State of Tennessee v. LaJuan Harbison

01/09/2018

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 24, 2017 Session Heard at Cookeville1

STATE OF TENNESSEE v. LAJUAN HARBISON

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Knox County

No. 101406 Steven Wayne Sword, Judge

___________________________________

No. E2015-00700-SC-R11-CD

___________________________________

A jury convicted LaJuan Harbison of four counts of attempted voluntary manslaughter

and four counts of employing a firearm during the commission of a dangerous felony.

The Court of Criminal Appeals reversed the convictions and remanded for a new trial,

holding that the trial court erred in denying Harbison’s request for a separate trial, that his

multiple convictions for employing a firearm during the commission of a dangerous

felony violated the prohibition against double jeopardy, and that the evidence was

insufficient to support one of the counts of attempted voluntary manslaughter and

employment of a firearm during the commission of a dangerous felony. We granted the

State’s application for permission to appeal to determine whether the trial court properly

exercised its discretion by denying Harbison’s motion for severance; whether Harbison

waived the double jeopardy issue; and if not, whether Harbison’s convictions for

employing a firearm during the commission of a dangerous felony violate the prohibition

against double jeopardy where he used one firearm but was convicted of multiple

dangerous felonies against different victims. We hold that the trial court did not abuse its

discretion in denying Harbison’s request for a separate trial; Harbison did not waive the

double jeopardy issue; and his multiple convictions for employment of a firearm during

the commission of a dangerous felony do not violate the prohibition against double

jeopardy. We reverse the judgment of the Court of Criminal Appeals, reinstate

Harbison’s three convictions for attempted voluntary manslaughter and three convictions

for employment of a firearm during the commission of a dangerous felony, and remand to

the trial court for resentencing and corrected judgments.

1

Oral argument was heard on the campus of Tennessee Technological University in Cookeville,

Tennessee, as part of the Tennessee American Legion Boys State S.C.A.L.E.S. (Supreme Court

Advancing Legal Education for Students) project.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the

Court of Criminal Appeals Reversed; Case Remanded to the Trial Court

SHARON G. LEE, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,

C.J., and CORNELIA A. CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; Nicholas W. Spangler, Assistant Attorney General; Charme P. Allen, District

Attorney General; and TaKisha M. Fitzgerald and Philip H. Morton, Assistant District

Attorneys General, for the appellant, State of Tennessee.

Gerald L. Gulley, Jr. (on appeal) and A. Philip Lomonaco (at trial), Knoxville,

Tennessee, for the appellee, LaJuan Harbison.

OPINION

I.

A Knox County grand jury indicted LaJuan Harbison on four counts of attempted

first-degree murder and four counts of employing a firearm during the commission of a

dangerous felony. These charges arose out of a shooting on September 7, 2012, near

Austin-East High School in Knoxville. In the same indictment, the grand jury charged

Arterious North with four counts of attempted first-degree murder and four counts of

employing a firearm during the commission of a dangerous felony; and Laquinton Brown

and Carlos Campbell with three counts of attempted first-degree murder, three counts of

employing a firearm during the commission of a dangerous felony, two counts of

attempted especially aggravated robbery, and two counts of attempted aggravated

robbery. Before trial, the State dismissed one count of attempted first-degree murder and

one count of employing a firearm during the commission of a dangerous felony against

Brown and Campbell.

Harbison and his co-defendants were tried by a jury on January 27, 28, 30, 31, and

February 1, 2014. The State’s proof showed that on September 7, 2012, around 4:30 p.m.,

Campbell was driving a vehicle on Martin Luther King Jr. Avenue near Austin-East High

School with Brown in the front passenger’s seat and M.W.2 and another person in the

back seat. Around this same time, Harbison was driving a vehicle in the opposite

2

We refer to minors by their initials rather than their full names.

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direction on Martin Luther King Jr. Avenue toward Austin-East High School with North

in the front passenger’s seat and Montiere King and “Little Paul” in the back seat.

At this same time, a group of students, including L.P. and Q.T., was standing on a

sidewalk near Austin-East High School. As Campbell drove by, L.P. saw four people

including M.W. in the vehicle. Q.T. signaled to the vehicle because he thought he saw his

brother in the back seat. After driving past the students a couple of times, Campbell

stopped the vehicle, and Brown got out of the front passenger’s seat and approached L.P.

and Q.T. to speak with them. Brown, with the handle of a gun sticking out of his

waistband, asked L.P. and Q.T. which one of them had thrown up a gang sign. Q.T.

responded that “[w]e don’t bang.” Brown directed them to empty their pockets. As Q.T.

pulled out his pockets, L.P. saw an approaching vehicle (Harbison’s vehicle) stop and its

occupants start shooting. At that point, Brown pulled out his gun and fired it. Q.T. said he

heard shots coming from somewhere behind Brown and saw Brown pull out his gun, start

shooting, and run away. L.P. and Q.T. tried to flee, but a bullet, consistent with one fired

from a gun used by a passenger in Harbison’s vehicle, struck and seriously wounded L.P.

In a subsequent police lineup and at trial, L.P. identified Brown as the man who got out

of Campbell’s vehicle and fired a gun.

Malika Guthrie, a teacher at Austin-East High School and Vine Middle School,

was driving her vehicle behind Campbell. She saw Campbell’s vehicle stop, for no

apparent reason, in the middle of Martin Luther King Jr. Avenue. A passenger, later

identified as Brown, jumped out and approached L.P. and Q.T. in an aggressive,

confrontational manner. Guthrie saw L.P. and Q.T. pulling their pockets out and holding

up their hands indicating they had nothing. She believed Brown was robbing L.P. and

Q.T. As Brown turned back to the Campbell vehicle, Guthrie heard shots being fired.

Guthrie’s daughter, a passenger in her mother’s vehicle, also saw Brown confronting L.P.

and Q.T. and observed another vehicle approach. She heard gunshots, saw the occupants

of Campbell’s vehicle shoot back, and then observed both vehicles drive away.

The driver of a Knoxville Area Transit bus behind the Guthrie vehicle saw Brown

get out of the Campbell vehicle and direct L.P. and Q.T. to empty their pockets. Like

Guthrie, she thought Brown was robbing them. After they pulled out their pockets, she

saw Brown turn back to the vehicle, get a gun, and start firing it.

S.W. was with her cousin, L.P., and Q.T. on the sidewalk just before the shooting.

She saw the Campbell vehicle, with M.W. in the back seat, drive by a few times with

loud music playing. On the vehicle’s second pass, she saw the occupants of the vehicle,

including Brown, hanging out of the window making gang signs, and L.P. and Q.T.

responding with hand signs. The third time the vehicle came by, it stopped, and Brown

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got out and “tried to rob” L.P. and Q.T. She saw Brown step back, pull a gun, and start

shooting. She also saw a backseat passenger in Campbell’s car get out and start shooting.

