c test at issue.” Id. at 2 722 ( Sotom ay or, J., concurring i n part). There, t he testif y ing analy st “conceded on cross-exam ination that he play ed no role in producing the [ blood-alcohol-level] report and d id not observe a ny portion of

. . . t he testing.” I

d. And “[ i]t would be a dif f erent case if

, f or exam p le, a s upervisor who observe d an a naly s t conducting a test testif ied about the results or a report about such results.” Id. ¶20. Here, we are conf ronted with that dif

f e rent case—where a super v i s o r , Jones, observed an analy st, Bradley , conducting a DNA test and testif i ed about the results, which he verif ied bef ore he signed the report. A nd we conclude that Jones’s testim ony , i n contrast
to the analy s t i n B ullcoming , did not violate the Conf rontation Clause. In so holding, we are guided b y our own suprem e court—both i ts m ajority and d issenting opinions—when f aced with the exact sam e scenario. See Galloway v. State , 122 So. 3d 614 (Miss. 2013). ¶21. I n G a l l o w ay , the Mississippi Suprem e Court addressed whether the tes t i m o n y o f D N A analy st Bonnie Dubourg violated the Conf rontation Clause in light of Bullcoming

. Id. at 637 (¶¶46-48). Though Dubourg worked in the lab that tested the DNA, it was another analy st, Julie G olden, who actually perf orm ed the DNA testing. Id. at 636 (¶40). The m ajority of the
suprem e court assum e d the DNA report was testim onial. Id. at (¶42). But the suprem e court

8rejected t he def endant’s contention that only Golden coul d t estif y about the DNA results. “Distinguishable f

rom Bullcoming , the record [ i n G a lloway ] illustrate[ d ] that Dubourg, as
t he t echnical reviewer assigned t o the case, was f am iliar with each step of t h e c o mp l e x testing process c onducted by G olden, a nd Dubourg perf orm ed her own analy sis of t he data.” Id. at 637 (¶48). M oreover, “Dubourg personally a naly zed the data generated by each test conducted by G olden and signed the report.” Id. So “[ g]iven Dubourg’s knowledge about the underly i ng testing process and the report itself , any questions regarding the accuracy of the report due to possible contam ination of the DNA sam p les could have b e e n asked of Dubourg.” Id. at 6 37-38 (¶48). For t h e s e r e asons, the suprem e c ourt f ound D ubourg’s testim o ny did not violate the Conf

rontation Clause. Id. at 638 (¶49). ¶22. Like the witness in Galloway , Jones, “as t he technical reviewer assigned to the case,

was f am i liar with each s tep of the com plex t esting p rocess conducted by [ B r a d l e y ] , . . . personally analy

zed the data generated by each test conducted by [ Bradley ,] and signed the report.” Id. at 637 (¶48). Based on Jones’s personal knowledge a bout the testing process and the resulting DNA r eport, any questions Carr m ay have had about the accuracy of the testing

or report could have been put to J o nes on c ross-exam ination. See id. So apply ing Galloway , we too f ind no Conf

rontation Clause violation. ¶23. And we acknowledge J ustice Kit c h e n s ’s dissent in G alloway , which f ound no Conf r ontation Clause violation, but f or a dif f e r ent reason—the nontestim onial n ature of the underly ing DNA testing. Id

. at 684-85 (¶¶260-62) (Kitchens, J., dissenting). “ In the case of
DNA testing, the underly ing r e ports of the nontestif y ing expert, i f used only as a prem ise to

9support the tes tif y ing expert’s opinion, m a y not b e t estim onial.” Id. a t 684 (¶260) (citing
W illiams v. I

llinois , 132 S. Ct. 2221, 2221 (2012)). Such was the case in W illiams , where the
DNA test results h ad not been adm itted into evidence. Rather, they had b een relied upon by the testif y ing expert to d e t e r mine if the sam ple f rom the crim e scene and the test sam ple

m atched. Id. at 685 (¶260) (citing W illiams , 1 32 S. Ct. at 2240). Thus, “[ t]he ‘testim onial
statem ent’ and the statem ent that was incrim i nating of the def endant was that t he two prof iles

m atched, not that t he r eport contained an a ccurate prof i le of the def

endant’s DNA.” Id. And because these statem ents were “not reliant at all upon the validity of the underly ing testing used to generate the DNA p rof i les,” the analy s t w h o p e r f orm e d t he tests did not have to testif y in order to satisf

y the Conf rontation Clause. Id. ¶24. Justice Kitchens deem ed D ubourg’s t estim ony in Galloway to b e “strikingly sim ilar
to that f o und in W

illiams ,” because the actual DNA test results had not been adm itted into evidence but instead were the basis f or t h e e x p ert’s opinion that the t wo DNA sam ples

m atched. Id. at (¶261). So it was D ubourg—not t he nontestif y ing exam iner—who m ade the “testim onial statem ents” that, in her expert opinion, the two DNA prof ile s ma t c h e d. “Golden’s test results m erely of f ered a prof

ile, and, as such, w ere not testim onial statem ents under W illiams .” Id. ¶25. As we have already discussed, Jones’s testim ony is “strikingly sim ilar” to Dubourg’s. Bef ore testif y i ng, Jones was accepted as a DNA expert. And he testif ied, based on the DNA prof iles generated by Bradley , the sam ples f rom Ham p’s shoe and the victim m atched. Thus, the incrim inating testim onial statem ent—that the two prof iles m atched—cam e f

rom Jones.

