IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

May 4, 2004 Session

RHODNEY ROBERSON v. STATE OF TENNESSEE

 Appeal from the Circuit Court for Gibson County

No. 14888-1 Joseph H. Walker, III, Judge

No. W2003-01236-CCA-R3-PC - Filed July 8, 2004 

The petitioner, Rhodney Roberson, appeals the Gibson CountyCircuit Court’s denial of his petition

for post-conviction relief from his conviction for first degree murder and resulting life sentence. The

petitioner claims that he received the ineffective assistance of counsel because his attorney (1) failed

to call an expert to testify; (2) failed to call other critical witnesses; (3) failed to request a severance

from his codefendant wife at trial; and (4) used an unworkable trial strategy. We affirm the trial

court’s denial of the petition.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES

CURWOOD WITT, JR., JJ, joined.

J. Barney Witherington, IV, Covington, Tennessee, for the appellant, Rhodney Roberson.

Michael E. Moore, Solicitor General; Jennifer L. Bledsoe, Assistant Attorney General; Garry G.

Brown, District Attorney General; and Elaine Gwinn Todd, Assistant District Attorney General, for

the appellee, State of Tennessee.

OPINION

This case relates to the death of the petitioner’s stepdaughter, Tiffany McCaig. On August

30, 1994, the petitioner was convicted of first degree murder for the death of the victim but this court

reversed his conviction and remanded the case for a new trial. In the petitioner’s second trial, a jury

again convicted the petitioner of first degree murder and this court affirmed the conviction. See

State v. Roberson, 988 S.W.2d 690 (Tenn. Crim. App. 1998). On appeal, this court, referring to the

petitioner and his wife as RR and CR, stated the following facts:

 

At approximately noon on November 19, 1993, Dean Miller

was summoned to the defendants’ house in Gibson County. Miller

worked for the Gibson County Emergency Medical Services. Upon
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arriving at the house, he found Tiffany McCaig lying covered on the

couch. Tiffany was CR’s two-year-old daughter and RR’s

stepdaughter. Miller testified that Tiffany had been warm when he

found her, and that he had noticed some bruising in her neck area.

Because she had “no pulse, no respirations” when he found her, he

immediately began administering CPR. After an ambulance arrived,

he rode with the child to the hospital, continuing his CPR efforts. He

was not successful, however, in reviving Tiffany.

Dr. O’Brien Clary Smith, the assistant medical examiner for

Shelby County, performed the autopsy on Tiffany. He testified that

she had had about twenty-two bruises in the head and face area and

additional bruises on her neck, chest, left hip, and “the back and

buttock region.” He testified that these bruises had ranged in age from

less than six hours to “about forty-eight to seventy-two hours” prior

to her death. He further testified that the bruises had been inflicted

“by anywhere from a moderate to a severe degree of force” during “at

least four separate episodes” and that “a fist could [have] produce [d]

these types of injuries.” Additionally, he testified that, “It’s my

medical opinion that these bruises are most consistent with the child

being struck as opposed to falling down.” According to Dr. Smith,

Tiffany died from peritonitis, “directly attributable to a tear in the

portion of the intestine known as the duodenum.” The tear, testified

Dr. Smith, had been caused by “Massive blunt trauma--massive blunt

force was applied to the abdomen with sufficient force to cause the

intestine to tear. . . . [M]ost of the time these injuries of this type are

seen with blows by a fist, a kick, or in a traffic accident they can be

caused by a person slamming into the steering wheel when they’re

unrestrained. . . . Additionally, falls in the twenty to twenty-five foot

range can--can cause this type of injury.” Dr. Smith testified that he

did not believe, in his medical opinion, that Tiffany’s injury had been

caused by a fall. He further testified that it was his medical opinion

that the injury had occurred eighteen to thirty-six hours prior to her

death, with his best estimate being twenty-four hours.

CR testified that she had seen RR treat Tiffany roughly on

many occasions and that, on the evening of November 18, 1993,

while RR was bathing Tiffany, she had heard “two thuds that sounded

like a book dropping on the floor.” After these thuds, she testified,

she had heard Tiffany “grunt.” She testified that RR had told her that

he’d kicked his boots off, but that he had been wearing them when he

came out of the bathroom. She further testified that, when Tiffany had

come out of the bathroom, “She was staggering like she was drunk,
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but she wasn’t crying. She wasn’t complaining.” CR claimed that she

had not known Tiffany was in danger on the night of November 18

and that she had not known she was severely injured. She also denied

knowing how Tiffany had become severely injured.

Both CR and Mrs. W.I. Sherbit, RR’s grandmother, testified

that Tiffany had fallen across her stomach on the stone hearth during

the afternoon of November 17, 1993. CR also testified that Tiffany

had fallen once more that day.

Id. at 691-92.