Following the shooting, Knoxville City Police Department officers interviewed

Harbison, North, Brown, and Campbell. Harbison initially denied any involvement in the

September 7 shooting but later in the interview admitted he drove his vehicle and shot a

gun during the episode. Harbison told police he got rid of the gun after the shooting.

North admitted he was the front seat passenger in Harbison’s vehicle and shot a .357

caliber gun. According to North, Harbison used a “little nine,” one of the backseat

passengers (King or “Little Paul”) had a Glock handgun, and the other one had a Hi-Point

handgun. Campbell admitted he drove the other vehicle and that Brown was in the front

passenger’s seat and M.W. in the back seat. Campbell claimed that after stopping his

vehicle near a group of students, another vehicle pulled up beside him, and shots were

fired from that vehicle. Brown said that after L.P. and Q.T. made gang signs at them,

Campbell stopped so Brown could get out and talk to L.P. and Q.T. After the Harbison

vehicle arrived on the scene and its occupants began firing, Brown hit the ground. He

denied having a gun or firing a gun during the September 7 shooting.

Based on evidence found at the crime scene and in Harbison’s and Campbell’s

vehicles, a Knoxville Police Department firearms examiner determined that multiple guns

were fired from both vehicles. Police investigators observed that both vehicles had

numerous exterior defects consistent with bullet holes, but it was not known how many of

the bullet holes predated the September 7 shooting. At the crime scene on Martin Luther

King Jr. Avenue, police found bullet fragments and two .38 caliber shell casings and a

.45 caliber shell casing. In Campbell’s vehicle, investigators found a bullet fragment

under the right front passenger’s floor mat, a fired bullet core in the right rear passenger’s

door, a bullet jacket from a .38, .357, or 9-millimeter firearm under the driver’s front mat,

and a fired .45 caliber bullet in the left rear passenger’s seat. The fired .45 caliber bullet

found in the left rear passenger’s seat was similar to the .45 caliber bullet removed from

L.P. at the hospital. These bullets were consistent with a bullet fired from a Hi-Point

semi-automatic revolver, which North told police was used by one of the backseat

passengers in Harbison’s vehicle.

A search of Harbison’s vehicle revealed wallets in the glove compartment

belonging to Harbison and King. Investigators also found a fired bullet in the driver’s

floorboard and a 9-millimeter shell casing on the floorboard behind the front passenger’s

seat.

After the State rested, the trial court granted Campbell’s and Brown’s motions for

acquittal on two counts of attempted especially aggravated robbery and attempted

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aggravated robbery and reduced the remaining two robbery counts to two counts of

aggravated assault.3

Harbison and Brown each testified in his own defense. Harbison, eighteen years

old at the time of the offense, previously attended Austin-East High School. He knew

Q.T. from when Harbison taught drums to Vine Middle School students. Harbison knew

L.P. through his sister who had gone to Austin-East High School with Harbison. On the

day of the shooting, Harbison was carrying a 9-millimeter handgun because he feared

Campbell and Brown, whom he suspected of being involved in an incident at Harbison’s

mother’s house. Just before the shooting started, Harbison stopped his vehicle near

Austin-East High School after seeing an approaching school bus in the opposite lane

extend its stop sign. Harbison then saw Brown get out of Campbell’s vehicle and

approach L.P. and Q.T. Harbison recognized Brown and Campbell and was surprised to

see them in that part of Knoxville. When Harbison saw L.P. and Q.T. hold up their hands,

Harbison believed Brown was robbing them. As Brown stepped back towards Campbell’s

vehicle, Harbison saw Brown draw a handgun and fire a shot. Harbison pulled his gun

and fired it twice into the air. Harbison claimed he fired his gun only to protect L.P. and

Q.T. and to prevent Brown from robbing them. He said he did not intend to harm anyone.

After Harbison fired into the air, he heard “shots coming up out of – from everywhere.”

Harbison, North, King and “Little Paul” began firing their weapons. As Harbison drove

away, he continued to hear gunfire coming from behind him.

According to Brown, on the afternoon of September 7, he was riding in the front

seat of Campbell’s vehicle. As the vehicle passed a group of students standing near

Austin-East High School, Brown saw Q.T. signal to him. Campbell stopped the vehicle

so that Brown could get out and talk to L.P. and Q.T. After a brief conversation, Brown

realized that he did not know them and went into “safety mode.” He directed Q.T. and

L.P. to empty their pockets to see if they were armed. As Brown was backing away

toward Campbell’s vehicle, Brown heard a gunshot. He fell to the ground and heard more

shots, although he could not determine their source. Campbell’s vehicle left, and Brown

ran away. Brown denied attempting to rob L.P. and Q.T. or having a gun that day. Brown

also denied that he had ever previously possessed a weapon. Brown had no recollection

of a video of him and his cousin, Cuben Lagrone, riding around while brandishing

3

Specifically, the trial court granted Campbell’s and Brown’s motions for acquittal on one charge

of attempted especially aggravated robbery of L.P. (by violence) and one charge of attempted aggravated

robbery of Q.T. (by violence). The trial court partially granted Campbell’s and Brown’s motions for

acquittal on one charge of attempted especially aggravated robbery of L.P. (by putting in fear) and one

charge of attempted aggravated robbery of Q.T. (by violence) and reduced the charges to two counts of

aggravated assault. The basis for the trial court’s action was the lack of proof that Brown intended to take

anything from L.P. or Q.T.

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weapons. To refresh his recollection, the State played Brown the video, but Brown

claimed he did not recognize the voices or the faces. On rebuttal, a Knoxville Police

Department officer explained that he had obtained Lagrone’s cell phone while

investigating an August 2012 shooting at Harbison’s mother’s house. The cell phone

contained multiple videos of Lagrone and Brown, including the one shown to Brown.

The officer identified Lagrone and Brown in the video, which showed the men driving

around Knoxville at night and listening to music. Lagrone was holding a Smith and

Wesson handgun, while Brown brandished a firearm with an extended magazine. One

man can be heard saying, “[expletive deleted] the police.” After passing multiple police

cars, one man says, “there go the boys. Get ready.”

The jury found Harbison guilty of four counts of the attempted voluntary

manslaughter of L.P., Brown, Campbell, and M.W. and four counts of employing a

firearm during the commission of a dangerous felony. The jury convicted North of four

counts of the attempted voluntary manslaughter of L.P., Brown, Campbell, and M.W. and

four counts of employing a firearm during the commission of a dangerous felony;

convicted Brown of two counts of the attempted voluntary manslaughter of Harbison and

North, two counts of employing a firearm during the commission of a dangerous felony,

and two counts of aggravated assault of L.P. and Q.T.; and convicted Campbell of two

counts of aggravated assault of L.P. and Q.T. and acquitted him of remaining charges.

The trial court sentenced Harbison to an effective sentence of twenty-two years.4

Harbison’s amended motions for new trial challenged the denial of his motion for

severance; the sufficiency of the evidence, which included a challenge to the multiple

convictions for employing a firearm during the commission of a dangerous felony; and

the excessiveness of his sentence. The trial court denied Harbison’s motions for new trial.

