IN THE SUPREME COURT OF MISSISSIPPI
NO. 2014-KA-00547-SCT
ANTHONY

WINDLESS a/k/a ANTHONY TERRELL WINDLESS

v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT: 03/19/2014 TRIAL JUDGE: HON. CHARLES E. W E BSTER TRIAL COURT ATTORNEYS: BRENDA F. MITCHELL W ILBERT LEVON JOHNSON COURT FROM W HICH APPEALED: QUITMAN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE M. McMILLIN GEORGE T. HOLMES W ILBERT L. JOHNSON ATTORNEY FOR APPELLEE: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION AFFIRMED - 10/01/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. WALLER, CHIEF JUSTICE, FOR THE COURT: ¶1. A Q u i t ma n C ounty jury f ound Anthony W indless g uilty of capital mu r d e r , a n d

W i ndless w as sentenced to im prisonm ent f

or lif e without the possibility o f parole. W indless appeals his conviction, arguing that the trial court erred in instruct i n g t he jury and that he
received inef

f ective assistance of

counsel. Finding no error, we af f irm

.F ACTS & PROCEDURAL HISTORY

¶2. On February 26, 2 011, Charles Presley drove f rom his hom e in Sledge, M ississippi,

to B atesville to h ave l unch with his son. Af ter lunch, Presley ’s son withdrew $ 100 f rom his
bank account and g a ve the m oney t o Presley s o h e could m ake an insurance pay m ent. Presley then returned to his hom e. Later that af ternoon, Presley ’s sister Charlie Mae Aaron,
who lived next door to Presley , noticed that his car was in h is driveway

. She a ttem pted to
contact him

by phone but got a busy

signal. ¶3. Charlie Mae called Presley ’s hom e phone and cell phone again early the next m orning
and received no answer. She then called her son Craig Aaron, who lived a f ew blocks away ,
to check on Presley

. W hen Craig arrived at Presley ’ s hom e he knocked on the door, but no

one a nswered. C harlie Mae retrie v e d h e r k e y to P resley ’s h om e and brought it to Craig.

W h en they entered Presley ’s hom e , they f ound P resley unresponsive and bloody on the f loor, so they ran back to Charlie Mae’s house and called the police. ¶4. Investigator Kristopher W ingert w ith th e M i s s i s s i ppi Bureau of I nvestigation was part
of the team that p e rf

o rm ed the initial exam i nation o f the crim e scene. Investigator W ingert
f ound a broken window on the back side of P resley ’s hom e. He also noticed that the back
door to t he hom e w as ajar. Inside the hom e, W ingert f o und Presley ’ s body on the f loor of
his bedroom . The house was in disarray , and heavy blood spatter surrounded Presley

. ¶5. The police developed Anthony W indless a s a suspect in Presley ’ s death based on his
i n v o l v e ment i n a prior sim ilar crim e and the f act that he lived near Presley

. Investigators
then went to Craig’s house, where W indless lived. C raig is also W indl e ss’s stepf ather.

2Wh e n t hey arrived, Craig m et them in the driveway and gave them one of his jackets t h a t

W i ndless had worn the day b ef ore. The jacket had blood on it, which was determ i ned to be Presley ’s through DNA testing. A bloody f lashlight, a CD play e r, and a s ki m ask also were
f o und in a garbage can outside of W indless’s cousin’s hom e, a bout a block away f

r o m Presley ’s hom e. The b lood on the f lashlight was m atched to Presl e y , as well. Forensic analy sts with the Mississippi Crim e Laboratory later identif i e d Windless’s f

ingerprints throughout the crim e scene. ¶6. Af ter receiving this evidence, the police arrested W indless. He initially d enied having

any involvem ent in the crim e. However, af ter agreeing to t a k e a p oly graph test, W indless

t o ld investigators that he had been involved in Presley ’s death. 1 W i ndless broke i n t o Presley ’s hom e and was ransacking the place l o o k i n g f or valuable item s when Presley
returned hom e. W indless grabbed a large f lashlight f r om the bar in Presley ’ s hom e and hid
behind the f

ront door. As Presley entered the f r ont door, W indless struck him on the head
with the f l ashlight. W indless struck Presley a total of twenty -three t im es with the f lashlight,
ultim ately killing him

. W indless t hen took the cash that Presley had withdrawn at the bank,

as well as som e jewelry , a CD play er, and the f lashlight, a n d f

led the s cene. The f

lashlight
f ound at W indless’s cousin’s hom e was identif ied as the m

urder weapon. ¶7. W i n d less was indicted f or capital m

urder with the underly ing f elony of burglary

. Trial

com m enced on March 10, 2014. At t he conclusion of W indless’s trial, the jury was g iven

