State v. Duncan, W2013-02554-SC-R11-CD
| Decision Date | 14 October 2016 |
| Docket Number | No. W2013-02554-SC-R11-CD,W2013-02554-SC-R11-CD |
| Parties | STATE of Tennessee v. Willie DUNCAN |
| Court | Tennessee Supreme Court |
Herbert H. Slatery III, Attorney General, Andrée Blumstein, Solicitor General; and Jeffrey D. Zentner, Assistant Attorney General, Betsey Wiseman, Assistant District Attorney General, Meghan Fowler, Assistant District Attorney General, for the appellant, State of Tennessee.
Lance R. Chism, Memphis, Tennessee (on appeal), and Arthur Horne and Kendra Tidwell, Memphis, Tennessee (at trial), for the appellee, Willie Duncan.
HOLLY KIRBY, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J., and CORNELIA A. CLARK and SHARON G. LEE, JJ., joined.
In this appeal, we consider the sufficiency of an indictment. The five-count indictment charged the defendant with several felonies and also with employing a firearm during the commission of a dangerous felony. The count for the firearm charge recited the statute listing the offenses that can constitute a "dangerous felony" but did not designate one of the accompanying charges as the predicate dangerous felony. After a trial, a jury found the defendant guilty on all five counts. On appeal, the defendant argues that the indictment for the firearm charge must be dismissed because, by not designating the predicate felony for the firearm charge, it violated his constitutional right to be informed of the nature and cause of the accusation against him. We hold that, considering the entire five-count indictment, the count of the indictment charging the defendant with employing a firearm during the commission of a dangerous felony sufficiently apprised the defendant of the nature and cause of the accusation against him and enabled him to adequately prepare a defense to the charge, and therefore is sufficient to meet the constitutional requirement.
Accordingly, we reverse the decision of the Court of Criminal Appeals on that issue. However, because the trial court erroneously instructed the jury on the charge of employing a firearm during the commission of a dangerous felony, we remand for a new trial on that charge.
In May 2012, the Shelby County grand jury returned a five-count indictment against Defendant/Appellee Willie Duncan and co-defendants Jamar Cobbins and Calvion Morrison. All three were charged with especially aggravated kidnapping,1 especially aggravated robbery,2 aggravated robbery,3 aggravated burglary,4 and employing a firearm during the commission of a dangerous felony.5 The defendant's five-count indictment contained each offense on a separate page; the indictment for employing a firearm during the commission of a dangerous felony did not list a specific predicate felony.
Because the issues raised in this appeal involve only the indictment, we dispense with a detailed recitation of the evidence presented at trial and outline only the proof necessary for our analysis of the issues presented.6 In the August 2013 trial, the jury heard proof that the defendant and his co-defendants met the victims outside of the victims' hotel room for the stated purpose of buying marijuana from them and that they then demanded money and drugs from the victims while holding them at gunpoint. The proof showed that, in the course of the robbery, the defendant shot one of the victims in the stomach before absconding with the victims' money and drugs. The defendant gave a statement claiming that, when one of the victims threw his money on the floor, the defendant put down his gun to pick up the money and the victim charged him. The defendant claimed that in the ensuing scuffle, he picked up his gun and it went off and struck the victim.
At the conclusion of the proof, the trial court instructed the jury that it could convict the defendant on the firearms charge if it unanimously agreed that either the especially aggravated kidnapping charge or the aggravated burglary charge constituted the predicate felony. The jury returned a verdict finding the defendant guilty of each count as charged: especially aggravated kidnapping, especially aggravated robbery, aggravated robbery, aggravated burglary, and employing a firearm during the commission of a dangerous felony.
