A special jury instruction is not required when a defendant is charged with kidnapping and robbery of separate victims, the Tennessee Supreme Court has held.
The Tennessee Supreme Court had previously held that in order to protect a defendant’s right to due process under the Tennessee Constitution, a special jury instruction is required in certain cases involving both kidnapping and a more serious criminal offense, such as robbery, burglary or rape. The basis for this special jury instruction – which is known as a “White” instruction in light of the eponymous Tennessee Supreme Court case State v. White – traces back to the Tennessee Supreme Court’s earlier decision in the 1991 case State v. Anthony. In Anthony, the Tennessee Supreme Court recognized that “the offense of kidnapping. . . at times ‘could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.’”
Stated differently, because “[i]t is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained,” the Anthony court expressed concern that a defendant could be convicted for two separate crimes –kidnapping as well as a more serious crime – when the defendant had only truly committed the more serious crime. In other words: “Where a defendant is charged with kidnapping and an accompanying offense involving some confinement . . . , there are appropriate due process concerns that the defendant could be convicted of two crimes—e.g. robbery and kidnapping—when he has only committed one crime—robbery.” More simply, as one Court of Criminal Appeals Judge once explained the issue: “I do not believe the legislature intended robbers to be prosecuted as kidnappers.”
After substantial initial confusion over how this concern would be addressed, in White, the Tennessee Supreme Court developed a special jury instruction that aimed to allow juries to determine whether a defendant’s kidnapping “was to a greater degree than that necessary” to commit the more serious offense charged. If so, then a defendant would be guilty of both the kidnapping and the more serious offense. If not, however, then the defendant would only be guilty of the more serious offense. Thus, the White instruction asks juries to decide “whether the [kidnapping] is, in essence, incidental to the accompanying felony or, in the alternative, is significant enough, standing alone, to support a [separate] conviction.”
Following White, several panels of the Court of Criminal Appeals reached conflicting conclusions as to whether a White instruction was necessary when a defendant was charged with kidnapping and robbery of separate victims. Some panels had held that a White instruction was not required when the charges for kidnapping and certain accompanying offenses involved different victims. In contrast, other panels had held that a White instruction was required when the charges for kidnapping and certain accompanying offenses involved different victims. As a result of this conflict, the Tennessee Supreme Court took up the matter to resolve the split of authority.
In a pair of consolidated cases presenting this same underlying issue – State v. Teats and State v. Williams – the Tennessee Supreme Court definitively held that “a White jury instruction is not required when a defendant is charged with the kidnapping and robbery of different victims.” According to the majority’s 3-1 decision (Justice Bivins did not participate), when different victims are involved, “the due process concerns articulated in White are not present, as the kidnapping of one or more victims can never be ‘essentially incidental’ to an offense perpetrated against a different victim or victims.”
Thus, going forward, if “a defendant is charged with kidnapping and robbery [or burglary, or rape, etc.] of separate victims,” then “a White jury instruction is not required.”
Reading the Tea Leaves
Looking forward, it remains to be seen whether the White instruction will continue to survive at all. In State v. Alston – which was decided earlier this year – two Justices on the Tennessee Supreme Court (Justice Bivins and Justice Kirby) expressed concern that the constitutional underpinnings of Anthony and White “may well be based upon fundamentally flawed constitutional jurisprudence.” According to Justice Bivins and Justice Kirby, these cases “utilize the Tennessee Constitution’s due process clause to address an issue which more properly may fall within the ambit of the federal and state constitutions’ protection against double jeopardy.”
In the consolidated cases discussed above, Justice Kirby reiterated her concerns on this point once again (as noted, Justice Bivins did not participate in deciding either case, but presumably his concerns persist as well). In her concurrence, Justice Kirby explained that she joined the majority’s opinion only because its holding that “a White/Anthony jury instruction is not required when a defendant is charged with the kidnapping and robbery of different victims. . . . obviates the need to consider the concerns raised by Justice Bivins in his concurrence in Alston.” Suggesting that the matter will be addressed head-on sometime soon, however, Justice Kirby further explained that “[a]ddressing those concerns . . . will have to wait until another day.”
