         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     August 5, 2003 Session

                 TAURYS K. WALLS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-23193    Arthur T. Bennett, Judge



                  No. W2002-01330-CCA-R3-PC - Filed December 22, 2003


Petitioner, Taurys K. Walls, appeals from the trial court’s dismissal of his petition for post-
conviction relief. Petitioner argues that his confession was coerced in violation of the United States
and Tennessee constitutions. Additionally, Petitioner argues that he received ineffective assistance
of counsel at trial and on direct appeal. After a careful review of the record, we affirm the judgment
of the post-conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Post-Conviction Court Affirmed

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER , JJ., joined.

Marty B. McAfee, Memphis, Tennessee, for the appellant, Taurys K. Walls.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; Julie Mosley; Assistant District Attorney General.

                                              OPINION

       Petitioner was convicted in the Shelby County Criminal Court of first degree murder and
sentenced to life without the possibility of parole. On direct appeal, this Court affirmed Petitioner’s
conviction. State v. Taurys K. Walls, No. 02C01-9601-CR-00019, 1998 Tenn. Crim. App. LEXIS
1063, 1998 WL 713294 (Tenn. Crim. App. at Jackson, October 14, 1998), perm. to app. denied
(Tenn. 1999).

       Petitioner timely filed a pro se petition for post-conviction relief. The trial court appointed
counsel to represent Petitioner, and an amended petition for post-conviction relief was filed. A
second amended petition for post-conviction relief was filed. An evidentiary hearing was conducted.

        Petitioner’s trial counsel testified at the hearing. Gerald Skahan testified that he represented
Petitioner at trial and on direct appeal. Mr. Skahan testified that on direct appeal from the trial
court’s judgment, Petitioner challenged the trial court’s denial of a motion to suppress a statement
given by Petitioner to the police following his arrest. Mr. Skahan testified that he discussed the
statement with Petitioner, and he believed that Petitioner was truthful regarding the circumstances
surrounding the statement. Petitioner contended that he was never advised of his Miranda rights.
Mr. Skahan did not specifically challenge the admission of the statement into evidence under the
Sixth Amendment, Fourth Amendment, or Rule 5 of the Tennessee Rules of Criminal Procedure in
either the motion to suppress or on direct appeal to this Court. Those issues were discussed in the
dissenting opinion however. Counsel’s argument in the motion for new trial and on direct appeal
centered mainly on Miranda issues under the Fifth Amendment, but he testified at the post-
conviction hearing that he incorporated all of the constitutional issues surrounding Petitioner’s arrest
and subsequent confession in a “totality of the circumstances” argument.

         Ronald F. Wilkinson, formerly of the Memphis Police Department, testified that Petitioner
was arrested pursuant to a warrant, and Mr. Wilkinson completed the arresting papers. Wilkinson
testified that he did not know whether Petitioner had appeared before a magistrate within 48 hours
of his arrest.

        Samuel Williams of the Memphis Police Department acted as the case coordinator in the
homicide investigation involving Petitioner. He testified that Petitioner was arrested on June 16,
1993. Williams took a statement from Petitioner on June 19, 1993. Williams did not personally take
Petitioner to appear before a judge after his arrest. He testified, however, that the duties of his
position do not include escorting defendants to their arraignments. Williams testified that he advised
Petitioner of his Miranda rights, and Petitioner indicated that he understood those rights.

        With regard to Petitioner’s confession, this Court noted the following in the opinion in the
direct appeal:

                 At the hearing on Appellant’s motion to suppress his statement, Sergeant
         Ronald Wilkinson of the Memphis Police Department testified that Appellant was
         arrested on the afternoon of June 16, 1993. Sergeant Wilkinson further testified
         that he acted as the arresting officer on that day because Sergeant Samuel
         Williams, the lead officer on the Ferguson case, was not on duty. Wilkinson
         stated that on June 16, he did not attempt to question Appellant respecting the
         incident. Additionally, Sergeant Wilkinson averred that if an arrestee requested
         an attorney, this would be noted in the arrestee’s case file. Finally, he stated that
         no such notation existed in Appellant’s file. Sergeant Samuel Williams testified
         that on June 19, 1993, Williams had Appellant brought into his office. Williams
         said that he was “sure” that he administered Appellant his Miranda rights before
         speaking with him. Sergeant Williams then engaged Appellant in an informal
         discussion concerning the events surrounding Melvin Ferguson’s death. Finally,
         when Appellant “decided he’d tell” Sergeant Williams what Williams “felt was
         the truth,” Williams asked Appellant if he would be willing to give a formal
         statement. When Appellant affirmed his willingness to give a statement, Williams


