The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1999 SESSION
FILED
April 19, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
JOHN R. ROBINSON, )
) C.C.A. NO. 02C01-9809-CC-00297
Appellant, )
) DECATUR COUNTY
VS. )
) HON. C. CREED McGINLEY,
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Ineffective Assistance of Counsel)
FOR THE APPELLANT: FOR THE APPELLEE:
STEVE BEAL JOHN KNOX WALKUP
22 Monroe St. Attorney General & Reporter
Lexington, TN 38351
J. ROSS DYER
Asst. Attorney General
Cordell Hull Bldg., 2nd Fl.
425 Fifth Ave., North
Nashville, TN 37243-0493
ROBERT RADFORD
District Attorney General
JERRY WALLACE
Asst. District Attorney General
P.O. Box 637
Parsons, TN 38363
OPINION FILED:
AFFIRMED
JOHN H. PEAY,
Judge
OPINION
The petitioner was found guilty by a jury of two counts of first degree murder
and one count of arson. He was subsequently sentenced to life without parole for each
murder conviction and a term of two years for the arson conviction. These sentences
were to run consecutively. On direct appeal, this Court affirmed the petitioner’s
convictions and sentences. The petitioner subsequently filed a petition for post-
conviction relief, which was dismissed by the trial court. The petitioner now appeals and
argues that he did not receive the effective assistance of counsel. After a review of the
record and applicable law, we affirm the judgment of the trial court.
The petitioner was convicted of the double homicide of Janice and Timmy
Barnett. At the post-conviction hearing, an attorney, D. D. Maddox, testified that he was
contacted by the petitioner’s wife, Mrs. Robinson, with regard to the pending murder
charges against her. Mr. Maddox testified that he visited the petitioner in jail and
informed the petitioner that he would be representing Mrs. Robinson. Mr. Maddox told
the petitioner that he would represent the petitioner until another attorney was appointed.
According to Mr. Maddox, he never spoke with the petitioner about any of the facts
surrounding the murders. Mr. Maddox then wrote a letter to the sheriff of Decatur County
stating, “I will represent [the petitioner] in the investigative stage of this case. I expect he
will receive a court-appointed lawyer . . . but prior to that appointment I want you to advise
all law enforcement officers . . . that [the petitioner] is not to be questioned about any
matter concerning this case . . . .” Mr. Maddox continued to represent Mrs. Robinson
after the petitioner received a court-appointed attorney.
The petitioner’s trial attorney, Richard DeBerry, also testified at the post-
conviction hearing. He testified that during the course of the trial, he and his co-counsel
tried to have Mrs. Robinson’s testimony excluded on the basis of Mr. Maddox’s initial
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representation of the petitioner and Mrs. Robinson. Mr. DeBerry also testified that he
examined the petitioner’s claim that another man, Mike Woody, had actually committed
the crime. According to Mr. DeBerry, he investigated Mr. Woody’s alibi and could not find
any witnesses to confirm or discredit the alibi. Mr. DeBerry admitted that samples had
been taken from the crime scene with regard to fingerprints, hair, and clothing, but no
tests had been performed on these samples. Mr. DeBerry claimed that part of his trial
strategy was to raise doubt in the minds of the jury with the fact that these samples had
been taken by the Tennessee Bureau of Investigation yet were never tested. Mr.
DeBerry also claimed that he did not request a change of venue in this highly publicized
case because he hoped that the jury would be aware of the reputation of Mr. Woody,
which might lend credence to the defense’s theory of innocence.
The defendant now contends that the trial court erred in dismissing his
petition for post-conviction relief on the grounds that he did not receive the effective
assistance of counsel. Under the Post-Conviction Procedure Act of 1995, the petitioner
has the burden of proving the factual allegations in his petition by clear and convincing
evidence. T.C.A. § 40-30-210(f). 1 Furthermore, the factual findings of the trial court in
hearings “are conclusive on appeal unless the evidence preponderates against the
judgment.” State v. Buford, 666 S.W.2d 473, 475 (Tenn. Crim. App. 1983).
In reviewing the petitioner’s Sixth Amendment claim of ineffective
assistance of counsel, this Court must determine whether the advice given or services
rendered by the attorney are within the range of competence demanded of attorneys in
criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). To prevail on a
claim of ineffective assistance of counsel, a petitioner “must show that counsel’s
representation fell below an objective standard of reasonableness” and that this
1
Con trary to the p etition er’s c onte ntion , as h is pet ition w as file d afte r Ma y 10, 1 995 , it is
govern ed by the P ost-Co nviction Pr ocedu re Act of 1 995. See T.C.A. § 40-30-201 Compiler’s Notes.
