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.
¶ 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
Maye, 49 So.3d at 1142-44. 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 1144. Maye requested and received a change of venue from Jefferson Davis County to Lamar County. Upon a second motion, he
¶ 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, 49 So.3d at 1149-51. 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 1147. 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 1149.
¶ 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 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.
¶ 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:
¶ 6. Relying on Rule 17(h), we focus our discussion on Issue VII, jury instructions. Miss. R.App. P. 17(h).
¶ 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:
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 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.2005). 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, 49 So.3d at -1149-51. We disagree.
¶ 10. Granted instruction number 5 stated simply that:
(Emphasis added.) And granted instruction number 6 provided that:
Maye, 49 So.3d at 1150-51 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.
¶ 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. § 97-3-15(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, 138 Miss. 822, 104 So. 150, 153 (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, 1089 (Miss.Ct.App.2000) (finding defense-of-others instruction required where defendant 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
¶ 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, 49 So.3d at 1149. 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.
¶ 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.
¶ 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:
¶ 17. And the method for making that determination embodied by
¶ 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 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, 232 Miss. 717, 100 So.2d 358, 361 (1958). Requested instruction D-9 stated:
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.
¶ 20. We vacate the judgment of the Court of Appeals. We also reverse Maye's
¶ 21.
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.
¶ 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.
¶ 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)).
¶ 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:
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 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
¶ 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."
¶ 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."
¶ 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.
¶ 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.
¶ 37. Contrast that with Folks v. State, where we granted of a self-defense instruction but not a defense-of-others instruction.
¶ 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
¶ 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.
LAMAR, J., JOINS THIS OPINION IN PART.
