John Smith v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 2, 2016 Session
JOHN SMITH v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 0807885 Carolyn W. Blackett, Judge
No. W2015-00633-CCA-R3-PC - Filed May 27, 2016
The petitioner, John Smith, appeals the post-conviction court‟s denial of relief from his
convictions for first degree felony murder, second degree murder, aggravated burglary,
and employment of a firearm during the commission of a dangerous felony. He argues
that the post-conviction court erred in finding that he had received effective assistance of
counsel. He further asserts for the first time on appeal that his conviction for employing
a firearm during the commission of a dangerous felony should be vacated because the
indictment failed to specify the underlying dangerous felony. Upon our review, the
judgments of the post-conviction court are affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS and TIMOTHY L. EASTER, JJ., joined.
Jeffrey S. Rosenblum, Murray Wells, and Arthur Horne (at post-conviction hearing); and
Lance R. Chism (on appeal), Memphis, Tennessee, for the Defendant-Appellant, John
Smith.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zenter, Assistant
Attorney General; Amy P. Weirich, District Attorney General; Kevin R. Rardin and Glen
C. Baity, Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
This case arises from the August 2008 murder of Charles Beegle, Jr. For this
offense, the petitioner was indicted by the Shelby County Grand Jury for first degree
felony murder, second degree murder, aggravated burglary, and employing a firearm
during the commission of a dangerous felony. After a jury trial, the petitioner was
convicted as charged and sentenced to “an effective term of life imprisonment plus six
years.” This court affirmed the conviction on direct appeal. State v. John Smith, No.
W2011-01438-CCA-R3-CD, 2012 WL 4372547 (Tenn. Crim. App. Sept. 25, 2012),
perm. app. denied (Tenn. Feb. 13, 2013). The following facts, as outlined on direct
appeal, are relevant to the issues presented in this case:
Lieutenant Walter Davidson with the Memphis Police Department
was involved in arresting [the petitioner] after the wreck and placed him on
a forty-eight-hour hold due to his intoxication. The next day, having no
appearance of intoxication and able to communicate clearly, [the petitioner]
was brought to the homicide bureau for questioning. After twice refusing
to waive his Miranda rights, [the petitioner] was being prepared for return
to the jail when he decided to talk to the officers. Upon being read his
rights a third time, [the petitioner] waived them and ultimately gave two
typewritten statements.
In his first statement, [the petitioner] denied any responsibility for
the victim‟s death but, instead, blamed the murder on his co-defendant,
James Snipes. Specifically, [the petitioner] said that he and Snipes were
driving around smoking marijuana when Snipes started talking about
“making money.” Snipes then stopped at the victim‟s house and said,
“[L]et‟s go in.” According to [the petitioner], before Snipes made it in the
house, the victim spotted him and started chasing him. [The petitioner] said
that Snipes and the victim “scuffled” and then he heard gunshots. He
recalled that Snipes told him that he shot the victim because the victim
grabbed him and would not let him go. According to [the petitioner],
Snipes was armed with a .25 caliber automatic, but he was not armed.
When questioned about the subsequent police chase, [the petitioner]
admitted that he was in the backseat of the truck and armed with a .25
caliber automatic but claimed that it and the .380 belonged to Snipes.
After taking [the petitioner‟s] first statement, officers learned that
Jesus Lujan was in the truck with Snipes and [the petitioner] at the time of
the murder and that [the petitioner] had been armed with a .38 revolver.
The officers confronted [the petitioner] with the inconsistencies in his first
statement. In his second statement, [the petitioner] admitted that his initial
statement was not completely accurate. He confirmed that Lujan was in the
truck with him and Snipes when they went to the victim‟s home and that he
was armed with a .38 special revolver provided to him by Lujan. [The
petitioner] also admitted that he entered the victim‟s house with Snipes.
