Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs April 18, 2018
from the Criminal Court for Davidson County No. 2011-B-1911
Mark J. Fishburn, Judge
Davidson County jury convicted the Petitioner, Roderick
Dewayne Crosby, of four counts of aggravated kidnapping,
three counts of aggravated robbery, one count of burglary,
one count of aggravated assault, and one count of possession
of a firearm during the commission of a dangerous felony, and
the Petitioner received an effective sentence of thirty-four
years. On appeal, this court affirmed the judgments. See
State v. Roderick Dewayne Crosby, No.
M2014-00914-CCA-R3-CD, 2015 WL 4197613, at *1 (Tenn. Crim.
App., at Nashville, July 13, 2015), perm. app.
denied (Tenn. Oct. 15, 2015). The Petitioner filed a
post-conviction petition, and the post-conviction court
denied relief following a hearing. On appeal, the Petitioner
maintains that he received the ineffective assistance of
counsel. After review, we affirm the post-conviction
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Lords, Nashville, Tennessee, for the appellant, Roderick
Herbert H. Slatery III, Attorney General and Reporter; M.
Todd Ridley, Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Janice Norman, Assistant
District Attorney General, for the appellee, State of
W. Wedemeyer, J., delivered the opinion of the court, in
which John Everett Williams and Camille R. McMullen, JJ.,
W. WEDEMEYER, JUDGE
Davidson County jury convicted the Petitioner of four counts
of aggravated kidnapping, three counts of aggravated robbery,
one count of burglary, one count of aggravated assault, and
one count of possession of a firearm during the commission of
a dangerous felony. On direct appeal, this court summarized
the evidence presented at trial as follows:
This case arose after the [Petitioner] and two others invaded
the victims' home. T.B. testified that at the time of the
incident, she was living with her grandmother, B.M., her
mother, P.M., and her younger brother, J.C. B.M. slept on a
couch in the living room, J.C. had his own bedroom, and T.B.
and P.M. shared a bedroom ("T.B.'s room"). On
the evening of the incident, after the rest of the family had
gone to sleep, T.B. was awake in her bedroom when she heard
several loud kicking noises at the door. She started
screaming at her mother that someone was kicking the door,
and the two rushed into the living room.
T.B. and P.M. saw three men in the living room. All three men
were wearing dark "hoodies, " had bandanas covering
their faces, and were holding guns, which the victims
testified were visible for the entirety of the incident. T.B.
testified that the victims' cell phones were all on a
dresser and that the men took the cell phones as soon as they
entered the residence. The first man was later identified as
Kirk Pointer, the second man was identified as the
[Petitioner], and the third man was identified as
"Pop." T.B. described the [Petitioner] as an
African-American male who was "kind of short" with
"shoulder length" dreadlocks. She believed that the
[Petitioner]'s hood was down because she was able to see
his dreadlocks. She testified that the [Petitioner] had his
sleeves rolled up, and she saw that he had a sizeable tattoo
of the letter "C" on his left arm. He wore a
bandana tied around his mouth and nose, but the bandana slid
off of his nose several times, allowing T.B. to partially see
his nose. T.B. recognized him as a person whom she had
previously seen at a store in North Nashville, but she did
not know him by name. P.M. described the [Petitioner] as an
African-American male who had dreadlocks that fell just
beyond his shoulders. She also testified that his sleeves
were rolled up and that he had a "very visible"
tattoo of the letter "C" on his left arm. P.M. saw
that the [Petitioner] had other tattoos, but she did not
attempt to identify them because the "C" was the
most distinguishable tattoo. T.B. and P.M. both identified a
photograph of a tattoo of a "C" as the tattoo that
they saw on the [Petitioner].
T.B. believed that the men were intending to rob her
sister's boyfriend, whom they mistakenly believed lived
at the residence. She testified that the [Petitioner], after
seeing a picture of her sister's boyfriend, informed Mr.
Pointer and Pop that they were "in the right house,
" although J.C. testified that it may have been Pop who
identified the boyfriend. The men asked if anyone else was in
the house, and P.M. informed them that J.C. was there.
