IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

February 14, 2006 Session

STATE OF TENNESSEE v. JOEL MARSHALL JONES

Direct Appeal from the Circuit Court for Marshall County

Nos. 16108, 16109 Lee Russell, Judge

No. M2005-00619-CCA-R3-CD - Filed April 21, 2006

The Defendant, Joel Marshall Jones was convicted of aggravated burglary, theft of property valued

at less than $500.00 and of theft of property valued at more than $1000.00. The Defendant was

sentenced to prison for fifteen years as a Range II offender. On appeal, the Defendant contends that:

(1) the evidence is insufficient to sustain his convictions; (2) the trial court erred when it did not

allow a witness to testify; and (3) the trial court erred when it extended the hours of the trial. Finding

no reversible error, we affirm the judgments of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

ROBERT W. WEDEMEYER,J., delivered the opinion of the court, in which JAMES CURWOOD WITT,

JR., J., joined. GARY R. WADE, P.J., filed a dissenting opinion.

Fannie J. Harris, Nashville, Tennessee, for the appellant, Joel Marshall Jones, III.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;

W. Michael McCown, District Attorney General; and Michael D. Randles, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Background

In case number 16108, a Marshall County grand jury indicted the Defendant for one count

of aggravated burglary of the habitation of Terry Moore, and two counts of theft of property

belonging to Moore and valued at less than $500.00. In case number 16109, the Defendant was

indicted for two counts of theft of property owned by CSX Transportation Inc. and valued at more

than $1000.00 but less than $10,000.00. The indictments were consolidated for trial and were tried

jointly with identical charges against Michelle Lee Hooten (Jones), a co-defendant. A Marshall 

County jury convicted the Defendant of aggravated burglary and theft of property valued at less than

$500.00 in case number 16108, and of theft of property valued at more than $1000.00 in case number
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16109. The trial court issued an effective sentence of fifteen years in prison. 

II. Facts

This case arises from the Defendant’s convictions of burglary and theft. Phillip Mitchell, an

assistant foreman with CSX Transportation, testified that CSX Transportation has a facility in

Lewisburg where various supplies and raw materials are kept in the supply yard. He explained that,

on the day of the alleged crime, he and other CSX employees loaded a CSX truck with inventory

from the CSX supply yard. He said that, after they loaded the truck, approximately eight to ten pairs

of “compromise joint bars” remained in the supply yard. Mitchell testified that they left the supply

yard, and, when they returned, they saw a blue pick-up truck with a woman in the driver’s seat and

a man outside the truck. He testified that the man appeared to be in a hurry to get into the truck.

Mitchell explained that he got close to the blue pick-up truck and was able to peer into the bed of

the pick-up truck where he saw five to seven compromise joint bars lying in the truck’s bed. He

explained that, as they pulled up beside this pick-up truck, the truck, which was already moving, did

not slow down. Instead, the truck “took off” and left the premises. He said that he tried to see the

truck’s license tag number, but the truck was moving too quickly. Mitchell said that the eight to ten

pairs of compromise joint bars that they had left in the supply yard were missing. He testified that

he called the police and provided them with a description of the driver of the blue pick-up truck and

the man who accompanied her.

On cross-examination, Mitchell testified that he did not have a list of the materials kept in

the supply yard, and the stack of joint bars was located next to a pile of trash, which was four to five

hundred feet away from the CSX buildings. He admitted that he did not know from which pile the

Defendant took the bars. He explained that a contractor collects and resells the materials from the

trash pile. 

On redirect examination, Mitchell explained that the joint bars were in a stacked pile. He

testified that the pick-up truck sped away, and, afterwards, he noticed that there were no longer any

remaining pairs of compromise joint bars in the supply yard. He explained that non-CSX employees

are not allowed to come onto CSX property and to take what they want from the pile of trash. He

further explained that the property contains signs indicating that the area belongs to CSX and that

trespassing is not permitted. 

Cam Harmon testified that he has a business located in Cornersville, Tennessee that buys and

sells scrap metal. He testified that, on the day of the alleged crime, he purchased more than one load

of railroad steel from the Defendant. Harmon looked at tickets made to record the purchase of the

steel and said that the tickets identified the Defendant as the seller of the steel. He testified that

Detective Kevin Patin and some CSX employees came to his place of business and identified the

steel that Harmon had purchased from the Defendant as steel that belonged to the CSX corporation.

