            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                          SEPTEMBER SESSION, 1999             FILED
                                                             December 27, 1999

WILLIAM RAY RHODES,              *                        Cecil Crowson, Jr.
                                 *                      Appellate Court Clerk
                                         No. W1999-01677-CCA-R3-PC
      Appellant,                 *
                                 *       HENRY COUNTY
vs.                              *
                                 *       Hon. C. CREED MCGINLEY, Judge
STATE OF TENNESSEE,              *
                                 *       (Post-Conviction)
      Appellee.                  *



For the Appellant:                       For the Appellee:

Lionel R. Barrett, Jr.                   Paul G. Summers
Attorney at Law                          Attorney General and Reporter
207 Third Avenue, North - Third Fl.
Post Office Box 190599                   Peter M. Coughlan
Nashville, TN 37219-0599                 Assistant Attorney General
                                         Criminal Justice Division
and                                      425 Fifth Avenue North
                                         2d Floor, Cordell Hull 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 Attorney General
                                         24th Judicial District
                                         Post Office Box 686
                                         Huntingdon, TN 38344


OPINION FILED:

AFFIRMED


David G. Hayes, Judge
                                              OPINION



        The appellant, William Ray Rhodes, appeals the dismissal of his petition for
post-conviction relief by the Circuit Court of Henry County. The appellant was

convicted by a jury of second degree murder and received a sentence of twenty-five

years.1 His conviction was 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 was denied the effective assistance of counsel at trial. After
review, we affirm.



        On appeal, the appellant alleges as grounds for ineffectiveness trial counsel’s
failure (1) to properly impeach the testimony of Chasity Davidson regarding her

ability to physically view, through a bathroom window, the appellant beating the

victim; (2) to present 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 ineffective 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 receives ineffective assistance where the facts
reveal both (1) that counsel’s performance was deficient and (2) that the deficient

performance so prejudiced defendant as to deprive him of a fair trial. Id. at 687, 104

S.Ct. at 2064. With respect to deficient performance, the appellant must show that
counsel’s representation fell below the range of competence demanded of attorneys

in criminal cases, and, that, but for these errors, the result of the 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 proceedings, the appellant must prove the allegations


   1
     The appellant’s conviction stems from the 1992 murder of his live-in girlfriend at the
residence which they shared. Because she was intoxicated, the appellant banished 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, observed the appellant beating the victim about her head, kicking her in the stomach
and leaving her exposed to the 26 degree temperature outside. The autopsy revealed numerous
abrasio ns and contus ions ove r her bod y with caus e of dea th as hypo therm ia.

                                                   2
contained in the petition by clear and convincing evidence. Tenn. Code Ann. § 40-

30-210(f) (1995). Moreover, the findings of fact of a trial court have the weight of a

jury verdict and are conclusive on appeal unless the evidence preponderates
against its judgment. Davis v. State, 912 S.W.2d 689, 697 (Tenn. 1995). This court

may not reweigh or reevaluate the evidence or substitute its inferences for those

drawn by the post-conviction court. Questions concerning credibility of witnesses
and the weight and value to be given their testimony are for resolution by the post-

conviction court. Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).



       The proof at the post-conviction hearing consisted solely 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 she witnessed from the bathroom window,

the appellant beating her mother on the deck outside the house. In a prior

statement, Chasity had not mentioned the bathroom window. Trial counsel testified

that, had he known the importance of the measurements inside the bathroom, he

would have had those pictures taken. Prior to trial, counsel hired a professional

photographer to photograph various areas of the crime scene. Although the

photographs contained a picture of the bathroom window from the outside, no

photographs were taken to demonstrate the height of the inside bathroom window
comparative to the height of the child. At trial, counsel cross-examined Chasity

regarding her ability to see outside the bathroom window. Moreover, counsel had

the appellant testify and demonstrate the height of the bathroom window in order to
show the child’s inability to view anything outside the window. Counsel also utilized

the other photographs and argued to the jury Chasity’s inability to see outside the

window. Proof at the post-conviction hearing established that the bathtub was
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 she would have testified that she climbed onto the

bathtub to look outside after hearing the commotion.


       Regarding Chasity Davidson’s trial testimony, the post-conviction court found

that “this identical issue, albeit without exact measurements was fairly raised by the

petitioner’s own testimony at trial and was vigorously argued to the jury during

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closing argument.” The post-conviction court further found,

       Indeed the credibility of this particular witness was argued throughout
       counsel’s closing argument. . . . Counsel took every opportunity to try
       to destroy the credibility of this witness, including the filling [sic] of a
       prior inconsistent statement 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 of counsel on this
       ground be supported.



       The appellant argues that the post-conviction court ignored 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 that had this

evidence been introduced, the jury would have been instructed to disregard the

entire testimony of Chasity, thus, forcing the jury to render a verdict of criminally
negligent homicide. We find the appellant’s argument unpersuasive. W hile we

recognize the physical facts rule allows a court to disregard the testimony of

witnesses unable to be reconciled with the physical evidence, see State v. Hornsby,

858 S.W.2d 892, 894-895 (Tenn. 1993), this case does not present us with this

issue. In order for a court to disregard the challenged testimony, the physical facts

must be “well-established and universally recognized physical laws.” Nelms v.

Tennessee Farmers Mut. Ins. Co., 613 S.W.2d 481, 483 (Tenn. App. 1978).

However, in the present case, we are prevented from applying the physical facts
rule because its application would be dependent upon assumptions of whether the

witness stood on the bathtub or 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-conviction proceedings, we should defer to trial strategy or
tactical choices if they are informed ones based upon adequate preparation.

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). Trial counsel testified at the post-

conviction hearing that

       [he] tried to cross examine 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 did leave out a few things. And I . . .
       hoped she kept them left out so that I could 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 things. . . . And what she’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.


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Additionally, Chasity’s testimony corroborated much of the physical evidence. 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. Although medical personnel

discovered the victim’s body crudely clothed in unzipped blue jeans and a t-shirt, the

expert testified that many of the abrasions would not have occurred had the victim
been clothed.



       In his final two contentions of deficient performance, the appellant argues that
trial counsel was ineffective because he failed to call several character witnesses at

the sentencing hearing and that counsel was deficient in investigating the victim’s

ex-husband and failure to call him as a witness. The post-conviction court found
that

       Counsel . . . did not want the issue of character injected into the trial or
       sentencing because his investigation 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 and would not hesitate to call witnesses to
       demonstrate the defendant’s character for violence, if the matter were
       placed in issue. Counsel’s election to not call character witnesses in
       view of this cannot be seriously questioned. The evidence was
       overwhelming as it was and would have been compounded by the
       testimony of one or more ex-spouses who testified to a pattern of
       domestic violence.
       ...
       [T]rial counsel’s investigation appears to be extremely thorough . . . .
       Significant independent investigation was made including the hiring of
       a professional photographer for the purpose of acquiring
       demonstrative evidence in support of the defendant’s theory. Clearly,
       trial counsel pursued every possible lead in the defense of his client . .
       . . The petitioner seems much aggrieved that trial counsel did not
       interview an ex-husband of the victim that he claims 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 findings.


       After review, we find counsel’s representation reasonable under prevailing

professional norms. In sum, we find appellant’s allegations of deficient

performance without merit. The record establishes that appellant’s counsel was an

experienced trial attorney and was acutely aware of the strategies and tactics to be
utilized in criminal proceedings. We avoid the “distorting 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-conviction court is affirmed.

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                          ____________________________________
                          DAVID G HAYES, Judge




CONCUR:




___________________________________________
JOE G. RILEY, Judge



___________________________________________
THOMAS T. W OODALL, Judge




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