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performance prejudiced the defense. There must be a reasonable probability that but for
counsel’s error the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984); Best v. State, 708 S.W.2d 421, 422 (Tenn.
Crim. App. 1985).
This Court should not second-guess trial counsel’s tactical and strategic
choices unless those choices were uninformed because of inadequate preparation,
Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel should not be deemed to
have been ineffective merely because a different procedure or strategy might have
produced a different result. Williams v. State, 599 S.W.2d 276, 280 (Tenn. Crim. App.
1980).
The petitioner contends his trial counsel was ineffective based on several
arguments. The petitioner first argues that his counsel should have had the hair and
blood samples taken by the Tennessee Bureau of Investigation independently tested.
The petitioner contends that he told his attorneys that these samples “would or could be
exculpatory.” However, at the post-conviction hearing, Mr. DeBerry testified that his
decision not to test these samples was a trial tactic. He testified that the samples had
been withdrawn by the State without being tested, a fact that was made known to the jury
in an effort “to build up doubt in the case.”
As stated previously, this Court will not second-guess trial counsel’s tactical
and strategic choices unless those choices were uninformed. In the case at bar, the
petitioner’s attorney made a tactical decision in an effort to discredit the State’s case.
The petitioner has failed to show that this decision fell below an objective standard of
reasonableness. In addition, the petitioner has failed to show that his attorney’s failure
to have the samples independently tested prejudiced the defense. There is no evidence
in the record that such tests would have revealed exculpatory information. As such, the
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petitioner has failed to prove this allegation by clear and convincing evidence. This
contention is without merit.
The petitioner next contends that his trial counsel was ineffective for failing
to “properly test the testimony of Mike Woody.” In addition, the petitioner claims that
witnesses who might have countered Mr. Woody’s alibi were not presented at trial. At
the post-conviction hearing, Mr. DeBerry testified that he explored Mr. Woody’s alibi and
was unable to find any witnesses to credit or discredit his alibi. Mr. DeBerry testified that
he was able to locate the log books kept at the club where Mr. Woody claimed to have
been at the time of the murders. Mr. Woody’s name did not appear on the log book on
the night of the murders and Mr. DeBerry used that fact at trial to attempt to discredit Mr.
Woody’s alibi. There is no evidence that any other witnesses existed that could have
discredited Mr. Woody’s alibi. In light of the foregoing, the petitioner has failed to
establish that his trial counsel’s representation was substandard that this performance
prejudiced the defense. As such, this contention is without merit.
The petitioner contends that his trial counsel was ineffective for failing to
contact the Tennessee disciplinary counsel with regard to Mr. Maddox’s representation
of the petitioner and Mrs. Robinson in the preliminary stages of this case. The petitioner
asserts such joint representation caused a conflict of interest that led to Mrs. Robinson’s
waiver of spousal immunity. Mr. DeBerry testified that he filed a motion to exclude Mrs.
Robinson’s testimony on the basis of Mr. Maddox’s supposed conflict of interest. This
motion was denied by the trial court. On direct appeal of this case, this Court affirmed
the trial court’s finding that Mr. Maddox did not receive confidential information from the
petitioner and no attorney/client privilege was ever established between Mr. Maddox and
the petitioner. State v. John R. Robinson, No. 02C01-9501-CC-00024, Decatur County
(Tenn. Crim. App. filed December 13, 1995, at Jackson). Notwithstanding this, the
petitioner has failed to prove there is a reasonable probability that but for his trial
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counsel’s failure to file a complaint with the appropriate disciplinary board, the result of
the proceeding would have been different. In light of the foregoing, this contention is also
without merit.
The petitioner further contends that his trial counsel was ineffective for
failing to file a motion for a change of venue due to the high profile of the case. At the
post-conviction hearing, Mr. DeBerry testified that his failure to file a motion for a change
of venue helped advance his theory of the case. According to Mr. DeBerry, Mr. Woody
was to be implicated in the murders and that theory “would be more sustainable in
[Decatur] county than somewhere else where [Mr. Woody] was maybe unknown. It’s just
a tactic we decided on.” As the defendant has failed to show that this tactic was
uninformed due to inadequate preparation or that his defense was prejudiced by the
decision not to file for a change of venue, this contention is without merit.
Accordingly, we affirm the trial court’s dismissal of the petitioner’s post-
conviction petition.
______________________________
JOHN H. PEAY, Judge
CONCUR:
_________________________________
JOE G. RILEY, Judge
_________________________________
JAMES C. BEASLEY, SR., Special Judge
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