Tag Archives: Tennessee Constitutional Law

Tennessee Supreme Court: If you commit any minor driving infraction in Tennessee, you can be pulled over. Also, you’re a criminal.

By Daniel Horwitz:

Tennessee drivers beware:  stray outside your lane – even an inch, and even for just a moment – and you’re subject to being seized and arrested by law enforcement.  Also, you’ve just committed a crime that can land you in jail for up to a month.

In a pair of companion cases handed down by the Tennessee Supreme Court on Thursday afternoon, the Court observes that “[o]ur legislature has chosen to criminalize the common driving infraction” of crossing lane lines.  Moreover, the Court explains, the fact that “drivers in Tennessee [] cross lane lines ‘all the time’” makes no difference.  No matter how minor the offense, if you’re suspected of having committed any driving infraction of any kind anywhere in the state, then neither the Fourth Amendment nor the Tennessee Constitution will protect you.

These holdings – surprising as they may seem – actually bring Tennessee law in line with the overwhelming majority of jurisdictions that have analyzed the issue over the past twenty years.  In 1996, the United States Supreme Court handed down a controversial – though unanimous – Fourth Amendment decision in Whren v. United States, 517 U.S. 806, 819 (1996).  Authored by the late Supreme Court Justice Antonin Scalia, Whren involved a police seizure for a minor traffic offense that had every appearance of being pretextual.  Although there was strong reason to believe that the real reason why the driver had been stopped was because he was suspected of carrying drugs, the Supreme Court held without equivocation that an officer’s subjective reasons for pulling someone over do not matter.  Simply stated, if police officers “ha[ve] probable cause to believe that [a driver has] violated the traffic code,” then that fact alone “render[s] the stop reasonable under the Fourth Amendment.”

The Tennessee Supreme Court’s decisions in State v. Smith and State v. Davis represent straightforward extensions of this holding, although their potential for abuse is frightening.  Both cases involved drivers who were pulled over for momentarily crossing over lane lines.  On December 6, 2012, after being followed by a trooper without incident for approximately two-and-a-half miles, Defendant Linzey Smith was pulled over for “cross[ing] the fog line ‘by less than six inches’” as she negotiated a winding, sloping portion of a roadway.  Similarly, on October 23, 2009, Defendant William Davis, Jr. was pulled over after his car’s two left wheels briefly drifted over the double yellow line splitting a two-lane road.  After being pulled over, both drivers exhibited signs of intoxication, and each was ultimately arrested for DUI.

The question presented in both cases was whether law enforcement had the requisite level of suspicion to pull the drivers over in the first place.  Both the Fourth Amendment and Article I, Section 7 of the Tennessee Constitution protect individuals from unreasonable seizures.  There is also no doubt – at least in theory – that “an individual does not lose her constitutional rights against unreasonable seizures by driving a car.”[1]  Further, longstanding caselaw establishes that “[a] police officer seizes a motorist when he turns on his blue lights in order to pull the motorist over.”[2]  As a result, every traffic stop implicates an individual’s rights under the Fourth Amendment and the Tennessee Constitution, and all traffic stops must be justified by a minimum level of suspicion.

Generally speaking, two separate types of seizures are permitted under the Constitution.  If law enforcement has probable cause to believe that an individual has committed a crime, then an officer may make a full-scale custodial arrest.  Alternatively, if law enforcement has reasonable suspicion to believe that a criminal offense has been or is about to be committed, then an officer may initiate a brief investigatory stop to investigate the matter further.[3]

Notably, “[t]he level of reasonable suspicion required to support an investigatory stop is lower than that required for probable cause.”[4]  Although non-technical and imprecise, federal judges estimate probable cause and reasonable suspicion to reflect certainty levels of roughly 45% and 31%, respectively.[5]  However, both types of seizures must be justified by specific, articulable facts.

Tennessee law provides that crossing over a lane line even momentarily is a Class C misdemeanor that is punishable by up to 30 days in jail and a $50.00 fine.[6]  Consequently, because the troopers in both Smith and Davis had at least reasonable suspicion to believe that the drivers had strayed from their lanes, the Tennessee Supreme Court held that in each instance, the traffic stops were constitutionally permissible.  The Court also reiterated, however, that “slight weaving within one’s lane ordinarily will not support a stop under any standard.”[7]

In this regard, the Court’s holdings in Smith and Davis are unremarkable.  Broadly considered, they simply reflect the U.S. Supreme Court’s now routine indication that: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”[8]  What is concerning, however, is their profound potential for abuse.

