STATE OF TENNESSEE v. LAJUAN HARBISON
No. E2015-00700-SC-R11-CD
IN THE SUPREME COURT OF TENNESSEE AT KNOXVILLE
January 9, 2018
May 24, 2017 Session Heard at Cookeville
Appeal by Permission from the Court of Criminal Appeals, Criminal Court for Knox County, No. 101406, Steven Wayne Sword, Judge
A jury convicted LaJuan Harbison of four counts of attempted voluntary manslaughter and four counts of employing a firearm during the commission of a dangerous felony. The Court of Criminal Appeals reversed the convictions and remanded for a new trial, holding that the trial court erred in denying Harbison‘s request for a separate trial, that his multiple convictions for employing a firearm during the commission of a dangerous felony violated the prohibition against double jeopardy, and that the evidence was insufficient to support one of the counts of attempted voluntary manslaughter and employment of a firearm during the commission of a dangerous felony. We granted the State‘s application for permission to appeal to determine whether the trial court properly exercised its discretion by
SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J., and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.
Herbert H. Slatery III, Attorney General and Reporter; Andree S. Blumstein, Solicitor General; Nicholas W. Spangler, Assistant Attorney General; Charme P. Allen, District Attorney General; and TaKisha M. Fitzgerald and Philip H. Morton, Assistant District Attorneys General, for the appellant, State of Tennessee.
Gerald L. Gulley, Jr. (on appeal) and A. Philip Lomonaco (at trial), Knoxville, Tennessee, for the appellee, LaJuan Harbison.
OPINION
I.
A Knox County grand jury indicted LaJuan Harbison on four counts of attempted first-degree murder and four counts of employing a firearm during the commission of a dangerous felony. These charges arose out of a shooting on September 7, 2012, near Austin-East High School in Knoxville. In the same indictment, the grand jury charged Arterious North with four counts of attempted first-degree murder and four counts of employing a firearm during the commission of a dangerous felony; and Laquinton Brown and Carlos Campbell with three counts of attempted first-degree murder, three counts of employing a firearm during the commission of a dangerous felony, two counts of attempted especially aggravated robbery, and two counts of attempted aggravated robbery. Before trial, the State dismissed one count of attempted first-degree murder and one count of employing a firearm during the commission of a dangerous felony against Brown and Campbell.
Harbison and his co-defendants were tried by a jury on January 27, 28, 30, 31, and February 1, 2014. The State‘s proof showed that on September 7, 2012, around 4:30 p.m., Campbell was driving a vehicle on Martin Luther King Jr. Avenue near Austin-East High School with Brown in the front passenger‘s seat and M.W.2 and another person in the back seat. Around this same time, Harbison was driving a vehicle in the opposite
direction on Martin Luther King Jr. Avenue toward Austin-East High School with North in the front passenger‘s seat and Montiere King and “Little Paul” in the back seat.
At this same time, a group of students, including L.P. and Q.T., was standing on a sidewalk near Austin-East High School. As Campbell drove by, L.P. saw four people including M.W. in the vehicle. Q.T. signaled to the vehicle because he thought he saw his brother in the back seat. After driving past the students a couple of times, Campbell stopped the vehicle, and Brown got out of the front passenger‘s seat and approached L.P. and Q.T. to speak with them. Brown, with the handle of a gun sticking out of his waistband, asked L.P. and Q.T. which one of them had thrown up a gang sign. Q.T. responded that “[w]e don‘t bang.” Brown directed them to empty their pockets. As Q.T. pulled out his pockets, L.P. saw an approaching vehicle (Harbison‘s vehicle) stop and its occupants start shooting. At that point, Brown pulled out his gun and fired it. Q.T. said he heard shots coming from somewhere behind Brown and saw Brown pull out his gun, start shooting, and run away. L.P. and
Malika Guthrie, a teacher at Austin-East High School and Vine Middle School, was driving her vehicle behind Campbell. She saw Campbell‘s vehicle stop, for no apparent reason, in the middle of Martin Luther King Jr. Avenue. A passenger, later identified as Brown, jumped out and approached L.P. and Q.T. in an aggressive, confrontational manner. Guthrie saw L.P. and Q.T. pulling their pockets out and holding up their hands indicating they had nothing. She believed Brown was robbing L.P. and Q.T. As Brown turned back to the Campbell vehicle, Guthrie heard shots being fired. Guthrie‘s daughter, a passenger in her mother‘s vehicle, also saw Brown confronting L.P. and Q.T. and observed another vehicle approach. She heard gunshots, saw the occupants of Campbell‘s vehicle shoot back, and then observed both vehicles drive away.
