Victim’s family still pushing for death penalty

State murder charges still pending

By Terri Flagg -

Bennie Puckett, of Ararat, Virginia, snapped this photo of Donald Claude Arnder while visiting the North Carolina Zoo in Ashboro. "That was the smile he wore every day at the store," Puckett said.

This photograph of Donald Claude Arnder's grave stone at Flat Ridge Baptist Church Cemetery appears on an ancestry website.

Donald Claude Arnder had his eye on retirement four years ago at age 58.

Then he was gunned down in his Mount Airy convenience store on May 25, 2012.

“He was really working hard, really looking forward to enjoying the fruits of his labor, to enjoy what he was working for,” said Bennie Puckett, Arnder’s close friend of 20 years.

“He never got to do that because of what those folks done.”

Last month, those folks, Joshua Robert Berry, 32, Emanuel William Foster, 27, and Sarah Lynn Looney Berry, 28, of Bluefield, West Virginia, pleaded guilty in a Virginia federal court to charges associated with a 2012 multi-state crime spree that ended with the shooting death of Arnder.

They await sentencing hearings scheduled for fall.

Foster and Joshua Berry face a minimum of 32 years to a maximum of life imprisonment, and Sarah Berry, Joshua’s wife, faces 10 years to life, according to a spokesperson for the U.S. Attorney’s Office.

Local law enforcement and federal prosecutors have indicated their satisfaction with the plea agreement.

“Justice has been served,” U.S. Attorney John P. Fishwick Jr. said in a statement.

The victim’s family, however, feels differently.

Arnder’s nephew, Tully Welborn, of Richmond, Virginia, has been actively involved with the pursuit of justice for his uncle.

“I can assume if it was one of their family members they wouldn’t be making those comments,” Welborn said. “I don’t think justice has been served yet.”

“Yet” being the operative word.

In Surry County, indictments were handed down Oct. 8, 2012, charging Foster and the Berry couple with first-degree murder, felony conspiracy to commit robbery with a dangerous weapon and felonious attempted robbery with a dangerous weapon.

Sarah Berry had additionally been charged with misdemeanor accessory to murder after the fact.

The state filed a notice of its intention to seek the death penalty in documents dated Oct. 12, 2012.

According to court documents, those state charges are still pending. Foster, Joshua Berry and Sarah Berry all scheduled to appear in Surry County Superior Court on July 6.

U.S. Attorney Anthony P. Giorno confirmed that “all the prosecution options remain open,” and that the resolution of the trio’s federal cases, “doesn’t impact the right of the state to go after them.”

Welborn said he expects the Surry County District Attorney’s Office to follow through with its prosecution.

Whether or not they will do so, especially if the federal judge issues life sentences, is anyone’s guess.

“What we wanted was the death penalty,” Welborn said, speaking for himself, Puckett and also Arnder’s sister and brother-in-law.

“I don’t care what the outcome of the (federal) sentencing is. They still have state charges, period.”

Frustration with local prosecution

Welborn said that the District Attorney’s office had been in regular communication with the family during the initial stages of the case.

While the prosecution seemed to be moving along at first, the case files don’t indicate much action after October 2012.

Exceptions include discovery motions early on and an August 2013 motion to continue a Rule 24 hearing.

One appointed counsel withdrew in September 2013, and another was released in November 2014.

The office did at first provide explanations for the delays to Welborn.

“First it was forensics, then it was each had a different attorney then there was a new attorney and that person needed time,” he said. “It was just one thing right after another.”

“The whole thing has dragged on for so long. It’s almost like an open wound,” Puckett said.

At some point, Welborn said the District Attorney’s communication with family dried up.

On June 2, 2015, The News ran an article that looked into the status of the case that, after three years, had yet to be tried.

Surry County District Attorney Ricky Bowman had explained at the time that the delays were due to logistical challenges involved with the appointed capitol defense attorneys and the multi-state nature of the crimes.

After reading the article, Welborn wrote a letter to the editor which was published as an op-ed piece on June 4, 2015.

“It may be ‘ok with police’ to be comfortable with the delays. However, it is not ‘ok with the family’ of the victim. Detective Brad Quesinberry’s statement that ‘we know we’ve done the right things and we’ve kept the (victimized) families informed – there’s been no issues with that’ is untrue. We have not been kept apprised of the case by the Mount Airy Police Department nor Surry County District Attorney Ricky Bowman,” he stated.

Welborn also noted in his letter that he had received a call from the office in March 2015 from a representative asking if the U.S. Attorney’s Office had been in contact with the family, which at that point, they had not.

The family spokesman had thought the local district attorney might be in contact after the op-ed ran.

The response – “crickets,” Welborn said.

However, he was contacted by the U.S. Attorney’s Office from the Western District of Virginia, which led to a much better experience.

“They are men of their word,” he said of Giorno and U.S. Attorney Zachary T. Lee.

While the federal prosecutors did not seek punishments as harsh as the family desired, “We were in constant communication with Tony about whatever the various counts were,” and about the minimum and maximum sentences for each, he said.

“They were straight up with me.”

In the end, some justice was better than no justice. The family members were present in the courtroom during the two plea hearings in May.

“We were not making any headway with Ricky Bowman’s office,” Welborn said. “It was all words and no action. We wanted action.”

Giorno said of the local office that “there was no indication that they were unwilling to do it.”

The U.S. attorney complimented the investigative work of the Mount Airy police.

“They were the ones who put in the leg work,” he said, describing the Surry County District Attorney’s Office as “gracious.”

