        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 7, 2014

               ROY SHOTWELL, JR. v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Fayette County
                         No. 5874     Weber McCraw, Judge


                No. W2013-01213-CCA-R3-PC - Filed January 27, 2014


In 2007, a Fayette County jury found petitioner guilty of two counts of rape and one count
of sexual battery. The trial court sentenced him to an effective sentence of twenty years in
the Tennessee Department of Correction. This court denied petitioner’s direct appeal, and
he subsequently filed a petition for post-conviction relief alleging that he received ineffective
assistance of counsel. He now appeals from the post-conviction court’s order denying relief.
Petitioner contends that he received ineffective assistance of counsel when counsel failed to
object to evidence that petitioner had been admitted to a mental health facility and when
counsel did not appeal the trial court’s denial of his motion to suppress certain statements.
Following our careful review, we affirm the judgment of the post-conviction court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which A LAN E. G LENN and D.
K ELLY T HOMAS, J R., JJ., joined.

David A. Stowers, Bolivar, Tennessee, for the appellant, Roy Shotwell, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Mark Davidson, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                  OPINION

                                    I. Facts

                                   A. Trial

This court summarized the facts from petitioner’s trial as follows:

       This case relates to [petitioner]’s rape and sexual assault of his
stepdaughter on separate occasions, once when she was thirteen years old and
twice when she was fifteen years old. The State originally charged him with
three counts of rape.

....

        Officer Calvin Ridgell testified that he attended the police academy
with [petitioner] and considered him to be his best friend. He said that he went
to visit [petitioner], as a friend, when he was incarcerated on the underlying
charges. He asked [petitioner] if he had committed the crimes, and [petitioner]
admitted he was guilty and “did it.” [Petitioner] told him that the sex was
consensual, which angered the witness. [Petitioner] acknowledged that he
knew it was wrong.

        A sergeant with the Fayette County Sheriff’s Department testified that
he relieved an officer who was with [petitioner] in the hospital on February 14,
2007. His job was to make sure [petitioner] did not leave. [Petitioner] was
seated in a chair in the triage room and stated, “I had sex with my
stepdaughter. I know it was wrong and I’ll pay for it.” He further stated that
he was in the hospital because he was thinking of cutting his wrists.

      A registered nurse testified that she was employed at Methodist Fayette
Hospital in Somerville and that she saw [petitioner] in the emergency room on
February 14, 2007. She said that [petitioner] was brought in because he had
been hearing voices. During the assessment of [petitioner], he told her that he
had done wrong and should have to pay for what he did.

      The victim’s mother testified that she was married to [petitioner]. On
February 2, 2007, she discovered the victim’s pajamas hidden under a towel
behind the bed. She asked the victim why her pajamas were behind the bed.
The victim said she did not know but told her mother what [petitioner] had

                                      -2-
done. She called [petitioner] and told him she was taking the victim to the
hospital because the victim was sick. When [petitioner] came home, she
confronted [petitioner] while they all sat outside in the truck. He initially
denied the allegations. When the victim stated what [petitioner] had done to
her, he turned around in the front seat, started playing with his hands, and held
his hands down. He then apologized to the victim and her mother. He said
that he started “messing” with the victim several years ago and that he was
sorry. The victim’s mother called the police, and [petitioner] was taken into
custody.

        The victim testified that when she was thirteen years old, [petitioner]
called her into his bedroom and asked her to rub “IcyHot” on his back. She
said that he was only wearing a towel around his waist and was lying on his
stomach. She said that he moved the towel down his body, then got up,
grabbed her arms, flipped her on the bed, held her arms down, and removed
her clothes. She said that she begged [petitioner] to stop and tried to get away.
[Petitioner] penetrated her vagina with his penis.

       The second sexual assault occurred when the victim was fifteen years
old. She stayed at home because she was sick. [Petitioner] entered the
victim’s bedroom, turned her over on her bed, spread her legs, and removed
her clothes. The victim asked him to stop and unsuccessfully attempted to
keep [petitioner] from opening her legs. [Petitioner] again penetrated her
vagina but, this time, used a condom. She said that this rape did not last long
because the victim’s brother called home, and [petitioner] left to pick him up
from school.

