                IN THE SUPREME COURT OF MISSISSIPPI

                         NO. 2007-CT-02147-SCT

CORY JERMINE MAYE

v.

STATE OF MISSISSIPPI

                       ON WRITS OF CERTIORARI

DATE OF JUDGMENT:               11/02/2007
TRIAL JUDGE:                    HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:      JEFFERSON DAVIS COUNTY CIRCUIT
                                COURT
ATTORNEYS FOR APPELLANT:        ABRAM J. PAFFORD
                                MICHAEL S. LABSON
                                ANNA ST. JOHN
                                ROBERT B. McDUFF
                                ROBERT E. EVANS
                                BENJAMIN J. VERNIA
                                JESSICA GABEL
ATTORNEY FOR APPELLEE:          OFFICE OF THE ATTORNEY GENERAL
                                BY: LA DONNA C. HOLLAND
DISTRICT ATTORNEY:              HALDON J. KITTRELL
NATURE OF THE CASE:             CRIMINAL - FELONY
DISPOSITION:                    THE JUDGMENT OF THE COURT OF
                                APPEALS IS VACATED. THE JUDGMENT
                                OF THE CIRCUIT COURT OF JEFFERSON
                                DAVIS COUNTY IS REVERSED, AND THIS
                                CASE IS REMANDED TO THE TRIAL
                                COURT FOR FURTHER PROCEEDINGS
                                CONSISTENT WITH THIS OPINION -
                                12/02/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     EN BANC.

     WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1.    The Court of Appeals reversed Cory J. Maye’s conviction for capital murder and

remanded for a new trial, finding that the trial court had violated Maye’s constitutional right

to be tried in the county where the offense occurred. We granted both the State’s and Maye’s

petitions for certiorari. Finding that the circuit court improperly denied Maye’s requested

defense-of-others jury instruction, we vacate the Court of Appeals’ decision, reverse the

circuit court’s judgment, and remand this case to the trial court for further proceedings

consistent with this opinion. We do not address the vicinage issue, but on remand, Maye is

entitled to reassert his right to be tried in Jefferson Davis County.

                       FACTS AND PROCEDURAL HISTORY

¶2.    In December 2001, Cory Maye fatally shot Officer Ron Jones of the Prentiss Police

Department while Jones was executing a search warrant on Maye’s apartment.                The

following facts surrounding the execution of the search warrant and Maye’s shooting of

Officer Jones are taken from the Court of Appeals’ opinion. See Maye v. State, 2009 WL

3823287 (Miss. Ct. App. Nov. 17, 2009).

               On the evening of December 26, 2001, Officer Ron Jones of the
       Prentiss Police Department secured two search warrants for a duplex located
       on Mary Street in Prentiss, Mississippi. Officer Ron Jones presented two
       affidavits and search warrants to Municipal Judge Donald Kruger. Officer
       Ron Jones signed the affidavits in the presence of Judge Kruger. The
       affidavits indicated that Officer Ron Jones had received information from a
       confidential informant who had within the prior twenty-four hours seen a large
       amount of marijuana stored in the duplex. Officer Ron Jones also attested that
       he had information from various sources that drugs were being sold out of the
       duplex. Officer Ron Jones attested that he had conducted surveillance of the
       duplex and had seen large amounts of traffic there at unusual hours. Judge
       Kruger discussed the search warrant with Officer Ron Jones, and later
       testified, “Yes, I talked with him about it. He said that he was reliable, a
       person, that the informant was, and that one or two arrests had been made
       because of this reliable, this so-called reliable informant.” Based on Officer

                                              2
Ron Jones’s affidavit, Judge Kruger issued two search warrants for the Mary
Street duplex, one for the left side of the duplex identifying Jamie Smith
and/or persons unknown as the occupants and one for the right side of the
duplex, which listed persons unknown as the occupants.

