State v. Anthony

Decision Date23 September 1991
Docket NumberNos. 324,327,s. 324
Citation817 S.W.2d 299
PartiesSTATE of Tennessee, Appellant, v. Dennis D. ANTHONY, Appellee. STATE of Tennessee, Appellant, v. James Marvin MARTIN, Appellee. 817 S.W.2d 299
CourtTennessee Supreme Court

Charles W. Burson, Atty. Gen. & Reporter, Kathy M. Principe, Asst. Atty. Gen., Ellen H. Pollack, Special Asst. Atty. Gen., Nashville, for appellant.

Mark E. Stephens, Knoxville, for appellee Anthony.

Leonie Kilpatrick Cohen, Knoxville, for appellee Martin.



We have before us two criminal cases in which the defendants were convicted of both armed robbery and aggravated kidnapping, in each instance growing out of a single criminal episode. Because the cases involve similar facts, raise similar issues, and were decided on the same basis by the intermediate appellate court, they can be resolved in a single opinion.

On a superficial level, the question presented is whether the facts in each case support convictions for both robbery and kidnapping. The real issue involves the propriety of a kidnapping conviction where detention of the victim is merely incidental to the commission of another felony, such as robbery or rape. It is an issue that has been addressed by various panels of the Court of Criminal Appeals over the years. 1 But it has never been presented to this Court, and thus we have had no opportunity to address the more profound question implicated by the facts in these cases, i.e., what legal standard should be applied in deciding whether a separate conviction for kidnapping can be sustained. We now take the occasion to resolve this issue.

At the outset, it is helpful to identify the principles implicated in the discussion that follows, and to separate the relevant from the irrelevant. These cases do not involve double jeopardy analysis under either the state or federal constitution--there is no question that the offenses of robbery and kidnapping have separate elements and that dual convictions, even for conduct arising from the same criminal episode, would not violate double jeopardy provisions. At the same time, the conviction and punishment of a defendant for kidnapping, based on facts insufficient to sustain that conviction, would clearly violate the due process guarantees found in both constitutions. It is from this vantage point that we proceed to a review of the facts in these two cases and of the action taken in the trial and appellate courts.

1. State v. Anthony

The episode giving rise to the convictions in State v. Anthony occurred shortly after 11:00 p.m. one night, when the defendant, Dennis Anthony, and another man robbed the Shoney's Restaurant on Lovell Road in Knox County. The restaurant had just closed, and three employees--Christopher Smith, Brian Seals, and Jimmy Joyce Livingood--were emptying trash into dumpsters behind the building when the defendant and his companion drove up in a red Camaro. After requesting a cigarette from Seals, the defendant asked Seals and Livingood if they knew where Magnolia Avenue was. Before they could answer, the defendant, who was carrying a revolver, got out of the car and ordered the three employees to lie on the ground near the dumpsters. Leaving his confederate to watch Smith, Seals, and Livingood, the defendant entered the restaurant through the back door. The accomplice detained the three employees until the defendant returned and they fled the scene together.

Manager Al Kesterson was in the front section of the restaurant when he heard a shout. He turned around to find the defendant pointing a gun at him. The defendant ordered Kesterson to accompany him to the office. As they went, the defendant spotted another employee, waitress Laurie Lexvold. The defendant grabbed Lexvold, held the gun to her head, and took both Kesterson and Lexvold back through the kitchen into the office. When the defendant demanded that the safe be opened, Kesterson informed him that the safe was in the front of the restaurant by the cash register. At the defendant's orders, Lexvold remained in the office while the two men returned to the front of the restaurant, where the defendant directed Kesterson to open the safe and a separate cash box. After taking some of the contents of the safe and the money from the box, the defendant headed through the kitchen on his way out of the restaurant.

While the defendant was making his way through the building, he happened upon another employee, Floyd Lundy, Jr., as Lundy was coming out of the restroom. The defendant "stuck his gun in [Lundy's] face" and told him to "get back in the men's room and stay there." Lundy remained in the restroom until the defendant left the restaurant.

The defendant and his accomplice left as soon as the defendant came out of the building. Once they were certain that the two robbers had gone, the victims called the police. The entire episode took slightly more than five minutes.