The driver of a Knoxville Area Transit bus behind the Guthrie vehicle saw Brown get out of the Campbell vehicle and direct L.P. and Q.T. to empty their pockets. Like Guthrie, she thought Brown was robbing them. After they pulled out their pockets, she saw Brown turn back to the vehicle, get a gun, and start firing it.
S.W. was with her cousin, L.P., and Q.T. on the sidewalk just before the shooting. She saw the Campbell vehicle, with M.W. in the back seat, drive by a few times with loud music playing. On the vehicle‘s second pass, she saw the occupants of the vehicle, including Brown, hanging out of the window making gang signs, and L.P. and Q.T. responding with hand signs. The third time the vehicle came by, it stopped, and Brown
got out and “tried to rob” L.P. and Q.T. She saw Brown step back, pull a gun, and start shooting. She also saw a backseat passenger in Campbell‘s car get out and start shooting.
Following the shooting, Knoxville City Police Department officers interviewed Harbison, North, Brown, and Campbell. Harbison initially denied any involvement in the September 7 shooting but later in the interview admitted he drove his vehicle and shot a gun during the episode. Harbison told police he got rid of the gun after the shooting. North admitted he was the front seat passenger in Harbison‘s vehicle and shot a .357 caliber gun. According to North, Harbison used a “little nine,” one of the backseat passengers (King or “Little Paul“) had a Glock handgun, and the other one had a Hi-Point handgun. Campbell admitted he drove the other vehicle and that Brown was in the front passenger‘s seat and M.W. in the back seat. Campbell claimed that after stopping his vehicle near a group of students, another vehicle pulled up beside him, and shots were fired from that vehicle. Brown said that after L.P. and Q.T. made gang signs at them, Campbell stopped so Brown could get out and talk to L.P. and Q.T. After the Harbison vehicle arrived on the scene and its occupants began firing, Brown hit the ground. He denied having a gun or firing a gun during the September 7 shooting.
Based on evidence found at the crime scene and in Harbison‘s and Campbell‘s vehicles, a Knoxville Police Department firearms examiner determined that multiple guns were fired from both vehicles. Police investigators observed that both vehicles had numerous exterior defects consistent with bullet holes, but it was not known how many of the bullet holes predated the September 7 shooting. At the crime scene on Martin Luther King Jr. Avenue, police found bullet fragments and
A search of Harbison‘s vehicle revealed wallets in the glove compartment belonging to Harbison and King. Investigators also found a fired bullet in the driver‘s floorboard and a 9-millimeter shell casing on the floorboard behind the front passenger‘s seat.
After the State rested, the trial court granted Campbell‘s and Brown‘s motions for acquittal on two counts of attempted especially aggravated robbery and attempted
aggravated robbery and reduced the remaining two robbery counts to two counts of aggravated assault.3
Harbison and Brown each testified in his own defense. Harbison, eighteen years old at the time of the offense, previously attended Austin-East High School. He knew Q.T. from when Harbison taught drums to Vine Middle School students. Harbison knew L.P. through his sister who had gone to Austin-East High School with Harbison. On the day of the shooting, Harbison was carrying a 9-millimeter handgun because he feared Campbell and Brown, whom he suspected of being involved in an incident at Harbison‘s mother‘s house. Just before the shooting started, Harbison stopped his vehicle near Austin-East High School after seeing an approaching school bus in the opposite lane extend its stop sign. Harbison then saw Brown get out of Campbell‘s vehicle and approach L.P. and Q.T. Harbison recognized Brown and Campbell and was surprised to see them in that part of Knoxville. When Harbison saw L.P. and Q.T. hold up their hands, Harbison believed Brown was robbing them. As Brown stepped back towards Campbell‘s vehicle, Harbison saw Brown draw a handgun and fire a shot. Harbison pulled his gun and fired it twice into the air. Harbison claimed he fired his gun only to protect L.P. and Q.T. and to prevent Brown from robbing them. He said he did not intend to harm anyone. After Harbison fired into the air, he heard “shots coming up out of - from everywhere.” Harbison, North, King and “Little Paul” began firing their weapons. As Harbison drove away, he continued to hear gunfire coming from behind him.
