                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-KA-00923-SCT

CHRISTOPHER O’NEIL McCUNE

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                          04/12/2007
TRIAL JUDGE:                               HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                 NEWTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JAMES EDWIN SMITH, III
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: DESHUN TERRELL MARTIN
DISTRICT ATTORNEY:                         MARK SHELDON DUNCAN
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 07/17/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, P.J., GRAVES AND RANDOLPH, JJ.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    Christopher O’Neil McCune was indicted for murder and aggravated assault. A jury

trial was held in the Circuit Court of Newton County following the denial of McCune’s

motion for change of venue. The circuit judge denied McCune’s proposed lesser-offense

instructions regarding manslaughter. A jury of McCune’s peers found him guilty as charged

on both counts. McCune was sentenced to life imprisonment for the murder conviction and

to an additional twenty years, to run consecutively to the sentence of life imprisonment, for

the aggravated assault conviction. Following denial of his “Motion for a New Trial or Other

Relief,” McCune filed notice of appeal.
                                          FACTS

¶2.    On August 13, 2006, at approximately 2:15 a.m., Cathy Hardy arrived at James “J.J.”

Bolton’s house, accompanied by a friend. Around 2:45 a.m., Hardy and Bolton left for

Hardy’s house in Bolton’s vehicle, as she was concerned she had left the stove on. While

they were returning to Bolton’s house, a white Chevy Suburban passed them slowly.

According to McCune, the driver of the white Suburban,1 “I went past [Bolton] because he

was driving sort of slow.” Hardy testified that McCune began “pushing on the brakes[,]” and

made a left turn. Bolton then pulled up behind McCune’s vehicle. Hardy “noticed [McCune]

and [Kidd] standing outside the car.” Hardy testified that Bolton then rolled his window

down “and [McCune] asked him, why the [f] did he stop the [mf] truck. And [Bolton] told

him, ‘Man, I was just trying to see what was up.’” In contrast, McCune testified that he did

not recall using profanity and merely got out of his vehicle “and asked [Bolton] what was up

and asked him, what’s going on, you know, ‘Why don’t you go ahead on,’ . . . because

[there] had been some threats made and things of that sort.” 2 According to Hardy, McCune

“asked [Bolton] again why did he stop the [f]’ing truck. And [Bolton] told him, ‘Man, I was

just trying to see what was up.’ And [McCune] replied, ‘You done caused enough [s...] on

       1
       He was accompanied in the vehicle by Kafien Kidd, Jonathan Perrilliat, and Anthony
Arrington.
       2
        McCune testified that he had known Bolton “practically all my life. Me and him
went to school together[,] . . . knew him from . . . [the] neighborhood that we lived in. All
of us come in contact pretty frequent.” According to McCune, threats had been made “[t]o
me and also members of my family . . ., threats made that [Bolton] was going to do
something about shooting in my sister house[,] . . . at the time I was staying there.” McCune
conceded that Bolton “didn’t make [threats] directly to me. But some people that associated
with him and I had said that he had.” Of greater import, McCune testified that Bolton made
no threats to him that evening.

                                             2
these streets.’” Hardy testified that Bolton replied, “‘Man, I wouldn’t do you like that,’ and

he replied to [Kidd], ‘And, man, you know I wouldn’t do you like that.’” 3 According to

McCune, he then asked Bolton “to go on twice[,]” without success.4 Hardy testified that as

she “leaned up to look at [McCune], [Bolton] was barely brushing the side of my thigh, as

if he was trying to get my attention. So I just leaned up, and that’s when I noticed that

[McCune] had a gun at his side.” Hardy then “told [Bolton] that he didn’t have a gun, let’s

leave. He was just – but he wasn’t reaching down. He wasn’t doing none of that.” 5 McCune

testified that he “noticed [Bolton] was reaching for something. I know [Bolton] carry a gun.

I mean, I have saw him with a gun before.[6 ] I didn’t know what to do at the time. So, as he

was reaching for his gun,[7 ] that’s when I pulled my gun.” Immediately thereafter, according

to Hardy, “the gun just started going off.” According to McCune, he began shooting “out

of self-defense . . . because I felt like he was going to do something to me.” (Emphasis

added). McCune testified that he shot until he ran out of bullets because “I didn’t know if

I had shot him or not. It happened real fast.”




