State of Tennessee v. Shawn Foutaine Shaw ( 2024 )

10/14/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 4, 2024
STATE OF TENNESSEE v. SHAWN FOUTAINE SHAW
Appeal from the Circuit Court for Madison County
No. 22-135 Donald H. Allen, Judge
No. W2024-00138-CCA-R3-CD
Following a jury trial, the Defendant, Shawn Foutaine Shaw, was convicted of first degree
premeditated murder, first degree felony murder, especially aggravated kidnapping, and
aggravated assault. On appeal, the Defendant claims that his convictions for especially
aggravated kidnapping and aggravated assault violate the prohibition against double
jeopardy. He also raises an evidentiary issue regarding the testimony of a witness at trial.
After a thorough review of the record, we remand the case to the trial court for entry of an
amended judgment in count 2 and corrected judgments in counts 3 through 6. In all other
respects, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed;
Case Remanded
KYLE A. HIXSON, J., delivered the opinion of the court, in which T IMOTHY L. EASTER and
J. ROSS DYER, JJ., joined.
Shawn Foutaine Shaw, Mountain City, Tennessee, Pro Se.
Jonathan Skrmetti, Attorney General and Reporter; William C. Lundy, Assistant Attorney
General; Jody S. Pickens, District Attorney General; and Joshua B. Dougan, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
I. FACTUAL AND PROCEDURAL HISTORY
This case pertains to the Defendant’s involvement in the death of the victim, Patti
Hathcock, and his related conduct following her death on May 27, 2021. The Defendant
was indicted by a Madison County grand jury on January 31, 2022, for first degree
premeditated murder, first degree felony murder, especially aggravated kidnapping,
aggravated assault, domestic assault, and tampering with evidence. See Tenn. Code Ann.
§§ 39-13-102, -111, -202, -305; -16-503. On March 30, 2023, the Defendant pleaded guilty
to domestic assault and tampering with evidence. A three-day jury trial on the remaining
four counts commenced on July 18, 2023. The Defendant, having previously waived his
right to counsel, represented himself at trial.
The proof introduced at trial showed that the Defendant and the victim were in a
romantic relationship and that on May 27, 2021, an argument between them became
physical. While driving the victim’s vehicle, the Defendant repeatedly punched the victim
in the face, used her seatbelt to confine her to the vehicle, and proceeded to strangle her.
Upon stopping at an isolated location, the Defendant continued the assault. He struck the
victim’s head against the door frame of the vehicle, tied her hands to one ankle behind her
back using a cell phone charging cable, kicked her multiple times on her head and chest,
and strangled her until she lost consciousness. Once the victim had succumbed to her
injuries, the Defendant wrapped a shirt and jumper cables around the area of the victim’s
mouth and neck, burned her fingertips and face, and left her body at the isolated location.
The Defendant then left the scene in the victim’s vehicle with the victim’s cell phone in his
possession.
That same evening, the Defendant threw the victim’s cell phone into the woods and
parked the victim’s vehicle in an unlit section of a local park. The Defendant called an
acquaintance, Lavundra McFadden-Ware, and she agreed to pick him up at the park. After
the Defendant entered Ms. McFadden-Ware’s vehicle, she saw that the Defendant was
“covered in blood.” Ms. McFadden-Ware drove the Defendant to her apartment, where he
confessed to killing the victim. Later that evening, Ms. McFadden-Ware drove the
Defendant to a second isolated location, where he tossed his bloody clothing out of the
window of the moving vehicle.
The next day, the Defendant also confessed to killing the victim to his friend, Cory
Winfield. When the victim was reported missing, both Ms. McFadden-Ware and Mr.
Winfield reported their interactions with the Defendant to police. Investigators discovered
the victim’s car and observed large amounts of blood on the interior of the vehicle.
Investigators later retrieved the bloody clothing the Defendant had thrown from Ms.
McFadden-Ware’s car. Once law enforcement confronted the Defendant with this
information, the Defendant admitted his involvement in the victim’s death and led
investigators to her body.
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At trial, Ms. McFadden-Ware testified on direct examination that she had not
initially been entirely truthful with law enforcement about the extent of her knowledge of
the Defendant’s conduct on May 27, 2021, or where she had picked him up that evening.
