IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-KA-00018-SCT

DAVID ALLEN ARTHUR

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 10/27/95

TRIAL JUDGE: HON. FRANK G. VOLLOR

COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANT: FRANK J. CAMPBELL

BARRETT BLAKE TELLER

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: BILLY L. GORE

DISTRICT ATTORNEY: MARTIN G. GILMORE

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 3/25/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 4/15/99

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

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.

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 26, 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 (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 (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.

¶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); Atteberry 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.

¶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 charged, or of

any attempt to commit the same offense, or may find him guilty of an inferior offense, or other

offense, the commission of which is necessarily included in the offense with which he is

charged in the indictment, whether the same be a felony or misdemeanor, without any

additional count in the indictment for that purpose.

(emphasis added).

¶21. The indictment in the present case stated:

The Grand Jurors of the State of Mississippi, elected, summoned, empaneled, sworn and charged to

inquire in and for Warren County, State of Mississippi, at the term aforesaid, in the name and by the
authority of the State of Mississippi, upon their oaths present that Henry Ephraim Stephens, Jr. and

David Allen Arthur on or about July 17, 1994 with force and arms, in the County aforesaid, and

within the jurisdiction of this Court did willfully, unlawfully, feloniously with malice and aforethought kill

and murder one Brian McCown, a human being at a time when the said Henry Ephraim Stephens, Jr.

and David Allen Arthur was engaged in the commission of the [f]elony crime of robbery of the

said Brian McCown, contrary to the provisions of Section 97-3-19(2)(e) of the Miss. Code Ann.

1972, contrary to the statute in such cases made and provided, and against the peace and dignity of

the State of Mississippi.

(emphasis added).

¶22. The jury was instructed on robbery as follows:

The Court instructs the Jury that the crime of robbery as referred in instruction S1A is defined as

follows: If you find from the evidence in this case beyond a reasonable doubt that: 1. David Allen

Arthur, on or about July 17, 1994, in Warren County, Mississippi, 2. did willfully take the personal

property of Brian M. McCown, 3. from the presence of Brian M. McCown and against his will 4. at

the time, David Allen Arthur had the intent to permanently deprive Brian M. McCown of the

property, then you shall find the defendant, David Allen Arthur, guilty of robbery.

However, the form of the verdict instruction gave no option for the finding of robbery. It stated:

The Court instructs the Jury that if you find beyond a reasonable doubt that the Defendant, David

Allen Arthur, is guilty of capital murder, then the form of your verdict may be as follows: "We the Jury,

find the Defendant, David Allen Arthur, guilty of capital murder." If you find the Defendant, David

Allen Arthur, not guilty of capital murder but guilty of the lesser included offense of murder then the

form of your verdict may be as follows: "We, the Jury, find the Defendant, David Allen Arthur, guilty

of murder." Write your verdict on a separate sheet of paper. It does not need to be signed by you.

¶23. Although robbery was not separately charged in the indictment, according to the plain language of §

99-19-5, the jury is allowed to find Arthur guilty of any offense, "the commission of which is necessarily

included in the offense with which he is charged in the indictment . . . ." The indictment specifically charged

capital murder predicated upon the underlying felony of robbery. Robbery must, therefore, necessarily be

found in order to sustain a finding of capital murder under this indictment.

¶24. This Court has addressed lesser included offenses, such as kidnaping, in the case of Cannaday v.

State, 455 So. 2d 713, 724-25 (Miss. 1984). This Court in Cannaday, stated that, "[a]ny murder

committed during . . . kidnaping would have been capital murder imputed to all three of the perpetrators. To

be a lesser included offense, kidnaping would have to be a component of murder. Instead the charge of

kidnaping is an underlying felony which elevates the murder charge to that of capital murder." Id. Likewise,

robbery is not a component of murder. Ballenger v. State, 667 So. 2d 1242, 1255 (Miss. 1995).

¶25. However, robbery is an essential component of capital murder predicated upon robbery. In

Ballenger, this Court also stated that, "[a] lesser included offense instruction should be given, on request,

'if a rational' or a 'reasonable' jury could find the defendant not guilty of the principal offense charged in the

indictment yet guilty of the lesser included offense." Id. at 1254. (quoting Mease v. State, 539 So. 2d

1324, 1329-30 (Miss. 1989)).
¶26. After debating whether to give a separate robbery option in the form of the verdict jury instruction,

trial counsel for both sides and the trial judge decided that it was not possible for the jury to find Arthur

guilty of robbery alone-only of capital murder or murder. The jury, acting without an option for doing so in

the jury instructions, found Arthur guilty of robbery while finding him not guilty of capital murder or murder.

¶27. The rationale of the jury in reaching its verdict is unclear. The jury sent a note to the trial judge after it

had started its deliberations which stated:

If property is removed from a corpse after death, is that considered robbery?

