Tinker v. State

• Citation: 932 So.2d 168
• Decision Date: 26 August 2005
• Docket Number: CR-04-0126.
• Parties: Charles TINKER v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 168

932 So.2d 168

Charles TINKER v. STATE of Alabama.

CR-04-0126.

Court of Criminal Appeals of Alabama.

August 26, 2005.

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Edward D. Tumlin, Birmingham, for appellant.

Troy King, atty. gen., and Daniel W. Madison, asst. atty. gen., for appellee.

SHAW, Judge.

Charles Tinker was indicted for conspiracy to traffic in cocaine, a violation of § 13A-12-204, Ala.Code 1975 (count 1); attempted murder of Andre Thomas, a violation of §§ 13A-6-2 and 13A-4-2, Ala. Code 1975 (count 2); two counts of capital murder — murder for hire in the killing of Jimmy "Tiger" Taylor and Ronald Thomas, violations of § 13A-5-40(a)(7), Ala. Code 1975 (counts 3 and 4); and trafficking in cannabis/marijuana, a violation of § 13A-12-231, Ala.Code 1975 (Count 5). The jury found Tinker guilty as charged in counts 2-5. With respect to count 1, the jury returned a verdict form indicating that it had found Tinker guilty of trafficking in cocaine. (See discussion in Part I.A. of this opinion.) Tinker was sentenced to life imprisonment without the possibility of parole on the two capital convictions and to life imprisonment on the three remaining convictions.

I.

Tinker contends that the trial court improperly overruled his motion for a judgment of acquittal. Specifically, Tinker contends that the State did not present sufficient evidence to convict him of each of the charged offenses. (Issue IV in Tinker's appellate brief.)

"`In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.'" Ballenger v. State, 720 So.2d 1033, 1034 (Ala. Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). "`The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.'" Nunn v. State, 697 So.2d 497, 498 (Ala. Crim.App.1997), quoting O'Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). "`When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court's decision.'" Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). "The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury." Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).

Any "inconsistencies and contradictions in the State's evidence, as well as [any] conflict between the State's evidence and that offered by the appellant, [goes] to the weight of the evidence and [creates a question] of fact to be resolved by the jury." Rowell v. State, 647 So.2d 67, 69-70 (Ala.Crim.App.1994). "`"[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine."'" Johnson v. State, 555 So.2d 818, 820 (Ala.Crim.App.1989), quoting Harris v. State, 513 So.2d 79, 81 (Ala. Crim.App.1987), quoting in turn Byrd v. State, 24 Ala.App. 451, 451, 136 So. 431, 431 (1931). "We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial." Johnson, 555 So.2d at 820. "`When the jury has passed on the credibility of evidence tending to establish the defendant's guilt, this Court cannot disturb its finding.'" Rowell, 647 So.2d at 69, quoting Collins v. State, 412 So.2d 845, 846 (Ala. Crim.App.1982). Furthermore, "`[t]his Court must view the evidence in the light most favorable to the State, and "draw all reasonable inferences and resolve all credibility choices in favor of the trier of fact."'" D.L. v. State, 625 So.2d 1201, 1204 (Ala.Crim.App.1993), quoting Woodberry v. State, 497 So.2d 587, 590 (Ala. Crim.App.1986). "Any issues regarding the weight and credibility of the evidence are not reviewable on appeal once the state has made a prima facie case." Jones v. State, 719 So.2d 249, 255 (Ala.Crim.App. 1996).

A.

Tinker was charged with conspiracy to traffic in cocaine in count 1 of the indictment, which stated that Tinker

"did between January 1994 and November 1999, agree with other persons including but not limited to David Phillips, Femark Dewayne Robinson, Edward Long and Glenis Latham to knowingly sell or deliver a quantity of cocaine, a controlled substance, in excess of 28 grams, and in furtherance of this conspiracy did attempt to kill Andra Thomas and hire the killing of Jimmy `Tiger' Taylor while within the Bessemer Division, Jefferson County, Alabama, said conduct occurring after July 23, 1987, in violation of Section 20-2-80 of the Code of Alabama, 1975."