1 W indless i nitially told the police that h e and another m an, Jem arcus W allace , h ad been “sm oking a blunt” alongside the r ailroad tracks when they decided to rob s o m eone. The police later determ i ned that W allace had not been involved in the crim e. 3the f

ollowing instruction on t he elem ents of capital m urder and the und e r l y i n g f e l ony of burglary :
The def

endant, AN T H O N Y W I N D L E S S , i s c h a r g e d b y i n dictm ent with the crim e of

Capital m

u rder. Capital Murder
If y ou f i n d f r o m the evidence in this case b ey ond a reasonable doubt that:
1. O n o r a b o ut or between February 26, 2011, and February 2 7 ,

2011, Charles Presley , Jr. was a living hum an being, and
2. t h e d e f

e n d a n t , A n t h o n y Wi n d l e s s , i n Q u i t ma n C o u n t y , Mississippi, individually or while aiding a nd abetting and/or
a c t ing in concert with another, did unlawf ully , wilf ully an d f eloniously , without authority of law, and with or w ithout the deliberate design to e f

f ect death, kill and m

urder C h a rles Presley , Jr.,
3. while engaged in the crim e of burglary of a dwelling,
then y ou s hall f

ind the d e f

endant guilty of Capital Murder. As indicated, a verdict of capital m

u rder requires that y ou f

ind bey ond a reasonable doubt t hat the def endant was e ngaged in the crim e of burglary of a dwelling at the tim e of the alleged m

urder.

To f ind that the def

endant was engaged i n the c r im e o f b u r g l a r y of a dwelling at the tim e of the a lleged m urder, y ou m

ust f ind bey ond a r easonable doubt that:
1. On or about or be t w e e n F e b r u ary 26, 2011, and February 27, 2 0 1 1 , the def

endant, Anthony W indless, in Quitm a n County , Mississippi, individually or while a iding and abetting and/or acting in concert with a nother, d i d unlawf ully , wilf ully and f eloniously , break and enter the dwel l ing house of Charles Presley , Jr. [ l]ocated at 2 5 1 Gin Street in Sledge, M ississippi, and

42. said breaking and entering was done with the intent to com m it the crim e of

larceny
If the State has f

ailed to prov e b e y o n d a reasonable doubt any one or m ore of the e le me n t s o f Capital Murder, including the charge of b urglary of
a dwelling, then y ou shall f ind the def

endant n ot g uilty of Capital Murder and y ou shall proceed to determ ine if the State has proved bey ond a r easonable doubt that the def

endant is guilty of the m urder of Charles P resley , Jr. The distinction, o r dif

f erence, between the c rim e of Capital Murder and the crim e of Murder is the inclusion of the allegation of

burglary of a dwelling.

W i ndless’s a t t o r ney did not object to this instruction. T he j ury f ound W indless guilty of capital m urder, and the trial c ourt sentenced h im t o lif e im prisonm ent without the possibility
of parole. Following the denial of h is post-trial m oti ons, W indless tim ely appealed his
conviction t o this Cour t , a r g uing that the trial court had erred in f ailing t o i nstruct the jury

on the elem ents of larceny as t he “underly ing of f ense” of b urglary , a nd that h e had received
inef f ective assistance of

counsel.
DISCUSSION

I. Whether the trial court erred in failing to instruct the jury on the elem ents of larceny as the “underly ing offense” of burglary
. ¶8. This Court reviews the grant or denial of jury instructions f or an abuse of discretion.

V ictory v. State , 83 So. 3d 370, 373 (Miss. 2 0 1 2) (citing Newell v. State , 49 So. 3 d 66, 73 (Miss. 2010)). “ W hen jury instructions are c hallenged o n appeal, we do not review them in isolation; rather, ‘we r ead t hem a s a whole t o determ ine if the jury was properly i nstructed.’”
Rubenstein v. State , 941 So. 2d 735, 787 (Miss. 2 006) (quoting Milano v. State , 790 So. 2d 179, 184 (Miss. 2001)). If the jury instructions, r ead as a whole, f airly announce the law of

