IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

September 3, 2014 Session

TIMOTHY A. BAXTER v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-13-193 Roy B. Morgan, Jr., Judge

No. W2013-02427-CCA-R3-PC - Filed November 26, 2014

A Madison County jury found the Petitioner, Timothy A. Baxter, guilty of aggravated assault,

and the trial court sentenced him to a twelve-year sentence in the Tennessee Department of

Correction. The Petitioner appealed, and this Court affirmed the conviction in State v.

Timothy A. Baxter, No. W2012-00361-CCA-R3-CD, 2013 WL 1197867 (Tenn. Crim. App.,

at Jackson, March 25, 2013), perm. app. denied (Tenn. June 13, 2013). The Petitioner filed

a petition for post-conviction relief, pro se, which he later amended with the assistance of

counsel. The Petitionersubsequently filed a motion requesting that the post-conviction judge

recuse himself. The post-conviction court held an evidentiary hearing on the motion to

recuse and the petition for post-conviction relief, after which it denied both. On appeal, the

Petitioner contends that the post-conviction court erred when it denied his post-conviction

petition because he received the ineffective assistance of counsel at trial, and he further

contends that the post-conviction court erred when it denied his motion to recuse because

there was a reasonable basis for questioning the post-conviction judge’s impartiality. After

a thorough review of the record and applicable law, we affirm the post-conviction court’s

judgments.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which ROGER A. PAGE

and ROBERT L. HOLLOWAY, JR., JJ., joined.

Joshua B. Dougan, Jackson, Tennessee, for the appellant, Timothy A. Baxter.

Herbert E. Slatery, III, Attorney General and Reporter; J. Ross Dyer, Senior Counsel; James

G. Woodall, District Attorney General, Alfred L. Earls, Assistant District Attorney General,

for the appellee, State of Tennessee.
OPINION

I. Facts

A. Trial

This case arises from the Petitioner’s assault of the victim, Richard Upright, by

pushing him to the ground in an Exxon station parking lot. Based on this conduct, a Madison

County grand jury indicted the Petitioner for aggravated assault. On direct appeal, this Court

summarized the underlying facts of the case as follows:

The victim, Richard Upright, testified that he was seventy-three years

old at the time of trial. He recalled driving south on Highway 45 leaving

Jackson, Tennessee, on December 8, 2010, when a car drove past him “like a

maniac in the suicide lane,” referring to the center lane of an undivided

highway. The victim continued driving and soon thereafter noticed that the

speeding car was behind him again. The victim observed that the driver of the

car, who he later learned was [the Petitioner], was again attempting to pass

him. The victim was traveling in the left lane. At this point on the road, there

was a grass median. He stated that it appeared to him that [the Petitioner] was

attempting to pass traffic by driving on the grass. The victim testified:

He pulled over and he was gonna [sic] pass me down the

median in the grass, is what it looked like in the mirror. And I

had other cars ahead of me and behind me, and when he saw he

couldn’t make it, he pulled back on the road, and then he pulled

over on the shoulder, blacktop shoulder. When he pulled over

there, he passed everything on the wrong side of traffic on the

shoulder. He passed by two or three cars, and I mean crazy like.

Then he come [sic]-worked his way in front of me and he

slammed the brakes on so they’d run into him, and about that

time I got worried.

. . . .

The victim’s passenger, Mary Thomas, used her cellular telephone to

call 9-1-1. The victim noted that [the Petitioner] turned off the highway and

onto a “side road” toward Henderson, so he pulled over at an Exxon gas

station in Pinson to allow Ms. Thomas to complete the call. When the victim

pulled into the parking lot, a pick-up truck with two men inside pulled up

beside him. One of the men had witnessed the episode involving [the

2
Petitioner] and asked the victim if he was okay. As the victim was speaking

with the man, [the Petitioner] pulled in behind them. [The Petitioner] stated,

“I don’t care if you are an old man. I’ll hit you anyway.” The victim

responded, “Well[,] I didn’t do nothing [sic].” The victim observed that [the

Petitioner] “looked like he was on something, alcohol or drugs.” The victim

walked around [the Petitioner’s] car to record the vehicle’s license number.

