Michael George Medina v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 10, 2015

MICHAEL GEORGE MEDINA v. STATE OF TENNESSEE

Appeal from the Criminal Court for Smith County

No. 99-270 John D. Wootten, Jr., Judge

No. M2014-00561-CCA-R3-PC – Filed September 2, 2015

The Petitioner, Michael George Medina, appeals from the denial of post-conviction relief

by the Criminal Court for Smith County. He was convicted of first degree murder of his

wife and sentenced to life imprisonment in the Tennessee Department of Correction. On

appeal, the Petitioner argues that he received ineffective assistance of counsel. Upon

review, we affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the Court, in which THOMAS T.

WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

Blake Lawrence, Lebanon, Tennessee (at hearing); and Leah R. Wilson, Nashville,

Tennessee (on appeal), for the Petitioner, Michael George Medina.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior

Counsel; Tom P. Thompson, Jr., District Attorney General; and Jason Lawson, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

The Petitioner‟s conviction stems from the shooting death of the victim, Jennifer

Medina, on September 26, 1999, in their marital residence. After a jury trial, the

Petitioner was convicted as charged of first degree murder. He was subsequently

sentenced to life imprisonment. See State v. Michael George Medina, No. M2001-

02412-CCA-R3-CD, 2002 WL 31188186 (Tenn. Crim. App. Oct. 2, 2002), perm. app.

denied (Tenn. Jan. 27, 2003). In its opinion on direct appeal, this court summarized the

evidence as follows:

On September 26, 1999, Jennifer Medina was found in the home she

had shared with the [Petitioner], lying in a pool of blood with a fatal

gunshot wound to the head. The autopsy report and physical evidence

established that death was produced by a 9 mm gunshot wound, with the

gun‟s barrel touching her head when the gun was fired. The [Petitioner],

the estranged husband of the victim and present at the scene, was charged

with the homicide.

The parties were married in 1991 and had one child, who was two

years old. The child, Austin, had been diagnosed with cancer and, during

this time, was undergoing chemotherapy treatments at Vanderbilt Hospital

in Nashville, in addition to receiving intravenous medication at home. By

1999, the marriage had seriously deteriorated, and the [Petitioner] had filed

for divorce. After the divorce was filed, the victim resided with her best

friend and next-door neighbor, Ellen Newman. The [Petitioner] continued

to reside in the marital residence with his minor children from a prior

marriage. The parties agreed to a temporary order, which provided for

shared custody of Austin. The divorce action was characterized as hostile

and bitter, as were the ensuing temporary custody battles.

On August 20, 1999, an order of protection was issued against the

[Petitioner], based upon a finding of domestic abuse after the [Petitioner]

refused to comply with the terms of the temporary custody agreement. On

this occasion, the victim was thrown against a wall by the [Petitioner] and

sustained bruises and a knot on her head.

Also in August 1999, the victim contacted Crime Stoppers in

Franklin, Tennessee, and reported that the [Petitioner] had stolen a “bobcat”

loader in June 1997. She provided details of how the theft occurred, how

the [Petitioner] had repainted it and removed the serial numbers, and to

whom it was sold. The [Petitioner] was contacted by a detective, and he

claimed that the victim was manufacturing the charges because he had been

given custody of their child. The details provided by the victim were

subsequently verified by the police, and the [Petitioner] was arrested on

August 26th for the theft. The victim would have been a material witness

in the case.

After the arrangements under two joint custody orders had failed,

temporary custody of the minor child and child support were awarded to the

victim on September 10, 1999. The order provided the [Petitioner]

visitation on Monday through Thursday from 5:00 p.m. to 6:30 p.m. and

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every other weekend from Friday at 5:00 p.m. to Sunday at 5:00 p.m. The

[Petitioner] was permitted to retain possession of the marital residence, and

the victim was responsible for delivering the child to and from the

residence during the [Petitioner]‟s visitation periods.

At approximately 5:00 p.m. on the day of her death, the victim left

the Newman residence on foot to go and retrieve Austin from his father

following visitation. It was the victim‟s normal practice to remain outside

the residence when picking up her son. Before leaving, the victim told

Ellen Newman that she would be back in five minutes. She carried no

purse or bags with her.

Approximately two and one-half hours later, a 911 call was made

from the marital residence. When officers responded to the call, they found

the [Petitioner] outside with Austin in his arms. Upon entering the

residence, deputies found the victim lying on the floor with a gunshot

wound to the head. A .38 caliber revolver was found near her head and a

9mm semi-automatic handgun was found near her knee. The serial number

on the .38 revolver was removed and no identifiable fingerprints were

found on either weapon. The .38 caliber revolver was fully loaded and had

not been fired. A 9 mm shell casing was found on the floor in the kitchen

area and a 9 mm projectile was removed from the floor, where it was

embedded.

The [Petitioner] was taken into custody and subsequently gave a

statement to Tennessee Bureau of Investigation Agent Jason Locke. The

[Petitioner] stated that the victim had brought the .38 revolver with her into

the house and then refused to leave. He claimed that she wanted to talk

about reconciling. The [Petitioner] also stated that he was afraid of her as

she was hysterical at times. He stated that, after he saw her with the gun,

he retrieved his 9 mm pistol from the safe in the bedroom. He explained

that he put the gun in his back pocket so that the victim would not see it.

During this period, the victim remained in the living room of the house.

The [Petitioner] stated that an argument ensued and “she kept pointing the

gun at me. . . . I turned around and she was right in front of me. And I

couldn‟t see the gun any more, she was just too close to me, I didn‟t know

where it was, and I grabbed her and I pushed her. We hit the ground, and

all three of us hit together.” When the victim fell, he heard a gunshot. The

[Petitioner] denied shooting the victim. During the scuffle, the [Petitioner]

maintained that his pistol remained in his back pocket and he offered no

explanation as to how his pistol shot the victim.