She further testified that she gave a full and truthful statement to law enforcement in the
days that followed and described her role in leading the investigators to the Defendant’s
discarded clothing. The Defendant repeatedly “objected” during Ms. McFadden-Ware’s
testimony by interjecting his assertion that she was lying. On cross-examination, after a
lengthy discourse between the trial court and the parties out of the presence of the jury, the
trial court allowed the Defendant to introduce into evidence the video and audio recordings
of two of Ms. McFadden-Ware’s interviews with law enforcement.
The jury found the Defendant guilty as charged on all counts and, in a subsequent
phase of the trial, imposed a sentence of life without the possibility of parole on the murder
convictions. The trial court accepted the jury’s verdict and imposed sentences consistent
with the jury’s findings. A sentencing hearing on the remaining trial counts was conducted
on September 18, 2023, and the trial court imposed a twenty-five-year sentence on the
especially aggravated kidnapping conviction and a ten-year sentence on the aggravated
assault conviction. These sentences were ordered to run concurrently with one another but
consecutively to the Defendant’s sentences of life without the possibility of parole.
Following the Defendant’s filing of three motions for new trial, a hearing ensued on
December 27, 2023. Thereafter, the trial court entered a written order denying the motions
on December 28, 2023.
The Defendant filed a timely notice of appeal.
II. ANALYSIS
A. Double Jeopardy
The Defendant challenges his dual convictions for especially aggravated kidnapping
and aggravated assault on the grounds that the convictions violate the prohibition against
double jeopardy. Specifically, the Defendant contends that he cannot be convicted for both
offenses because both contain within their essential elements proof of “serious bodily
injury.” He concludes that this constitutes a double jeopardy violation because the offenses
occurred during the same criminal episode and involved the same victim. The State
contends, and we agree, that the Defendant’s dual convictions for these offenses do not
violate double jeopardy principles.
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The Fifth Amendment to the United States Constitution provides, “No person
shall . . . be subject for the same offence to be twice put in jeopardy of life or limb[.]” The
Double Jeopardy Clause of the federal constitution “represents a fundamental ideal in our
constitutional heritage” and is applicable to the states through the Fourteenth Amendment.
Benton v. Maryland, 395 U.S. 784, 794 (1969). Under article I, section 10 of the Tennessee
Constitution, “no person shall, for the same offence, be twice put in jeopardy of life or
limb.” These provisions “protect[] against successive prosecutions for the same offense
after acquittal or conviction and against multiple criminal punishments for the same
offense.” Monge v. California, 524 U.S. 721, 727-28, (1998); State v. Smith, 436 S.W.3d
751, 766 (Tenn. 2014).
Our supreme court has observed “in single prosecutions, ‘multiple punishment’
challenges ordinarily fall into one of two categories: unit-of-prosecution claims and
multiple description claims.” State v. Allison, 618 S.W.3d 24, 43 (Tenn. 2021) (citing State
v. Watkins, 362 S.W.3d 530, 543 (Tenn. 2012)). This case presents a multiple description
claim, which arises when a defendant has been convicted of violating two different statutes.
“Whether multiple convictions violate double jeopardy is a mixed question of law and fact,
which we review de novo without any presumption of correctness.” Watkins, 362 S.W.3d
at 539 (citation omitted).
In Watkins, the Tennessee Supreme Court adopted the same-elements test set forth
in United States v. Blockburger, 284 U.S. 299 (1932), for determining whether “multiple
convictions under different statutes violate the state constitutional double jeopardy
prohibition against multiple punishment.” 362 S.W.3d at 556. First, Tennessee courts
must focus on ascertaining whether the General Assembly has expressed an intent to permit
or preclude multiple punishments for multiple convictions. Id. When the General
Assembly’s intent is clearly expressed, the inquiry stops, and no further analysis is
required. Id. “Where the General Assembly’s intent is not clearly expressed, the
Blockburger test should be applied to determine whether multiple convictions under
different statutes punish the same offense.” Id. (internal quotation marks omitted). The
“threshold question” under the Blockburger test is “whether the convictions arise from the
same act or transaction.” Id. “This threshold question should be answered by reference to
the charging instrument and the relevant statutory provisions.” Id. Courts should also
consider “whether the charges arise from discrete acts or involve multiple victims.” Id. If
the convictions arise from the same act or transaction,
the second step of the Blockburger test requires courts to examine the
statutory elements of the offenses. If the elements of the offenses are the
same, or one offense is a lesser included of the other, then we will presume
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that multiple convictions are not intended by the General Assembly and that
multiple convictions violate double jeopardy. However, if each offense
includes an element that the other does not, the statutes do not define the
“same offense” for double jeopardy purposes, and we will presume that the
Legislature intended to permit multiple punishments.