Harbison appealed.5 The Court of Criminal Appeals reversed and remanded for a

new trial, finding that the trial court erred in denying the motion for severance; that the

convictions for employing a firearm during the commission of a dangerous felony

4

The trial court sentenced North to twenty-two years, Brown to twenty-two years, and Campbell

to six years.

5

The Court of Criminal Appeals reversed North’s convictions for the attempted voluntary

manslaughter of L.P. and for employing a firearm during the commission of a dangerous felony and

affirmed the remaining convictions. State v. North, No. E2015-00957-CCA-R3-CD, 2016 WL 6248598,

at *1, *17–20 (Tenn. Crim. App. Oct. 26, 2016), perm. app. filed (Dec. 23, 2016). The Court of Criminal

Appeals affirmed the convictions of Brown and Campbell. State v. Brown, No. E2015-00899-CCA-R3-

CD, 2016 WL 3633474, at *1 (Tenn. Crim. App. June 29, 2016), perm. app. denied (Oct. 20, 2016); State

v. Campbell, No. E2015-00730-CCA-R3-CD, 2016 WL 829742, at *1 (Tenn. Crim. App. Mar. 3, 2016).

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violated the prohibition against double jeopardy; that the evidence was insufficient to

support his conviction for the attempted voluntary manslaughter of L.P. and the

accompanying firearm conviction; and that the trial court did not err in determining

Harbison’s sentence. State v. Harbison, No. E2015-00700-CCA-R3-CD, 2016 WL

4414723, at *31 (Tenn. Crim. App. Aug. 18, 2016).

We granted the State’s application for permission to appeal.6 The issues we

address are:

(1) Whether the trial court abused its discretion by denying Harbison’s

motion for severance.

(2) Whether Harbison properly raised a double jeopardy issue in the trial

court and the Court of Criminal Appeals or whether he waived the

issue.

(3) If Harbison did not waive the double jeopardy issue, whether his

four convictions for employing a firearm during the commission of a

dangerous felony violate the prohibition against double jeopardy

when he used one firearm but there were four distinct underlying

felonies and four victims.

II.

Denial of Motion for Severance

The State argues that the trial court properly exercised its discretion in denying

Harbison’s request for a separate trial under Rule 14 of the Tennessee Rules of Criminal

Procedure and that he failed to establish clear prejudice from this ruling. Harbison

contends that the Court of Criminal Appeals properly concluded that the trial court erred

in denying his motion for severance and that he was clearly prejudiced by the ruling. In

particular, Harbison asserts that the evidence established “overt hostility” among the

co-defendants, hostility from courtroom spectators, mutually antagonistic defenses

among the co-defendants, and Harbison’s limited control over his defense. Similarly,

Harbison claims the jury heard “lurid testimony and videos about guns, unindicted bad

actors, and other crimes” unrelated and irrelevant to the charges against him. Next,

Harbison contends that the trial court’s decision at the close of the State’s proof to

6

The State did not appeal the Court of Criminal Appeals’ reversal of the conviction for the

attempted voluntary manslaughter of L.P. and the accompanying firearm conviction.

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dismiss two of the robbery charges and reduce the two remaining robbery charges against

Brown and Campbell to two charges of aggravated assault undercut Harbison’s defense

that he acted to protect Q.T. and L.P. from Brown. Finally, Harbison submits that the

evidence regarding multiple offenses and multiple co-defendants impaired the jury’s

ability to make an individualized determination about each co-defendant.

Joint trials of defendants charged in the same indictment are favored because they

promote efficiency and reduce the possibility of inconsistent verdicts. Zafiro v. United

States, 506 U.S. 534, 537 (1993) (quoting Richardson v. Marsh, 481 U.S. 200, 210

(1987)). Tennessee Rule of Criminal Procedure 8 provides that two or more defendants

may be charged in a single indictment under these circumstances: if each defendant is

charged with accountability for each offense; if each defendant is charged with

conspiracy, and some of the defendants are also charged with one or more offenses

alleged to be in furtherance of the conspiracy; or, when conspiracy is not charged and all

of the defendants are not charged in each count, if the offenses charged “were part of a

common scheme or plan” or “were so closely connected in time, place, and occasion that

it would be difficult to separate proof of one charge from proof of the others.” Tenn. R.

Crim. P. 8(c). This rule promotes economy and efficiency by encouraging a single trial

for offenses arising out of a single criminal episode. Tenn. R. Crim. P. 8 advisory

committee cmt.

A defendant may seek a severance under Tennessee Rule of Criminal Procedure

14(c)(2), which requires a trial court to grant the request if severance is found to be

“appropriate to promote a fair determination of guilt or innocence of one or more

defendants.” Tenn. R. Crim. P. 14(c)(2).7 There is no bright-line rule as to when a trial

court should grant a defendant’s request for severance. Courts consider the following

factors, none of which are dispositive, when deciding whether to grant a severance: the

number of defendants named in the indictment, the number of counts charged in the

indictment, the complexity of the indictment, the estimated length of the trial, the

disparities in the evidence offered against the defendants, the disparities in the degrees of

involvement by the defendants in the charged offenses, possible conflicts between the

defendants and their strategies, and prejudice from evidence admitted against a

co-defendant(s) which is inadmissible or excluded as to another defendant. See United

States v. Gallo, 668 F. Supp. 736, 749 (E.D.N.Y. 1987).

7

A defendant may also “move[] for a severance because an out-of-court statement of a

codefendant makes reference to the defendant but is not admissible against the defendant . . . .” Tenn. R.

Crim. P. 14(c)(1). As the Court of Criminal Appeals noted, the defendants’ statements in this case were

redacted to remove any references to other co-defendants. Accordingly, our ruling in this case concerns

only Tennessee Rule of Criminal Procedure 14(c)(2).

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When two or more defendants are charged in the same indictment, evidence that is

not necessarily applicable to another defendant may be admissible against one or more

defendants. State v. Meeks, 867 S.W.2d 361, 369 (Tenn. Crim. App. 1993) (citing Black

v. State, 794 S.W.2d 752, 758 (Tenn. Crim. App. 1990)). A defendant is not entitled to a

separate trial merely because damaging proof is introduced against another defendant. Id.

We review a trial court’s denial of a motion for severance under an abuse of

discretion standard. State v. Dotson, 254 S.W.3d 378, 390 (Tenn. 2008); State v.

Carruthers, 35 S.W.3d 516, 552 (Tenn. 2000). A trial court abuses its discretion if it

“applie[s] an incorrect legal standard or reache[s] a decision against logic or reasoning

that cause[s] an injustice.” Dotson, 254 S.W.3d at 387–88 (quoting State v. Shirley, 6

S.W.3d 243, 247 (Tenn. 1999) (internal quotation marks omitted)). Under this standard,

an appellate court will uphold a trial court’s ruling if reasonable minds can disagree with

the propriety of the decision, State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000), and will

not substitute its judgment for that of the trial court. Eldridge v. Eldridge, 42 S.W.3d 82,

85 (Tenn. 2001) (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998)).

