The opinion of the court was delivered by: Pittman, Presiding Justice
DATE OF JUDGMENT: 10/27/95
TRIAL JUDGE: HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: MARTIN G. GILMORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 3/25/1999
MOTION FOR REHEARING FILED:
¶1. David Allen Arthur ("Arthur") was charged with capital murder in the slaying of Brian McCown ("McCown") in the Circuit Court of Warren County Mississippi. After a four day trial the jury found Arthur not guilty of capital murder, not guilty of murder less than capital, but guilty of simple robbery, a charge for which Arthur was never separately indicted. The trial court denied Arthur's request that the verdict be vacated, and Arthur filed a writ of habeas corpus with this Court. This Court denied relief but remanded the case and instructed an appellate bond to issue pending Arthur's appeal. No. 94-M-01055-SCT (1996). Arthur now appeals to this Court, raising the following arguments for consideration:
I. ARTHUR'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED BY THE ALMOST TWELVE MONTH DELAY BEFORE HIS TRIAL.
II. THE TRIAL COURT IMPROPERLY PROHIBITED THE DEFENSE FROM FULLY PRESENTING RELEVANT EVIDENCE OF THE MENTAL INSTABILITY OF ARTHUR'S CO-INDICTEE, WHO WAS THE STATE'S KEY WITNESS.
III. THE DEFENDANT'S CONVICTION FOR SIMPLE ROBBERY VIOLATES DUE PROCESS BECAUSE THE STATE, DEFENSE, AND THE COURT HAD AGREED A SIMPLE ROBBERY INSTRUCTION WAS NOT WARRANTED, AND THE ROBBERY VERDICT WAS NOT SUPPORTED EITHER BY THE EVIDENCE OR BY APPROPRIATE INSTRUCTION.
¶2. The facts of this case center around the brutal murder of Brian McCown in the early morning hours of July 17, 1994. The facts, as developed at trial, are as follows.
¶3. On the night of July 16, 1994 Arthur, then 15 years old, and Stephens, 19 years old, set out for a night of drinking, smoking pot and general dereliction. After making numerous stops for beer, searching in vain for Stephens' girlfriend and hitting all the local hangouts, the two began to wander home. Coming down the exit ramp at Hall's Ferry Road in Vicksburg they saw Brian McCown, who had been drinking at the Ameristar Casino. They offered him a ride and suggested he go drink beer with them. After stopping at Stephens' sister's house, where Stephens retrieved a hammer, the three went to a secluded area in Warren County, near Bovina, the abandoned bridge over Clear Water Creek at the end of Fox Run Road.
¶4. There, after drinking more beer and smoking pot laced with cocaine, Brian McCown was murdered. He was stabbed multiple times, and his head was bashed in with a hammer with such force that pieces of his skull were implanted into his bruised brain. McCown was also gutted, literally eviscerated, so that his intestines were outside of his body. After stealing his belongings, including his tennis shoes, his wallet containing approximately $13.00, a watch and two rings, the two unceremoniously dragged McCown's body to the middle of the abandoned bridge, and kicked him over the edge into the Clear Water Creek.
¶5. The police were called when McCown's body was discovered the next day. After an investigation, both Arthur and Stephens were arrested and charged with the capital murder of Brian McCown, predicated on the underlying felony of robbery. Trial was held on July 17, 1995. Stephens pled guilty to the murder and armed robbery, received life without parole and proceeded to testify against Arthur.
¶6. The defense's theory of the case was that Stephens was a mentally deranged drug addict who without warning ambushed McCown, slit his throat, returned to the car and retrieved a hammer, bashed McCown's head in, and then gutted him. Arthur, the defense put forth, "froze" during these happenings, and only upon threat of similar treatment by Stephens, did he then help Stephens drag McCown to the bridge and dump his body.
¶7. The state's theory of the case, based on Stephens' testimony, was that the two planned to rob McCown, and that Arthur stabbed and gutted him, while Stephens assisted by bashing him in the head with a hammer.
¶8. Extensive Discussion was held in chambers concerning whether a separate lesser included offense instruction on robbery should be given. Ultimately it was decided by the lower court and all parties that such an instruction was not warranted under the facts of this case.
¶9. The jury believed Arthur, and acquitted him of capital murder and murder less than capital. The jury however, without a separate lesser included offense ...