        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 20, 2015

           JASON CHARLES AUSTIN v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Washington County
                        No. 38990   R. Jerry Beck, Judge


               No. E2014-01855-CCA-R3-PC – Filed October 21, 2015
                        _____________________________

Petitioner, Jason Charles Austin, appeals from the denial of his petition for post-
conviction relief. Petitioner was indicted for one count of first degree murder. Petitioner
was convicted by a jury of second degree murder and sentenced by the trial court to 23
years incarceration. Petitioner‟s conviction and sentence were affirmed by this court on
direct appeal. State v. Charles Austin, No. E2010-00796-CCA-R3-CD, 2012 WL
2445058 (Tenn. Crim. App., June 28, 2012), perm. app. denied (Tenn., Nov. 21, 2012).
Petitioner sought post-conviction relief, alleging that his trial counsel provided
ineffective assistance. Following an evidentiary hearing, the post-conviction court denied
relief. Having reviewed the entire record before us and the briefs of the parties, we
conclude that the evidence does not preponderate against the post-conviction court‟s
findings and conclusions. Accordingly, the judgment of the post-conviction court is
affirmed.

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

THOMAS T. WOODALL, P.J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Daniel J. Cantwell, Kingsport, Tennessee, for the Appellant, Jason Charles Austin.

Herbert H. Slatery III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
and Anthony Wade Clark, District Attorney General, for the Appellee, State of
Tennessee.
                                         OPINION

Facts and procedural background

       The facts underlying Petitioner‟s conviction were summarized by this court in its
opinion in State v. Charles Austin, No. E2010-00796-CCA-R3-CD, 2012 WL 2445058
(Tenn. Crim. App., June 28, 2012), perm. app. denied (Tenn., Nov. 21, 2012). The
evidence at trial showed that on June 22, 2005, Petitioner and his girlfriend were in an
altercation with the victim, during which altercation, the victim pointed a gun at them.
On June 28, 2005, Marc Coffey drove Petitioner and his co-defendant, Danny Green, to a
hotel parking lot where Petitioner had seen the victim‟s car. Petitioner and Green
approached the victim in the parking lot, and Petitioner asked the victim if he
remembered Petitioner. Petitioner stated that he swung his fist at the victim, and when
the victim twisted to dodge the punch, Petitioner saw something shiny in the victim‟s
hand. Petitioner then drew his gun and shot the victim. Petitioner stated that he was
acting in self-defense. Coffey testified that he saw Petitioner hit the victim on the side of
the head with a gun. The victim attempted to run away, and Coffey heard two gunshots.
The victim‟s girlfriend testified that she heard two gunshots from inside the hotel room.
She ran outside to the victim who appeared lifeless. She testified that the victim was
unarmed. Police found a gun inside a toboggan hat inside the victim‟s motel room. The
victim died from multiple gunshot wounds.

Post-conviction hearing

        Petitioner testified at the evidentiary hearing that trial counsel visited him and
reviewed with him the State‟s discovery response. Petitioner testified that he asked trial
counsel to hire a private investigator, and Petitioner testified that he offered to pay for the
investigator‟s services. Petitioner testified that he saw someone looking at him from
inside one of the rooms of the hotel where the shooting occurred. He testified that a
private investigator might have identified and located the eyewitness, who could have
testified that Petitioner shot the victim in self-defense.

       Petitioner testified that his family hired forensic pathologist, Dr. William
McCormick, to testify in his defense. Dr. McCormick testified that the victim‟s facial
injuries were sustained when he fell to the ground. According to Petitioner, Dr.
McCormick testified at trial, during cross-examination by the State, that trial counsel had
not provided him with photographs of the victim‟s injuries.

       On cross-examination, Petitioner testified that counsel visited him in jail.
Petitioner testified that he believed the outcome of his trial would have been different had
trial counsel located and interviewed potential witnesses from the hotel because he
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believed someone from inside the hotel saw that the victim possessed a gun during the
incident. Petitioner testified that he saw something shiny in the victim‟s hand, but he
could not “say 100%” that the victim had a gun. Petitioner acknowledged that although
he was indicted for first degree murder, he was convicted of the lesser-included offense
of second degree murder.