We do not interfere with the trial court’s exercise of its discretion unless the denial of the

motion for severance results in clear prejudice to the defendant. Carruthers, 35 S.W.3d at

552. Reversal is required only when the defendant establishes that he was

“clearly prejudiced to the point that the trial court’s discretion ended and the granting of

[a] severance became a judicial duty.” Id. at 553 (quoting Hunter v. State, 440 S.W.2d 1,

6 (Tenn. 1969), superseded by statute on other grounds, Tenn. Code Ann. § 27-111

(Supp. 1970)); see Ellis v. State, 403 S.W.2d 293, 294–95 (Tenn. 1966).

Here, the Court of Criminal Appeals found that Harbison was clearly prejudiced

by the antagonistic nature of the defenses presented at the joint trial. Harbison, 2016 WL

4414723, at *20. The Court of Criminal Appeals acknowledged that mutually

antagonistic defenses are not prejudicial per se and that few cases have been reversed on

this ground due to the difficulty in establishing prejudice. Id. at *16 (citing State v.

Ensley, 956 S.W.2d 502, 509 (Tenn. Crim. App. 1996)). The Court of Criminal Appeals

quoted passages from Zafiro v. United States and United States v. Blankenship, 382 F.3d

1110 (11th Cir. 2004), indicating that a joint trial can prevent a jury, under certain

circumstances, from making a reliable judgment about guilt or innocence. Harbison,

2016 WL 4414723, at *17–19. The Blankenship court quoted United States v. Gallo and

cited United States v. Sampol, 636 F.2d 621 (D.C. Cir. 1980), where severance was found

to be necessary. See Blankenship, 382 F.3d at 1124. These cases, however, are factually

distinguishable from Harbison’s case. In Gallo, sixteen defendants (fourteen defendants

at the time of trial) were named in a twenty-two count indictment alleging a racketeering,

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or RICO,8 enterprise and conspiracy based on seventy-two predicate acts constituting

forty-six separate offenses, and at least twenty-five schemes, operations, or courses of

conduct. Gallo, 668 F. Supp. at 738–39. The district court ordered separate trials as to

some of the defendants and ordered the rest to be tried with two or three other

co-defendants. Id. at 746. Factors considered by the district court in granting the

severances included the complexity of the indictment, the disproportionality of the

evidence as to the different defendants, the antagonism of defense strategies, that some

evidence was admissible only as to certain defendants, and the inadequacies of limiting

instructions. Id. at 749–53. The district court noted that the case was “far too extensive

and intricate to expect that a jury would be able to discern the myriad of subtle

distinctions and mental gyrations that would be required by the inevitable plethora of

limiting instructions necessary.” Id. at 753. In Harbison’s case, there were only three

co-defendants, the indictment was not complex, and the evidence was neither

disproportionate to the different defendants nor the “warehouse of diverse evidence” as in

Gallo. Id.

In Sampol, eight defendants were charged in a multi-count indictment arising out

of the murder of a former Chilean Ambassador to the United States and an American

associate. Sampol, 636 F.2d at 629. Ignacio Novo Sampol (“Sampol”) was indicted on

two counts of making false statements to a grand jury and one count of misprision of a

felony. His seven co-defendants were charged with more serious charges of conspiracy to

murder a foreign official, murder of a foreign official, two counts of first-degree murder,

and murder by use of explosives to blow up a vehicle engaged in interstate commerce.

One co-defendant was also charged with making false declarations to a grand jury. The

joint trial for Sampol and two other defendants lasted over a month. The jury found each

defendant guilty of the charged offenses. The United States Court of Appeals for the

District of Columbia Circuit reversed Sampol’s convictions, finding that the district court

abused its discretion in denying his motion for severance. Id. at 643. The appeals court

considered the likelihood of confusion of charges from the indictment and evidence at

trial, the likelihood of prejudice to Sampol based on the grossly disparate charges against

him (making false statements and misprision) and his co-defendants (multiple counts of

murder), and the inability of Sampol to present a full defense and to cross-examine

witnesses implicating him in crimes for which he was not charged. Id. at 643–51. Sampol

is distinguishable from Harbison’s case based on the number of defendants, the length of

the trial, the complexity of the indictment, the disparity in the charged offenses, and the

evidence presented.

8

RICO is the abbreviation for The Racketeer Influenced and Corrupt Organizations Act, 18

U.S.C. §§ 1961–1968.

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After reviewing the record, we conclude that the trial court did not abuse its

discretion in denying Harbison’s motion for severance. In reaching this decision, we do

not substitute our judgment for that of the trial court. The offenses in the indictment

against Harbison, North, Brown, and Campbell all arose at the same time and place. The

charged offenses were “closely connected in time, place, and occasion,” and “it would

[have been] difficult to separate proof of one charge from proof of the others.” Tenn. R.

Crim. P. 8(c)(3)(B). The trial court carefully considered Harbison’s requests for

severance before the trial, on the morning of the first day of trial, and at the hearing on

the motion for new trial. The trial court based its decision on the correct legal standard,

and its decision was reasonable under the circumstances. The trial court did not abuse its

discretion in denying Harbison’s motion for severance based on the number of defendants

charged, the number of counts considered by the jury, the non-complex nature of the

indictment, the length of the trial, the non-disparate evidence at trial against the

defendants, the similar degrees of involvement by the defendants, and because Harbison

was not hampered in presenting his defense at the joint trial.

To support his argument that he was clearly prejudiced by the trial court’s abuse of

discretion, Harbison offers only conclusory statements about hostility from courtroom

spectators, hostility among the co-defendants, mutually antagonistic defenses, and

admission of evidence about acts unrelated to Harbison. We will review each argument in

turn.

First, Harbison contends that the trial court should have granted a severance

because of the overt hostility between him and two of his co-defendants and courtroom

spectators, the mutually antagonistic defenses, and his inability to present his defense.

Hostility between defendants, attempt to cast blame on each other, finger-pointing, and

tattling do not necessarily require a severance. United States v. Arruda, 715 F.2d 671,

679 (1st Cir. 1983) (citing United States v. Talavera, 668 F.2d 625, 630 (1st Cir. 1982));

United States v. Angiulo, 897 F.2d 1169, 1195 (1st Cir. 1990).9 Like the Court of

Criminal Appeals, we recognize that potential hostility among co-defendants exists where

an indictment charges each co-defendant as a perpetrator of offenses against other

co-defendants. Mutually antagonistic defenses among co-defendants may be the basis for

granting a severance in some circumstances but are not per se prejudicial. Zafiro, 506

U.S. at 538.

9

Although federal decisions are not binding on the state courts, decisions interpreting

corresponding federal rules of procedure are helpful. See State v. Phelps, 329 S.W.3d 436, 445 (Tenn.

2010); Henderson v. Bush Bros. & Co., 868 S.W.2d 236, 237 (Tenn. 1993).

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Here, Harbison’s defense was not necessarily mutually antagonistic with the

defenses of his co-defendants, and he was not hindered in presenting his defense.

