State of Tennessee v. Terrence Justin Feaster , 2015 Tenn. LEXIS 514 ( 2015 )


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  •                  IN THE SUPREME COURT OF TENNESSEE
    AT KNOXVILLE
    May 5, 2015 Session
    STATE OF TENNESSEE v. TERRENCE JUSTIN FEASTER
    Appeal by Permission from the Court of Criminal Appeals
    Criminal Court for Knox County
    No. 97484    Jon Kerry Blackwood, Senior Judge
    No. E2012-02636-SC-R11-CD – Filed June 25, 2015
    The defendant was convicted of attempted voluntary manslaughter, aggravated assault,
    and false imprisonment. After determining that the separate convictions for attempted
    voluntary manslaughter and aggravated assault did not violate double jeopardy, the trial
    court imposed consecutive sentences totaling twenty-six years, eleven months, and
    twenty-nine days. A divided panel of the Court of Criminal Appeals affirmed, finding no
    double jeopardy violation. This Court granted the defendant‟s application for permission
    to appeal to determine whether due process safeguards prohibit the retroactive application
    of the double jeopardy standard adopted in State v. Watkins, 
    362 S.W.3d 530
    (Tenn.
    2012), which was decided after the date of his offenses. The defendant argues that the
    former double jeopardy standard set out in State v. Denton, 
    938 S.W.2d 373
    (Tenn.
    1996), should apply. Because our ruling in Watkins cannot be classified as “unexpected”
    or “indefensible” by reference to prior law, due process does not preclude its retroactive
    application. The judgment of the Court of Criminal Appeals is affirmed.
    Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
    Appeals Affirmed
    GARY R. WADE, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J.,
    and CORNELIA A. CLARK, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.
    Stephen Ross Johnson, Knoxville, Tennessee, for the appellant, Terrence Justin Feaster.
    Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor
    General; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney
    General; and Leslie Nassios and Federico Flores, Assistant District Attorneys General,
    for the appellee, State of Tennessee.
    OPINION
    I. Facts and Procedural History
    In the early morning hours of May 27, 2010, Molly Kate McWhirter (the “victim”)
    was seriously injured during an altercation with Terrence Justin Feaster (the
    “Defendant”) at her Knoxville residence. Several weeks later, the Defendant was
    apprehended in South Carolina. Thereafter, he was extradited to Tennessee and indicted
    on one count of attempted first degree murder, one count of aggravated assault, two
    counts of especially aggravated kidnapping, and one count of aggravated robbery.
    At trial, the State‟s proof established that the Defendant had been living at the
    victim‟s residence for approximately two weeks before she drove him to a sports bar on
    the night of May 26, 2010. After an hour or so, the Defendant became “really drunk,”
    and so the victim drove him back to her residence. According to the victim, when she
    went to her bathroom, the Defendant broke through the door and “just started beating
    [her].” She testified that he then dragged her into the bedroom, where he tied her feet to
    an entertainment center and threatened to kill her if she moved. The victim recalled that
    she momentarily lost consciousness, and when she awoke, she was able to free herself
    and run to the residence of a neighbor, who called 911. The police officers who
    responded to the scene found significant amounts of blood in the bathroom, bedroom,
    dining room, and living room.
    After being transported by ambulance to a hospital, the victim remained
    unconscious for the next three days. Dr. William Snyder Jr., the victim‟s treating
    neurosurgeon, diagnosed a temporal skull fracture, a dislocation of the jaw, several
    lacerations on the forehead and scalp, nasal fractures, bilateral pulmonary contusions, and
    soft-tissue injuries to the arms. When the victim returned home, she found that several of
    her possessions were missing—jewelry, cash, clothing, a computer, and her purse and its
    contents. The victim denied that she and the Defendant had argued prior to the assault or
    that she had threatened him with a gun.
    The Defendant testified that he and the victim met a man called “D” at the bar.
    When the victim left the bar with “D,” the Defendant followed her outside and found her
    “kissing on” him. The Defendant claimed that he became so angry and embarrassed that
    he began walking home. He contended that the victim followed, driving his vehicle, and
    persuaded him to get inside. He recalled that they began to argue and, after they arrived
    at the victim‟s residence, she initiated the altercation with two or three punches to his
    face. According to the Defendant, when he retaliated by hitting her in the nose, the
    victim pointed a pistol in his direction. He asserted that he “grabbed the pistol from her,”
    and when she continued to attack him, he used it to strike her in the head, eventually
    knocking her to the bathroom floor.
