State v. Jose Holmes

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
APRIL SESSION, 1996
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9505-CR-00154
FILED
) December 10, 1997
Appellee, )
) Cecil Crowson, Jr.
) SHELBY COUNTY Appellate C ourt Clerk
VS. )
) HON. W. FRED AXLEY
JOSE HOLMES, ) JUDGE
)
Appellant. ) (Direct Appeal - Attempted Felony
) Murder - Especially Aggravated
) Robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
BRETT B. STEIN CHARLES W. BURSON
100 N. Main, Ste. 3102 Attorney General and Reporter
Memphis, TN 38103
ELLEN H. POLLACK
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243
JOHN W. PIEROTTI
District Attorney General
LEE COFFEE
Assistant District Attorney
201 Poplar
Memphis, TN 38103
OPINION FILED ________________________
CONVICTION FOR ATTEMPTED FELONY MURDER REVERSED AND
DISMISSED; CONVICTION FOR ESPECIALLY AGGRAVATED ROBBERY
AFFIRMED; REMANDED FOR RE-TRIAL ON COUNT 2 OF THE INDICTMENT.
JERRY L. SMITH, JUDGE
OPINION
Appellant Jose Holmes was convicted by a jury in the Shelby County Criminal
Court of attempted first degree murder and of especially aggravated robbery. He
was sentenced as a career offender to sixty years in the Department of Correction.
On appeal, Appellant raises three issues:
(1) Whether the trial court’s instruction to the jury concerning
“a reasonable doubt” placed a higher burden of proof
upon Appellant than is required by due process clause?
(2) Whether the trial court’s specific instruction concerning
criminal responsibility of the conduct of another when
coupled with a general instruction on criminal
responsibility placed an undue prominence on that fact to
the prejudice of Appellant?
(3) Whether the trial court’s denial of Appellant’s motion to
strike his alias from the indictment prejudiced Appellant
denying him of the due process of law?
After careful consideration of this matter we must reverse and dismiss the
conviction for attempted felony murder. Appellant’s conviction for especially
aggravated robbery is affirmed. The case is remanded for retrial on a charge of
attempted second degree murder as alleged in Count 2 of the indictment.
I. FACTUAL BACKGROUND
The proof in this matter shows that on September 27, 1993, Ms. Maryan
Elam was leaving a parking lot at the Mall of Memphis when she was approached by
two men wearing stocking masks. The men approached Ms. Elam’s car, pointed a
gun at her, and demanded that she give them money. When Ms. Elam refused, the
man she identified as Appellant shot her through the window of her car seriously
injuring her. Appellant and his compatriot then stole $15,000 from the trunk of Ms.
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Elam’s vehicle. She had just withdrawn this money from the bank to take to her
place of business.
Three other witnesses positively identified Appellant as a perpetrator of these
crimes. One was a mall patron who actually saw Appellant shoot and rob Ms. Elam.
Another witness saw Appellant fleeing the crime scene. The final witness saw
Appellant run onto a nearby hotel property and then toward an undeveloped area
around Nonconnah Creek. Approximately an hour after the shooting and robbery,
police found Appellant lying in thick brush near Nonconnah Creek and near the mall.
Under his head was the $15,000 bundle of cash taken from Ms. Elam’s trunk.
When arrested Appellant identified himself as “Thomas Smith.” It was discovered
sometime later that his name was actually Jose Holmes.
2. CONVICTION FOR ATTEMPTED FELONY MURDER
Neither party to this appeal addressed the propriety of Appellant’s having
been convicted of attempted felony murder. This Court therefore ordered
supplemental briefing on this issue in light of our state supreme court’s holding in
State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996); that attempted felony murder is
a crime which does not exist in Tennessee. The State now concedes that
Appellant’s conviction cannot stand in light of Kimbrough. We therefore reverse and
dismiss Appellant’s conviction on this charge.
However, this does not end our inquiry regarding the charge of attempted
murder. The jury acquitted Appellant of attempted premeditated and deliberate first
degree murder as charged in Count 1 of the indictment, but the jury did find
Appellant guilty of attempted felony murder as charged in Count 2. Although
Kimbrough counsels us that such an offense does not exist, Count 2 alleges that
Appellant “did unlawfully and knowingly attempt to kill” the victim. Count 2 is
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therefore sufficient to charge attempted second degree murder, See, Tenn. Code
Ann. § 39-13-210(a)(1), and may not be dismissed outright. However, the jury
instructions given in this case, while appropriate in a prosecution for an attempted
homicide based on Appellant’s participation in a felony, are not proper in a
prosecution for an attempted second degree murder prosecution alleging that
Appellant “knowingly” attempted to kill the victim. For the reasons discussed infra.,
we therefore remand Count 2 of the indictment to the trial court for retrial on charges
of attempted second degree murder.
