Eric D. Wallace v. Stephen Dotson, Warden

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 5, 2011

ERIC D. WALLACE v. STEPHEN DOTSON, WARDEN

Direct Appeal from the Circuit Court for Hardeman County
No. 10-CR-114 Joseph H. Walker, III, Judge

No. W2010-01784-CCA-R3-HC - Filed May 17, 2011

The Petitioner, Eric D. Wallace, was convicted by a Shelby County Criminal Court jury of
felony murder and attempted first degree murder. He was sentenced to life imprisonment for
the felony murder conviction and to a consecutive fifteen-year sentence as a Range I,
standard offender for the attempted first degree murder conviction, for an effective sentence
of life plus fifteen years. He subsequently filed a pro se petition for writ of habeas corpus
in the Hardeman County Circuit Court, which was summarily dismissed. On appeal, the
Petitioner argues that he is entitled to habeas corpus relief because (1) he asserts that he is
“actually innocent” of the charges, (2) his indictments are defective, and (3) the trial court
improperly instructed the jury on flight. Upon review, we affirm the judgment summarily
dismissing the petition for writ of habeas corpus.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.

Eric D. Wallace, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Jerry Kitchen, Assistant District
Attorney General, for the Appellee, State of Tennessee.

OPINION

Procedural History. The Petitioner was convicted by a Shelby County Criminal
Court jury of felony murder and attempted first degree murder. On June 2, 1995, the trial
court imposed consecutive sentences of life imprisonment and fifteen years as a Range I,
standard offender respectively, for an effective sentence of life plus fifteen years. The
Petitioner filed a direct appeal, and this court affirmed the judgments of the trial court. State
v. Eric D. Wallace, No. 02-C-01-9604-CR-00125, 1997 WL 421011 (Tenn. Crim. App., at
Jackson, July 28, 1997), perm. to appeal denied (Tenn. Apr. 6, 1998).

The Petitioner then filed a petition for post-conviction relief, which was denied. On
appeal, this court affirmed the judgment of the post-conviction court. Eric Wallace v. State,
No. W2000-02854-CCA-R3-CD, 2002 WL 1483204 (Tenn. Crim. App., at Jackson, Feb. 19,
2002), perm. to appeal denied (Tenn. Sept. 9, 2002).

The Petitioner subsequently filed a petition for writ of habeas corpus, which was
summarily dismissed by the Lauderdale County Circuit Court. The Petitioner appealed, and
this court affirmed the judgment of the habeas corpus court. Eric D. Wallace v. James M.
Dukes, Warden, No. W2002-00882-CCA-R3-CO, 2002 WL 31895727 (Tenn. Crim. App.,
at Jackson, Dec. 31, 2002), perm. to appeal denied (Tenn. Mar. 10, 2003).

The Petitioner filed a second petition for writ of habeas corpus in the Hardeman
County Circuit Court, which was also summarily dismissed. On appeal, this court affirmed
the judgment of the habeas corpus court. Eric D. Wallace v. Stephen Dotson, Warden, No.
W2006-00908-CCA-R3-HC, 2007 WL 852173 (Tenn. Crim. App., at Jackson, Mar. 22,
2007), perm. to appeal denied (Tenn. Aug. 13, 2007).

The Petitioner then filed a motion to reopen his petition for post-conviction relief,
which was denied by the Shelby County Criminal Court. The Petitioner appealed, and this
court affirmed the judgment of the post-conviction court. Eric Dewayne Wallace v. State,
No. W2008-00867-CCA-R3-PC, 2009 WL 321294 (Tenn. Crim. App., at Jackson, Feb. 6,
2009).

The Petitioner subsequently filed his third petition for writ of habeas corpus in this
case in the Hardeman County Circuit Court on July 27, 2010. On August 3, 2010, the habeas
corpus court summarily dismissed the Petitioner’s writ for habeas corpus. In the order, the
court held that the Petitioner failed to state a cognizable claim in his petition that would
entitle him to habeas corpus relief. The Petitioner then filed a timely notice of appeal.

