           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON

                         APRIL SESSION, 1996


STATE OF TENNESSEE,        )      C.C.A. NO. 02C01-9505-CR-00154
                                                                FILED
                           )                                    December 10, 1997
      Appellee,            )
                           )                                    Cecil Crowson, Jr.
                           )      SHELBY COUNTY                 Appellate C ourt Clerk
VS.                        )
                           )      HON. W. FRED AXLEY
JOSE HOLMES,               )      JUDGE
                           )
      Appellant.           )      (Direct Appeal - Attempted Felony
                           )      Murder - Especially Aggravated
                           )      Robbery)



FOR THE APPELLANT:                FOR THE APPELLEE:

BRETT B. STEIN                    CHARLES W. BURSON
100 N. Main, Ste. 3102            Attorney General and Reporter
Memphis, TN 38103
                                  ELLEN H. POLLACK
                                  Assistant Attorney General
                                  450 James Robertson Parkway
                                  Nashville, TN 37243

                                  JOHN W. PIEROTTI
                                  District Attorney General

                                  LEE COFFEE
                                  Assistant District Attorney
                                  201 Poplar
                                  Memphis, TN 38103



OPINION FILED ________________________

CONVICTION FOR ATTEMPTED FELONY MURDER REVERSED AND
DISMISSED; CONVICTION FOR ESPECIALLY AGGRAVATED ROBBERY
AFFIRMED; REMANDED FOR RE-TRIAL ON COUNT 2 OF THE INDICTMENT.

JERRY L. SMITH, JUDGE
                                   OPINION


      Appellant Jose Holmes was convicted by a jury 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 years in the Department of Correction.

On appeal, Appellant raises three issues:



      (1)    Whether the trial court’s instruction to the jury concerning
             “a reasonable doubt” placed a higher burden of proof
             upon Appellant than is required by due process clause?

      (2)    Whether the trial court’s specific instruction concerning
             criminal responsibility of the conduct of another when
             coupled with a general instruction on criminal
             responsibility placed an undue prominence on that fact to
             the prejudice of Appellant?

      (3)    Whether the trial court’s denial of Appellant’s motion to
             strike his alias from the indictment prejudiced Appellant
             denying him of the due process of law?


      After careful consideration of this matter we must reverse and dismiss the

conviction for attempted felony murder. Appellant’s conviction for especially

aggravated robbery is affirmed. The case is remanded for retrial on a charge of

attempted second degree murder as alleged in Count 2 of the indictment.



                           I. FACTUAL BACKGROUND

      The proof in this matter shows that on September 27, 1993, Ms. Maryan

Elam was leaving a parking lot at the Mall of Memphis when she was approached by

two men wearing stocking masks. The men approached Ms. Elam’s car, pointed a

gun at her, and demanded that she give 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 from the trunk of Ms.



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Elam’s vehicle. She had just withdrawn this money from the bank to take to her

place of business.



       Three other witnesses positively identified Appellant as a perpetrator of these

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 hotel property and then toward an undeveloped area

around Nonconnah Creek. Approximately an hour after the shooting and robbery,

police found Appellant lying in thick brush near Nonconnah 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 discovered

sometime later that his name was actually Jose Holmes.



              2. CONVICTION FOR ATTEMPTED FELONY MURDER

       Neither party to this appeal addressed the propriety of Appellant’s having

been convicted of attempted felony murder. This Court therefore ordered

supplemental briefing on this issue in light of our state supreme court’s holding in

State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996); that attempted felony murder is

a crime which does not exist in Tennessee. The State now concedes that

Appellant’s conviction cannot stand in light of Kimbrough. We therefore reverse and

dismiss Appellant’s conviction on this charge.



       However, this does not end our inquiry regarding the charge of attempted

murder. The jury acquitted Appellant of attempted premeditated and deliberate first

degree murder as charged in Count 1 of the indictment, but the jury did find

Appellant guilty of attempted felony murder as charged in Count 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

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therefore sufficient to charge attempted second degree murder, See, Tenn. Code

Ann. § 39-13-210(a)(1), and may not be dismissed outright. However, the jury

instructions given in this case, while appropriate in a prosecution for an attempted

homicide based on Appellant’s participation in a felony, are not proper in a

prosecution for an attempted second degree murder prosecution alleging that

Appellant “knowingly” attempted to kill the victim. For the reasons discussed infra.,

we therefore remand Count 2 of the indictment to the trial court for retrial on charges

of attempted second degree murder.



                               3. JURY INSTRUCTIONS

       Appellant complains that the jury instructions given in this case concerning

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 who actually committed the
              attempted murder and whether the attempted murder
              was specifically contemplated by the others.

                      As long as the defendant intended to commit the
              robbery and an attempted murder resulted during the
              perpetration of or the attempt to perpetrate the robbery,
              each defendant is responsible for the attempted murder,
              regardless of whether he intended for the victim to die or
              participated in the act of attempted murder.


       Recently our state supreme court addressed the issue of aider and abettor

criminal liability in the context of multiple offender felonies. In State v. Carson, 950

S.W.2d 951, 956 (Tenn. 1997); the Court held that the “natural and probable

consequence” rule applies to the criminal responsibility of one participant in a felony

to the acts committed by another participant. Thus, under Tennessee Code

Annotated Sections 39-11-401, 402, an individual in a multiple offender felony is

responsible for the criminal acts of any of the other participants if the individual


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shares in the intent to commit the primary felony and the criminal acts committed by

the other participants are the natural and probable consequence of the commission

of the primary felony. Id.



