State of Tennessee v. Lajuan Harbison ( 2016 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
April 26, 2016 Session
STATE OF TENNESSEE v. LAJAUN HARBISON
Appeal from the Criminal Court for Knox County
No. 101406D Steven W. Sword, Judge
No. E2015-00700-CCA-R3-CD – Filed August 19, 2016
The Defendant, Lajuan Harbison, stands convicted by a Knox County jury of four counts
of attempted voluntary manslaughter and four counts of employing a firearm during the
commission of a dangerous felony, for which the trial court sentenced him to an effective
term of twenty-two years‟ incarceration. On appeal, the Defendant argues (1) that the
trial court erred by refusing to grant his motion for a severance; (2) that the evidence was
insufficient to support his convictions, including therein a double jeopardy challenge to
his employing a firearm during the commission of a dangerous felony convictions, and
(3) that consecutive sentencing was improper. Following our review, we first conclude
that a severance of defendants should have been granted and that the failure to do so
constitutes reversible error. We also conclude that the evidence was insufficient to
support one of the Defendant‟s convictions for attempted voluntary manslaughter because
the doctrine of transferred intent is inapplicable to such a conviction, and therefore, the
corresponding count of employing a firearm during the commission of said dangerous
felony likewise cannot stand. Additionally, multiple convictions for employing a firearm
during the commission of a dangerous felony violate double jeopardy principles because
the statute does not authorize separate firearms convictions for each felony committed in
a single transaction. Accordingly, we reverse the judgments of the trial court and remand
the case for a new trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court
Reversed; Case Remanded
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT L. HOLLOWAY, JR., JJ., joined.
Gerald L. Gulley, Jr., (on appeal), and A. Philip Lomonaco (at trial), Knoxville,
Tennessee, for the appellant, Lajuan Harbison.
Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; Randall E. Nichols, District Attorney General; and TaKisha M.
Fitzgerald and Philip H. Morton, Assistant District Attorneys General, for the appellee,
State of Tennessee.
OPINION
FACTUAL BACKGROUND
This case concerns a September 7, 2012 shooting near Austin East High School
(“Austin East”) in Knoxville, Tennessee, involving multiple parties and victims. One
person was injured but survived. The Defendant, along with Laquinton Brown, Carlos
Campbell, and Arterious North, were charged by presentment for various offenses related
to the shooting:
Count Defendant(s) Offense Victim
1 Laquinton Brown Attempted Especially Aggravated L.P.1
Carlos Campbell Robbery (by violence)
2 Laquinton Brown Attempted Especially Aggravated L.P.
Carlos Campbell Robbery (by putting in fear)
3 Laquinton Brown Attempted Aggravated Robbery Q.T.
Carlos Campbell (by violence)
4 Laquinton Brown Attempted Aggravated Robbery Q.T.
Carlos Campbell (by putting in fear)
5 Laquinton Brown Attempted First Degree Murder Lajuan Harbison
Carlos Campbell
6 Laquinton Brown Attempted First Degree Murder Arterious North
Carlos Campbell
7 Laquinton Brown Attempted First Degree Murder Montiere King
Carlos Campbell
8 Laquinton Brown Employing a firearm during the
Carlos Campbell commission of a dangerous felony
9 Laquinton Brown Employing a firearm during the
Carlos Campbell commission of a dangerous felony
10 Laquinton Brown Employing a firearm during the
Carlos Campbell commission of a dangerous felony
11 Arterious North Attempted First Degree Murder L.P.
Lajuan Harbison
1
It is the policy of this court to protect the identity of minor victims and witnesses. Therefore, we will
use initials for each minor involved in this case.
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12 Arterious North Attempted First Degree Murder Laquinton Brown
Lajuan Harbison
13 Arterious North Attempted First Degree Murder Carlos Campbell
Lajuan Harbison
14 Arterious North Attempted First Degree Murder M.W.
Lajuan Harbison
15 Arterious North Employing a firearm during the
Lajuan Harbison commission of a dangerous felony
16 Arterious North Employing a firearm during the
Lajuan Harbison commission of a dangerous felony
17 Arterious North Employing a firearm during the
Lajuan Harbison commission of a dangerous felony
18 Arterious North Employing a firearm during the
Lajuan Harbison commission of a dangerous felony
The Defendant and his three co-defendants proceeded to a jury trial in late January
2014. The State dismissed counts seven and ten against co-defendants Campbell and
Brown before trial began.
At the Defendant‟s trial, the State presented the following proof.2 Linda Detienne,
a bus operator for Knoxville Area Transit, testified that she was driving on Martin Luther
King Jr. Avenue just past Austin East around 4:30 p.m. on September 7, 2012.
According to Ms. Detienne, the bus was travelling slowly, going approximately twenty
miles per hour in accordance with the school-zone speed limit, and there were a large
number of children in the area because school had already been dismissed. Ms. Detienne
stated that a gold car, which was two cars in front of her bus, came to an abrupt halt in
her lane of traffic shortly before the end of the Austin East school zone; there was no
discernible reason for the stop, according to Ms. Detienne. She testified that she had to
stop the bus and that there was a cream-colored car between her bus and the stopped car.
However, the others cars in front of the gold car continued on.
Ms. Detienne said that she saw a young, “light-colored-skin” black man with
“[d]readlocks” exit from the passenger‟s side of the gold car and approach two boys on
the sidewalk. The gold car‟s door remained open. The man, who was wearing khaki
pants, a t-shirt, a hat, and sneakers, said something to the boys, and in response, the boys
“pulled the inside of their pockets out” and demonstrated with their hands that they did
not have anything. Ms. Detienne became concerned the boys were being robbed. She
saw the same thing happen once more—the man said something to the boys, and they
2
Because the Defendant was tried along with three co-defendants, we will limit our summary of the trial
testimony to facts pertinent to the Defendant‟s convictions.
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again turned out their pockets, which were empty, according to Ms. Detienne. Ms.
Detienne recalled that the young man then returned to the gold car, retrieved a gun, and
fired the weapon. Ms. Detienne said that she immediately called her central base to tell
them that there had been a shooting and that she needed emergency responders. Ms.
Detienne instructed her passengers to get under their seats.
Ms. Detienne recalled that the young man initially aimed at and fired on the boys
on the sidewalk but that he then fired more shots into the air. According to Ms. Detienne,
when the man fired the weapon, the boy on the right instantly went to the ground, but “[a]
lot of shots” were fired after that point. She described,
[A]fter they showed him their pockets again, and he shot them, he went
between the car that was in front of me and the car that he had got out of,
shooting, and then he went to the sidewalk, and he was still shooting, and
then he ran around [a nearby] brick house.
She further explained that the driver of the gold car drove away as soon as the shooting
began.
Ms. Detienne‟s dispatch told her to protect the passengers on her bus by
continuing on her route, so she could not render aid to the victim of the shooting and
drove away from the scene as instructed. Ms. Detienne testified that she did not observe
another vehicle being involved or “hear shots coming from a different direction at any
time” during the incident.
Malaika Rhonda Guthrie testified that she was a dance teacher at both Austin East
and Vine Middle School (“Vine”), which were approximately one mile apart. Around
4:30 p.m. on September 7, 2012, she was leaving Austin East in her silver Dodge
Magnum returning to Vine. Ms. Guthrie had her daughter and her daughter‟s friend in
the car with her; they were both students at Vine; and Ms. Guthrie‟s daughter had left
something at Vine. Ms. Guthrie said that she had to stop on Martin Luther King Jr.
Avenue because the gold car in front of her had “stopped in the middle of the street.”
She explained that there was no stop sign or any other reason for the car to have stopped.
The bus behind her also stopped, blocking her in. Ms. Guthrie said that a man, who was
wearing a white t-shirt and khaki-colored pants and had dreadlocks, got out of the car in
front of her and that the car‟s door remained open. According to Ms. Guthrie, the man
approached two male students on the sidewalk. Ms. Guthrie said that the students, whom
she recognized, appeared to be walking home. Ms. Guthrie became concerned that a
skirmish was about to ensue because the man who exited the gold car was acting
“aggressive[ly].”
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According to Ms. Guthrie, the man confronted the students, exchanging words
with them, which caused the boys to pull their pockets out and put their hands up,
gesturing that they did not have anything on their person. Ms. Guthrie now believed that
the students were being robbed. She testified that, when the man turned back towards the
car, she heard “[s]everal” gun shots, which she described as “tow, tow, tow-tow-tow-tow-
tow.” Ms. Guthrie also said that she lowered her head and was trying to get the two girls‟
heads down inside the car when the gunfire began, so she was unable to see much of what
transpired next. However, Ms. Guthrie was able to see that the man who confronted the
boys on the sidewalk returned to and got inside the gold car before it drove away and that
there was also a man running away from the scene. She confirmed that she did not see
any guns during the incident, stating that the individual was not brandishing a weapon
when he approached the students, and she was unable to identify anyone shooting.
Ms. Guthrie testified that, when the car in front of her drove away and the shots
ceased, one of the students, Q.T., was screaming and the other, L.P., was lying on the
ground. Ms. Guthrie pulled her car over so that she could assist the two students. She
enlisted the aid of another man, and they went to help L.P. She instructed the girls to
remain inside the car and called 9-1-1.
A.G., Ms. Guthrie‟s daughter, testified that she knew L.P., one of the boys on the
sidewalk, because they were in the eighth grade together at Vine in September 2012.
A.G. also gave her recollection of the events surrounding the shooting, confirming much
of her mother‟s testimony. A.G. remembered a man getting out of the front passenger‟s
seat of the car that had stopped in front of her mother‟s car. A.G. added that she believed
that there were three people in the gold car from which this individual exited—a third
man in the backseat on the driver‟s side. According to A.G., the man approached the
students on the sidewalk, saying something to them, and they “emptied their pockets.”
She likewise believed that the boys were being robbed. She saw “the guy start going
back to his car,” when a dark car drove by in the other lane of traffic, travelling in the
opposite direction. According to A.G., someone in the dark car started shooting first, and
the “car in front” of her mother‟s car returned fire. Both cars drove away, and she no
longer saw the individual who had approached the boys on the sidewalk. A.G. affirmed
that, following the incident, she told police that the man who had exited the car in front of
her pulled out a gun and fired back at the dark car. She was unsure “if he was standing or
if he was back in the car when he started shooting.”
S.W. testified that, on the day that her cousin, L.P., was shot, she recalled sitting
outside “on the wall” near Austin East with a group of freshmen. L.P. was nearby on the
sidewalk, accompanied by his friend Q.T. While sitting there on the wall, she saw a car
go by three times, and there were four people inside that car who were listening and
dancing to loud music, S.W. said. According to S.W., the second time that the car
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passed, the occupants were “throwing Crip” gang hand signs, and both L.P. and Q.T.
“were doing hand signals back.” It initially appeared to S.W. that L.P. knew someone
inside the car. However, on the third pass, the car stopped in front of her group, and one
man exited and “stepped up” to Q.T. and L.P., “tr[ying] to rob” them. According to
S.W., the man patted his pockets, asking the two boys if they had “something,” and the
boys responded by emptying their pockets and saying that they did not “have anything.”
The man then identified himself and his gang affiliation and just “stepped back and
pulled a gun out and started shooting.” After that, another passenger from behind the
driver of the car exited and began shooting. S.W. recalled that the driver and the fourth
passenger, whom she recognized as M.W. (the named victim in the fourteenth count of
the indictment in this case), watched from inside the car.
Q.T. testified that, after school on the day that L.P. was shot, he and L.P. were
sitting on a wall talking when he saw a gold car drive by twice. The second time, he
made a hand signal toward the car because he believed his brother was in the back seat.
The car returned for a third time about fifteen or twenty minutes later and stopped in the
street. The front passenger exited and asked, “Which one of y‟all threw a Blood?” and
the two boys responded, “We don‟t bang.” Q.T. noticed that the man had a gun
protruding from the waistband of his pants. The man told him to empty his pockets, but
as Q.T. was complying, “[t]he fellow that was in the other car started shooting.” Q.T.
opined that the gunshots came from somewhere “behind the guy that got out of the car.”
He and L.P. tried to run, but L.P. fell, saying that he had been shot. Q.T. recalled seeing
the man who had approached them run across the street after the gunfire broke out, all the
while retrieving the gun from his waistband and returning fire at the people shooting at
him. The car the man got out of sped off, according to Q.T. Q.T. said that the guy who
got out of the car and asked them to empty their pockets never fired in Q.T. or L.P.‟s
direction. He acknowledged that he was carrying a backpack on his back, which the man
never inquired about.
L.P. testified that the day he was shot, he had not attended school because his
mother had just come home from the hospital. After school was over, however, he
planned on attending a sporting event, a football game, so he went to meet Q.T. L.P. said
that he was standing near a wall on Martin Luther King Jr. Avenue when he saw a
“[b]rownish-gold” car drive by two or three times and loud music was playing from
inside. While standing there with Q.T., S.W., and some other girls, the car drove by
again, but this time it stopped. According to L.P., someone exited from the passenger‟s
side, and that person identified himself and began talking to Q.T. L.P. recalled that the
passenger who approached Q.T. had a gun in his waistband. Furthermore, there were a
total of four people in that car, L.P. said, and L.P. was able to identify M.W. as the
individual in the rear passenger‟s seat.
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According to L.P., the man approached Q.T. and asked, “Which one of y‟all threw
up that Blood?” and Q.T. said, “Didn‟t nobody throw up that Blood.” The man then
demanded that Q.T. empty his pockets, so Q.T. complied; however, L.P. agreed that the
individual did not inquire about Q.T.‟s backpack that was on his back. L.P. stated that he
was not asked by this individual to empty his pockets and that he “was just standing
there” when he saw a “blackish” car with tinted windows pull up and someone from
inside started shooting. According to L.P., “[a] bullet hit the wall,” and the two boys
looked at each other and “tried to take off,” but he fell to the ground. When the shooting
began, the man from the gold car crossed the street and fired his weapon in the direction
of the high school, L.P. said; L.P. stated that the man never got back inside the car. L.P.
was shot in the arm and stomach, and because a bullet hit a nerve, he had to learn to walk
again.
L.P. was shown a photographic array following the shooting. He was able to
identify co-defendant Brown as the man who exited the car and approached him and Q.T.
that day. L.P. testified that he did not know co-defendant Brown prior to September 7,
2012. However, L.P. stated that he did know the Defendant prior to that day, agreeing
that they “were on friendly terms,” and testified that he did not know of any “reason for
[the Defendant] to try to kill [him].”
