Beale v. State

1

JERRY BEALE, JR. a/k/a JERRY BEALE a/k/a JERRY LEE BEALE a/k/a JERRY LEE BEALE JUNIOR a/k/a JERRY LEE BEALE, JR. v. STATE OF MISSISSIPPI

No. 2020-CT-00614-SCT

Supreme Court of Mississippi, En Banc

May 18, 2023

DATE OF JUDGMENT: 05/14/2020

DESOTO COUNTY CIRCUIT COURT TRIAL JUDGE: HON. CELESTE EMBREY WILSON

TRIAL COURT ATTORNEYS: STACEY ALAN SPRIGGS JESSICA MASSEY CARR MICHAEL HADEN LAWYER ROBERT R. MORRIS

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY GEORGE T. HOLMES MOLLIE MARIE McMILLIN

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY META S. COPELAND ALLISON ELIZABETH HORNE

DISTRICT ATTORNEY: ROBERT R. MORRIS

RANDOLPH, CHIEF JUSTICE

¶1. Jerry Beale was convicted of two counts of attempted murder and was sentenced to serve thirty-five years in the custody of the Mississippi Department of Corrections. The Court of Appeals found no reversible error.^[1] We granted certiorari because one of the issues raised by Beale had never been addressed by this Court. We affirm the judgments of the Court of Appeals and the DeSoto County Circuit Court.

FACTS AND PROCEDURAL HISTORY^[2]

In the late hours of the night on June 8, 2018, Piccola Thomas was awoken in her apartment by a fight that had broken out between her sister and her sister's boyfriend, Jerry Beale. Piccola told the couple to leave her apartment. Piccola's sister left, but Beale refused to leave. Piccola threatened to call the police, but Beale still would not leave her apartment. Instead, Beale responded and told her to go ahead and call the police because he was going to "light this b*tch up."

Piccola eventually called 911. She told the 911 operator that Beale was armed, was making threats, and had been drinking, and she wanted him to leave the apartment. The 911 operator subsequently sent this information to a police dispatcher, who proceeded to put a call out to the police. The first police officer to arrive on the scene was Colin Hall, and Officers Mary Fite and Brantson Vuncannon arrived shortly afterward.

Officer Hall testified that based on what he learned from police dispatch, he was called to the scene because a male inside the apartment was "belligerent" and "making threats." Piccola told Officer Hall that Beale had been drinking all night and appeared to be "heavily intoxicated," was armed, and had said that if the police were called that he was going to kill them.

Once inside the apartment, Officer Hall testified that they heard Beale repeatedly screaming, "I don't talk to no f'ing police." Officer Hall stated that two or three times they announced their presence inside the apartment, making it known that the police were coming inside. The three officers started going up the stairs and saw Beale at the top. Beale was shirtless, drinking a beer, and pacing back and forth with a pistol jammed in his waistband. After the officers saw the pistol, they drew their service weapons. According to Officer Hall, Beale was completely ignoring the officers and their commands.

Officer Hall testified that he began to give Beale commands to put his hands on his head; Beale refused. The three officers holstered their guns and readied their tasers, still attempting to get Beale to comply. In an attempt to regain control of the situation, Officer Hall fired his taser at Beale. Officer Fite also aimed and fired her taser at Beale. Officer Hall's taser hit Beale but did not incapacitate him. In response, Beale immediately drew his gun and fired it at the officers.

Officer Hall recounted how he saw the gun pointed directly at him and only remembered hearing the "bang, bang, bang" as Beale fired. Officer Fite would later testify she saw Beale's pistol pointed at her face as well.

When Beale shot at the officers, all three of them immediately retreated. While Officer Hall took cover in a bedroom, he called police dispatch and reported the shooting and requested backup. He also requested an ambulance because he had seen blood on the floor and was concerned that he had been shot. Meanwhile, Officers Fite and Vuncannon retreated downstairs. Beale shut himself inside the bathroom.

When backup arrived, authorities continued to give Beale commands to come out of the bathroom and surrender. Beale ignored them at first but eventually opened the bathroom door and threw his loaded pistol down the stairs. Still belligerent, Beale refused to follow . . . orders to get on his knees and put his hands on his head. In the end, after being tased a second time, eight officers were eventually able to get Beale into custody.