       3
        Hardy testified that Bolton was “talking nice” to McCune and made no verbal threats
or threatening gestures.
       4
        McCune admitted that he likewise could have gotten back into his vehicle and left,
but did not.
       5
        On September 6, 2006, Hardy gave a voluntary statement that, “I felt [Bolton]
touching the side of my lap. So I looked up at [McCune] and noticed that he had a gun in
his right hand. I leaned back and told [Bolton], ‘Let’s just go, you don’t have a gun in
here.’”
       6
           McCune admitted that he did not see Bolton with a gun “that particular night . . . .”
       7
           McCune later testified that he had assumed Bolton was reaching for a gun.

                                                3
¶3.    According to Hardy, “[a]fter the shots had stopped firing, I noticed [Bolton] had took

his left hand and took his shirt and brushed his shirt. That’s when I noticed he had a bullet

hole in his shirt. I leaned back up . . . and I seen [McCune] with the gun in the window.”

Hardy testified that McCune was pointing the gun toward her head and “the gun fired and

something just told me to get out and run and I just ran.” As Hardy ran away, she heard

McCune yell, “‘Bitch, you better run or I’ll kill you, too.’” McCune denies shooting at, or

even speaking to, Hardy. According to McCune, “I never noticed [Hardy] at all. . . . [A]s we

was headed back to the truck, I saw somebody running . . . . I didn’t know who she was.”

¶4.    Robert and Margaret Moore, who lived in a nearby home, were awakened by the

gunshots. Margaret testified that she “heard a lot of commotion. And then as the guy was

walking back to the white Suburban, I heard him say, ‘And I’ll kill you, too.’” According

to Robert, the white Suburban then “sped off as I was going out the back door, as I took two

or three steps toward the roadway.” After hiding briefly at a nearby church, Hardy returned

to Bolton’s vehicle and testified that:

       I was going to just sit on top of [Bolton] and try to drive him home. That’s
       what was in my mind I was thinking to do. And when I turned back and
       looked again, I seen the [white Suburban] coming back and it was coming back
       real fast, so I took off running again.

According to Robert:

       I heard [the white Suburban] as it was making the block. It came around – it
       was just gassing it all the way around to each stop. When I heard it turn to
       come back toward me, that’s when I got in the defensive posture trying to see
       what they was going to do.




                                             4
Hardy testified that she heard McCune again threaten her, stating “[y]ou better run or I’ll kill

you.” She then ran to Robert, who was standing outside with a gun in his pocket, and told

him she “thought [McCune] was going to kill me.” According to Robert:

       [b]y the time the truck made it back around, [Hardy] had braced herself right
       behind me. She came from the left side of the vehicle and she just grabbed me
       like this here. “Mr. Robert, Mr. Robert, they going to kill me.” She was
       holding on to my robe, and I was trying to calm her down.

McCune’s vehicle pulled up at the corner of the Moores’ house, paused for five or ten

seconds, and then drove away. According to McCune, he “came back to the scene because

I was going to make sure that [Bolton] had got him some help there. . . . And when I saw

[Robert] and [Hardy] standing there, I just drove, kept on driving.”

¶5.    The investigating officers found no weapons in Bolton’s vehicle. Leon Reed, a

detective with the Newton Police Department, testified that they “found 14 rounds that had

been shot from a nine millimeter on the ground, the hulls.” A firearms expert with the

Mississippi Crime Laboratory testified that all of the casings “were fired from the same gun.”

Additionally, according to Reed, one bullet “went through the vehicle and hit the passenger

side of the vehicle right in the edge of the window, bottom part of the window in the door.”

An autopsy revealed a total of twelve gunshot wounds, with at least two of the bullet wounds

being lethal. Several days later, McCune was apprehended in Lexington, Kentucky.

¶6.    On January 30, 2007, McCune was indicted for murder, in violation of Mississippi

Code Annotated Section 97-3-19(1)(a),8 and aggravated assault, in violation of Mississippi



       8
       Mississippi Code Annotated Section 97-3-19(1)(a) provides, “(1) The killing of a
human being without authority of law by any means or in any manner shall be murder in the
following cases: (a) When done with deliberate design to effect the death of the person

                                               5
Code Annotated Section 97-3-7(2)(b).9 On February 15, 2007, McCune filed a motion for

change of venue arguing that reference to him in articles published in The Newton Record

“caused the prospective jurors in this cause to hear information which is erroneous,

inflammable, and highly prejudicial in this cause, and has prejudiced these prospective jurors

against him.”

