### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON Ma y 4, 200 4 S es sio n

RHO DN EY ROB ERS ON v. ST ATE OF TEN NES SEE

Appeal f romthe Circ uit Court for Gibson Coun ty No. 14888-1 Joseph H. Walker, III, Jud ge

No. W2003-01236-C CA-R 3-P C - F iled Jul y 8, 2004

The pe titioner, Rhodney

Roberson, appea ls the Gibson County Circuit Court’ s denial of his petition for post-c onviction relief f rom his conviction for f

irst deg ree murder a nd resulting life sentenc e. The petitioner cla ims that he rece ived the inef fec tive assistance of counse l because his attorney (1) f ailed to call an e x pert to testify ; (2) fa iled to call other c ritical witnesses; (3) failed to re quest a seve ranc e from his code fenda nt wife a t trial; and (4) use d an unwor kable tria l s t ra t egy . We affir m the trial court’s de nial of the pe tition.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

J OS EP H M. T I PTON , J ., delivere d the opinion of the court, in which J ER R Y L. S MI TH and J AM ES C UR WO OD W I TT , J R ., J J , joined.

J . Ba rney Wit hering ton, I V, Covington, Te nnessee , for the a ppellant, Rhodney

Roberson.

Michae l E. M o o re , Solicitor Genera l; J ennife r L . Ble dsoe, Assistant Attorney Gene ral; Ga

rry G. Br own, District Attorney

Gene ral; and Elaine Gw inn Todd, Assistant District Attorney Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

Th is c a se re la te s to the de a th of the pe tit ion e r’ s st e pd aug hte r, Ti ff a ny Mc Ca ig . O n A ug us t 30, 1994, the petitioner was convicted of first deg ree murder for the de ath of the vic tim but t his court

reve rsed his convic tion a nd rema nded the c ase f or a ne w trial. I n the petitioner’s se cond trial, a jury
ag a in c o n v ic te d th e p e ti ti o n e r o f f ir s t d e g r e e mu r d e r a n d th is c o u r t a f f irme d th e c o n v ic tion. See State v. Roberson, 988 S.W.2d 690 (Tenn. Crim. App. 1998). On appe al, this court, re fer ring to the
pe tit ion e r a ndhis wi fe a s RR a ndCR, state d th e fo llo wi ng fa c ts:

At approximately

noon on November

19, 1993, Dea n Miller was summoned to the d efendants’ house in Gibson County . Miller worked for the Gibson CountyEmerg ency Medica l Services. Upon-2- arriving a t the house, he found Tiffa ny McCaig ly ing c overe d on the couch. T iffany wa s CR’s two-y ear -old daug hter a nd RR’s stepdaug hter. Miller testified tha t Tiffany had bee n war m when he found h er , and that he had noticed some br uising in her

neck a rea

. Be cause she had “ no pulse, n o respirations” when he found her , he immediately

beg an adminis tering CPR

. After an ambulance a rrived, he rode with the child to the hospital, continuing his CPR efforts. He

w a s n o ts u c c e s s f

u l
, h o w e v e r , i n r e v i v i n g T i f f a n y.

Dr. O’ Brien C lary Smit h, the assistant medica l examiner for Shelby County , perf

ormed the autopsy

on Tiffa ny . He testified tha t she had ha d about twenty -t wo bruises in the hea d and fa ce a rea and additional bruises on her neck, c hest, left hip, and “ the bac k and buttock reg ion.” He te stified that these bruises had ra ng ed in ag e fr om less than six hours to “about f orty -eig ht to seventy -two hours” prior to her de ath. He f

urther t es t i fied that the br uises had bee n inflicted “by any wher e fr om a modera te to a sever e deg ree of forc e” during “at least four separ ate e pisodes” and tha t “a f ist could [ have] produce [d] th e s e t yp e s o f