At the post-conviction evidentiary hearing, the petitioner testified that his trial attorney only

met with him one time for approximately thirty minutes before his second trial. He acknowledged

that his attorney discussed ideas and strategies with him. He said, however, that his attorney did not

investigate his claim that the victim’s injuries occurred because his wife stepped on the victim. He

said he talked with his attorney about severing his case from his wife’s case and said he was

prejudiced because his attorney ultimately decided not to request a severance. He said that although

an expert testified favorably for him at a juvenile proceeding, his attorney never mentioned using an

expert at trial. He said that he told his attorney that John Ketchum and Marcia Pennington would

testify favorably for him but that these two potential witnesses told him that his attorney never

contacted them. He said his attorney refused to let him testify. He also said his attorney knew that

he was innocent.

On cross-examination, the petitioner acknowledged that he retained his attorney for his

second trial after his attorney had represented him in his first trial and that his attorney had

performed well in his first trial. He acknowledged that his attorneycross-examined the state’s expert

extensively about the time line for the victim’s injury. He said his attorney also questioned his wife

about the petitioner being home for only thirty to forty-five minutes before the victim began

vomiting. He said his attorney was surprised when his wife’s attorney blamed the petitioner for the

victim’s injuries. He said Mr. Ketchum would have testified about the petitioner’s relationship with

his wife and children. The petitioner said that if he had testified on his own behalf, he would have

told the jury where he was when the victim was injured and that he did not hurt her. He said that he

would have told the jury about his feelings and that he tried to give the victim medical attention.

Although the state’s expert testified that it was impossible, the petitioner said the victim kissed him

and told him “Daddy go to work[]” on the morning that she died. He said his attorney told him not

to testify because his wife and the state’s expert had “cleared” him. 

John Ketchum testified that he had known the petitioner for a long time and that he was ready

to testify at the petitioner’s trial but was never called. He said the petitioner was not rough with the

victim and never mistreated her. He said that the day before the victim died, the petitioner was

working at the Classic Body Shop. He said that the petitioner’s wife beat the victim, that she was

very rough with the victim, and that the petitioner had to tell his wife to stop beating the victim on
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several occasions. He said the petitioner’s wife told him that she knew the petitioner was innocent

and could prove it but that she had to choose between herself and the petitioner at their trial. On

cross-examination, Mr. Ketchum acknowledged that he never went to the police with his

information. He said he talked with Mrs. Roberson’s attorney about testifying but was told that he

did not have any helpful information.

Marcia Pennington testified that she was Cynthia Roberson’s mother, that she did not testify

at the petitioner’s second trial, and that the petitioner’s attorney never contacted her. She said she

never saw the petitioner beat the victim or mistreat her in any way. She also said the victim was

accident prone. On cross-examination, she testified that her daughter’s attorney did not call her to

testify in the second trial because she did not have anything bad to say about the petitioner.

The petitioner’s trial attorney testified that a bathtub incident involving the petitioner and the

victim was important to the prosecution’s case. He acknowledged that he did not call an expert to

refute the state’s expert’stime line for when the victim was injured. He said he did not consult with

an expert because he felt that the state’s expert was beyond reproach. He acknowledged that the

death certificate said that the date of the victim’s injury was November 17, 1993, but that the bathtub

incident happened on November 18, 1993. He said he did not introduce the death certificate into the

record. He said that although the state introduced evidence of bruising to the victim, he did not

present evidence to the jury to show that the victim’s anemia could have caused the bruising. He

said that even after Mrs. Roberson’s attorney filed for a divorce, he did not realize that her attorney

was going to blame the petitioner for the victim’s death in the second trial. He said he did not

request a severance but would have requested one if he had known that the wife’s attorneywas going

to blame the petitioner. He said he did not remember the petitioner giving him a letter from his wife

stating that her attorney was going to attack him on the bathtub incident. Although Mrs. Roberson

admitted during a polygraph test that she accidentally “kneed” the victim, he did not recall if he

cross-examined her about this statement. He said his defense theory was that the victim injured

herself when she fell on a stone hearth. He acknowledged that part of the prosecution’s strategy was

to accuse the petitioner of beating his wife to show his propensity for violence. He said he never told

the petitioner he could not testify but advised him not to testify because of his prior record and

because he believed the petitioner would make a poor witness.

On cross-examination, the petitioner’s trial attorney testified that he did not remember

anything about Mr. Ketchum and that his testimony regarding the petitioner’s relationship with his

wife and children would have been cumulative. He said that he was uncomfortable calling Mrs.

Pennington to testify because she was Mrs. Roberson’s mother and that he was afraid that her

testimony would not be favorable. In addition, he said the only benefit of her testimony would be

to show that the petitioner called about the victim being ill and that she told him to give the victim

Pepto-Bismol. He said he believed this testimony would have been cumulative. He acknowledged

that Mrs. Roberson’s attorney tricked him. He said that he believed the jury acted capriciously and

with passion when they convicted the petitioner because the victim was a child. He acknowledged

that Mrs. Roberson gave several statements indicating that she was the person in the bathroom with
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the victim and only changed her version of how the victim was injured when she was told that her

version was medically impossible. The trial court denied the petition for post-conviction relief.