Judge Vollor then responded in the form of a note back to the jury, over Arthur's objection, which read as

follows:

If either Ephraim Stephens, or David Allen Arthur, or both, had the intention to rob Brian McCown

before his death, then a wilful and voluntary removal from the corpse after death is considered

robbery. Please read this instruction together with the other instructions given.

¶28. After receiving this reply from the judge, the jury returned its verdict finding Arthur guilty of only

robbery. We find that there were two possibilities as to how the jury reached this verdict. First, the jury

could have believed that Arthur intended only the robbing of McCown but not the killing of him. Following

the reply note from the judge, without reading the other jury instructions carefully, the jury could have

believed that finding Arthur guilty of robbery was an option. That would be an inconsistent with the law of

Mississippi. Miss. Code Ann. § 97-3-19(2)(e) (Rev. 1994 & Supp. 1998) states:

(2) 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:

. . . .

(e) When done with or without any design to effect death, by any person engaged in the commission

of the crime of rape, burglary, kidnaping, arson, robbery, sexual battery, unnatural intercourse with

mankind, or in any attempt to commit such felonies.

. . . .

(emphasis added). If the jury believed that Arthur intended the robbing of McCown, even though he did not

intend the killing of McCown, he is guilty of capital murder. Here, the jury acquitted Arthur of capital

murder, so therefore, if this was the rationale of the jury it could not legally find him guilty of the robbery. If

that was the jury's reasoning, it was mistaken, and the conviction cannot be allowed to stand.

¶29. If the jury based its conviction for robbery upon Arthur's having only robbed the corpse, then it chose

to believe that Arthur did not participate in or intend the killing take place, did not plan to rob McCown

before his death, but was only guilty of robbing the corpse as an afterthought once McCown was dead.

¶30. Mississippi follows the "one continuous transaction" rationale in capital cases. Pickle v. State, 345

So. 2d 623, 627 (Miss. 1977). Under this rationale the underlying crime begins where an indictable attempt

is reached. Arthur might argue that the one continuous transaction rationale saves him here. That the jury

could not find him guilty of robbery after the murder without automatically finding him guilty of capital
murder. That is not so under the theory of the crime that the jury apparently accepted: that the robbery was

a total afterthought on Arthur's part. If the robbery was a total afterthought then no indictable attempt ever

began until after the victim was dead, therefore, no continuous transaction linking Arthur with the murder.

¶31. The question then becomes, can you rob a corpse? Robbery is defined by statute as follows:

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. 1994).

¶32. This Court in West v. State, 463 So. 2d 1048, 1055 (Miss. 1985), held as follows:

Appellant argues that since nothing was taken from the person or presence of Kirby Phelps before he

was murdered there was no robbery and any reference to robbery is error. While appellant correctly

states that one of the essential elements of robbery is that the taking must be from the person or

presence of another, the fact that the murder occurred prior to the taking does not lessen the

crime. . . .

(citation omitted & emphasis added). Therefore, under this Court's precedent, robbing a corpse in close

proximity to the death of the victim is still robbery in Mississippi. This is consistent with sister jurisdictions:

U.S. v. Butler, 455 F.2d 1338, 1339 n. 1 (D.C.Cir.1971) ("It is settled law of the jurisdiction that a

dead man is a 'person' within the robbery statute"); Frady v. U.S., 348 F.2d 84, 106

(D.C.Cir.1965) (the taking of the victim's wallet was robbery whether it was taken before or after he

was murdered); Carey v. U.S., 296 F.2d 422, 426 (D.C.Cir.1961) (when the time interval between

the injury causing death and the taking of the property is "so short ... it can hardly be said as a matter

of law that the act of appropriation was not performed upon a 'person' "); . . . State v. Myers, 230

Kan. 697, 640 P.2d 1245, 1250 (1982) (taking of property three hours after victim was killed is a

robbery "where the act of force and the taking of the property are so connected as to form a

continuous chain of events"); People v. McGrath, 62 Cal.App.3d 82, 86, 133 Cal.Rptr. 27, 29

(1976) (the fact that the victim may be dead when the property is taken "does not alter the character

of the theft. It is sufficient for the purposes of robbery ... that the murder and taking be part of one

continuous transaction"); Cobern v. State, 273 Ala. 547, 550, 142 So.2d 869, 871 (1962) ("If the

intervening time between the time of the murder and the time of the taking of the property formed a

continuous chain of events, the fact that [the victim] was dead when [the defendant] took the property

could not absolve the defendant from the crime of robbery"); State v. Coe, 34 Wash.2d 336, 341,

208 P.2d 863, 866 (1949) (where the robbery and homicide were all part of the same transaction,

"the fact that death may have momentarily preceded the actual taking of the property from the person

does not affect the guilt of the appellant in the commission of the robbery").

