State v. Reeves

• Decision Date: 26 February 1996
• Citation: 916 S.W.2d 909,107 Ed.LawRep. 1054
• Parties: 107 Ed. Law Rep. 1054 STATE of Tennessee, Plaintiff-Appellee, v. Tracie REEVES, Defendant-Appellant.
• Court: Tennessee Supreme Court

Page 909

916 S.W.2d 909

107 Ed. Law Rep. 1054

STATE of Tennessee, Plaintiff-Appellee, v. Tracie REEVES, Defendant-Appellant.

Supreme Court of Tennessee at Jackson.

Feb. 26, 1996.

Carroll Circuit; Hon. C. Creed McGinley, Judge.

Charles W. Burson, Attorney General and Reporter, Michael E. Moore, Solicitor General, Michael J. Fahey, II, Assistant Attorney General, Nashville, Guss Radford, District Attorney General, Eleanor Cahill, Assistant District Attorney General, Huntingdon, for Plaintiff-Appellee.

Raymond L. Ivey, Ivey, Parish & Johns, Huntingdon, for Defendant-Appellant.

OPINION

DROWOTA, Judge.

The defendant, Tracie Reeves, appeals from the Court of Appeals' affirmance of the trial court's order designating her a delinquent child. The trial court's delinquency order, which was entered following a jury trial, was based on the jury's finding that the defendant had attempted to commit second degree murder--a violation of Tenn.Code Ann. § 39-12-101. The specific issue for our determination is whether the defendant's actions constitute a "substantial step," under § 39-12-101(a)(3), toward the commission of that crime. For the following reasons, we hold that they do, and therefore affirm the judgment of the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

On the evening of January 5, 1993, Tracie Reeves and Molly Coffman, both twelve years of age and students at West Carroll Middle School, spoke on the telephone and decided to kill their homeroom teacher, Janice Geiger. The girls agreed that Coffman would bring rat poison to school the following day so that it could be placed in Geiger's drink. The girls also agreed that they would thereafter steal Geiger's car and drive to the Smoky Mountains. Reeves then contacted Dean Foutch, a local high school student, informed him of the plan, and asked him to drive Geiger's car. Foutch refused this request.

On the morning of January 6, Coffman placed a packet of rat poison in her purse and boarded the school bus. During the bus ride Coffman told another student, Christy Hernandez, of the plan; Coffman also showed Hernandez the packet of rat poison. Upon their arrival at school Hernandez informed her homeroom teacher, Sherry Cockrill, of the plan. Cockrill then relayed this information to the principal of the school, Claudia Argo.

When Geiger entered her classroom that morning she observed Reeves and Coffman leaning over her desk; and when the girls noticed her, they giggled and ran back to their seats. At that time Geiger saw a purse lying next to her coffee cup on top of the desk. Shortly thereafter Argo called Coffman to the principal's office. Rat poison was found in Coffman's purse and it was turned over to a Sheriff's Department investigator. Both Reeves and Coffman gave written statements to the investigator concerning their plan to poison Geiger and steal her car.

Reeves and Coffman were found to be delinquent by the Carroll County Juvenile Court, and both appealed from that ruling to the Carroll County Circuit Court. After a jury found that the girls attempted to commit second degree murder in violation of Tenn.Code Ann. § 39-12-101, the "criminal attempt" statute, the trial court affirmed the juvenile court's order and sentenced the girls to the Department of Youth Development for an indefinite period. Reeves appealed from this judgment to the Court of Appeals, which affirmed the judgment of the trial court. Reeves then applied to this Court for permission to appeal pursuant to Tenn.R.App.P. 11. Because we have not addressed the law of criminal attempt since the comprehensive reform of our criminal law undertaken by the legislature in 1989, we granted that application.