Facts. This court summarized the facts for the underlying offenses on direct appeal:

On the evening of July 10, 1992, the defendant and his brother, Percy
Wallace, were walking along Woodlawn Street in Memphis. When they were
passing the Weddle residence, they saw Jimmy Weddle, known in the
neighborhood as “Jim Bodey,” sitting on his front porch with several people
visiting the Weddle residence. The Wallace brothers asked Weddle to meet
them on the sidewalk. They asked Weddle if he knew of anyone who wanted
to purchase illicit narcotics. Weddle told the Wallaces there was a woman and

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a man who desired to make a purchase. The Wallaces told Weddle to send the
individuals to them. They then walked down the street until they came to the
next intersection, Woodlawn and Looney.

Boo Boo Fox, who was driving through the neighborhood, stopped to
purchase drugs from the Wallaces. Weddle walked to the intersection after
Fox stopped his vehicle. Fox asked for a $20 rock of crack cocaine. He gave
the Wallaces $15. He was told he did not have enough money to purchase the
rock. Fox told the Wallaces he would go to the vehicle and get more money.
Fox reached inside the vehicle, obtained a pistol, and told the Wallaces to give
him all of the illicit narcotics and money they had on them. He also made
them lay on the ground. Weddle began walking backwards toward his
residence. Fox obtained the money and drugs, and he fired at the Wallaces.
It appears he grazed Percy Wallace. Fox then drove away.

When Fox left, the Wallaces ran toward their residence. Percy Wallace
and the defendant each obtained a shotgun. They then went to the Weddle
residence as they believed Weddle had assisted Fox in the robbery.
Approximately ten to fifteen minutes expired between the robbery and the
appearance of the Wallaces at the Weddle residence.

When the Wallaces arrived, Weddle and his guests were still sitting on
the front porch. Percy Wallace asked, “Where is Jim Bodey?” He then
exclaimed, “Jim Bodey you a dead man [sic].” When the people saw the
Wallaces were armed, they began running into the Weddle residence. Percy
Wallace fired at Weddle. The shot struck the exterior of the Weddle residence.
Percy Wallace then forced his way into the Weddle residence and fired the
shotgun two more times in an effort to shoot Weddle.

While Percy Wallace was attempting to reload his shotgun, he told the
defendant to shoot anyone who exited the residence. Shortly thereafter, the
victim, Venita Swift, who was celebrating her birthday at the Weddle
residence, decided to exit the residence and go home. She lived across the
street from the Weddles. As she ran from the residence with her arms raised
above her head, the defendant stated: “Hold, bitch.” Swift looked at the
defendant, but she kept running. The defendant raised his shotgun and fired
at Swift. She subsequently fell in the street. A few minutes later she died.

The buckshot from the shotgun struck Swift in the back below her left
shoulder. The pellets continued through her body. Wadding from the shotgun
blast was found under Swift’s skin. Numerous pellets entered her body. The

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 pellets went through the victim’s left lung and struck her heart. The pellets
also struck the victim’s aorta, stomach, spleen, and liver. Two wadding
wounds were found. The pathologist estimated that over 100 pellets entered
the victim’s body. He also estimated the shotgun was approximately ten to
fifteen feet from the victim when it was fired. The pathologist testified the
cause of death was the shotgun wound inflicted by the defendant.

The defendant was arrested by the police at his place of employment.
He was given the Miranda warnings. He readily admitted he shot the victim.
He cooperated with the police in an effort to obtain evidence of the murder.
However, during the trial, the defendant testified the police did not advise him
of the Miranda warnings, and he did not read the statement before signing it.
He emphatically denied shooting the victim. He testified he told the victim to
“get down.”

Eric D. Wallace, 1997 WL 421011, at *1-2.

ANALYSIS

On appeal, the Petitioner argues that he is entitled to habeas corpus relief because he
asserts that he is “actually innocent” of the charges, his indictments are defective, and the
trial court improperly instructed the jury on flight. In response, the State argues that the
habeas corpus court properly denied relief because the Petitioner has failed to establish that
his challenged judgments are void or that his sentences have expired. We agree with the
State.

A prisoner is guaranteed the right to habeas corpus relief under article I, section 15
of the Tennessee Constitution. See also T.C.A. §§ 29-21-101 to -130. The grounds upon
which a writ of habeas corpus may be issued, however, are very narrow. Taylor v. State, 995
S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it
appears upon the face of the judgment or the record of the proceedings upon which the
judgment is rendered’ that a convicting court was without jurisdiction or authority to
sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has
expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).

