Robert Anthony Maye a/k/a Robert Maye v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-KA-00100-COA

ROBERT ANTHONY MAYE A/K/A ROBERT APPELLANT
MAYE

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/01/2019
TRIAL JUDGE: HON. JON MARK WEATHERS
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAUREN GABRIELLE CANTRELL
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/25/2022
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., McCARTY AND SMITH, JJ.

WILSON, P.J., FOR THE COURT:

¶1. Following a jury trial, Robert Maye was convicted of first-degree murder for shooting

and killing his girlfriend. On appeal, Maye argues that the trial judge erred by refusing a

heat-of-passion manslaughter instruction and by admitting a gruesome photograph. We find

no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Maye lived with Jacqueline Davis and her two children in Davis’s mobile home in

Rawls Springs in Forrest County. Maye and Davis had been dating for about six years. On

November 2, 2018, Davis was working at Shoney’s in Hattiesburg. Maye went to Shoney’s
to get a house key from Davis. Davis appeared to be scared, so Davis’s coworker Jamia

Rogers went outside and gave Maye the key while Davis hid in the back of the restaurant.

Rogers noticed that Maye was visibly upset when she gave him the key. After work, Davis

picked up her cousin Monet Williams, and they went to Davis’s home to change clothes

before attending a football game.

¶3. Maye met Davis and Williams at the door at Davis’s home. Williams sat in the living

room with Maye while Davis gathered clothes in her bedroom. Williams went outside to

look for Davis’s daughter, M.D.,1 and sat in Davis’s car. A neighbor dropped M.D. off at

home, and M.D. went inside. M.D. testified that a stranger opened the door for her and that

Maye told her to go to her room and not open her door for anyone. The stranger was later

identified as Maye’s stepbrother Lee Thompson. M.D. heard Maye tell Thompson to “give

[him] the gun.” M.D. then heard Davis say to Maye, “What are you doing to me?” Davis

sounded scared. M.D. next heard a gunshot. A few minutes later, Williams looked up and

saw Maye walking toward Davis’s car from the woods behind the home. Maye told her to

call 911 because Davis had been shot. Williams ran into the home and found Davis lying on

the bathroom floor and a “bunch of blood.”

¶4. Deputy Kenny Johnson of the Forrest County Sheriff’s Department was notified of

a possible shooting at Davis’s home and was the first law enforcement officer to arrive at the

scene. He entered the home and found Maye sitting on the bathroom floor with Davis’s body

1
Initials are used to protect the privacy of the minor child.

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in his lap. Johnson described Maye as “calm” and “not upset about anything.” Johnson

arrested Maye, and an investigator performed gunshot residue tests on Maye and Williams.

Gunshot residue was positively identified on Maye’s left palm and the back of his left hand.

Particles indicative of gunshot residue were found on Maye’s face, right palm, and the back

of his right hand. Williams’s test results showed only particles indicative of gunshot residue

on the back of her right hand, her face, and her left palm.2

¶5. Investigator Jeff Byrd testified that there were bloody towels near Davis’s body on the

bathroom floor, and it appeared that someone had tried to clean up some of the blood. Also,

there was “some blood splatter on the tub,” making it appear that there had been “some kind

of altercation.” Williams testified that the bathroom appeared differently in Byrd’s crime-

scene photographs than when she had seen it just after Davis was killed. Williams said that

when she first entered the bathroom, there was more blood on the floor and there were no

bloody towels.

¶6. A K-9 search team was deployed in the woods behind the home, and a dog alerted to

a claw hammer, indicating that the “hammer . . . had recent human odor on it.” Byrd testified

that Davis had two small holes above her left eye. At the time, this caused Byrd to suspect

that the hammer was the murder weapon. Officers also found a box of .40-caliber

2
David Whitehead, a forensic scientist at the Mississippi Crime Laboratory, testified
that particles indicative of gunshot residue could be transferred to a person who enters or
touches an object in a room in which a gun was recently discharged. On cross-examination,
Whitehead acknowledged that it was also possible for actual particles of gunshot residue to
be transferred in the same manner.

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ammunition in the woods behind the home. In a cabinet inside the home, they found an

empty box for a Hi-Point .40-caliber S&W pistol.