1 0For this alternate r eason, Jones’s testim o ny d id not violate Carr’s Sixth Am e ndm ent rights.

II. Jury -Selection Process ¶26. Next, C arr asks f

or a new trial based o n the jury -selection process. Carr a sserts the circuit j udge abused his discretion by utilizing a “paper cup” to select alternates. But Carr

never o bjected to the jury -selection m ethod or the ultim ate com position of t h e j u r y a t any point bef o re, during, o r af

ter trial. Instead, he attacks this process f o r t he f irst tim e on appeal.
Our suprem e court “ha s c o n t inuously h eld that ‘a party who f ails to object to the jury ’s

com position bef

ore it i s e m

p aneled waives any right to com plain the r e a f

t e r . ’ ” Thorson v. State , 895 So. 2 d 85, 1 18 ( ¶81) (Miss. 2004) (quoting Bell v. State , 725 So. 2 d 836, 8 44 (¶10) (Miss

. 1998)). S o b y not objecting, C arr has waived his right to com plain on appeal. See Burrell v. State , 2014-KA-0670-SCT, 2 015 W L 6388746, at *2-3 (¶¶10-11) (Miss. Oct. 22, 2015) ( holding a def

endant who waited u n t i l t he end of trial t o argue Judge W ebster’s irregular jury -selection process violated Rule 4.05 waived this claim ). ¶27. Any review of the jury -selection process would have to be under the p l a i n-error doctrine. “The plain-error doctrine provides f or appellate review of obvious errors not properly r a i s e d b y t

h e def e ndant at trial, which af

f e c t a def endant’s ‘f

undam ental, s u

bstantive rights.’” Heidelberg v
. State , 45 So. 3d 730, 7 32 (¶7) (Miss. Ct. App. 2 010) ( quoting Smith

v. State , 986 So. 2d 290, 294 (¶10) (Miss. 2 0 0 8 ) )

. “ To s u cceed under the p lain-error standard, [ Carr] m

u st show (1) an error a t the trial level ( 2 ) t h a t r e s u l ted in a m anif est

m iscarriage of justice.” I d

. ( c i t i n g S

tephens v. State , 911 So. 2d 424, 432 (¶19) (Miss. 2005)).

1 1¶28. The f irst question is whether there was an error. Obviously , Mississippi’s statutes and rules about jury selection do not provide f or waiting until the end of trial to random ly select alternate jurors. 5 See M iss. C o d e A n n. § 13-5-67; URCCC 4 .05, 10.01. B u t “[ a]ll the
p r o v i s i o n s of law in r elation to the listing, drawing, sum m oning and im paneling juries are directory merely [ .]” Miss. Code Ann. § 13-5-87 (Rev. 2012) (em phasis added). “[ A]nd a jury listed, drawn, sum m o ned or im paneled, though in an inf

orm al or irregular m anner, shall be deem ed a legal jury af ter it shall have been i m

paneled and sworn, and it shall have the
power to perf

orm all the duties devolving on the jury .” Id. ; see also Havard v. State , 986 So. 2d 333, 335 (¶11) (Miss. 2007) (“The jury laws of this state are directory

and the selection of the j u ry i n an irregular m anner does not render it i llegal.” (quoting De La Beckwith v. State , 707 So. 2d 5 47, 597-98 (¶199) (Miss. 1997))). So despite being selected in “an irregular m anner,” the jury here was a legal jury with the authority to render a verdict against
Carr. ¶29. But even w e r e we to f ind the circuit j udge erred by not f o llowing the directives of section 13-5-67 a nd Rules 4.05 a nd 10.01, Carr f ails to show how this departure af f ected his
f undam ental, s u b s t a n tive rights or otherwise led to a m anif est m iscarriage of justice. Of course, Carr had a f

undam ental right to a f

air trial by an im

partial jury

—another guarantee of the Sixth Am e ndm ent. J ohnson v. State , 476 So. 2d 1195, 1 209-10 (Miss. 1985) (citing
U.S. C onst. am e nd V I; Miss. Const. art. 3, § 26). But Carr has m ade no assertion his Sixth

5 B u t w e d o n o te th e A m e rican B a r A sso ciatio n actu ally reco m m en d s w aitin g to d eterm in e “[ t ] h e statu s o f j u ro rs as r eg u lar j u ro rs o r as altern ates

