MAYE v. STATE

GRAVES, Presiding Justice, Specially Concurring:

¶ 22. I agree with the majority that Cory Maye's conviction for capital murder should be reversed and remanded for a new trial. However, I write separately to explain that Maye does not need to reassert his right to be tried in Jefferson Davis County. The proper venue for his trial is Jefferson Davis County. In State v. Caldwell, 492 So.2d 575, 577 (Miss. 1986), this Court found that a criminal defendant's constitutional right, which was waived during his first trial, to have his criminal trial held in the county in which the crime was committed is reinstated after appellate reversal. Further, this Court ordered Caldwell's retrial to be transferred to the Circuit Court of Panola County, the county in which the crime occurred. Id. Under Caldwell, the slate is wiped clean, and Maye's constitutional rights are restored. Venue is proper in Jefferson Davis County unless Maye moves to transfer venue. Therefore, I specially concur.

¶ 23. I also must clarify the procedural history as stated by the majority. Maye filed a Motion for Change of Venue on February 2, 2003. The State filed a Response and Agreement to Motion of Defendant for Change of Venue on February 24, 2003. The Circuit Court of Jefferson Davis County granted this motion and transferred venue to Lamar County by Order filed March 25, 2003. On July 28, 2003, Maye filed a Motion to Reconsider Order Granting Change of Venue, asking the trial court to return the matter to Jefferson Davis County for trial. The State filed an objection on August 6, 2003. On October 1, 2003, the Circuit Court of Jefferson Davis County entered an Order Granting Change of Venue, but rather than return the matter to Jefferson Davis County, the trial court transferred venue to Marion County. After a trial beginning on January 21, 2004, Maye was convicted of capital murder and sentenced to death. After various post-trial motions and hearings, the death sentence was vacated. The district attorney elected not to pursue the death penalty, and Maye was resentenced to life by Order of Conviction in the Circuit Court of Jefferson Davis County on November 2, 2007.

KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION.

RANDOLPH, Justice, Dissenting:

¶ 24. Although the Court is vacating the Court of Appeals judgment and remanding for a new trial, the Court grants Maye the right to reassert his venue request, an issue I believe is foreclosed under the particular facts of this case, unless the trial court ignores our precedent. See McCune v. Stke, 989 So.2d 310, 316-18 (Miss. 2008) (citing White v. State, 495 So.2d 1346, 1349 (Miss. 1986)).

¶ 25. Maye waived his constitutional right to be tried in the county where the crime occurred when he sought and received a change of venue from Jefferson Davis County to Lamar County. The trial court granted the motion, which alleged Maye could not have and would not receive a fair and impartial trial in Jefferson Davis County, as the "public [had] prejudged the facts and circumstances of the case and [bore] ill will toward Maye given that Jones was a police officer and the son of Prentiss Chief of Police, Ron Jones, Sr." The trial court granted the motion, changing the venue to Lamar County. Maye then filed a "Motion to Reconsider Order Granting Change of Venue," alleging that a "Lamar County jury will not be impartial in this capital/death penalty case." Maye requested the trial be returned to Jefferson Davis County for trial, despite this Court's clear mandate in White and its progeny. See White v. State, 495 So.2d at 1349. The trial court granted the motion and changed venue to Marion County, where Maye was tried and convicted The Court of Appeals reversed Maye's conviction and sentence and remanded for a new trial, finding that the trial court had violated Maye's constitutional right to trial in Jefferson Davis County, the county where the offense occurred, the very right he chose to waive when he filed a motion to seek a trial elsewhere. Maye v. State, 49 So.3d 1140, 1147 (Miss.Ct.App. 2009). The Caldwell rule, allowing for reassertion of a constitutional right under the particular facts of the case, did not apply at the time the trial court declined to return the case to Jefferson Davis County. See State v. Caldwell, 492 So.2d 575, 577 (Miss. 1986) (six-year time lapse and Caldwell's belief that the adverse effects of publicity had subsided). The State filed a petition for writ of certiorari, asking this Court to review that determination.

