IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1998 July 14, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
DAVID MCDOWELL, ) C.C.A. NO. 03C01-9707-CR-00278
)
Appe llant, )
)
) MORGAN COUNTY
VS. )
) HON. E. EUGENE EBLEN
CHARLES JONES, Warden, ) JUDGE
)
Appellee. ) (Writ of Habeas Corpus)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID MCDOW ELL JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
#109129
M.C.R.C.F. TIMOTHY F. BEHAN
P. O. Box 2000 Assistant Attorney General
Wartburg, TN 37887-2000 425 Fifth Avenu e North
Nashville, TN 37243-0493
CHARLES E. HAWK
District Attorney General
FRANK HARVEY
Assistant District Attorney
P. O. Box 703
Kingston, TN 37763
OPINION FILED ________________________
AFFIRMED PURSU ANT TO RU LE 20
JERRY L. SMITH, JUDGE
OPINION
Appellant D avid McDo well was convicte d by a jury in the Bradley C ounty
Criminal Court of aggravated rape. As a Range I standard offender, he was
sentenced to twenty-two years incarceration with the Tennessee Department of
Correction. This C ourt affirm ed the co nviction. State v. David McD owell, No. 251
Bradley Coun ty (Tenn . Crim. A pp., Knoxville, Octobe r 23, 1986). On December
30, 1996, Appellant filed an application for writ of habeas corpus in the Morgan
Coun ty Crim inal Court, alleging that he was being illegally restrained on a
conviction and sentence based upon a fatally defective indictment which failed
to properly set forth a mens rea. The trial cou rt denie d the w rit on February 14,
1997. Appellant presents the following issue for our co nside ration in this ap peal:
whethe r the trial cou rt erred in dis missing the petition for habe as corp us relief.
After a review of the record, we affirm the judgment o f the trial court
pursuant to Court of Criminal Appeals Rule 20.
W e find no merit in Appellant's complaint tha t the trial c ourt im prope rly
denied his application for writ of habeas co rpus without co nducting an evidentiary
hearing and witho ut appo inting cou nsel. "A full evidentiary hearing is not required
for every petition for habe as corp us." We atherly v. Sta te, 704 S.W.2d 730, 732
(Tenn. Crim. App. 1985). An evidentiary hearing is not warranted unless the
petitioner alleges fa cts adeq uately de mons trating the vo id charac ter of the
proceedings which led to his confinem ent. Id. (citing Russ ell v. Sta te ex re l.
W illis, 437 S.W .2d 529 (Te nn. 1969)).
The Bradley County grand jury indicted Appellant for aggravated rape.
According to Appellant's petition, the ind ictme nt alleg ed tha t Appe llant "did
unlaw fully and feloniously have sexual penetra tion of. . . a child less than thirteen
(13) year s of age, c ontrary to th e statute,. . ."
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Both the Sixth Amendment to the United States Constitution and Article I,
§ 9 of the Tennessee Constitution afford the accused the right to be informed of
the "nature and cause of the accusation." Moreover, our legislature has
prescribed the contents of indictments. Tenn. Code Ann. § 40-13-202 provides:
The indictme nt mus t state the fa cts constituting the offens e 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 wh ich will enab le the cou rt, on conviction, to
pronounce the proper judgment; and in no case are such
words as "force and arms" or "contrary to the form of the
statute" necess ary.
Tenn. Code Ann. § 40-13-202.
The Tennessee Supreme Court's decision in State v. Hill governs the
disposition of the case sub judice. 954 S.W.2d 725 (Tenn. 1997). The Hill court
held that:
[F]or offens es wh ich ne ither ex press ly requ ire nor p lainly
dispense with the require men t for a cu lpable mental state, an
indictment which fails to allege such mental state will be
sufficient to support prosecution and conviction for that
offense so long as (1) th e lang uage of the in dictm ent is
sufficient to mee t the cons titutional requ iremen ts of notice to
the accused of the charge against which the accused must
defend, adequate basis for entry of a proper judgment, and
protection from double jeopardy; (2) the form of the indictment
meets the requirements of Tenn. Code Ann. § 40-13-202; and
(3) the mental state can be logically inferred from the conduct
alleged.
Id. at 726-27.
The indictment in the instant case comp orts with the requ iremen ts of Hill.
According ly, we affirm the trial court's judgment pursuant to Court of
Criminal Appeals Rule 20.
____________________________________
JERRY L. SMITH, JUDGE
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CONCUR:
___________________________________
THOMAS T. WOODALL. JUDGE
___________________________________
WILLIAM B. ACREE, SPECIAL JUDGE
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