i n j u r i e s

. ” A d d i t i o n a l l y , h e t e s t i f i e d t h a t , “ I t ’ s my

me dic a l op ini on that the se br uis e s ar e mos t c on sis te nt w ith the c hil d being struck as oppose d to fall i n g d own.” Ac cording to Dr. Smith, Tiffa ny died from pe ritonitis, “d i re ctl y attributable to a te ar in the portion of the intestine known as the duode num.” The te ar, te stified Dr. Smit h, had bee n cause d by “Massive blunt trauma --massive blunt forc e wa s applied to the abdome n with s u fficie nt force to cause the intestine to tear. . . . [ M]os t of t he ti me t hese injuries of t his type ar e

seen w ith blows bya fist, a kick, or in a traf fic a ccide nt they

can be

cause d by a per son slammi n g into the steering whee l when they ’re
unrestra ined. . . . Additionally , falls in the twenty to twenty -five f

oot rang e ca n--c an ca

use this type of injury .” Dr. Smi th testified that he did not believe, in his medical opinion, that Tiffany ’s injury had bee n

cause d by a fa ll. He fur t h er t est ified that it was his medica l opinion
t h at the injury

had occ urre d eig hteen to thirty -six hours prior to her de a th, wi th h is b e st e sti ma te be ing tw e nty -f ou r h ou rs

.

CR testified that she had seen RR tre at Tiffa ny rough l y on many occa sions and that, on the eve ning of No vember 18, 1993, while R R was bathing Tiffa ny , she had he ard “ two thuds that sounded like a book dropping on the floo r. ” After these thuds, she testified, she had he ard Tif

fany “g runt.” She testified that RR had told her that he’d kic ked his boots off, but that he ha d been wearing the m when he

came out of the bathroom. She f urther te stified that, when Tiff any had come out of the bathroom, “She w as stag g ering like she wa s drunk,-3- but she wasn’ t cry ing. She w asn’t complaining .” CR claimed that she had not know n Tiffa ny was in da ng er on the night of November 18 and that she ha d not known she was seve rely injured. She also denie d knowing how Tiffa ny

had bec ome seve rely

injured.

Both CR and Mrs. W.I

. Sherbit, RR’s gr andmother, te stified that Tiffa ny

had fa llen acr oss her stom ach on the stone hea rth during the af ternoon of No v em b er 17, 1993. CR also testified that Tiff any h a d f a l l e n o n c e m o r e t h a td a y.

I d. at 691-92.

At the po st- c on vic tio n e vid e nti ary he ari ng , th e pe tit ion e r te sti fi e d tha t his tri a l a tto rn e y on ly met with him one time for appr ox imately thirty minutes before his second trial. He acknow ledg ed that his attorney

discussed i deas and strateg ies with him. He said, howeve r, that his attorney did not investigate his claim that the victim’s injuries occ urre d beca use his w ife stepped on the victim. He said he talke d with h i s attorney about seve ring his case f rom his wife’s c ase a nd said he wa s p re j u d i ce d b ec au s e hi s at t o rn ey u l t i m at el y d ec i d ed n o tt o re q u es ta s ev er an ce

. He s ai d t h at al t h o u gh an expert testified fa vorably for him at a juve nile proce eding , his attorney never mentioned using a n

e xpe rt a t tria l. He sa id tha t he told his a tto rn e y that J oh n K e tc hu m a ndMa rc ia Pe nn ing ton wo uld testify favor ably

for him but that these two potential witnesse s t o ld him that his attorney never contac ted them. He sa id his attorney ref used to let him te stify

. He also said his attorney knew that he wa s in no c e nt.

On c ro ss- e xami na tio n, the pe tit ion e r ackno wl e dg e d th a t he re ta ine d h is atto rn e y fo r h is second tria l after

hi s at t o rn ey had re prese nted him in his first trial and that his attorney had perf ormed we ll in his first trial. He acknowledg ed that his attorney cross-e x amined the state ’s expert extensivelyabout the time line for the victim’s injury

. He sa id his attorney also questioned his wife about the petitioner be ing home for only t h i rt y t o forty -five minutes be fore the victim beg an vomiting. He said his attorney was surprised when his wife’ s attorney blamed the pe titioner for the vic tim ’s inj ur ie s. He sa id Mr

. Ke tc hu m wo uld ha ve te sti fi e d a bo ut the pe tit ion e r’ s r e la tio ns hip wi th his wife and c hildren. The petitioner said that if he had testified on his own beha lf, he would ha ve told the jury

wher e he w as whe n the victim was injured a nd that he did not hurt her. H e said that he would have told the jury

about his fee lin gs an d that he tried to g ive the victim medical a ttention. Al tho ug h th e state ’s e xpe rt te sti fi e d th a t it

wa s impo ssi ble , the pe tit ion e r sa id the vic tim kis se d h im and told him “Daddy

g o to w ork[] ” on the morning that she died. He said his a ttorney told him not to testify beca use his wife a nd the state’s e x pert ha d “cle are d” him.

