source: Caselaw Access Project

author:
WALLER, Chief Justice, GRAVES, Presiding Justice,
      RANDOLPH, Justice, PIERCE, Justice,

license: Public Domain

text:
    Cory Jermine MAYE v. STATE of Mississippi.
    No. 2007-CT-02147-SCT.
    Supreme Court of Mississippi.
    Dec. 2, 2010.

      Abram J. Pafford, Michael S. Labson, Anna St. John, Robert B. McDuff, Robert E. Evans, Monticello, Benjamin J. Vernia, Jessica Gabel, attorneys for appellant.
    Office of the Attorney General by La Donna C. Holland, attorney for appellee.
   ON WRIT OF CERTIORARI

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, 49 So.3d 1140 (Miss.Ct.App.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, ‘Tes, 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 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 Sheriffs 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.”
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 yell, “police, police, you just shot a[n] officer.” Maye testified that he immediately he put his weapon down and slid it away.

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 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 conyiction, 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.

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. 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 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:

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 tha!t 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.

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(l)(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-de fense 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 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, “[bjecause 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. 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 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.

¶ 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:

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(l)(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 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.

¶ 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)).

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

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

(1) Capital cases based on considerations of a heightened standard of review;
(2) Crowds threatening violence toward the accused;
(3) An inordinate amount of media coverage, particularly in cases of
(a) serious crimes against influential families;
(b) serious crimes against public officials;
(c) serial crimes;
(d) crimes committed by a black defendant upon a white victim;
(e) where there is an inexperienced trial counsel.

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 irrebutta-ble presumption in this case have not changed, only Maye’s wishes.

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

¶ 30. Other courts have been unwilling to grant defendants successive change-of-venue motions. In Maryland, a capital defendant was not entitled to a second change-of-venue motion that would have resulted in the case being returned to the original county of indictment. Pantazes v. State, 376 Md. 661, 831 A.2d 432, 439 (2003). In Arkansas, a defendant argued that he had a constitutional right to be tried in the county where the crime occurred; thus, he attempted to “withdraw” his granted motion to change venue. Dansby v. State, 338 Ark. 697, 1 S.W.3d 403, 408 (1999). On appeal, the court rejected his argument, finding that the right to be tried in the county where the crime occurred was “qualified by the defendant’s right to apply for a change of venue.” Id. Once the defendant exercised the right to change venue, the trial court had the discretion to refuse future changes. Id. A Maine court held that, once the defendant sought and received a change of venue, he no longer had a constitutional or statutory right to a trial in any particular county. State v. Nile, 595 A.2d 1047, 1048 (Me.1991). The Florida Supreme Court addressed the venue issue in a death-penalty ease 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 whs not instructed to consider Maye’s behavior “by the facts and circumstances by which he was surrounded.” Taken as a whole, the instructions, so the Majority says, “did not tell the jury how to” determine whether the defendant’s acts were reasonable. The Majority also suggests that this error was compounded because Maye’s asserted defense of his infant daughter was not covered by other instructions. Neither by themselves nor in tandem do these errors, if errors at all, rise to the level of abuse of discretion.

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

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

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

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

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

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

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

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,

LAMAR, J., JOINS THIS OPINION IN PART.

      . 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.

      . 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).

      . 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.

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

      . Maj. Op. ¶ at 15.

      . Maj. Op. at ¶ 17 (quoting Scott v. State, 42 So. 184, 184-84 (Miss.1906)).

      . 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).

      . Johnson v. State, 749 So.2d 369, 373 (Miss.Ct.App.1999) (emphasis added).

      . Cohen v. State, 732 So.2d 867, 872 (Miss.1998).

      . Reddix v. State, 731 So.2d 591 (Miss.1999).

      . Milano v. State, 790 So.2d 179, 184 (Miss.2001).

      . Higgins v. State, 725 So.2d 220, 223 (Miss.1998).

      . Calhoun v. State, 526 So.2d 531, 533 (Miss.1988).

      . Id. at 532.

      . Id.

      . Folks v. State, 230 Miss. 217, 220, 92 So.2d 461 (1957).

      . Id.

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

      . Strong v. State, 600 So.2d 199, 203 (Miss.1992).

        . State v. Caldwell, 492 So.2d 575, 577 (Miss.1986).


author: KING, C.J., MAXWELL, J.,

text:
    Cory Jermine MAYE, Appellant v. STATE of Mississippi, Appellee.
    No. 2007-KA-02147-COA.
    Court of Appeals of Mississippi.
    Nov. 17, 2009.
    Rehearing Denied March 9, 2010.

      Robert E. Evans, Monticello, Anna W. St. John, Michael Scott Labson, Abram J. Pafford, Benjamin J. Vernia, Jessica D. Gabel, James P. Sullivan, attorneys for appellant.
    Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
   KING, C.J.,

for the Court:

¶ 1. Cory Maye was convicted in the Circuit Court of Marion County of capital murder, and sentenced to death. The trial court set aside the sentence and sentenced Maye to life imprisonment without the possibility of parole. Aggrieved by his conviction, Maye appeals. Maye asserts the following alleged points of error:

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.