On cross-examination, Harmon testified that the Defendant came to his business two to three
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times a week and sold items such as old stoves and refrigerators. He identified a receipt that he had

given to the Defendant that identified the material as short steel. He further testified that he does not

do any commercial business with CSX and that CSX sells most of their materials to Boone Express.

He recalled that the metal that the Defendant sold to him was rusty. 

Dwight Emerson, an engineering supervisor at CSX, testified that compromise joint bars are

unique to CSX. He explained that CSX compromise joint bars are identifiable because the bars have

the numbers 136 and 132 stamped on them. He testified that compromise joint bars are reusable

even if they are rusty. Emerson testified that he went to the scrap metal facility in Cornersville,

Tennessee with Detective Patin and other CSX employees where he saw three to five CSX

compromise joint bars with the numbers 132 and 136 stamped on them. He said that these CSX

compromise joint bars were made from new material and that he did not see any bars that were made

with scrap material. 

B.K. Malhotra, a manager of material at CSX, testified that, during the time that the crime

was committed, CSX paid $142.25 per compromise joint bar. On cross-examination, he admitted

that he did not know how many compromise joint bars were at the facility on the day of the crime.

He explained that he had to arrange for a special order purchasing compromise joint bars after he

received a call from the road master at CSX informing him that the compromise joint bars were

missing. 

Gregory Primm testified that, on the day of the crime, he was visiting his wife’s trailer and

he saw the Defendant’s pick-up truck pull in front of Terry Moore’s trailer. He testified that his

brother-in-law, Terry Moore, lived in the trailer in front of his wife’s trailer. He said that he saw a

man and a woman get out of the pick-up truck and go inside Terry Moore’s trailer, and he could see

the woman remain in the living room. The man left the living room and returned and gave the

woman something that looked like a little grocery bag, and she exited the trailer and got in the truck.

He said that the man continued to walk through all of the rooms in Terry Moore’s trailer, and then

went outside and put something in the back of the truck. Primm said that the man walked down the

road, picked up a “For Rent” sign that was lying down in front of a trailer that was further down the

road, drove the sign back into the ground, and then returned to the truck. Primm said that his wife

returned, he told her what had happened, and they both talked to Moore. Primm told Moore about

the people who had been in Moore’s trailer, and they called the police. He explained that he

provided the police with a description of the pick-up truck and the people that he had seen enter

Moore’s trailer. He received a call from the police asking him to come and identify the perpetrators

of the crime. He went to the location specified by the police and identified the people that they

found as the perpetrators of the crime. 

Terry Moore testified that he lives in a trailer in front of his sister. He reported that, on the

day of the crime, he returned home and his brother-in-law told him what had happened in his trailer.

He explained that a little headphone radio, a bag of chicken, and two fish were missing from his

trailer and that these items were inside his trailer when he left for work in the morning. Moore

further testified that he locked the door to his trailer and that he did not give the Defendant
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permission to go inside his trailer. He also said that he did not leave any trash on his front porch.

On cross-examination, Moore admitted that, on the day of the crime, his trailer did not have any

electricity or running water. He also acknowledged that a “For Rent” sign remained in the trailer’s

window and that he rented the trailer from Pat Smith. 

Rebecca Mitchell, a patrol-woman with the Lewisburg Police Department, testified that, on

the day of the crime, she responded to a dispatch call and went to Moore’s trailer. She explained that

Primm told her what he had seen occurin TerryMoore’s trailer on the day of the crime. She testified

that Primm provided her with a description of the Defendant, the woman that he was with, and the

vehicle that they drove. She relayed this information to the rest of her shift, and later Officer Curley

informed her to go to Park Avenue where a vehicle that fit the description was located. Mitchell

testified that she went to this location, searched the vehicle, and found a walkman with a radio

headphone, two fish, and two packages of chicken breasts. 

David Curley, a patrolman with the Lewisburg Police Department, testified that, on the day

of the crime, he received two “be on the lookout” advisories and found a truck that matched the

descriptions provided parked in a driveway on Park Avenue. He said that he saw four people,

including the Defendant, sitting on the apartment’s front porch. He pulled his patrol car behind the

truck in the driveway and found the Defendant and Hooten, the woman who accompanied the

Defendant. Hooten and the Defendant provided him with their identification cards and other police

officers arrived at the scene. He testified that Primm arrived at the scene and identified the

Defendant and Hooten as the individuals who were inside Terry Moore’s trailer. 