J ohn Ketchum testified tha t he had known the petitioner for a long t ime and that he wa s rea dy to testify at the petitioner’ s trial but was neve r ca lled. He sa id the petitioner wa s not roug h with the

v i ct i m and neve r mistreate d her. H e said that the da y befor e the victim died, the pe titioner was working at the Classic B ody Shop. He said that the pe titioner’s wife beat the victim, that she was
very roug h with the vi ctim, and that the petit ioner had to tell his wife to stop beating the vi ctim on-4-

sever al occ asions. He sa id the petitioner’s wife told him that she knew the petit ioner wa s innocent and could pr o v e i t b u t t h at she ha d to choose be tween he rself a nd the petitioner a t their trial. On

cros s-e x a min a tio n, Mr . K e tc hu m a c kn ow le dg e d th a t he ne ve r w e nt t o th e po lic e wi th h is information. He sa id he talked with Mrs. Rober son’s attorney about testify ing but wa s told that he did not have any

helpful informa tion.

Marc ia Pennington testified that she was Cy nthia Roberson’s mother, tha t she did not testify at the petitioner’ s second tria l, and that the petitioner’ s attorney never contac ted her. She said she

neve r s a w th e p e ti ti o n e r b e a t th e v ic ti m o r mi s tr e a t h e r in a n y w a y

. Sh e a ls o s a id the victim was

a c c ide nt p ro ne

. On c ro ss- e xami na tio n, sh e te sti fi e d th a t he r d a ug hte r’ s a tto rn e y didno t c a ll h e r t o testify in the second tria l because she did not have anything ba d to say about the petitioner.

The pe titioner’s trial attorney testified t hat a bathtub incident involving the petitioner and the vic tim wa s impo rt a nt t o th e pr os e c uti on ’s c a se . H e a c kn ow le dg e d th a t he didno t c a ll a n e xpe rt to

re fu te the state ’s e xpe rt ’s tim e lin e fo r wh e n th e vic tim wa s in jur e d. He sa id h e didno t c on su lt w ith

a n e xp e r t b e c a u s e h e f

e lt th a t th e s tate ’ s e xp e r t w a s b e y o n d r e p r o a c h

. H e a c k n o w le d g e d that the death certificate s aid t hat the date of the victim’s injury was Nove mber 17, 1993, but that the ba thtub incident happe ned on November 18, 1993. He said he did not introduce the death c ertificate into the

rec ord. He said that althoug h the state introduce d evidenc e of br uising to the victim, h e d i d not prese nt evidence to the jury to show that the v i ct i m ’s anemia c ould have c aused the bruising. H e said that eve n afte r Mrs. Roberson’s attorney filed for a divorce, he did not rea liz e that her attorney

was g o in g to b la me th e p e ti ti o n e r f o r th e v ic ti m’ s d e a th in th e s e c o n d tria l. H e s a idhe did not
reque st a sever ance but would have r equeste d one if he had known that the w ife’s attorney was g oing to blame the petitioner. H e said he did not remember the petitioner g iving him a letter from his wife stating tha t her attorney was going to attack him on the bathtub incident. Although Mr s. Roberson admitted during a poly g raph te s t t h at s he ac cidentally “knee d” the victim, he did not re call if he

cross-e x amined her

about this statement. He s aid hi s defe nse theory was that the vic tim inj ured herse lf when she fell on a st one hearth. He a cknowledg ed that part of the prose cution’s strateg y was to a c c us e the pe tit ion e r of be a tin g his wi fe to sh ow his pr op e ns ity fo r v iol e nc e . H e sa id h e ne ve r t old the petitioner h e co u l d not testify but advised him not to testifybeca use of his prior r ecor d and be c a us e he be lie ve d th e pe tit ion e r w ou ld m a ke a po or wi tne ss.

