### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Bri efs March 11, 2003
SHAW NDA JAM ES v. ST ATE OF TENNESSEE Direct Appeal from the Circuit Court for Giles County No. 9891 Stella L. Hargrove, Judge

No. M2002-00968-CCA-R3-PC - Filed April 1, 2003

Petitioner appeals the dismissal of her pe tition for post-con viction re lief by the Giles County

Circuit Court. She was or

iginally convicte d of prem

editated first degree murder and especially ag gravated ro bb er y. In this appeal, she contends the post-conviction court erred by finding she received the effec tiv e assistance of counsel and argue s trial counsel was deficient in not filing a motion t o suppress her conf

ession. We

affirm t he judg ment of the

post-con viction c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J OE G. R ILEY , J., delivered the opinion of the court, in which G ARY R. W ADE , P. J., and A LAN E. G LENN , J., joined.
Claudia S. Jack, Dis trict Publi c Defe nder; an d Robert H. Stovall, Jr., Assistant District Pu

blic Defend er, for the appe llant, Sha wnda James

. Paul G. Summers, Attorney Gene ral and Reporter; Kim R. Helper, Assistant Attorney General; and Mike Bottoms, District Attorney Ge neral, for the appellee, State of Tennessee. OPINION
The petitione

r, a juve nile at the time of the offenses, was convicted by a Giles County jury of the pr emeditat ed first d egree murder a nd espec ially

aggr avated r obbery of her a unt, with whom she was residing. The trial court se ntenced her to life imprisonment for the murder and to a concurrent

eighteen-y

ear term for the robbery . This court affirmed her convictions on direct appeal. See State v. Sha wnda James , No. 01C 01-9803-CC-00093, 1999 Tenn. Crim. App. LEXI S 865 (Tenn. Crim. App. Aug. 11, 1999, at Nashville), perm. to app. denied (Tenn. 2000 ). She timely filed a petition for post-conviction rel ief, which was denied by the post-conviction court. This appeal ensued.-2- FACTS
We set for

th the foll owing f

acts con tained in our opinio n in the dir

ect appe al:
Defendant

was raised by

her maternal grandparents in Michigan. He r mother was a prostitute and drug addict, frequently in jail. By the time defe

ndant was twelve, bothher grandfather and he r biological mother

had died. Defendant began exhibiting serious behavior

al proble ms and her

grade s fell p reci pitously. Defendant re ceived counseling at school and attended a couple of counseling se ssions with h er grandmother. In the fall of 1994, when de fendant was thirteen, defendant’s grandmother decided to place de fendant with her son, John Douglas James and his wife, Kelly. The

Jameses we

re living in Giles Cou

nty withtheir eig

hteen-m onth-old so n, Co re y. Defendant

moved to Tennesseein December 1994. Def

endant di d not adjus t well after th

e move. She tried to

run away and return to Michigan in January 1995 by calling a cab to take her

to the airport. The cab driver took her to the sheriff ’s office instead, and defendant was returned to her aunt and uncle.
On March 5, 1995, a few weeks after defendant turned fourteen, she had an argument withher uncl e. He le ft to go to wo rk at ap prox imat ely 2:00 p .m. Al thou gh there was no eyewitness to the crimes, the evidence at trial established that defe ndant found James’ .35 caliber rifle and tried to load it with a 30.06 cartridge. Because the cartri dge was too large for the gun, it jammed. De f endant then found James’ .22 caliber rifle and loaded

it with one or more .22 caliber shells. She then test-fired the rifle into some b eddin g in her bedro om and eject ed the empty cas ing.
Defendant

then took the gun into her aunt’s bedroom where h er aunt lay asleep on the bed . Defen dant put t he mu zzle of the gun to her aunt’s forehead and fireda single shot, killing her. Defendant tried to move the body in order to hide it, but stopped when she heard a gasp.
Defen dant f

led the scene in her aunt’s car, taking young Core

y with her. Defendant

also t ook mo ney

from the lo ckbo x, her aunt’s purse an d wallet, and some of he r a un t’ s j ew el ry. Defendant

drove into Columbia where she ran out of gas at about 4:15 p.m. Danny Wray and

his brothe

r assiste d defend ant, pushing the c ar to a gas station and filling it with gas. Wray

testified that “she was not nervous.”
At about 4:45 p.m. that aftern oon, def endant e ntered a beauty salon in Columbia with Corey