J.C. testified that he was in his bedroom asleep when he
heard shouting in the living room. He went to investigate the
commotion and saw T.B., P.M., and B.M. in the living room
with three armed men. J.C. attempted to return to his
bedroom, and the [Petitioner] followed him into the room.
J.C. described the [Petitioner] as an African-American male
who was 5'8" or 5'9" tall with dreadlocks
"past his shoulders." At one point, the
[Petitioner] grabbed J.C.'s arm and ordered him to go
into T.B.'s bedroom. J.C. was able to look at the
[Petitioner's] arm, and he saw a large, green letter
"C" tattooed on the [Petitioner's] left arm. He
saw that the [Petitioner] had other tattoos, but he could not
identify them. He testified that the [Petitioner] wore a blue
bandana tied around his face that fell down several times,
allowing J.C. to see the [Petitioner's] face from the top
of his lip to his eyes at times during the incident. J.C.
testified that he was attempting to pay close attention to
the [Petitioner's] face "[t]o see if I could see who
he was or could I remember who he was."
The men took all of the victims into T.B.'s bedroom and
ordered T.B., P.M., and J.C. to lie on their stomachs on the
bed and to place their hands behind their backs. Mr. Pointer
then put duct tape on their hands, ankles, and mouths. B.M.
was in the bedroom, but the men did not duct tape her. As Mr.
Pointer was binding the victims, the [Petitioner] and Pop
started to ask the victims where the money was, with the
[Petitioner] stating, "[W]here is the money; ya'll
know where the money is." T.B. testified that while the
[Petitioner] was demanding the money, Pop "was just
standing around just watching everything" and that he
appeared to be using a phone or a walkie-talkie to narrate
the unfolding events to someone outside of the residence. All
of the victims testified that the [Petitioner] was in close
proximity to them while they were in the bedroom and that he
was holding his gun.
Shortly after duct taping the victims, the men began
ransacking the house. T.B. testified that the men were
"going through everything, pulling everything out."
P.M. testified that the [Petitioner] was "[u]sing a lot
of profanity, asking us where the money [was] and mostly he
was just tearing up the house." The [Petitioner] found
P.M.'s purse, and she saw him empty the contents onto the
floor. P.M. testified that $400 and a cell phone were taken
from her. Each of the victims testified the [Petitioner] was
primarily responsible for the search of the house.
While the [Petitioner] was scouring the residence, Mr.
Pointer took P.M. into J.C.'s bedroom. He removed the
tape from her mouth and started to kiss her. He pulled off
her pajamas and kissed her breasts. He then took down his
pants and demanded that P.M. perform oral sex on him. When
she was finished, Mr. Pointer told her that "he was
going to do [her] daughter the same way" if P.M. did not
tell him where the money was. Mr. Pointer returned P.M. to
T.B.'s room and took T.B. to J.C.'s room. When P.M.
returned to the room, Pop was the only man in the room.
In J.C.'s bedroom, Mr. Pointer began to sexually assault
T.B. During the assault, the [Petitioner] opened the bedroom
door, and Mr. Pointer stopped his assault and pretended as
though he was simply talking to T.B. The [Petitioner]
immediately closed the bedroom door, and Mr. Pointer resumed
his sexual assault. The [Petitioner] later opened the bedroom
door a second time and caught Mr. Pointer in the midst of his
assault. The [Petitioner] entered the bedroom and said to Mr.
Pointer, "[W]hat are you doing, come on out of
there" and exited the bedroom. Mr. Pointer then returned
with T.B. to her bedroom.
Once the three men and the victims were back in T.B.'s
room, T.B. heard the men telling a fourth party that they
could not find anything and asking if they should leave the
residence. J.C. heard the men say "'that the house
was clean, '" and he observed them ripping the
telephones out of the wall. Pop was speaking with an
individual on a walkie-talkie, and this person told the men
to exit the residence. J.C. testified that before the men
left, they instructed the victims not to leave until the men
were gone. The men made off with J.C.'s cell phone and
several dollars off of his dresser, P.M.'s cell phone and
$400 from her purse, and a cell phone belonging to T.B.