On cr oss-examination, the petitioner’s trial attorne y t es tified that he did not reme mber

a nythi ng abo ut Mr

. Ke tc hu m a nd that his te sti mon y re g ard ing the pe tit ion e r’ s r e la tio ns hip wi th h is wi fe and chi ldr e n w ou ld h a ve be e n c umu la tiv e . H e sa id tha t he wa s u nc omf orta ble c a lli ng Mr s. Pennington to te stify beca use she was Mrs. Roberson’s mother and that he was afr aid that her testimony would not be fa vorable . I n addition, he said the only benef it of her testimony

would be
to s ho w tha t th e pe tit ion e r c a lle d a bo ut the vic tim be ing ill a nd that she tol d him to g ive the vic tim Pepto-Bismol. He said he believed this testimony would have be en cumulative. H e ac knowledg ed that Mrs. Roberson’s a ttorney tricked him. He said that he believed the jury acte d capriciously

and with passion when they

convicted the petitioner bec ause the victim was a child. He a cknowledg ed that Mr s. Rob e rs on g a ve se ve ra l st a te me nts ind ic a tin g that sh e wa s the pe rs on in the ba thr oo m w ith-5-

the victim and only

chang ed her version of how t he victim was inj ured when she was tol d that her version wa s medically

impossibl e. The trial court de nied the petition for post-c onviction relief.

Under the S ix th Amendment, when a claim of i neff ective assistance of counsel is made, the burden is on the pe titioner to show (1) that counse l’s perf ormanc e wa s deficie nt and (2) tha t the defic iency

was pre judicial in terms of re ndering a re asonable probability that the re sult of the trial was unreliable or the proce eding s fundamenta lly unfair. Strickla nd v. Washington, 466 U.S. 668, 687, 104 S. Ct . 2052, 2064 (1984); see L ockhart v. Fr etwell, 506 U.S. 364, 368-72, 113 S. Ct. 838, 8 4 2

- 4 4 ( 1 9 9 3 )

. T h e S t r i c k l a n d s t a n d ar d h a s b e e n ap p l i e d t o t h e r i g h tt o c o u n s e l u n d e r ar t i c l e I, section 9 of the T ennesse e Constituti on. State v. Melson, 772 S.W .2d 417, 419 n.2 (Tenn. 1989)

.

I n Ba x ter v. Rose, 52 3 S.W .2d 930, 936 (Tenn. 1975) , our supre me court decided tha t attorney s should be held to the g ener al standard of whether the service s rende red wer e withi n the

ra n ge o f c o m p et en ce d em an d ed o f at t o rn ey s i n cr i m i n al ca s es

. Fu rt h er , t h e co u rt s t at ed t h at t h e r an ge of c omp e te nc e wa s to be me a su re d b y the du tie s a ndc ri te ri a

se t f orth i n B e a sle y

v. Un ite d St a te s, 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 revie wing counsel’s conduct, a “fa ir assessment of attorne y perf ormanc e re quires that every

eff ort be made to eliminate the distorting e ffe cts of hindsig ht, to reconstruc t the circ umstances of

counsel’s c halleng ed conduct, and to eva luate the c onduct from c ounsel’s
perspe ctive at the time.” Strickland, 466 U.S. at 689, 104 S. Ct . at 2065; see H ellard v. State, 629 S.W .2d 4, 9 (Tenn. 1982). Thus, the fa ct that a pa rticular strateg y

or tac tic failed or

even hurt the d ef en s e d o es n o t , al o n e, s u p p o rt a c l ai m o f i n ef fe ct i v e as s i s t an ce

. De fe re n ce i s m ad e t o t ri al s t ra t egy or tac tical choice s if they are informed one s based upon adequate pre paration. See Hellar d, 629 S.W .2d at 9; DeCoster, 487 F .2d at 1201.

