IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
MAY 1997 SESSION
January 22, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
WILLIAM PERRY THOMPSON, )
)
Appellant, ) No. 03C01-9611-CR-00395
)
) Johnson County
v. )
) Honorable Lynn W . Brown, Judge
)
HOWARD CARLTON, WARDEN,) (Writ of Habeas Corpus)
AND STATE OF TENNESSEE, )
)
Appellees. )
For the Appellant: For the Appellee:
William Perry Thompson, Pro Se John Knox Walkup
N.E.C.C. #143559 Attorney General of Tennessee
P.O. Box 5000 and
Mountain City, TN 37683 Sandy R. Copous
Assistant Attorney General of Tennessee
450 James Robertson Parkway
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, William Perry Thompson, appeals as of right from the
dismissal of his petition for habeas corpus relief by the Johnson County Criminal Court
for failure to state a cause of action upon which relief could be granted. The petitioner
is presently in the custody of the Department of Correction serving his sentences for his
1989 and 1990 convictions upon his entry of guilty pleas for third degree burglary,
grand larceny, and receiving and concealing stolen property. On appeal, the petitioner
contends that his convictions are void because the indictments are fatally defective in
that (1) the district attorney’s signature does not appear on each count of the
indictments, (2) the counts of the indictments do not contain a caption stating the
county and the state in which the offenses occurred, and (3) each indictment is not
properly endorsed as a true bill and signed by the grand jury foreperson. The petitioner
also contends that the trial court erroneously dismissed the petition without allowing the
state to respond and improperly permitted the indictments to include different classes of
offenses in a single indictment. We conclude that the trial court properly dismissed the
petition.
In his pro se petition for a writ of habeas corpus, the petitioner contends
that he is being illegally restrained of his liberty because the indictments were not
sufficiently signed by the district attorney, because there was not a sufficient number of
grand jury members to find a true bill, that the captions were insufficient to support
proper indictments, and the court was without jurisdiction because the offenses took
place in another county. The petitioner also asserted that his sentences were
excessive and prejudicial. The petitioner did not include copies of the indictments at
issue.
2
On the same day that the petitioner filed his petition, the petitioner filed
several motions to dismiss the indictments on grounds that each count of the
indictments did not contain the district attorney’s signature and that the indictments
were not properly signed and endorsed as being a true bill by the jury foreperson. The
petitioner also filed a motion to clarify the grounds for his petition for writ of habeas
corpus relief.
Before the state’s response to the petition was filed, the trial court
dismissed the petition. The trial court concluded that the petition failed to state a claim
upon which relief could be granted.
Subsequently, the state supplemented the record with certified copies of
the indictments at issue. The multiple-count indictments do not include the district
attorney’s signature at the end of each count, but rather the signature of the district
attorney appears at the end of the last count of each indictment. The spaces for the
district attorney’s signatures are left blank and a line has been drawn through the
notation “Charles E. Hawk District Attorney General” on the remaining pages of each
indictment. Also, at the beginning of each of the indictments, a caption setting forth the
county and the state appears.
When a petitioner is being held pursuant to a judgment of conviction,
habeas corpus relief is available only when it can be shown that the judgment is void or
the sentence has expired. See Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In
this respect, before a judgment can be declared to be void, “the judgment itself or the
record of the proceedings, standing alone, must show a want of jurisdiction . . . .”
Passarella v. State, 891 S.W.2d 619, 628 n.49 (Tenn. Crim. App. 1994).
3
We agree with the trial court’s decision that the petitioner failed to state
grounds upon which relief could be granted. Claims regarding defects in the indictment
must be raised before trial, unless the claim relates to the trial court’s lack of jurisdiction
or failure to charge an offense. The district attorney’s or grand jury foreperson’s failure
to endorse or sign the indictment does not deprive the trial court of jurisdiction, and the
failure to raise the issues before trial constitutes a waiver of the issue pursuant to Rule
12(b)(2), Tenn. R. Crim. P. State v. Roy Danny Mayo, No. 01C01-9308-CC-00287,
Cheatham County, slip op. at 5 (Tenn. Crim. App. Oct. 20, 1994) (citing Applewhite v.
State, 597 S.W.2d 328 (Tenn. Crim. App. 1979) (“foreman’s signature has come to be
viewed as ‘a procedural safeguard rather than a substantive requisite of an indictment,’”
and complaints regarding the lack of the foreperson’s signature are waived if not raised
pretrial).1
Likewise, the petitioner’s contentions that the indictments do not contain
an appropriate caption indicating the county and the state where the offenses occurred
and that different classes of offenses are contained in a single indictment do not
present grounds for habeas corpus relief as they relate to nonjurisdictional defects in
the indictment not raised before trial. See Mitchell v. State, 16 Tenn. 514, 528 (1835)
(caption is not part of the indictment but is a formal statement of the proceedings that
appears before the introduction of the indictment); Miller v. State, 508 S.W.2d 804, 807
(Tenn. Crim. App. 1973) (indictment not void because indictment charged separate and
distinct offenses). Therefore, the trial court correctly determined that the petitioner’s
allegations were not proper grounds for habeas corpus relief. Under these
circumstances, the trial court’s dismissal of the petition without requiring the state to
respond was proper.
1
We note that the petitioner conceded in his supplemental brief the issue relating to the
indictments not being properly endorsed or signed by the grand jury foreperson. We agree that the grand
jury foreperson’s signature appears on each of the indictments indicating that a true bill was found by the
jury.
4
The petition fails to state a claim for which a writ of habes corpus should
issue. Therefore, the judgment of the trial court is affirmed.
Joseph M. Tipton, Judge
CONCUR:
Joe B. Jones, Presiding Judge
Curwood Witt, Judge
5