State v. Black

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 25, 2001

STATE OF TENNESSEE v. ANGELA H. BLACK

Direct Appeal from the Criminal Court for Davidson County

No. 99-B-1040 Steve R. Dozier, Judge

No. M2000-02368-CCA-R3-CD - Filed October 12, 2001

A Davidson County jury convicted the defendant of theft over $60,000, a Class B felony. The

defendant contends in this appeal that (1) the trial court erred in allowing the testimony of a state’s

witness who heard the victim’s testimony despite the trial court’s order to sequester witnesses; and

(2) the trial court erred in not giving an enhanced unanimity instruction. We affirm the judgment

of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.

GLENN, JJ., joined.

Ross E. Alderman, Public Defender; C. Dawn Deaner, Assistant Public Defender (at trial and on

appeal); and James P. McNamara, Assistant Public Defender (at trial), for the appellant, Angela H.

Black.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Bret Thomas Gunn, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Over a period of three years, the defendant, a bookkeeper, embezzled over $165,000 from

her employer, Nashville Steel Rule and Die, Inc., by altering over 150 checks. Some of the checks

were for legitimate payments to the defendant, but she altered the amount of the checks. Other

checks were intended for the company’s suppliers, but instead she made them payable to herself.

The indictment aggregated the separate acts into the single offense of theft over $60,000, and the jury

convicted the defendant as charged.

I. VIOLATION OF “THE RULE” OF WITNESS SEQUESTRATION

The defense moved pursuant to Tenn. R. Evid. 615 for the court to exclude all witnesses from

the courtroom, and the trial court granted the motion.

Meryl Stinson, a certified public accountant and accountant for Nashville Steel Rule and Die,

testified for the state that she discovered checks were missing from the company’s bank statements.

Upon reviewing copies of the missing checks, Stinson discovered most of them were made payable

to the defendant although the defendant’s entries in the check register showed they were, for the most

part, written to suppliers. While explaining the company’s computerized bookkeeping system,

Stinson said it would not allow entry of two checks with the same number for differing amounts.

Stinson said there were notations on the checks referring to the names of suppliers as well as to

certain country music entertainers, but stated she was not aware of any business that the company

would have conducted with entertainers. Stinson also reviewed copies of the defendant’s bank

records and found there were deposits in the defendant’s checking account corresponding with the

misappropriated checks.

After Stinson testified, the prosecutor advised her she could remain in the courtroom. Thus,

she stayed in the courtroom and heard the testimony of the state’s next witness, Dennis Lane, the

president and owner of Nashville Steel Rule and Die. Lane stated some legitimate payments were

made to the defendant for her wages, loans, and reimbursements for small expenses. He also

testified that the defendant did not have his permission to alter the checks.

During cross-examination, the defendant’s attorney questioned Lane regarding “finishing”

work performed by his company which involved assembling boxes. This work was performed by

contract laborers who were paid for each piece they completed, as well as hourly employees who

were paid their regular wage. The contract laborers were paid from the company’s business account.

When questioned regarding payments made to defendant for her work on these “finishing” jobs,

Lane stated the defendant was paid her normal hourly wage from a separate payroll account. Lane

testified some of the “finishing” work could have related to products for the country music industry,

and the notations written on some of the checks referred to certain country music artists.

Following Lane’s testimony, the state recalled Meryl Stinson to the witness stand. The

defense objected on the grounds that Stinson had remained in the courtroom during Lane’s

testimony. The trial court overruled the objection, noting the state had reason to recall Stinson in

rebuttal to the cross-examination of Lane regarding the company’s “finishing” business.

Stinson testified that after court recessed the day before, she operated the company’s

computer to determine if it would allow duplicate entries of the same check number. She found that

it did allow her to enter identical check numbers with different dates and amounts. She also testified

the company’s financial statements contained information regarding the “finishing” work, including

the expenses related to the work. Under the category of contract labor expenses, the statements

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included a list of payments to specific contract laborers; however, they did not include any payments

made to defendant.

The defendant contends the trial court erred in allowing Stinson to testify after hearing

Lane’s testimony. We respectfully disagree.

Rule 615 of the Tennessee Rules of Evidence provides:

At the request of a party the court shall order witnesses, including rebuttal

witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion,

the requested sequestration may be effective before voir dire, but in any event shall

be effective before opening statements. The court shall order all persons not to

disclose by any means to excluded witnesses any live trial testimony or exhibits

created in the courtroom by a witness. This rule does not authorize exclusion of (1)

a party who is a natural person, or (2) a person designated by counsel for a party that

is not a natural person, or (3) a person whose presence is shown by a party to be

essential to the presentation of the party's cause. This rule does not forbid testimony

of a witness called at the rebuttal stage of a hearing if, in the court's discretion,

counsel is genuinely surprised and demonstrates a need for rebuttal testimony from

an unsequestered witness.

