Due Process Concerns for Kidnapping Convictions
Issue: When does due process forbid convictions for kidnapping and other felonies occurring during the same criminal episode?
Facts: Defendants robbed the victim of her purse, forced her into her house, and took additional property from her and her house. A jury convicted Defendants of kidnapping, burglary, robbery, and possession of a firearm with intent to go armed during a felony. The trial court set aside the verdicts and dismissed the kidnapping and burglary charges on the grounds that they violated principals of due process as announced in State v. Anthony. The intermediate court reversed the set asides pursuant to the Supreme Court’s recent ruling in State v. White, but the Supreme Court remanded in light of its more recent decision in State v. Cecil.
Appellate Decision: The intermediate court again reinstated the verdicts, notwithstanding the new case law. The court held that, because White was in the appellate pipeline, the trial court erred in failing to give a White instruction requiring the jury to determine whether the “removal or confinement [was] more than essentially incidental to the other offense.” However, the intermediate court found the error harmless because the robbery offense charged in the indictment—which was limited to taking the purse—had been completed before the confinement giving rise to the kidnapping conduct.
Review Granted: June 20, 2014.
Prediction: This case marks the latest in the Supreme Court’s attempt to clarify due process concerns regarding kidnapping and other offenses. Two other similar cases are already pending which focused on whether a White instruction must be charged, a question which received little attention here. Ben thinks the Court will affirm on the basis that the instruction was not needed, rather than that its omission was harmless error.