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STATE OF MISSISSIPPI v. BOBBY CALDWELL

JULY 30, 1986

STATE OF MISSISSIPPI
v.
BOBBY CALDWELL



EN BANC

PRATHER, JUSTICE, FOR THE COURT:

The issue involved in this request for a remedial writ is whether the defendant's constitutional right to have his criminal trial conducted in the" county where the offense was committed, "which was waived during his first trial, may be reinstated after appellate reversal.

I.

 In 1981, Bobby Caldwell was indicted for capital murder in Panola County. Fearing prejudicial publicity at the time of the crime, Caldwell was successful in having his venue changed to DeSoto County. The resulting trial in DeSoto County resulted in a conviction and the imposition of the death penalty. The appeal to this Court affirmed the death sentence by the vote of an evenly divided court. See, Caldwell v. State, 443 So.2d 806 (Miss. 1983).

 The United States Supreme Court reversed the death sentence because of prosecutorial misconduct in the closing argument of the sentencing phase and the case was remanded for further proceedings. Caldwell v. Mississippi, 472 U. S. ___, 105 S. Ct. 2633, 86 L.Ed.2d 231 (1985).

 Upon the scheduling of a new sentencing hearing, set for July 14, 1986 in the Circuit Court of DeSoto County, Caldwell moved for his retrial to be held in Panola County, where the crime occurred.

 The Circuit Court of DeSoto County denied Caldwell's venue motion, holding that Caldwell had waived his right to be tried in the county of the origin of the crime when he had

 the original venue changed to DeSoto County. Because the guilt/innocence phase was conducted in DeSoto County, the circuit court found the penalty phase should also be conducted in DeSoto County.

 II.

 The procedural posture of this petition is the threshold question in this case. Miss. Code Ann. 9-1-19 (1972) provides," The judges of the supreme and circuit courts and chancellors . . . may severally order the issuance of writs of habeas corpus, mandamus, certiorari, supersedeas and attachments, and grant injunctions and all other remedial writs, in all cases where the same may properly be granted according to right and justice. . . . "(Emphasis added)

 The State of Mississippi asserts that a remedial writ under Mississippi Supreme Court Rule 32 is not the proper remedy and that at this stage of the proceedings the request is tantamount to an interlocutory appeal and should not be allowed.

 This Court has previously held that remedial writs such as prohibition, mandamus, or injunction should be granted only in cases of extreme necessity to prevent erroneous actions by trial courts and when the erroneous actions cannot be remedied on appeal. Harden v. State, 460 So.2d 1194 (Miss. 1984); State v. Maples, 402 So.2d 350 (1981).

 However, this court's recent cases have permitted interlocutory appeals from circuit court in the exercise of its inherent power to procedurally control its business. See e.g., Kilgore v. Barnes, Misc. No. 2029 (Miss. June 4, 1986); Southern Farm Bureau Casualty Ins. Co. v. Holland, 469 So.2d 55 (Miss. 1984). See also, Newell v. State, 308 So.2d 71 (Miss.1975) (Inherent power of the Supreme Court to promulgate procedural rules emanates from the constitutional concept of separation of powers and the vesting of judicial powers in the courts.) This Court has also granted remedial writs in cases where constitutional rights of individuals have been subjected to violation by the actions of the State prior to trial. In Re Brown, 478 So.2d 1033 (Miss. 1985).

 For the foregoing reasons and because this Court concludes that the procedural availability of this remedial writ in the present case is proper to promote judicial efficiency ...


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