According to [the petitioner], after they entered the house, “„the victim
s[aw] [Snipes] [and] chased him outside. They started [to] wrestle and
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[Snipes] shot him to get him off and while the victim was on the ground, I
shot him in the face.‟” He gave the .38 special revolver back to Lujan after
the shooting.
Defendant‟s Proof
[The petitioner] testified that the night before the shooting, he and
Snipes were partying at another friend‟s house. He had been “smoking
weed, taking ex- pills, snorting heroin, snorting powder and popping Xanax
pills.” Around 8:00 a.m. the next morning, [the petitioner], Snipes, and
Jesus Lujan left in a blue Ford Sport Track with Snipes driving to go buy
more marijuana.
Snipes drove them to the victim‟s house, although [the petitioner]
did not know who lived in the house or who the victim was; he just thought
they were going to buy marijuana. Snipes parked the truck, and [the
petitioner] and Snipes got out and walked toward the house. Snipes was
armed with a .25 caliber automatic. [The petitioner] lagged behind, and his
vision of Snipes was blocked by a fence. When he walked around the
fence, he saw that Snipes was not at the victim‟s front door, so he walked
toward the back of the house. He was about to knock on the sliding glass
door when Snipes came running down the hallway yelling for him to run.
[The petitioner] grabbed a BB gun that was sitting next to the sliding glass
door and ran toward the truck. When he was about five or ten feet from the
truck, he “heard a couple of gunshots and . . . heard a guy scream and . . .
heard James Snipes yell for [his] help.” He ran back to help his friend and
saw Snipes and the victim “tussling on the ground in front of the van.”
Snipes was standing up and the victim was on his knees with one arm
wrapped around Snipes‟s legs and holding a pistol in his other hand. The
two were fighting over the gun, but [the petitioner] did not know at that
time to whom the gun belonged. He saw blood on Snipes‟s stomach and
shorts, so he screamed. The victim looked at him, and, thinking the victim
had shot Snipes, he shot the victim one time.
[The petitioner] and Snipes ran to the truck and drove Lujan back to
their other friend‟s house. He did not call the police because he was scared
and intoxicated. He also felt bad for shooting the victim after he learned
that Snipes was not hurt. They continued to drive around “getting high”
and then drove back by the scene at the victim‟s house. Two police cars
were in the area and, when Snipes saw them, he made a sharp right turn and
sped away. The police gave chase, but the pursuit ended when their vehicle
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was hit by another car at a traffic signal. Snipes got out of the truck and
ran, but [the petitioner] remained because he was intoxicated and felt that
he had not done anything wrong. [The petitioner] denied using a weapon at
any time during the pursuit.
[The petitioner] was arrested at the scene and taken to the police
station. Because he was too intoxicated to give a statement that night, he
was put on a hold and taken to a cell. The next morning, he was taken to
the homicide office and eventually gave two statements, neither of which
was entirely accurate, due to Sergeant Max‟s telling him that he would get
the death penalty. Prior to giving the statements, he had twice requested an
attorney. On cross-examination, [the petitioner] admitted that “[t]here‟s a
chance” he yelled for the officers to return to the interview room after they
left the first time.
After the conclusion of the proof, the jury convicted [the petitioner]
of first degree felony murder, the lesser-included offense of second degree
murder, aggravated burglary, and employing a firearm during the
commission of a felony.
Id. at *5-7. On January 30, 2014, the petitioner filed a pro se petition for post-conviction
relief alleging that he received ineffective assistance of counsel. The post-conviction
court subsequently appointed counsel, who filed an amended petition on September 4,
2014. An evidentiary hearing was held on October 9, 2014.
Post-Conviction Hearing. Trial counsel, an Assistant Shelby County Public
Defender for seven years, testified that he was assigned the petitioner‟s case in 2007.
Counsel had previously tried two first degree murder cases and assisted in the
prosecution of at least three others. Counsel recalled meeting with the petitioner and his
family on several occasions to discuss potential witnesses and possible defenses.