(C. 2.) Tinker argues on appeal that the State did not make a prima facie case — that there was no corroboration of the testimony of his accomplices; that no cocaine was found or analyzed; that there was no evidence presented as to a conspiracy involving Andre Thomas¹; that the conspiracy charge was based on speculation and hearsay; and that there was insufficient evidence indicating a conspiracy or an overt act. Specifically, Tinker contends that "[e]ven though various people testified to dealing with [Tinker] in marijuana and cocaine, no independent evidence tended to connect [Tinker] with these transaction[s]." (Tinker's brief at p. 23.)

Our review of the record reveals that the following evidence was presented at trial regarding this charge: Edward Long testified that sometime "around 1988" he and Tinker began doing "drug deals" together and that Tinker was "the boss." (R. 339-40.) He stated that Tinker "would give [him] drugs and [he] would sell them and pay [Tinker] for [the drugs]." (R. 340.) Edward Long also testified that during and after January 1994, he, along with David Phillips and Femark Robinson, would get cocaine from Tinker and sell it and that the cocaine was housed at "Glenis Latham's place." (R. 348-49.)

Edward Long also testified that Andre Thomas had "been selling cocaine for Charles Tinker" (R. 354) and that in 1994 Andre Thomas owed Tinker approximately $2,800, and Andre Thomas "had started to dodge [Edward Long] because he wasn't going to pay the money." (R. 349.) He also testified that there had been "a couple [of] nights [when they had] assembled and rode out looking for [Andre], but [they] never found him" (R. 349) and then one morning, Tinker telephoned Edward Long and told him that "he had gotten him" at Charlie's Service Station on Dartmouth. (R. 353.)

Edward Long also testified that after Tinker shot Andre Thomas, Jimmy "Tiger" Taylor sent word to Tinker that Andre Thomas was his friend and that "it wasn't over" (R. 355), and Jimmy Taylor threatened to "snatch" Tinker's family. (R. 355.) Edward Long testified that this angered Tinker and he "assembled a party of people" to find and kill Jimmy Taylor. (R. 356.) When they received word that Jimmy Taylor was at a barbershop in Bessemer, they went to the barbershop and David Phillips and Femark Robinson killed Jimmy Taylor and were paid for their part in Jimmy Taylor's death. Edward Long's testimony was corroborated by that of Ronald Eaton, Corey Hall, Officer Paul Williams, and Det. William Byess.

Ronald Eaton, whose only connection with this case is that he was one of Tinker's cellmates at the Jefferson County jail, testified that Tinker had told him that Andre Thomas owed him some money and that when he saw Andre Thomas, he shot him. Ronald Eaton also testified that Tinker had told him that he had paid David Phillips and Femark Robinson to kill Jimmy Taylor.

Officer Paul Williams of the Bessemer Police Department testified that on May 26, 1994, he was dispatched to a shooting at a gasoline service station located at 2806 Dartmouth Avenue in Bessemer. Officer Williams testified that when he arrived at the scene, he found the victim lying just outside the first bay door on the southside of the service station, that the victim had sustained wounds to his head and his abdomen, and that the victim identified himself as Andre Thomas. Officer Williams stated that Andre Thomas told him that "Charles Tinker shot him." (R. 217.)

William Byess was a detective with the criminal division of the Bessemer Police Department in 1994 when Andre Thomas was shot, and he was the detective who was initially in charge of the investigation into Andre Thomas's shooting. Det. Byess testified that he knew that Andre Thomas was a drug trafficker in the Bessemer area and that during his investigation of Andre Thomas's shooting he learned that there was a drug connection between Andre Thomas and Tinker.

Corey Hall, Jimmy Taylor's half-brother, testified that Jimmy Taylor was a drug dealer and an enforcer; that Jimmy Taylor dealt cocaine; and that Jimmy Taylor and Andre Thomas were friends. Corey Hall also testified that he was present when David Phillips entered the barbershop, placed a gun to Jimmy Taylor's head and began shooting, and that there was another man with David Phillips, but that he did not get a good look at the second man's face.

Section 12-21-222, Ala.Code 1975, provides:

"A conviction of felony cannot be had on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense, and such corroborative evidence, if it merely shows the commission of the offense or the circumstances thereof, is not sufficient."

It is well settled that the corroborating evidence need only be slight and can be circumstantial — it does not have to be strong enough by itself to...