### IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE
WILLIAM TERRY WYATT v. STATE OF TENNESSEE Appeal by permission f

rom the Court of C

riminal Appeals Criminal Court for Bledsoe County No. 10797 Thomas W. Graham, Judge

No. E1998-00097-SC-R11-CO - Filed July 27, 2000

This is an appeal from the judgment of the Bledsoe County Cri mina l Court, which denied the defendant’s petition for habe as corpus relief

. The Court of Crimin

al Appeals affir

me d th e trial court’s denial of the petition, rejecting the defendant’s argument that his original indictment, which charged attempted first-degree murder by an “attempt to kill,” was insufficient for failing to allege an overt act and thus failed to confer jurisdiction on the trial co urt. We granted the defendant’s application for permission to appeal. We hold that the indictment in this case sufficiently alleges a n act as required by the criminal attempt statute in stating that the defendant “did . . . attempt t o kill” and that habeas corpus relief was thus properly denied. Accordingly, we affirm th e lower courts’ judgments. Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed
E. R ILEY A NDE RSON , C .J., delivered the opinion of the court, in which F RANK F. D ROWOTA , III A DOLPHO A. B IRCH , J R ., W ILLIAM M. B ARKER , and J ANICE M. H OLDER , JJ., joined.
Paula R. Voss, Assistant Dist

rict Public Defen

der, Knoxville, Te

nnessee (On Appe

al) and William Terry Wyatt, Pike

ville, Tennessee

, Pro Se (At Trial)

for the appellan

t, William Terry W

yatt.
Paul G. Summe

rs, Attorney General & Report er; Michael E. Moo

re, Solicitor Gene

ral; and Elizabe

th B. Marney, Assistant Attorney General, Nashville, T e nnessee; and James W. Pope, III, Assistant District Attorney General, Pikeville, Tennessee (At Trial), for the appellee, State of Tennessee.
OPINION
We grantedpermission to appeal in this case to consider whether an indictment charging that the defendant did “attempt to kill,” sufficiently cha rges the materia

l elements

of criminal attemp

t to commit first-degree murder. After a review of the record and applicable authorities, weconclude that the indictment in

this case sufficiently alle

ged an act as re

quired by the crim

inal attempt statute in stating that the defendant “did . . . attempt to kill” and that habeas corp us relief was thus

properly denied. Accord

ingly, we affirm t

he judgment of the C

ourt of Criminal App

eals.1 In characterizing “attempted first-degree murder” as a substantive offense, the appellate court

distinguished Wyatt’ s indictments fr om indictments charging criminal c onspiracy, which requires an overt act allegat ion. -2- BACKGROUND
The defendant, William TerryWyatt, w as originally charged with attempted first-degree murder, especially aggravated kidnapping, aggra

vated rape, and

theft of over one

thousand dollars. Pursuant to a plea agree me nt, he pled guilty to the lesser offenses of attempted second-degree murder and kidnapping. The trial court sentenced him to concurrent sentences of eight and fo ur years, respectively.
He subsequently file

d a Petition for Wr

it of Habeas Corpus in the trial court alleging that the tria l cou rt lacked subject matter jurisdiction to sentence him because the count of the indictment alleging attempted first-degree murder was facially defective for failing to allege an over t act. The trial court denied the p

etition, saying tha

t it was in essence a collateral attack on the sufficiency of the indictment, which is a matter outside the purview of the habeas corpus statute. The trial court stated:
The writ of habeas corpus is solely for the purpose of testing the

legality of the im prisonment and is lim ited to proceedin

gs to determine either facial deficiencies or imprisonment beyond the period of the sentence i

mposed. . . . This Cour

t finds nothing fac

ially deficient about the ind ictmen t or the judgment. . . . This matter is simply not subject to further review in a habeas corpus proceeding.
A majority of the Court of Criminal Appeals affirm ed, rea soning that because the indictment charged a substanti ve offense , i.e., attempted f irst-degree mur

der, the indictme

nt need not allege

an overt act. 1 The court further reasoned that, in any event, the language “did . . . attempt to kill” nece ssari ly implied that an overt act was committed.