SUMMARY OF FACTS

¶ 2. This case involves the death of a police officer in the line of duty. On the evening of December 26, 2001, sometime after 10:00 p.m., Officer Ron Jones was shot and killed by Maye while the officer was attempting to execute a search warrant.

¶ 3. 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 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.

¶ 4. After securing the search warrants, Officer Ron Jones selected a team from the Prentiss Police Department, the Bass-field Police Department, the Jefferson Davis County Sheriffs 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.

¶ 5. 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.

¶ 6. 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.

¶ 7. 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.”

¶ 8. 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.

¶ 9. 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.

¶ 10. 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 them door to allow the officers to execute the search warrant.

¶ 11. 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.

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

¶ 13. After the trial of this case, Maye’s counsel identified Randy Gentry as the informant who had supplied the information for the search warrant. Gentry testified that he had purchased forty dollars’ worth of crack cocaine from Smith on December 26, 2001, and that Smith (who resided on the left side of the duplex) went to the right side of the duplex Maye’s side, got the crack cocaine, and then gave it to Gentry.

PROCEDURAL HISTORY

¶ 14. 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. On March 24, 2003, the trial court granted Maye’s motion to change venue from Jefferson Davis County to Lamar County. On July 28, 2003, Maye moved to change venue from Lamar County back to Jefferson Davis County. The court granted the motion to change venue on September 26, 2003. However, rather than returning to Jefferson Davis County, the court changed venue to Marion County. The trial commenced on January 23, 2004, in Marion County. After four days of trial, the jury convicted Maye of capital murder and sentenced him to death. In response to Maye’s post-trial motions, the trial court set aside the sentence of death imposed by the jury and sentenced Maye to life without the possibility of parole. Maye timely appeals his conviction.

¶ 15. Finding that the trial court erred in denying Maye’s constitutional right to be tried in Jefferson Davis County, the county where the offense had occurred, this Court reverses the judgment of the trial court and remands the case for a new trial. In light of this determination, the Court will not address all of the issues raised, but we will address those which may be relevant upon a new trial.

ANALYSIS

I. Testimony of the State’s Expert in Forensic Pathology

¶ 16. At trial, Dr. Steven Hayne was offered by the State and admitted by the trial court as an expert in forensic pathology without objection from Maye. Now, Maye claims that Dr. Hayne offered impermissible expert testimony concerning the position of the shooter and the victim and the trajectory of the bullet before it struck Officer Ron Jones. In framing his argument under this issue, Maye misconstrues Dr. Hayne’s testimony.

¶ 17. It is helpful to put into context how the matter of the positions of Maye and Officer Ron Jones at the time of the shooting arose during Dr. Hayne’s testimony. On direct examination, Dr. Hayne testified regarding the cause of death and the path of the bullet through the body. When asked what was his opinion as to the cause of death of Officer Ron Jones, Dr. Hayne testified: “I described the cause of death as a gunshot wound of the abdomen consistent with distance and consistent with reentry and penetrating, sir.” Dr. Hayne was neither asked on direct nor did he offer an opinion about the position of the shooter, Maye, or of the victim.

¶ 18. Over the objection of counsel for Maye, Dr. Hayne opined regarding the position of the gun based on an assumption that the victim was standing or slightly flexed forward. It is clear that Dr. Hayne testified that he had no knowledge of the position of the shooter or the victim at the time of the shooting. However, based on that certain hypothetical, Dr. Hayne testified within his area of expertise. Dr. Hayne qualified his opinion, stating: “With the decedent in an upright position or even leaning slightly forward, I would expect the weapon to be in a relatively higher position than the entrance gunshot wound.” Dr. Hayne was responding to a hypothetical based on his knowledge of the bullet path within Officer Ron Jones’s body. This Court has held that “the use of hypothetical questioning in order to elicit expert testimony is permissible in Mississippi.” Williams v. State, 937 So.2d 35, 42 (¶ 20) (Miss.Ct.App.2006) (citing Williams v. State, 544 So.2d 782, 787 (Miss.1987)). This Court stated that:

Whether to admit expert testimony is a decision left to the sound discretion of the trial court. Marbra v. State, 904 So.2d 1169, 1176 (¶ 27) (Miss.Ct.App.2004) (citing Puckett v. State, 737 So.2d 322, 342 (¶ 57) (Miss.1999)). We will not reverse based on the trial court’s admission of expert testimony, unless we conclude that the admission was arbitrary and clearly erroneous, i.e., that the trial court abused its discretion. Id.

Id. at 41-42 (¶ 18).