When he reached the rear of the car, [the Petitioner] “shoved” him to the

ground. The victim heard “crunching” sounds when he fell. [The Petitioner]

entered his vehicle and fled the scene.

The victim testified that when he fell, he could not get up and was

“doubled up.” He described the pain as “killing pain.” He testified, “I don’t

care if it’s 1 to 100 or 1 to 10; it’s maximum. The pain was maximum in my

shoulder and . . . my hip.” When asked if his pain was extreme, he further

stated that the pain was “more than [he could] handle.”

A police officer arrived and asked the victim if he wanted to be

transported to the hospital in an ambulance. The victim declined and drove

himself to his doctor’s office. His treating physician was not in the office, so

the victim returned the following day to consult with his personal physician.

His doctor ordered x-rays and referred him to another physician, who referred

him to the hospital.

When the victim arrived at the hospital, a doctor administered a nerve

block. The victim stated that he spent four or five days in the hospital. At the

time of trial, more than ten months after the incident, the victim was still under

medical care for the pain in his neck and shoulder resulting from his being

knocked to the ground. He testified that the pain was still “unbearable.” He

initially missed two months of work as a truck driver because the pain was so

severe. He returned to work, notwithstanding the pain, but had to quit his job

because the pain worsened over time. The victim testified that the pain was

primarily located in his shoulders, back, neck, and hips.

On cross-examination, the victim acknowledged that he eventually

stood up on his own after [the Petitioner] knocked him down. He was able to

speak with some people who had gathered at the gas station. When the victim

left the gas station, he immediately drove to his doctor’s office, which was a

walk-in clinic. The victim admitted that prior to this occasion, he was taking

blood pressure medication.

3
Sergeant Terry Stewart with the Madison County Sheriff’s Department

testified that he was assigned to investigate the victim’s case. During the

course of the investigation, he developed [the Petitioner] as a suspect and

determined that the car he had been driving was registered to [the Petitioner’s]

girlfriend, Jennifer Rowan. Sergeant Stewart reviewed a statement given by

[the Petitioner] wherein he recounted the event but omitted any reference to his

knocking the victim to the ground.

James Bunny testified that he was driving on Highway 45 South and

witnessed [the Petitioner’s] vehicle attempting to “ram” the back of the

victim’s vehicle. He called 9-1-1. Mr. Bunny observed [the Petitioner’s]

vehicle pull in front of the victim’s car, and [the Petitioner] “slammed on his

brakes a couple of times[,] trying to stop [the victim], apparently. . . .” He saw

the victim pull into the parking lot of the gas station. Mr. Bunny turned

around, stopped on the opposite side of the road, and saw [the Petitioner] pull

into the parking lot, as well. He observed that [the Petitioner] looked “very

irate” and was pointing his finger at the victim. Mr. Bunny witnessed [the

Petitioner] either push or hit the victim and knock him to the ground. [The

Petitioner] then left the scene in his vehicle.

Jean Bunny testified that she, too, witnessed the victim’s car pass their

vehicle, followed by [the Petitioner’s] car, which seemed to be trying to

“bump” the victim’s car. She saw [the Petitioner’s] car pass the victim’s car,

and [the Petitioner] applied his brakes to force the victim to collide with him.

Ms. Bunny testified that after the two cars pulled into the gas station parking

lot, they turned their vehicle around and returned to the scene because they

“knew it looked like road rage.” She observed [the Petitioner] “shaking his

finger” at the victim, and the victim “started to put his hand up” to push [the

Petitioner’s] finger away. [The Petitioner] then pushed the victim to the

ground and drove away. Ms. Bunny testified that she and her husband drove

to the gas station to check on the victim. She recounted that the victim was

shaken up and that he stated that his shoulder hurt “quite severely.”

Baxter, 2013 WL 1197867, at *1-3.

B. Post-Conviction Hearing

4
On July 15, 2013, the Petitioner filed pro se a petition for post-conviction relief

alleging multiple grounds for relief, particularly that he had received the ineffective

assistance of counsel when his trial attorney, (“Counsel”) failed to introduce the victim’s

medical records. On August 30, 2013, with the assistance of an appointed attorney, the

1

Petitioner filed an amended petition, wherein he contended that he had received the

ineffective assistance of counsel because Counsel had filed a motion to exclude the victim’s

medical records, when, the Petitioner contended, Counsel should have used the records to

impeach the victim regarding the victim’s testimony about the level of pain he suffered after

being pushed by the Petitioner. The Petitioner further argued that Counsel’s failure to

impeach the victim’s testimony with the medical records prejudiced the Petitioner because,

as no other evidence of the victim’s pain level was introduced, impeachment of the victim’s

testimony presented a reasonable probability that the jury would have found the victim not

credible.