Id. at 557.
In this instance, the General Assembly has not “clearly expressed” that it intended
to allow multiple punishments for the offenses of especially aggravated kidnapping and
aggravated assault. See Watkins, 362 S.W.3d at 556. Therefore, further analysis under
Blockburger is necessary. See id. Regarding the first step of Blockburger, the Defendant
contends, and the State does not dispute, that the offenses at issue occurred during the same
act or transaction involving a single victim. We agree and proceed to the second step of
the Blockburger test by examining the elements of the offenses.
As pertinent to this case, the Code defines especially aggravated kidnapping as false
imprisonment “[w]here the victim suffers serious bodily injury.” Tenn. Code
Ann. § 39-13-305(a)(4). False imprisonment occurs when a person “knowingly removes
or confines another unlawfully so as to interfere substantially with the other’s liberty.” Id.§ -302(a). Additionally, “‘[u]nlawful’ means, with respect to removal or confinement, one
that is accomplished by force, threat or fraud[.]” Id. § -301(15) (renumbered to subsection
(15) effective July 10, 2014).
In addition, aggravated assault occurs here when a person, with the requisite mental
state, “commits an assault” and the assault “[r]esults in serious bodily injury to another.”
Id. § -102(a)(1)(A)(i). A person commits an assault in this instance by “caus[ing] bodily
injury to another[.]” Id. § -101(a)(1).
Contrary to the Defendant’s assertion that the inclusion of “serious bodily injury”
in the elements of both offenses violates the prohibition against double jeopardy, the
Blockburger test focuses on whether each offense contains one or more elements that differ
from one another. “The applicable rule is that, where the same act or transaction constitutes
a violation of two distinct statutory provisions, the test . . . is whether each provision
requires proof of a fact which the other does not.” Blockburger, 284 U.S. at 304 (citations
omitted). Further, “[a] single act may be an offense against two statutes; and if each statute
requires proof of an additional fact which the other does not, an acquittal or conviction
under either statute does not exempt the defendant from prosecution and punishment under
the other.” Id. (emphasis added) (citations omitted). Accordingly, no double jeopardy
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violation has occurred when “each offense includes an element that the other does not.”
State v. Feaster, 466 S.W.3d 80, 84 (Tenn. 2015) (affirming convictions for attempted
voluntary manslaughter and aggravated assault that arose from “one continuous course of
conduct” because the offenses each required proof of a fact not required to prove the other
(citing Watkins, 362 S.W.3d at 557)).
In this case, the especially aggravated kidnapping statute includes an element absent
from the aggravated assault statute—proof of removal or confinement. The pivotal
question then becomes whether the aggravated assault statute, as applied in this case,
requires additional proof that the especially aggravated kidnapping statute does not.
To sustain a conviction for aggravated assault under the statute, the State must not
only prove that the victim “suffer[ed] serious bodily injury” as required by the especially
aggravated kidnapping statute, but that the serious bodily injury was the result of an assault
committed by the Defendant against the victim. Tenn. Code Ann. § 39-13-102(a)(1)(A)(i);
-305(a)(4). The assault statute, which is explicitly incorporated therein, requires proof that
the Defendant caused bodily injury to the victim, as charged to the jury in this case. 1 Id. §
-101(a)(1). Therefore, as to the offense of aggravated assault, the State was required to
prove that the Defendant caused injury to the victim and not merely that the victim suffered
serious bodily injury. As such, the aggravated assault conviction required proof of the
Defendant’s direct involvement in causing the injury, which is not required to prove
especially aggravated kidnapping, where the victim may merely suffer serious bodily
injury as a result of the removal or confinement.
Under prior law, this court held double jeopardy principles were not implicated by
dual convictions for especially aggravated kidnapping and aggravated assault where both
convictions relied on the presence of serious bodily injury. See State v. Gibson, No.
M2005-01422-CCA-R3-CD, 2006 WL 770460, at *13 (Tenn. Crim. App. Mar. 24, 2006).
The Gibson court explained,
These two statutory offenses contain separate and distinct elements. The
kidnapping offense, as relevant to this case, involves false imprisonment
where the victim suffers serious bodily injury. Conversely, the assault
offense requires that the perpetrator of the assault cause the serious bodily
injury. This makes the statutory elements of the offenses dissimilar.
1
We note that the jury was not instructed on any alternative forms of assault in this case. As such,
those alternate components of the assault statute do not factor to into our analysis.