Harbison maintained he never meant to harm anyone and fired his gun into the air only to

prevent Brown from robbing L.P. and Q.T. Although Brown denied attempting to rob

L.P. and Q.T., he admitted that he got out of Campbell’s vehicle, approached L.P. and

Q.T., and had them empty their pockets. Other witnesses who saw the incident also

thought Brown was trying to rob them. The evidence established that Harbison and North

exchanged gunfire with Brown and the occupants of Campbell’s vehicle, but neither

Brown nor Campbell offered any proof that Harbison fired any shots at them or intended

to kill anyone. Although Brown denied that he fired a gun, numerous witnesses testified

otherwise. Harbison claimed he was carrying a 9-millimeter handgun for protection on

the day of the incident because he feared Brown and Campbell based on Harbison’s

suspicion that they had been involved in shooting into his mother’s house. Harbison,

however, failed to show that any antagonism or fear of Brown and Campbell necessitated

a separate trial. Finally, the record contains no evidence that the jury was exposed to any

courtroom hostility among the co-defendants or courtroom spectators.

Second, Harbison argues that the trial court’s denial of a severance resulted in the

admission of “lurid testimony and videos about guns, unindicted bad actors, and other

crimes unrelated to Harbison and irrelevant to his charges.” A severance should not be

granted simply because there is a “[d]isparity in the evidence against the defendants,”

State v. Howell, 34 S.W.3d 484, 491 (Tenn. Crim. App. 2000), or a “speculative risk of a

spill-over effect” from a co-defendant’s prior bad acts. Meeks, 867 S.W.2d at 369.

Harbison cites to testimony from Knoxville Police Department officers regarding the

investigation into Lagrone’s role in a drive-by shooting of Harbison’s mother’s house;

police interviews of Brown, Campbell, North, and Harbison; and the video introduced to

impeach Brown’s testimony that he had never possessed a weapon. This evidence,

however, does not incriminate Harbison and potentially places only Brown in a negative

light. Although the Court of Criminal Appeals indicated that the evidence adduced during

the joint trial caused the jury to treat the case as a “gang shooting” in which the

participants were equally guilty, this is speculative; indeed, the trial court recognized this

concern and limited the evidence of gang involvement to a few brief references. Also, the

verdicts reveal that the jury’s careful assessment of the evidence against each defendant

resulted in Harbison’s convictions on reduced charges of attempted voluntary

manslaughter.

Third, Harbison argues that the trial court’s acquittal of Brown and Campbell at

the close of the State’s proof of two robbery counts and that the trial court “relayed this to

the jury prior to Harbison testifying” impeached and undercut his ability to present his

defense. The record does not support Harbison’s argument. The trial court, outside the

presence of the jury, granted Brown’s and Campbell’s motions for acquittal on two of the

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robbery charges and reduced the two remaining robbery charges to aggravated assault.

This decision was not “relayed” to the jury before Harbison took the stand. In any event,

Harbison effectively presented his defense that he fired his gun because he believed

Brown was robbing L.P. and Q.T. The State’s proof confirmed that other witnesses also

thought Brown was robbing them. Harbison’s defense was partially successful; the jury

found Harbison guilty of the lesser included charges of attempted voluntary

manslaughter, presumably finding that he acted in a state of passion produced by

adequate provocation by the hostility of Campbell and Brown and Harbison’s belief that

Brown was robbing L.P. and Q.T.10

Next, Harbison argues that a severance was necessary to avoid prejudice from

evidence that would not have been admitted had Harbison’s trial been severed from his

co-defendants. A trial court need not grant a severance when the evidence introduced at

the joint trial would have been admissible against the defendant in a separate trial. State

v. Dellinger, 79 S.W.3d 458, 468 (Tenn. 2002); State v. Brown, 795 S.W.2d 689, 693

(Tenn. Crim. App. 1990); see State v. Alcorn, 741 S.W.2d 135, 140 (Tenn. Crim. App.

1987). Harbison does not point to any specific evidence that would have been

inadmissible in a separate trial but instead references “lurid testimony and videos about

guns,” “unindicted bad actors,” and “other crimes unrelated to Harbison.” Harbison

appears to be primarily referring to the cell phone video that showed Brown and Legrone

riding in a vehicle holding guns. This video, admitted into evidence solely to impeach

Brown’s testimony that he had never possessed a weapon, did not clearly prejudice

Harbison. The jury may have concluded from the video that Brown’s testimony was not

credible, but this would not have hindered Harbison’s defense. The trial court properly

instructed the jury that “[a]ny evidence which was limited to a particular defendant

should not be considered by you as to any other defendant.”

Finally, Harbison argues that the evidence pertaining to multiple offenses and

multiple co-defendants impaired the jury’s ability to make an individual determination

about each co-defendant. However, the trial court instructed the jury on its consideration

of multiple defendants:

You should give separate consideration to each defendant. Each is entitled

to have his case decided on the evidence and the law which is applicable to

that particular defendant. Any evidence which was limited to a particular

defendant should not be considered by you as to any other defendant. You

10

“Voluntary manslaughter is the intentional or knowing killing of another in a state of passion

produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.”

Tenn. Code Ann. § 39-13-211(a).

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can acquit all or convict all, or you can acquit one or more and convict the

others.

The trial court also instructed the jury on self-defense, defense of a third person, and

criminal responsibility. We presume that the jury follows all instructions given by the

trial court, “with commonsense understanding of the instructions in the light of all that

has taken place at the trial [that is] likely to prevail over technical hairsplitting.” State v.

Knowles, 470 S.W.3d 416, 426 (Tenn. 2015) (quoting Boyde v. California, 494 U.S. 370,

381 (1990)). To overcome this presumption, the defendant must show by clear and

convincing evidence that the jury failed to follow the trial court’s instructions. State v.

Newsome, 744 S.W.2d 911, 915 (Tenn. Crim. App. 1987) (citing State v. Vanzant, 659

S.W.2d 816, 819 (Tenn. Crim. App. 1983)). Harbison has presented no evidence to

overcome this presumption.

Although the jury considered evidence of multiple defendants and multiple

offenses, its verdict reflects its fair assessment of the evidence, including the credibility

of witnesses and application of the law as instructed. The jury’s decision to convict

Harbison on a lesser included charge (attempted voluntary manslaughter) indicates that it

accredited Harbison’s testimony that he did not intend to kill anyone but was provoked

into firing his gun by the actions of Brown and Campbell. The jury’s verdicts show that

the jury understood and considered the relative positions of the co-defendants and

followed the trial court’s instructions to consider the guilt or innocence of each defendant

individually. See State v. Mickens, 123 S.W.3d 355, 383–84 (Tenn. Crim. App. 2003)

(finding no prejudice where trial court instructed the jury to consider evidence that a

co-defendant flashed gang signs during the testimony of a State’s witness only as to that

co-defendant); State v. Gaston, No. W2001-02046-CCA-R3-CD, 2003 WL 261941, at

*13 (Tenn. Crim. App. Feb. 7, 2003) (noting that a co-defendant’s conviction of a lesser

offense indicated the jury could distinguish between the different evidence presented

against each defendant); State v. Little, 854 S.W.2d 643, 648 (Tenn. Crim. App. 1992)

(holding that severance was unnecessary where the trial court instructed the jury to

consider damaging testimony only as it related to and was admissible against

co-defendants); State v. Kyger, 787 S.W.2d 13, 20 (Tenn. Crim. App. 1989) (finding no

prejudice where jury was instructed to consider evidence against each defendant

individually, and there was “considerable independent evidence” against the defendant).