On October 1, 2013, the Petitioner filed a motion requesting that the post-conviction

judge recuse himself from the case because the judge had presided over the case during the

trial and because the Petitioner had filed complaints against the judge in the past. Based on

“this prior litigation,” the Petitioner alleged that a question was raised about whether the

judge could be impartial or “act with absolute objectivity. . . .”

On October 3, 2013, the post-conviction court held a hearing on the motion to recuse

and the petition for post-conviction relief. Concerning the motion to recuse, the postconviction court made the following statement:

Okay. The history of the case, I won’t go over the history other than it

started out in this court in this particular case as a[n] aggravated assault and

went to jury trial. The [Petitioner] was found guilty by a jury of his peers. I

emphasize it was not a bench trial, it was a jury trial. The case was carried up

on appeal with the assistance of counsel, and the Court of Criminal Appeals

affirmed the case in all ways and I think the petition was denied as far as [the]

Tennessee Supreme Court. But again, we’re here today – although there’s

been a lot of things in between, we’re here on the pro se petition at the time it

was initially filed regarding post-conviction, and it is a timely filed petition.

When I reviewed the Motion to Recuse, [], there are three factual bases

set forth and that’s, the Petitioner in this case has filed a complaint against me

as Judge back in June of 2005 alleging I had deprived him of constitutional

The Petitioner’s remaining arguments in his original post-conviction petition are not the subject 1

of this appeal.

5
rights, including a right to an evidentiary hearing, and then the second

allegation factually is that there was a second complaint filed against [me] the

Judge, . . ., February of 2012 alleging illegal detention, violation of due

process, improperly allowing a lay witness to testify as an expert, and then,

[third], there was a civil suit filed in the U.S. District Court September 2012.

. . . .

The post-conviction court noted that those complaints made by the Petitioner, as well

as the civil suit against the District Attorney General’s office, had been resolved, and that the

Petitioner had no pending matters before the court. The post-conviction court also noted that

the Petitioner’s direct appeal of his conviction was complete and had been affirmed on

appeal.

The post-conviction court went on to state that it had “no personal interest” in the

Petitioner’s case, that the court had neither “actual bias” nor was there “any appearance of

bias,” and that there was nothing in the record to indicate otherwise. The post-conviction

court stated that “anybody [] who comes in this courtroom [knows] that they’re getting a fair

and impartial decision[.]” The post-conviction court denied the Petitioner’s motion to recuse.

The post-conviction court subsequently held a hearing on the petition for postconviction relief, wherein the following evidence was presented: Counsel testified that he

was retained to represent the Petitioner at his trial for aggravated assault. He said that he had

previously worked on “hundreds” of criminal trials. Counsel recalled that the facts

surrounding the case involved a “road rage incident” when the Petitioner followed the victim

to a gas station after getting off the highway and pushed the victim down on the ground

causing injury. Counsel stated that, according to the medical records, the victim suffered

three broken ribs, a dislocated shoulder, and other soreness.

Counsel testified that he spent “a whole, whole bunch of time” preparing for trial. He

said he “interviewed multiple witnesses; [h]e went to the scene multiple times.” Counsel

recalled visiting the Petitioner in jail multiple times, reviewing videotape, filing motions to

exclude evidence, and emailing the Petitioner’s girlfriend in preparation for trial. Counsel

agreed that he was the “lead attorney” on the day of trial but stated that two other attorneys

assisted him during preparation. Counsel stated that the three attorneys interviewed all of the

State’s listed witnesses. He recalled that he obtained a background check on the victim to

determine his prior criminal history but stated that the victim declined to be interviewed.

Counsel testified that he obtained the victim’s medical records once it became clear

that serious bodily injury was part of the indicted offense. The medical records were

obtained several months before the Petitioner’s trial, and Counsel stated that he and four

6
other attorneys reviewed the records. Counsel recalled that he received notice from the State

one day before trial that the State would seek to introduce the victim’s medical records.