Through discovery, he received a statement from the petitioner‟s co-defendant Jesus
Lujan, which reflected that Lujan was in the car when they arrived at the victim‟s house,
but he remained in the car “with the radio blaring loudly” during the altercation between
the victim and the petitioner. Because Lujan‟s statement reflected that he remained in the
car during the incident, counsel decided not to send investigators to get an additional
statement from Lujan or to call him as a witness at trial. When pressed on this point,
counsel admitted that his primary defense at trial was voluntary intoxication and that he
knew Lujan could testify to the petitioner‟s level of intoxication because Lujan had been
with the petitioner during the hours preceding the altercation with the victim. Counsel
believed that he had sufficient evidence of the petitioner‟s intoxication based on the
petitioner‟s testimony of his extensive drug use prior to the altercation and the testimony
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elicited on cross-examination from the arresting officer that, at the time of the arrest, the
petitioner was too intoxicated to give a statement.
Trial counsel was also aware that three women were in the vehicle with the
petitioner when he was arrested and had received their statements in discovery. Counsel
made “a strategic choice” not to get follow-up statements or to call the women as
witnesses at trial. Counsel met with the petitioner‟s sister, Madison Molina, on multiple
occasions prior to trial, but did not recall whether she encouraged him to call Lujan as a
witness. Counsel additionally made “a strategic choice” not to give a more detailed
opening statement. He testified that he considered giving a more detailed opening
statement, but determined that it was in the client‟s best interest to hear the State‟s proof
first.
Madison Molina, the petitioner‟s sister, testified that she saw the petitioner in the
late afternoon of the day prior to the shooting. When she saw the petitioner, “He was out
of his mind. He was so intoxicated.” After the petitioner‟s arrest, Molina visited Lujan
in jail and learned that the petitioner had continued to take drugs through the night and
into the following morning prior to the shooting. Lujan also told her that the petitioner
never planned to rob anyone and that they just went to the victim‟s house to buy more
marijuana. Molina relayed this information to trial counsel and told him that both she
and Lujan would be willing to testify at trial. However, trial counsel told her that, “he
just couldn‟t use [Lujan] in the case.”
At the conclusion of the hearing, the post-conviction court took the matter under
advisement and subsequently issued a written order denying relief on January 15, 2015.
In the order, the court found that the petitioner failed to establish that trial counsel was
deficient for failing to call Lujan as a witness at trial because the petitioner failed to
present testimony from Lujan at the post-conviction hearing as required by Black v.
State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). The post-conviction court also
determined that trial counsel made a strategic decision not to call the petitioner‟s sister
and that it was in the petitioner‟s best interest. Regarding the three witnesses that were
with the petitioner when he was arrested, the post-conviction court determined that trial
counsel was not deficient for failing to interview them because he already had a copy of
their statements to police and their testimony was not relevant to trial counsel‟s theory of
the case. Finally, the post-conviction court determined that trial counsel gave an
adequate opening statement that fell “well within the accepted standards for those
practicing within the profession.”
The petitioner filed a pro se notice of appeal on February 11, 2015, and on June
23, 2015, new counsel was appointed to represent him in this appeal.
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ANALYSIS
On appeal, the petitioner argues that trial counsel rendered ineffective assistance
of counsel. Specifically, the petitioner contends that trial counsel was deficient for
failing to: (1) call his sister, Madison Molina, as a witness at trial; (2) call a co-defendant,
Jesus Lujan, as a witness at trial; (3) interview three potential witnesses who were with
the petitioner when he was arrested; and (4) give a more detailed opening statement.
Finally, though not raised previously, the petitioner claims that his conviction for
employing a firearm during the commission of a dangerous felony is void because the
State failed to specify the underlying felony in the indictment. The State responds that
the post-conviction court properly denied relief because the petitioner failed to establish
that he received ineffective assistance of counsel. The State further contends that the
petitioner is not entitled to relief regarding the indictment because the State is not
required to specify the predicate felony.