“The determination of whether habeas corpus relief should be granted is a question
of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21
S.W.3d 901, 903 (Tenn. 2000)). In determining whether to grant habeas corpus relief, our
review is de novo without a presumption of correctness given to the lower court’s findings
and conclusions. Summers, 212 S.W.3d at 255 (citing State v. Livingston, 197 S.W.3d 710,
712 (Tenn. 2006)).

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 “[T]he purpose of a habeas corpus petition is to contest void and not merely voidable
judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel. Newsom v.
Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)). “A void judgment is one in which the
judgment is facially invalid because the court lacked jurisdiction or authority to render the
judgment or because the defendant’s sentence has expired.” Taylor, 995 S.W.2d at 83 (citing
Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998); Archer, 851 S.W.2d at 161-64.
However, “a voidable judgment is facially valid and requires the introduction of proof
beyond the face of the record or judgment to establish its invalidity.” Hickman v. State, 153
S.W.3d 16, 24 (Tenn. 2004) (citing State v. Ritchie, 20 S.W.3d 624, 630-31 (Tenn. 2000));
see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007) (citing Dykes, 978 S.W.2d at
529). Thus, “[i]n all cases where a petitioner must introduce proof beyond the record to
establish the invalidity of his conviction, then that conviction by definition is merely
voidable, and a Tennessee court cannot issue the writ of habeas corpus under such
circumstances.” Ritchie, 20 S.W.3d at 633. Additionally, “[i]f the court rendering a
judgment has jurisdiction of the person, the subject-matter, and has the authority to make the
challenged judgment, the judgment is voidable, not void; and the judgment may not be
collaterally attacked in a suit for habeas corpus relief.” Passarella v. State, 891 S.W.2d 619,
627 (Tenn. Crim. App. 1994), superseded by statute as stated in State v. Steven S. Newman,
No. 02C01-9707-CC-00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim. App., at Jackson, Mar.
11, 1998).

It is the petitioner’s burden to demonstrate, by a preponderance of the evidence, that
the judgment is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322
(Tenn. 2000). If this burden is met, the Petitioner is entitled to immediate release. State v.
Warren, 740 S.W.2d 427, 428 (Tenn. Crim. App. 1986) (citing Ussery v. Avery, 432 S.W.2d
656, 658 (Tenn. 1968)).

However, if the habeas corpus court determines from the petitioner’s filings that no
cognizable claim has been stated and that the petitioner is not entitled to relief, the petition
for writ of habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20; see
also T.C.A. § 29-21-109 (2006). The habeas corpus court may summarily dismiss the
petition without the appointment of a lawyer and without an evidentiary hearing if there is
nothing on the face of the judgment to indicate that the convictions are void. Passarella, 891
S.W.2d at 627. “The petitioner bears the burden of providing an adequate record for
summary review of the habeas corpus petition, including consideration of whether counsel
should be appointed.” Summers, 212 S.W.3d at 261.

A trial court’s facially valid judgment cannot be collaterally attacked in a petition for
habeas corpus relief. Archer, 851 S.W.2d at 162. Instead, a Petitioner must challenge a
facially valid judgment on constitutional grounds in a petition for post-conviction relief.
Lewis v. Metro. Gen. Sessions Court for Nashville, 949 S.W.2d 696, 699 (Tenn. Crim. App.

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1996) (citing Luttrell v. State, 644 S.W.2d 408, 409 (Tenn. Crim. App. 1982)); see also
Fredrick v. State, 906 S.W.2d 927, 929 (Tenn. Crim. App. 1993).

I. Sufficiency of the Evidence. First, the Petitioner argues that he is entitled to
habeas corpus relief because he is “actually innocent” of the charges in this case. The State
responds that the Petitioner’s first issue is essentially a sufficiency of the evidence claim,
which is not cognizable in a habeas corpus proceeding. We agree. See Myers v. State, 462
S.W.2d 265, 267 (Tenn. Crim. App. 1970) (“Habeas corpus and post-conviction proceedings
may not be employed to question or review or test the sufficiency of the evidence at the
original trial.”); William C. Brothers v. State, No. W2008-00748-CCA-R3-HC, 2009 WL
1643434, at *3 (Tenn. Crim. App., at Jackson, June 12, 2009), perm. to appeal denied (Tenn.
Oct. 26, 2009) (“To the extent that the petitioner challenges the sufficiency of the evidence,
. . . those claims do not present cognizable grounds for habeas corpus relief.”); Jackie F.
Curry v. State, No. E2007-02526- CCA-R3-HC, 2008 WL 3066823, at *2 (Tenn. Crim. App.,
at Knoxville, Aug. 4, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008) (“[A]n attack on
the sufficiency of the evidence is not a proper basis for habeas corpus relief.”).

