IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

April 28, 2010 Session

CLARENCE DAVID SCHREANE v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 264982 Rebecca J. Stern, Judge

No. E2009-01103-CCA-R3-PC - Filed October 7, 2010

The Petitioner, Clarence David Schreane, appeals the Hamilton County Criminal Court’s

denial of post-conviction relief from his convictions for first degree felony murder and

especially aggravated robbery. On appeal, he contendsthat trial counsel rendered ineffective

assistance by (1) notseeking dismissal of the Petitioner’s indictment on due process grounds,

(2) not seeking dismissal of the Petitioner’s indictment under the Interstate Compact on

Detainers, and (3) not seeking suppression of the Petitioner’s statement to police on the basis

that he was denied the right to counsel. We affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

JOSEPH M.TIPTON, P.J., delivered the opinion of the Court, in which JAMESCURWOODWITT,

JR., and J.C. MCLIN, JJ., joined.

Jason D. Demastus, Chattanooga, Tennessee (on appeal), and David W. Schmidt, Signal

Mountain, Tennessee (at trial), for the appellant, Clarence D. Schreane.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;

William H. Cox, III, District Attorney General; and William H. Hall, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner was convicted of first degree felony murder and especially aggravated

robbery and sentenced to life imprisonment for the murder and sixty years’ confinement for

the robbery, to be served consecutively for an effective sentence of life plus sixty years. This

court affirmed the judgments of the trial court and recited the facts of this case in State of
Tennessee v. Clarence David Schreane, No. E-2005-00520-CCA-R3-CD, Hamilton County,

slip op. at 1-3 (Tenn. Crim. App. April 5, 2006), app. denied (Tenn. Aug. 28, 2006):

This case relates to the defendant’s participation in the

killing of Marcus Edwards on September 19, 1991. The

Chattanooga Police Department investigated the murder;

however, the case went cold and remained unsolved for eight

years. In 1999, the defendant was incarcerated on unrelated

charges when he contacted Chattanooga Police Department

detectives and told them he had information related to the

unsolved 1991 murder. The detectives had the defendant

brought to their location to speak with him, and after a period of

a few hours, the defendant confessed.

At the trial, the evidence showed that the defendant

accompanied Charles Turner to the victim’s place of business to

help Mr. Turner commit a robbery. As the victim was talking to

Mr. Turner, the defendant struck the victim with a rock, and Mr.

Turner then shot the victim with a .38 caliber handgun. Mr.

Turner took the victim’s .357 magnum handgun, which was on

the victim’s body. Mr. Turner also took a cigar box containing

cash and gave the defendant one hundred dollars as both men

fled the scene in the defendant’s 1983 Cadillac Eldorado.

Before the trial, the defendant filed a motion to suppress

his confession, arguing that it was taken in violation of his Fifth

and Fourteenth Amendment rights. At the motion to suppress

hearing, Chattanooga Police Department Detective Mike Mathis

testified that he was the lead investigator for the 1991 murder.

He said the victim was shot to death and found in his business.

Detective Mathis said few solid leads developed until the

defendant contacted them.

Detective Mathis said that sometime before September

19, 1999, Chattanooga Police Department Lieutenant Steve

Angel had been receiving collect telephone calls from the

Hamilton County Jail, which he was unable to answer. He said

that the defendant’s “significant other” contacted the detectives

and told them the defendant wanted to talk to them about an

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unsolved murder. He said the defendant also called and spoke

with Lt. Angel and told him enough specific information about

the murder to cause Lt. Angel to have the defendant transported

from the Hamilton County Jail to the police service center.

Detective Mathissaid he conducted an interview with the

defendant, culminating in a tape-recorded statement. He said

that although the defendant was in custody on unrelated charges,

he was not under arrest or charged with the victim’s murder

when he confessed. Detective Mathis said he did not promise

the defendant anything in return for his confession. Detective

Mathis said the defendant waived his constitutional right to

remain silent and to an attorney before making the tape-recorded

statement.