        Trial counsel testified that he had been practicing law for 13 years at the time of
the post-conviction hearing. Trial counsel testified that his defense strategy in
Petitioner‟s case “was to try to get [a] manslaughter [conviction], and the way to do that
would be to try to argue that he was defending himself from [the victim], and a jury
might very well come to somewhat of a compromise[d] verdict.” Trial counsel testified
that he discussed Petitioner‟s case with him “numerous times.” Trial counsel testified
that he filed motions on Petitioner‟s behalf, including a motion to sever defendants. Trial
counsel explained that he and counsel for Petitioner‟s co-defendant eventually decided
“that the best defense was to put [Petitioner and his co-defendant] together in a trial, let
them get on the witness stand, let each of them tell what happened, and just not try to
hide anything from the jury whatsoever.” Counsel testified that on the morning of trial,
he objected to severance of the two co-defendants, but counsel testified, “[u]ltimately that
probably didn‟t matter because [Petitioner‟s co-defendant] came in and testified at
[Petitioner]‟s trial that, yes, in fact, he had fired that fatal shot.”

        Trial counsel testified that he reviewed the State‟s discovery response with
Petitioner. He testified that the police had taken statements from witnesses at the hotel,
and the witnesses stated that “[t]hey didn‟t see anything.” Trial counsel testified, “in
hindsight it might have been a better practice for me to have got a log of everyone that
stayed at that hotel that night and personally interviewed each of them. I didn‟t do that.
There was no one that came forward and said they saw anything.” Trial counsel testified
that he did not hire an investigator. He testified, “I can‟t sit here and say that there‟s any
witness that I know – knew of then or know of now that would have changed the
outcome of this trial.” Trial counsel testified that he cross-examined the victim‟s
girlfriend about whether she moved the gun to the hotel room, and he “certainly
insinuated that [theory] the best [he] could at trial.”

        Trial counsel testified that he hired Dr. McCormick to challenge the State‟s
pathologist‟s testimony that the victim had been beaten. Dr. McCormick testified that the
victim‟s injuries were the result of falling to the ground. Trial counsel acknowledged that
Dr. McCormick did not “make the best witness.” Trial counsel testified that he believed
he provided Dr. McCormick with all of the photographs of the victim. Trial counsel
testified that “there [was] nothing more [he] could have done to prepare Dr.
McCormick.”

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Analysis

       Petitioner contends that his trial counsel was ineffective because he failed to hire
an investigator to find any eyewitness at the hotel where the shooting occurred.
Petitioner asserts that the eyewitness could have testified about whether the victim had a
gun at the time of the shooting. Petitioner also contends that counsel was ineffective
because he failed to adequately prepare the defense expert witness, Dr. McCormick.

        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.” T.C.A. § 40-30-103. A post-conviction petitioner bears the burden of proving
his or her factual allegations by clear and convincing evidence. T.C.A. § 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)).
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)). 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).
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       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
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)).

       In a written order denying post-conviction relief, the post-conviction court made
the following findings of fact and conclusions of law, as pertinent to the issues raised in
this appeal:

               In this case, the killing occurred on a lawn near a walkway of a
        hotel/motel. The petitioner testified he saw people and/or lights in some
        of the rooms that might have been able to have seen the deceased victim
        with a firearm. [Emphasis in original]

               At trial the petitioner himself did not identify a gun but he saw
        [“]something shiny in the victims‟ [sic] hand” and as a result he “drew
        his gun and shot the victim.” [Citation to the record omitted.]

               The police found no gun on or about the victim.

                The petitioner‟s theory at trial although not supported by the
        evidence was that the victim‟s girlfriend must have moved a gun from
        the scene to the room at the hotel/motel. A gun was found by the police
        in the girlfriend/victim‟s room.

                The police interviewed people staying at the hotel/motel
        (approximately 6) who all denied being witnesses to the shooting. The
        district attorney turned the statements over to original defense counsel in
        pre-trial discovery.

               Original trial counsel testified that he did not pursue the six or so
        witnesses staying at the hotel/motel evidently in light of the statements
        furnished to him.


                                             5
       The petitioner‟s theory at the post-conviction action was that if
original trial counsel had questioned the people staying at the hotel they
may have given a different story from what they gave to the police. This
was only a conclusion or theory of the petitioner and he offered no
evidence at the post-conviction hearing and called no witnesses except
himself to put forward his theory or conclusion.

         The victim‟s girlfriend who found the body of the victim testified
at trial the victim did not have a gun on his person.