Regarding introduction of the medical records, Counsel stated that, “we had reviewed them

and we knew what all was in them, so obviously we wanted to keep them out. When you

look at [the records] as a whole, the medical records definitely hurt [the Petitioner], hurt more

than it helped.” When asked why the medical records would “hurt” the Petitioner’s case,

Counsel stated that it was the victim’s rating of his pain level as a ten in the emergency room,

the injuries to his ribs and shoulder, and the pain medication he was prescribed that would

“hurt [the Petitioner’s] case tremendously.” Counsel agreed that the entire medical record

was excluded and that the State’s only proof of serious bodily injury was the victim’s

testimony.

Counsel testified that, because the medical records were excluded, the victim could

not testify about his injuries specifically and that the victim could only testify about his level

of pain, which, at trial, he stated was “extreme.” Counsel stated that he “considered” using

the medical records to impeach the victim’s testimony but that he decided not to introduce

them to prevent the State from bolstering the victim’s testimony with the medical proof

contained in the records.

Counsel recalled reviewing the medical records and finding a statement from the

victim that his pain level was a “10 out of 10.” He did not recall a statement by the victim

that his pain level was a “3 out of 10.” Counsel stated that the records on the whole,

particularly the ones from the first few days after the incident, were “very bad” for the

Petitioner’s case.

Counsel agreed that the Petitioner asked him to file a motion requesting that the trial

judge recuse himself, but he stated that it was the Petitioner’s ultimate decision that the

motion not be filed.

On cross-examination, Counsel agreed that it was his “trial strategy” to exclude the

“scientific” evidence related to the victim’s injuries, leaving the State with only the victim’s

testimony as proof of his injuries and pain level. Counsel recalled that the victim testified

at trial that his pain was a “killing pain” and “the maximum[.]” He agreed that the victim

testified that he had a “nerve block[.]” Counsel also agreed that, at trial, he challenged the

constitutionality of the statutory definition of “serious bodily injury” on the grounds that it

was vague. Counsel stated that, had he questioned the victim about any portion of the

medical records, the entire record would have been admitted into evidence, which was

contrary to his trial strategy of preventing the jury from hearing the medical proof of the

victim’s broken ribs, dislocated shoulder, and pain medication. Counsel stated that the

Petitioner “was in agreement” with his trial strategy of excluding the medical proof.

7
The Petitioner testified that he did not know whether Counsel actually filed a motion

to recuse at his request. The Petitioner stated that the grounds for the motion was a conflict

of interest because of the Petitioner’s complaints against the trial judge. The Petitioner stated

that he had no knowledge of Counsel’s interviewing witnesses. He stated that he felt that

there was information beneficial to his case contained in the medical records and that he

never met with Counsel to review the records. The Petitioner testified that the medical

records indicated that the victim had shortness of breath, consistent with his lung disease and

not his injuries. The Petitioner stated that he felt he had a strong case of self-defense and that

Counsel failed to pursue it.

On cross-examination, the Petitioner agreed that he shoved the victim. He agreed that

he previously told investigators that the victim tripped and fell, but he stated that, when he

gave that statement, he did not remember what had happened. The Petitioner reiterated that

Counsel never showed him the victim’s medical records and that it was Counsel’s decision

to exclude the records at trial. The Petitioner agreed that he confronted the victim at the gas

station, and there were four or five people watching. He stated that he shoved the victim

because the victim slapped him, but he stated that he did not tell investigators about the slap

because he did not remember it at the time.

Mark Donahoe testified that he was an attorney practicing in criminal defense and that

he worked on the Petitioner’s case. He was qualified as an expert in the field of criminal law.

He stated that several lawyers were involved in the preparation of the Petitioner’s case and

that several trial strategies were considered. Mr. Donahoe stated that the Petitioner was in

agreement with the trial strategy that was selected. He stated that the strategy was to exclude

everything that was not going to be helpful to the Petitioner’s case, particularly the medical

records, because the records supported the State’s theory that the Defendant inflicted serious

bodily injury. For the same reason, the attorneys sought to exclude the video recording of

the incident. They were successful in excluding both pieces of evidence, thereby limiting the

victim’s testimony about his injuries.

