Cedric Dwayne Poore v State Of Oklahoma

F-2017-67

Filed: Sep. 12, 2019

Not for publication

Prevailing Party: State Of Oklahoma

Summary

# Cedric Dwayne Poore appealed his conviction for four counts of Murder in the First Degree and two counts of Robbery with a Firearm. Conviction and sentence were life imprisonment without the possibility of parole for the murders, and life imprisonment plus a fine for the robberies. Kuehn dissented.

Decision

The Judgments and Sentences of the District Court are AFFIRMED.

Issues

• Was there an abuse of discretion by the trial court in disallowing the admission of an affidavit from Susie Canady under the residual hearsay exception?
• Did the evidence presented at trial sufficiently support Appellant's convictions for murder?
• Was the admission of other crimes evidence relating to the robbery of Sejal Master erroneous under 12 O.S.2011, § 2404(B)?
• Was the identification testimony of witnesses reliable and admissible at trial?
• Was there sufficient corroboration for Jamila Jones's testimony as an accomplice under Oklahoma law?
• Was there a violation of Appellant's Fourth Amendment rights regarding the admission of his cellular telephone records obtained without a warrant?
• Was the search of Appellant's residence lawful, and were the grounds for the warrant sufficient?
• Did cumulative error deprive Appellant of a fair trial?

Findings

• the court did not err in disallowing the admission of Canady's affidavit under the residual hearsay exception
• the evidence was sufficient to support Appellant's four murder convictions
• the trial court did not err in admitting evidence relating to the robbery of Ms. Master
• there was no error in the identification testimony at trial
• sufficient evidence was presented to corroborate Jones's accomplice testimony
• the admission of cellular telephone records did not violate Appellant's Fourth Amendment rights
• the search of 2515 North Boston was lawful, and the evidence seized was admissible
• Appellant was not entitled to relief based on cumulative error

F-2017-67

Sep. 12, 2019

Cedric Dwayne Poore

Appellant

v

State Of Oklahoma

Appellee

OPINION

HUDSON, JUDGE: Cedric Dwayne Poore, hereinafter Appellant, was tried and convicted at a jury trial in Tulsa County District Court, Case No. CF-2013-865, of four counts of Murder in the First Degree (Counts 1-4), in violation of 21 O.S.Supp.2012, § 701.7(B), and two counts of Robbery with a Firearm, After Former Conviction of Two Felonies (Counts 5-6), in violation of 21 O.S.2011, § 801. The jury acquitted Appellant of Possession of a Firearm After Former Conviction of a Felony (Count 7). The jury recommended sentences of life imprisonment without the possibility of parole on each of Counts 1-4; and life imprisonment plus a $10,000.00 fine on both Counts 5 and 6. The Honorable Kurt G. Glassco, District Judge, presided at trial and sentenced Appellant in accordance with the jury’s verdicts on Counts 1-4 and found that Appellant’s Counts 5-6 convictions merged with the four felony murder counts. Appellant now appeals.

The State’s evidence in this case showed that shortly after twelve noon on January 7, 2013, Appellant and his brother, James Poore, shot and killed Rebeika Powell, her twin sister Kayetie Powell, Misty Nunley, and Julie Jackson during a robbery. The robbery/murder took place in Rebeika’s apartment at the Fairmont Terrace apartment complex near 61st and South Peoria in Tulsa. Shortly after the murders occurred, the victims were discovered by a neighbor. The victims were found bound with their hands tied behind their backs. All four suffered gunshot wounds to the head. The victims’ pockets were turned inside out, and it appeared items had been dumped from a purse onto the floor.

The evidence of Appellant’s guilt included testimony from James Poore’s girlfriend, Jamila Jones, that Appellant and Poore left her apartment at Fairmont Terrace around noon to rob Rebeika, a fellow resident of the apartment complex. Jones was friends with Rebeika and had been inside her apartment earlier that morning. During that visit, Rebeika accused Jones of stealing from her. This accusation angered and frustrated Jones, a fact she shared with Poore shortly before the murders. Jones described for Poore the money, jewelry, and drugs Rebeika had inside her apartment. Jones later heard Poore on the phone with Appellant. According to Jones, Appellant arrived at her apartment roughly twenty minutes after this phone call. Jones observed a handgun on Appellant’s hip at some point while he was inside the apartment. Jones testified that this weapon looked like the same .40 caliber semiautomatic handgun she had fired just days earlier at a New Year’s Eve celebration at the north Tulsa home Appellant shared with his mother.