Moreover, this court previously concluded that the evidence was sufficient to support
the Petitioner’s convictions for felony murder and attempted first degree murder on direct
appeal:

Before an accused can be convicted of murder in the perpetration of a
felony, the State of Tennessee is required to prove beyond a reasonable doubt
(a) the accused recklessly killed the victim and (b) the killing occurred during
the perpetration, or attempt to perpetrate, one of the enumerated felonies set
forth in the statute. Tenn. Code Ann. § 39-13-202(a)(2). In this case, the State
of Tennessee’s theory was the defendant recklessly killed the victim while the
defendant and his brother were attempting to commit murder in the first
degree. The intended victim was Jimmy Weddle.

The defendant does not challenge the fact he recklessly killed the
victim. The evidence of this fact is overwhelming. The defendant gave the
police officers a statement admitting he shot and killed the victim. In addition,
several eyewitnesses testified the defendant was the person who shot and killed
the victim. However, the defendant contends he did not commit the offense
of attempt to commit murder first degree. He argues the State of Tennessee
failed to establish the offense was committed with deliberation, which is to say
“committed with coolness and reflection and without passion or provocation.”

The question this Court must resolve is whether the element of
deliberation was established by the evidence.

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 When this offense was committed, the term deliberation was defined by
statute as an act “performed with a cool purpose.” Tenn. Code Ann. §
39-13-201(b)(1). The defendant contends his status of being a victim of the
robbery, the shooting, and his belief Weddle was acting in concert with Fox
created excitement and passion. He argues this excitement and passion had not
subsided prior to the criminal conduct in question.

In this case, the defendant and his brother, Percy, left the situs of the
armed robbery-shooting, went to their residence, armed themselves with
shotguns, and went to the Weddle residence. A rational jury could have found
fifteen minutes elapsed from the time of the robbery-shooting and the
defendant’s appearance at the Weddle residence.

A reasonable and prudent person would have called the police and
reported the crime. If the Wallaces reported the robbery-shooting to the police,
they would have had to admit they were selling illicit narcotics, and Fox took
their money and illicit narcotics. Thus, they did not report the crime to the
police. However, the Wallaces felt compelled to establish there was a price to
pay when someone committed a criminal act against them. In other words, the
Wallaces wanted to deter such conduct in the future. They became the police,
judge, jury, and executioner.

There was a concerted effort to kill Weddle. Percy Wallace fired at
Weddle as he ran into the dwelling. He then forced his way into the dwelling
where he fired twice. While Percy Wallace was attempting to reload the
shotgun, he told the defendant to shoot anyone who left the dwelling. When
the innocent victim left the residence with her hands held above her head, the
defendant shot her in the back from a distance of ten to fifteen feet.

This Court concludes the evidence contained in the record supports a
finding by a rational trier of fact [that] the defendant recklessly shot the victim
during an attempt to commit first degree murder beyond a reasonable doubt.
Tenn. R. App. P. 13(e). See Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). Based upon the facts contained in the record, the jury
could reasonably conclude sufficient time had elapsed for any excitement or
passion to dissipate.

Eric D. Wallace, 1997 WL 421011, at *2-4. Accordingly, the Petitioner is not entitled to
relief on this issue.

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 Within this first issue, the Petitioner also claims that the felony murder and attempted
first degree murder indictments are void because “the killing [of Swift] must have been done
in pursuance of, rather than collateral to, the attempt[ed first degree] murder, in relation to
the natural and probable consequence rule, thereby rendering the convictions and sentence
void and unconstitutional.” In addition, the Petitioner asserts that although “the jury was
instructed on the theory of criminal responsibility for the conduct of another . . . [it] was not
instructed on the natur[al] and probable consequence rule of the target crime, which is an
essential element that the State must prove beyond a reasonable doubt before the petitioner
can be convicted of felony murder and attempted first degree murder based on equal criminal
liability for principals, accessories before the fact, and aiders and abettors[.]” Moreover, the
Petitioner contends that “the State offered no evidence of the elements for the natur[al] and
probable consequence rule of the target crime.”