¶7.    A hearing was held on McCune’s motion for change of venue. McCune offered two

Newton County residents as witnesses, his mother and aunt,10 who each testified that they did

not believe McCune could receive a fair trial in Newton County.11 McCune also introduced

a newspaper article from The Newton Record which read:

       [i]n the pre-dawn hours of August 13, a shooting left a Newton man dead, and
       a woman and her baby believed kidnaped. The woman and child were safely
       returned to Newton, while Newton resident “J.J.” Bolton was killed at 3 a.m.
       on that Sunday morning on Oak Street during an alleged altercation with


killed, or of any human being . . . .” Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2006).
       9
           Mississippi Code Annotated Section 97-3-7(2)(b) provides, in part, that:

       (2) A person is guilty of aggravated assault if he . . . (b) attempts to cause or
       purposely or knowingly causes bodily injury to another with a deadly weapon
       or other means likely to produce death or serious bodily harm; and, upon
       conviction, he shall be punished by imprisonment in the county jail for not
       more than one (1) year or in the Penitentiary for not more than twenty (20)
       years.

Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2006).
       10
            Kidd’s mother.
       11
          Betty Buckley, McCune’s mother, specifically testified that Bolton owned a local
store, his father owned a local body shop, his aunt is an alderman for the City of Newton,
and several of Bolton’s relatives are employed by the Newton Police Department. As such,
she testified that “[b]ecause of . . . the publicity, the people that’s involved with the families,
I just don’t think it would be fair.”

                                                6
       [McCune] and [Kidd]. According to police reports, Bolton was driving his
       Cadillac Escalade on Oak Street at around 3 a.m. on Sunday when a white,
       older model Suburban cut in front of him. Words were exchanged and the
       suspects got out of their car and fired several shots into the Escalade killing
       Bolton. Newton Police Chief Curry said [when] McCune and Kidd were done
       with their rounds they proceeded to drive away, but returned to “possibly kill
       the witness” who was in the car with Bolton but had fled the scene by the time
       they returned.

       Accused in the killing were [McCune], [Kidd], [Arrington] and [Perrilliat].

The State offered six Newton County residents as witnesses,12 four of whom had heard about

McCune’s case on the news or read about it in The Newton Record, and each testified that

they believed McCune could receive a fair trial in Newton County. Regarding extensive

media exposure, the circuit judge stated:

       the only evidence I have other than the testimony of various witnesses was that
       there was only one account. And, of course, this Court knows that there were
       more accounts published in The Newton Record than the one account. I know
       that. But as far as this hearing is concerned, I only know of one; and reading
       that one report, there’s no evidence to me that report would cause a fair and
       impartial juror to prejudge the guilt of [McCune].

As to “serious crimes against members of prominent, influential families or serious crimes

against public officials and serious crimes such as mass or serial murders[,]” the circuit judge

found “that’s nonexistent in this case, other than the testimony of a mother and an aunt who

say that the victim’s family was more prominent than [McCune] . . . .” The circuit judge then

provided that “[t]he Supreme Court in numerous Mississippi cases has on numerous times

stated that during voir dire, if jurors can state that they can be fair and impartial, then that’s




       12
       Among the witnesses were a local minister; a school teacher/football coach with the
Newton County School District; and an election commissioner/president of the Newton
County School Board.

                                                7
the linchpin of a fair and impartial trial.” The circuit judge found there was not an extensive

level of adverse publicity and the coverage was not inflammatory, but merely “reporting the

incident itself[,]” that “[t]he extent and effect the publicity had upon the venired persons in

the case, [is] a matter . . . [to be] determine[d] . . . in voir dire examination.” The circuit

judge concluded that “considering the totality of the case, the evidence of the case, the

publicity of the case, the testimony that I’ve heard, . . . that [McCune’s] motion for change

of venue should be denied.”

¶8.    On April 9, 2007, the jury trial commenced. Following the State’s case-in-chief,

McCune made a motion to dismiss, which was overruled. After presentation of McCune’s

case, he offered jury instructions, discussed infra. The jury found McCune guilty as charged

on both the murder and aggravated-assault counts. On April 10, 2007, the circuit court

sentenced McCune to life imprisonment for the murder conviction and to twenty-five years

imprisonment for the aggravated-assault conviction, with “said sentence to run consecutive

to the sentence imposed in Count One hereof.” On April 12, 2007, the circuit court filed an

“Amended Judgment” as to the sentence for McCune’s aggravated-assault conviction,

because “Section 97-3-7 of the Mississippi Code provides only a maximum allowance of

twenty (20) years for the crime of aggravated assault.” That twenty-year sentence was

imposed to run consecutively to the sentence of life imprisonment imposed in Count One.