and got her hair cut. The

hair stylist testified that defenda nt had identified herself as “Rebecca.”Defendant then visited a fast food restaurant and a K-mart, where she bought hair color , lipstick, and a cassette.-3- At approximately 6:00 p.m. that evening, de fendant and Corey

were driving nort h on Highw ay

31. Defe ndant ra n off the road, and Steve Ha

llmark st opped t o render assistance. Hallmark

got Corey out of the car and noticed t hat the ba by’ s nose was bleeding. He offered to take de fendant and Corey to the emer

gency room, but defendant declined, stating, “I' ve got to get home.” Defenda nt explained that she was from Michi gan and was in Tennes see for a frien d’s we ddin g. She told Hallmark that her parents had bee

n killed in a car w reck, a nd she ne eded to g et home. Sh e asked h im to take her to the airport and said she would worry about the car later.
Hallmark initially took defe ndant to hi s house, a

nd then to the airport. On the way to the airport, defendant wanted to stop at her car a nd get the diape r bag. However, when she saw police around the car, she told Hallmark to go on since she would otherwise miss her plane. Using a o ne -w ay t icket pu rchased in Kelly James’ name, defendant and Corey flew to Detroit that nig

ht. The ne

xt m or ni ng th ey flew to Flint, Michigan, where defendant was apprehended at the a irport by local police.
A search of the James’ house after the murder r evealed the .22 rifle hidden under the mattr

ess of Corey’s c

rib. In defendant’s c loset was a notebook open to a page on which w as writte

n in defend ant’s handw riti ng, “th ings to remember” and the following list:
Clothes & shoes ring Ch ai ns & j ew el ry pack clo thes Cory’s stuff pop tapes purse mo ne y car & h ouse key s change plates
The items on this list (other than “change plates”) wer e found either in t

h e victim’s purse after it was recovered f rom defendant, or in the car she abandone d. Charity White was in the Rutherford Cou nty Deten tion Center with defendant after the crime s. White

testified that defendant confessed to killing her aunt and told her she had planned the murder “a week in advance.” White testified that, acc ording to defendant , defend ant had pu t every thing in t he car p rior to sho oting the

victim. When she first entered the victim’s bedroom, Corey was present, so she took him and placed him in the car. She then returned to her aunt’s bed ro om and shot her. She-4-

wantedto hide the body under the house to give herself more time. However, when she tried to move it, s he hear

d a gas p, beca

me scar ed and left.
Two other inma

tes of the Center a lso testif ied that d efenda nt c onf essed the killing to them. On

e of thes e witness es, howe ver, te stifi ed that defendant claimed that the gun fired a ccident ally after sh e chang ed her mi nd about shooting th e victim.
Shawnda James , 1999 Tenn. Crim. App. LEXI S 865, at **2-6.
POST-CONVICTION HEARING
The sole issue in this appeal is whether the petitioner’s trial counsel was ineffective in failing to seek supp

ression o f the pet

itioner’ s stateme

nt to the a rresting office r in Michigan, who testified at trial th at the pe

titioner a dmitted kil ling her

aunt. Alt hough the arresting officer did not testify at the post-conviction hearing, his trial testimon y revealed he arrested the petitioner

in Flint, Michigan, at the airport. He transported he r to her place of detention to await extradition proceedings. He testified his sole purpose wa s t o explain to the petitioner the extrad

ition proc ess and, although henever advised her of her Miranda rights, he never questioned her. The officer stated he did not d

iscuss the facts of the case with her a

nd specif ically told her that he did not want to do so. While he was explaining the extradition process, the petitioner volunteered that “she would have to pled [sic] guilty to murder, because she killed her.”
The petitione

r’s t rial counsel testifi ed at the

post-con viction he aring t

hat the theory

of defe nse was to establi sh the pet

itioner’ s diminishe d mental c apacity in an effort to negate preme ditation and deliberation, which at t

hat time w ere both

elementsof preme ditated f irst degree murder. See Tenn. Code Ann. § 39-13-202(a)(1) (1991). Trial counse l was aware of the petitioner’s statement to the Michigan officer and, after considering whether to file a motion to suppress, decided not to do so.
The post-con

victi on cou rt found t

hat this de cision by

trial cou nsel did no t demonstr

ate ineffective assistance of counsel. The trial court further f ound that trial couns el’s d efense strat egy was a reasonable one and that trial counsel did ever ything he c ould to protect the rights of the petitioner. The trial court dismissed the petition for post-conviction relief.
STANDARD