The defendant was convicted of the armed robbery of Al Kesterson, the armed burglary of the restaurant, and the aggravated kidnappings of Kesterson, Lexvold, Lundy, Smith, Livingood, and Seals. The Court of Criminal Appeals, in a split opinion, held that none of the kidnapping convictions could stand. Two members of the panel concurred in the following reasoning:

Without an obvious and clear break in the chain of events that took place at the Shoney's, we hold that only one offense occurred, i.e., armed robbery. Unless independent and separate fact patterns for both the armed robbery and the aggravated kidnapping can be proven, appellant can be convicted of only the armed robbery.

* * * * * *

With the robbery beginning with the detention of the three employees outside and culminating in a matter of a few minutes with the robbery and detention of the other three inside, there was but one intent and one crime. (Citation omitted.) Summed up, there was no clear break in the events to support the separate crime of kidnapping.

State of Tennessee v. Dennis D. Anthony, Court of Criminal Appeals at Knoxville, slip op. at 2, 1990 WL 83416 (June 21, 1990) (citation omitted).

While agreeing with the majority's decision to set aside the kidnapping convictions involving the various employees inside the restaurant, the third member of the panel dissented as to the kidnapping convictions involving the three employees detained outside the restaurant. He wrote, "Even though the outside kidnappings ... were committed for the purpose of facilitating the robbery, obviously, the facts of the kidnapping were not essential parts or elements of the robbery, and both the robbery and the kidnapping convictions can stand." Id. Reid, J., dissenting (emphasis in original).

2. State v. Martin

The episode underlying the convictions in State v. Martin also involved a robbery. The defendant, James Marvin Martin, entered the office of the C.H. McMillan Insurance Agency on the Asheville Highway in Knoxville around 12:30 p.m. one afternoon. C.H. McMillan, Sr., the owner of the agency, was talking with a customer on the telephone when he heard the building's back door open. McMillan turned around to see the defendant standing behind him with a gun in his hand.

Martin first ordered McMillan to hang up the telephone. He then took the phone out of McMillan's hand and told McMillan to lie on the floor. The defendant ordered Ruth Needham, a secretary who had been working at a nearby desk, to give him "all the money." Needham gave him $150.00 of the agency's money and a dollar from her own billfold. Martin also demanded and got $41.00 from McMillan.

Holding McMillan by the upper arm, the defendant next ordered McMillan and Needham to go through a door into a hallway. At first he instructed them to enter a door at the end of the hall that led into a dental laboratory. He later changed his mind and ordered both of them to go into the men's restroom and stay there. Once inside, McMillan slammed the door shut and locked it from the inside. Almost as soon as he heard the defendant go out the back door, McMillan hurried out of the restroom and observed the defendant as he entered his automobile. More cautious, Needham waited a minute or two before coming out. The entire episode encompassed only about four minutes.

The defendant was convicted of the separate armed robberies of McMillan and Needham and of the aggravated kidnappings of both victims. Again, the Court of Criminal Appeals held that the defendant was guilty only of the armed robberies of the two victims and that the evidence did not support the convictions for aggravated kidnapping. In a unanimous opinion, the court concluded that

... it is clear that appellant placed the victims in the restroom for the sole purpose of facilitating his getaway. There was no evidence presented that appellant locked them in; on the contrary, Mr. McMillan locked the door from the inside. Nor was there evidence that appellant ordered them to stay in there a certain amount of time under threat of harm. The entire episode took place in a matter of minutes or less. It is, therefore, obvious that the detention of the two victims was an integral part of the robbery. We, therefore, do not find from the evidence the necessary break in the acts to support separate charges for two crimes as is required by [State v.] Mackey, 638 S.W.2d 830 (Tenn.Crim.App.1982).

State of Tennessee v. James Marvin Martin, Court of Criminal Appeals at Knoxville, slip op. at 3 (July 24, 1990).

3. Analysis

In seeking to overturn the intermediate court decisions in these two cases, the state relies chiefly on our analysis in State v. Black, 524 S.W.2d 913 (Tenn.1975), in which we adopted the well-known "Blockburger test" for determining when to sustain multiple convictions which are based upon the same acts or transaction. The broad question, of course, is whether or not the offenses in question constitute the "same offense" under the double jeopardy clause. As Black notes, multiple...

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