        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE

                  STATE OF TENEESSEE v. TRAVEI PRYOR

                            Criminal Court for Knox County
                                      No. 96358



              No. E2012-02638-CCA-R3-CD – Filed December 18, 2015



JOHN EVERETT WILLIAMS, J., concurring and dissenting.


       I must respectfully dissent from the majority’s reasoned opinion with regard to its
conclusion that the absence of the White instructions constituted reversible error. I
would affirm the convictions as they were entered, although merging those counts which
were alternatively charged. In all other regards, I join in the majority's opinion.

        I do agree with the majority that the White instructions should have been given in
this case as it related to Brett Stanton and Joshua Cox. The failure to so instruct the jury
is a non-structural constitutional error that is subject to a harmless error analysis. Again,
the test is “whether it appears beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.” Climer, 400 S.W.3d at 556. Unlike the
majority, I would conclude that the failure to charge was harmless, as I see no
circumstance in which the verdict would have changed.

        I do agree with the majority's statement of the evidence and conclusion that several
of the enumerated factors provided by our supreme court weigh in favor of not finding
this failure to charge to be harmless. Clearly, the removal did occur during the robbery
and ended as soon as the defendants exercised control over the stolen property. However,
because of the weight of the remaining factors, I do not believe that the incident was
subject to different interpretations by the jury and was therefore harmless.

       The factor regarding the increased risk of violence and harm is most prevalent in
my decision. These defendants chose to force their way into a home where a family
resides and ordered them to move around within that home. The risk of violence and
harm in a home invasion regarding confinement and movement is heightened because the
people within the home are family, and the robbery may involve personal and sentimental
items. It is different than a situation involving strangers and cash such as in a liquor or
convenience store robbery. The risk of resistance is increased in a home invasion, which
exponentially raises the risk of harm to the victims in these situations. For example, it
takes little imagination to determine the increased risk of resistance when a mother or
father is held by a defendant in their home and the defendant tells his accomplice to go
and retrieve the children from another room at gunpoint or while threating violence.

        As the law has developed in this area, I am comfortable with due process or
notions of fair play attaching to a defendant when the movement is slight and incidental
to the robbery. As examples, when an armed robber demands the cashier move away
from the cash register in order for the defendant to grab the money and run or when the
victim is asked to get on his knees and give the robber his wallet and the robber
runs. However, I believe that home invasions involve a greater risk of harm to all
present, and the same due process and notions of fair play should not attach to defendants
that intentionally embark upon a home invasion terrorizing every occupant and subjecting
the innocent victims to great harm and fear. As the law has recognized for years, the
home is considered a sacred place. The evidence in this case, to me, clearly establishes
beyond a reasonable doubt that the victims were kidnapped, and the fear, terror, and risk
of harm they endured should not be excused by the defendants saying, “I was robbing
another.”

        Moreover, as pointed out by the State, the robberies in this case could have been
accomplished with virtually no confinement of the victims. Mr. Stanton’s marijuana was
in plain sight when the defendant entered the bedroom, and Mr. Cox’s wallet was lying on
the table. Thus, the retrieval of these items, which simply could have been taken, does
not make any confinement or removal inherent in the nature of the separate robbery.
Had the defendant simply asked Brett Stanton where the marijuana was located while
they were in the bedroom, the removal or confinement of all the victims to the living
room would have been unnecessary.

       Based upon the above facts, I respectfully dissent from my colleagues’ conclusion
in regard to the White issue. Any error was harmless, and I would affirm the convictions.




                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE

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