In State v. Howard, 30 S.W.3d 271 (Tenn. 2000), the Tennessee Supreme Court held
that the natural and probable consequences rule “underlies the doctrine of criminal
responsibility and is based on the recognition that aiders and abettors should be responsible
for the criminal harms they have naturally, probably and foreseeably put into motion.” Id.
at 276 (Tenn. 2000) (citing State v. Carson, 950 S.W.2d 951, 954-55 (Tenn. 1997); Key v.
State, 563 S.W.2d 184, 186 (Tenn. 1978); State v. Grooms, 653 S.W.2d 271, 275 (Tenn.
Crim. App. 1983)). The court also established a three-part test for the natural and probable
consequences rule:

[T]o impose criminal liability based on the natural and probable consequences
rule, the State must prove beyond a reasonable doubt and the jury must find the
following: (1) the elements of the crime or crimes that accompanied the target
crime; (2) that the defendant was criminally responsible pursuant to Tennessee
Code Annotated section 39-11-402; and (3) that the other crimes that were
committed were natural and probable consequences of the target crime.

Id. The Tennessee Supreme Court again considered the natural and probable consequences
rule in State v. Richmond, 90 S.W.3d 648 (Tenn. 2002), wherein it stated:

The natural and probable consequences rule arose as a common law
component of criminal responsibility and extends criminal liability to the crime
intended by a defendant, and collateral crimes committed by a co-defendant,
that were the natural and probable consequences of the target crime.

Id. at 654 (citing Carson, 950 S.W.2d at 954).

Here, the Petitioner argues that Swift’s homicide was not foreseeable at the time he
committed the attempted first degree murder offense. However, in State v. Winters, 137

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S.W.3d 641, 659 (Tenn. Crim. App. 2003), this court specifically held that the offense of
felony murder does not require that the homicide committed during the underlying felony be
foreseeable:

[T]he felony murder statute, both as it existed at the time of the crime and
today, does not require that a homicide committed during the course of one of
the enumerated felonies be foreseeable. See Tenn. Code Ann. § 39-13-
202(a)(2) (1997 & 2003); State v. Hinton, 42 S.W.3d 113, 119 (Tenn. Crim.
App. 2000), perm. app. denied (Tenn. 2001). “When one enters into a scheme
with another to commit one of the felonies enumerated in the felony murder
statutes, and death ensues, both defendants are responsible for the death
regardless of who actually committed the murder and whether the killing was
specifically contemplated by the other.” Id. (citing State v. Brown, 756
S.W.2d 700, 704 (Tenn. Crim. App. 1988)).

Regarding this issue, the State asserts that while the prosecution in this case sought
to convict the Petitioner of attempted murder of Weddle based on the theory of criminal
responsibility, the prosecution charged the Petitioner as the principal in the felony murder of
Swift. Accordingly, the State argues that an instruction on the natural and probable
consequences rule was not necessary for the offense of felony murder because the Petitioner
was not charged with or found guilty of Swift’s death under the theory of criminal
responsibility. See State v. Marlon Orlando Walls, No. M2003-01854-CCA-R3-CD, 2006
WL 151923, at (Tenn. Crim. App., at Nashville, Jan. 19, 2006) perm. to appeal denied
(Tenn. May 30, 2006) (“Because Defendant was not charged with and held liable for the
victim’s death under a criminal responsibility theory, an instruction on the natural and
probable consequences rule as to the offense of especially aggravated kidnapping was not
required.”); State v. Jason D. Pillow, No. M2002-01864- CCA-R3-CD, 2004 WL 367747,
at *11 (Tenn. Crim. App., at Nashville, Feb. 27, 2004), perm. to appeal denied (Tenn. June
21, 2004) (“Because the defendant was not charged with or held liable for [the victim’s]
death under a theory of criminal responsibility, an instruction on the natural and probable
consequences rule was not required as to that offense.”). This court’s opinion on direct
appeal indicates that there was “overwhelming” evidence that the Petitioner recklessly killed
Swift. The court specifically noted that the Petitioner provided a written statement to the
police admitting that he killed Swift and that several eyewitnesses testified at trial that the
Petitioner was the individual who shot Swift. Accordingly, we agree with the State that the
record supports the view that Petitioner was charged and held liable for Swift’s death as a
principal. However, we also note that, even if the Petitioner was not charged with or found
guilty of Swift’s death as a principal, an instruction on the natural and probable consequences
rule was not required in light of Winters.

