       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT NASHVILLE
                Assigned on Briefs September 15, 2015 at Knoxville

              MICHAEL WEBSTER v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Davidson County
                   No. 2009-D-3172 Mark J. Fishburn, Judge


             No. M2014-02019-CCA-R3-PC – Filed December 22, 2015


The Petitioner, Michael Webster, appeals as of right from the Davidson County Criminal
Court’s denial of his petition for post-conviction relief. On appeal, the Petitioner
contends that his trial counsel was ineffective in the following ways: (1) she failed to
inform him of his preliminary hearing and waived his right to appear without his
permission; (2) she did not adequately communicate with him; (3) she did not consult
with him to develop a “reasonable” trial strategy; (4) she did not fully investigate or
present witnesses; (5) she did not request a mistrial following “possible jury panel
contamination”; and (6) she failed to make appropriate objections during his cross-
examination. Following our review, we conclude that the Petitioner is not entitled to
relief, and the judgment of the post-conviction court is therefore affirmed.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which NORMA MCGEE
OGLE, and ALAN E. GLENN, JJ., joined.

Jesse Lords, Nashville, Tennessee for the appellant, Michael Webster.

Herbert H. Slatery III, Attorney General and Reporter; Sophia Lee, Senior Counsel;
Glenn Funk, District Attorney General; Janice Norman and Sarah Davis, Assistant
District Attorneys General, for the appellee, State of Tennessee.

                                      OPINION

                             FACTUAL BACKGROUND

       The Petitioner was indicted for the first degree premeditated murder of Nickalus
Jones, the victim, in November 2009. Following a jury trial, he was convicted of second
degree murder and sentenced to twenty-five years’ imprisonment. The Petitioner
subsequently challenged the sufficiency of the convicting evidence on direct appeal, and
a panel of this court affirmed his conviction.. Michael L. Webster, No. M2011-00521-
CCA-R3-CD, 2012 WL 6032507, at *1 (Tenn. Crim. App. Dec. 5, 2012), perm. app.
denied (Tenn. Apr. 9, 2013).

       The Petitioner’s conviction arose from a shooting that occurred on July 30, 2009,
at a Nashville subsidized housing development, University Court. Webster, 2012 WL
6032507, at *1. Eyewitnesses testified that they saw an altercation between the Petitioner
and the victim at University Court. According to witness testimony, the Petitioner and
the victim met each other near one of the apartment units, and the Petitioner asked the
victim whether he had a gun. The victim said that he did not have a gun and lifted his
shirt up as proof. The witnesses testified that they did not see the victim with a gun. The
victim began to beg for his life, but the Petitioner shot the victim. The victim attempted
to run away, but the Petitioner chased him and continued to shoot at him. Id.

       When the Petitioner was arrested at his home several days later, police recovered a
gun and ammunition. Webster, 2012 WL 6032507, at *1. Ballistics testing confirmed
that the bullet recovered from the victim’s body was fired from the Petitioner’s gun. No
gun was found near the victim’s body or on his person. Id.

       The Petitioner testified at trial and claimed that he and the victim had been
involved in a verbal altercation prior to the shooting. He asserted that he observed the
victim with a gun when the victim lifted up his shirt. Webster, 2012 WL 6032507, at *2.

       Following his unsuccessful direct appeal, the Petitioner filed a pro se petition for
post-conviction relief on August 9, 2013. Following the appointment of counsel, two
amended petitions were filed. In his petitions, the Petitioner proffered multiple
allegations of ineffective assistance of counsel. The post-conviction court held an
evidentiary hearing on May 1, 2014.

        At the hearing, the Petitioner testified that trial counsel did not tell him that he had
a preliminary hearing until after it occurred. He alleged that he was not allowed to
appear at the hearing and that when he asked trial counsel why he did not attend, she
replied that he “[didn’t] need to go.” When the Petitioner asked trial counsel what had
happened at the preliminary hearing, she told him that “it got bound over” and that the
State had provided “some CDs or something” as discovery. However, the Petitioner
testified that trial counsel “never went over nothing [sic] with [him]” and that he never
saw any of the discovery.

        According to the Petitioner, trial counsel met with him “once every other month”
for fifteen to twenty minutes per meeting and that they “sometimes” discussed his case at
the meetings. However, the Petitioner testified that they did not discuss trial strategy,
that he had no input regarding his defense, and that he did not know that they would be

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utilizing a self-defense claim prior to his trial. The Petitioner stated his belief that trial
counsel should have pursued a defense of voluntary manslaughter instead of self-defense.