Mr. Donahoe stated that there were “numerous” consultations with the Petitioner. He

recalled that the Petitioner was potentially facing a ten-year sentence or longer and that the

attorneys encouraged him to plead guilty when the State offered him a plea deal for a six-year

sentence. Mr. Donahoe recalled that the Petitioner originally agreed to plead guilty but later

refused the State’s offer unless he would be released from jail on bond. Mr. Donahoe

testified that, based on his experience, the trial strategy implemented was “the best defense

possible in this case.”

After considering the evidence, the post-conviction court denied the Petitioner’s

petition for post-conviction relief. In its order, the post-conviction court made the following

8
statements relevant to the issue on appeal:

The eighteenth issue stating that trial counsel was ineffective when

filing a pretrial motion to limit or suppress the victim’s medical records clearly

relates to strategy. [Post-conviction counsel] for the [P]etitioner made the

argument that [Counsel] should have reconsidered this strategy when the

victim testified. This clearly demonstrates that the suppression or limitation

of the medical records was a matter of trial strategy. Mark Donahoe qualified

before this Court in the area of criminal law having twenty-nine years

experience testified that the suppression or limitation of the medical records

was a common tactic or strategy employed in criminal cases. The Court cannot

judge this strategy based upon hindsight. This is a strategy [decision] to be

made prior to trial without the guarantee of the outcome and does not

constitute ineffective assistance of counsel.

The post-conviction court further concluded:

The Court finds that as to each of the issues raised in the petition and

amended petition that the [P]etitioner has failed to prove by clear and

convincing evidence that [C]ounsel was in any manner ineffective or that [the

Petitioner] was in any manner denied any right or privilege guaranteed under

the constitution of the State of Tennessee o[r] the Constitution of the United

States. In this particular case the [P]etitioner had the benefit of an entire firm

not only the services of [Counsel]. Counsel obtained pretrial discovery, filed

all relevant motions and interviewed or attempted to interview all witnesses

known to the defense and the State. Counsel was successful on all pre trial

motions. Counsel discussed all evidence, motions and strategy at length with

the [P]etitioner. [Counsel] obtained a favorable plea deal which was rejected

by the [Petitioner]. The defense was based upon sound and accepted trial

strategy without the guarantee of outcomes which cannot be done in criminal

matters. The Court cannot judge the performance based upon the outcome and

hindsight.

It is from this judgment that the Petitioner now appeals.

II. Analysis

A. Ineffective Assistance of Counsel

9
On appeal, the Petitioner contends that the post-conviction court erred when it denied

his petition because he received the ineffective assistance of counsel at trial when Counsel

failed to use the victim’s medical records to impeach the victim’s testimony about his level

of physical pain. The State responds that the proof presented at the post-conviction hearing

made it clear that Counsel’s representation of the Petitioner was well within the range of

competence demanded of attorneys, and furthermore, the Petitioner has not established that

Counsel’s decision not to introduce the records changed the outcome of the case. On that

basis, the State argues that the trial court properly denied the petition. We agree with the

State.

In order to obtain post-conviction relief, a petitioner must show that his or her

conviction orsentence is void or voidable because of the abridgment of a constitutional right.

T.C.A. § 40-30-103 (2006). The petitioner bears the burden of proving factual allegations

in the petition for post-conviction relief by clear and convincing evidence. T.C.A. § 40-30-

110(f) (2006). The post-conviction court’s findings of fact are conclusive on appeal unless

the evidence preponderates against it. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001).

Upon review, this Court will not re-weigh or re-evaluate the evidence below; all questions

concerning the credibility of witnesses, the weight and value to be given their testimony and

the factual issues raised by the evidence are to be resolved by the trial judge, not the appellate

courts. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999); Henley v. State, 960 S.W.2d 572,

578-79 (Tenn. 1997). A post-conviction court’s conclusions of law, however, are subject to

a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

The right of a criminally accused to representation is guaranteed by both the Sixth

Amendment to the United States Constitution and article I, section 9 of the Tennessee

Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6 S.W.3d

453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The following

two-prong test directs a court’s evaluation of a claim for ineffectiveness:

First, the [petitioner] must show that counsel’s performance was

deficient. This requires showing that counsel made errors so serious that

counsel was not functioning as the “counsel” guaranteed the [petitioner] by the

Sixth Amendment. Second, the [petitioner] must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose

result is reliable. Unless a [petitioner] makes both showings, it cannot be said

that the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417, 419

10
(Tenn. 1989).