       ....

      In this case at jury trial, two expert and opposing medical
examiners were called to describe injuries to the victim‟s face.

       The state‟s expert, Medical Examiner Darinka Mileusnic-Polchan,
M.D., testified that the victim, Ricker, had facial or head trauma that was
consistent with having been pistol whipped.

       The defendant‟s expert medical examiner, Dr. William
McCormick, M.D. testified that by observing slides or photos . . . the
injury to the face and head were consistent with the victim falling on his
face.

     In exhibit 1 at the post-conviction hearing a transcript of Dr.
McCormick‟s trial testimony was introduced.

       On cross-examination at the jury trial an enlarged photograph,
Exh. 42, was introduced and McCormick said he hadn‟t seen that
particular photo. The District Attorney at the post-conviction hearing
described the enlarged photo as about three feet in size. The petitioner
did not call Dr. McCormick as a witness at the post-conviction hearing
and the photo was not introduced at the post-conviction hearing.

        It is true that a photo or photos were shown to Dr. McCormick at
the jury trial and he made a response that: “they were not available.”
[citation to the record omitted].

       At the jury trial Dr. McCormick realized he had seen the photo or
photos pre-trial and stated[,] “Yes I do have that [but] not in the
enlargement.” – “the same essential photograph.[”]
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               The petitioner‟s theory of prejudice at the post-conviction hearing
        was that he assumed original trial counsel hadn‟t given the photo or
        photos to Dr. McCormick and he assumed this made him, the petitioner
        look bad at trial.

                Considering that Dr. McCormick at jury trial indicated he had
        pre-trial received the photo, Exh. 42, this issue would be without merit.
        Original defense counsel could not be considered ineffective if he gave
        the photo or photos to Dr. McCormick pre-trial.


       We conclude that the record supports the post-conviction court‟s findings. When
a post-conviction petitioner alleges ineffective assistance of counsel for failure to
investigate or present a certain witness in support of his defense, the petitioner should
present that witness at the evidentiary hearing. Black v. State, 794 S.W.2d 752, 757
(Tenn. Crim. App. 1990). Petitioner failed to present any witnesses at the evidentiary
hearing who could have provided testimony favorable to the defense. Although trial
counsel testified that, in hindsight, he believed he should have reviewed the hotel guest
log, Petitioner has failed to establish that counsel‟s alleged deficiency in that regard
prejudiced him. Police took statements from witnesses who were present at the scene,
and none of the witnesses stated that they saw anything. Petitioner testified that he saw
something shiny in the victim‟s hand, but he could not “say 100%” that the victim had a
gun.

       Regarding Petitioner‟s assertion that trial counsel failed to adequately prepare
defense expert Dr. McCormick, the post-conviction court found that although Dr.
McCormick initially testified at trial that he had not been provided a photograph of the
victim‟s autopsy, later in his testimony, he recognized the photograph and testified that
he had been given it prior to trial. A transcript of Dr. McCormick‟s trial testimony was
admitted as an exhibit to the post-conviction hearing. Petitioner has not established that
counsel‟s performance was deficient for failing to prepare Dr. McCormick to testify at
trial. Petitioner asserts that he was prejudiced by Dr. McCormick‟s apparent lack of
preparation; however, trial counsel testified at the post-conviction hearing that although
he believed that Dr. McCormick did not “make the best witness[,]” trial counsel provided
Dr. McCormick with all of the photographs of the victim, and trial counsel testified that
“there [was] nothing more [he] could have done to prepare Dr. McCormick.”

      Petitioner also contends that the post-conviction court deprived him of his right to
due process by refusing to hear evidence at the post-conviction hearing regarding trial
counsel‟s (1) “[f]ailure to prepare [Petitioner] before court concerning the severance of
                                            7
his trial from his co[-]defendant‟s trial,” and (2) “failure to investigate or talk to a
material witness, the victim‟s mother, which later revealed at the sentencing hearing
exculpatory testimony.”

       At the outset of the evidentiary hearing, the State sought dismissal of Petitioner‟s
post-conviction claims regarding severance and counsel‟s failure to call the victim‟s
mother as a witness, arguing that those issues had been decided on direct appeal. The
post-conviction court heard argument from both parties and granted the State‟s motion to
dismiss those post-conviction claims. The post-conviction court noted that both issues
were raised on direct appeal. Relying upon the opinion in the direct appeal in this case,
in which a panel of this court held that Petitioner had not shown that he was prejudiced
by the trial court‟s severance of his trial from his co-defendant‟s trial and that the
testimony of the victim‟s mother was not material, the post-conviction court concluded
that Petitioner could not establish prejudice.

