As Corrected January 16, 2014.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/05/2010. TRIAL JUDGE: HON.W. SWAN YERGER.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOHN R. HENRY, JR.
COLEMAN, JUSTICE. DICKINSON AND RANDOLPH, P.JJ., KITCHENS AND KING, JJ., CONCUR. LAMAR, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND PIERCE, J.
ON WRIT OF CERTIORARI
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. A Hinds County jury convicted Christopher Harrell of two crimes: capital murder with the underlying felony of robbery and felon in possession of a firearm. The Hinds County Circuit Court sentenced Harrell to life without the possibility of parole pursuant to the former and ten years, to run concurrently with the life sentence, for the latter.
¶2. The Court of Appeals affirmed both convictions, and we granted Harrell's petition for a writ of certiorari. Harrell raised four issues on direct appeal, but today we address two: (1) whether the circuit court erred in not instructing the jury on the elements of the underlying felony of robbery and (2) whether the circuit court erred in granting the State's requested flight instruction. We hold that the failure to instruct the jury as to the elements of the charged crime deprived Harrell of due process in the form of his right to a jury trial as guaranteed by the Mississippi Constution, and that the circuit court did not err in granting the flight instruction. Accordingly, we affirm the trial court and the Court of Appeals as to the conviction of felon in possession of a firearm in part but reverse the capital murder conviction, and remand the case to the Circuit Court of Hinds County for a new trial in the murder indictment.
¶3. On the afternoon of April 6, 2008, Frank Damico dropped off Leroy McGowan
and his sister at the V.A. Hospital in Jackson, Mississippi, in Hinds County. McGowan had lent Damico his blue Mercury Grand Marquis sedan. Damico was supposed to pick them up a few hours later, but when he did not return, they called the police. On April 9, 2008, the blue Mercury was discovered behind a church in Holmes County, Mississippi. On April 15, 2008, Damico's body was discovered in a ditch a few miles from the church.
¶4. According to the record below, investigators determined that Harrell, who lived with his mother in Holmes County, had escaped to Jackson in March 2008 to avoid arrest for an aggravated assault. While in Jackson, Harrell stayed with Damico's girlfriend, Rita Faye Landrum. Landrum testified that Harrell had a gun. She testified that Damico had visited on the afternoon of April 6, and Harrell had asked her to ask Damico for a ride to the Exxon station. Damico agreed and left with Harrell. Landrum never saw either of them again.
¶5. Harrell's mother, Martha Engelmann, testified that Harrell had called on April 8, 2008, and announced that he was coming home. She immediately called the police, who were looking for Harrell. Harrell was arrested that night in his bedroom. A nine millimeter pistol and the keys to the blue Mercury were beside him. The police found the blue Mercury in a church parking lot about a quarter mile from Engelmann's house. The lining in the trunk had been removed.
¶6. Construction workers discovered Damico's body in a ditch on a secluded road in Holmes County on April 15, 2008. The pathologist, Dr. Stephen Hayne, determined that Damico had died from a single gunshot wound to the head that had fractured the jawbone. The fatal bullet had passed through the body and was not recovered.
¶7. Harrell gave several statements to the authorities, which are relevant to the flight instruction issue. On April 9, 2008, before the discovery of Damico's body, he said that a man named Shorty had given him the car. On April 10, Harrell said he had been at " Frank's" house and that Damico had given him a ride to meet a man named Shorty. Harrell claimed that Shorty and Damico left in Damico's car, and Shorty returned alone. Then, Shorty gave Harrell the car. On May 8, Harrell said that he and Damico had met Shorty at a motel, then Damico and Shorty had left together. Shorty returned with Damico's body in the trunk and asked Harrell where he could dump the body. Harrell and Shorty drove to Holmes County. They were followed by an SUV driven by an unknown person. They drove to the church near Harrell's mother's house, where they instructed the SUV driver to wait while they disposed of the body. At the ditch, Shorty removed the body from the trunk. Then they drove to the church near Harrell's mother's house, where Shorty gave Harrell the blue Mercury and left in the SUV.
¶8. On June 19, 2008, Harrell gave a statement to the Mississippi Bureau of Investigation claiming that he had driven Damico to see Shorty so that Damico could purchase drugs. Harrell said that they had met Shorty in the parking lot of a church in Jackson. According to Harrell, Damico and Shorty had begun to argue, and Shorty had shot Damico. Then, they drove to Holmes County, where Shorty removed the body. Harrell said that they drove to the church, where Shorty gave him the car and left in the SUV.
¶9. In Harrell's final interview on June 26, 2008, he said that Damico had not gone to buy drugs from Shorty, but that he had
asked Damico for a ride to meet Shorty. Harrell said that they had met Shorty and the man with the SUV at a church in Jackson, not a motel. Shorty became angry and fearful that Damico was a police officer and shot him. Harrell helped put the body in the trunk, and they drove to Holmes County, trailed by the SUV. While the SUV waited at the church, Harrell and Shorty went to the secluded road and removed the body. Harrell said that, upon their return to the church, Shorty gave him the car and left in the SUV.
¶10. An inmate, Henry Peters, testified that he had been housed with Harrell at the Rankin County Correctional Facility in April 2008. Peters testified that he was a writ writer who assisted other inmates with legal issues. Peters said that Harrell had approached him for advice on a jurisdictional matter. According to Peters, Harrell had wanted the capital murder tried in the jurisdiction where it had occurred, which was Hinds County. Harrell told Peters that he had shot Damico " in the mouth," and that the bullet had exited the wound. Again, according to Peters, Harrell further confessed that he then had put Damico's body in the trunk and had driven to Holmes County. Harrell explained that he was trying to blame someone else for the crime.
¶11. At the trial, Harrell's primary defense to capital murder was that Damico had been killed in Holmes County, not Hinds County. The jury found him guilty of capital murder and possession of a firearm by a convicted felon.
I. THE FAILURE TO INSTRUCT A JURY AS TO ALL ELEMENTS OF THE CRIME CHARGED CONSTITUTES REVERSIBLE ERROR.
¶12. Harrell argues that his fundamental right to due process was violated because the trial court failed to instruct the jury on the elements of the underlying felony of robbery. Harrell was convicted of capital murder with the underlying felony of robbery under Mississippi Code Section 97-3-19(2)(e). That section provides:
The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:
When done with or without any design to effect death, by any person engaged in the commission of the crime or rape, burglary, kidnapping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies.
Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2006). Mississippi Code Section 97-3-73, defining the crime of robbery, provides: " Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery." Miss. Code Ann. § 97-3-73 (Rev. 2006). The elements of robbery include " (1) felonious intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means taking and carrying away the property of another from his person or in his presence." Goff v. State, 14 So.3d 625, 647 (Miss. 2009).
¶13. The trial court gave the following elements instruction on capital murder:
The Defendant, Christopher Harrell, has been charged in the indictment with the offense of Capital Murder in Count One. The ...