        After securing the search warrants, Officer Ron Jones selected a team
from the Prentiss Police Department, the Bassfield Police Department, the
Jefferson Davis County Sheriff’s Department, and the Pearl River Basin
Narcotics Task Force to assist him in executing the search warrants. The
officers were separated into two teams: one team to search the left side of the
duplex and the other team to search the right side of the duplex. Agent Darrell
Graves led Officers Mike Brown, Earl Bullock, Allen Allday, and Terrence
Cooley in executing the search warrant on Smith’s apartment, which was the
left side of the duplex. Officer Ron Jones led Officers Stephen Jones, Darrell
Cooley, and Phillip Allday in executing the search warrant on Maye’s
apartment, which was the right side of the duplex.

        The officers arrived at the Mary Street duplex in marked police cars.
The officers parked the cars directly in front of the duplex. Officer Ron
Jones’s team was the first to arrive at Maye’s side of the duplex. Officers Ron
Jones, Stephen Jones, and Darrell Cooley took the front door with Officer
Phillip Allday guarding the back door.

        Maye testified that he was asleep on the “chair right beside the front
door.” The officers testified that they went to the front door and loudly
announced, “police, search warrant,” three times. Officer Darrell Cooley
testified that he arrived at the door first. The front porch light was on. Officer
Darrell Cooley testified that he loudly announced, “police,” then someone
behind him announced, “search warrant.” He then kicked at the door. Officer
Darrell Cooley testified that he yelled “police” a second time, then someone
behind him announced “search warrant” loudly. Again, Officer Darrell Cooley
kicked at the door.

        Officer Stephen Jones reported that at this point he could see a light in
the house through the cracked blinds. He testified that “[t]he blinds opened,
it appeared that somebody opened the blinds and looked out.” When the
blinds were opened, he noticed the light on inside of Maye’s apartment.
Officer Darrell Cooley testified that this was the first time that he noticed a
light on inside the apartment. Officer Darrell Cooley testified that he looked
“back in toward the window on the door, and [he] could see a light back to the
left side of the door.”




                                        3
       After noticing the light, Officer Darrell Cooley yelled, “police,” a third
time with someone behind him announcing “search warrant.” When the door
would not open, the officers decided to go to the back of the duplex to gain
entry.

       Officers Phillip Allday and Terrence Cooley were at the back of the
duplex. Officer Terrence Cooley testified that he could “clearly hear” his
fellow officers at the front of the house announce police, search warrant three
times while he was at the back steps.

        Officer Graves was in charge of executing the search warrant on
Smith’s apartment (left side). Officer Graves confirmed that the officers on
Maye’s side of the duplex had announced, “police, search warrant,” as Officer
Graves approached Smith’s apartment. The occupants of Smith’s apartment
(left side) responded to the announcements and opened their door to allow the
officers to execute the search warrant.

        Unable to gain entry through Maye’s front door, Officers Ron Jones and
Stephen Jones went to the back door of Maye’s apartment, leaving Officer
Terrence Cooley to guard the front door. Officer Stephen Jones testified that
upon reaching the back door, Officer Ron Jones checked to see if the back
door would open, and then announced, “search warrant, police, search
warrant.” When the door would not open, Officers Ron Jones and Stephen
Jones proceeded to the front of the house. Officers at the back of the duplex
kicked the back door open. A couple of minutes passed between the officers’
first announcement at the front door and the back door being kicked in. After
the back door was opened, Officer Ron Jones was called to the back of the
house. He proceeded to enter the house, yelling “police.” He was met by
shots fired from Maye’s gun. Officer Ron Jones immediately left Maye’s
apartment stating that he had been shot. He was taken by Officer Stephen
Jones to the hospital, where Officer Ron Jones died shortly after arrival.
Officer Cooley apprehended Maye. A search of Maye’s apartment conducted
later by officers yielded small amounts of marijuana.

        Maye, who admittedly was asleep on a chair right by the front door,
testified that he was wakened by the banging on the front door. Maye denied
hearing the police announce “police, search warrant” or looking out the
window. Maye testified that he awoke frightened and ran to the bedroom in
the back of the house. Maye testified that he grabbed his gun, loaded it, and
laid it on the floor by the foot of his bed. His fourteen-month-old daughter
was asleep in the middle of the bed. Maye testified that he heard kicks to the
back door. He testified that he fired when he heard someone entering the
house. Maye testified that after he fired the shots, he heard the other officers


                                       4
       yell, “police, police, you just shot a[n] officer.” Maye testified that he
       immediately he put his weapon down and slid it away.