Testimony from multiple crime scene investigators and a firearms examiner came
next. The investigation of the tan Chevrolet Malibu (which carried co-defendants
Campbell and Brown, and M.W. during the shooting) showed that the car had been “hit at
least four times” based upon the visible number of bullet holes. Three spent bullets were
found inside—one under the driver‟s floor mat, one in the passenger‟s floorboard, and
one in the left rear passenger‟s seat—and a bullet fragment was discovered in the
passenger‟s side door. Based upon the trajectory of one of the bullet holes, a forensic
witness opined that it would have been difficult for someone to shoot from another car
that was positioned parallel to the Malibu and cause this damage, without that person‟s
getting out or having the door open while leaning back. Upon examination of the dark-
colored Chevrolet Cobalt (which carried the Defendant, co-defendant North, and Mr.
King), ten “defects” were observed on the passenger‟s side of the car, two “defects” on
the hood, and one “defect” on the driver‟s side; the “defects” were in the nature of both
holes and dents, most of which appeared to have been caused by bullets. A spent bullet
was located on the driver‟s side floorboard, and a 9mm shell casing was found behind the
passenger‟s seat. Two wallets were also found inside the Cobalt: one belonging to the
Defendant and one belonging to Mr. King. Although each vehicle had been hit multiple
times by several bullets, it was unknown if all bullet contacts occurred during the
September 7, 2012 shooting.
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Additionally, two different caliber shell casings, .380 and .45, and several bullet
fragments were found at the crime scene on Martin Luther King Jr. Avenue. It was
determined that L.P. was shot by a .45-caliber bullet and that the bullet extracted from his
body shared “class and some individual characteristics consistent with” a .45-caliber
bullet taken from the Malibu. The class characteristics on these two bullets were
consistent with having been fired through a Hi-Point handgun. However, the examiner
could not say with one-hundred percent accuracy that the two bullets were fired from the
same gun due to “a lack of sufficient matching individual characteristics.” She also could
not say if all bullets had been fired on the same occasion. She was able to conclude that a
minimum of three guns were used at the shooting scene.
Lisa Knight, employed by the Tennessee Department of Safety and Homeland
Security in the handgun office, testified that none of the defendants had applied for or
received a handgun permit. She said it is against the law to carry a loaded handgun in
public without a handgun carry permit.
Officer Brandon Wardlaw of the Knoxville Police Department (“KPD”) testified
that he assisted with interviewing Laquinton Brown on September 10, 2012. According
to Ofc. Wardlaw, although co-defendant Brown was not initially forthcoming, he
eventually claimed that L.P. and Q.T. made gang signs with their hands, so they stopped
the car. Co-defendant Brown got out of the vehicle and approached L.P. and Q.T. and
had them turn their pockets inside out in order to make sure they were not carrying any
weapons. According to co-defendant Brown, the Cobalt arrived, shots were fired, and he
“hit the deck.” He stated that his friends in the Malibu left him there “to die.” After the
gunshots, he heard witnesses say that “somebody got it,” but upon realizing that he was
okay, he ran from the scene and stole a bicycle in order to return to his neighborhood. He
explained that he was not from the east side of town, but rather, his “stomping grounds”
were the west side of Knoxville. Co-defendant Brown maintained throughout the
interview that he was not carrying a weapon on the day of the shooting and that he did
not rob the two boys.
Investigator Chas Terry of the KPD testified that he assisted with Carlos
Campbell‟s interview on October 21, 2012. According to Inv. Terry, co-defendant
Campbell also did not regularly frequent East Knoxville. Co-defendant Campbell
claimed that on September 7, 2012, he drove from “the Ville”3 to a street near Austin
East and stopped near a group of students. Co-defendant Campbell said that, once
stopped, another car pulled up beside him, and shots were fired from that car. He
immediately ducked, and he heard a “bunch” more gunshots. Co-defendant Campbell
never said he had a gun or fired during the shooting.
3
This is apparently a reference to a part of town known as “Mechanicsville.”
-8-
Investigator Amy Jinks of the KPD testified that she interviewed co-defendant
Brown on September 10, 2012, the Defendant on February 9, 2013, and co-defendant
North on March 9, 2013. Based on the interviews, she concluded that co-defendant
Campbell had been driving the Malibu, that co-defendant Brown had been sitting in the
front passenger‟s seat, and that M.W. had been sitting behind co-defendant Campbell.
She also concluded that the Defendant had been driving the Cobalt, that co-defendant
North had been sitting in the front passenger‟s seat, and that “Little Paul” and Mr. King
had been sitting in the back seat.
The Defendant was not initially truthful, according to Inv. Jinks; however, the
Defendant later admitted to shooting in front of the school and told Inv. Jinks that he had
gotten rid of his handgun. Co-defendant North also admitted to Inv. Jinks that he fired a
gun that day. In his interview, co-defendant North said that he had a .357, that he thought
the Defendant had a “little nine,” and that “Monte” or Mr. King also had a 9mm. Co-
defendant North also said that one person in the back seat of the Cobalt had a Glock and
that the other had a Hi-Point. On October 7, 2012, Inv. Jinks showed photograph arrays
to L.P., and he selected co-defendant Brown‟s and M.W.‟s photographs.
On cross-examination, Inv. Jinks confirmed that co-defendant Brown never
admitted to possessing a weapon on the day of the shooting. She also acknowledged that
she never learned the identity of “Little Paul”; however, she did eventually find and
interview Mr. King. Regardless, she had no other proof, except for co-defendant North‟s
statement, that Mr. King or Little Paul were shooters, so they were not prosecuted.
At the conclusion of Inv. Jinks‟ testimony, the State rested its case-in-chief.
Regarding co-defendants Brown and Campbell, the trial court ruled that the State had
failed to present any evidence that they attempted to take property from Q.T. or L.P. and
granted their motions for judgment of acquittal in counts one through four. However, the
court stated that it was going to instruct the jury on the lesser-included offense of
aggravated assault in counts two and four. The trial court denied all of the defendants‟
remaining motions for judgment of acquittal.
The twenty-year-old Defendant testified in his own behalf that he used to attend
Austin East and would go to Vine to teach students how to the play the African drums.
The Defendant admitted that he carried a 9mm handgun at the time of the shooting out of
fear and for his own protection. The Defendant explained that his mother‟s house, his
best friend‟s house, and his car had all been “shot up” in the two weeks preceding this
shooting. He said that, on September 7, 2012, he was driving the Cobalt on Martin
Luther King Jr. Avenue toward Austin East when he stopped because he saw an
illuminated school bus stop sign. He said he saw “somebody robbing somebody” and
recognized Q.T., as someone he used to teach to play drums at Vine, and L.P., because he
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went to school with L.P.‟s sister. The Defendant stated that the robber stepped back
towards the Malibu, that the robber then fired a shot, and that he shot back because the
“little kid looked like . . . he was in danger at that time[.]” He said that he was trying to
“save the kid” and that he was not trying to kill anyone. He stated that the Malibu was
only three feet away from him and that he could have killed the people in the Malibu if he
had wanted to. As he drove away from the scene, shots were still being fired at the
Cobalt.
On cross-examination, the Defendant testified that there had been prior incidents
between him and co-defendants Brown and Campbell and that it was “possible” he did
not like co-defendants Brown and Campbell. He acknowledged that a man named Cuben
Lagrone was convicted of shooting his mother‟s house and noted that Mr. Lagrone
associated with co-defendants Campbell and Brown. After the incident at his mother‟s
house, he procured a weapon from someone on the “street.”
According to the Defendant, co-defendant North was sitting in the front
passenger‟s seat, Mr. King was sitting behind the Defendant, and Paul Issacs was sitting
behind co-defendant North, on the day in question. The Defendant agreed that he
“typically h[u]ng out in East Knoxville” and that he did not expect to see co-defendants
Brown and Campbell in that area. The Defendant stated that he was stopped “side by
side” with the Malibu, that he recognized co-defendant Brown as the man robbing the
boys on sidewalk, and that he also recognized co-defendant Campbell as the driver of the
Malibu. According to the Defendant, Q.T. and L.P. had their hands raised up, and as co-
defendant Brown was “backing up” to the Malibu, the Defendant heard a gunshot. He
said that he fired into the air in order to stop the robbery. He stated that he fired two
shots and that co-defendant North, Mr. Isaacs, and Mr. King also fired their guns. Co-
defendant Brown was shooting at them as they “pulled off,” according to the Defendant.
The Defendant testified that his car had been “shot up” approximately two weeks
before this incident during the shooting at his mother‟s house. The Defendant testified on
recross examination that the hood of the Cobalt and the driver‟s side window were
damaged on this prior occasion. He agreed that the remaining damage to the Cobalt came
from the shootout in front of Austin East.
Co-defendant Brown testified that on September 7, 2012, he was in the Malibu
with co-defendant Campbell but that he did not have a gun. Two other men, whom he
knew at the time as “NY” and “D”, were in the back seat. The four of them were riding
around and “chilling, listening to loud music” when somebody on the sidewalk flagged
them down by flashing a hand “signal for getting attention.” The Malibu came to a stop;
co-defendant Brown got out; and he approached one of the boys on the sidewalk “[t]o
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address the situation.” According to co-defendant Brown, “You got to know somebody
to [flash a hand signal like] that. You don‟t just do that to anybody to strangers, period.”
Co-defendant Brown walked up to one of the boys and asked for his name. The
boy replied with a nickname. Co-defendant Brown identified himself, and the boy asked
where he was from. Realizing that he did not know the boy, he went into “safety mode”
and took “two or three steps back.” He instructed the boys to raise their shirts up and
empty their pockets to make sure they did not have any weapons, and the boy he was
speaking directly with complied. However, the other boy did not do as told. As he was
returning to the Malibu, he heard a gunshot and fell to the ground between the car and the
curb. He heard additional gunshots, and the Malibu drove away, leaving him there. Co-
defendant Brown said, although a bullet “grazed” him, he got up and “took off running.”
He found a bike and rode away.
He maintained that he did not shoot at the Cobalt. Defense counsel asked the co-
defendant if he had ever owned or possessed a firearm prior to September 7, 2012, and he
said no. Co-defendant Brown further averred that he had “no involvement” in ever
shooting “anything” owned or driven by the Defendant.
On cross-examination, co-defendant Brown clarified that he meant that he did not
possess a weapon on September 7, 2012, but agreed that he had possessed a weapon on a
previous occasion, specifically April 15, 2012. At first, he denied carrying a weapon on
August 13, 2012, while riding in a car with Mr. Lagrone, who was his “little cousin.” He
then stated that he could not recall any such car ride when the two of them were carrying
weapons in their laps.
The State played a video for co-defendant Brown and asked if he could be seen or
heard in the video. Co-defendant Brown said he did not see any faces or recognize any
voices. Two weapons are displayed by the two individuals in the video.
Co-defendant Brown testified that he later learned that “NY” was M.W. He could
not recall ever being videotaped by Mr. Lagrone while in the company of M.W. Co-
defendant Brown agreed that he was not a friend of the Defendant‟s.
Upon further cross-examination by the prosecutor, co-defendant Brown again
relayed his version of events. He testified that, on September 7, 2012, his uncle rented
the Malibu for co-defendants Brown and Campbell, and they planned to drive the car to
Gatlinburg to celebrate co-defendant Campbell‟s birthday. They picked up M.W. and
“D”4 and ended up traveling westbound on Martin Luther King Jr. Avenue when they
4
This individual was identified as Devin Williams.
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saw a “crowd of students.” Co-defendant Campbell was driving, co-defendant Brown
was sitting in the front passenger‟s seat, and M.W. was sitting behind co-defendant
Campbell. Co-defendant Brown denied that he “threw up” a Crips gang sign at the
students or that the students made gang signs at him. He said that they were “flagging
[him] down,” so he got out of the car to see if he knew them. He asked them a couple of
questions and realized that he did not know the two young men. He then went into
“aware mode” and made sure the boys did not have anything they could use as weapons.
He turned to leave and heard one gunshot before he fell to the ground. Multiple gunshots
ensued, according to co-defendant Brown. He said no one in the Malibu had a gun.
The State called Ofc. Wardlaw on rebuttal and played a video recorded on August
13, 2012. Ofc. Wardlaw testified that he investigated the shooting of the Defendant‟s
mother‟s house and that, during the course of that investigation, reviewed Mr. Lagrone‟s
cellular telephone. Ofc. Wardlaw said that Mr. Lagrone‟s phone showed frequent contact
between him and co-defendants Campbell and Brown, including pictures and videos.
Ofc. Wardlaw identified the two individuals in the video played for the jury as co-
defendant Brown and Mr. Lagrone. In the video, Mr. Lagrone can be seen driving down
Western Avenue, and as the car passes two or three police cars pulled onto the side of the
road, Mr. Lagrone and co-defendant Brown pull out guns, saying, “There go the boys.
Get ready.” Ofc. Wardlaw said that Mr. Lagrone had a Smith and Wesson handgun and
that co-defendant Brown had “a firearm with an extended magazine.”
After all parties rested their cases, the jury deliberated and found co-defendant
Campbell guilty of two counts of aggravated assault and acquitted him of all remaining
counts. The jury found co-defendant Brown guilty of two counts of aggravated assault,
two counts of attempted voluntary manslaughter as lesser-included offenses of attempted
first degree premeditated murder, and two counts of employing a firearm during the
commission of a dangerous felony. The jury found the Defendant and co-defendant
North guilty of four counts of attempted voluntary manslaughter as lesser-included
offenses of attempted first degree premeditated murder and four counts of employing a
firearm during the commission of a dangerous felony.
Subsequently, the trial court sentenced the Defendant to an effective twenty-two-
year sentence for his convictions. This timely appeal followed.
ANALYSIS
On appeal, the Defendant contends that the trial court erred by refusing to sever
the defendants; that the evidence is insufficient to support his convictions, including a
double jeopardy challenge to his four employing a firearm during the commission of a
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dangerous felony convictions; and that the trial court erred in imposing consecutive
sentencing. We address each in turn.