On cross-examination, Det. Mathis said he talked with

the defendant for some period of time before reading him his

Miranda rights. He admitted that before he arrived to interview

the defendant, Lt. Angel had been talking to the defendant.

Detective Mathis said that although he did not promise the

defendant anything specific in return for his confession, he did

explain to the defendant that he would tell the district attorney

general’s office that the defendant had come forward on his own

and cooperated with the police. Detective Mathis admitted that

he may have told the defendant he would try to help transport

the defendant from the Hamilton County Jail to Silverdale, a

state correctional facility.

On redirect examination, Det. Mathis said the defendant

initiated the contact with the police department. Detective

Mathis explained that the reason for the delay in reading the

defendant his Miranda rights was the defendant initially

maintained that he had only heard about the murder, not that he

had any involvement in it. He said the defendant ultimately

“came clean” and confessed.

The defendant testified that when he first arrived at the

police service center, he was placed in an interview room with

Det. Carroll and Det. Mathis. He said Lt. Angel entered the

room later. The defendant said Det. Mathis told him he believed

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“the bicycle bandit” was responsible for the victim’s murder.

The defendant said that he then asked to speak with his attorney

but that Det. Mathis told him he did not need an attorney. The

defendant said Det. Mathis made promises to him before the

taping began. He said Det. Mathis promised him that the

defendant would not be charged with the murder, that Det.

Mathis would speak with the defendant’s parole officer in

another case, and that Det. Mathis would speak with the district

attorney general’s office in order to have them dismiss certain

charges against the defendant from another case in return for the

defendant’s cooperation. He said Det. Mathis also promised to

transfer him from the Hamilton County Jail to Silverdale. The

defendant said he was transferred to Silverdale two days later.

The defendant said he did not sign the waiver form until after

the taped statement was made.

After considering the evidence and the arguments of

counsel, the trial court denied the defendant’s motion to

suppress. It stated:

Even on your motion, I can base all of my

findings on what Mathis and the statement says. .

. . The initial contact came not from the police to

[the defendant] but from someone on [the

defendant’s] behalf and then later by [the

defendant] to the police. [The police] would have

been derelict in their duty not to see what [the

defendant] had to say about it,something like this.

So they bring him out there and talk with him.

Now, as far as the requirements for Miranda

warnings, you have to be in custody and subject to

interrogation. He was in custody but certainly not

on this and not by these officers on this. So I

don’t think that it actually applies in this situation.

The fact that he is in custody on something else

doesn’t mean for Miranda purposes he wasn’t in

custody on this.

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He also made the initial contact. Certainly they

questioned him after he gave them some

information but I find from the transcript itself

and the conversation between Mr. Mathis at the

very beginning of the tape, he says, “Prior to

taking this statement I advised you of your

constitutional rights and did you understand

these.” [The defendant] says, “Yes, he did.”

Mathis says, “Am I correct in saying that as I

started to advise you of them, you basically

recited them to me, did you not?” [The defendant]

said, “Yes.”

Mathis says, “And I mean you read - - told me

what your rights were without even looking at that

form, you knew your rights, is that correct?” [The

defendant] says, “Yes.”

Mathis says, “And you have signed this rights

waiver agreeing to talk to us today.” “Yes.” “And

that’s your signature that I’m pointing to on this

rights form.” [The defendant] says, “Yes.”

It’s incredible to believe that the rights waiver got

signed after the taped statement when they discuss

it prior to even questioning on the tape, so that’s

totally unbelievable.

. . . .

Now, I don’t believe that [the defendant] walked

in there, signed the waiver, and started this. I

think he had probably been there a while. He

probably got there before midnight and had been

talking to some of them and talking to them about

things and as they decided they had information

they needed to use, they read him rights waiver

and did the tape. There is really nothing wrong

with it. He made a knowing and voluntary

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statement to the police. It was not made during

the course of negotiations or settlement of this

case. He obviously wanted good treatment and

was looking out for himself, no doubt about that,

that happens all the time. There was nothing

improper about this. The motion to suppress the

confession is overruled.

At the post-conviction hearing, the Petitioner’s trial counsel testified that he had

practiced criminal defense for nine years. He said that he conducted three or four trials

before the Petitioner’s trial but that this was his first murder trial.

