IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON SEPTEMBER SESSION, 1999

WILLIAM RA

Y RHODES, *

* No. W1999-01677-CCA -R3-PC Appellant, * * HENRY COUNTY vs. * * Hon. C. CREED MCGINLEY, Judge STATE OF TENN ESSEE, * * (Post-Conviction) Appellee. *
For the Appellant : For the Appellee : Lionel R. Barrett, Jr
. Paul G. Summers Attorney at Law Attorney General and Repor ter 207 Third Avenue, North - Third Fl. Post Office Box 190599 Peter M. Coughlan Nashville, TN 37219-0599 Assistant Attorney Gener al Criminal Justice Div

ision and 425 Fifth Avenue North 2d Floor, Cordell Hul l Building Peter D. Heil Nashville, TN 37243-0493 Attorney at Law 810 Broadway, Suite 203 Nashville, TN 37203 G. Robert Radford District Attorney General Steve Garrett Asst. District Attor

ney General 24th Judicial District Post Office Box 686 Huntingdon, TN 38344

OPINION FILED: AFFIRMED
David G. Hay

es, Judge 

# FILED

December 27, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk1 The appellant ’s convict ion stems from the 1992 murder of h is live-in gi rlfri end at the residence whi ch they shar ed. Because she was in toxicate d, the appel lant bani shed the victim to a space undern eath the re sidence for the nigh t. During the night, the victim ’s daugh ter, Chas ity Davidson, obser

ved the appel lant beat ing the vi ctim about her head , kicking her in the st

omach and leavi ng her exposed to t he 26 degree temperatur e outside. The autopsy rev ealed numerous abrasio ns and contus ions ove r her bod y with caus e of dea th as hypo therm ia. 2 OPINION
The appellant, William Ray Rhodes, appeals the dismissal of his petiti on for post-conviction reli ef by the Circuit Court of Henry County. The appel lant was convicted by a jury of s econd de gree murd er and rec eived a sen tence of twenty-fi ve years. 1 His conviction w as affirmed on direct appeal to this court. See State v. William Ray Rhodes , No. 02C01-9406-CC-00124 ( Tenn. Crim. App. at Jackson, July 19, 1995). In this appeal of right, the single issue presented for our review is whether the appellant w as denied the effective assistanc e of counsel at trial. After review, we affirm.
On appeal, the appellant alleges as grounds for ineff ectiveness trial counsel’s failure (1) to properly

impeach the testimony of Chasit y Davidson regar

ding her ability to physic

ally view, thr

ough a bathroom window,the appellant beating the victim; (2) to prese nt character witnesses at the sentencing hearing ; and (3) to investigate the ex- husband of the victim and call him as a witness.

We evaluate Sixth Amendment claims of ineffectiv e assistance of counsel according to the two- part test set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052 (1984). A defendant rec eives ineffective assis

tance where the facts reveal both (1) that coun sel’s performance was defici ent and (2) that the deficient performance so prejudiced defendant as t o deprive him of a fair trial

. Id. at 687, 104 S.Ct. at 2064. With respect to deficient performanc e, the appellant must show that counsel ’s represe ntation fell belo w the range of comp etence d emande d of atto rneys in criminal cases, and, that, but for these errors, the result of th e proceeding would have been different. Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). If the defendant fails to establish deficient performance, we need not consider prejudice. Strickland , 466 U.S. at 697, 104 S.Ct. at 2069

.
In post-conviction pro

ceedings, the appellant must pr ove the allegations3

contained in the petition by clear and convincing

evidence. Tenn. Code Ann. § 40- 30-210( f) (1995). Mor

eover, the findi ngs of fac t of a tri al cour

t have t he weig ht of a jury verdict and a re conclusive on appeal u nless the evidence preponder ates against its judgment. Davis v. State , 912 S.W.2d 689, 69 7 (Tenn. 1995). This court may not reweigh or reevaluate the evidence or substitute its inferences for those drawn by the post-conv iction court. Questions concerning credibili ty of witnesses and the weight and val ue to be given their tes timony are for resolution by the postconviction court. Black v. State , 794 S.W.2d 752, 75 5 (Tenn. Crim. App. 1990).
The proof at the post-convicti on hearing consisted sole ly of the testimony of the appellant and his trial counsel. At the hearing, trial counsel testified that he was surprised at the trial testimony of nine year old Chasity Davidson,the daughter of the victim. At trial , Chasity testified that s he witnessed from the bathroom w indow, the appellant beating her mother on the deck outside the house. In a prior statement, Chasity had not menti oned the bathroom window. Trial counsel testified that, had he known the importanc e of the measurements inside the bathroo m, he would have had those pic tures taken. Prior to tr

ial, counsel hired a profess ional photographer to photograph v arious areas of the crime scen e. Although the photographs contained a pictur e of the bathroom window from the outside, no photographs were taken t o demonstrate the height of the insi de bathroom window comparative to the height of the child. At trial, couns el cross-examined Chas ity regarding her abili

ty to see outside the bathroo m window. Moreov er, counsel had the appellant testify and demonstr ate the height of the bathroom wi ndow in order to show the child’s inabi lity to view anything outside the w indow. Counsel also uti lized the other photographs and arg ued to the jury Chasity ’s inability to see outside the window. Proof at the post -conviction hearing

established that the bathtub w as located directly below

the window. Counsel

testified that, at trial, he proceeded with caution in his cross-examination of Chasity because he was aware of the bathtub’s location and was fearful that s he would have testified th at she climbed onto the bathtub to look outside after heari ng the commotion.
Regarding Chasity

