IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1998 SESSION
March 18, 1998
Cecil W. Crowson
KENNETH A. STEELE, * Appellate Court Clerk
C.C.A. # 01C01-9703-CC-00105
Appellant, * WAYNE COUNTY
VS. * Hon. Jim T. Hamilton, Judge
STATE OF TENNESSEE, * (Habeas Corpus)
Appellee. *
For Appellant: For Appellee:
Jeffery S. Frensley, Attorney John Knox Walkup
211 Third Avenue North Attorney General and Reporter
P.O. Box 198288
Nashville, TN 37219-8288 Daryl J. Brand
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Stan Lanzo
H.C. Bright
Assistant District Attorneys General
Hamilton County Justice Building
Chattanooga, TN 37402
OPINION FILED:__________________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
Indicted on twenty-one separate indictments involving eight victims,
the petitioner, Kenneth Alan Steele, was convicted on each count. The charges
included burglary, armed robbery, aggravated robbery, rape, aggravated assault,
assault with intent to commit rape, and theft of property. The Court of Criminal
Appeals affirmed the convictions. State v. Kenneth Alan Steele, No. 03C01-9207-
CR-00233 (Tenn. Crim. App., at Knoxville, Oct. 13, 1993). Application for
permission to appeal to the supreme court was denied.
In this petition for habeas corpus, the petitioner claims that seventeen
of the felony indictments were void for the failure to include all of the essential
elements of the crime. In particular, the petitioner argues that the indictments failed
to assert the requisite mens rea of the crime charged. It is the contention of the
petitioner that, due to the faulty indictments, the trial court lacked jurisdiction to enter
a conviction or impose a sentence.
We find no error and affirm the judgment of the trial court.
The counts of the indictment under attack are as follows:
(1) Indictment No. 188342: That the defendant "did
unlawfully, feloniously and burglariously break and enter
into the dwelling house ... with intent to commit a
felony...."
(2) Indictment No. 188345: That the defendant "did
unlawfully engage in sexual penetration (i.e., sexual
intercourse) by the use of force or coercion...."
(3) Indictment No. 188332: That the defendant "did
unlawfully, feloniously and forcibly take ... property ... by
the use of force and violence ... in violation of [Tenn.
Code Ann. §] 39-2-501...."
(4) Indictment No. 188333: That the defendant "did
unlawfully engage in sexual penetration (i.e., sexual
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intercourse) ... by the use of force or coercion ... in
violation of [Tenn. Code Ann. §] 39-2-603...."
(5) Indictment No. 188334: That the defendant "did
unlawfully, feloniously and burglariously break and enter
into the dwelling house ... with intent to commit a
felony...."
(6) Indictment No. 188335: That the defendant "did
unlawfully and feloniously assault ... with intent,
feloniously and willfully to commit [r]ape, in violation of
[Tenn. Code Ann. §] 39-2-608...."
(7) Indictment No. 188336: That the defendant "did
unlawfully, feloniously, and forcibly take ... property ... by
the use of force and violence ... in violation of [Tenn.
Code Ann. §] 39-2-501...."
(8) Indictment No. 188337: That the defendant "did
unlawfully, feloniously, and burlargiously break and enter
into the dwelling house ... with intent to commit a
felony...."
(9) Indictment No. 188338: That the defendant "did
unlawfully, feloniously, and forcibly take ... property ... by
the use of force and violence ... in violation of [Tenn.
Code Ann. §] 39-2-501...."
(10) Indictment No. 188340: That the defendant "did
unlawfully, feloniously, and burglariously break and enter
into the dwelling house ... with intent to commit a
felony...."
(11) Indictment No. 188329: That the defendant "did
unlawfully, feloniously and forcibly take ... property ... by
the use of force and violence ... in violation of [Tenn.
Code Ann. §] 39-2-501...."
(12) Indictment No. 188331: That the defendant "did
unlawfully engage in sexual penetration, (i.e., sexual
intercourse) ... by the use of force or coercion ... in
violation of [Tenn. Code Ann. §] 39-2-603...."
(13) Indictment No. 188341: That the defendant "did
unlawfully enter the habitation ... without ... consent, with
intent to commit [t]heft, in violation of [Tenn. Code Ann.
§] 39-14-403...."
(14) Indictment No. 188343: That the defendant "did
unlawfully enter the habitation ... without ... consent, with
intent to commit [a]ttempt[ed r]ape, in violation of [Tenn.
Code Ann. §] 39-14-403...."
(15) Indictment No. 188344: That the defendant "did
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unlawfully attempt to engage in sexual penetration ... by
the use of force or coercion ... in violation of [Tenn. Code
Ann. §] 39-12-101...."
(16) Indictment No. 188326: That the defendant "did
unlawfully engage in sexual penetration (i.e., sexual
intercourse) ... by the use of force or coercion ... in
violation of [Tenn. Code Ann. §] 39-13-503."
(17) Indictment No. 188327: That the defendant "did
unlawfully enter the habitation ... without ... consent ...
with intent to commit [r]ape, in violation of [Tenn. Code
Ann. §] 39-14-403...."
On September 12, 1996, the petitioner filed a petition for habeas
corpus relief alleging deficiencies in each of these indictments based upon the
ruling of this court in State v. Roger Dale Hill, No. 01C01-9508-CC-00267 (Tenn.