Trial counsel agreed that the Petitioner confessed in January 1999 and was arraigned

in March 2003. He said that the delay between the confession and the arraignment did not

bother him because it was not an unnecessary delay. He said that the police tried to verify

the Petitioner’s statements during this time and that the police were investigating two

suspects, the Petitioner and Charles Edward Turner, and wanted to “be sure they had the right

people.” Trial counsel also stated that the delay did not bother him because it did not

prejudice the Petitioner, there being no loss of evidence or witnesses. He said the Petitioner

was already in jail for twenty-five years for a federal conviction and suffered no additional

loss of liberty due to the delay. He did not believe that the police delayed to gain a tactical

advantage over the Petitioner. Trial counsel said that he and an assistant each spent several

hours researching whether the delay violated the Petitioner’s due process rights and

determined that it did not. As a result, trial counsel did not seek to dismiss the indictment

on due process grounds.

Trial counsel testified that both he and the Petitioner researched the Interstate

Compact on Detainers. He said that he spoke with the district attorney’s office to determine

what motions were filed to enable the transfer of the Petitioner between federal and state

custody. He also spoke with the head of the federal defender’s office to determine if the

Compact was violated. He was told that the Compact did not apply because the transfer to

state custody was achieved by writ of habeas corpus ad prosequendum rather than by

detainer. He said that further research by an assistant confirmed that the Compact was not

applicable because all transfers were achieved by writ and not by detainer. He said that he

told the Petitioner the Compact did not apply. He said that a later transfer between federal

and state custody did not violate the Compact because the trial was held within 120 days of

the second transfer.

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The Petitioner testified that he first met trial counsel at his arraignment. He said that

he and counsel met “maybe twice” before trial. He said he appeared at the Hamilton County

trial after being transferred to state custody pursuant to a writ of habeas corpus ad

prosequendum.

The Petitioner testified that he spoke with the Chattanooga police but that he “didn’t

initiate the first call.” He said that he met with two detectives and that he told them he

wanted an attorney present during the questioning. He said that the detectives responded by

stating he did not need an attorney and that they “totally avoided” his request. He said the

conversation continued after his request for an attorney.

Chattanooga Police Officer Mike Mathis testified that he met with the Petitioner at

the police department. He said that there was no problem informing the Petitioner of his

rights and that the Petitioner signed a waiver of his rights. He said the Petitioner did not ask

to have an attorney present.

Officer Mathis testified that he “did a lot of things to corroborate” the Petitioner’s

statement and confession. He said that he had to locate a witness, Phillip Joliff, and that after

a lengthy process, he found the witness in Ohio. He said that he investigated the

codefendant, Mr. Turner, and that he worked “to get both the subjects that were responsible

for this murder.” He said he used information obtained from the Petitioner to investigate Mr.

Turner because the Petitioner “was cooperating with us and was preparing with us to testify

on our behalf against Mr. Turner.”

On cross-examination, Officer Mathis testified that the Petitioner initiated the contact

with police. He said that the initial conversation with the Petitioner was “not an interview

or an interrogation. We’re just talking.” He said that he felt the Petitioner was guilty of a

crime “very early” in the conversation but that he did not immediately charge the Petitioner

because “[the Petitioner] was in custody for something else. He wasn’t going anywhere. He

was cooperating with us.”

Officer Mathis testified that the delay between the Petitioner’s confession and the

indictment was due to efforts to investigate and corroborate the information obtained from

the Petitioner. He said that the case was already eight years old and that it took time to locate

and interview Mr. Joliff, who was “basically homeless and traveling all over the country.”

He said that it also took time to arrange a meeting with Mr. Turner, who was in federal

custody in Indiana. He said that the investigation “progressively went on and on,” and that

they did not finish the investigation and then “just sit on it.”