¶ 19. This Court finds that this opinion testimony concerning the position of the gun was properly within Dr. Hayne’s expertise as a forensic pathologist. As a forensic pathologist, opinion evidence of the position of the gun in relation to the bullet path within the body of Officer Ron Jones was well within Dr. Hayne’s expertise. The Mississippi Supreme Court and this Court have held that it is within the expertise of a forensic pathologist to opine concerning the position of the body at the time the wounds are received. “Dr. Hayne was qualified as an expert in forensic pathology, which includes expertise in how wounds are received. This expertise necessarily relates to the position of the body at the time.” Bell v. State, 725 So.2d 836, 853 (¶ 50) (Miss.1998). In Bell, the defendant objected to the testimony of Dr. Hayne that the victim’s hand was over his face at the time of the shooting. Id. The supreme court found that this testimony was within Dr. Hayne’s area of expertise as a. forensic expert. Id. The Mississippi Supreme Court has stated:

Although there have been cases cited where experts were not permitted to testify to the position of the body, these are not consistent with the rules of evidence and the substance of the complained of testimony. Miss. R. Evid. 702 states: “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify theret'o in the form of an opinion or otherwise.” Bell stipulated as to the fact that Dr. Hayne was an expert in forensic pathology. Forensic pathology is generally accepted as a division within pathology requiring a medical degree and advanced training in forensic pathology. A forensic pathologist addresses two basic questions: what was the cause of death, and what was the manner of death?

Id. at 853-54 (¶ 51). Courts of this state routinely allow forensic pathologists to offer opinion testimony regarding the position of the victim. White v. State, 964 So.2d 1181, 1185-86 (¶ 11) (Miss.Ct.App.2007) (the Court found that a forensic pathologist’s expert opinion concerning the position of the victim’s body prior to impact with the car was admissible); Williams v. State, 964 So.2d 541, 547-48 (¶ 25) (Miss.Ct.App.2007) (testimony of Dr. Hayne concerning the position of the body of the defendant in relation to the gun was admitted as he was properly accepted as a forensic expert).

¶ 20. Furthermore, on redirect examination, counsel for Maye objected to only two questions. It appears that the testimony of which Maye complains of the most on appeal was that elicited by Maye’s counsel during re-cross-examination of Dr. Hayne when Dr. Hayne stated that Officer Ron Jones would “have to be markedly flexed over, almost on one’s knees, to achieve that trajectory.” Where a party’s questioning yields an unfavorable but responsive answer, he has no basis upon which to object to the answer. Rosenthall v. State, 844 So.2d 1156, 1160 (¶ 16) (Miss.2003) (quoting Warren v. State, 369 So.2d 483, 486 (Miss.1979)). In this case, it was Maye’s questioning that elicited the testimony of which he now complains. Therefore, he cannot object. Hoops v. State, 681 So.2d 521, 528 (Miss.1996).

¶ 21. Even assuming that the admission of Dr. Hayne’s testimony was error, we do not find it to be reversible error under the circumstances of this case. “A ruling on evidence is not error unless a substantial right of the party is affected.” Edmonds v. State, 955 So.2d 787, 792 (¶ 9) (Miss.2007) (citing Green v. State, 614 So.2d 926, 935 (Miss.1992)); see also Holland v. State, 705 So.2d 307, 344 (¶ 143) (Miss.1997) (citing Russell v. State, 607 So.2d 1107, 1114 (Miss.1992) (“Harmless error ... results if the evidence does not impinge upon a substantial right of the defendant.”)). Maye argues that this evi dence was critical because it called into question his testimony that he was on the floor in the bedroom at the time he fired the gun. However, Dr. Hayne’s testimony was not germane to the question that was before the jury and is before this Court. Dr. Hayne’s allegedly objectionable testimony offered nothing which addressed the question of whether Maye knew that police officers were attempting to gain entry into his home at the time he fired the fatal shot.

¶ 22. Maye’s argument is similar to that raised by the defendant in the case of Howard v. State, 945 So.2d 326, 370 (¶ 98) (Miss.2006), wherein the defendant argued that the expert doctor misrepresented his background and competence. In the current case, Maye argues that Dr. Hayne misrepresented his qualifications and whether his practice violated the national standards due to the number of autopsies he performs per year. In Howard, the Mississippi Supreme Court noted that the claimed misrepresentations did not go to the ultimate conclusion of the expert but to his “background and competence as an expert.” Id. at 371 (¶ 100). In Howard, as in the current case, the supreme court finds that “[e]ven if these statements were false, it is not reasonably likely that they ‘affected the judgment of the jury.’ ” Id. (quoting Barrientes v. Johnson, 221 F.3d 741, 756 (5th Cir.2000)).

¶ 23. Because we find that Dr. Hayne did not misrepresent his qualifications as an expert in forensic pathology, and because he was offered and admitted as an expert without objection from Maye at trial, there is no merit to this issue.

II. Right to be Tried in Jefferson Davis County

¶ 24. “In all criminal prosecutions the accused shall have a right to ... a speedy and public trial by an impartial jury of the county where the offense was committed.” Miss. Const, art. 3, section 26. Similar rights to be heard “by an impartial jury of the State and district wherein the crime shall have been committed ...” are secured by the Sixth and Fourteenth Amendments to the United States Constitution. Maye had a fundamental constitutional right to be tried in Jefferson Davis County, where the death of Officer Ron Jones took place. Maye is entitled to a new trial because of the trial court’s erroneous refusal to allow his exercise of his right to be tried in Jefferson Davis County, the county wherein the offense for which he was being tried was committed. This Court finds that this case should be reversed and remanded for a new trial.