In affirming the legality of the stops at issue, the Tennessee Supreme Court candidly acknowledged the reality that nearly all drivers constantly deviate from their lanes.  “We are confident that drivers in Tennessee [] cross lane lines ‘all the time,’” Justice Bivins’ unanimous opinion declares.  Given this state of affairs, however, it is now a fact of life that virtually any driver in Tennessee can be stopped and jailed anywhere and at any time simply on an officer’s whim for no reason other than that it is impossible to drive perfectly within one’s lane at all times.[9]  Additionally, although the Court went to great lengths to caution that its holdings were “not intended to provide law enforcement officers with ‘carte blanche’ to seize motorists every time they see a vehicle cross a [lane] line,” as a matter of practical reality, they do just that.

Any number of commentators have expressed serious reservations about this development in constitutional jurisprudence.  Perhaps most troublingly, giving police nearly unchecked authority to seize any driver, anywhere, at any time is eerily reminiscent of the “general warrants” that were abused by the British during the pre-revolutionary period—abuses which gave rise to the very existence of the Fourth Amendment itself.[10]  Moreover, Justice Bivins’ observation that “an officer has discretion as to when to stop drivers” – and his additional efforts to emphasize that “[w]e do not mean to require or imply that a stop should be made in all such instances” – should provide Tennesseans little comfort.  If past is prologue, affording all law enforcement officers virtually unfettered discretion to stop, search and arrest any Tennessee driver anywhere and at any time is all but guaranteed to lead to profound abuse of authority and disproportionate enforcement against marginalized groups.  In particular, poor minorities will continue to bear the brunt of minor traffic stops—often for purely pretextual reasons—while whiter, wealthier drivers remain unmolested.  For obvious reasons, to those unlucky few who do not receive the benefit of an officer’s benevolent discretion not to pull them over every time they cross over a lane line, the Tennessee Supreme Court’s efforts to mollify the vast scope of its holdings will be of vanishingly small consolation.

Click to read the Tennessee Supreme Court’s unanimous opinions in State v. Smith and State v. Davis.

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

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[1] See Delaware v. Prouse, 440 U.S. 648, 662-63 (1979).

[2] See State v. Pulley, 863 S.W.2d 29, 30 (Tenn. 1993).

[3] State v. Binette, 33 S.W.3d 215, 218 (Tenn. 2000) (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968)).

[4] State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008).

[5] See C.M.A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 Vand. L. Rev. 1293, 1325-28 (1982).

[6] See generally Tenn. Code Ann. § 55-8-103 (2008) (“It is unlawful and, unless otherwise declared in this chapter and chapter 10, parts 1-5 of this title with respect to particular offenses, it is a Class C misdemeanor, for any person to do any act forbidden or fail to perform any act required in this chapter and chapter 10 of this title.”); Tenn. Code Ann. § 55-8-123(1) (“A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from that lane until the driver has first ascertained that the movement can be made with safety;”); Tenn. Code Ann. § 40-35-111(e) (“The authorized terms of imprisonment and fines for misdemeanors are: . . .  (3) Class C misdemeanor, not greater than thirty (30) days or a fine not to exceed fifty dollars ($50.00), or both, unless otherwise provided by statute.”).

[7] In this regard, the Court reaffirmed its prior holding in State v. Binette, 33 S.W.3d 215, 219-20 (Tenn. 2000).

[8] Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549 (2001).

[9] Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 TEMP. L. REv. 221, 252-73 (1989).

[10] See id.  See also Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev. 1413, 1413 (Spring, 2013) (“[o]ur streets and highways have become a police state where officers have virtually unchecked discretion about which cars to stop for the myriad of traffic offenses contained in state statutes and municipal ordinances”); David A. Moran, The New Fourth Amendment Vehicle Doctrine: Stop and Search Any Car at Any Time, 47 Vill. L. Rev. 815, 816 (2002) (“the police may, in their discretion, stop and search any vehicle at any time”); Elizabeth Ahern Wells, Note, Warrantless Traffic Stops: A Suspension of Constitutional Guarantees in Post September 11th America, 34 U. Tol. L. Rev. 899, 899 (Summer, 2003) (stating that traffic stops have “evolved into a veritable green light for police officers, resulting in a complete disregard for personal security”).

Tennessee Public Protection Act claims do not include a right to a jury trial, holds Tennessee Supreme Court.

By Daniel A. Horwitz

After being accused of sexually harassing a city clerk, Mr. David Young – then the city administrator for the City of LaFollette – was fired by a majority vote of the LaFollette City Council.  Thereafter, Mr. Young sued the City in Circuit Court for retaliatory discharge under the Tennessee Public Protection Act.[1]  In his complaint, Mr. Young requested a jury trial, which the City opposed.  Ultimately, the dispute over whether Mr. Young was entitled to a jury trial was appealed to the Tennessee Supreme Court.  After considering several disparate constitutional and statutory provisions, the court concluded that Mr. Young had neither a constitutional nor a statutory right to have his case tried by a jury, and thus, his request for a trial by jury was denied.

