            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                        DECEMBER 1998 SESSION
                                                        FILED
                                                      March 24, 1999
CHRIS FREEMAN,              *      C.C.A. # 02C01-9807-CC-00202
                                                     Cecil Crowson, Jr.
      Appellant,            *      LAKE COUNTY       Appellate C ourt Clerk


VS.                         *      Hon. R. Lee Moore, Jr., Judge

FRED RANEY, WARDEN,         *      (Habeas Corpus)

      Appellee.             *




For Appellant:                     For Appellee:

Chris Freeman, Pro Se              John Knox Walkup
N.W.C.C.                           Attorney General and Reporter
Route 1, Box 660
Tiptonville, TN 38079              Elizabeth T. Ryan
                                   Assistant Attorney General
                                   425 Fifth Avenue North
                                   Nashville, TN 37243-0493

                                   C. Phillip Bivens
                                   District Attorney General
                                   P.O. Drawer E
                                   Dyersburg, TN 38024




OPINION FILED:__________________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The petitioner, Chris Freeman, appeals the trial court's denial of his

petition for writ of habeas corpus. In this appeal of right, the petitioner argues that

his judgment of conviction for attempted second degree murder is void because the

underlying indictment failed to allege an overt act constituting a substantial step

towards the commission of the crime.



              We affirm the judgment of the trial court.



              On August 23, 1995, the petitioner was convicted of two counts of

attempted second degree murder, reckless endangerment, and unlawful possession

of a weapon. The trial court imposed Range II, consecutive sentences of fifteen

years on each count of attempted murder. Because the sentences on the remaining

counts were concurrent, the effective sentence was thirty years. In the petition filed

in the trial court, the petitioner alleged that he was denied the effective assistance of

counsel and that the indictment on Count Two was insufficient to support an

attempted second degree murder conviction.



              The trial court dismissed the petition on the basis that neither an

inadequate indictment nor ineffective assistance of counsel were proper subjects for

habeas corpus relief. In this appeal, the petitioner has not challenged the

correctness of the order of the trial court pertaining to the ineffective assistance of

counsel claim; therefore, this court will address only the indictment issue.



              Initially, the habeas corpus remedy is limited in scope. Codified at

Tenn. Code Ann. §§ 29-21-101 to -130, the writ of habeas corpus will issue only in

the case of a void judgment or to free a prisoner held in custody after his term of


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imprisonment has expired. State ex rel. Hall v. Meadows, 389 S.W.2d 256, 259

(Tenn. 1965). Unlike the post-conviction petition, the purpose of a habeas corpus

petition is to contest void and not merely voidable judgments. See State ex rel.

Newsom v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968). "A petitioner cannot

collaterally attack a facially valid conviction in a habeas corpus proceeding." Potts v.

State, 833 S.W.2d 60, 62 (Tenn. 1992). Habeas corpus actions may, however, be

brought to contest an illegal confinement at any time while the prisoner is

incarcerated. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993).



              Here, the indictment alleged that the petitioner attempted to commit

the criminal offense of first degree murder, "an intentional, premeditated and

deliberate killing of another, by acting with intent to cause a result that is an element

of the offense, to-wit: shooting at Marcus Treadwell ... and believing the said

conduct would cause the said result without further conduct on his part...."

Tennessee Code Annotated section 39-12-101(a)(2) provides that one commits a

criminal attempt by acting "with intent to cause a result that is an element of the

offense, and believ[ing] the conduct will the cause the result without further conduct

on the person's part."



              In James R. Twitty v. Carlton, No. 03C01-9707-CR-00310, slip op. at 4

(Tenn. Crim. App., at Knoxville, Jan. 6, 1999), a panel of this court split on whether

an indictment which alleged that "[Twitty] did unlawfully, deliberately and with

premeditation attempt to kill [the victim] in violation of [Tenn. Code Ann.] 39-12-101,

... " was sufficient to support a conviction. The majority relied on State v. Cedric E.

Stampley, No. 02C01-9409-CR-00208 (Tenn. Crim. App., at Jackson, Aug. 16,

1996), app. denied, (Tenn., Jan. 27, 1997). In his dissent, Judge Joseph M. Tipton

quoted extensively from State v. Michael K. Christian, Jr., No. 03C01-9609-CR-


                                            3
00336, slip op. at 13 (Tenn. Crim. App., at Knoxville, Mar. 23, 1998), app. denied,

(Tenn., Jan. 19, 1999), and concluded that the indictment was inadequate because

it failed to allege facts supporting the overt act:

              The indictment is required to state the facts that
              constitute the offense. [Tenn. Code Ann.] § 40-13-202.
              Each of the three means of criminal attempt provided in
              [Tenn. Code Ann.] § 39-12-101 requires an act or actions
              to go with the intent to commit an offense.... The failure
              of the charging instrument to allege any conduct or action
              by the petitioner relative to him intending to commit first
              degree murder renders the indictment fatally deficient.

Id., dissenting op. at 3. There are several other cases which have addressed the

adequacy of indictments charging attempt. In State v. Jimmie Lee DeMoss, No.

02C01-9406-CC-00127, slip op. at 3 (Tenn. Crim. App., at Jackson, April 26, 1995),

the indictment provided as follows:

              [T]hat JIMMIE LEE DEMOSS ... did unlawfully,
              intentionally, deliberately and with premeditation attempt
              to kill KATHEY LYNN BROWN, in violation of T.C.A. §
              39-12-101 and T.C.A. § 39-13-202 ....

DeMoss argued that the indictment was deficient "because it does not allege ... how

the attempt to kill the alleged victims was carried out and what weapon was used in

the alleged attempted murders." Id., slip op. at 3. The panel held that the

indictment was sufficient because precise factual pleading, a requirement under the

common law, was not necessary under the terms of the particular statute. Id., slip

op. at 3-4. The indictment in this case cannot be distinguished from that in DeMoss.