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Several witnesses testified that the victim did not own a gun. No

one saw her entering the residence with a gun that day, including the

[Petitioner]‟s three sons from a prior marriage who were present outside the

house when she arrived. Several witnesses also testified that the victim had

no plans to reconcile with the [Petitioner]. The victim‟s father testified that

she and Austin had in fact planned to move to Illinois and live with him

after the divorce.

At trial, the State argued that the [Petitioner] had lured the victim

into the residence on this date, had shot her in the head, and then planted

the .38 pistol by her body. On April 12, 2001, the [Petitioner] was found

guilty by a jury of first-degree premeditated murder.

Michael George Medina, 2002 WL 31188186, at *1-2 (footnotes omitted).

On direct appeal, the Petitioner argued that the evidence was insufficient to

establish premeditation and that the trial court erred by forcing the Petitioner to testify

before all his witnesses had taken the stand. Id. at *3-5. This court affirmed the

Petitioner‟s conviction, and the Tennessee Supreme Court denied his application for

permission to appeal on January 27, 2003.

On September 29, 2003, the Petitioner filed a timely pro se petition for post-

conviction relief. He later filed an amended petition on November 2, 2006, with the

assistance of his second court-appointed counsel. On October 16, 2013, the Petitioner

filed a second amended petition through his fourth court-appointed counsel. The post-

conviction hearing occurred on January 10, 2014. The Petitioner, trial counsel, and TBI

Special Agent Jason Locke testified at the hearing.1

Post-Conviction Hearing. The Petitioner testified that he considered himself to

be Hispanic. He recalled that on the day of his trial, there were 127 prospective jurors

who were all Caucasian. He said that when he asked trial counsel about the lack of

minorities in the jury pool, counsel responded, “[W]ell, that‟s what we‟ve got and that‟s

all we can go with[.]” He asked for a change of venue, and counsel told him that the

judge would not grant the request. According to the Petitioner, trial counsel “just took

1

We only address the testimony from the hearing relevant to the issues that the Petitioner raised

in his appellate brief. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,

citation to authorities, or appropriate references to the record will be treated as waived in this court.”).

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control” during jury voir dire and “shut down” the Petitioner each time he asked counsel

a question.

The Petitioner also faulted trial counsel for failing to file a motion to suppress his

statement to TBI Agent Jason Locke. He testified that on the night of his wife‟s death, he

was taken to the jail where he was denied his right to counsel. When he asked for an

attorney, he was told that he was not in trouble. He said that Agent Locke continued to

interrogate him, and he was not allowed to call anyone. The Petitioner stated that he was

eventually read his Miranda rights, and he acknowledged signing a Miranda rights

waiver. He agreed that most of the interview occurred after he signed the waiver. He

also signed a consent to search form, though he testified that he “had no idea what [he]

was signing[.]” He first spoke with trial counsel about a day after he was arrested.

The Petitioner further alleged that a sander tool was improperly introduced into

evidence at trial. He said that the State used the sander to show that he removed the

serial number from one of the weapons. According to the Petitioner, the sander was

illegally obtained evidence because it was seized from a barn beyond the scope of the

search warrant. He stated that he and trial counsel never discussed excluding the sander

from evidence even though it was retrieved from his neighbor‟s property. He said that he

was surprised when the State introduced the sander into evidence at trial.

The Petitioner testified that his divorce attorney advised him to record all

conversations with his wife. He said that the tape recorder was on when his wife arrived

to pick up their son on September 26, 1999. However, his wife became very angry and

made him turn off the device. He stated that their prior argument was recorded on the

tape. The State subsequently provided a crime scene photograph of the tape and tape

recorder in discovery, but it never produced the tape itself. The Petitioner said that he

discussed this issue with trial counsel, but counsel did not file any motions asking the

State to produce the tape. He stated that trial counsel also abandoned all questioning of

Agent Locke regarding the tape at trial.

The Petitioner said that at trial, a tape recording of his 911 call was introduced as

evidence. He believed that the recording had gaps in time and content. He asserted that

the timing of the tape did not “add up” and that the missing portions supported the State‟s

theory that he had staged the crime scene. He said that the entire tape was about ten

minutes long, but it should have been nineteen minutes long based on the State‟s

assertion that he placed the 911 call at 7:41 p.m.. According to the Petitioner, trial

counsel noticed that the timing was off and even questioned Agent Locke about this issue

at the preliminary hearing. He said that Agent Locke responded, “[T]hat‟s the entire

tape. It‟s not altered. That‟s just the way it‟s made.” The Petitioner stated that the tape

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recording should have been excluded at trial because there was “no telling what else was

on there.”

The Petitioner also testified that there was a discrepancy between diagrams of the

crime scene drawn by an EMT and a TBI Special Agent and what crime scene

photographs depicted. He said that although there was never a hand towel next to his

wife‟s body, the photographs showed a towel laying beside her. He asserted that neither

of the diagrams included a towel. He alleged that the State planted the towel at the scene

to support their argument that he wiped the fingerprints off of the guns. At trial, the

Petitioner used a hand towel to wipe the sweat from his hands. He said that during his

cross-examination, the prosecutor repeatedly directed the jury‟s attention to the towel in

his hands and the towel in the crime scene photographs. He asserted that trial counsel

should have questioned the State‟s witnesses regarding tampering of the scene and the

discrepancies. The Petitioner acknowledged that EMT Mark Manning testified at trial

that the photographs were more accurate than the diagram that he drew. He also agreed

that Manning stated that the diagram did not catalog everything that was present at the

scene.

The Petitioner further stated that he had always denied firing a weapon. He said

that he and trial counsel never discussed a defense based on the theory of self-defense.

He believed that his wife‟s death was accidental. He said that he refused to testify that he

shot the gun or that he had acted in self-defense despite trial counsel‟s suggestion. He

was surprised when the issue of self-defense was raised in a jury instruction. The

Petitioner explained that he would have to testify that the gun was in his hand if he were

to claim self-defense, and he did not want to rely on this theory. He acknowledged that

judges are required by law to charge jury instructions based on the facts raised in the

case. He agreed that his statement and trial testimony asserted that both he and the victim

were armed with guns.