Davidson’s trial testimony, the post-conv iction court found that “this identical is

sue, albeit without ex

act measurements was fairly raised by the petitioner’s own testi mony at trial and was vigorously arg ued to the jury during4

closing argument.” The po st-conviction court further found, Indeed the credibility of this particular witness was argued throu ghout counsel’s closing argument. . . . Counsel took every opportunity to try to destr oy the c redibi lity o

f this witness,includ ing the fillin g [sic

] of a prior inconsistent state ment made to a police officer. Counsel was vigorous in his cross-examination of this witness and in no way could the petitioner’s assertion of ineffective assistance o f counsel on this ground be supported.
The appellant argues that the post -conviction court i gnored the fact that had the inside bathroom measurements been taken by counsel, that the trial court could have declared Chasity’s testimony a “physical impossibility” and “incredible as a matter of law” under the physical facts rule. Therefore, he argues tha t had this evidence been introduced, the jury would have been instructed to disreg ard the entire testimony of Chasity, thus, forcing the jury to render a verdict of criminally negligent homicide . We f ind the a ppellan t’s argume nt unper suasive. W hile we recognize the physi cal facts rule allows a court to disregard the testimony of witnesses unable to be reconciled with the phy sical evidence, see State v. Hornsby , 858 S.W.2d 892, 89 4-895 (Tenn. 1993), this case does not present us with this issue. In order for a court to disregard the chall enged testimony, the phys ical facts must be “well-established and universally recognized physical laws.” Nelms v. Tennessee Farmers Mut. Ins. C o. , 613 S.W.2d 481, 483 (Tenn. App. 1978). However, in the pr

esent case, we are prev ented from applying the phy sical facts rule because its applicati on would be dependent upon assumption s of whether the witness stood on the bathtub o r some other apparatus enabling her to view the beating. See Waller v. Morgan , 133 S.W.2d 614, 616 (Tenn. App. 1939). Thus, the physical facts rule is

inapplicable to the facts of this case.
Moreover, in post-co nviction proceedings , we should defer to trial strategy or tactical choices if they

are informed ones based upon adequate pr eparation. Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel testified at the postconviction hearing that [he] tried to cross ex

amine her [and] get out of her a few of the physical facts that [he] could argue to the jury . . . that’s impossible because of the height . . . [S]he di d leave out a few things . And I . . . hoped she kept them left out so that I co uld argue to the jury,well, she didn’t say anything

about getting up on the bathtub or she didn’t say anything about some of these thin gs. . . . And what sh e’d already done to us, I was very

much concerned that anything I asked her and I didn’t know the answer to I was going to get clobbered worse.5

Additionally, Chasit

y’s testimony corr

oborated much of the physical ev idence. The victim exhibited multiple bruises and injuries that the expert testified were the result of several blows to the

face. Chasity testified at trial that during the beating, her mother was clad only in her bra and panties. Alth ough medical personnel discovered the victim’s body crudely c lothed in unzipped blue jeans and a t-shirt, the expert testified that many of the abrasions would not have occurred had th e victim been clothed.

In his final two contentions of deficient performance, the appellant ar gues that trial counsel was i neffective because he failed to call several character w

itnesses at the sentencing hearing and that counsel was deficient in investigating the victim’s ex-husband and failure to cal l him as a witness. The pos t-conviction court found that Counsel . . . did not want the issue of character injec ted into the trial or sentencing because his inv estigation revealed that the defendant had a pattern of domestic violence directed at previous spouses. . . . [H]is investigation had revealed that the State was aware of the defendant’s character for violence an d would not hesitate to cal l witnesses to demonstrate the defendant’s charact er for violence, if the matter were placed in issue. Counsel’s election to not call character witnesses in view of this cannot be s eriously questioned. The evidence was overwhelming as i

t was and would hav

e been compounded by the testimony of one or more ex- spouses who testified to a pat tern of domestic violence.

. . . [T]rial counsel’s inv

estigation appears to be ex tremely thorough . . .

. Significant independent inv estigation was made inc luding the hiring of a professional photographer for the purpose of acquiring demonst rative evid ence in su pport of the def endant’ s theory. Cl early, trial counsel pursued ev ery possible lead in the defense of his client . . . . The petitioner seems much ag grieved that trial counsel did not interview an ex

-husband of the victim that he c laims had fired gun shots on earlier occasions at the victim. There is absolutely nothing in the record that would support the involvement of any third party as a perpetrator. The record does not preponderate against these f indings. After review, we find counsel’s representation reasonable under prevail ing professional norms. In sum, w e find appellant’s allegati ons of deficient performance without merit. The record establishes that appel lant’s counsel was an experienced trial attor

ney and was acutely

aware of the strategies and tactics to be utilized in criminal

proceedings. We avoid the “distor ting effects of hindsight” and defer to trial strategy or tactical choices if they are informed ones.
Finding no error of law , the judgment of the post-conv iction court is affirmed.6 ____________________________________ DAVID G HAYES, Judge

CONCUR:

___________________________________________ JOE G. RILEY, Judge

___________________________________________ THOMAS T. W OODALL, Judge