I. Motion to Sever
The Defendant claims the trial court erred in denying his motion to sever his case
from that of his co-defendants “on the basis of mutually antagonistic defenses, limited
ability . . . to control his own defense, and an impaired ability of the jury to make
individualized determinations of guilt.” The Defendant argues that it was not possible for
him to receive a fair trial “[i]n this atmosphere” because (1) he and his “hostile” co-
defendants Campbell and Brown were charged in the same presentment “even though the
proof at trial was that Campbell and Brown . . . . were in an automobile from which
gunshots were fired at the car in which [the Defendant] was driving”; (2) “there is an
inherent conflict between [himself] and his [hostile] co-defendants” who “inherently have
a different and conflicting posture with respect to potential defenses, motives for cross-
examination of State witnesses, and proof”; and (3) the jury heard “lurid testimony and
[saw] videos about guns, unindicted bad actors, and other crimes that were unrelated to
[the Defendant] but which involved Brown and/or Campbell[.]”
Essentially, he is claiming (1) that the defenses he and his hostile co-defendants
relied upon, as rival gang members shooting at each other, were antagonistic; (2) that the
testimony of the State‟s witnesses and evidence regarding the hostile co-defendants‟ out-
of-court statements were also antagonistic and harmful, leading to a verdict based upon
“guilt by association”; and (3) that he was forced to defend against both the State and the
hostile co-defendants. In response, the State contends that the trial court did not abuse its
discretion in refusing to sever the cases because “[p]roof of every co-defendant‟s role in
the shooting was relevant to establish the motive and criminal responsibility of every
other co-defendant” and because the Defendant “does not identify a single piece of
evidence that would have been excluded in a separate trial.” Additionally, the State
submits that the Defendant has failed to prove “prejudice stemming from the admission
of recorded statements by Brown and Campbell[.]”
A. Procedural Background. Prior to trial, on November 15, 2013, the Defendant
filed a motion to sever his case from the cases of his three co-defendants pursuant to
Tennessee Rule of Criminal Procedure 14(c). As grounds for severance, he advanced a
theory of mutually antagonistic defenses among him and his co-defendants and
contended that severance was necessary for a fair determination of his guilt. Specifically,
the Defendant provided the following facts to support his claim of conflicting defenses:
Co-defendant Campbell must prove that [the Defendant] is guilty to make
his own defense. [Co-defendant] Campbell would defend their [sic]
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charges by denying the fact that he robbed the victims and assert[ing] [the
Defendant] had no legitimate ground to act in self-defense or protect the
victims by shooting [the co-defendants] Campbell and [Brown]. However,
[the Defendant] witnessed [the co-defendant] Campbell rob the victims.
[The Defendant] had a legitimate ground to protect himself and the victims
by shooting at [the hostile] co-defendants. The mutually antagonistic
defenses will violate [the Defendant‟s] right to make a case for a lesser-
included offense.
He continued that, if any of his co-defendants chose to testify on their own behalf at a
joint trial, that testimony “might influence the jury unfavorably against the Defendant”
and possibly “confuse the jury and make the jury unable to form a fair judgment for the
Defendant.” Finally, the Defendant stated that, at a joint trial, he would “be required to
relinquish unfettered control over the defense of the charges” to “counsel representing the
co-defendants[.]”
A brief hearing took place on the motion on December 12, 2013. At that time,
none of his co-defendants joined in his motion, but they did not oppose it either. The
Defendant‟s lawyer stated his intent to rely on his “brief” and not present additional
argument. However, no brief appears in the technical record, only the motion itself. The
State responded to the Defendant‟s severance request by addressing any potential
problems with out-of-court statements by the co-defendants. According to the
prosecutor‟s recount of the various pretrial statements, co-defendant Brown denied
robbing the victims or firing any shots; co-defendant Campbell also denied exchanging
fire and denied “knowing anything at all about a robbery”; the Defendant admitted to
driving the car and “shooting back”; and co-defendant North admitted “to looking for”
co-defendant Campbell and “shooting at them.” The prosecutor stated that she intended
to redact any reference to the co-defendants contained in the various individual
statements and that she was merely seeking to introduce, through the use of these
statements, “the fact that they put themselves there.” She concluded, “[A]t least at this
point in time[, f]rom the statements they gave, we don‟t think there‟s antagonistic
defenses.”
Co-defendant Campbell‟s attorney added that it was likely “self-defense claims”
would be presented by both sides at trial. The prosecutor responded that such a defense
was not a basis for severance and, moreover, that their pretrial statements did not support
such a claim. The trial court stated that it would take the motion under advisement and
issue a ruling “before the end of” the following week. The court‟s minutes on the day the
motion was heard provide that the motion was denied. No further disposition on the
Defendant‟s motion for severance is apparent from the appellate record.
-14-
Just prior to trial, on January 22, 2014, co-defendant Brown filed a motion to sever
his case from that of his three co-defendants, arguing that Bruton v. United States, 391
U.S. 123 (1968), required severance because “the State will attempt to introduce
statements by other [c]o-defendants without the co-defendants actually testifying in this
cause[,]” thereby violating his right to confront the witnesses against him. At the hearing
on the motion which followed on the eve of trial, co-defendant Brown‟s attorney noted
that the court “ha[d] been down this road on this motion before” and denied the motion.
His attorney further explained, “[I]t may actually simply be a standing objection to any
statements that will deny [co-defendant] Brown the right to confront and cross-examine
any witnesses against him.” He concluded by stating that the prosecutor had “taken some
steps to overcome a Bruton issue,” which was “reflected in the [c]ourt‟s order on the
prior severance” motion, but that “there may be an issue on confrontation” still. The
State responded that the various statements had been redacted to exclude any reference to
any co-defendants contained therein and, therefore, that no confrontation problem
existed. However, redacted copies of the co-defendant‟s statements had not been
provided to the defendants at that point in time. The trial court averred that the problem
with this issue was that the precise details of admission were unknown until the
statements were introduced at trial. The trial court then stated,
I would take the General at her word that she‟s removed any references to
those, whether that be [to] have the officer not make any mention of it, or
play the video that‟s been properly redacted, which I assume is probably
what we‟re going to [have] happen.
So what I‟ll do . . . is allow you to renew your motion to sever at the
appropriate time and raise any objections to confrontation that you feel like
should be raised.
On the morning of trial, all four of the defendants were brought into the courtroom
for pretrial motions. Before proceedings began, a bench conference was held. Co-
defendant Brown‟s attorney noted that there were “some family members” present in the
courtroom and expressed his concern for his safety and his client‟s “in this kind of
dynamic[.]” He also discussed the potential seating arrangement, stating that he did not
“want to sit between these two guys[.]” The trial court first offered to bring more officers
into the courtroom but then decided not to because “it‟s a big red sign” to the jury and it
was “too late . . . to put [the officers] in plain clothes.” The Defendant‟s lawyer then
suggested that the trial court “could just talk to everybody about being nice.” It was
noted that the two unfriendly groups of defendants were separated by a “bend . . . in the
table” and that a “Ms. Martin,” who was “young” and “[could] take them,” would be
-15-
placed between the two factions. The trial court thereafter admonished the defendants to
“remain calm” throughout the trial and allow their attorneys to work on their behalf.5
As a pretrial issue, the Defendant‟s attorney again asked that the Defendant‟s case
be severed from his three co-defendants because a joint trial would “be a mess” due to the
fact that two of the co-defendants were adverse to the other two co-defendants: “Our
defense is going to be that we knew they were hostile. We took actions to protect
ourselves and others[.]” His lawyer said that the hostile co-defendants had shot at the
Defendant‟s mother‟s house and also that one of these same co-defendants had been
convicted of attempted first degree murder for shooting into the Defendant‟s friend‟s
house6 just two to three weeks prior to the shooting in this case. The Defendant‟s
attorney said that, as a defense, he wanted to present evidence of these past occurrences
to show what the Defendant‟s “mindset was about these [hostile co-defendants]”—that
the Defendant “knew how dangerous they were” and was fearful of them—and that he
acted in defense of a third person, whom he believed was being robbed, “when he saw
these people on the side of the street[.]” His counsel asserted that presentation of these
facts was necessary for the Defendant to receive a fair trial and that any redaction of this
information from the various statements of the co-defendants would diminish his defense.
According to the Defendant‟s counsel:
I don‟t think we can try this case if they‟re going to try to keep excluding
these things out of the interviews, [be]cause [Inv.] Jinks says many times in
her interviews about shooting cars and shooting at houses and so on, and if
that‟s going to be redacted—then none of—or the evidence that‟s critical to
our defense, is being redacted out of this trial.
The trial court inquired of co-defendant Brown‟s lawyer if he had filed a motion to
exclude prior bad acts on behalf of his client and, if so, which bad acts specifically. Co-
defendant Brown‟s attorney said that co-defendant Campbell had filed such a motion, not
his client, but he reiterated his “concern regarding a joint trial where [his] client [was]
both a defendant and a victim.” However, co-defendant Brown‟s lawyer then spoke of
possible prior bad acts that might be used at trial, noting “some altercation at some gas
station 30 minutes prior to this” and that “[t]here w[ere] also some references that [Q.T.],
one of the alleged victims of the alleged robbery, was beefing with either [the Defendant]
or [co-defendant] North.” Co-defendant Brown‟s counsel summarized, “So you got all
5
There was apparently “some altercation out in the hallway” during the trial, but the jurors were not
aware that anything took place, according to the trial court.
6
This is a reference to co-defendant Campbell‟s actions and convictions for shooting at Devante Nail‟s
residence. See State v. Carlos Campbell, No. E2014-00697-CCA-R3-CD, 2015 WL 6155893 (Tenn.
Crim. App. Oct. 20, 2015), perm. app. denied (Tenn. Apr. 6, 2016) (designated not for citation).
-16-
these prior bad acts that we‟re accused of being involved in, but also all prior bad acts of
some of these other people who are accused of being involved in, and it‟s our request that
all those prior bad acts be excluded.” Co-defendant Brown‟s attorney noted that the State
had not provided any Tennessee Rule of Evidence 404(b) notice of its intention to use
prior bad act evidence against any of the defendants, but before any such evidence was
offered at trial, he was preliminarily requesting a hearing on its admissibility.
Counsel for co-defendant Campbell explained that he did not file a motion in
limine to exclude prior bad act evidence or evidence of prior convictions “because that‟s
the rules of evidence” and he “didn‟t think [he] needed to.” Co-defendant Campbell‟s
attorney stated that the Defendant‟s lawyer “raise[d] a good point” though because it was
his client‟s position that Campbell‟s co-defendants could not introduce evidence of
Campbell‟s convictions unless Campbell testified. According to co-defendant
Campbell‟s attorney: “If the [S]tate can‟t do it, neither can a co-defendant. Secondly,
mentioning [Campbell‟s] statement without [Campbell‟s] taking the stand, that‟s hearsay.
So what [the Defendant] is saying his defense is, it—you know, the rules of evidence
wouldn‟t allow it, and we object strongly.” He agreed that excluding such evidence of
co-defendant Campbell‟s prior bad acts would deprive the Defendant of his defense.
Turning to the fourth co-defendant, co-defendant North‟s lawyer stated his
agreement with the Defendant‟s lawyer‟s request for a severance, positing that this
situation, where all four defendants were both defendants and victims depending on the
specific count of the indictment being examined, was confusing to present at a single
trial. Co-defendant North‟s attorney opined,
It‟s going to appear to the jury it‟s the [S]tate against all four of us, which it
is. Yet it‟s these two against these two.
They‟re the victims. They‟re the defendants.
They‟re the victims. They‟re the defendants.
All four are the defendants against the two minors. . . .
. . . [I]t‟s going to be extremely confusing where they‟re robbing
[Q.T. and L.P.]. We‟re charged with the attempted murder of [L.P.], and
it‟s—it‟s an appearance of us working together, where we‟re not. We‟re
forced here together.
-17-
Co-defendant North‟s counsel did not want to appear as if he was working with co-
defendants Campbell and Brown because co-defendant North was attempting to blame
the cause of the shooting on those two hostile co-defendants.
The Defendant‟s attorney thereafter raised one more point to support his argument
for severance:
Just redacting the witnesses‟ statements doesn‟t do it. [Inv. Jinks]
investigated all of this. She investigated these drive-by shootings. She
knows about the robbery 30 minutes ahead of time. She says it on the
videos. We‟d have to redact. I would be barred from asking her questions
about investigation of a co-defendant if we‟d have to . . . stay together on
this thing.
The Defendant‟s counsel opined that Inv. Jinks “had the best information” about these
prior bad acts committed by the other two hostile co-defendants and that, to effectively
present a defense, the Defendant “ha[d] to be able to demonstrate to the jury what he
kn[ew] when this took place.” Co-defendant North‟s attorney noted his concern that they
still had not been provided with the redacted statements that the State intended to present
at trial and that it was likely he may ask inappropriate questions about the contents of the
statements based upon his trial preparation.
The State replied that co-defendant Brown denied the “previous aggravated
robbery” that Inv. Jinks asked him about during questioning and, therefore, any testimony
by her on the subject amounted to inadmissible hearsay. Furthermore, the prosecutor
clarified that Inv. Jinks was stating that co-defendant Brown “was beefing with [co-
defendant] North and [the Defendant],” not that Q.T. “was beefing” with any of the
defendants, so her investigation on this topic was also inadmissible hearsay. The State
continued,
[I]f the defense wants to introduce some prior bad acts that one of these
defendants did, . . . they‟re going to have to put on direct evidence. So I
guess the defendant would—if they‟re going to assert self-defense, I would
think that the defendant would have to take the witness stand to explain to
the jury why they were in fear of this person.
. . . I think to allow them to introduce their statements that they made
to the investigators, that‟s going to be hearsay.
In conclusion, the prosecutor requested that the severance be denied.
-18-
The trial court asked the Defendant‟s lawyer how he intended to introduce
evidence of these prior bad acts. He replied that he intended to ask Inv. Jinks on cross-
examination about her investigation of the co-defendants. The trial court stated that this
line of questioning of Inv. Jinks was inadmissible hearsay but that the Defendant could
possibly present witnesses “who said . . . they were robbed by them” and so forth. The
Defendant‟s lawyer stated he was asking for a severance “so [the defense] could . . . bring
these other witnesses in.” The trial court noted that it was the morning of trial and asked
which witnesses the Defendant‟s attorney intended to call that would be prevented from
testifying if the defendants were jointly tried. The Defendant‟s attorney indicated that
“there are witnesses out there” and that one was present in the courtroom—the
Defendant‟s mother, whose house was shot at by the other two hostile co-defendants.