        The Petitioner also testified that trial counsel failed to interview witnesses. The
Petitioner testified that he provided trial counsel with the names of two witnesses, “Fun
Fun” and “Kiki,” but, “to [his] knowledge[,] she never went and checked or asked [any]
questions.” He only knew these witnesses by their “street names,” but he said that he
provided trial counsel with addresses where they could be located. The Petitioner
testified that he knew that trial counsel did not attempt to find the witnesses “[because] if
[counsel] would have went [sic] to the address[,] [she] would have found them.” He
agreed that trial counsel told him that she was unable to locate the witnesses, but he was
skeptical that she had actually made an effort to find them.

        Contrary to his earlier testimony, on cross-examination the Petitioner admitted that
he did know about his preliminary hearing prior to the hearing date because someone at
the jail told him about it. However, he claimed that he did not meet trial counsel at all
until after the hearing and that she waived his appearance without his permission.
According to the Petitioner, he was imprisoned for a full month after the preliminary
hearing before trial counsel met with him for the first time. The Petitioner testified that
trial counsel did not tell him that identity might be an issue in the case or explain that she
did not want to risk his being identified by witnesses at the preliminary hearing.

       The Petitioner testified that trial counsel provided him with a copy of discovery
sometime in November 2009. He and trial counsel “somewhat” discussed the discovery
materials, and they also talked about several of the witnesses. The Petitioner estimated
that he and trial counsel discussed the facts of his case two to three times for fifteen to
twenty minutes each time. He and trial counsel also discussed the content of his
statement to police wherein the Petitioner claimed that he was “defending himself” when
he shot the victim. The Petitioner disagreed that saying he was “defending himself” was
the same as saying that he acted in “self-defense.” He opined that voluntary
manslaughter would have been a better defense strategy because he and the victim “had a
heated discussion before anything ever occurred,” and, therefore, he was “in a state of
passion” when he shot the victim.

       Trial counsel testified that she spoke with the Petitioner prior to his preliminary
hearing and that they discussed waiving his appearance, although she did not receive a
written waiver from him. According to trial counsel, she met with the Petitioner in jail
several times before the preliminary hearing, including on the morning of the preliminary
hearing.

       Trial counsel stated that, in the approximately one-year period between the “bind
over” and trial, she met with the Petitioner over thirty times. During these meetings, trial
counsel and the Petitioner discussed the discovery materials and trial strategy. Trial

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counsel testified that she received input from the Petitioner regarding trial strategy and
that, because of his statement to police in which he claimed to be defending himself, the
defense was going to be a claim of self-defense. Trial counsel did not remember the
Petitioner’s telling her that he wanted to pursue a voluntary manslaughter defense.

        Trial counsel spoke with witnesses to the shooting about the altercation that had
occurred between the Petitioner and the victim prior to the shooting and about an
apparent fight between the two that occurred earlier in the day. The altercation appeared
to have been verbal, and there was no evidence that any kind of physical fight occurred.
Trial counsel said that she spoke with all the witnesses that she was able to find. She
testified that, although no weapon was found on the victim, she decided to pursue a claim
of self-defense because the Petitioner insisted that he saw the victim with a gun. Pictures
of the victim showed that he had a large, silver belt buckle on at the time, allowing for the
inference that the Petitioner might have mistaken it for a gun.

       Trial counsel recalled the Petitioner’s telling her about Fun Fun and Kiki, but she
denied that she had an address for either witness. She further stated that, although other
witnesses apparently knew who they were, she never learned their real names. Trial
counsel did receive information that they lived in the 12th Avenue North area, and she
sent an investigator to the neighborhood to look for them, but to no avail. Additionally,
trial counsel testified that she personally looked for these two witnesses in the
University Court area on several occasions but was ultimately unsuccessful. She testified
that she pursued all leads on witnesses provided by the Petitioner.

       Trial counsel remembered that after voir dire, one of the jurors sent an e-mail to
the jury coordinator stating that he had a conflict and was not comfortable serving on the
jury. The e-mail from the excused juror was admitted as an exhibit at the post-conviction
hearing. In the letter, the juror expressed his surprise at being picked for the jury panel
because, during voir dire, he disclosed his close ties to the community where the shooting
occurred. The juror stated that he did not feel comfortable serving on the jury and that he
was concerned he may know some of the witnesses in the case. The juror was removed
from the jury panel, and trial counsel stated that she did not voir dire him before he was
released. Trial counsel agreed that she did not move for a mistrial based on the
possibility that the excused juror had influenced other members of the jury panel.

