State v. Marcus Polk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON FILED
JANUARY 1999 SESSION February 3, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) NO. 02C01-9710-CR-00389
Appellee, )
) SHELBY COUNTY
VS. )
) HON. ARTHUR T. BENNETT,
MARCUS POLK, ) JUDGE
)
Appellant. ) (Attempted First Degree Murder,
) Aggravated Assault, Reckless
) Aggravated Assault)
FOR THE APPELLANT: FOR THE APPELLEE:
COLEMAN W. GARRETT PAUL G. SUMMERS
200 Jefferson Ave, Suite 850 Attorney General and Reporter
Memphis, TN 38103-2328
PETER M. COUGHLAN
Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
WILLIAM L. GIBBONS
District Attorney General
PAUL F. GOODMAN
Assistant District Attorney General
201 Poplar Ave, Suite 301
Memphis, TN 38103-1947
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
The defendant, Marcus Polk, appeals as of right his convictions by a
Shelby County jury of two counts of attempted first degree murder, one count of
aggravated assault, and one count of reckless aggravated assault. The
defendant was sentenced to terms of twenty-five (25) and fifteen (15) years for
the attempted murder convictions, and six (6) years for aggravated assault, all
consecutive. The trial court also ordered a three (3) year sentence for reckless
aggravated assault served concurrently to the aggravated assault conviction, for
an effective sentence of forty-six (46) years. On appeal, the defendant contends
the evidence adduced at trial was insufficient to support the guilty verdicts, and
the trial court abused its discretion in ordering consecutive sentences. The
judgment of the trial court is AFFIRMED.
I.
Tamera Townsend and Kenneth Matthews lived together in an apartment
with Townsend’s children. Matthews had fathered Townsend’s two youngest
children. Townsend and Matthews subsequently ended their relationship, and
Matthews moved out of the apartment. The defendant and Tamera Townsend
then began a relationship, and the defendant moved into Townsend’s apartment.
Townsend ended her relationship with the defendant after several
months. Two nights after the defendant moved out of Townsend’s apartment,
Matthews spent the night there. The defendant arrived at the apartment the
following morning and knocked on the door. Townsend refused to answer the
door, fearing a confrontation between Matthews and the defendant. Townsend
testified that the defendant remained outside her apartment for several hours,
leaving sometime in the afternoon.
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Townsend’s mother arrived after the defendant left the apartment.
Townsend, Matthews, her mother and her children then left the apartment for
several hours. When they returned that night, Townsend discovered her
apartment had been vandalized. Television screens were shattered, dresser
drawers were emptied, a leather couch was slashed, and a VCR was missing.
Townsend called police from a neighbor’s apartment, and officers responded to
make a report. Townsend informed the officers she suspected the defendant of
causing the damage.
The police left at approximately 7:30 p.m. on February 16, 1996. Shortly
thereafter, Townsend, Matthews and two neighbors, Wayne Rooks and Latrina
Askew, gathered in Townsend’s apartment. Standing at her front door,
Townsend observed the defendant standing at the entrance to her apartment
complex. She exclaimed, “[t]here go Mark,” and Matthews rushed to the door.
When Matthews appeared at the door, the defendant began to fire shots into the
apartment. Everyone in the apartment dropped to the floor. When the shots
stopped, Wayne Rooks stood to leave and was shot in the head. Rooks
permanently lost his vision and sense of smell as a result of the injury.
Latrina Askew testified that when Townsend shouted, “[t]here go Mark,”
Askew turned and recognized the defendant standing in a dimly lit area of the
apartment complex. Although she could not see him clearly, she did recognize
the defendant, and identified him as the person who fired the shots into
Townsend’s apartment. Kenneth Matthew’s testimony was essentially the same
as Townsend’s and Askew’s. Wayne Rooks testified that he did not see who
shot him.
The defendant’s mother, Dorothy Polk Davenport, testified for the defense
as an alibi witness. She testified that the defendant was at home with a
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female friend from approximately 6:30 p.m. to 8:00 or 8:30 p.m. on the evening
of the shooting.
