William Terry Wyatt

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
OCTOBER SESSION, 1998 February 16, 1999

Cecil Crowson, Jr.
Appellate C ourt Clerk

WILLIAM TERRY WYATT, ) C.C.A. NO. 03C01-9802-CC-00057
)
Appe llant, )
) BLEDSOE COUNTY
V. )
)
) HON. THOMAS W. GRAHAM, JUDGE
STATE OF TENNESSEE, )
)
Appellee. ) (HABEAS CORPUS)

FOR THE APPELLANT: FOR THE APPELLEE:

WILL IAM TE RRY WYAT T, pro se JOHN KNOX WALKUP
Southe astern T ennes see Sta te Attorney General & Reporter
Region al Corre ctional Fa cility
Route 4, Box 600 ELIZABETH B. MARNEY
Pikeville, TN 37367-9243 Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
 OPINION
The Petitioner, William Terry Wyatt, appeals the trial cou rt’s dism issal of h is

pro se petition for writ of habeas corpus . We affirm the ju dgme nt of the trial co urt.

Petitioner was indicted for attempted first-degree murd er, esp ecially

aggravated kidnapping, aggravated rape, and theft over a thousand dollars. On

February 3, 1995 , Petitioner pled guilty to attempted second degree murder and

kidnapping. He was sentenced to concurrent terms of eight (8) and four (4) years.

Although no official “filed” date appears on the petition, it appears that Petitioner filed

a pro se petition for writ of habeas corpus in the Bledsoe County Circuit Court on

August 27, 1997. The trial court denied his petition on December 10, 1997.

Petitioner now brings this appeal of the trial court’s dismissal of his petition for

habeas corpus relief and raises the following four issues: (1) the indictment charging

him with attempted first degree murder was insufficient because it did not allege an

overt act; (2) count two of the indictment charging the offense of esp ecially

aggravated kidnapping was insufficient because it did not allege the requisite mens

rea; (3) the in dictm ent ch arging him with attempted first degree murder was “flawed”

because the crime occurred in White County, not in Cumberland County; and (4)

the trial court should have considered his application for writ of habeas corpus as a

petition for p ost-con viction relief.

It is a we ll-estab lished principle of law th at the re med y of hab eas c orpus is

limited in its nature a nd its sco pe. Archer v. State, 851 S.W.2d 157, 161-62 (Tenn.

1993); Passarella v. State, 891 S.W .2d 619 , 626 (T enn. C rim. App . 1994). In

Tennessee, habeas corpus relief is a vailable only if “‘it appears upon the face of the

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judgment or the record of the pro ceed ings u pon w hich th e judg men t 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,

851 S.W.2d at 164 (citation omitted in original). The petitioner has the burden of

establishing either a void judgment or an illegal confinement by a preponderance of

the evidenc e. Pass arella , 891 S.W .2d at 627 . Moreover, where a judgment is not

void, but is merely voidable, such judgment may not be collate rally atta cked in a suit

for habe as corp us relief. Id.

Defenses based on defe cts in the indictment are u sually foreclosed if they are

not raised prior to trial. Tenn. R. Crim. P. 12(b)(2) and (f). However, Rule 12(b)(2)

also provides that a court shall notice at any time during the pendency of the

proceedings the defense that the indictment fails to show jurisdiction in the court or

that it fails to charge an offense. Dykes v. Compton, 978 S.W .2d 528 (Te nn. 1998).

In the case sub judice, Petitioner contends that the indictm ent is so defec tive that it

failed to clothe th e court w ith jurisdiction to enter a judgment of convic tion. A v alid

indictment is an essential jurisdictional element, without which there can be no

prosecution. See State v. Hill, 954 S.W .2d 725 , 727 (T enn. 19 97); State v. Stokes,

954 S.W.2d 729, 730 (Tenn. 1997). “Because a habeas corpus proceeding will

allow us to examine the record -- includin g the indic tment -- it is an approp riate

vehicle to determine whether a jud gment is void.” Dykes v. Compton, 978 S.W.2d

at 529.

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 I.