Beale was indicted for three counts of attempted murder of three police officers. During trial, a crime scene technician explained he recovered three .40-caliber shell casings in the upstairs apartment area. An officer also recovered Beale's .40-caliber gun from where he had thrown it down the stairs. Bryan Rosenberg described for the jury the bullet holes that could be seen in photographs that depicted Beale had fired shots at the officers. All three officers testified that they believed Beale was shooting at them in order to kill them.

The jury convicted Beale of the attempted murder of Officers Hall and Fite and found Beale not guilty of the attempted murder of Officer Vuncannon. The trial court sentenced Beale to serve thirty-five years in the custody of the Mississippi Department of Corrections with five years of post-release supervision. Aggrieved, Beale now appeals.

Beale, 2022 WL 1221382, at *1-2.

¶2. On appeal, Beale raised three issues before the Court of Appeals: 1) whether his indictment correctly stated the elements of attempted murder; 2) whether two jury instructions constituted a constructive amendment to the indictment; and 3) whether the trial court erred by allowing certain testimony from Officer Hall. The Court of Appeals found that Beale's indictment correctly stated the necessary elements of attempted murder; the jury instructions did not constitute a constructive amendment to the indictment; and the trial court did not abuse its discretion by allowing the officer to testify about what he was told in the course of his investigation. Id. at *7.

¶3. In his petition for writ of certiorari, Beale argued that his indictment was defective because it lacked the essential element of an overt act. Beale further argued that the jury instructions constructively amended the indictment. We granted Beale's petition for writ of certiorari.

ANALYSIS

I. Beale's indictment correctly stated the necessary elements of attempted murder.

¶4. In 2013, the Legislature amended the attempt statute by adding the language found in subsection (2), which only addresses attempted murder. See Miss. Code Ann. § 97-1-7 (Rev. 2020).^[3] The Legislature specifically set apart attempted murder from all other attempt crimes by removing the overt act requirement as to attempted murder. Prior to the 2013 amendment, the statute read, "[e]very person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same ...." Miss. Code Ann. § 97-1-7 (Rev. 2006). In subsection (2), which was added by the 2013 amendment, the Legislature definitively wrote that only "an act" be committed in furtherance of the murder. Miss. Code Ann. § 97-17 (Rev. 2020). Beale unconvincingly argues that the amended statute should be interpreted no differently than its predecessor. He claims his indictment was defective because it did not specify an overt act toward the commission of attempted murder.

¶5. As Judge McCarty correctly held in the Court of Appeals majority opinion, prior to 2013, all attempt crimes were treated the same under the general statute, and that general statute required proof of an "overt act." Miss. Code Ann. § 97-1-7 (Rev. 2006). A plain reading of the amended statute, however, leaves no question that the Legislature chose to treat the crime of attempted murder differently from all other attempt crimes, by removing from the text the "overt act" language in Section 97-1-7(2), which singularly addresses attempted murder.

¶6. "The most fundamental rule of statutory construction is the plain meaning rule, which provides that if a statute is not ambiguous, then this Court must apply the statute according to its terms." State ex rel. Hood v. Madison Cnty. ex rel. Madison Cnty. Bd. of Supervisors, 873 So.2d 85, 90 (Miss. 2004) (citing City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss. 1992)). The Legislature's amended statute plainly reads that an overt act is not necessary to prove attempted murder.

¶7. Beale was indicted for three counts of attempted murder. His indictment tracked the language of Section 97-1-7(2), stating that Beale "did willfully, unlawfully, and feloniously, attempt to kill Officer [name], a human being . . . [and] acted with the deliberate design to effect the death of Officer [name], but failed to successfully complete the act, in direct violation of Section 97-3-19(1)(a) ...." Because the Legislature did not include a requirement to set forth a direct, overt act in an indictment under the attempted murder statute, we hold that Beale's indictment for attempted murder did not require the description of an overt act and was sufficient. Thus, we find that there is no defect in Beale's indictment, and his convictions and sentences are affirmed.

II. Jury instructions 8 and 9 did not constitute a constructive amendment to the indictment.

¶8. Beale next contends that, because jury instructions 8 and 9 contained descriptions of the overt act, the instructions constituted a constructive amendment to his indictment. The Court of Appeals found that because Beale had failed to object to instructions 8 and 9 at trial, he was...