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         again advised Appellant of his Miranda rights. A typist transcribed Sergeant
         Williams’ questions and Appellant’s responses. After being read his rights,
         Appellant acknowledged that he understood those rights. When Sergeant
         Williams had completed Appellant’s interrogation, he asked Appellant to read
         over the statement to ensure its correctness, to initial every page, and to sign and
         date the last page. Appellant incorrectly dated his statement “6/20/93.”

                  On cross-examination, Sergeant Williams acknowledged that on the day
         that Appellant was arrested, Appellant informed a member of the police
         department that he did not wish to give a statement and that he knew nothing
         about Mr. Ferguson’s death. Sergeant Williams also stated that he did not know
         whether or not Appellant had requested an attorney; however, he also explained
         that if an arrestee made such a request, this would be noted in that person’s case
         file and that police would cease all questioning.

                 ....

                 At the suppression hearing, Appellant testified that he informed police of
         his whereabouts so that he could be picked up because an officer had telephoned
         his grandmother and stated that the police wanted to interrogate Appellant
         regarding a hit-and-run incident. According to Appellant’s testimony, officers
         transported him to the homicide office and then held him in an interview room for
         two to three hours. At some point, an officer asked Appellant whether he wished
         to give a statement and Appellant replied that he would not do so until he had
         spoken with a lawyer.

                 Appellant further testified that he was again brought to the homicide office
         three days later and that he once more refused to give a statement without an
         attorney. Despite this refusal, when another officer inquired whether Appellant
         wished to give a statement, he agreed to do so. According to Appellant, after he
         gave his statement, he was shackled to a bench for approximately twenty minutes.
         An officer brought Appellant a statement and directed him to initial each page and
         to sign the last page. Appellant alleged that the statement contained numerous
         inaccuracies but acknowledged that the signature on the statement was his own.
         Finally, Appellant denied that he was ever advised of his constitutional rights
         before giving his statement.

Id.

         In this appeal from the trial court’s denial of his post-conviction petition, Petitioner argues
that his rights under the Fifth, Sixth, and Fourth Amendments to the United States Constitution and
Rule 5 of the Tennessee Rules of Criminal Procedure were violated. He also argues that his counsel
was ineffective for failing to raise certain issues at trial and on direct appeal.


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Ineffective Assistance of Counsel

         For a petitioner to successfully overturn 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 competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d
930, 936 (Tenn. 1975). Second, the petitioner must show that the deficiencies “actually had an
adverse effect on the defense.” Strickland v. Washington, 466 U.S. 668, 693, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). Should the petitioner fail to establish either factor, the petitioner is not entitled
to relief. Our supreme court described the standard of review as follows:

        Because a petitioner must establish both prongs of the test, a failure to prove either
        deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
        assistance claim. Indeed, a court need not address the components in any particular
        order or even address both if the defendant makes an insufficient showing of one
        component.

Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S. at 697, 104 S. Ct. at
2069).

         The petitioner bears the burden of proving the factual allegations that would entitle petitioner
to relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003). We review the
post-conviction court's factual findings underlying a claim of ineffective assistance of counsel under
a de novo standard with a presumption that those findings are correct unless the preponderance of
the evidence establishes otherwise. State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). However, the
post-conviction court's conclusions of law are reviewed under a de novo standard with no
presumption of correctness. Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

         The petitioner is not entitled to the benefit of hindsight; the petitioner may not second-guess
a reasonably based trial strategy; and the petitioner may not criticize a sound, but unsuccessful,
tactical decision made after adequate preparation for the case. Adkins v. State, 911 S.W.2d 334, 347
(Tenn. Crim. App. 1994); see Cooper v. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

