State v. William Whitt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
WILLIAM EDWARD WHITT, )
)
Petitioner, ) C. C. A. NO. 02C01-9704-CC-00140
)
vs. ) LAKE COUNTY
STATE OF TENNESSEE,
)
) No. 97-7593 FILED
)
Respondent. ) July 1, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
ORDER
This matter is before the Court upon the state’s motion to affirm the
judgment of the trial court under Rule 20, Rules of the Court of Criminal Appeals. The
case before this Court represents an appeal from the trial court’s denial of the
petitioner’s petition for writ of habeas corpus. The record was filed on April 8, 1997,
and the petitioner filed his brief on April 21, 1997. Although the record does not contain
a copy of the indictment at issue, thereby precluding the Court from conducting an
adequate review, the petitioner asserts in his brief that he was originally indicted for
aggravated rape in October 1985, and subsequently convicted of the same. In the
present appeal, the petitioner contends the judgment entered against him is void
because the indictment failed to allege the mens rea of the offense charged.
Having reviewed the state’s motion in light of the petitioner’s response
and the entire record on appeal, we conclude that the motion is well-taken and should
be granted. The trial judge dismissed the petitioner’s petition, stating that “[a]llegations
concerning the sufficiency of an indictment are not subject to habeas corpus relief.”
The trial court also overruled the petitioner’s motion to reconsider the order dismissing
the original petition. It is well established that challenges to the sufficiency of an
indictment cannot be tested in a habeas corpus proceeding. See Haggard v. State, 475
S.W.2d 186, 187 (Tenn. Crim. App. 1971); Brown v. State, 445 S.W.2d 669, 674 (Tenn.
Crim. App. 1969). A panel of this Court recently held the same in a capital case.
Barber v. State, No. 01C01-9408-CR-00281 (Tenn. Crim. App., Feb. 23, 1995).
Nonetheless, we have considered the substance of the petitioner’s claim
and determine it to be without merit. At the time of the offense in this case, aggravated
rape was defined as the “unlawful sexual penetration of another accompanied” by
certain enumerated aggravating circumstances, including that the defendant causes
personal injury to the victim. T.C.A. § 39-2-603 (1982). The petitioner contends the
indictment at issue here charged that the petitioner did “unlawfully and feloniously
engage in sexual penetration of [the victim] by use of fear and coercion and
accompanied by and causing personal injury to [the victim].” This language was
sufficient under the law as it existed at the time. The statutory requirements for an
indictment were found in § 40-1802 (now § 40-13-202 (1990)), which provided simply
that:
The indictment must state the facts constituting the offense in
ordinary and concise language, without prolixity or repetition, in such a
manner 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.
Furthermore, in Campbell v. State, 491 S.W.2d 359, 361 (Tenn. 1973)
(emphasis supplied), while addressing the sufficiency of an indictment charging the
offense of murder, our Supreme Court stated the following:
While it seems clear that the indictment in Witt was insufficient in
that it failed to charge an element, that the murder was committed
unlawfully, in either the language of the statute or common law or words
of equivalent import, the decision is confusing because of the language,
‘fatally defective in omitting the charge that the offense was committed
feloniously, or with malice aforethought; and containing no words of
equivalent import.’ It is clear, however, that had the indictment used the
words ‘feloniously’ or ‘unlawfully’, it would have been sufficient.
We agree with this proposition. By containing the words found in the language of the
statute, the indictment at issue here sufficiently apprised the appellant of the offense
charged under the law at the time, and is therefore valid. See State v. Dison, No.
03C01-9602-CC-00051 (Tenn. Crim. App., Jan. 31, 1997). Thus, the petitioner’s attack
must fail.
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For the reasons stated above, it is hereby ORDERED, pursuant to Rule
20, Rules of the Court of Criminal Appeals, that the judgment of the trial court
dismissing the petition for writ of habeas corpus is affirmed. Costs of this appeal shall
be assessed against the petitioner.
Enter, this the ___ day of June, 1997.
__________________________________
DAVID G. HAYES, JUDGE
__________________________________
JOE B. JONES, PRESIDING JUDGE
__________________________________
JOE G. RILEY, JUDGE
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