“It was a very close cooperation,” he said. “Most people don’t always welcome the feds with open arms.”

No action, no words

Repeated attempts to contact Bowman for this article were unsuccessful.

A representative from the office indicated that as the cases are still pending in Surry County, the D.A. was unlikely to respond.

The legal system is very complex; law enforcement and prosecutors do a lot of work that must stay behind the scenes and involves a lot of factors that vary case to case.

So while seeming inaction may very well be in the best interests of public safety and justice, when the public and the victimized family are given no information at all, both could assume the worst.

Giorno confirmed that while a district attorney is not obligated to speak to the press, he or she is welcomed to speak on matters of public record.

“If the public has some misconceptions about what the charges are, then I think that’s something that we need to clear up, based on public records, about what’s happening,” he said.

For example, the U.S. Attorney explained the federal indictments against Foster and the Berry couple allege what appears to be a lesser charge than what they face in Surry County, first-degree murder.

According to a statement released by the office, the trio pleaded guilty to “using a firearm in the commission of an armed robbery that resulted in the death of another person.”

However, the indictments and corresponding plea agreements allege the three defendants “caused the death of a person through the use of a firearm and that killing being considered murder, [and not manslaughter] as defined in 18 U.S.C. § 1111.”

Giorno said that charge was sought because “the murder did not occur in our jurisdiction. I don’t have a basis for a murder charge like North Carolina does.”

The federal jurisdiction derives from the conspiracy charges, which address multi-state nature of the robberies and attempted robbery, during which the murder occurred.

“We don’t have a direct path to murder,” Giorno said, but “We are holding them accountable for murder even though it did not occur in this state.”

In terms of sentencing, the charge does potentially carry the same maximum punishment as an actual murder charge, meaning, the federal prosecutors could have, and may have, sought the death penalty.

As for the decision not to seek the death penalty, Giorno said in federal cases all decisions to seek or not to seek the death penalty are personally made by the U.S. Attorney General.

The process, including whether or not the U.S. Attorney recommended the death penalty, is confidential, Giorno said, according to U.S. Department of Justice policy.

The firearm charge does, however, lower the mandatory minimum sentence to include any term of imprisonment.

The U.S. Attorney’s Office plea agreement did allow for mandatory minimum sentences shorter than life imprisonment on each case.

“I think this one was fair,” said Giorno, readily admitting that plea bargains are preferred to going to trial.

“They’re expensive and they’re risky,” regardless of how strong a case may seem at the outset, he said.

An exceptional human being

After Arnder’s death, more than 100 people attended a candlelight vigil held in his honor.

“This was someone that was special to a lot of people,” Puckett said. “He was just an exceptional human being.”

Arnder had started working in his early teens and had worked two jobs the majority of his life, supporting his mother until her death, said Welborn, who spent the summer after his high school graduation with his uncle in Mount Airy.

During that time, the teenager enjoyed driving Arnder’s classic cherry red Mustang and working with him at the shop.

Puckett said Arnder had saved for 25 years to buy Eddie’s Zip Foods across U.S. 52 from Mayberry Mall and then operated it for another five years, running it more like a country store than a convenience shop, carving a special place in the community’s heart.

“He knew everybody, everybody knew him,” he said. “It was kind of like a family.”

Puckett himself had been a customer when the two became friends, with Puckett eventually working at the store after Arnder became owner.

“He genuinely cared about his customers,” Puckett said. “He was always kind, always asked you about your day.”

If Arnder didn’t see a regular customer in a few days, he would inquire relatives about their well being.

Both men recalled how Ardner would regularly give folks what they needed or let them have it on credit, whether it was food, a cool drink on a hot day or a pack of cigarettes.

“Some people paid him back, some people never did,” said Welborn.

Referring to his friend’s well known character, Puckett pointed out the sick irony of the crime.

“If they went into the store and just asked him, he would have given them whatever they wanted,” Puckett said. “He would have helped them. What happened didn’t have to happen.”

“Anytime someone is murdered is a bad thing,” he continued. “This wasn’t just anybody. This is a person you don’t meet every day. Maybe once in a lifetime. It’s a loss for the entire community.”

Welborn said he will continue his pursuit of the death penalty for his uncle’s killers.

“I owe it to him,” Welborn said. “I loved him. He was my uncle. … The least I could do is to make sure the people who committed this heinous crime are punished to the full extent of the law.”

Puckett said even life in prison would be an unfair punishment.

“People adjust to prison over time,” he said. “They still can have contact with family. We’ll never get another letter from Don. We’ll never speak to him again. I would give anything for a five-minute telephone call, a letter, anything. The only thing we have to visit is a stone in a graveyard.”

Bennie Puckett, of Ararat, Virginia, snapped this photo of Donald Claude Arnder while visiting the North Carolina Zoo in Ashboro. "That was the smile he wore every day at the store," Puckett said. Puckett, of Ararat, Virginia, snapped this photo of Donald Claude Arnder while visiting the North Carolina Zoo in Ashboro. "That was the smile he wore every day at the store," Puckett said.

This photograph of Donald Claude Arnder’s grave stone at Flat Ridge Baptist Church Cemetery appears on an ancestry website. photograph of Donald Claude Arnder’s grave stone at Flat Ridge Baptist Church Cemetery appears on an ancestry website.
State murder charges still pending

By Terri Flagg

Reach Terri Flagg at 415-4734.

Reach Terri Flagg at 415-4734.

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