Jonathan Davis v. Jim Morrow, Warden

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 26, 2010

JONATHAN DAVIS v. JIM MORROW, WARDEN

Appeal from the Circuit Court for Bledsoe County

No. 2009-CR-52 J. Curtis Smith, Judge

No. E2010-00396-CCA-R3-HC - Filed July 19, 2010

The Petitioner, Jonathan Davis, appeals from the Bledsoe County Circuit Court’s summary

dismissal of his petition for habeas corpus relief. The habeas corpus court found that the

Petitioner failed to state a cognizable claim for relief. Upon review, we affirm the judgment

of the habeas corpus court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J AMES C URWOOD

W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Jonathan Davis, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter; and Matthew Bryant Haskell, Assistant

Attorney General, for the Appellee, State of Tennessee.

OPINION

A Maury County Circuit Court jury convicted the Petitioner of two counts of first

degree felony murder and one count of attempted aggravated robbery. See State v. William

Edward Watkins and Jonathan Davis, No. 01C01-9701-CC-00004, 1997 WL 766462, at *10

(Tenn. Crim. App., at Nashville, Dec. 12, 1997), perm. to appeal denied (Tenn. Sept. 21,

1998). He was sentenced to two life sentences for the felony murder convictions and three

years for the attempted aggravated robbery conviction, all of which were to be served

consecutively. See id. The Petitioner’s convictions and sentences were affirmed on direct

appeal. See id. This court summarized the facts supporting the Petitioner’s convictions in

the direct appeal:

On March 28, 1994, Watkins borrowed a gun from Lamont Orr. He

met some friends at Columbia Gardens Apartments, and they began discussing

a proposed plan to rob the Richland Inn. Davis approached the group and

agreed to rob the Richland Inn. Watkins gave Davis the .22 caliber handgun

and a ski mask, and they both walked towards the motel. The others in the

group decided that they did not want to participate in any criminal activity and

stayed behind.

Elwood Sinson,[1 ] a guest at the Richland Inn, was meeting a business

associate in his room on the ground floor. As he was waiting for his associate

to open the door, he saw Davis jump from a brick wall on the side of the

parking lot and walk towards him. Davis quickened his speed and aimed the

gun at Sinson and said, “your money or your life.” Sinson was able to get

inside the motel room before Davis could do anything further.

After the failed robbery attempt at the Richland Inn, Watkins and Davis

decided to rob Lamont Orr. They went to Orr’s trailer, where he lived with his

girlfriend, Elizabeth Smith. Orr left with them when Watkins and Davis told

him that they were going to participate in a cocaine transaction. Orr drove

Watkins and Davis to the parking lot of Brown’s School. Upon arrival at the

parking lot, Davis without any provocation shot Orr in the head. Orr was also

shot a second time in the head and died as a result of these wounds. Although

Orr was seen with 15-20 rocks of crack cocaine earlier that day, no drugs were

found on his person after his death.

Because Smith had seen Orr leave with them, Watkins and Davis

returned to the trailer. Smith was fatally shot once in the head. Earlier that

evening, Smith was seen with $100. No money was found at the trailer after

the homicide, and there was also evidence that some cocaine was missing from

the trailer. Davis was subsequently seen wearing rings which he claimed he

had taken from Smith.

1

At trial the State presented evidence that a victim’s name was “Elwood Sinson,” rather than

“Edward Sensor,” as listed in the indictment. See William Edward Watkins and Jonathan Davis, 1997 WL

766462, at *2. The State also announced, prior to Sinson’s testimony at trial, that his name was incorrectly

listed on the indictment. Id. Neither Davis nor Watkins, who were being jointly tried, objected. Id. On

appeal, Watkins argued that the fact that the victim’s name at trial differed from the name listed in the

indictment created a fatal variance. Id. However, Watkins failed to include this issue in his motion for a new

trial. Id. This court concluded that the failure to include the issue in Watkins’ motion for a new trial waived

the issue for appellate review. Id. However, waiver notwithstanding, we concluded that the variance was

not fatal because it was neither material nor prejudicial. Id.

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Watkins was arrested two days later on an unrelated forgery charge.

After being questioned on the murders, Watkins gave a statement implicating

himself and Davis in the attempted robbery of Sinson and the homicides of Orr

and Smith. Davis subsequently confessed to the crimes as well.

