# FILED
December 10, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON APRIL SESSION, 1996
STATE OF TENN ESSEE, ) C.C.A. NO. 02C 01-9505-CR-00154 ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. W. FRED A XLEY JOSE HOLMES, ) JUDGE ) Appellant. ) (Dir ect Ap peal - Attem pted Felo ny ) Murder - Especially Aggravated ) Robb ery)

FOR THE APPELLANT : FOR THE APPELLEE : BRETT B. STEIN CHARLES W. BURSON 100 N. Main, Ste. 3102 Attorney General and Repor ter Memphis, TN 38103 ELLEN H. POLLACK Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243 JOHN W. PIEROTTI District Attorney General LEE COFFEE Assistant District A

ttorney 201 Poplar Memphis, TN 38103

OPINION FILED ________________________ CONVICTION FOR ATTEMPTED FELONY MURDER REVERSED AND DISMISSED; CONVICTION FOR ESPECIALLY AGGRAVATED ROBBERY AFFIRMED;REMANDED FOR RE-TRI AL ON COUNT 2 OF THE IND ICTMENT. JERRY L. SMITH, JUDGE-2- 

## OPINION

Appellant Jose Holmes was convicted by a jur

y in the Shelby County Criminal Court of attempted first degree murder and of especially aggravated robbery. He was sentenced as a career offender to sixty year

s in the Department of Correction. On appeal, Appellant raises three issues:
(1) Whether the trial court’s instructi on to the jury concernin g “a reasonable doubt” placed a h igher burden of proof upon Appellant than is requi red by due process claus e? (2) Whether the trial court’s specific ins truction concerning criminal responsibili

ty of the conduct of another when coupled with a general

instruction on criminal responsibility plac

ed an undue prominence on that fact to the prejudice of Appellant? (3) Whether the trial court’s denial of Appell ant’s motion to strike his alias from the i ndictment prejudiced Appellant denying hi m of the due proce ss of law?
After careful consideration of this matter we must rever

se and dismiss the conviction for attempted felony murder. Appellant’s conviction f or especially aggravated robbery

is affirmed. The case is remanded for r etrial on a charge of attempted second degree murder as alleged in Count 2 of the indi ctment.

I. FACTUAL BA

CKGROUND The proof in this matter shows that on September 27, 1993, Ms. Ma ryan Elam was leaving a

parking lot at the Mal l of Memphis when she was approached by two men wearing st

ocking masks. The men approached Ms. Elam’s car, pointed a gun at her, and demanded that she g ive them money. When Ms. Elam refused, the man she identified as Appellant shot her through the window of her car seriously injuring her. Appellant and his compatriot then stole $15,000 f rom the trunk of Ms.-3-

Elam’s vehicle. She had j ust withdrawn this money from the bank to take to her place of business.
Three other witnesses positively identified Appellant as a perpetrator of th ese crimes. One was a mall patron who actually saw Appellant shoot and rob Ms. Elam. Another witness saw

Appellant fleeing the crime scene. The final witness saw Appellant run onto a nearby h otel property and then tow ard an undeveloped area around No nconnah Creek. App roximate ly an hour a fter the shooting and robb ery, police found Appellant lying in thick brush near Nonc onnah Creek and near the mall. Under his head was the $15, 000 bundle of cash taken from Ms. Elam’ s trunk. When arrested Appellant identified himself as “Thomas Smith.” It was discov ered sometime later that his name was actually Jose Holmes.

2. CONVICTION FOR A TTEMPTED FELONY M URDER Neither party to this

appeal addressed the propriety of Appellant’s having been convicted of attempted felony mur der. This Court therefore ordered supplemental briefing on this issue in light of our state supreme co urt’s holding in State v. Kimbrou gh , 924 S.W.2d 888 (Te nn. 1996); that attempted felony murder is a crime which does not ex ist in Tennessee. The State now concedes that Appellant’s co nvicti on canno t stand i n light

of Kimbrough . We therefore reverse and dismiss Appellant’s conv iction on this charge.

However, this does not end our inquiry r egarding the charge of att empted murder. The jury acquitted Appellant of attempted pre meditated and deliberate first degree murder as charged in Count 1 of the indictment, but the jury did find Appellant guilt y of attempte d felony murde r as charged in Coun t 2. Although Kimbrough counsels us that such an offense does not exist, Count 2 alleges that Appellant “did unlawfully and knowingly attempt to kill” the victim. Count 2 is-4-

therefore sufficient to charge atte mpted second degree murder, See , Tenn. Code Ann. § 39-13-210(a)(1), and may not be dismissed outright. However, the jury instructions give n in this case, whil e appropriate in a prosecuti on for an attempted homicide based on Appellant’s par ticipation in a felony, ar e not proper in a prosecution for an attempted second deg ree murder prosecution all eging that Appellant “knowingl

y” attempted to kill the victim. For the reas ons discussed infra ., we therefore remand Count 2 of the i ndictment to the trial court for retrial on charges of attempted second degree murder.

