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

____________________________________________

THOMAS T. WOODALL, PRESIDING JUDGE