Detective Kevin Patin, with the Lewisburg Police Department, testified that Terry Moore

identified pictures of items that were taken from the Defendant’s truck as his possessions. He further

testified that he observed the compromise joint bars at Harmon’s scrap yard and acknowledged that

CSX employees identified the joint bars as CSX property. He described how he transported the

Defendant and Hooten to the police department and how he spoke with them each individually. He

explained that he provided the Defendant with his Miranda rights, had a conversation with the

Defendant, and then asked the Defendant to provide a written statement summarizing their

conversation. The Defendant said that he could not spell very well, and Officer Patin wrote down

what the Defendant told him and then went over this statement with the Defendant. Officer Patin

testified that the Defendant admitted that he went into Moore’s trailer and took a fish, chicken, and

a walkman out of the apartment and that he took the compromise joint bars from CSX property.

Officer Patin read the following Defendant’s written statement to the jury: 

Michelle picked me up at my sister’s house this morning about 7:30 a.m. We

went and paid her bill at the bank, then [w]e went to my mother’s house on Park

Street. We called around to try and find us a place to live. We left and rode around

a little while. Then I told Michelle to pull into the railroad place. I got out and

loaded up the railroad tie joint bars. I got about twenty of them. 

Then we went to Cornersville to Cam Harmon’s junk yard and sold them for
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$53.10. Then we went back to my mother’s house - - went back to my mother’s and

while my mother was calling to try to find us a place, me and Michelle went riding

around again to try to look for a place to live. That is when we seen a “For Rent”

sign at a trailer on 4 Avenue.

th

The door was open so we went in and looked around. A lady that lives in one

of the trailers said go in and look around.

That is when I looked in the refrigerator and found some chicken that looked

like it was bad. 

So I took it to feed my sister’s dog. Then we found some fish things on the

floor so we took them, and an earphone set was on the patio.

I told Michelle to put them in her pants and she did. 

Then [we] went back to my mother’s. My mother told us that Sue Allen had

an apartment so we went and looked at the apartment and Michelle filled out the

paperwork and we paid her the money.

Then [we] went to get my mother to show the apartment to her.

Then we took mother back to her house. That is when the police got us. We

were homeless living in a storage building with no way to eat or bathe. I am sorry.

We just don’t have any money. I just want someone to help us. Signed Joel Jones.

Detective Patin testified that he read Hooten her rights and then had a conversation with her.

Patin read the following statement that Hooten wrote to the jury: 

After I pulled up Joel at Wendy’s, drove - - we went to - - looks like Iris’s

mom’s. Then we went to the credit union.

We went to CSX and got some metal and sold it in Cornersville. We went

to the trailer because it was for rent and went in and got a couple of things. 

We went to the storage building for a while. I paid a deposit on an apartment

and then we went back to Joel’s mom’s house.

We took from the trailer a portable stereo, two singing fish and some chicken.

Signed Michelle Hooten.

 

On cross-examination, Detective Patin acknowledged that he may have had trouble reading

some of Hooten’s handwritten words and that she may have actually written that, “We went to CSX
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and got scrap metal” instead of “we went to CSX and got some metal.” He acknowledged that the

Defendant and Hooten never changed their stories that they went to the trailer in order to look at it

as a possible place to rent. He admitted that the Defendant may have mentioned something about

the trailer’s lack of electricity. He acknowledged that the Defendant had informed him that, when

he opened the refrigerator, one of the bags of chicken smelled rotten. He did not recall if the

Defendant told him that there was garbage on the trailer’s patio porch. He did not recall the

Defendant telling him that the home lacked curtains or furniture. He admitted that the Defendant

may have told him that the Defendant thought the material he had obtained from CSX property was

scrap metal. 

On redirect, Patin testified that both the Defendant and Hooten admitted that they took

Moore’s property once they were inside his trailer. He further testified that they both reported that

Hooten hid something underneath her clothes. 

The Defendant testified that he was homeless and that he kept his personal belongings in a

storage building. He said that, on the day of the crime, Hooten picked him up and they drove around

picking up scrap. He explained that he has been collecting scrap his entire life and that he sells the

scrap material that he collects to Harmon’s junkyard. He said that he and Hooten passed a railroad

track, and he saw a sign that said “scrap.” He told Hooten about the sign, they pulled over, and the

Defendant collected a few joint bars. He explained that he saw a lot of buckets and piles of plastic,

and he thought that these materials were trash. He said that, after he collected a few joint bars, he

went to Harmon’s junkyard and sold him the joint bars, and then cashed the check at the credit union

that Wooten uses.