Initially, the City argued that the Government Tort Liability Act (GTLA) expressly precluded a right to trial by jury.  The GTLA specifically states that claims brought under its provisions shall be tried “without the intervention of a jury.”[2]  According to the court, however, the Tennessee Public Protection Act is “an independent statute which establishes its own rights and remedies apart from the procedures that apply under the GTLA.”[3]  Thus, the GTLA’s prohibition against jury trials did not apply.

Separately, the Tennessee Constitution expressly includes a right to trial by jury.  Specifically, Tenn. Const. art. I, § 6 provides that “the right of trial by jury shall remain inviolate[.]”  Notwithstanding this apparent clarity, however, the Tennessee Supreme Court has held repeatedly that art. I, § 6 only provides a narrow right to trial by jury for claims that “existed at common law.”[4]  Incongruously, in practical terms, this means that the Tennessee Constitution only guarantees a right to trial by jury for claims that existed “under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.”[5]  In this particular case, because the Tennessee Public Protection Act “was enacted by the Tennessee Legislature in 1990, almost two hundred years after the adoption of the first Tennessee Constitution,” the court explained that art. I, § 6 did not apply to Mr. Young’s retaliatory discharge claim, either.[6]

Continue reading Tennessee Public Protection Act claims do not include a right to a jury trial, holds Tennessee Supreme Court.

Tennessee Supreme Court Affirms Conviction Despite Prosecutor Submitting Wrong Allegation to Jury

By Daniel A. Horwitz

The Supreme Court of Tennessee’s opinion in State v. Knowles presents an undeniably horrifying set of facts involving multiple allegations of rape of a young child.  Considered apart from the outrageous crime involved, however, the legal issue presented in Knowles was fairly straightforward.  In child sexual abuse cases where the jury has heard proof of more than one alleged instance of sexual misconduct, Tennessee law requires the prosecution to “elect” the particular offense for which it is seeking a conviction.  The “election” requirement serves at least five separate purposes, although the majority’s opinion only mentions two of them.

First, the election requirement serves to “allow the State some latitude in the prosecution of criminal acts committed against young children who are frequently unable to identify a specific date on which a particular offense was committed.”[1]  Second, it “preserve[s] a criminal defendant’s right under [Article I, Section 6 of] the state constitution to a unanimous jury verdict”[2] by ensuring that the jurors “deliberate over and render a verdict on the same offense.”[3]  Additionally, however, as Justice Wade’s dissenting opinion reflects, the election requirement also: [3] “ensures that a defendant is able to prepare for and make a defense for a specific charge,” [4] “protects a defendant against double jeopardy by prohibiting retrial on the same specific charge,” and [5] “enables the trial court and the appellate courts to review the legal sufficiency of the evidence.”[4]

In this case, the prosecution misidentified the factual basis for the charged offense by mistakenly “electing” to submit an allegation to the jury that all parties agree did not occur.  Specifically, the prosecution elected to allege that one particular sexual act had taken place, when in fact, the evidence clearly reflected that a different act occurred.  Unfortunately, this mistake was perpetuated in the trial court’s instructions to the jury, which read, in pertinent part, that: Continue reading Tennessee Supreme Court Affirms Conviction Despite Prosecutor Submitting Wrong Allegation to Jury

Beacon Center Sues Nashville Over Airbnb Regulations

By Daniel A. Horwitz

The Beacon Center of Tennessee has sued the city of Nashville over its recent Airbnb ordinance.  According to its press release:

“In a major development, the Beacon Center today announced the formation of a brand new litigation arm, the Beacon Center Legal Foundation, and filed its first lawsuit. The Beacon Center is suing the city of Nashville on behalf of P.J. and Rachel Anderson. They are challenging unconstitutional regulations the city has placed on their ability to rent their home on Airbnb, a website that connects homeowners like them with guests visiting Nashville.”

The Beacon Center’s complaint, which is accessible here,  alleges myriad constitutional violations of both the U.S. and Tennessee Constitution, including:

  1. Violations of Article I, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (vagueness);
  1. Violations of Article I, Section 19 of the Tennessee Constitution and the First Amendment to the U.S. Constitution (commercial speech);
  1. Violations of Article I, Section 8 and Article XI, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (equal protection);
  1. Violations of Article I, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (substantive due process);
  1. Violation of Article I, Section 22 of the Tennessee Constitution (anti-monopoly); and
  1. Violation of Article I, Section 7 of the Tennessee Constitution and the Fourth Amendment to the U.S. Constitution (unreasonable administrative search).

