State v. Carruthers

STATE Tennessee

Tony V. & CARRUTHERS Montgomery.

James Tennessee,

Supreme Court of

at Jackson.

Dec. Filder-

Stephen R. Leffler and Lee A. man, TN, Memphis, appellant, for the Tony V. Carruthers.

Robert Brooks and Edward W. Chan- C. dler, TN, Memphis, appellant, Montgomery. James General; Moore, E. Michael Solicitor Counsel; Phillip Amy Tarkington, Senior Harris; Attorney Gerald Assistant District General; Carter, Jr., Robert Assis- and J. General, ap- for the Attorney District tant pellee, State of Tennessee.

DROWOTA, J., of opinion delivered ANDERSON, C.J., court, in which BARKER, JJ., HOLDER, joined. and Tony Montgom- and Carruthers James of ery each of three counts convicted premeditated murder and degree first convic- to death on each were sentenced af- Appeals The Court of Criminal tion. sentences of firmed the convictions and There- Montgomery. and both Carruthers after, in this were docketed the cases reviewing rec- carefully After Court. authorities, legal defendants, ord and the relevant we both and he considered Car- that conclude none of the errors trustworthy raised ruthers to be a friend. The Tony reversal, require Carruthers proof that the showed trust that Anderson’s was to support jury’s evidence sufficient misplaced. circumstances, of findings aggravating Jimmy In the summer Lee and that sentences death are not Maze, Jr., felon, a convicted received two or disproportionate considering excessive Carruthers, letters from was who then the circumstances of the crimes and the prison on an unrelated conviction. defendant. With Mont- respect James letters, Carruthers “a referred to master we gomery, conclude that the court “a plan” was winner.” Carruthers erred in him denying a severance and that wrote of his to “make intention those Montgomery being error resulted in announced, pay streets me” and “every- deprived of a fair trial. Accordingly, we thing I do orga- from now on will well Montgomery’s

reverse convictions and sen- Later, and extremely nized violent.” a tences and remand for new trial. 1993, the fall of while incarcerated at the Reception Mark Luttrell in Mem- Center OPINION release, phis awaiting his Carruthers was defendants, Tony The V. Carruthers to a local assigned work detail at a ceme- Montgomery, James were each convicted tery, the West Tennessee Veterans’ Ceme- degree for killing first murder Marcellos tery. At point, helped bury one as he a Anderson, “Cello” his mother Delois body, in- Carruthers remarked to fellow Anderson, and Frederick Tucker in Mem- Ray mate Charles Smith “that would be a phis in February of 1994.1 All of the know, good way, you bury somebody, if disappeared night victims on the of Febru- you’re you kill going to them.... ain’t [I]f 3, ary On March their got body, no you don’t have a case.” together pit bodies were found buried in a Smith also testified that he overheard been dug had beneath a casket Montgomery, Carruthers who also was grave Memphis cemetery.2 in a Center, Reception incarcerated at the talk- ing about Marcellos Anderson after