¶ 26. The Court of Appeals interpreted Maye's second motion as a withdrawal of his waiver to be tried in Jefferson Davis County and found that "[a] defendant has the right to withdraw a prior waiver of a constitutional right in the absence of valid justification to refuse him the right." Maye, 49 So.3d at 1149 (citing Stevens v. Marks, 383 U.S. 234, 243-44, 86 S.Ct. 788, 793, 15 L.Ed.2d 724 (1966)). The Court of Appeals erred when it held that the trial court's refusal to return the case to Jefferson Davis County was reversible error, for indeed, valid justification already had been established by following Maye's wishes and by virtue of the irrebuttable presumption established in McCune. See McCune, 989 So.2d at 316-18. The justification for prohibiting Maye's withdrawal of the waiver of his right to be tried in Jefferson Davis County already is established by the record and our caselaw requiring the trial court to change venue. The elements that create an irrebuttable presumption in favor of granting a change of venue are:

(1) Capital cases based on considerations of a heightened standard of review;

(2) Crowds threatening violence toward the accused;

(3) An inordinate amount of media coverage, particularly in cases of

(a) serious crimes against influential families;

(b) serious crimes against public officials;

(c) serial crimes;

(d) crimes committed by a black defendant upon a white victim;

(e) where there is an inexperienced trial counsel.

¶ 27. Our law allows a defendant to waive the right to be tried in the county where the crime occurred and to seek a change of venue to preserve the right to be tried by an impartial jury. Simon v. State, 688 So.2d 791, 806 (Miss. 1997). Maye is not seeking an impartial jury, but according to his pleadings, is seeking a perceived advantage of a jury with a more favorable racial composition. In rejecting Simon's claim, we stated, "Simon did not attempt to withdraw the motion until the court had acted on this motion by granting the change of venue." Id. Maye's second motion was like Simon's "conditional" motion in that Maye sought a venue with a similar racial composition to that of Jefferson Davis County.

¶ 28. Although the issue of venue can be reconsidered on remand, State v. Caldwell, 492 So.2d 575, 577 (Miss. 1986) (en banc) (holding that a defendant could reassert his right to be tried in the county where the offense occurred after appellate reversal), the trial court committed no error. The facts that created the irrebuttable presumption in this case have not changed, only Maye's wishes.

¶ 29. Although not enunciated as such, the principle followed in Simon was judicial estoppel. Judicial estoppel prevents a party from taking inconsistent positions in a trial. Kirk v. Pope, 973 So.2d 981 (Miss. 2007). Constitutional rights are subject to the principle of estoppel. Ralston v. Cox, 123 F.2d 196, 198 (5th Cir. 1941). We have prevented a defendant from taking inconsistent positions regarding his constitutional rights. In Duplantis v. State, the defendant argued on appeal that he was denied the fundamental right of access to his attorney, asserting inadequate time to confer in preparing his defense. Duplantis v. State, 708 So.2d 1327, 1337 (Miss. 1998). However, the trial court had offered Duplantis the opportunity for a continuance, which he chose not to accept. Id. As he rejected the trial court's offer of additional preparation time, we found that he could not argue on appeal the denial of a right of access to his attorney. Id. at 1336 ("[The defendant] cannot decline the trial court's offer to grant him more time to prepare a defense, and then argue to us that his defense was inadequate because he lacked time to prepare it."). Similarly, a defendant subject to custodial interrogation may waive certain constitutional rights and render any resulting confession admissible at trial. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); Greenlee v. State, 725 So.2d 816, 827 (Miss. 1998).

¶ 30. Other courts have been unwilling to grant defendants successive change-of-venue motions. In Maryland, a capital defendant was not entitled to a second change-of-venue motion that would have resulted in the case being returned to the original county of indictment. Pantazes v. State, 376 Md. 661, 831 A.2d 432, 439 (2003). In Arkansas, a defendant argued that he had a constitutional right to be tried in the county where the crime occurred; thus, he attempted to "withdraw" his granted motion to change venue. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403, 408 (1999). On appeal, the court rejected his argument, finding that the right to be tried in the county where the crime occurred was "qualified by the defendant's right to apply for a change of venue." Id. Once the defendant exercised the right to change venue, the trial court had the discretion to refuse future changes. Id. A Maine court held that, once the defendant sought and received a change of venue, he no longer had a constitutional or statutory right to a trial in any particular county. State v. Nile, 595 A.2d 1047, 1048 (Me. 1991). The Florida Supreme Court addressed the venue issue in a death-penalty case with facts similar to those of this case. The court held that a trial court did not abuse its discretion in refusing to return the case to the county where the crime occurred after the defendant had agreed to an alternate venue. Kearse v. State, 770 So.2d 1119, 1123-24 (Fla. 2000).

¶ 31. Although the majority allows Maye to reassert on remand a right he has waived, the trial court is bound by Simon and McCune, and such other facts that may be presented by the defendant and the State. See McCune, 989 So.2d at 316-18; Simon, 688 So.2d at 806.

PIERCE, J., JOINS THIS OPINION IN PART.