3. JURY INSTRUCTIONS
Appellant complains that the jury instructions given in this case concerning
responsibility for the criminal conduct of another as an aider and abettor are
improper. The allegedly erroneous instruction reads as follows:
When one enters into a scheme with others to
commit a robbery and an attempted murder ensues, all
defendants may be held responsible for the attempted
murder, regardless of who actually committed the
attempted murder and whether the attempted murder
was specifically contemplated by the others.
As long as the defendant intended to commit the
robbery and an attempted murder resulted during the
perpetration of or the attempt to perpetrate the robbery,
each defendant is responsible for the attempted murder,
regardless of whether he intended for the victim to die or
participated in the act of attempted murder.
Recently our state supreme court addressed the issue of aider and abettor
criminal liability in the context of multiple offender felonies. In State v. Carson, 950
S.W.2d 951, 956 (Tenn. 1997); the Court held that the “natural and probable
consequence” rule applies to the criminal responsibility of one participant in a felony
to the acts committed by another participant. Thus, under Tennessee Code
Annotated Sections 39-11-401, 402, an individual in a multiple offender felony is
responsible for the criminal acts of any of the other participants if the individual
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shares in the intent to commit the primary felony and the criminal acts committed by
the other participants are the natural and probable consequence of the commission
of the primary felony. Id.It has long been recognized that various assaultive offenses are the natural
and probably consequence of armed robbery attempts. See e.g. State v. Grooms,
653 S.W.2d 271, 275 (Tenn. Crim. App. 1983). Thus, the instruction given in this
case cannot be said to be entirely inappropriate in a prosecution for an attempted
homicide based on Appellant’s participation in a robbery. Nonetheless, such an
instruction has no place in a prosecution of Appellant for attempted second degree
murder based on his personal responsibility. We cannot say that absent this
instruction a jury would have nevertheless convicted Appellant of attempted second
degree murder. We therefore remand Count 2 on the indictment for retrial on the
charge of attempt to commit second degree murder.
Appellant also challenges the constitutionality of the jury instruction
concerning “reasonable doubt”. The trial court instructed the jury:
A reasonable doubt is a doubt based upon reason and common
sense after careful and impartial consideration of all the evidence in
this case.
It is not necessary that the defendant’s guilt be proved beyond
all reasonable doubt, an absolute certainty of guilt is not demanded by
the law to convict of any criminal charge.
A reasonable doubt is just that--a doubt that is reasonable after
an examination of all the facts of this case.
If you find the State has not proven every element beyond a
reasonable doubt, then you should find the defendant not guilty.
Appellant takes issue with only the second sentence of the charge which refers to
the fact that “absolute certainty of guilt is not demanded.”
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It is Appellant’s position that this instruction misled the jury by conveying that
the State has a lesser burden of proof than is required by due process. See In re
Winship, 397 U. S. 358, 364 (1970) (explicitly holding that the Due Process Clause
of the Fourteenth Amendment “protects the accused against conviction except upon
proof beyond a reasonable doubt of every fact necessary to constitute the crime
with which he is charged”). In so arguing, Appellant relies upon Cage v. Louisiana,
498 U. S. 39 91990), in which the Supreme Court held unconstitutional an
instruction which equated a reasonable doubt with a “grave uncertainty” and an
“actual substantial doubt.” The Court held that when the words “substantial” and
“grave,” which suggest a higher degree of doubt than is required under the
reasonable doubt standard, are considered with the instruction’s reference to “moral
certainty,” the jury might convict a defendant on less proof than is required under the
due process clause. Id. at 41.
The jury instruction at issue contains neither the phrase ‘substantial doubt”
nor “grave uncertainty” nor “moral certainty.” Indeed, it was as a result of the
decision in Cage v. Louisiana that the Committee on Pattern Jury Instructions wrote
this particular instruction to appear along with the previous instruction which
included the term “moral certainty.” See T.P.I.--Crim. 2.03 (4th Ed. 1995)
comments. In conclusion, we find that the due process concerns addressed in
Cage are not present in this instruction which adequately defines “reasonable
doubt.”
Moreover, Tennessee Courts have repeatedly held that the traditional
reasonable doubt instruction given in Tennessee is constitutionally adequate. See
State v. Nichols, 877 S.W.2d 722, 734 (Tenn. 1994), cert. denied, 115 S. Ct. 909(1995); State v. Sexton, 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); Pettyjohn v.
State, 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994), app. denied, (Tenn. 1994);
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State v. Hallock, 875 S.W.2d 285, 294 (Tenn. Crim. App. 1993), app. denied, (Tenn.
1994); Marshall v. State, 528 S.W.2d 823, 825 (Tenn. Crim. App. 1975), cert.
denied, (Tenn. 1975).
That instruction states:
Reasonable doubt is that doubt engendered by an investigation
of all the proof in the case and an inability, after such investigation, to
let the mind rest easily as to the certainty of guilt. Reasonable doubt
does not mean a captious, possible or imaginary doubt. Absolute
certainty of guilt is not demanded by the law to convict of any criminal
charge, but moral certainty is required, and this certainty is required as
to every proposition of proof requisite to constitute the offense.