The Guilt Phase Anderson had driven back to proof guilt phase introduced at the Reception furlough. Center from a victims, of the trial showed one of Smith, According Montgomery when Anderson, heavily Marcellos involved Anderson, asked Carruthers about Car- trade, drug along with two other ruthers told him both Anderson and men, “Baby Andre Brother” Johnson “Baby drugs Brother” Johnson dealt Terrell Adair.3 Anderson wore expensive money. lot of Carruthers said he jewelry, including large ring, diamond Montgomery “get” could “rob” large money carried sums of person, on his they once were re- Anderson and Johnson kept amount of considerable cash leased from prison. mother, the attic the home victim Delois Anderson. dis- body When Carruthers was released from the When covered, wearing any Department Anderson was not on November Correction jewelry Reception and did not have cash on his he left the with Center person. acquainted accompanied Anderson was Anderson. However, They 1. were also each three sever- convicted of counts involved in this case. trial, especialfy aggravated kidnapping Montgom- prior counts al months to Jonathan aggravated Shelby especially ery hanged and one count of rob- was in cell the found in bery County jail. of Marcellos Anderson. Montgomery's younger James Jona- Anderson nor Frederick brother 3.Neither Delois Montgomery charged drug than in was also on all Tucker were trade. involved January or the house, first and end Near Anderson to Andre Johnson’s 1994, cash from and gift February Johnson Adair saw received $200 Adam, Anderson, Johnson, who and Terrell sitting together in older defendants present at house. was Johnson’s from the street John- grey model car down night, It late at mother’s home. was son’s later, One month on December 1 a.m. p.m. and When between Department from the Smith was released Adair, release, Johnson and approached Upon his Smith defendants of Correction. thought he why they of Carruth- Montgomery warned Anderson and Johnson asked “get Montgomery’s plans to Montgomery ers’ and harm them. trying was to Johnson, and According them.” Smith “Look, them, you, got ain’t I told we told warning did take the or the Anderson not neighbor- nobody this problem no with seriously. defendants’ threats already our man staked out. got We hood. something, Maze, trouble or broth- If we wanted some mid-December riding your er Carruthers were around kill got you right and now. We’d we Memphis together. They upon came Ter- Confirming Montgomery’s family.” whole Jeep red street in front rell Adair’s them, al- statement, told “We Carruthers Anderson’s home where a drive- Delois all got man staked out. You ready our had by shooting just occurred. Adair we’ll deal with right. problem, If it’s injured shooting been in the and was Montgomery explained that he it later.” Montgom- the hospital. Jonathan “Lulu” money take “man’s” intended to brother, ery, at Montgomery’s James said, have drugs, police “if the didn’t joined shooting, scene of the and he body, they no wouldn’t no ease.” car. Carruthers the back seat of Maze’s 23, 1994, February Maze, Marcellos remarked On According Carruthers that, Jeep to Jonathan “it would be the best Anderson borrowed a white Chero- Marcellos,” kidnap cousin, time to and Jonathan Harris. kee from his Michael asked, Baby “which one Brother or Mar- February Around 4:30 on the afternoon of nudged then Mont- cellos?” Carruthers 24, 1994, saw Marcellos witnesses “it” was gomery with his elbow and said riding Tucker Anderson and Frederick going place Montgom- take after James along with Jeep James Cherokee ery prison. About two was released Montgomery. p.m. About 5 Jonathan later, weeks on December Maze saw Montgomery and Jonathan day, James loading antifreeze con- three Jeep in the Anderson and Tucker arrived car, into a indicat- tainers Shaw, of Nakeita at house Cherokee ed to filled Maze that containers were Nakei- Montgomery brothers’ cousin. gasoline. Shaw, children, and Benton her four ta 11, 1994, January Montgom- On James West, cousin, present her also ery