¶7. Dr. Mark LeVaughn, Chief Medical Examiner for the State, testified that Davis died

of a gunshot wound to her head. There was no evidence of any other traumatic injury. Bullet

fragments recovered from Davis’s head were consistent with .40-caliber ammunition.

¶8. Officers interviewed Maye at the sheriff’s office on two separate days. Maye initially

claimed that on the day of Davis’s murder, after Williams walked outside the mobile home,

he and Davis walked into Davis’s son’s bedroom and encountered a man who was pointing

a gun at them. At first, Maye claimed that he did not know the man and had never seen him

before. Later, however, Maye said that he had seen the man several times but did not know

much about him other than his nickname. Finally, Maye said that the man was his

stepbrother, Lee Thompson. Maye said that Davis ran across the home to her bathroom after

she saw Thompson with a gun. He said that M.D. walked into the home shortly thereafter,

and he told M.D. to go to her room, shut her door, and not open her door for anyone. Maye

said that Thompson then followed him into the bedroom and told him and Davis to get on

their knees in the bathroom and bow their heads. According to Maye, Thompson shot Davis

and then fled.

¶9. Maye’s account of what occurred next also changed over time. Initially, Maye said

that he immediately grabbed Davis and held her before going outside to look for Thompson

in the woods behind the home. He denied carrying a hammer or a box of bullets into the

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woods. At trial, Maye added that he carried the hammer to the woods when he went to look

for Thompson.

¶10. Officers interviewed Thompson after he was arrested several days later. Thompson

initially denied being at the home when Davis was shot. Eventually, he admitted that he was

in the living room when Maye shot Davis and that he ran from the home immediately after

he heard the gunshot. Before Maye’s trial, Thompson accepted a plea bargain that required

him to testify against Maye. At trial, Thompson testified that he and Maye met at Checker’s

in Hattiesburg. Maye and Thompson drove to Lawrence County and back to Rawls Springs

in Davis’s Chevrolet Tahoe, drinking beer as they went. When they arrived at Davis’s

mobile home, Maye handed Thompson a gun. When M.D. came home, Thompson opened

the door for her, and Maye took her to her room. According to Thompson, Maye initially

wanted him to “scare” Davis but then offered to give Thompson his Tahoe if Thompson

would kill Davis. Thompson “wasn’t with that,” so Maye took the gun back from Thompson

and then shot Davis himself. Thompson ran from the mobile home like “a track star” as soon

as he heard the gunshot.

¶11. Maye testified at trial. He denied killing Davis and alleged that Thompson shot and

killed her. Maye testified that he and Thompson had gone to a pawn shop in Monticello on

the day of the murder. Maye bought hollow point bullets for his gun at the pawn shop. He

testified that he needed the bullets “for protection” because there had been a break-in at

Davis’s mobile home. Maye and Thompson then drove to Davis’s mobile home in Rawls

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Springs. Maye claimed that Thompson shot Davis at the mobile home and then fled.

¶12. A Forrest County grand jury indicted Maye for first-degree murder (Count I); indicted

Maye and Thompson for conspiracy to commit first-degree murder (Count II); and indicted

Thompson as an accessory before the fact to first-degree murder (Count III).3 Thompson

pled guilty to Count II. Prior to Maye’s trial, the State nolle prosequied Count II as to Maye.

After a four-day trial, the jury found Maye guilty of first-degree murder. The court sentenced

Maye to life imprisonment. Maye filed a motion for judgment notwithstanding the verdict

or a new trial, which was denied, and a notice of appeal. On appeal, he argues that the trial

judge erred by refusing a jury instruction on heat-of-passion manslaughter and by admitting

a gruesome photo of Davis’s face into evidence.

ANALYSIS

I. The trial judge did not err in refusing to instruct jury on heat-of-
passion manslaughter.

¶13. Maye argues that the trial judge erred by refusing to instruct the jury on the lesser-

included offense of heat-of-passion manslaughter. See Miss. Code Ann. § 97-3-35 (Rev.

2020). Although Maye testified and denied that he had killed Davis, he argues that he was

entitled to a heat-of-passion manslaughter instruction based on the State’s theory that he was

angry that Davis was in the process of ending their long-term relationship. However, the trial

3
An accessory before the fact is considered and punished as a principal. Miss. Code
Ann. § 97-1-3 (Rev. 2020); Johnson v. State, 290 So. 3d 1232, 1238-39 (¶¶24-29) (Miss.
2020).