I n a post-convic tion case, the burden is on the pe titioner t o p ro v e b y clear and c onvincing evidenc e his g rounds for r elief. T.C.A. § 40-30-210( f). On a ppeal, we are bound by

the trial court’s fi nd ing s o f f

a c t un les s w e c on c lud e that th e e vid e nc e in the re c or d p re po nd e rate s a g a ins t th os e finding s. Fields v. State, 40 S.W .3d 450, 456 (Tenn. 2001) . Be cause they rela te to mix ed questions of law a nd fac t , we re v i ew the trial court’s conclusions as to whe ther c ounsel’s performanc e wa s defic ient and whe ther that de ficienc y was prejudicia l unde r a de novo standa rd with no presumption of cor rec tness. I d. at 457.

Wit h reg ard to the pe titioner’s claim that his attorney was de ficient for

failing to call an expert to testify

about the time of the vic tim’s injury , the petitioner failed to present the te stimony of a witness that would have testified as to w hen the victim’s injurie s occur red. Wit hout any

proof at the post-convic tion hearing as to the t estimony that a witness would have offe red, the petitioner cannot de monstrate that he was prejudiced by the failure of the wit ness t o be intervie wed or called on his behalf. See Bla ck v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

As to the petitioner’s c laim that his attorney should have called J ohn Ketchum to testify , Mr. K e t c h u m t e s t i f

i e d t h a th e o n l y

t a l k e d t o M r s

. R o b e r s o n ’ s a t t o r n e y , n o tt h e p e t i t i o n e r ’ s a t t o r n e y

. In addition, he said that he ne ver ta lked to the police a bout his information reg arding the petitioner and-6-

his wife. The petiti o n er’ s attorney testified that he did not re member he aring anything a bout Mr. Ketchum. With reg ard to Mrs. Penning ton, he test i fi ed t h at because she was Mrs. Rober son’s mother, he was afr aid her testimony may harm the petitioner. I n addition, he said that the be nefit of her te stimony , establishing tha t the petitioner soug ht medical help for the victim, was already in the

rec ord. Thus, in addition to being uncertain, her te stimonywould have be en cumulative. T he evidenc e does not show that the pe titioner’s attorney was de ficient by failing to call Mr. Ke tchum or Mrs. Penning ton to testify

.

Wit h reg ard to his fa ilure to reque st a sever ance , the petitioner’s attorney t es t ified that he be lie ve d th a t th e pe tit ion e r a ndMr s. Rob e rs on we re g oin g to pr e se nt a un ite d f ro nt, a s th e y

didin their first trial, a nd arg ue that neither of them did anything to harm the victim and that they soug ht

ou t me dic a l h elp whe n th e y be lie ve d it

wa s n e c e ssa

ry . H e sa id h e wa s su rp ri se d w he n M rs

. Roberson’s a ttorney

beg an to point the bl ame at the petit ioner. Although in retr ospect the attorney

rec og nized that it may

have be en wise to seve r the pe titioner’s ca se, as noted a bove, we defe r to the trial strateg y of the petitioner’s attorney at the time of the trial as long as the stra teg y is informed and based on a dequate prepa

ration. S ee H ellard, 629 S.W.2d at 9; DeCoster, 487 F .2d at 1201. The tria l court found tha t the attorney ’s re prese ntation w as not deficie nt, and we a g ree with the court’s conclusion.

Finally , with reg ard to the pe titioner’s claim that his attorney u s ed an unworkable trial strateg y , we c o n c lu d e that the re cord supports the trial court’s f inding that the attorney ’s per formanc e was not def

icient. The pe titioner’s attorney testified t hat hi s strateg y was to show that the petitioner was not pre sent during critica l times when the prose cution’s expert claimed the injury occur red. H e said the theory

he pre sented to the jury

was that the vic tim inj ured he rself w hen she f ell on a stone hearth. He cross-examined both the prosecution’s expert and Mrs. Roberson extensively at the trial to establish his arg ument. We hold that the petitioner has fa ile d to show that he re ceive d the ine ff e c tiv e a ssi sta nc e of

c ou ns e l.

B a se d o n th e fo re g oin g a ndthe re c or d a s a wh ole , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

___________________________________ J OSEPH M. TI PTON, J UDGE