According to Brown, on the afternoon of September 7, he was riding in the front seat of Campbell‘s vehicle. As the vehicle passed a group of students standing near Austin-East High School, Brown saw Q.T. signal to him. Campbell stopped the vehicle so that Brown could get out and talk to L.P. and Q.T. After a brief conversation, Brown realized that he did not know them
weapons. To refresh his recollection, the State played Brown the video, but Brown claimed he did not recognize the voices or the faces. On rebuttal, a Knoxville Police Department officer explained that he had obtained Lagrone‘s cell phone while investigating an August 2012 shooting at Harbison‘s mother‘s house. The cell phone contained multiple videos of Lagrone and Brown, including the one shown to Brown. The officer identified Lagrone and Brown in the video, which showed the men driving around Knoxville at night and listening to music. Lagrone was holding a Smith and Wesson handgun, while Brown brandished a firearm with an extended magazine. One man can be heard saying, “[expletive deleted] the police.” After passing multiple police cars, one man says, “there go the boys. Get ready.”
The jury found Harbison guilty of four counts of the attempted voluntary manslaughter of L.P., Brown, Campbell, and M.W. and four counts of employing a firearm during the commission of a dangerous felony. The jury convicted North of four counts of the attempted voluntary manslaughter of L.P., Brown, Campbell, and M.W. and four counts of employing a firearm during the commission of a dangerous felony; convicted Brown of two counts of the attempted voluntary manslaughter of Harbison and North, two counts of employing a firearm during the commission of a dangerous felony, and two counts of aggravated assault of L.P. and Q.T.; and convicted Campbell of two counts of aggravated assault of L.P. and Q.T. and acquitted him of remaining charges. The trial court sentenced Harbison to an effective sentence of twenty-two years.4
Harbison‘s amended motions for new trial challenged the denial of his motion for severance; the sufficiency of the evidence, which included a challenge to the multiple convictions for employing a firearm during the commission of a dangerous felony; and the excessiveness of his sentence. The trial court denied Harbison‘s motions for new trial.
Harbison appealed.5 The Court of Criminal Appeals reversed and remanded for a new trial, finding that the trial court erred in denying the motion for severance; that the convictions for employing a firearm during the commission of a dangerous felony
violated the prohibition against double jeopardy; that the evidence was insufficient to support his conviction for the attempted voluntary manslaughter of L.P.
We granted the State‘s application for permission to appeal.6 The issues we address are:
- Whether the trial court abused its discretion by denying Harbison‘s motion for severance.
- Whether Harbison properly raised a double jeopardy issue in the trial court and the Court of Criminal Appeals or whether he waived the issue.
- If Harbison did not waive the double jeopardy issue, whether his four convictions for employing a firearm during the commission of a dangerous felony violate the prohibition against double jeopardy when he used one firearm but there were four distinct underlying felonies and four victims.
II.
Denial of Motion for Severance
The State argues that the trial court properly exercised its discretion in denying Harbison‘s request for a separate trial under
dismiss two of the robbery charges and reduce the two remaining robbery charges against Brown and Campbell to two charges of aggravated assault undercut Harbison‘s defense that he acted to protect Q.T. and L.P. from Brown. Finally, Harbison submits that the evidence regarding multiple offenses and multiple co-defendants impaired the jury‘s ability to make an individualized determination about each co-defendant.
Joint trials of defendants charged in the same indictment are favored because they promote efficiency and reduce the possibility of inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 210 (1987)).
