State v. Antonious Poole

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED MAY SESSION, 1998 August 4, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TE NNE SSE E, ) C.C.A. NO. 02C01-9709-CR-00350 ) Appellee, ) ) SHELBY COUNTY V. ) ) ) HON. W. FRED AXLEY, JUDGE ANTONIOUS J. POOLE, ) ) Appe llant. ) (AGGRAVATED ROBBERY)

FOR THE APPELLANT: FOR THE APPELLEE:

MARK L. PITTM AN JOHN KNOX WALKUP 295 Washington Avenue, #2 Attorney General & Reporter Memphis, TN 38103 ELIZABETH T. RYAN Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenu e North Nashville, TN 37243

JOH N W. P IERO TTI District Attorn ey Ge neral

JOHNNY R. McFARLAND Assistant District Attorney General Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE

OPINION The Defendant, Antonious J. Poole, appeals as of right from h is conv iction in

the Criminal Court of Shelby County. In a single count indictment, Defendant and co-defendant Gary Hunter were charged with aggravated robbery. Following a jury trial, Defendant was convicted of aggravated robbery and Hunter was convicted of theft of property over $ 1,000.00. In this appeal, Defendant presents the following issues:

1) Whether the evidence presented at trial was sufficient to support the conviction for aggra vated robbe ry;

2) Wh ether the trial c ourt’s re dactio n of co -defen dant H unter’s statement constituted revers ible error and whether such redaction compelled the Defe ndant to testify in violation o f his Fifth and S ixth Amendment rights; and

3) Whether the trial court’s failure to sever the co-defendant from the trial constitutes reversible error;

We affirm the ju dgme nt of the trial co urt.

I. S UFFICIENCY OF THE EVIDENCE

Defendant argues that the evidence was insufficient to find him guilty of aggravated robbery due to the conflicting statements of the witnesses and the jury’s erroneo us imp lication of fac ts which w ere not p roven be yond a re asona ble dou bt. When an accused challenges the sufficiency of the convicting evidence, the stand ard is w hethe r, after re viewing the evid ence in the ligh t mos t favora ble to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reaso nable d oubt. Jack son v. V irginia, 443 U.S. 30 7, 319 (1979 ). On appeal, the State is entitled to the strongest legitimate view of the evidence and all inference s therefro m. State v. Cabbage, 571 S.W .2d 832, 835 (Tenn. 197 8). Because a verdict of guilt removes the presumption of innoce nce an d replace s it with

-2-a presum ption of gu ilt, the accuse d has the bu rden in this court of illustrating why the evidence is insufficient to suppo rt the verdict re turned b y the trier of fact. State v. Tuggle, 639 S.W .2d 913 , 914 (T enn. 19 82); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 19 73).

Questions concerning the credibility of the witnesses, the weight and value to be given the evidence, as we ll as all factual issues raised b y the evidence, a re resolved by the trier of fa ct, not this co urt. State v. Pappas, 754 S.W .2d 620 , 623 (Tenn. Crim. App.), perm. to appeal denied, id. (Tenn. 198 7). Nor may th is court reweigh or reevaluate the evidence. Cabbage, 571 S.W.2d at 835. A jury verdict approved by the trial judge ac credits the State’s w itnesses and res olves all co nflicts in favor of the State. Grace, 493 S.W .2d at 476 .

Tau ris Nowley, the victim, was at Brenda Tate’s home on August 16, 1995, at appro ximate ly 10:00 p.m. Tate and Tiffan y McC lain lived in Tate ’s hom e with th eir children. While Nowley was visiting Tiffany, the Defendant and Hunter arrived. Nowley had met the Defenda nt on one ea rlier occasion, but did n ot know H unter. Defendant and Now ley had a discu ssion during w hich Defen dant becam e angry. After Nowle y had be en there for twenty (2 0) minu tes, he left and w ent to h is autom obile, a blue Chevrolet. Defendant and Hunter were also leaving the house at that time, and Defendant was saying, “I can’t let you leave like this.” After Nowley got in his car, the Defendant walked to his own car and pulled out a nine millimeter gun.

Nowley started his car and w as trying to bac k up w hen D efend ant po inted h is gun at the glass of Nowley’s car window towards his face. In fear for his life, Nowley

-3-stopped the car an d cut off the motor. Defendant told him to get out and get on his knees, leaving the car keys in the ignition. Nowley complied, keeping his head down, and wa s then hit o ver the ba ck of the hea d at least twice. During this time, Hunter was standing to Nowley’s right on the sidewalk watching. Nowley was lying in the street, about to lose consciousness, when he heard Defendant instruct Hunter to “[G]et his shit.” Nowley then lost consciousness. When he regained consciousness, a gold nugg et ring, a Maso nic ring, his wallet, car and p ager were missing .