Post-conviction relief is only warranted when a petitioner establishes that his or
her conviction or sentence is void or voidable because of an abridgement of a
constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:
A post-conviction court‟s findings of fact are conclusive on appeal unless
the evidence preponderates otherwise. When reviewing factual issues, the
appellate court will not re-weigh or re-evaluate the evidence; moreover,
factual questions involving the credibility of witnesses or the weight of
their testimony are matters for the trial court to resolve. The appellate
court‟s review of a legal issue, or of a mixed question of law or fact such as
a claim of ineffective assistance of counsel, is de novo with no presumption
of correctness.
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation
marks omitted); see also Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v.
State, 303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of
proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);
Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). Evidence is considered clear and convincing when there is no serious or
substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316
S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);
Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).
In order to prevail on an ineffective assistance of counsel claim, the petitioner
must establish that (1) his lawyer‟s performance was deficient and (2) the deficient
performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,
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523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“[A] failure to prove either deficiency or prejudice provides a sufficient basis to deny
relief on the ineffective assistance claim. Indeed, a court need not address the
components in any particular order or even address both if the [petitioner] makes an
insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.
1996) (citing Strickland, 466 U.S. at 697).
A petitioner successfully demonstrates deficient performance when the petitioner
establishes that his attorney‟s conduct fell “below an objective standard of reasonableness
under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688;
Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “„a reasonable probability that, but for counsel‟s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome.‟” Id. at 370 (quoting
Strickland, 466 U.S. at 694).
I. Ineffective Assistance of Counsel. The petitioner argues that trial counsel was
ineffective for failing to call Madison Molina and Jesus Lujan as witnesses at trial and for
failing to investigate three women that were with the petitioner when he was arrested.
The State argues that the petitioner cannot establish deficient performance or prejudice
regarding Lujan or any of the women that were with the petitioner prior to his arrest
because they did not testify at the post-conviction hearing. Regarding Molina, the State
claims that the decision not to call her as a witness was a reasonable strategic decision by
trial counsel.
The post-conviction court concluded, and we agree, that counsel was not
ineffective for failing to call Molina at trial. Trial counsel‟s trial strategy was that the
State could not prove the element of intent because the petitioner was too intoxicated at
the time of the crime. In support of this theory, he presented testimony from the
petitioner and one of the arresting officers that the petitioner was too intoxicated at the
time of his arrest to give a statement. Trial counsel decided not to call Molina because he
believed the testimony from the petitioner and the arresting officer was sufficient to
warrant a jury instruction on intoxication. The post-conviction court credited the
testimony of counsel and determined that trial counsel‟s decision was strategic and did
not amount to deficient performance. The evidence does not preponderate against the
finding of the post-conviction court. Accordingly, the petitioner is not entitled to relief
on this issue.
The petitioner has also failed to establish that trial counsel rendered ineffective
assistance by failing to call Lujan or the three women that were with the petitioner when
he was arrested because the petitioner did not call them as witnesses at the post-
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conviction hearing. See Black, 794 S.W.2d at 757 (“When a petitioner contends that trial
counsel failed to . . . present witnesses in support of his defense, these witnesses should
be presented by the petitioner at the evidentiary hearing . . . . this is the only way the
petitioner can establish that . . . the failure to have a known witness present or call the
witness to the stand resulted in the denial of critical evidence which inured to the
prejudice of the petitioner.”). Citing Tavarus U. Williams v. State, No. 02C01-9711-CR-
00423, 1998 WL 742348 (Tenn. Crim. App., at Jackson, Oct. 23, 2009), the petitioner
argues that the rule in Black is inapplicable because his sister testified at the post-
conviction hearing regarding the substance of what Lujan would have testified to at trial.
In Tavarus Williams, this court determined that trial counsel‟s negligence
prevented the petitioner from calling the missing witness at the post-conviction hearing
and therefore reversed the post-conviction court‟s denial of relief. The court reasoned:
We recognize that this witness‟ proposed testimony should have been
produced at the post-conviction hearing under the general rule announced
in Black v. State. However, we think it is fundamentally unfair to hold this
failure of proof against [Williams] and, therefore, find the Black rule
inapplicable under the facts of this case. . .
