State v. Tommy Poindexter ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JULY 1997 SESSION
FILED
July 29, 1997
Cecil Crowson, Jr.
STATE OF TENNESSEE, ) Appellate C ourt Clerk
) NO. 02C01-9612-CR-00460
Appellee, )
) SHELBY COUNTY
VS. )
) HON. CHRIS CRAFT, JUDGE
TOMMY L. POINDEXTER, )
) (Conspiracy to Commit
Appellant. ) First Degree Murder)
FOR THE APPELLANT: FOR THE APPELLEE:
DANIEL A. SEWARD JOHN KNOX WALKUP
707 Adams Avenue Attorney General and Reporter
P.O. Box 11207
Memphis, TN 38111-0207 DEBORAH A. TULLIS
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243
WILLIAM L. GIBBONS
District Attorney General
JERRY R. KITCHEN
Assistant District Attorney General
Criminal Justice Center, 3rd Floor
201 Poplar Avenue
Memphis, TN 38103
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Tommy L. Poindexter,1 was convicted by a Shelby County
jury of conspiracy to commit first degree murder and criminally negligent homicide.
He was sentenced to consecutive sentences of twenty-four (24) years for the
offense of conspiracy to commit first degree murder and three (3) years for the
offense of criminally negligent homicide. On appeal, he challenges the sufficiency
of the convicting evidence for conspiracy to commit first degree murder. He further
argues that the sentence of twenty-four (24) years is excessive, and the trial court
erred in imposing consecutive sentences. He does not appeal his conviction or
sentence for criminally negligent homicide. We affirm the judgment of the trial court.
FACTS
In the early morning hours of September 17, 1994, Mashaun Harris, Keith
Thomas, Derrick Dante, Terry Poindexter and defendant were outside of Rob’s
Lounge in downtown Memphis. As Marcus Brown was standing next to his car,
Harris approached him and stole his necklace. As Harris was attempting to get in
a car, Brown shot Harris in the back. Defendant and the others drove Harris to the
Regional Medical Center (the Med) in Memphis.
Grady Harrison, a security officer at the Med, noticed two males bringing
Harris into the hospital. Harrison overheard one of the males telling the other one,
“let’s go get these bitches.” The two males subsequently left the hospital.
Later that evening, the defendant, his brother Terry, Xavier Bennett,
Frederick Stepton, Kevin Porterfield, Eldrick Stephans, Harry Dillard, Warrick
McBride, and Michael Thaddius armed themselves with various types of weapons
and headed for the Ridgecrest Apartments in order to “get” the person who shot
1
The indictment and all other court documents list “Tommy;” however, we note that
defendant signs his name “Tommie.”
2
Harris, i.e., Brown. Although Brown did not live at the Ridgecrest Apartments, he
had been there earlier that afternoon with his roommate.
Defendant, Stephans, McBride, Thaddius and Dillard traveled to the
Ridgecrest Apartments in a car. All five men were dressed in dark clothing and
were armed. Defendant was carrying an AK-47 assault weapon. They approached
Prentiss Walton and Eric Isom, who were standing outside by Isom’s car. The five
men began shooting at Walton and Isom. Melba Frost, a resident at the Ridgecrest
Apartments, overheard some of the men saying things such as, “I got him” and “let’s
get him” during the shooting.
At approximately the same time, Alonzo Wallace was returning to his home
at the Ridgecrest Apartments. He stopped his car and attempted to avoid the
gunfire. When the shooting subsided for a moment, Wallace backed his car into a
parking spot. Someone began to shoot at his car. Wallace was wounded, got out
of his car, ran to his apartment and collapsed by his mailbox.
Bennett, Stepton, Porterfield and Terry Poindexter drove in a separate car
to the apartment complex. By the time they reached the complex, they could
already hear shots being fired. Bennett, Stepton and Porterfield got out of their car
and fired their weapons at some people standing on a second floor balcony.
Subsequently, defendant visited Harris in the hospital. During his
conversation with Harris, defendant said, “[w]e got them. We sprayed them
bitches.” After Harris was released from the hospital, defendant told him that he
killed those “folks” at the Ridgecrest Apartments and that he was shooting an AK-
47.
Wallace died as a result of a gunshot wound to the chest. The bullet
recovered from his body was consistent with that being fired from an AK-47.
Defendant was indicted along with others for the conspiracy to commit a
felony, to wit: murder in the first degree of Marcus Brown. He was also indicted for
the first degree murder of Alonzo Wallace. The jury convicted him of conspiracy to
commit first degree murder of Brown and criminally negligent homicide of Wallace.
He was sentenced as a Range I, Standard Offender to twenty-four (24) years for the
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conspiracy charge. That sentence was ordered to run consecutively to a sentence
of three (3) years for criminally negligent homicide. From the conviction and
sentence for conspiracy, defendant brings this appeal.
SUFFICIENCY OF THE EVIDENCE
Defendant asserts that the evidence is insufficient to support a finding of guilt
of conspiracy to commit murder in the first degree. He claims that there is no
evidence in the record to suggest that he went to the Ridgecrest Apartments to kill
Brown. He further argues that the jury’s finding of guilt of conspiracy is inconsistent
with the finding that he was guilty of the criminally negligent homicide of Wallace.
Therefore, he maintains that the verdict is contrary to the law and the evidence.
