Nevada County Picayune and Gurdon Times Newspaper Archive

Judicial Error Means Another Trial For Toby Craig

Because of a judicial error Toby Craig will be getting a new trial.

Craig was convicted of first degree murder in the beating death of Jake McKinnon. The conviction occurred after a week-long trial in August 1997. McKinnon was beaten to death Nov. 9, 1996.

According to Craig's attorney, Chuck Honey, the court reversed the conviction on the fact the case should have been dismissed because of the first degree murder charge.

"This is a complicated area of the law," Honey said. "Capitol felony murder requires the murder to be committed in the process of another crime."

In this case, though, 8th Judicial District Judge Philip Purifoy ruled the assault was the underlying felony for the murder charge.

However, Honey said a murder can't be committed without an assault occurring. He cited shooting someone with the assault happening when the bullet hits.

"Personal assault can't be the underlying felony in capital murder charges," he said. "It's part of the crime."

Craig remains in the Arkansas Department of Corrections, but is expected to be brought back to the Nevada County jail at any time, Honey said.

While the state has no basis for holding Craig in the penitentiary, he will not simply be turned loose. Instead he will be brought back to the Nevada County jail where he will be held until either bail is granted or a new trial is held.

Honey said no trial date has been set, and when it is, Craig can't be tried for first degree murder. Under the U.S. Constitution a person can't be tried twice for the same crime.

It would constitute double jeopardy if Craig were tried on the same charge a second time. This, Honey said, means his client will either be tried for second degree murder or the lesser charge of manslaughter.

It also means Craig will not be subject to the same penalties and sentences as the first degree charge carries. Even if convicted again, Craig will spend less time in prison and will be credited for time already served.

"I don't know why this took so long," Honey said.

Four of the justices on the Arkansas Court of Appeals signed the order of reversal, two concurred, but did not sign the order and two others dissented.

Judge Wendell Griffen, who spoke in Prescott recently at the Ila Upchurch Banquet, wrote the majority opinion for the decision.

According to court records, McKinnon was beaten to death on Nov. 9, 1996. Craig, Keith Buchheit and Johnny Cason were charged in the murder.

Cason, the last to be tried, got the lightest sentence and has already been paroled. He is currently living in Dallas, Texas.

Buchheit, though, entered into a plea agreement to serve 40 years and is currently serving his term.

It is ironic, Honey said, Buchheit could serve the most time because of the plea agreement. The law states a person must serve 70 percent of their sentence when violent crimes are committed.

Buchheit appealed his agreement saying his lawyer at the time didn't tell him how long he would have to be in jail.

This appeal was denied, but Buchheit could try again in light of the appeal court's decision on Craig's case.

Records show Shane Henry was hunting with McKinnon in the Howard Creek Low Water Bridge Road area.

Henry said a small, dark pickup with three men he identified as Craig, Cason and Buchheit, came by and they were looking for McKinnon.

A little later McKinnon drove up and told Henry he'd been hurt. Shortly thereafter the three also returned to the scene.

McKinnon got out of his truck and was accosted by Craig and Buchheit, while Cason kept Henry from interfering.

The end result was McKinnon getting beaten to death by the three.

Henry, once released, was walking toward the deer camp and got a ride. Upon arrival at the camp he told what had happened.

Ed Grice and Keith Massey went to look for McKinnon, finding him face down in some water. They attempted to resuscitate him using CPR, but quit when blood came out of his mouth.

They went for medical help, but McKinnon was already dead.

Craig was convicted of first degree murder and sentenced to 40 years in prison.

Buchheit received the same sentence on his plea bargain, while Cason was convicted of manslaughter and given a 10 year sentence.

However, because of good behavior while in the pen, Cason has already been released.