# FILED
March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON DECEMBER 1998 SESSION

CHRIS FREEMAN, * C.C.A. # 02C01-9807-CC- 00202 Appellant, * LAKE COUNTY VS. * Hon. R. Lee Moore, Jr., J udge FRED RANEY, WARDEN, * (Habeas Corpus) Appellee. *

For Appellant : For Appellee : Chris Freeman, Pro Se John Knox Walkup N.W.C.C. Attorney General and Repor ter Route 1, Box 660 Tiptonville, TN 38079 Elizabeth T. Ryan Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P.O. Drawer E Dyersburg, TN 38024

OPINION FILED:__________________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The petitioner, Chris Freeman, appeals the trial court's denial of his petition for writ of habeas c orpus. In this appeal of rig ht, the petitioner argues that his judgment of convictio n for attempted second degree murder is void because the underlying indictment failed to allege an overt act constituting a subst antial step towards the commission of the crime.

We affirm the judgment of the trial court.
On August 23, 1995, the petitione r was convicted of tw o counts of attempted second degree murder, r eckless endangerment, and unlaw ful possession of a weapon. The trial court i mposed Range II, consecutiv e sentences of fifteen years on each count of attempted murde r. Because the sentences on the r emaining counts were concurrent,the effective sentence was th irty years. In the petition filed in the trial court, the petitioner alleged that he w as denied the effective assistanc e of counsel and that the indictment on Count Two was insufficient to support an attempted second degree murder co nviction.

The trial court dismissed the petition on the basis that nei ther an inadequate indictment nor ineffecti ve assistance of counsel w ere proper subjects for habeas corpus relief. In this appeal, the petitioner has not c hallenged the correctness of the order of the tr ial court pertaining t

o the ineffective assistance of counsel claim; therefore, this court will address

only the indictment iss ue.
Initially, the habeas co rpus remedy is limited in scope. Codified at Tenn. Code Ann. §§ 29-21-101 to -130, the writ of hab eas corpus will issue only in the case of a void judgment or to free a prisoner held in custody after his term of3 imprisonment has expired. State ex re l. Hall v. Mea dows , 389 S.W.2d 256, 259 (Tenn. 1965). Unlike the post- conviction petition, the

purpose of a habeas corpus petition is to contest v

oid and not merely voidable judgments. See State ex rel. Newsom v. Henderson , 424 S.W.2d 186, 189 (Tenn. 1968). "A petitioner cannot collaterally attack

a facially valid c

onviction in a habeas cor pus proceeding." Potts v. State , 833 S.W.2d 60, 62 (Tenn. 1992). Habeas corpus acti ons may, however, be brought to contest an illegal confinement at any time while the prisoner is incarcerated. Archer v. State , 851 S.W.2d 157, 16 4 (Tenn. 1993).

Here, the indictment alleged that the petitioner attemp ted to commit the criminal offense of first degree murder, "an intentional, premeditated and deliberate killing of another, by acting wi th intent to cause a result that is an element of the offense, to-wit: shooting at Marcus Treadwell ... and believing the said conduct would cause the sai d result without further conduct on his part...." Tennessee Code Annotated section 39-12 -101(a)(2) provides that one commits a criminal attempt by acti ng "with intent to caus e a result that is an element of the offense, and believ[ing] the conduct will the cause the result without fu rther conduct on the person's part."

In James R. Twitty v. Carlton , No. 03C01-9707-CR-00310, slip op. at 4 (Tenn. Crim. App., at Knoxv ille, Jan. 6, 1999), a panel of this court split on w hether an indictment which all eged that "[Twitty] di d unlawfully, deliber ately and with premeditation attempt to kill [the victim] in vi olation of [Tenn. Code Ann.] 39-12-101, ... " was sufficient to suppor t a conviction. The majori ty relied on State v. Cedric E. Stampley , No. 02C01-9409-CR-00208 ( Tenn. Crim. App., at Jackson, Aug . 16, 1996), app. denied , (Tenn., Jan. 27, 1997). In his dissent, Judge Joseph M. Tipton quoted ext

ensively from State v. Michael K. Christian, Jr. , No. 03C01-9609-CR-4 00336, slip op. at 13 (Tenn. Cri m. App., at Knoxville, Mar. 23, 1998), app. denied , (Tenn., Jan. 19, 1999), and concluded that the indictment was inadequate because it failed to allege facts suppor ting the overt act: The indictment is required to state the facts that constitute the offense. [Tenn. Code Ann.] § 4 0-13-202. Each of the three means of criminal attem pt provided in [Tenn. Code Ann.] § 39-12-101 req uires an act or actions to go 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 commit first degree murder renders the i ndictment fatally deficient. Id. , dissenting op. at 3. There are several other cases which have addressed the adequacy of indictments char ging attempt. In State v. Jimmie Lee DeMoss , No. 02C01-9406-CC-00127, slip op. at 3 (Tenn. Crim. App., at Jackson , April 26, 1995), the indictment provided as follows:

[T]hat J IMMIE LEE DEMOSS .. . did unla wfully, intentionally, deliber

ately and with premeditation attempt to kill KATHEY LYNN

BROWN, in violation of T.C.A. § 39-12-101 and T.C.A. § 39-13-202 ..

