Spearman v. State
58 So. 3d 30
| Miss. Ct. App. | 2011Background
- Spearman was convicted of attempted burglary of a building and sentenced to five years with two to serve and three suspended.
- The State moved for rehearing; the court granted rehearing and substituted this opinion, reversing and remanding.
- Spearman argued (1) denial of right to testify and (2) fatally defective indictment for failing to charge an essential element.
- The trial showed police observed Spearman attempting to cut a lock on a walk-in cooler and fleeing; Spearman was arrested.
- A Culberson warning was required to be recorded when a defendant does not testify; the record here was ambiguous, leading to reversal for a new trial.
- The court also addressed whether the indictment omission of the third element of attempt invalidated the charge, concluding it did not and the indictment provided sufficient notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to testify denied? | Spearman asserts his right to testify was not properly recorded. | State contends record correctly reflects waiver or no waiver given the proceedings. | Remand for new trial; right to testify not adequately protected. |
| Indictment flawed for missing third element | Indictment failed to charge consummation of the attempted burglary. | Indictment sufficient under precedent; notice of intent to commit crime given by 'attempt' language. | Indictment held sufficient; no fatal defect. |
Key Cases Cited
- Culberson v. State, 412 So.2d 1184 (Miss. 1982) (requirement to record defendant's waiver of right to testify; presumption against waiver)
- Fannings v. Mississippi, 997 So.2d 953 (Miss.Ct.App.2008) (procedural bar but discusses Culberson warnings and ineffective assistance implications)
- Johnson v. Zerbst, 304 U.S. 458 (U.S. 1938) (presumption against waiver of fundamental rights)
- McGowan v. State, 541 So.2d 1027 (Miss.1989) (elements of attempt: intent, overt act, failure to consummate)
- Neal v. State, 936 So.2d 463 (Miss.2006) (notice requirements for attempt indictments; two or three elements depending on case)
- Hawkins v. State, 11 So.3d 123 (Miss.Ct.App.2008) (indictment may omit third element of attempt; notice sufficiency doctrine)
- Rock v. Arkansas, 483 U.S. 44 (U.S. 1987) (defendant's right to testify as fundamental)
- Ford v. State, 218 So.2d 731 (Miss.1969) (established baseline for elements and notice in attempt)