The Petitioner asserted that trial counsel failed to call multiple witnesses for the

defense. He said that counsel should have called TBI Special Agent Roy Copeland and

Detective Danny Williams to testify regarding the processing of the crime scene and

other issues such as the tape recorder and the gaps in the 911 call. He said that he

expected to see Detective Williams testify at trial, and he was surprised when the witness

was not there.

At the conclusion of the Petitioner‟s testimony, post-conviction counsel and the

State stipulated that the Petitioner‟s previous post-conviction counsel investigated the

racial composition of the venire and determined that at least 95 percent of the 127

prospective jurors were Caucasian. Counsel was unable to verify the ethnicities of the

remaining jurors.

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Trial counsel testified that he began representing the Petitioner after the

Petitioner‟s divorce attorney referred him to the case. He visited the Petitioner at the

Smith County Jail on the same afternoon that he received the phone call from the divorce

attorney. He could not recall whether the Petitioner had been charged with murder at that

point. His representation of the Petitioner lasted from that initial visit up to the motion

for new trial hearing. After the motion for new trial was denied, the Public Defender‟s

Office appealed the case. Trial counsel said that he no longer had any case files because

he had given them to appellate counsel. He also did not have any contact with appellate

counsel. He could not recall many specific details of the Petitioner‟s case because the

trial was about thirteen years ago, and he had tried several murder cases since then.

During trial, he did not remember the Petitioner ever expressing dissatisfaction with the

defense strategy or counsel‟s representation.

Trial counsel said that he had been practicing law for over thirty years and that he

had tried numerous cases. He said that his goal was to win in every case he tried, and his

preparation was the same whether he was retained or appointed. He felt that he had done

everything he could in the Petitioner‟s case. Counsel recalled that after the Petitioner

moved from Smith County to Illinois prior to trial, he consistently sent the Petitioner

letters about the status of the case as well as plea offers from the State. He said that the

Petitioner returned to Tennessee “numerous times” and that they would discuss the case

each time, including the trial and the evidence. It was counsel‟s practice to keep a trial

notebook with voir dire, motions, list of exhibits, witness statements, strategies for direct

and cross-examination, and notes about each witness. He would also consult with clients

during trial about what they wanted him to ask the witnesses. Counsel stated that he used

a trial notebook in the Petitioner‟s case.

Trial counsel testified that he could not recall many details about the venire or the

jury voir dire. He said that he asked the Petitioner about his ethnicity during a meeting at

his office. After the Petitioner responded that he was white, counsel treated him as

Caucasian and was not concerned about having minorities on the jury. He agreed that the

Petitioner had a darker complexion, and he recalled asking the jury pool whether they had

any issue trying a case involving a brown defendant and a Caucasian victim. He

specifically read his voir dire question into evidence:

Now, the proof is going to show that Jennifer Medina was a white

female. Mike Medina is of Hispanic origin. Will the fact that Mike

Medina -- I‟m sorry, will the fact that Mike is of Hispanic origin and brown

cause you any problem in rendering a fair trial to him and rendering a fair

verdict in this case? And then line 21, Jurors indicate by silence, then on

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line 22, question, Anybody? Line 23, If you‟ve got any problem with that

whatsoever, we need to know it now. Line 25, Jurors indicate by silence.

Counsel stated that he did not believe a change of venue would have been granted

because “there was no basis” for the request. He said that based on his experience trying

high profile cases, most people in the county were not aware of the news.

Regarding the Petitioner‟s statement to Agent Locke, trial counsel testified that

“[t]here was no need to suppress the statement” because it was exculpatory. Counsel said

that the Petitioner had consistently denied any involvement in the shooting from the night

of the offense to his testimony at trial. He stated that it was a trial strategy not to pick a

fight where it was not necessary. Trial counsel said that “there was no question” that the

Petitioner would testify at trial. He stated that the purpose of the strategy was for the

Petitioner “to tell his side of the story.”

Trial counsel did not have any recollection regarding the search warrant or the

sander that was introduced at trial. He said that it was his usual practice to review the

search warrant for its validity and to provide his clients with a copy of the warrant.

Trial counsel said he asked the Petitioner for input regarding the witnesses prior to

trial, and they discussed which witnesses might testify and what they would say. He

stated that he traveled to Smith County multiple times to interview people. He

investigated the Petitioner‟s divorce file as well as the separate theft charge in

Williamson County. He said that he “talked to a lot of people” and he thought he had

interviewed and subpoenaed every witness that the Petitioner wanted. Counsel stated that

he based his decision of whether or not to call witnesses on trial strategy because the

testimony of a prospective witness may be more harmful than helpful. When asked why

he did not subpoena the police and question them about the lack of fingerprints on the

gun, counsel responded that “[n]othing good can come of that . . . because they‟ll say,

well, you wiped them off or you destroyed them or something.” During trial, counsel

checked off every witness listed in his trial notebook that was called by the State or the

defense. He said that the Petitioner was aware of the witness list, and he did not recall

the Petitioner raising any issues or complaints about the witnesses.

With regard to the 911 tape, trial counsel stated that he listened to the recording

numerous times. He could not recall any gaps in the tape. Trial counsel further testified

that he had no recollection of the discrepancy of a towel that was depicted in photographs

but not in drawings of the crime scene. According to counsel, the Petitioner‟s case did

not involve self-defense “but it was similar enough to a self-defense case where he has to

take the stand and tell what happened[.]”

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After the close of the Petitioner‟s proof, the State introduced multiple official

documents into evidence dating from before the Petitioner‟s trial in which the Petitioner

asserted that his race was “Caucasian” or “White.” The exhibits included the Petitioner‟s

1997 Wilson County divorce filings, his 1999 Smith County divorce filings, his

application for a handgun permit with the Department of Safety, and multiple

applications for a driver‟s license.