The complaint also claims Continue reading Beacon Center Sues Nashville Over Airbnb Regulations

Tennessee Supreme Court holds that a special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims.

By Daniel A. Horwitz

A special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims, the Tennessee Supreme Court has held.

The Tennessee Supreme Court had previously held that in order to protect a defendant’s right to due process under the Tennessee Constitution, a special jury instruction is required in certain cases involving both kidnapping and a more serious criminal offense, such as robbery, burglary or rape.  The basis for this special jury instruction – which is known as a “White” instruction in light of the eponymous Tennessee Supreme Court case State v. White[1] – traces back to the Tennessee Supreme Court’s earlier decision in the 1991 case State v. Anthony.[2]  In Anthony, the Tennessee Supreme Court recognized that “the offense of kidnapping. . . at times ‘could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.’”[3]

Stated differently, because “[i]t is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained,” the Anthony court expressed concern that a defendant could be convicted for two separate crimes –kidnapping as well as a more serious crime – when the defendant had only truly committed the more serious crime.[4]  In other words: “Where a defendant is charged with kidnapping and an accompanying offense involving some confinement . . . , there are appropriate due process concerns that the defendant could be convicted of two crimes—e.g. robbery and kidnapping—when he has only committed one crime—robbery.”[5]  More simply, as one Court of Criminal Appeals Judge once explained the issue:  “I do not believe the legislature intended robbers to be prosecuted as kidnappers.”[6] Continue reading Tennessee Supreme Court holds that a special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims.

Tennessee Supreme Court denies inmates’ request to challenge constitutionality of the electric chair, but holds that they will have the opportunity to do so in the future.

By Daniel A. Horwitz

[Disclosure:  The author was represented as an amicus curiae in this case as one of twenty-two members of the Tennessee Bar Association, and he has previously written about and spoken about his opposition to capital punishment on several occasions.]

In the latest round of litigation over the constitutionality of Tennessee’s death penalty protocol, thirty-five death-sentenced inmates[1] filed a lawsuit against several Tennessee prison officials challenging the constitutionality of the electric chair as a method of execution.  The inmates’ claims in this particular case arose out of Tennessee’s “Capital Punishment Enforcement Act” (CPEA), which is codified at Tenn. Code Ann. § 40-23-114(e).  Following nationwide difficulties securing the chemicals necessary to implement Tennessee’s pre-existing lethal injection protocol, the state legislature enacted the CPEA in 2014 in an effort to permit the use of the electric chair as an alternative method of execution should the requisite lethal injection chemicals be unavailable.

The Government opposed the inmates’ challenge to the constitutionality of the electric chair in part on the basis that Continue reading Tennessee Supreme Court denies inmates’ request to challenge constitutionality of the electric chair, but holds that they will have the opportunity to do so in the future.

The Second Circuit weighs in on economic protectionism, an issue which could affect Nashville’s proposed local hire referendum

By Daniel A. Horwitz

The U.S. Court of Appeals for the Second Circuit has officially weighed in on an issue that looks increasingly likely to reach the U.S. Supreme Court:  Whether laws that promote pure economic protectionism — known in economic terms as “rent seeking” — are prohibited by the 14th Amendment to the Constitution.  As this blog has previously explained, with Nashville’s voters contemplating adding a “local hire” provision to the Metropolitan Charter this August, this debate appears poised to return to Tennessee soon as well.

The Second Circuit’s opinion helpfully outlines the divergence of authority that has emerged with respect to this issue, noting:

In recent years, some courts of appeals have held that laws and regulations whose sole purpose is to shield a particular group from intrastate economic competition cannot survive rational basis review.  See St. Joseph Abbey v. Castille, 712 F.3d 215, 222 (5th Cir. 2013) (“[N]either precedent nor broader principles suggest that mere economic protection of a particular industry is a legitimate governmental purpose[.]”); Merrifield v. Lockyer, 547 F.3d 978, 991, n.15 (9th Cir. 2008) (“[M]ere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review.”); Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (“[P]rotecting a discrete interest group from economic competition is not a legitimate governmental purpose.”).  The Tenth Circuit, on the other hand, has squarely held that such a protectionist purpose is legitimate.  See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004) (“[A]bsent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest.”).

Ultimately, the majority opinion flatly concludes that:  “economic favoritism is rational for purposes of our review of state action under the Fourteenth Amendment.”