5the case and create no injustice, no reversible error will be f o und. Harris v. State , 861 So. 2d 1003, 1014 (Miss. 2003). ¶9. In this case, the jury was ins t r u c t e d on t he e ssential elem e n ts of both the principal

o f f ense of capital m

u rder and the underly ing f elony of burglary , as our law requires. See

Hunter v. State , 684 So. 2d 625, 636 (Miss. 1996). In a ddition, t he jury instructions

spe cif ically identif

ied larceny as the crim e W indless intended to com m it vis-à-vis the burglary

. See D aniels v. State , 107 S o. 3d 961, 964 (Miss. 2013) ( f inding that the jury was

not instructed properly o n the eleme n t s o f b u r glary , where the jury instructions f ailed to
indicate the specif

ic crim e which the def

endant intended to c om m it). Rely i ng on Harrell v.
State , 134 So. 3d 266 (Miss. 2 014), W indless argues that the trial court a lso was required
instruct the jury on the elements of the intended crim e of larceny

. H e ref e r s to larceny as “the underly ing of

f ense of burglary .” In Harrell , the def e n dant w as charged w ith capital m urder
with the under l y i n g f

elony of robbery , but the jury w as not instructed on the elem ents of robbery

. Id. at 269. On appeal, this Court h eld that the f ailure to i nstruct the jury on every
elem ent of the crim e with w hich t he def endant is charged constitutes p er se reversible error
and is not subject to the p rocedural bar. Id. a t 275. Im portantly , this Court also declined to apply t he harm less-error a naly sis to the d ef endant’s claim , f

inding t hat doing so would deprive the def

endant of his right to a trial by

jury

. Id. at 275. ¶10. W e f

ind t hat Harrell is not im

plicated in the instant case. The elem ents of burglary

are (1) “breaking and e nte r i n g the dwelling h ouse or inner d oor of such dwelling house of
another” (2) “with the intent to com m it som e crim e therein[ , ] ” a n d Windless’s jury was

6instructed as such. Miss. C ode Ann. § 97-17-23(1) (Rev. 2 0 1 4 )

. B u t t his Court has

e x p lained that the elem ents of t he crim e which t he d ef endant intended to c om m it a r e n o t
elem ents of burglary

. D aniels , 1 07 So. 3d at 964. Thus, the State i s not required “to prove
each el em ent of the ‘intended crim e’ with the sam e particularity as i s required when a
def endant is charged only with the crim e intended.” Newburn v. State , 205 So. 2d 260, 266 (Miss. 1967). This i s b ecause burglary “ d o e s not c ontain t wo separate and distinct

‘ s u b c r i me s , ’” as does capital f elony m urder. B ooker v. State , 716 So. 2d 1064, 1067-68 (Miss. 1998). “Rather, the intent to com m i t som e c rim e, be it a f elony or a m isdem eanor, is
sim ply an elem ent of the crim e of burglary .” Id. at 1 068 (em phasis added). “ Only the intent
need b e proven to establish the second elem ent of the crim e of burglary .” Moore v. State , 344
So. 2d 731, 735 (Miss. 1977). Sim ply put, H arrell does not m andate reversal here because
the elem ents of larceny a re not elem ents o f the crim e with which W indless was charged. Contrary to W indless’s argum e nt, the c rim e of burglary does n o t h a ve a n “underly ing
of f ense” within the m e aning of Harrell

. ¶11. Ju stice C o l em an a rg u es th at C o n n er v. S

ta te , 1 3 8 S o
. 3 d 1 4 3 (M iss. 2 0 1 4 ), req u ires

rev ersal in t h is c ase. H o w ev e r, th e C o n n er C o u r

t sh o u ld h av e rev iew ed t h e d e f e n d a n t’s
claim o n ly f

o r p lain erro r , as h e f

ailed to o b

j ect to th e in stru ctio n at issu e d u rin g trial;
in stead , th e C o u rt erro n eo u sly relied o n H a rrell t o h o ld th at th e d ef en d an t’s c laim w as n o t

p ro ced u rally b arred

. 2 Id

. E v e n so , th e C

o n n er C o u rt reco g n ized th a t th e j u ry in stru ctio n

2 T h e cases cited b y

Ju stice C o lem an to ref

u te th e ap p licatio n o f th e p ro c ed u ral b ar are in ap p o site, as each o f th o se cases d eals w ith th e trial co u rt’s f a ilu re to in stru ct th e j u ry o n an essen tial elem en t o f th e c h arg ed o f f en s e, an i ssu e n o t p resen t in C o n n er o r t h e in stan t case. S ee K o lb erg , 8 2 9 S o
. 2 d 2 9 , 5 1 -5 2 (M iss. 2 0 0 2 ), o verru led o n o t h er g r o u n d

s b y 7g iv en i n th at case, lik e th e o n e in t h is case, co m p lied w ith o u r p reced e n t g o v ern in g b u rg lary
in stru ctio n s b y id en tif

