Zachary L. Harrington v. State of MississippiAnnotate this Case
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
ZACHARY L. HARRINGTON A/K/A ZACKARY
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
MOTION FOR REHEARING FILED:
HON. GEORGE B. READY
DESOTO COUNTY CIRCUIT COURT
WILLIAM F. TRAVIS
OFFICE OF THE ATTORNEY GENERAL
CHARLES W. MARIS
JOHN W. CHAMPION
CRIMINAL - FELONY
COUNT I - CONSPIRACY TO COMMIT
ROBBERY WITH A DEADLY WEAPON AND
SENTENCE OF FIVE YEARS TO RUN
CONCURRENTLY TO COUNT III; COUNT III ROBBERY WITH A DEADLY WEAPON AND
SENTENCE OF FIFTEEN YEARS TO RUN
CONSECUTIVELY TO COUNT IV; AND
COUNT IV - MANSLAUGHTER AND
SENTENCE OF TWENTY YEARS.
AFFIRMED - 11/18/2003
BEFORE SOUTHWICK, P.J., MYERS AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
Zachary Harrington was found guilty by a circuit court jury of conspiracy to commit robbery with
a deadly weapon, robbery with a deadly weapon, and manslaughter. He appeals arguing that the evidence
at trial was insufficient to prove guilt beyond a reasonable doubt, and the court erred when it refused to
grant a jury instruction for a lesser-included offense of robbery. We affirm.
STATEMENT OF FACTS
Harrington was friends with Eric Brandon Drake and Manrese Long. Drake was acquainted with
the deceased, Jackie Harwell. Long rented a room from Drake's family. Drake lived with him, and
Harrington lived nearby. On February 5, 1999, several calls were made from the Drake residence to
Harwell's pager. Harwell also made several calls to the Drake residence that day.
On this night, Harrington and Long were together in a gazebo near their residences in Memphis,
Tennessee. Harrington was carrying his stepfather's loaded pistol. A Lexus automobile arrived nearby and
the car's lights were then turned off. Harrington and Long approached the car. Drake was in the
passenger's seat and Harwell was in the driver's seat. Long and Harrington got into the car and Long
began driving. He drove into Mississippi and stopped along the road for a restroom break. All of the
occupants exited the vehicle. Long pointed a gun at Harwell, then reached into Harwell's pockets and took
approximately $340. Drake then shot Harwell in the head. Harrington, Long, and Drake left Harwell in
the middle of the road. They returned to Memphis in Harwell's Lexus. The three men split the money
taken from Harwell.
Harwell's lifeless body was discovered lying in the road the next morning by law enforcement
officers. An autopsy was performed and it was determined that he died from a single gunshot wound to
the side of his head. Officers retrieved the gun from Harrington's stepfather. A crime lab expert testified
that the gun matched the casing found at the scene and also the projectile removed from Harwell's body.
Harrington gave a statement admitting that he was with Long that night. He acknowledged that he
was carrying his stepfather's gun, but said it was for his own protection. When the Lexus arrived,
Harrington stated that both he and Long recognized Drake and "hopped in the car." He stated that Harwell
saw the gun he was carrying when he got into the car. Then, they drove to Mississippi, stopped the car
and everyone got out. He alleged that Drake shot Harwell and Long took money from him. He admitted
that the three then split the money. He, Drake and Long allegedly decided to rob Harwell "before the man
was shot after he got out of the car." At trial, he testified that he pleaded with Drake not to kill Harwell and
only took the money under duress. He testified that he was not part of the conspiracy.
At trial, Long testified for the State. His story was that he and Harrington walked to the Lexus.
Harrington ordered the occupants to "stick them up." He testified that they were just staging a robbery
without Harwell's knowledge. They pretended to rob Drake, who was in the car with Harwell. Then, they
all got into the car. Harrington's gun was displayed at some point prior to their reaching Mississippi. Long
testified that they "were supposed to rob [Harwell] and take his car." Once they returned to Memphis, they
tried to remove fingerprints from the car. There were two sets of car keys and Long took one set and
Harrington took the other.