Co-defendant Brown‟s lawyer noted his objection to testimony of this type “[u]nder prior
bad acts” and the Confrontation Clause and asserted “this is kind of part and parcel of the
severance issue.” Co-defendant Brown‟s attorney further asserted that the interviews of
the Defendant and co-defendants North and Campbell were hearsay and “a confrontation
issue as well.”
The trial court told the Defendant‟s attorney to call the Defendant‟s mother as a
witness. The Defendant‟s attorney indicated that the Defendant‟s mother was scared and
did not want to testify, stating, “That‟s part of the problem we‟re having right here.” The
Defendant‟s lawyer further noted that he had not prepared her to testify. The trial court
then indicated that it had heard this motion once before and that there was no proof
presented at the separate hearing on that previous motion that the two groups of co-
defendants had antagonistic defenses—“other than saying that these two guys were mad
at our two guys.” The trial court said, however, that if there had been “proof at that time
that would have been admissible and relevant toward a self-defense argument, that
certainly might have been relevant” to the issue of severance.
After conferring with the Defendant, the Defendant‟s attorney informed the trial
court that he was not going to call the Defendant‟s mother to testify and that there was no
other evidence he intended to present at that time. Co-defendant Campbell‟s counsel
reiterated his concern that the State not be allowed to mention any of Campbell‟s
convictions and averred that the “same rule applies to other people in the courtroom.”
The prosecutor noted that there was no evidence in the record connecting Devante Nail to
the Defendant and clarified that the person convicted of shooting at the Defendant‟s
mother‟s house was Mr. Lagrone, who was not a co-defendant in these proceedings.7 The
trial court ruled that neither the State nor any of the defendants‟ counsel could discuss
7
While this is true, it over simplifies the matter. As noted in the factual background of the opinion, a
cell phone video recording was played at trial showing co-defendant Brown riding in a car with Mr.
Lagrone, and both men were displaying weapons and speaking in an aggressive manner. It was also
testified to at trial that Mr. Lagrone associated with co-defendants Campbell and Brown.
-19-
any prior bad acts of the four men “other than this alleged shooting” at trial without first
requesting a hearing outside the presence of the jury on the prior bad act.
The parties then discussed the bullet holes in the Cobalt. Co-defendant Brown‟s
lawyer argued that testimony about previous bullet holes in the car could lead to evidence
of prior bad acts and was going to be “very confusing” for the jury. Brown‟s attorney
explained that co-defendant North had given a statement to Inv. Jinks that the Cobalt had
“been shot up many times before on different occasions,” thereby creating some question
whether the bullets holes came from the September 7, 2012 shooting or some previous
shooting. Brown‟s counsel then asked that the trial court exclude any “photographs or
evidence that would relate to holes being in” the Cobalt because there was “no correlation
between those bullet holes on the right—passenger side and [co]defendant Brown[‟s]
shooting” at the Cobalt on September 7. However, the trial court found the evidence of
bullet hole damage to the Cobalt to be “highly relevant” and not “unfairly prejudicial”
because the vehicle was involved in the alleged shooting. Brown‟s attorney reiterated his
concern that such testimony and evidence might “be subject to a prior bad acts deal
altogether as well under 404(b).” Co-defendant North‟s attorney noted a possible Bruton
issue, “[A]gain, we run into a problem of they‟re unable to cross-examine [co-defendant]
North regarding this. So you have [co-defendant] North or whoever giving a statement to
the investigator [about the condition of the car] that the investigator‟s going to relate into
trial that none of the others can cross-examine on,” and “it‟s going to be very confusing
for the jury[.]”
Co-defendant Brown‟s lawyer then requested that any “gang reference[s]” be
excluded from trial. The prosecutor stated that, in order to tell the complete story, she
needed to be able to present testimony about the two boys‟ allegedly throwing gang signs
to show why co-defendants Brown and Campbell stopped the car and co-defendant
Brown approached the boys and identified himself as a member of a particular gang.
However, the prosecutor said she did not intend to introduce evidence that the men were
in rival gangs. The trial court ruled that there was to be no reference at trial of this being
“a gang shooting”—of members of one gang shooting at members of another gang.
After a recess, the trial court found on the severance issue as follows:
[S]ince there hasn‟t been any evidence really presented . . . up to this
point that the [c]ourt can rely on in saying that it‟d be admissible and would
mandate a severance for a fair determination, the [c]ourt‟s going to deny the
motion now. However, it‟s possible during trial that things can develop in
such a way in order to promote a fair determination and for the trier of fact
-20-
to be able to distinguish the evidence and apply the law intelligently, we
may have to sever it, but we‟re going to see how it goes.
At trial, the defendants were provided a copy of the redacted statements that the
State intended to use as evidence, and the following discussion ensued at a jury-out
hearing. Co-defendant Brown‟s attorney asked if a limiting instruction was going to be
issued on how the jury was to consider the various statements—an instruction that was
referenced by the State during a prior severance motion hearing.8 Additionally, the
Defendant‟s lawyer objected to the redacted version of the Defendant‟s statement, asking
for the entire version to be played. The trial court determined that the statements as
redacted did not raise any Bruton issues, and the State would, therefore, be allowed to
play the portions presented. The trial court stated its intent “to continue to deny the
severance at this time,” reasoning,
I‟ve never seen that whole statement. You know, in these severance
motions that we‟ve had, nobody‟s gotten up here and testified and said, this
is why I want to testify to this, or this is the evidence that should come in
my case, but not the others. That is what makes a severance a severance is
when testimony is admissible in one case, but not the others, and so, you
know, he can‟t bring in his own statement.
The Defendant‟s lawyer agreed that he could not play the entire recording at the
Defendant‟s trial if he were tried alone.9 His attorney continued, “But my objection is
that if . . . they were to play [it], then there would be facts that would demonstrate a
severance.” The trial court noted that the State did not intend to introduce anything other
than the redacted versions at that time, and trial continued.
After the State rested its case-in-chief, the parties discussed the jury instructions.
The State asked for the “natural and probable consequences” instruction based upon the
actions of co-defendant Campbell‟s letting co-defendant Brown out of the car and “for
what Brown does when he gets out of the car,” asserting,
[I]f [co-defendant] Campbell knew that by stopping and letting [co-
defendant] Brown out to engage these two guys on there, that [co-
defendant] Campbell, if he‟s criminally responsible for that offense
[aggravated assault], would be also criminally responsible for any other
8
The State agreed to a limiting Bruton instruction, but it appears that the trial court did not think it was
necessary based on its decision that no violation of Bruton occurred. Such an instruction was never
issued to the jury.
9
However, without the entire recording, we are unable to assess the accuracy of this concession.
-21-
offense that occurred as a . . . natural and probable consequence of the
original offense [i.e., attempted first degree murder].
Co-defendant North‟s attorney noted in response, “And this also is where the severance
problem comes in where this is going to—you‟re not going to be able to delineate and say
that just applies to them and doesn‟t apply to us.” Co-defendant Brown‟s counsel also
requested that the instruction not apply to co-defendant Brown. However, the court ruled
that it was “an accurate statement of the law[,]” that it did not “apply to one person or the
other” but to “everybody in this jurisdiction,” and that the parties were free to construct
their arguments as they saw fit concerning the instruction. The parties also debated over
whether Tennessee Code Annotated section 39-11-40710 should be charged, with both the
Defendant‟s lawyer and co-defendant Campbell‟s attorney lodging objections, noting “all
the different issues like severance, and things like that.” However, the trial court chose to
charge it anyway based upon the involvement of Mr. Issacs and Mr. King.
At the end of direct examination of co-defendant Brown, co-defendant Campbell‟s
attorney asked if it was “too late to move for a severance” because he was “very
concerned” about the prior bad act testimony from Brown which possibly implicated co-
defendant Campbell. The prosecutor stated she did not intend on asking co-defendant
Brown about the prior shooting on cross-examination. Co-defendant Campbell‟s counsel
reiterated his apprehension before cross-examination that co-defendant Brown could not
“open the door” to prior bad acts by co-defendant Campbell. The trial court stated that it
would have to see how the questioning of co-defendant Brown developed during cross-
examination before making any ruling. No further objection was lodged during co-
defendant Brown‟s testimony.
B. Principles of Law. The practice of trying co-defendants in a single trial is
“aimed at achieving improved judicial economy and efficiency.” Tenn. R. Crim. P. 8,
Advisory Comm‟n Cmts. As relevant in this case, Tennessee Rule of Criminal Procedure
8(c)(3)(b) permits joinder of defendants when conspiracy is not an alleged offense but
when the offenses charged are “so closely connected in time, place, and occasion that it
would be difficult to separate proof of one charge from proof of the others.” Once
properly joined, Rule 14 of the Tennessee Rules of Criminal Procedure establishes the
10
This section provides, in pertinent part, as follows:
In a prosecution in which a person‟s criminal responsibility is based upon the conduct of
another, the person may be convicted on proof of commission of the offense and that the
person was a party to or facilitated its commission, and it is no defense that . . . [t]he
person for whose conduct the defendant is criminally responsible has been acquitted, has
not been prosecuted or convicted, has been convicted of a different offense or different
type or class of offense, or is immune from prosecution.
-22-
guidelines for severance of defendants. Rule 14(c)(1) states, “If the defendant moves for
a severance because an out-of-court statement of a co-defendant makes reference to the
defendant but is not admissible against the defendant, the court shall determine whether
the State intends to offer the statement into evidence at trial.” Rule 14(c)(2)(i) states that
the trial court shall sever co-defendants‟ cases before trial if “it is deemed necessary to
protect a defendant‟s right to a speedy trial or it is deemed appropriate to promote a fair
determination of the guilt or innocence of one or more defendants.” Similarly, Rule
14(c)(2)(ii) provides that a court shall grant severance of co-defendants‟ cases during trial
if “it is deemed necessary to achieve a fair determination of the guilt or innocence of one
or more defendants.”
A defendant usually requests a severance in two types of cases: (1) the existence
of antagonistic defenses, see, e. g., Morrow v. State, 82 Tenn. 475 (1884); Roach v. State,
45 Tenn. 39 (1867), or (2) where one of the defendants has made a confession or
admission that implicates another co-defendant that the State seeks to introduce at trial,
see, e. g., Rounds v. State, 106 S.W.2d 212 (Tenn. 1937); Strady v. State, 45 Tenn. 300
(1868); Hester v. State, 450 S.W.2d 609 (Tenn. Crim. App. 1969). Dorsey v. State, 568
S.W.2d 639, 642 (Tenn. 1978). The law on a motion for severance includes that “[t]he
grant or denial of a motion for severance of defendants is a matter that rests within the
sound discretion of the trial court, and [the reviewing court] will not disturb the trial
court‟s ruling absent clear abuse of that discretion.” State v. Dotson, 254 S.W.3d 378,
390 (Tenn. 2008) (citing Hunter v. State, 440 S.W.2d 1, 6 (Tenn. 1969); State v. Burton,
751 S.W.2d 440, 447 (Tenn. Crim. App. 1988)). “The test is whether or not the
defendant was clearly prejudiced in his defense by being jointly tried with his
codefendant.” State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000) (citing
State v. Wiseman, 643 S.W.2d 354 (Tenn. Crim. App. 1982)); see also Dotson, 254
S.W.3d at 390 (quoting Hunter, 440 S.W.2d at 6). “The record must demonstrate that
„the defendant was clearly prejudiced to the point that the trial court‟s discretion ended
and the granting of [a] severance became a judicial duty‟ before an accused is entitled to
a reversal of his conviction.” Burton, 751 S.W.2d at 447 (quoting Hunter, 440 S.W.2d at
6); see also State v. Price, 46 S.W.3d 785, 803 (Tenn. Crim. App. 2000).
Regarding antagonistic defenses, this court has stated that the mere fact that there
may be more damaging proof against one defendant as opposed to the other, does not
require a severance. State v. Meeks, 867 S.W.2d 361, 369 (Tenn. Crim. App. 1993); see
also State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000) (“Disparity in the
evidence against the defendants is not alone sufficient to warrant the grant of a
severance.”) (citation omitted). Stated another way, “the speculative risk of a spill-over
effect” does not justify a conclusion that a joint trial was an abuse of discretion. Meeks,
867 S.W.2d at 369. Furthermore, “[w]hile „mutually antagonistic‟ defenses may mandate
severance in some circumstances, they are not prejudicial per se.” State v. Ensley, 956
-23-
S.W.2d 502, 509 (Tenn. Crim. App. 1996) (quoting State v. Russell David Farmer, et al.,
No. 03C01-9206-CR-00196, 1993 WL 247907, at *4 (Tenn. Crim. App. July 8, 1993))
(internal quotation marks omitted); see also Zafiro v. United States, 506 U.S. 534, 537-38
(1993). Due to the difficulty in establishing prejudice, relatively few convictions have
been reversed for failure to sever on these grounds. Ensley, 956 S.W.2d at 509 (citing
Farmer, 1993 WL 247907, at *4). The test is whether “there is a serious risk that a joint
trial would compromise a specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539.
“Mere hostility between defendants, attempts to cast the blame for the offense on each
other, or other fingerpointing and tattling will not, standing alone, justify the granting of a
severance on the ground the defendants‟ respective defenses are antagonistic.” Farmer,
1993 WL 247907, at *4 (quoting United States v. Arruda, 715 F.2d 671, 679 (1st Cir.
1983)) (internal quotation marks omitted). “The defendant must go further and establish
that a joint trial will result in „compelling prejudice,‟ against which the trial court cannot
protect, so that a fair trial cannot be had.” Ensley, 956 S.W.2d at 509 (quoting Farmer,
1993 WL 247907, at *4) (internal quotation marks omitted); see also United States v.
Horton, 705 F.2d 1414, 1417 (5th Cir. 1983).