¶ 25. On February 21, 2003, Maye moved for a change of venue from Jefferson Davis County, arguing that he could not receive a fair trial in Jefferson Davis County because the victim was a police officer and the son of the Prentiss Chief of Police. The motion for a change of venue was supported by the affidavits of two witnesses who attested that because there was' a bias of the public to the facts of the case and there was ill will toward Maye, Maye could not receive a fair trial in Jefferson Davis County. The State agreed to the change of venue. The trial court transferred venue to one of the forums suggested by Maye, Lamar County, noting that “there has been a substantial discussion of the alleged facts of the case in Jefferson Davis County and it would be difficult to empanel an impartial jury in Jefferson Davis County....” Trial was set in Lamar County for September 29, 2003.

¶ 26. On July 28, 2003, two months before the trial was to take place, Maye filed a second motion, entitled “Motion to Reconsider Order Granting Change of Venue.” In this motion, Maye informed the trial court that “[i]n late May, defense counsel received a telephone call from an attorney advising that a member of the Lamar County Bar warned that it was doubtful that an impartial jury could be impaneled in Lamar County to hear this capital/death penalty case.” In addition, referencing the decision of Simon v. State, 633 So.2d 407, 412 (Miss.1993), vacated and remanded by Simon v. Mississippi, 513 U.S. 956, 115 S.Ct. 413, 130 L.Ed.2d 329 (1994), Maye suggested that the court was not prohibited from selecting a venue with a racial composition similar to that of the original venue in a change of venue. In Simon, the supreme court found that the Sixth Amendment “has never been held to require that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.” Id. (quoting Britt v. State, 520 So.2d 1377, 1379 (Miss.1988)). The State objected to the motion. On September 26, 2003, the trial court granted the motion, but it refused to return the case to Jefferson Davis County as requested by Maye. Instead, the trial court transferred the case to Marion County.

¶ 27. This was not the last-minute “conditional” motion found in Simon v. State, 688 So.2d 791 (Miss.1997) or the motion after remand found in State v. Caldwell, 492 So.2d 575 (Miss.1986). There was no indication that Maye was using the motion to take advantage of the trial court by waiting until the eve of trial to file the motion and gain a continuance. The motion was filed in sufficient time for the court to hold a hearing and determine and address the reasonableness of Maye’s request. As noted by Maye, “the court did again change venue,” but it failed to grant Maye’s express wish to be tried in Jefferson Davis County, as required by the Mississippi Constitution. Maye specifically invoked Article 3 of the Mississippi Constitution in the motion seeking to return the case to Jefferson Davis County as he was entitled to do.

¶ 28. 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. See Stevens v. Marks, 383 U.S. 234, 243-44, 86 S.Ct. 788, 15 L.Ed.2d 724 (1966); United States v. Marcello, 423 F.2d 993, 1005 (5th Cir.1970). Maye argues that the trial court failed to suggest a “proper justification” for refusing his request to have the case tried in the original venue of Jefferson Davis County; instead, the court just changed the venue to Marion County. Indeed the only justification offered by the trial court was a belief that it lacked the authority to return the case to Jefferson Davis County. The failure to offer adequate justification is a ground for reversal.

¶ 29. Once Maye requested that the trial court return venue to Jefferson Davis County, the court was under a constitutional obligation to grant his request or at the very least to offer clear justification for its decision to deny the request and change venue to another county. In this case, the trial judge offered no analysis or conclusions of law or findings of fact as to why Maye could not revoke his prior motion and seek venue in Jefferson Davis County. This was error; consequently, this Court must reverse and remand this case for a new trial.

III. Refusal of Defendant’s Requested Jury Instructions

¶ 30. The court refused jury instruction D-3, defining reasonable doubt. “Our supreme court has repeatedly stated that the term ‘reasonable doubt’ defines itself and is not a proper jury instruction.” Vaden v. State, 965 So.2d 1072, 1074 (¶ 4) (Miss.Ct.App.2007). Also refused were jury instructions D-8 and D-9 regarding self-defense. Maye requested and received two other jury instructions addressing self-defense, and the court found that these instructions sufficiently stated the law of self-defense and that the additional instructions were not necessary. However, of concern is the denial of jury instruction D-9, which also included the defense of Maye’s infant child as self-defense. The record does not suggest that there was a danger to the child separate and apart from that danger to Maye, which served as a basis for a self-defense instruction. Because 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.

¶31. The court refused the defense’s jury instruction 15 on manslaughter. The jury was instructed on the crime of manslaughter, and the giving of this refused instruction would have been a comment by the court on the evidence.

¶ 32. Maye argues on appeal that it was error for the trial court to refuse these jury instructions offered by him. In considering the propriety of refusing certain jury instructions, “all instructions are to be read together and if the jury is fully and fairly instructed by other instructions the refusal of any similar instruction does not constitute reversal error.” Laney v. State, 486 So.2d 1242, 1246 (Miss.1986) (citing Groseclose v. State, 440 So.2d 297 (Miss.1983); Barr v. State, 359 So.2d 334 (Miss.1978)). The “trial court is not required to instruct a jury over and over on a principal of law even though some variations are used in different instructions.” Id. (citing Groseclose v. State, 440 So.2d 297). Stated differently, Mississippi courts have “repeatedly held that the trial court is not required to grant several instructions on the same point.” Fairley v. State, 467 So.2d 894, 902 (Miss.1985) (citing McWilliams v. State, 338 So.2d 804 (Miss.1976); Ragan v. State, 318 So.2d 879 (Miss.1975)).