W e mus t determ ine wh ether P etitione r is entitled to relief under the

circumstances of this case. The first defect complained of is tha t the ind ictme nt fails

to allege an overt act. Petitioner mainly relies upon criminal conspiracy cases for

this propo sition. A s state d by this Cour t in a sim ilar cas e, “[t]he fallacy w ith this

argument is that the in dictme nt does not char ge the a ppellant w ith consp iring to

com mit an offense. The indictment charges him with the co mm ission of a

substantive offense, attem pt to comm it murder in the first degre e.” State v.

Stampley, C.C.A. No. 02-C-01-9409-CR-00208, slip op. at 7, Shelby County (Tenn.

Crim. App., Jackso n, Aug. 16, 19 96) (Rule 11 application den ied, Jan. 27, 199 7).

The Stampley case involved an indictment almost identical to the indictment in the

present case. The indictment in the case before us reads in pertinent part as follows:

[O]n the 7th day of March, 1994, in Cum berland Co unty,
Tennessee, and before the finding of this indictment, did
unlawfully, intentionally, deliberately and wit h
premeditation attempt to kill [victim] in violation of T.C.A.
39-12-101, and ag ainst the p eace a nd dign ity of the
[S]tate of T ennes see.

This Court ruled in Stampley that the “language clearly alleges that the appellant

committed the offense of attempt to commit murder in the first degree,” and that the

issue was witho ut merit. Id. We agree with that reasoning and find that the

language, “did . . . attempt to kill [victim],” necessarily infers that an overt act was

committed by Petitione r. But cf. State v. Michael K. Christian, Jr., C.C.A. No. 03C01-

9609-CR-00336, Sullivan C ounty (T enn. C rim. App ., Knoxville, Mar. 23, 19 98) (R ule

11 app lication filed, M ay 26, 19 98). Th is issue is w ithout me rit.

II.

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 In the second issue, the defect complained of is the omission from the

indictment of any reference to the culpable mental state of “knowing” for the offense

of especially aggravated kidnapping. Because of this omissio n, Petitione r asserts

that the indictm ent failed to provide th e convictin g court with subject matter

jurisdiction to impose judgment. However, the failure to charge a culpable mental

state is not a defect so long as the indictment performs its essential constitutional

and sta tutory purp oses. Hill, 954 S.W .2d at 729 .

The c ount of the indictme nt which P etitioner ch allenges states in p art:

[O]n the 7th day of Marc h, 1994, in Cu mberland County,
Tennessee, and before the finding of this ind ictme nt, did
unlaw fully remove o r confine [victim] so as to inte rfere
subs tantially with her libe rty and did cause [victim] to suffer
serious bodily injury in violation of T.C.A. 39-13-305 (a)(4),
and against the peace and dignity of the State of
Tennessee.

Espe cially aggravated kidnapping is defined as false imprisonment

accompanied by one o f the factors set forth in Tenn. Code Ann. § 39-13-305. Here,

the indictment allege s subsection (a)(4), namely, Petitioner committed this offense

and as a result, the victim suffered seriou s bod ily injury. Tenn. Code Ann. § 39-13-

305(a)(4). The elements of the offense in the context of this case a re: (a) the

unlawful and knowing removal or confinement of another person; (b) substantial

deprivation of the p erson ’s liberty; and (c) the victim suffered serious bodily injury.

Tenn. Code Ann. § 39-13-302(a) and -305(a)(4). The mens rea for this o ffense is

“knowingly.” W hile the indictment does not allege the offense was committed

“knowin gly,” the question becomes whether the facts contained in the indictmen t are

sufficient to allege that the offens e was in fact com mitted “know ingly.” See State v.

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Billy Joe Sm ith, C.C.A. No. 0 3-C-01-95 08-CC-0 0250, Unicoi County (Tenn. Crim.

App., Knoxville, Feb . 11, 1997) (m andate issue d, Oct. 9, 1998 ).