We conclude that the trial court did not abuse its discretion in denying Harbison’s

motion for severance based on a finding that severance was not required for a fair

determination of guilt or innocence.

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Waiver of Double Jeopardy Issue

The next issue we address is whether Harbison preserved a challenge based on

double jeopardy to his multiple convictions for employing a firearm during the

commission of a dangerous felony by raising the issue in the trial court and the Court of

Criminal Appeals. The State argues that Harbison waived any challenge by not raising

the issue in his motion for new trial and appellate brief. Harbison counters that he

properly raised the issue.

To preserve the double jeopardy issue, Harbison had to raise it in his motion for

new trial and appellate brief. See State v. Bishop, 431 S.W.3d 22, 43 (Tenn. 2014) (citing

State v. Bledsoe, 226 S.W.3d 349, 353 (Tenn. 2007)); see also Tenn. R. App. P. 3(e).

Raising an issue in a motion for new trial allows the trial court to consider or reconsider

the issue and make an appropriate ruling. Fahey v. Eldridge, 46 S.W.3d 138, 142 (Tenn.

2001) (quoting McCormic v. Smith, 659 S.W.2d 804, 806 (Tenn. 1983)). In a motion for

new trial, the defendant must set forth the factual grounds on which he relies, the legal

grounds for the trial court’s ruling, and a concise statement as to why the trial court’s

decision was in error. State v. Lowe-Kelly, 380 S.W.3d 30, 33–34 (Tenn. 2012) (quoting

State v. Hatcher, 310 S.W.3d 788, 802 (Tenn. 2010) (internal quotation marks omitted)).

The contents of the motion should direct the attention of the trial court and prevailing

party to the asserted error, and the movant should specify the issues with sufficient

certainty to enable the appellate court to determine whether the issue was first raised in

the trial court. Waters v. Coker, 229 S.W.3d 682, 689 (Tenn. 2007) (citing State v.

Gauldin, 737 S.W.2d 795, 798 (Tenn. Crim. App. 1987)). However, a precise citation to

a particular statute or case as the legal basis for the assertion is not required. See Fahey,

46 S.W.3d at 143. Grounds not raised in a motion for new trial are waived for purposes of

appeal.11 See Waters, 229 S.W.3d at 689 (citing Boyd v. Hicks, 774 S.W.2d 622, 625

(Tenn. Ct. App. 1989)).

Under Tennessee Rule of Appellate Procedure 36(a), a court need not grant relief

to a party “who fail[s] to take whatever action [is] reasonably available to prevent or

nullify the harmful effect of an error.” Appellate briefs must contain a statement of the

issues presented for review and an argument setting forth the appellant’s contentions,

reasons for appellate relief with citations to authorities and the record, and the applicable

standard of review. Tenn. R. App. P. 27. Appellate review is generally limited to issues

11

Issues not raised at trial may be reviewed in the discretion of the appellate court for plain error

when these five factors are established: (a) the record clearly establishes what occurred in the trial court;

(b) a clear and unequivocal rule of law was breached; (c) a substantial right of the accused was adversely

affected; (d) the defendant did not waive the issue for tactical reasons; and (e) consideration of the error is

necessary to do substantial justice. State v. Martin, 505 S.W.3d 492, 504 (Tenn. 2016).

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presented for review. See Tenn. R. App. P. 13(b); State v. Bishop, 431 S.W.3d 22, 43

(Tenn. 2014) (citing Hodge v. Craig, 382 S.W.3d 325, 334–35 (Tenn. 2012)). An

appellate court may decline to consider issues that a party failed to raise properly. Bishop,

431 S.W.3d at 43 (citing State ex rel. D’Amore v. Melton, 212 S.W.2d 375, 376 (Tenn.

1948)). Tennessee Rule of Appellate Procedure 13, however, allows the appellate court

the discretion to consider other issues “(1) to prevent needless litigation, (2) to prevent

injury to the interests of the public, and (3) to prevent prejudice to the judicial process.”

Tenn. R. App. P. 13(b). When taken together, Rules 13(b) and 36(a) authorize appellate

courts to give “complete relief to the parties as long as they have been given fair notice

and an opportunity to be heard on the dispositive issues.” In re Kaliyah S., 455 S.W.3d

533, 540 (Tenn. 2015) (quoting Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d

911, 916 (Tenn. Ct. App. 2000) (internal quotation marks omitted)).

In deciding whether a party has waived an issue on appeal, we do not exalt form

over substance but instead review the record carefully to determine whether a party is

raising an issue for the first time on appeal. See Fayne v. Vincent, 301 S.W.3d 162, 171

n.6 (Tenn. 2009). A party does not waive an issue by phrasing it differently in the trial

court than on appeal. Fahrner v. SW Mfg., Inc., 48 S.W.3d 141, 143 n.1 (Tenn. 2001)

(noting that “the failure to use the right label does not result in a waiver”).

Here, Harbison filed a motion for new trial and two amended motions. Harbison’s

second amended motion asserted that “[i]t was error to allow the conviction of four

counts of the use of a firearm during the commission of a dangerous felony. [Tenn. Code

Ann. §] 39-17-1324. Only one conviction should have been allowed. There was only one

weapon being used during the incident[.]” At the hearing on the motion for new trial,

Harbison argued that the State overcharged the offenses in the indictment and that it was

error to allow four convictions for employment of a single firearm during the commission

of a dangerous felony. Harbison contended there should only be one conviction under

Tennessee Code Annotated section 39-17-1324 based on his use of one weapon during

one brief incident. The State responded that four firearm convictions were appropriate

because Harbison used a firearm to commit four dangerous felonies involving four

victims. The trial court overruled Harbison’s motion, concluding that four firearm

convictions were appropriate based on his conviction of four dangerous felonies with four

distinct victims.

Although Harbison should have more clearly stated his assertion of error in the

motion for new trial, we interpret the second amended motion for new trial and the

argument on the motion for new trial to mean that Harbison was claiming that he was

overcharged and convicted of multiple violations of Tennessee Code Annotated section

39-17-1324 based on a single act of employing one firearm. Although not well-stated, the

disputed issue was whether the proper unit of prosecution was the act of employing the

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firearm or the act of committing the underlying dangerous felony. Harbison focused on

his use of a single weapon, while the State emphasized the multiple underlying dangerous

felonies. Whether Harbison waived the issue of double jeopardy is a close question given

his failure to use the phrase “double jeopardy” or “unit of prosecution” in the trial court.

