State of Tennessee v. Antonius Harris - Concurring ( 2002 )


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  •          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
    -2-
    

Document Info

Docket Number: W2001-02617-CCA-R3-CD

Judges: Judge Joseph M. Tipton

Filed Date: 11/7/2002

Precedential Status: Precedential

Modified Date: 10/30/2014