    -2-
    The Defendant claimed that the victim then asked him to remove all the drugs and
    guns from the property and to call 911. The Defendant maintained that he drove to the
    residence of a friend, who agreed to call 911 but refused to accept the drugs and two guns
    that he had brought with him. The Defendant contended that he had initially intended to
    visit the victim at the hospital, but decided instead to drive to Myrtle Beach, South
    Carolina, where he was scheduled to perform at a concert. The Defendant denied taking
    any property from the victim other than the drugs and guns.
    The jury convicted the Defendant of attempted voluntary manslaughter, as a lesser
    included offense of attempted first degree murder; aggravated assault; and one count of
    false imprisonment, as a lesser included offense of especially aggravated kidnapping. He
    was acquitted of the aggravated robbery charge and one of the two counts of especially
    aggravated kidnapping. The trial court declined to merge any of the convictions and
    imposed consecutive sentences of twelve years for the attempted voluntary manslaughter,
    fourteen years for the aggravated assault, and eleven months and twenty-nine days for the
    false imprisonment.
    A divided panel of the Court of Criminal Appeals affirmed the convictions and
    sentences. State v. Feaster, No. E2012-02636-CCA-R3-CD, 
    2014 WL 2170096
    , at *14
    (Tenn. Crim. App. May 23, 2014). Dissenting in part, Judge Joseph M. Tipton concluded
    that the trial court should have merged the convictions for attempted voluntary
    manslaughter and aggravated assault pursuant to the double jeopardy principles set forth
    in State v. Denton, 
    938 S.W.2d 373
    , 378-81 (Tenn. 1996), which was in effect at the time
    of the offenses but was later overruled by this Court in State v. Watkins, 
    362 S.W.3d 530
    ,
    556 (Tenn. 2012). Feaster, 
    2014 WL 2170096
    , at *14 (Tipton, P.J., concurring in part
    and dissenting in part). We granted review to determine whether Watkins may be applied
    retroactively.
    II. Standard of Review
    This appeal involves a question of constitutional interpretation, which we review
    de novo, affording no presumption of correctness to the conclusions of the trial court.
    State v. Crank, No. E2012-01189-SC-R11-CD, 
    2015 WL 603158
    , at *4 (Tenn. Feb. 13,
    2015).
    III. Analysis
    The sole issue is whether the Defendant‟s convictions for attempted voluntary
    manslaughter and aggravated assault should be merged based upon the double jeopardy
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    principles set out in Denton.1
    The Federal Double Jeopardy Clause provides that “[n]o person shall . . . be
    subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const.
    amend. V. Tennessee‟s Double Jeopardy Clause provides “[t]hat no person shall, for the
    same offence, be twice put in jeopardy of life or limb.” Tenn. Const. art I, § 10. These
    provisions “protect[] against successive prosecutions for the same offense after acquittal
    or conviction and against multiple criminal punishments for the same offense.” Monge v.
    California, 
    524 U.S. 721
    , 727-28 (1998); State v. Smith, 
    436 S.W.3d 751
    , 766 (Tenn.
    2014). In Denton, this Court adopted a four-factor test for determining whether multiple
    convictions were for “the same offense” such that they had to be merged pursuant to the
    Double Jeopardy Clause of the Tennessee Constitution: (1) whether, viewing the
    statutory elements “in the abstract” in accordance with Blockburger v. United States, 
    284 U.S. 299
    (1932), each offense includes an element which the other does not; (2) whether
    the same evidence was used to establish the offenses; (3) whether the offenses involved
    multiple victims or discrete acts; and (4) whether the statutes serve the same purpose.
    
    Denton, 938 S.W.2d at 381
    . No single factor of the Denton test was determinative;
    rather, the factors were to “be weighed and considered in relation to each other.” 
    Id. More recently,
    in Watkins, this Court abandoned the four-part test from Denton,
    holding that a double jeopardy claim by a defendant who has been convicted of multiple
    crimes under different statutes must be evaluated pursuant to the same-elements test
    established by the U.S. Supreme Court in Blockburger. 
    Watkins, 362 S.W.3d at 556
    .2
    Consistent with Blockburger, Watkins first and foremost requires a determination of
    legislative intent: if the General Assembly has clearly indicated that multiple
    punishments should or should not be permitted, the inquiry ends there. 