A defendant may seek a severance under
When two or more defendants are charged in the same indictment, evidence that is not necessarily applicable to another defendant may be admissible against one or more defendants. State v. Meeks, 867 S.W.2d 361, 369 (Tenn. Crim. App. 1993) (citing Black v. State, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990)). A defendant is not entitled to a separate trial merely because damaging proof is introduced against another defendant. Id.
We review a trial court‘s denial of a motion for severance under an abuse of discretion standard. State v. Dotson, 254 S.W.3d 378, 390 (Tenn. 2008); State v. Carruthers, 35 S.W.3d 516, 552 (Tenn. 2000). A trial court abuses its discretion if it “applie[s] an incorrect legal standard or reache[s] a decision against logic or reasoning that cause[s] an injustice.” Dotson, 254 S.W.3d at 387-88 (quoting State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999) (internal quotation marks omitted)). Under this standard, an appellate court will uphold a trial court‘s ruling if reasonable minds can disagree with the propriety of the decision, State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000), and will not substitute its judgment for that of the trial court. Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001) (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998)). We do not interfere with the trial court‘s exercise of its discretion unless the denial of the motion for severance results in clear prejudice to the defendant. Carruthers, 35 S.W.3d at 552. Reversal is required only when the defendant establishes that he was “clearly prejudiced to the point that the trial court‘s discretion ended and the granting of [a] severance became a judicial duty.” Id. at 553 (quoting Hunter v. State, 440 S.W.2d 1, 6 (Tenn. 1969), superseded by statute on other grounds,
Here, the Court of Criminal Appeals found that Harbison was clearly prejudiced by the antagonistic nature of the defenses presented at the joint trial. Harbison, 2016 WL 4414723, at *20. The Court of Criminal Appeals acknowledged that mutually antagonistic defenses are not prejudicial per se and that few cases have been reversed on this ground due to the difficulty in establishing prejudice. Id. at *16 (citing State v. Ensley, 956 S.W.2d 502, 509 (Tenn. Crim. App. 1996)). The Court of Criminal Appeals quoted passages from Zafiro v. United States and United States v. Blankenship, 382 F.3d 1110 (11th Cir. 2004), indicating that a joint trial can prevent a jury, under certain circumstances, from making a reliable judgment about guilt or innocence. Harbison, 2016 WL 4414723, at *17-19. The Blankenship court quoted United States v. Gallo and cited United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980), where severance was found to be necessary. See Blankenship, 382 F.3d at 1124. These cases, however, are factually distinguishable from Harbison‘s case. In Gallo, sixteen defendants (fourteen defendants at the time of trial) were named in a twenty-two count indictment alleging a racketeering,
or RICO,8 enterprise and conspiracy based on seventy-two predicate acts constituting forty-six separate offenses, and at least twenty-five schemes, operations, or courses of conduct. Gallo, 668 F. Supp. at 738-39. The district court ordered separate trials as to some of the defendants and ordered the rest to be tried with two or three other co-defendants. Id. at 746. Factors considered by the district court in granting the severances included the complexity of the indictment, the disproportionality of the evidence as to the different defendants, the antagonism of defense strategies, that some evidence was admissible only as to certain defendants, and the inadequacies of limiting instructions. Id. at 749-53. The district court noted that the case was “far too extensive and intricate to expect that a jury would be able to discern the myriad of subtle distinctions and mental gyrations that would be required by the inevitable plethora of limiting instructions necessary.” Id. at 753. In Harbison‘s case, there were only three co-defendants, the indictment was not complex, and the evidence was neither disproportionate to the different defendants nor the “warehouse of diverse evidence” as in Gallo. Id.
