# FILED
March 22, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT JACKSON

FOR PUBLICA TION Filed: March 22, 1999 STATE OF TENNESSEE, ) ) Appellee, ) ) SHELBY CRIMIN AL ) ) Vs. ) HON. W. FRED AXLEY, JUDGE ) ) ) RICHARD MADKINS, ) No. 02-S-01-9805-CR-00046 ) Appellant. )

For the Appellant : For Appellee : Richard Madkins, Pro Se John Knox Walkup TDOC # 107546 Attorney General & Repor ter C.C.A.-South Central Correctional Center Michael E. Moore P. O. Box 279 Solicitor General Clifton, Tennessee Elizabeth T. Ryan Assistant Attorney Gener al Nashville, Tennessee
At Trial : John W. Pierotti District Attorney General Lee V. Coffee Terrell L. Harris Assistant District A

ttorneys General Memphis, Tennessee



## O P I N I O N

AFFIRMED AS MODIFIED ANDERSON, C.J-2- We granted this appeal to resolve a single issue: whether the def endant’s conviction for attempted felony murder must be reversed and dismissed under our decision in State v. Kimbrou gh , 924 S.W.2d 888 (Tenn. 1996), which held that the offen se did not exist unde r Tennes see statu tory law.

The record indicates that the defendant was convicted of especi ally aggravat ed robbery and attempted felony mur der and sentenced to 60 years for each conviction to be served consecutive ly. The Court of Criminal Appeals affirmed the conviction and sentence for especially ag gravated robbery but concluded that the convic tion for attempted felony murder had been dismi ssed by the trial cour t because a judgment of conviction was not i n the record on appeal. The recor d on appeal was thereafter supplemented with a copy of the judgment of conviction for at tempted felony murder.

We co nclude, and the S tate con cedes, th at this ca se is cont rolled by Kimbrough

. The dismissal of the attempted fe lony murder conviction is therefore affirmed because no such offense existed under Tennesse e statutory law. The conviction for especially aggravated robbery an d the sen tence of 60 years, h owever, are affirm ed. Accor dingly, the judgment of the Court of Criminal Appeals is aff irmed as modified, and this case is remanded to the trial court.

BACKGROUND We begin by briefly summarizing the evidence in the recor d. On September 27, 1993, th e victim, wh o owned a li quor store , obtain ed $15,0 00 from the bank for the n ext business day. She placed the money in a sack and locked the sack in the trunk of her
car.

The victim went to Mal l of Memphis to do some shopping. When she left the mall and got into her car, the defendant, Richard Madkins, and a co-defendant, Jose Holmes, approached the car and demande d money. The victim tri ed to drive away,but-3-

Holmes shot her through the car window, activating the car alarm. Holmes reached in and removed the keys from the i gnition. He went to the other side of the car, opened the glove compartment, and pus hed the button to open the trunk. Ho lmes took the victim’s purse and the s ack containing the $15,000 from the trunk.

Holmes and M adkins fled fr om the scene on

foot but wer

e captured a s hort time later. A large amount of money was found near Holmes. Sev eral witnesses identi

fied both Holmes and Madkins and als o provided descriptions that matched the clothes that Madkins was wear

ing when apprehended.
The jury convicted M adkins of especially ag gravated robbery an d attempted felony murder. The trial court, finding Madkins to be a Range III persistent of fender, imposed a 60-year sentence for each offense, to run consecutivel y.
On appeal, the Court of Criminal Appeals aff irmed the conviction and sentence for especially aggr

avated robbery but, upon findi ng that a judgment of convic tion for attempted felony murder was no t in the record on appeal, conc luded that the conviction had been dismissed by the tr ial court. The record w as later supplemented to inclu de a judgment of conviction for attempted fe lony murder. We granted this appeal.