He testified that he and Hooten then looked for a place to live. He explained that he and

Hooten had looked at Pat Smith’s properties, and they saw a “For Rent” sign with the phone number

for Pat Smith’s properties in front of the trailer. He said that Ms. Moore came out of the trailer,

explained that the trailer was for rent, and gave the Defendant and Hooten permission to go inside

the trailer. He explained that he knew Ms. Moore because he knew her son, Randy Moore, and that

he thought that he could enter the trailer because its door was wide open. He testified that, once

inside, he opened the refrigerator, and found a package of ruined chicken, which he took. He

testified that the trailer did not have any furniture inside, except for a kitchen table, and did not have

working electricity or running water. He said that he stayed inside the trailer for about four to five

minutes. He testified that he took a garbage bag full of items from the trailer’s front patio to his

mother’s house and that he went through the items inside the garbage bag. He said that the fish and

the walkman were inside the garbage bag that he found on the patio. He explained that he thought

the chicken and the headphones were trash. He further testified that he had intended to contact Pat

Smith in order to rent the trailer, but, when he got to his mother’s home, he learned that his mother

had found another place for them to live.

The Defendant testified that, when he took the materials from CSX property, he did not

realize that he could be charged with stealing. He said that he understood that he had done

something wrong after discussing the incident with Detective Patin, but he did not intend to do
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something wrong. He agreed that the chicken and the fish were in the back of his pick-up truck and

that he was not trying to hide these items. He also said that the walkman was lying in the front of

his pick-up truck and that he was not trying to hide the walkman. The Defendant did not recall that

a CSX employee had driven up close to the Defendant’s truck while the Defendant was picking up

the joint bars on CSX property.

On cross-examination, the Defendant agreed that he told the jury that the two fish and the

walkman were in a garbage bag that he took from the trailer. He testified that, when he encountered

the police, the two fish were inside a white bucket and were not inside the garbage bag. The

following portion was read from the Defendant’s statement “I took it to feed my sister’s dog. Then

we found some fish things on the floor so we took them, and an earphone set was on the patio.”

When asked if that was what the Defendant said, the Defendant replied that he said those words

because he was intimidated. He testified that Wooten did not stick the radio in her pants, but he

admitted that he told Detective Patin that she stuck the radio in her pants. The Defendant said that

he knew that the CSX property did not belong to him, but that he did not steal the materials because

he thought they were scrap. He acknowledged that no one gave him permission to take the property

that did not belong to him. 

Joyce Moore testified that she knew the Defendant through her son, Randy. She said that,

on the day of the crime, she did not see the Defendant, and she did not give him permission to enter

the trailer. She said that, when she was inside Moore’s trailer, she had seen a fish on a plaque lying

on the kitchen table. 

III. Analysis

A. Sufficiency of the Evidence

The Defendant contends that the evidence is insufficient to support his convictions for

aggravated burglary and for theft of property valued at more than $1000. When an accused

challenges the sufficiency of the evidence, this Court’s standard of review is whether, after

considering the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Tenn. R. App. P. 13(e); State

v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn.

2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence,

or a combination of both direct and circumstantial evidence. State v. Pendergrass,13 S.W.3d 389,

392-93 (Tenn. Crim. App. 1999).

In determining the sufficiency of the evidence, this Court should not re-weigh or re-evaluate

the evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990). Nor may this

Court substitute its inferences for those drawn by the trier of fact from the evidence. State v. Buggs,

995 S.W.2d 102, 105 (Tenn. 1999); Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956). Questions

concerning the credibility of the witnesses, the weight and value of the evidence, and all factual

issues raised by the evidence are resolved by the trier of fact. Liakas, 286 S.W.2d at 859. “A guilty

verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the State
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and resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476

(Tenn. 1973). Our Supreme Court stated the rationale for this rule:

This well-settled rule rests on a sound foundation. The trial judge and the

jury see the witnesses face to face, hear their testimony and observe their demeanor

on the stand. Thus the trial judge and jury are the primary instrumentality of justice

to determine the weight and credibility to be given to the testimony of witnesses. In

the trial forum alone is there human atmosphere and the totality of the evidence

cannot be reproduced with a written record in this Court. 