After the men left, the victims began to assist each other in
removing the duct tape. T.B., whose hands had been freed when
Mr. Pointer took her into J.C.'s bedroom, called the
police. Several officers, including Detective Edmond
Strickling, arrived at the scene. Detective Strickling
testified that in 2009, he was working for the Metro
Nashville Police Department in the sex crimes unit. He
arrived at B.M.'s residence and interviewed P.M., T.B.,
and J.C. He interviewed the three separately, and each
provided the same general description of the [Petitioner] as
a [sic] African-American male who wore a black
"hoodie", had dreadlocks "[p]ossibly down to
his shoulders, " and a tattoo of the letter
"C" on his forearm. After the interview, P.M. and
T.B. went to the hospital for a medical examination.
Detective Strickling took DNA swabs from P.M. to the
Tennessee Bureau of Investigation ("TBI") to put in
the CODIS system for testing. However, he was not able to
develop any other leads in the case, and the case "kind
of went cold."
Nearly a year and a half after the robbery, on February 14,
2011, T.B. saw the [Petitioner] when both were being booked
into jail. The [Petitioner] had already been booked, and T.B.
was beginning the booking process. When T.B. saw the
[Petitioner], she immediately recognized him as one of the
men who broke into her house. His tattoos were not visible,
but she was able to recognize him based solely upon his
facial features. When the [Petitioner] saw her, he "did
a double take, " and he approached T.B. to speak with
her. He asked T.B. to make a phone call for him, and T.B.
told him that she could not use the phone. The [Petitioner]
continued to try to speak to her, and eventually a guard
locked the [Petitioner] in a separate cell.
T.B. estimated that she was with the [Petitioner] for an hour
in jail. When she left, the [Petitioner] handed her a slip of
paper with "a lot" of names and telephone numbers.
He asked her to call the numbers to help him get out of jail
"before his probation violation c[a]me up in the
system." T.B. told her mother that she saw the
[Petitioner] in jail, but she did not contact Detective
Strickling because she did not know how to reach him.
In April of 2011, Detective Strickling learned that there had
been a CODIS match from the DNA swab of P.M. that identified
Mr. Pointer. Detective Strickling subsequently contacted P.M.
and T.B. and met with them to show them a photograph lineup
that included Mr. Pointer. Each victim viewed the lineup
separately. Before showing them the lineup, Detective
Strickling explained "that the suspect may or may not be
in this form, in these photos, don't assume that the
guilty party is in the photos, the photo lineup is used in a
way to also free up and prove someone's innocence as long
as - as well as guilt." T.B. corroborated these
cautionary instructions, testifying that Detective Strickland
told her prior to showing her the lineup that "it's
a page of people, they may or may not have committed this
crime, it may just be that they're eliminating someone
off of here." Both T.B. and P.M. identified Mr. Pointer
from the lineup.
After viewing the lineup, T.B. informed Detective Strickling
that she may have seen the suspect with a "C"
tattooed on his arm while she was in jail. T.B. had attempted
to locate a "Face It" magazine, which contained the
mug shots of people who had been arrested, to find the
[Petitioner's] mug shot, but she was unable to do so. She
was unable to provide Detective Strickling with the piece of
paper containing the names and numbers that the [Petitioner]
had given her because she had lost it. However, the
[Petitioner] had given T.B. his phone number, and Detective
Strickling testified that T.B. was able to provide him with
that phone number. Detective Strickling retrieved the records
for all of the African-American males arrested on the same
day as T.B. By cross-referencing the phone number provided by
T.B. with the arrest records of February 14, 2011, Detective
Strickling was able to discover that the [Petitioner] gave
that phone number when he was booked. Detective Strickling
looked through the historical photos of the [Petitioner] and
saw that he had a tattoo of the letter "C" on his
forearm. He agreed that the photograph of the [Petitioner]
matched the description given to him by the victims.
After finding the photograph of the [Petitioner], Detective
Strickling interviewed Mr. Pointer about the crime. He showed
Mr. Pointer a lineup that contained the [Petitioner's]
photograph, and Mr. Pointer picked the [Petitioner's]
photograph out of the lineup. Mr. Pointer voluntarily
provided information about the [Petitioner], using the
[Petitioner's] first name. He described the [Petitioner]
as a black male with ...