252 So. 3d 40
Miss. Ct. App.2018Background
- On Oct. 31, 2013, garbage workers Clark, Culpepper, and Taylor were on a route in Meridian; Clark recognized Willie Pickett as a man he had a prior dispute with.
- Willie ran toward the truck with a pistol, threatened Clark, and fired multiple shots at the truck; Clark hid and was not struck.
- After Willie stopped shooting, Jacarrus Pickett appeared, told Willie Clark was still alive, and fired about fifteen rounds at Clark; Clark escaped uninjured.
- Thirteen shell casings and eight bullet holes were recovered near the truck; eyewitnesses testified shots were aimed at Clark.
- Jacarrus and Willie were jointly convicted in Lauderdale County Circuit Court of attempted first-degree murder and sentenced (Jacarrus: 25 years, 10 suspended; Willie: 30 years, 10 suspended); both appealed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Jacarrus/Willie) | Held |
|---|---|---|---|
| Whether the court properly allowed an ore tenus amendment to the indictment inserting the word "at" (changing "shooting him" to "shooting at him") | Amendment corrected a clerical/formal error and reflected the proof at trial; did not alter substance | Amendment materially altered the indictment and prejudiced defense by changing the charged act | Amendment permitted; no prejudice — amendment was to form, mirrored trial statements, defendants were not unfairly surprised |
| Whether the amended indictment sufficiently charged the elements of attempted murder | Indictment alleged deliberate design to effect death and the overt act of "shooting at" Clark — meets attempt pleading requirements (intent + overt act) | "Shooting at" Clark, if accomplished, would be aggravated assault, not first-degree murder; indictment fails to charge an act which, if accomplished, would constitute murder | Indictment sufficient: charged intent (deliberate design) and overt act (shooting at) as required for attempt convictions |
| Whether the attempted-murder jury instruction omitted required statutory elements | Instruction tracked statute by requiring deliberate design, attempt, shooting at victim, and lack of lawful justification | Instruction insufficient because "shooting at" is not an act that, if accomplished, would be first-degree murder | Instruction proper: facts (approaching with guns, threats, firing at victim) supported that shooting at victim with deliberate design would, if accomplished, be murder |
| Whether Miss. Code § 97-1-7(2) (attempted murder) is unconstitutionally vague/overbroad or violates the Eighth Amendment | Statute is facially valid; prosecutions under different statutes with different penalties are permissible | Statute is vague/overbroad and cruel/unusual because it overlaps with attempted aggravated assault and imposes greater penalties | Statute upheld: not unconstitutionally vague or overbroad under facts; sentencing differential does not violate Eighth Amendment |
| Whether verdicts were against weight or sufficiency of the evidence | Eyewitness testimony and physical evidence (casings, bullet holes) support convictions beyond reasonable doubt | Defendants challenged sufficiency/weight given no one was actually shot | Convictions affirmed: evidence, viewed favorably to State, was sufficient and verdicts not against overwhelming weight |
Key Cases Cited
- Williams v. State, 131 So. 3d 1174 (Miss. 2014) (standard of review for amendment of indictment)
- Patton v. State, 109 So. 3d 66 (Miss. 2012) (distinguishing amendments of form vs. substance; test for prejudice)
- Spearman v. State, 58 So. 3d 30 (Miss. Ct. App. 2011) (elements required to prove attempt and what must be charged)
- Peyton v. State, 286 So. 2d 817 (Miss. 1973) (attempted murder upheld where overt acts toward murder were shown)
- Hye v. State, 162 So. 3d 750 (Miss. 2015) (prosecutorial choice of statute; penalty differences do not invalidate statute)
- Bush v. State, 895 So. 2d 836 (Miss. 2005) (standards for sufficiency and weight-of-evidence review)