In Sampol, eight defendants were charged in a multi-count indictment arising out of the murder of a former Chilean Ambassador to the United States and an American associate. Sampol, 636 F.2d at 629. Ignacio Novo Sampol (“Sampol“) was indicted on two counts of making false statements to a grand jury and one count of misprision of a felony. His seven co-defendants were charged with more serious charges of conspiracy to murder a foreign official, murder of a foreign official, two counts of first-degree murder, and murder by use of explosives to blow up a vehicle engaged in interstate commerce. One co-defendant was also charged with making false declarations to a grand jury. The joint trial for Sampol and two other defendants lasted over a month. The jury found each defendant guilty of the charged offenses. The United States Court of Appeals for the District of Columbia Circuit reversed Sampol‘s convictions, finding that the district court abused its discretion in denying his motion for severance. Id. at 643. The appeals court considered the likelihood of confusion of charges from the indictment and evidence at trial, the likelihood of prejudice to Sampol based on the grossly disparate charges against him (making false statements and misprision) and his co-defendants (multiple counts of murder), and the inability of Sampol to present a full defense and to cross-examine witnesses implicating him in crimes for which he was not charged. Id. at 643-51. Sampol is distinguishable from Harbison‘s case based on the number of defendants, the length of the trial, the complexity of the indictment, the disparity in the charged offenses, and the evidence presented.
After reviewing the record, we conclude that the trial court did not abuse its discretion in denying Harbison‘s motion for severance. In reaching this decision, we do not substitute our judgment for that of the trial court. The offenses in the indictment against Harbison, North, Brown, and Campbell all arose at the same time and place. The charged offenses were “closely connected in time, place, and occasion,” and “it would [have been] difficult to separate proof of one charge from proof of the others.”
To support his argument that he was clearly prejudiced by the trial court‘s abuse of discretion, Harbison offers only conclusory statements about hostility from courtroom spectators, hostility among the co-defendants, mutually antagonistic defenses, and admission of evidence about acts unrelated to Harbison. We will review each argument in turn.
First, Harbison contends that the trial court should have granted a severance because of the overt hostility between him and two of his co-defendants and courtroom spectators, the mutually antagonistic defenses, and his inability to present his defense. Hostility between defendants, attempt to cast blame on each other, finger-pointing, and tattling do not necessarily require a severance. United States v. Arruda, 715 F.2d 671, 679 (1st Cir. 1983) (citing United States v. Talavera, 668 F.2d 625, 630 (1st Cir. 1982)); United States v. Angiulo, 897 F.2d 1169, 1195 (1st Cir. 1990).9 Like the Court of Criminal Appeals, we recognize that potential hostility among co-defendants exists where an indictment charges each co-defendant as a perpetrator of offenses against other co-defendants. Mutually antagonistic defenses among co-defendants may be the basis for granting a severance in some circumstances but are not per se prejudicial. Zafiro, 506 U.S. at 538.
Here, Harbison‘s defense was not necessarily mutually antagonistic with the defenses of his co-defendants, and he was not
Second, Harbison argues that the trial court‘s denial of a severance resulted in the admission of “lurid testimony and videos about guns, unindicted bad actors, and other crimes unrelated to Harbison and irrelevant to his charges.” A severance should not be granted simply because there is a “[d]isparity in the evidence against the defendants,” State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000), or a “speculative risk of a spill-over effect” from a co-defendant‘s prior bad acts. Meeks, 867 S.W.2d at 369. Harbison cites to testimony from Knoxville Police Department officers regarding the investigation into Lagrone‘s role in a drive-by shooting of Harbison‘s mother‘s house; police interviews of Brown, Campbell, North, and Harbison; and the video introduced to impeach Brown‘s testimony that he had never possessed a weapon. This evidence, however, does not incriminate Harbison and potentially places only Brown in a negative light. Although the Court of Criminal Appeals indicated that the evidence adduced during the joint trial caused the jury to treat the case as a “gang shooting” in which the participants were equally guilty, this is speculative; indeed, the trial court recognized this concern and limited the evidence of gang involvement to a few brief references. Also, the verdicts reveal that the jury‘s careful assessment of the evidence against each defendant resulted in Harbison‘s convictions on reduced charges of attempted voluntary manslaughter.
