dissenting.
I believe the trial court erred in failing to grant an evidentiary hearing on appellant’s claim of incompetency of counsel. Appellant claims that his trial counsel failed to object to the admission at trial of a jailhouse confession which was improperly secured from appellant by a fellow prisoner acting for the state in violation of the holding in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). The confession was obviously significant evidence of appellant’s guilt. When appellant appealed his conviction and raised the admission of the statement as error, the state contended that the issue was waived by counsel’s failure to object. This court affirmed the conviction without opinion.
I do not believe we can determine whether there was a Henry violation or whether counsel’s representation was inadequate without an evidentiary hearing directed to those issues in the trial court.