Under the Sixth Amendment, when a claim of ineffective assistance of counsel is made, the

burden is on the petitioner to show (1) that counsel’s performance was deficient and (2) that the

deficiency was prejudicial in terms of rendering a reasonable probability that the result of the trial

was unreliable or the proceedings fundamentally unfair. Strickland v. Washington, 466 U.S. 668,

687, 104 S. Ct. 2052, 2064 (1984); see Lockhart v. Fretwell, 506 U.S. 364, 368-72, 113 S. Ct. 838,

842-44 (1993). The Strickland standard has been applied to the right to counsel under article I,

section 9 of the Tennessee Constitution. State v. Melson, 772 S.W.2d 417, 419 n.2 (Tenn. 1989).

In Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975), our supreme court decided that

attorneys should be held to the general standard of whether the services rendered were within the

range of competence demanded of attorneysin criminal cases. Further, the court stated that the range

of competence was to be measured by the duties and criteria set forth in Beasley v. United States,

491 F.2d 687, 696 (6th Cir. 1974), and United States v. DeCoster, 487 F.2d 1197, 1202-04 (D.C. Cir.

1973). Also, in reviewing counsel’s conduct, a “fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; see Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). Thus, the fact that a particular strategy or tactic failed or even hurt the

defense does not, alone, support a claim of ineffective assistance. Deference is made to trial strategy

or tactical choices if they are informed ones based upon adequate preparation. See Hellard, 629

S.W.2d at 9; DeCoster, 487 F.2d at 1201. 

In a post-conviction case, the burden is on the petitioner to prove by clear and convincing

evidence his grounds for relief. T.C.A. § 40-30-210(f). On appeal, we are bound by the trial court’s

findings of fact unless we conclude that the evidence in the record preponderates against those

findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). Because they relate to mixed questions

of law and fact, we review the trial court’s conclusions as to whether counsel’s performance was

deficient and whether that deficiency was prejudicial under a de novo standard with no presumption

of correctness. Id. at 457.

With regard to the petitioner’s claim that his attorney was deficient for failing to call an

expert to testify about the time of the victim’s injury, the petitioner failed to present the testimony

of a witness that would have testified as to when the victim’s injuries occurred. Without any proof

at the post-conviction hearing as to the testimony that a witness would have offered, the petitioner

cannot demonstrate that he was prejudiced by the failure of the witness to be interviewed or called

on his behalf. See Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). 

As to the petitioner’s claim that his attorney should have called John Ketchum to testify, Mr.

Ketchum testified that he only talked to Mrs. Roberson’s attorney, not the petitioner’s attorney. In

addition, he said that he never talked to the police about his information regarding the petitioner and
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his wife. The petitioner’s attorney testified that he did not remember hearing anything about Mr.

Ketchum. With regard to Mrs. Pennington, he testified that because she was Mrs. Roberson’s

mother, he was afraid her testimony may harm the petitioner. In addition, he said that the benefit of

her testimony, establishing that the petitioner sought medical help for the victim, was already in the

record. Thus, in addition to being uncertain, her testimony would have been cumulative. The

evidence does not show that the petitioner’s attorney was deficient by failing to call Mr. Ketchum

or Mrs. Pennington to testify. 

With regard to his failure to request a severance, the petitioner’s attorney testified that he

believed that the petitioner and Mrs. Roberson were going to present a united front, as they did in

their first trial, and argue that neither of them did anything to harm the victim and that they sought

out medical help when they believed it was necessary. He said he was surprised when Mrs.

Roberson’s attorney began to point the blame at the petitioner. Although in retrospect the attorney

recognized that it may have been wise to sever the petitioner’s case, as noted above, we defer to the

trial strategy of the petitioner’s attorney at the time of the trial as long as the strategy is informed and

based on adequate preparation. See Hellard, 629 S.W.2d at 9; DeCoster, 487 F.2d at 1201. The trial

court found that the attorney’s representation was not deficient, and we agree with the court’s

conclusion. 

Finally, with regard to the petitioner’s claim that his attorney used an unworkable trial

strategy, we conclude that the record supports the trial court’s finding that the attorney’s performance

was not deficient. The petitioner’s attorney testified that his strategy was to show that the petitioner

was not present during critical times when the prosecution’s expert claimed the injury occurred. He

said the theory he presented to the jury was that the victim injured herself when she fell on a stone

hearth. He cross-examined both the prosecution’s expert and Mrs. Roberson extensively at the trial

to establish his argument. We hold that the petitioner has failed to show that he received the

ineffective assistance of counsel.

Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.

___________________________________ 

JOSEPH M. TIPTON, JUDGE