The State also called TBI Special Agent Jason Locke. Agent Locke testified that

he was the lead investigator in this case. He met with the Petitioner on the night of the

victim‟s death and first obtained written consent to search the crime scene. Next, Agent

Locke went over the Miranda waiver form with the Petitioner, and he began to take an

initial statement after the form was signed. According to Agent Locke‟s report of the

first interview, the consent to search form was signed at 9:54 p.m. and the Miranda

waiver was signed at 10:05 p.m. The Petitioner‟s interview began at 10:05 p.m. and

lasted a total of one hour and thirty-five minutes. Agent Locke said that the Petitioner

was “very cooperative” and readily provided information. He stated that the Petitioner

never asked for a lawyer.

Agent Locke stated that during the interview, the Petitioner discussed his marital

issues with the victim and that he had recorded some conversations. However, the

Petitioner did not mention recording any conversations on the night of the shooting.

Regarding the processing of the crime scene that night, Agent Locke noted that the tape

recorder was photographed but not collected as evidence, which indicated that there was

nothing of evidentiary value in the item. Agent Locke confirmed that law enforcement

never seized a tape recorder or a cassette tape as evidence after executing the search

warrant in October 1999.

Agent Locke said that he was present during the execution of the search warrant at

the Petitioner‟s property. A copy of the search warrant and a list of recovered items were

introduced into evidence. The warrant reflected that law enforcement sought to find,

among other things, evidence of “metal, files, grinders, or other tools which could be

used to remove serial numbers from metal objects[.]” Agent Locke said that he

recovered a Milwaukee heavy duty sander as a result of the search.

Agent Locke testified that he had twenty-six years of experience in law

enforcement and that he had listened to many 911 calls. He explained that it was

common for 911 recordings “to have many starts and stops and intermittent pauses”

because the calls are recorded on separate tracks, and there are often many things

occurring simultaneously. For instance, an operator may have a caller on the line while

also dispatching law enforcement at the same time, and both tracks are recorded through

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two separate systems. Meanwhile, another 911 call may come into the call center, and it

is also recorded.

At the conclusion of the hearing, the post-conviction court made oral findings of

fact and conclusions of law and denied relief on all claims. The court specifically found

that the Petitioner failed to carry his burden of proof in demonstrating prejudice with

regard to his claims. On February 12, 2014, the court entered a written order denying

post-conviction relief.2 The Petitioner filed a timely notice of appeal.

ANALYSIS

On appeal, the Petitioner argues that the post-conviction court erred in denying his

petition for relief because trial counsel rendered ineffective assistance of counsel.

Specifically, the Petitioner contends that trial counsel was ineffective because counsel

failed to: (1) challenge the racial composition of the jury venire or request a change of

venue; (2) file a motion to suppress his statement to Agent Locke; (3) challenge the

admission of the sander; (4) subpoena certain witnesses; (5) seek to introduce the tape

recorder as evidence at trial; (6) address the discrepancy between the towel depicted in

the crime scene photographs and the lack of a towel in the diagrams; (7) object to the

gaps in the 911 recording; and (8) oppose the trial court‟s self-defense jury instruction.

The State responds that the post-conviction court properly denied relief because the

Petitioner failed to establish that he received ineffective assistance of counsel. We agree

with the State.

Post-conviction relief is only warranted when a petitioner establishes that his or

her conviction or sentence is void or voidable because of an abridgement of a

constitutional right. T.C.A. § 40-30-103. The Tennessee Supreme Court has held:

A post-conviction court‟s findings of fact are conclusive on appeal

unless the evidence preponderates otherwise. When reviewing factual

issues, the appellate court will not re-weigh or re-evaluate the evidence;

moreover, factual questions involving the credibility of witnesses or the

weight of their testimony are matters for the trial court to resolve. The

appellate court‟s review of a legal issue, or of a mixed question of law or

2

In its order, the post-conviction court offered a detailed explanation of the unusual procedural

posture in the Petitioner‟s case resulting in a nearly thirteen-year delay from the conviction in April 2001

to the post-conviction hearing in January 2014. Specifically, the court found that “all delays primarily lay

with the [P]etitioner due to his numerous pro se filings, his personal conflicts with his multiple attorneys,

and his unusual and extraordinary applications for relief with other courts of record and the appellate

courts of this State.”

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fact such as a claim of ineffective assistance of counsel, is de novo with no

presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal citations and quotation

marks omitted); see Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Frazier v. State,

303 S.W.3d 674, 679 (Tenn. 2010). A post-conviction petitioner has the burden of

proving the factual allegations by clear and convincing evidence. T.C.A. § 40-30-110(f);

Tenn. Sup. Ct. R. 28, § 8(D)(1); Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.

2009). Evidence is considered clear and convincing when there is no serious or

substantial doubt about the accuracy of the conclusions drawn from it. Lane v. State, 316

S.W.3d 555, 562 (Tenn. 2010); Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn. 2009);

Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998).

Vaughn further repeated well-settled principles applicable to claims of ineffective

assistance of counsel:

The right of a person accused of a crime to representation by counsel

is guaranteed by both the Sixth Amendment to the United States

Constitution and article I, section 9, of the Tennessee Constitution. Both

the United States Supreme Court and this Court have recognized that this

right to representation encompasses the right to reasonably effective

assistance, that is, within the range of competence demanded of attorneys in

criminal cases.

Vaughn, 202 S.W.3d at 116 (internal quotation marks and citations omitted).

In order to prevail on an ineffective assistance of counsel claim, the petitioner

must establish that (1) his lawyer‟s performance was deficient and (2) the deficient

performance prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Baxter v. Rose,

523 S.W.2d 930, 936 (Tenn. 1975); Strickland v. Washington, 466 U.S. 668, 687 (1984)).

“[A] failure to prove either deficiency or prejudice provides a sufficient basis to deny

relief on the ineffective assistance claim. Indeed, a court need not address the

components in any particular order or even address both if the [petitioner] makes an

insufficient showing of one component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn.

1996) (citing Strickland, 466 U.S. at 697).