Appellant and Poore went inside the bedroom and Jones heard the pair talking in the bedroom for five to ten minutes. She heard Poore say Bro, are you ready. Appellant responded Yes, I’m ready bro, but do you want to do this? Jones understood from this conversation that Appellant and Poore were going to rob Rebeika but claimed that she did not know they were going to murder anyone. Appellant and Poore then left Jones’s apartment together. Appellant and Poore eventually returned to the apartment and proceeded to the back bedroom where Appellant dumped out onto the bed two to three hundred dollars cash, drugs, jewelry and Rebeika’s food stamp card. Jones recognized the packaging of the drugs as being similar to that used by Rebeika for the drugs she sold. Jones previously saw the jewelry on Rebeika’s nightstand and recognized it as belonging to Kayetie. Poore and Appellant divided up the loot: Poore took the drugs, Appellant took the jewelry and the gun back to Poore. Jones further testified that Appellant drove her and Deandre to and from this gathering. Casey Poore, Appellant’s wife, and Quashan Poore, Appellant’s daughter, were also present in the backyard that night. Both testified that they fired a .40 caliber semi-automatic handgun handed to them by Appellant.

The State also presented testimony from three other occupants of Jamila Jones’s apartment—Deandre Jones, Logan Ahmed and Bryson Stancle—who observed Appellant and Poore go to the back bedroom and observed both brothers leave the apartment together shortly before the murders. Investigators recovered DNA from a cigarette butt that had been extinguished on an end table near the victims’ bodies. Subsequent laboratory testing revealed that James Poore could not be excluded as a contributor to the DNA found on this item. Police also recovered eight .40 caliber shell casings from the crime scene. Although the murder weapon was never recovered, Jeffrey Brown, a police ballistics examiner, determined that these shell casings were all fired from the same gun. Brown determined too that these shell casings were fired from the same gun that also fired nine .40 caliber shell casings recovered from the backyard of the home Appellant shared with his mother. Additionally, Brown determined that the shell casings recovered from the crime scene and from Appellant’s backyard were fired from the same gun used to shoot Sejal Master during an unrelated robbery in the parking lot of the Windsail Apartments in south Tulsa on January 5, 2013.

Appellant was interviewed on February 6, 2013, by Vic Regalado, then a Tulsa Police detective. Appellant initially denied being at Poore’s apartment at Fairmont Terrace the morning of the murders. Later during the interview, Appellant claimed it was always a possibility that he was at Poore’s apartment the morning of the murders but that he was not sure. Appellant denied knowing the victims and claimed that he never owned a gun. He admitted knowing Jamila Jones and her brother Deandre.

In his first proposition of error, Appellant complains the trial court abused its discretion in disallowing the admission during the defense case-in-chief of an affidavit signed by Susie Canady. Appellant complains that the trial court previously stymied his efforts to memorialize or preserve the testimony of Canady who, during an in camera hearing at trial, invoked her Fifth Amendment privilege against self-incrimination to avoid testifying. The focus of Appellant’s argument on appeal is that the trial court erred in failing to admit Canady’s affidavit under the residual hearsay exception codified at 12 O.S.2011, § 2804.1. In the affidavit, Canady wrote that she witnessed the murders and that Appellant was not present. The trial court declined to admit the affidavit at trial because there was no indicia of reliability. Appellant argues that his constitutional rights to compulsory process and to present a complete defense were violated by the trial court’s ruling.

Proposition I is denied.

In his second proposition of error, Appellant challenges the sufficiency of the evidence supporting his four murder convictions. Specifically, Appellant complains that the State failed to show any involvement on his part in the underlying robberies supporting his four murder convictions. Proposition II is denied.

In his third proposition of error, Appellant complains that the trial court erred in admitting under 12 O.S.2011, § 2404(B) evidence relating to the robbery of Ms. Master at the Windsail Apartments. Proposition III is denied.

In his fourth proposition of error, Appellant challenges the identification testimony at trial by Jamila Jones, Deandre Jones, Bryson Stancle, and Logan Ahmed. Proposition IV is denied.

In his fifth proposition of error, Appellant complains that insufficient evidence was presented at trial to corroborate Jamila Jones’s testimony. Proposition V is denied.

In his sixth proposition of error, Appellant challenges the admission at trial of cellular telephone records for his account that were obtained by authorities without a search warrant. Proposition VI is denied.

