IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-01737-COA DAYLON WALDROP A/K/A DAYLON CARL WALDROP A/K/A DAYLON C. WALDROP APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/19/2016 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED: 05/22/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., WILSON AND TINDELL, JJ. TINDELL, J., FOR THE COURT: ¶1. A Forrest County jury c o n v i c t e d D a y l o n Wa l d r o p o f c a p i t a l m urder with the underly ing f

elony of arm ed robbery

. See Miss. Code Ann. § 9 7-3-19(2)(e) (Rev. 2014). The
F o rrest C ounty Circuit Court then sentenced W aldrop t o lif e im prisonm ent without eligibi l i t y f or parole. On appeal, W aldrop challenges (1) the c ircuit c ourt’s f ailure t o instruct the jury

on the elem ents of t he underly ing f elony of arm ed robber y and (2) the adm ission of a recorded 911 call m ade af ter the crim e. ¶2. Upon review, we f ind W a ldrop’s f

irst assignm ent of e rror dispositive. Neither partyd i s p u tes that the circuit court f ailed to instruct the jury o n the elem ents of the underly ing
f elony of a rm ed robbery

. Both parties f urther acknowledge t hat, i n Harrell v. State , 134 So. 3d 266, 275 (¶30) (Miss. 2014), the Mississippi Suprem e Court overruled i ts prior p recedent and held that “it is a lway s and in e very case reversible error f or the courts of Mississippi to deny a n accused the right to have a jury decide guilt as to each and e very elem e nt.” 1 In light of Harrell , the circuit court’s f a ilure here to instruct t he jury on the elem ents of the underly ing f

elony of arm ed robbery warrants t he reversal o f W a ldrop ’s capital-m urder conviction. W e theref

ore reverse his conviction and rem and this case f or a new trial.
FACTS ¶3. On August 20, 2014, a Forrest County grand jury indicted W aldrop f or capital m

urder during the com m ission of an arm ed robbery

. The indictm ent charged the f ollowing: [ W aldrop,] i n Forrest County , Mis s i s s i p p i, on or about A ugust 1, 2013, did then and there willf

ully , unlawf

ully [ ,] and f

eloniously , and w ith or without any design to ef

f ect

. . . death, kill and m

urder Robert W i l liam s, a hum an being, while i n the com m ission of the crim e and f elony o f [ r]obbery with a deadly weapon . . . . ¶4. At W aldrop’s trial, prior t o subm itting the case to the jury , the circuit c ourt instructed the jury as f ollows on the elem ents of capital m urder:

1 P rio r to H

a rrell , th e su p rem e co u rt ru led in K o lb erg v. S ta te , 8 2 9 S o . 2 d 2 9 , 5 0 -5 1 (¶4 0 ) (M iss. 2 0 0 2 ), th a t, c o n s i s t e n t w ith U n ited S tates S u p rem e C o u rt p r eced en t, a trial co u rt’s f ailu re to i n s tru ct a j u ry o n th e elem en ts o f th e u n d erly in g f elo n y in a cap ital-m

u rd er trial w as su b

j ect to h arm less-erro r an a ly sis r ath er th an a u to m atic rev ersal. I n H a rrell , h o w e v e r , th e su p rem e co u rt rev i sited

— an d u ltim ately rev ersed

— its h o ld in g in K

o lb erg . H a rrell , 1 3 4 S o . 3 d at 2 7 5 (¶3 0 ). 2Day lon W aldrop has been c harged with the o f f ense of capital m

urder. I f y ou f ind f rom the evidence in this case bey ond a reasonable doubt that:
1. On or a bout August 1, 2013[ ,] in Forrest County , Mississippi;
2. . . . Robert W illiam s was a hum an being;
3.

. . . Day l on W aldrop[ , ] with or without any desi g n t o ef f ect death[ ,] and without authority of law,

. . . did k ill Robert W illiam s; 4. W hile D ay lon W aldrop was engaged in the c o m m ission of the crim e of robbery , th e n y ou shall f ind the [ D]ef endant guilty

as charged. The circuit court gave no corresponding instruction on the elem ents of arm ed robbery

. ¶5. Af ter the jury

convicted W aldrop of

capital m urder, the circuit c o urt sentenced h im
to lif e im p risonm e nt w ithout eligibility f or parole. W aldrop f

iled an unsuccessf

ul m otion f

or

a new trial or, in t he alterna t i v e, a judgm e nt notwithstanding the verdict. Aggrieved,
W a ldrop appeals.
DISCUSSION ¶6. On appeal, W aldrop argues the circuit court c om m itted reversible error by f ailing to instruct the j ury on all the essential elem ents of capital m urder, including the e l em ents of the underly ing f

elony of arm ed robbery

. Because this issue is dispositive, we d ecline to address
W a ldrop’s rem aining assignm ent of error. ¶7. Mississippi Code Annotated section 97-3-79 (Rev. 2014) def ines a r m e d r o bbery

as the f elonious “tak[ ing] or attem p t to take f

rom the person or f

rom the presence the personal

3property of another and against his will by violence to his person or by putting such person

in f ear of im m e diate injury to h i s person b y the exhibition of a deadly weapon . . . .” Thus,

t h e essential elem ents of arm ed r o bbery include “(1) a f elonious taking o r attem

pt to t a k e ; (2) f rom the person or f

r om the p resence; ( 3) the personal property of another; ( 4) against his will; (5) by violence to hi s p e r s on or by putting such person in f ear of im m ediate injury to his person by

the exhibition of a deadly weapon.” Lenoir v. State , 224 So. 3d 85, 91 (¶19) (Miss. 2017) (quoting Cowart v. State , 178 So. 3d 651, 666 (¶42) (Miss. 2015)). ¶8. Although W aldrop neither objected at trial to the om i s s i o n o f a n a r me d

- r o b b e ry elem ents instruction nor subm itted his own such instruction, his argum ent o n a ppeal is not
p r o c edurally b arred. Our suprem e court has explicitly rejected the application o f a procedural b ar where “the trial cou r t f a i l s t o instruct the jury o n the elem ents of the underly ing f

elony in a capital-m

urder trial.” Harrell , 134 So. 3 d at 270 (¶14). As the Harrell
court explained, “the t rial court is ultim ately responsible f or rendering proper guidance to the jury via appropriately

given jury

instructions, even sua sponte.” Id. ¶9. In Harrell , a jury c onvicted Christopher Harrell of capital m urder with the underly ing
f elony of robbery a nd f

e lon i n possession of a f

i rearm . I d. at 267 (¶1). In reversing Harrell’s capital-m u rder conviction and rem anding f or a new trial, the suprem e court explained that the circuit court’s “f

ailure to instruct the j ur y a s to the elem ents of the charged crim e deprived Harrell of due process in the f orm o f his r i g h t t o a j u r y trial as guaranteed by the Mississippi Constitution

. . . . ” I d. at (¶2). Because the present case is analogous to Harrell ,

4we hold the circuit court’s denial of W aldrop’s “right to have a jury decide guilt as to each

and e very elem ent” of the cha r g e a g a i n s t h im constitutes r eversible error. See id. at 275 (¶30).
CONCLUSION ¶10. W e theref

ore r everse W aldrop’s capital-m urder conviction and rem and the case f or a new trial. ¶11. REVERSED AND REMANDED. LEE, C .J. , IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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