361 So.3d 673
Miss. Ct. App.2022Background
- Late-night domestic disturbance: Piccola Thomas called 911 saying Jerry Beale (her sister’s boyfriend) was intoxicated, armed, and threatened to kill police if they were called.
- Officers Colin Hall, Mary Fite, and Brantson Vuncannon responded; they encountered Beale shirtless with a .40-caliber pistol in his waistband.
- Officers deployed tasers; after being tased once, Beale drew his pistol and fired at the officers; all three retreated and later secured Beale after additional tasings and backup.
- Crime scene yielded three .40-caliber shell casings and Beale’s gun; all three officers testified they believed he was shooting to kill them.
- Indicted for three counts of attempted murder, Beale was convicted for attempted murder of Officers Hall and Fite, acquitted as to Vuncannon; sentenced to 35 years with five years post-release supervision; Beale appealed.
- Court of Appeals affirmed the convictions, addressing (1) indictment sufficiency under the amended attempt statute, (2) alleged constructive amendment via jury instructions, and (3) admissibility of Officer Hall’s repetition of Piccola’s statements.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Beale) | Held |
|---|---|---|---|
| Whether an attempted-murder indictment under §97-1-7(2) must allege an overt act | §97-1-7(2) uses “an act” and the word “attempt,” and thus an overt-act description is not required; prior case law (Morton/Pickett) supports sufficiency | Indictment defective for failing to describe the overt act committed toward the attempted murders, depriving Beale of notice | Indictment sufficient; §97-1-7(2)’s language does not require alleging an overt act; affirmed |
| Whether jury instructions 8 and 9 constructively amended the indictment by using more specific language (“shoot at”) | Instructions correctly stated essential elements of attempted murder; “shoot at” does not materially alter elements | Instructions added specificity not in the indictment and thereby constructively amended/varied the indictment prejudicially | No constructive amendment; variance was not material or prejudicial; issue procedurally barred for failure to object, affirmed |
| Whether Officer Hall’s testimony repeating Piccola’s out-of-court statements was inadmissible hearsay / violated Confrontation Clause | Statements were admissible to explain officer’s investigative steps; even if testimonial, harmless because Piccola testified and 911 dispatcher/recordings were played | Admission of the out-of-court statement was hearsay and (if testimonial) violated confrontation rights | Admission was within trial court’s discretion and not reversible error; alternative admissibility (excited utterance) and opportunity for cross-examination made any error harmless |
Key Cases Cited
- Morton v. State, 246 So. 3d 895 (Miss. Ct. App. 2017) (held that an indictment using the word “attempt” sufficiently notifies defendant of attempted-murder charge under amended statute)
- Pickett v. State, 252 So. 3d 40 (Miss. Ct. App. 2018) (treated indictments that used “attempt” as providing notice and discussed requisite elements for attempt)
- Green v. State, 269 So. 3d 75 (Miss. 2018) (discussed overt-act element in attempt jurisprudence and the distinction between preparation and overt acts)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause framework for testimonial statements)
- McGilvary v. State, 290 So. 3d 1273 (Miss. Ct. App. 2020) (procedural bar where defendant failed to object to jury instructions at trial)
- Neal v. State, 15 So. 3d 388 (Miss. 2009) (instructional standards and the requirement that jury instructions accurately state the elements of the offense)