IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

May 5, 2015 Session

STATE OF TENNESSEE v. TERRENCE JUSTIN FEASTER

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Knox County

No. 97484 Jon Kerry Blackwood, Senior Judge

No. E2012-02636-SC-R11-CD – Filed June 25, 2015

The defendant was convicted of attempted voluntary manslaughter, aggravated assault, 

and false imprisonment. After determining that the separate convictions for attempted 

voluntary manslaughter and aggravated assault did not violate double jeopardy, the trial 

court imposed consecutive sentences totaling twenty-six years, eleven months, and 

twenty-nine days. A divided panel of the Court of Criminal Appeals affirmed, finding no 

double jeopardy violation. This Court granted the defendant‟s application for permission 

to appeal to determine whether due process safeguards prohibit the retroactive application 

of the double jeopardy standard adopted in State v. Watkins, 362 S.W.3d 530 (Tenn. 

2012), which was decided after the date of his offenses. The defendant argues that the 

former double jeopardy standard set out in State v. Denton, 938 S.W.2d 373 (Tenn. 

1996), should apply. Because our ruling in Watkins cannot be classified as “unexpected”

or “indefensible” by reference to prior law, due process does not preclude its retroactive 

application. The judgment of the Court of Criminal Appeals is affirmed.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal 

Appeals Affirmed

GARY R. WADE, J., delivered the opinion of the Court, in which SHARON G. LEE, C.J., 

and CORNELIA A. CLARK, JEFFREY S. BIVINS, and HOLLY KIRBY, JJ., joined.

Stephen Ross Johnson, Knoxville, Tennessee, for the appellant, Terrence Justin Feaster.

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor 

General; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney 

General; and Leslie Nassios and Federico Flores, Assistant District Attorneys General, 

for the appellee, State of Tennessee.
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OPINION

I. Facts and Procedural History

In the early morning hours of May 27, 2010, Molly Kate McWhirter (the “victim”) 

was seriously injured during an altercation with Terrence Justin Feaster (the 

“Defendant”) at her Knoxville residence. Several weeks later, the Defendant was 

apprehended in South Carolina. Thereafter, he was extradited to Tennessee and indicted 

on one count of attempted first degree murder, one count of aggravated assault, two 

counts of especially aggravated kidnapping, and one count of aggravated robbery.

At trial, the State‟s proof established that the Defendant had been living at the 

victim‟s residence for approximately two weeks before she drove him to a sports bar on 

the night of May 26, 2010. After an hour or so, the Defendant became “really drunk,”

and so the victim drove him back to her residence. According to the victim, when she 

went to her bathroom, the Defendant broke through the door and “just started beating 

[her].” She testified that he then dragged her into the bedroom, where he tied her feet to 

an entertainment center and threatened to kill her if she moved. The victim recalled that 

she momentarily lost consciousness, and when she awoke, she was able to free herself 

and run to the residence of a neighbor, who called 911. The police officers who 

responded to the scene found significant amounts of blood in the bathroom, bedroom, 

dining room, and living room.

After being transported by ambulance to a hospital, the victim remained 

unconscious for the next three days. Dr. William Snyder Jr., the victim‟s treating 

neurosurgeon, diagnosed a temporal skull fracture, a dislocation of the jaw, several 

lacerations on the forehead and scalp, nasal fractures, bilateral pulmonary contusions, and 

soft-tissue injuries to the arms. When the victim returned home, she found that several of 

her possessions were missing—jewelry, cash, clothing, a computer, and her purse and its 

contents. The victim denied that she and the Defendant had argued prior to the assault or 

that she had threatened him with a gun.

The Defendant testified that he and the victim met a man called “D” at the bar. 

