         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 12, 2000 Session

                   STATE OF TENNESSEE v. MARK WILLIAMS

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 98-07919    Chris Craft, Judge


                   No. W1999-01456-CCA-R3-CD - Filed October 24, 2000


The defendant, Mark Williams, was indicted for attempted first degree murder. After being
convicted for attempted second degree murder, he was sentenced, as a Range I offender, to 12 years
in the Tennessee Department of Correction. In this appeal of right, the defendant contends that
because the indictment did not allege an overt act, the conviction is void. He further asserts that the
jury charge on attempted second degree murder was erroneous in that it did not require the jury to
find that he intended to kill the victim. The judgment of the trial court is affirmed.

                  Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed.

GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID G. HAYES and THOMAS T.
WOODALL , JJ., joined.

Samuel Perkins (on appeal and at trial) and Scott Crawford (at trial), Memphis, Tennessee, for the
appellant, Mark Williams.

Paul G. Summers, Attorney General & Reporter, J. Ross Dyer, Assistant Attorney General, and
James Wax and Elaine Sanders, Assistant District Attorneys General, for the appellee, State of
Tennessee.

                                             OPINION

                                               FACTS

        In the spring of 1997, the defendant, Mark Williams, and the victim, Courtney White, shared
an apartment in the Hickory Hills area in Memphis. During that time, the victim sold and
transported drugs for the defendant. Later, when the victim moved out of the apartment and into his
mother's home, he stopped selling drugs and began working two different jobs, one full-time and one
part-time.
        On March 30, 1998, the victim drove his mother's four-door 1993 Suzuki Sidekick to a gas
station near Denim and Diamonds, a Memphis nightclub, where he picked up an acquaintance named
Jason. When he drove to the club's parking lot, he noticed the defendant's parked car in his rearview
mirror. While the defendant was not in the car, the victim concluded that he "was around" and
decided to leave. Because, however, his vehicle was blocked by other traffic, the victim was unable
to drive away. As he continued to watch the defendant's car in his rearview mirror, the victim looked
to his left and saw the defendant standing outside of his vehicle with a gun in his hand. The
defendant then fired several shots, one of which struck the victim in the back of the neck.

       The victim was hospitalized for several days. Because the bullet had fractured his C1 and
C2 vertebrae, the victim had to be fitted with a halo brace. He spent five to six weeks in the Baptist
Rehabilitation Center. The bullet, still lodged in the victim's neck, cannot be removed. He is
disabled and must use a quad-cane to walk.

        The defendant testified on his own behalf at trial. According to the defendant, he lived in
an apartment complex directly across the street from the Denim and Diamonds nightclub. He
claimed that on the evening of the shooting, he had gone to the nightclub but was unable to get in
because the show was sold out. As he was "walking through the parking lot hollering at females,"
the defendant came upon the victim and his cousin in their truck. He contended that he was not
aware of the victim's presence until he heard the victim say, "[W]hat's up bitch[?]" The defendant
claimed that the victim then pointed a gun at him. The defendant explained that he ran towards the
rear of his vehicle, saw the victim shooting at him, and shot back. According to the defendant, he
returned to his home later that evening and informed his mother what had happened. On her advice,
he called an attorney and, upon the attorney's advice, turned himself in to the authorities.

                                                   I

       The defendant first contends that the indictment charging him with attempted first degree
murder should have been dismissed because it failed to allege an overt act. Generally, an indictment
must set forth the elements of the offense. State v. Perkinson, 867 S.W.2d 1, 5 (Tenn. Crim. App.
1992). It is settled law that "[w]hen the indictment or presentment fails to fully state the crime, all
subsequent proceedings are void." Id.

        Provisions of our state and federal constitutions guarantee the criminally accused knowledge
of "the nature and cause of the accusation." U.S. Const. amend. VI; Tenn. Const. art. I, § 9. "Fair
and reasonable notice of the charges against an accused is a fundamental constitutional requirement."
State v. Trusty, 919 S.W.2d 305, 309 (Tenn. 1996). To be sufficient, an indictment must "inform
[the] defendant of the precise charges[;] . . . must enable the trial court upon conviction to enter an
appropriate judgment and sentence; and . . . must protect [the] defendant against double jeopardy."
Id. As a matter of fairness, the constitutional requirement is designed to afford the criminally
accused with an adequate opportunity to prepare any defense before the trial. See, e.g., Pope v. State,
149 Tenn. 176, 258 S.W. 775 (Tenn. 1924); Daniel v. State, 50 Tenn. 257 (1871).