Harrington was tried and convicted of conspiracy to commit robbery with a deadly weapon,
robbery with a deadly weapon, and manslaughter. This is his appeal.
1. Sufficiency of Evidence
Harrington claims that there was not sufficient evidence presented at trial to convict him. When the
sufficiency of the evidence is challenged, all of the evidence is considered in the light most consistent with
the verdict. The prosecution is given the benefit of all inferences that may be drawn from the evidence
presented. McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987). The verdict will not be reversed
unless the evidence with respect to one or more of the elements of the offense charged reveals that no
reasonable juror could have determine the defendant was guilty. Alexander v. State, 759 So. 2d 411, 421
(¶36) (Miss. 2000).
Harrington asserts that the prosecution failed to prove that he was involved in a conspiracy with
Long and Drake. He claims that the verdict finding him guilty of robbery with a deadly weapon and
manslaughter depended on the existence of a conspiracy. Conspiracy requires that two or more persons
agree to commit a crime. Miss. Code Ann. § 97-1-1 (Rev. 2000). Each person involved in the conspiracy
must know that "they are entering into a common plan and knowingly intend to further its common
purpose." Mitchell v. State, 572 So. 2d 865, 867 (Miss. 1990). Circumstantial evidence may prove the
existence of and membership in a conspiracy. Harris v. State, 731 So. 2d 1125, 1132 (¶42) (Miss.
In evaluating the evidence, we find that Harrington was a friend both of Long and Drake. He lived
near them. Drake knew Harwell. Harrington was with Long on the night of the crime and was carrying
a loaded gun. Drake and Harwell later arrived at this same location and Harrington and Long entered the
car. Long took Harwell's money at gunpoint and it was divided equally. Drake shot and killed Harwell
with the gun Harrington brought with him that night. Long testified that they had planned to stage a robbery
of Drake, rob Harwell, and then take his car. In Harrington's own statement, he admits that they decided
to rob Harwell.
Based on all the evidence presented at trial and the reasonable inferences arising from it, the jury
could determine that there had been a conspiracy between these three men.
2. Jury Instructions
Harrington claims that the circuit court erred when it failed to include jury Instruction D-11 on the
lesser-included offense of robbery. This was an instruction to allow a guilty verdict for simple robbery, an
offense that does not require the exhibition of a deadly weapon. Miss. Code Ann. § 97-3-73 (Rev. 2000).
The jury was only given an instruction for robbery with a deadly weapon.
Harrington claims that the prosecution failed to show that he exhibited the gun to Harwell and it was
therefore unfair to instruct the jury only on armed robbery rather than also on simple robbery. Harrington
relies on a case that found that the defendant should have been convicted for simple robbery rather than
robbery with a deadly weapon. Gibby v. State, 744 So. 2d 244 (Miss. 1999). In Gibby, no one involved
was ever shown to have possessed a gun. The evidence was that a "hard object" had been pressed into
the robbery victim's ribs. Id. at 245. That is not our case.
Participation in an armed robbery is sufficient to make one a principal in the crime regardless of
whether that participant was the person holding the weapon. Moore v. State, 493 So. 2d 1295, 1298-99
(Miss. 1986). A gun was used in the robbery, and it was even Harrington's gun. There is no factual basis
to support an instruction that a robbery without a deadly weapon occurred. Even if Harrington was not
the person who actually was holding the weapon, he participated in the robbery.
¶15. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT OF CONVICTION
OF COUNT I CONSPIRACY TO COMMIT ROBBERY WITH A DEADLY WEAPON AND
SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY TO COUNT III; COUNT III
ROBBERY WITH A DEADLY WEAPON AND SENTENCE OF FIFTEEN YEARS TO RUN
CONSECUTIVELY TO COUNT IV; AND COUNT IV MANSLAUGHTER AND SENTENCE
OF TWENTY YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AND FINE OF $1,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO DESOTO COUNTY.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.