PIERCE, Justice, Dissenting:

¶ 32. The Majority finds error principally in that the jury was not instructed to consider Maye's behavior "by the facts and circumstances by which he was surrounded." Taken as a whole, the instructions, so the Majority says, "did not tell the jury how to" determine whether the defendant's acts were reasonable. The Majority also suggests that this error was compounded because Maye's asserted defense of his infant daughter was not covered by other instructions. Neither by themselves nor in tandem do these errors, if errors at all, rise to the level of abuse of discretion.

¶ 33. First, the Majority asserts that the jury should have been instructed to "judge . . . [the defendant's] acts by the facts and circumstances by which he was surrounded." The Court of Appeals already has addressed this "how-to" argument. It has said that "[w]hen the trial court gives a Robinson instruction, the trial court does not err when it does not instruct the jury to examine the circumstances at the time of the incident from the defendant's viewpoint." I agree with, the Court of Appeals. In Cohen v. State, we said that the Robinson instruction "clearly and comprehensively sets out the theory of self-defense." If today's holding is the law, then the Robinson instruction is incomplete, and we should (as we did in Reddix v. State ) recommend one that will stand up to our scrutiny.

¶ 34. Even if we decline to follow this precedent, we should remember that, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results. A comment on how to determine reasonableness is, manifestly, a comment on reasonableness. Instruction 6 clearly instructed that "[I]t is for the jury to determine the reasonableness of the grounds upon which the defendant acts." Reasonableness undeniably was covered in the jury instructions. Whether it was fairly covered is a matter about which reasonable persons could disagree. Matters of reasonable disagreement are the essence of trial-court discretion. And jury instructions are within the discretion of the trial court. So, I cannot agree with this line of reasoning.

¶ 35. The other reasoning for error articulated by the Majority is that the denied instruction would have advanced Maye's theory that this killing happened as a result of his defense of his infant child. This reasoning fails for two reasons.

¶ 36. First, we have never said that the mere presence of a third party during some circumstance of violence that might warrant a self-defense instruction will warrant a defense-of-others instructions. Our contrasting dispositions of two cases was illustrative. In Calhoun v. State, we reversed because a defense-of-others instruction was not granted. There, an ex-boyfriend came to the home of Tammy Jones and her new live-in boyfriend, Dexter Calhoun. After exchanging heated words with Tammy, the ex-boyfriend marched to his automobile, threatening to "be right back" and "stomp her." As the ex-boyfriend was leaning into the passenger side of his automobile, Calhoun shot and mortally wounded him.

¶ 37. Contrast that with Folks v. State, where we granted of a self-defense instruction but not a defense-of-others instruction. There, Johnny Folks, his wife, and his sister-in-law went looking for her husband, Bill Davis, who was drunk. When the group found Davis (known to carry a switchblade), Davis advanced upon Folks, who shot Davis. There we said that Folks "would have been entitled to the [defense-of-others] instruction . . . if there had been sufficient proof that Mrs. Eunice Davis was in any real or apparent danger of losing her life or sustaining great bodily harm at the hands of W.E. `Bill' Davis at the time he was shot."

¶ 38. One fact which distinguishes Calhoun and Folks is the articulated threat against the third person in Calhoun that we did not find in Folks. There is no evidence of a threat specifically articulated toward the infant in the room; Maye seeks this instruction based on her presence alone.

¶ 39. Further, my first point complements my second: The necessary finding by the jury that Maye knew the intruder was a police officer negates any logical argument for this additional theory. That finding of fact, by which we are bound, is logically independent of the presence or absence of a defense-of-others instruction, and Maye offered no evidence that Jones, personally, or the police, generally, had some design to harm the infant. Accepting as true the jury's finding of fact that Maye knew Jones to be a peace officer — as we must — we can only conclude that Maye offered no evidentiary basis for his defense-of-others theory. While it is true that in homicide cases, the trial court should instruct the jury about a defendant's theories of defense no matter how meager or unlikely, we also have regularly upheld denials of self-defense instructions because "simply claiming self-defense does not make it so." The same standard should to apply to defense of others.

¶ 40. The Majority finds error because the jury was not instructed to consider the facts from the perspective of Maye and because the jury was not instructed on his defense-of-others theory. On the first point, the Majority neglects a good rule from the Court of Appeals. On the second point, it finds error in the denial of a jury instruction which is logically inconsistent with an independent finding of fact by the jury. From the Majority's discussion of jury instructions, I respectfully dissent.

¶ 41. Further, this Court is not addressing the Court of Appeals' analysis of Maye's Motion to Reconsider Change of Venue. While I think the Court of Appeals was incorrect in its analysis of that issue, that discussion is for another day. I do agree, however, that Maye can, upon reversal, reassert his right to be tried in the county where the offense occurred, consistent with our ruling in State v. Caldwell.