. . . th ro u g h ran d o m selectio n at th e t im e f

o r j u r y d elib e ratio n .” A m e rican B ar A s so ciatio n , P rin c ip les f o r Ju ries a n d Ju ry T ria ls , P rin c ip le 1 1 (G )(2 ). 1 2Am endm ent right to an i m partial jury was vi o l a ted due to the jury -selection process. Carr does not claim t he jury w as c o mp o s e d o f incom petent jurors. And “[ w]here there is no evidence to show that the def endant was not, in f

act, tried by a f

air and im partial jury , ‘error

m ay not be predicated f

or a n irregularity i n d

rawing o r im

paneling the jury .’” Havard , 986 So. 2d at 336 (¶11) (quoting Davis v. State , 660 So. 2d 1228, 1261 (Miss. 1995)). ¶30. W h at Carr claim s instead is that h is def ense counsel was prejudiced by n o t being allowed t o allocate his perem ptory challenges bet w e e n r egular and alternate j urors, as the
statute and rules directed. But as the suprem e court h as held, “[ p ]erem ptory challenges are
not of c onstitutional dim ension.” S immons v. State , 805 So. 2d 452, 5 01 (¶137) (Miss. 2001). Instead, “they are a m eans to achieve the end of an im partial jury .” Id. In Simmons , a capital

case, the def

endant, Gary Carl Sim m ons, c om plained the jury -selection process v iolated Mississippi Code Annotated section 99-17-3 because his counsel had to expend perem ptory challenges o n jurors who h ad not f irst b een tendered to t h e S t a t e . Simmons , 805 So. 2 d at
5 0 0-01 (¶¶135-36). But like C arr, Sim m ons did n ot object at trial. Id. at (¶136 )

. T h o u g h acknowledging f

ailure to a b i d e b y section 9 9-17-3 is a r eversible error, the suprem e court f ound no reason to reverse. Instead, the suprem e c ourt h eld, “ so long as the jury that sits is im p artial, the f

act that the d ef

endant had to u se a perem ptory challenge to a chieve that result does not m ean the Sixth Am endm ent was violated.” Simmons , 805 So. 2d at 501 (¶137). ¶31. Apply ing Simmons here, we f i nd so long as t he j ury that sat was im partial, the f

act that
Carr h ad to pool his regular a nd alternate perem p tory challenges to achieve that result does
not m ean his Sixth Am endm ent rights were violated. Carr m akes no claim t h a t a n y o f the

1 3twelve jury m em bers w ho went to the jury room to deliberate w ere p artia l

. So we f ind the

m isallocation of

his perem

ptory challenges did not af

f ect a f undam ental, substantive right.
See id.; see also Fleming v. State , 732 So. 2 d 172, 180-82 (¶¶27-32) (Miss. 1999) (holding it was harm less e rror to f

orce the d ef

ense to e xpend a perem

ptory challenge o n a j uror who should have been stricken f or cause). ¶32. Carr also argues his counsel was prejudiced by not knowing who the twelve regular jurors were and who the two a lternates were during tria l

. C a r r claim s this uncertainty af f ected h i s counsel’s def

ense strategy

. B ut Carr’s counsel never requested the regular jurors be dist i n g u ished f

rom the a lternate jurors b ef ore trial began. As def

ense c ounsel never objected, we f

ail to see how his def

ense strategy

was af f ected. 6 ¶33. Because Carr has f ailed to show “that a ny de f iciency in jury selection r esulted in prejudice to his case,” H

a v a r d , 986 So. 2d at 3 35 ( ¶11), we f ind no reversible error in the jury -se l e c t i on process—especially since Carr waived his right to raise this issue on appeal by not objecting. See Burrell , 2015 W L 6388746, at *3 (¶11). ¶34. THE JUDGMENT OF THE COAHOMA COUNTY C IRCUIT COURT OF C O N V I C T I O N O F C A P I T A L M U R D E R A N D S E N T E N C E O F L I F E IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI D EPARTMENT OF C O R R E C T I O N S , W ITHOUT E LIGIB I L I T Y F O R P A R O L E O R A N Y O T H E R T Y P E OF E ARLY RELEASE, T O RUN CONSECUTIVELY TO ANY A N D A L L SENTENCES P R EVIOUSLY IMPOSED, I S AFFIRMED. ALL COSTS O F THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.

6 E v ery trial in w h ich altern ates are selected carries th e p o ssib ility th at o n e o r all o f th e a ltern a tes w i ll en d u p s erv i n g . T h is i s w h y “[ a] ltern ate j u ro rs s h all b e d raw n in th e sam e m an n er, sh all h av e th e sam e q u alif icatio n s, sh all b e s u b

j e c t t o th e sam e ex am in a tio n an d ch allen g es f

o r cau se, s h a l l t a k e th e sam e o ath a n d s h all h av e th e sam e f u n ctio n s, p o w ers, f acilities an d p r i v ileg es as th e reg u lar j u ro r s.” M iss. C o d e A n n . § 1 3 -5 -6 7

. 1 4LEE, C.J., I RVING AND GRIFFIS, P.JJ., ISHEE, C ARLTON, FAIR, JAMES

AND WILSON, JJ., CONCUR. B A R N E S , J., CONCURS IN PART AND IN THE RESULT.

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