                                                 -2-
        The offense of criminal attempt is defined as follows:

                (a) A person commits criminal attempt who, acting with the kind of
       culpability otherwise required for the offense:
                (1) Intentionally engages in action or causes a result that would constitute an
       offense if the circumstances surrounding the conduct were as the person believes
       them to be;
                (2) Acts with intent to cause a result that is an element of the offense, and
       believes the conduct will cause the result without further conduct on the person's
       part; or
                (3) Acts with intent to complete a course of action or cause a result that would
       constitute the offense, under the circumstances surrounding the conduct as the person
       believes them to be, and the conduct constitutes a substantial step toward the
       commission of the offense.
                (b) Conduct does not constitute a substantial step under subdivision (a)(3)
       unless the person's entire course of action is corroborative of the intent to commit the
       offense.
                (c) It is no defense to prosecution for criminal attempt that the offense
       attempted was actually committed.

Tenn. Code Ann. § 39-12-101. A conviction under the criminal attempt statute requires proof of two
material elements: (1) the culpability required for the attempted crime; and (2) an act in furtherance
of the attempted crime. Wyatt v. State, 24 S.W.3d 319, 321 (Tenn. 2000). First degree murder,
other than a murder committed during the perpetration or attempted perpetration of one of the
felonies enumerated in Tenn. Code Ann. § 39-13-202(a)(2), is a "premeditated and intentional killing
of another." Tenn. Code Ann. § 39-13-202(a)(1).

       The indictment charging the defendant with attempted first degree murder provided in
pertinent part as follows:

       THE GRAND JURORS of the State of Tennessee, duly selected, empaneled, sworn
       and charged to inquire for the body of the county of Shelby, Tennessee, upon their
       oath, present that:

                                        MARK WILLIAMS

       on March 30, 1998, in Shelby County, Tennessee, and before the finding of this
       indictment, did unlawfully attempt to commit the offense of First Degree Murder, as
       defined in Tennessee Code Annotated 39-13-202, in that he, the said MARK
       WILLIAMS, did unlawfully, intentionally, and with premeditation attempt to kill
       COURTNEY WHITE, in violation of T.C.A. 39-12-101, against the peace and
       dignity of the State of Tennessee.



                                                 -3-
        Our supreme court recently addressed this issue in State v. Wyatt. In Wyatt, the defendant
was charged with attempted first degree murder in an indictment which provided in pertinent part
as follows:

       that WILLIAM TERRY WYATT on the 7th day of March, 1994, in Cumberland
       County, Tennessee, and before the finding of this indictment, did unlawfully,
       intentionally, deliberately and with premeditation attempt to kill Billie Carey in
       violation of T.C.A. 39-12-101 . . .

Wyatt, 24 S.W.3d at 324. Pursuant to a plea agreement with the state, Wyatt, who had been charged
with several other offenses in addition to attempted first degree murder, pled guilty to attempted
second degree murder and kidnapping. In a subsequent habeas corpus proceeding, Wyatt challenged
his conviction and sentence as void on the basis that the indictment failed to allege an overt act. The
supreme court, however, held that the language of the indictment was constitutionally and statutorily
sufficient:

       We conclude that the indictment in this case satisfies these minimum requirements.
       Clearly [the defendant] was placed on notice that he was charged with the intentional,
       deliberate and premeditated attempt to kill the named victim on a date certain. The
       indictment was also sufficient to place the trial court on notice that a judgment and
       sentence for attempted first-degree murder were proper upon conviction. Finally, by
       expressly stating that the attempt to kill was made against a specific victim on a date
       certain, the indictment offers [the defendant] double jeopardy protection from any
       future charge of attempted murder against that victim on that date. Though the
       language "did . . . attempt to kill" is a general description, especially in light of the
       testimony at the preliminary hearing that [the defendant] committed multiple acts
       against the victim which the State could have relied upon to obtain a verdict, this
       language alleges an act as required by the criminal attempt statute and was sufficient
       to notify [the defendant] of the accused crime, to confer jurisdiction upon the trial
       court, and to protect against double jeopardy.

Id. at 324-25 (citation omitted).

        The indictment charging the defendant with attempted first degree murder in this case is
virtually identical to the attempted first degree murder indictment approved by our supreme court
in Wyatt. Accordingly, the trial court properly denied relief.