The term “unlawful,” as used in the false imprisonment statute, Tenn. Code

Ann. § 39-13-302, means, among other things, that the offense was “accomplished

by force, threat or fraud.” T enn. Cod e Ann. § 39 -13-301(2). This indictment alleges

that the victim was removed or confined by Petitioner, which necessarily implies the

use of “force.” This allegation, coupled with the averment that Petitioner caused the

victim to suffer serious bodily injury, makes it obvious th at Petitione r desired to

com mit the offens e, and d id so kno wingly. See Smith , C.C.A. N o. 03-C-01-9508-

CC-0 0250, s lip op. at 9. T his issue is without m erit.

III.

In this issue, Petitioner claims that the convicting court lacked territorial

jurisdiction to try him on the attempted first-degree murder charge because the crime

occurred in anothe r county. Since it may be argued that venue raises a jurisdictional

issue, and this Court is required to determine whether a trial court has jurisdiction of

a particular controversy, this issue will also be considered on the me rits. See State

v. Turner, 919 S.W .2d 346 , 358 (T enn. C rim. App . 1995), perm. to appeal denied

(Tenn . 1996).

The indictment returned by the Cumberland County Grand Jury states that the

attempted murder was committed in Cumberland County. Petitioner made the

preliminary hearin g an e xhibit to h is petition, and he relies upon the testimony of the

victim from the prelimina ry hearing where s he stated that Petitioner attemp ted to

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back over her w ith a car in Spar ta, Te nnes see w hich is in Wh ite County. How ever,

the victim did not at any tim e state that this is where the attempted murder occurred.

In fact, the victim stated that all four offenses charged in the in dictm ent oc curred in

Cumberland County. Furthermore, the following incidents , which we re testified to

at the pre limina ry hea ring, all o ccurred in Cumberland County: Petitioner fired

several gun shots at victim’s feet; he hit her in the chest and back with a g un; he hit

her numerous times in the face until she was knocked unconscious; and he would

not allow her to go home to get a “nitro” patch for her chest pains. All of these

instances could be the basis for attempted first degree murder in Count One of the

indictment. This proof is sufficient to establish venue by a preponderance of the

evidence in Cum berlan d Cou nty. Te nn. C ode A nn. § 3 9-11- 201(e ). This issue is

without m erit.

IV.

W e note that although it appears Petitioner is no longer pursuing the issue

that the trial c ourt sh ould h ave co nside red his application for writ of habeas corpus

as a petitio n for po st-con viction re lief, we w ill none theles s briefly address the issue.

See Ten n. Co de An n. § 40 -30-2 05(c). Ther e is no evidence in the record that

Petitioner pursued a direct ap peal of his Februa ry 3, 1995 , guilty plea convictions.

At the time the Petitioner’s convictions became final, the statute of limitations

applic able to post-conviction proceedings was three years. Tenn. Code Ann. § 40-

30-102 (repealed 1995). In 1995, the legislature reduced the statutory period for

filing post-conviction petitions from three (3) years to one (1) year. Tenn. Code Ann.

§ 40-30-2 02(a). The new 1995 Post-C onvictio n Act g overn s this pe tition an d all

petitions filed after May 10, 1995. Because the previous three-year statute of

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limitations had not expired for the Petitioner at the time the new Act too k effec t, his

right to petition for post-co nviction relief s urvived un der the n ew Act. See Carter v.

State, 952 S.W.2d 417, 420 (Tenn. 1997). As a result, the Petitioner had one year

from the effective date of the new Act, May 10, 1995, to file fo r post-co nviction relief.

Tenn. Code Ann. § 40-30 -202( a) and -201. T he Pe titioner file d his petition for p ost-

conviction relief on or about August 27, 1997. There fore, a pe tition for post-

conviction relief would b e time-b arred. Also, the petition raises no viable exception

for tolling the statute. Ten n. Code A nn. § 40-30-2 02(b).