Prior and Current Law of Criminal Attempt

Before the passage of the reform legislation in 1989, the law of criminal attempt though sanctioned by various statutes, was judicially defined. In order to submit an issue of criminal attempt to the jury, the State was required to present legally sufficient evidence of: (1) an intent to commit a specific crime; (2) an overt act toward the commission of that crime; and (3) a failure to consummate the crime. Bandy v. State, 575 S.W.2d 278, 281 (Tenn.1979); Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449, 451 (1963); Dupuy v. State, 204 Tenn. 624, 325 S.W.2d 238, 240 (1959).

Of the elements of criminal attempt, the second, the "overt act" requirement, was by far the most problematic. By attempting to draw a sharp distinction between "mere preparation" to commit a criminal act, which did not constitute the required overt act, and a "direct movement toward the commission after the preparations had been made," Dupuy, 325 S.W.2d at 239, 240, which did, Tennessee courts construed the term "overt act" very narrowly. The best example of this extremely narrow construction occurred in Dupuy. In that case, the Memphis police sought to lay a trap for a pharmacist suspected of performing illegal abortions by sending a young woman to request these services from him. After the woman had made several attempts to secure his services, he finally agreed to perform the abortion. The pharmacist transported the young woman to a hotel room, laid out his instruments in preparation for the procedure, and asked the woman to remove her clothes. At that point the police came into the room and arrested the pharmacist, who then admitted that he had performed abortions in the past. The defendant was convicted under a statute that made it illegal to procure a miscarriage, and he appealed to this Court.

A majority of this Court reversed the conviction. After admitting that the defendant's "reprehensible" course of conduct would doubtlessly have resulted in the commission of the crime "had he not been thwarted in his efforts by the arrival of the police," Dupuy, 325 S.W.2d at 239, the majority concluded that:

While the defendant had completed his plan to do this crime the element of attempt [overt act] does not appear in this record. The proof shows that he did not use any of the instruments and did not touch the body of the girl in question. Under such facts we do not think that the defendant is guilty under the statute.

Dupuy, 325 S.W.2d at 240.

To support its holding, the Dupuy court quoted a treatise passage concerning actions that constituted "mere preparation," as opposed to actions that would satisfy the overt act requirement:

In a general way, however, it may be said that preparation consists in devising or arranging the means or measures necessary for the commission of the offense and that the attempt [overt act] is the direct movement toward the commission after the preparations are made. Even though a person actually intends to commit a crime, his procurement of the instrumentalities adapted to that end will not constitute an attempt to commit the crime in the absence of some overt act.

Id. (quoting 14 Am.Jur. § 68 (1940)). To further illustrate the foregoing principle the majority provided the following example: "the procurement by a prisoner of tools adapted to breaking jail does not render him guilty of an attempt to break jail." Id.

As indicated above, the sharp differentiation in Dupuy between "mere preparation" and "overt act," or the "act itself," was characteristic of the pre-1989 attempt law. See e.g., Gervin v. State, 212 Tenn. 653, 371 S.W.2d 449 (1963) (criminal solicitation does not constitute an attempt); McEwing v. State, 134 Tenn. 649, 185 S.W. 688 (1915) (conviction for attempted rape affirmed because defendant actually laid hands on the victim). In 1989, however, the legislature enacted a general criminal attempt statute, Tenn.Code Ann. § 39-12-101, as part of its comprehensive overhaul of Tennessee's criminal law. In that statute, the legislature did not simply codify the judicially-created elements of the crime, but utilized language that had up to then been entirely foreign to Tennessee attempt law. Section 39-12-101 provides, in pertinent part, 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 believe 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.

(emphasis added.)

The Substantial Step Issue

As stated above, our task is to determine whether the defendant's actions in this case constitute a "substantial step" toward the commission of second degree murder under the new statute. The "substantial step" issue has not yet been addressed by a Tennessee court in a published opinion, and the question is made more difficult by the fact that the legislature declined to set forth any definition of the term, preferring instead to "leave the issue of what constitutes a substantial step [to the courts] for determination in each particular case." § 39-12-101, Comments of Sentencing Commission.

In addressing this issue, we first note that the legislature, in enacting § 39-12-101, clearly looked to the criminal attempt section set forth in the Model Penal Code. That section provides, in pertinent part, as follows:

(1) Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the...