When the victim left the bar with “D,” the Defendant followed her outside and found her

“kissing on” him. The Defendant claimed that he became so angry and embarrassed that 

he began walking home. He contended that the victim followed, driving his vehicle, and 

persuaded him to get inside. He recalled that they began to argue and, after they arrived 

at the victim‟s residence, she initiated the altercation with two or three punches to his

face. According to the Defendant, when he retaliated by hitting her in the nose, the 

victim pointed a pistol in his direction. He asserted that he “grabbed the pistol from her,” 

and when she continued to attack him, he used it to strike her in the head, eventually 

knocking her to the bathroom floor.
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The Defendant claimed that the victim then asked him to remove all the drugs and 

guns from the property and to call 911. The Defendant maintained that he drove to the 

residence of a friend, who agreed to call 911 but refused to accept the drugs and two guns

that he had brought with him. The Defendant contended that he had initially intended to 

visit the victim at the hospital, but decided instead to drive to Myrtle Beach, South 

Carolina, where he was scheduled to perform at a concert. The Defendant denied taking 

any property from the victim other than the drugs and guns.

The jury convicted the Defendant of attempted voluntary manslaughter, as a lesser 

included offense of attempted first degree murder; aggravated assault; and one count of 

false imprisonment, as a lesser included offense of especially aggravated kidnapping. He 

was acquitted of the aggravated robbery charge and one of the two counts of especially 

aggravated kidnapping. The trial court declined to merge any of the convictions and 

imposed consecutive sentences of twelve years for the attempted voluntary manslaughter, 

fourteen years for the aggravated assault, and eleven months and twenty-nine days for the 

false imprisonment.

A divided panel of the Court of Criminal Appeals affirmed the convictions and 

sentences. State v. Feaster, No. E2012-02636-CCA-R3-CD, 2014 WL 2170096, at *14 

(Tenn. Crim. App. May 23, 2014). Dissenting in part, Judge Joseph M. Tipton concluded 

that the trial court should have merged the convictions for attempted voluntary 

manslaughter and aggravated assault pursuant to the double jeopardy principles set forth 

in State v. Denton, 938 S.W.2d 373, 378-81 (Tenn. 1996), which was in effect at the time 

of the offenses but was later overruled by this Court in State v. Watkins, 362 S.W.3d 530, 

556 (Tenn. 2012). Feaster, 2014 WL 2170096, at *14 (Tipton, P.J., concurring in part 

and dissenting in part). We granted review to determine whether Watkins may be applied 

retroactively.

II. Standard of Review

This appeal involves a question of constitutional interpretation, which we review 

de novo, affording no presumption of correctness to the conclusions of the trial court. 

State v. Crank, No. E2012-01189-SC-R11-CD, 2015 WL 603158, at *4 (Tenn. Feb. 13, 

2015).

III. Analysis

The sole issue is whether the Defendant‟s convictions for attempted voluntary 

manslaughter and aggravated assault should be merged based upon the double jeopardy 
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principles set out in Denton.

1

The Federal Double Jeopardy Clause provides that “[n]o person shall . . . be 

subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. 

amend. V. Tennessee‟s Double Jeopardy Clause provides “[t]hat no person shall, for the 

same offence, be twice put in jeopardy of life or limb.” Tenn. Const. art I, § 10. These 

provisions “protect[] against successive prosecutions for the same offense after acquittal 

or conviction and against multiple criminal punishments for the same offense.” Monge v. 

California, 524 U.S. 721, 727-28 (1998); State v. Smith, 436 S.W.3d 751, 766 (Tenn. 

2014). In Denton, this Court adopted a four-factor test for determining whether multiple 

convictions were for “the same offense” such that they had to be merged pursuant to the 

Double Jeopardy Clause of the Tennessee Constitution: (1) whether, viewing the 

statutory elements “in the abstract” in accordance with Blockburger v. United States, 284 

U.S. 299 (1932), each offense includes an element which the other does not; (2) whether 

the same evidence was used to establish the offenses; (3) whether the offenses involved 

multiple victims or discrete acts; and (4) whether the statutes serve the same purpose. 

Denton, 938 S.W.2d at 381. No single factor of the Denton test was determinative; 

rather, the factors were to “be weighed and considered in relation to each other.” Id.