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judge refused Maye’s proposed instruction on heat-of-passion manslaughter because Maye

denied killing Davis, and the judge found that there was no evidence in the record to support

the instruction.

¶14. We review de novo the refusal of a lesser-included-offense instruction. Franklin v.

State, 136 So. 3d 1021, 1026 (¶11) (Miss. 2014) (citing Gilmore v. State, 119 So. 3d 278, 286

(¶13) (Miss. 2013)). A defendant is entitled to a lesser-included-offense instruction only

when there is “evidence in the record from which a jury reasonably could find him not guilty

of the crime with which he was charged and at the same time find him guilty of a lesser-

included offense.” Id. at 1027 (¶11) (quoting Gilmore, 119 So. 3d at 286 (¶13)). We will

affirm the refusal of a lesser-included-offense instruction if—viewing the evidence in the

light most favorable to the defendant, and drawing all reasonable inferences in his favor—no

reasonable jury could have found the defendant not guilty of the indicted offense and yet

guilty of the lesser-included offense. Gilmore, 119 So. 3d at 286 (¶13).

¶15. First-degree murder is a killing “done with deliberate design to effect the death of the

person killed.” Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2020). In contrast, heat-of-passion

manslaughter is a “killing . . . without malice, in the heat of passion, but in a cruel or unusual

manner, or by the use of a dangerous weapon, without authority of law, and not in necessary

self-defense.” Id. § 97-3-35. “Heat of passion” is defined as

[a] state of violent and uncontrollable rage engendered by a blow or certain
other provocation given, which will reduce a homicide from a grade of murder
to that of manslaughter. Passion or anger suddenly aroused at the time by
some immediate and reasonable provocation, by words or acts of one at the

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time. The term includes an emotional state of mind characterized by anger,
rage, hatred, furious resentment or terror.

Jones v. State, 39 So. 3d 860, 866 (¶36) (Miss. 2010) (quoting Mullins v. State, 493 So. 2d

971, 974 (Miss. 1986)). The Mississippi Supreme Court has further stated:

One of the primary elements of a heat-of-passion crime is immediate and
reasonable provocation, by words or acts of one at the time. . . . [I]t is essential
that the excited and angry condition of the party committing the act which
would entitle him to the milder consideration of the law, should be
superinduced by some insult, provocation, or injury, which would naturally
and instantly produce, in the minds of ordinarily constituted men, the highest
degree of exasperation. . . . [T]here must not only be passion and anger to
reduce a crime to manslaughter, but there must be such circumstances as
would indicate that a normal mind would be roused to the extent that the
reason is overthrown and that passion usurps the mind destroying judgment.

Id. at 866-67 (quotation marks and citations omitted).

¶16. To reduce a killing to manslaughter, “the impassioned reaction of the accused must

have been reasonable: ‘the passion felt by the person committing the act should be

superinduced by some insult, provocation, or injury, which would naturally and instantly

produce, in the minds of ordinarily constituted men, the highest degree of exasperation.’”

Abeyta v. State, 137 So. 3d 305, 310 (¶10) (Miss. 2014) (quoting Agnew v. State, 783 So. 2d

699, 703 (¶14) (Miss. 2001)). “[T]here must be such circumstances as would indicate that

a normal mind would be roused to the extent that reason is overthrown and passion usurps

the mind destroying judgment.” Agnew, 783 So. 2d at 703-04 (¶14). “[S]uch an instruction

should not be indiscriminately or automatically given.” Id. at 703 (¶11). Moreover, “a heat-

of-passion jury instruction is not warranted where a cooling-off period exists between the

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provocation and the killing.” Sanders v. State, 103 So. 3d 775, 779 (¶13) (Miss. Ct. App.

2012).

¶17. Maye cites Haley v. State, 123 Miss. 87, 85 So. 129 (1920), and Nolan v. State, 61 So.