In reviewing a claim of ineffective assistance of counsel, this Court must determine

whether the advice given or services rendered by the attorney are within the range of

competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail

on a claim of ineffective assistance of counsel, a petitioner must show that “counsel’s

representation fell below an objective standard of reasonableness.” House v. State, 44

S.W.3d 508, 515 (Tenn. 2001) (citing Strickland, 466 U.S. at 688).

When evaluating an ineffective assistance of counsel claim, the reviewing court

should judge the attorney’s performance within the context of the case as a whole, taking into

account all relevant circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753

S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evaluate the

questionable conduct from the attorney’s perspective at the time. Strickland, 466 U.S. at 690;

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be

highly deferential and “should indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.” Burns, 6 S.W.3d at 462.

Finally, we note that a defendant in a criminal case is not entitled to perfect representation,

only constitutionally adequate representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn.

Crim. App. 1996). In other words, “in considering claims of ineffective assistance of

counsel, ‘we address not what is prudent or appropriate, but only what is constitutionally

compelled.’” Burger v. Kemp, 483 U.S. 776, 794 (1987) (quoting United States v. Cronic,

466 U.S. 648, 665 n.38 (1984)). Counsel should not be deemed to have been ineffective

merely because a different procedure or strategy might have produced a different result.

Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980). “The fact that a

particular strategy or tactic failed or hurt the defense does not, standing alone, establish

unreasonable representation. However, deference to matters of strategy and tactical choices

applies only if the choices are informed ones based upon adequate preparation.” House, 44

S.W.3d at 515 (quoting Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)).

If the petitioner shows that counsel’s representation fell below a reasonable standard,

then the petitioner must satisfy the prejudice prong of the Strickland test by demonstrating

“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Strickland, 466 U.S. at 694; Nichols v. State, 90

S.W.3d 576, 587 (Tenn. 2002). This reasonable probability must be “sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662,

665 (Tenn. 1994).

In the matter at hand, the post-conviction court examined Counsel’s decision to

exclude the victim’s medical records, as testified to by Counsel, Mr. Donahoe, and the

11
Petitioner. Counsel testified that he and a team of attorneys had specifically examined the

victim’s medical records as a whole and made the decision that the records were harmful to

the Petitioner’s case and, thus, should be excluded from the evidence. He testified that the

attorneys considered introducing only beneficial portions of the record but that when it

became clear that the entire record would have to be admitted, they decided that the negative

aspects of introducing the records outweighed the benefits of introduction of the records.

The post-conviction court concluded that the decision was a matter of strategy to limit the

jury’s exposure to the victim’s injuries, because, without the medical records being admitted

into evidence, the victim was prevented from testifying about any medical proof of his

injuries. This, the post-conviction court noted, was an accepted practice by criminal defense

attorneys and did not constitute ineffective assistance of counsel simply because the strategy

had not worked.

We conclude that the post-conviction court’s decision was supported by the evidence

presented at the hearing. The record shows that Counsel made an informed and deliberate

decision to exclude the medical records to limit the jury’s exposure to the medical diagnosis

about the extent of the victim’s injuries. Counsel testified that the medical records contained

information that was harmful to the Petitioner’s case and, therefore, needed to be excluded.

Counsel stated that the records would only bolster the victim’s testimony, in his opinion,

further damaging the Petitioner’s case by showing the jury the extent of the victim’s injuries.

He testified about the details contained in the medical records concerning the victim’s

injuries and hospital treatment. In furtherance of Counsel’s stated trial strategy to limit the

jury’s exposure to the nature of the victim’s injuries, Counsel also successfully excluded a

video recording of the altercation, leaving the State with only the victim’s testimony as

evidence of the assault and injuries.