        It is counsel’s responsibility to determine the issues to present on appeal. State v. Matson,
729 S.W.2d 281, 282 (Tenn. Crim. App. 1986) (citing State v. Swanson, 680 S.W.2d 487, 491 (Tenn.
Crim. App. 1984)). This responsibility addresses itself to the professional judgment and sound
discretion of appellate counsel. Porterfield v. State, 897 S.W.2d 672, 678 (Tenn. 1995). There is
no constitutional requirement that every conceivable issue be raised on appeal. Campbell v. State,
904 S.W.2d 594, 596-97 (Tenn. 1995). The determination of which issues to raise is a tactical or
strategic choice. Id.




                                                   -4-
Fifth Amendment

        Petitioner argues that his statement should have been suppressed because it was taken in
violation of the Fifth Amendment to the United States Constitution and Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Fifth Amendment right to counsel is
triggered whenever a suspect requests that counsel be present during custodial interrogation. See
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Stephenson, 878
S.W.2d 530, 544-45 (Tenn. 1994). 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,
484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378 (1981).

       The State correctly observes that this issue has been “previously determined” by this Court
on direct appeal, and therefore, is not a proper claim for post-conviction relief. Tennessee Code
Annotated section 40-30-106 provides that a post-conviction court shall dismiss any portion of a
post-conviction petition that claims relief for issues that have been waived or previously determined.
Tenn. Code Ann. § 40-30-106(f) (2003). That section defines “previously determined” as follows:

         A ground for relief is previously determined if a court of competent jurisdiction
         has ruled on the merits after a full and fair hearing. A full and fair hearing has
         occurred where the petitioner is afforded the opportunity to call witnesses and
         otherwise present evidence, regardless of whether the petitioner actually
         introduced any evidence.

Tenn. Code Ann. § 40-30-106(h) (2003).

       Following a suppression hearing, the trial court found that Petitioner’s statement was
voluntarily given. The trial court found that “‘no coercion, no violence, and no threats were given
or made to the defendant.’” On direct appeal, this Court concluded that the evidence did not
preponderate against the trial court’s findings and affirmed the trial court’s ruling. Citing State v.
Elrod, 721 S.W.2d 820, 823 (Tenn. Crim. App. 1986), this Court held that “[a]lthough Appellant
signed no explicit written waiver, a waiver properly may be inferred from the fact that Appellant
acknowledged understanding his rights and then gave a statement which he both initialed and
signed.”

         Petitioner concedes that counsel argued the issue at trial and on appeal, but argues that the
issue “should be revisited because it was not litigated fully as a result of ineffective assistance of
counsel.” In the order denying post-conviction relief, the trial court found that Petitioner had failed
to present proof at the post-conviction hearing to support his claim that counsel was ineffective for
failing to present testimony at the suppression hearing to corroborate the claim that his confession
was coerced in violation of the Fifth Amendment. We agree. “When a petitioner contends that trial
counsel failed to discover, interview, or present witnesses in support of his defense, these witnesses



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should be presented by the petitioner at the evidentiary hearing.” Black v. State, 794 S.W.2d 752,
757 (Tenn. Crim. App. 1990). Defendant is not entitled to relief on this issue.

Sixth Amendment

        Petitioner argues that he was denied his Sixth Amendment right to counsel. Additionally,
Petitioner argues that counsel was ineffective for failing to raise the issue in the motion to suppress
the statement, in the motion for new trial, and on direct appeal.

        The State argues that this issue was also previously determined by this Court on direct appeal
since the dissenting opinion addressed the issue, and the majority declined to accept that position.
The majority of this Court did not address the issue in the direct appeal. While not previously
determined, the issue is waived under Tenn. Code Ann. § 40-30-106(g) (2003). “A ground for relief
is waived if the petitioner personally or through an attorney failed to present it for determination in
any proceeding before a court of competent jurisdiction in which the ground could have been
presented” unless certain conditions are present which are not applicable in this case. Tenn. Code
Ann. § 40-30-106(g) (2003). We will therefore address only the issue of whether counsel was
ineffective for not raising the Sixth Amendment issue at trial and on appeal.