Turning to the second type of case, in Bruton v. United States, the United States
Supreme Court held that admission of a statement of a non-testifying co-defendant which
incriminates the complaining defendant violates the complaining defendant‟s
constitutional right of cross-examination guaranteed by the Confrontation Clause of the
Sixth Amendment. 391 U.S. 123, 126 (1968); see U.S. Const. amend. VI; Tenn. Const.
art. 1, § 9; State v. Elliot, 524 S.W.2d 473, 477 (Tenn. 1975); Smart v. State, 544 S.W.2d
109, 111-12 (Tenn. Crim. App. 1976). The Tennessee Supreme Court has clarified,
“[T]he rule in Bruton does not apply to confessions which [d]o not implicate the non-
confessing defendant, nor does it apply to confessions from which „all references to the
moving defendant have been effectively deleted, provided that, as deleted, the confession
will not prejudice the moving defendant.‟” Id. (quoting ABA Standards Relating to
Joinder and Severance § 2.3(a)(ii) (1967)). The use of a redacted statement is acceptable,
provided the redaction does not alter the substance of the statement or remove
information that is substantially exculpatory. Denton v. State, 945 S.W.2d 793, 801-02
(Tenn. Crim. App. 1996); see also Tenn. R. Crim. P. 14(c)(1)(B). “To hold otherwise
would be to render impossible the use of a redacted statement in joint trials involving a
Bruton situation.” Denton, 945 S.W.2d at 801 (citation omitted). However, we note that
the provisions of Rule 14(c)(1)(B) can be at odds with the completeness rule, which
provides that, if the State introduces into evidence only a portion of the defendant‟s
confession at trial, the defendant “is normally entitled to prove the whole of what was
said in order for the jury to be able to weigh the whole statement” unless the confession
“involv[es] a non-testifying co-defendant.” Id. (citing Curry v. State, 397 S.W.2d 179,
-24-
182 (Tenn. 1965); State v. Brett Patterson, No. 88-245-III, 1989 WL 147404, at *6
(Tenn. Crim. App. Dec. 8, 1989)).
C. Application of Facts and Law. As noted above, relatively few convictions
have been reversed for failure to sever on grounds of mutually antagonistic defenses due
to the difficulty in establishing prejudice. See Ensley, 956 S.W.2d at 509. However, this
is not say that it is impossible for a severance to be granted when the defendants raise
mutually antagonistic defenses or a bright-line rule would be created. Under Rule
14(c)(2), the relevant inquiry for when a trial court shall grant a severance based upon a
claim of mutually antagonistic defenses is whether a separate trial is appropriate (pre-
trial) or necessary (during trial) to advance “a fair determination of the guilt or innocence
of one or more defendants.” See Tenn. R. Crim. P. 14(c)(2).
We are unable to find any jurisprudence in this State delineating the “fair
determination” language of Rule 14(c)(2), but we presume it to be a reference to the oft-
cited concept of fundamental fairness. Our supreme court recently discussed what is
meant by the phrase “fairness safeguards” in the context of the post-conviction statute of
limitations.11 See Bush v. State, 428 S.W.3d 1, 18 (Tenn. 2014). The Bush court
determined that “fairness safeguards” in that context referred “to criminal procedural
rules designed to guard against defendants being denied their due process right to a
fundamentally fair adjudication of guilt.” Id. (emphasis added). “Due process itself
„embodies the concepts of fundamental fairness,‟ justice, and „the community‟s sense of
fair play and decency.‟” Id. (quoting Whitehead v. State, 402 S.W.3d 615, 623 (Tenn.
2013)). Moreover, “[d]ue process is flexible and calls for such procedural protections as
the particular situation demands[,]” and “[t]he flexible nature of procedural due process
requires an imprecise definition because due process embodies the concept of
fundamental fairness.” Whitehead, 402 S.W.3d at 623 (quoting Seals v. State, 23 S.W.3d
272, 277 (Tenn. 2000)) (internal quotations marks omitted and emphasis added). We
conclude that the same rationale holds true for the “fair determination” language of Rule
14(c)(2).
In Zafiro, the United States Supreme Court, interpreting the Federal Rules of
Criminal Procedure, held,
We believe that, when defendants properly have been joined under
Rule 8(b), a district court should grant a severance under Rule 14 only if
11
Tennessee Code Annotated section 40-30-122 states that a new rule of constitutional criminal law can
be applied retroactively, despite the one-year deadline for filing for post-conviction relief, if “the new rule
places primary, private individual conduct beyond the power of the criminal law-making authority to
proscribe” or if the new rule “requires the observance of fairness safeguards that are implicit in the
concept of ordered liberty.” See also Tenn. Code Ann. § 40-30-102(b)(1).
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there is a serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making a reliable
judgment about guilt or innocence.
506 U.S. at 539. We find guidance in federal cases interpreting the “reliable judgment”
exception espoused in Zafiro.
Interpreting Zafiro, the Eleventh Circuit addressed a defendant‟s claim of mutually
antagonistic defenses, initially noting that mutually antagonistic defenses are not
prejudicial per se. See State v. Blankenship. 382 F.3d 1110, 1122 (11th Cir. 2004). The
circuit court then discussed when such a claim may garner relief, making the following
observations:
[I]t seems that courts have applied this [reliable judgment] exception in
primarily three situations. While this list appears to be fairly
comprehensive, it is quite possible that other factors could also prevent a
jury from “making a reliable judgment.”
First, severance is mandated where compelling evidence that is not
admissible against one or more of the co-defendants is to be introduced
against another co-defendant. This is a concern, for example, “where the . .
. gruesome evidence against one defendant overwhelms the de minimus
evidence against the co-defendant(s),” United States v. Gray, 173 F.
Supp.2d 1 (D.D.C. 2001); see, e.g., United States v. Sampol, 636 F.2d 621
(D.C. Cir. 1980) (mandating severance where limiting instructions “could
not provide their intended protection against prejudice in the face of this
emotional evidence”).
In general, the strong presumption is that jurors are able to
compartmentalize evidence by respecting limiting instructions specifying
the defendants against whom the evidence may be considered. . . .
[Nonetheless, s]everance must be granted where evidence is admissible
against only one defendant only where that evidence is so convincing that
not even limiting instructions are likely to prevent the jury from
considering the evidence against all co-defendants. “The presumption that
a jury will adhere to a limiting instruction evaporates where there is an
overwhelming probability that the jury will be unable to follow the court‟s
instructions and the evidence is devastating to the defense.” United States
v. Jones, 16 F.3d 487, 493 (2d Cir. 1994); see also United States v. Baker,
98 F.3d 330 (8th Cir. 1996) (reversing conviction for failure to sever where
“very prejudicial and highly inflammatory” evidence admissible against
-26-
only one co-defendant was introduced because “the risk of substantial
prejudice from the spillover effect . . . was too high to be cured by less
drastic measures”); United States v. Briscoe, 896 F.2d 1476, 1498 (7th Cir.
1990) (“Generally, a cautionary instruction will be sufficient to cure any
unfair prejudice. . . . [H]owever, if the evidence creates an unacceptably
high inference of wrongdoing against another defendant, the district court
should either exclude the evidence or sever the trials.”). In such cases, the
better course of action is to have separate trials in order to confine such
powerful evidence to the defendants against whom it may properly be used.
The “reliable judgment” exception also applies in an extremely
narrow range of cases in which the sheer number of defendants and charges
with different standards of proof and culpability, along with the massive
volume of evidence, makes it nearly impossible for a jury to juggle
everything properly and assess the guilt or innocence of each defendant
independently. See United States v. Cassano, 132 F.3d 646, 651 (11th Cir.
1998) (“A defendant satisfies the compelling prejudice requirement by
showing that the jury was unable to sift through the evidence and make an
individualized determination as to each defendant.” (quotation marks and
citation omitted)). This aspect of the “reliable judgment” exception is
epitomized by United States v. Gallo, in which the district court observed,
This case is 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. And even where
jurors would at first attempt to heed the judge‟s admonitions,
they could hardly be expected to retain such precise
discriminations weeks and months down the line, when they
retire to deliberate on the basis of a warehouse of diverse
evidence.
668 F. Supp. 736, 753 (E.D.N.Y. 1987); see also Sampol, 636 F.2d at 647
(reversing conviction due to failure to grant a severance where “[t]here was
never the clear distinction between the different defendants and the
evidence against each of them that is called for by the Constitution‟s
guarantee of a fair trial”); cf. United States v. Lotsch, 102 F.2d 35, 36 (2d
Cir.1939) (Hand, J.) (holding that severance was not required if “there was
no reasonable ground for thinking that the jury could not keep separate
what was relevant to each [defendant]”).
-27-
Finally, severance is required under Zafiro where one defendant is
being charged with a crime that, while somehow related to the other
defendants or their overall criminal scheme, is significantly different from
those of the other defendants.
Blankenship. 382 F.3d at 1123-25. To some extent, all three situations are present here.
While the trial court, in limine, stated that this was not to become a “gang
shooting” case, after reading the transcript, we believe that this is very likely what
happened. There was considerable testimony that these four defendants were in rival
gangs—the testimony about gang signs being thrown; co-defendant Brown‟s identifying
his gang affiliation when he approached Q.T. and L.P.; testimony regarding what parts of
town these men did and did not frequent; testimony that a few of the bullet holes in the
Cobalt came from a prior incident; and prior bad act evidence involving the same groups
of men. A substantial possibility existed that the jury unjustifiably inferred that this
conflict alone demonstrated that both groups of men were guilty.
Co-defendant Brown‟s counsel even requested for the courtroom furniture to be
moved around because he did not want to sit between the two groups. An altercation of
some kind occurred in the hallway during trial, although the trial judge was adamant that
the jury did not see anything. Additionally, there was some indication that the
Defendant‟s mother may have testified in a separate trial, but she was too scared to do so
in the courtroom with all four men present. The joint trial of all four co-defendants
clearly created a hostile atmosphere.
Additionally, the State did introduce all four of the defendants‟ statements at trial,
although they were redacted to remove any references therein to other co-defendants.
However, the Defendant frequently stated his desire to have his whole statement entered
into evidence, asserting that the entire interview was exculpatory in nature. The rule of
completeness could have possibly come into play here, but as the trial court noted, an
unredacted recording was never provided and does not appear in the record on appeal.
However, we can safely conclude that statements redacted from the Defendant‟s
interview were harmful to his hostile co-defendants.
Regardless, two of the four defendants chose to testify on their own behalf at
trial—one from each faction. Co-defendant Brown‟s testimony led to the introduction of
a highly inflammatory video, showing Brown and his cohorts as weapon-toting mischief-
makers. The video, coupled with the Defendant‟s testimony about people shooting at his
mother‟s house and a friend‟s house, allowed a highly prejudicial inference—that these
four men were in constant combat with one another and were haphazardly wielding
firearms around town. The trial court did give a limiting instruction concerning the
-28-
video—that the video was “intended only for the purpose of you judging the credibility of
Mr. Brown‟s testimony concerning whether or not he had a weapon before.” Regardless,
the video created an unacceptably high inference of wrongdoing, and the evidence was
only admissible against co-defendant Brown. Given this, there was a risk of substantial
prejudice from the spillover effect.
Most importantly, all four men are both defendants and victims depending upon
which count of the indictment is being addressed. This method of charging, where all
four defendants are both defendants and victims at some point, inherently creates some
inference of bad act evidence, and it is a practice wrought with the potential for
constitutional error. Notably, all four men are never charged in a single count together.
The Defendant‟s claim of self-defense or defense of others was undermined remarkably
by the trial court‟s granting a judgment of acquittal on all robbery counts pertaining to the
hostile co-defendants Campbell and Brown. The jury was left with the Defendant‟s
argument that he was defending the boys on the sidewalk from a robbery, but the trial
court told the jury as a matter of law that no robbery took place. The co-defendants‟
attorneys took aggressive, adversarial stances against one another, in effect becoming
second, third, and fourth prosecutors, and eliciting “damaging evidence” not by the State,
but by the co-defendants. The jury‟s hearing both defenses made neither defense
believable.
Moreover, the parties debated over which instructions should be submitted to the
jury. Although the natural and probable consequences instruction came into play based
upon co-defendant Campbell‟s level of culpability, the instruction was not limited in any
way and both counsel for North and Brown objected. Also, counsel for both the
Defendant and co-defendant Brown argued that an instruction on Tennessee Code
Annotated section 39-11-407 would be confusing to the jury given the issues and number
of parties involved, but the trial court chose to give it anyway based upon the presence of
Mr. Issacs and Mr. King. The trial court did appropriately charge the jury that they were
to give separate consideration to each defendant; however, we believe the prejudice to the
defendants and the mental gymnastics required by the jury were simply too great to be
overcome by this instruction. We conclude that this case, “in which the sheer number of
defendants and charges with different standards of proof and culpability, along with the
massive volume of evidence,” made “it nearly impossible for a jury to juggle everything
properly and assess the guilt or innocence of each defendant independently.” Blakenship,
382 F.3d at 1124-25.
All of these factors coupled together require us to conclude the Defendant was
“clearly prejudiced” by the antagonistic nature of the defenses presented at the joint trial.
A severance was appropriate to promote a fair determination of the guilt or innocence of
the Defendant as mandated by Tennessee Rule of Criminal Procedure 14(c)(2). That is
-29-
not to say that we think all four men needed to be tried separately, but at a minimum, the
hostile groups should have been divided. Accordingly, we hold that the trial court
committed reversible error by failing to sever the Defendant‟s case either before or
during the trial. Despite our conclusion that this case must be reversed and remanded for
a new trial, we will address the remainder of the Defendant‟s arguments so as not to
pretermit his remaining issues. See State v. Parris, 236 S.W.3d 173, 189 (Tenn. Crim.
App. 2007) (following a similar procedure).
II. Sufficiency of the Evidence
The Defendant argues that there was insufficient evidence to support all of his
attempted voluntary manslaughter and employing a firearm during the commission of a
dangerous felony convictions. An appellate court‟s standard of review when a defendant
questions the sufficiency of the evidence on appeal is “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979). This court does not reweigh the evidence; rather, it
presumes that the jury has resolved all conflicts in the testimony and drawn all reasonable
inferences from the evidence in favor of the State. See State v. Sheffield, 676 S.W.2d
542, 547 (Tenn. 1984); State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions
regarding witness credibility, conflicts in testimony, and the weight and value to be given
to evidence were resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997).
A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury‟s verdict.” Id.; State v. Tuggle, 639 S.W.2d
913, 914 (Tenn. 1982). “This [standard] applies to findings of guilt based upon direct
evidence, circumstantial evidence, or a combination of [both] direct and circumstantial
evidence.” State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). The
standard of proof is the same, whether the evidence is direct or circumstantial. State v.
Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011). Likewise, appellate review of the
convicting evidence “is the same whether the conviction is based upon direct or
circumstantial evidence.” Id. (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn.
2009)). The duty of this court “on appeal of a conviction is not to contemplate all
plausible inferences in the [d]efendant‟s favor, but to draw all reasonable inferences from
the evidence in favor of the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).