Tiffany McClain was living with Brenda Tate on Shannon Circle on August 16, 1995. At 10:00 p.m. on that day, Nowley arrived at her home. About ten (10) minutes later, Defendant and Hunt er also arrived at her h ome . Wh ile they w ere all there, McClain saw Defendant and Nowley talking. When they all left, McClain went to the door because she did not hear any car doors shutting. She saw Defendant and Nowley having an argum ent an d then saw th em fig hting. N owley went to his car door and Defendant followed. McClain left the room briefly to put her baby down and returned to the front door to watch. Nowley was on his knees with Defendant and Hunter beside him. Hunter got in Nowley’s car and pulled off, then Defendant got into his own car an d drove away. She and Brenda w alked outside to help Now ley. After Nowley regained consciousness, they helped him inside and called the police. McC lain admitted during cross-examination that in an earlier statement to the police she stated that she saw Defendant and Nowley fighting and that Defendant had a gun.

Brenda Tate was in her home with Tiffany McClain on August 16, 1995, when Tau ris Nowley came by to visit McClain. Shortly after Nowley arrived, the Defendant

-4-and Hunter also came by. The men began arguing, so Tate asked them to leave. Right after Nowley left, Defendant and Hunter also left. Because Tate believed something was going to happen, she asked McClain to go to the door and watch outside. McClain told Tate that they were fighting. After Tate got outside, she saw Nowley on the ground. Hunter got into Nowley’s car and left, then Defendant got into his own car and drove away. Tate and McClain went outside to see if Nowley was alright, then helped him insid e and c alled 911 .

David Clark was working for Imperial Security on August 16, 1995, at the Piggly Wiggly supermarket. He saw a blue Chevrolet speeding on the property, then saw the car stop, a ma n bend ove r and take a rad io out of the car and walk away. He iden tified this ma n who to ok the ra dio out as Hunte r.

Ralph Gillon works fo r Brewe r Imperia l, a security co mpan y. On August 16, 1995, he received a call for assistance from Clark at the Piggly Wiggly in Winchester Square. A black male had been driving on that property and jumped out of the vehicle. Wh en G illon arrived at the Piggly Wiggly, he ran in the direction the suspect ran. Wh en G illon spotted the suspect, he was running and carrying a car stereo system. The suspect kept running and then threw the radio over a nearby fence. When they finally caught the suspect, he was identified as Hunter.

C.G. Gordon w as an investigato r sergeant with the Memphis Police Department on Aug ust 16, 1995. Gordon advised Hunter of his rights and then

-5-interviewed him after he consented to waive his rights. In his statement, Hunter admitted the following:

I said, I didn’t want the car, I just wanted to go home. So I got in the car like a fool and ro de dow n to Piggly Wiggly. And I was scared to death. I almos t killed mys elf. I parked the car on the Piggly Wiggly lot and took the radio o ut. I was wa lking off, and the secu rity guard to ld me to stop. And I kept on walking. Then another security guard pulled a pistol on me and told me to stop and held me there until the police got there.

When asked during the intervie w if anyo ne wa s robb ed with a gun during this robbery, Hunter responded affirmatively and stated that a ring, wallet, beeper and blue Chevrolet Impala were stolen.

The S tate rested its case-in-c hief.

The Defen dant testified that on A ugust 1 6, 1995 , he wen t to visit his exgirlfriend, Tiffany McClain, to check on her. When he and Hunter arrived at her home, it was around 9:30 p.m. Tauris Nowley was already present when Defendant arrived. Defendant, Hunter and Nowley were sitting down, with Defendant and Nowley having a con versa tion reg arding “what h ad be en sa id against [Defend ant].” The ir conversation was gettin g louder and they were using profanity, so Brenda asked them to leave be cause she ha d young children. N owley left first, followed by Defen dant an d Hun ter.

As they left, Defendant and Nowley were still “having words,” and this proceeded into a fight. Nowley fell during the course of the fight, then Hunter took some of Nowley’s rings off his hand, jumped in Nowley’s car and left the scene. Defe ndant claimed he was so scare d that he ju mped in his own car and left also. Defenda nt denied taking anything from Nowley.

-6-

Hunter testified that he acco mpa nied D efend ant to vis it McClain on August 16, 1995. He did not know Nowley prior to that date. Hunter observed Nowley and Defendant get into a dispute, with Defendant calling Nowley names. Nowley acted like he was s cared and to ld McClain that he was leaving. As Nowley was leaving, Defe ndan t hit Hunter on the leg and exited behin d Now ley. No wley w as ge tting in his car and was preparing to back out when Defendant hit the c ar and pulled out his pistol. Defen dant p ut the p istol to th e wind ow of N owley ’s car a nd told him to “get his black ass ou t.” Nowley got out of the car with his hands up. Hunter got scared and started to panic. While Nowley was getting out of the car with his hands up, Defendant hit him across the head a couple of times with the pistol a nd No wley fell to the ground. Defendant kicked him in the head, put the pistol to Nowley’s head and told him to raise his h ands u p in the air. D efenda nt hand ed No wley’s bee per to Hunter and told him that he could have the beeper and the car. Hunt er was afraid of Defendant because he had already hit one perso n and migh t shoo t him, s o while Hunter was relu ctant, he g ot in the ca r and dro ve off. He drove to Winchester Squa re where he took th e radio o ut of the ca r and be gan to w alk awa y.