       The Sixth Amendment right to counsel attaches when the adversarial judicial process begins.
Michigan v. Jackson, 475 U.S. 625, 629, 106 S. Ct. 1404, 1407, 89 L. Ed. 2d 631 (1986); State v.
Stephenson, 878 S.W.2d 530, 547 (Tenn. 1994). In Tennessee, the adversarial judicial process
begins upon the filing of the formal charge, such as an arrest warrant, indictment, presentment, or
preliminary hearing in cases where a warrant was not obtained prior to the arrest. State v. Mitchell,
593 S.W.2d 280, 286 (Tenn. 1980). Petitioner’s right to counsel attached at the time the arrest
warrant was issued.

        If a defendant requests counsel after his arrest pursuant to an arrest warrant, police-initiated
interrogation is forbidden. Michigan v. Jackson, 475 U.S. at 632. Any subsequent statement by the
defendant as a result of such police-initiated interrogation must be suppressed regardless of whether
the defendant executed a Miranda waiver. Id. at 636.

        The same test is utilized under Sixth Amendment as under the Fifth Amendment right to
counsel discussed above. Id. 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. at
484-485, 102 S. Ct. at 1884-85.

        In this appeal, the State concedes that it bears the burden of showing that a defendant has
made a knowing and voluntary waiver of his Sixth Amendment right to counsel. The State argues,
however, that in a post-conviction proceeding, the Petitioner has the burden of proving his
allegations by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003).



                                                  -6-
        At the post-conviction hearing, Petitioner offered into evidence the transcript of the testimony
from the hearing on the motion to suppress his statement. Petitioner did not testify at the post-
conviction hearing. The officers who testified at the post-conviction hearing were not questioned
about and did not testify as to whether Petitioner requested counsel prior to giving his statement.
Although testimony regarding this issue was elicited at the suppression hearing, the trial court did
not explicitly make a credibility determination following the suppression hearing regarding whether
Petitioner had requested counsel prior to giving his statement. By its ruling, however, the trial court
implicitly found the officers to be credible and Petitioner not credible. The post-conviction court
determined that Petitioner “failed to demonstrate that had counsel properly raised a Sixth
Amendment claim his conviction would have been reversed,” and therefore, Petitioner failed to show
prejudice.

        Petitioner urges this Court to adopt the view of the dissenting opinion in Petitioner’s direct
appeal from his conviction. In his dissenting opinion, Judge Hayes recognized that Petitioner’s Sixth
Amendment right to counsel had attached at the time Petitioner gave his statement. The dissent
focused on testimony by Wilkinson at the suppression hearing that he did not recall whether
Petitioner asked for an attorney on the day of his arrest and that “he could have.” It concluded that
the State failed to establish that Petitioner waived his right to counsel prior to the police-initiated
questioning.

         Petitioner failed to present any proof at the post-conviction hearing that had counsel raised
the Sixth Amendment right to counsel issue at trial and on appeal, he likely would have prevailed
on the issue. Therefore, we need not address the issue of whether counsel was ineffective for failing
to raise a Sixth Amendment issue at trial or on appeal because Petitioner has not established that the
evidence preponderates against the post-conviction court’s findings that he was not prejudiced.

Fourth Amendment and Tenn. R. Crim. P. 5(a)

        Petitioner contends that trial counsel was ineffective for failing to assert at trial or on appeal
a violation his Fourth Amendment rights. Petitioner also argues that he was detained for over forty-
eight hours before being brought before a magistrate for a judicial determination of probable cause
in violation of Rule 5 of the Tennessee Rules of Criminal Procedure and the Fourth Amendment to
the United States Constitution.

       In Gerstein v. Pugh, 420 U.S. 103, 125, 95 S. Ct. 854, 868-69, 43 L. Ed. 2d 54 (1975), the
United States Supreme Court determined that the Fourth Amendment required a prompt judicial
determination of probable cause after a warrantless arrest. The Court later clarified the holding in
Gerstein by stating that “judicial determinations of probable cause within 48 hours of arrest will, as
a general matter, comply with the promptness requirement of Gerstein.” County of Riverside v.
McLaughlin, 500 U.S. 44, 56, 111 S. Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991).

