Wallis v. State

546 S.W.2d 244, 1976 Tenn. Crim. App. LEXIS 309
CourtCourt of Criminal Appeals of Tennessee
DecidedOctober 19, 1976
StatusPublished
Cited by12 cases

This text of 546 S.W.2d 244 (Wallis v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wallis v. State, 546 S.W.2d 244, 1976 Tenn. Crim. App. LEXIS 309 (Tenn. Ct. App. 1976).

Opinions

DUNCAN, Judge.

OPINION

The appellant, Johnny Wallis, was convicted in the Hamilton County Criminal Court, Division I, of receiving stolen property, and received a penitentiary sentence of not less than 3 years nor more than 6 years.

In one of his assignments of error, the appellant maintains that his counsel was denied an opportunity to rebut the State’s jury argument. We find merit to this assignment.

The record shows that at the conclusion of the proof, the trial judge asked the parties’ counsel if they wished to address the jury. The State’s counsel replied in the affirmative, stating that he would open. The record shows no response by the appellant’s counsel. The State’s counsel then made a short argument to the jury, generally explaining to them their duties and responsibilities; however, he did not comment on the facts of the case. At the conclusion of the State’s opening argument, the appellant’s counsel, obviously seeing the advantage that might accrue to his client because of the innocuous nature of the State’s opening argument, declined to present an argument, stating: “Your Hon- or, the defendant will stand on the proof.”

The judge then stated that he intended to permit the State’s counsel to close the arguments, and offered the appellant’s counsel the opportunity to reconsider his decision not to argue. The appellant’s counsel commented that he wanted “an opportunity to rebut any comment or any jury argument made by the State”; however, the court advised him that if he waived argument, the State could still present a closing argument, and that appellant’s counsel would “have nothing to say to the jury” after the State’s argument. The court then addressed the State’s counsel:

“Mr. Rotroff, if you have anything further which you would have said in your closing argument, you may conclude it; the defendant, through his attorney, having waived his right to address the jury.”

The State’s counsel then presented a closing argument to the jury which was three times longer than his opening argument. In the closing argument, he very competently, effectively, scathingly, and specifically attacked the appellant, his witness, and the defense theory, at the same time pointing out the meritorious reasons why the jury should accept the State’s proof and its theory. After this, the appellant’s counsel requested the opportunity to present a rebuttal argument, but this request was denied by the trial court.

We realize that on some occasions when the State waives its opening argument, or only presents a mild and not overly harmful opening argument, a defendant may waive any argument so as not to open the door to a scathing closing rebuttal by the State. For strategic reasons, a defendant may do this simply to have the case submitted to [247]*247the jury without having facts that could be quite harmful to him recalled by the prosecution in its final argument.

In Tennessee, the uniform practice and procedure in the trial of criminal cases accords the State the right to open and close the argument to the jury, subject always to the discretionary authority and power of the court to regulate and control arguments of counsel to meet the exigencies of particular situations. Absent a manifest abuse of the trial court’s discretion to the prejudice of the defendant, the appellate court will not intervene to revise its action. Myers v. State, 3 Tenn.Cr.App. 414, 462 S.W.2d 265 (1970).

The general law that gives the State the right to open and close arguments is subject to some qualifications. If the defendant waives the right to respond to the State’s opening argument, then ordinarily the State should have no right to present an additional argument. In an early civil case, the Tennessee Court of Appeals held that if the plaintiff’s counsel gave an opening argument but did not consume the time allotted for argument and thereafter insisted on using the remainder of the time after the defendant had waived his right to argue, then the plaintiff had no right to give a closing argument. White v. White, 9 Tenn.App. 654, 661 (1929). In that case, the court said:

“Presumably counsel for plaintiff exhausted all the time wanted in opening the case and saved the rest to reply to counsel for defense, and when counsel for the defense declined to argue the case, there was nothing to reply to.”

In Tindall v. State, 99 Fla. 1132, 128 So. 494, 498 (1930), the Supreme Court of Florida said:

“While an attorney may not be required to make the opening argument (or if he makes a pretended one), yet the trial court, exercising its discretion, may permit opposing attorney to reply to any new material matter brought out on the former’s second or closing argument. Otherwise serious damage may result and possibly a farce be made of what ought to be an important step in the trial. In fact, it may even constitute reversible error for the trial court to unreasonably limit the time for argument to the jury. May v. State, 89 Fla. 78, 103 So. 115. See 16 C.J. 893, § 2234. Also where the attorney, having the opening argument, feigns or only makes a short statement, the opposing attorney may thereupon waive his right to argument and thus deprive his adversary of a reply; as was held in the case of Germak v. F.E.C. Ry. Co., 95 Fla. 991, 117 So. 391, 392, wherein this court said:
‘The defendant’s counsel having made no argument, there was nothing to be met or replied to by counsel for the plaintiff, and the presentation rested upon the opening argument for the plaintiff.’ ”

In 3 Wharton’s Criminal Procedure § 521, at 441-42 (12th Ed. 1975), the following statement is made concerning jury arguments:

“Ordinarily, the prosecutor is entitled to make the opening argument and, after the defendant presents his argument, the prosecutor is entitled to make the closing argument in rebuttal. The prosecutor’s closing argument is limited in scope; he is allowed only to reply to arguments made by the defendant. To allow the prosecutor to introduce new matter during his closing argument would deprive defendant of the opportunity to respond thereto.”

In Myers v. State, 4 Tenn.Cr.App. 314, 322, 470 S.W.2d 848, 851 (1971), this court held that the trial court did not abuse its discretion in ordering the Attorney General to give a closing argument after all defendants had waived their arguments. A significant and material distinction between that case and the present case is that in Myers, counsel for one of the defendants had stated at the outset that he desired to present an argument.

In Myers it should be pointed out that the content of the argument was not in the record. Further, in that case, it was point[248]*248ed out that “the trial judge felt that defense counsel had misled the Court and the District Attorney General and that this was not proper, . . . ” The Myers court concluded its holding by saying:

“Generally, the State has the opening and closing arguments. The closing argument is limited to a rebuttal of what has been argued.

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Wallis v. State
546 S.W.2d 244 (Court of Criminal Appeals of Tennessee, 1976)

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Bluebook (online)
546 S.W.2d 244, 1976 Tenn. Crim. App. LEXIS 309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallis-v-state-tenncrimapp-1976.