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With regard to the Petitioner’s claim of a due process violation caused by the prearraignment delay, the trial court accredited the testimony of Detective Mathis, noting that

the delay was caused by the need to corroborate the Petitioner’s statements and the need to

locate witnesses. However, the court also stated, “whether they account for all or only part

of the delay is not clear, the detective not testifying about dates or time.” With regard to the

Petitioner’s statement to police, the trial court found that the evidence introduced at the postconviction hearing added nothing to the proof previously introduced at the suppression

hearing and noted that this court affirmed the result of that suppression hearing on direct

appeal.

The burden in a post-conviction proceeding is on the Petitioner to prove his

allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);

Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). Once a petitioner establishes the fact

of counsel’s errors, the trial court must determine whether those errors resulted in the

ineffective assistance of counsel. Dellinger, 279 S.W.3d at 293; see Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984).

On appeal, we are bound by the trial court’s findings of fact unless we conclude that

the evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d

450, 456-57 (Tenn. 2001). Because they relate to mixed questions of law and fact, we review

the trial court’s conclusions as to whether counsel’s performance was deficient and whether

that deficiency was prejudicial under a de novo standard with no presumption of correctness.

Id. at 457. Post-conviction relief may only be given if a conviction or sentence is void or

voidable because of a violation of a constitutional right. T.C.A. § 40-30-103.

Under the Sixth Amendment to the United States Constitution, when a claim of

ineffective assistance of counsel is made, the burden is on the petitioner to show (1) that

counsel’s performance was deficient and (2) that the deficiency was prejudicial. Strickland,

466 U.S. at 687; see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993). A petitioner will

only prevail on a claim of ineffective assistance of counsel after satisfying both prongs of the

Strickland test. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). The performance

prong requires a petitioner raising a claim of ineffectiveness to show that the counsel’s

representation fell below an objective standard of reasonableness or “outside the wide range

of professionally competent assistance.” Strickland, 466 U.S. at 690. The prejudice prong

requires a petitioner to demonstrate that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.

at 694.

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the generalstandard of whether the services rendered were within

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the range of competence demanded of attorneys in criminal cases. Further, the court stated

that the range of competence was to be measured by the duties and criteria set forth in

Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster,

487 F.2d 1197, 1202-04 (D.C. Cir. 1973). See Baxter, 523 S.W.2d at 936. Also, in

reviewing counsel’s conduct, a “fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689. “Thus, the fact that a particular

strategy or tactic failed or even hurt the defense does not, alone, support a claim of

ineffective assistance.” Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Deference is made to trial strategy or tactical choices if they are informed ones based upon

adequate preparation. Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982); see DeCoster, 487

F.2d at 1201.

I

The Petitioner contends that trial counsel rendered ineffective assistance because he

did not seek dismissal of the Petitioner’s indictment on due process grounds due to delays

between the offense in 1991, the Petitioner’s statement in 1999, and his arrest in 2003. The

State contends that trial counsel was effective because there was not a valid basis for

dismissal on such grounds. We agree with the State.

In State v. Dykes, 803 S.W.2d 250, 256 (Tenn. Crim. App. 1990), relying upon United

States v. Marion, 404 U.S. 307 (1971), this court stated that “[b]efore an accused is entitled

to relief based upon the delay between the offense and the initiation of adversarial

proceedings, the accused must prove that (a) there was a delay, (b) the accused sustained

actual prejudice as a direct and proximate result of the delay, and (c) the State caused the

delay in order to gain tactical advantage over or to harass the accused.” See State v. Gray,

917 S.W.2d 668, 671 (Tenn. 1996). In State v. Utley, 956 S.W.2d 489, 495 (Tenn. 1997),

the supreme court acknowledged the “Marion-Dykes” analysis for cases of delay in charging

a defendant.

As a preliminary matter, we note that the Petitioner waived any issue regarding a due

process violation caused by the pre-statement delay occurring between the offense in 1991

and the statement given to police in 1999. The Petitioner raises this issue for the first time

in this post-conviction appeal. See T.C.A. § 40-30-106(g) (“A ground for relief is waived

if the petitioner . . . failed to present it for determination in any proceeding before a court of

competent jurisdiction in which the ground could have been presented. . . .”).