There have been factual allegations in each instance. The supreme court granted

review in DeMoss. No opinion has been issued to date.



              Similarly, in State v. Steve Mason, the indictment included minimal

factual allegations:

              [That the defendant] ... did unlawfully, intentionally,
              deliberately and with premeditation attempt to kill Jesse
              Jones, in violation of Tennessee Code Annotated 39-12-
              101, and Tennessee Code Annotated 39-13-202 ...

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No. 01C01-9603-CC-00103, slip op. at 7-8 (Tenn. Crim. App., at Nashville, June 6,

1997). Mason had argued that the traditional rule required more information, "such

as how the attempt upon Jones' life was perpetrated." This court disagreed, holding

that the indictment was sufficient and that Mason could obtain additional facts

through a bill of particulars. Id., slip op. at 8. On February 23, 1998, our supreme

court denied permission to appeal.



              In State v. Dock Battles, No. 02C01-9501-CC-00019, slip op. at 2

(Tenn. Crim. App., at Jackson, Nov. 29, 1995), app. denied, (Tenn., April 1, 1996),

an indictment charging attempted aggravated burglary was challenged on the basis

that it failed to allege the essential elements of attempt, i.e., an overt act or

substantial step. The instrument charged as follows:

              [That Battles] did unlawfully attempt to commit ...
              Aggravated Burglary, as defined in T.C.A. § 39-13-403;
              in that he ... did unlawfully attempt to enter the habitation
              of [the victim], not open to the public, without the
              effective consent of [the victim], with intent to commit
              theft, in violation of T.C.A. § 39-12-101....

Id. This court adopted a dictionary definition of attempt, "to make an effort to do,

accomplish, solve, or effect." Id., slip op. at 3 (quoting Webster's Ninth New

Collegiate Dictionary (1983)). Based upon the ordinary meaning of the word

attempt, the panel held that "attempt to enter the habitation of the victim" was

sufficient to allege a substantial step or overt act. Id.



              In several recent cases, our supreme court also appears to have

relaxed the common law requirements governing indictments. Initially, in State v.

Trusty, an indictment included the following language:

              [That the defendant] ... did unlawfully attempt to commit
              the offense of Murder First Degree, as defined in T.C.A.
              39-13-202, in that he, the said Wayne Trust[y], did
              unlawfully, intentionally, deliberately and with
              premeditation attempt to kill Hunter Bell, in violation of

                                             5
              T.C.A. 39-12-101 ....

919 S.W.2d 305, 312 (Tenn. 1996). The supreme court ruled that the "indictment

allege[d] the essential elements of attempted first-degree murder and could thus

form the basis for a conviction." Id. In State v. Hill, 954 S.W.2d 725, 728 (Tenn.

1997), our supreme court pointed out that "the description of the proof necessary to

sustain a conviction must be both more inclusive and conclusive than the language

of an indictment."



              In Dykes v. Compton, 978 S.W.2d 528 (Tenn. 1998), the court

observed as follows:

              [W]e wish to emphasize once again the fact that the
              Court has moved away from the strict pleading
              requirements of common law. As we noted in Hill, "the
              purpose for the traditionally strict pleading requirement
              was the existence of common law offenses whose
              elements were not easily ascertained by reference to a
              statute. Such common law offenses no longer exist." So
              long as the constitutional and statutory requirements in
              Hill are met, the indictment will be sufficient to support a
              conviction.

Id. at 530 (internal citations omitted) (emphasis added).



              Finally, in Ruff v. State, 978 S.W.2d 95, 100 (Tenn. 1998), our

supreme court reiterated its intent to "relax strict pleading requirements of the

common law" and concluded that "where the constitutional and statutory

requirements outlined in Hill are met, an indictment which cites the pertinent statute

and uses its language will be sufficient to support a conviction."



              This more recent view is consistent with holdings from other

jurisdictions. In People v. Fowler, 290 N.E.2d 618, 620 (Ill. App. 1972), the Illinois

Appellate Court held, "An attempt to kill is clearly an act constituting a substantial

step toward commission of the offense of murder. Although the indictment did not

                                            6
describe the particular method of the attempt it was unnecessary for the state to

plead such evidentiary details." In Reese v. State, 456 So.2d 341, 347-48 (Ala.

Crim. App. 1982), cert. denied, (Ala. 1983), the Alabama Court of Criminal Appeals

held, "[T]he allegation that the defendant with the requisite intent, 'attempted to kill

and murder' a named victim, was sufficient to describe an act which constituted a

substantial step toward the commission of murder."



              The indictment in this case alleges as follows:

              [The petitioner] unlawfully[,] feloniously and knowingly
              [did] attempt to commit the criminal offense of first
              degree murder, to wit: an intentional, premeditated and
              deliberate killing of another by acting with intent to cause
              a result that is an element of the offense, to-wit: shooting
              at Marcus Treadwell while he was in Terrell Davis' car
              and actually striking the car numerous times, and
              believing the said conduct would cause the said result
              without further conduct on his part, in violation of ...
              [Tenn. Code Ann.] § 39-12-101, a Class A felony.

These allegations embody the criminal intent required. In our view, this was more

than sufficient to embody an overt act and a substantial step. Because this

indictment includes adequate language to support a conviction of attempt, the

judgment would not be void and, therefore, the petitioner would not be entitled to

relief.



              Accordingly, the judgment is affirmed.



                                           ________________________________
                                           Gary R. Wade, Presiding Judge




                                            7
CONCUR:



_____________________________
Thomas T. W oodall, Judge



_____________________________
John Everett Williams, Judge




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