State v. John Ake ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1997 SESSION
June 6, 1997
STATE OF TENNESSEE, ) Cecil W. Crowson
C.C.A. No. 01C01-9603-CC-00094
) Appellate Court Clerk
Appellee, ) WILLIAMSON COUNTY
)
vs ) HON. HENRY DENMARK BELL,
) JUDGE
JOHN M. AKE, )
) (Aggravated Robbery and Theft)
Appellant. )
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN H. HENDERSON CHARLES W. BURSON
District Public Defender Attorney General and Reporter
407 C Main Street
P. O. Box 68 KAREN M. YACUZZO
Franklin, TN 37065-0068 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
JOSEPH D. BAUGH, JR.
District Attorney General
MARK PURYEAR
Assistant District Attorney General
P. O. Box 937
Franklin, TN 37065-0937
OPINION FILED:
AFFIRMED
JOE G. RILEY,
JUDGE
OPINION
This is a direct 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 Offender for the offense of aggravated robbery and
sixty (60) days in the county jail for the offense of theft under $500. The sentences
were ordered to run concurrently with each other. Ake presents the following issues
for our review:
1. whether the evidence was sufficient to sustain the
conviction for aggravated robbery; and
2. whether the trial court erred in failing to suppress
the confession given during custodial interrogation.
We affirm the judgment of the trial court.
FACTS
On December 12, 1994, defendant entered Papa John’s Pizza, placed a gun
to the head of the assistant manager, demanded and received the store’s money,
and fled the premises. The assistant manager identified the defendant at trial as the
person who committed the armed robbery.
The manager followed the defendant out of the premises and observed the
defendant get into the passenger side of a gray Lincoln Continental. The manager
was able to secure the license number as the car sped away. He gave the car
description and license tag number to the police.
The license tag number secured by the manager at the scene identified a
Lincoln Continental registered to one Randall Cobb. Officers went 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 identified on the caller ID as coming
from a pay phone outside the Subway in the Brentwood Place Shopping Center.
A vehicle matching the description given by the manager was found in the
Brentwood Place Shopping Center. At this time the license tag on the vehicle was
registered to one James Jordan. The license tag had just been stolen by the
defendant from Mr. Jordan’s vehicle in the same area.
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Officers discovered the defendant and his co-defendant in the Subway
Restaurant. A loaded revolver was found under the table, and a large number of
small bills was found on the defendant. The defendant later confessed to committing
the armed robbery as well as the theft of the license plate.
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 approved by the trial judge accredits the state’s witnesses and resolves
all conflicts in favor of the state. State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). On appeal, the state is entitled to the strongest legitimate view of the
evidence and all legitimate or reasonable inferences which may be drawn therefrom.
State v. Harris, 839 S.W.2d 54, 75 (Tenn.1992). This Court will not disturb a verdict
of guilt due to the sufficiency of the evidence unless the defendant demonstrates that
the facts contained in the record and 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. Matthews, 805 S.W.2d 776, 780 (Tenn. Crim.
App. 1990). Accordingly, it is the appellate court’s duty to affirm the conviction if the
evidence, viewed under these standards, 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, 259 (Tenn. 1994); T.R.A.P. 13(e).
Robbery is the intentional 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).
Aggravated robbery is a robbery accomplished with a deadly weapon or by display
of any article used or fashioned to lead the victim to reasonably believe it to be a
deadly weapon. T. C. A. § 39-13-402(a)(1). The evidence clearly is sufficient to
support the conviction for aggravated robbery. This issue is without merit.
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MOTION TO SUPPRESS CONFESSION
Defendant contends the trial court erred by failing to suppress his confession
given during custodial interrogation. More specifically, he contends questioning
should have ceased when he made ambiguous and equivocal requests for counsel.
We disagree.
Shortly after defendant’s arrest he was questioned at the police department.
He was advised of his Miranda rights orally and in writing. The defendant indicated
that he understood those rights and signed the waiver indicating “I am willing to make
a statement and answer questions. I do not want a lawyer at this time...”
During questioning the defendant was asked about the co-defendant who
allegedly was an accomplice. Indicating that he did not want anything to happen to
her, he stated, “I don’t - I - I- probably need to get a lawyer, don’t I...” The officer then
advised defendant 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 whether he desired an attorney during
questioning. The defendant indicated “I think I probably do, don’t I...” The officer
then asked if he thought he needed an attorney at that time or when the defendant
went to court. The defendant replied, “I don’t - I don’t know.” There were no further
discussions about counsel, and the defendant subsequently confessed.
It is undisputed that when a defendant clearly requests an attorney during
custodial interrogation, all questioning must cease until an attorney is present, unless
the defendant subsequently initiates further conversation with the authorities.
Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L. Ed. 2d 378 (1981).
However, the precise issue in the present case is whether an ambiguous or equivocal
invocation of the right to counsel limits further custodial interrogation.
A. STEPHENSON
The issue was addressed by the Tennessee Supreme Court in State v.
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Stephenson, 878 S.W.2d 530 (Tenn. 1994). The Court noted that the United States
Supreme Court had not resolved the issue of what should be regarded as a valid
invocation of the right to counsel. After examining cases from other jurisdictions, the
Court concluded that an equivocal invocation of the right to counsel limits further
interrogation to questions clarifying a defendant’s desire for an attorney. Id. at 548.
Implicit in this finding was the Court’s conclusion that both the Fifth Amendment of
the United States Constitution and Article I, Section 9 of the Tennessee Constitution
require this result.
B. DAVIS
Shortly after Stephenson, the United States Supreme Court did indeed
address this issue in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.
2d 362 (1994). The Court concluded that the Fifth Amendment to the United States
Constitution does not require officers to cease interrogation when the suspect makes
an ambiguous or equivocal request for counsel. The Court noted the need for a
bright line rule and was unwilling to prevent police questioning when the suspect
might want a lawyer. Davis, 114 S.Ct. at 2356-2357. Unless the defendant actually
requests an attorney, questioning may continue. Id.C. FARMER
Thereafter, our Court noted that Article I, Section 9 of the Tennessee
Constitution provides similar, albeit broader, protection for the accused as compared
to the Fifth Amendment to the United States Constitution. State v. Farmer, 927
S.W.2d 582, 594 (Tenn. Crim. App. 1996). Our Court followed Stephenson and
remanded for a factual determination as to whether the defendant made a request,
equivocal or not, for counsel during questioning. Our Court did not make any
reference to the United States Supreme Court decision in Davis v. United States.
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D. HUDDLESTON
Subsequently, the Tennessee Supreme Court revisited this issue. 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 there was no reference
whatever to Article 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, Hardin County (Tenn. Crim. App. filed December 9, 1996, at
Jackson) noted that Huddleston cited Davis with approval. Our Court, therefore,
concluded that the questioning of a defendant could continue until and unless the
defendant clearly requested 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 indication that Article I, Section 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 Fifth Amendment 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 Constitution.
F. HARMLESS ERROR
The admission of defendant’s confession was, at most, harmless beyond a
reasonable doubt. T.R.A.P. 36(b). Proof of guilt was overwhelming, and the
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confession was merely cumulative 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 respects.
JOE G. RILEY, JUDGE
CONCUR:
(SEE SEPARATE CONCURRING OPINION)
JOSEPH M. TIPTON, JUDGE
(SEE SEPARATE CONCURRING OPINION)
THOMAS T. WOODALL, JUDGE
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