# FILED
June 6, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MARCH 1997 SESSION STATE OF TENNESSEE, ) C.C.A. No. 01C01-9603-CC-00094 ) Appellee, ) WILLIAMSON COUN TY ) vs ) HON. HENRY DENMARK BELL, ) JUDGE JOHN M. AKE, ) ) (Aggravated Robber y and Theft) Appellant. )

FOR THE APPE LLANT: FOR THE APPELLEE: JOHN H. HENDERSON CHARLES W. BU RSON District Public Defender Attorney General and Repor ter 407 C Main Street P. O. Box 68 KAREN M. YACU ZZO Franklin, TN 37065-0068 Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 JOSEPH D. BAUGH, JR. District Attorney General MARK P URYE AR Assistant District A

ttorney General P. O. Box 937 Franklin, TN 37065-0937

OPINION FI LED:

AFFIRMED
JOE G. RILEY, JUDGE

O P I N I O N2 This is a dire ct appeal resulting from a jury verdict of guilty

of aggravated robbery and theft under $500. Defendant, John M. Ake, was sentenced to eight (8) years as a Range I, Standard Offend er f or the offense of aggravated robber y and sixty (60) days in the county jail for the offense of theft under $500. The sentences
were ordered torun concurrently w ith each other. Ake presents the following issues for our re view:

1. whether the evidenc e was sufficient to sustain the conviction for aggr

avated robbery; and 2. whether the trial court erred in failing to suppress the confession given duri ng custodial interrog ation. We affirm the judgment of the trial court.

FACTS

On December 12, 1994, defendant entered Papa John’s Pizza, placed a gu n to the head of the a ssistant manager , demand ed and re ceived the store’s m oney, and fled the premises. The assistant manager identified the defendant at trial as the person who committed the armed r obbery. The manager followed the defendant out of the premises and observed the defendant get into the passenger side of a gray

Lincoln Continental. The manag er was able to secure the license number as the car sped away. H e gave the car description and license tag number to the police. The license t ag number secured by the manag er at the scene identified a Lincoln Continental registere d to one Randall Cobb. Officers w ent to the Cobb residence and spoke to Randall Cobb’s wife, Sharon Cobb. While the officers were present, a call came into the residence and was id entified on the caller ID as coming from a pay phone outside the Subway in the Brentw ood Place Shopping Center. A vehicl e matchi ng the d escrip tion gi ven by the manager was

fo und in the Brentwood Place Shopping Center. At this time the license tag on the vehicle was registered to one Jame s Jordan. The license tag had j ust been stolen by the defendant from Mr. Jordan’s vehi cle in the same area.3 Officers discovered the defen dant a nd his co-defendant in the Subway Restau rant. A lo aded revolver wa s found under the table, and a larg e number of small bills was found on the defendant. The defendant later confessed to committing the armed robbery as w ell as the theft of the license plat e.

SUFFICIENCY OF THE EVIDENCE

In determining the sufficiency of the evidence, this court does not reweigh or re-evaluate

the evidence. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn.1978). A jury verdict appr

oved by the trial judge accre

dits the state’s witne

sses and resolves all conflicts i n favor of the state. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983). On appeal, the state is entitled to the stronge st legiti ma te view of the evidence and all legitimate or reasonable inferences whi ch may be drawn ther efrom. State v. Harris , 839 S.W.2d 54, 75 (Tenn.1992). This Court will not disturb a verdict of guilt dueto the sufficiency of the evide nce unless the defendant demonstrates that the facts contained in the record a nd the inferences which may be drawn therefrom
are insufficient, as a matter of law, for a rational trier of fact to find the

accused guilty beyond a reasonable doubt. State v. Ma tthews , 805 S.W.2d 776, 780 ( Tenn. Crim. App. 1990). Ac cordingly, it is the appellate court’ s duty to affirm the conviction if the evidence, viewed under these st andards, was sufficient for any rational trier of

fact to have found the essential elements of the offenses beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 317, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 25 9 (Tenn. 1994); T.R.A.P. 13(e). Robbery is th e inte ntional or knowing theft of property from the person of another by violence or putting the person in fear. T. C. A. § 39-13 -401(a). Aggravatedrobbery is a robbery accomplished with a deadly weapon or by display of any article used or fashioned to le ad the victim to reasonabl y believe it to be a deadly weapon. T. C. A. § 39-13- 402(a)(1). The evidence c learly is sufficient to support the conviction for aggravated robbery . This issue is without merit.4 MOTION TO SUPPRESS CO NFESSION