In a separate opini

on, Judge Wade c

oncurred in the ju

dgment but disagre

ed with the majority that the ind ictment was suffic ient simply by char

ging the substantive

offense of atte

mpted firstdegree murder. The concurring opinion reviewed the Court of Criminal Appeals’ opinions which have considered the requirem ents nece ssary for a sufficient indictment alleging the offense of criminal attempt, and concluded that the language “did . . . attempt to kill” was sufficient to allege an overt act. See Freeman v. Raney , No. 02C01-9807-CC-00202 (Tenn. Crim. App. Mar ch 24 , 1999) (indictment charging attempted first-degree murder, that the defendant shot at the victim, was-3-

found sufficient

); Twitty v. Carlton , No. 03C01-9707-CR-00310 (Tenn. Crim. App. Jan. 6, 1999) (indictment

charging attempted first-degree murder, that the defendant “did . . . attempt to kill,” was found sufficient, with a panel member d issenting because of his view that the indictment insufficiently

alleged an act) ; State v. Christian , No. 03C01-960 9 -CR-00336 (Tenn. Crim. App. March 23, 1998) (indictment charging attempted first-degree murder, that the defendant stabbed the victim with a deadly wea

pon, was found suf

ficient); State v. Mason , No. 01C01-9603-CC-00103 (Tenn. Crim. App. June 6, 1997) (indictment charging attempted first-degre e murder, that the defendant “did . . . attempt to k

ill,” was found suf

ficient); Statev. Stampley , No. 02C01-9409-CR00208 (Tenn. Crim. App. Aug. 16, 1996) (indictment charging attempted first-degree murder, that the defendant “did . . . attempt to kill,” w as found sufficie

nt); State v. DeMoss , No. 02C01-9406-CC00127 (Tenn. Crim. App. April 26, 1995) (indictment charging attempted first-degree murder, that the defendant “did .

. . attempt to kill,” w

as found sufficie

nt); Statev. Battles , No. 02C01-9501-CC00019 (Tenn. Crim. App. Nov. 29, 1995) (indictment charging attempted aggravated burglary, that the defendant “did attempt to enter . . . without the [o wner’s ] effective consent,” was found sufficient).
We granted the defe

ndant’s applicat

ion for permission t

o appeal this is sue of firs t impression.
STANDARD OF REVIEW
Because this issue is a questi

o n o f law, our review is de novo with no presumption of correc tn ess given the lower courts’ judgments. E.g. , State v. Hill , 954 S.W.2d 725, 727 (Tenn. 1997).
HABEAS CORPUS RELIEF
We first address the trial court’s con clu sion that habeas c orpus relief is no

t available to addressa faulty indictment. The right to seek habeas corpus relief is guaranteed by Article I, § 15 of the Tennessee Constitution and governed by Tenn. Code Ann. §§ 29-21-101 et seq. While there is no statute of limitations to bar the filing of a habeas corpus petition, thegrounds upon which relief will be granted

are limited in nature and scope. Such relief is available only when it appears from the face of the judgment or the record of the proceedings that a trial court was without jurisdiction to sentence a defendant or that a defendant’s sentence of imprisonment or other restraint has expired. Dykes v. Compton , 978 S.W.2d 528, 529 (Tenn. 1998).
The defendant has the burden to show by a preponderance of the evidence that the sentence is void or that the c

onfinement is

illegal. Generally, defenses and objections based on a defective indi ctment

must be raised prior to trial or they are waived. Tenn. R. Crim. P. 12(b)( 2), (f)

. However, as we have previously stated, “[a] valid indictment is an essential juris

dictional element

, without which there can be no prosecution.” Dykes , 978 S.W.2d at 529. T hus, an indictment

that is so defective as to fail to vest jurisdiction in the trial court may be challenged at any stage of the proceedings,

including in a habe

as corpus petition . Tenn. R. Crim. P. 12(b)(2); Dykes , 978 S.W.2d-4-

at 529 (“If the face of

the record shows that the court did not have jurisdiction, then the judgment is void.”).
In t he present case, Wyatt argues that his conviction and sentence are void beca use hi s indictmentfailed to allege a n overt act, whic

h is a material element

of attempted first-degree murder, and thus failed to clothe the trial court with jurisdiction. Specifically, he argues that the indictment’s failure to allege an over t act p rovided i nadequate notic e of the charge

d offense beca

use, at a preliminary hearing, the State’s witness testified about numerous acts which may have constituted attempted first-degree murder. He asserts that because the criminal attempt statute contains three s eparate subsections pursua