       The third incident occurred when the victim was fifteen years old. She
said that she was washing dishes in the kitchen when [petitioner] pushed her
into the living room and removed her clothes. [Petitioner] laid her on the
couch and held her arms. [Petitioner] penetrated her vagina with his penis
while she begged him to stop.

       The victim did not tell anyone about the incidents because she was
afraid and because [petitioner] was a police officer. [Petitioner] told her he
would lose his job if she told anyone.

        A nurse practitioner at the Memphis Sexual Assault Resource Center
testified that she saw the victim on February 24, 2007. She took a history from
the victim and performed a physical examination on her. The examination

                                       -3-
       revealed that the victim had an injury to the rear of her hymen caused by blunt
       penetrating trauma.

               A special agent with the Tennessee Bureau of Investigation (TBI)
       testified that she tested the victim’s pajamas that were entered into evidence.
       There was sperm found in the crotch of the pajamas, and it matched
       [petitioner]’s DNA.

               [Petitioner] called a forensic DNA examiner to testify on his behalf.
       The expert testified that she tested a piece of the fabric from the pajamas and
       that [petitioner] could not be excluded as a contributor of the DNA mixture
       found on the pajamas. However, she found female DNA that did not belong
       to the victim. On cross-examination she testified that the sperm found on the
       pajamas was a match to [petitioner]’s DNA.

State v. Roy Shotwell, Jr., No. W2008-00682-CCA-R3-CD, 2009 WL 2634637, at *1-2
(Tenn. Crim. App. Aug. 27, 2009), perm. app. denied (Tenn. Feb. 22, 2010). Petitioner was
convicted of two counts of rape and one count of sexual battery. Id. at *2. The trial court
sentenced him to consecutive ten-year sentences for the rape convictions and to a concurrent
two-year sentence for the sexual battery conviction.

                                 B. Post-Conviction Hearing

      Petitioner filed a petition for post-conviction relief on March 19, 2010. The post-
conviction court appointed counsel, who filed an amended petition on December 27, 2010.
The court held an evidentiary hearing on January 30, 2013, at which petitioner and trial
counsel testified.

       Petitioner testified that he was originally represented by an attorney other than trial
counsel. The first attorney represented him from general sessions court through the
suppression hearing in circuit court. Trial counsel began representing him at some point
between the suppression hearing and trial, and he continued representing petitioner through
his appeal. Petitioner believed that trial counsel should have addressed the issue of his
alleged confessions on appeal.

        Trial counsel testified that he was an assistant district public defender and that he had
held that position for thirteen years. He had participated in 100 to 150 trials. Trial counsel
testified that he began representing petitioner in November 2007 and that petitioner’s trial
was in December 2007. Trial counsel testified that petitioner’s first attorney moved the court
to suppress petitioner’s statements to Officer Ridgell and Deputy Walker, but she was not

                                               -4-
successful. Trial counsel opined that there was no way to prevent those statements from
coming out at trial and that the statements were not the result of custodial interrogations. He
said that he did not raise that issue on appeal because he did not believe it was meritorious.

       On cross-examination, trial counsel testified that he did not believe that the jury was
“taint[ed]” by hearing that petitioner had been at a mental health facility. Trial counsel
further testified that he believed petitioner’s statements overheard by Deputy Walker were
admissible because petitioner had “just blurted out” those statements and that his statements
to Officer Ridgell were admissible because Officer Ridgell had visited petitioner “in his
capacity as a friend . . . not as an agent of the State.”

        Following the hearing, the post-conviction court issued a written order denying relief.
In its order, the post-conviction court specifically accredited trial counsel’s testimony and
concluded that petitioner did not prove his factual allegations by clear and convincing
evidence.

                                         II. Analysis

        On appeal, petitioner contends that trial counsel provided ineffective assistance by
failing to object based on relevance when a witness testified that petitioner had been admitted
to a mental health facility. Petitioner also argues that trial counsel provided ineffective
assistance on appeal when he did not argue that petitioner’s statements to Deputy Walker and
Officer Ridgell should have been suppressed.

                                   A. Standard of Review

        To obtain relief in a post-conviction proceeding, a petitioner must demonstrate that
his or her “conviction or sentence is void or voidable because of the abridgement of any right
guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. § 40-30-103. A post-conviction petitioner bears the burden of proving his or her
factual allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f).
“‘Evidence is clear and convincing when there is no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” Lane v. State, 316 S.W.3d 555,
562 (Tenn. 2010) (quoting Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009)).