¶9.    Subsequently, the circuit court entered an order overruling McCune’s “Motion for

Judgment Notwithstanding the Verdict or, in the alternative, Motion for New Trial,” and later

entered an order overruling McCune’s “Motion for a New Trial or Other Relief.” That same

day, McCune filed a notice of appeal.


                                              8
                                           ISSUES

¶10.   This Court will consider:

       (1) Whether the circuit court erred in denying McCune’s motion for change of
       venue.
       (2) Whether the circuit court erred in refusing to grant Instructions D-1, D-5,
       D-8 and D-11, which would have allowed the jury to consider the lesser-
       included offense[13 ] of manslaughter.

                                         ANALYSIS

       I. Whether the circuit court erred in denying McCune’s motion for
       change of venue.

¶11.   The decision to grant or deny a motion for change of venue is within the discretion

of the trial judge. See King v. State, 960 So. 2d 413, 428 (Miss. 2007); Mingo v. State, 944

So. 2d 18, 30 (Miss. 2006). This Court “will not disturb the ruling of the lower court where

the trial judge did not abuse his discretion . . . .” Mingo, 944 So. 2d at 30 (citing Gray v.

State, 799 So. 2d 53, 62 (Miss. 2001)) (emphasis added).

¶12.   In King, this Court noted that it had:

       thoroughly addressed the requirements for change of venue in Howell [v.
       State, 860 So. 2d 704 (Miss. 2004)]:

              The right to a fair trial by an impartial jury is guaranteed by both
              the federal and state constitutions. Johnson [v. State, 476 So.
              2d 1195, 1208 (Miss. 1985)] (citing U.S. Const. Amend. VI and
              Miss. Const. art. 3, § 26). “The accused has a right to a change
              of venue when it is doubtful that an impartial jury can be
              obtained.” Davis [v. State, 767 So. 2d 986, 993 (Miss. 2000)]
              (citing White [v. State, 495 So. 2d 1346, 1348 (Miss. 1986)]).
              “Upon proper application, there arises a presumption that such




       13
         Lesser-included offense is a misnomer. The Court considers manslaughter to be a
lesser offense of murder.

                                                9
                 sentiment exists; and, the state then bears the burden of rebutting
                 that presumption.” Johnson, 476 So. 2d at 1211.

                 This Court enumerated “certain elements which, when present
                 would serve as an indicator to the trial court as to when the
                 presumption is irrebutable.” White, 495 So. 2d at 1349. The
                 elements are as follows:

                        (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,[14 ]
                        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.

                 Id.; Davis, 767 So. 2d at 993-94 . . . .

       Howell, 860 So. 2d at 719.

King, 960 So. 2d at 429-30 (emphasis added). Furthermore, “the State can rebut the

presumption that the defendant could not receive a fair trial by proving that the trial court


       14
            Additionally:

       [i]n cases where there has been pretrial publicity, the trial judge looks at two
       factors when evaluating the request for a change of venue. Holland v. State,
       705 So. 2d 307, 336 (Miss. 1997). “First is the level of adverse publicity, both
       in extent of coverage and its inflammatory nature. Second is the extent of the
       effect the publicity had upon the venire persons in the case.” Id.

Gavin v. State, 785 So. 2d 1088, 1095 (Miss. Ct. App. 2001).

                                                 10
impaneled an impartial jury.” Id. at 431 (citing Swann v. State, 806 So. 2d 1111, 1116

(Miss. 2002)).

¶13.   McCune’s motion for change of venue, with six supporting affidavits attached, created

a presumption of doubt that an impartial jury could be obtained.15 See King, 960 So. 2d at

429. The circuit judge correctly determined that the presumption was rebuttable, as the

requisite, irrebutable elements were absent. See King, 960 So. 2d at 429-30. Specifically,

this is not a capital case; “[I] heard nothing about the crowds threatening violence[;]” 16 and

there was not an “inordinate amount of media coverage.” 17 Id. The State presented six

witnesses to rebut the presumption. Each testified that he or she believed McCune could

receive a fair trial in Newton County. Furthermore, during voir dire, numerous venire

members indicated that they had read news accounts or had seen television newscasts