y in g a sp e cif

ic in ten d ed crim e. Id

. B ecau se w e h av e d eterm in ed t h at
H a rrell d o es n o t ap p l y to th is case, Win d less w aiv ed h is rig h t to ap p eal th is issu e b y f ailin g

to o b j ect at trial, a n d w e can rev iew h is claim o n ly f o r p lain e rro r. S

ee Sm ith v. State , 835
So. 2d 927, 989 (Miss. 2002) (citing Walker v. State , 729 So. 2d 197, 2 0 2 ( M i s s. 1988)) (“This Court has held on num erous occasions that an o f f ended p arty ’s f

ailure to object to jury
instructions at trial procedurally bars the issue on appeal.”); B r o w n v. S ta t e , 9 9 5 S o
. 2 d 6 9 8 , 7 0 4 ( M i s s
. 2 0 0 8 ) (“A n y assig n m en t o f erro r o th erw ise p ro ced u rally b arred is ap p ealab le

o n ly w h en th e t rial co u rt em p lo y ed p l ain erro r.”). T h e p lain -er r o r d o ctrin e r eq u ires th e
f in d in g o f n o t o n ly an erro r , b u t o n e th at resu lted in a “m iscarriag e o f j u stice” af f e ctin g th e
d ef en d a n t ’s f u n d a m en tal rig h t s. G ra

y v. S t a te , 5 4 9 S o
. 2 d 1 3 1 6 , 1 3 2 1 (M iss. 1 9 8 9 ). We d o

n o t f in d th at su c h an erro r o ccu rred h ere. This Court has held that larceny i s c o mmo n l y
understood to connote s tealing o r thef t. C o nner v. S

tate , 138 So. 3 d 143, 150 (Miss. 2014) (citing Com m onwealth v. Lawrence , 418 N.E.2d 62 9 , 6 3 1 (Mass. App. C t. 1981)). The
State subm itted suf

f icient evidence f

or the jury to f

i nd that W i ndless f

eloniously broke into
and entered the victim ’s house with the intent to steal. See Butler v. State , 217 So. 2d 3, 4

H a rrell , 1 3 4 S o
. 2 d 2 6 6 (M iss. 2 0 1 4 ) (f in d in g th at th e trial co u rt erred in f a i lin g to in stru ct th e j u ry o n th e elem en ts o f th e u n d erly in g f e lo n y o f f elo n io u s ch ild ab u s e in a cap ital-m u rd er case, b u t f

in d in g su ch erro r t o b e h arm less b ey o n d a reaso n ab le d o u b t); Shaffer v. State , 740 So. 2d 273, 282 (Miss. 1998) (f inding that the trial court com m itted reversible error by f ailing to instruct the jury on the elem e nts of the underly ing f e l o n y o f s e x ual battery i n a capital-m u rder c a s e , a nd in f

ailing to instruct the jury on an elem ent of depraved-heart
m urder); H unter v. S

tate , 684 So. 2d 625, 636 (Miss. 19 9 6 ) ( f i n ding that the trial court com m itted reversible error i n f ailing to instruct the jury on the u nderly ing f e l ony of robbery in a capital-m

urder case).
8(Miss. 1968) (“Crim inal intent m ay be proved b y circum stan t i a l e vidence, and m ay be

inf erred f rom t he tim e and the m anner in which the entry was m ade, and t he conduct of the
accused af

t e r t h e entry .”). The f

a ct that there are two s tatutory c ategories of larceny i s of

no im port, as the burglary statute sim ply requires the i ntent to com m it “ s om e crim e therein[ .]” Miss. Code Ann. § 97-17-23 (1) (Rev. 2014). See Ashley v. State , 538 So. 2d 1181, 118 4 ( M i s s. 1989) ( “[ T]he word ‘crim e ’ in our burglary statutes includes

m isdem eanors as well as f e lonies.”). ¶12. Accordingly , s ince the jury instruc t i o n s f a irly inf orm ed the jury of the rules of law applicable to this case, we f ind this issue to be without m erit.

II. Whether Windless received ineffective assistance of counsel. ¶13. “[ T]he benchm ark f or judging any claim o f i nef f ectiveness m

ust be w hether counsel’s
conduct so underm i ned the p roper f unctioning of the adversarial process that the t rial cannot
be relied on as having produced a just result.” Strickland v. Washington , 466 U .S. 668, 686,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (19 8 4 )

. T his Court em ploy s t he two-pronged test
announced in Strickland to determ ine whether a crim inal d ef endant has received inef

f ective
assistance of counsel. First, the def endant m ust dem onstrate t hat his counsel’s perf orm ance

was def icient. Ranso m v

. S t a t e , 919 So. 2d 887, 8 89-90 (Miss. 2005). To do so, the
def endant’s p r o o f m

u s t o v e r com e the strong presum ption that “counsel’s c onduct f alls within
the wide range of reasonable prof essional assistance[

. ]” Stringer v. State , 454 So. 2d 468,
477 (Miss. 1984) (quoting Strickland , 466 U.S. at 689). “Then, to d eterm in e t h e s e cond

prong of prejudice to the def e n s e , t h e standard i s ‘a reasonable probability that, but f or

9counsel’s unprof e ssional errors, t he result o f t h e proceeding would have been dif f erent.’”