Based upon this evidence, we agree that Counsel was not ineffective when he made

the decision to exclude the medical records. His decision was an informed, tactical one in

consideration of the negative information contained in the record as well as the Petitioner’s

chances at trial without the jury’s exposure to that negative information. As this Court has

previously noted, “[a]llegations of ineffective assistance of counsel relating to matters of trial

strategy or tactics do not provide a basis for post-conviction relief.” Taylor v. State, 814

S.W.2d 374, 378 (Tenn. Crim. App. 1991). Counsel has discretion in conducting the defense

and is entitled to use his best judgment in matters of trial strategy or tactics. See McBee v.

State, 655 S.W.2d 191, 193 (Tenn. Crim. App. 1983). Thus, we conclude that the Petitioner

failed to show that Counsel’s services fell outside the range of competence normally required

of attorneys in criminal trials. See Baxter, 523 S.W.2d at 936. Having failed to show the

first prong of the Strickland standard, the Petitioner has not met his burden of showing that

he is entitled to post-conviction relief based upon Counsel’s performance. Id. He is not

entitled to relief on this issue.

12
B. Recusal

The Petitioner also argues that the post-conviction court erred when it denied his

motion for recusal. The Petitioner contends that his motion should have been granted

because he had filed multiple complaints against the post-conviction judge and the “repeated

nature” of those complaints, coupled with the “comparatively serious allegations” in the

complaints, would cause an “impartial person to question whether the [post-conviction] court

could act with absolute objectivity and detachment. . . .” The State responds that the postconviction court did not abuse its discretion when it denied the Petitioner’s motion to recuse

and that, based on the post-conviction court’s statements regarding its ruling, it was clear that

the court would act impartially. The State also responds that the Petitioner failed to show any

compromise of impartiality by the post-conviction court and, therefore, the post-conviction

court properly exercised its discretion.

“The right to a fair trial before an impartial tribunal is a fundamental constitutional

right.” State v. Austin, 87 S.W.3d 447 at 470 (Tenn. 2002). “[T]he preservation of the

public’s confidence in judicial neutrality requires not only that the judge be impartial in fact,

but also that the judge be perceived to be impartial.” Kinard v. Kinard, 986 S.W.2d 220, 228

(Tenn. Ct. App. 1998). Recusal is warranted “when a person of ordinary prudence in the

judge’s position, knowing all of the facts known to the judge, would find a reasonable basis

for questioning the judge’s impartiality.” Alley v. State, 882 S.W.2d 810, 820 (Tenn. Crim.

App. 1994). “Hence, the test is ultimately an objective one since the appearance of bias is

as injurious to the integrity of the judicial system as actual bias.” Davis v. Liberty Mut. Ins.

Co., 38 S.W.3d 560, 565 (Tenn. 2001). Tennessee Supreme Court Rule 10(B)(2.06),

amended in 2012, states that this Court shall review a trial court’s decision on a motion to

recuse “on an expedited basis based upon a de novo standard of review. Tenn. Sup.Ct. R.

10(B)(2.06) (2012).

In this case, the post-conviction court heard post-conviction counsel’s request for

recusal and denied the motion. The post-conviction court stated that the basis for the

Petitioner’s motion was complaints that the Petitioner had filed in the past against the judge.

The post-conviction court noted that those complaints had been resolved and that the

Petitioner had no complaints pending against the judge. Further, all of the Petitioner’s prior

criminal matters that had been heard by the judge had been resolved on appeal. Thus, the

post-conviction court concluded that there was no appearance of bias. The post-conviction

court went on to state that it had no actual bias against the Petitioner and understood that a

judge might not always be a favorable figure with litigants but nonetheless was required to

do his job impartially and objectively.

13
Having carefully reviewed the record, it does not appear that there was a reasonable

basis to question the court’s impartiality; therefore, the Petitioner is not entitled relief.

III. Conclusion

After a thorough review of the record and the applicable law, we conclude the

post-conviction court properly denied the Petitioner’s petition for post-conviction relief. The

evidence does not preponderate against the post-conviction court’s findings that Counsel

made an informed decision to exclude the medical record. We further conclude that the postconviction court did not err when it denied the Petitioner’s motion to recuse. In accordance

with the foregoing reasoning and authorities, we affirm the judgment of the post-conviction

court.

________________________________

ROBERT W. WEDEMEYER, JUDGE

14