State v. Harbison

539 S.W.3d 149

STATE of Tennessee

v.LaJuan HARBISON

No. E2015-00700-SC-R11-CD

Supreme Court of Tennessee, AT KNOXVILLE.

May 24, 2017 Session Heard at Cookeville¹

FILED January 9, 2018

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.

Unpublished Text Follows End of Unpublished Text

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.

SHARON G. LEE, J.

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.

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