Foster v. S

tate , 687 S o. 2 d 1124, 1130 (Miss. 1996) ( citing Mohr v. State , 584 So. 2d 426, 430 (Miss. 1991)). ¶14. Ordinarily , a claim of inef f ective assistance of trial c o u n s e l i s m o re appropriately brought during post-convict i o n p roceedings, rather t han on direct appeal, b ecause “ there m ay
be i n s t a n c e s in which insuf f i cient evidence exists within t he r ecord t o address the claim adequately .” Archer v. State , 9 86 So. 2 d 951, 955 (Miss. 2008) (citing Wilcher v. State , 863
So. 2d 776, 825 (Miss. 2003)). However, this Court m ay review a claim of inef f e ctiveness

on direct appeal “if the issues presented are based on f acts f u lly apparent f

rom t he record.”
Id. See also Miss. R. App. P. 22(b). Wi n d l e s s a l leges that his claim m eets the above standard, and h e raises f

our instances of alleged def i cient perf

orm ance. W indless claim s that
his attorney (1) f

ailed to present an opening statem ent, (2) f ailed to object to the State’s jury instructions, (3) elicited prejudicial testim ony co n cerning his poly graph exam ination, and (4)
eli c i t e d p r ejudicial testim ony concerning his crim inal r ecord. W e f ind that these claim s
would be m ore a

ppropriately presented i n a petition f o r post-conviction relief

. Accordingly , we dism iss W indless’s inef f e ctive-assistance claim

without prejudice.
CONCLUSION ¶15. For the f

oregoing reasons, we af

f irm W indless’s conviction and sentence. ¶16. C O N V I C T I O N O F C A P I T A L M U R D E R A N D S E N T E N C E O F L I F E IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE, AFFIRMED. SENTENCE SHALL R UN CONSECUTIVELY WITH ANY A ND ALL SENTENCES PREVIOUSLY IMPOSED.

1 0RANDOLPH, P.J., LAMAR AND P IERCE, J J., CONCUR. C HANDLER, J.,

CONCURS IN PART AND IN RESULT WITH SEPARATE WRITTEN OPINION. D I C K I N S O N , P
. J
. , D I S S E N T S W I T H S E P A R A T E W R ITTEN OPINION JOINED B Y KITCHENS AND KING, JJ. COLEMAN, J
. , DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J. CHANDLER, JUSTICE, CONCURRING IN PART AND IN RESULT: ¶17. I agree with the plurality ’ s holding that the jury was p roperly instructed in this case.
The jury w as instructed on the essential elem e nts of capi t a l mu r d e r with the underly ing
f elony of burglary

. The burglary instruction stated that the jury could f ind guilt if W indless
broke a nd entered “with the intent to com m it t he crim e of larceny .” In C onner v. State , 138
So. 3d 1 43, 150 (Miss. 2014), this Court recognized that “the general lay understanding of
the term ‘ larceny ’ is that it connotes stealing or thef t.” I agree that, under Conner , no
instruction on the elem ents of larceny was required. ¶18. I disagree with the plurality ’s c onc l usion t hat this C ourt erred in Conner by f ailing

to procedurally bar this issue and reviewing it under the well-established rule that “the trial

court m ust ‘assure that t he jury is “f ully and p roperly instructed o n all i ssues of law relevant

to the case.”’ ” Id. a t 149 (quoting Harrell v. State , 134 So. 3d 266, 270 (Miss. 2014)). The plurality is correct t hat, to obtain a b urglary conviction, the State need only s how that the
def endant intended t o com m it the s pecif ie d crim e, and it need not prove the essential
elem ents of that intended crim e. Booker v. State , 716 So. 2d 1064, 1068 (Miss. 1998). But
with no understanding of t he acts c o mp r i s i n g the i ntended crim e, a jury c annot accurately
de t e r mi n e whether t he def endant harbored the requisite intent. Thus, t he jury ’s

c o mp r ehension of the intended crim e is essential t o its ability to determ ine whether t h e