Maye, 2009 WL 3823287, at **1-3. On December 26, 2001, immediately after the shooting,

Maye was arrested and held without bond. Maye was charged with capital murder for the

killing of a police officer. Id. at *3. Maye requested and received a change of venue from

Jefferson Davis County to Lamar County. Upon a second motion, he received a change of

venue to Marion County. After a four-day trial beginning on January 21, 2004, Maye was

convicted of the capital murder of Officer Jones and ultimately sentenced to life

imprisonment without the possibility of parole.

¶3.    Maye appealed his conviction, and the case was assigned to the Court of Appeals.

The Court of Appeals addressed seven of Maye’s twelve asserted issues and found six of

those to be without merit. Particularly, it determined that Maye was not entitled to his

requested jury instructions on the defense of others. Maye, 2009 WL 3823287, at **8-9.

But 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 fundamental constitutional right to trial

in Jefferson Davis County, the county where the offense had occurred.                Id. at *6.

Specifically, the Court of Appeals found that the trial court had failed to offer adequate

justification for refusing to allow Maye to withdraw his waiver of that right and to send the

case back to that county. Id. at *8.

¶4.    The State filed a petition for writ of certiorari, asking this Court to review that

determination. Maye filed a “conditional” petition for certiorari, asking this Court, in the

event it granted the State’s petition and reversed, to review the Court of Appeals’ decision



                                               5
regarding the other issues. This Court granted both petitions on June 22, 2010. We vacate

the Court of Appeals’s judgment. We also reverse the judgment of conviction because the

trial court abused its discretion when it refused Maye’s requested jury instructions, which

would have properly extended his self-defense claim to defense of his daughter.

                                          ISSUES

¶5.    Under Mississippi Rule of Appellate Procedure 17(h), “[This] Court’s review on the

grant of certiorari shall be conducted on the record and briefs previously filed in the Court

of Appeals and any supplemental briefs filed.” Miss. R. App. P. 17(h). In his appellate

brief, Maye asserted the following issues:

       I.    Whether the evidence presented at trial was sufficient as a matter of law
             to sustain a conviction on the charged offenses.
       II.   Whether a new trial must be granted because the jury’s verdict was
             against the weight of the evidence.
       III.  Whether the testimony of the State’s forensic pathologist was admitted
             in error.
       IV.   Whether the circuit court erred in denying supplemental discovery of
             the credentials and practices of the State’s expert witness.
       V.    Whether newly discovered forensic evidence necessitates a new trial.
       VI.   Whether the circuit court erroneously deprived the defendant of his
             right to be tried in Jefferson Davis County, as guaranteed by Article 3,
             Section 26 of the Mississippi Constitution.
       VII. Whether the circuit court erred in refusing defendant’s requested jury
             instructions.
       VIII. Whether the State procured a search warrant through fraud, mandating
             a new trial.
       IX.   Whether the circuit court should have granted a motion to suppress due
             to the lack of probable cause supporting the search warrant.
       X.    Whether prosecutorial misconduct demands reversal of the conviction.
       XI.   Whether the defendant received effective assistance of counsel as
             guaranteed by the Sixth Amendment [to] the U.S. Constitution.
       XII. Whether the sentence constituted cruel or unusual punishment in
             violation of Article 3, Section 28 of the Mississippi Constitution or the
             Eighth Amendment [to] the U.S. Constitution.



                                             6
¶6.    Relying on Rule 17(h), we focus our discussion on Issue VII, jury instructions. Miss.

R. App. P. 17(h).

                                        DISCUSSION

¶7.    Maye argues that the trial court committed reversible error by refusing his proposed

jury instructions D-8 and D-9. The standard of review for the denial of jury instructions is

well-settled. Jury instructions generally are within the discretion of the trial court. Davis v.

State, 18 So. 3d 842, 847 (Miss. 2009) (citing Higgins v. State, 725 So. 2d 220, 223 (Miss.