        Appellate courts do not reassess the trial court’s determination of the credibility of
witnesses. Dellinger v. State, 279 S.W.3d 282, 292 (Tenn. 2009) (citing R.D.S. v. State, 245
S.W.3d 356, 362 (Tenn. 2008)). Assessing the credibility of witnesses is a matter entrusted
to the trial judge as the trier of fact. R.D.S., 245 S.W.3d at 362 (quoting State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996)). The post-conviction court’s findings of fact are conclusive on

                                              -5-
appeal unless the preponderance of the evidence is otherwise. Berry v. State, 366 S.W.3d
160, 169 (Tenn. Crim. App. 2011) (citing Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997); Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.1997)). However, conclusions
of law receive no presumption of correctness on appeal. Id. (citing Fields v. State, 40 S.W.3d
450, 453 (Tenn. 2001)). As a mixed question of law and fact, this court’s review of
petitioner’s ineffective assistance of counsel claims is de novo with no presumption of
correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011) (citations omitted).

        The Sixth Amendment to the United States Constitution, made applicable to the states
through the Fourteenth Amendment, and article I, section 9 of the Tennessee Constitution
require that a criminal defendant receive effective assistance of counsel. Cauthern v. State,
145 S.W.3d 571, 598 (Tenn. Crim. App. 2004) (citing Baxter v. Rose, 523 S.W.2d 930
(Tenn. 1975)). When a petitioner claims that he received ineffective assistance of counsel,
he must demonstrate both that his lawyer’s performance was deficient and that the deficiency
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); Finch v. State,
226 S.W.3d 307, 315 (Tenn. 2007) (citation omitted). It follows that if this court holds that
either prong is not met, we are not compelled to consider the other prong. Carpenter v. State,
126 S.W.3d 879, 886 (Tenn. 2004).

       To prove that counsel’s performance was deficient, petitioner must establish that his
attorney’s conduct fell below an objective standard of “‘reasonableness under prevailing
professional norms.’” Finch, 226 S.W.3d at 315 (quoting Vaughn v. State, 202 S.W.3d 106,
116 (Tenn. 2006)). As our supreme court held:

       “[T]he assistance of counsel required under the Sixth Amendment is counsel
       reasonably likely to render and rendering reasonably effective assistance. It is
       a violation of this standard for defense counsel to deprive a criminal defendant
       of a substantial defense by his own ineffectiveness or incompetence. . . .
       Defense counsel must perform at least as well as a lawyer with ordinary
       training and skill in the criminal law and must conscientiously protect his
       client’s interest, undeflected by conflicting considerations.”

Id. at 315-16 (quoting Baxter, 523 S.W.2d at 934-35). On appellate review of trial counsel’s
performance, this court “must make every effort to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s conduct, and to evaluate the conduct
from the perspective of counsel at that time.” Howell v. State, 185 S.W.3d 319, 326 (Tenn.
2006) (citing Strickland, 466 U.S. at 689).

      To prove that petitioner suffered prejudice as a result of counsel’s deficient
performance, he “must establish a reasonable probability that but for counsel’s errors the

                                             -6-
result of the proceeding would have been different.” Vaughn, 202 S.W.3d at 116 (citing
Strickland, 466 U.S. at 694). “A ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome.’” Id. (quoting Strickland, 466 U.S. at 694). As such,
petitioner must establish that his attorney’s deficient performance was of such magnitude that
he was deprived of a fair trial and that the reliability of the outcome was called into question.
Finch, 226 S.W.3d at 316 (citing State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999)).

                              B. Failure to Object to Relevance

        Petitioner contends that trial counsel provided ineffective assistance when he did not
object to a witness’s testifying that petitioner had been admitted to a mental health facility.
In his brief, petitioner submitted a cursory argument that the testimony was not relevant and
that trial counsel should have objected. However, petitioner has not demonstrated to this
court that the admission of the testimony prejudiced him in any fashion. Therefore, we
conclude that petitioner has not shown that trial counsel provided ineffective assistance in
this regard.

