         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

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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

                                         -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 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.

                                          -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 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

                                             -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-
