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Defective Indictment

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CaseState of Tennessee v. Willie Duncan

Issue:  Must an indictment specify a predicate felony for a charge of employing a firearm during the commission of a dangerous felony?

Facts: Defendant was indicted for (1) aggravated burglary, (2) especially aggravated kidnapping with a deadly weapon, and (3) employing a firearm during the commission of a dangerous felony. The indictment did not identify a specific predicate felony for the firearm offense. Defendant argues that the failure to identify a predicate felony provided him with inadequate notice of the charges.

Appellate Decision: The intermediate court vacated the firearm conviction for improper notice, holding that the indictment fatally failed to identify a predicate felony. The court held that the predicate felony must be clear on the face of the indictment without consideration of future evidence that may be introduced later. The court rejected the State’s position that the charge could only have referred to aggravated burglary since weapon possession is an essential element of the aggravated kidnapping charge.

Review Granted:  February 13, 2015.

Prediction:  Ben thinks the Supreme Court will reverse and hold the indictment provided sufficient notice under the circumstances.