       C. Failure to Appeal Trial Court’s Denial of Motion to Suppress Statements

        For his second issue, petitioner argues that trial counsel provided ineffective
assistance on appeal. Specifically, petitioner submits that trial counsel should have appealed
the trial court’s denial of petitioner’s motion to suppress statements made to Deputy Walker
and Officer Ridgell. The State responds that the issue was not meritorious and that trial
counsel was not ineffective for deciding not to pursue the issue on appeal.

        The United States Supreme Court has recognized that due process of law requires that
a convicted defendant receive effective assistance of counsel on the direct appeal from his
conviction(s). See Evitts v. Lucey, 469 U.S. 387 (1985). To determine whether appellate
counsel was constitutionally effective, we apply the two-prong test of Strickland, the same
test used to evaluate claims of ineffective assistance of trial counsel. Carpenter, 126 S.W.3d
at 886. This court has held:

       There are two approaches to appellate advocacy, known generally as the ‘rifle
       shot’ approach and the ‘shotgun’ approach. Under the rifle shot procedure,
       counsel presents only those issues which arguably have merit. Under the
       ‘shotgun’ approach, every conceivable issue is raised in hope, albeit slim, that
       the appellate court will see merit in some arcane issue. The choice of which
       method to use and the choice as to which issues to present under either
       approach obviously requires strategic and tactical decisions by appellate



                                               -7-
       counsel. Of course, those decisions are judged by the same standards as all
       other decisions of counsel.

Hanson Lee Davis, Jr. v. State, No. 02C01-9104-CC-00064, 1992 WL 69655, at *1 (Tenn.
Crim. App. Apr. 8, 1992) (footnote omitted) (internal citations omitted). We will not fault
appellate counsel for not raising every possible issue on appeal. Carpenter, 126 S.W.3d at
887 (citing King v. State, 989 S.W.2d 319, 334 (Tenn. 1999); Campbell v. State, 904 S.W.2d
594, 596-97 (Tenn. 1995)). Experienced appellate advocates have long “emphasized the
importance of winnowing out weaker arguments on appeal and focusing on one central issue
if possible, or at most a few key issues.” Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993)
(quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)). Determination of the issues to raise on
appeal is a matter left to appellate counsel’s sound discretion. Carpenter, 126 S.W.3d at 887
(citing Jones, 463 U.S. at 751). We accord appellate counsel’s professional judgment
considerable deference with regard to which issues he believes to be meritorious on appeal.
Id. As in a review of ineffective assistance of trial counsel, we should not second-guess
appellate counsel’s decisions and must avoid the distorting effects of hindsight. Id. However,
we will only defer to counsel’s tactical choices if such choices are within the range of
competence required of attorneys in criminal cases. Id. (citing Campbell, 904 S.W.2d at
597).

       Moreover,

       [i]f a claim of ineffective assistance of counsel is based on the failure to raise
       a particular issue, as it is in this case, then the reviewing court must determine
       the merits of the issue. Obviously, if an issue has no merit or is weak, then
       appellate counsel’s performance will not be deficient if counsel fails to raise
       it. Likewise, unless the omitted issue has some merit, the petitioner suffers no
       prejudice from appellate counsel’s failure to raise the issue on appeal. When
       an omitted issue is without merit, the petitioner cannot prevail on an
       ineffective assistance of counsel claim.

Carpenter, 126 S.W.3d at 887-88. Thus, to fully review petitioner’s claim of ineffective
assistance of appellate counsel, we must first determine whether the underlying issue, the
trial court’s denial of petitioner’s motion to suppress, has merit.

                               1. Motion to Suppress Hearing

       Prior to his trial, petitioner moved to suppress statements he made to Officer Calvin
Ridgell and statements he made to a nurse that were overheard by Deputy Terry Walker. The
court heard testimony and arguments on the two sets of statements at separate hearings.

                                              -8-
                            a. Statements Made to Calvin Ridgell

       At the suppression hearing, Calvin Ridgell testified that he was an officer with the
Memphis Police Department and that he had graduated from the police academy with
petitioner. They subsequently worked together for some time, and Officer Ridgell described
petitioner as “a good friend.” Officer Ridgell testified that in February 2007, he learned
through newspapers and the news that petitioner had been charged with rape in Fayette
County. He stated that petitioner called him from jail and left a message asking Officer
Ridgell to contact him and to contact his family. Officer Ridgell testified that he went to visit
petitioner because he wanted to find out for himself whether the accusations were true. His
lieutenant approved the visit because petitioner had not yet been convicted.