Additio nally, P etitione r was c onvicte d in Cu mbe rland C ounty . His petition for

writ of habeas corpus was filed in Bledsoe County, the proper venue for habeas

corpus relief but not post-conviction relief. Comp are Tenn. Code Ann. § 40-30-

204(a) (post-c onvictio n petitio n shall be filed in court where conviction occurred)

with Tenn. Code Ann. § 29-21-105 (petition for writ of ha beas corpu s sha ll be filed

in court “most convenient in point of distance” to petitioner unless a sufficient reason

is given in the petition). Accordingly, we conclude that the trial court did not err by

failing to treat the application as one for pos t-conviction relief, and th erefore, a

summ ary dismissal of the petition was appropriate. Tenn. Code Ann. § 40-30-

206(b).

Based on all the for egoing , we affirm th e judgm ent of the tria l court.

____________________________________
THOMAS T. W OODALL, Judge

CONCUR:

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(SEE C ONC URR ING OP INION)
GARY R. WA DE, Presiding Judge

__________________________________
DAVID H. WELLES , Judge

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 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
OCTOBER SESSION, 1999 February 16, 1999

Cecil Crowson, Jr.
Appellate C ourt Clerk
WILLIAM TERRY WYATT, ) C.C.A. NO. 03C01-9802-CC-00057
)
Appe llant, )
)
) BLEDSOE COUNTY
VS. )
) HON. THOMAS W. GRAHAM,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Habeas Corpus)

CONCURRING OPINION

I concur in the principal opinion of Judge Woodall and in the concurring

opinion of Presiding Judge W ade. I a m au thorize d to sa y that Ju dge W ooda ll

concurs with this concurring opinion.

________________________________
DAVID H. WELLES, JUDGE
 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED
OCTOBER SESSION, 1998 February 16, 1999

Cecil Crowson, Jr.
Appellate C ourt Clerk

WILLIAM TERRY WYATT, ) C.C.A. NO. 03C01-9802-CC-00057
)
Appellant, )
) BLEDSOE COUNTY
V. )
) HON. THOMAS W. GRAHAM, JUDGE
STATE OF TENNESSEE, )
)
Appellee. ) (HABEAS CORPUS)

CONCURRING OPINION

W hile I concur in the results reac hed by th e majo rity, I write

sepa rately to address my views on the first issue; that is, whether the indictment

is insuffic ient to s uppo rt an atte mpte d first de gree m urder convic tion be caus e it

failed to alleg e an ove rt act. The indictme nt include s the follow ing langu age:

[O]n the 7th day of March, 1994, in Cumberland
County, Tennessee ... [the defendant] did u nlawfully,
intentionally, deliberately and with premeditation
attempt to kill [the victim] in violation of T.C.A. § 39-12-
101 ....

In concluding that the indictment was sufficient, the majority relies upon State v.

Ced ric E. Stampley, C.C.A. No. 02C01-9409-CR-00208, slip op. at 9 (Tenn. Crim.

App., at Jackson, A ug. 16, 1996 ), app. denied, (Tenn ., Jan. 27, 1 997). In

Stampley, the pertine nt langua ge of the in dictme nt was a s follows:

[Stampley] did unlawfully attempt to commit the offense
of First Degree Murder, as defined in T.C.A. 39-13-202;
in that the said [Stam pley] did unlawfully, intentionally,
deliberately and w ith prem editatio n attem pt to kill
LON ZO N ICKS , in violation of T .C.A. 39 -12-101 ....
Id. Because Stampley was charged with a substantive offense, the assigned

panel determin ed that the re was n o require ment o n the pa rt of the state to

include la nguag e alleging an overt a ct. Id.

In my view, the opinion of a different panel of this court in State v.

Michael K. Christian, Jr., C.C.A. No. 03C01-9609-CR-00336, slip op. at 13 (Tenn.

Crim. App., at Knox ville, Mar. 23 , 1998), app. denied, (Tenn., Jan. 19 , 1999),

more accurately identifies the requirements governing the content of an

indictment. The charging instrument in Christian alleged a s follows:

[The defendant] did attempt to kill [the victim] by
stabbing [her] with a deadly weapon ... which conduct
constituted a substantial step toward the commission
of the said offense.