A. Attempted Voluntary Manslaughter. The Defendant challenges the
sufficiency of the evidence supporting his four convictions for attempted voluntary
manslaughter (named victims in counts 11, 12, 13, 14, respectively—L.P., co-defendant
-30-
Brown, co-defendant Campbell, and M.W.). First, he argues that the doctrine of
transferred intent cannot support his conviction for the attempted voluntary manslaughter
of L.P. Next, he contends “that there was insufficient proof to convict him of more than
two counts of attempted voluntary manslaughter, based on lack of proof that he shot his
handgun more than twice.”
Voluntary manslaughter is defined as “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.” Tenn. Code Ann. § 39-13-211(a). A
person acts intentionally with respect to the nature of the conduct or to a result of the
conduct when it is the person‟s conscious objective or desire to engage in the conduct or
cause the result. Tenn. Code Ann. § 39-11-302(a). A person acts knowingly with respect
to a result of the person‟s conduct when the person is aware that the conduct is
reasonably certain to cause the result. Tenn. Code Ann. § 39-11-302(b). Voluntary
manslaughter is a result-of-conduct offense. State v. Page, 81 S.W.3d 781, 788 (Tenn.
Crim. App. 2002). Furthermore, the jury is responsible for reviewing the evidence to
determine whether it supports a finding of adequate provocation. State v. Williams, 38
S.W.3d 532, 539 (Tenn. 2001).
Relevant to this case, a person commits criminal attempt when the person, acting
with the kind of culpability otherwise required for the offense, “[a]cts with intent to cause
a result that is an element of the offense, and believes the conduct will cause the result
without further conduct on the person‟s part[.]” Tenn. Code Ann. § 39-12-101(a)(2). If
an offense is defined in terms of causing a certain result, an individual commits an
attempt at the point when the individual has done everything believed necessary to
accomplish the intended criminal result. Tenn. Code Ann. § 39-12-101, Sentencing
Comm‟n Cmts.
The State also pursued several of the Defendant‟s convictions by employing a
theory of criminal responsibility. “A person is criminally responsible as a party to an
offense if the offense is committed by the person‟s own conduct, by the conduct of
another for which the person is criminally responsible, or by both.” Tenn. Code Ann. §
39-11-401(a). Further, a person is criminally responsible for an offense committed by the
conduct of another, if “[a]cting with intent to promote or assist the commission of the
offense, or to benefit in the proceeds or results of the offense, the person solicits, directs,
aids, or attempts to aid another person to commit the offense[.]” Tenn. Code Ann. § 39-
11-402(2). While not a separate crime, criminal responsibility is a theory by which the
State may alternatively establish guilt based on the conduct of another. Dorantes, 331
S.W.3d at 386 (citing State v. Lemacks, 996 S.W.2d 166, 170 (Tenn. 1999)). No specific
act or deed needs to be demonstrated by the State, and furthermore, the presence and
companionship of an accused with the offender before and after the offense are
-31-
circumstances from which participation in the crime may be inferred. State v. Ball, 973
S.W.2d 288, 293 (Tenn. Crim. App. 1998). However, to be convicted, “the evidence
must establish that the defendant in some way knowingly and voluntarily shared in the
criminal intent of the crime and promoted its commission.” Dorantes, 331 S.W.3d at 386
(citing State v. Maxey, 898 S.W.2d 756, 757 (Tenn. Crim. App. 1994); State v. Foster,
755 S.W.2d 846, 848 (Tenn. Crim. App. 1988)).
The Defendant first admits to carrying a 9mm handgun on September 7, 2012, and
to firing that weapon in front of Austin East that day. He then claims, however, that the
evidence is insufficient to support his conviction in count 11 (victim L.P.) because the
bullet retrieved from L.P. was .45-caliber and, therefore, could not have been fired from
his weapon. Regarding the remaining counts, 12, 13, and 14, the Defendant submits that
“only two bullets/bullet fragments/shell casings from a 9[mm] gun that might have been
aimed at persons were recovered from the scene or the automobiles involved in the
shooting incident”; therefore, he cannot be “guilty of more than two attempted voluntary
manslaughter counts.” The State avers that the Defendant is “criminally responsible for
every other firearm employed, every bullet fired, and every killing attempted by his three
armed cohorts.”
The Defendant was convicted of four counts of attempted voluntary manslaughter
for crimes against L.P.—the unintended victim on the sidewalk—and co-defendant
Brown, co-defendant Campbell, and M.W—occupants of the other vehicle involved in
the shooting. Viewed in the light most favorable to the State, the proof shows that co-
defendant Campbell was driving a tan-colored Chevy Malibu on September 7, 2012, and
co-defendant Brown and M.W. were passengers in the vehicle. They drove past a group
of students in front of Austin East, which included L.P. and Q.T., multiple times playing
loud music and dancing. Testimony established that co-defendants Brown and Campbell
did not normally frequent this part of Knoxville, and they had a history of violence with
the Defendant and co-defendant North. The Defendant testified that the hostile co-
defendants were involved in a shooting at his mother‟s house and at a friend‟s house in
the weeks just prior to this incident.
As the car came past the students again, Q.T. flashed a hand signal at the men in
the Malibu, believing that his brother was inside. Thereafter, co-defendant Campbell
stopped the car in the lane of traffic, blocking another vehicle and a city bus. Co-
defendant Brown got out and approached L.P. and Q.T. on the sidewalk, identifying
himself and his gang affiliation and asking which one them threw “a Blood” gang sign.
Co-defendant Brown, realizing that he did not know the boys, ordered them to pull out
their pockets, claiming that he was checking the boys for weapons. Q.T. followed co-
defendant Brown‟s directions to turn out his pockets. Both of the students saw that co-
-32-
defendant Brown was armed with a handgun in the waistband of his pants. Moreover, it
appeared to multiple onlookers, at this point, that the boys were being robbed.
About the same time that Q.T. was turning out his pockets, the Defendant arrived
in front of Austin East, driving a dark-colored Chevy Cobalt, with co-defendant North,
Mr. King, and Mr. Issacs as passengers. The occupants of the Cobalt, believing the boys
were being robbed, began firing at co-defendant Brown. Co-defendant Brown and one of
the occupants of the Malibu returned fire, striking the Cobalt multiple times. Moreover,
co-defendant Brown, who had been abandoned by his cohorts in the Malibu, continued to
shoot at the Cobalt as it drove away.
Both the Defendant and co-defendant North admitted to firing a pistol during the
altercation, a 9mm and .357 respectively. Co-defendant North stated that one of the men
in the backseat of the Cobalt was a carrying a “Hi-point” pistol and discharged it that day.
As a result of the shooting, L.P. was shot in the arm and the stomach. Police examined
the Malibu that co-defendant Campbell was driving and found four bullet holes to the
outside of the vehicle and two spent bullets inside the vehicle. The firearms examiner
concluded that three guns, at a minimum, were used in the shootout that day.
(1) Count 11 – Victim L.P. The Defendant submits that the doctrine of transferred
intent “cannot be applied to attempted voluntary manslaughter” and, therefore, his
conviction in count 11 must be reversed and dismissed. The Defendant notes his own
testimony that he had no intent to harm L.P. and L.P.‟s testimony that he knew the
Defendant, that they were on friendly terms, and that the Defendant had “[n]o reason . . .
to try and kill” him. The State responds that “it is irrelevant [whether L.P.] was an
intended victim specifically[,]” citing State v. Samuel Glass, No. E2012-01699-CCA-R3-
CD, 2013 WL 4677654, at *11-12 (Tenn. Crim. App. Aug. 28, 2013), because the
Defendant “and his cohorts intended to accomplish a killing,” firing multiple shots in
L.P.‟s direction.
The common law doctrine of transferred intent, which provides that “a defendant
who intends to kill a specific victim but instead strikes and kills a bystander is deemed
guilty of the offense that would have been committed had the defendant killed the
intended victim,” has a checkered history in this state. Millen v. State, 988 S.W.2d 164,
166-67 (Tenn. 1999) (citations omitted) (recounting history of application of transferred
intent doctrine). In Millen, our supreme court concluded that “the transferred intent rule
has little application under our modern statutory law.” 988 S.W.2d at 167. The court
observed that “[a] plain reading” of the first degree murder statute12 “indicates that a
12
Millen arose under the first degree murder statute which required a killing be intentional,
premeditated, and deliberate to constitute the offense. 988 S.W.2d at 165, n.2; see Tenn. Code Ann. § 39-
13-202(a)(1) (1991) (amended 1995).
-33-
defendant‟s conscious objective need not be to kill a specific victim. Rather, the statute
simply requires proof that the defendant‟s conscious objective was to kill a person, i.e.,
„cause the result.‟” Id. at 168. The court held that so long as “the evidence demonstrates
that the defendant intended to „cause the result,‟ the death of a person, and that he did so
with premeditation and deliberation, then the killing of another, even if not the intended
victim (i.e., intended result), is first degree murder.” Id. However, the court noted that
the “unintended victim” cases are more appropriately prosecuted as felony murder. Id. at
167-68.
Similarly, the mens rea of “knowingly” required for second degree murder can
also focus on the result. Tennessee Code Annotated section 39-11-302(b) specifically
states that a person acts “knowingly” when he is aware that his conduct is reasonably
certain to cause the result. To this end, the Millen court also noted that previous cases
have upheld the doctrine‟s application in second degree murder cases. 988 S.W.2d at
166; see State v. Harper, 334 S.W.2d 933 (1960); State v. Summerall, 926 S.W.2d 272,
275 (Tenn. Crim. App. 1995). Additionally, this court has expanded the ruling in Millen
to convictions for attempted first degree murder, see, e.g., State v. Fabian Claxton, No.
W2009-01679-CCA-R3-CD, 2011 WL 807459, at *6-7 (Tenn. Crim. App. Mar. 7, 2011),
and attempted second degree murder, see, e.g., Glass, 2013 WL 4677654, at *11-12;
State v. Tarrence Parham, No. W2009-00709-CCA-R3-CD, 2010 WL 2898785, at *11
(Tenn. Crim. App. July 26, 2010); State v. Horace Demon Pulliam, No. M2001-00417-
CCA-R3-CD, 2002 WL 122928, at *5 (Tenn. Crim. App. Jan. 23, 2002), concluding that
the reasoning in Millen was equally applicable to those offenses.
However, we agree with the Defendant that these cases deal only with first and
second degree murders and any attempts to commit those crimes. Millen has not been
expanded beyond that in this State. To the contrary, it has long been held under
Tennessee law, and at common law, that a murder will only be reduced to voluntary
manslaughter when the provocation was caused by the victim. See State v. Tilson, 503
S.W.2d 921 (Tenn. 1974); State v. Chris Jones, No. W2009-01698-CCA-R3-CD, 2011
WL 856375, at *11 (Tenn. Crim. App. Mar. 9, 2011); State v. Antonius Harris, No.
W2001-02617-CCA-R3-CD, 2002 WL 31654814 (Tenn. Crim. App. Nov. 7, 2002); State
v. Khristian Love Spann, No. 1230, 1989 WL 86566, at *7 (Tenn. Crim. App. Aug. 3,
1989); see also Commonwealth v. LeClair, 840 N.E.2d 510 (Mass. 2006) (providing a
history of the rule at common law and citing supporting cases from other jurisdictions);
40 C.J.S. Homicide § 114 (2010); 40 Am.Jur.2d Homicide § 53 (2010).
The Tennessee Supreme Court first addressed this issue in Tilson, 503 S.W.2d at
921. The defendant in Tilson had been involved in a barroom brawl with several men
prior to leaving the bar. Id. at 922. The defendant returned a short time later with a pistol
and shot the victim who had taken no active part in the fight but had been “on the side” of
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the one provoking the fight. Id. at 923-24. Our supreme court held that the defendant‟s
actions did not constitute voluntary manslaughter because he killed an unarmed man who
was simply “on the side” of the person who provoked an earlier fight with the defendant.
Id. Similarly, in a more recent decision, this court held that there was insufficient
evidence to support a defendant‟s claim of adequate provocation when the defendant had
kidnapped several people and was shot by one of the victims before he “shot his unarmed
victim whom he had been holding at gunpoint and who had done nothing to provoke the
defendant.” Harris, 2002 WL 31654814, at *12-13.
In the present matter, the jury found that the Defendant was adequately provoked
by his hostile co-defendants, who had a history of violence towards one another.
However, there was no evidence that L.P. provoked the Defendant, in fact, all evidence
pointed to the contrary.13 The Defendant testified that he was trying to protect L.P. from
being robbed and had no intent to harm L.P. L.P. said that he was familiar with the
Defendant, agreed that they “were on friendly terms,” and testified that he did not know
of any “reason for [the Defendant] to try to kill [him].” Voluntary manslaughter requires
that the act of the slayer be the result of provocation instigated by the person slain.
Accordingly, there is insufficient evidence to support the element of adequate
provocation.
In addition to the transferred intent doctrine, the Defendant also challenges his
criminal responsibility for Count 11 by arguing that the bullet recovered from L.P.‟s body
was determined to be .45-caliber and, therefore, was not fired by him.14 However, given
the lack of provocation on the part of L.P. towards any of the defendants, the State cannot
base this conviction for the attempted manslaughter conviction of L.P. on the other‟s
actions under a theory of criminal responsibility.
The evidence supported an inference that the .45-caliber bullet that hit L.P. came
from inside the Cobalt the Defendant was driving. Co-defendant North testified that
someone in the backseat was carrying a Hi-Point handgun. The firearms examiner said
that the class characteristics on the bullet retrieved from L.P. and on the one found inside
the Malibu were consistent with having been fired through a Hi-Point firearm.
13
We note that this is further evidence of why a severance of defendants should have been granted in this
case. Attempted voluntary manslaughter should not have been charged as a lesser-included offense of
count 11. Again, this is a case “in which the sheer number of defendants and charges with different
standards of proof and culpability, along with the massive volume of evidence,” made “it nearly
impossible for a jury to juggle everything properly and assess the guilt or innocence of each defendant
independently.” Blakenship, 382 F.3d at 1124-25. The nuances of these complex legal issues could have
been minimized if a severance had been granted.
14
Again, in the event of further appellate review, we will address all of the Defendant‟s arguments, so
that they not be pretermitted.
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Nonetheless, there is no evidence that L.P. provoked anyone—neither any of the
occupants of the Cobalt nor the Malibu. Again, “[a] person is criminally responsible as a
party to an offense if the offense is committed by the person‟s own conduct, by the
conduct of another for which the person is criminally responsible, or by both.” Tenn.
