                                              FILED
              IN THE SUPREME COURT OF TENNESSEE
                          AT JACKSON

                                                March 20, 2000

                                              Cecil Crowson, Jr.
                                    FOR PUBLICATION
                                            Appellate Court Clerk
                                    Filed: March 20, 2000




STATE OF TENNESSEE,           )
                              )
     APPELLEE,                )     SHELBY CRIMINAL
                              )
v.                            )     Hon. Joseph B. McCartie, 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 Reporter

                              MICHAEL E. MOORE
                              Solicitor General

                              JENNIFER L. SMITH
                              Assistant Attorney General
                              Nashville




                         OPINION




COURT OF CRIMINAL APPEALS
AFFIRMED AS MODIFIED                                       HOLDER, J.
                                     OPINION



       We granted review to address whether omission of a culpable mental

state in an indictment for felony murder rendered the indictment insufficient to

support a conviction. We hold that inclusion in the language of the indictment 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 indictment satisfies the requirements

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 numerous other issues in this appeal.

We hold those issues are both moot and without merit. This case is remanded to

the trial court for resentencing pursuant to the judgment of the Court of Criminal

Appeals.



                                      FACTS



       The defendant, Frederick Sledge, was convicted by a jury of first degree

murder and especially aggravated robbery. He was sentenced to death for the

first degree felony murder conviction and received a sentence of twenty-one

years for the especially aggravated robbery conviction to be served

consecutively.



       The record indicates that the defendant admitted shooting the victim,

Johnny Harris, on December 10, 1991. The first shot entered his back,

penetrated his heart, and exited his chest. The second shot entered the back of

his knee and exited just below the kneecap. Harris was found face-up with his

pockets turned inside-out.



       The defendant’s statement indicated that he and two other individuals had

followed Harris from a supermarket to Harris’s apartment. The defendant

approached Harris and demanded money. Harris gave the defendant his billfold

containing only six or seven dollars. The defendant went through the victim’s

pockets and shot him.




                                         2
       The jury found the defendant guilty of felony murder. A sentencing

hearing was held, and the jury found the existence of one aggravating

circumstance: that the defendant had been previously convicted of one or more

felonies whose statutory elements included the use of violence to the person.

See Tenn. Code Ann. § 39-13-204(i)(2). The jury found that the aggravating

circumstance outweighed the evidence of mitigating circumstances beyond a

reasonable doubt. The jury sentenced the defendant to death by electrocution.



       The Court of Criminal Appeals affirmed the defendant’s conviction. The

appellate court found that felony murder was not sufficiently charged in one

count because the indictment failed to include an allegation of recklessness.

The court, however, went on to find that a second count alleging a deliberate and

premeditated killing lawfully charged the defendant with first degree murder,

which could then be proved by showing the defendant committed felony murder.



       The Court of Criminal Appeals reversed the defendant’s sentence and

remanded the case for resentencing holding that the trial court: (1) improperly

allowed argument and a factual reference concerning the defendant’s prior

robbery convictions in violation of State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994);

and (2) unconstitutionally excluded mitigating evidence from a prison chaplain

regarding the defendant’s remorsefulness. The defendant appealed.



                                    ANALYSIS



       The defendant argues that his indictment charging felony murder is

insufficient to support his conviction. He reasons that the indictment fails to

specifically allege the requisite culpable mental state of recklessness. We

disagree.



       The defendant was indicted in Count One of the indictment for the crime

of felony murder. The indictment read, in pertinent part, that the defendant:



       did unlawfully kill Johnny Harris during the perpetration of
       Aggravated Robbery, in violation of T.C.A. 39-13-202, against the
       peace and dignity of the State of Tennessee.




                                         3
At the time of the commission of the offense, the crime of felony murder required

“[a] reckless killing of another committed in the perpetration of . . . any . . .

robbery.” See Tenn. Code Ann. § 39-13-202 (Repl. 1991). The issue now

before us is whether the omission of the term “reckless” from the indictment

rendered the conviction invalid.



           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 charged

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 provided

ample information to protect the defendant from reprosecution for the same

offense. See Carter, 988 S.W.2d at 149; Ruff, 978 S.W.2d at 97, 99. The

language of the indictment was clear and concise and met the requirements of

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 conclude that recklessness, knowledge,

or intent may be inferred from the conduct alleged in the indictment--that the

defendant unlawfully killed Harris during the perpetration of the aggravated

robbery. See generally Carter, 988 S.W.2d at 149; Ruff, 978 S.W.2d at 97, 99.

We hold that the indictment clearly satisfies the requirements set forth in Carter,

Ruff, and State v. Hill, 954 S.W.2d 725 (Tenn. 1997). This issue is devoid of

merit. Although for slightly different reasoning than 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 Criminal Appeals reversed the

defendant’s sentence and remanded the case for a new sentencing hearing, the

defendant has raised issues in this appeal concerning the validity of his death


   1
       Pursu ant to T enn. C ode A nn. § 40 -13-20 2 (199 0), an ind ictmen t mus t:

                    state the facts constituting the offense in ordinary and concise
                    langua ge, witho ut prolixity o r repetition , in such a man ner as to
                    ena ble a pers on o f com mo n un ders tand ing to kno w w hat is
                    intended, and with that degree of certainty which will enable the
                    court, o n conv iction, to pro nounc e the pr oper jud gme nt; . . . .

   2
    In this appeal, the defendant included in the appendix excerpts of the brief he filed in the
intermediate appellate court. The issues raised in those excerpts were incorporated by reference
into the defendant’s application for discretionary review to this Court. While we do not encourage
this practice, we reserve the right to permit such incorporation on a case-by-case basis.

                                                       4
sentence and his sentencing hearing. While these issues would ordinarily be

considered moot, we have reviewed the issues raised. Upon review, we affirm

the disposition of the Court of Criminal Appeals with respect to the remaining

issues. The defendant, however, may raise these issues in any subsequent

appeal should the issues remain relevant following the defendant’s resentencing.



       This case is remanded to the trial court for a new sentencing hearing

pursuant to the order of the Court of Criminal Appeals. It appearing that the

defendant is indigent, costs of this appeal shall be taxed to the State.




                                          JANICE M. HOLDER, JUSTICE



Concurring:

Anderson, C.J.
Drowota, Birch, and Barker, J.J.




                                         5