After a joint jury trial, both defendants were convicted of one (1) count

of attempted aggravated robbery and two (2) counts of first degree felony

murder. For both defendants, the trial court imposed consecutive sentences of

life imprisonment for each count of felony murder and three (3) years for

attempted aggravated robbery.

Id. at *1-2.

The Petitioner also filed a petition for post-conviction relief, in which he alleged that

both trial counsel and appellate counsel had rendered ineffective assistance. See Jonathan

Davis v. State, No. M2000-01158-CCA-R3-PC, 2001 WL 922209, at *1 (Tenn. Crim. App.,

at Nashville, Aug. 16, 2001), perm. to appeal denied (Tenn. Dec. 10, 2001). This court

affirmed the post-conviction court’s denial of relief on appeal. See id.

On October 28, 2009, the Petitioner filed a pro se petition for habeas corpus relief in

the Bledsoe County Circuit Court. In the petition, the petitioner alleged the following: (1)

he was indicted for attempted aggravated robbery but was convicted of aggravated robbery,

and (2) there were no underlying felonies to support his convictions for felony murder. On

November 25, 2009, the trial court summarily denied the petition. The Petitioner then filed

a timely notice of appeal on December 14, 2009.

On appeal, the Petitioner concedes that he was, in fact, convicted of attempted

aggravated robbery at trial. Therefore, the Petitioner’s only two issues on appeal are (1) there

were no underlying felonies to support his two felony murder convictions, and (2) the related

issue that the indictment stated a legal conclusion in violation of Warden v. State, 381

S.W.2d 244, 245 (Tenn. 1964). In response, the State argues the habeas corpus court’s

summary dismissal of the petition was proper because the Petitioner failed to state a

cognizable claim. We agree with the State.

“The determination of whether habeas corpus relief should be granted is a question

of law.” Faulkner v. State, 226 S.W.3d 358, 361 (Tenn. 2007) (citing Hart v. State, 21

S.W.3d 901, 903 (Tenn. 2000)). Accordingly, our review is de novo without a presumption

of correctness. Summers v. State, 212 S.W.3d 251, 255 (Tenn. 2007) (citing State v.

Livingston, 197 S.W.3d 710, 712 (Tenn. 2006)).

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A prisoner is guaranteed the right to habeas corpus relief under article I, section 15

of the Tennessee Constitution. See also T.C.A. § 29-21-101 to -130. However, the grounds

upon which a writ of habeas corpus may be issued are very narrow. Taylor v. State, 995

S.W.2d 78, 83 (Tenn. 1999). “Habeas corpus relief is available in Tennessee only when ‘it

appears upon the face of the judgment or the record of the proceedings upon which the

judgment is rendered’ that a convicting court was without jurisdiction or authority to

sentence a defendant, or that a defendant’s sentence of imprisonment or other restraint has

expired.” Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993) (quoting State v. Galloway,

45 Tenn. 326, 337 (1868)). “[T]he purpose of a habeas corpus petition is to contest void and

not merely voidable judgments.” Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). “A void

judgment is one in which the judgment is facially invalid because the court lacked

jurisdiction or authority to render the judgment or because the defendant’s sentence has

expired.” Taylor, 995 S.W.2d at 83. However, as the Tennessee Supreme Court stated in

Hickman:

[A] voidable judgment is facially valid and requires the introduction of proof

beyond the face of the record or judgment to establish its invalidity. Thus, in

all cases where a petitioner must introduce proof beyond the record to establish

the invalidity of his conviction, then that conviction by definition is merely

voidable, and a Tennessee Court cannot issue the writ of habeas corpus under

such circumstances.

Hickman v. State, 153 S.W.3d 16, 24 (Tenn. 2004) (internal citations, quotations, and

emphasis omitted); see also Summers, 212 S.W.3d at 256. Moreover, it is the petitioner’s

burden to demonstrate, by a preponderance of the evidence, that the judgment is void or that

the confinement is illegal. Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000).

If the habeas corpus court determines from the petitioner’s filings that no cognizable

claim has been stated and that the petitioner is not entitled to relief, the petition for writ of

habeas corpus may be summarily dismissed. See Hickman, 153 S.W.3d at 20. Further, the

habeas corpus court may summarily dismiss the petition without the appointment of a lawyer

and without an evidentiary hearing if there is nothing on the face of the judgment to indicate

that the convictions are void. Passarella v. State, 891 S.W.2d 619, 627 (Tenn. Crim. App.

