IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 24, 2013

VERLIN RALPH DURHAM V. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Johnson County

No. 6231 Robert E. Cupp, Judge

No. E2013-01175-CCA-R3-HC - Filed November 20, 2013

The petitioner, Verlin Ralph Durham, appeals the dismissal of his petition for the writ of

habeas corpus. The petitioner is currently serving a life sentence in the Department of

Correction following his first degree murder conviction. On appeal, he contends that the

dismissal of the petition was error because the indictment in his case was facially void and

that his conviction is illegal because he was convicted pursuant to a prior repealed statute.

Following review of the record, we affirm the dismissal of the petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA MCGEE

OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Verlin Ralph Durham, Mountain City, Tennessee, Pro se.

Robert E. Cooper,Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; Tony Clark, District Attorney General; and David Crockett, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Procedural History

In October 1996, the petitioner was convicted of fatally shooting his wife at a United

gas station and convenience store where she was employed. State v. Verlin Ralph Durham,
No. 03C01-9802-CR-00063, 1999 Tenn. Crim. App. LEXIS 750, *2 (Tenn. Crim. App., at

Knoxville, Jul. 26, 1999). Following his conviction for first degree murder, he was

sentenced to life imprisonment. Id. at *1. The petitioner appealed, raising multiple issues

before this court. His conviction and sentence were affirmed, and the Tennessee Supreme

Court denied permission to appeal. Id.

In March 2013, the petitioner filed the instant pro se petition for the writ of habeas

corpus based upon his allegation that the indictment charging him was facially invalid. After

reviewing the petition, the State’s motion to dismiss, and the petitioner’sresponse, the habeas

corpus court concluded that the indictment was jurisdictionally valid and summarily

dismissed the petition. The petitioner has timely appealed that dismissal.

Analysis

On appeal, the petitioner argues that the indictment charging him with first degree

murder is facially void and that his resulting judgment of conviction is illegal because he was

indicted pursuant to the law in effect prior to the 1995 amendment to the first degree murder

statute, which omitted the element of deliberation. The petitioner contends that the

indictment was so defective that the trial court was without jurisdiction to enter the judgment.

A prisoner is guaranteed the right to habeas corpus relief under Article I, section 15 of the

Tennessee Constitution. T.C.A. § 29-21-101, et seq, (2010). However, the grounds upon

which a writ of habeas corpus may be issued are very narrow. Taylor v. State, 995 S.W.2d

78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it appears

upon the face of the judgment or the record of the proceedings upon which the judgment is

rendered’ that a convicting court was without jurisdiction or authority to sentence a

defendant, or that a defendant’s sentence of imprisonment or other restraint has expired.”

Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). “[T]he purpose of a habeas corpus

petition is to contest void and not merely voidable judgments.” Id. at 163 (internal quotations

omitted). A void judgment “is one in which the judgment is facially invalid because the

court lacked jurisdiction or authority to render the judgment or because the defendant’s

sentence has expired.” Taylor, 995 S.W.2d at 83. In contrast,

a voidable judgment is facially valid and requires the introduction of proof

beyond the face of the record or judgment to establish its invalidity. Thus, in

all cases where a petitioner must introduce proof beyond the record to establish

the invalidity of his conviction, then that conviction by definition is merely

voidable, and a Tennessee court cannot issue the writ of habeas corpus under

such circumstances.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citations and quotations

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omitted); see also Summers v. State, 212 S.W.3d 251, 256 (Tenn. 2007). Moreover, it is the

petitioner’s burden to demonstrate, by a preponderance of the evidence, that the judgment

is void or that the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

If the habeas corpus court determines from the petitioner’s filings that no cognizable claim

has been stated and that the petitioner is not entitled to relief, the petition for writ of habeas

corpus may be summarily dismissed. Hickman, 153 S.W.3d at 20. Further, the habeas

corpus court may summarily dismiss the petition without the appointment of a lawyer and

without an evidentiary hearing if there is nothing on the face of the judgment to indicate the

convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App. 1994).