1998)). This Court has explained that jury instructions must be considered together:

       In determining whether error lies in the granting or refusal of various
       instructions, the instructions actually given must be read as a whole. When so
       read, if the instructions fairly announce the law of the case and create no
       injustice, no reversible error will be found. There is no error if all instructions
       taken as a whole fairly, but not necessarily perfectly, announce the applicable
       rules of law.

Rubenstein v. State, 941 So. 2d 735, 784-85 (Miss. 2006) (internal quotations and citations

omitted). Additionally, we have explained that “[a] defendant is entitled to have jury

instructions given which present his theory of the case; however, this entitlement is limited

in that the court may refuse an instruction which incorrectly states the law, is covered fairly

elsewhere in the instructions, or is without foundation in the evidence.” Hearn v. State, 3

So. 3d 722, 738 (Miss. 2008) (quoting Chandler v. State, 946 So. 2d 355, 360 (Miss. 2006)).

See also Brooks v. State, 18 So. 3d 833, 839 (Miss. 2009).

¶8.    But “[i]n homicide cases, the trial court should instruct the jury about a defendant’s

theories of defense, justification, or excuses that are supported by the evidence, no matter

how meager or unlikely, and the trial court’s failure to do so is error requiring reversal of a



                                               7
judgment of conviction.” Manuel v. State, 667 So. 2d 590, 593 (Miss. 1995). “If the

defendant presents sufficient evidence in the record to support his theory of the case, he

should then be given an instruction on his theory of the case. There needs not be even a

plausible explanation.” Walker v. State, 913 So. 2d 198, 235 (Miss. 2000). When serious

doubt exists as to whether an instruction should be included, the doubt should be resolved

in favor of the accused. Davis, 18 So. 3d at 847 (citing Stringfellow v. State, 595 So. 2d

1320, 1322 (Miss. 1992)).

¶9.    The defense’s proposed instructions D-8 and D-9 both further defined self-defense.

The trial court and the Court of Appeals found that the two self-defense instructions actually

given to the jury (number 5 and number 6) sufficiently stated the law of self-defense and that

the additional instructions were not necessary. Maye, 2009 WL 3823287, at **8-9. We

disagree.

¶10.   Granted instruction number 5 stated simply that:

       The Court instructs the jury that if you find from the evidence in this case that
       on December 26, 2001 Cory J. Maye did shoot and kill Ron Jones; but that
       such shooting was in necessary self-defense, as defined by other instructions
       of the Court; then your duty under the law is to find Cory J. Maye not guilty
       of the murder of Ron Jones.

(Emphasis added.) And granted instruction number 6 provided that:

       The Court instructs the jury that to make a killing justifiable on the grounds of
       self-defense, the danger to the defendant must be actual, present and urgent,
       or the defendant must have reasonable grounds to believe that the victim
       intended to kill the defendant or to do him some great bodily harm, and in
       addition to this, he must have reasonable grounds to believe that there is
       imminent danger of such act being accomplished. It is for the jury to
       determine the reasonableness of the grounds upon which the defendant acts.
       If you, the jury unanimously find that the defendant acted in self-defense then
       it is your sworn duty to return a verdict in favor of the defendant.

                                              8
Maye, 2009 WL 3823287, at *8 n.1. While these two instructions are correct statements of

the law, they do not fully define self-defense as applied to the facts of this case.1

¶11.   Neither instruction addressed Maye’s asserted self-defense theory to include a

“defense-of-others” rationale. Our justifiable-homicide statute provides the basis for a

defense-of-others instruction. Miss. Code Ann. § 99-3-15(1)(f) (Rev. 2007). Such an

instruction may be proper when the defendant has reasonable grounds to believe certain force

is necessary to prevent the danger of imminent death or bodily injury to another person.

McGehee v. State, 104 So. 150, 153 (Miss. 1925). See also Sheppard v. State, 777 So. 2d

659, 662-63 (Miss. 2000) (“[A] defense-of-others instruction . . . inform[s] the jury that self-

defense may be applicable where a defendant reasonably believed that another person, in

addition to himself, may be in danger of imminent death or great bodily injury.”).