People v. Childs, 615 N.Y.S.2d 972, 975-76 n. 3 (N.Y. Sup.Ct. 1994). Under this possible rationale,

the jury's verdict could be affirmed.

¶33. Unfortunately, we cannot read the mind of the jury. We do not know whether it was mistaken as to the

law or understood the law and just simply reached a verdict for which it had not been offered a proper

form of the verdict jury instruction.
¶34. For these reasons, the judgment of conviction for robbery is reversed, and this case is remanded to the

trial court for a new trial on the charge of robbery alone.

¶35. REVERSED AND REMANDED.

PRATHER, C.J., SULLIVAN, P.J. BANKS, SMITH, MILLS AND WALLER, JJ., CONCUR.

BANKS, J., CONCURS WITH SEPARATE WRITTEN OPINION. McRAE, J., CONCURS IN

PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

BANKS, JUSTICE, CONCURRING:

¶36. I agree with the result to reverse and remand reached by the majority in this case. I write separately,

however, to fully express my view concerning the reasons for remand.

I.

¶37. It is my view that a conviction of robbery is supported by the evidence before the jury. Additionally,

the jury was instructed on the elements of robbery as well as the elements of capital murder. Arthur cannot

complain that the same evidence upon which the jury verdict for robbery was based would have supported

a conviction for capital murder. Hubbard v. State, 437 So. 2d 430, 438 (Miss. 1983). Where the record

contains evidence sufficient to support a conviction of murder, the defendant cannot complain about a lesser

finding. Id. This Court has held many times that the fact that the evidence supports the greater offense gives

no grounds for reversal of a conviction of a lesser offense, even where an instruction on the lesser offense

would not have been authorized by the evidence. Grace v. State, 379 So. 2d 540, 542-43 (Miss. 1980).

It follows, therefore, that this conviction should not be reversed upon the ground that is was illogical for the

jury to convict Arthur of robbery and not also convict him of capital murder.

¶38. The decision to reverse and remand, however, is compelled because the conviction of robbery is

infected by error that lies in the instruction which allows the jury to attribute Stephens' pre-mortality intent to

rob to Arthur. In my view, that instruction was in error and justifies remand for a new trial on the issue of

robbery. To be clear, our "continuous transaction" doctrine as applied to robbery requires the existence of

the intent to rob at a point prior to the death of the victim. Duplantis v. State, 708 So. 2d 1327, 1342

(Miss. 1998). Our aiding and abetting precedent requires a knowing participation. West v. State, 233

Miss. 730, 103 So. 2d 437, 439 (1958); Gibbs v. State, 223 Miss. 1, 77 So. 2d 705, 707 (1955). If

Arthur knows of no intent to rob, Stephens' uncommunicated intent may not be attributed to him. Id. at 706

(criminal intent of direct actor must be shared). See also People v. DeJesus, 507 N.Y.S. 2d 144,

145(N.Y. App. Div. 1986). The instruction that if either of them formed an intent to rob prior to the death

of the victim a conviction could be had against the other is error, requiring reversal of the conviction and

remand for a new trial.

II.

¶39. In addition to the instruction error, to the extent that Arthur claims Stephens had a propensity to
violence, which he states gives rise to a duress defense for his part in this affair, such evidence should have

been admitted. See West v. State, 1998 WL334717,*17-19 (Miss. 1998) (discussing the defense of

duress). Duress may be valid defense to the crime of robbery. Id. Indeed, Arthur claims that he did not

have the intent to either rob or murder, that he did neither, and that such acts as he did perform were the

product of his fear of Stephens. On remand, the trial Court should carefully consider whether there is a

viable claim in this regard and the relationship to that claim of what Arthur knew about Stephens.

McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶40. I dissent from the decision to remand for trial on the simple robbery issue. There is no reason to

remand the case. The case is over. The indictment was for capital murder, not robbery. Arthur was

acquitted on the capital murder charge. See Harris v. State, 723 So. 2d 546, 549 (Miss. 1997). Further,

"the underlying felony in a felony-murder is by definition included in the greater offense and may not be

punished separately. This does not mean it is a lesser included offense which requires a separate jury

instruction." Ballenger v. State, 667 So. 2d 1242, 1254 (Miss. 1995). In the instant case, the majority

specifies that robbery was the underlying felony of the murder. This Court fails to consider Doss v. State,

709 So. 2d 369 (Miss. 1997), in which we cited Ballenger and stated that as the underlying felony in a

charge for capital murder, robbery is not a component of murder and therefore is not a lesser-included

offense to that murder charge. Id. at 377. Accordingly, I dissent as to the rationale and the decision to

remand.