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Poole v. State

Court of Criminal Appeals of Tennessee, Jackson

January 25, 2018

RANDY POOLE
v.
STATE OF TENNESSEE

          Assigned on Briefs December 5, 2017

          Appeal from the Criminal Court for Shelby County No. 13-01570 W. Mark Ward, Judge

         The petitioner, Randy Poole, appeals the denial of his post-conviction petition, arguing the post-conviction court erred in finding he received effective assistance of counsel at trial and in filing his motion for new trial. Following our review, we affirm the denial of the petition.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

          Monica A. Timmerman, Bartlett, Tennessee, for the appellant, Randy Poole.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Holly Palmer, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which John Everett Williams and Alan E. Glenn, JJ., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         The petitioner participated in an aggravated burglary on September 11, 2012. For his participation, a Shelby County jury convicted him of the lesser-included offense of facilitation of aggravated burglary for which the petitioner received an eight-year sentence. Despite the untimely filing of his motion for new trial, this Court affirmed his conviction and sentence on direct appeal. In doing so, this Court summarized the factual and procedural history of the petitioner's case as follows:

In March 2013, the Shelby County Grand Jury returned an indictment charging the [petitioner] and co-defendant, Christopher Sims, with aggravated burglary. The [petitioner] proceeded to trial on October 7, 2013.
At trial, Matthew Carragher testified that he owned a house on Hodges Street in Memphis and that it was a rental property, which was managed by a property management company. The property was vacant on September 11, 2012. On that day, he received a phone call from the management company informing him that the police had "caught two guys coming out of the house trying to steal the stove and the refrigerator." He testified that he had not given the [petitioner], or anyone else, permission to enter the house that day.
Christopher Sims testified that he was currently imprisoned after pleading guilty to the aggravated burglary of the Hodges Street house. Several days before September 11, 2012, Sims went to Hodges Street and entered the house through an unlocked back door. He first testified that he knew the house was vacant by "just looking around, " although he later stated that the [petitioner] had told him about the vacant house. Sims saw that there was a stove and refrigerator in the house, but he left the house without removing any property. The [petitioner] was not with Sims during this initial entry into the house.
Sims testified that on the afternoon of September 11, 2012, he and the [petitioner] discussed the appliances located at the Hodges Street house. Because neither Sims nor the [petitioner] had a vehicle, the [petitioner] enlisted the help of a friend who owned a truck to help them transport the appliances. Sims testified that the driver picked both himself and the [petitioner] up at the home of Cheryl Fleming, Sims's mother and, at the time, the [petitioner's] girlfriend. Initially, Sims testified that the appliances had already been taken out of the house and were sitting outside when the three men arrived at the house. However, he later testified that the men arrived at the house, parking the truck on the street in front of the house, and that he and the [petitioner] then moved the appliances to the "middle of the backyard." Sims testified that it took the men about five to ten minutes to move the appliances from the house into the backyard.
Roshella Mabroy testified that she lived in the house next door to the burgled house on Hodges Street and that she was home all day on September 11, 2012. She heard a vehicle pull into her driveway around 3:30 p.m. and went to the side door of her house to see who had arrived. She was expecting her landlord to arrive around that time to do some repair work at her house. However, upon looking out the door, she saw a truck that she did not recognize in her driveway. She noticed that there were three men in the truck, whom she recognized "from the neighborhood." Two men were in the cab of the truck, and a third man was sitting in the truck bed. She identified the [petitioner] as the passenger in the cab of the truck and identified Christopher Sims as the man riding in the truck bed.
Ms. Mabroy stuck her head out the door and told the men to get out of her driveway. She watched as the truck pulled out of her driveway and then backed into the driveway next-door. According to Ms. Mabroy, the "young fellow in the back got out, " while the [petitioner] and the driver remained in the truck. She watched as Sims opened the gate to the fence, and at that time, she noticed a stove and refrigerator sitting inside the fenced backyard. She had never seen appliances sitting outside of the house before and had not noticed anything unusual before that day. However, Ms. Mabroy admitted that she was not certain that the appliances had not been outside for several days because she could not see inside the fence when the gate was closed.
Upon seeing the stove and refrigerator, she "immediately" said, "don't bother that stove, that refrigerator, leave that alone." Ms. Mabroy said that the [petitioner], who was "slouched down in the truck, " asked her, "[Y]ou going to snitch[?]" She responded, telling him, "[Y]ou're not going to be able to make it out of the driveway because it's broad daylight and all my neighbors [are] looking at you." While she was talking to the [petitioner], Sims "grabbed the refrigerator . . . and was going to put it [in the truck], " but she told him not to, and the men left. She testified ...

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