       15
            Only two of the affiants testified at the hearing, i.e., McCune’s mother and aunt.
       16
          McCune unpersuasively argues that the alleged use of extra security precautions
(i.e., law enforcement in and around the courthouse, metal detectors, and limited entryways),
not used during the “other trial that took place during the same week of the court term,”
invalidate the circuit judge’s finding. Unfortunately, untoward conduct in courthouses
caused by unwelcome societal changes has prompted increased security in many
courthouses. This Court rejects the notion that the use of such precautions should be added
to the White elements.
       17
          As the circuit judge noted, a single account from The Newton Record was presented
at the hearing. He found this pretrial publicity was neither extensive nor inflammatory, and
that any effect on the venire could be determined in voir dire. See Holland, 705 So. 2d at
336. Furthermore, the circuit judge found the case sub judice to be different from the
specific cases in which the “inordinate amount of media coverage” element was of particular
concern. King, 960 So. 2d at 429-30 (quoting White, 495 So. 2d at 1349). Specifically, the
only testimony as to the applicability of these cases was the testimony of McCune’s mother
that Bolton’s family was more prominent than McCune’s. The circuit judge found that
testimony to be insufficient. This Court would add that the existence or non-existence of
such specific cases is irrelevant in the absence of an “inordinate amount of media coverage”
in the first place. Id.

                                                11
regarding the case, and the only one who indicated that she had already formed an opinion

as to how the case should be decided was excused.18 The State’s witnesses at the hearing and

the voir dire proceedings rebutted any presumption that an impartial jury could not be

obtained. See King, 960 So. 2d at 429-31. We find nothing in the record of such quality and

weight to indicate that the circuit judge abused his discretion in denying McCune’s motion

for change of venue. See Mingo, 944 So. 2d at 30. Accordingly, this Court finds that this

issue is without merit.

       II. Whether the circuit court erred in refusing to grant Instructions D-1,
       D-5, D-8 and D-11, which would have allowed the jury to consider the
       lesser offense of manslaughter.

¶14.   This Court has stated that:

       the standard of review for challenges to jury instructions is clear[:]

              [t]he Court does not single out any instruction or take
              instructions out of context; rather, the instructions are to be read
              together as a whole. A defendant is entitled to have jury
              instructions given which present his theory of the case. This
              entitlement is limited, however, in that the Court is allowed to
              refuse an instruction which incorrectly states the law, is covered
              fairly elsewhere in the instructions, or is without foundation in
              the evidence.

       Spicer v. State, 921 So. 2d 292, 313 (Miss. 2006) (citing Parks v. State, 884
       So. 2d 738, 746 (Miss. 2004)).

       With regard to [McCune’s] claim that he was entitled to a lesser-included
       offense instruction, we conduct de novo review, as this is a question of law.
       State v. Shaw, 880 So. 2d 296, 298 (Miss. 2004) (citing Ostrander v. State,
       803 So. 2d 1172, 1174 (Miss. 2002)).




       18
        Additionally, all venire members indicated that they had not formed an opinion as
to innocence or guilt and could be fair to both McCune and the State.

                                              12
Downs v. State, 962 So. 2d 1255, 1258 (Miss. 2007). According to Strickland v. State, 2008

Miss. LEXIS 132 (Miss. March 6, 2008), lesser-included-offense instructions:

              should be given if there is an evidentiary basis in the record that
              would permit a jury rationally to find the defendant guilty of the
              lesser offense and to acquit him of the greater offense. Welch
              v. State, 566 So. 2d 680, 684 (Miss. 1990). In reviewing the
              propriety of such an instruction, we have stated:

                     A lesser-included offense instruction should be
                     granted unless the trial judge and ultimately this
                     Court can say, taking the evidence in the light
                     most favorable to the accused and considering all
                     the reasonable inferences which may be drawn in
                     favor of the accused from the evidence, that no
                     reasonable jury could find the defendant guilty of
                     the lesser-included offense (conversely, not guilty
                     of at least one element of the principal charge).

              McGowan v. State, 541 So. 2d 1027, 1028 (Miss. 1989).
              However, this Court has repeatedly held that a lesser-included
              offense instruction should not be indiscriminately granted, but
              rather should be submitted to the jury only where there is an
              evidentiary basis in the record. Lee v. State, 469 So. 2d 1225,
              1230 (Miss. 1985).

Strickland, 2008 Miss. LEXIS 132 at *36-37.

¶15.   Manslaughter is defined as “[t]he killing of a human being, without malice, in the heat

of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without

authority of law, and not in necessary self-defense . . . .” Miss. Code Ann. § 97-3-35 (Rev.