Bolin v. State, 405 S.W.2d 768, 771 (1966) (citing Caroll v. State, 370 S.W.2d 523, 527 (Tenn.

1963)). This Court must afford the State of Tennessee the strongest legitimate view of the evidence

contained in the record, as well as all reasonable inferences which may be drawn from the evidence.

Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because

a verdict of guilt against a defendant removes the presumption of innocence and raises a presumption

of guilt, the convicted criminal defendant bearsthe burden ofshowing that the evidence was legally

insufficient to sustain a guilty verdict. Id.; see State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn.

2000). However, before an accused can be convicted of a criminal offense based on circumstantial

evidence alone, the facts and circumstances “‘must be so strong and cogent as to exclude every other

reasonable hypothesis save the guilt of the defendant . . . .’” Goodwin, 143 S.W.3d at 775. “In other

words, a web of guilt must be woven around the defendant from which he cannot escape and from

which facts and circumstances the jury could draw no other reasonable inference save the guilt of

the defendant beyond a reasonable doubt.” Id. We note that it is well-established law in Tennessee

that the testimony of a victim, standing alone, is sufficient to support a conviction. State v.

Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993); State v. Williams, 623 S.W.2d 118, 120

(Tenn. Crim. App. 1981). 

1. Aggravated Burglary

The Defendant contends that the evidence is insufficient to sustain his conviction for

aggravated burglary. Specifically, the Defendant argues that the State failed to prove beyond a

reasonable doubt that he entered Terry Moore’s trailer with the intent to commit a theft. The State

contends that the evidence is sufficient to support the Defendant’s conviction.

Aggravated burglary occurs when, without the effective consent of the property owner, a

person enters a habitation with intent to commit a felony, theft, or assault. Tenn. Code Ann. § 39-14-

403 (2003). “A person commits theft of property if, with intent to deprive the owner of property,

the person knowingly obtains or exercises control over the property without the owner’s effective

consent.” Id. § 39-14-103 (2003). Importantly, we note here that “unsatisfactorily explained

possession of recently stolen property may be sufficient in and ofitselfto establish a burglary.” State

v. Jones, 901 S.W.2d 393, 396 (Tenn. Crim. App. 1995). 

We conclude that sufficient evidence was presented for a rational jury to find the Defendant
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guilty of aggravated burglary. In the statement that the Defendant gave to Officer Patin, he

acknowledged that he took fish, chicken, and a walkman from Terry Moore’s trailer and that he

asked Hooten to hide the walkman in her pants. Primm testified that he saw the Defendant and

Hooten enter Terry Moore’s trailer and take his possessions. Further, the Defendant was found in

possession of the two fish, the chicken, and the walkman, all of which were recently stolen. The

Defendant claims that he entered the trailer to determine if he wanted to rent the premises and that

Ms. Moore gave him permission to enter Terry Moore’s trailer, but Ms. Moore testified that she

never even saw the Defendant on the day of the crime. The jury was entitled to accredit the

testimony of Ms. Moore. The jury, as they were entitled to, chose not to believe the Defendant’s

version of the incident. Given the conflicting testimony between the Defendant and Ms. Moore

about whether the Defendant had permission to enter the trailer, Terry Moore’s testimony that he

locked the door of his trailer, and the Defendant’s own sworn statement that he asked Hooten to hide

the walkman in her pants, the jury could properly infer that the Defendant planned to commit a theft

of Terry Moore’s trailer when he entered the premises. The evidence established at trial was

sufficient to support the verdict of the jury. The Defendant is not entitled to relief on this issue. 

2. Theft

The Defendant contends that the evidence is insufficient to support his conviction for theft

of property valued at more than $1000. Specifically, the Defendant contends that the State failed to

prove beyond a reasonable doubt that the Defendant took CSX Transportation’s property knowing

that he did not have consent to do so. The State contends that the evidence is sufficient to support

the Defendant’s conviction. 