A petitioner successfully demonstrates deficient performance when the petitioner

establishes that his attorney‟s conduct fell “below an objective standard of reasonableness

under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S. at 688;

Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the

petitioner establishes “„a reasonable probability that, but for counsel‟s unprofessional

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errors, the result of the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome.‟” Id. at 370 (quoting

Strickland, 466 U.S. at 694).

“In evaluating an attorney‟s performance, a 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.” State v. Burns, 6 S.W.3d 453, 462

(Tenn. 1999) (citing Strickland, 466 U.S. at 689). Moreover, “[n]o particular set of

detailed rules for counsel‟s conduct can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range of legitimate decisions regarding

how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89. However,

this “„deference to matters of strategy and tactical choices applies only if the choices are

informed ones based upon adequate preparation.‟” House v. State, 44 S.W.3d 508, 515

(Tenn. 2001) (quoting Goad, 938 S.W.2d at 369).

As a preliminary matter, we note that although post-conviction counsel requested

that a copy of the trial record be included in the record on appeal, it was not included.

Because our review of the trial was necessary to determine whether the Petitioner was

entitled to post-conviction relief, we have taken judicial notice of the record from the

Petitioner‟s direct appeal. See State ex rel. Wilkerson v. Bomar, 376 S.W.2d 451, 453

(Tenn. 1964) (concluding that this court may take judicial notice of the direct appeal

record).

I. Jury Venire. First, the Petitioner contends that trial counsel was ineffective for

failing to object to the racial composition of the venire and for failing to request a change

of venue. Specifically, the Petitioner complains that he is a Hispanic male who was

charged with the homicide of a Caucasian female, and he was convicted by a biased jury.

He argues that the outcome of trial could have been different if minorities had been

included in the jury pool. The State responds that the Petitioner failed to establish a basis

for a change of venue or that he was prejudiced during jury selection.

Both the Sixth and Fourteenth Amendments to the United States Constitution and

article I, section 9 of the Tennessee Constitution guarantee a defendant the right to a trial

by an impartial jury. “„The ultimate goal of voir dire is to ensure that jurors are

competent, unbiased and impartial.‟” Smith v. State, 357 S.W.3d 322, 347 (Tenn. 2011)

(quoting State v. Hugueley, 185 S.W.3d 356, app. 390 (Tenn. 2006)). There is no

constitutional guarantee requiring a person to be tried by a jury composed in whole or in

part of his or her own race. Harvey v. State, 749 S.W.2d 478, 481 (Tenn. Crim. App.

1987) (the mere fact that African-American petitioner was tried by twelve Caucasian

jurors did not violate any right); see also Wheeler v. State, 539 S.W.2d 812, 815 (Tenn.

Crim. App. 1976)). To establish an improper jury venire, a defendant must demonstrate:

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(1) that the group alleged to be excluded is a “distinctive” group in the

community; (2) that the representation of this group in venires from which

juries are selected is not fair and reasonable in relation to the number of

such persons in the community; and (3) that this underrepresentation is due

to systematic exclusion of the group in the jury-selection process.

State v. Hester, 324 S.W.3d 1, 39 (Tenn. 2010) (quoting Duren v. Missouri, 439 U.S.

357, 364 (1979)). A petitioner will not prevail on a claim of ineffective assistance of

counsel based on deficient voir dire absent a showing of actual bias. Smith, 357 S.W.3d

at 348 (citing Dellinger v. State, No. E2005-01485-CCA-R3-PD, 2007 WL 2428049, at

*30 (Tenn. Crim. App. Aug. 28, 2007), aff‟d, 279 S.W.3d 282 (Tenn. 2009)).

In denying relief based on this claim, the post-conviction court found that the

Petitioner failed to present any proof of a systemic exclusion in the jury selection process.

The court also found that the Petitioner failed to prove by clear and convincing evidence

that there was an abridgement of a constitutional right in either the venire or the voir dire.

The court specifically accredited the testimony of trial counsel that the Petitioner told

counsel that he was white when directly asked. It further noted that trial counsel

questioned the prospective jurors regarding whether they would have trouble rendering a

fair verdict in a case involving a brown, Hispanic defendant and a white female victim.

The post-conviction court concluded that there was no evidence in the record that any

juror was prejudiced or biased.

We have reviewed the trial transcript of the jury selection phase and agree with the

post-conviction court that the Petitioner failed to demonstrate prejudice based upon the

composition of the venire. There was no evidence presented at the post-conviction

hearing that the jury selection process in Smith County was unconstitutional. Moreover,

the Petitioner did not present proof that the outcome of trial would have been different if

there were minorities in the impaneled jury. Based on our review, we conclude that the

record does not preponderate against the post-conviction court‟s finding that the

Petitioner failed to establish either deficiency or prejudice in the jury selection process.

The Petitioner‟s assertion that trial counsel was ineffective for failing to request a

change of venue also lacks merit. A change in venue can be granted upon a showing of

undue excitement or any other cause that is likely to result in an unfair trial. See Tenn R.

Crim. P. 21. However, the failure to seek a change in venue will not establish ineffective

assistance of counsel absent a showing of prejudice. Adkins v. State, 911 S.W.2d. 334,

337 (Tenn. Crim. App. 1994). Trial counsel testified that he did not believe there was a

basis for a change of venue. The record reflects that the prospective jurors were

questioned about their knowledge of the Petitioner and the case, and the majority of them

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indicated that they had no prior exposure. We note that the Petitioner has presented no

evidence that the failure to seek a change of venue was prejudicial to his defense or that

the trial court would have granted the request. Accordingly, we conclude that trial

counsel was not ineffective for failing to challenge the racial composition of the venire or

to request a change of venue.

II. Motion to Suppress. Next, the Petitioner argues that trial counsel should

have filed a motion to suppress his statement to Agent Locke. He asserts that his

statement was illegally obtained based on the violation of his Miranda rights and his right

to counsel. The State responds that the post-conviction court properly determined that

the issue was a matter of trial strategy and that the Petitioner voluntarily waived his rights

prior to his interview.

