Brady v. State

• Decision Date: 21 April 2022
• Docket Number: 2021-KA-00163-SCT
• Citation: 337 So.3d 218
• Parties: Carl Alton BRADY v. STATE of Mississippi
• Court: Mississippi Supreme Court

337 So.3d 218

Carl Alton BRADY

v.STATE of Mississippi

NO. 2021-KA-00163-SCT

Supreme Court of Mississippi.

April 21, 2022

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON

EN BANC.

GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Carl Alton Brady appeals his convictions of attempted willful trespass and two counts of burglary of an automobile. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On the night of October 28, 2019, Brady had been at a friend's house and was on his way to look at a pond under construction. As he approached the pond, his truck got stuck in the mud. Brady tried to use a ratchet strap to pull the truck out, but the strap lacked adequate length. Brady walked back to his friend's house but was unable to locate anyone at home. As a result, Brady "decided [to] walk to the neighbors, which would be [Robert] Burdette and his wife." Brady rang the Burdettes’ doorbell several times, but no one came to the door.

¶3. Robert was asleep and awoke to the doorbell. As Robert walked to the front of the house, he heard his daughter's bedroom window "being rattled." When Robert opened the front door, he saw Brady "at [his daughter's] window" with "his hands ... on the window." Robert also saw "that [Brady] had put on the ground some stuff that came out of one of [Robert's] vehicles," specifically, a flashlight and a key. When he turned around, Robert noticed that "all [of the] doors on [his] [Ford] Explorer were opened, and that the back hatch was opened up." Robert called 911.

¶4. Sergeant Brennon Chancellor responded to the scene where he observed two vehicles in the driveway, a Ford Explorer and a Dodge Durango. The doors and rear hatch of the Ford Explorer were opened. Sergeant Chancellor asked Brady why he was there and if he knew Robert. Brady responded that he was "following a trail ... that led him to that residence."

¶5. Brady was arrested and taken into custody. Sergeant Chancellor conducted a search incident to arrest. Several items were found on Brady including a knife, two sets of keys, and a bottle opener. According to Robert, those items belonged to him and had been inside his Dodge Durango. Additionally, other items belonging to Robert including "some of [his] toolboxes were out of [his] truck, and there were some clothes hanging out of the door that were in the Explorer." Moreover, some grill grates inside Robert's barbeque grill located on the side of the house had been removed and were "stacked up," and a bucket of metal working scraps had been "dumped out."

¶6. Brady was indicted on two counts of burglary of an automobile (Count I and Count II) and one count of attempted burglary of a dwelling (Count III). Before trial, Brady moved to quash Count III of the indictment for its failure to allege an overt act. The trial court denied the motion.

¶7. Brady was convicted of both counts of burglary of an automobile and the lesser-included offense of attempted willful trespass. For each count of burglary of an automobile, Brady was sentenced to serve seven years in the custody of the Mississippi Department of Corrections, with two years suspended pending the successful completion of two years of post-release supervision. For the attempted willful trespass conviction, Brady was sentenced to serve six months in the full-time custody of the Jones County Adult Detention Center. Brady was ordered to "successfully complete the Long-Term Therapeutic Alcohol and Drug Treatment ... [w]hile in the full-time custody of the Mississippi Department of Corrections."

¶8. Brady moved for judgment notwithstanding the verdict or, alternatively, a new trial or resentencing. The trial court denied the motion. Brady timely appealed. On appeal, Brady argues (1) the trial court erred by failing to quash Count III of the indictment, (2) the trial court erred by failing to sua sponte preclude evidence of other bad acts not related to the indicted charges, and (3) the trial court erred by refusing proposed jury instruction D-11.

DISCUSSION

I. Whether the trial court erred by failing to quash Count III of the indictment.

¶9. Brady first argues the trial court erroneously denied his pretrial motion to quash Count III of the indictment. He asserts the indictment is defective because the charge for attempted burglary of a dwelling failed to allege an overt act. He claims that because the indictment did not allege a specific overt act committed to further the crime, this Court should reverse and render his conviction of attempted willful trespass.

¶10. "[W]hether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, or de novo review ...." Forkner v. State , 277 So. 3d 946, 948-49 (Miss. 2019) (alterations in original) (internal quotation marks omitted) (quoting Colburn v. State , 201 So. 3d 462, 469 (Miss. 2016) ).

