Spearman v. State
| Docket Number: | 2008-KA-01684-COA Linked Case(s): 2008-KA-01684-COA |
|
| Court of Appeals: |
Opinion Link Opinion Date: 03-15-2011 Opinion Author: Roberts, J. Holding: Reversed and remanded. |
|
| Additional Case Information: |
Topic: Attempted burglary of building - Waiver of right to testify - M.R.A.P. 10(e) - Defective indictment Judge(s) Concurring: Lee, C.J., Irving, P.J., Griffis, P.J., Barnes and Ishee, JJ. Dissenting Author : Carlton, J. With Separate Written Opinion Dissent Joined By : Myers, J. Maxwell, J. in part. Procedural History: Motion for Rehearing Nature of the Case: CRIMINAL - FELONY |
|
| 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 |
|
| Note: | The motion for reharing is granted, and the previous opinion of this Court is withdrawn with this opinion subsituted in lieu thereof. The previous opinion of the Court of Appeals was handed down on 03/02/2010. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Keith Spearman |
HUNTER NOLAN AIKENS |
|
|
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Attempted burglary of building - Waiver of right to testify - M.R.A.P. 10(e) - Defective indictment |
| Summary of the Facts: | The motion for rehearing is granted, and this opinion is substituted for the original opinion. 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 indicates that Spearman wished to testify, yet the defense rested its case without any testimony from Spearman. Pursuant to the Court’s authority under M.R.A.P. 10(e), the case was remanded to the trial court for an evidentiary hearing to determine whether the record accurately reflected Spearman’s decision to testify. No witness testified that the record was incorrect. To the contrary, each witness testified that the record was correct. Because of the ambiguous record, the Court is compelled to reverse and remand for a new trial. After Spearman’s attorney announced that Spearman did not wish to testify, the circuit judge questioned Spearman about this decision. First, Spearman responded: “I’ll take the stand. I don’t mind.” He then conferred with his attorney again. Spearman was questioned by the circuit judge a second time. The record indicates that Spearman stated: “I’m going to testify.” 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. To presume that Spearman waived his right to testify by his failure to speak up when his attorney announced, “Defense rests,” without calling him as a witness is indulging in a presumption of waiver. The presumption must be against waiver. Thus, the case is remanded for a new trial. 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. The three elements of the crime of attempt are: an attempt to commit a particular crime, a direct ineffectual act done toward its commission and the failure to consummate its commission. Spearman correctly states that his indictment failed to include language regarding the third element of attempt – Spearman’s failure to consummate the crime of burglary of a building. However, the failure to charge the third element of attempt does not make an indictment defective. Here, the specific crime of burglary of a building is listed in the indictment. The overt act – cutting the lock off of the Pickled Okra walk-in cooler – 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. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