1 1def

endant com m itted b urglary

. I would not r e l i eve the trial court of its duty to “render[ ]

proper g uidance to the j ury via appropriately given jur y i nstructions” concerning t he intended
crim e in a burglary case. Harrell , 134 So. 3d at 270. DICKINSON, PRESIDING JUSTICE, DISSENTING: ¶19. Sim

pl y p u t , I d i s s e n t b ecause there is no w ay the jury properly could have f ound bey ond a reasonable doubt that Anthony W indless intended to c o mmi t a larceny without knowing the elem ents, under M ississippi law, o f l a rceny
. Trial courts are not required to
instruct juries on the m eaning of every word i n t h e E n g l i s h language. But the crim e of larceny is not u niversal. For instance, th e s t a t u t e s in som e states have broadened the

com m on-law elem ents of larceny —which, them selves, were never provided to the jury — to
include such other crim es a s f alse pretenses and em

b ezzlem ent, while others ( i n c l u d ing Mississippi) have not. 3 The abridged ninth edition of Black’s Law Dictionary def ines f if teen
dif f erent kinds of l arceny , each with its own def inition. 4 W hat is worse , M i s s issippi statutes—which, by the way , include no crim e c alled “larceny ”—list f ou r t een dif

f erent

statutes that m ake certain def ined larcenies. 5 W hich larceny s t a t u t e a p p lied in this case? Neither the jury

nor a single justice on t his C ourt knows. To assum e, as d oes the plurality , that the jury understood the t erm “larceny ” with no instruction f rom t he trial court is, in m y view, indef

ensible.

3 L a rcen y , B lack ’s L aw D ictio n ary (ab r . 9 th ed . 2 0 1 0 )

.
4 Id

.
5 M iss. C o d e A n n . § § 9 7 -1 7 -4 1

– 6 4 (R e v . 2 0 1 4 ).
1 2¶20. Jury instructions m u st “‘f airly announce the law of the case and create no injustice,’” and when the instructions, read as a whole, accom plish this task, “‘no reversible error will
be f ound.’” 6 B ut w hen a trial court f ails to instruct a jury on all the e lem ents of the charged
crim e, o r to provide any instruction, the error is per se r eversible error and this Court will not engage in harm less-error analy sis. 7 This is because

a d ecision o f the Mississippi Suprem e Court rendering it harm less f or a person in Mississippi to be convicted of a crim e with the Court, rather than the jury , deciding the suf

f iciency o f the evidence against the p erson im pairs, inf ringes upon, violates, and renders broken the right to a jury trial. 8 ¶21. The f

ailure of a def

endant i n a crim inal c ase to object to an i nadequate jury instruction

on the elem ents of the crim e charged will not prevent this C ourt f r om reviewing the adequacy
of the jury instructions. 9 In a c r i mi n a l p rosecution, t he trial court and the State b oth share responsibility f

or m aking sure “the jury is ‘f u lly and properly instructed on all issues of law
relevant to the case.’” 10 W h i le “the State is responsible f or m a k ing sure t he jury is instructed

on the essential elem ents of the crim e,” 11 t here can b e “ n o doubt that the trial court is

6 R u b en stein v. S

ta te , 9 4 1 S o
. 2 d 7 3 5 , 7 8 5 (M iss. 2 0 0 6 ) (q u o tin g C o lem a n v. S

ta te , 6 9 7 S o . 2 d 7 7 7 , 7 8 2 (M iss. 1 9 9 7 )).

7 H a rrell v. S t

a te , 1 3 4 S o
. 3 d 2 6 6 , 2 7 1

– 7 2 (M iss. 2 0 1 4 ).

8 Id
. at 2 7 4

.
9 Id
. a t 2 7 0 (“H arrell d id n o t b rin g th e o m issio n to th e atten tio n o f th e trial co u rt b y o b j e c tin g to th e S t ate’s in stru c tio n o r su b m ittin g an in stru c tio n o n t h e elem en ts o f ro b b ery
. N o n e th eless, th e issu e is n o t p ro c ed u rally b arred .”).

10 Id
. (q u o tin g K

o lb erg v. S ta te , 8 2 9 S o . 2 d 2 9 , 4 6 (M iss. 2 0 0 2 )).

