Carl Alton Brady v. State of Mississippi, 337 So.3d 218

On Oct. 28–29, 2019, Carl Brady was found at a neighbor’s house at night with his hands on a daughter’s bedroom window; vehicle doors and a hatch were open and items from the vehicles were scattered. He was arrested and items belonging to the homeowner were found on him.
Brady was indicted on two counts of burglary of an automobile and one count of attempted burglary of a dwelling (Count III alleging he attempted to break into and enter a bedroom window).
Pretrial motion to quash Count III for failure to allege an overt act was denied; Brady was convicted of both automobile burglaries and the lesser-included attempted willful trespass, sentenced, and post-trial motions were denied.
At trial a recorded interview in which Brady admitted methamphetamine use was admitted without objection; Brady also testified about a ‘‘vision’’ from God and denied touching the window but admitted taking items from the vehicles.
Brady appealed arguing (1) Count III lacked an overt-act allegation and should be quashed, (2) the court should have sua sponte excluded evidence of other bad acts (meth use), and (3) the court erred in refusing jury instruction D-11 (limiting intent to temporary use).

Issue	Brady's Argument	State's Argument	Held
Sufficiency of Count III (overt act)	Count III fails to allege an overt act; "window" is a noun, not an overt act	Indictment charged attempt to break into and enter a bedroom window—this alleges conduct toward commission	Affirmed: indictment sufficient; attempting to break and enter a window constitutes an overt act putting defendant on notice
Admission of meth/use evidence; court's duty to act sua sponte	Evidence of meth use was irrelevant and highly prejudicial; court should have excluded it sua sponte (plain error)	Defense waived by failure to object; no legal rule requires court to suppress sua sponte; any error was not prejudicial given strong evidence	Affirmed: no plain error; waiver applies; ineffective-assistance claim preserved for PCR because record insufficient
Refusal of proposed jury instruction D-11 (temporary use not larceny)	Instruction necessary to explain defense theory (no intent to permanently deprive)	Larceny elements adequately covered in other instructions; burglary requires only intent to commit some crime, not proof of larceny elements	Affirmed: refusal not an abuse; existing instructions fairly stated law and covered intent issue

Maxie v. State, 330 So. 2d 277 (Miss. 1976) (indictment for attempt must allege intent and an overt act)
Ford v. State, 218 So. 2d 731 (Miss. 1969) (same foundational statement of attempt elements)
Hawkins v. State, 11 So. 3d 123 (Miss. Ct. App. 2008) (indictment alleging attempt to break into an automobile "by breaking out a window" held sufficient to notify defendant)
Durr v. State, 446 So. 2d 1016 (Miss. 1984) (indictment void where no overt act toward the attempt was alleged)
State v. Lindsey, 32 So. 2d 876 (Miss. 1947) (alleged overt acts held too remote or not solely germane to the charged attempted offense)
Strickland v. Washington, 466 U.S. 668 (1984) (establishing two-part ineffective-assistance standard)