1994), perm. to appeal denied (Tenn. Nov. 28, 1994), superseded by statute as stated in State

v. Steven S. Newman, No. 02C01-9707-CC-00266, 1998 WL 104492, at *1 n.2 (Tenn. Crim.

App., at Jackson, Mar. 11, 1998). “The petitioner bears the burden of providing an adequate

record for summary review of the habeas corpus petition, including consideration of whether

counsel should be appointed.” Summers, 212 S.W.3d at 261.

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First, the Petitioner contends that there were no underlying felonies to support his two

felony murder convictions. This allegation is not supported by the record. Here, the

indictment charged the Petitioner with three counts: two counts of first degree felony murder

committed in the perpetration of an armed robbery and one count of attempted aggravated

robbery. The language of the three count indictment follows:

[COUNT ONE]

The Grand Jurors of Maury County, Tennessee, duly impaneled, and sworn

upon their oath, present: That Jonathan Davis, on or about the 28 th day of

March, 1994, in Maury County, Tennessee and before the finding of this

indictment, did unlawfully and knowingly or intentionally attempt to obtain

property, to wit: money, from the person of Edward Sensor, by violence and

accomplished with a deadly weapon, to wit: a gun, with the intent to deprive

Edward Sensor of the property without his effective consent, in violation of

Tennessee Code Annotated 39-13-402, all of which is against the peace and

dignity of the State of Tennessee.

COUNT TWO

And the Grand Jurors aforesaid, upon their oath aforesaid, do further present

that on or about the 28th day of March, 1994, in the State of Tennessee and

County of Maury, that Jonathon Davis, before the finding of this indictment,

did unlawfully and recklessly kill Charles Lamont Orr during the perpetration

of Armed Robbery, in violation of Tennessee Code Annotated 39-13-202, all

of which is against the peace and dignity of the State of Tennessee.

....

COUNT THREE

And the Grand Jurors aforesaid, upon their oath aforesaid, do further present

that on or about the 28th day of March, 1994, in the State of Tennessee and

County of Maury, that Jonathon Davis, before the finding of this indictment,

did unlawfully and recklessly kill Elizabeth Smith during the perpetration of

Armed Robbery, in violation of Tennessee Code Annotated 39-13-202, all of

which is against the peace and dignity of the State of Tennessee.

The Petitioner contends that the State improperly used the attempted aggravated

robbery offense in count one of the indictment as the underlying offense for the two counts

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of first degree felony murder. He argues that the attempted aggravated robbery in the first

count “was a separate, distinct, and independent event” that was “in no way . . . related to the

felony murders.” The record shows that the underlying felonies for counts two and three

were not the attempted aggravated robbery offense in count one; instead, the underlying

felonies were the armed robbery offenses against Orr and Smith. We note that the indictment

does not contain separate counts charging the Petitioner with the separate offenses of armed

robbery against Orr and Smith. However, each count charging felony murder alleges that the

murder occurred “during the perpetration of Armed Robbery.” The Tennessee Supreme

Court has held that “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.” State v. Byrd, 820 S.W.2d 739, 741 (Tenn. 1991) (citing State v. Pearce, 7 Tenn.

(Peck) 66, 67 (1823); State v. Haynes, 720 S.W.2d 76, 82 (Tenn. Crim. App. 1986), perm.

to appeal denied (Tenn. Sept. 29, 1986 )); see also Mathas T. Vaughn v. James Worthington,

Warden, No. E2007-00808-CCA-R3-HC, 2008 WL 58956, at *2 (Tenn. Crim. App., at

Knoxville, Jan. 4, 2008) (concluding that although the indictment did not charge the

defendant with a separate count of robbery, the fact that “[t]he count charging felony murder

. . . allege[d] that the murder occurred during the perpetration of a robbery” was sufficient

to satisfy Byrd). Here, we conclude that the language in the Petitioner’s indictment provided

him with notice of the offenses charged, allowed for a proper judgment to be entered, and

protected him against double jeopardy. See Byrd, 820 S.W.2d at 741. We further conclude

that the underlying felonies were sufficiently stated in the felony murder counts of the

indictment.

