State v. McMahan

DWYER, Judge,

dissenting.

In all deference to my colleagues, I must respectfully dissent from this reversal of appellant Coakley’s conviction. I would, in reasons hereafter related, affirm his conviction.

A preliminary point, which I believe needs clarification, is that the evidence obtained via the bedroom search should not have been suppressed at least in regards to the prosecution of Mr. Coakley. While focusing on the sufficiency issue as being determinative of this case, the majority opinion remains unclear as to the unique suppression question posed by appellant Coakley’s presence in the bedroom.

In the first instance, the officer’s discovery of the stolen money and keys in the speaker cabinet in McMahan’s house was not shown to have involved any legitimate expectation of privacy of Coakley. The home was McMahan’s; Coakley has not advanced any evidence establishing how he had a legitimate expectation of privacy on those premises at that time. State v. Roberge, 642 S.W.2d 716 (Tenn.1982). I can agree with the majority that the warrant-less search of McMahan’s bedroom in his own home violated his Fourth Amendment rights. Coakley, however, has not established any expectation of privacy in the premises of McMahan and cannot assert any Fourth Amendment rights McMahan might have had in regards to his, not Coak-ley’s, bedroom stereo system.

In the second instance, when the officer entered McMahan’s home he was aware that two men had robbed the service station. He was also aware that one of the robbers had been identified as McMahan. When he saw Coakley at McMahan’s home he called upon his common sense to con- *389 elude that Coakley was the other robber and thus under these facts had probable cause to arrest Coakley. He did not have to have absolute assurances that he was correct, only a reasonable probability. See Brinegar v. United States, 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949). The search, therefore, was incident to the lawful arrest of Mr. Coakley.

It is not significant that the officer did not immediately place Coakley under arrest. The fact is that there was probable cause for the arrest at that time. Unlike Sibron v. United States, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968), relied upon by the majority, where an officer frisked first, found the pistol, and then arrested, here the officer had probable cause to arrest before the search was made. The facts of the instant case are more akin to those of Rawlings v. Kentucky, 448 U.S. 98 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980), where the defendant admitted to ownership of a sizeable quantity of drugs discovered on the premises, was frisked and found to be carrying money and a knife, and then was arrested. Referring to the legality of the search for the money and the knife, Justice Rehnquist held:

“Where the formal arrest followed quickly on the heels of the challenged search of the petitioner’s person, we don’t believe it particularly important that the search preceded the arrest rather than vice ver-sa.”

The majority bases its reversal of Coak-ley’s conviction on the conclusion that the evidence, with or without the “illegally” obtained evidence, was insufficient to meet the requirements of T.R.A.P. 13(e) or Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). It must be remembered that Coakley has been convicted and is before us on a presumption of guilt. The State’s theory that he was the other robber has been endorsed by the verdict of the jury. In this court we are not required to review the evidence of guilt beyond a reasonable doubt. We are bound to determine only if there is a sufficiency of evidence to convince any rational trier of fact of guilt beyond a reasonable doubt. T.R.A.P. 13(e). The reasonable doubt standard is “one ‘based on reason which arises from the evidence or lack of evidence.’ ” Jackson v. Virginia, supra, at 317 n. 9, 99 S.Ct. at 2788 n. 9 (quoting Johnson v. Louisiana, 406 U.S. 356, 360 , 92 S.Ct. 1620, 1624 , 32 L.Ed.2d 152 (1972). Once the State has established its case, the defendant remains quiet at his peril. Holland v. United States, 348 U.S. 121, 138-139 , 75 S.Ct. 127, 137 , 99 L.Ed. 150 (1954). When an appellate court is faced with a possible reversal on grounds of insufficient evidence, “such a decision will be confined to cases where the prosecution's failure is clear.” Burks v. United States, 437 U.S. 1, 16-17 , 98 S.Ct. 2141, 2150 , 57 L.Ed.2d 1 (1978).

In examining this record under that standard, is there evidence upon which a reasonable trier of fact could conclude that Coak-ley was guilty? Two male robbers held up the service station and severely assaulted Williams, the attendant’s friend. The appellant McMahan was positively identified as one of the armed robbers. Within two hours of the robbery McMahan was arrested in his home, five hundred feet from the service station. In his home were his mother and Coakley. The officer found Coakley in the bedroom, awake but lying on the bed in his trousers. The hour was 3:00 a.m. Within a few feet of Coakley the stolen keys and money were discovered. While Coakley’s not testifying in the trial court cannot be considered against him at the trial level, that inhibition does not hold true on appellate review where the question is the sufficiency of the evidence, as here. Every fact proven by the State as to Coak-ley was consistent with his guilt and inconsistent with his innocence. No reasonable hypothesis of the innocence of Coakley is to be found in this record now or at the trial level; that is, unless we conjure up some imaginary hypothesis which has not been presented here or at the trial level. Under these facts any rational trier of fact could and did find Coakley guilty beyond a reasonable doubt.

*390 The majority further concludes that the evidence as to Coakley with or without the finding of the money and keys near Coakley is insufficient. With this broad assumption I cannot agree. If the keys and money had been illegally obtained and suppressed, I would perhaps have second thoughts about the sufficiency of the evidence as to Coak-ley. That, however, is not the case here. The finding of the keys and money in close proximity to Coakley conclusively fits together with all of the facts and circumstances to point the finger of guilt to Coak-ley as the other robber. This uncontradict-ed evidence is a far cry from the criteria in Burks v. United States, supra, which commands that to set aside the conviction on insufficiency of the evidence the prosecution’s failure must be “clear.” It is not clear; the evidence is more than ample to support this conviction.

I would affirm the conviction of Coakley.