         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 County Circuit 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
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 attorney cross-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’s time 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 attorney was 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 attorneys in 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




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