                                                  II

       Next, the defendant asserts that the trial court's instruction on attempted second degree
murder was erroneous because it did not require the jury to find that he intended to kill the victim.
The defendant did not raise this issue in his motion for new trial. As such, it is waived for purposes
of appeal. See Tenn. R. App. P. 3(e), 36(a). Nevertheless, the instruction was not erroneous. See


                                                 -4-
State v. Palmer, 10 S.W.3d 638, 645 (Tenn. Crim. App. 1999) (addressing jury instruction challenge
not included in motion for new trial because "a jury instruction which did not accurately charge the
requisite mental state would substantially affect the defendant's rights" within the meaning of Tenn.
R. Crim. P. 52(b)).

        The trial court has a duty "to give a complete charge of the law applicable to the facts of a
case." State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986); see also Tenn. R. Crim. P. 30. "[The]
defendant has a constitutional right to a correct and complete charge of the law." State v. Teel, 793
S.W.2d 236, 249 (Tenn. 1990). Jury instructions must, however, be reviewed in the context of the
overall charge rather than in isolation. See Sandstrom v. Montana, 442 U.S. 510 (1979); see also
State v. Phipps, 883 S.W.2d 138, 142 (Tenn. Crim. App. 1994). Erroneous jury instructions require
a reversal unless the error is harmless beyond a reasonable doubt. See Welch v. State, 836 S.W.2d
586 (Tenn. Crim. App. 1992).

      At the close of the proof, the trial court instructed the jury on attempted second degree
murder as follows:

               Any person who attempts to commit a criminal offense is guilty of a crime.
               For you to find a person guilty of criminal attempt: Murder Second Degree,
       the state must have proven beyond a reasonable doubt the existence of the following
       essential elements:
               1. that the defendant intended to commit the specific offense of Murder
       Second Degree.
                                                 and
               2. that the defendant did some act intending to complete a course of action
       or cause a result that would constitute Murder Second Degree under the
       circumstances, as the defendant believed them to be at the time, and his actions
       constituted a substantial step toward the commission of Murder Second Degree. The
       defendant's actions do not constitute a substantial step unless the defendant's entire
       course of action clearly shows his intent to commit Murder Second Degree.

               The essential elements necessary to constitute Murder Second Degree are:

               1. that the defendant unlawfully killed the alleged victim; and
               2. that the killing was knowing.
               A person acts "knowingly" if that person acts with an awareness either:
               (1) that his conduct is of a particular nature;
                                                  or
               (2) that a particular circumstance exists.

The instruction was based on T.P.I. – Crim. 4.01 (4th ed. 1995).




                                                -5-
       In State v. Eldridge, 951 S.W.2d 775, 779 (Tenn. Crim. App. 1997), this court specifically
approved the language of T.P.I. – Crim. 4.01 (4th ed. 1995) in the context of an attempted second
degree murder charge. More recently, in State v. Palmer, a panel of this court addressed an identical
challenge to an attempted second degree murder instruction based on T.P.I. Crim. – 4.01. The court
found no error in the charge:

       Because the trial court specifically charged that the jury must find that the defendant
       intended to commit second degree murder, we hold that the instruction was proper.
       The trial court's further instruction that second degree murder requires that the
       defendant act knowingly does not detract from the accuracy of this instruction.

Palmer, 10 S.W.3d at 645.

        In our view, the ruling in Palmer controls. The charge required the jury to find that the
defendant intended to commit second degree murder and that the defendant completed some act
intended to ultimately result in second degree murder. This was a proper instruction. See State v.
Craig Bryant, No. 02C01-9707-CR-00286 (Tenn. Crim. App., at Jackson, Jan. 8, 1999) (holding that
there was no error in attempted second degree murder instruction based on T.P.I. Crim. – 4.01 (4th
ed. 1995)); State v. David Allen Vaughn, No. W1999-01647-CCA-R3-CD (Tenn. Crim. App., at
Jackson, Dec. 27, 1999) (holding that trial court properly instructed the jury on attempted second
degree murder pursuant to T.P.I. Crim. – 4.01 (4th ed. 1995) and denied the defendant's request for
a special instruction requiring a finding of a specific intent to "kill").

       Accordingly, the judgment of the trial court is affirmed.



                                                      ___________________________________
                                                      GARY R. WADE, PRESIDING JUDGE




                                                -6-