Crim. App., at Nashville, June 20, 1996), rev'd, 954 S.W.2d 725 (Tenn. 1997). A
writ of habeas corpus may be granted only when the petitioner has established lack
of jurisdiction for the order of confinement or that he is otherwise entitled to
immediate release because of the expiration of his sentence. See Ussery v. Avery,
432 S.W.2d 656 (Tenn. 1968); State ex rel. Wade v. Norvell, 443 S.W.2d 839
(Tenn. Crim. App. 1969). Habeas corpus relief is available in this state only when it
appears on the face of the judgment or the record that the trial court was without
jurisdiction to convict or sentence the defendant or that the sentence of
imprisonment has otherwise expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn.
1993); Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992).
Tennessee Code Annotated § 39-11-301(c) (1989) provides that "[i]f
the definition of an offense within this title does not plainly dispense with a mental
element, intent, knowledge or recklessness suffices to establish the culpable mental
state." In Hill, a panel of this court ruled that the statutory offense of rape as defined
by the 1989 Act did not "plainly dispense" with a mens rea of the crime and thus the
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indictment, which did not allege a mens rea, was void for failure to allege an
essential element of the offense. Slip op. at 5-6.
On appeal, our supreme court overruled the intermediate court
opinion, holding as follows:
[F]or offenses which neither expressly require nor plainly
dispense with the requirement for a culpable 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) the language of the indictment is
sufficient to meet the constitutional
requirements 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.
Hill, 954 S.W.2d at 726-27. The court ultimately ruled that the indictment for
aggravated rape was sufficient because "the act for which the defendant [was]
indicted, 'unlawful sexual penetrat[ion]' ... is committable only if the principal actor's
mens rea is intentional, knowing, or reckless. Thus, the required mental state may
be inferred from the nature of the criminal conduct alleged." Id. at 729.
Generally, an indictment must set forth the elements of the offense.
State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App. 1992). It is settled law that
"[w]hen the indictment or presentment fails to fully state the crime, all subsequent
proceedings are void." Id. (citing State v. Morgan, 598 S.W.2d 796, 797 (Tenn.
Crim. App. 1979)). The historical significance of the indictment is well documented
in the federal courts:
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The general ... and universal[] rule ... is that all the
material facts and circumstances embraced in the
definition of the offense must be stated, or the indictment
will be defective. No essential element of the crime can
be omitted without destroying the whole pleading. The
omission cannot be supplied by intendment or
implication, and the charge must be made directly, and
not inferentially, or by way of recital.
United States v. Hess, 124 U.S. 483, 486, 8 S. Ct. 571, 573 (1888). The provisions
of our state and federal constitutions guarantee the criminally accused knowledge of
the "nature and cause of the accusation." U. S. Const. amend. VI; Tenn. Const. art
I, § 9. "Fair and reasonable notice of the charges against an accused is a
fundamental constitutional requirement." State v. Trusty, 919 S.W.2d 305, 309
(Tenn. 1996). To be sufficient, an indictment must "inform the defendant of the
precise charges; ... must enable the trial court upon conviction to enter an
appropriate judgment; ... and must protect [the] defendant against double jeopardy."
Id. As a matter of fairness, the constitutional requirement is designed to afford the
criminally accused with an adequate opportunity to prepare any defense before the
trial. See, e.g., Pope v. State, 258 S.W. 775 (Tenn. 1924); Daniel v. State, 50 Tenn.
257 (1871).
Such a rigid rule has occasionally caused harsh results from the
perspective of the state. At times, convictions have been set aside even though the
prosecution gains no advantage:
At common law, even the slightest technical defect
might fell an indictment. Sir Matthew Hale lamented the
strictness with which indictments were viewed as a
"blemish and inconvenience of the law" whereby
"heinous and crying offenses escape by these unseemly
niceties to the reproach of the law, to the shame of the
government, and to the encouragement of villainy, and to
the dishonor of God." 2 Sir Matthew Hale, The History of
the Pleas to the Crown, 193 (London E. Ryder 1800)
(1716).
United States v. Wydermyer, 51 F.3d 319, 324 (2d Cir. 1995).
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Twelve of the indictments challenged by the petitioner were for
offenses committed before November 1, 1989. The opinion of a panel of this court
in Hill was based for the most part on Tenn. Code Ann. § 39-11-301(b)(1989), which
provided that a "culpable mental state is required ... unless the definition of the
offense plainly dispenses with the mental element." The 1982 Act contained no
similar provision. The indictments need only set forth the elements of the offenses
as they were defined at the time of the unlawful act. See Gregory L. Hatton v. State,
No. 02C01-9611-CC-00407, slip op. at 2-3 (Tenn. Crim. App., at Jackson, Feb. 19,
1997). So the twelve under attack were sufficient, in our view, under the prior law.1
Moreover, nine of the indictments against the petitioner allege that he acted
"feloniously."2 "Feloniously" has been recognized as expressing a culpable mental
state. Id.
Four of the indictments against the petitioner allege either "an attempt"
or "sexual penetration ... by the use of force or coercion."3 In our view, that
language necessarily implies the required mental state. See State v. John Haws
Burrell, No. 03C01-9404-CR-00157 (Tenn. Crim. App., at Knoxville, Feb. 11, 1997),
app. denied, concurring in results only, (Tenn., Oct. 6, 1997). In summary, each of
the indictments under challenge adequately set forth the elements of the offense
alleged. By the use of the rule established in Hill, the language included in each of
the indictments supports the inference that the acts were intentional.
Accordingly, the judgment is affirmed.
1
Indictments No. 188329, 188331 through 188338, 188340, 188342, and 188345.
2
Indictm ents No . 188329 , 188332 , 188334 through 18833 8, 18834 0, and 18 8342.
3
Indictm ents No . 188326 , 188331 , 188333 , 188344 , and 188 345.
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________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
William M. Barker, Judge
_____________________________
Curwood Witt, Judge
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