Furthermore, in considering this issue, the habeas corpus court determined that the

Petitioner was essentially challenging the sufficiency of the convicting evidence. Citing

Gant, the habeas corpus court reiterated that a claim challenging the sufficiency of the

evidence is not cognizable in a habeas corpus proceeding. See Gant v. State, 507 S.W.2d

133, 136 (Tenn. Crim. App. 1973) (stating that habeas corpus proceedings may not be used

to challenge the sufficiency of evidence presented at trial), perm. to appeal denied (Tenn.

Feb. 4, 1974). Moreover, the sufficiency of the convicting evidence was upheld on direct

appeal. See William Edward Watkins and Jonathan Davis, 1997 WL 766462, at *1. The

Tennessee Supreme Court has held that pursuant to the law of the case doctrine an appellate

court may not consider issues that have been previously determined on appeal:

[U]nder the law of the case doctrine, an appellate court’s decision on an issue

of law is binding in later trials and appeals of the same case if the facts on the

second trial or appeal are substantially the same as the facts in the first trial or

appeal. The doctrine applies to issues that were actually before the appellate

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court in the first appeal and to issues that were necessarily decided by

implication. The doctrine does not apply to dicta.

Memphis Publ’g Co. v. Tenn. Petroleum Underground Storage Tank Bd., 975 S.W.2d 303,

306 (Tenn. 1998) (internal citations omitted); see also Creech v. Addington, 281 S.W.3d 363,

383 (Tenn. 2009). Therefore, we also conclude that this court has previously determined this

issue. Accordingly, the petitioner is not entitled to relief on this issue.

Second, the Petitioner argues that the indictment against him was fatally defective.

In other words, the Petitioner claims that all three counts of the indictment stated a legal

conclusion. The State fails to address this issue in its brief. The Petitioner cites Warden for

the proposition that the “indictment must state such facts and circumstances as will constitute

the crime, and not merely a legal result or conclusion.” Warden, 381 S.W.2d at 245 (citing

Pearce v. State, 33 Tenn. 64, 67-68 (1853); Hall v. State, 43 Tenn. 125, 128 (1866); Cornell

v. State, 66 Tenn. 520, 523 (1874)) (internal quotations omitted). He further contends,

pursuant to Warden, that a judgment based upon an indictment that fails to state the elements

of the offense is void. See id. at 245-46. The Petitioner claims that the attempted aggravated

robbery offense in count one of the indictment states a legal conclusion because it fails to

allege all of the elements constituting the crime. Specifically, he claims that count one fails

to allege that the victim was placed in fear. The Petitioner also contends that counts two and

three state a legal conclusion because they fail to allege the facts and circumstances of the

underlying felonies.

In order to convict the Petitioner in this case, the State was required to prove the

elements of attempted aggravated robbery and first degree felony murder. Aggravated

robbery is defined as “the intentional or knowing theft of property from the person of another

by violence or putting the person in fear” that is “[a]ccomplished with a deadly weapon or

by display of any article used or fashioned to lead the victim to reasonably believe it to be

a deadly weapon.” T.C.A. § 39-13-401(a), -402(a)(1) (1991). In addition, criminal attempt

is defined as follows:

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;

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(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.

T.C.A. § 39-12-101(a) (1991). Additionally, first degree felony murder is “[a] reckless

killing of another committed in the perpetration of, or attempt to perpetrate any . . . robbery

. . . .” T.C.A. § 39-13-202(a)(2) (1991).

The Tennessee Supreme Court has held that “the validity of an indictment . . . may be

addressed in a petition for habeas corpus when the indictment is so defective as to deprive

the court of jurisdiction.” Dykes v. Compton, 978 S.W.2d 528, 529 (Tenn. 1998). Under

State v. Hill, much like the aforementioned Byrd case, an indictment for offenses occurring

after November 1, 1989, is valid if it contains sufficient information “(1) to enable the

accused to know the accusation to which answer is required, (2) to furnish the court adequate

basis for the entry of a proper judgment, and (3) to protect the accused from double

jeopardy.” State v. Hill, 954 S.W.2d 725, 727 (Tenn. 1997). However, this court has

previously concluded that the requirements in Hill do not “overturn the mandate of Warden

that the indictment state facts and not mere results or conclusions.” State v. Clark, 2 S.W.3d

233, 237 (Tenn. Crim. App. 1998).

