         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                 September 10, 2002 Session

                 STATE OF TENNESSEE v. ANTONIUS HARRIS

                       Appeal from the Circuit Court for Gibson County
                               No. 6962   L.T. Lafferty, Judge



                   No. W2001-02617-CCA-R3-CD - Filed November 7, 2002




JOSEPH M. TIPTON, J., concurring.

        I concur with the majority opinion, save one aspect. I disagree with its implication that Rule
8(a), Tenn. R. Crim. P., has no bearing on superseding indictments. Rule 8(a) mandates that offenses
arising from the same conduct or criminal episode be joined in the same indictment, if the offenses
are known to the prosecutor at the time of indictment. The Committee Comment states:

                      The Commission wishes to make clear that section (a) is
               meant to stop the practice by some prosecuting attorneys of “saving
               back” one or more charges arising from the same conduct or from the
               same criminal episode. Such other charges are barred from future
               prosecution if known to the appropriate prosecuting official at the
               time that the other prosecution is commenced, but deliberately not
               presented to a grand jury.

(emphasis added). By their express terms, the Rule and the Comment speak of the indictment and
the commencement of the prosecution – not the trial – as the time the prosecutor must make a choice.

        The majority opinion is concerned that superseding indictments would almost always violate
Rule 8(a) if it applied and that such result would run contrary to the “long established, recognized
validity of superseding indictments.” It cites to State v. Harris, 33 S.W.3d 767, 771 (Tenn. 2000),
which does state that the power to seek a superseding indictment lies within the broad discretion of
the state. However, Harris also notes that the state’s discretion is “not infinite” and is subject to
limiting provisions in the Rules of Criminal Procedure. Id. I believe Rule 8(a) is such a limiting
provision.

       I do not believe that a superseding indictment that has charges relating to offenses known at
the time of the original indictment is exempt from the scope of Rule 8(a). In other words, I do not
believe that the prosecution may do by superseding indictment that which it may not do by separate
indictment. Nor do I believe that superseding indictments would almost always violate the rule. A
superseding indictment that essentially joins co-defendants or adds newly found offenses is not
contrary to Rule 8(a).

        In the present case, the record indicates that the superseding indictment included the
defendant’s wife as a co-defendant, increased the defendant’s aggravated kidnapping charges to
especially aggravated kidnapping charges, and reduced an attempted second degree murder charge
to aggravated assault. The prosecutor advised the trial court that increasing the kidnapping charges
to especially aggravating ones was a primary purpose in obtaining the superseding indictment.
However, the record does not show, nor did the defendant pursue, why certain charges increased
while another decreased. Thus, I cannot conclude that a violation of Rule 8(a) has been shown. I
do conclude that, in any event, the defendant was not improperly prejudiced by the state proceeding
on the superseding indictment.



                                                      ____________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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