Waiver of Closing Argument

In criminal trials Rule 29.1 governs the issue of waiving closing argument. Part (a) applies to the state's first argument. Only if both prosecutor and defense counsel jointly agree can that argument and all others be waived. Part (b) applies to the defense argument. It contains this sentence: "If the defendant waives this closing argument, the state is not permitted to make a final closing argument."

An example arose in Davidson County a decade before the Rules of Criminal Procedure were born in 1978.

Bill Powell was accused of murdering his business associate Haynie Gourley on Friday, May 24, 1968, in order to solely own the local Chevrolet franchise. The state's version was that the two went for an automobile ride around 11 a.m. on Elm Hill Pike to the intersection with Spence Lane, where Powell shot Gourley thrice in the head and neck and wounded himself in the leg. Powell's version was that a black man jumped in the back seat while the car was stopped at a traffic light, asked for money, and started shooting.

Trial commenced on July 14, 1969. Hon. Allen Cornelius presided. Lots of lawyers represented each side. Leading the prosecution team were District Attorney Tom Shriver and special prosecutor John Hooker Sr. Chief defender was Jack Norman Sr. The latter two barristers were generally acclaimed as the giants of the Nashville Bar. From daily verbatim transcript in both The Tennessean and Nashville Banner (and an excellent summary in the Aug. 24 and 31, 1995, issues of the Nashville Scene), we learn that it was a hard fought battle. Bill Powell took the stand and held up fairly well.

Finally on Saturday, Aug. 2, it was time for closing arguments. It was anticipated that General Shriver would begin for the state, followed by Norman for Powell, followed by Hooker for the state. The prosecutor summarized the evidence for about an hour. Then Jack Norman announced: "Charge the jury, your Honor." His waiver deprived the state of John Hooker's eloquence. The tactic worked.

The jury deliberated from 4:05 p.m. until 6:27, ate supper, and deliberated from 7:15 until 8:48 p.m. The verdict? "Not Guilty."


Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law.