¶ 33. In the current case, the trial court adequately instructed the jury on the State’s burden at trial, as well as Maye’s theory of self-defense. The rejected jury instructions were either improper, redundant, or unsupported by the evidence. On remand, other jury instructions may be offered, and Maye will have an opportunity to submit other jury instructions.

IV. Search Warrant

V. Motion to Suppress

¶ 34. Maye argues on appeal that: (1) the search warrant was issued without probable cause; (2) the testimony of Gentry contradicts the affidavit given in support of the search warrant and shows that Officer Ron Jones “fraudulently misstated” the elements of probable case; and (3) he was denied due process because the State has not disclosed the identity of the confidential informant.

1135. The underlying facts and circumstances attached to the search-warrant affidavit for the Mary Street duplex are the following:

I, Ronald W. Jones, P5, do hereby state under oath that I have received information from various sources that controlled substances are being stored in and sold from two apartments located on Mary St.
A C.I. personally known to me to have given true and reliable information in the past which has led to at least one arrest, went to said residence within the past twenty-four hours and saw a large quantity of [mjarijuana being stored in both apartments located on Mary St. I, Ronald W. Jones[,][a]lso state under oath that I, personally surveillanced said apartment[s] and witnessed a large amount of traffic at unusual hours traveling to and from said apartments.
Said apartments is being occupied by Jamie Smith a known drug dealer and persons unknown. I therefore believe that other controlled substances are being stored in and sold from said apartments by Jamie Smith and/or person(s) unknown.

¶ 36. The “Underlying Facts and Circumstances” support the issuing judge’s finding of probable cause. “An affidavit for a search warrant is a means of presenting to the issuing officer a basis upon which he may determine whether in fact probable cause exists.” Bevill v. State, 556 So.2d 699, 712 (Miss.1990). Probable cause is:

a practical, nontechnical concept, based upon the conventional considerations of every day life on which reasonable and prudent men, not legal technicians, act. It arises when the facts and circumstances within an officer’s knowledge, or of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a crime has been committed and that a particular individual committed it. Conerly v. State, 760 So.2d 737, 740 (Miss.2000) (quoting Strode v. State, 231 So.2d 779, 782 (Miss.1970)).

Busick v. State, 906 So.2d 846, 852 (¶ 6) (Miss.Ct.App.2005) (finding that there was no misrepresentation on the affidavit in support of a search warrant where the officer discovered after issuance of the search warrant that the suspect was not the same person as the individual videotaped). This Court has stated that:

When reviewing a judge’s finding of probable cause, this Court does not make a de novo determination but only looks to see whether there was a substantial basis for the judge’s finding. McKinney v. State, 724 So.2d 928, 931 (¶ 12) (Miss.Ct.App.1998). In order to issue a valid search warrant, the judge “is required to make a ‘practical, commonsense decision whether given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Id. (quoting Smith v. State, 504 So.2d 1194, 1195 (Miss.1987)).

Huff v. State, 828 So.2d 228, 231 (¶ 6) (Miss.Ct.App.2002) (finding that an officer’s statement to the judge that there was an odor coming from the house consistent with the manufacturing of drugs and a confidential informant’s statement that the occupants purchased chemicals to manufacture drugs were sufficient probable cause for a search warrant). In the current case, the information contained in the “Underlying Facts and Circumstances” section supports the finding of probable cause for the search warrant. As stated in the “Underlying Facts and Circumstances,” Officer Ron Jones attested that “various sources” had provided information “that controlled substances were being sold” from the duplex. Further, Officer Ron Jones attested that a confidential informant, who had “given true and reliable information in the past which has led to at least one arrest” had gone to the residences and seen “a large quantity of [mjarijuana being stored in both apartments.” Additionally, Officer Ron Jones attested that he had conducted surveillance on the apartments and had seen “a large amount of traffic at unusual hours traveling to and from said apartments.” Therefore, Maye’s arguments that the search warrant was issued without probable cause and that the trial court erred in denying Maye’s motion to suppress are without merit.

VI. Prosecutorial Misconduct

¶ 37. Maye argues that the prosecutor committed prosecutorial misconduct by (1) improperly referring to Officer Ron Jones’s status as a police officer at trial, (2) stating during closing argument that the police officers could have gotten away with killing Maye at the scene in retaliation for shooting Officer Ron Jones, and (3) mischaracterizing the evidence during closing argument. The Mississippi Supreme Court has noted the wide latitude given to counsel during closing statements:

We must first observe that the [sjtate and defense counsel should be given wide latitude in their arguments to a jury. This is inherent in, and indispensable to, our adversary system. Courts should be very careful in limiting the free play of ideas, imagery and the personalities of counsel in their argument to a jury.
We next observe it is the duty of a trial counsel, if he deems opposing counsel overstepping the wide range of authorized argument, to promptly make objections and insist upon a ruling by the trial court. The trial judge first determines if the objection should be sustained or overruled. If the argument is improper, and the objection is sustained, it is the further duty of trial counsel to move for a mistrial. The circuit judge is in the best position to weigh the consequences of the objectionable argument, and unless serious and irrepai'able damage has been done, admonish the jury then and there to disregard the improper comment. See Wilson v. State, 234 So.2d 303 [, 308] (Miss.1970); Aldridge v. State, 180 Miss. 452 [, 456], 177 So. 765 (1938); Matthews v. State, 148 Miss. 696 [, 701], 114 So. 816 (1927).

