Fryou v. State
| Docket Number: | 2007-KA-00635-COA Linked Case(s): 2007-KA-00635-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-08-2008 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Capital murder - Lesser-included offense instruction - Manslaughter instruction - Weathersby rule Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-08-2007 Appealed from: Harrison County Circuit Court Judge: Stephen Simpson Disposition: CONVICTED OF CAPITAL MURDER AND SENTENCED TO LIFE WITHOUT PAROLE OR PROBATION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Cono A. Caranna, II Case Number: B2401-06-00017 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | VICTOR LOWELL FRYOU |
GLENN S. SWARTZFAGER,
BRENDA JACKSON PATTERSON |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: STEPHANIE BRELAND WOOD | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Capital murder - Lesser-included offense instruction - Manslaughter instruction - Weathersby rule |
| Summary of the Facts: | Victor Fryou was convicted of capital murder while in the commission of a robbery. The court sentenced him to life in prison. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Lesser-included offense instruction Fryou argues that the court erred by denying the defense’s requested jury instructions on the lesser-included offense of simple murder. Lesser included offense instructions should be given if there is an evidentiary basis in the record that would permit a jury rationally to find the defendant guilty of the lesser offense and to acquit him of the greater offense. Fryou admitted on the stand that he killed the victim and took his truck. Even though he later denied it, following Fryou’s arrest, he told police officers that he took the victim’s wallet. Officers later found the wallet buried in Fryou’s sister’s yard after Fryou told them where he buried it. Thus, there was sufficient evidence to convict Fryou of capital murder. Furthermore, there was no evidence that would have allowed a jury to convict Fryou of simple murder and not find capital murder. Issue 2: Manslaughter instruction Fryou argues that the court erred by denying the defense’s proposed jury instruction on manslaughter. Mere words, no matter how provocative, are insufficient to reduce an intentional and unjustifiable homicide from murder to manslaughter. The only evidence Fryou cites to support heat of passion was a single comment by the victim after Fryou told him that he left his girlfriend. Not only does the evidence support the verdict, but because Fryou admitted the killing and the robbery, the evidence would not have allowed the jury to find manslaughter. Fryou killed the victim while engaged in a robbery; therefore, his intent in killing him was irrelevant. Issue 3: Weathersby rule Fryou argues that the court erred in refusing to grant the defense’s requested Weathersby instruction, because there was no one else in the trailer when he killed the victim who could contradict his version of events. Under Weathersby, the reasonable, uncontradicted story of the defendant or his witnesses must be accepted as true. Weathersby is inapplicable if the defendant’s account is merely contradictory or if the defendant’s conduct and statements following the killing are inconsistent with his version of the events as recounted at trial. Fryou’s statements to police officers following his arrest were clearly inconsistent with his testimony at trial. Weathersby was, therefore, inapplicable. |
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