196 So. 3d 194
Miss. Ct. App.2016Background
- Charles G. Davis, long-time mayor of Southaven, purchased a city-leased Ford Expedition for $10,000 at the lease's end and thereafter used city fuel pumps and submitted mileage reimbursements.
- The City asserted the Board of Aldermen was not informed of the lease terms and thus was deprived of the option to handle the vehicle sale/profit; Davis claimed he had discussed terms with the Board.
- The State charged Davis with false representations to defraud the government, embezzlement, and false pretenses (the false-pretenses count was later dismissed).
- At trial a jury convicted Davis of false representation and embezzlement; he was sentenced to concurrent terms with restitution ordered.
- Prior to trial Davis moved for a change of venue supported by affidavits and witness testimony that local publicity and prejudgment prevented a fair trial; the State presented no rebuttal witnesses at the venue hearing and the court reserved ruling pending voir dire.
- During voir dire 62 of 88 venirepersons reported prior publicity; the seated jury included nine jurors and two alternates who had heard publicity. The trial court denied the change-of-venue motion after voir dire; on appeal the Court of Appeals reversed and remanded for a new trial based on venue error.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Davis) | Held |
|---|---|---|---|
| Change of venue | A fair jury could be impaneled; voir dire can rebut presumption of prejudice | Pretrial affidavits/witnesses showed prejudgment and heavy publicity; presumption arose under §99-15-35 | Reversed — trial court abused discretion by denying venue without State rebuttal and by waiting until voir dire to rule |
| Denial of JNOV | Verdict supported by evidence; convictions valid | Evidence insufficient to support convictions | Not reached on merits (court reversed on venue) |
| Jury instructions / denial of mistrial | Instructions and trial procedures proper | Jury instructions/mistrial errors prejudiced Davis | Not reached on merits |
| Admissibility of witness testimony on vehicle value | Witnesses qualified to testify to value | Testimony was improper / prejudicial | Not reached on merits |
Key Cases Cited
- Johnson v. State, 476 So. 2d 1195 (Miss. 1985) (right to impartial jury and change-of-venue principles)
- Weeks v. State, 493 So. 2d 1280 (Miss. 1986) (trial judge should not wait for voir dire to rule on venue motion)
- Fisher v. State, 481 So. 2d 203 (Miss. 1985) (courts generally should rule on venue motions before summoning jurors)
- Welde v. State, 3 So. 3d 113 (Miss. 2009) (voir dire may rebut venue presumption only if prosecution presents evidence at hearing)
- Stewart v. State, 29 So. 3d 12 (Miss. Ct. App. 2008) (factors making venue presumption irrebuttable, including high-profile public-official cases)