        The State argues that Petitioner’s Fourth Amendment rights were not violated because
Petitioner was arrested pursuant to a warrant, and therefore, a probable cause determination had


                                                   -7-
already been made at the time of his arrest. The United States Supreme Court has determined that
the issuance of a valid arrest warrant satisfies the requirement that there must be a judicial
determination of probable cause for extended detention. Baker v. McCollan, 443 U.S. 137, 143, 99
S. Ct. 2689, 2694, 61 L. Ed. 2d 433, 441 (1979); see also State v. Carter, 16 S.W.3d 762, 766 (Tenn.
2000). Petitioner does not challenge the validity of the arrest warrant. Therefore, Petitioner was not
prejudiced by counsel’s failure to challenge the trial court’s denial of suppression under the Fourth
Amendment.

        Tennessee Rule of Criminal Procedure 5(a) provides that a person arrested without a warrant
be taken before a magistrate without unnecessary delay. See County of Riverside v. McLaughlin, 500
U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991); Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854,
43 L. Ed. 2d 54 (1975). The rule further provides that “[a]ny person arrested except upon a capias
pursuant to an indictment or presentment shall be taken without unnecessary delay before the nearest
appropriate magistrate of the county from which the warrant for arrest issued. . . .” Thus, those
arrested with a warrant must also be taken before a magistrate without unnecessary delay.

        A violation of Rule 5(a) does not necessarily lead to the suppression of the confession. See
State v. Middlebrooks, 840 S.W.2d 317, 327-28 (Tenn. 1992). When there is a Rule 5(a) violation,
the “unreasonable delay” is but one factor to be taken into account in evaluating the voluntariness
of the confession. See State v. Huddleston, 924 S.W.2d 666, 670-71 (Tenn. 1996). If the totality of
the surrounding circumstances indicates that a confession was voluntarily given, it shall not be
excluded from evidence solely because of the delay in carrying the defendant before a magistrate.
Huddleston, 924 S.W.2d at 671; State v. Readus, 764 S.W.2d 770, 774 (Tenn. Crim. App. 1988).
In determining voluntariness the court should consider the defendant’s age, education or intelligence
level; previous experience with the police; the repeated and prolonged nature of the interrogation;
the length of detention prior to the confession; the lack of any advice as to constitutional rights; the
unnecessary delay in bringing the defendant before the magistrate prior to the confession; the
defendant’s intoxication or ill health at the time the confession was given; deprivation of food, sleep
or medical attention; any physical abuse; and threats of abuse. Huddleston, 924 S.W.2d at 671.

         Applying those factors, the post-conviction court found that (1) the petitioner was not a minor
and indicated that he was able to read and understand the charges against him; (2) the petitioner had
previous experience with the police in that he had been arrested on burglary and theft charges only
one month prior to his arrest in this case; (3) the questioning of the petitioner was not unreasonably
long; (4) the petitioner was held for three days prior to giving the incriminating statement; (5) the
petitioner was repeatedly and adequately advised of his rights prior to giving a formal statement; (6)
the petitioner was not injured, intoxicated, drugged or in ill health at the time of the statement; (7)
the petitioner was not deprived of food, sleep, or medical attention during his detention; and (8) there
is no evidence that the petitioner was physically abused or threatened with physical abuse. The court
concluded that Petitioner’s “statements would likely have been found to be voluntary under the
totality of the circumstances,” and therefore Petitioner was not prejudiced by “any ineffectiveness
on the part of trial counsel in failing to assert a violation of Tenn. R. Crim. P. 5(a).”



                                                  -8-
       We agree with the post-conviction court’s findings. Petitioner has not established that the
evidence preponderates against those findings.

                                          CONCLUSION

        We conclude that Petitioner has failed to establish prejudice resulting from any of the alleged
errors. The judgment of the post-conviction court is affirmed.


                                                       ___________________________________
                                                       THOMAS T. WOODALL, JUDGE




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