¶11. Under Mississippi Rule of Criminal Procedure 14.1(a)(1), an indictment "shall be a plain, concise and definite written statement of the essential facts and elements constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." An indictment for an attempt crime must charge "(1) the intent to commit the offense, and (2) an overt act toward its commission." Maxie v. State , 330 So. 2d 277, 277 (Miss. 1976) (citing Ford v. State , 218 So. 2d 731, 732 (Miss. 1969) ). "It is the law of this State that ‘the intent to commit a crime plus any slight act toward its consummation is sufficient in law to constitute the commission of an attempted crime.’ " Hawkins v. State , 11 So. 3d 123, 126-27 (Miss. Ct. App. 2008) (quoting Ford , 218 So. 2d at 732 ).

¶12. Count III of Brady's indictment alleged:

Attempted Burglary of a Dwelling

as part of a common plan or scheme or as part of the same transaction or occurrence in said County, District and State, on or about the 29th day of October, 2019, did willfully, unlawfully, and feloniously, attempt to break into and enter a bedroom window of a dwelling house belonging to Robert and Cherie Burdette, located at 330 Service Road, Laurel, MS, only prevented from doing so by being caught by the homeowners, wherein valuable things were kept for use, with the intent to commit the crime of Larceny therein; and in violation of Section 97-17-33 and 97-17-23, Mississippi Code of 1972, and contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Mississippi.

¶13. Brady asserts, "the mere addition of the word ‘window’ to the legal term of art ‘break and enter’ is not a proper locution of an overt act. It is merely a location, a noun. Not an act which would be a verb." As a result, he argues Count III of his indictment fails to allege an overt act toward the commission of the offense and is defective. In support, Brady relies on Durr v. State , 446 So. 2d 1016 (Miss. 1984).

¶14. In Durr , the defendant was indicted on the charge of attempted burglary. Id. at 1017. The indictment alleged that the defendant did "unlawfully ... and burglariously attempt to break and enter the dwelling ...." Id. (first alteration in original). The Court found that the State had failed to allege "an overt act toward the commission of the offense charged." Id. The Court concluded that "[b]ecause an essential ingredient of the offense [wa]s missing from the indictment, it failed to charge a crime and [wa]s void." Id. But Durr is distinguishable.

¶15. Unlike in Durr , Brady's indictment does not simply allege that Brady attempted to break and enter "the dwelling." Id. Instead, Brady's indictment makes clear that Brady attempted to break and enter the dwelling by "attempt[ing] to break into and enter a bedroom window of [the] dwelling."

¶16. In Hawkins , the defendant was convicted of attempted burglary of an automobile. Hawkins , 11 So. 3d at 124. The indictment charged that the defendant "did then and there, unlawfully, willfully, feloniously and burglariously attempt to break and enter a certain automobile ... by breaking out a window ...." Id. at 126 (emphasis omitted). The Court of Appeals found the indictment was sufficient stating, "[a]s clearly evidenced by the indictment, [the defendant] was on notice that he was being indicted for attempting to break into an automobile by ‘breaking out a window.’ " Id. The court concluded "that the indictment was sufficient to put [the defendant] on notice that he was being charged with attempted burglary, and that the indictment specifically set forth the conduct that constituted the attempt." Id. This Court denied certiorari. Hawkins v. State , 12 So. 3d 531 (Miss. 2009) (table).

¶17. Here, the indictment notified Brady that he was being charged with "attempted burglary of a dwelling" by "attempt[ing] to break ... and enter a bedroom window of [the] dwelling ...." Attempting to break and enter a bedroom window of the dwelling is an overt act in furtherance of the offense. Stated differently, Brady's attempt to break and enter a bedroom window is an overt act in furtherance of attempted burglary of a dwelling. As in Hawkins , Brady's indictment sufficiently put Brady on notice of the charges against him, and it sufficiently "set forth the conduct that constituted the attempt." Hawkins , 11 So. 3d at 126.

¶18. The dissent asserts that like the indictment in Maxie v. State , 330 So. 2d 277 (Miss. 1976), the indictment here fails to allege "an overt act in furtherance of the attempted felony." Diss. Op. ¶ 51. In Maxie , the indictment alleged that the defendant did "unlawfully, wilfully, feloniously and forcibly attempt to rape and ravish ..., a female above the age of twelve years, without the consent and against the will of ... [the victim]." Maxie , 330 So. 2d at 277 (second alteration in original). We agree with the dissent that the indictment in Maxie does not allege an overt act. Indeed,...