nt to which the State

may obtain a convic

tion, and the last

of thes e subsections allows conviction based upon a “course of c onduct,” there is a heightened need for factual specificity in an indictment charging the offense of criminal attempt.
The State maintains tha

t this Court has rela

xed the strict ple

ading re quirements of the common law and that the Court of Criminal Appeals correctly concluded that Wyatt’s indictment is sufficient under

this Court’s analysis in State v. Hill , 954 S.W.2d 725 (Tenn. 1997). Based upon the facts of this case, we agree.
THE CRIMINAL ATTEMPT STATUTE
The offense of criminal attempt is codified at Tenn. Code Ann. § 39-12-101 (19 97). T his section states tha

t: (a) A person commits criminal attempt who, acting with the kind of culpability otherwise required for the offense: (1) Intentionally engages in action or c au ses a result that would c onstitute an offense if the circumstances surrounding the conduct were as the person believes them to be; (2) Acts with intent to cause a result that is an element of the offense, and believes the cond uct will cause

the result without further conduct on the person’s part; or (3) Acts with

intent to complete a

course of action or cause a result that would constitute the offense, under the circumstances su rrounding the conduct as the person believes them to be, and the conduct constitutes a substa

n tial step toward the commission of the offense.
Id. Accordingly, the criminal attempt statute is divided into three different subsections which describe three different types of proscribed acts, and the State may convict based upon any one of the three.-5-

By its plain language, the offense of criminal attempt is committed when a person, “acting withthe kind of culpability otherwise required for the offense,” either “engages in action” or “[a ]cts” so as to satisfy any one of the three numbered subsections. Tenn. Code Ann. § 39-12-101; see also Tenn. Code Ann. § 39-12-101 Sentencing Comm’n Cmts. (“the offense is basically one of criminal intentcoupled with acts

that clearly demo

nstrate the offender’s proclivity toward criminality.”). We thus agree with the defense that the criminal attempt statute requires that the State prove two material elemen ts: the culpability required for the attempted crime; and an act or acts in furtherance of the attempted crime. Accord , Jackson v. State , 566 So. 2d 757 (Ala. Crim. App. 1987) (rev’d on other grounds); People v. Ramos , 639 P.2d 908 (Cal. 1982) (rev’d ono ther grounds); People v. Castro , 657 P.2d 932 (Colo. 1983) ; State v. Sharpe , 491 A.2d 345 (Conn. 1985); Littles v. State , 384 So. 2d 744 (Fla. Dist. Ct. App. 1 980); People v. Jones , 405 N.E.2d 343 (I ll. 1979); McGee v. State , 699 N.E.2d 264 (Ind. 1998); State v. Jarman , 445 So. 2d 1184 (La . 1984); State v. Brown , 410 A.2d 1033 (Me. 1980); State v. Earp , 571 A.2d 1227 (Md. 1990); State v. Allen , 514 A.2d 1263 (N.H. 1986); People v. Cadorette , 439 N.E.2d 353 (N. Y. 1982); State v . Flyga re , 525 P.2d 181 (Or. Ct. App. 1974); Commonwealth

v. Hobson , 604 A.2d 717 (Pa. Su per. Ct. 1992); Garcia

v. State , 541 S.W.2d 428 (Tex. Crim. A pp. 1976) (overrule d on other grounds) ; State v. Maestas , 652 P.2d 903 (Utah 1982) (overruled onother grounds); Hargrave v. Commo nwealth , 201 S.E.2d 597 (Va. 197 4); State v. Hale , 829 P.2d 802 (Wash. Ct. App. 1992); State v. Cartagena , 299 N. W.2d 872 (Wi s. 1981). We now consider the sufficiency of Wyatt’s indictment.
WYATT’S INDICTMENT Wyatt was indicted for a

ttempte d fi rst-degree mur

der. His indictmen

t states in pertine

nt part:
that WILLIAM TERRY WYATT on the 7 th day of March, 1994, in Cumberland County, Tenness e e, and before th

e finding of this indictment, di d unlawfully, intent ionally, delibera

tely and with premeditation att

empt to kill Billie Car

ey in violation of T.C.A. 39- 12-101 . . . .
The indictment makes no reference to the attempt statute’s numbered subsections nor does it specify a specific act or course of conduct constituting the “attempt to kill.”
The Sixth and the Fourte