       Trial counsel agreed that she did not raise any objections during cross-examination
of the Petitioner and explained that was because she believed that the Petitioner “was
doing a very good job on direct and during cross-examination.” Trial counsel was asked
why she did not object to the following question from the prosecutor: “[C]an you
approximate for us how many days did you work in the week before the murder?”
Specifically, she was asked why she did not object to the prosecutor’s use of the word
“murder.” Trial counsel said that “it wouldn’t have occurred to [her]” to object to that
question.

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       On cross-examination, trial counsel testified that she met with the Petitioner at
least twice prior to the preliminary hearing and explained that she advised the Petitioner
against appearing at his preliminary hearing because she thought identity might be an
issue at trial, and she did not want witnesses to positively identify him at the hearing.
She claimed that, at the time of hearing, she was not aware that the Petitioner had given a
statement to the police wherein he admitted to shooting the victim. According to trial
counsel, the Petitioner did not object to waiving his appearance at the preliminary
hearing.

        Trial counsel testified that she met with the Petitioner multiple times after
receiving discovery. She estimated that she met with him thirty-plus times in jail, in
addition to when she saw him on court dates. At these meetings, trial counsel discussed
the discovery materials with the Petitioner, including recorded witness statements.
According to trial counsel, she and the Petitioner discussed proceeding on a self-defense
claim. Trial counsel agreed that proving self-defense would have been difficult because
witness statements indicated that the victim was unarmed and unaggressive. However,
trial counsel planned to rely on the fact that the victim was wearing a belt buckle to
support a theory that the Petitioner thought he saw a gun when the victim lifted his shirt.

       Trial counsel testified that the Petitioner never told her that he did not want to
claim self-defense and never told her that he would rather proceed with a voluntary
manslaughter defense. Trial counsel’s decision to utilize a self-defense claim was based
on the fact that the Petitioner had told police he was defending himself. She agreed that,
generally, they pursued an “anything but first degree murder defense.” Thus, in her
closing statement, she actually did ask the jury to convict him of the lesser included
offense of voluntary manslaughter if they decided that he had not acted in self-defense.

        With respect to the dismissed juror, trial counsel recalled that, on the night of the
first day of trial, one of the jurors wrote an email indicating that he was too conflicted to
serve as a juror. Trial counsel could not remember whether the juror came to court on the
second day of trial. To the best of trial counsel’s recollection, the juror was dismissed
prior to opening statements. She surmised that, because of the timing of the dismissal,
the juror would have had very little opportunity to speak with other jurors about the case,
and there was no evidence that he had tainted the jury. The parties agreed that he would
be designated as one of the alternate jurors so that the case could proceed without
interruption.

       On September 20, 2014, the post-conviction court filed a detailed order denying
the petition for post-conviction relief. With respect to the waiver of the Petitioner’s
appearance at the preliminary hearing, the court accredited trial counsel’s testimony that
the appearance was waived for tactical reasons. The court also concluded that the
Petitioner’s waiver of his right to appear was knowing and voluntary. Further, the court


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noted that the Petitioner had “in no way suggested how his absence from the preliminary
hearing prejudiced him . . . .”

       Next, the post-conviction court addressed the Petitioner’s claim that trial counsel
failed to adequately communicate with him. The court noted that, assuming the
Petitioner’s testimony was true regarding the number of times he met with trial counsel,
the total number of meetings would add up to approximately fourteen. The trial court
determined that if trial counsel’s testimony was accredited, the total number of meetings
would be at least thirty-three. The court concluded that, based on either account, the
number of meetings “appear[ed] to be reasonable.” With respect to the substance of
these meetings and the Petitioner’s claims that there was no meaningful discussion
regarding discovery or trial strategy, the court again accredited trial counsel’s testimony
that she discussed the case extensively with the Petitioner. In making this determination,
the court noted that the Petitioner had actually testified that he and trial counsel went over
the facts of his case several times and that he was provided with discovery early in the
progression of his case.