prison. was released from After his they arrived. house when release, Montgomery “Baby told Brother” the house and The four men entered he, Johnson, Johnson that A to the basement. short went downstairs charge neighborhood. Montgomery later, Montgomery came back time James said, neighborhood I my “It was before if Nakeita she and asked Shaw upstairs left, my neigh- now I’m back its so could “take leave for while he could again.” Montgomery asked John- borhood business.” Nakeita Shaw care some “go if war son he wanted about thought “they” were that she told West said, “no,” neighborhood.” When Johnson then left being kidnapped, and she feeling like “You now Montgomery replied and her children. West house with West your g I’m to blow brains about motherf — Shaw’s children agreed care Nakeita in line “you get out” and all need around meeting. she about this.” while attended a going here or we’re war Nakeita When returned af- Montgomery “beeped” Shaw home Jonathan him. meeting, only “Man, ter the saw said, she Carruthers got Jonathan an —r them Montgomery. and Montgomery James asked, folks.” When Hines “What folks?” go to her pick up asked her children and to replied, them” Jonathan “Cello and and “stay gone longer.” little Nakeita Shaw $200,000. said something stealing about home with returned her children before 10 Jonathan then indicated that he could not p.m. Jeep The gone, Cherokee was but more on telephone arranged talk and Montgomery James and person. to meet Hines in Jonathan ar- still at present her home. Montgomery rived at Hines’ home at 9:00 p.m. about put told Nakeita Shaw to her children to “Man, him, told got we them folks out upstairs bed and remain there until he told cemetery Presley, at the Elvis on and we later, her leaving. he was Sometime $200,000. Man, got a n — r had kill Montgomery called out Shaw Nakeita folks.” that point, them At Mont- James that he was leaving. She down- returned gomery “beeped in” and with Jona- talked stairs and saw Montgomery, James Car- ended, telephone than. When the call Jon- ruthers, victims, and the two Anderson athan asked him to Hines drive Tucker, Jeep leave in the Cherokee. refused, cemetery. he Hines but allowed trial, police Prior to Nakeita Shaw told the car, Jonathan borrow which Jona- that Anderson’s and Tucker’s hands were promised than return in an hour. Wfiien tied they behind their when backs left her returned, car was not Hines called making house. While she admitted telephone Montgomery’s James cellular at statement, she testified at trial that 11 p.m. around told Hines that James he statement was false and that had not she was, did not know Jonathan that where seen Anderson’s and Tucker’s tied hands license, Jonathan did not a driver’s they when left her home.4 and that the 4by car should be returned meantime, In the around 8 Feb- p.m. on supposed a.m. because Jonathan was ruary Briggs telephoned Laventhia her girlfriend’s James to drive house. aunt, victim Delois Anderson. When Jeep The Cherokee Anderson had picked up telephone someone but said in Mississippi borrowed was found on Feb- nothing, Briggs hung up. “a Briggs called ruary 25 2:40 a.m. around It been couple more times” but received no a.m., destroyed by fire. About 3:30 after Briggs living answer. with Delois he fire law was informed of vehicle Anderson the time and arrived at her officials, telephoned enforcement Harris aunt’s p.m. Although home around 9:00 home, Laventhia Delois Anderson’s home, Delois purse, Anderson was her Briggs then that neither her discovered car, keys were there. Food left aunt Delois nor her cousin Marcellos had Anderson’s bedroom indicated she Briggs missing returned home. filed interrupted Briggs had been while eating. person report police later that bed, assuming went her aunt would day. co-worker, return home soon. A whom Delois Anderson had driven home around Montgomery brothers and Carruth- 7:15 p.m., person was the last to have seen approxi- did not return Hines’ car until ers her alive. mately The car February 8:30 a.m. on 25. Hines, very muddy. Hines James

