### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Septem ber 10, 200 2 Session STATE OF TENN ESSEE v. ANTONIU S HARRIS Appeal from the Circuit Court for Gibson County No. 6962 L.T. Lafferty, Judge

No. W2001-02617-CCA-R3-CD - Filed Nove mber 7, 2002

J OSEPH M. T IPTON , J., c oncur ring.
I concur with the maj ority

opinion, sa

ve one a spect. I

disagr ee with it s implicat

ion that Rul e 8(a), Tenn. R. Crim. P., has no bearing on superseding indictments. Rule 8(a) mandates that offense s arising from the same conduct or criminal episode be joined in the same indictment, if the offenses are known to the pr

osecutor at the time

of indictm

ent. The Committee C omment sta tes: The Commission wishes to ma ke clea r that section (a) i s me an t t o s to p t he pr ac ti ce by s om e p ro se cu ti ng at to rn eys of “saving back” one or

more charges arising f

rom the same conduct or from the samecrimin al episode. Such other charges ar e barred from future prosecution

if known to the appro pri ate pros ecuting officia l at the time that the o ther pro secutio n is commenced , but deliberately not pr es en te d t o a gr an d j ur y. (emphas is added). By

their expr

ess 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 makea choice.
The majority opinion is concerned tha t superseding indictmen

ts would al

most alwa ys 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. H arris , 33 S.W.3d 767, 771 (Tenn. 2000), which does state that

the powe r to seek a supers eding in

dictment l ies within the broad discretion of the state. However, Harris also note s that the s tate’s di scretion is “not i n finite” a

nd is subje ct to limiting provision s in th e Rules of Criminal Procedure. Id. I believe Rule 8(a) is such a limiting provision.
I do notbelieve that a supersedingindictment that has charges relating to off enses known at the time of the original indictment is exempt from the scope of Rule 8(a). I n other words, I do

not-2-

believe that the prosecution may do by superseding indictment that which it may not do by s eparat

e indictmen t. Nor do I

believe that superseding indictments would almost alway s violate the rule. A superse din g indictme nt that essentially joins co-defe ndants or adds newly f

ound offenses is not contrary to Rule 8(a).
In the present case, the record indicate s that the superseding indictment included the defendant’s wife as a co-def endant , increa sed the de

fendant ’s agg

ravate d kidnapp ing cha

rges to especia lly aggravated kidnapping

charges, and reduced an attempted second degree murde r charge to aggravated assa

ult. The prosecutor advised the trial court that increasing the kidnapping charges to especia

lly a ggra vating o nes was a pri mary purpose in obtaining the sup erseding indict ment. However, the rec ord does not s how, nor did the defendant pursue, why certain charges incre ased 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 improper ly prejudiced by the

state proceeding on the superseding indictment.

____________________________________ JOSEPH M. TIPTON, JUDGE