State v. Trusty
| Decision Date | 25 March 1996 |
| Citation | 919 S.W.2d 305 |
| Parties | STATE of Tennessee, Appellee, v. Wayne M. TRUSTY, Appellant. |
| Court | Tennessee Supreme Court |
Appeal from County Court, Shelby County; H.T. Lockard, Judge.
A.C. Wharton, Jr., District Public Defender and Walker Gwinn, Assistant Public Defender, for Appellant.
Charles W. Burson, Attorney General & Reporter, Michael E. Moore, Solicitor General, William David Bridgers, Assistant Attorney General, John W. Pierotti, District Attorney General, and Judson W. Phillips, Assistant District Attorney General, for Appellee.
The question in this case is whether one indicted for attempted first-degree murder may be convicted of aggravated assault. Aggravated assault, as defined in Tennessee Code Annotated Section 39-13-102, is neither a lesser grade or class of attempted first-degree murder nor a lesser included offense of first-degree murder. Under Tennessee law, a conviction for an unindicted offense that is not a lesser degree of the offense charged or a lesser included offense may not stand. For the reasons discussed below, we reverse the judgment of the Court of Criminal Appeals and reverse appellant's conviction.
Appellant, Wayne Trusty, and the victim, Hunter Bell, had been neighbors for about seven years. Until the summer of 1992, the two men were friends. 1 At the time of the offense, Bell, an over-the-road truck driver, was not living with his wife and children regularly. Occasionally, Trusty gave money to Bell's wife when she was in need. A friend of Trusty's, Walter Melton, used Trusty's car to take Bell's mother-in-law and other neighbors to work or to appointment when the need arose.
At some point, a disagreement of uncertain origin arose between Bell and Trusty. Bell may have believed that Trusty was having an affair with his wife. The dispute may have concerned a tent that Trusty allegedly borrowed from Bell. In any event, Bell's stepson visited Trusty twice on August 30, 1992, and spoke to him about the disagreement between the two men. During the early evening hours of that day, Bell came to his wife's home and parked his truck at the curb.
Trusty, who walked with a cane due to a disabling back condition, left his house, picking up a baseball bat that Bell's children had left lying in his driveway. He crossed the street, stood in front of the Bell home, and called to Bell to come out and talk to him. According to Trusty, he was leaning on the bat since he had not brought his cane with him. 2 Bell said that Trusty was brandishing the bat as a weapon. After a heated exchange, Bell jerked the bat away from Trusty. Trusty either lost his balance or was pushed backward against the truck striking his back at least once. He fell to the ground and, at first, was unable to rise. He rolled over and crawled under the truck and out the other side. The he got to his feet and crossed the street to his house.
Trusty entered his house and emerged with a 12 gauge shotgun loaded with bird shot. Bell was still standing near the truck holding the bat. Both men ran around the truck. Trusty reversed directions, and when he was about 20 to 30 feet away from Bell, fired the shotgun once. Bell and other state witnesses testified that the shotgun was pointed directly at him when Trusty fired. Trusty and other neighbors testified that the shotgun was angled down at the ground when he fired. The defense admitted a photograph showing where shotgun pellets had been fired into the pavement in front of Bell's house.
After the shooting, Trusty went back to his house. Melton drove up, Trusty jumped into the car, and the two men left. Moments later they returned to the scene. At the emergency room, twenty-three pellets were removed from Bell's chest and face. He was not hospitalized. Although Trusty testified that he threw the shotgun in the bushes near his front door, the weapon was never found.
Trusty was indicted on a single count of criminal attempt to commit first-degree murder. At trial, the defense admitted that Trusty fired the shot that wounded Bell, but contended that the act was in self-defense without any intent to kill. At the close of trial, the judge instructed the jury on attempts to commit first-degree murder, second-degree murder, voluntary manslaughter, and criminally negligent homicide. On the theory that they were lesser included offenses, the trial judge also instructed the jury on aggravated assault and assault.
Neither the state nor the defense objected to the jury instructions. Further, the defense did not request an instruction on the sentencing ranges. The jury found appellant guilty of aggravated assault. After a sentencing hearing, the trial court sentenced Trusty to twelve years as a persistent offender. 3 After the trial court denied the motion for a new trial, defense counsel withdrew and the trial court appointed the Shelby County Public Defender to serve as counsel on appeal.