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 Finally, the Petitioner asserts that, because his brother, Percy Wallace, was allowed
to enter a plea of guilty in this case to second degree murder, the Petitioner and his brother
no longer shared the same criminal intent regarding the felony murder indictment, which he
claims is required before concluding that Swift’s death was the “natural and probable
foreseeable consequence.” He asserts that Percy Wallace’s guilty plea to second degree
murder deprived him of due process and equal treatment under the law and prevented the jury
from determining whether the attempted murder of Weddle had ended before imposing
criminal liability for the death of Swift. The Petitioner cites no authority to support these
arguments. Accordingly, this issue is waived. See Tenn. Ct. Crim. App. R. 10(b) (“Issues
which are not supported by argument, citation to authorities, or appropriate references to the
record will be treated as waived in this court.”); Tenn. R. App. P. 27(a)(7) (A brief shall
contain “[a]n argument . . . setting forth the contentions of the appellant with respect to the
issues presented, and the reasons therefore, including the reasons why the contentions require
appellate relief, with citations to the authorities and appropriate references to the record . .
. relied on.”). Accordingly, the Petitioner is not entitled to relief on this issue.

II. Defective Indictment. The Petitioner also argues that his felony murder and
attempted first degree murder indictments were defective. First, he contends that the State
at trial only proved that he acted knowingly and intentionally, rather than recklessly as
charged in the indictment for felony murder. Second, the Petitioner argues that Percy
Wallace’s guilty plea to second degree murder shows that the Petitioner was not “an
accomplice in the commission of, or an attempt to commit, or flight after committing or
attempting to commit the . . . murder of Jimmy Weddle” and if the Petitioner’s actions were
not reckless but knowing regarding the murder of Swift, then the reckless element of felony
murder was not established by the prosecution. The State responds that the trial court
properly determined that the indictment sufficiently informed the Petitioner of the charges
against him. The State also argues that this issue “appears to be a veiled attempt to again
attack the sufficiency of the convicting evidence, which is not a valid claim in habeas
corpus.” We agree with the State.

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. Pursuant to State v. Hill, 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.

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954 S.W.2d at 727 (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

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 (2006).

We note that typically a defendant must raise an objection to a defect in the indictment
prior to trial. Tennessee Rule of Criminal Procedure 12(b)(2) states that a failure to raise an
objection prior to trial based on a defect in the indictment generally results in waiver. Tenn.
R. Crim. P. 12(b)(2)(B); see also Wyatt, 24 S.W.3d at 322. However, “an indictment that is
so defective as to fail to vest jurisdiction in the trial court may be challenged at any stage of
the proceedings, including in a habeas corpus petition.” Wyatt, 24 S.W.3d at 323 (citing
Tenn. R. Crim. P. 12(b)(2); Dykes, 978 S.W.2d at 529).

Here, the indictment charging the Petitioner with felony murder of Swift provided:

THE GRAND JURORS of the State of Tennessee, duly selected,
empaneled, sworn and charged to inquire for the body of the county of Shelby,
Tennessee, upon their oath, present that:

ERIC D. WALLACE
and
PERCY WALLACE

on July 10, 1992, in Shelby County, Tennessee, and before the finding of this
indictment, did unlawfully and recklessly kill VENITA SWIFT during and
[sic] attempt to perpetrate First Degree Murder, in violation of T.C.A. 39-13-
202, against the peace and dignity of the State of Tennessee.

In addition, the indictment charging the Petitioner with attempted first degree murder of
Weddle provided:

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 THE GRAND JURORS of the State of Tennessee, duly selected,
impaneled, sworn and charged to inquire for the body of the county of Shelby,
Tennessee, upon their oath, present that:

ERIC D. WALLACE
and
PERCY WALLACE

on July 10, 1992, in Shelby County, Tennessee, and before the finding of this
indictment, did unlawfully attempt to commit the offense of First Degree
Murder as defined in T.C.A. 39-13-202, in that they, the said Eric D. Wallace
and the said Percy Wallace did unlawfully, intentionally, deliberately, and with
premeditation attempt to kill JIMMY WEDDLE by use of a deadly weapon,
to wit: a firearm and did cause the said JIMMY WEDDLE to reasonably fear
imminent bodily injury, in violation of T.C.A. 39-12-101, against the peace
and dignity of the State of Tennessee.