We note that Rule 615 does not prescribe a specific sanction for its violation. Instead, courts

retain the discretion to impose a variety of sanctions appropriate to the circumstances. State v.

Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992); see also N. Cohen et al., Tennessee Law

of Evidence § 6.15[11][b] (4th ed. 2000) . The trial court may, as a sanction, exclude the testimony

of a witness who hears other testimony while subject to a sequestration order. See State v. Weeden,

733 S.W.2d 124, 125 (Tenn. Crim. App. 1987). The decision to exclude or allow the testimony is

a matter within the discretion of the trial court, subject to a showing of abuse and prejudice to the

complaining party. State v. Chadwick, 750 S.W.2d 161, 166 (Tenn. Crim. App. 1987).

In the instant case, the trial court indicated it found the state was taken by surprise by defense

counsel’s line of questioning regarding the victim’s expense for the “finishing” work and

demonstrated a need to present the testimony of Meryl Stinson to rebut the inferences made by

defense counsel during Lane’s cross-examination. In light of this finding, we conclude the trial court

did not abuse its discretion in allowing Stinson to again testify following Lane’s testimony.

Regardless, we conclude that the defendant has not shown she was unduly prejudiced by

Stinson’s subsequent testimony. There is no evidence that Stinson altered her testimony to conform

to Lane’s. Stinson’s testimony was presented to rebut the defense’s inference, made through the

cross-examination of Lane, that some of the payments alleged to be thefts were actually legitimate

payments made to the defendant for her assistance with the “finishing” work. Stinson also corrected

her previous testimony regarding the operation of the company’s bookkeeping software. This

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testimony was not related to Lane’s, but was merely a correction of her own prior testimony. This

issue is without merit.

II. ENHANCED UNANIMITY INSTRUCTION

The defendant also argues the trial court erred in not giving the jury an enhanced instruction

regarding the necessity of a unanimous verdict. She submits that since the proof of the theft involved

over 150 separate checks and each check, or even different groups of checks, could have either

supported different theft convictions or been found by the jury to be legitimate payments, there was

a danger of a “patchwork” verdict, thus requiring an enhanced unanimity instruction. We disagree.

This case was prosecuted as a single offense. See State v. Cattone, 968 S.W.2d 277, 279

(Tenn. 1998) (holding aggregation of value of stolen property taken in separate acts of theft is

permissible when (1) taken from the same owner, (2) from the same location, and (3) pursuant to a

single sustained larcenous scheme). The defendant concedes there was no need for an election of

offenses since multiple offenses were not committed. See State v. Adams, 24 S.W.3d 289, 294 (Tenn.

2000).

Defendant relies heavily upon State v. Brown, 823 S.W.2d 576 (Tenn. Crim. App. 1991),

relating to the need for an enhanced unanimity instruction. The evidence in Brown established the

defendant’s simultaneous possession of cocaine located on two separate, but adjoining, properties.

Judge Tipton, writing for the court, concluded there was a real potential for a conviction based upon

different jurors concluding that the defendant committed different acts, “each of which separately

[constituted] the commission of an offense.” Id. at 583. This court concluded an enhanced unanimity

instruction was necessary to insure the jury understood its duty to agree unanimously to a particular

set of facts. Id.

Brown was cited, but distinguished, by our supreme court in State v. Lemacks, 996 S.W.2d

166, 170 (Tenn. 1999). Lemacks noted that Brown involved “several possible criminal events.” Id.

Lemacks, according to the court, involved only one set of facts relating to the charge of DUI.

Therefore, the supreme court concluded the jury was properly instructed it could convict based upon

defendant’s actual operation of the vehicle or upon his criminal responsibility for allowing another

intoxicated person to drive. Id. at 171. No enhanced unanimity instruction nor election of offense

was required. Id.

More recently, our supreme court ruled that no election or enhanced unanimity instruction is

required as to facts supporting a particular element of a crime; provided, the jury agrees that the

defendant is guilty of the crime charged. State v. Johnson, ___ S.W.3d ___, ___ (Tenn. 2001). More

specifically, the court noted that the enhanced unanimity instruction was unnecessary because “[t]he

record indicated only one offense.” Id. at ___.

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In light of Lemacks, Adams, and Johnson, we are uncertain as to the continued vitality of

Brown. We do, however, conclude that Johnson appears to be controlling of the case sub judice.

Here, the various alleged acts constituted but one offense of theft. An enhanced unanimity

instruction was not required, provided each juror agreed that the aggregate theft was over $60,000.

The general unanimity jury instruction was sufficient to ensure that each juror concluded the

defendant was guilty of theft over $60,000.

CONCLUSION

Accordingly, we affirm the judgment of the trial court.

___________________________________

JOE G. RILEY, JUDGE

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