¶12.   Our cases addressing the defense-of-others instruction do not require that the danger

to the third person be separate and distinct from the danger perceived by the defendant. See,

e.g., Calhoun v. State, 526 So. 2d 531, 533 (Miss. 1988) (reversing conviction because

deceased’s record of threats against defendant and third party warranted defense-of-others

instruction in addition to self-defense instruction); Guster v. State, 758 So. 2d 1086, 1099

(Miss. Ct. App. 2000) (finding defense-of-others instruction required where defendant



       1
         We note that the jury was not specifically instructed on who has the burden of proof
on self-defense. As we held in Pierce v. State, 289 So. 2d 901 (Miss. 1974), the burden of
proof to prove self-defense is not on the defendant. Rather, it lies with the State to prove that
the defendant did not act in self-defense. Id. at 902. But instruction number 2 told the jury
that “the State [has] the burden of proving the defendant guilty of every material element of
the crime . . .” and that “[t]he defendant is not required to prove his innocence.” This
instruction survives the Pierce rule, since it informed the jury that it should not look to Maye
to prove self-defense, but to the State to prove the lack thereof.

                                               9
testified that she had stabbed deceased out of fear for her own and her son’s safety). In other

words, the defendant and the third party may be threatened by the same source. The jury

must decide the reasonableness of the defendant’s response in light of the circumstances. Cf.

Hart v. State, 637 So. 2d 1329, 1339 (Miss. 1994).

¶13.      But this is not to say that the mere presence of a third party will warrant the

instruction. The third party must be exposed to some real and apparent danger when the

defendant acts. In Folks v. State, we affirmed the denial of a defense-of-others instruction

where the deceased had retreated almost twenty feet from the third party. Folks v. State, 230

Miss. 217, 92 So. 2d 461, 462-63 (1957). After his retreat and when he was shot, the

deceased posed a threat of imminent danger to the defendant and not to the third party. Id.

at 462. Thus, although evidence was insufficient to warrant the defense-of-others instruction,

we reversed and remanded for a jury to reconsider the defendant’s self-defense theory. Id.

at 463.

¶14.      It is undisputed that Maye’s fourteen-month-old daughter was asleep on the middle

of the bed when Officer Jones entered the bedroom and was shot by Maye. We agree with

the Court of Appeals that, “[b]ecause the danger to Maye and his child were one and the

same, if a self-defense instruction was appropriate, as it was, then likewise a defense of

others instruction was also appropriate.” Maye, 2009 WL 3823287, at *8. So Maye should

have received a “defense-of-others” instruction to address his asserted defense of his

daughter. Instructions D-8 and D-9 both did so. But before we may find error in the trial

court’s refusal of instruction D-8 or D-9, we must be sure that either or both of them were

correct statements of the law.

                                              10
¶15.   For the following reasons, we think instruction D-8 was a correct statement of the law

and should have been given. First, instruction number 5 did not really instruct the jury on

self-defense at all, since it told the jury that self-defense would be defined in other

instructions and merely provided the jury with the proper verdict if that definition was met.

Instruction number 6 correctly defined self-defense, generally.2 But it did not go far enough

in this case. It correctly defined self-defense as requiring the defendant to have reasonable

grounds to believe that the victim intended to kill the defendant or to do him some great

bodily harm, and reasonable grounds to believe that there was imminent danger of such act

being accomplished. And it correctly told the jury that it must “determine the reasonableness

of the grounds upon which the defendant acts.” But instruction number 6 did not tell the jury

how to make that determination.

¶16.   Instruction D-8 would have done just that. Instruction D-8 told the jury exactly how

to judge Maye’s actions on the night he shot Officer Jones. It stated that:

       The Court instructs the jury that you are not to judge the actions of Cory J.
       Maye in the cool, calm light of after-developed facts, but instead you are to
       judge his actions in the light of the circumstances confronting Cory J. Maye
       at the time, as you believe from the evidence that those circumstances
       reasonably appeared to him on that occasion; and if you believe that under
       those circumstances it reasonably appeared to Cory J. Maye, at the instant that
       he took up a weapon, that Cory J. Maye then and there had reasonable ground
       to apprehend a design on the part of Ron Jones to kill Cory J. Maye or his
       daughter or to do Cory J. Maye and his daughter some great personal injury,
       and there reasonably appeared to Cory J. Maye to be imminent danger of such
       designs being accomplished; then Cory J. Maye was justified in anticipating



