BEFORE ROY NOBLE LEE, ROBERTSON AND SULLIVAN
SULLIVAN, JUSTICE, FOR THE COURT:
James Murphy, Jr. was convicted of the capital murder of Coralie Staples in the Circuit Court of the Second Judicial District of Bolivar County, and, the jury being unable to agree upon punishment, he was sentenced to life imprisonment in the custody of the Department of Corrections. He appeals.
Murphy's first assignment of error is that the trial judge abused his discretion when he did not grant a change of venue from Bolivar County to another county rather than simply moving the trial from the First District seated at Rosedale to the Second District, seated at Cleveland.
The murder for which Murphy stands convicted occurred in Rosedale. Murphy's initial attorneys filed a motion for change of venue. Five days later these attorneys filed a motion for change of trial site from the First District to the Second District. That same day Murphy, his attorneys and the District Attorney signed and presented to the trial judge an "agreed order" transferring the trial site to Cleveland. This "agreed order" was signed by the judge and the trial site was moved. By the terms of this order, it was agreed that prior motion for change of venue was fully satisfied.
Murphy's present attorneys filed another motion for change of venue on November 10, 1981, supported by identical affidavits sworn to by Murphy and four others. An extensive voir dire was conducted on the pretrial publicity and only one venireman stated that she had formed an opinion that could not be changed. When the motion to change venue was then renewed, it was denied.
The test for a change of venue is whether or not the accused can get a fair trial. Myers v. State, 268 So. 2d 353, 359 (Miss. 1972). The very purpose of our system of justice is to ensure that event. Someone must make the initial determination of whether or not a change of venue is required to ensure the accused a fair trial and, under our law, that decision is a matter vested largely within the sound discretion of the trial judge. Daumer v. State, 381 So. 2d 1014 (Miss. 1980). We will disturb that determination only upon an abuse of discretion that serves to deny the accused his right to a fair trial.
Murphy asserts that the trial court abused its discretion in denying his second motion to change venue during the empaneling stage of trial. Where the denial of change of venue under review occurs after the jury is empaneled, the Supreme Court will consider in evaluating the denial for abuse of discretion the voir dire examination of the prospective jurors, the result of the effort to obtain a trial jury, and the evidence on the merits of the case. Shimniok v. State, 197 Miss. 179, 19 So. 2d 760 (1944). If, as here, a fair portion of the jurors examined can give the accused a fair trial, the judicial discretion of the trial judge will not be disturbed. Stokes v. State, 240 Miss. 453, 128 So. 2d 341 (1961). The trial judge reserved ruling upon the motion until the completion of the voir dire
to determine if a fair and unbiased jury could be obtained, and, being convinced by the totality of the voir dire that the jury in this case was unbiased, he denied the change of venue. This procedure allowed the trial judge to view the prospective jurors, watch their demeanor, and determine if a fair trial could be obtained before them. On these facts we certainly are unable to say that it clearly appears that the judge abused his discretion. Gilliard v. State, 446 So. 2d 590 (Miss. 1984); Parks v. State, 267 So. 2d 302 (Miss. 1972); and Wilcher v. State, 448 So. 2d 927 (Miss. 1984). This assignment is without merit.
Murphy contends that his right to cross-examine state witness Annette Chapman was limited and restricted. The right to confront and cross-examine the witnesses for the state is fundamental and cannot be substantially restricted. Myers v. State, 296 So. 2d 695 (Miss. 1974); Valentine v. State, 396 So. 2d 15 (Miss. 1981). However, the accused can decline to cross-examine the witness and no abridgement of his rights takes place. Crapps v. State, 221 So. 2d 722 (Miss. 1969).
Chapman was called by the state to testify about Murphy's presence in Memphis and her testimony was a link in the chain of circumstantial evidence against Murphy. Murphy, at the time of this trial, was under indictment in Tennessee for the rape of this witness. Chapman had made an erroneous identification in Tennessee of Murphy. An extensive voir dire of Chapman was conducted to determine that she would give no inference to the jury that Murphy might be involved in some other crime. The trial judge admonished counsel that it was up to them to frame their questions in such a way as to avoid eliciting the rape incident from the witness.
The state had the right to use Chapman even though in doing so they faced the danger of creating reversible error. When Chapman did not allude to any other alleged crime, the defense had a tactical choice to make - to cross or not to cross. If the defense chose to cross-examine, then they faced the danger of opening the door to the alleged rape. If the defense declined to cross-examine, they were assured that there was no possibility of mentioning any ...