In his seventh proposition of error, Appellant complains the search of the home he shared with his mother was unlawful and, thus, the evidence seized pursuant to that warrant should have been suppressed. Proposition VII is denied.

In his final proposition of error, Appellant contends that the cumulative effect of the individual errors he identified on appeal warrants relief because they deprived him of a fair trial. Proposition VIII is denied.

DECISION

The Judgments and Sentences of the District Court are AFFIRMED.

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Footnotes:

1. 21 O.S.Supp.2012, § 701.7(B)
2. 21 O.S.2011, § 801
3. James Stanford Poore U. State of Oklahoma, No. F-2016-375, slip op. (Okl.Cr. Apr. 25, 2019) (unpublished)
4. 12 O.S.2011, § 2804.1
5. 12 O.S. §§ 2803, 2804, 2805 and 2806
6. 12 O.S.2011, § 2404(B)
7. 12 O.S.2011, § 2403
8. 18 U.S.C. § 2703(d)
9. Carpenter U. United States, U.S. 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018)
10. 22 O.S.2011, § 742

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.7(B) - Murder in the First Degree
• Okla. Stat. tit. 21 § 801 - Robbery with a Firearm
• Okla. Stat. tit. 12 § 2804.1 - Residual Hearsay Exception
• Okla. Stat. tit. 12 § 2404(B) - Character Evidence

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

• 18 U.S.C. § 2703(d) - Stored Communications Act

Other citations:

No other rule citations found.

Case citations:

• Bramlett v. State, 2018 OK CR 19, I 36, 422 P.3d 788, 799-800
• Tryon v. State, 2018 OK CR 20, I 38, 423 P.3d 617, 632
• Williams v. State, 2001 OK CR 9, II 94, 22 P.3d 702, 724
• Phillips v. State, 1988 OK CR 103, g 10, 756 P.2d 604, 608
• Brown v. State, 2008 OK CR 3, II 11, 177 P.3d 577, 580
• Glossip v. State, 2007 OK CR 12, I 96, 157 P.3d 143, 159
• Young v. State, 2000 OK CR 17, II 49, 12 P.3d 20, 37
• Lamar v. State, 2018 OK CR 8, II 40, 419 P.3d 283, 294
• Nevada v. Jackson, 569 U.S. 505, 509, 133 S. Ct. 1990, 1992, 186 L. Ed. 2d 62 (2013)
• Crane v. Kentucky, 476 U.S. 683, 690, 106 S. Ct. 2142, 2146, 90 L. Ed. 2d 636 (1986)
• Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731, 164 L. Ed. 2d 503 (2006)
• Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)
• Davis v. State, 2011 OK CR 29, II 74, 268 P.3d 86, 111
• Young v. State, 2000 OK CR 17, II 35, 12 P.3d at 35
• Miller v. State, 2013 OK CR 11, II 84, 313 P.3d 934, 965
• Warner v. State, 1977 OK CR 257, II 9, 568 P.2d 1284, 1286
• Burks v. State, 1979 OK CR 10, 594 P.2d 771
• Postelle v. State, 2011 OK 26 CR 30, q 15, 267 P.3d 114, 126
• Driskell v. State, 1983 OK CR 22, II 21, 659 P.2d 343, 349
• Smith v. State, 2018 OK CR 4, II 3, 419 P.3d 257, 259
• Coffia v. State, 2008 OK CR 24, II 5, 191 P.3d 594, 596
• Seabolt v. State, 2006 OK CR 50, g 5, 152 P.3d 235, 237
• Darity v. State, 2009 OK CR 27, II 18, 220 P.3d 731, 737
• Perry v. New Hampshire, 565 U.S. 228, 248, 132 S. Ct. 716, 730, 181 L. Ed. 2d 694 (2012)
• Matthews v. Workman, 577 F.3d 1175, 1185 (10th Cir. 2009)
• Carpenter v. United States, U.S. 138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018)
• Davis v. United States, 564 U.S. 229, 236-39, 131 S. Ct. 2419, 2426-28, 180 L. Ed. 2d 285 (2011)
• Illinois v. Krull, 480 U.S. 340, 349-50, 107 S. Ct. 1160, 1167, 94 L. Ed. 2d 364 (1987)
• Stewart v. State, 2019 OK CR 6, II 16, 442 P.3d 158, 164
• Wackerly v. State, 2000 OK CR 15, I 13, 12 P.3d 1, 9
• Gregg v. State, 1992 OK CR 82, II 19, 844 P.2d 867, 875