Smith v. State, 106 So. 3d 877

Smith was convicted of aggravated assault and possessing a firearm as a felon; Nesho-ba County Circuit Court sentenced him to 20 years, 5 years, and a 10-year firearm-use enhancement.
The enhancement under section 97-37-37(2) was imposed to run consecutively to the aggravated-assault sentence.
The jury found beyond a reasonable doubt that Smith used a firearm to commit aggravated assault and that he was a felon, supporting the enhancement claim.
The victim identified Smith, aided by a distinctive tattoo visible through his mask, and forensic evidence showed gunshot residue and matching footprints.
Smith testified at trial but did not testify; he made three statements to investigators, the last of which was a confession.
On appeal, Smith challenged the sentence enhancement, the attempted-murder instruction, and the admissibility of his statements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence enhancement was properly jury-determined	Smith argues jury custody did not decide the enhancement	State contends all enhancement elements were charged, submitted, and decided by the jury	Issue meritless; enhancement supported by jury findings
Whether the court should have given an attempted-murder instruction	Smith sought a lesser-included offense instruction to reduce sentence	State argues record cannot support a separate attempt conviction without undermining the assault	Instruction not warranted; evidence could not support guilty of attempted murder without guilty of aggravated assault
Whether Smith's second and third statements were admissible after right to counsel attached	Right to counsel was violated because statements followed initial appearance and counsel was not present	Smith initiated contact with authorities, which allows interrogation after attaching right to counsel	Statements properly admitted; Smith initiated contact and waiver did not violate rights

Apprendi v. New Jersey, 530 U.S. 466 (Supreme Court 2000) (any fact increasing penalty beyond maximum must be submitted to a jury)
Brown v. State, 995 So.2d 698 (Miss. 2008) (procedural bar; substantial increases in sentence may implicate due process)
Mayers v. State, 42 So.3d 33 (Miss. Ct. App. 2010) (support for jury-determined enhancement findings)
Harris v. State, 99 So.3d 169 (Miss. 2012) (habitu al-offender context; enhancement unavailable when another provision sets minimums)
Beckham v. State, 556 So.2d 342 (Miss. 1990) (State may prosecute under different penalties if clearly chosen; no right to complain)
Cumbest v. State, 456 So.2d 209 (Miss. 1984) (quoting that State's charging choice must be clear and unequivocal)
Montejo v. Louisiana, 556 U.S. 778 (Supreme Court 2009) (post-arraignment waivers of counsel; suspects may need clear waiver after right attaches)
Gouveia, 467 U.S. 180 (Supreme Court 1984) (Sixth Amendment right to counsel attaches at custodial interrogation)
Edwards v. Arizona, 451 U.S. 477 (Supreme Court 1981) (initiated contact rules; indicates that police-initiated interrogations require counsel)