The indictment in this case reads that the petitioner on or about:

the 1st day of October, 1996, in Washington County, Tennessee, and

before the finding of this indictment, did unlawfully, intentionally,

deliberately, and with premeditation kill Joyce Durham, in violation of section

39-13-202, Tennessee Code Annotated, and against the peace and dignity of

the State of Tennessee.

It is not disputed that the first degree murder statute was amended effective July 1, 1995, or

that the petitioner’s crime was committed after that date. Prior to 1995, first degree murder

was defined as an intentional, premeditated, and deliberate killing of another. After the

amendment, the crime was defined as a premeditated and intentional killing of another, thus

deleting the element of deliberation. T.C.A. § 39-13-202 (Supp. 1996). Moreover, it is clear

that the petitioner was indicted pursuant to the obsolete statute which required a finding of

deliberation.

In fact, the error was noticed during the trial. Sua sponte, the trial court made the

following statements on the record:

One thing that has not been filed that I noticed some time ago, the State

in the indictment alleges deliberation for a murder occurring in 1996. That

was removed as an element of the offense of first degree murder in 1995, the

previous year. I had been thinking about the situation, and one thing that I can

think of is that there’s a possibility that the Supreme Court may declare the

present murder statute unconstitutional so what you’ve done is indicted under

the previous murder statute which really is to the benefit of the defense, and

I want to call that to your attention that the indictment does not follow the law.

It follows the previous law, and I have gone ahead and prepared my

instructions accordingly which puts a greater burden on the State but may keep

it from being constitutionally suspect some place down the road.

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From this statement, it is apparent that the jury was charged pursuant to the pre-1995 law.

The issue was also addressed in this court’s opinion affirming the petitioner’s conviction.

At the time of the offense in this case, the relevant statute defined first

degree murder as “[a] premeditated and intentional killing of another.” Tenn.

Code. Ann. § 39-13-202(a)(1) (1996). However, in the indictment the State

charged the [petitioner] with first degree murder as defined prior to July 1,

1995. Prior to that date, first degree murder required deliberation in addition

to intent and premeditation. Tenn. Code Ann. § 39-13-202(a)(1) (1994).

Before trial, the trial court noted the State’s error and also noted that the error

benefitted the [petitioner] by placing a greater burden of proof upon the State.

Because the State had failed to submit a motion to amend the indictment, the

court concluded that it would instruct the jury according to the old statute.

Defense counsel proffered no objection and does not challenge the indictment

on appeal.

Thus, at trial, the State was required to prove beyond a reasonable doubt

that the [petitioner] killed [the victim] with intent, premeditation, and

deliberation. . . .

Verlin Ralph Durham, 1999 Tenn. Crim. App. LEXIS, *24-25 (emphasis in original). The

court found that the evidence was sufficient to support the conviction. Id. at *32.

In denying the instant petition for habeas corpus relief, the court found that:

. . . [T]he State is correct in its assertion that “the error noted by the

Trial and Appellate Courts did not affect the jurisdictional validity of the

indictment.” This Court adopted the State’s analysis as to the validity of the

Petitioner’s indictment. Because of this, the court is of the opinion that the

trial court had jurisdiction in this matter and therefore the judgment of

conviction is valid.

The State’s analysis adopted by the court was that “[t]he allegation that the killing required

“deliberation” was surplusage in light of the 1995 statute that only required proof that the

killing was premeditated and intentional. This error did not render the indictment fatally

defective. Therefore, the trial court had jurisdiction over the prosecution.”

On appeal, the petitioner contends that the indictment was so defective, because it

failed to follow the applicable law in effect at the time of the crime, that it failed to vest

jurisdiction with the trial court to enter a judgment of conviction. We recognize that the

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indictment did charge the petitioner pursuant to the old law: however, we conclude that it did

not deprive the court of jurisdiction.