Id. Christian had argued that the indictme nt was d eficient be cause it failed to

encompass the com plete langua ge of the a ttempt sta tute. Id., slip op. at 13-14.

The panel held that an indictment need not quote the attempt statute so long as

the factual allegations included the criminal intent for a specific crime and an

overt act inc ident there to. Id.

More recently, in Jame s R. Tw itty v. Carlton, C.C.A. No. 03C01-

9707-CR-00310, slip op. at 4 (Tenn. Crim. App., at Knoxville, Jan. 6, 1999), a

panel of this court split on whether an indictment which allege d "[that T witty] did

unlawfully, deliberately and with premeditation attempt to kill [victim], in violation

of [T.C.A.] 39 -12-101 , ...." was sufficien t to suppo rt a convictio n. The m ajority

relied upon Stampley. In his dissent, Judge Joseph M. Tipton quoted extens ively

from Christian in conclu ding that th e indictm ent was inadeq uate because it failed

to allege fa cts supp orting the o vert act:

The indictme nt is require d to state th e facts that
constitute the offens e. T.C.A . § 40-13-202. Each of the
three means of criminal attempt provided in T .C.A. §

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 39-12-101 requires an act or a ctions to g o with the
intent to commit an offense .... The failure of the
charging instrument to allege any conduct or action by
the petitioner relative to him intending to comm it first
degree murder ren ders the indictme nt fatally deficie nt.

Id., dissenting op. at 3.

To place the issues in better context, a review of several other cases

which have addressed the adequacy of indictments ch arging attem pt is in order.

In State v. Jimmie Lee DeMoss, C.C.A. No. 02C01-9406-CC-00127, slip op. at

3 (Tenn. Crim. App., at Jackson, April 26, 1995), the indictment provided as

follows:

[T]hat JIMMIE LEE D EMOS S ... did unlawfully,
intentionally, deliberately and with premeditation
attempt to kill KATHEY LYNN BR OWN , in violation of
T.C.A . § 39-12 -101 an d T.C.A . § 39-13 -202 ....

DeMoss argued that the indictment was deficient "because it does not allege ...

how the attempt to kill the alleged victims was carried out and what weapon was

used in the a lleged atte mpted murde rs." Id., slip op. at 3. The panel held that

the indictment wa s sufficient becau se precise factu al pleading, a req uirement

under the common law, was not necessary under the terms of the particular

statute. Id., slip op. at 3-4 . The indictment in this case cannot be distinguished

from that in DeMoss. The re hav e bee n factu al alleg ations in each instance. The

supreme court granted review in DeMoss. No opinion has been issued to date.

Similarly, in State v. Steve Mason, the indictment included minimal

factual allegations:

[That the de fenda nt] ... did unlawfully, intentionally,
deliberately and with premeditation attempt to kill Jesse
Jones, in violation of Tennessee Code Annotated 39-
12-101, and Tennessee Code Annotated 39-13-202 ...

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C.C.A. No. 01C 01-9603-C C-00103 , slip op. at 7-8 (Tenn. Crim. App., at

Nashville, June 6, 1997). Mason had argued that the traditional rule required

more information , "such as how the attemp t upon Jo nes' life wa s perpe trated."

This court disagreed, holding that the indictment was sufficient and that Mason

could obtain ad ditional facts through a bill of particu lars. Id., slip op. at 8. On

Marc h 2, 19 98, ou r supre me c ourt de nied p ermis sion to appe al.

In State v. Dock Battles, C.C.A. No. 02C01-9501-CC-00019, slip op.

at 2 (Tenn. Crim. App., at Jackson, Nov. 29 , 1995), app. denied, (Tenn., Apr. 1,

1996), an indictment charging attempted aggravated burglary was challenged on

the basis that it failed to alle ge the e ssential e lemen ts of attempt, i.e., an overt act

or subs tantial step . The ins trumen t charge d as follow s:

[That Battles ] did un lawfully attempt to co mm it ...
Aggravated Burglary, as defined in T.C.A. § 39-13-403;
in that he ... did unlawfully attempt to enter the
habitation of [the victim], not open to the public, without
the effective co nsent o f [the victim], with inte nt to
comm it theft, in violation o f T.C.A. § 39-12-1 01....