       2
        Instruction number 6 was a nearly verbatim statement of the self-defense instruction
this Court recommended in Robinson v. State, 434 So. 2d 206, 207 (Miss. 1983), overruled
on other grounds by Flowers v. State, 473 So. 2d 164, 165 (Miss. 1985), and Reddix v. State,
731 So. 2d 591, 595 (Miss. 1999).

                                             11
       an attack and using reasonable means to defend such attack; then you must
       find Cory J. Maye not guilty of the murder of Ron Jones.

¶17.   And the method for making that determination embodied by instruction D-8 has long

been recognized by this Court. As far back as 1899, this Court recognized the principle that

“the defendant should . . . [be] permitted to claim the benefit of any apparent, as well as of

any real, danger that the evidence afforded him, and that he [may] . . . act[] upon the facts of

the case as they reasonably appeared to him, and was justified in so doing.” McCrory v.

State, 25 So. 671, 671-72 (Miss. 1899) (emphasis added). We held in Scott v. State, 42 So.

184 (Miss. 1906), that in a prosecution for murder, where the accused claimed self-defense

as a justification, the court should have instructed the jury that, “in passing upon the action

of the defendant the jury should not try him by the light of after-developed events [nor] hold

him to the same cool and correct judgment which they are able to form. They should put

themselves in his place and judge . . . his acts by the facts and circumstances by which he

was surrounded.” Id. at 184- 85.3

¶18.   Maye’s theory of the case was self-defense, which was supported by some evidence.

Instruction D-8 was a correct statement of the law regarding how the jury should have

interpreted Maye’s actions, and it properly would have extended Maye’s self-defense claim

to include his asserted claim of defense of his infant daughter. Neither of these was covered




       3
          The wording of instruction D-8 most recently has been used in cases involving
accidental killings, occurring as the defendant was acting in lawful self-defense. See Evans
v. State, 797 So. 2d 811, 814-15 (Miss. 2000). But to the extent that instruction D-8 was
improperly worded, it is the duty of the trial court to see that the instructions are placed in
proper form for submission to the jury. Manuel, 667 So. 2d at 593.

                                              12
by other instructions. Therefore, we hold that the trial court abused its discretion by refusing

instruction D-8, an error which warrants reversal. Manuel, 667 So. 2d at 593.

¶19.   Maye also contends that instruction D-9 would have informed the jury of a

homeowner’s right to use force to protect his dwelling from what reasonably appears to be

an unlawful entry. See Miss. Code Ann. § 97-3-15(1)(e) (Rev. 2006); Lee v. State, 100 So.

2d 358, 361 (Miss. 1958). Requested instruction D-9 stated:

       The Court instructs the jury that Cory J. Maye was not under an obligation to
       wait for serious bodily harm upon him and his daughter from Ron Jones before
       Cory J. Maye took action to defend himself and his daughter from an attack.
       If you find from the evidence that Cory J. Maye took action to defend himself
       and his daughter without knowing for certain that Ron Jones was about to
       cause him and his daughter serious bodily harm, and further that it was
       reasonably apparent to a reasonable person of average prudence that Cory J.
       Maye and his daughter were in danger of serious bodily harm, then you must
       find Cory J. Maye not guilty of the murder of Ron Jones. It is for the jury to
       determine the reasonableness of the ground upon which Cory J. Maye acted.

As written, the instruction covers self-defense and defense of others and fails to convey the

substance of Section 97-3-15(1)(e) to the jury. Further, had D-9 been given along with D-6

and D-8, the jury would have received multiple instructions on self-defense and defense-of-

others. Therefore, the instruction did not properly state the law on a homeowner’s right to

protect his dwelling, and it would have been cumulative. We find no error in the denial of

D-9. Hearn, 3 So. 3d at 738.