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Trial counsel testified that he and an assistant each spent several hours researching

whether the pre-arrest delay, occurring between the Petitioner’s statement to police in 1999

and his arrest in 2003, violated the Petitioner’s due process rights. They determined that it

did not. The Petitioner has not established by clear and convincing evidence that this

determination was in error or that dismissal on this ground would have been proper.

The record does not show that the Petitioner was prejudiced because of the pre-arrest

delay. The Petitioner did not suffer any additional loss of liberty due to the delay because

he was already incarcerated for a federal conviction. Trial counsel said that the delay did not

cause a loss of evidence or lack of witnesses. A witness and the codefendant were located

during the delay. The record does not indicate that any other evidence or witnesses were

available, and the Petitioner has not shown otherwise.

Additionally, the record does not indicate that the State caused the delay in order to

harass the Petitioner or gain a tactical advantage over him. Officer Mathis testified that while

he believed the Petitioner was guilty of some crime early on in his investigation, the delay

between the confession and the indictment was caused by his efforts to investigate and

corroborate the information obtained from the Petitioner. He said that the case was already

eight years old and that he had to travel to locate a transient witness and the codefendant.

He said that his investigation was ongoing and that it was necessary to make certain that both

persons responsible for the murder were held accountable. Nothing indicates that the police

completed their investigation and then improperly delayed, and the Petitioner has not shown

otherwise.

The Petitioner has not established that this delay violated his due process rights. We

hold that the Petitioner has not shown that trial counsel’s failure to seek dismissal on this

ground was deficient or prejudicial.

II

The Petitioner contends that trial counsel rendered ineffective assistance by not

seeking dismissal of the Petitioner’s indictment under the Interstate Compact on Detainers.

The Petitioner argues that the trial court was required to dismiss his case pursuant to this

Compact because he was transferred between federal and state custody without a trial and

because he did not receive a trial within 180 days of the first transfer. The State contends

that trial counsel was effective because there was not a valid basis for dismissal on this

ground. We agree with the State.

The Interstate Compact on Detainers is an agreement among the states, the District

of Columbia, Puerto Rico, the Virgin Islands, and the United States. See Carchman v. Nash,

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473 U.S. 716, 719 (1985). Tennessee has adopted the Compact. See T.C.A. § 40-31-101

(2006). Its purpose is to facilitate the speedy and orderly disposition of outstanding charges

against a prisoner and the “determination of the proper status of any and all detainers based

on untried indictments, informations or complaints.” Id. § 40-31-101, art. I. “The provisions

of the Agreement are triggered only when a ‘detainer’ is filed with the custodial or sending

state, which includes the United States, by another state which has untried charges pending

against the prisoner.” State v. Brown, 53 S.W.3d 264, 285 (Tenn. Crim. App. 2000) (citing

United States v. Mauro, 436 U.S. 340, 343 (1978)). “The United States Supreme Court has

explicitly held that a writ of habeas corpus ad prosequendum, ‘directing the production of

a . . . prisoner for trial on criminal charges, is not a detainer within the meaning of the

Agreement and thus does not trigger the application of the Agreement.’” Brown, 53 S.W.3d

at 285 (quoting Mauro, 436 U.S. at 349).

Once a detainer is filed, article III of the Compact requires that a prisoner be

transferred to the receiving state and that a trial be held within 180 days. T.C.A. § 40-31-

101, art. III(a). Additionally, once a detainer is filed and a prisoner is transferred to the

receiving state, article IV(e) of the Compact provides, “If trial is not had on any indictment,

information or complaint . . . prior to the prisoner’s being returned to the original place of

imprisonment pursuant to article V(e) hereof,such indictment, information or complaintshall

not be of any further force or effect, and the court shall enter an order dismissing the same

with prejudice.” Id. § 40-31-101, art. IV(e).

Trial counsel testified that he spoke with the head of the federal defender’s office to

determine if the Compact was violated and that he was told the Compact did not apply

because the transfer to state court was achieved by writ of habeas corpus ad prosequendum.