    Id. at 556.
    When
    there is no clear indication of legislative intent, the next consideration is whether the
    convictions arise from the same act or transaction; if they arise from different
    transactions, then no double jeopardy violation has occurred. 
    Id. If the
    convictions do
    arise from the same transaction, the question becomes whether each offense includes an
    element that the other does not—if so, there is a presumption that the General Assembly
    1
    While the State asserts that the Defendant waived this issue by failing to properly
    present it before the Court of Criminal Appeals, we have chosen to exercise our discretion to
    address the issue on the merits. See Tenn. R. App. P. 13(b).
    2
    Claims “in which defendants who have been convicted of multiple criminal offenses
    under different statutes allege that the convictions violate double jeopardy” are commonly
    referred to as “multiple description” claims. 
    Id. at 544.
    In contrast, “unit-of-prosecution” claims
    “arise when defendants who have been convicted of multiple violations of the same statute assert
    that the multiple convictions are for the „same offense.‟” 
    Id. at 543.
    The Blockburger test
    applies only to multiple description claims, 
    id. at 543-44,
    such as the claim at issue here.
    -4-
    intended to permit multiple punishments; if not, the presumption is that multiple
    punishments are not permitted. 
    Id. at 557.
    While these steps are typically determinative,
    Watkins also allows for consideration of whether the presumption for or against multiple
    punishments is contradicted by “other evidence of legislative intent, including the
    purposes and history of the relevant statutes.” 
    Id. In this
    instance, a majority of the Court of Criminal Appeals panel applied the
    Blockburger test, as directed by Watkins, and reached the following conclusions: (1) the
    convictions arose from “one continuous course of conduct”; (2) nevertheless, the offenses
    are not multiplicitous “because aggravated assault and attempted voluntary manslaughter
    each require proof of a fact not required in proving the other”; and (3) “legislative intent
    does not preclude the dual convictions.” Feaster, 
    2014 WL 2170096
    , at *11. Thus, the
    majority found no violation of double jeopardy and held that a merger of the two offenses
    was not required. 
    Id. While the
    State maintains that the majority properly applied Watkins, the
    Defendant, adopting the rationale of the dissent, argues that the rule in Denton should
    apply and would produce a different result. Because his offenses occurred before
    Watkins was decided, the Defendant contends that evaluating the double jeopardy issue
    pursuant to Watkins violates his right to due process. The Defendant relies upon a series
    of U.S. Supreme Court decisions delineating certain “limitations on ex post facto judicial
    decision-making” which are “inherent in the notion of due process.” Rogers v.
    Tennessee, 
    532 U.S. 451
    , 456 (2001) (citing Bouie v. City of Columbia, 
    378 U.S. 347
    (1964)).
    In Bouie, the U.S. Supreme Court considered the South Carolina Supreme Court‟s
    retroactive application of a newly adopted interpretation of a criminal trespass 
    statute. 378 U.S. at 349
    & n.1. Although prior South Carolina cases had uniformly required as an
    element of the offense that defendants receive notice that entry is prohibited, the South
    Carolina court upheld the convictions of Bouie and his co-defendant by construing the
    statute to extend to patrons of a business who did not receive notice prior to entry, but
    refused to leave when asked to do so. 
    Id. at 350
    & n.2. Relying upon the basic principle
    of due process that a criminal statute must provide “fair warning,” the U.S. Supreme
    Court ruled that “[i]f a judicial construction of a criminal statute is „unexpected and
    indefensible by reference to the law which had been expressed prior to the conduct in
    issue,‟ [the construction] must not be given retroactive effect.” 
    Id. at 354
    (quoting
    Jerome Hall, General Principles of Criminal Law 61 (2d ed. 1960)). The Court held that
    the South Carolina court‟s retroactive application of its new construction violated due
    process because the construction had no support in the law in effect at the time of the
    offenses. 
    Id. at 355-56.
    -5-
    The U.S. Supreme Court applied the same principle in Marks v. United States,
    which involved the application of a federal statute prohibiting the transportation of
    obscene materials. 
    430 U.S. 188
    , 189 (1977). At the time of the alleged misconduct,
    obscenity statutes were subject to the stringent First Amendment standard set out in
    Memoirs v. Massachusetts, which provided constitutional protection unless the
    prosecution could show that the materials were “utterly without redeeming social value.”
