          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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