We recognize that one federal district court has concluded that a similar
instruction suggested a standard of proof lower than due process allows, primarily
referring to the “moral certainty” language. See Rickman v. Dutton, 864 F. Supp.
686, 708-09 (M.D. Tenn. 1994). However, the United States Court of Appeals for
the Sixth Circuit has held that the traditional reasonable doubt instruction quoted
above is constitutionally sound. Austin v. Bell, ___ F.3d ___, 1997 WL 602670 (6th
Cir. 1997).
Thus, while the instruction on reasonable doubt actually given the jury was
constitutionally adequate it does not enjoy the long lineage and venerability of the
traditional reasonable doubt instruction. Reasonable doubt is so fundamental a
concept to our system of criminal justice that the understanding of it should not vary
from court to court. Trial court should return to the traditional instruction.
4. USE OF ALIAS IN THE INDICTMENT
In each of his indictments, Appellant was referred to as “Jose Holmes” (also
known as Thomas Smith). Appellant contends that informing the jury “on the front
end by virtue of an indictment” that he used an alias “plants in the jurors’ minds that
there is something wrong with [him] because he wouldn’t otherwise use another
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name.” In a pre-trial oral motion which the trial court denied, Appellant, claiming
undue prejudice, requested that the trial court strike the phrase ”(also known as
Thomas Smith)” from the indictments.
Appellant acknowledges the well-established law of Tennessee that proof of
a defendant’s use of an alias supports its inclusion in the indictment. State v. Zirkle,
910 S.W.2d 874, 887 (Tenn. Crim. App. 1995); Young v. State, 566 S.W.2d 895,
899 (Tenn. Crim. App. 1978) (stating that one who misidentifies himself to police
officers has no legitimate complaint if an alias is used on the indictment). Here, the
record reflects that Appellant identified himself to the police using the name
“Thomas Smith.” Even if no such proof existed and the inclusion of the alias were
erroneous, the error does not warrant a reversal unless is can be shown that the
defendant was prejudiced. State v. Stephenson, 878 S.W.2d 530, 540 (Tenn.
1994). Because of the overwhelming amount of proof incriminating Appellant, there
is no prejudice in this case. See, State v. Laney, 654 S.W.2d 383, 386 (Tenn. 1983)
(erroneous inclusion of defendant’s alias in indictment was not prejudicial where
state’s evidence clearly established defendant’ guilty), cert. denied, 464 U.S. 1003(1983).
Despite Appellant’s acknowledgment of the applicable law with respect to this
issue, he insists that the precise issue that he raises has not been previously
addressed, that is, whether the inclusion of an alias in the indictment violates the
due process clause by eroding Appellant’s presumption of innocence. In support of
this argument, Appellant cites as analogous the obviously improper situation of
alleging in the indictment that a defendant has confessed to the crime. However,
Appellant apparently misperceives the nature of an indictment which is defined by
statute as “an accusation in writing . . . charging a person with an indictable
offense.” Tenn. Code Ann. § 40-13-101(a) (1990). While charging someone with
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an offense does not require a recitation of the proof against that person, it does
require a clear designation of the person who is charged. Recognizing this fact,
Tenn. Code Ann. § 40-13-203 provides as follows:
Certainty as to person charged.--The indictment must be
certain as to the person charged; but when [his] name is
unknown to the grand jury, it may be so alleged without
further identification, or [he] may be indicted under any
name by which [he] is generally know.
The record is unclear as to the point at which Appellant’s real name was discovered,
but at the time of his arrest, Appellant was known to the officer by his alias. Under
these circumstances, the purpose of the indictment was best served by the inclusion
of Appellant’s alias.
Lastly, we point out that appellant has not cited any legal authority for the
proposition that the inclusion of an alias in the indictment unconstitutionally detracts
from his presumption of innocence. W hile “[t]he presumption of innocence . . . is a
basic component of a fair trial under our system of criminal justice,” we find no
specific case which is either on point or which lends support by analogy to
Appellant’s argument. Estelle v. Williams, 425 U.S.501, 503 (1976); see also State
v. Braden, 874 S.W.2d 624, 626 (Tenn. Crim. App. 1993); Willocks v. State, 546
S.W.2d 819, 820 (Tenn. Crim. App. 1976). We therefore find that Appellant was not
deprived of the due process of law by the inclusion of his alias in the indictment.
In summary, the judgment of the trial court finding Appellant guilty of
attempted felony murder is reversed and dismissed. The judgment of conviction for
especially aggravated robbery is affirmed. Count 2 of the indictment is remanded
for trial on a charge of attempted second degree murder.
___________________________
JERRY L. SMITH, JUDGE
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CONCUR
____________________________
PAUL G. SUMMERS, JUDGE
____________________________
JOSEPH M. TIPTON, JUDGE
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