        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Remanded by the Supreme Court August 21, 2013

               STATE OF TENNESSEE v. RICCO R. WILLIAMS

                Appeal from the Circuit Court for Lauderdale County
                     No. 8856    Joseph H. Walker, III, Judge




               No. W2011-02365-CCA-RM-CD - Filed January 7, 2014




J AMES C URWOOD W ITT, J R., J., concurring and dissenting.

               I respectfully write separately to express departure from the majority with
respect to the absence of the White instruction in the especially aggravated kidnapping
convictions wherein M.R., K.R., and A.R. were respectively named victims. I emphasize that
I do not disagree with the logic underlying the majority’s conclusion that due process
principles do not impact these three convictions, the victims of which were not also named
victims in accompanying felonies. Rather, I disagree with the implication emanating from
Anthony that due process principles constrict the use of kidnapping convictions against
victims even though those victims were not victims in any accompanying felony. This
vestige of the Anthony regime should be specifically overruled, but I view that as a
responsibility of our supreme court.

               Before plunging into the rabbit warren of due process issues, I point out that
the due process issue was not raised by either party in this appeal. Therefore, the White-trial
error that I perceive ultimately must be analyzed for the presence of plain error. See Tenn.
R. App. P. 13(b).

              Prior to State v. White, 362 S.W.3d 559 (Tenn. 2012), our supreme court
adjudicated cases which featured such supernumerary kidnapping victims. In State v.
Anthony, 817 S.W.2d 259 (Tenn. 1991), the case that started the due process imbroglio that
White attempted to resolve, the defendant was convicted of offenses that he committed
during the robbery of a Shoney’s Restaurant in Knoxville. Specifically, he was convicted of
the armed robbery of Al Kesterson, the restaurant manager, and of the aggravated
kidnappings of Mr. Kesterson and five other restaurant employees whom the defendant and
his accomplice had encountered and detained during the episode. Anthony, 817 S.W.2d at
301. After formulating the concept of due process that governs convictions of kidnapping
and an accompanying felony, the Anthony court then applied the concept to all convictions
of aggravated kidnapping, despite that only Mr. Kesterson was the victim of the single armed
robbery.

                In State v. Richardson, 251 S.W.3d 438 (Tenn. 2008), the defendant pleaded
guilty to a single offense of attempted especially aggravated robbery; yet, the supreme court,
after analyzing the due process issue, affirmed convictions of especially aggravated
kidnapping as they related to two kidnapping victims who were employees of a restaurant.

                In neither Anthony nor Richardson did the supreme court specifically address
the existence of kidnapping victims who were not the victims of the accompanying felony
of robbery. Nevertheless, the global application of due process principles in those cases
informs us that, during the reign of Anthony and its progeny, the due process bar to
prosecuting the kidnapping charge did not depend upon the kidnapping victim’s being a
victim of the accompanying felony. That said, White overruled Anthony and signaled a new
remedy or methodology for applying due process principles when a kidnapping charge is
combined with an accompanying felony; however, Anthony appears to remain vital to the
extent that it validates the use of due process principles to scrutinize kidnapping convictions
aligned with overlapping felonies. I have reviewed White to gain insight into the issue at
hand, but other than the “standing alone” language, I find little. White informs me that, “[a]t
the conclusion of the proof, the jury returned verdicts of guilt[y] for burglary, aggravated
robbery, and especially aggravated kidnapping.” White, 362 S.W.3d at 564. Although the
opinion does not expressly say, I infer that White received single convictions of each of these
offenses. The court implied that a single victim, Ms. Wright, was the victim of both the
aggravated robbery and the especially aggravated kidnapping. See id. I have reviewed the
jury instruction promulgated in White for a clue about whether the kidnapping victim must
be a victim of the accompanying felony for the due process rule to apply, but I really discern
nothing informative on this point. Although I believe that the thrust of White and State v.
Terrance Antonio Cecil, 409 S.W.3d 599 (Tenn. 2013), is to diminish the ambit of due
process concerns relative to kidnapping (or false imprisonment) convictions, I see nothing
other than the highlight of the “standing alone” language that has changed the rule so as to
require as a function of due process principles that the kidnapping victim be also a victim of
the accompanying felony. In other words, the Anthony rule regarding supernumerary victims
appears to be a function of the due process principle at work and not a question of remedy
or methodology. If so, it is still viable and should be applied. In that event, all of the victims
of the especially aggravated kidnappings in the present case are similarly situated for
purposes of the threshold application of the due process analysis of White.