Defendant contends the trial court erred by failing to s uppress his confession given during custodia l in terrogation. More spec ifically, he contends q uestioning should have ceased when he made ambiguous and equivocal requests for counsel. We disagree. Shortlyafter defendant’s arrest he was questioned at the police department. He was advised of

his Miranda

rights orally a nd in writing. The defendant indicated that he understood those rights and sig ned the waiver indic ating “I am willing to make a statement and answer questions. I do not want a lawyer at this time...” During question ing the de fendan t wa s aske d about the co-defendant who allegedlywas an accomplice. Indi cating that he did not want anything to happen to her, he stated, “I don’t - I - I- probably needto get a lawyer,don’t I...” The officer then
a dvised defen dant that he had to state whether he wanted an attorney. The defendant did not state he wanted an attorney. Thereafter, the officer attempted to get the defendant’s clarification as to whet herhe desired an attorney dur ing questioning. The defendant indic ated “I th ink I probably do, don’t I...” The officer then asked if he thought he needed an attorney at that time or w hen the defendant wentto court. The defendant replied, “I don’t - I don’t know.” There w ere no further discussions about counsel, a nd the defendant subsequently confess ed. It is undisputed that when a defendant clearly requests a n attorn ey during custodial interrogation, all questioning must cease until an attorney is present, unless the defendant subsequen tl y initiates further conversation with the authorities. Edwardsv. Ariz ona , 451 U.S. 477, 101 S.Ct. 1880, 68 L. Ed. 2d 378 (198 1). However, the precise issue in the present case is whether an ambiguous or equivocal invocation of the right t o counsel limits further cus todial interrogation.

A. STEPHENSON

The issue was addressed by the Ten nessee Supreme Court in State v.5

Stephenson , 878 S.W.2d 530 (Tenn. 1994). The Court noted that the United States SupremeCourt had not resol ve d the issue o f what should be regarded as a valid invocation of the right to counsel. After examining cases from other jurisdictions, the Court concluded that an equivoc al invocati on o f the right to counsel limi ts further interrogation to questions clari fying a defendant’s desire for an attorney. Id . at 548. Implicit in this finding was the Court’s conclusion tha t bot h the Fifth Amendment of the United States Constitution and Article I, Section 9 of the Tennessee Constitution require this result

.

B. DAVIS
Shortlyafter Stephenson , the United States Supre m e Court did indeed address this issue in Davis v. United S tates , 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed. 2d 362 (1994). The Court conclude d that the Fifth Amendment to the United States Constitution does not require officers to cease interrogation w hen the suspect makes
an ambiguous or equivocal request for counsel. The Court noted the need for a bright line ru le and was unwilling to prevent police questioning when the suspect mightwant a lawyer. Davis , 114 S.Ct. at 2356-2357. Unless the defendant actua lly requests an attorney, q uestioning may continue. Id

.
C. FARMER
Thereafter, our

Cou rt noted that Article I, Sec tion 9 of the Tennessee Constitution provides similar, albeit broader, protection for the accused as compared to the Fifth Am en dment to the United States Consti tution. State v. Farmer , 927 S.W.2 d 582, 594 (Tenn. Crim. App. 1996). Our Court followed Stephenson and remanded fora factual determination as to whether the defendant made a request, equivocal or not, for coun sel during q uestioni ng. Our Court did not make any reference to the United States Supr eme Court decision in Davis v. United S tates

.6 D. HUDDLESTON
Subseque ntly, the Tennessee Supreme Court revisited this is sue. The Court cited Davis with approval noting that police need not cease questioning if a suspect fails to make an unambiguous request for counsel. State v. Huddleston , 924 S.W.2d 666, 669-70 (Tenn. 1996). It would appear that Huddleston was decided under the Fifth Amendment to the United States Constitution as t here was no reference whatever to Articl e I, Section 9 of the Tennessee Constitution. More recently, our Court in State v. Jack Jay North, Jr. , C.C.A. No. 02C01- 9512-CC-00369, Hard i n County (Tenn. Crim. App. filed December 9, 1996, at Jackson) noted that Huddleston cited Davis with approval. OurCourt, therefore, concl uded that the questioning of a defendant could con tinue until and unless t h e defendant clearly requeste d an attorney.

E. OUR CONCLUSION

Our Tennessee Supreme Court in Huddleston approved the holding in Davis

. Although the precise issue in Huddleston related only to Fifth Amendment protection, the Court gave no indica tion that Article I, Secti on 9 of the Tennessee Constitution would require a different result.The need for a bright line rule as noted by the United States Supreme Court in Davis with regard to the F ifth Am endment is equally applicable to the Tennessee Constitution. There is no just reason to extend greater protection under the Tennessee Constitution than has been extended under the

Fifth Amendment to the United States Consti tution.

F. HARMLESS ERROR

The admission of defendant’s confession w as, at most, harmless beyond a
r easonable doubt. T.R.A.P. 36(b). Proof of g uilt was overw helming, and th e7

confession was mer ely cu mulative to other admissible evidence which clearly established guilt. See Hartman v. State , 896 S.W.2d 94 (Tenn. 1995). The judgment of the trial court is affirmed in all respect s.
JOE G. RILEY, JUDGE

CONCUR:
(SEE SEPARATE CONCURRING OPINION) JOSEPH M. TIPTON, JUDGE
(SEE SEPARATE CONCURRING OPINION) THOMAS T. WOODALL, JUDGE