State of Tennessee v. Brian Hervery

The defendant, Brian Hervery, was convicted by a Shelby County Criminal Court jury of attempted second degree murder, a Class B felony; three counts of aggravated assault, a Class C felony; and one count of the employment of a firearm during the commission of a dangerous felony. The trial court merged one of the convictions of aggravated assault into the conviction for attempted second degree murder and sentenced the defendant as a Range I offender to concurrent terms of ten years for the attempted murder conviction and three years for the aggravated assault convictions. Because the defendant had a prior conviction for voluntary manslaughter, the court sentenced him to ten years at 100% for the firearm conviction and ordered that the sentence be served consecutively to the ten-year sentence for attempted murder, in accordance with Tennessee Code Annotated section 39-17-1324. The defendant raises four issues on appeal: (1) whether the trial court erred by granting the State’s motion in limine to exclude evidence that would have shown the victims’ bias; (2) whether the trial court erred by not declaring a mistrial following the prosecutor’s improper closing comments; (3) whether the evidence was sufficient to sustain the convictions; and (4) whether the trial court imposed an excessive sentence. Following our review, we affirm the judgments of the trial court.