Third, Harbison argues that the trial court‘s acquittal of Brown and Campbell at the close of the State‘s proof of two robbery counts and that the trial court “relayed this to the jury prior to Harbison testifying” impeached and undercut his ability to present his defense. The record does not support Harbison‘s argument. The trial court, outside the presence of the jury, granted Brown‘s and Campbell‘s motions for acquittal on two of the
robbery charges and reduced the two remaining robbery charges to aggravated assault. This decision was not “relayed” to the jury before Harbison took the stand. In any event, Harbison effectively presented his defense that he fired his gun because he believed Brown was robbing L.P. and Q.T. The State‘s proof confirmed that other witnesses also thought Brown was robbing them. Harbison‘s defense was partially successful; the jury found Harbison guilty of the lesser included charges of attempted voluntary manslaughter, presumably finding that he acted in a state of passion
Next, Harbison argues that a severance was necessary to avoid prejudice from evidence that would not have been admitted had Harbison‘s trial been severed from his co-defendants. A trial court need not grant a severance when the evidence introduced at the joint trial would have been admissible against the defendant in a separate trial. State v. Dellinger, 79 S.W.3d 458, 468 (Tenn. 2002); State v. Brown, 795 S.W.2d 689, 693 (Tenn. Crim. App. 1990); see State v. Alcorn, 741 S.W.2d 135, 140 (Tenn. Crim. App. 1987). Harbison does not point to any specific evidence that would have been inadmissible in a separate trial but instead references “lurid testimony and videos about guns,” “unindicted bad actors,” and “other crimes unrelated to Harbison.” Harbison appears to be primarily referring to the cell phone video that showed Brown and Legrone riding in a vehicle holding guns. This video, admitted into evidence solely to impeach Brown‘s testimony that he had never possessed a weapon, did not clearly prejudice Harbison. The jury may have concluded from the video that Brown‘s testimony was not credible, but this would not have hindered Harbison‘s defense. The trial court properly instructed the jury that “[a]ny evidence which was limited to a particular defendant should not be considered by you as to any other defendant.”
Finally, Harbison argues that the evidence pertaining to multiple offenses and multiple co-defendants impaired the jury‘s ability to make an individual determination about each co-defendant. However, the trial court instructed the jury on its consideration of multiple defendants:
You should give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law which is applicable to that particular defendant. Any evidence which was limited to a particular defendant should not be considered by you as to any other defendant. You
can acquit all or convict all, or you can acquit one or more and convict the others.
The trial court also instructed the jury on self-defense, defense of a third person, and criminal responsibility. We presume that the jury follows all instructions given by the trial court, “with commonsense understanding of the instructions in the light of all that has taken place at the trial [that is] likely to prevail over technical hairsplitting.” State v. Knowles, 470 S.W.3d 416, 426 (Tenn. 2015) (quoting Boyde v. California, 494 U.S. 370, 381 (1990)). To overcome this presumption, the defendant must show by clear and convincing evidence that the jury failed to follow the trial court‘s instructions. State v. Newsome, 744 S.W.2d 911, 915 (Tenn. Crim. App. 1987) (citing State v. Vanzant, 659 S.W.2d 816, 819 (Tenn. Crim. App. 1983)). Harbison has presented no evidence to overcome this presumption.
Although the jury considered evidence of multiple defendants and multiple offenses, its verdict reflects its fair assessment of the evidence, including the credibility of witnesses and application of the law as instructed. The jury‘s decision to convict Harbison on a lesser included charge (attempted voluntary manslaughter) indicates that it accredited Harbison‘s testimony that he did not intend to kill anyone but was provoked into firing his
We conclude that the trial court did not abuse its discretion in denying Harbison‘s motion for severance based on a finding that severance was not required for a fair determination of guilt or innocence.
Waiver of Double Jeopardy Issue
The next issue we address is whether Harbison preserved a challenge based on double jeopardy to his multiple convictions for employing a firearm during the commission of a dangerous felony by raising the issue in the trial court and the Court of Criminal Appeals. The State argues that Harbison waived any challenge by not raising the issue in his motion for new trial and appellate brief. Harbison counters that he properly raised the issue.