Johnson v. State, 477 So.2d 196, 209-10 (Miss.1985). “Where a prosecutor has made an improper argument, the question on appeal is ‘whether the natural and probable effect of the improper argument of the prosecuting attorney is to create an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created.’ ” Davis v. State, 914 So.2d 200, 207-08 (¶ 38) (Miss.Ct.App.2005) (quoting Howell v. State, 860 So.2d 704, 762 (¶ 206) (Miss.2003)).

¶ 38. Further, the Court finds that Maye’s claims of error are without merit. The Court finds that there was no impropriety in the prosecutor identifying Officer Ron Jones as a police officer. Hansen v. State, 592 So.2d 114, 146 (Miss.1991). That information was relevant to the capital offense charged, the murder of a police officer in the performance of his duties. It was not admitted as victim-characteristic evidence at the sentencing phase; but rather, it was an integral part of the proof necessary to establish the capital offense. Miss.Code Ann. § 97-3-19(2)(a) (Rev.2006).

¶ 39. We note that the comments made by the prosecutor that “[training and professionalism is being an officer ... and not letting your emotions go and shooting the person that” shot your fellow officer were in response to a challenge by the defendant that the officers lacked professionalism — and is proper argument at closing. “It is imperative that the statements be read in their appropriate context in light of that which the prosecutor was in fact arguing to the jury at the time.” Holland v. State, 705 So.2d 307, 347 (¶ 168) (Miss.1997). It is clear that the prosecutor was commenting upon the officers’ professionalism and training on the night of the shooting, and such comments were proper. However, even if the comments were deemed improper, it was harmless error. “If the argument does not result in ‘unjust prejudice against the accused as to result in a decision influenced by the prejudice so created,’ it will be deemed harmless.” McGowen v. State, 859 So.2d 320, 346 (¶ 91) (Miss.2003) (citations omitted).

¶ 40. Furthermore, the Court finds that the prosecutor’s remaining statements regarding the evidence were reasonable inferences drawn from the testimony presented. It is well settled that “parties may comment upon any facts introduced into evidence, and may draw whatever deductions and inferences that seem proper from the facts.” Ross v. State, 954 So.2d 968, 1002 (1174) (Miss.2007) (citing Bell, 725 So.2d at 851). There is no merit to this issue.

VII. Cruel or Unusual Punishment

¶41. Maye’s final argument is that it was error for the trial court to sentence him to life without the possibility of parole after the trial court set aside the sentence of death imposed by the jury. In particular, Maye argues that the imposition of the sentence “without giving individualized consideration to the circumstances of this case ... violated Mr. [May’s] constitutional rights against cruel or unusual punishment.” In the current case, the trial court had but two options in Maye’s sentencing, death and life without the possibility of parole. Pham v. State, 716 So.2d 1100, 1103 (¶ 21) (Miss.1998); Flowers v. State, 842 So.2d 531, 556 (¶ 77) (Miss.2003). In the current case, upon the election of the district attorney to not pursue the death penalty, the trial court had only one choice. That choice was the lesser sentence of life without the possibility of parole, which the trial .court imposed. Miss.Code Ann. § 97-3-21 (Rev.2006); Miss.Code Ann. § 47-7-3(l)(f) (Rev.2004); see Brown v. State, 890 So.2d 901, 922 (¶ 82) (Miss.2004). The appellate courts of Mississippi have held that “sentences that do not exceed the maximum term allowed by statute will not be considered grossly disproportionate and will not be disturbed on appeal.” Johnson v. State, 950 So.2d 178, 183 (¶ 22) (Miss.2007) (citations omitted). Thus, Maye’s final claim of error is without merit.

CONCLUSION

¶ 42. Finding that the trial court abused its discretion in not allowing Maye to exercise the constitutional right to be tried in the county where the offense occurred, the judgment of the trial court is reversed, and this case remanded for a new trial.

¶ 43. THE JUDGMENT OF THE CIRCUIT COURT OF JEFFERSON DAVIS COUNTY IS REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON DAVIS COUNTY.

GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ„ CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT. MAXWELL, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY MYERS, P.J. LEE, P.J., AND CARLTON, J., NOT PARTICIPATING.

MAXWELL, J.,

dissenting:

¶ 44. I dissent to note my disagreement with the majority’s handling of the venue issue. I find the majority incorrectly concluded that the trial judge abused his discretion in refusing to transfer the case back to Jefferson Davis County. The trial judge had previously transferred venue from Jefferson Davis County because of concerns it would be difficult to obtain an impartial jury there due to the nature of this capital-murder case and the substantial publicity. Also, I contend the majority is too quick to distinguish our supreme court’s decision in Simon v. State, 688 So.2d 791 (Miss.1997) (“Simon II”).