The Petitioner has failed to establish that these indictments are defective. In fact, this
court, in the Petitioner’s appeal from the summary dismissal of his first petition for writ of
habeas corpus on the instant charges, specifically concluded, “The indictments meet the
criteria as set out in Tennessee Code Annotated section 40-13-202, as they are sufficient to
apprize petitioner of the charges for which he needed to prepare.” Eric D. Wallace, 2002 WL
31895727, at *2.

Moreover, the State asserts that the Petitioner’s defective indictment issue “appears
to be a veiled attempt to again attack the sufficiency of the convicting evidence, which is not
a valid claim in habeas corpus.” We agree. The State further asserts that “[t]o the extent that
the petitioner might be arguing that there is a fatal variance between the charges alleged in
the indictment and the proof presented at trial, that issue has also been addressed by this
Court in a previous habeas [corpus] proceeding.” We also agree with the State on this point.
In the Petitioner’s appeal from the summary dismissal of his second petition for writ of
habeas corpus on these charges, the court concluded, “[T]he [Petitioner’s] allegation of a
fatal variance between the indictment and proof at trial is not a cognizable ground for habeas
corpus relief.” Eric D. Wallace, 2007 WL 852173, at *2 (citing William T. Yelton v. Robert
Waller, Warden, No. M2004-02529-CCA-R3-HC, 2006 WL 119628, at *1 (Tenn. Crim.
App., at Nashville, Jan. 17, 2006); Stephen Lajuan Beasley v. State, No.
E2005-00367-CCA-MR3-HC, 2005 WL 3533265, at *4 (Tenn. Crim. App., at Knoxville,
Dec. 27, 2005), perm. to appeal denied (Tenn. May 30, 2006); Byron Edwards v. State, No.
E2004-00918-CCA-R3-HC, 2004 WL 2951975, at *1-2 (Tenn. Crim. App., at Knoxville,
Dec. 20, 2004), perm. to appeal denied (Tenn. Mar. 21, 2005)). Accordingly, the Petitioner
is not entitled to relief on this issue.

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 III. Trial Court’s Instruction on Flight. The Petitioner lastly argues that he is
entitled to habeas corpus relief because the trial court provided the jury with a “flawed”
instruction on flight. He contends that flight was not enough to convict him of felony murder
because, while the evidence showed him leaving the scene, it did not show “a subsequent
hiding out, evasion, or concealment in the community, or a leaving of the community for
parts unknown, to constitute flight” pursuant to Rogers v. State, 455 S.W.2d 182, 187 (Tenn.
1970). In response, the State contends that “even if the instruction was erroneous, it would
not render the judgment void.” We agree with the State. See Rain Thomas Chesher v.
Stephen Dotson, Warden, No. W2008-00739-CCA-R3-HC, 2008 WL 3892017, at *2 (Tenn.
Crim. App., at Jackson, Aug. 22, 2008), perm. to appeal denied (Tenn. Jan. 20, 2009) (“[T]he
petitioner’s challenges to the jury instructions, even if proven, would render his conviction
voidable, not void.”); Rodney L. Tipton v. Howard Carlton, Warden, No.
E2007-02625-CCA-R3-HC, 2008 WL 3539727, at *2 (Tenn. Crim. App., at Knoxville, Aug.
14, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008) (“A claim of erroneous jury
instructions is not a cognizable basis for habeas corpus relief.”); Jackie F. Curry v. State, No.
E2007-025320-CCA-R3-HC, 2008 WL 3066823, at *4 (Tenn. Crim. App., at Knoxville,
Aug. 4, 2008), perm. to appeal denied (Tenn. Dec. 8, 2008) (“This Court has repeatedly
found that erroneous jury instructions cannot form the basis for habeas corpus relief.”). The
Petitioner is not entitled to relief on this issue.

The Petitioner has not established that his judgments are void and has not argued or
established that his sentences have expired. Accordingly, the court’s dismissal of the petition
for writ of habeas corpus was proper.

CONCLUSION

The habeas corpus court’s summary dismissal of the petition for writ of habeas
corpus is affirmed.

______________________________
CAMILLE R. McMULLEN, JUDGE

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