Pursuant to Tennessee Code Annotated section 39-14-103, “A person commits theft of

property if, with intent to deprive the owner of property, the person knowingly obtains or exercises

control over the property without the owner’s effective consent.” Id. § 39-14-103. The evidence,

viewed in the light most favorable to the State, established that the Defendant took eight to ten pairs

of compromise joint bars costing $142.25 each from CSX property, for a total value of

approximately $1138.00 to $1422.00. In the Defendant’s sworn statement, he explained that he took

about twenty railroad joint bars from CSX property and sold them to Harmon. The Defendant

contends that he saw a sign reading “scrap” near the materials that he took and believed that the sign

provided effective consent by CSX Transportation for any person to take the property. The State’s

evidence, however, amply refutes the Defendant’s theory. Mitchell testified that the compromise

joint bars were kept stacked in a pile separate from the buckets and pile of plastic trash on CSX

property. Mitchell also testified that, when he saw the Defendant, the Defendant appeared to be in

a hurry to get into the pick-up truck, and the Defendant’s truck “took off” and left the premises after

Mitchell peered into the bed of the truck and saw the joint bars that the Defendant took from CSX

property. Additionally, Emerson testified that the CSX compromise joint bars that he saw at

Harmon’s junk yard were made from new material and did not look like “scrap.” Considering the

Defendant’s admission that he took the materials, the testimony of Mitchell that the Defendant’s

truck sped away when Mitchell approached, and Emerson’s testimony that the materials did not

appear to be scrap, the evidence is sufficient to sustain the Defendant’s conviction for theft of
The Defendant made offers of proof that consisted of two witnesses testifying about whether McCool was

1

present in the courtroom during trial.

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property. Further, the testimony of Malhorta established that the value of the stolen material

exceeded $1000.00. The Defendant is not entitled to relief on this issue. 

B. McCool’s Testimony

In his brief, the Defendant asserts that Pamela McCool would have testified that the

Defendant and Hooten came to her home on Park Avenue and said that they had found a trailer to

rent. At trial, the Defendant attempted to call McCool as a witness, and the State objected to her

testifying because she claimed that she had been inside the courtroom during the trial. The State

questioned McCool about her presence in the courtroom. McCool stated that she had been outside

the courtroom all day and that she did not hear any of the testimony that was presented to the court.

The trial court judge found that McCool had been inside the courtroom during the trial and that she

had “slipped in twice. . . . [and] took her child out at different times.”

The Defendant contends that the trial court abused its discretion when it disqualified McCool

as a witness. Specifically, the Defendant contends that McCool’s testimony was crucial to his

defense because it would have proved that the Defendant lacked the requisite intent in the aggravated

burglary charge. The Defendant further contends that, if McCool heard any testimony, such actions

were inadvertent and unintentional, and her conduct caused no harm or prejudice to the State. The

State contends that McCool’s conduct warranted the trial court’s decision to disqualify her as a

witness.

Tennessee Rule of Evidence 615 provides: “At the request of a party the court shall order

witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing.” Our

Supreme Court has ruled that “[t]he purpose of the rule is to prevent one witness from hearing the

testimony of another and adjusting his testimony accordingly.” State v. Harris, 839 S.W.2d 54, 68

(Tenn. 1992). “‘The rule’ may be invoked at anytime and is mandatory.” State v. Anthony, 836

S.W.2d 600, 605 (Tenn . Crim. App. 1992). Despite the fact that the rule is mandatory, there is no

established sanction for its violation. Rather, trial judges are “afforded wide discretion” in their

determination of how to best handle a violation of the rule. State v. Coulter, 67 S.W.3d 3, 52 (Tenn.

Crim. App. 2001). “The trial judge has broad discretion in the decision regarding the exclusion of

witnesses in accordance with the rule, and unless this discretion is abused his action will not be

reversed.” State v. Wicks, 729 S.W.2d 283, 286 (Tenn. Crim. App. 1987). 

Although the Defendant contends that Ms. McCool’s testimony would have proven that he

lacked the requisite intent to commit aggravated burglary, the record does not contain this

information because the Defendant did not make an offer of proof describing the expected contents

of McCool’s testimony. Tenn. R. Evid. 103. Since the record does not contain any information 1

regarding the expected testimony, we cannot determine whether the disqualification of this witness

constitutes reversible error. However, we doubt that the trial court’s refusal to let McCool testify
-11-

was prejudicial in light of other overwhelming evidence of the Defendant’s guilt, including the

testimony of Primm and the statements that the Defendant and Hooten gave to the police. Reversal

is required only if the error affirmatively appears to have affected the result of the trial on the merits,

or, in other words, reversal is required only if the error more probably than not affected the

judgement to the Defendant’s prejudice. See Tenn. R. Crim. P. 52(a); Tenn. R. App. P. 36(b). In

the case under submission, the evidence was strong against the Defendant. If there was error in

exclusion of the testimony of the witness, it was no more than harmless error.