The defendant testified that he was not the person who fired the shots
and stated he was at home with his girlfriend at the time of the shooting.
II.
The defendant first contends that the evidence is insufficient to support
his convictions. Specifically, he argues that the eyewitness testimony offered by
Askew and Matthews was unduly influenced by Townsend’s statement, and no
rational trier of fact could have convicted him based upon the eyewitness
testimony. The defendant further contends that the jury failed to give proper
weight to his alibi evidence.
In determining the sufficiency of the evidence, this Court does not reweigh
or reevaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835
(Tenn.1978). To the contrary, this Court is required to afford the state 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,
493 S.W.2d 474, 476 (Tenn. 1973), the Tennessee 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."
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Like any other fact at trial, an alibi defense presents an issue of fact
determinable by the jury. Cole v. State, 187 Tenn. 459, 215 S.W.2d 824 (Tenn.
1948); Smith v. State, 566 S.W.2d 553, 556 (Tenn. Crim. App. 1978). Likewise,
the credibility of eyewitness testimony identifying the accused as the perpetrator
of the criminal offense for which he stands trial is a question of fact for the
determination of the jury upon consideration of all competent proof. State v.
Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993).
The jury heard the testimony of three witnesses who identified the
defendant as the person who fired shots into Townsend’s apartment. They also
heard the defendant’s alibi testimony. The jury chose to believe the State’s
witnesses, as was its prerogative.
This issue is without merit.
III.
The defendant next contends the trial court abused its discretion in
ordering consecutive sentences. The defendant argues that since the offenses
arose out of a single act, consecutive sentencing was not warranted.
This Court’s review of the sentence imposed by the trial court is de novo
with a presumption of correctness. Tenn. Code Ann. § 40-35-401(d). This
presumption is conditioned upon an affirmative showing in the record that the
trial judge considered the sentencing principles and all relevant facts and
circumstances. State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). If the trial
court fails to comply with the statutory directives, there is no presumption of
correctness and our review is de novo. State v. Poole, 945 S.W.2d 93, 96
(Tenn. 1997).
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Consecutive sentencing is governed by Tenn. Code Ann. § 40-35-115.
The trial court may order consecutive sentencing if it finds that one or more of
the required statutory criteria exist. State v. Black, 924 S.W.2d 912, 917 (Tenn.
Crim. App. 1995). Further, the court is required to determine whether the
consecutive sentences (1) are reasonably related to the severity of the offenses
committed; (2) serve to protect the public from further criminal conduct by the
offender; and (3) are congruent with general principles of sentencing. State v.
Wilkerson, 905 S.W.2d 933, 939 (Tenn. 1995).
We reject defendant’s argument that all offenses arising out of a single
act of shooting mandate concurrent sentences. See Gray v. State, 538 S.W.2d
391, 393 (Tenn. 1976). As previously stated, consecutive sentencing is now
governed by Tenn. Code Ann. § 40-35-115.
The trial court found the defendant to be “a dangerous [offender] ... you
are a danger to society in regard to human life.” See Tenn. Code Ann. § 40-35-
115 (b)(4). Shooting into an occupied apartment, the defendant endangered the
lives of at least four (4) people. Further, after a brief respite from the initial shots,
the defendant shot Wayne Rooks as he attempted to flee. The trial court was
justified in its determination that the defendant is a dangerous offender within the
meaning of Tenn. Code Ann. § 40-35-115.
The trial court failed to explicitly mention the Wilkerson factors in finding
consecutive sentences appropriate. However, under our power of de novo
review, we find the consecutive sentences are necessary to protect the public
from further criminal conduct by the defendant, are reasonably related to the
severity of the offenses, and are congruent with general sentencing principles.
In short, we find the defendant was properly sentenced to consecutive terms.
This issue is without merit.
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Accordingly, the judgment of the trial court is AFFIRMED.
_________________________
JOE G. RILEY, JUDGE
CONCUR:
______________________________
DAVID G. HAYES, JUDGE
______________________________
JOHN EVERETT WILLIAMS, JUDGE
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