The best evidence that [Williams] had of the crucial testimony was [the
investigator], and he did produce that proof at the hearing.
Accordingly, because [Williams] produced independent proof of vital
testimony that would have been available at the hearing but for his trial
lawyer‟s ineffectiveness (in never discovering the witness, not calling him
and losing all record of him), we hold that [Williams] has established both
prongs of the Strickland test.
Id. at *6-7 (internal citations, footnotes, and quotations omitted).
Tavarus Williams is distinguishable from the case at bar. First, the petitioner does
not allege or present proof that he was unable to produce the prospective witnesses at the
post-conviction hearing based on trial counsel‟s negligence. The petitioner offered no
explanation for his failure to produce these witnesses at the hearing. Moreover, in
contrast to Tavarus Williams, trial counsel knew of these potential witnesses through the
course of his investigation, had received their statements during discovery, and made a
strategic choice not to use them at trial. Accordingly, the circumstances of this case do
not implicate the concerns of fundamental fairness espoused in Tavarus Williams. The
petitioner is not entitled to relief on this issue.
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Next, the petitioner claims that trial counsel was ineffective for failing to give a
more detailed opening statement. Specifically, he contends that trial counsel should have
made more of an effort to “advance the defense theory of the case.” The State responds
that the post-conviction court properly determined that trial counsel‟s opening statement
was not deficient. We agree with the State.
The right to effective assistance of counsel extends to opening and closing
arguments. Yarborough v. Gentry, 540 U.S. 1, 5-7 (2003); Bell v. Cone, 535 U.S. 685,
701-02 (2002). However, counsel has wide latitude in deciding how to best represent a
client, and deference to counsel‟s tactical decisions in the opening statement or closing
argument is particularly important. Kevin Lewis v. State, No. E2014-02070-CCA-R3-
PC, 2015 WL 5175664, at *5 (Tenn. Crim. App. Sept. 3, 2015), perm. app. denied (Tenn.
Dec. 11, 2015) (citing Torrez Talley v. State, No. W2009-02036-CCA-R3-PC, 2011 WL
1770485, at *4 (Tenn. Crim. App. May 9, 2011), perm. app. denied (Tenn. Sept. 21,
2011)).
We agree with the post-conviction court‟s determination that trial counsel was not
ineffective for not making a more detailed opening statement. While trial counsel gave a
relatively brief opening statement, he testified at the post-conviction hearing that the
decision to do so was a strategic one. During his opening statement, trial counsel
instructed the jury that the burden of producing proof of guilt beyond a reasonable doubt
was on the State and asked the jurors to keep an open mind throughout the proceedings.
As we have previously noted, this court will not second guess strategic decisions of trial
counsel, including decisions regarding the length or content of the opening statement.
See James Richard Bishop v. State, No. E2000-01725-CCA-R3-PC, 2001 WL 798065, at
*9 (Tenn. Crim. App. July 13, 2001) (citing Aaron Jermaine Walker v. State, No. 03C01-
9802-CR-00046, 1999 WL 39511 (Tenn. Crim. App., at Knoxville, Jan. 28, 1999), perm.
app. denied (Tenn. July 12, 1999)) (noting that even the complete waiver of an opening
statement “has been held to be a valid strategy decision, whether or not ultimately
successful or even wise when viewed in hindsight”). The petitioner is not entitled to
relief on this issue.
II. Validity of the Indictment. Finally, the petitioner challenges the sufficiency
of count six of his indictment, which charges him with employing a firearm during the
commission of dangerous felony. The petitioner claims for the first time on appeal that
his firearm conviction should be vacated because he was deprived of adequate notice
when the State failed to specify the underlying dangerous felony. The State responds that
the issue is meritless because notice pleading requirements do not require the specific
pleading of a predicate felony when a defendant is charged with employing a firearm
during the commission of a dangerous felony.