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Id.; see also Hubbard v. State, No. W2014-01716-CCA-R3-PC, 2015 WL 5683092, at *8
(Tenn. Crim. App. Sept. 25, 2015) (citing Gibson and rejecting a double jeopardy challenge
as to the initial charges of especially aggravated kidnapping and aggravated assault both
premised on serious bodily injury on the same grounds); cf. State v. Tittle, No. M2016-
02006-CCA-R3-CD, 2017 WL 4773427, at *9 (Tenn. Crim. App. Oct. 23, 2017) (rejecting
a double jeopardy challenge as to convictions for attempted aggravated kidnapping with a
deadly weapon and aggravated assault by fear on the same grounds).
We recognize that Gibson and Hubbard involved analyses of a prior version of the
aggravated assault statute. At the time of the offenses in Gibson and Hubbard, a person
committed aggravated assault who “intentionally or knowingly commit[ted] an assault as
defined in § 39-13-101 and . . . cause[d] serious bodily injury to another[.]” Tenn. Code
Ann. § 39-13-102(a)(1)(A) (Repl. 2010) (emphasis added). The offenses at issue in the
present case involve the aggravated assault statute as it existed following its 2013
amendment, wherein the General Assembly removed the term “causes” and instead defined
aggravated assault as an assault that “[r]esults in serious bodily injury to another.” See
2013 Tenn. Pub. Acts, ch. 461, § 2 (emphasis added). The underlying rationale in Gibson
and Hubbard remains intact and applicable to this case, however, because an aggravated
assault conviction still requires a causation element by virtue of its incorporation of the
simple assault statute. Therefore, although both offenses require the presence of a victim’s
serious bodily injury, the especially aggravated kidnapping statute requires additional
proof of removal or confinement, while the aggravated assault statute requires additional
proof that the Defendant caused bodily injury to the victim. As such, the Defendant is not
entitled to relief on this issue.
B. Evidentiary Claim Regarding Ms. McFadden-Ware’s Testimony
The Defendant attempts to raise an evidentiary issue on appeal regarding the
testimony of Ms. McFadden-Ware at trial, but due to the largely incoherent nature of his
brief, we are unable to determine precisely what issue the Defendant is attempting to raise
or what relief he seeks. Regardless, he failed to include any issue related to
Ms. McFadden-Ware’s testimony in his three motions for new trial. Thus, the issue is
waived. See Tenn. R. App. P. 3(e) (“[N]o issue presented for review shall be predicated
upon error in the admission or exclusion of evidence . . . unless the same was specifically
stated in a motion for a new trial; otherwise such issue[] will be treated as waived.”).
While the Defendant contends in his reply brief that his inclusion of this issue in a
pretrial motion to suppress preserved the matter for appellate review, this assertion is
incorrect. It is true that, as a threshold matter, “to properly preserve an evidentiary issue
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for review, a party must raise a timely and specific objection in the trial court either at or
before trial.” State v. Reynolds, 635 S.W.3d 893, 926 (Tenn. 2021) (citations omitted).
However, the preservation requirement does not end there: “[I]n addition to raising a timely
and specific objection, a party must raise the issue in a motion for a new trial in order to
preserve it for appellate review.” Id. (emphases added) (citations omitted). As such, the
issue is waived.
C. Errors in the Judgment Forms
While we affirm the judgments of the trial court, remand is necessary to correct the
following errors in the uniform judgment documents.
First, an amended judgment form for count 2 should be entered to reflect that it
merges into count 1 for a single conviction of first degree murder. “Merger . . . is required
when a jury returns guilty verdicts on two counts that represent alternative theories of the
same offense.” State v. Berry, 503 S.W.3d 360, 362 (Tenn. 2015) (citations omitted). In
its order denying the Defendant’s motion for new trial, the trial court noted that the State
may charge alternative theories of guilt but neglected to address merger of the convictions.
Under these circumstances, the “dual guilty verdicts must merge into a single
conviction[.]” See id.Second, corrected judgment forms should be entered for counts 3 through 6 to
remove the “Life w/out Parole” notation, as none of these counts pertain to the Defendant’s
first degree murder conviction.
Finally, the uniform judgment document in count 6 should also be corrected to
remove the notations of “1st Degree Murder” and “Reform Act 1989.”
III. CONCLUSION
In consideration of the foregoing, we affirm the judgments of the trial court but
remand for entry of amended and corrected judgment forms consistent with this opinion.
______________________________
KYLE A. HIXSON, JUDGE
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