I. Venue

¶ 45. I steadfastly agree with the majority that the Mississippi Constitution provides an accused the right to be tried in the county where the offense was committed. Similar rights are guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. My concerns, however, stem from the manner in which the majority glosses over perhaps the more pertinent constitutional protection at hand — Maye’s right to a “public trial by an impartial jury of the county where the offense was committed.” Miss. Const, art. 3, § 26 (emphasis added).

¶ 46. The majority finds no proper justification for denying Maye’s request to return the trial to Jefferson Davis County. However, the gravity of the pending capital-murder charge and the identity of the victim were undeniable. Maye faced the death penalty. Specifically, he stood accused of murdering a law enforcement officer in the line of duty — an officer who was in the process of lawfully searching for illegal drugs in Maye’s residence when he was shot. To further magnify the events, the officer happened to be the local police chiefs son.

¶ 47. Maye and his attorney recognized these issues, moved for a change of venue, and requested that Maye’s trial be held outside of Jefferson Davis County. Maye claimed he could not receive “a fair and impartial trial” in Jefferson Davis County due to the public’s prejudgment of his case. His initial request for a change of venue was supported by the affidavits of two residents who had similar concerns and attested that the public in Jefferson Davis County was biased against Maye.

¶ 48. The trial judge acknowledged the widespread discussion of the case in Jefferson Davis County. He also recognized the inherent difficulties that would be involved in impaneling “an impartial jury” there, so he granted Maye’s motion and moved the case to Lamar County — a forum suggested by Maye. Maye then filed a “Motion to Reconsider Order Granting Change of Venue,” which the circuit court granted. However, rather than transferring the case back to Jefferson Davis County, the trial judge transferred the case to a third county — Marion County.

¶ 49. Our supreme court instructs that “[u]pon proper application for a change of venue, a presumption arises that an impartial jury cannot be obtained.” Evans v. State, 725 So.2d 613, 647 (¶ 99) (Miss.1997). Under Mississippi Code Annotated section 99-15-35 (Rev.2007), “proper application requires a written motion supported by affidavits of two or more witnesses showing that the defendant cannot have a fair and impartial trial in the particular county because of prejudgment of the case or grudge or ill will to the defendant in the public mind.” Evans, 725 So.2d at 647 (¶ 99) (citing Porter v. State, 616 So.2d 899, 906 (Miss.1993)). Here these requirements are present giving rise to a presumption that a fair and impartial jury could not be seated in Jefferson Davis County.

¶ 50. While this presumption is generally rebuttable, our supreme court makes clear that in some instances where certain factors are present — such as cases involving capital offenses, inordinate amounts of media coverage, serious crimes against public officials, and crimes committed by an African American defendant upon a white victim — the presumption that an impartial jury cannot be obtained may become irrebuttable. Id. at 647 (¶ 100) (citing White v. State, 495 So.2d 1346, 1349 (Miss.1986)). Many of these factors were prevalent here.

¶ 51. The trial judge was at a crossroads. It appears he simply chose the path he believed best protected Maye’s constitutional guarantee of a fair and impartial trial. Perhaps this case exemplifies why our supreme court leaves decisions about whether venue should be changed in criminal proceedings to the sound discretion of the trial judge. See, e.g., Winters v. State, 473 So.2d 452, 457 (Miss.1985); Cabello v. State, 471 So.2d 332, 339 (Miss.1985); West v. State, 463 So.2d 1048, 1053-54 (Miss.1985); Billiot v. State, 454 So.2d 445, 454 (Miss.1984). Indeed, our supreme court instructs the granting of a change of venue is “so largely in [the] discretion of the trial court that a judgment of conviction will not be reversed on appeal on the ground that a change of venue was refused, unless it clearly appears that [the] trial court abused its discretion.” Billiot, 454 So.2d at 454 (quoting Parks v. State, 267 So.2d 302, 304 (Miss.1972)); see also Fisher v. State, 481 So.2d 203, 215 (Miss.1985).

¶ 52. A similar “heads-I-win-tails-you-lose” venue situation was addressed in United States v. Marcello, 423 F.2d 993, 1006 (5th Cir.1970). In Marcello, the Fifth Circuit Court of Appeals upheld a district court’s decision to deny a defendant’s request to move his trial back to the original venue once the defendant had requested a change of venue to another district. Less than ten minutes after the defendant had waived his right to be tried in the district where the offense had occurred, he attempted to withdraw the waiver. Id. at 1003. The defendant then filed a “Motion to Reconsider Order Directing Change of Venue,” attempting to invoke his constitutional right to be tried in the district where the offense occurred, which the trial judge denied. Id. at 1004. The Fifth Circuit held the trial judge did not abuse his discretion in refusing to transfer the case to the original venue because “there was strong justification” for the trial judge’s decision in that “[i]t would have been impossible for [the defendant] to receive a fair trial in [the original venue] because of the continued and continuing unfavorable publicity.” Id. at 1005-06. As in Marcello, in the present case, there is also justification for refusing to transfer the case back to Jefferson Davis County.