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As an initial matter, the petitioner concedes that this issue was not raised in his
petition for post-conviction relief and is being argued for the first time on appeal.
Normally, challenges to an indictment must be raised pre-trial; however, a defendant can
challenge the indictment at any time while the case is pending when challenging the lack
of subject matter jurisdiction in the court or when alleging that the indictment failed to
charge an offense. See Tenn. R. Crim. P. 12(b)(2)(B); State v. Nixon, 977 S.W.2d 119,
120-21 (Tenn. 1997); Rogers v. State, No. E2015-00255-CCA-R3-PC, 2015 WL
4511551, at *3 (Tenn. Crim. App. July 27, 2015); State v. Alvin Brewer and Patrick
Boyland, Nos. W2012-02281-CCA-R3-CD and W2012-02282-CCA-R3-CD, 2014 WL
1669807, at *26 (Tenn. Crim. App. Apr. 24, 2014) (“An allegation that an indictment
does not charge an offense is . . . subject to plenary review even if not raised in the trial
court.”), perm. app. denied (Tenn. Sept. 18, 2014); State v. Willie Duncan, No. W2013-
02554-CCA-R3-CD, 2014 WL 4243746, at *5 (Tenn. Crim. App. Aug. 27, 2014) (citing
Alvin Brewer, 2014 WL 1669807, at *26), perm. app. granted (Tenn. Feb. 13, 2015); see
also Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998) (citations omitted) (holding
that a defective indictment claim may be brought in a habeas corpus proceeding because
“[a] valid indictment is an essential jurisdictional element, without which there can be no
prosecution”). In addition, the State concedes that the petitioner may raise this issue for
the first time on post-conviction review. Therefore, we will address the merits of the
petitioner‟s arguments.
Pursuant to Code section 39-17-1324, it is an offense to employ a firearm during
the commission or attempted commission of a dangerous felony. T.C.A. § 39-17-
1324(b)(1), (2). The statute provides a list of eleven qualifying predicate felonies and
requires that the underlying felony “be pled in a separate count of the indictment or
presentment and tried before the same jury at the same time as the dangerous felony.” Id.
§ 39-7-1324(d). However, the statute is silent on whether the predicate dangerous felony
must be named in the count charging a violation of Code section 39-17-1324. Willie
Duncan, 2014 WL 4243746, at *6.
The United States Constitution and the Tennessee Constitution state that a
defendant is entitled to knowledge of “the nature and cause of the accusation.” U.S.
Const. amend. VI; Tennessee Const. art. I, § 9. The Tennessee Supreme Court has stated
that an indictment is valid if it contains sufficient information “(1) to enable the accused
to know the accusation to which answer is required, (2) to furnish the court adequate
basis for the entry of a proper judgment, and (3) to protect the accused from double
jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997) (citing State v. Byrd, 820
S.W.2d 739, 741 (Tenn. 1991); VanArsdall v. State, 919 S.W.2d 626, 630 (Tenn. Crim.
App. 1995); State v. Smith, 612 S.W.2d 493, 497 (Tenn. Crim. App. 1980)). In addition,
pursuant to Tennessee Code Annotated section 40-13-202, the indictment must
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state the facts constituting the offense in ordinary and concise language,
without prolixity or repetition, in such a manner so as to enable a person of
common understanding to know what is intended, and with that degree of
certainty which will enable the court, on conviction, to pronounce the
proper judgment. . . .
T.C.A. § 40-13-202; see also State v. Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000)
(citing State v. Hill, 954 S.W.2d at 727) (stating that “achiev[ing] the overriding purpose
of [providing] notice to the accused will be considered sufficient to satisfy both
constitutional and statutory requirements.”)). A challenge to the sufficiency of an
indictment presents a question of law which we review de novo. State v. Wilson, 31
S.W.3d 189, 191 (Tenn. 2000).