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               From this point, however, the task at hand becomes more complex: These five
kidnapping convictions are juxtaposed against not one but two accompanying aggravated
robbery charges. Two of the kidnapping victims were victims of the aggravated robberies.
Furthermore, the aggravated robbery of Ms. Currie was modified to aggravated assault by
this court on appeal.

               I begin by determining that the due process issue was fairly raised concerning
all kidnapping victims vis a vis both aggravated robberies. See Poe v. State, 370 S.W.2d 488,
489 (1963) (indicating that, generally, a trial court is obliged to instruct the jury on the rules
of law that apply to the issues at trial); State v. Williams, 914 S.W.2d 940, 949 (Tenn. Crim.
App.1995) (indicating that the duty of the trial court to charge the jury arises when an issue
is fairly raised by the evidence and that no duty to charge on that issue arises when the
evidence fails to fairly raise it). The five victims were moved and detained in facilitation of
the robberies. Thus, the facts, as outlined above, required the trial court to impart the White
jury instruction. See State v. Bennie Osby, No. W2012-00408-CCA-R3-CD (Tenn. Crim.
App., Jackson, Nov. 2, 2012), perm. app. denied (Tenn. 2013).

               Given that the kidnapping convictions overlap with the charged aggravated
robberies of Mr. Currie and Ms. Currie, it becomes inconsequential to the analysis that some,
if not all, of the kidnapping convictions do not overlap the ultimate conviction of the
aggravated assault of Mr. Currie. The kidnappings of Mr. Currie, M.R., K.R., and A.R., at
least, do not seem to be in furtherance of, or incidental to, the similarly perpetrated assault
of Ms. Currie. (Neither is the kidnapping of Ms. Currie in furtherance of her assault if we
view the assault as occurring and ending at the inception.) As to at least these four
kidnapping victims, the White instructional issue is probably not fairly raised, but it matters
not because I have already found that all five kidnapping convictions are infirm because of
the juxtaposition of Mr. Currie’s aggravated robbery. This infirmity, if harmful and plain,
leads to reversal of the kidnapping convictions and not the accompanying convictions
pursuant to existing case law. See State v. Taylor, 63 S.W.3d 400, 410 (Tenn. Crim. App.
2001) (“In cases decided under Anthony, the kidnapping conviction, when involved, is the
conviction that has been dismissed.”) (citing State v. Carson, 950 S.W.2d 951, 953 n. 3
(Tenn. 1997); State v. Denton, 938 S.W.2d 373, 378 (Tenn. 1996); State v. Coleman, 865
S.W.2d 455, 457 (Tenn. 1993); State v. Binion, 947 S.W.2d 867, 872-73 (Tenn. Crim. App.
1996); State v. Gregory, 862 S.W.2d 574, 579 (Tenn. Crim. App. 1993)). Were the rule
otherwise, as I believe it should be, only the single aggravated robbery conviction would
need to be reversed and that charge remanded for a new trial. Because, however, our courts
have determined that the due process infirmity affects the kidnapping conviction, the
kidnapping convictions in the present case are affected, or fouled, by the accompaniment of
the aggravated robbery of Mr. Currie alone. Parenthetically, I interject here that I see no
reason why the kidnapping conviction, as opposed to the overlapping conviction, must be the

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casualty of a due process reversal, so long as the evidence is sufficient to support the
kidnapping conviction.

               So, because (1) White applies to the present case, (2) the White jury instruction
issue was fairly raised with respect to the charges of aggravated robbery, and (3) the trial
court did not impart the instruction, the trial court erred. See Bennie Osby, slip op. at 12.