enth Amendments to the United States Constitution and Article I, § 9 of the Tennessee Constitution guarantee the accused the

right to be informed of the nature and cause of the accusatio

n. U.S. Const. amend. 6, 14; Tenn. Const. art. I, § 9; see also Hill , 954 S.W.2d at 7 27. We have consistently interpreted these constitutional provisions to require t hat a n ind ictme nt: 1) provide notice to the accused of the offense charged; 2) provide the court with an adequate ground upon which a proper judgment may be entered; and 3) provide the defe ndant with protection against double jeopardy. Id. ; State v. Byrd , 820 S.W.2d 739, 741 (Tenn. 1991); State v. Pearce , 7 Tenn. (Peck) 66 , 67 (1823); see also Hamling v. United States , 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974).-6-

The form of an indictment is further governed by statute. Tenn. Code Ann. § 40-13 -20 2 (1997). Section 202 requires that an indictment “state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to k now what is intende

d, and with that deg

ree of certain

ty which will enabl

e the court, on conviction, to pronounc e the pro per judgment.” Id. “Prolixity” means “[t]he unnecessary and superfluous statement of facts in pleading or in evidence.” Black’s Law Dictionary 1378 (4 th ed. 1951). We consider the sufficiency of Wyatt’s indictment with these

constitutional and statutory principles in mind.
We conclude that the

indictment in this ca

se satisfies these

minimum requireme

nts. Clearly Wyatt was placed on notice that he was charged with the intentional, deliberate and pr emeditat ed attempt to kill the na

med victim on a date

certain. The ind

ictment was also

sufficient to

place the trial court on notice tha

t a judgment a nd sentence for attempted first-degree murder were proper upon conviction. Finally, by expressly stating that the attempt to k ill was made again

st a specific victim on a date certai

n, the indictment of

fers Wyatt double

jeopardy protec

tion from any future charge of attempted murde r against that victim on that date. Though the language “did . . . attempt to kill” is a genera

l description, esp

ecially in light of the testimony at the preliminary hearing that Wyatt committed multiple a

cts against the vic

tim which the State

could have relied upon to obta in a verdict, this language alleges an act as required by the criminal attempt statute and was sufficient to notify Wyatt of the acc

used crime, to con

fer jurisdiction u

pon the trial cour

t, and to protect aga

inst double jeopardy. Hill , 954 S.W.2d at 727.
Because a defendant may make

jurisdictional challenges to an indictment at any stage of the proceeding, Tenn. R. Crim. P. 12(b)(2), we take this opportunity to e ncour age the State to charge the crime of attempt in sucha way that informs the defendant of the precise act or acts against which he is being called upon to defend. For example, it might have been prudent to charge that Wyatt had attempted to kill the victim “by firing several gunshots” or “by hitting the victim about the face and headuntil she was uncon scious.” In this ca

se, considering th

at (1) mu ltiple acts formed the b asis of the charge; (2) that there are multiple sub sections to the criminal attempt statute; and (3) that Wyatt’s indictment failed to specify which subsection under wh ich the State intended to proceed, and further, (4) given the nature of the criminal atte

mpt statute, the def

endant would

have been welladvised to move for a bill of particulars pursuant to Tenn. R. Crim. P. 7(c). See also State v. Speck , 944 S.W.2d 598, 601 (Te nn. 1997) (holding t

hat the trial judge

correctly “fou

nd that additiona l information was necessary t o assist the defen

dant in preparing

for trial, and co

rrectly ordere

d th e prosecution to supplement the skeletal charge contained in the indictment.”). However , we l eave this issue to be resolved by the trial courts, who are best qualified to make these determinations on a case-by-ca

se basis.
CONCLUSION
After our review of the record and applicable

authorities, we are of the opinion that the indictmentin this case sufficiently alleges an act as required by the criminal atte

mpt statute

in stating that the defenda

nt “did . . . attempt to

kill” and that habeas corpus relief was thus properly denied.-7-

Accor dingly, we affirm the jud gment of the Court of

Criminal Appeals. I

t appearing that t

h e defendant Wyatt is indigent, costs of this appeal are taxed to the State.

____________________________________ E. RILEY ANDERSON, CHIEF JUSTICE