        Officer Ridgell testified that he met with petitioner at Quinco Mental Health Facility
in Bolivar, after petitioner gave his approval to the staff there. Officer Ridgell testified that
he was not on duty that day and was not in uniform. He explained that he went “just to see
a friend.” Officer Ridgell asked petitioner, “‘[D]id you do what they said you have done?’”
Petitioner responded that he was guilty and that he had “‘been doing it since she was
twelve.’” Officer Ridgell said that petitioner did not want to discuss it further. He testified
that they discussed other things that day, like whether petitioner needed any hygiene items.
Officer Ridgell said that he would have returned for a second visit but was not able to do so
after the Memphis Police Department’s Security Squad interviewed him about the first
meeting. He explained that if he had not cooperated with the Security Squad, he would have
been in violation of departmental policy. Officer Ridgell testified that he told the Security
Squad that he had visited petitioner because “he was a very, very close friend.”

        On cross-examination, Officer Ridgell testified that the facility’s security officer was
in the room during his conversation with petitioner. He further testified that he would not
have visited petitioner if he had known that he would have to testify against him.

        In its ruling denying the motion to suppress, the trial court found that petitioner
initiated the contact with Officer Ridgell and that Officer Ridgell visited because he was a
close friend. The trial court concluded that the conversation between Officer Ridgell and
petitioner was not an interrogation and characterized petitioner’s statements as “voluntary
statement[s] made between friends.”

                   b. Statements Made in the Presence of Deputy Walker

       At the suppression hearing, Deputy Walker testified that he was assigned to guard
petitioner at the emergency room. Deputy Walker overheard petitioner tell a nurse that he
was there because he had considered cutting his wrists. He also overheard petitioner say,

                                               -9-
apparently to no one in particular, “‘I had sex with my stepdaughter. I know it was wrong[,]
and I will pay for it.’” Deputy Walker said that he never spoke to the petitioner. Following
Deputy Walker’s testimony, the trial court ruled that petitioner’s statements made in Deputy
Walker’s presence were voluntary statements and denied the motion to suppress.

                                      c. Applicable Law

        Had this issue been addressed during petitioner’s direct appeal, the trial court’s factual
findings would have been presumed to be correct, but its legal conclusions would have been
reviewed de novo. See State v. Northern, 262 S.W.3d 741, 747 (Tenn. 2008) (citations
omitted); State v. Ross, 49 S.W.3d 833, 839 (Tenn. 2001); State v. Odom, 928 S.W.2d 18, 23
(Tenn. 1996); State v. Stephenson, 878 S.W.2d 530, 544 (Tenn. 1994) (citing State v.
Harbison, 704 S.W.2d 314, 318 (Tenn. 1986)), abrogated on other grounds by State v.
Saylor, 117 S.W.3d 239 (Tenn. 2003). “‘[C]redibility of the witnesses, the weight and value
of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial
judge as the trier of fact.’” Northern, 262 S.W.3d at 747-48 (quoting Odom, 928 S.W.2d at
23). This court might have also considered the evidence presented at trial “in deciding the
propriety of the trial court’s ruling on the motion to suppress.’” State v. Garcia, 123 S.W.3d
335, 343 (Tenn. 2003) (quoting State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)). The State,
as the prevailing party, would be afforded the “‘strongest legitimate view of the evidence and
all reasonable and legitimate inferences that may be drawn from that evidence.’” Northern,
262 S.W.3d at 748 (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn. 1998)); see State v.
Daniel, 12 S.W.3d 420, 423 (Tenn. 2000); Odom, 928 S.W.2d at 23.