Code Ann. § 39-11-401(a) (emphasis added). Here, none of the shooters involved can be
guilty of the offense of attempted voluntary manslaughter of L.P., which requires the act
of the slayer be the result of provocation instigated by the person slain. There is no
credible evidence to suggest that anyone was adequately provoked by L.P. that day.
Therefore, there is no offense committed by the conduct of another for which the
Defendant can be found guilty. The Defendant‟s conviction in count 11 must be reversed
the evidence being insufficient to sustain it.
(2) Counts 12, 13, and 14 – Victims Co-defendant Brown, Co-defendant Campbell,
and M.W. With regard to these three counts, we conclude that the evidence sufficiently
establishes that the Defendant was acting in a state of passion produced by adequate
provocation at the time he engaged in a shootout with these men in front of Austin East.
The jury found that the Defendant was adequately provoked by his hostile co-defendants
based upon their shared history of violence and his belief that the boys were being
robbed. The Defendant and his other passengers exchanged fire with co-defendant
Brown on the street and with the men still inside the Malibu. In so doing, while acting in
a state of passion, they attempted to kill co-defendant Brown and the Malibu‟s occupants.
Moreover, given this evidence, a rational juror could conclude that the Defendant was
criminally responsible for his partners in crime, i.e., the others who were shooting from
inside the Cobalt he was driving—co-defendant North, Mr. King, and Mr. Issacs. It is
irrelevant whether the evidence showed that two 9mm bullets were fired or forty. The
Defendant is criminally responsible for his own conduct and for the conduct of the others
inside his vehicle. Accordingly, the evidence is sufficient to support the Defendant‟s
separate convictions for attempted voluntary manslaughter in counts 12, 13, and 14.
B. Employing a Firearm during a Dangerous Felony. The Defendant contends
that he cannot be guilty of four counts of employing a firearm during the commission of a
dangerous felony. First, he submits that there was insufficient proof to support four
separate counts because he employed only one weapon during the “shooting event” and
because the proof showed that there were “at most . . . two shots by” the Defendant.
Alternatively, he argues that he cannot be convicted of more than one count as a matter of
law “because there was no proof that he used more than one firearm” during the shooting
and the proper “unit of prosecution” should be the number of firearms employed. The
State responds that the evidence is sufficient under a theory of criminal responsibility to
support the Defendant‟s four convictions for employing a firearm during the commission
of a dangerous felony. The State does not address the Defendant‟s unit of prosecution
argument.
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In Tennessee, it is a crime to employ a firearm during the commission of or
attempt to commit a dangerous felony. Tenn. Code Ann. § 39-17-1324(b)(1), (2).
Attempted voluntary manslaughter is defined as a dangerous felony. Tenn. Code Ann. §
39-17-1324(i)(1)(C), (M). We agree with the State that a conviction for employing a
firearm during the commission of a dangerous felony can also be upheld based upon a
theory of criminal responsibility. State v. Cortney R. Logan, No. M2014-01687-CCA-
R3-CD, 2015 WL 5883187, at *14 (Tenn. Crim. App. Oct. 8, 2016) (“[A] rational jury
could have found that [the defendant] was criminally responsible for [his co-defendant‟s]
employment of the revolver during the flight or escape from the attempted first degree
murder offense.”), perm. app. denied (Tenn. Feb. 18, 2016); State v. Ricco R. Williams,
No. W2011-02365-CCA-R3-CD, 2013 WL 167285, at *8 (Tenn. Crim. App. Jan. 14,
2013) (“[T]he State showed that the defendant . . . employed a firearm during the home
invasion robbery at the . . . residence by virtue of his being criminally responsible for his
compatriots‟ brandishing firearms[.]”), aff‟d on other grounds, 468 S.W.3d 510 (Tenn.
2015). Moreover, as discussed in the section above, the evidence sufficiently supports
the Defendant‟s convictions for attempted voluntary manslaughter under a theory of
criminal responsibility. However, this acknowledgement ignores the crux of the
Defendant‟s argument, which is essentially a challenge to his four convictions for
employing a firearm during the commission of a dangerous felony on double jeopardy
grounds, regardless of whether they are supported under a theory of criminal
responsibility or as a principal.15
The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution, made applicable to the states through the Fourteenth Amendment, 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. Courts have interpreted the Double Jeopardy
Clause as providing three distinct protections: “(1) protection against a second
prosecution for the same offense after acquittal; (2) protection against a second
prosecution for the same offense after conviction; and (3) protection against multiple
punishments for the same offense.” State v. Watkins, 362 S.W.3d 530, 541 (Tenn. 2012)
(citations omitted). The Defendant‟s case falls within the third category. In these cases,
the double jeopardy prohibition against multiple punishments functions to prevent
prosecutors from exceeding the legislatively authorized punishment. Id. at 542. Whether
multiple convictions violate the protection against double jeopardy is a mixed question of
law and fact, which this court will review de novo without any presumption of
correctness. State v. Smith, 436 S.W.3d 751, 766 (Tenn. 2014) (citing State v.
Thompson, 285 S.W.3d 840, 846 (Tenn. 2009)).
15
It is a dereliction of duty by the State not to address all of the arguments validly raised by the
Defendant on appeal. It is precisely this issue that the State failed to address that necessitates reversal of
three of the Defendant‟s employing a firearm during the commission of a dangerous felony convictions.
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The Defendant argues that he received multiple punishments for the same offense
in a single prosecution. The Tennessee Supreme Court has divided such claims into two
categories: (1) unit-of-prosecution claims—“when a defendant who has been convicted of
multiple violations of the same statute asserts that the multiple convictions are for the
same offense”; and (2) multiple description claims—“when a defendant who has been
convicted of multiple criminal offenses under different statutes alleges that the statutes
punish the same offense.” Smith, 436 S.W.3d at 766 (citing Watkins, 362 S.W.3d at 543-
44) (emphasis in original). In this case, the Defendant was convicted under a single
statute, Tennessee Code Annotated section 39-17-1324, for employing a firearm during
the commission of or attempt to commit a dangerous felony. Therefore, his challenge is a
unit-of-prosecution claim.
In Watkins, our supreme court stated as follows:
When addressing unit-of-prosecution claims, courts must determine “what
the legislature intended to be a single unit of conduct for purposes of a
single conviction and punishment.” Courts apply the “rule of lenity” when
resolving unit-of-prosecution claims, meaning that any ambiguity in
defining the unit of conduct for prosecution is resolved against the
conclusion that the legislature intended to authorize multiple units of
prosecution.
362 S.W.3d at 543-44 (citations omitted). “The legislature has the power to create
multiple „units of prosecution‟ within a single statutory offense, but it must do so clearly
and without ambiguity.” State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997). A court
determines legislative intent by examining “the language of the statute, its subject matter,
the object and reach of the statute, the wrong or evil which it seeks to remedy or prevent,
and the purpose sought to be accomplished in its enactment.” Id. (quoting Mascari v.
Raines, 415 S.W.2d 874, 876 (Tenn. 1967)). “As for criminal offenses in Tennessee,
statutes are to 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 of the criminal code.‟” Id. (quoting Tenn. Code Ann. § 39-11-104).
Tennessee Code Annotated section 39-17-1324 proscribes the following conduct:
(a) It is an offense to possess a firearm with the intent to go armed
during the commission of or attempt to commit a dangerous felony.
(b) It is an offense to employ a firearm during the:
(1) Commission of a dangerous felony;
(2) Attempt to commit a dangerous felony;
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(3) Flight or escape from the commission of a dangerous felony; or
(4) Flight or escape from the attempt to commit a dangerous felony.
The statute provides a list of eleven qualifying predicate felonies and requires that the
underlying felony “be pled in a separate count of the indictment or presentment and tried
before the same jury at the same time as the dangerous felony.” Tenn. Code Ann. § 39-
17-1324(d).
The legislature created criminal accountability for possessing with the intent to go
armed or employing a firearm during the commission of or attempt to commit a
dangerous felony. Regarding an employment offense, the legislature went one step
further and criminalized the employment of a firearm during the flight or escape from the
commission of or attempt to commit a dangerous felony. The focus of this section is on
the possession or employment of the firearm, and its clear purpose is to enlarge, through
the means of an additional conviction, the penalties for employing or possessing a firearm
during the commission of or attempt to commit a predicate dangerous felony. This
purpose is accomplished by construing the statute as requiring only one conviction
without regard to whether the offender commits, in one transaction, one or more
dangerous felonies. There is no language in subsections (a) or (b) indicating that the
legislature intended to create more than one unit of prosecution for the prohibited
conduct.
Additionally, subsection (c) of this statute addresses the possible encroachment of
double jeopardy regarding multiple description claims by providing, in pertinent part, as
follows:
(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 [S]tate may
elect to prosecute under a lesser offense wherein possession or employing a
firearm is not an element of the offense.
This court has held that “the legislature‟s use of „as charged‟ and „charged offense‟ in
Tennessee Code Annotated section 39-17-1324(c) convinces us that the legislature was
authorizing, even encouraging, the State strategically to indict a defendant for both
felonies.” State v. Jeremiah Dawson, No. W2010-02621-CCA-R3-CD, 2012 WL
1572214, at *7 (Tenn. Crim. App. May 2, 2012) (holding that because carjacking was
listed “as a dangerous felony for which a defendant could be prosecuted for employing a
firearm,” then “the legislature obviously intended for dual convictions and multiple
punishment”). Thus, the legislative intent to permit dual convictions in that regard is
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clear. The same is not true regarding the double jeopardy analysis at issue here—unit of
prosecution claims. There is no clear intent that this employing or possessing statute be
construed as allowing separate firearm convictions for each felony committed in a single
transaction.
Moreover, a sentence imposed under this section “shall be served consecutive to
any other sentence the person is serving at the time of the offense or is sentenced to serve
for conviction of the underlying dangerous felony.” Tenn. Code Ann. § 39-17-1324(e).
There are a number of statutes in this state proscribing carrying or possessing dangerous
weapons. It is apparent that the legislature concluded that these provisions were not
adequate, and that a mandatory minimum consecutive three-year sentence shall in all
cases be imposed, through the means of an additional conviction, on a person employing
or possessing a firearm during the commission of a dangerous felony. See Tenn. Code
Ann. § 39-17-1324(g)(1) (imposing a mandatory minimum three-year sentence to the
Department of Correction). The mandatory consecutive sentence is imposed for
possessing or employing under the circumstance that the felony is committed, not for the
felony.
Even assuming some ambiguity, application of the rule of lenity, see Watkins, 362
S.W.3d at 543-44 (citations omitted), dictates that there is only one unit of prosecution
for possession with intent to go armed or employing a firearm during the commission or
attempt to commit a dangerous felony where multiple felonies are committed as part of a
single transaction. The double jeopardy prohibition against multiple punishments
functions to prevent prosecutors from exceeding the legislatively authorized punishment.
This case is a prime example of just that.
We find support for this conclusion in this court‟s opinion in State v. Richardson,
875 S.W.3d 671 (Tenn. Crim. App. 1994). In Richardson, the defendant was at a
Memphis bar with a companion during the early morning hours; that companion‟s ex-
husband was also present. There was testimony that animosity existed between the
defendant and the ex-husband. As the ex-husband tried to leave, the defendant fired his
gun in the direction of the ex-husband but struck another bar patron. The defendant then
approached the ex-husband and fired a second shot at his head at point-blank range. A
jury convicted the defendant of aggravated assault of the bar patron, attempted first-
degree murder of the ex-husband, and two counts of possession of a deadly weapon with
the intent to employ in the commission of an offense. Richardson, 875 S.W.3d at 673-74.
On appeal, Richardson challenged his two separate convictions for possession of a
deadly weapon with the intent to employ in the commission of an offense, see Tennessee
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Code Annotated section 39-17-1307(c)(1),16 as violative of double jeopardy principles.
Richardson, 875 S.W.3d at 675. He argued that these convictions were the result of a
single transaction of events which could only give rise to prosecution for one violation of
section 39-17-1307(c)(1). Id. This court agreed, reasoning, “[T]he prohibited act is the
possession of a weapon in the commission of an offense. It is a crime of intent. And,
while there were two separate assaults, the defendant‟s single offending act was to
possess the handgun under the applicable statutory language.” Id. at 676. We believe the
same rationale to be applicable to convictions under section 39-17-1324, the single
offending act was the employment of a handgun during the shooting event, regardless of
the number of firearms used by the various individuals, the number bullets fired by the
Defendant, or the number of predicate felonies arising out of that single transaction.
Accordingly, the appropriate “unit of prosecution” is a single conviction for the felonious
conduct during one transaction—this is true regardless of whether the conviction is
garnered under a theory of criminal responsibility or as a principal actor.
As such, Defendant‟s multiple convictions for employing a firearm during the
commission of a dangerous felony violate the principles of double jeopardy. See also
State v. Antonio Henderson and Marvin Dickerson, No. W2015-00151-CCA-R3-CD,
2016 WL 3390627 (Tenn. Crim. App. June 10, 2016) (reflecting only one count of
employing a firearm during the commission of or attempt to commit a dangerous felony,
where defendants were also convicted of one count of especially aggravated robbery, one
count of attempted second degree murder, two counts of attempted aggravated robbery,
and one count of aggravated assault, in a case that involved three victims); State v. Albert
Jackson, No. W2014-00050-CCA-R3-CD, 2014 WL 7432000 (Tenn. Crim. App. Dec.
30, 2014) (illustrating one conviction for employing a firearm during the commission of a
felony in a case where defendant was also convicted of attempted voluntary
manslaughter, aggravated assault, reckless endangerment with a deadly weapon, and
felon in possession of a handgun as a result of his pulling a gun on the driver and front
seat passenger of a car in which he was riding); State v. Shawn Thompson, No. M2013-
01274-CCA-R3-CD, 2014 WL 2609535 (Tenn. Crim. App. June 11, 2014) (showing that
defendant, who fired at a truck occupied by three victims and there were three men
playing frisbee golf nearby who were also in the line of fire, was only charged with one
count of employing a firearm during the commission of a dangerous felony, where he
was ultimately convicted of three counts of attempted voluntary manslaughter and one
count of reckless endangerment with a deadly weapon). Additionally, we note that,
because we found the proof to be insufficient in count 11 to support the Defendant‟s
conviction for attempted voluntary manslaughter, the proof would likewise not support
16
The defendant was convicted under a prior version of the statute, which read, “A person commits an
offense who possesses any deadly weapon with intent to employ it in the commission of or escape from
an offense.” A similar provision now appears in subsection (d) of the statute.