ANAL YSIS Our analysis begins

with our decision i n Kimbrough . There, we noted that the culpable mens rea for attempted crimes and for felony murde r were intrinsically different. The statutes governi ng attempted crimes stated: (a) A person commits cri minal attempt who, acting with the kind of culpability otherw

ise required for the offense; (1) Intentionally engages in action or c auses a result that woul d constitute an offense if the circumstances surr ounding the conduct were as the person believes them to be;1 As we observed in Kimbrough , the l egislat ure amended the statut e in 1995 to d elete t he mens rea of recklessness. Te nn. Code Ann. § 39-13 -202(a)(2) (Supp. 1996). -4- (2) Acts with intent to cause a result that is an element of the offense, and believes the conduct w ill cause the result w

ithout 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 surroun ding the conduct as the person believes them to be, and the cond uct constitutes a substantial step toward the commission of the offense. Tenn. Code Ann. § 39-12-101 (1997) ( emphasis added). Under Tennessee l aw, a person acts intentionally with respect to the natur e of the conduct or to a result of the conduct when it is the person’s “conscious objective or desire to engage in the conduct or cause the result.” Tenn. Code Ann. § 39-11-302(a) (1997).

In contrast , the offense of fel ony murder in effect at the time of Madki ns’ crime required “[a] reckless killing of another committed in the perpetration of, or attempt to perpetrate any first degr ee murder, arson, rape, robber y, burglary, the

ft, kidnapping or aircraft piracy.” Tenn. Code Ann. § 39-13-202(a)(2) (1991). 1 Thus, recklessness as a
mens rea sufficed to support a felony murder conviction for a death occur ring during one of the enumerated felonie s.
After analyzing and co ntrasting these elements, w e observed that a charge of attempt ed felon y murder is “inheren tly incons istent, i n that it r equires th at the ac tor have intended to commit what is deemed an unintention al act.” Kimbrough , 924 S.W.2d at 890. Thus, like nearly ev ery jurisdiction that has addressed the issue, w e concluded that the offense of attempted felony murder does not exist: [I]t is illogical that someone could intend to cause s omeone else’s death through negligence or even recklessness. While one may reasonab ly conclude that a defendant intentionall y behaved in a reckle

ss manner and may have intended to kill the victim, it does not make sense to say that a defendant intended to kill the victim by being reckless. We conclude that one cannot intend to accomplish the unintended. Consequently, the offense of attemp ted felony-murder does not exist in Tennessee.-5-

Id. at 892. Accordingly , as the State concedes, Madki ns’ conviction for attempted felony murder is rever

sed and dismissed.
Although not specifically addressed by the parties or the Court of Criminal Appeals, we now turn to the question of whether the prosecution may proceed against the defendant on other charges. The r ecord shows that Madki ns was indicted for attempted premeditated murder and attempted felony murder and that both counts were submitted to the jur y. The instructions re

quired the jury to beg in by considering attempted premeditated murder; if the j ury found the defendant not guilty of attempted premeditated murder, it was to acquit him of that offense and next consider attempted felony murder. If the jury found Madkins not guilty of attempted felony murder, it w as to acquit him of that charge and consider the lesser offense of attempted s econd degree murder.
Given these sequential instructions, the jury ’s conviction for attempted felony murder was an implied acq uittal of attempted premeditated murder. Schiro v. Farley, 510 U.S. 222, 236, 114 S. Ct. 783, 792 , 127 L. Ed. 2d 47 (1994); Green v. United States , 355 U.S. 184, 190, 78 S. Ct. 221, 225 (1957). Moreover, under the instruct ions, the verdict of guilty as to attempted felony murder necessarily means that the jury did not consider the charge of attempted second de gree murder, which was properly charged as a lesser offense to attempted prem editated murder. The prosecution is, therefore, able to proceed on this charge upon reman d to the trial court should it elect to do so. See State v. Burns , 979 S.W.2d 276, 27 9 n.2 (Tenn. 1998).

CONCLUSION We affirm the dismissal of the defendant’s conviction for attempted felony murder for the reasons set forth above. The def endant’s conviction for especially aggravated robbery

and sentence of 60 years, how ever, are affirmed. Accordi ngly, the judgment of the Court of Criminal Appeals is aff irmed as modified, and this case is-6-

remanded to the trial court for further proceedings. Cost s of the appeal are taxed to the State.

____________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Birch, Holder, and Barker, JJ.