Tennessee’s Double Jeopardy standard may be applied retroactively, holds Tennessee Supreme Court

By Daniel A. Horwitz:

On May 27, 2010, Terrence Feaster savagely beat his housemate, dragged her into a bedroom, tied her feet to an entertainment center, and threatened to kill her if she moved.  Mr. Feaster was subsequently arrested and indicted for his crimes.  Following a trial, a jury convicted him of voluntary manslaughter, aggravated assault, and false imprisonment.  Over Mr. Feaster’s objection, the trial court declined to “merge” any of his convictions, meaning that it did not eliminate any of them for being duplicative.

Approximately two years after Mr. Feaster’s crimes, the Tennessee Supreme Court decided State v. Watkins.[1]  Watkins adopted a new test for determining when multiple convictions for offenses that arise under different statutes must be merged in order to avoid violating Tennessee’s Double Jeopardy clause.[2]  Importantly, Watkins also expressly abandoned the earlier (four-factor) merger test that the Tennessee Supreme Court had established in State v. Denton.[3]   For various reasons, the Denton rule was more favorable to criminal defendants than the Watkins rule, which is now in effect today.  Under the current Watkins standard, courts must conduct the following three-factor inquiry to determine whether a defendant’s convictions must be merged:

First: “Tennessee courts must focus upon ascertaining legislative intent.  If the General Assembly has expressed an intent to permit [or not to permit] multiple punishment, no further analysis will be necessary, and multiple convictions should be upheld against a double jeopardy challenge.”[4]

Second: “When there is no clear indication of legislative intent, the next consideration is whether the convictions arise from the same act or transaction; if they arise from different transactions, then no double jeopardy violation has occurred.”[5]

Third:  “If the convictions do arise from the same transaction, the question becomes whether each offense includes an element that the other does not—if so, there is a presumption that the General Assembly intended to permit multiple punishments; if not, the presumption is that multiple punishments are not permitted.”[6]

Because Mr. Feaster committed the crimes for which he was convicted before the Tennessee Supreme Court decided Watkins, he argued that the earlier and more favorable Denton rule should apply to his case instead.  Thus, the question presented in State v. Feaster was whether Mr. Feaster’s convictions should be governed by the Denton rule – which was in effect at the time he committed his crimes – or the Watkins rule, which was adopted two years later.  Perhaps surprisingly, the U.S. Supreme Court has held unequivocally that the federal Constitution’s “Ex Post Facto Clause does not apply to judicial decisionmaking,” so the Ex Post Facto Clause does not prevent retroactive application of new judicial rules.[7]  Instead, it is the Due Process clause that determines whether retroactive application of a judicial decision is so unfair that it violates the Constitution.

Based on applicable U.S. Supreme Court case law, the Tennessee Supreme Court held that the Watkins rule could indeed be applied retroactively without violating due process, and therefore, that Mr. Feaster was not entitled to have his convictions merged.  In Bouie v. City of Columbia, the U.S. Supreme Court explained that under the Due Process clause: “If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect.”[8]  This holding was subsequently reaffirmed by the U.S. Supreme Court in Rogers v. Tennessee, in which the Court reiterated that “a judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.”[9]

Applying that standard to Mr. Feaster’s case, the Tennessee Supreme Court set out to determine “whether [its] ruling in Watkins qualifie[d] as either indefensible or unexpected by reference to the law as it then existed.”  According to the Court’s unanimous opinion, Watkins was neither indefensible nor unexpected, so it could be applied retroactively.  The Court explained that Watkins had “brought [Tennessee] law into conformity with a majority of other jurisdictions and did not constitute ‘the sort of unfair and arbitrary judicial action against which the Due Process Clause aims to protect.’”  As a result, the Feaster Court held that “the retroactive application of Watkins does not offend due process, and [Mr. Feaster] is not entitled to have his double jeopardy claim evaluated pursuant to the Denton test.”

Consequently, following the Court’s decision in Feaster, it is clear that the Watkins Double Jeopardy standard applies to all defendants who seek to have their convictions merged regardless of when their offenses were committed.  Applying the Watkins rule to the specific facts of Mr. Feaster’s case, the Court explained that because voluntary manslaughter and aggravated assault “contain[] numerous elements that the other does not,” Mr. Feaster was not entitled to relief.

Read the Tennessee Supreme Court’s unanimous opinion in State v. Feaster here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Watkins, 362 S.W.3d 530 (Tenn. 2012).

[2] Id. at 556.

[3] Denton, 938 S.W.2d 373 (Tenn. 1996).  The specific holding of the Watkins court was that:  “Given the analytical shortcomings of the Denton test and the lack of any textual or historical basis suggesting that the Double Jeopardy Clause of the Tennessee Constitution mandates its adoption, we conclude that the time has come to abandon the Denton test.  We adopt the Blockburger same elements test currently utilized by the federal courts and the vast majority of our sister states.  The Blockburger test will enable Tennessee courts to determine in a more straightforward manner whether multiple convictions under different statutes violate the state constitutional double jeopardy prohibition against multiple punishment.”  Watkins, 362 S.W.3d at 556.

[4] State v. Watkins, 362 S.W.3d 530, 556 (Tenn. 2012).  See also Feaster (slip op. at 4) (“Watkins first and foremost requires a determination of legislative intent: if the General Assembly has clearly indicated that multiple

punishments should or should not be permitted, the inquiry ends there.”).

[5] Feaster (slip op. at 4).

[6] Id.

[7] Both the United States Constitution and the Tennessee Constitution prohibit “ex post facto” laws.  See U.S. Const. art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”); Tenn. Const. art. I, § 11 (“That laws made for the punishment of acts committed previous to the existence of such laws, and by them only declared criminal, are contrary to the principles of a free Government; wherefore no Ex post facto law shall be made.”)  For purposes of constitutional law, “An ex post facto law has been defined . . . as one ‘that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,’ or ‘that aggravates a crime, or makes it greater than it was, when committed.’” Bouie v. City of Columbia, 378 U.S. 347, 353 (U.S.S.C. 1964) (quoting Calder v. Bull, 3 Dall. 386, 390 (1798)).  However, the restrictions of the ex post facto clause, while similar to the limitations imposed by the Due Process clause, do not represent “jot-for-jot the specific categories of . . .  due process limitations on the retroactive application of judicial decisions.”  Id. Rogers v. Tennessee, 532 U.S. 451, 459 (2001).  As noted, the U.S. Supreme Court has held definitively that “the Ex Post Facto Clause does not apply to judicial decisionmaking.”  Id. at 462.

[8] 378 U.S. at 354 (internal quotations and citation omitted).

[9] Rogers v. Tennessee, 532 U.S. 451, 462 (2001).