OF REVIEW
For a petitioner to successfully ove rturn a conviction based on ineffective assistance of counsel, the petitioner must first establish that the services rendered or the advice given

was below “the range of competenc e demanded of attorney s in criminal cases.” Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually ha d an adverse effect on the defense.” Strickland v. Washington , 46 6 U. S. 668 , 69 3, 1 04 S . C t. 205 2, 8 0 L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not entitled to relief . Our supr

eme cour t describ ed the sta

ndard of review a s follows:-5- Becau se a petition

er must establish both prongs of the test, a failure to pro ve either deficiency or prejudice provides a sufficient basis to deny relief

on the ineffective assistance claim. Indeed, a

court neednot addre ss the com ponents i n any pa

rticular order or even address both if the

defenda nt makes a

n insu fficientshowing of one componen

t. Goad v. State , 938 S.W.2d 363, 370 (Tenn . 1996 ) (cit ing Strickland , 466 U.S. at 697, 104 S. Ct. at 2069). The petitioner is not entitled t o the bene fit of hindsig

ht; the pe titioner m ay

not second-gue ss a reasonably

based trial strategy ; and the petitioner may not cr iticize a sound, but

u nsucces sful, tactical decision made after adequate pre paration for the case. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Cr im. App. 19 94); see Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
The petitioner bears the burden of proving her allegations by clear

and convincing evidence. Tenn. Code Ann. § 40-30-210(f). The findings of fact made by the post-convic tion court are conclusive and will not be disturbed unless the evidence contained in the recor d preponderates against them. See Fields v. State , 40 S.W.3d 450, 457 (Tenn. 2001).
ANALYSIS
The petitioner contends trial counsel w as ineff ective b y f

ailing to file a mot

ion to suppr

ess her statement to the Michigan officer. Specifically, the pe titioner contends the motion would have been grante d becau se the Michigan o fficer failed to advise her of her Miranda righ ts. We conclude the petitioner has failed to establish any deficiency

by trial counsel or pr

ejudice.
In Miranda v. Arizona , the Unite d States Sup reme Cour

t held tha t the pros ecutio n c annot admit a statement by

the defe ndant ste mming fr om “custo dial inter

rogati on” unles s it

demonstrates the use of proced

ural safeguards effe

ctive to secure the privilege ag ainst self-incrimination

. 384 U.S

. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694 (1966). The Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwis e deprived of his freedom of action in any significant way .” Id. Thus, because Miranda is only implicated when the defendant is questioned while in the coercive environm

ent assoc iated wit

h being in police custody, our initial inquiry is whether defendant was subjected to “c ustodial interrogation.”
Un qu es ti on ab ly, the petitione r had bee n arres ted and w as, ther

efore, “in custody

” at the time she made the statement. See State v. Anderson , 937 S.W.2d 851, 855 (Tenn. 1996). However, the crucial issue is wh

ether she was sub

je cte d to “interrogation.” Miranda defined interrogation as “questioning initiated by law enfor cement officers.” 384 U.S. at 44. However, inter rogation refers notonly to express questioni ng, but a lso to any words or actio ns that the police should know are reasona bly likely to elicit an incriminating response. State v. Walton , 41 S.W.3d 75, 83 (Tenn. 2001) (citi ng Rhode I sland v. I

nnis , 466 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980)). According to the record before this court, the petitioner was not being interrogated whe n she made the statement to the Michigan officer. The office r stated he was explaining the extradition-6-

process to the petitioner

when she volunteered the statement. Accordingly , there was no requirement for a Miranda

warni ng. In vie w of th is fac t, tri al cou nsel c ould not b e defic ient i n fail ing t o see k suppression on this basis. Furthermore, because the motion would not have bee n granted had it been filed, the petitioner suffered no prejudice as a result of the fai lu re t o fi le t he m ot io n t o su ppr ess . In addition, the other evidenceagainst the petitioner was simply overwhelming. We are satisfied the petitioner would have been convicted of these offe nses without regard to the petitioner’s statement to the officer.
In summary, the petitioner has failed to establish that she received ineffective assistance of counsel. Accord

ingly , we aff

irm the jud

gment of the post- convicti on court.

JOE G. RILEY, JUDGE