.. DeMoss argued that the ind ictment 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 alleged attempted murders." Id. , slip op. at 3. The panel held that the indictment was sufficient becau se precise factual pleading , a requirement under the common law, was not neces sary under the terms of the par ticular statute. Id. , slip op. at 3-4. The indictment in thi s case cannot be distingui shed from that in DeMoss

. There have been factual allegati ons in each instance. The supreme court granted review in DeMoss . No opinion has been issued t o date.
Similarly, in State v. Steve Mason , the indictment included mini mal factual allegations:

[That th e defen dant] .. . did unla wfully, int entiona lly, 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

...5 No. 01C01-9603-CC-00103, sl ip op. at 7-8 (Tenn. Crim. App. , at Nashville, June 6, 1997). Mason had argued that the traditional rule required more inform ation, "such as how the attempt upon Jones' l ife was perpetrated." This c ourt disagreed, holding that the indictment was suffici ent and that Mason could obtain addi tional facts through a bill of particul ars. Id. , slip op. at 8. On Februa ry 23, 1998,our supreme court denied permission to appeal.

In State v. Dock Battles , No. 02C01-9501-CC-00019, slip op. at 2 (Tenn. Crim. App., at Jackson,Nov. 29, 1995), app. denied , (Tenn., April 1, 1996), an indictment charging attempted aggravated burglary was challenged on the basis that it failed to allege the e ssential elements of attempt, i.e., an overt act or substantial step. The instrument charged as follows: [That Battles] did unlawfully attempt to commit ... Aggravated Burgl ary, as defined in T.C.A. § 39- 13-403; in that he ... did unlawfull y attempt to enter the habitati on of [the victim], not open to the pu blic, without the effective consent of [the victim], with intent to commit theft, in violation of T.C.A. § 39-12-101.... Id. This court adopted a dictionar y definition of attempt, "to make an effort to do, accomplish, solve, or effect." Id. , slip op. at 3 (quoting Webster's Ninth New Collegiate Dictionary (1983)). Based upon the ordinary meaning of the word attempt, the panel held that "attempt to enter the habitation of the vic tim" was sufficient to allege a substanti al step or overt act. Id.

In several recent ca ses, our s upreme c ourt also appears to have relaxed the common law r equirements governi ng indictments. Initial ly, in State v. Trusty , an indictment included the foll owing language:

[That the defendant] ... did unlawfu lly attempt to commit the offense of Murder First Deg ree, as defined in T.C.A. 39-13-202, in that he, the said W ayne Trust[y], did unlawfully, intentional ly, deliberately and with premeditation a

ttempt t o kill H unter Be ll, in v

iolati on of6 T.C.A. 39-12-101 .... 919 S.W.2d 305, 312 (Tenn. 1996). The supreme court rule d that the "indictment allege[d] the essential el ements of attempted first-degree murder and could thus form the basis for a convicti on." Id. In State v. Hill , 954 S.W.2d 725, 728 (Tenn. 1997), our supreme court pointe d out that "the description of the pr oof necessary to sustain a convicti on must be bot h more inclusive an d conclusive than the language of an indictment."

In Dykes v. Compton , 978 S.W.2d 528 (Ten n. 1998), the court observed as follows:

[W]e wish to emphasize once again the fact that the Court has moved away from the st rict pleading requirements of common law . As we noted in Hill , "the purpose for the traditionally strict pleading req uirement was the existence of common law offenses whose elements were not easily ascertained by reference t o a statute. Such common law offenses no l onger exist." So long as the constitutional and statutory requirements in Hill are met, the indictment wi ll be sufficient to support a conviction. Id. at 530 (internal citation s omitted) (emphasis added).

Finally, in Ruff v. State , 978 S.W.2d 95, 100 (Tenn. 1998), our supreme court reiterated it s intent to "relax str

ict pleading requir

ements of the common law" and concluded that "where the constitutiona l and statutory requirements outlined in Hill are met, an indictment whi ch cites the pertinent statut e and uses its language w ill be sufficient to support a c onviction."

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 Appellate Court held, "An attempt to kill is clearly an act constituting a subs tantial step toward commission of the o ffense of murder. Although the indictment did not7 describe the particular method of the attempt it was unnecess ary for the state to plead such evidentiary

details." In Reese v. State , 456 So.2d 341, 347-48 (Ala. Crim. App. 1982), cert. denied , (Ala. 1983), the Alabama Court of Criminal Appeals held, "[T]he allegation that the defend ant with the requisite intent, 'attempted to kill and murder' a named victim, w as sufficient to describe an act which constituted a substantial step toward the commission of murder."

The indictment in this case alleges as follows: [The petitioner] unlawfully[,] feloniously and knowingly [did] attempt to commit the criminal off ense of first degree murder, to wit:an intentional, premeditated and deliberate killing of another by acting with intent to cause a result that is an element of the o ffense, to-wit: shooting at Marcus Treadwell w hile he was in Terrell

Davis' car and actually striki ng the car numerous times, and believing the said conduct would cause the said result without further conduct on hi s part, in violation of ... [Tenn. Code Ann .] § 39-12 -101, a Cl ass A fel ony. These allegations embody the criminal intent required. In our view, this was more than sufficient to embody an overt act and a substan tial step. Because this indictment includes adequate language to support a conv iction of attempt, the judgment would not be v oid and, therefore, the petitioner would not be entitled to relief.
Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Presiding Judge8 CONCUR:

_____________________________ Thomas T. W oodall, Judge

_____________________________ John Everett Williams, Judge