FILED

August 13, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE 

MAY 1999 SESSION

WILLIE E. PAYNE, * C.C.A. # 03C01-9809-CR-00336

Appellant, * HAMILTON COUNTY

VS. * Honorable Douglas A. Meyer, Judge

STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH PAUL G. SUMMERS

District Public Defender Attorney General & Reporter

DONNA ROBINSON MILLER MARVIN S. BLAIR, JR.

Assistant District Public Defender Assistant Attorney General

Suite 300, 701 Cherry Street 425 Fifth Avenue North

Chattanooga, TN 37402 Nashville, TN 37243-0493

WILLIAM H. COX III

District Attorney General

Suite 300, 600 Market Street

Chattanooga, TN 37402

OPINION FILED: _______________

AFFIRMED

JOHN EVERETT WILLIAMS,

Judge
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OPINION

The petitioner, Willie E. Payne, appeals the trial court’s dismissal of his

post-conviction relief petition. The petitioner was convicted by a jury of having

raped a female under twelve years of age. The trial court sentenced him to

death, and the Court of Appeal affirmed his sentence in 1978. Later, Governor

Ray Blanton commuted his sentence to life imprisonment. On April 14, 1997, the

petitioner filed a “Petition for Writ of Habeas Corpus,” which was properly treated

by the trial court as a motion for post-conviction relief. The petitioner claims that

the indictment in his case was constitutionally defective because it did not allege

a specific mens rea; i.e., it did not use the language “intentionally, knowingly, or

recklessly.” After review of the record, we affirm the judgment of the trial court.

Throughout the procedural history of his petition, the petitioner relied

exclusively upon a holding of a panel of this Court in State v. Roger Dale Hill, No.

01C01-9508-CC-00267 (Tenn. Crim. App. filed June 25, 1996, at Nashville),

rev’d, 954 S.W.2d 725 (Tenn. 1997). The Tennessee Supreme Court reversed

this Court’s Hill decision in State v. Hill, 954 S.W.2d 725 (Tenn. 1997). 

Nevertheless on appeal, the petitioner asserts that the indictment lacked proper

notice of the offense alleged. 

The petitioner’s reliance on Hill is inappropriate. That decision involved

indictments after the Sentencing Reform Act of 1989. Our Supreme Court held

that the Hill rationale also applies to pre-1989 indictments in Dykes v. Compton,

978 S.W.2d 528 (Tenn. 1998). Our Supreme Court addressed Hill’s application

to offenses occurring from 1983 to 1988 in Crittenden v. State, 978 S.W.2d 929

(Tenn. 1998). 

Concerning a 1975 indictment, we would follow our Supreme Court’s

language in Campbell v. State, 491 S.W.2d 359 (Tenn. 1973), regarding
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sufficiency of an indictment. The language of Campbell is directly on point when

the Court stated, “It is clear, however, that had the indictment used the words

‘feloniously’ or ‘unlawfully,’ it would have been sufficient.” Id. at 361. The

alleged indictment is this case used both “feloniously” and “unlawfully.” 

However, the petitioner’s omission of the pertinent indictment in the record

submitted to this Court is dispositive. Since a copy of the indictment is not

included in the record, there is no evidence of its language other than the

allegations contained in the petition. It is the responsibility of the petitioner to

provide a copy of the indictment that he attacks. See Tenn. R. App. P. 24. By

omitting the essential document, the petitioner has waived his sole articulated

ground for appeal. 

The judgment of the trial court is AFFIRMED.

_____________________________

JOHN EVERETT WILLIAMS, Judge

CONCUR:

_______________________________

JAMES CURWOOD WITT, JR., Judge

_______________________________

ALAN E. GLENN, Judge