With regard to the Petitioner‟s statement to law enforcement, the post-conviction

court found that counsel made the strategic decision not to suppress a statement that he

considered to be exculpatory. The court noted that the Petitioner had consistently stated

that the victim‟s death was accidental during his testimony at trial and on the night of the

interview. The court found counsel‟s decision to include the statement to be reasonable

given that it was arguably helpful and supported the theory of the defense. The post-

conviction court concluded that the Petitioner did not meet his burden of proof on this

claim by clear and convincing evidence.

We conclude that the Petitioner has failed to prove that trial counsel‟s performance

was deficient in this regard. Trial counsel testified that he represented the Petitioner from

the time of his arrest to the motion for new trial hearing. He stated that the Petitioner

consistently denied shooting the victim. Counsel said that there was never a question that

the Petitioner would testify at trial because he needed to tell his side of the story.

According to trial counsel, the Petitioner‟s statement to Agent Locke was consistent with

the defense theory. Even after the Petitioner moved out of the state, he and counsel met

multiple times to discuss the trial and the proof. Counsel believed that he had done

everything he could in the Petitioner‟s case, and he did not recall the Petitioner ever

complaining about the defense strategy. This court must be highly deferential to

counsel‟s performance, Burns, 6 S.W.3d at 462, and we will not second-guess the

informed tactical and strategic decisions of trial counsel. Pylant v. State, 263 S.W.3d

854, 874 (Tenn. 2008) (citing Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997)). Here,

the record reflects that trial counsel adequately prepared for trial and made an informed

strategic decision to include the Petitioner‟s prior consistent statement in the evidence.

Moreover, “„[t]he fact that a particular strategy or tactic failed or hurt the defense, does

not, standing alone, establish unreasonable representation.‟” House, 44 S.W.3d at 515

(quoting Goad, 938 S.W.2d at 369). The Petitioner has not established that trial counsel‟s

conduct fell below “an objective standard of reasonableness under prevailing professional

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norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688; Baxter, 523

S.W.2d at 936). Accordingly, he is not entitled to relief on this issue.3

III. Admission of the Sander. The Petitioner‟s next claim concerns the

introduction of the sander into evidence at trial. In his brief, he argues that because trial

counsel testified that he had no recollection regarding the sander, the post-conviction

court improperly determined that counsel provided effective assistance on this issue. The

State responds that despite counsel‟s lack of recollection of events occurring thirteen

years before, it is incumbent upon the Petitioner to prove deficient performance and

resulting prejudice. We conclude that the Petitioner has not established prejudice based

on counsel‟s alleged deficiency.

At the post-conviction hearing, the Petitioner alleged that the sander was

inadmissible as evidence at trial because it was seized from his neighbor‟s property,

which exceeded the scope of the search warrant. He testified that this illegally obtained

evidence was used at trial to support the State‟s allegation that he removed the serial

numbers from the revolver that was found at the crime scene. Trial counsel testified that

although he could not recall the sander, it was his usual practice to review the validity of

search warrants. Agent Locke testified that he recovered a Milwaukee heavy duty sander

as a result of the execution of a search warrant at the Petitioner‟s property on October 15,

1999. In rejecting this claim for relief, the post-conviction court noted in its oral findings

that the search warrant specifically authorized the recovery of evidence of tools used to

remove serial numbers. The court concluded that “there [wa]s no showing of prejudice in

this case with regard to the lack of objections or suggestions with regard to

suppression[.]”

We agree with the post-conviction court‟s conclusion that trial counsel was not

ineffective in this regard. Specifically, the Petitioner has failed to present any proof or

argument that but for counsel‟s failure to object to the admission of the sander, the

outcome of the proceeding would have been different. We note that there were fifty

exhibits introduced at trial, including the autopsy report which reflected that the cause of

the victim‟s death was a gunshot wound inflicted when the barrel was pressed to her

3

Because the Petitioner has made an insufficient showing of deficiency, we need not address the

issue of prejudice. See Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697). Nevertheless, we

note that the Petitioner failed to demonstrate prejudice from counsel‟s failure to file a motion to suppress

his statement. The record reflects that the Petitioner signed a Miranda waiver prior to providing a

statement to law enforcement. At the post-conviction hearing, the Petitioner acknowledged that the

majority of his interview was conducted after he signed the waiver. Moreover, Agent Locke testified that

the Petitioner was cooperative and voluntarily provided information during the interview. Therefore, the

Petitioner has not established a reasonable probability that the motion to suppress would have been

successful.

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head. The physical evidence also established that the victim was shot with a 9 mm pistol,

a weapon which the Petitioner admittedly possessed. Ownership of the .38 caliber

revolver could not be determined because the serial number had been removed. The

State further built its case against the Petitioner by introducing evidence of the bitter

divorce proceedings between the spouses, the fact that the victim reported the Petitioner‟s

theft to police in August 1999, and proof that the victim was awarded custody of the

couple‟s son shortly before her death. On direct examination, trial counsel asked the

Petitioner about the sander, and the Petitioner responded that he had borrowed the tool

from a friend who lived in Ashland City. The Petitioner denied using the sander to

remove the serial number from the .38 revolver. In sum, given the overwhelming

evidence of guilt and the Petitioner‟s admission that he possessed the sander, the

Petitioner has failed to show that he was prejudiced by counsel‟s decision not to object to

the evidence. Therefore, this claim is without merit.

IV. Failure to Call Witnesses. The Petitioner also argues that trial counsel was

ineffective for failing to subpoena Detective Danny Williams to testify at trial and for

failing to re-examine TBI Special Agent Roy Copeland. According to the Petitioner,

Detective Williams “played a major role in the investigation of [his] case” and should

have been called as a witness. He asserts that members of law enforcement could have

testified regarding how they processed the crime scene, including the collection of

fingerprints and the photographs taken at the scene. The State responds that the

Petitioner failed to prove either deficiency or prejudice.