¶ 53. Furthermore, the Florida Supreme Court, in a death-penalty case with facts similar to the case at hand, held that a trial court did not abuse its discretion in refusing to transfer the case back to the county in which the crime had occurred, where the defendant had agreed to an alternate venue. Kearse v. State, 770 So.2d 1119, 1123-24 (Fla.2000).

¶ 54. There are few cases addressing the standard to be applied to withdrawal of a waiver of venue. However, many courts have dealt with this issue in the context of the right to be tried by an impartial jury. For example, some courts have required an affirmative showing by the defendant that he would be prejudiced in some way unless the court allowed withdrawal of the waiver. See, e.g., Hutchins v. State, 493 N.E.2d 444, 446 (Ind.1986) (defendant must show harm or change in circumstances justifying withdrawal of jury-trial waiver); People v. McQueen, 52 N.Y.2d 1025, 438 N.Y.S.2d 299, 420 N.E.2d 97, 97 (1981) (defendant must give better reason for withdrawal of waiver than simply changing his mind). Some courts have even concluded that the waiver of the right to a jury trial is absolute once made voluntarily, knowingly, and intelligently, and the waiver cannot thereafter be withdrawn. See Day v. State, 395 So.2d 119, 120 (Ala.Crim.App.1980); Wabaunsee v. State, 554 P.2d 36, 38 (Okla.Crim.App.1976).

¶ 55. Our supreme court has pointed out how a trial court’s failure to make findings of fact places an appellate court “in an awkward position,” but it has consistently reaffirmed that: “Where findings of fact are fairly implicit in a trial court’s ruling, we will credit those and grant them deference.” Riddle v. State, 580 So.2d 1195, 1200 (Miss.1991) (upholding conviction over defendant’s claim of violation of right to counsel guaranteed by the Mississippi and United States Constitutions, despite lack of findings of fact from suppression hearing); see also Eakes v. State, 665 So.2d 852, 866 (Miss.1995).

¶ 56. Though this case is undoubtedly more difficult because of the trial judge’s lack of analysis in his order which transferred the case to Marion County, it is fairly implicit under these circumstances why the trial judge refused to return the case to Jefferson Davis County — his fear that a fair and impartial jury could not be impaneled there. It was the same reason he moved the trial from there in the first place. Had the trial judge turned about-face and changed venue right back to the very county he had already made clear that he feared a lair and impartial jury could not be impaneled, we would likely be addressing this same issue from a different perspective.

II. Simon II

¶ 57. Wdiile the majority attempts to distance Maye’s case from the supreme coui't’s decision in Simon II, the facts and venue issues addressed in Simon II are quite similar to those before us.

¶ 58. In Simon II, the supreme court found it was within a trial court’s discretion to refuse to return a case to its original venue, or a venue with a similar racial composition. Simon, 688 So.2d at 803-04. The defendant, Robert Simon, Jr., had been charged with four capital murders in Quitman County. Id. at 794. Simon originally moved for a change of venue, which was granted, and his case was transferred to Jones County, where he was tried and convicted on one of the indictments. Id. Prior to his second trial on a different indictment, Simon sought a change of venue from Jones County. Id. at 801. The trial court granted his motion and moved his case to a third unrelated county — De-Soto County. Id.

¶ 59. Simon again moved for a change of venue, requesting that he be tried back in the original venue, Quitman County, in the event the court decided not to move the trial to a county with a similar racial composition. Id. at 803. Simon’s request was denied. Id. at 801.

¶ 60. On appeal, Simon characterized his motion for a change of venue as “conditional.” Id. at 803. The supreme court found no abuse of discretion in the trial court’s decision to grant Simon’s motion for a change of venue and to move the trial to DeSoto County. Id. at 804. The supreme court further found no error in the trial court’s decision to deny Simon’s motion to return the case to Quitman County where the crimes had occurred. Id. at 801, 804.

¶ 61. We are faced with somewhat similar circumstances. Maye requested a change of venue, which was granted, and his trial was moved to Lamar County. Approximately two months prior to trial, Maye moved the court to reconsider its previous order and transfer his case back to Jefferson Davis County. Maye acknowledged he had no right to a change of venue to a county with certain demographics, but still made clear in his motion to reconsider that supreme court precedent did not prevent the trial court from attempting to maintain a similar racial composition in considering a change of venue.

¶ 62. While Maye did cite the appropriate articles and amendments to the Mississippi and United States Constitutions, which provide the right to be tried where the offense occurred, his “Motion to Reconsider Order Granting Change of Venue” was similar in nature to the motion reviewed by the supreme court in Simon II. It could reasonably be characterized as seeking alternative relief, in that it contained what may be interpreted as conditional language.

¶ 63. Furthermore, prior to trial, Maye voiced no dissatisfaction with the trial court’s transfer to Marion County. Only after he was convicted of capital murder did he take issue with the transfer to the alternate venue.

, ¶ 64. For these reasons, I dissent.

MYERS, P.J., JOINS THIS OPINION.

      . The two instructions granted on self-defense were:
      Instruction No. 5
      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.
      Instruction No. 6
      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.