       Regarding the trial court‟s severance of Petitioner‟s and his co-defendant‟s cases,
a panel of this court held:

              As stated above, the trial court decided to sever the two trials based
        upon the indecision displayed by Appellant immediately prior to the
        beginning of his joint trial with his co-defendant. Appellant argues that
        due process rights and his right to a fair trial were violated because of the
        severance. He argues that the attorney‟s intent was to have the two
        defendants tried together. Both Appellant and his co-defendant Green
        would be shown to have been the shooter of the fatal shot. Therefore,
        Appellant argues that he was prejudiced. However, a review of the
        record shows that Co-defendant Green testified at Appellant‟s trial. The
        evidence did indeed lead to the conclusion that he had fired the fatal
        shot. Therefore, this evidence was presented to the jury even though the
        cases were severed. For this reason, Appellant has not been able to
        prove his argument that he was prejudiced by the severance of his trial
        from Co-defendant Green‟s trial. For this reason, we find no abuse of
        discretion by the trial court in ordering the severance of the trials.

Austin, 2012 WL 2445058 at *9.

      Regarding the testimony of the victim‟s mother, a panel of this court held:

              The fact that the victim had a gun and brandished it during the
        altercation does not alter that fact that the altercation between Appellant
        and the victim occurred on June 22, 2005, six days before the shooting
                                             8
         on June 28, 2005. Additional testimony about the victim‟s possession of
         the gun on June 22, 2005, does not make it more likely that the victim
         had a gun when he was shot by Appellant. Appellant was convicted of
         the lesser-included offense of second-degree murder. While we agree
         that the evidence somewhat corroborates Appellant‟s version of the
         events on June 22, 2005, we do not find that the testimony would make
         him any less culpable for the shooting death of the victim on June 28,
         2005. Therefore, we conclude that there is not a reasonable probability
         that Ms. Ricker‟s testimony would have resulted in a different outcome
         at trial. Appellant has not met the fourth prerequisite to prove that his
         due process rights were violated by the failure to receive this evidence.

Id. at *6.

       First we note, as the post-conviction court noted in its order, that although the
issue of counsel‟s alleged deficient performance in these two respects was not raised on
direct appeal, the issues of severance and the materiality of the testimony of the victim‟s
mother were raised on direct appeal, and this court‟s opinion specifically addressed the
prejudicial effect, if any, of the two alleged errors.

        The post-conviction court applied the same reasoning employed by this court in
the direct appeal in concluding that Petitioner failed to show that he was prejudiced by
either the trial court‟s severance of Petitioner‟s case from his co-defendant‟s case or by
trial counsel‟s failure to call the victim‟s mother as a witness. Following our review, we
conclude that the record supports the post-conviction court‟s finding that Petitioner failed
to establish prejudice. Despite the trial court‟s severance of Petitioner‟s trial from that of
his co-defendant, Petitioner‟s co-defendant testified at Petitioner‟s trial. Even if
Petitioner‟s trial counsel failed to adequately prepare him for severance, as Petitioner
contends, Petitioner cannot show that the result of his trial would have been different.
Furthermore, Petitioner cannot show that the victim‟s statement to his mother that he
pulled a gun on Petitioner because Petitioner pulled a gun on him during the incident
days prior to the shooting for which Petitioner was convicted would have affected the
outcome of his trial. This court concluded as much on direct appeal. We therefore
conclude that Petitioner has failed to establish that he was prejudiced by counsel‟s
alleged deficiencies. We also conclude that Petitioner was not denied due process by the
post-conviction court‟s dismissal of these issues. Petitioner was given the opportunity to
present his argument relative to these issues at the evidentiary hearing. Therefore,
Petitioner was given a meaningful opportunity to be heard in a meaningful manner. See
Seals v. State, 23 S.W.3d 272, 277-78 (Tenn. 2000).


                                              9
For the foregoing reasons, the judgment of the post-conviction court is affirmed.


                           ____________________________________________
                           THOMAS T. WOODALL, PRESIDING JUDGE




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