# FILED
March 20, 2000 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COUR T OF TENNESSEE AT JA CKSON

FOR PUBLICA

TION Filed: March 20, 2000

STATE OF TENNESSEE, ) ) APPELLEE, ) SHELBY CRIMINAL ) v. ) Hon. Joseph B. Mc Cartie, Judge ) FREDERICK SLEDGE, ) No. W1994-00005-SC-R11-DD ) APPELLANT. )

FOR APPELLANT : FOR APPELLEE : WILLIAM P. REDICK, JR. PAUL G. SUMMERS Whites Creek Attorney General and Repor ter MICHAEL E. MOORE Solicitor General JENNIFER L . SMITH Assistant Attorney Gener al Nashville



# O P I N I O N

COURT OF CRIMINAL APPE ALS AFFIRMED AS MODIFIED HOLDER, J.2 OPINION
We granted review to address w hether omission of a culpable mental state in an indictment for felony murder rendered the indictment insufficient to support a conviction. We hold that incl usion in the language of the i ndictment of the explicit reference to the felony murder statutory section was sufficient to apprise the defendant of his charge and to protect the defendant from reprosecution for the same offense. The indi ctment satisfies the requir ements enunciated by this Court in State v. Hill , 954 S.W.2d 725 (Tenn. 1997), Ruff v. State , 978 S.W.2d 95 (Tenn. 1998), and State v. Carter , 988 S.W.2d 145, 149 (Tenn. 1999). The defendant has raised numer ous other issues in this appeal. We hold those issues are both moot and without merit. This case is remanded to the trial court for res entencing pursuant to the judg ment of the Court of Criminal Appeals.

FACTS
The defendant, Frederick Sledge, was convicted by a jury of first degree murder and especially ag gravated robbery. He was sentenced to death for the first degree felony murder conviction and receiv ed a sentence of twenty-one years for the especially aggravated robbery

conviction to be serv

ed
consecu tively.

The record i ndicates tha t the defendant admitted shoo ting the v

ictim, Johnny Harris, on December 10, 1991. The first shot entered his ba ck, penetrated his heart, and exi ted his chest. The second shot ent ered the back of his knee and exited just below the kneecap. Harris was found face-up with his pockets turned inside-out.3 The defendant’s statement indicated that he and two other indivi duals had followed Harris from a supermarket to Harris’s apartment. The defendant approached Harris and demanded money. Harris gave the defenda nt his billfold containing only six or seven dollars. The defendant went through the victim’s pockets and s hot him.
The jury found the defendant guilty of felony murder. A sentencing hearing was held, and the jury found the existenc e of one aggravating circumstance: that the defendant had b een previously convicted of one or more felonies whose statutory elements included the use of vi olence to the person. See Tenn. Code Ann. § 39-13-204(i)( 2). The jury found that the ag gravating circumstance outweig hed the evidence of mitigatin g circumstances beyond a reasonable doubt. The jury s entenced the defendant to death by elect rocution.
The Court of Criminal Appeals affirmed the defendant’s conviction. The appellate court found that felony mur der was not sufficiently charged in one count because the indictment failed t o include an allegation of recklessness. The court, however, w

ent on to find that a second count all eging a deliberate and premeditated killing lawfully charged the defendant with first degree murder, which could then be proved by showing the defendant committed felon y murder.
The Court of Criminal Appeals r eversed the defendant’s sentence an d remanded the case for resentencing holding that the trial court: (1) improp erly allowed argument and a factual reference concerning the defendant’ s prior robbery convic tions i n viol ation of State v. Bigbee , 885 S.W.2d 797 (Te nn. 1994); and (2) unconstitutionally excluded mitigating evidence from a prison chaplain regarding the defendant’s r emorsefulness. The defendant appealed.4 ANAL YSIS
The defendant argues that his indictment charging felony murder is insufficient to support his conv iction. He reasons that th e indictment fails to sp ec if ic al ly al le ge th e r eq ui si te cu lp ab le

me nt al stat e of r

ec kl es sn es s. We disagree.