To preserve the double jeopardy issue, Harbison had to raise it in his motion for new trial and appellate brief. See State v. Bishop, 431 S.W.3d 22, 43 (Tenn. 2014) (citing State v. Bledsoe, 226 S.W.3d 349, 353 (Tenn. 2007)); see also
Under
presented for review. See
In deciding whether a party has waived an issue on appeal, we do not exalt form over substance but instead review the record carefully to determine whether a party is raising an issue for the first time on appeal. See Fayne v. Vincent, 301 S.W.3d 162, 171 n.6 (Tenn. 2009). A party does not waive an issue by phrasing it differently in the trial court than on appeal. Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 143 n.1 (Tenn. 2001) (noting that “the failure to use the right label does not result in a waiver“).
Here, Harbison filed a motion for new trial and two amended motions. Harbison‘s second amended motion asserted that “[i]t was error to allow the conviction of four counts of the use of a firearm during the commission of a dangerous felony. [Tenn. Code Ann. §] 39-17-1324. Only one conviction should have been allowed. There was only one weapon being used during the incident[.]” At the hearing on the motion for new trial, Harbison argued that the State overcharged the offenses in the indictment and that it was error to allow four convictions for employment of a single firearm during the commission of a dangerous felony. Harbison contended there should only be one conviction under
Although Harbison should have more clearly stated his assertion of error in the motion for new trial, we interpret the second amended motion for new trial and the
firearm or the act of committing the underlying dangerous felony. Harbison focused on his use of a single weapon, while the State emphasized the multiple underlying dangerous felonies. Whether Harbison waived the issue of double jeopardy is a close question given his failure to use the phrase “double jeopardy” or “unit of prosecution” in the trial court. Although Harbison‘s constitutional argument was not a model of precision or clarity, we conclude that his amended motion for new trial was sufficient to direct the trial court‘s and the State‘s attention to his challenge to multiple convictions for employing a firearm during the commission of a dangerous felony when he fired a single weapon. Harbison‘s motions for new trial allowed the trial court to consider the issue and make an appropriate ruling. See Fahey, 46 S.W.3d at 142 (quoting McCormic, 659 S.W.2d at 806).
Harbison argued in the Court of Criminal Appeals that the trial court erred by not granting a new trial “where there was insufficient evidence to support conviction on more than one count of possessing a firearm during a dangerous felony, and where the Defendant possessed only one firearm during the shooting event.” He further argued that the proper unit of prosecution was the number of firearms employed in the commission of a dangerous felony, and there was no proof he used more than one firearm during the single shooting event involving several individuals. The phrase, unit of prosecution, is uniquely associated with claims of error based on double jeopardy. See Sanabria v. United States, 437 U.S. 54, 69-70 (1978); State v. Itzol-Deleon, No. M2014-02380-SC-R11-CD, 2017 WL 3668453, at *4 (Tenn. Aug. 25, 2017); State v. Feaster, 466 S.W.3d 80, 84 n.2 (Tenn. 2015); State v. Hogg, 448 S.W.3d 877, 885-86 (Tenn. 2014); State v. Smith, 436 S.W.3d 751, 766 (Tenn. 2014); State v. Watkins, 362 S.W.3d 530, 543 (Tenn. 2012); State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997); State v. Tolbert, 507 S.W.3d 197, 215 (Tenn. Crim. App. 2016); State v. Branham, 501 S.W.3d 577, 593 (Tenn. Crim. App. 2016); State v. Aguilar, 437 S.W.3d 889, 907 (Tenn. Crim. App. 2013); State v. Franklin, 130 S.W.3d 789, 797 (Tenn. Crim. App. 2003). As a result, the Court of Criminal Appeals construed Harbison‘s argument as a challenge to his firearm convictions based on double jeopardy grounds. See Harbison, 2016 WL 4414723, at *25. Although Harbison should have stated his argument with more precision, we hold that he preserved the double jeopardy issue at trial and on appeal and did not waive the issue.
Double Jeopardy
The jury convicted Harbison of four counts of employing a firearm during the commission of a dangerous felony in violation of
offense, Harbison stands convicted of three counts of attempted voluntary manslaughter and three counts of employing a firearm during the commission of a dangerous felony.