3d 887, 894 (Miss. 2011), in support of his argument that the trial judge should have given

his proposed instruction on heat-of-passion manslaughter. In Haley, Haley shot and killed

Lewis Melvin as Melvin was sitting in the waiting room of a train station. Haley, 123 Miss.

at 97, 85 So. at 129. On a Monday night, Haley’s wife had told him that she had committed

adultery with Melvin. Id. at 99, 85 So. at 130. Then on Tuesday night, Mrs. Haley told

Haley that Melvin had bragged about having “illicit relations” with Haley’s daughter, which

“further enraged [Haley] so much so that he was weeping, wailing, tearing his hair, lying

down, and then immediately getting up, praying, refusing to take nourishment, or sleep.” Id.

at 100, 85 So. at 130. Haley shot Melvin the following afternoon. Witnesses testified that

Haley shot Melvin “amidst tears and lamentations—under feelings of great passion.” Id. at

108, 85 So. at 133. The Court stated that “[a]ll of the testimony for [Haley] . . . tend[ed] to

show that [he] was in a constant state of agitation from Monday night until Wednesday

afternoon, and acted under great excitement at the time he fired the shot.” Id. at 105, 85 So.

at 132. Based on the evidence presented, the Supreme Court held that the jury reasonably

found Haley guilty of heat-of-passion manslaughter. Id. at 108, 85 So. at 134.

¶18. In Nolan, Nolan was convicted of heat-of-passion manslaughter after shooting and

killing his sleeping father. Nolan, 61 So. 3d at 889, 894 (¶¶1, 29). Nolan asserted an insanity

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defense at trial and called several witnesses to testify in support of his defense. Id. at 889-90

(¶¶3, 5). Witnesses testified that Nolan was angry with his father for calling him a sexual

deviant and that Nolan was “especially sensitive to such statements.” Id. at 895 (¶¶32-33).

Evidence showed “that Nolan had become obsessed with the notion that he had been accused

of being a sexual deviant.” Id. at (¶32). Nolan’s conviction was supported by evidence of

Nolan’s lack of sleep on the days leading up to the shooting, his withdrawn and disturbed

demeanor the day before the shooting, and his statements that he “acted out of emotion” and

“couldn’t control . . . the shooting.” Id. (brackets omitted). Relying on Haley, the Court held

that there was sufficient evidence that Nolan “was in a constant state of agitation” in the days

leading up to the shooting and acted in the heat of passion. Id. at 894-95 (¶¶31-33).

¶19. Haley and Nolan are distinguishable from the present case. In each of those cases, the

defendant’s constant state of agitation in the time between a reasonable provocation and the

killing supported a finding that he acted in the heat of passion as a result of immediate

provocation. In this case, Maye argues that his constant state of agitation was the result of

Davis’s kicking him out of her home, dating another man, and introducing that man to M.D.

But there is no evidence to support his claim. M.D.’s testimony regarding Maye and Davis’s

argument in their bedroom over another man on some day before the shooting is insufficient

to support his contention because “words alone and disagreements among people are not

enough to invoke the passion required for [heat-of-passion manslaughter].” Phillips v. State,

794 So. 2d 1034,1037 (¶10) (Miss. 2001). Moreover, Maye denied being angry at Davis for

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dating another man and claimed that Davis never told him to move out of her home. On the

day Davis was killed, Maye sent her text messages stating “I love you” and “I miss you.”

¶20. No evidence in the record suggests that Maye killed Davis in the heat of passion or

as a result of any sudden and sufficient provocation. When viewing the evidence in the light

most favorable to Maye, no reasonable jury could find him not guilty of first-degree murder

and yet guilty of heat-of-passion manslaughter. Therefore, the trial judge did not err by

refusing to instruct the jury on the lesser offense.

II. The trial judge did not err by admitting the photograph.

¶21. Maye also argues that the trial judge erred by admitting a crime-scene photograph of

Davis’s face (Exhibit 49). At trial, the State moved to admit the photo into evidence, and

Maye’s counsel objected. Defense counsel argued that the photo should not be admitted

because it was not probative and was inflammatory and designed to taint the jury. The State

argued that the photo was “necessary to tell the entire story of how this crime developed” and

to explain how the theory of the victim’s death changed during the investigation.

Particularly, the State noted that blunt-force trauma from a hammer was the initial theory of

death, but the autopsy revealed that Davis died from a gunshot wound. The trial judge

admitted the photo after finding that its “probative value . . . substantially outweigh[ed] any

prejudice that [would] result [from its] admission.”4 The judge reasoned that the photo

4
The judge was not required to find that the probative value of photo substantially
outweighed the risk of prejudice. Rather, evidence should be excluded under Rule 403 only
if the danger of unfair prejudice substantially outweighs the probative value of the evidence.