More recently, in Watkins, this Court abandoned the four-part test from Denton, 

holding that a double jeopardy claim by a defendant who has been convicted of multiple 

crimes under different statutes must be evaluated pursuant to the same-elements test 

established by the U.S. Supreme Court in Blockburger. Watkins, 362 S.W.3d at 556.2 

Consistent with Blockburger, Watkins first and foremost requires a determination of

legislative intent: if the General Assembly has clearly indicated that multiple 

punishments should or should not be permitted, the inquiry ends there. Id. at 556. When

there is no clear indication of legislative intent, the next consideration is whether the 

convictions arise from the same act or transaction; if they arise from different 

transactions, then no double jeopardy violation has occurred. Id. If the convictions do 

arise from the same transaction, the question becomes whether each offense includes an 

element that the other does not—if so, there is a presumption that the General Assembly 

 

1 While the State asserts that the Defendant waived this issue by failing to properly 

present it before the Court of Criminal Appeals, we have chosen to exercise our discretion to 

address the issue on the merits. See Tenn. R. App. P. 13(b).

2 Claims “in which defendants who have been convicted of multiple criminal offenses 

under different statutes allege that the convictions violate double jeopardy” are commonly 

referred to as “multiple description” claims. Id. at 544. In contrast, “unit-of-prosecution” claims

“arise when defendants who have been convicted of multiple violations of the same statute assert 

that the multiple convictions are for the „same offense.‟” Id. at 543. The Blockburger test 

applies only to multiple description claims, id. at 543-44, such as the claim at issue here.
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intended to permit multiple punishments; if not, the presumption is that multiple 

punishments are not permitted. Id. at 557. While these steps are typically determinative, 

Watkins also allows for consideration of whether the presumption for or against multiple 

punishments is contradicted by “other evidence of legislative intent, including the 

purposes and history of the relevant statutes.” Id.

In this instance, a majority of the Court of Criminal Appeals panel applied the 

Blockburger test, as directed by Watkins, and reached the following conclusions: (1) the 

convictions arose from “one continuous course of conduct”; (2) nevertheless, the offenses 

are not multiplicitous “because aggravated assault and attempted voluntary manslaughter 

each require proof of a fact not required in proving the other”; and (3) “legislative intent 

does not preclude the dual convictions.” Feaster, 2014 WL 2170096, at *11. Thus, the 

majority found no violation of double jeopardy and held that a merger of the two offenses 

was not required. Id.

While the State maintains that the majority properly applied Watkins, the

Defendant, adopting the rationale of the dissent, argues that the rule in Denton should 

apply and would produce a different result. Because his offenses occurred before 

Watkins was decided, the Defendant contends that evaluating the double jeopardy issue 

pursuant to Watkins violates his right to due process. The Defendant relies upon a series 

of U.S. Supreme Court decisions delineating certain “limitations on ex post facto judicial 

decision-making” which are “inherent in the notion of due process.” Rogers v. 

Tennessee, 532 U.S. 451, 456 (2001) (citing Bouie v. City of Columbia, 378 U.S. 347 

(1964)).

In Bouie, the U.S. Supreme Court considered the South Carolina Supreme Court‟s 

retroactive application of a newly adopted interpretation of a criminal trespass statute. 

378 U.S. at 349 & n.1. Although prior South Carolina cases had uniformly required as an 

element of the offense that defendants receive notice that entry is prohibited, the South 

Carolina court upheld the convictions of Bouie and his co-defendant by construing the 

statute to extend to patrons of a business who did not receive notice prior to entry, but 

refused to leave when asked to do so. Id. at 350 & n.2. Relying upon the basic principle 

of due process that a criminal statute must provide “fair warning,” the U.S. Supreme

Court ruled that “[i]f a judicial construction of a criminal statute is „unexpected and 

indefensible by reference to the law which had been expressed prior to the conduct in 

issue,‟ [the construction] must not be given retroactive effect.” Id. at 354 (quoting 

Jerome Hall, General Principles of Criminal Law 61 (2d ed. 1960)). The Court held that 

the South Carolina court‟s retroactive application of its new construction violated due 

process because the construction had no support in the law in effect at the time of the 

offenses. Id. at 355-56.
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The U.S. Supreme Court applied the same principle in Marks v. United States, 

which involved the application of a federal statute prohibiting the transportation of 

obscene materials. 430 U.S. 188, 189 (1977). At the time of the alleged misconduct, 

obscenity statutes were subject to the stringent First Amendment standard set out in 

Memoirs v. Massachusetts, which provided constitutional protection unless the 

prosecution could show that the materials were “utterly without redeeming social value.” 

