Willie E. Payne v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
FILED
AT KNOXVILLE August 13, 1999
Cecil Crowson, Jr.
MAY 1999 SESSION Appellate C ourt
Clerk
WILLIE E. PAYNE, * C.C.A. # 03C01-9809-CR-00336
Appellant, * HAMILTON COUNTY
VS. * Honorable Douglas A. Meyer, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH PAUL G. SUMMERS
District Public Defender Attorney General & Reporter
DONNA ROBINSON MILLER MARVIN S. BLAIR, JR.
Assistant District Public Defender Assistant Attorney General
Suite 300, 701 Cherry Street 425 Fifth Avenue North
Chattanooga, TN 37402 Nashville, TN 37243-0493
WILLIAM H. COX III
District Attorney General
Suite 300, 600 Market Street
Chattanooga, TN 37402
OPINION FILED: _______________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The petitioner, Willie E. Payne, appeals the trial court’s dismissal of his
post-conviction relief petition. The petitioner was convicted by a jury of having
raped a female under twelve years of age. The trial court sentenced him to
death, and the Court of Appeal affirmed his sentence in 1978. Later, Governor
Ray Blanton commuted his sentence to life imprisonment. On April 14, 1997, the
petitioner filed a “Petition for Writ of Habeas Corpus,” which was properly treated
by the trial court as a motion for post-conviction relief. The petitioner claims that
the indictment in his case was constitutionally defective because it did not allege
a specific mens rea; i.e., it did not use the language “intentionally, knowingly, or
recklessly.” After review of the record, we affirm the judgment of the trial court.
Throughout the procedural history of his petition, the petitioner relied
exclusively upon a holding of a panel of this Court in State v. Roger Dale Hill, No.
01C01-9508-CC-00267 (Tenn. Crim. App. filed June 25, 1996, at Nashville),
rev’d, 954 S.W.2d 725 (Tenn. 1997). The Tennessee Supreme Court reversed
this Court’s Hill decision in State v. Hill, 954 S.W.2d 725 (Tenn. 1997).
Nevertheless on appeal, the petitioner asserts that the indictment lacked proper
notice of the offense alleged.
The petitioner’s reliance on Hill is inappropriate. That decision involved
indictments after the Sentencing Reform Act of 1989. Our Supreme Court held
that the Hill rationale also applies to pre-1989 indictments in Dykes v. Compton,
978 S.W.2d 528 (Tenn. 1998). Our Supreme Court addressed Hill’s application
to offenses occurring from 1983 to 1988 in Crittenden v. State, 978 S.W.2d 929(Tenn. 1998).
Concerning a 1975 indictment, we would follow our Supreme Court’s
language in Campbell v. State, 491 S.W.2d 359 (Tenn. 1973), regarding
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sufficiency of an indictment. The language of Campbell is directly on point when
the Court stated, “It is clear, however, that had the indictment used the words
‘feloniously’ or ‘unlawfully,’ it would have been sufficient.” Id. at 361. The
alleged indictment is this case used both “feloniously” and “unlawfully.”
However, the petitioner’s omission of the pertinent indictment in the record
submitted to this Court is dispositive. Since a copy of the indictment is not
included in the record, there is no evidence of its language other than the
allegations contained in the petition. It is the responsibility of the petitioner to
provide a copy of the indictment that he attacks. See Tenn. R. App. P. 24. By
omitting the essential document, the petitioner has waived his sole articulated
ground for appeal.
The judgment of the trial court is AFFIRMED.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
CONCUR:
_______________________________
JAMES CURWOOD WITT, JR., Judge
_______________________________
ALAN E. GLENN, Judge
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