He said that further research confirmed that the Compact was not applicable because the

transfer was achieved by writ and not by detainer. The Petitioner has not established by clear

and convincing evidence that this determination was in error or that dismissal on this ground

would have been proper.

The record shows that the Petitioner’s transfers between federal and state custody

were done pursuant to writs of habeas corpus ad prosequendum and not by detainers. These

writs did not qualify as detainers under the Compact and did not trigger its protections. See

Brown, 53 S.W.3d at 285; Mauro, 436 U.S. at 349. Despite this, the Petitioner argues that

these writs should have been treated as the functional equivalent of detainers because the

State could have filed a detainer to obtain custody. However, this court has recognized that

the Compact “‘is not the exclusive means of transfer of prisoners between jurisdictions.’”

Brown, 53 S.W.3d at 285 (quoting Metheny v. State, 589 S.W.2d 943, 945 (Tenn. Crim. App.

1979)). As a result, the state was not required to transfer the prisoner pursuant to the

Compact.

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The Petitioner has not established that the Compact was applicable to his custodial

transfers. We hold that the Petitioner has not shown that trial counsel’s failure to seek

dismissal on this ground was deficient or prejudicial.

III

The Petitioner contends that trial counsel rendered ineffective assistance by not

seeking suppression of his statement to police on the basis that he was denied the right to

counsel. The State contends that trial counsel was effective because the Petitioner was not

subject to custodial interrogation when he requested an attorney and therefore his statement

could not be suppressed on these grounds. We agree with the State.

A defendant’s statements made during a custodial police interrogation are only

admissible if the state establishes that the defendant was advised of certain constitutional

rights, including the right to an attorney and the right to be silent. Miranda v. Arizona, 384

U.S. 436, 444 (1966). Once a suspect subject to custodial interrogation makes an

unequivocal request for an attorney, all interrogation must cease unless the suspect initiates

conversation with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); State v.

Stephenson, 878 S.W.2d 530, 545 (Tenn. 1994).

Miranda warnings are not required in the absence of custodial interrogation. State v.

Northern, 262 S.W.3d 741, 749 (Tenn. 2008) (citing Miranda, 384 U.S. at 478). In Miranda,

the Court defined “custodial interrogation” as “questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his freedom of

action in any significant way.” 384 U.S. at 444. However, “questioning initiated by the

accused is not interrogation” for the purposes of Miranda protections. State v. Land, 34

S.W.3d 516, 524 (Tenn. Crim. App. 2000) (citing Edwards, 451 U.S. at 484). “The Fifth

Amendment right identified in Miranda is the right to have counsel present at any custodial

interrogation. Absent such interrogation, there would [be] no infringement of the [invoked]

right [to counsel].” Edwards, 451 U.S. at 485-86; see also State v. Huskey, 177 S.W.3d 868,

881 (Tenn. Crim. App. 2005).

This court previously concluded that “the record does not reflect that the [Petitioner]

was under custodial interrogation before the police read him the Miranda warnings and

obtained his waiver of rights.” Clarence David Schreane, slip op. at 5. The record reflects

that the Petitioner initiated the questioning in this case by voluntarily seeking out the

detectives and speaking to them concerning the victim’s murder. As a result, the Petitioner

was not subject to custodial interrogation when he initiated communication with the

detectives. See Land, 34 S.W.3d at 524. The Petitioner testified that he requested counsel

at the beginning of his conversation with the detectives, before any custodial interrogation

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began. Absent custodial interrogation, however, the Petitioner’s right to counsel was not

infringed. See Edwards, 451 U.S. at 485-86; Huskey, 177 S.W.3d at 881. Additionally, any

statement the Petitioner made during subsequent custodial interrogation did not violate his

right to counsel because he waived that right before any custodial interrogation began. As

a result, the Petitioner’s right to counsel was not violated when he spoke to the detectives.

The Petitioner has not established a violation of his right to counsel or that

suppression of his statement on this ground would be proper. We hold that the Petitioner has

not shown that trial counsel’s failure to seek suppression of his statement on this ground was

deficient or prejudicial.

In consideration of the foregoing and the record as a whole, we affirm the judgment

of the trial court.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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