State v. Antonious Poole ( 2010 )

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
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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
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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
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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
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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 ex-
girlfriend, 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.
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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
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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 cross-
examine 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
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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).
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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:
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___________________________________
JOHN H. PEAY, Judge
___________________________________
PAUL G. SUMMERS , Judge
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