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the corresponding count of employing a firearm during the commission of that dangerous
felony—count 15.
C. Self-Defense. The Defendant contends that the “trial court committed legal
error when it failed to grant a verdict in his favor” that he “was engaged in the defense of
self or others.” He states that he
was in a place where he had a right to be (on a public street); he had no
duty to retreat; and he shot with no intent to kill once [co-defendant] Brown
shot at him; in this way defending himself and/or defending [L.P.] and
[Q.T.] from being further victimized by [co-defendant] Brown.
The State replies that “the evidence is sufficient to support the jury‟s rejection of self-
defense or defense of another.”
As to the Defendant‟s claim that the evidence is insufficient to show that he
committed these crimes because he was acting in self-defense, Tennessee Code
Annotated section 39-11-611(b) states,
(1) Notwithstanding § 39-17-1322, a person who is not engaged in
unlawful activity and is in a place where the person has a right to be has no
duty to retreat before threatening or using force against another person
when and to the degree the person reasonably believes the force is
immediately necessary to protect against the other‟s use or attempted use of
unlawful force.
(2) Notwithstanding § 39-17-1322, a person who is not engaged in
unlawful activity and is in a place where the person has a right to be has no
duty to retreat before threatening or using force intended or likely to cause
death or serious bodily injury, if:
(A) The person has a reasonable belief that there is an imminent
danger of death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious
bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.
Additionally, Tennessee Code Annotated section 39-17-1322, referenced in the self-
defense statute, provides as follows:
A person shall not be charged with or convicted of a violation under
this part (which includes employing a firearm during the commission of a
dangerous felony) if the person possessed, displayed or employed a
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handgun in justifiable self-defense or in justifiable defense of another
during the commission of a crime in which that person or the other person
defended was a victim.
(Parenthetical added).
The Defendant also submits that he was acting in defense of L.P. and Q.T. The
defense of another is justified under circumstances similar to those justifying self-
defense:
A person is justified in threatening or using force against another to
protect a third person, if:
(1) Under the circumstances as the person reasonably believes them
to be, the person would be justified under § 39-11-611 in threatening or
using force to protect against the use or attempted use of unlawful force
reasonably believed to be threatening the third person sought to be
protected; and
(2) The person reasonably believes that the intervention is
immediately necessary to protect the third person.
Tenn. Code Ann. § 39-11-612. The claim of self-defense or defense of another is
essentially a fact question for the jury. See State v. Goode, 956 S.W.2d 521, 527 (Tenn.
Crim. App. 1997); State v. Clifton, 880 S.W.2d 737, 743 (Tenn. Crim. App. 1994); State
v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993).
Viewing the evidence in a light most favorable to the State, the proof shows that
the Defendant was driving a Chevy Cobalt, accompanied by co-defendant North, Mr.
King, and Mr. Issacs, when they encountered the scene in front of Austin East. All men
were armed, and the Defendant testified that he had been previously victimized by co-
defendants Campbell and Brown. Several eyewitnesses testified that the first shots came
from the Defendant‟s car. Examination of the Malibu driven by co-defendant Campbell
revealed that the car had been “hit at least four times,” evidencing that multiple shots
were fired. The firearms examiner testified that at least three different weapons were
used at the scene. Moreover, the forensic evidence established that L.P. was likely hit by
a .45-caliber bullet that came from the Defendant‟s vehicle. The jury, as was their
prerogative, chose not to credit the Defendant‟s theory of self-defense or defense of
others, and we will not second-guess the factual determinations of the jury. Therefore, in
this regard, the evidence is sufficient to support the convictions of attempted voluntary
manslaughter and the corresponding counts of employing a firearm during the
commission of a dangerous felony.
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III. Consecutive Sentencing
As his last issue, the Defendant challenges the trial court‟s imposition of
consecutive sentencing, contending that his forty-year sentence was excessive.17
According to the Defendant, the trial court ran “every count of conviction consecutive to
every other count.” The State submits that the Defendant‟s argument “is based on a
flawed premise” and that the total effective sentence imposed was twenty-two years, not
forty. The State continues that the trial court properly imposed discretionary consecutive
sentencing “by concluding that the [D]efendant was a dangerous offender whose
behavior indicate[d] little or no regard for human life and no hesitation about committing
a crime in which the risk to human life [was] high.”
At the March 14, 2014 sentencing hearing, the trial court sentenced the Defendant
to four years on each count of attempted voluntary manslaughter (counts 11-14), all run
consecutively to one another. The trial court then imposed six-year sentences on each
count of employing a firearm during the commission of a dangerous felony (counts 15-
18), which were ordered to be served consecutively to the underlying attempted voluntary
manslaughter counts, i.e, count 15 was ordered to run consecutively to count 11, count 16
consecutively to count 12, and so on. According to the trial court‟s calculations, this
resulted in a total effective sentence of twenty-two years.
We agree with the State that the trial court specifically ordered an effective
sentence of twenty-two years‟ incarceration and that the Defendant‟s sentencing
argument is based upon a flawed premise. However, given the anomalies in the
sentencing decision, we feel it important to cite to the trial court‟s ruling:
In count [number] 11, I sentence you to four years, range I[,]
standard offender, to serve in the Tennessee Department of Correction[] for
the attempted voluntary manslaughter of [L.P.].
In count [number] 12, I sentence you to four years to serve
consecutive to count [number] 11 for the attempted voluntary manslaughter
of [co-defendant Brown].
In count [number] 13, I sentence you to four years to serve
consecutive to count [number] 12, the attempted voluntary manslaughter of
[co-defendant Campbell].
17
Again, in the event of further appellate review, we will address all of the Defendant‟s arguments, so
that they not be pretermitted. Ultimately, however, restructuring of the Defendant‟s effective sentence is
plausible for a variety reasons in light of the various holdings in this opinion.
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In count [number] 14, I sentence you to four years to serve
consecutive to count [number] 13 for the attempted voluntary manslaughter
of [M.W.].
In count [number] 15, I sentence you to six years to serve
consecutive to count [number] 11 for the employing a firearm during the
attempted voluntary manslaughter of [L.P].
In count [number] 16, I sentence you to six years to run consecutive
to count [number] 12 for the employing a firearm during the commission of
a dangerous felony, the attempted voluntary manslaughter of [co-defendant
Brown].
In count [number] 17, I sentence you to six years to serve
consecutive to count [number] 13 for . . . employing a firearm during the
commission of a dangerous felony, the attempted voluntary manslaughter
of [co-defendant Campbell].
And count [number] 18, I sentence you to six years to run
consecutive to count [number] 14 for the employing a firearm during the
commission of a dangerous felony; to wit, the attempted voluntary
manslaughter of [M.W.], for a total effective sentence of [twenty-two] years
to serve as a range I[,] standard offender.
(Emphasis added). Likewise, in our computation of this ruling, the trial court utilized an
alignment of concurrent and consecutive sentencing that yields a sentence of twenty-two
years.
Tennessee Code Annotated section 40-35-115(b) provides, in pertinent part, that a
trial court may order sentences to run consecutively if it finds by a preponderance of the
evidence that “[t]he defendant is a dangerous offender whose behavior indicates little or
no regard for human life, and no hesitation about committing a crime in which the risk to
human life is high[.]” Tenn. Code Ann. § 40-35-115(b)(4). Moreover, when the
imposition of consecutive sentences is based on the trial court‟s finding the defendant to
be a dangerous offender, the court must also find “that the terms imposed are reasonably
related to the severity of the offenses committed and are necessary in order to protect the
public from further criminal acts by the offender.” State v. Wilkerson, 905 S.W.2d 938,
939 (Tenn. 1995); see also State v. Pollard, 432 S.W.3d 851, 863-64 (Tenn. 2013); State
v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999).18
18
However, recently in State v. Walter H. Webb, No. M2014-01929-CCA-R3-CD, 2015 WL 8519525
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Our supreme court has held that “the abuse of discretion standard, accompanied by
a presumption of reasonableness, applies to consecutive sentencing determinations” “if
[the trial court] has provided reasons on the record establishing at least one of the seven
grounds listed in Tennessee Code Annotated section 40-35-115(b)[.]” Pollard, 432
S.W.3d at 860-61. Thus, the imposition of consecutive sentencing is subject to the
general sentencing principles that the overall sentence imposed “should be no greater
than that deserved for the offense committed” and that it “should be the least severe
measure necessary to achieve the purposes for which the sentence is imposed[.]” Tenn.
Code Ann. § 40-35-103(2), (4). Further, “[s]o long as a trial court properly articulates
reasons for ordering consecutive sentences, thereby providing a basis for meaningful
appellate review, the sentences will be presumed reasonable and, absent an abuse of
discretion, upheld on appeal.” Pollard, 432 S.W.3d at 862 (citing Tenn. R. Crim. P.
32(c)(1)) (“The order [for consecutive sentences] shall specify the reasons for this
decision and is reviewable on appeal.”); see also State v. Bise, 380 S.W.3d 682, 705
(Tenn. 2012).
Initially, we note that the Defendant submits that the trial court failed to make the
additional findings required by Wilkerson. At the sentencing hearing, the trial court
found the dangerous offender criterion to be applicable, reasoning as follows:
Again, in this case, . . . there‟s only one potential factor I believe that could
allow the [c]ourt to sentence [the Defendant‟s] counts consecutively, and
that is the dangerous offender finding, and the [c]ourt has to not only find
that the [D]efendant is a dangerous offender whose behavior indicates little
(Tenn. Crim. App. Dec. 11, 2015), perm. app. granted (Tenn. Feb. 10, 2016), our supreme court has
granted the defendant‟s application for permission to appeal and instructed the defendant to brief the
following issues:
Whether this Court‟s holding in State v. Wilkerson, 905 S.W.2d 933 (Tenn.
1995), that a trial court‟s “dangerous offender” finding be supported by proof that “the
terms imposed are reasonably related to the severity of the offenses committed and are
necessary in order to protect the public from further criminal acts by the offender,” Id. at
938, survives the Court‟s adoption of the abuse of discretion standard for all trial court
sentencing decisions in State v. Bise, 380 S.W.3d 683, 706 (Tenn. 2012), and subsequent
cases.
Whether this Court‟s original holding in State v. Wilkerson, 905 S.W.2d 933
(Tenn. 1995), that a trial court‟s “dangerous offender” determination must be supported
by specific findings that “the terms imposed are reasonably related to the severity of the
offenses committed and are necessary in order to protect the public from further criminal
acts by the offender,” Id. at 938, should be revisited given that no such requirement exists
in Tennessee Code Annotated section 40-35-115(a) for making these additional findings
on this one factor.
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or no regard for human life and no hesitation about committing a crime in
which the risk to human life is high, but also the additional Wilkerson
factors where you take into account the overriding purposes and being the
punishment should be one justly deserved in relation to the seriousness of
the offense, as well as that an extended sentence is necessary to protect
society from the [D]efendant‟s further criminal conduct, and so when we
look at this particular case, the [c]ourt does find that, in fact, [the
Defendant] is a dangerous offender, and that he is willing to engage in
highly risky behavior that presents a crime that is highly risky to the life of
others without hesitation.
I don‟t think these guys even thought or cared when they saw each
other that there are all these other kids around, and, you know, to be honest
with you, I‟m not as concerned if—if they were just shooting up—each
other up, but you‟ve got [L.P.], [Q.T.] out there, and you got all these other
students, the folks on the bus, the—the mom who was between the bus and
[co-defendant Campbell‟s] car who had picked up her daughter and her
friend, all the students and teachers around there, all the folks that are
coming for the football game, that is just so overwhelming. I can‟t stress
enough how risky that is that these guys would shoot, and [the Defendant]
is the one that started that.
If he was concerned about [co-defendant] Brown confronting these
two boys here, you don‟t just start shooting. You don‟t just start shooting,
and I think you knew that. I think you started shooting because you wanted
payback, and I—when I look at that, it just so greatly overwhelms all
possible mitigation in this case, despite the fact that I think you‟re articulate
and sincere today, and you‟ve had an history of going through juvenile
court, of engaging in—in possession of weapons, and I think it‟s necessary
to protect our community from somebody who would engage in this type of
behavior, and so I think consecutive sentencing is justified.
The Defendant admits that the trial court concluded that the terms imposed were
necessary in order to protect the public from further criminal acts by him, but he argues
that the trial court failed to determine that the terms imposed were reasonably related to
the severity of the offenses committed. However, the trial court stated that consecutive
sentencing was “justly deserved in relation to the seriousness of the offense” and
discussed the circumstances surrounding the Defendant‟s crimes—that the shoot-out
occurred in front of a school where numerous other persons were present and that the
Defendant was first to fire his weapon. The record reflects that the trial court adequately
considered the Wilkerson factors. Additionally, the record fully supports the trial court‟s
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findings in this regard, and we discern no abuse of discretion by the trial court in
imposing partial consecutive sentencing.
We feel constrained to note something not mentioned by either party—consecutive
sentencing, as partially imposed, was mandatory in this case. Tennessee Code Annotated
section 39-17-1324(e)(1) mandates that a sentence for employing a firearm during the
commission of a dangerous felony “be served consecutive to any other sentence the
person is serving at the time of the offense or is sentenced to serve for conviction of the
underlying dangerous felony.” See also Tenn. Code Ann. § 39-17-1324(i)(1)(C), (M)
(incorporating attempted voluntary manslaughter as a dangerous felony). Here, given the
unique structure of the Defendant‟s various sentences, each firearm count is aligned
consecutive to the corresponding underlying attempted voluntary manslaughter count and
then aligned concurrently as much as possible with all the other counts. Although only
one firearm conviction remains based upon our analysis above, consecutive sentencing of
that count was not discretionary pursuant to section 39-17-1324. The Defendant is not
entitled to relief on this issue.
CONCLUSION
Based on our finding of error in the denial of the Defendant‟s motion for
severance, we reverse the Defendant‟s convictions and remand the case for a new trial for
further proceedings consistent with this opinion. We also note that the Defendant‟s
attempted voluntary manslaughter conviction of L.P. cannot stand and that multiple
convictions for employing a firearm during the commission of a dangerous felony in a
single transaction violate the Double Jeopardy Clause.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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