State v. Tarrell Lowe

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

TARRELL LOWE, ) ) Petitioner, ) C. C. A. NO. 02C01-9812-CC-00386 ) vs. ) LAKE COUNTY

STATE OF TENNESSEE, ) ) No. 98-7837 FILED ) Respondent. ) March 22, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk

ORDER

This matter is before the Court upon the state’s motion to affirm the trial

court judgment in this case pursuant to Rule 20, Rules of the Court of Criminal Appeals.

This case represents an appeal from the trial court’s denial of the petitioner’s petition for

writ of habeas corpus. In 1990, the petitioner pled guilty to charges of assault to

commit first degree murder (T.C.A. § 39-2-103 (repealed)). The petitioner appealed his

convictions and has previously filed a petition for post-conviction relief. State v. Lowe,

No. 22, Shelby County (Tenn. Crim. App., Feb. 27, 1991); Lowe v. State, No. 02C01-

9309-CR-00198 (Tenn. Crim. App., Oct. 19, 1994).

In the current proceeding, 1 the petitioner claims the statute under which

he was convicted is unconstitutionally vague because it fails to define the terms

“assault” and “murder in the first degree.” These terms are themselves criminal

offenses clearly defined by the legislature elsewhere in the criminal code. T.C.A. § 39-

2-103 (repealed) is not unconstitutionally vague. See, e.g., VanArsdall v. State, 919

S.W.2d 626, 632 (Tenn. Crim. App. 1995) (statutes should be construed to give effect

to legislative intent). Cf. T.C.A. § 39-11-104 (1997) (criminal statutes “shall be

construed according to the fair import of their terms, including reference to judicial

decisions and common law interpretations, to promote justice, and effect the objectives

1 Contrary to the state’s argument, this is an appropriate matter for consideration in a habeas corpus procee ding. See Herron v. State , No. 02C01-9805-C C-00153 (Te nn. Crim. App., Oct. 19, 1998). of the criminal code”) Accordingly, the petitioner’s claim is without merit.

It is hereby ORDERED that the judgment of the trial court is affirmed in

accordance with Rule 20, Rules of the Court of Criminal Appeals. Costs of this

proceeding shall be taxed to the state.

_____________________________ JOE G. RILEY, JUDGE

_____________________________ DAVID G. HAYES, JUDGE

_____________________________ JOHN EVERETT WILLIAMS, JUDGE