2006) (emphasis added). This Court has defined “heat of passion” as:

       [a] state of violent and uncontrollable rage engendered by a blow or certain
       other provocation given, which will reduce a homicide from the grade of
       murder to that of manslaughter. Passion or anger suddenly aroused at the time
       by some immediate and reasonable provocation, by words or acts of one at the
       time. The term includes an emotional state of mind characterized by anger,
       rage, hatred, furious resentment or terror.

                                              13
Agnew v. State, 783 So. 2d 699, 703 (Miss. 2001) (quoting Graham v. State, 582 So. 2d

1014, 1017 (Miss. 1991)) (emphasis added). “[T]here must be such circumstances as would

indicate that a normal mind would be roused to the extent that reason is overthrown and

passion usurps the mind destroying judgment.” Agnew, 783 So. 2d at 703-704 (citing

Graham, 582 So. 2d at 1018).

¶16.   Instruction D-1 provided, in part, that:

       [i]f you find from the evidence in this case beyond a reasonable doubt that
       [McCune], on or about August 13, 2006, in Newton County, Mississippi,
       killed J.J. Bolton without malice, in the heat of passion, by the use of a deadly
       weapon and further that [McCune] was not acting in self-defense, then you
       shall find [McCune] guilty of manslaughter.[19 ]

The circuit judge determined that:

       [i]f you’re asking for a manslaughter instruction on the basis of passion, not
       in necessary self-defense, then you cannot turn around and ask for a self-
       defense instruction. Of course, we’re going to argue about the self-defense
       instruction when we get to it. Here is your instruction that you offered to me,
       which says killing of a human being without malice or heat of passion but in
       a cruel or unusual manner or by use of a dangerous weapon without authority
       of law and not in necessary self-defense. It’s refused.

¶17.   This Court agrees with the circuit court’s denial of the lesser-offense instructions on

manslaughter. A lesser-offense instruction can be refused if it is without foundation in the

evidence. See Strickland, 2008 Miss. LEXIS 132 at *36-37; Downs, 962 So. 2d at 1258.

Manslaughter must be “in the heat of passion,” Miss. Code Ann. § 97-3-35 (Rev. 2006), i.e.,

the result of “immediate and reasonable provocation, by words or acts of one at the time.”




       19
         Instruction D-5 provided a definition of manslaughter identical to that in Mississippi
Code Annotated Section 97-3-35; Instruction D-8 was an excessive force instruction; and
Instruction D-11 was a jury verdict instruction as to manslaughter.

                                              14
Agnew, 783 So. 2d at 703 (quoting Graham, 582 So. 2d at 1017). Hardy testified that prior

to the incident Bolton was “talking nice” to McCune. McCune conceded that Bolton did not

threaten him that evening, had never made any threat directly to McCune, and he did not see

Bolton with a gun that evening. The evidence is devoid of a verbal or physical provocation

by Bolton. See id. In short, there was no evidentiary basis of provocation of a degree to

evoke an uncontrolled response of “anger, rage, hatred, furious resentment or terror.” Id.

¶18.   Moreover, McCune requested a self-defense instruction, which was granted by the

circuit court. McCune testified that the twelve gunshots were fired “out of self-defense.”

The very definition of manslaughter requires that it is “not in necessary self-defense[.]”

Miss. Code Ann. § 97-3-35 (Rev. 2006). Although “[a] criminal defendant has a right to

assert alternative theories of defense, even inconsistent alternative theories[,]” Reddix v.

State, 731 So. 2d 591, 593 (Miss. 1999) (citing Love v. State, 441 So. 2d 1353, 1356 (Miss.

1983), there must be an evidentiary basis therefor. That evidentiary basis is lacking.

¶19.   Thus, there was no foundation in the evidence for the lesser-offense instruction. See

Strickland, 2008 Miss. LEXIS 132 at *36-37; Downs, 962 So. 2d at 1258. This Court

concludes that the circuit court acted properly in denying such an instruction. This issue

likewise is without merit.

                                     CONCLUSION

¶20.   Accordingly, this Court affirms the final judgment and sentences of the Circuit Court

of Newton County.

¶21. COUNT I: CONVICTION OF MURDER AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF AGGRAVATED

                                            15
ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. THIS SENTENCE
SHALL RUN CONSECUTIVE TO THE SENTENCE IMPOSED IN COUNT I
HEREOF.

     SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON
AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.




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