    
    383 U.S. 413
    , 418 (1966) (plurality opinion). Later, in Miller v. California, 
    413 U.S. 15
    ,
    24 (1973), the Court rejected the Memoirs test in favor of a less restrictive standard,3
    thereby “expand[ing] criminal liability” under the obscenity statutes. 
    Marks, 430 U.S. at 193-94
    . Because the new constitutional interpretation had “the same [effect] as the new
    construction in Bouie,” the Court held “that the Due Process Clause preclude[d] the
    application . . . of the standards announced in Miller” as to any offense that predated
    Miller. 
    Id. at 195-96.
    In State v. Rogers, this Court abolished the year-and-a-day rule, a common law
    doctrine which barred a murder conviction “unless the victim died within a year and one
    day of the injury.” 
    992 S.W.2d 393
    , 396 (Tenn. 1999), aff‟d, 
    532 U.S. 451
    (2001). This
    Court concluded that the ruling could apply retroactively without violating due process
    because “the judicial abrogation of the year-and-a-day rule [was] not an unexpected
    judicial construction that [was] indefensible by reference to prior law.” 
    Id. at 402.
    The
    U.S. Supreme Court, which affirmed, made the following observations:
    [T]he Tennessee court‟s abolition of the year and a day rule was not
    unexpected and indefensible. The year and a day rule is widely viewed as
    an outdated relic of the common law. . . .
    . . . [T]he year and a day rule has been legislatively or judicially
    abolished in the vast majority of jurisdictions recently to have addressed the
    issue. . . . Due process, of course, does not require a person to apprise
    himself of the common law of all 50 States in order to guarantee that his
    actions will not subject him to punishment in light of a developing trend in
    the law that has not yet made its way to his State. At the same time,
    3
    The standard set out in Miller consists of the following factors:
    (a) whether the average person, applying contemporary community standards
    would find that the work, taken as a whole, appeals to the prurient interest,
    (b) whether the work depicts or describes, in a patently offensive way, sexual
    conduct specifically defined by the applicable state law; and (c) whether the work,
    taken as a whole, lacks serious literary, artistic, political, or scientific 
    value. 413 U.S. at 24
    (citations and quotation marks omitted).
    -6-
    however, the fact that a vast number of jurisdictions have abolished a rule
    that has so clearly outlived its purpose is surely relevant to whether the
    abolition of the rule in a particular case can be said to be unexpected and
    indefensible by reference to the law as it then existed.
    ....
    There is, in short, nothing to indicate that the Tennessee court‟s
    abolition of the rule in petitioner‟s case represented an exercise of the sort
    of unfair and arbitrary judicial action against which the Due Process Clause
    aims to protect. Far from a marked and unpredictable departure from prior
    precedent, the court‟s decision was a routine exercise of common law
    decisionmaking in which the court brought the law into conformity with
    reason and common sense.
    
    Rogers, 532 U.S. at 462-64
    , 466-67; see also Metrish v. Lancaster, 
    133 S. Ct. 1781
    , 1785
    (2013) (concluding that the Michigan Supreme Court‟s retroactive abrogation of the
    defense of diminished capacity did not entitle the petitioner to federal habeas corpus
    relief).
    The State first argues that the Defendant is not entitled to relief because Watkins,
    which altered our constitutional double jeopardy analysis, did not modify the construction
    of a criminal statute, as occurred in 
    Bouie, 378 U.S. at 350
    , or alter “a common law
    doctrine of criminal law,” as occurred in 
    Rogers, 532 U.S. at 462
    . We find this argument
    unpersuasive because in Marks, the U.S. Supreme Court recognized that the retroactive
    application of a constitutional interpretation may violate due 
    process. 430 U.S. at 195
    -
    96. The significant question, therefore, is whether our ruling in Watkins qualifies as
    either indefensible or unexpected by reference to the law as it then existed.
    In 1975, well before Denton, a member of this Court described the multiple-
    punishment issue in Tennessee as a “vexatious and recurring problem,” observing that
    our courts had struggled to craft a consistent approach “both as to the rules and as to their
    application.” State v. Black, 
    524 S.W.2d 913
    , 923 (Tenn. 1975) (Henry, J., dissenting).