        The post-conviction court also concluded that trial counsel’s reliance on a theory
of self-defense was reasonable given the Petitioner’s own statement to police that he was
defending himself. There was a “history of animosity” between the Petitioner and the
victim, which supported claims of both self-defense and voluntary manslaughter;
however, the court found that it was reasonable to mainly focus on self-defense. The
post-conviction court also found that the Petitioner failed to establish prejudice with
respect to his claims that trial counsel did not adequately communicate with him or
pursue a reasonable trial strategy.

        The court found that trial counsel was persistent in her pursuit of potential
witnesses, although she was ultimately unable to locate Fun Fun and Kiki, whom the
Petitioner had specifically asked her to find. The court pointed out that the Petitioner had
failed to produce any of the witnesses at issue at the post-conviction hearing, resulting in
a failure to prove prejudice. Likewise, the court discredited the Petitioner’s claims that
trial counsel should have objected to the prosecutor’s questions on cross-examination.
The court found that “the objections would not have been sustained or were of minor
significance.”

       Finally, the post-conviction court rejected the Petitioner’s contention that trial
counsel was ineffective for failing to move for a mistrial based on juror misconduct. The
court found that the juror was actually voir dired by the trial court before he was
dismissed, and the juror assured the trial court that “he did not share with any of the other
jurors anything about his purported bias and the inability to serve as a juror on the trial.”
Therefore, there was no reason for trial counsel to request a mistrial, and the Petitioner
was not prejudiced by her failure to do so.


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                                        ANALYSIS

       On appeal, the Petitioner contends that trial counsel was ineffective in the
following ways: (1) she failed to inform the Petitioner of his preliminary hearing and
waived his right to appear without his permission; (2) she did not adequately
communicate with the Petitioner; (3) she did not consult with the Petitioner to develop a
“reasonable” trial strategy; (4) she did not fully investigate or present witnesses; (5) she
did not request a mistrial following “possible jury panel contamination”; and (6) she
failed to make appropriate objections during cross-examination of the Petitioner. The
State responds that the record supports the post-conviction court’s denial of relief.

       Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103.
Criminal defendants are constitutionally guaranteed the right to effective assistance of
counsel. Dellinger v. State, 279 S.W.3d 282, 293 (Tenn. 2009) (citing U.S. Const.
amend. VI; Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)). When a claim of ineffective
assistance of counsel is made under the Sixth Amendment to the United States
Constitution, the burden is on the petitioner to show (1) that counsel’s performance was
deficient and (2) that the deficiency was prejudicial. Strickland v. Washington, 466 U.S.
668, 687 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72 (1993).

       Deficient performance requires a showing that “counsel’s representation fell
below an objective standard of reasonableness,” despite the fact that reviewing courts
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 688-89. Prejudice requires
proof of “a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “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.” Goad v. State, 938
S.W.2d 363, 370 (Tenn. 1996). The Strickland standard has been applied to the right to
counsel under article I, section 9 of the Tennessee Constitution. State v. Melson, 772
S.W.2d 417, 419 n.2 (Tenn. 1989).

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger, 279 S.W.3d at 293-94 (Tenn. 2009). On
appeal, we are bound by the trial court’s findings of fact unless we conclude that the
evidence in the record preponderates against those findings. Fields v. State, 40 S.W.3d
450, 456 (Tenn. 2001). Additionally, “questions concerning the credibility of the
witnesses, the weight and value to be given their testimony, and the factual issues raised
by the evidence are to be resolved” by the post-conviction court. Id. Because they relate
to mixed questions of law and fact, we review the trial court’s conclusions as to whether

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counsel’s performance was deficient and whether that deficiency was prejudicial under a
de novo standard with no presumption of correctness. Id. at 457.

        The Petitioner first contends that trial counsel was ineffective because she failed to
meet with him prior to his preliminary hearing and waived his appearance at that hearing
without his permission. However, trial counsel testified that she met with him at least
twice before the hearing and that she discussed waiving his appearance based on her
belief that identity might be an issue in the case. Trial counsel explained that, at the time
of the preliminary hearing, she was not yet aware of a statement the Petitioner gave to
police wherein he admitted to shooting the victim, albeit in self-defense. The post-
conviction court accredited trial counsel’s testimony in this respect and found that the
waiver of appearance was a reasonable strategic decision. It is well-established that, in
post-conviction proceedings, “we should defer to trial strategy or tactical choices if they
are informed ones based upon adequate preparation.” Hellard v. State, 629 S.W.2d 4, 9
(Tenn. 1982). The evidence reflects that trial counsel made a reasonable strategic
decision based on the information she had at the time of the preliminary hearing, and the
Petitioner is not entitled to relief on this issue.

