State v. Berry

503 S.W.3d 360, 2015 Tenn. LEXIS 925
CourtTennessee Supreme Court
DecidedNovember 16, 2015
StatusPublished
Cited by104 cases

This text of 503 S.W.3d 360 (State v. Berry) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Berry, 503 S.W.3d 360, 2015 Tenn. LEXIS 925 (Tenn. 2015).

Opinion

[361]*361ORDER

PER CURIAM

This case is before the Court upon the application of the Defendant, Marquize Berry, under Rule 11 of the Tennessee Rules of Appellate Procedure. We have determined that the application should be summarily granted and a portion of the judgment of the Court of Criminal Appeals should be reversed for the reasons set forth below.

The Defendant was indicted on one count each of attempted first degree murder, aggravated assault, and employing a firearm during the commission of a dangerous felony. A jury subsequently convicted the Defendant of the lesser-included offense of attempted second degree murder on count one and convicted , him as charged on counts two and three. The trial court sentenced the Defendant as a Range I standard offender to an effective sentence of sixteen years’ incarceration. The record reflects that the trial court completed a uniform judgment document for each count. The judgment document for count one denotes the conviction for attempted second degree murder and the imposition of a ten-year sentence. The judgment document for count two denotes the conviction for aggravated assault and the' imposition of a -six-year sentence. In the box marked “Special Conditions,” the trial court indicated that count two merged with count one. Finally, the judgment document for count three denotes the employing a firearm conviction and a six-year sentence, running consecutively to the ten-year sentence imposed on count one.

In his direct appeal, the Defendant challenged only the sufficiency of the evidence supporting his attempted second degree murder conviction. After reviewing the evidence, the Court of Criminal Appeals af[362]*362firmed the Defendant’s conviction of attempted second degree murder. State v. Berry, No. W2014-00785-CCA-R3-CD, 2015 WL 1278415, at *4 (Tenn. Crim. App. Mar. 18, 2015).

The Berry panel opined, however, that the judgment documents contained errors that “require correction.” Id. Citing State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997), the panel explained that “because the [Djefendant’s conviction of aggravated assault in count two must merge with his conviction for attempted second degree murder on count one, no judgment form was needed for count two.” Id. As a result, the Berry panel vacated the judgment on count two and instructed the trial court to amend the judgment on count one to reflect that count two merged into count one.1 Id.

Pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure, the Defendant asked this Court to review the determination of the Court of Criminal Appeals that the evidence was sufficient to support his attempted second degree murder conviction. Having reviewed the record, we agree that the evidence was sufficient to support the conviction and find no basis for relief. We respectfully disagree, however, with the Berry panel’s discussion regarding the completion of judgment forms for merged convictions. Although this issue was not raised in the Defendant’s application, we take this opportunity to provide instruction to the bench and bar regarding the proper completion of uniform judgment documents in such instances.

It is well settled in Tennessee that, under certain circumstances, two convictions or dual guilty verdicts must merge into a single conviction to avoid double jeopardy implications. For example, merger is required when a jury returns verdicts of guilt on two offenses and one of the guilty verdicts is a lesser-included offense of the other offense. See, e.g., State v. Davis, 466 S.W.3d 49, 77 (Tenn. 2015) (holding that conviction on lesser-included offense of reckless homicide -was properly merged into conviction on greater offense of second degree murder). Merger also is required when a jury returns guilty verdicts on two counts that represent alternative theories of the same offense. See, e.g., State v. Cribbs, 967 S.W.2d 773, 788 (Tenn. 1998) (discussing merger of guilty verdicts on counts of both first degree premeditated murder and first degree felony murder); State v. Cooper, 336 S.W.3d 522, 523-34 (Tenn. 2011) (modifying the judgments of conviction to' merge separate guilty verdicts for DUI and DUI per se). In the instant case, the validity of these merger principles is not at issue.2

As the present case illustrates, however, our' courts do not share a common understanding as to how a single “merged conviction” should be recorded on the resulting judgment document or documents. While some courts-use separate judgment [363]*363forms for each verdict on each count, other courts use a single judgment form for the merged conviction. These opposing viewpoints emerged in the years following the release of Addison by the Court of Criminal Appeals. In Addison, the defendant’s indictment charged him with first degree felony murder in count one and with first degree premeditated murder in count two. Addison, 973 S.W.2d at 265. After the jury returned guilty verdicts on both counts, the defendant argued that these dual findings violated double jeopardy principles. Id. at 266. The Court of Criminal Appeals rejected this argument, stating that “the jury verdict stands as a legitimate finding ■of fact and law which the trial court should preserve by merging the same offense counts into one judgment of conviction for first degree murder that notes the merger of counts with each other.” Id. at 267.

The Addison holding frequently has been cited by the Court of Criminal Appeals as a basis to remand cases for correction of the judgments. See, e.g., State v. Calloway, No. M2011-00211-CCA-R3-CD, 2014 WL 1394653, at *29 (Tenn. Crim. App. Apr. 4, 2014) (remanding matter to trial court for entry of single judgment indicating merger of conviction of reckless aggravated assault into conviction of aggravated child neglect), perm, app. denied (Tenn. Sept. 25, 2014); State v. Henning, No. W2005-00269-CCA-R3-CD, 2007 WL 570553, at *4 (Tenn. Crim. App. Feb. 23, 2007) (remanding matter to trial court to vacate judgment of conviction of aggravated assault and to amend judgment of conviction of aggravated robbery to reflect merger of aggravated assault conviction); State v. Cartwright, No. M2003-00483-CCA-R3-CD, 2004 WL 1056064, at *5-6 (Tenn. Crim. App. May 10, 2004) (remanded for entry of a single judgment of conviction to indicate merged offenses).

The post-Addison decisions reveal that the lack of consensus in the lower courts centers on the meaning assigned to the phrase “single judgment of conviction.” Those who advocate the use of one document for two merged convictions have concluded that a “single judgment of conviction” necessarily must be effectuated by a single judgment “document.” We respectfully disagree.

In the context of criminal jury trials, many of our rules and related statutory provisions use the terms “judgment” and “judgment of conviction.” For example, Tennessee Code Annotated section 40-20-101 provides generally that the trial court must “pronounce judgment” after a verdict. Tenn. Code Ann. § 40-20-101 (a) (2012).

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Bluebook (online)
503 S.W.3d 360, 2015 Tenn. LEXIS 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-berry-tenn-2015.