C. Length of Trial

The Defendant contends that the trial court erred when it extended the trial into late evening

hours. Specifically, the Defendant contends that his right to a fair trial was compromised because

the jury was fatigued. The State contends that the Defendant waived this complaint because he failed

to object at trial and failed to raise this issue in his motion for new trial. We note that the Defendant

failed to object at trial, and he did not raise this issue in his motion for new trial. Therefore, he has

risked waiving this issue. Tenn. R. App. P. 36(a); Tenn. R. App. P. 3. We will, however, address

this issue on its merits. 

In Hembree v. State, 546 S.W.2d 235 (Tenn. Crim App. 1976), this Court laid down the rule

regarding night trial sessions. Id. at 242; see also State v. McMullin, 801 S.W.2d 826, 827-32 (Tenn.

Crim. App. 1990). In Hembree the defense counsel stated that they were tired, they were not

thinking clearly, and they could not effectively assist their clients. Id. at 242. Counsel asked the

court to adjourn until the next day, and the trial court refused this request. Id. This Court held that

the trial court erred in not adjourning at midnight and stated:

We are also mindful of the fatigue of the jurors. We think that absent unusual

and compelling circumstances, the jury should not be permitted to listen to evidence

until 1:00 a.m. No reasonable cause was given for proceeding until this hour and a

defendant being tried for murder is not only entitled to reasonably alert counsel, but

to witnesses who are reasonably alert and that the jury should likewise be clearheaded and not unduly fatigued. We think that the 14th Amendment of the United

States Constitution and Art. 1, § 8 of the Tennessee Constitution grants appellants

these rights. This is not to say that night sessions per se are improper under unusual

circumstances; however, we do hold that night sessions should be terminated at a

more reasonable hour, absent consent of the parties and all members of the jury.

Id. at 242-43.

In State v. Craig, 655 S.W.2d 186 (Tenn. Crim. App. 1983), this Court found that the

defendant’s right to a fair trial was not violated by the trial court’s denial of his motion for

adjournment despite his allegations of jury fatigue caused by the trial’s extended hours. Id. at 191.

Like the case under submission, the defendant in Craig did not argue that he received ineffective

counsel due to the trial’s extended hours. Id. In Craig, this Court noted that short recesses, in
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addition to lunch and dinner breaks, were taken during the trial and that no member of the jury

requested an adjournment. Id. This Court in Craig further noted that the record lacked any

indication of jury fatigue and concluded that, “The jury was obviously fully capable of considering

the evidence. We find nothing in the record to indicate that the jury’s verdict was in any way

affected or influenced by the night session of which complaint is made.” Id. 

In the case under submission, a juror explained that he could not meet the next day due to

prior obligations. After informing the jury that the presentation of the evidence and the jury

instructions would probably not be given until midnight, the trial court polled the jury by questioning

each member about whether he or she felt that he or she could concentrate and finish the case that

night. The jurors all responded that they could concentrate and finish the case that night. The record

indicates that the jury took several hours to reach a verdict. Jury deliberations began at 11:20 p.m.

and the jury returned a verdict at 3:35 a.m. Therefore, the record does not reflect that the jury rushed

deliberations due to fatigue. Like the trial discussed in Craig, there was no juror complaint or any

evidence of juror fatigue during the trial of this case, and the deliberations began approximately forty

minutes prior to the time to which all of the jurors had consented. This case is distinguishable from

Hembree because the Defendant does not claim that counsel was ineffective due to the trial’s

extended hours, the Defense counsel made no motions to recess at normal hours, the trial court

obtained permission from the jurors to work for extended hours, and the trial was extended at the

request of one of the jurors. We find that the extended hours involved in this particular trial, which

were prolonged to accommodate the needs of a juror, without protest of Defendant’s counsel and

with the express agreement of the jurors, does not violate the rule laid down in Hembree v. State.

The Defendant is not entitled to relief on this issue.

III. Conclusion

In accordance with the foregoing authorities and reasoning, we affirm the judgments of the

trial court.

 ___________________________________ 

 ROBERT W. WEDEMEYER, JUDGE