Because it only takes an affirmative vote of two Justices to grant review in the five-member Tennessee Supreme Court, the fact that both Justice Bivins and Justice Kirby appear to support overruling White in full offers a strong indication that this issue will come up again soon. Additionally, although it’s true that there have recently been three consistent votes to uphold the basic principles of Anthony and White in recent cases (Justices Lee, Clark and Wade), it is worth noting that with Justice Wade – the most ardent protector of the due process principles advanced in those cases – retiring from the bench in September, the Tennessee Supreme Court’s current majority view on this issue may well shift very soon.
Click to read the Tennessee Supreme Court’s majority opinions in State v. Teats and State v. Williams. Justice Kirby’s concurring opinion in State v. Teats is accessible here, and Justice Wade’s dissenting opinions in both cases are accessible here and here, respectively.
Questions about this article? Email Daniel Horwitz at email@example.com.
 State v. White, 362 S.W.3d 559 (Tenn. 2012)
 State v. Anthony, 817 S.W.2d 299 (Tenn. 1991) overruled in part by State v. White, 362 S.W.3d 559 (Tenn. 2012).
 Id. at 303 (quoting People v. Levy, 204 N.E.2d 842, 844 (1965)).
 State v. Teats, No. M2012-01232-SC-R11-CD, 2015 WL 4237689, at *6 (Tenn. July 14, 2015).
 State v. Teats, No. M2012-01232-CCA-R3-CD, 2014 WL 98650, at *31 (Tenn. Crim. App. Jan. 10, 2014) (Tipton, P.J., dissenting).
 See generally, State v. Teats, No. M2012-01232-SC-R11-CD, 2015 WL 4237689, at *5 (Tenn. July 14, 2015) (“In 2012, in White, we determined that the Anthony/Dixon framework had proven unworkable and expressly overruled Anthony and the entire line of cases that included a separate due process analysis on appellate review.”).
 Id. at n. 11.
 Id. at *5 (quoting White, 362 S.W. 3d at 578).
 See, e.g., State v. Holman, No. E2012-01143-CCA-R3-CD, 2014 WL 295610, at *12 (Tenn. Crim. App. Jan. 27, 2014); State v. Williams, No. W2011-02365-CCA-RMCD, 2014 WL 60967, at *11 (Tenn. Crim. App. Jan. 7, 2014) aff’d, No. W2013-01897-SC-R11-CD, 2015 WL 4260447 (Tenn. July 14, 2015); State v. Mathis, No. M2011-01096-CCA-R3-CD, 2013 WL 4774130, at *9 (Tenn. Crim. App. Sept. 5, 2013); see also State v. Elliott, No. M2001-01990-CCA-R3-CD, 2002 WL 31528538, at *4 (Tenn. Crim. App. Nov. 15, 2002) (“[W]hen the robbery victim and the kidnapping victim are two different persons, the issue is better characterized as a question of whether sufficient evidence exists to sustain a conviction for aggravated kidnapping.”).
 See, e.g., State v. Pryor, No. E2012-02638-CCA-R3-CD, 2014 WL 1516525, at *9-10 (Tenn. Crim. App. Apr. 17, 2014); State v. Bowman, No. E2012-00923-CCA-R3-CD, 2013 WL 4680402, at *15 (Tenn. Crim. App. Aug. 29, 2013) (“Our [S]upreme [C]ourt never said in the Anthony/Dixon/White line of cases that the fact that the victim of the kidnapping was different than the named victim of the accompanying felony eliminated the need for due process analysis.”); see also Holman, 2014 WL 295610, at *13 (Ogle, J., concurring in part and dissenting in part); Teats, 2014 WL 98650, at *30-32 (Tipton, P.J., dissenting); Williams, 2014 WL 60967, at *12-16 (Witt, J., concurring and dissenting).
 State v. Teats, No. M2012-01232-SC-R11-CD, 2015 WL 4237689, at *6 (Tenn. July 14, 2015) (quoting White, 362 S.W.3d at 580).
 Id. at *8.
 State v. Alston, No. E2012-00431-SC-R11-CD, __ S.W.3d __, 2015 WL 2155690, at *9 (Tenn. May 5, 2015)(Bivins, J., concurring).
 State v. Teats, No. M2012-01232-SC-R11-CD, 2015 WL 4237689, at *12 (Tenn. July 14, 2015).