               Whether the error in this case is reversible depends upon the application of the
harmless error rule. A White error is constitutional error subject to harmless error analysis.
Terrance Antonio Cecil, ___ S.W.3d at ___, slip op. at 13. As such, no reversal results from
the error when the same is harmless beyond a reasonable doubt. Id.; see State v. Rodriguez,
254 S.W.3d 361, 371 (Tenn. 2008). The harmless error examination asks “‘whether it
appears beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.’” Terrance Antonio Cecil, ___ S.W.3d at ___, slip op. at 13 (quoting
Rodriguez, 254 S.W.3d at 371). The specific “touchstone” of this inquiry relative to White
error is “whether a rational trier of fact could interpret the proof at trial in different ways.”
Terrance Antonio Cecil, ___ S.W.3d at ___, slip op. at 13 (citing White, 362 S.W.3d at 579).
Per White, the “key element–the substantial interference with the victim’s liberty–[requires]
a finding by the jury that the victim’s removal or confinement was not essentially incidental
to the accompanying felony offense.” White, 362 S.W.3d at 580.

               As to the five kidnappings vis-a-vis the aggravated robberies, the five
kidnapping victims were detained at gunpoint during the time the intruders ransacked the
house looking for items to steal. Essentially, the kidnappings and the robberies were not
separated meaningfully by time. Because of the arrival of the police, the kidnappings were
not prolonged beyond the robbery-in-progress. Other than an injury to Mr. Currie, the
intruders inflicted no injuries upon the victims. Although the arrival of the police may have
prevented the intruders from binding the victims with duct tape, the victims were not bound,
and I see this fact as significant. Also, one victim was able to contact the police. These
circumstances suggest that a rational jury could interpret the evidence in different ways. As
to whether the detention or confinement of the victims was essentially incidental to the
charged robberies and not significant enough to stand alone, this error was not harmless.

              Plain error analysis encompasses consideration of the following factors:

              “(a) the record must clearly establish what occurred in the trial
              court;

              (b) a clear and unequivocal rule of law must have been
              breached;

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                (c) a substantial right of the accused must have been adversely
                affected;

                (d) the accused did not waive the issue for tactical reasons; and

                (e) consideration of the error is ‘necessary to do substantial
                justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). All five factors must be established before this court will
recognize an error as plain. Smith, 24 S.W.3d at 283. “An error would have to [be]
especially egregious in nature, striking at the very heart of the fairness of the judicial
proceeding, to rise to the level of plain error.” State v. Page, 184 S.W.3d 223, 231 (Tenn.
2006).

               Accordingly, in the present case, the elements of noticing plain error point to
the presence of such error. The record in this case establishes the facts as described above
and shows that the White instruction was not given. Although plain error review requires that
“a clear and unequivocal rule of law must have been breached,” and although the White
instruction was unknown and unforeseen at the time of the defendant’s trial, our supreme
court has told us (1) clearly and unequivocally how the jury should be instructed and (2) that
the requirement of imparting the instruction applies to a case such as the defendant’s.
Additionally, the rule is one of constitutional dimension, implicating a substantial right of the
defendant that was adversely affected. I see no indication that the accused waived the issue
for tactical reasons. Given that the guarantee of due process is at the heart of the jury
instruction devised in White, I believe that “consideration of the error is ‘necessary to do
substantial justice.’” See Smith, 24 S.W.3d at 282.

              For these reasons, I would reverse the especially aggravated kidnapping
convictions in counts one through five and remand those counts to the trial court for a new
trial. As noted above, this determination is driven by the case law that mandates that when
a due process violation is adjudicated, the remedy is to reverse the kidnapping conviction (or
convictions) and not the conviction of the accompanying felony.1




        1
         In White, our supreme court ordered the case remanded to the trial court for “a new trial with the
appropriate instructions as to the especially aggravated kidnapping charge.” White, 362 S.W.3d at 581
(emphasis added).


                                                   -5-
               I trust – or at least hope – that the travail manifest in the foregoing pages shows
that more must be done to tame the due process beast unleashed by Anthony. I support (1)
taking supernumerary victims out of the due process rule and (2) the appellate courts’ having
the option to reverse the accompanying felony when a due process error is found.

                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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