3. JURY INSTRUCTIONS Appellant complains that the jur y instructions gi

ven in this case concer ning responsibility for the criminal conduct of another as an aider and abettor are improper. The allegedly erroneous instruction reads as follows:

When one enters into a scheme with others to commit a robbery and an attempted murder ensues, all defendants may be held responsible for the attempted murder, regardless of w ho actually committed the attempted murder and whether the attempted murder was specifically contemplated by the others. As long as the defendant intended to c ommit the robbery and an attempted murder resulted during the perpetra tion of o r the atte mpt to pe rpetrate the robbe ry, each defendant is responsible for the atte mpted murder, regardless of whether h e intended for the victim to di e or participated in the act of attempted murde r. Recently our state supr eme court addressed the issue of ai der and abettor criminal liability

in the context of multiple offender felon ies. In State v. Carson , 950 S.W.2d 951, 956 (T enn. 1997); the Court held that the “natural and proba ble consequence” rule applies to the criminal responsi bility of one participant in a felony to the acts committed by another participant. Thus, under Tenness ee Code Annotated Sections 39-11-401, 402, an individual in a mu ltiple offender felony is responsible for the criminal acts of any of the other participants if the individual-5-

shares in the intent to commit the primary felony and the criminal acts committed by the other participants are the natural and probable conseq uence of the commission of the primary felony. Id.
It has long been recogniz ed that various assaulti ve offenses are the natural and probably consequence of ar med robbery attempts. See e.g

. State v. Gr ooms , 653 S.W.2d 271, 27 5 (Tenn. Crim. App. 1983). Thus, the instruction given in this case cannot be said to be entir ely inappropriate in a prosecution for an attempted homicide based on Appellant’s par ticipation in a robbery. Nonetheless, such an instruction has no place i n a prosecution of Appellant for attempt ed second degree murder based on his personal responsibility. We cannot say that absent this instruction a jury w

ould have nevertheless convicted Appellant of attempted s econd degree murder. We therefore remand Count 2 on the i ndictment for retrial on the charge of attempt to commit second degree murde r.
Appellant also challenges the constitutionality of the jury instruction concerni ng “reason able dou bt”. The trial cour t instruc ted the ju ry:

A reasonable doubt is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence in this case. It is not necessary that

the defendant’s guilt be prov ed beyond all reasonable doubt, an absolut e certainty of guilt is not demanded by the law to convict o

f any criminal charge. A reasonable doubt is just tha t--a doubt that is reasonabl e after an examination of all the facts of thi s case. If you find the State has not prov en every element beyond a reasona ble doub t, then yo u should find the defend ant not gu ilty. Appellant takes issue with only the second sentence of the charge which refers to the fact that “absolute certaint y of guilt is not demanded.”-6- It is Appellant’s positi on that this instruction mi sled the jury by co nveying that the State has a lesser burden of pr oof than is required by du e process. See In re Winship , 397 U. S. 358, 364 (1970) (explicitly holding that the Due Process Clause of the Fourteenth Amendment “protects the accused against convi ction except upon proof beyond a reasonable doubt of ever

y fact neces

sary to co nstitute the

crime with which he is charged”). In so arg uing, Appellant relies upon Cage v. Louisiana , 498 U. S. 39 91990), in whi ch the Supreme Court held unconstitutional an instruction which eq uated a reasonable doubt with a “grave uncertainty ” and an “actual substantial doubt.” The Court held that when the words “substantial” and “grave,” whic

h suggest a higher deg ree of doubt than is required under the reasonable doubt standard, are c onsidered with the inst ruction’s reference to “mor al certainty,” the jury

might convict a defendant on l ess proof than is required under the due process clause. Id . at 41.
The jury instruction at

issue contains neither the phrase ‘substantial doubt” nor “grave uncertai nty” nor “moral cert ainty.” Indeed, it w

as as a result of the decision in Cage v. Louisiana that the Committee on Pattern Jur y Instructions wr

ote this particular instruction to appear along with the previous instruction which included the term “moral certainty.” See T.P.I.--Crim. 2.03 (4th Ed.1995) comments. In conclusion, we find that the due process con cerns addressed in Cage are not present in this instruction which adequately defines “reasonable doubt.”

Moreover, Tennessee Court s have repeatedly held that the traditional reasonable doubt instruction given in Tennessee is c onstitutionally adequat

e. See State v. Nichols , 877 S.W.2d 722, 734 (Tenn. 1994), cert

. denied , 115 S. Ct. 909 (1995); State v. Sexton , 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); Pettyjoh n v. State , 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994), app
. denied , (Tenn. 1994);-7-

State v. Hallock , 875 S.W.2d 285, 294 (Tenn. Crim. App. 1993), app
. denied , (Tenn. 1994); Marshall v. State , 528 S.W.2d 823, 825 (Tenn. Crim. App. 1975), cert

. denied , (Tenn. 1975). That instruction states:

Reasonable doubt is that doubt engendered by an investigation of all the proof in the case and an inability, after such inv estigation, to let the mind rest easily

as to the certainty of gui lt. Reasonable doubt does not mean a captious, possibl e or imaginary doubt. Absolute certainty of guilt is

not demanded by the law to c onvict of any criminal charge, but moral certai nty is required, and this certainty is required as to every propositi on of proof requisite to constitute the offense. We recognize that one federal distric t court has concluded that a si milar instruction suggested a standard of proof lower than due process allows, primarily referring to the “moral c ertainty” language . See Rickman v. Dutton , 864 F. Supp. 686, 708-09 (M.D. Tenn. 1994). H owever, the United St ates Court of Appeals for the Sixth Circuit has

held that the traditional r easonable doubt instruction q uoted above is constitutionall y sound. Austin v. Bell , ___ F.3d ___, 1997 WL 602670 (6th Cir. 1997).

