24, 2017 Session Heard at Cookeville 
by Permission from the Court of Criminal Appeals Criminal
Court for Knox County No. 101406 Steven Wayne Sword, Judge.
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.
R. App. P. 11 Appeal by Permission; Judgment of the Court of
Criminal Appeals Reversed; Case Remanded to the Trial
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.
L. Gulley, Jr. (on appeal) and A. Philip Lomonaco (at trial),
Knoxville, Tennessee, for the appellee, LaJuan Harbison.
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.
G. LEE, JUSTICE.
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.
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. 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.
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.
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.
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.
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.
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.
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.
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.
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
counts of aggravated assault.
and Brown each testified in his own defense. Harbison,
eighteen years old at the time of the offense, previously
attended Austin-East High School. He knew Q.T. from when
Harbison taught drums to Vine Middle School students.
Harbison knew L.P. through his sister who had gone to
Austin-East High School with Harbison. On the day of the
shooting, Harbison was carrying a 9-millimeter handgun
because he feared Campbell and Brown, whom he suspected of
being involved in an incident at Harbison's mother's
house. Just before the shooting started, Harbison stopped his
vehicle near Austin-East High School after seeing an
approaching school bus in the opposite lane extend its stop
sign. Harbison then saw Brown get out of Campbell's
vehicle and approach L.P. and Q.T. Harbison recognized Brown
and Campbell and was surprised to see them in that part of
Knoxville. When Harbison saw L.P. and Q.T. hold up their
hands, Harbison believed Brown was robbing them. As Brown
stepped back towards Campbell's vehicle, Harbison saw
Brown draw a handgun and fire a shot. Harbison pulled his gun
and fired it twice into the air. Harbison claimed he fired
his gun only to protect L.P. and Q.T. and to prevent Brown
from robbing them. He said he did not intend to harm anyone.
After Harbison fired into the air, he heard "shots
coming up out of - from everywhere." Harbison, North,
King and "Little Paul" began firing their weapons.
As Harbison drove away, he continued to hear gunfire coming
from behind him.
to Brown, on the afternoon of September 7, he was riding in
the front seat of Campbell's vehicle. As the vehicle
passed a group of students standing near Austin-East High
School, Brown saw Q.T. signal to him. Campbell stopped the
vehicle so that Brown could get out and talk to L.P. and Q.T.
After a brief conversation, Brown realized that he did not
know them and went into "safety mode." He directed
Q.T. and L.P. to empty their pockets to see if they were
armed. As Brown was backing away toward Campbell's
vehicle, Brown heard a gunshot. He fell to the ground and
heard more shots, although he could not determine their
source. Campbell's vehicle left, and Brown ran away.
Brown denied attempting to rob L.P. and Q.T. or having a gun
that day. Brown also denied that he had ever previously
possessed a weapon. Brown had no recollection of a video of
him and his cousin, Cuben Lagrone, riding around while
brandishing weapons. To refresh his recollection, the State
played Brown the video, but Brown claimed he did not
recognize the voices or the faces. On rebuttal, a Knoxville
Police Department officer explained that he had obtained
Lagrone's cell phone while investigating an August 2012
shooting at Harbison's mother's house. The cell phone
contained multiple videos of Lagrone and Brown, including the
one shown to Brown. The officer identified Lagrone and Brown
in the video, which showed the men driving around Knoxville
at night and listening to music. Lagrone was holding a Smith
and Wesson handgun, while Brown brandished a firearm with an
extended magazine. One man can be heard saying,
"[expletive deleted] the police." After passing
multiple police cars, one man says, "there go the boys.
jury found Harbison guilty of four counts of the attempted
voluntary manslaughter of L.P., Brown, Campbell, and M.W. and
four counts of employing a firearm during the commission of a
dangerous felony. The jury convicted North of four counts of
the attempted voluntary manslaughter of L.P., Brown,
Campbell, and M.W. and four counts of employing a firearm
during the commission of a dangerous felony; convicted Brown
of two counts of the attempted voluntary manslaughter of
Harbison and North, two counts of employing a firearm during
the commission of a dangerous felony, and two counts of
aggravated assault of L.P. and Q.T.; and convicted Campbell
of two counts of aggravated assault of L.P. and Q.T. and
acquitted him of remaining charges. The trial court sentenced
Harbison to an effective sentence of twenty-two
amended motions for new trial challenged the denial of his
motion for severance; the sufficiency of the evidence, which
included a challenge to the multiple convictions for
employing a firearm during the commission of a dangerous
felony; and the excessiveness of his sentence. The trial
court denied Harbison's motions for new trial.
appealed. The Court of Criminal Appeals reversed and
remanded for a new trial, finding that the trial court erred
in denying the motion for severance; that the convictions for
employing a firearm during the commission of a dangerous
felony violated the prohibition against double jeopardy; that
the evidence was insufficient to support his conviction for
the attempted voluntary manslaughter of L.P. and the
accompanying firearm conviction; and that the trial court did
not err in determining Harbison's sentence. State v.
Harbison, No. E2015-00700-CCA-R3-CD, 2016 WL 4414723, at
*31 (Tenn. Crim. App. Aug. 18, 2016).
granted the State's application for permission to
appeal. The issues we address are:
(1) Whether the trial court abused its discretion by denying
Harbison's motion for severance.
(2) Whether Harbison properly raised a double jeopardy issue
in the trial court and the Court of Criminal Appeals or