Aggravated robbery is robbery accomplished with a deadly weapon. Tenn. Code Ann. § 39-13-402(a)(1). Robbery is defined as “the intentiona l or know ing theft of property from the person of ano ther by viole nce or p utting the p erson in fe ar.” Tenn. Code Ann. § 3 9-13-40 1(a). In the light m ost favora ble to the State, there was sufficient evidence that Defendant used a gun both inten tionally and knowin gly to threaten Nowley and take various personal property from him, including his car, beeper, wallet and rings. Both the victim and Hunter testified that the Defendant used a deadly weapon to accomplish the robbery, and the iden tification of a defendant as the pe rson w ho co mm itted the offens e is a question of fac t for the jury

-7-to determ ine. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993)(citations omitte d). No wley’s te stimo ny alone identifying Defendant as the perpetrator of this crime is sufficient, in and o f itself, to support a convictio n. Id. This issue is w ithout me rit.

II. R EDACTION OF DEFENDANT’S STATEMENT

Defendant argues that the redacted statements of his co-defendant which were admitted into evidence at trial violated his constitution al rights under Bruton v. United States, 391 U.S . 123, 88 S .Ct. 1620 (1968). F urtherm ore, the Defendant alleges that by redacting Hunter’s statement ineffectively, Defendant was compelled to testify.

In Bruton, the Supreme Court held that the admission of an incriminating statement by a non-testifying co-defendant was prohibit ed due to the nee d to preserve the right of an accused to confront witnesse s agains t him. Id. at 136-37, 1628. In the case sub judice, the co-de fendan t testified at trial, in addition to the submission of his statement into evidence. Defendant had fu ll opportunity to crossexamine Hunter after his testimony, therefore Bruton does n ot apply. McCracken v. State, 548 S.W .2d 340 , 343 (T enn. C rim. App . 1976).

Defendant further alleg es that du e to the erro neou s introd uction of Hun ter’s redacted statement into evidence, he was compelled to testify. Defendant argues that the reda cted ve rsion s ugge sts tha t the D efend ant too k som e of the victim’s personal property during the robbery. As the State correctly points out in its brief, the victim of the offense testified to virtually the sam e even ts Hun ter relat ed with in

-8-his statement. We fail to see how the Defendant was prejudiced by the introduction of this cum ulative evide nce.

III. S EVERANCE OF DEFENDANTS

Defendant contends that the trial cour t erred in refu sing to sever his trial from that of Hunter. Specifically, Defendant complains that trying the two together was improper due to the antagonistic defenses which were presented to the jury resulting in prejud ice to th e Def enda nt. Prio r to trial, D efend ant’s counsel made a motion to sever the trials of the two defen dants base d upon the ir prior statements, but the motion was d enied by the tr ial judg e. The issue o f sever ance is addressed to the sound discretion of the trial judg e. State v. Wiseman, 643 S.W.2d 354, 362 (Tenn. Crim. App. 1982 ) (citing State v. Coleman, 619 S.W .2d 112, 116 (Tenn. 198 1)). Unless the court’s decision clearly prejudiced the defendant, it will not be reversed. Id.

If a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to the defendant but is not admissible against the defend ant, the court shall determine whether the state intends to offer the statement in evidence at trial. If so, the court shall require the prosecuting attorney to decide whether to have a joint trial at wh ich the statem ent is a dmitte d into e videnc e only after all references to the moving defendant have been deleted, if, as deleted, the confe ssion will not prejudice the moving defendant. Tenn. R. Crim. P. 14 (c)(1)(ii).

-9-

During the trial, Hunter’s statement was redacted such tha t all referenc es to Defendant were rem oved. Following the conclusion of the proof, the trial court instructed the jury to co nsider ea ch defe ndant’s g uilt separa tely. As a res ult, the jury chose to convict the Defendant of one count of aggravated robbery while convicting Hunter of one count of theft of property. We are satisfied that the instructions given to the jury on the wh ole clearly informed the jury to consider each defen dant’s guilt separately. Therefore, we may assume the jury follow ed the trial judg e’s instructions. State v. Barton, 626 S.W.2d 296, 298 (Tenn. Crim. App. 1981) (citations o mitted).

A severance need not be granted if the evidence used against the Defendant would not have been inadmissible against him at a separate trial, including the evidence derived from the testimon y of Hun ter. State v. Hammonds, 616 S.W.2d 890, 896 (Tenn. Crim. App. 1981). Even if there had been separate trials for each defend ant, the same testimony from the victim and the two bystanders regarding the Defenda nt’s role in the robbery would have been the same. This issue is without merit.

We affirm the ju dgme nt of the trial co urt.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

-10-

___________________________________ JOHN H. PEAY, Judge

___________________________________ PAUL G. SUMMERS , Judge

-11-