11 H a rrell , 1 3 4 S o . 3 d at 2 7 0 (q u o tin g H u n ter v . S ta t e , 6 8 4 S o
. 2 d 6 2 5 , 6 3 5 (M iss. 1 9 9 6 )).
1 3ultim ately responsible f or r endering proper guidance to the jury via appropriately given jury instructions, even sua sponte.” 12 ¶22. Crim es have e lem ents. And som etim e s—as i n t h i s c a s e

— o n e o r mo r e o f t he
elem ents, them selves, m ay have elem ents. But whether t he e lem ent is of the crim e charged,

or is an elem ent of one o f the elem ents of the crim e, the jury m ust know t he elem ents in order
to f i nd the State has proved them bey ond a reasonable doubt. ¶23. In Harrell v. State , this Court f ound that the f

ailure to instruct the jury properly on the
elem ents of r obbery in a capital-m u rder case—where robbery was the underly ing
f elony —violated the def

endant’s right to a trial by jury a s g u a r a n t e e d by the Mississippi
Constitution a nd that the error was per se reversible. 13 T he trial court instructed the jury on
the elem ents of capital m urder but f

ailed t o g i v e a separate instruction on the elem ents of robbery

. 14 This Court overruled its prior opinion in Kolberg v. State and held that such errors are not subject to harm less-error review and are subject to autom atic reversal. 15 ¶24. This Court r e l i e d o n t h e strong l anguage in the Mississippi Constitution that “[ t]he right of trial by jury shall remain inviolate .” 16 So, in a crim inal case, it is essential that the

12 H a rrell , 1 3 4 S o . 3 d at 2 7 0 (q u o tin g K o lb erg , 8 2 9 S o . 2 d at 4 6 ).

13 H a rrell , 1 3 4 S o . 3 d at 2 6 7

.
14 Id
. at 2 7 0

.
15 Id
. at 2 7 2 (citin g K

o lb e rg , 8 2 9 S o . 2 d at 2 9 ).

16 H a rrell , 1 3 4 S o . 3 d at 2 7 1 (citin g M iss. C o n st. art. 3 , § 3 1 ).
1 4jury be instructed on every e lem ent of t he charged of f ens e , a n d w h e n the jury receives no such instruction, reversal is required. 17 ¶25. Mississippi C ode Section 97-3-19(1)(c) def ines t he crim e of capital m urder as “[ t ]he killing o f a hum a n b eing without the authority o f l aw
. . . [ w]hen done without any design to
ef f ect death by any person e ngaged in t he com m ission of

. . . burglary

. . . .” And Mississippi
Code Section 97-17-23(1) codif ies t h e c r i me of burglary and prescribes punishm ent f or “[ e]very person who shall be convicted of breaking and entering the dwelling house . . . of

a n o t h e r
. . . with the intent to c om m it som e c rim e therein

. . . .” “‘One of the essential
elem ents of the crim e of burglary is the intent to com m it a specific c rim e .’” 18 The S tate m ust give t he def

endant prior notice of that specif i c c rim e and of

f er proof t hat the def

endant
intended to com m it it, and the jury m ust f ind b ey o nd a reasonable d oubt that the def endant
intended to com m it that specif ic crim e. 19 I do not believe the jury could com plete this task without an instruction explaining the legal m eaning of larceny as charged by

the State. ¶26. Recently , this Court held that jury instructions f or burglary m

ust f airly i d e n t i f

y t h e
crim e the def

endant intended t o com m it, and when t he underly ing c rim e is larceny , the
instructions m

ust com ply with t his requ i rem ent “by identif y ing larceny as the crim e [ the

17 H a rrell , 1 3 4 S o . 3 d at 2 7 3

.
18 B o lto n v. S

ta te , 1 1 3 S o
. 3 d 5 4 2 , 5 4 4 (M iss. 2 0 1 3 ) (citin g D a n iels v . S ta te , 1 0 7 S o
. 3 d 9 6 1 , 9 6 4 (M iss. 2 0 1 3 )).

19 D a n iels , 1 0 7 S o . 3 d at 9 6 4

. 1 5def

endant] i ntended t o com m it.” 2 0 Last y ea r , i n C onner v. State , this Court said that the general lay u nderstanding of the term “larceny ” is that i t connotes stealing or thef t. 21 This
Court said that “the trial c ourt should i nstruct t he j ury on t he elem ents of t he intended crim e
in a b urglary trial; here, the jury instructions correc t l y i n s t r u c t ed the jurors that they could
f ind Conner guilty of burglary if t hey f ound he b roke and e ntered the victim ’s dwelling with
the intent to steal.” S o “the jury instructions f airly , although not p erf

e ctly , instructed the jury on the applicable law.” 22 ¶27. Justice C olem an has provided an excellent analy sis of why our decision in Conner is

no justif ication f or what the plurality does t oday

. For the reasons he states, and the reasons stated above, I respectf

ully dissent. KITCHENS AND KING, JJ., JOIN THIS OPINION

. COLEMAN, JUSTICE, DISSENTING: ¶28. Like today ’ s case, in Conner v. State , 138 So. 3d 1 43 (Miss. 2014), the def endant was charg e d w i t h b u r glary