       The basis for petitioner’s motions to suppress his statements to Officer Ridgell and
Deputy Walker lies in federal and state constitutional protections against compelled self-
incrimination. “The Fifth Amendment to the United States Constitution provides in part that
‘no person . . . shall be compelled in any criminal case to be a witness against himself.’” State
v. Thacker, 164 S.W.3d 208, 248 (Tenn. 2005) (quoting U.S. Const. amend. V). “Similarly,
Article I, section 9 of the Tennessee Constitution states that ‘in all criminal prosecutions, the
accused . . . shall not be compelled to give evidence against himself.’” Id. (quoting Tenn.
Const. art. I, § 9). “The test of voluntariness for confessions under article I, § 9 of the
Tennessee Constitution is broader and more protective of individual rights than the test of
voluntariness under the Fifth Amendment.” State v. Smith, 933 S.W.2d 450, 455 (Tenn.
1996) (citing Stephenson, 878 S.W.2d at 544). To be considered voluntary, a statement to
law enforcement “‘must not be extracted by any sort of threats or violence, nor obtained by
any direct or implied promises, however slight, nor by the exertion of any improper
influence.’” State v. Brock, 327 S.W.3d 645, 687 (Tenn. Crim. App. 2009) (quoting Bram
v. United States, 168 U.S. 532, 542-43 (1897)). Therefore, “voluntariness” hinges upon the
inquiry of “‘whether the behavior of the [s]tate’s law enforcement officials was such as to

                                              -10-
overbear [appellant’s] will to resist and bring about confessions not freely self-determined
. . . .’” State v. Kelly, 603 S.W.2d 726, 728 (1980) (quoting Rogers v. Richmond, 365 U.S.
534, 544 (1961)). However, “[a] defendant’s subjective perception alone is not sufficient to
justify a conclusion of involuntariness in the constitutional sense.” Brock, 327 S.W.3d at 687
(quoting Smith, 933 S.W.2d at 455). Rather, “coercive police activity is a necessary predicate
to finding that a confession is not voluntary . . . .” Id. (quoting Smith, 933 S.W.2d at 455).
The voluntariness of a statement is determined by an examination of the totality of the
circumstances. See Kelly, 603 S.W.2d at 728-29. In addition, due to “the inherently
compelling pressures of in-custody interrogation,” the United States Supreme Court in
Miranda v. Arizona, 384 U.S. 436 (1966), “limited the admissibility of statements that would
ordinarily meet the due process test of voluntariness” by establishing prophylactic rules
designed “to permit a full opportunity to exercise the privilege against self-incrimination.”
State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992)).

                                           d. Application

        In this case, the first question with regard to Officer Ridgell is whether he was a state
actor. If he was not a state actor, then the constitutional protections do not apply. See
Colorado v. Connelly, 479 U.S. 157, 166 (1986) (“The most outrageous behavior by a private
party seeking to secure evidence against a defendant does not make that evidence
inadmissible under the Due Process Clause.”). It is clear that Officer Ridgell was not acting
in his official capacity as a police officer. Not only was he not an investigating officer, the
law enforcement agency by which he was employed did not have jurisdiction over the
investigation. The question remains whether Officer Ridgell, simply because he was a police
officer and obtained permission from his lieutenant before meeting with petitioner, was a
state actor. If we determine that he was a state actor, then we must also determine whether
petitioner’s confession was voluntary.

       In State v. Burroughs, 926 S.W.2d 243, 246 (Tenn.1996), our supreme court adopted
the “legitimate independent motivation test” for determining whether a private individual
acted as an agent of the State.1 Although the test was originally developed for determining
the admissibility of evidence following a Fourth Amendment violation by a citizen, our
supreme court as well as other courts have found it instructive in determining whether a Fifth
Amendment violation had occurred. State v. Ackerman, 397 S.W.3d 617, 648 (Tenn. Crim.


       1
           The Tennessee Supreme Court has granted permission to appeal in at least two cases involving
whether a witness was a state actor. See State v. Henry Floyd Sanders, No. M2011-00962-CCA-R3-CD,
2012 WL 4841545, at *9-10 (Tenn. Crim. App. Oct. 9, 2012), perm. app. granted (Tenn. Feb. 15, 2013);
State v. Fred Chad Clark, II, No. M2010-00570-CCA-R3-CD, 2012 WL 3861242, at *28 (Tenn. Crim. App.
Sept. 6, 2012), perm. app. granted (Tenn. Feb. 13, 2013).