Although Harbison’s constitutional argument was not a model of precision or clarity, we

conclude that his amended motion for new trial was sufficient to direct the trial court’s

and the State’s attention to his challenge to multiple convictions for employing a firearm

during the commission of a dangerous felony when he fired a single weapon. Harbison’s

motions for new trial allowed the trial court to consider the issue and make an appropriate

ruling. See Fahey, 46 S.W.3d at 142 (quoting McCormic, 659 S.W.2d at 806).

Harbison argued in the Court of Criminal Appeals that the trial court erred by not

granting a new trial “where there was insufficient evidence to support conviction on more

than one count of possessing a firearm during a dangerous felony, and where the

Defendant possessed only one firearm during the shooting event.” He further argued that

the proper unit of prosecution was the number of firearms employed in the commission of

a dangerous felony, and there was no proof he used more than one firearm during the

single shooting event involving several individuals. The phrase, unit of prosecution, is

uniquely associated with claims of error based on double jeopardy. See Sanabria v.

United States, 437 U.S. 54, 69–70 (1978); State v. Itzol-Deleon, No. M2014-02380-SC-

R11-CD, 2017 WL 3668453, at *4 (Tenn. Aug. 25, 2017); State v. Feaster, 466 S.W.3d

80, 84 n.2 (Tenn. 2015); State v. Hogg, 448 S.W.3d 877, 885–86 (Tenn. 2014); State v.

Smith, 436 S.W.3d 751, 766 (Tenn. 2014); State v. Watkins, 362 S.W.3d 530, 543 (Tenn.

2012); State v. Lewis, 958 S.W.2d 736, 739 (Tenn. 1997); State v. Tolbert, 507 S.W.3d

197, 215 (Tenn. Crim. App. 2016); State v. Branham, 501 S.W.3d 577, 593 (Tenn. Crim.

App. 2016); State v. Aguilar, 437 S.W.3d 889, 907 (Tenn. Crim. App. 2013); State v.

Franklin, 130 S.W.3d 789, 797 (Tenn. Crim. App. 2003). As a result, the Court of

Criminal Appeals construed Harbison’s argument as a challenge to his firearm

convictions based on double jeopardy grounds. See Harbison, 2016 WL 4414723, at *25.

Although Harbison should have stated his argument with more precision, we hold that he

preserved the double jeopardy issue at trial and on appeal and did not waive the issue.

Double Jeopardy

The jury convicted Harbison of four counts of employing a firearm during the

commission of a dangerous felony in violation of Tennessee Code Annotated section

39-17-1324(b) based on his four convictions for the attempt to commit voluntary

manslaughter. See Tenn. Code Ann. § 39-17-1324(i)(1)(C), (M). Based on the

unappealed decision of the Court of Criminal Appeals that reversed one of Harbison’s

convictions for attempt to commit voluntary manslaughter and the accompanying firearm

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offense, Harbison stands convicted of three counts of attempted voluntary manslaughter

and three counts of employing a firearm during the commission of a dangerous felony.

The State argues there is no double jeopardy violation because the

firearm-employment convictions stem from three distinct predicate felonies against three

different victims. The State contends the unit of prosecution is each act of employing a

firearm during the commission of a dangerous felony. Harbison argues that the Court of

Criminal Appeals properly held that the multiple convictions for employing a firearm

during the commission of a dangerous felony violated the constitutional prohibition

against double jeopardy. Harbison contends that the unit of prosecution is the number of

firearms used. Therefore, he cannot be convicted of more than one count of employing a

firearm during the commission of a dangerous felony, regardless of the number of shots

fired or the number of underlying convictions for predicate felonies, because he used only

one firearm.

“Whether multiple convictions violate double jeopardy is a mixed question of law

and fact, which we review de novo with no presumption of correctness.” Smith, 436

S.W.3d at 766 (citing State v. Thompson, 285 S.W.3d 840, 846 (Tenn. 2009)); Watkins,

362 S.W.3d at 539 (citing Thompson, 285 S.W.3d at 846).

The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment, protects

individuals from “be[ing] subject for the same offence to be twice put in jeopardy of life

or limb.” U.S. Const. amends. V, XIV. The double jeopardy clause of the Tennessee

Constitution provides that “no person shall, for the same offense, be twice put in jeopardy

of life or limb.” Tenn. Const. art. I, § 10. These coextensive provisions afford separate

protections for criminal defendants against a second prosecution for the same offense

after acquittal, a second prosecution for the same offense after conviction, and multiple

punishments for the same offense. Smith, 436 S.W.3d at 766; Watkins, 362 S.W.3d at

541. The double jeopardy clause was intended to “prevent the criminal from being twice

punished for the same offense as being twice tried for it.” Id. at 541–42 (quoting Ex Parte

Lange, 85 U.S. 163, 173 (1873) (internal quotation marks omitted)).

The prohibition against multiple punishments in a single prosecution prevents

prosecutors from seeking and trial courts from imposing a sentence greater than the

legislature intended. Id. at 542 (quoting Missouri v. Hunter, 459 U.S. 359, 366 (1983));

see also Lewis, 958 S.W.2d at 739 (“When multiple sentences are imposed in a single

trial,” double jeopardy protection “is limited to assuring that the court does not exceed its

legislative authorization by imposing multiple punishments for the same offense.”

(quoting Brown v. Ohio, 432 U.S. 161, 165 (1977))). Where the legislature intended to

allow multiple punishments, the imposition of multiple punishments does not constitute

- 18 -

double jeopardy. See Watkins, 362 S.W.3d at 542 (quoting Albernaz v. United States, 450

U.S. 333, 344 (1981)). The double jeopardy clause does not limit the legislature’s

authority to define criminal offenses and prescribe punishments for those offenses. Id.

(citing Brown, 432 U.S. at 165).

Tennessee recognizes two types of single prosecution, multiple punishment

claims: multiple description claims and unit-of-prosecution claims. Smith, 436 S.W.3d at

766 (citing Watkins, 362 S.W.3d at 543). A multiple description claim is one in which a

defendant convicted of multiple criminal offenses under different statutes alleges that the

convictions result in double jeopardy because the statutes punish the “same offense.” Id.

(citing Watkins, 362 S.W.3d at 544). A unit-of-prosecution claim arises when a defendant

convicted of multiple violations of the same statute asserts that the multiple convictions

are for the same offense. Id. (citing Watkins, 362 S.W.3d at 543).