A.
When an accused challenges the sufficiency of the evidence, this court must
review the record to determine if the evidence adduced during the trial was sufficient
“to support the findings by the trier of fact of guilt beyond a reasonable doubt.”
Tenn. R. App. P. 13(e). This rule is applicable to findings of guilt predicated upon
direct evidence, circumstantial evidence or a combination of direct and
circumstantial evidence. State v. Brewer, 932 S.W.2d 1,19 (Tenn. Crim. App. 1996).
In determining the sufficiency of the evidence, this court does not reweigh or
re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Nor may this court substitute its inferences for those drawn by the trier of fact from
circumstantial evidence. Liakas v. State, 199 Tenn. 298, 305, 286 S.W.2d 856, 859
(1956). To the contrary, this court is required to afford the State of Tennessee the
strongest legitimate view of the evidence contained in the record as well as all
reasonable and legitimate inferences which may be drawn from the evidence. State
v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App.1995).
Questions concerning the credibility of the witnesses, the weight and value
to be given the evidence as well as all factual issues raised by the evidence are
resolved by the trier of fact, not this court. Id. In State v. Grace, the Tennessee
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Supreme Court stated, “[a] guilty verdict by the jury, approved by the trial judge,
accredits the testimony of the witnesses for the State and resolves all conflicts in
favor of the theory of the State.” 493 S.W.2d 474, 476 (Tenn. 1973).
Because a verdict of guilt removes the presumption of innocence and
replaces it with a presumption of guilt, the accused has the burden in this court of
illustrating why the evidence is insufficient to support the verdict returned by the trier
of fact. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982); State v. Grace, 493
S.W.2d at 476.
B.
A defendant commits the crime of conspiracy if:
(a) . . . two (2) or more people, each having the culpable mental state
required for the offense which is the object of the conspiracy and each
acting for the purpose of promoting or facilitating commission of an
offense, agree that one (1) or more of them will engage in conduct
which constitutes such offense.
...
(d) No person may be convicted of conspiracy to commit an offense
unless an overt act in pursuance of such conspiracy is alleged and
proved to have been done by the person or by another with whom the
person conspired.
Tenn. Code Ann. § 39-12-103. At the time of the homicide, first degree murder was
defined as the “intentional, premeditated and deliberate killing of another.” Tenn.
Code Ann. § 39-13-202(a)(1)(1991).
C.
In the case sub judice, we find that there is sufficient evidence in the record
to support a finding that defendant conspired to kill Marcus Brown. After
defendant’s friend Harris was shot, a security guard heard two of Harris’
companions say, “let’s go get these bitches.” Later that evening, defendant and
eight (8) others armed themselves with weapons to find Brown. Their plan was to
“get” the guy who shot Harris. Defendant subsequently admitted to Harris that they
had “sprayed them bitches.” He admitted to killing the “folks” at the Ridgecrest
Apartments and that he was carrying an AK-47. Although his co-conspirators
testified that they did not intend to kill Brown, the jury could logically infer that they
intended to kill Brown due to their stated intentions and violent conduct. Further, the
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defendant and the co-conspirators committed overt acts in furtherance of the
conspiracy.
Although the verdicts are not necessarily inconsistent, any seeming
inconsistency is irrelevant. There is no requirement of consistency in a jury verdict.
Wiggins v. State, 498 S.W.2d 92, 93-94 (Tenn. 1973); State v. Gennoe, 851 S.W.2d
833, 836 (Tenn. Crim. App. 1992); State v. Hicks, 835 S.W.2d 32, 36 (Tenn. Crim.
App. 1992). This issue has no merit.
SENTENCING
In his final assignment of error, defendant claims that the trial court imposed
an excessive sentence for the conspiracy charge. He further argues that the trial
court improperly imposed consecutive sentences. However, the transcript of the
sentencing hearing is absent from the record. It is the appellant’s duty to have
prepared an adequate record in order to allow a meaningful review on appeal.
Tenn. R. App. P. 24; State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993); State v.
Bunch, 646 S.W.2d 158, 160 (Tenn. 1983); State v. Carey, 914 S.W.2d 93, 97
(Tenn. Crim. App. 1995); State v. Goodwin, 909 S.W.2d 35, 43 (Tenn. Crim. App.
1995); State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993). When no
evidence is preserved in the record for review, we are precluded from considering
the issue. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988).
Moreover, this issue is waived since the defendant has failed to make
appropriate references to the record. Tenn. Crim. App. Rule 10(b); State v. Turner,
919 S.W.2d 346, 358 (Tenn. Crim. App. 1995); State v. Hill, 875 S.W.2d 278, 283-
84 (Tenn. Crim. App. 1993); State v. Killebrew, 760 S.W.2d 228, 231 (Tenn. Crim.
App. 1988); see also Tenn. R. App. P. 27(a)(7) and (g). This issue is without merit.
CONCLUSION
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We find that there is sufficient evidence for a rational trier of fact to conclude
that defendant is guilty of conspiracy to commit first degree murder. Furthermore,
any issue regarding sentencing has been waived as the record does not contain a
transcript of the sentencing hearing. Accordingly, the judgment of the trial court is
affirmed.
JOE G. RILEY, JUDGE
CONCUR:
JOE B. JONES, PRESIDING JUDGE
DAVID H. WELLES, JUDGE
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