383 U.S. 413, 418 (1966) (plurality opinion). Later, in Miller v. California, 413 U.S. 15, 

24 (1973), the Court rejected the Memoirs test in favor of a less restrictive standard,3

thereby “expand[ing] criminal liability” under the obscenity statutes. Marks, 430 U.S. at 

193-94. Because the new constitutional interpretation had “the same [effect] as the new 

construction in Bouie,” the Court held “that the Due Process Clause preclude[d] the 

application . . . of the standards announced in Miller” as to any offense that predated 

Miller. Id. at 195-96.

In State v. Rogers, this Court abolished the year-and-a-day rule, a common law 

doctrine which barred a murder conviction “unless the victim died within a year and one 

day of the injury.” 992 S.W.2d 393, 396 (Tenn. 1999), aff‟d, 532 U.S. 451 (2001). This 

Court concluded that the ruling could apply retroactively without violating due process

because “the judicial abrogation of the year-and-a-day rule [was] not an unexpected 

judicial construction that [was] indefensible by reference to prior law.” Id. at 402. The 

U.S. Supreme Court, which affirmed, made the following observations:

[T]he Tennessee court‟s abolition of the year and a day rule was not 

unexpected and indefensible. The year and a day rule is widely viewed as 

an outdated relic of the common law. . . .

. . . [T]he year and a day rule has been legislatively or judicially 

abolished in the vast majority of jurisdictions recently to have addressed the 

issue. . . . Due process, of course, does not require a person to apprise 

himself of the common law of all 50 States in order to guarantee that his 

actions will not subject him to punishment in light of a developing trend in 

the law that has not yet made its way to his State. At the same time, 

 

3

The standard set out in Miller consists of the following factors:

(a) whether the average person, applying contemporary community standards 

would find that the work, taken as a whole, appeals to the prurient interest, 

(b) whether the work depicts or describes, in a patently offensive way, sexual 

conduct specifically defined by the applicable state law; and (c) whether the work, 

taken as a whole, lacks serious literary, artistic, political, or scientific value.

413 U.S. at 24 (citations and quotation marks omitted).
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however, the fact that a vast number of jurisdictions have abolished a rule 

that has so clearly outlived its purpose is surely relevant to whether the 

abolition of the rule in a particular case can be said to be unexpected and 

indefensible by reference to the law as it then existed.

. . . .

There is, in short, nothing to indicate that the Tennessee court‟s 

abolition of the rule in petitioner‟s case represented an exercise of the sort 

of unfair and arbitrary judicial action against which the Due Process Clause 

aims to protect. Far from a marked and unpredictable departure from prior 

precedent, the court‟s decision was a routine exercise of common law 

decisionmaking in which the court brought the law into conformity with

reason and common sense.

Rogers, 532 U.S. at 462-64, 466-67; see also Metrish v. Lancaster, 133 S. Ct. 1781, 1785 

(2013) (concluding that the Michigan Supreme Court‟s retroactive abrogation of the 

defense of diminished capacity did not entitle the petitioner to federal habeas corpus 

relief).

The State first argues that the Defendant is not entitled to relief because Watkins, 

which altered our constitutional double jeopardy analysis, did not modify the construction 

of a criminal statute, as occurred in Bouie, 378 U.S. at 350, or alter “a common law 

doctrine of criminal law,” as occurred in Rogers, 532 U.S. at 462. We find this argument 

unpersuasive because in Marks, the U.S. Supreme Court recognized that the retroactive 

application of a constitutional interpretation may violate due process. 430 U.S. at 195-

96. The significant question, therefore, is whether our ruling in Watkins qualifies as 

either indefensible or unexpected by reference to the law as it then existed. 

In 1975, well before Denton, a member of this Court described the multiplepunishment issue in Tennessee as a “vexatious and recurring problem,” observing that

our courts had struggled to craft a consistent approach “both as to the rules and as to their 

application.” State v. Black, 524 S.W.2d 913, 923 (Tenn. 1975) (Henry, J., dissenting).