Here, the central question is whether Harbison is being subjected to multiple

punishments for the same offense. The answer to this question depends on how the unit

of prosecution is defined for an offense under Tennessee Code Annotated section

39-17-1324(b). To determine the unit of prosecution, we first review the statutory

language for an express definition. Hogg, 448 S.W.3d at 886 (quoting Smith, 436 S.W.3d

at 768). If the unit of prosecution is clear from the statute, we apply the plain language

without reviewing the legislative history. Id. (citing State v. Pope, 427 S.W.3d 363, 368

(Tenn. 2013); see Smith, 436 S.W.3d at 768 (citing State v. Mata, 321 P.3d 291, 295–96

(Wash. Ct. App. 2014)). If the plain language of the statute does not identify the unit of

prosecution, we determine the legislature’s intent by considering the legislative history

and examining the statute’s 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.” Lewis, 958 S.W.2d at 739 (quoting Mascari v. Raines, 415 S.W.2d 874,

876 (1967) (internal quotation marks omitted)). If there is ambiguity in defining the unit

of prosecution, the “rule of lenity” resolves the ambiguity in favor of the defendant. Id.;

Watkins, 362 S.W.3d at 543 (citing Gore v. United States, 357 U.S. 386, 391 (1958)).

We first review the language of Tennessee Code Annotated section

39-17-1324(b), which makes it a criminal offense to “employ a firearm during the: (1)

Commission of a dangerous felony; (2) Attempt to commit a dangerous felony.” A

“dangerous felony” is defined to include numerous offenses, including attempt to commit

first-degree murder and attempt to commit voluntary manslaughter. Id.

§ 39-13-1324(i)(1)(A)–(M). A violation of section 39-13-1324(b) is a “specific and

separate offense, which shall be pled in a separate count of the indictment or presentment

and tried before the same jury and at the same time as the dangerous felony.” Id.

§ 39-17-1324(d). Any sentence imposed for violation of section 39-13-1324(b) must be

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served consecutive to any other sentence imposed for the conviction of the underlying

dangerous felony. Id. § 39-17-1324(e)(1).

We conclude from the plain language of Tennessee Code Annotated section

39-17-1324 that it was the legislature’s intent to punish a defendant for each act of

employing or attempt to employ a firearm during the commission of a designated

dangerous felony. Tennessee Code Annotated section 39-17-1324 did not limit the State

to charging a single count of employing a firearm if multiple dangerous felonies were

committed against multiple victims in a single criminal episode. The General Assembly

could have imposed an express limitation as it did in subsection (c) of the statute which

states:

(c) A person may not be charged with a violation of subsection (a) or (b) if

possessing or employing a firearm is an essential element of the underlying

dangerous felony as charged. In cases where possession or employing a

firearm are elements of the charged offense, the state may elect to prosecute

under a lesser offense wherein possession or employing a firearm is not an

element of the offense.

Id. § 39-17-1324(c). It is significant that section 39-17-1324 provides that a violation of

subsection (a) or (b) is a specific and separate offense and must be pled in a separate

count of the indictment or presentment and tried before the same jury and at the same

time as the dangerous felony. Tenn. Code Ann. § 39-17-1324(d). This language

reinforces the conclusion that the General Assembly has authorized a separate employing

a firearm charge for each dangerous felony committed.

While not necessary for our consideration, we note the legislative history of the

statute supports this conclusion. First, the caption of the bill, which we may consider in

determining legislative intent, Womack v. Corr. Corp. of Am., 448 S.W.3d 362, 366

(Tenn. 2014); State ex rel. Rector v. Wilkes, 436 S.W.2d 425, 428 (Tenn. 1968) (citing

Sealed Power Corp. v. Stokes, 127 S.W.2d 114 (1939)), reads, in part:

Whereas, the General Assembly . . . finds that reducing violent crime would

greatly improve the safety and well-being of all Tennesseans; and . . . the

General Assembly takes notice of significant decreased violent gun crime

in other states following enhancement of punishment for repeat violent

criminal offenders; and . . . the General Assembly recognizes that legal

possession and use of firearms is a protected and highly valued

fundamental right . . . but illegal possession and use of firearms is a major

component of violent crime; and . . . the General Assembly has determined

that focusing on the most hardened, violent, unrepentant criminals . . . who

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endanger the public by committing crimes using guns is a logical way to

improve government’s performance in the area of public safely; and . . . the

General Assembly finds that protecting public safety and preserving order

is a primary obligation of government . . . .

2007 Tenn. Pub. Law Ch. 594 (S.B. 1967).

Statements made in Senate and House hearings indicate that Tennessee Code

Annotated section 39-17-1324 was part of an anti-crime package and “designed to

impose tougher sentences on those who commit crimes using guns.” Hearing on S.B.

1967 Before the S. Judiciary Comm., 105th Gen. Assemb. (Tenn. 2007) (statement of

Sen. Mark Norris, Bill Sponsor). Representative John J. DeBerry, Jr., stated that the

purpose of the corresponding House bill was to enhance gun crimes and incarcerate

violent offenders for longer periods of time to get them “off the streets . . . so they are not

out committing other crimes.” Hearing on H.B. 1835 Before the H. Fin., Ways & Means

Comm., 105th Gen. Assemb. (Tenn. 2007) (statement of Rep. John J. DeBerry, Jr., Bill

Sponsor).

Therefore, we conclude that the legislature intended the unit of prosecution for

Tennessee Code Annotated section 39-17-1324 to be each act of employing a firearm

during the commission of or attempt to commit a dangerous felony.12 Nothing in the

language of the statute indicates that the legislature intended to limit the unit of

prosecution to the number of firearms employed by a defendant. Therefore, Harbison’s

three convictions for employing a firearm during the commission of a dangerous felony

based on three convictions for the attempt to commit voluntary manslaughter involving

three victims do not violate the prohibition against double jeopardy.

12

See State v. Waters, No. W2015-01366-CCA-R3-CD, 2016 WL 4250146 (Tenn. Crim. App.

Aug. 10, 2016) (The defendant was convicted of four counts of employing a firearm during the

commission of a dangerous felony when he entered an apartment and fired at its occupants.), perm. app.

denied (Tenn. Oct. 21, 2016); State v. Gonzalez, No. W2014-02198-CCA-R3-CD, 2015 WL 9171064

(Tenn. Crim. App. Dec. 15, 2015) (The defendant was convicted of three counts of employing a firearm

during the commission of a dangerous felony when he fired a gun into a crowd of people.), perm. app.

denied (Tenn. Apr. 7, 2016); State v. Gray, No. W2015-00049-CCA-R3-CD, 2015 WL 7536105 (Tenn.

Crim. App. Nov. 24, 2015) (The defendant was convicted of four counts of employing a firearm when he

shot at a house occupied by multiple victims.), perm. app. denied (Tenn. Mar. 23, 2016).

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III.

After careful review, we reverse the judgment of the Court of Criminal Appeals

that the trial court erred by not granting Harbison a separate trial and that his convictions

for employing a firearm during the commission of a dangerous felony violated the

prohibition against double jeopardy. We reinstate Harbison’s three convictions for

attempted voluntary manslaughter and three convictions for employment of a firearm

during the commission of a dangerous felony and remand to the trial court for

resentencing and corrected judgments. It appearing that LaJuan Harbison is indigent, we

tax the costs of this appeal to the State of Tennessee.

____________________________

SHARON G. LEE, JUSTICE

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