        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               December 17, 2013 Session

         STATE OF TENNESSEE v. TERRENCE JUSTIN FEASTER

                   Appeal from the Criminal Court for Knox County
                   No. 97484    Jon Kerry Blackwood, Senior Judge


                  No. E2012-02636-CCA-R3-CD - Filed May 23, 2014




J OSEPH M. T IPTON, P.J., concurring in part; dissenting in part.

       I agree with the majority opinion’s conclusion that the evidence was sufficient to
convict appellant. Likewise, I agree with the conclusion that State v. Watkins, 362 S.W.3d
530 (Tenn. 2012), provides the current double jeopardy analysis and that the analysis
announced in Blockburger v. United States, 284 U.S. 299, 304 (1932), applies retroactively.
I respectfully disagree, though, with the majority opinion’s conclusion that a separate due
process analysis is unnecessary in the present case, and I believe the separate convictions
should be merged.

        The offenses occurred on May 27, 2010, twenty-two months before our supreme court
announced its decision in Watkins, applying the Blockburger same elements analysis in
determining whether dual convictions violate double jeopardy principles and abrogating the
previous double jeopardy analysis announced in State v. Denton, 938 S.W.2d 373 (Tenn.
1996). Under Watkins, double jeopardy is not violated “[i]f each offense contains an element
that the other offense does not.” Watkins, 362 S.W.3d at 544. As the majority opinion states,
this court has concluded that the Watkins analysis is to be applied retroactively regardless of
the offense date. See State v. Antonio Dockery, No. W2012-01024-CCA-R3-CD (Tenn.
Crim. App. Jan. 15, 2014); State v. Martin Boyce, No. W2012-00887-CCA-R3-CD (Tenn.
Crim. App. Aug. 6, 2013); State v. Dallas Jay Stewart, No. M2011-01994-CCA-R3-CD
(Tenn. Crim. App. July 22, 2013); State v. Mahlon Johnson, No. W2011-01786-CCA-R3-CD
(Tenn. Crim. App. Feb. 7, 2013).

       Although Watkins may apply retroactively, a question of due process arises when
offenses predate Watkins. In State v. Rogers, 992 S.W.2d 393 (Tenn. Crim. App. 1999), this
court considered the impact of ex post facto prohibitions on judicial decisions and stated,
       Although both the federal and state constitutional provisions refer only to
       legislative acts, the . . . Supreme Court has held that the Fifth and Fourteenth
       Amendments prohibit retroactive application of any “judicial construction of
       a criminal statute [that] is unexpected and indefensible by reference to the law
       which has been expressed prior to the conduct at issue.”

Id. at 402 (quoting Bouie v. City of Columbia, 378 U.S. 347, 354 (1964)). In the context of
double jeopardy, I conclude that when offenses predate Watkins and an analysis pursuant to
Watkins results in multiple convictions but results in merger of the convictions pursuant to
Denton, due process requires application of Denton.

       In the present case, appellant was convicted of aggravated assault and attempted
manslaughter. The majority opinion correctly concludes “that the attack on the victim did
not consist of two separate and discrete events” and that pursuant to Watkins appellant’s
convictions do not violate double jeopardy principles. I conclude, though, that due process
requires application of Denton in this case.

        In State v. Adams, 973 S.W.2d 224, 299 (Tenn. Crim. App. 1997), this court
concluded pursuant to Denton that convictions for aggravated assault and attempted first
degree murder were the same offenses for double jeopardy purposes. In Adams, the State
relied on the same evidence to establish both the aggravated assault and the attempted first
degree murder convictions, and the evidence showed one discrete act and one victim. Id.
The court concluded the proper procedure was to merge the convictions. Id.

        In the present case, the evidence shows that one continuous assault occurred, that only
one victim was involved, and that the State relied on the same evidence to support the
aggravated assault and attempted voluntary manslaughter convictions. The victim was in the
bathroom when appellant broke down the door and began assaulting her. She recalled being
dragged into the bedroom and waking up in the dining room. Appellant covered her head,
tied her feet with an electrical cord, and struck her with a gun. Appellant said that the
incident became “so physical . . . that it didn’t stop until she was down.” Based on these
facts, I conclude that due process and Denton require merger of the convictions. I would
vacate the judgments and remand the case to the trial court for entry of a single judgment
reflecting merger of the aggravated assault and attempted manslaughter convictions.




                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE



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