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would supplement and clarify witnesses’ testimony and aid in describing the circumstances

of the killing and the entry wound.

¶22. We review a trial judge’s decision to admit a photo into evidence only for an abuse

of discretion. Barfield v. State, 22 So. 3d 1175, 1181 (¶14) (Miss. 2009). When the

admission of photos is challenged on appeal, we “must consider whether the pictures were

so gruesome and inflammatory as to lack any evidentiary purpose and, therefore, be

inadmissable.” Id. “[P]hotographs have evidentiary value when they (1) aid in describing

the circumstances of the killing; (2) describe the location of the body and cause of death; and

(3) supplement or clarify witness testimony.” Id. at (¶15) (quotation marks omitted). “Some

probative value is the only requirement needed in order to support a trial judge’s decision to

admit photographs into evidence.” Martin v. State, 289 So. 3d 703, 705 (¶7) (Miss. 2019)

(quoting Chamberlin v. State, 989 So. 2d 320, 340 (¶73) (Miss. 2008)). “So long as a

photograph has probative value and its introduction serves a meaningful evidentiary purpose,

it may still be admissible despite being gruesome, grisly, unpleasant, or even inflammatory.”

Id. (quoting Dampier v. State, 973 So. 2d 221, 230 (¶25) (Miss. 2008); accord Morrison v.

State, 332 So. 3d 396, 401-02 (¶¶26-27) (Miss. Ct. App. 2022).

¶23. Here, Exhibit 49 depicted the gunshot wound to Davis’s head. The State introduced

M.R.E. 403; Johnson v. State, 204 So. 3d 763, 772 (¶30) (Miss. 2016) (Dickinson, P.J.,
concurring in part and in result). But the trial judge’s misstatement of the test did not
prejudice Maye and was harmless. See Johnson, 204 So. 3d at 772 (¶33) (Dickinson, P.J.,
concurring in part and in result).

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the photo during Investigator Byrd’s testimony about the course of law enforcement’s

investigation of the case. At that point in the trial, the claw hammer that investigators found

in the woods had been admitted into evidence. After Exhibit 49 was admitted, Byrd testified

that he initially believed that the hammer was the murder weapon. His mistake was based

on his observations of the gunshot wound as depicted in Exhibit 49. Following the autopsy,

Dr. LeVaughn determined that Davis died from a gunshot wound, not a blow from a hammer.

The State did not attempt to admit any autopsy photos into evidence, and Exhibit 49 was the

only photo of Davis admitted into evidence. The photo aided Byrd’s and LeVaughn’s

testimony and clarified why Byrd initially thought the hammer was the murder weapon.

Thus, the photo had some evidentiary value. Moreover, although the photo is unpleasant, it

“do[es] not rise to the level of gruesomeness” previously deemed objectionable by our

Supreme Court. Martin, 289 So. 3d at 707 (¶¶14-15).5 In a murder trial, it is not unusual for

crime-scene photos to be “gruesome, grisly, [or] unpleasant.” Martin, 289 So. 3d at 705 (¶7).

That alone will not render a photo inadmissible. Id. In this case, we conclude that the trial

judge did not abuse his discretion by admitting Exhibit 49.

CONCLUSION

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In Martin, the Supreme Court discussed McNeal v. State, 551 So. 2d 151, 159
(Miss. 1989), which held that the trial court abused its discretion by admitting a “full-color,
close-up view of the [victim’s] decomposed, maggot-infested skull,” and Bonds v. State, 138
So. 3d 914, 920 (¶¶15-16) (Miss. 2014), which held that the trial court abused its discretion
by admitting a “close-up, full-color photograph of the shooting victim’s rotting [and
maggot-infested] head,” especially given that the photo “had little, if any, evidentiary value.”

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¶24. Maye was not entitled to a heat-of-passion manslaughter instruction at trial because

there was no evidence in the record to support the requested instruction. In addition, the trial

judge did not abuse his discretion by admitting Exhibit 49 over Maye’s objection. Therefore,

Maye’s conviction and sentence are AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, McCARTY, SMITH AND
EMFINGER, JJ., CONCUR. McDONALD AND LAWRENCE, JJ., CONCUR IN
PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION.

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