                                                 -11-
App. 2012) (citing United States v. Day, 591 F.3d 679, 683 (4th Cir. 2010) (“[R]egardless
of whether the Fourth or Fifth Amendment is at issue, we apply the same test to determine
whether a private individual acted as a Government agent.”)). “The goal of the test . . . is to
determine whether ‘the government exercised such coercive power or such significant
encouragement that it is responsible for the conduct of the private party securing the
evidence, or that the exercised powers are the exclusive prerogative of the government.’” Id.
(quoting United States v. Garlock, 19 F.3d 441, 443 (8th Cir. 1994) (citation omitted in
original)). The pivotal inquiries under the “legitimate independent motivation” analysis are:
“(1) the government’s knowledge and acquiescence; and (2) the intent of the party
performing the search.” Burroughs, 926 S.W.2d at 246. However, our supreme court places
greater weight on the second factor. Id.

        Officer Ridgell testified that he was close friends with petitioner and that petitioner
contacted him after he was arrested. Officer Ridgell further testified that he visited petitioner
solely because they were friends and that if he had known he would have to testify against
petitioner, he would not have visited. No one from the Memphis Police Department or the
Fayette County Sheriff’s Department encouraged Officer Ridgell to visit petitioner, and he
did not wear a recording device during that visit. Petitioner obviously knew that Officer
Ridgell was a police officer but desired to meet with him anyway. Officer Ridgell admitted
that he asked petitioner whether he was guilty, but when petitioner did not want to give any
details, Officer Ridgell did not pressure him. Taking all of this into consideration, we cannot
say that Officer Ridgell was a state actor, and even if he were, we conclude that under these
circumstances, he did not coerce petitioner into confessing.

        Regarding petitioner’s statements that were overheard by Deputy Walker, petitioner
now argues that the trial court should have considered whether the situation in which the
statement was made was the functional equivalent of a custodial interrogation. The United
States Supreme Court in Rhode Island v. Innis provided the following guidance for lower
courts:

       [T]he term “interrogation” under Miranda refers not only to express
       questioning, but also to any words or actions on the part of the police (other
       than those normally attendant to arrest and custody) that the police should
       know are reasonably likely to elicit an incriminating response from the suspect.
       The latter portion of this definition focuses primarily upon the perceptions of
       the suspect, rather than the intent of the police. This focus reflects the fact that
       the Miranda safeguards were designed to vest a suspect in custody with an
       added measure of protection against coercive police practices, without regard
       to objective proof of the underlying intent of the police. A practice that the
       police should know is reasonably likely to evoke an incriminating response

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       from a suspect thus amounts to interrogation. But, since the police surely
       cannot be held accountable for the unforeseeable results of their words or
       actions, the definition of interrogation can extend only to words or actions on
       the part of police officers that they should have known were reasonably likely
       to elicit an incriminating response.

Innis, 446 U.S. 291, 301-02 (1980) (emphasis added) (footnote call numbers omitted); see
also State v. Sawyer, 156 S.W.3d 531, 533 (Tenn. 2005).

       In this case, Deputy Walker was merely standing guard while petitioner received
treatment. He never spoke with petitioner, and there is no evidence that he took any action
that he should have known was reasonably likely to elicit an incriminating response.
Therefore, because the deputy was not interrogating petitioner nor practicing its functional
equivalent, petitioner was volunteering information when he confessed. “Volunteered
statements of any kind are not barred by the Fifth Amendment[,] and their admissibility is
not affected” by the holding of Miranda. Miranda, 384 U.S. at 478; see also State v. Hurley,
876 S.W.2d 57, 66 (Tenn. 1993); State v. Ensley, 956 S.W.2d 502, 511 (Tenn. Crim. App.
1996); State v. Ezra Shawn Ervin and Andrew McKinney, E1999-00287-CCA-R3-CD, 2001
WL 15832, at *3 (Tenn. Ct. App. Jan. 9, 2001). Thus, neither of petitioner’s suppression
arguments have merit.

        Because we have determined that petitioner’s suppression arguments are not
meritorious, we further conclude that trial counsel was not ineffective for failing to address
the issues on appeal. See Carpenter, 126 S.W.3d at 887-88. Therefore, petitioner is without
relief as to this issue.

                                      CONCLUSION

      Based on the record, the applicable law, and the parties’ briefs, we affirm the
judgment of the post-conviction court.


                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




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