The four-factor test in Denton failed to remedy these problems. In Watkins, we first 

confirmed that the rule in Denton had not been adopted in any other jurisdiction, 362 

S.W.3d at 547 & n.28, and further observed as follows:

Unfortunately, the Denton test has not successfully resolved the 

“vexatious and recurring” questions regarding this Court‟s double jeopardy 

analysis. Not only has its application produced inconsistent results that 

defy reconciliation, the test itself suffers from analytical defects and an 
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incongruity with the key constitutional consideration in multiple 

punishment cases—that of ascertaining legislative intent. Furthermore, . . . 

the Denton test fails to focus sufficiently upon the distinct categories of 

multiple punishment claims—unit of prosecution and multiple description. 

Finally, the Denton test rests upon an uncertain constitutional foundation.

Id. at 549 (footnote omitted). Because of “the analytical shortcomings of the Denton test 

and the lack of any textual or historical basis suggesting that the Double Jeopardy Clause 

of the Tennessee Constitution mandates its adoption,” this Court abandoned the test in 

favor of Blockburger, which by that time had been adopted by both “the federal courts 

and the vast majority of our sister states.” Id. at 556.

Our rejection of the Denton test and adoption of the federal standard in Watkins

cannot be classified as “unexpected and indefensible by reference to the law as it then 

existed.” Rogers, 532 U.S. at 464; see also Bouie, 378 U.S. at 354. In contrast to the 

unique test adopted by this Court in Denton, the Blockburger test had stood as the federal 

double jeopardy standard since 1932 and, by the time of our ruling in Watkins, had been 

adopted by an overwhelming number of state courts. Cf. Rogers, 532 U.S. at 462-63 

(holding that this Court‟s abolition of the year-and-a-day rule was not unexpected or

indefensible where the rule had been rejected “in the vast majority of jurisdictions”). 

This Court‟s adoption of the Blockburger test—which had previously been a component 

of the Denton test—brought our law into conformity with a majority of other jurisdictions 

and did not constitute “the sort of unfair and arbitrary judicial action against which the 

Due Process Clause aims to protect.” Id. Accordingly, the retroactive application of 

Watkins does not offend due process, and the Defendant is not entitled to have his double 

jeopardy claim evaluated pursuant to the Denton test.4

Having determined that the Defendant‟s double jeopardy claim is governed by 

Watkins, the Defendant is not entitled to relief. Although the Defendant‟s convictions for 

attempted voluntary manslaughter and aggravated assault arose out of the same incident, 

each of those offenses contains numerous elements that the other does not. Compare

Tenn. Code Ann. § 39-13-211(a) (“Voluntary manslaughter is the intentional or knowing 

killing of another in a state of passion produced by adequate provocation sufficient to 

lead a reasonable person to act in an irrational manner.”), and id. § 39-12-101(a)(3)

 

4 Although we have not previously addressed the specific issue before us in this case, we 

note that both this Court and the Court of Criminal Appeals have consistently applied Watkins in

cases involving offenses that predated that decision—including Watkins itself. See, e.g., State v. 

Hogg, 448 S.W.3d 877, 886-87 (Tenn. 2014); State v. Cross, 362 S.W.3d 512, 519-22 (Tenn. 

2012) (decided on the same day as Watkins); State v. Dockery, No. W2012-01024-CCA-R3-CD,

2014 WL 172379, at *13 (Tenn. Crim. App. Jan. 15, 2014).
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(defining criminal attempt, in pertinent part, as “[acting] with intent to complete a course 

of action or cause a result that would constitute the offense, under the circumstances 

surrounding the conduct as the person believes them to be, and the conduct constitutes a 

substantial step toward the commission of the offense”), with id. §§ 39-13-101(a)(1), 

-102(a)(1) (defining aggravated assault, in pertinent part, as intentionally causing serious 

bodily injury to another). As to the final component of the Blockburger test, there is no 

evidence that the General Assembly intended to prohibit multiple punishments in 

circumstances such as these. In summary, the applicable principles of double jeopardy 

do not preclude the dual convictions.

IV. Conclusion

Because the Defendant is not entitled to the merger of his convictions for 

aggravated assault and attempted voluntary manslaughter, the judgments of the trial court 

and the Court of Criminal Appeals are affirmed. It appearing that the Defendant is 

indigent, costs are taxed to the State.

____________________________

GARY R. WADE, JUSTICE