Counsel first raised the propriety of the conviction for aggravated assault in Trusty's appeal to the Court of Criminal Appeals. In a split decision, the intermediate court affirmed the conviction. The majority held that although the indictment did not allege aggravated assault, the conviction could stand based on the following language in State v. Hicks, 835 S.W.2d 32, 36 (Tenn.Crim.App.), perm. to appeal denied, (Tenn.1992):
Where the jury is instructed that an offense is a lesser included offense of that charged in the indictment, whether it be or not, a conviction on such lesser offense may stand where the evidence shows the greater offense was committed.
The dissent, however, suggested that a conviction for an offense that is neither charged in the indictment nor properly classified as a lesser included offense conflicts with this Court's holdings in Howard v. State, 578 S.W.2d 83, 85 (Tenn.1979) and McLean v. State, 527 S.W.2d 76, 82 (Tenn.1975), and violates the notice requirement of the Sixth Amendment. U.S. Const. amend. VI.
We granted appellant's permission to appeal to determine whether a conviction for an uncharged offense that is neither a lesser grade or class nor necessarily included in the charged offense may stand in circumstances in which sufficient evidence supports the conviction. We hold that it cannot.
Tennessee court have long followed these fundamental precepts: first, the state must give an accused adequate notice of the offenses charged; second, the indictment must allege facts as to each essential element of the offense; and third, a valid indictment is a jurisdictional prerequisite to a valid prosecution. In accordance with these basis constructs, we hold that an accused may not be convicted for an offense that is neither a lesser grade or class of the offense charged nor one necessarily included in the indictment even if the record contains sufficient evidence of the convicted offense.
First, we consider the reasons for and the requirements of a valid indictment. Fair and reasonable notice of the charges against an accused is a fundamental constitutional requirement. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. Our state constitution requires that those accused in criminal prosecutions be informed of the "nature and cause of the accusation" against them. Tenn. Const. art. I, § 9; Warden v. State, 381 S.W.2d 244, 245 (Tenn.1964); State v. Perkinson, 867 S.W.2d 1, 5 (Tenn.Crim.App.1992), perm. to appeal denied, (Tenn.1993). The United States Constitution contains a similar guarantee. U.S. Const. amend. VI. Convicting a person of a crime which is not raised by the indictment and is not a lesser included offense denies an accused the right to notice of the nature and cause of the accusation. Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 418-19, 76 L.Ed. 861 (1932).
In addition to constitutional notice requirements, due process guarantees that the accused will have a fair opportunity to defend against the charges. A person who is convicted without receiving fair and reasonable notice of the specific charges is denied due process under the Fifth and Fourteenth Amendments to the United States Constitution. Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979); Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948); De Jonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 259, 81 L.Ed. 278 (1937); Olsen v. McFaul, 843 F.2d 918 (6th Cir.1988); State v. Morgan, 598 S.W.2d 796, 797 (Tenn.1979).
These notions of due process embraced by the United States Constitution are incorporated into Tennessee's "Law of the Land Clause." It guarantees that "no man shall be ... deprived of his life, liberty, or property, but by ... the law of the land." Tenn. Const. art. I, § 8. The two provisions are synonymous. State ex rel. Anglin v. Mitchell, 596 S.W.2d 779, 786 (Tenn.1980), Daugherty v. State, 216 Tenn. 666, 393 S.W.2d 739, 743 (1965). A conviction obtained in violation of the reasonable notice provision required by article I, section 9 of the Tennessee Constitution violates due process under our Law of the Land Clause.
To satisfy constitutional notice requirements, an indictment or presentment must provide notice of the offense charged, an adequate basis for the entry of a proper judgment, and suitable protection against double jeopardy. State v. Byrd, 820 S.W.2d 739, 741 (Tenn.1991); State v. Lindsay, 637 S.W.2d 886, 890 (Tenn.Crim.App.1982). The indictment must contain factual allegations relating to every essential element of the offense. State v. Morgan, 598 S.W.2d 796, 797 (Tenn.Crim.App.1979). The facts must be stated in ordinary and concise language so that a person of "common understanding" will know what is intended. Warden v. State, 214 Tenn. 391, 381 S.W.2d 244, 245 (1964); State v. Lindsay, 637 S.W.2d at 890.
In summary, an indictment has three purposes in Tennessee. First, it must inform defendant of the...
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