Thus, while the instruction on reasonable doubt actually given the jury w

as constitutionally adeq uate it does not enjoy the l ong lineage and venerabi lity of the traditional reasonable doubt instruction. Reasonable do ubt is so fundamental a concept to our system of criminal justice that the understandin g of it should not vary from court to court. Trial c ourt should return to the tr aditional instruction.

4. USE OF ALIAS IN THE INDICTMENT In each of his indictments, Appellant was referred to as “Jose Holme s” (also known as Thomas Smith). Appell ant contends that informing the j ury “on the front end by virtue of an indic tment” that he used an alias “pl ants in the jurors’ minds that there is something wr

ong with [him] because he wouldn’t otherwis e use another-8-

name.” In a pre-trial or al motion which the tri al court denied, Appellant, claiming undue prejudice, requested that the trial court stri ke the phrase ”(also know n as Thomas Smith)” from the indictments.
Appellant acknowledges the well-established law of Tennessee that proof of a defendant’s use of an alias supports its inclusion in the ind ictment. State v. Zirkle , 910 S.W.2d 874, 887 (Tenn. Crim. App. 1995); Young v. State , 566 S.W.2d 895, 899 (Tenn. Crim. App. 1978) (stating that one who misidentifies h imself to police officers has no legitimate compl aint if an alias is used on the indictment). Here, the record refl ects that Appellant identified himself to the polic e using the name “Thomas Smith.” Even if no such proof existed and the inclusion of the alias were erroneous, the error does not warrant a revers

al unless is can be show n that the defendant was prejudiced. State v. Stephenson , 878 S.W.2d 530, 540 (Tenn. 1994). Because of the overwhelming amount of proof incriminating Appellant, there is no prejudice in this case. See, State v. Laney , 654 S.W.2d 383, 38 6 (Tenn. 1983) (erroneous inclusion of defendant’s alias in indictme nt was not prejudicial where state’s evidence clear

ly established defendant’ g uilty), cert. denied , 464 U.S. 1003 (1983).
Despite Appellant’s acknowledgment of the applicable law with respect to this issue, he insists that the precise issue that he raises has not been previously addressed, that is, whether the inclusion of an alias in the indictment violates the due process clause by er oding Appellant’s presumpti on of innocence. In support of this argument, Appellant ci tes as analogous the obvi ously improper situati on of alleging in the indictment that a defendant has conf essed to the crime. However, Appellant apparently misper ceives the nature of an indic tment which is defined by statute as “an accusation in writing . . . charging a person with an indictable offense.” Tenn. Code Ann. § 40-13-101(a) (1990). While charging someone w ith-9-

an offense does not require a reci tation of the proof against that per son, it does require a clear desig nation of the person who is c harged. Recognizi ng this fact, Tenn. Code Ann. § 40-13-203 provides as follows:

Certainty as to person charged.--The indictment must be certain as to the person charged; but when [his] name is unknown to the grand jur y, it may be so alleged without further identification, or [he] may be indicted under any name by whi ch [he] is generally k now.
The record is unclear as to the point at which Appell ant’s real name was disc overed, but at the time of his arrest, Appellant was known to the officer by his alias. Under these circumstances, the purp ose of the indictment was best served by the inclus ion of Appellant’s alias.
Lastly, we point out that appellant has not cited any legal authority for the proposition that the inclus ion of an alias in the indictment unconstitutionally detr acts from his presumption of innocence. W hile “[t]he presumption of innocence . . . is a basic component of a fair trial under our system of criminal j ustice,” we find no specific case which is

either on point or whi ch lends support by analog y to Appellant’s argument. Estelle v . Williams , 425 U.S.501, 503 (1976); see also State v. Braden , 874 S.W.2d 624, 626 (Tenn. Crim. App. 1993); Willocks v. State , 546 S.W.2d 819, 820 (Tenn. Crim. App. 1976). We therefore find that Appellant w as not deprived of the due process of law by the inclusion of his al ias in the indictment.
In summary, the judgment of the tr ial court finding Appellant guilty of attempted felony murder is rev ersed and dismissed. The judg ment of conviction for especially aggr

avated robbery is affirmed. Count 2 of the indictment is remande d for trial on a charge of attempted second degree murd er.

___________________________ JERRY L. SMITH, JUDGE-10-

CONCUR

____________________________ PAUL G. SUMMERS, JUDGE

____________________________ JOSEPH M. TIPTON, JUDGE