                                       CONCLUSION

¶20.   We vacate the judgment of the Court of Appeals. We also reverse Maye’s judgment

of conviction, because the trial court committed reversible error by refusing Maye’s

requested defense-of-others jury instruction. Therefore, we remand this case to the trial court



                                              13
for a new trial consistent with this opinion. On remand, Maye is entitled to reassert his right

to be tried in Jefferson Davis County. 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).

 ¶21. THE JUDGMENT OF THE COURT OF APPEALS IS VACATED. THE
JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY IS
REVERSED, AND THIS CASE IS REMANDED TO THE TRIAL COURT FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

       CARLSON, P.J., DICKINSON AND KITCHENS, JJ., CONCUR. GRAVES,
P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY
KITCHENS AND CHANDLER, JJ. LAMAR, J., CONCURS IN RESULT ONLY.
RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED IN
PART BY PIERCE, J. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED IN PART BY LAMAR, J.

       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.

                                              14
¶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. State, 989 So. 2d 310, 316-18 (Miss. 2008) (citing White v. State, 495 So.

2d 1346, 1349 (Miss. 1986)).




                                               15
¶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, 2009 WL 3823287, *6 (Miss. Ct. App. March 9, 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.




                                              16
¶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, 2009 WL 3823287, at *8 (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.




                                              17
White, 495 So. 2d at 1349. There was an inordinate amount of media coverage of this capital

trial of a black defendant who had been indicted for a serious crime against a white public

official who was a member of an influential family.

¶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

                                              18
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, 831 A.2d 432, 439 (Md. 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, 1

S.W.3d 403, 408 (Ark. 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

                                             19
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.” 4 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.5 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.




       4
           Maj. Op. ¶ at 17 (quoting Scott v. State, 42 So. 184, 185 (Miss. 1906)).
       5
           Maj. Op. ¶ at 15.

                                               20
¶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.” 6 The Court

of Appeals already has addressed this “how-to” argument. It has said that “[w]hen the trial

court gives a Robinson 7 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.” 8 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.” 9 If

today’s holding is the law, then the Robinson instruction is incomplete, and we should (as

we did in Reddix v. State 10 ) 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.11     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



       6
           Maj. Op. at ¶ 17 (quoting Scott v. State, 42 So. 184, 184-84 (Miss. 1906)).
       7
        Instruction 6 was nearly identical to the recommended self-defense instruction in
Robinson v. State, 434 So. 2d 206 (Miss. 1983) and Reddix v. State, 731 So. 2d 591, 595
(Miss. 1999).
       8
           Johnson v. State, 749 So. 2d 369, 373 (Miss. Ct. App. 1999) (emphasis added).
       9
           Cohen v. State, 732 So. 2d 867, 872 (Miss. 1998).
       10
            Reddix v. State, 731 So. 2d 591 (Miss. 1999).
       11
            Milano v. State, 790 So. 2d 179, 184 (Miss. 2001).

                                               21
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.12 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.13

There, an ex-boyfriend came to the home of Tammy Jones and her new live-in boyfriend,

Dexter Calhoun.14 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.15

¶37.   Contrast that with Folks v. State, where we granted of a self-defense instruction but

not a defense-of-others instruction.16 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


       12
            Higgins v. State, 725 So. 2d 220, 223 (Miss. 1998).
       13
            Calhoun v. State, 526 So. 2d 531, 533 (Miss. 1988).
       14
            Id. at 532.
       15
            Id.
       16
            Folks v. State, 230 Miss. 217 , 220, 92 So. 2d 461 (1957).

                                               22
(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.” 17

¶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,18 we also have regularly upheld




        17
             Id.
        18
             Manuel v. State, 667 So. 2d 590, 593 (Miss. 1995)

                                              23
denials of self-defense instructions because “simply claiming self-defense does not make it

so.” 19 The same standard should to apply to defense of others.

                                       CONCLUSION

¶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.20

       LAMAR, J., JOINS THIS OPINION IN PART.




       19
            Strong v. State, 600 So. 2d 199, 203 (Miss. 1992).
       20
            State v. Caldwell, 492 So. 2d 575, 577 (Miss. 1986).

                                                24