. Id. at 146 (¶ 1). In that case, a m ajority of the Conner Court

– including m e – v oted to a f f irm the conviction. In a f

inal s im ilarity , at l east f

or m y p urposes,
in C onner , the def

endant raised on appeal the f ailure of t he trial judge to i nstruct the jury as

to the elem ents of larceny

. Id. at 149. I n af f irm ing, the Conne r C ourt relied on the trial

20 C o n n er v. S

ta te , 1 3 8 S o
. 3 d 1 4 3 , 1 4 9 (M iss. 2 0 1 4 ) (citin g D a n iels , 1 0 7 S o
. 3 d at 9 6 4 ).

21 C

o n n er , 1 3 8 S o
. 3 d a t 1 5 0 (citin g C o m m o n w ea lth v. L a w r en ce , 4 1 8 N

. E .2 d 6 2 9 , 6 3 1 (M ass. A p p . C t. 1 9 8 1 )).

22 C o n n er , 1 3 8 S o . 3 d at 1 5 0

. 1 6court’s instruction to the jury that “[ a]n inf erence of t he intent to steal m ay arise f rom proof
of the breaking a nd entering.” Id. at 149-150 (¶ 1 6). Specif ically , the Conner Court wrote
as f o llows:

W h ile the t rial court s hould instruct the j u r y o n t h e e lem ents of the intended crim e in a burglary t rial, h ere, the jury instruct i o n s c orrectly i nstructed the jurors t h at they could f

ind C onner guilty of burglary if they f ound he b roke and entered t he victim ’s dwelling with t he intent t o steal. W e f i n d t h a t the jury instructions f

airly , although not perf

ectly , instructed the jury on the a pplicable law; theref

ore, we af f irm Conner’s burglary

conviction.
Id. ¶29. The Conner Court held t he jury to have been f airly instructed because the t rial court

gave the above-quoted instruction o n t h e i nf erence of an intent to steal. W ithout the
inf erence instruction, the Conner Court apparently would have r eached a d if f eren t result.

It is not the jury instruction on burglary a lone that the Conner Court h eld to b e suf f icient, as suggested by the plurality in response to m y dissent, ( P l u r
. Op. a t ¶ 11), but the burglary
instruction plus the inf

erence i nstruction. No such inf erence instruction exists in p artnership
with t he burglary instruction i n today ’s case, and if the C ou r t w e r e to f ollow its logic and

1 7holding in Conner , which f or som e reason it does not, 23 t hen W indless’s conviction should be reversed. Accordingly and with respect, I dissent. DICKINSON, P.J., JOINS THIS OPINION.

23 T h e p lu rality w o u ld o f

f er a m istak e b y

th e C o n n er C o u rt in f

ailin g to an aly

ze th e issu e u n d e r a p lain erro r an a ly sis as th e reaso n
. (P lu r. O p
. a t ¶ 1 1 ). T h e p lu rality w o u ld b lam e th e m istak e o n m isp laced relian ce u p o n H a rrell v. S ta t e , 1 3 4 S o
. 3 d 2 6 6 , 2 7 0 (¶ 1 4 ) (M iss. 2 0 1 4 ), b u t w e h a v e h e l d i n s ev eral c ases th at erro rs i n j u r y in stru c tio n s are n o t p ro ced u rally b arred b ecau se th e r e sp o n s ib ility to o f f er co rrect in stru ctio n t o t h e j u ry lies, in th e en d , w ith th e t rial j u d g e a n d th e S tate. S ee K o lb e r g v . S t a te , 8 2 9 S o
. 2 d 2 9 , 4 6 (M iss.2 0 0 2 ), o v erru led o n o th er g ro u n d s b y S h a f f e r v . S ta te , 7 4 0 S o
. 2 d 2 7 3 , 2 8 2 (M iss. 1 9 9 8 ); H u n ter v. S ta te , 6 8 4 S o
. 2 d 6 2 5 , 6 3 6 (M iss. 1 9 9 6 ) (statin g th at “ [ i ] t is ru d im en tary th at th e j u ry m

u st b e in s tru cted reg ard in g th e elem en ts o f th e crim e w ith w h ich th e d ef en d an t is ch arg ed

. . . e v en th o u g h th e d ef en d a n t d id n o t p resen t an accep tab le in stru ctio n , th e S tate
w a s o b lig ated to d o so ”).
1 8