       It has long been recognized that various assaultive offenses are the natural

and probably consequence of armed robbery attempts. See e.g. State v. Grooms,

653 S.W.2d 271, 275 (Tenn. Crim. App. 1983). Thus, the instruction given in this

case cannot be said to be entirely inappropriate in a prosecution for an attempted

homicide based on Appellant’s participation in a robbery. Nonetheless, such an

instruction has no place in a prosecution of Appellant for attempted second degree

murder based on his personal responsibility. We cannot say that absent this

instruction a jury would have nevertheless convicted Appellant of attempted second

degree murder. We therefore remand Count 2 on the indictment for retrial on the

charge of attempt to commit second degree murder.



       Appellant also challenges the constitutionality of the jury instruction

concerning “reasonable doubt”. The trial court instructed the jury:

              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 proved beyond
       all reasonable doubt, an absolute certainty of guilt is not demanded by
       the law to convict of any criminal charge.

             A reasonable doubt is just that--a doubt that is reasonable after
       an examination of all the facts of this case.

             If you find the State has not proven every element beyond a
       reasonable doubt, then you should find the defendant not guilty.


Appellant takes issue with only the second sentence of the charge which refers to

the fact that “absolute certainty of guilt is not demanded.”




                                           -5-
       It is Appellant’s position that this instruction misled the jury by conveying that

the State has a lesser burden of proof than is required by due 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 conviction except upon

proof beyond a reasonable doubt of every fact necessary to constitute the crime

with which he is charged”). In so arguing, Appellant relies upon Cage v. Louisiana,

498 U. S. 39 91990), in which the Supreme Court held unconstitutional an

instruction which equated a reasonable doubt with a “grave uncertainty” and an

“actual substantial doubt.” The Court held that when the words “substantial” and

“grave,” which suggest a higher degree of doubt than is required under the

reasonable doubt standard, are considered with the instruction’s reference to “moral

certainty,” the jury might convict a defendant on less 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 uncertainty” nor “moral certainty.” Indeed, it was as a result of the

decision in Cage v. Louisiana that the Committee on Pattern Jury Instructions wrote

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 concerns addressed in

Cage are not present in this instruction which adequately defines “reasonable

doubt.”



       Moreover, Tennessee Courts have repeatedly held that the traditional

reasonable doubt instruction given in Tennessee is constitutionally adequate. 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); Pettyjohn v.

State, 885 S.W.2d 364, 366 (Tenn. Crim. App. 1994), app. denied, (Tenn. 1994);

                                           -6-
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 investigation, to
       let the mind rest easily as to the certainty of guilt. Reasonable doubt
       does not mean a captious, possible or imaginary doubt. Absolute
       certainty of guilt is not demanded by the law to convict of any criminal
       charge, but moral certainty is required, and this certainty is required as
       to every proposition of proof requisite to constitute the offense.


       We recognize that one federal district court has concluded that a similar

instruction suggested a standard of proof lower than due process allows, primarily

referring to the “moral certainty” language. See Rickman v. Dutton, 864 F. Supp.

686, 708-09 (M.D. Tenn. 1994). However, the United States Court of Appeals for

the Sixth Circuit has held that the traditional reasonable doubt instruction quoted

above is constitutionally sound. Austin v. Bell, ___ F.3d ___, 1997 WL 602670 (6th

Cir. 1997).



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

constitutionally adequate it does not enjoy the long lineage and venerability of the

traditional reasonable doubt instruction. Reasonable doubt is so fundamental a

concept to our system of criminal justice that the understanding of it should not vary

from court to court. Trial court should return to the traditional instruction.



                        4. USE OF ALIAS IN THE INDICTMENT

       In each of his indictments, Appellant was referred to as “Jose Holmes” (also

known as Thomas Smith). Appellant contends that informing the jury “on the front

end by virtue of an indictment” that he used an alias “plants in the jurors’ minds that

there is something wrong with [him] because he wouldn’t otherwise use another


                                           -7-
name.” In a pre-trial oral motion which the trial court denied, Appellant, claiming

undue prejudice, requested that the trial court strike the phrase ”(also known 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 indictment. 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 himself to police

officers has no legitimate complaint if an alias is used on the indictment). Here, the

record reflects that Appellant identified himself to the police 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 reversal unless is can be shown 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, 386 (Tenn. 1983)

(erroneous inclusion of defendant’s alias in indictment was not prejudicial where

state’s evidence clearly established defendant’ guilty), 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 eroding Appellant’s presumption of innocence. In support of

this argument, Appellant cites as analogous the obviously improper situation of

alleging in the indictment that a defendant has confessed to the crime. However,

Appellant apparently misperceives the nature of an indictment 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 with

                                           -8-
an offense does not require a recitation of the proof against that person, it does

require a clear designation of the person who is charged. Recognizing 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 jury, it may be so alleged without
              further identification, or [he] may be indicted under any
              name by which [he] is generally know.


The record is unclear as to the point at which Appellant’s real name was discovered,

but at the time of his arrest, Appellant was known to the officer by his alias. Under

these circumstances, the purpose of the indictment was best served by the inclusion

of Appellant’s alias.



       Lastly, we point out that appellant has not cited any legal authority for the

proposition that the inclusion of an alias in the indictment unconstitutionally detracts

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 justice,” we find no

specific case which is either on point or which lends support by analogy 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 was not

deprived of the due process of law by the inclusion of his alias in the indictment.



       In summary, the judgment of the trial court finding Appellant guilty of

attempted felony murder is reversed and dismissed. The judgment of conviction for

especially aggravated robbery is affirmed. Count 2 of the indictment is remanded

for trial on a charge of attempted second degree murder.


                                          ___________________________
                                          JERRY L. SMITH, JUDGE


                                           -9-
CONCUR



____________________________
PAUL G. SUMMERS, JUDGE


____________________________
JOSEPH M. TIPTON, JUDGE




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