Tennessee Code Annotated section 40-13-202 also contains the following

requirements for indictments:

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[.]

T.C.A. § 40-13-202 (1990). Moreover, indictments that are patterned after the “pertinent

language of the statute” are typically “sufficient for constitutional and statutory purposes[.]”

State v. Hammonds, 30 S.W.3d 294, 302 (Tenn. 2000) (internal footnote omitted). “The

fundamental test of the sufficiency of an indictment is the adequacy of the notice to the

defendant conveyed by its terms.” Green v. State, 143 S.W.2d 713, 715 (Tenn. 1940).

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Initially, we note that the Petitioner failed to attach a copy of the judgment of

conviction for the attempted aggravated robbery offense. In his reply brief, the Petitioner

explained that the District Attorney General sent him a copy of the judgment after his petition

for habeas corpus relief was summarily dismissed. See T.C.A. § 29-21-107(b)(2). Despite

the fact that he ultimately obtained a copy of this judgment, the Petitioner did not include a

copy of this judgment in the record on appeal. Regardless of this omission, the record shows

that count one of the indictment named the Petitioner as the defendant, included the language

from the appropriate statute, named the specific code section of the statute, included the date

of the offense, and named the victim of the offense. This information has previously been

held sufficient to satisfy the requirements in Hill. See State v. Sledge, 15 S.W.3d 93, 95

(Tenn. 2000); see also Justin Mills v. Cherry Lindamood, Warden, No. M2008-01926-CCA-

R3-HC, 2009 WL 723477, at *3 (Tenn. Crim. App., at Nashville, Feb. 19, 2008); Robert

Howell v. Tony Parker, Warden, No. W2005-00521-CCA- R3-HC, 2005 WL 1541825, at

*2 (Tenn. Crim. App., at Jackson, June 27, 2005), perm. to appeal denied (Tenn. Dec. 5,

2005). Additionally, the Petitioner contends that count one states a legal conclusion because

it fails to allege that the victim was placed in fear. However, attempted aggravated robbery

can be accomplished “by violence or putting the person in fear[.]” See T.C.A. § 39-13-

401(a) (1991). Because count one clearly charged the Petitioner with attempting to obtain

property from the victim “by violence[,]” we conclude that the Petitioner is not entitled to

relief on this issue.

The Petitioner also contends that counts two and three state a legal conclusion because

they fail to allege the facts and circumstances of the underlying felonies. As above, counts

two and three for the first degree felony murder offenses satisfy the requirements in Hill

because they named the Petitioner as the defendant, included the language from the felony

murder statute, named the specific code section of the statute, stated the underlying felony,

included the date of the offense, and named the victim of the offense. See Sledge, 15 S.W.3d

at 95; see also Justin Mills, 2009 WL 723477, at *3; Robert Howell, 2005 WL 1541825, at

*2. Because we have previously concluded that the underlying felonies in counts two and

three are the armed robberies against Orr and Smith, we hold that counts two and three of the

indictment properly allege the facts and circumstances of the underlying felonies. Upon

review, we conclude that all three counts of the indictment in this case satisfy the

constitutional and statutory requirements to properly vest jurisdiction in the trial court. See

Jason Clark v. Cherry Lindamood, Warden, No. M2008-01926-CCA-R3-HC, 2009 WL

723477, at *3 (Tenn. Crim. App., at Nashville, Mar. 18, 2009) (citing Patrick Collier v.

Cherry Lindamood, Warden, No. 2007-00777-CCA-R3-HC, 2007 WL 3274418, at *2 (Tenn.

Crim. App., at Nashville, Nov. 6, 2007)). Therefore, because there are no jurisdictional

defects in the indictment, the Petitioner’s convictions are not void.

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The Petitioner has not established that his judgments are void or his sentences have

expired. Accordingly, the habeas corpus court’s summary dismissal of the petition for habeas

corpus relief was proper.

Conclusion. Upon review of the record and applicable law, this court concludes that

the habeas court’s summary dismissal of the petition for habeas corpus relief was proper.

_______________________________

CAMILLE R. McMULLEN, JUDGE

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