Supreme Court Rules on Validity of Amendment to Indictment Based on Actions of Counsel

August 5, 2019

The Tennessee Supreme Court has reversed a Court of Criminal Appeals’ decision construing the actions of defense counsel in a criminal case to have caused an amendment to the indictment, thus resulting in a criminal conviction for an offense that was not an enumerated lesser-included offense of the indicted charge.    

Sandra Custode, a codes inspector in Nashville, visited the property of the defendant, Leroy Myers, Jr., to investigate whether he had complied with an abatement letter she had previously sent to him, which directed him to stop operating an automobile repair shop at his home in violation of local codes.  When Mr. Myers saw Ms. Custode taking photographs, he walked toward her angrily.  Ms. Custode began to drive away.  At that point, she heard shots, and when she looked over her shoulder, she saw Mr. Myers lowering a gun. 

Based upon these events, a grand jury indicted Mr. Myers for aggravated assault, a Class C felony.  Mr. Myers was tried in a bench trial.  Defense counsel, during closing arguments, focused on negating one of the elements of aggravated assault and referred by analogy to two cases interpreting that element within the context of a different criminal offense, felony reckless endangerment.  The trial court encouraged defense counsel to submit the cases upon which he had relied during closing arguments.  Thereafter, the trial court entered an order finding Mr. Myers guilty of reckless endangerment, a Class E felony, which is not an enumerated lesser-included offense of aggravated assault.  Mr. Myers filed a motion for judgment of acquittal, and the trial court denied it, stating that Mr. Myers’ attorney had introduced the issue of reckless endangerment as a lesser-included offense and had, therefore, actively sought to place it before the court.  Mr. Myers appealed to the Court of Criminal Appeals, which affirmed the ruling of the trial court.

The Tennessee Supreme Court granted Mr. Myers’ application for permission to appeal in this case to consider whether and under what circumstances the actions of counsel can rise to the level of causing an “effective” amendment to an indictment absent the clear consent of the defendant. 

The Court reiterated that the Tennessee Rule of Criminal Procedure 7(b) sets forth the manner in which an indictment can be amended after jeopardy has attached.  For an indictment to be amended pursuant to Rule 7(b)(1), “an oral or written motion to amend [the indictment] should be made, and the defendant’s oral or written consent to the motion must be clear from the record.”  Compliance with Rule 7(b) results in an “actual amendment” to the indictment.  On the other hand, an “effective amendment” to an indictment occurs when a defendant actively seeks consideration of an otherwise invalid lesser offense.  In a jury trial, mere acquiescence in a trial court’s instructing the jury on an inapplicable lesser-included offense is insufficient to cause an effective amendment to the indictment.  The Court made clear that these same principles apply in a bench trial as well as in a jury trial. 

Applying these concepts to the facts of this case, the Court held that the mandates of Tennessee Rule of Criminal Procedure 7(b)(1) were not followed in this case and that the actions of counsel amounted, at most, to mere acquiescence in rather than an affirmative request for the trial court to consider felony reckless endangerment as a lesser offense.  Because the indictment was not properly amended, the Court reversed the conviction and dismissed the charges against Mr. Myers. 

To read the unanimous in State of Tennessee v. Leroy Myers, Jr., authored by Justice Roger A. Page, go to the opinions section of