The defendant w

as indicted

in Count One

of the indict ment for the cr ime of felony murder. The indictment re ad, in pertinent part, that the defendant:
did unlawfully kil l Johnny Harris dur ing the perpetration of Aggravated Robbery , in violation of T.C.A. 39- 13-202, against the peace and dignity of the State of Tennessee.

At the time of the commission of the offense, the cr ime of felony murder require d “[a] reckless kill ing of another committed in the per petration of . . . any . . . robbery.” See Tenn. Code Ann. § 39-13-202 (Repl . 1991). The issue now before us is whether the omis sion of the term “reckless” from the indictment rendered the conviction i nvalid.
This Court has previously held that specific reference to a statute within the indictment may be sufficient to place the accused on notice of the c harged offense. See State v. Carter , 988 S.W.2d 145, 149 (Tenn. 1999); Ruff v. State , 978 S.W.2d 95 (Tenn. 1998). The language of the indictment provided the trial court with ample information upon which to base a proper judgment. See Carter , 988 S.W.2d at 149; Ruff , 978 S.W.2d at 97, 99. The indictment further prov ided ample informat ion to protec t the defendant from reprosec ution for the same offense. See Carte r, 988 S.W.2d at 149; Ruff , 978 S.W.2d at 97, 99. The language of the indictment w as clear and concise and met the requirements of1 Pursu ant to Te nn. Cod e Ann. § 40-13-2 02 (199 0), an indictm ent m ust: state the facts constitutingthe offense i n ordinary and concise languag e, without p rolixity or repetition, in s uch a m anner a s to ena ble a p erso n of c om mo n und ersta nding to kn ow w hat is intended, and with t hat degree of cer tainty which wil l enable the court, on conviction , to pronou nce the proper ju dgm ent; . . . .
2 In thi s appeal, t he defendant i ncluded in the appendix excerpt s of the bri ef he fil ed in the intermediat

e appellat

e court. The i ssues raised i n those excerpts were incorpor ated by reference into t he defendant’ s applicat ion for di scretionar y revi ew to thi s Court. While we do not encourage this pract ice, we reser ve the ri ght to permit such incorporation on a case-by -case basis. 5 Tenn. Code Ann. § 40-13-202 (Repl. 1991). 1 See Carter , 988 S.W.2d at 149; Ruff , 978 S.W.2d at 97, 99. Lastly, we concl ude that recklessness, know ledge, or intent may be inferred from the conduct alleged in the indi ctment--that the defendant unlawfully kill ed Harris during the perpetration of the aggrav ated robbery. See generally Carter , 988 S.W.2d at 149; Ruff , 978 S.W.2d at 97, 99. We hold that the indictment clearly sati sfies the requirements set for th in Carter , Ruff , and State v. Hill , 954 S.W.2d 725 (Tenn. 1997). This issue is dev oid of merit. Although for slig htly different reasoning tha n relied upon by the Court of Criminal Appeals, we affirm the conviction.

As a final matter, we note that the defendant has raised numerous other issues in this appeal. 2 Although the Court of Cri minal Appeals reversed the defendant’s sentence and remanded the case for a new sentencing heari ng, the defendant has raised issues in th is appeal concerning the v alidity of his death sentence and his sentencing he aring. While these issues would ordinarily be considered moot, we have reviewed the issues raised. Upon review, we affirm the disposition of the Court of Cr iminal Appeals with r

espect to the remaining issues. The defendant, however, may raise these issues in any subsequent appeal should the issues rema in relevant follo wing the defend ant’s resenten cing.

This case is remanded to the tri al court for a new sentenci ng hearing pursuant to the order of the Court of Criminal Appeals. It appear ing that the defendant is indigent, costs of thi s appeal shall be taxed to the State.6 JANICE M. HOLDER, JUSTICE
Concurring: Anderson, C.J. Drowota, Birch, and Barker, J.J.