“Whether multiple convictions violate double jeopardy is a mixed question of law and fact, which we review de novo with no presumption of correctness.” Smith, 436 S.W.3d at 766 (citing State v. Thompson, 285 S.W.3d 840, 846 (Tenn. 2009)); Watkins, 362 S.W.3d at 539 (citing Thompson, 285 S.W.3d at 846).
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, protects individuals from “be[ing] subject for the same offence to be twice put in jeopardy of life or limb.”
The prohibition against multiple punishments in a single prosecution prevents prosecutors from seeking and trial courts from imposing a sentence greater than the legislature intended. Id. at 542 (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983)); see also Lewis, 958 S.W.2d at 739 (“When multiple sentences are imposed in a single trial,” double jeopardy protection “is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” (quoting Brown v. Ohio, 432 U.S. 161, 165 (1977))). Where the legislature intended to allow multiple punishments, the imposition of multiple punishments does not constitute
double jeopardy. See Watkins, 362 S.W.3d at 542 (quoting Albernaz v. United States, 450 U.S. 333, 344 (1981)). The double jeopardy clause does not limit the legislature‘s authority to define criminal offenses and prescribe punishments for those offenses. Id. (citing Brown, 432 U.S. at 165).
Tennessee recognizes two types of single prosecution, multiple punishment claims: multiple description claims and unit-of-prosecution claims. Smith, 436 S.W.3d at 766 (citing Watkins, 362 S.W.3d at 543). A multiple description claim is one in which a defendant convicted of multiple criminal offenses under different statutes alleges that the convictions result in double jeopardy
Here, the central question is whether Harbison is being subjected to multiple punishments for the same offense. The answer to this question depends on how the unit of prosecution is defined for an offense under
We first review the language of
served consecutive to any other sentence imposed for the conviction of the underlying dangerous felony.
We conclude from the plain language of
(c) A person may not be charged with a violation of subsection (a) or (b) if possessing or employing a firearm is an essential element of the underlying dangerous felony as charged. In cases where possession or employing a firearm are elements of the charged offense, the state may elect to prosecute under a lesser offense wherein possession or employing a firearm is not an element of the offense.
While not necessary for our consideration, we note the legislative history of the statute supports this conclusion. First, the caption of the bill, which we may consider in determining legislative intent, Womack v. Corr. Corp. of Am., 448 S.W.3d 362, 366 (Tenn. 2014); State ex rel. Rector v. Wilkes, 436 S.W.2d 425, 428 (Tenn. 1968) (citing Sealed Power Corp. v. Stokes, 127 S.W.2d 114 (1939)), reads, in part:
Whereas, the General Assembly . . . finds that reducing violent crime would greatly improve the safety and well-being of all Tennesseans; and . . . the General Assembly takes notice of significant decreased violent gun crime in other states following enhancement of punishment for repeat violent criminal offenders; and . . . the General Assembly recognizes that legal possession and use of firearms is a protected and highly valued fundamental right . . . but illegal possession and use of firearms is a major component of violent crime; and . . . the General Assembly has determined that focusing on the most hardened, violent, unrepentant criminals . . . who
endanger the public by committing crimes using guns is a logical way to improve government‘s performance in the area of public safety; and . . . the General Assembly finds that protecting public safety and preserving order is a primary obligation of government . . . .
2007 Tenn. Pub. Law Ch. 594 (S.B. 1967).
Statements made in Senate and House hearings indicate that
Therefore, we conclude that the legislature intended the unit of prosecution for
III.
After careful review, we reverse the judgment of the Court of Criminal Appeals that the trial court erred by not granting Harbison a separate trial and that his convictions for employing a firearm during the commission of a dangerous felony violated the prohibition against double jeopardy. We reinstate Harbison‘s three convictions for attempted voluntary manslaughter and three convictions for employment of a firearm during the commission of a dangerous felony and remand to the trial court for resentencing and corrected judgments. It appearing that LaJuan Harbison is indigent, we tax the costs of this appeal to the State of Tennessee.
SHARON G. LEE, JUSTICE