Id. This court adopted a dictionary definition of attempt, "to make an effort to do,

accomplish, solve, or effe ct." Id., slip op. at 3 (quoting We bster's Ninth New

Collegia te Dictionary (1983)). Based upon ordinary meaning of attempt, the

panel held that "attempt to enter the habitation of the victim" was sufficient to

allege a s ubstan tial step or ov ert act. Id.

In severa l recent cases, our sup reme cou rt also appears to have

relaxed the common law requirements governing indictments. Initially, in State

v. Trusty, an indictment included the following language:

[That the defendant] ... did unlawfully attem pt to
com mit the offense of Murder First Degree, as defined
in T.C.A. 39-13-202, in that he, the said Wayne

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 Trust[y], did unlawfully, intentionally, deliberately and
with prem editatio n attem pt to kill H unter B ell, in
violation of T .C.A. 39 -12-101 ....

919 S.W.2d 305, 312 (Tenn. 1996). The supreme court ruled that the "indictment

allege[d] the essential elements of attempted first-degree murder and could thus

form the basis for a conv iction." Id. In State v. Hill, 954 S.W.2d 725, 728 (Tenn.

1997), our suprem e court pointed out that "the description of the proof neces sary

to sustain a conviction must be both more inclusive and conclusive than the

langua ge of an indictme nt."

In Dykes v. Compton, 978 S.W .2d 528 (Te nn. 1998), the c ourt

observe d as follow s:

[W]e wish to em phasize once a gain the fa ct that the
Court has m oved a way fro m the strict pleading
requirem ents of common law. As we noted in Hill, "the
purpose for the traditionally strict pleading requirement
was the existence of common law offenses whose
eleme nts were not eas ily ascertained by referen ce to
a statute. Su ch com mon la w offens es no lon ger exist."
So long a s the c onstitutional and statutory
requirem ents in Hill are m et, the in dictment will be
sufficient to s upport a conviction .

Id. at 530 (interna l citation s om itted) (e mph asis added). Finally, in Ruff v. State,

978 S.W.2d 95, 100 (Tenn. 1998), our supreme court reiterated its intent to "relax

strict pleading requ irements of the comm on law" and c oncluded th at "where the

constitutional and statutory requirements outlined in Hill are met, an indictment

which cites the pertinent statute and uses its language will be sufficient to support

a convictio n."

This more recent view is consistent with holdings from other

jurisdictions. In People v. Fowler, 290 N.E.2d 618, 620 (Ill. App. 1972), the

Illinois Appe llate Co urt held , "An at temp t to kill is cle arly an act co nstituting a

substantial step toward commission of the offense of murder. Although the

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indictment did not describe the particular method of the attempt it was

unneces sary for the state to plead s uch evid entiary de tails." In Reese v. State,

456 So.2d 3 41, 347 -48 (Ala. C rim. App . 1982), cert. denied, (Ala. 1983), the

Alabama Court of Criminal Appeals held, "[T]he allegation that the defen dant with

the requis ite inten t, 'attem pted to kill and mu rder' a named victim, was sufficient

to describe an act which constituted a substantial step toward the commission of

murde r."

So long as the cha rging instru ment a lleges the criminal inte nt to

com mit the spec ific crime an d an ove rt act, an attem pt indictm ent is sufficie nt.

Christian, slip op. at 13-14. In the indictm ent before us, the terms "unlaw fully,

intentionally, deliberately and with premeditation" embody the criminal intent

required to commit the specific crime of first degree murder. In my view, "attempt

to kill" is a general allegation of the act or conduct of the defendant. The view I

expressed in Christian on behalf of the panel is not at odds with the holdin gs in

our supre me c ourt ca ses o r in thos e from other ju risdictio ns. Be caus e this

indictment includes adequ ate langua ge to sup port a co nviction of a ttempt, I

concur in the d ecision of the m ajority.

_________________________________
Gary R. Wade, Presiding Judge

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