McCune v. State
| Docket Number: | 2007-KA-00923-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 07-17-2008 Opinion Author: RANDOLPH, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Murder & Aggravated assault - Motion for change of venue - Lesser-included offense instruction Judge(s) Concurring: SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON AND LAMAR, JJ. Concurs in Result Only: GRAVES, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-12-2007 Appealed from: NEWTON COUNTY CIRCUIT COURT Judge: Marcus D. Gordon Disposition: Count I: Conviction of murder and sentence of life imprisonment in the custody of the Mississippi Department of Corrections. Count II: Conviction of aggravated assault and sentence of twenty (20) years in the custody of the Mississippi Department of Corrections. This sentence shall run consecutive to the sentence imposed in Count I. District Attorney: Mark Sheldon Duncan Case Number: 07-CR-022-NW-G |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | CHRISTOPHER O’NEIL McCUNE |
JAMES EDWIN SMITH, III |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: DESHUN TERRELL MARTIN | ||
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| Topic: | Murder & Aggravated assault - Motion for change of venue - Lesser-included offense instruction |
| Summary of the Facts: | Christopher McCune was convicted of murder and aggravated assault. He was sentenced to life imprisonment for the murder conviction and to an additional twenty years, to run consecutively to the sentence of life imprisonment, for the aggravated assault conviction. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Change of venue McCune argues that the court erred in denying his motion for a change of venue. McCune’s motion for change of venue, with six supporting affidavits attached, created a presumption of doubt that an impartial jury could be obtained. The circuit judge correctly determined that the presumption was rebuttable. The State presented six witnesses to rebut the presumption. Each testified that he or she believed McCune could receive a fair trial in Newton County. Furthermore, during voir dire, numerous venire members indicated that they had read news accounts or had seen television newscasts regarding the case, and the only one who indicated that she had already formed an opinion as to how the case should be decided was excused. Thus, the circuit judge did not abuse his discretion in denying McCune’s motion for change of venue. Issue 2: Lesser-included offense instruction McCune argues that the court erred in denying his lesser-included offense instruction on manslaughter. A lesser-included offense instruction should be submitted to the jury only where there is an evidentiary basis in the record. Manslaughter must be in the heat of passion, i.e., the result of immediate and reasonable provocation, by words or acts of one at the time. In this case, McCune conceded that the victim did not threaten him that evening, had never made any threat directly to McCune, and he did not see the victim with a gun that evening. Thus, the evidence is devoid of a verbal or physical provocation by the victim. Moreover, McCune requested a self-defense instruction, which was granted by the circuit court. The very definition of manslaughter requires that it is not in necessary self-defense. Therefore. the circuit court acted properly in denying such an instruction. |
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