Merger of Offenses
The Legal Issue
Whether convictions for attempted voluntary manslaughter and aggravated assault should have been merged under due process principles.
Facts of the Criminal Defense Case
The defendant assaulted his girlfriend and savagely beat her over some period of time. He was convicted of both aggravated assault and attempted voluntary manslaughter for the same attack on the victim.
The intermediate appellate court affirmed both convictions and found that because aggravated assault and attempted voluntary manslaughter each require proof of a fact not required in proving the other, the offenses are not multiplicitous and the dual convictions do not violate the prohibition against double jeopardy. The court found that a due process analysis was unnecessary and that the trial judge properly declined to merge the convictions because each statute punishes different criminal behavior, not because the two offenses were based on separate, discrete events. Judge Tipton issued a dissent contending that Due Process would compel a merger of the convictions here because there was one continuous assault involving only one victim and the state relied on the same evidence to support the aggravated assault and attempted voluntary manslaughter convictions.
Review Granted: October 24, 2014.
David believes that the Tennessee Supreme Court will adopt Judge Tipton’s opinion which dissented in part. An earlier decision of the Supreme Court abolished the prior “merger” doctrine. Judge Tipton correctly analyzed the case law and determined that when offenses predate the alteration of the “merger doctrine” a Due Process issue may arise in the context of the impact of ex post facto prohibitions on judicial decisions.
As a practical matter, if the Tennessee Supreme Court adopts Judge Tipton’s position then State v. Watkins, 363 S.W.3d 530 (Tenn. 2012) will not be applied retroactively if the case is pending on appeal. David believes that is a sound result since Watkins was certainly an unexpected judicial instruction of the criminal statutes.