Spearman v. State
| Docket Number: | 2008-KA-01684-COA Linked Case(s): 2008-KA-01684-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-02-2010 Opinion Author: Griffis, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Attempted burglary of building - Right to testify - Defective indictment Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Barnes, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Dissenting Author : Irving, J., without separate written opinion. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-19-2008 Appealed from: Bolivar County Circuit Court Judge: Al Smith Disposition: CONVICTED OF ATTEMPTED BURGLARY OF A BUILDING AND SENTENCED TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TWO YEARS TO SERVE AND THREE YEARS SUSPENDED District Attorney: Laurence Y. Mellen Case Number: 2008-001-CR2 |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | KEITH SPEARMAN |
HUNTER NOLAN AIKENS |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE | ||
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| Topic: | Attempted burglary of building - Right to testify - Defective indictment |
| Summary of the Facts: | Keith Spearman was convicted of attempted burglary of a building and sentenced to five years, with two years to serve and three years suspended. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to testify Spearman argues that he was denied his constitutional right to testify because the record clearly and unequivocally indicates that Spearman wished to testify, yet the defense rested its case without any such testimony from Spearman. It is clear from the record that the circuit judge was trying to get a definitive answer as to whether Spearman wished to testify. When Spearman’s attorney initially announced that Spearman would not testify and Spearman stated that he would testify, the circuit judge allowed Spearman to confer with his attorney to reconcile the different answers. Spearman’s attorney again stated that Spearman would not testify. While the record indicates that Spearman again stated that he would testify, the actions of the circuit judge and the defendant’s counsel indicate otherwise. The circuit judge did not question Spearman further in order to ascertain whether Spearman was certain he wanted to testify against his attorney’s advice. Instead, the trial proceeded as if Spearman had stated that he would not testify. The record as a whole indicates that the circuit judge and the parties understood that the defense would rest without calling any witnesses, including Spearman. Thus, Spearman’s argument is inconsistent with the record. There is nothing in the record to indicate that Spearman was denied his right to testify other than Spearman’s statement that appears to be an error in the transcript. Issue 2: Defective indictment Spearman argues that his indictment was fatally defective because it failed to list an essential element of attempt; specifically, he failed to consummate the commission of the crime attempted. It is the law of this state that the intent to commit a crime plus any slight act toward its consummation is sufficient in law to constitute the commission of an attempted crime. Here, the specific crime of burglary of a building is listed in the indictment. The overt act is also listed in the indictment. The use of the word “attempt” gave Spearman sufficient notice that the State would prove that the crime was not successfully committed. |
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