In September 2013, the trial court held a sentencing hearing. The trial court sentenced the defendant to twenty-three years for especially aggravated kidnapping, twenty-three years for especially aggravated robbery, ten years for aggravated robbery, five years for aggravated burglary, and six years for employing a firearm during the commission of a dangerous felony. The trial court ordered the sentences for especially aggravated kidnapping and especially aggravated robbery to run concurrent with each other but consecutive to the sentences for aggravated robbery and aggravated burglary, which would also run concurrent with each other. By statute, the sentence for employing a firearm during the commission of a dangerous felony was required to be served consecutively to the sentence for the underlying felony. See Tenn. Code Ann. § 39–17–1324(e)(1). This amounted to a total effective sentence of thirty-nine years.
The defendant filed a motion for a new trial, which was denied. The defendant then filed a notice of appeal.
On appeal, the defendant argued inter alia that the indictment for the charge of employing a firearm during the commission of a dangerous felony was defective for failing to name the underlying felony. For this reason, he contended, the indictment did not comport with statutory and constitutional notice requirements.
The Court of Criminal Appeals noted initially that the defendant did not argue to the trial court that the indictment on the firearms charge was fatally flawed for failing to name the predicate dangerous felony. The court nevertheless considered the argument because it found the issue was jurisdictional and, if meritorious, would result in dismissal of the indictment. State v. Duncan, W2013–02554–CCA–R3–CD, 2014 WL 4243746, at *5 (Tenn. Crim. App. Aug. 27, 2014), perm. app. granted(TennFeb. 13, 2015).
The Court of Criminal Appeals observed that the intermediate appellate court had been faced with this issue in previous cases, with varying results depending in part on whether the indictment contained more than one charge that could serve as the predicate dangerous felony for the firearms charge. Id. at *7. The court found that the indictment on the firearm charge did not adequately inform the defendant whether the aggravated burglary charge or the especially aggravated kidnapping charge was meant to serve as the predicate dangerous felony. On this basis, the court held that the indictment on the firearm charge did not meet constitutional requirements, so it reversed the conviction and dismissed the charge of employing a firearm during the commission of a dangerous felony. Id. at *9. The Court of Criminal Appeals affirmed the other convictions and sentences.7
Both parties sought permission to appeal to this Court. We granted the State's application.
On appeal, the State raises the following issues:
We consider first whether the State must specify the predicate felony in an indictment count charging employment of a firearm during the commission of a dangerous felony in violation of Tennessee Code Annotated section 39–17–1324(b). A brief review of the pertinent constitutional and statutory provisions is helpful.
Under both the United States Constitution and the Tennessee Constitution, an accused has the right to be informed of the nature and cause of the accusation against him. The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation." U.S. Const. amend. VI. Similarly, the Tennessee Constitution provides: "That in all criminal prosecutions, the accused hath the right ... to demand the nature and cause of the accusation against him ...." Tenn. Const. art. I, § 9. Since 1858, the form of the indictment has been governed by the statute now codified at Tennessee Code Annotated section 40–13–202, which states: "The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in a manner so as to enable a person of common understanding to know what is intended and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment." Tenn. Code Ann. § 40–13–202 (2014); see also Wyatt v. State, 24 S.W.3d 319, 324 (Tenn. 2000).
At common law, the pleading requirements for indictments were exacting because the elements of criminal offenses could not be ascertained by referring to a statute. State v. Hammonds, 30 S.W.3d 294, 298–99 (Tenn. 2000) (citing State v. Hill, 954 S.W.2d 725, 728 (Tenn. 1997) ). As common law offenses were replaced by statutory provisions defining criminal offenses, the rationale for these rigorous pleading requirements fell away. For example, though early cases held that each count of an indictment must be "a complete indictment within itself, charging all the facts and circumstances that make the crime," State v. Lea, 41 Tenn....
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...rejected earlier rulings characterizing the failure to allege all material elements as a jurisdictional defect." State v. Duncan , 505 S.W.3d 480, 489 n.10 (Tenn. 2016) (citing Wayne LaFave et al., 5 Crim. Proc. § 19.2(e) (4th ed. 2015) ); see also Ex parte Seymour , 946 So.2d 536, 538 (Ala......
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