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State v. Black10/12/2001
Assigned on Briefs September 25, 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.
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 t
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