Regarding trial counsel‟s failure to call several witnesses, the post-conviction

court concluded that counsel‟s performance was not deficient. The court noted that

counsel had practiced law for over thirty years and had experience with numerous murder

trials. The court accredited trial counsel‟s testimony regarding his thorough pretrial

preparation, his review of discovery materials, and his method of preparing a detailed

trial notebook. The post-conviction court found that counsel was “well prepared” and

had made tactical decisions regarding witnesses. With regard to the examination of

witnesses, the court noted that counsel made reasonable decisions and questioned

witnesses consistently with the defense theory instead of asking everything that the

Petitioner wanted.

The record does not preponderate against the post-conviction court‟s findings on

this issue. At the evidentiary hearing, trial counsel testified extensively regarding his

preparation both before and during trial. He said that it was his practice to confer with

clients about which witnesses to call and the questions to ask. Counsel said that he did

not call witnesses if their testimony would harm the defense. He did not recall the

Petitioner ever complaining about the witnesses who were interviewed and subpoenaed.

We conclude that trial counsel adequately prepared for trial and made tactical decisions

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regarding witnesses. Moreover, the Petitioner did not call Detective Williams or Agent

Copeland to testify at the evidentiary hearing. To prevail on an ineffective assistance of

counsel claim based upon counsel‟s failure to call a witness at trial, the Petitioner must

present that witness at the post-conviction hearing. Black v. State, 749 S.W.2d 752, 757

(Tenn. Crim. App. 1990). “„As a general rule, this is the only way the petitioner can

establish that . . . the failure to have a known witness present or call the witness to the

stand resulted in the denial of critical evidence which inured to the prejudice of the

petitioner.‟” Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008) (quoting Black, 794

S.W.2d at 757). Accordingly, the Petitioner has failed to meet his burden of proof in

establishing his claim, and he is not entitled to relief.

V. Failure to Introduce Tape Recorder. Next, the Petitioner contends that

counsel erred in “not asking about or seeking to introduce a tape player” at trial. In his

second amended petition, the Petitioner alleges that trial counsel “abandoned all

questioning of T.B.I. Agent Jason Locke regarding the audiotape that was playing at the

time the victim arrived at the Petitioner‟s residence.” The State argues that there is no

evidence of prejudice in this claim.

In dismissing this ground for relief, the post-conviction court stated as follows:

Mr. Medina, in his petition, says, well, there was a tape recording of

these events. Nothing was taken the night of this event. Photographs were

taken. Later on, nothing on the return shows a cassette recording. I wonder

as I see this on this Officer‟s return and the inventory, I wonder, well, when

Mr. Medina returned to the residence, it must still have been there in the

house. There‟s no suggestion -- and where is the prejudice here?

Again, the test is also has he been prejudiced by all of this lack of

effective assistance of counsel. There‟s no showing on those particular

issues.

We agree with the post-conviction court that the Petitioner has failed to

demonstrate prejudice arising from counsel‟s performance in this regard. At the

evidentiary hearing, Agent Locke testified that the State never collected a tape recorder or

cassette tape on the night of the shooting or after executing the search warrant later in

October 1999. Agent Locke said that there was no evidentiary value in the device since it

was photographed but not seized. The Petitioner testified consistently at trial and at the

post-conviction hearing that on the evening of the shooting, he turned off the tape

recorder after his wife became angry. Therefore, the Petitioner‟s own testimony supports

the conclusion that there was no value in this evidence. Accordingly, he has not

established a reasonable probability that but for counsel‟s alleged errors regarding the

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tape recorder, the outcome of the proceeding would have been different. This issue lacks

merit.

VI. Allegation of Planted Evidence. The Petitioner further asserts that trial

counsel failed to question witnesses about a towel that he believed had been planted next

to his wife‟s body by law enforcement. The Petitioner bases his claim on the fact that

two diagrams of the crime scene submitted by EMT Mark Manning and TBI Special

Agent Roy Copeland did not depict a towel in the area. However, crime scene

photographs showed a towel next to the victim. The State responds that the post-

conviction court examined the exhibits and properly concluded that the diagrams were

merely illustrative and that there was no evidence of prejudice.

At the post-conviction hearing, the Petitioner maintained that law enforcement

placed a towel next to the victim‟s body to bolster the theory that the Petitioner had

wiped the fingerprints off the weapons. However, the Petitioner conceded that EMT

Mark Manning testified that photographs were more accurate because his diagram did not

include everything that was at the crime scene. At trial, Manning stated that his diagram

“was just a real quick sketch” and that it was not meant to have evidentiary value. In

dismissing this claim, the post-conviction court found that the State had adequately

explained the discrepancy between the diagrams and the photographs. The court noted

that there were other items which were depicted in one exhibit but left out of the other.

The court found no proof of prejudice based on counsel‟s failure to ask about the lack of

a towel in the diagrams. We conclude that the record does not preponderate against the

post-conviction court‟s findings, and the Petitioner is not entitled to relief on this claim.

VII. Failure to Object to Gaps in 911 Recording. The Petitioner contends that

trial counsel should have objected to or addressed the gaps in the 911 recording. He

argues that the issue “could have been confusing to the jury” and that the State‟s

explanation at the post-conviction hearing “d[id] not repair the possible prejudice to the

[Petitioner] at trial.” The State responds that the Petitioner presented no proof of

exculpatory evidence in the recording and therefore failed to establish prejudice.

At the post-conviction hearing, the Petitioner alleged that the recording of his 911

call had been altered to support the State‟s theory that he had staged the crime scene.

Trial counsel testified that he had listened to the recording multiple times and could not

recall any gaps in the tape. Agent Locke explained that 911 recordings typically included

pauses because calls were recorded on separate tracks, and dispatchers often respond to

many events at the same time. The post-conviction court found no prejudice or evidence

to support the Petitioner‟s allegation that the tape had been altered:

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The 911 tape, in this courtroom here today, I think it was clearly

explained why there could be a gap, and indeed, what‟s the prejudice? Is

there something that Mr. Medina said that has been missing on this

particular tape? I heard him say nothing to that extent, that he said

something or other people said something that was exculpatory or that

would help him in some form or fashion. There‟s been no proof in the

record that this gap in the tape contains something that he said; there‟s been

no proof that he has produced here to show clearly and convincingly that

[trial counsel] was inadequate in his representation because of certain

missing contents, and I think the State has adequately explained, if you

want to even call it a gap to that tape.