As it relates to Tennessee Code Annotated section 39-17-1324, generally an
indictment “that does not name the underlying dangerous felony does not provide the
defendant with adequate notice of the crime charged,” because there are eleven
qualifying dangerous felonies listed in the statute, and the failure to specify one “leaves
the defendant with inadequate notice of the charges against him.” State v. Demeko
Gerard Duckworth, No. M2012-01234-CCA-R3-CD, 2013 WL 1933085, at *21 (Tenn.
Crim. App. May 10, 2013), perm. app. denied (Tenn. Oct. 17, 2013); T.C.A. § 39-17-
1324(h)(2)(i)(1). However, if each count of the indictment, read together, leaves the
defendant “reasonably certain of the predicate felony underlying a conviction for
employing a firearm during the commission of a dangerous felony,” the indictment is
valid. Willie Duncan, 2014 WL 4243746, at *7 (citing Alvin Brewer, 2014 WL
1669807, at *30).
Despite the failure to specify the underlying predicate felony in the indictment, the
indictment is not void for lack of notice because only one qualifying predicate felony was
charged. Under these circumstances, this court has consistently held that the indictment
served its “overriding purpose” of providing notice to the defendant. See State v. Narrell
Christopher Pierce, No. M2014-00120-CCA-R3-CD, 2015 WL 2102003, at *15 (May 5,
2014) (“where the indictment . . . includes only one count that qualifies as a dangerous
felony under section 39-17-1324, the indictment is not void for lack of notice.”), perm.
app. denied (Tenn. Aug. 13, 2015); see also State v. Rhakim Martin, No. W2013-02013-
CCA-R3-CD, 2015 WL 555470, at *7-8 (Tenn. Crim. App. Feb. 10, 2015) (holding that
although dangerous felony was not specified in the indictment, defendant was provided
adequate notice when the remaining counts charge only one dangerous felony specified in
section 39-17-1324), perm. app. granted (Tenn. May 15, 2015); State v. Christopher
Swift and Marquavious Houston, No. W2013-00842-CCA-R3-CD, 2015 WL 2128782, at
*18 (Tenn. Crim. App. May 5, 2015) (failure to specify the predicate felony did not void
indictment where only other indicted offense “qualified as a dangerous felony pursuant to
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Tennessee Code Annotated section 39-17-1324(i)(1)”); State v. Zachary Carlisle, No.
W2012-00291-CCA-MR3-CD, 2013 WL 5561480, at *16 (Tenn. Crim. App. Oct. 7,
2013) (“Voluntary manslaughter is listed as a „dangerous felony in . . . section 39-17-
1324(i)(1), and was the only other offense charged in the indictment . . . the indictment
provided the Defendant with adequate notice of the dangerous felony he was charged
with committing while employing a firearm.”), perm. app. denied (Tenn. Mar. 17, 2014);
Demeko Gerard Duckworth, 2013 WL 1933085, at *22 (indictment not void for lack of
notice because it was “reasonably clear” that the firearm charge was related to the only
dangerous felony listed in section 39-17-1324 charged in the indictment); cf. Willie
Duncan, 2014 WL 4243746, at *9 (concluding that an indictment for employing a firearm
during the commission of a dangerous felony without specifying the predicate felony
failed to provide adequate notice where the defendant was charged with multiple
qualifying dangerous felonies).
We find this reasoning to be persuasive and likewise hold that the indictment in
this case is not void for lack of notice. Because aggravated burglary was the only
qualifying predicate felony charged in the indictment, it was “reasonably clear” that the
firearm charge in this case was related to the aggravated burglary charge. See T.C.A. §
39-17-1324(i)(1)(H). Accordingly, the petitioner is not entitled to relief on this issue.
CONCLUSION
Based on the forgoing authority and analysis, the judgments of the post-conviction
court are affirmed.
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CAMILLE R. McMULLEN, JUDGE
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