Arthur v. State, 96-KA-00018-SCT.

• Decision Date: 25 March 1999
• Docket Number: No. 96-KA-00018-SCT.,96-KA-00018-SCT.
• Citation: 735 So.2d 213
• Parties: David Allen ARTHUR v. STATE of Mississippi.
• Court: Mississippi Supreme Court

735 So.2d 213

David Allen ARTHUR v. STATE of Mississippi.

No. 96-KA-00018-SCT.

Supreme Court of Mississippi.

March 25, 1999.

Frank J. Campbell, Boston, MA, Barrett Blake Teller, Vicksburg, Attorneys for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

EN BANC.

PITTMAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

¶ 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 COINDICTEE, 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.

FACTS

¶ 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 instruction, did find Arthur guilty of simple robbery.

LEGAL ANALYSIS

I. ARTHUR'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED BY THE ALMOST TWELVE MONTH DELAY BEFORE HIS TRIAL.

¶ 10. Arthur was 15 years of age at the time of his arrest and incarceration on July 24, 1994. Prior to prosecution a year later on July 17, 1995, for capital murder, Arthur was denied bond by the County Court of Warren County who found in the wake of a preliminary hearing conducted on October 4, 1994, that "... there is probable cause that the offense charged... has been committed in Warren County, Mississippi, and that the Defendant is the one who committed this crime." Arthur's indictment was returned on November 2, 1994. Arthur was arraigned on November 4, 1994. On December 22, 1994, this Court denied Arthur's amended petition for emergency hearing of bond denial. Arthur was confined in the Warren County Jail from the date of arrest on July 24, 1994, until after his trial on July 21, 1995. His trial commenced on July 17, 1995, approximately 362 days from the date of his arrest on July 24, 1994. A period of three months elapsed between arrest and indictment, and approximately 255 days intervened between arraignment and trial.

¶ 11. Arthur claims on appeal that "a trial delay of almost one year violated the speedy trial rights of a 15 year old incarcerated defendant." Arthur relies on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The United States Supreme Court in Barker v. Wingo, employed a four pronged balancing test in determining whether a defendant had been deprived of his right to a fair trial. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four prongs are: (1) length of delay, (2) the reason for the delay, (3) the defendant's assertion of his right, and (4) prejudice to the defendant. Id.

¶ 12. In Barker, the United States Supreme Court held:

The length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.

Id. at 530, 92 S.Ct. 2182.

¶ 13. This Court has held in Smith v. State, 550 So.2d 406, 408 (Miss. 1989), that a delay of eight months is presumptively prejudicial. See also Bailey v. State, 463 So.2d 1059, 1062 (Miss.1985) (298 day delay); Atterberry v. State, 667 So.2d 622, 627 (Miss.1995); (280 day delay was well over the presumptively prejudicial requirement). The 362 day lapse in time between Arthur's arrest and trial is therefore presumptively prejudicial, requiring a close assessment of the other factors.

¶ 14. The second Barker factor is the reason given by the government for the delay. The United States Supreme Court in Barker, held that,

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.

Barker, 407 U.S. at 531, 92 S.Ct. 2182.

¶ 15. The trial judge recognized that this time delay was presumptively prejudicial but in the trial record explained the reason for the delay as an overcrowded court docket. The trial court stated, "[t]here were about 30 or 40 other cases set on that date. One of which was another murder case."

¶ 16. The third Barker factor is Arthur's responsibility to assert his right which he did. The final Barker factor is the resulting prejudice to Arthur. This is where Arthur loses his argument. Arthur was not prejudiced by this delay. The record is devoid of any testimony from Arthur himself reflecting anxiety and concern, and there is no evidence that Arthur's defense was impaired. Arthur was found by the jury not guilty of capital murder, and not guilty of murder less than capital. Given this outcome, no prejudice to Arthur is readily apparent.

¶ 17. Judge Vollor analyzed the four Barker factors individually and concluded that Arthur's constitutional right to a speedy trial had not been violated. The trial court was correct in his ruling. This issue is therefore, without merit.

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.

¶ 18. Having addressed issue I, the Court will now address issue III finding its outcome dispositive of this case, therefore making comment on issue II unnecessary.

¶ 19. Today the Court is faced with a jury which, without proper instruction, acquitted Arthur of capital murder and murder, but found him guilty of the predicate felony of robbery. The issue is the permissibility of this verdict. We hold it is possible to find a defendant guilty of a crime for which he was not separately indicted if it falls within the requirements of Miss.Code Ann. § 99-19-5, and in the present case, it was legally possible for the jury to find Arthur guilty of robbery alone.

¶ 20. Mississippi Code Ann. § 99-19-5 (Rev.1994), states:

On an indictment for any offense the jury may find the defendant guilty of the offense as

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