We agree with the post-conviction court that the Petitioner has failed to show that

trial counsel was ineffective regarding the 911 recording. Specifically, the Petitioner has

not demonstrated how he was prejudiced by counsel‟s failure to object to the gaps in the

tape. Apart from his allegation that the 911 recording was altered and did not record the

entire event, the Petitioner failed to support his claim with any evidence. At the post-

conviction hearing, he did not present any proof to establish a reasonable probability that

counsel‟s objections to the recording would have resulted in a different outcome.

Accordingly, the Petitioner is not entitled to relief on this issue.

VIII. Self-Defense Instruction. Finally, the Petitioner argues that trial counsel

was ineffective for failing to object to the trial court giving a jury instruction on self-

defense. In his second amended petition, the Petitioner contends that counsel was aware

that he had never relied on a defense of self-defense and that he had always denied firing

a weapon. The State responds that the proof presented at trial warranted a self-defense

instruction and therefore counsel was not ineffective in this regard.

It is well-settled that a criminal defendant is entitled to an instruction on every

issue raised by the evidence. See Myers v. State, 185 Tenn. 264, 206 S.W.2d 30, 31-32

(Tenn. 1947) (holding that a defendant is entitled to an affirmative instruction on self-

defense if raised by the evidence). A trial court is obligated to give the jury a complete

charge on the law applicable to the facts of the case, and a failure to do so may constitute

reversible error even where a defendant has not requested the instruction. See Poe v.

State, 212 Tenn. 413, 370 S.W.2d 488, 489 (Tenn. 1963). Significantly, a self-defense

instruction may be charged even where a defendant claimed that the homicide was an

accident. See Myers, 185 Tenn. at 268, 206 S.W.2d at 31 (citing State v. Stevens, 96 Mo.

637, 10 S.W. 172 (Mo. 1888)). “The issue of the existence of a defense is not submitted

to the jury unless it is fairly raised by the proof.” T.C.A. § 39-11-203(c).

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At the time of the Petitioner‟s offense, the self-defense statute provided, in

pertinent part:

A person is justified in threatening or using force against another person

when and to the degree the person reasonably believes the force is

immediately necessary to protect against the other‟s use or attempted use of

unlawful force. The person must have a reasonable belief that there is an

imminent danger of death or serious bodily injury. The danger creating the

belief of imminent death or serious bodily injury must be real, or honestly

believed to be real at the time, and must be founded upon reasonable

grounds. There is no duty to retreat before a person threatens or uses force.

T.C.A § 39-11-611(a) (1999). At trial, the Petitioner testified that the victim was armed

with a revolver on the day of the shooting. He stated that he became scared after he saw

the weapon hidden in the sofa, and he retrieved his gun from the bedroom safe. He said

he was afraid and did not know what to do when the victim started losing control.

According to the Petitioner, the victim aimed the revolver at him while he was holding

their son. At one point, the Petitioner testified that the victim “grabbed the gun and [he]

could see it in her face she was going to shoot [him].” He said that he grabbed the victim

and pushed her, and they fell to the ground with their son. The Petitioner called 911 after

the victim did not get up.

The trial transcript reflects that during a discussion about the jury charge, the trial

court raised the issue of self-defense over the objection of the State. The State argued

that the Petitioner never claimed self-defense and had testified that he never removed his

weapon from his back pocket. Trial counsel argued that the self-defense charge should

be submitted for the jury‟s consideration. The trial court reasoned as follows regarding

this jury instruction:

You don‟t plead not guilty by reason of self-defense. You just plead not

guilty and let the case set all the facts. And here we have a person

assaulted, or using force, for someone to create in that person‟s mind a

reasonable belief that they‟re in imminent or actual danger then that person

is justified in doing certain things, that‟s what the charge says. I think it

follows, from what was said about getting the gun, putting it in his pocket,

why he did it, that type of thing - - I‟m not saying the jury is going to buy

it, I‟m not saying I‟d buy it, but I‟m saying theoretically under the law all

of that is applied. And I believe if I don‟t charge it, I think it would be

error, . . . and it would have to be tried again even if he got a conviction.

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With respect to this claim, the post-conviction court determined that the evidence

at trial raised an inference that the Petitioner had feared for his life. The court noted that

every trial judge is obligated, even if reluctantly, to instruct the jury based on issues

raised in the proof. The post-conviction court concluded that it would have been error for

the trial court not to provide the self-defense jury instruction given the evidence

presented at trial.

We conclude that the Petitioner has failed to establish either deficiency or

prejudice arising therefrom based on the self-defense instruction. The trial court, finding

the issue of self-defense had been fairly raised, instructed the jury on this theory. The

jury heard the Petitioner‟s testimony that the shooting was accidental and, by its verdict,

did not credit the Petitioner‟s testimony or that he had acted in self-defense. The

Petitioner has not proven by clear and convincing evidence that counsel was deficient in

not objecting to the self-defense charge. Moreover, the Petitioner has not presented any

evidence of prejudice based on this alleged deficiency. We discern no reasonable

probability that the jury verdict would have been different if the jury had not been

instructed regarding self-defense. This issue is without merit.

CONCLUSION

After a thorough review of the record, we cannot conclude that the results of the

Petitioner‟s trial were undermined or that the proceedings were fundamentally unfair

because of the alleged errors of counsel. See Strickland, 466 U.S. at 670 (“[T]he ultimate

focus of inquiry must be on the fundamental fairness of the proceeding whose result is

being challenged.”). The Petitioner is not entitled to post-conviction relief, and the

judgment of the post-conviction court is affirmed.

_________________________________

CAMILLE R. MCMULLEN, JUDGE

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