    The four-factor test in Denton failed to remedy these problems. In Watkins, we first
    confirmed that the rule in Denton had not been adopted in any other 
    jurisdiction, 362 S.W.3d at 547
    & n.28, and further observed as follows:
    Unfortunately, the Denton test has not successfully resolved the
    “vexatious and recurring” questions regarding this Court‟s double jeopardy
    analysis. Not only has its application produced inconsistent results that
    defy reconciliation, the test itself suffers from analytical defects and an
    -7-
    incongruity with the key constitutional consideration in multiple
    punishment cases—that of ascertaining legislative intent. Furthermore, . . .
    the Denton test fails to focus sufficiently upon the distinct categories of
    multiple punishment claims—unit of prosecution and multiple description.
    Finally, the Denton test rests upon an uncertain constitutional foundation.
    
    Id. at 549
    (footnote omitted). Because of “the analytical shortcomings of the Denton test
    and the lack of any textual or historical basis suggesting that the Double Jeopardy Clause
    of the Tennessee Constitution mandates its adoption,” this Court abandoned the test in
    favor of Blockburger, which by that time had been adopted by both “the federal courts
    and the vast majority of our sister states.” 
    Id. at 556.
    Our rejection of the Denton test and adoption of the federal standard in Watkins
    cannot be classified as “unexpected and indefensible by reference to the law as it then
    existed.” 
    Rogers, 532 U.S. at 464
    ; see also 
    Bouie, 378 U.S. at 354
    . In contrast to the
    unique test adopted by this Court in Denton, the Blockburger test had stood as the federal
    double jeopardy standard since 1932 and, by the time of our ruling in Watkins, had been
    adopted by an overwhelming number of state courts. Cf. 
    Rogers, 532 U.S. at 462
    -63
    (holding that this Court‟s abolition of the year-and-a-day rule was not unexpected or
    indefensible where the rule had been rejected “in the vast majority of jurisdictions”).
    This Court‟s adoption of the Blockburger test—which had previously been a component
    of the Denton test—brought our law into conformity with a majority of other jurisdictions
    and did not constitute “the sort of unfair and arbitrary judicial action against which the
    Due Process Clause aims to protect.” 
    Id. Accordingly, the
    retroactive application of
    Watkins does not offend due process, and the Defendant is not entitled to have his double
    jeopardy claim evaluated pursuant to the Denton test.4
    Having determined that the Defendant‟s double jeopardy claim is governed by
    Watkins, the Defendant is not entitled to relief. Although the Defendant‟s convictions for
    attempted voluntary manslaughter and aggravated assault arose out of the same incident,
    each of those offenses contains numerous elements that the other does not. Compare
    Tenn. Code Ann. § 39-13-211(a) (“Voluntary manslaughter is the intentional or knowing
    killing of another in a state of passion produced by adequate provocation sufficient to
    lead a reasonable person to act in an irrational manner.”), and 
    id. § 39-12-101(a)(3)
    4
    Although we have not previously addressed the specific issue before us in this case, we
    note that both this Court and the Court of Criminal Appeals have consistently applied Watkins in
    cases involving offenses that predated that decision—including Watkins itself. See, e.g., State v.
    Hogg, 
    448 S.W.3d 877
    , 886-87 (Tenn. 2014); State v. Cross, 
    362 S.W.3d 512
    , 519-22 (Tenn.
    2012) (decided on the same day as Watkins); State v. Dockery, No. W2012-01024-CCA-R3-CD,
    
    2014 WL 172379
    , at *13 (Tenn. Crim. App. Jan. 15, 2014).
    -8-
    (defining criminal attempt, in pertinent part, as “[acting] 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”), with 
    id. §§ 39-13-101(a)(1),
    -102(a)(1) (defining aggravated assault, in pertinent part, as intentionally causing serious
    bodily injury to another). As to the final component of the Blockburger test, there is no
    evidence that the General Assembly intended to prohibit multiple punishments in
    circumstances such as these. In summary, the applicable principles of double jeopardy
    do not preclude the dual convictions.
    IV. Conclusion
    Because the Defendant is not entitled to the merger of his convictions for
    aggravated assault and attempted voluntary manslaughter, the judgments of the trial court
    and the Court of Criminal Appeals are affirmed. It appearing that the Defendant is
    indigent, costs are taxed to the State.
    ____________________________
    GARY R. WADE, JUSTICE
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