Rejecting the majority’s conclusion on this point, however, the similarly informative concurring opinion penned by Judge Christopher Droney reaches a directly contrary view.  Judge Droney explains:

[T]here must be at least some perceived public benefit for legislation or administrative rules to survive rational basis review under the Equal Protection and Due Process Clauses.  As the majority acknowledges, only the Tenth Circuit has adopted the view that pure economic protectionism is a legitimate state interest.  See Powers v. Harris, 379 F.3d 1208, 1221 (10th Cir. 2004).  Two of the circuits that reached the opposite conclusion expressly rejected the Tenth Circuit’s approach.  See St. Joseph Abbey v. Castille, 712 F.3d 215, 222‐23 (5th Cir. 2013); Merrifield v. Lockyer, 547 F.3d 978, 991 n.15 (9th Cir. 2008).

I agree with the Fifth Circuit’s reasoning in St. Joseph Abbey, particularly insofar as it disputes the Tenth Circuit’s reliance in Powers on the very Supreme Court cases that the majority cites in support of its holding here.  See St. Joseph Abbey, 712 F.3d at 222 (“[N]one of the Supreme Court cases Powers cites stands for that proposition [that intrastate economic protectionism is a legitimate state interest].    Rather, the cases indicate that protecting or favoring a particular intrastate industry is not an illegitimate interest when protection of the industry can be linked to advancement of the public interest or general welfare.” (emphasis in original)); see also Powers, 379 F.3d at 1226 (Tymkovich, J., concurring) (“Contrary to the majority . . ., whenever courts have upheld legislation that might otherwise appear protectionist . . ., courts have always found that they could also rationally advance a non‐protectionist public good.” (emphasis in original)).

A review of the Supreme Court decisions confirms the Fifth Circuit’s conclusion that some perceived public benefit was recognized by the Court in upholding state and local legislation. . .

As this author has previously noted, the U.S. Court of Appeals for the Sixth Circuit — which has jurisdiction over Tennessee — was the first Circuit court to resolve this issue, holding in Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) that: “protecting a discrete interest group from economic competition is not a legitimate governmental purpose.”   The Tennessee Supreme Court has reached a similar conclusion with respect to the Tennessee Constitution, concluding in Consumers Gasoline Stations v. City of Pulaski, 292 S.W.2d 735, 737 (Tenn. 1956) that: “Although [a] city may have the right to regulate [a] business, it does not have the right to exclude certain persons from engaging in the business while allowing others to do so.”

Whether this line of authority will cause Nashville’s local hire ordinance to be invalidated — and whether the U.S. Supreme Court will definitively answer the question to resolve the growing divergence of authority — only time will tell.

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

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Can Rep. Womick Impeach Governor Haslam and U.S. Supreme Court Justices Breyer, Ginsburg, Kagan, Kennedy and Sotomayor over the same-sex marriage ruling?

Can Rep. Womick impeach Governor Haslam and U.S. Supreme Court Justices Breyer, Ginsburg, Kagan, Kennedy and Sotomayor over the same-sex marriage ruling?

In a word:  No.

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Does the Constitution prevent Nashville from enacting a local hire law? Yes, it probably does.

By Daniel A. Horwitz

On August 6, 2015, Davidson County voters will head to the polls to vote on Metro Charter Amendment 3, which has been dubbed the “local hire” amendment.  If enacted, the crux of Amendment 3 is that 40% of the work performed on taxpayer-funded construction projects within Davidson County would legally have to be set aside for Davidson County residents.

In recent weeks, opposing advocates have expressed their views on Charter Amendment 3 in editorials published in The Tennessean.  First, on June 22, 2015, union organizer and community activist Ashford Hughes penned the op ed: “[A] Vote for Charter Amendment 3 is [a] vote for local jobs,” in which he argued – among other things – that “[i]t makes no sense to bring in out-of-county and out-of-state hires when so many Nashville construction workers, engineers and skilled tradesmen and women are out of work.”  Making the contrary case, on June 30, 2015, Nashville Area Chamber of Commerce President Ralph Schulz penned the op ed: “Vote no on Amendment 3: It sounds good, but won’t work,” contending that the measure “would translate to longer delays on Metro construction projects and more money coming out of taxpayers’ pockets.”  Various other interested parties have also weighed in on the matter in recent days, disputing the referendum’s likely policy ramifications.

What has largely flown under the radar to this point, however, are the constitutional implications of the proposed local hire amendment, which are substantial.[1]  The text of the proposed amendment is a doozie, but in full, it reads as follows: Continue reading Does the Constitution prevent Nashville from enacting a local hire law? Yes, it probably does.

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