“[T]he validity of an indictment and the efficacy of the resulting conviction may be

addressed in a petition for habeas corpus when the indictment is so defective as to deprive

the court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). Generally,

an indictment is valid if it contains information that is sufficient “(1) to enable the accused

to know the accusation to which answer is required, (2) to furnish the court adequate basis

for the entry of a proper judgment, and (3) protect the accused from double jeopardy.” State

v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997); see also T.C.A. § 40-13-202 (2010). The general

rule is that an indictment is sufficient if it states the offense charged in the words of the

statute or in words equivalent to those contained in the statute. State v. Tate, 912 S.W.2d

785, 789 (Tenn. Crim. App. 1995) (citations omitted).

As argued by the State, the indictment charging the petitioner with first degree murder

did charge him using words which were equivalent to those contained in the statute in effect

at the time of the offense, i.e., the 1995 amended law, because, although the amendment

removed the word deliberation, it did not dispense with the concept. We do agree that our

supreme court, in State v. Brown, 836 S.W.2d 530 (Tenn. 1992), referring to the pre-1995

law, stated that the elements of premeditation and deliberation were essential to a first degree

murder conviction, and, further, that the two terms were not synonymous. Brown, 836

S.W.2d at 538-39. Premeditation refers to a previously-formed intent to kill, while

“deliberation requires proof of a cool purpose that includes some period of reflection during

which the mind is free from passion or excitement.” State v. Bush, 942 S.W.2d 489, 501

(Tenn. 1997).

While the law following the 1995 amendment did remove “deliberation” as a separate

element, the concept of deliberation remained encompassed within the statute pursuant to the

amended definition of “premeditation.” The 1995 amendment included a revised definition

of “premeditation,” which stated:

[P]remeditation is an act done after the exercise of reflection and judgment.

“Premeditation” means that the intent to kill must have been formed prior to

the act itself. It is not necessary that the purpose to kill pre-exist in the mind

of the accused for any definite period of time. The mental state of the accused

at the time the accused allegedly decided to kill must be carefully considered

in order to determine whetherthe accused wassufficiently free from excitement

and passion as to be capable of premeditation.

T.C.A. § 39-13-202(d) (1996 Supp.) (emphasis added). Thus, while the element of

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deliberation was omitted specifically, the amended definition of premeditation retained the

general concept of the omitted element. This court has previously noted that, an instruction

to the jury “that a premeditated act is one done after the exercise of reflection and judgment

encompasses the general concept of deliberation as set forth in prior law.” State v. Luther

Ray Dotson, Jr., No. E1999-00640-CCA-R3-CD, 2000 Tenn. Crim. App. LEXIS 359, *24

n.1 (Tenn. Crim. App., at Knoxville, May 3, 2000) (citing Brown, 836 S.W.2d at 543). The

finding of deliberation is now merely incorporated within the definition of premeditation, not

totally dispensed with as argued by the petitioner. See Hart v. State, 21 S.W.3d 901, 904-05

(Tenn. 2000) (indictment incorrectly charging defendant with “carnal knowledge” under a

repealed statute not defective where “acts amounting to ‘carnal knowledge’ are included in

the definition of ‘sexual penetration.’”). As such, the petitioner is incorrect in his contention

that “[t]he 1995 amendment’s statutory language prohibited a conviction based upon

deliberation.”

As argued by the State, the indictment at issue in this case charged the petitioner with

first degree murder in words equivalent to the law in effect at the time of the offense.

Because the crime was defined so similarly under both the pre- and post- amended law, the

indictment was sufficient to provide the petitioner with notice of the charge, provide the

court with the basis for entry of judgment, and protect the petitioner against double jeopardy.

The conviction in the case was not rendered void by use of the language of the prior version

of the statute, and the trial court had jurisdiction to enter judgment. As such, the habeas

corpus court correctly determined that relief was not warranted in this case.

CONCLUSION

Based upon the foregoing, the denial of the petition for writ of habeas corpus relief

is affirmed.

_________________________________

JOHN EVERETT WILLIAMS, JUDGE

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