State v. Byrd

Decision Date12 November 1991
Citation820 S.W.2d 739
PartiesSTATE of Tennessee, Appellee, v. Zachary BYRD and Jean Byrd Hitchcock, Appellants. 820 S.W.2d 739
CourtTennessee Supreme Court

Charles W.B. Fels, David M. Eldridge, Ritchie, Fels & Dillard, P.C., Knoxville, for appellant Byrd.

Brenda Lindsay, Knoxville, for appellant Hitchcock.

Charles W. Burson, Atty. Gen. and Reporter, C. Anthony Daughtrey, Asst. Atty. Gen., Nashville, William J. Blevins, Patricia A. Cristil, Asst. Dist. Attys. Gen., Knoxville, for appellee.

OPINION

DAUGHTREY, Justice.

In this appeal, we are asked to determine whether the trial court erred in dismissing the presentment against the defendants when, in response to their motion for a bill of particulars, the state was unable to designate a specific date on which the charged offenses were alleged to have occurred. Because we agree with the Court of Criminal Appeals that the trial court dismissed the presentment prematurely, we affirm the judgment of the intermediate court and remand the case to the trial court for further proceedings consistent with this opinion.

I. Procedural Background

The defendants, Zachary Byrd and his former wife, Jean Byrd Hitchcock, were charged in 1988 in a nine-count presentment with committing multiple acts of aggravated rape and aggravated sexual battery against their two minor children, who were seven and eight years old at the time the presentment was returned. In five of those counts, Byrd was charged with the sexual penetration of his daughter "by placing his finger in [her] vagina," the sexual penetration of his daughter "by placing his finger in [her] anal opening," the sexual penetration of his daughter "by placing his penis in [her] vagina," the sexual penetration of his son "by placing his finger in [his son's] anal opening," and unlawful sexual contact with his son "by intentionally touching the primary genital area, groin, inner thigh, buttock and breast of [his son] for the purpose of sexual arousal and gratification." Similarly, Hitchcock was charged with the sexual penetration of her daughter "by placing her finger in [her daughter's] vagina," the sexual penetration of her daughter "by placing her finger in [her daughter's] anal opening," the sexual penetration of her son "by placing her finger in [her son's] anal opening," and unlawful sexual contact with her son "by intentionally touching the primary genital area, groin, inner thigh, buttock and breast of [her son] for the purpose of sexual arousal and gratification."

The presentment further alleged only that the offenses were committed in Knox County, Tennessee, "on the __ day of April, 1986, and on diverse and divers dates between that day and the __ day of May, 1988." Faced with the prospect of defending against nine allegations of sexual misconduct committed at unspecified times during a 25-month period, the defendants filed pretrial motions for bills of particulars, seeking information about "[t]he exact time, date and place of each offense alleged in each count of the indictment so that the defendant[s] may know when the offense occurred."

In response, the state filed a bill of particulars specifying that each offense included in the nine-count presentment "occurred at or around the residence at 1617 Andes Road, Knox County, Tennessee." In addition, one paragraph of the bill advised the defendants that one of the alleged offenses was committed "in one of the bedrooms in that residence." The bill contained no other relevant information.

Byrd then filed a "renewed motion for bill of particulars" alleging that the state's response "does not provide any information concerning the time or dates of the alleged commission of these alleged offenses." The trial court agreed, finding the bill of particulars insufficient to provide the defendants with adequate notice of the allegations against which they must defend, and dismissed the presentment.

The Court of Criminal Appeals reversed the trial court's order of dismissal, however. In its opinion, the intermediate court concluded that the presentment filed against the defendants was legally sufficient and should not have been summarily dismissed absent a showing that the defendants were actually prejudiced in their trial preparations. We agree.

II. The Charging Instrument

The rule of law is well-established in Tennessee that the exact date, or even the year, of an offense need not be stated in an indictment or presentment unless the date or time "is a material ingredient in the offense." T.C.A. Sec. 40-13-207; State v. Shaw, 113 Tenn. 536, 537-38, 82 S.W. 480 (1904); State v. West, 737 S.W.2d 790, 792-93 (Tenn.Crim.App.1987). In fact, in order to establish the legal sufficiency of that charging instrument, the state need allege only that the offense was committed prior to the finding of the indictment or presentment. Id.

Pursuant to the provisions of both the Tennessee and federal constitutions, however, criminal defendants also have a right to know "the nature and cause of the accusation." Tenn. Const. Art. I, Sec. 9; U.S. Const. Amend. 6. As Tennessee courts have held, in order to satisfy the constitutional requirement, an indictment or presentment must provide a defendant with notice of the offense charged, provide the court with an adequate ground upon which a proper judgment may be entered, and provide the defendant with protection against double jeopardy. See, e.g., State v. Pearce, 7 Tenn. (Peck) 66, 67 (1823); State v. Haynes, 720 S.W.2d 76, 82 (Tenn.Crim.App.1986).

We conclude that the presentment in this case satisfies these minimum requirements. Clearly, the defendants have been placed on notice that they are charged with specific acts constituting aggravated rape and aggravated sexual battery, committed upon their minor children, who are named in the charging instrument. Moreover, there is nothing on the face of the presentment that would necessarily prevent the trial judge from entering a valid judgment in this matter. Finally, even without greater specificity in the presentment, the defendants will be protected against double jeopardy. Because of the state's failure to limit the time of the alleged offenses, the state would obviously be estopped from initiating subsequent prosecutions for any similar offenses against the same victims occurring within the same time period. State v. Anderson, 748 S.W.2d 201, 204 (Tenn.Crim.App.1985).

III. The Bill of Particulars

Our finding that the presentment in this case is legally sufficient does not, however, end our inquiry. The trial court's dismissal of the presentment against the defendants was not, in fact, based upon the legal sufficiency or insufficiency of that instrument. Rather, the dismissal resulted from the allegedly inadequate bill of particulars filed by the state. We are, therefore, called upon to determine whether or not that bill of particulars is sufficient to meet the purposes for which the bill was required.

The purposes of a bill of particulars are threefold. According to applicable case law and treatises, the bill serves "to provide defendant with information about the details of the charge against him if this is necessary to the preparation of his defense, and to avoid prejudicial surprise at trial." State v. Hicks, 666 S.W.2d 54, 56 (Tenn.1984), citing 1 C. Wright, Federal Practice and Procedure, Criminal, Sec. 129 (...

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  • State v. Bush
    • United States
    • Tennessee Supreme Court
    • April 7, 1997
    ...adequate ground upon which a judgment may be entered, and provide the defendant with protection against double jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn.1991). Moreover, in State v. Moss, 662 S.W.2d 590, 592 (Tenn.1984), the Tennessee Supreme Court held that a variance between the ......
  • State v. Torres
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    ...with protection against double jeopardy. State v. Lemacks, 996 S.W.2d 166, 172 (Tenn. 1999); Hill, 954 S.W.2d at 727; State v. Byrd, 820 S.W.2d 739, 740-741 (Tenn. 1991). Tenn. Code Ann. § 40-13-202 (1997) similarly requires that [t]he indictment . . . state the facts constituting the offen......
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    ...to the offense, (b) to avoid prejudicial surprise at trial, and (c) to enable the accused to preserve a plea of double jeopardy. 71 In State v. Byrd, the supreme court recognized that in most child sexual abuse cases the state is unable to offer the specific date when an alleged offense occ......
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