       Next, the Petitioner contends that trial counsel failed to adequately communicate
with him. In the Petitioner’s estimation, trial counsel met with him once every other
month in the year leading up to his trial. According to trial counsel, she met with the
Petitioner over thirty times during that same period. The post-conviction court concluded
that, even taking the Petitioner’s estimate of meetings as true, the number of meetings
was appropriate. Indeed, regardless of the number of actual meetings, the Petitioner
admitted that trial counsel discussed the facts of his case with him two to three times and
that she provided him with all of the discovery materials. Also, she talked with the
Petitioner about his statement to police and witness statements. We agree that,
irrespective of the specific number of meetings between trial counsel and the Petitioner,
the substance of the meetings included a thorough discussion of the Petitioner’s case.
Therefore, the Petitioner has not proven that trial counsel was ineffective in this respect.

        Relatedly, trial counsel also testified that she discussed proceeding on a claim of
self-defense with the Petitioner, and he never indicated that he would have preferred a
different defense. Trial counsel admitted that prevailing on a theory of self-defense
would be difficult, but she chose to proceed with that defense based on the Petitioner’s
statement to police. Also, there was evidence that there was an ongoing dispute between
the Petitioner and the victim. In her closing statement, trial counsel asked the jury to
convict the Petitioner of the lesser included charge of voluntary manslaughter in the event
it rejected the self-defense claim. Trial counsel’s testimony reflects that she made a
reasonable strategic decision regarding which defense to pursue based on the evidence as
a whole. Accordingly, the Petitioner has not proven that he was prejudiced by trial
counsel’s decision to pursue a self-defense claim.


                                             -8-
       With respect to the Petitioner’s claim that trial counsel was ineffective for failing
to locate and interview witnesses, none of these potential witnesses testified at the
evidentiary hearing. We have long held that when a petitioner claims that counsel was
ineffective for failing to discover, interview or present witnesses, “these witnesses should
be presented by the Petitioner at the evidentiary hearing.” Black v. State, 794 S.W2d
752, 757 (Tenn. Crim. App. 1990). This is the only way that the Petitioner can establish
that failure “to call the witness to the stand resulted in the denial of critical evidence
which inured to the prejudice of the Petitioner.” Id. Because the Petitioner failed to
adhere to this imperative, he has failed to establish that he was prejudiced.

       Next, the Petitioner asserts that trial counsel should have requested a mistrial
based on possible jury contamination after one of the jurors asked to be excused based on
a conflict. Determining whether to request a mistrial is a strategic decision and
considerable deference is given to trial counsel when analyzing the effectiveness of
counsel’s assistance regarding trial strategies. See Wiley v. State, 183 S.W.3d 317, 331-
32 (Tenn. 2006); see also Wiggins v. Smith, 539 U.S. 510, 521-22 (2003). The post-
conviction court reviewed the trial record and found that the juror was voir dired prior to
being dismissed and that the trial court believed that the juror had not discussed the case
or his conflict with the rest of the jury panel. Further, he was immediately released from
jury service. Trial counsel testified that she did not request a mistrial because the juror
was excused before the presentation of any proof and because there was no reason to
believe that the dismissed juror influenced other members of the jury. Under these
circumstances, trial counsel was not ineffective for failing to request a mistrial. The
Petitioner is not entitled to relief on this issue.

       Finally, the Petitioner alleges that trial counsel was ineffective for failing to make
any objections during cross-examination of the Petitioner. At the evidentiary hearing, the
Petitioner questioned trial counsel about why she did not object to the prosecutor’s use of
the word “murder” in a question posed to the Petitioner. Trial counsel replied that it did
not occur to her to object. She further explained that, generally, she did not make
objections during the Petitioner’s cross-examination because she believed that he was
doing a good job. Although we agree that utilizing the word “murder” could undermine a
claim of self-defense, we fail to see how this fleeting reference, and counsel’s failure to
object to it, prejudiced the outcome of trial. The Petitioner admitted to shooting the
victim, and his claim that he was defending himself had already been greatly undermined
by eyewitness accounts and evidence that the victim was unarmed. The Petitioner has
pointed to no other specific question that he believes trial counsel should have objected
to. This issue is without merit.




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                                 CONCLUSION

      Based on the foregoing and the record as a whole, the judgment of the post-
conviction court is affirmed.

                                             _________________________________

                                             D. KELLY THOMAS, JR., JUDGE




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