Chris who had known the defen- drove junior school, Montgomery high Montgom- dants since testified p.m. February ery’s away 8:45 on mother’s and then around home drove do, police Shaw told to die.” At Nakeita had also be- did not trial, then "all of us needed cross-examination, being fore trial that she had afraid life she denied been for her Montgomery Montgomery said it was that James had threatened afraid of James frightened investigation began, her after of this case involvement this case that her stating something if die for he had to he her. 25,1994. to a February Pursuant court Montgomery. morn- on That with Jonathan disinterred, order, and Jonathan, Hines described as Daniels’ casket was ing whom “nervous,” of repeated- and the the acting “paranoid” the discovered bodies authorities had to kill some ly “they Hines that the casket told buried beneath three victims later, two hours James people.” About a single inches dirt and under several of came to Montgomery and Carruthers piece plywood. of looking home for Jonathan. Hines Hines’ cemetery of testified employee An the Montgom- advised Carruthers and James had wood or vault been pressed that a box birthday, ery celebrating he was grave during working placed Daniels’ give Montgomery and he asked James February it would 24 and that hours on agreed birthday present. him a James people to remove have taken at least two give twenty picked Hines dollars after he placed had been the Daniels’ casket box. up agreed paycheck, James also February grave inside the box on the immediately have Hines’ car washed as 25, and, Dr. Edward according Hugh present. birthday anthropolo- Berryman, of the forensic one brothers, Hines, Montgomery the in the removal the gists who assisted carwash, and James Carruthers drove scene, no there was bodies the crime Montgomery paid elderly an unidentified casket suggest that Daniels’ evidence man to clean the car. man cleaned she buried. had been disturbed after was the car the interior of the trunk Thus, it can be inferred that the bodies of car. Neither nor James Mont- grave placed in the three victims were gomery supervised cleaning of the car. ply- and a piece and covered with dirt abruptly Montgomery After Jonathan left being placed prior wood casket carwash, Mont- James the grave. gomery Hines what Jonathan had asked him, told Hines but did not tell them. Smith, helped who remove the Dr. O.C. days Montgomery later Several James grave performed from the and who bodies Hines came to Hines’ home and offered that, victims, autopsies on the testified Montgomery AK-47 assault rifle because found, body of Delois Anderson when it said he “heard that Hines was into grave bottom of the lying at the people on some the street.” James male the bodies the two victims Montgomery told Hines the rifle had hands of all three lying top on of her. The on Hines he in- “blood it.” testified that backs. victims were bound behind their this statement to mean that terpreted feet were also bound Frederick Tucker’s weapon. someone had been shot with the signs bruising and his neck showed A sock ligature. caused red On March about one week after around Delois Anderson’s neck. found person missing report was filed on Delois wearing any Marcellos Anderson was not Anderson, and Marcellos Jonathan Mont- that Delois jewelry. Dr. Smith testified Ruby gomery directed Detective Jack caused asphyxia died from Anderson Memphis Department Police of her head position several factors: Dorothy Rose Hill grave of Daniels against body, her dirt her mouth Presley Cemetery on Elvis Boulevard.5 nose, weight body. her and trauma from away six grave plots Daniels’ was located gunshot received a Frederick Tucker had grave Montgomery from the site of the chest, would not have cousin. Daniels had been buried wound to his which brothers’ day proof p.m. on the of the Although about victims around 5:00 did not hear why Montgomery questioned Detective police Jonathan directed Jona- murders. When grave, pre-trial Ruby to the the record of conflicting gave Montgomery, state- than he hearings investiga- jury-out reflects that the ments, Ruby eventually directed Detective but upon Montgomery broth- tion had focused grave were buried. where the bodies they because were seen with two ers tion, been fatal had he received medical investigator care. the that Maze admitted injuries He had also suffered from blunt said that he from pris- when was released resulting on, trauma to his abdomen and head explained Carruthers had that the ribs, skull, in broken a plan kidnapping fractured and master involved Marcellos ruptured opined liver. Dr. Smith that Anderson. Carruthers’ brother and anoth- placed Tucker shot grave, was in the er witness testified that Jonathan Mont- compression being where the force of from gomery was not at the scene drive- and, buried produced injuries the other by shooting involving Terrell Adair. This wound, along the gunshot with his proof impeach caused was offered to Maze’s testi- Smith, Dr. According mony death. to Marcellos that Carruthers and Jonathan Mont- Anderson had been shot three a gomery times: on kidnapping discussed Marcellos contact wound to that not day his forehead was that Terrell Adair was shot. An- neck, witness, two to severe and shots his Aldolpho one other Antonio James However, which was also not serious. he testified that and Carruthers had been gunshot causing other visiting neck wound had a friend the hours of 1:00 between entered windpipe Anderson’s severed day a.m. and 2:00 a.m. the these before cord, spinal paralyzing his him from the reported homicides were first on the news. neck down. This not testimony provide wound was instanta- This at was offered to neously fatal. Anderson also partial suffered least a alibi for Carruthers for the blunt trauma to his early morning February 25, abdomen com- hours of 1994. pression opined However, cross-examination, forces. Dr. Smith that on James ad- each victim was alive when buried. mitted that he did not know the exact date together. he and Carruthers had been Montgomery present-

Defendant James Carruthers, se, no proof. acting ed pro Carruthers also called Alfredo Shaw as called several witnesses to rebut the testi- seeing a witness. After a television news mony State, offered primarily about report killings these March attacking credibility of the State’s wit- had telephoned Alfredo Shaw Cri- nesses. meStoppers given statement A health police implicating administrator at Mark Carruthers. Alfredo that, Reception Luttrell Center testified grand jury Shaw later testified before arm, because of an injury eventually Carruth- which returned the indictments given job change ers had been against Octo- Carruthers and Pri- Montgomery. 6, 1993, trial, however, ber and had not at the press reports worked or several cemetery after that Another date. official that Shaw had recanted indicated Alfredo grand at the Reception jury testimony, professed Center testified that Car- that fabricated, on furlough ruthers was released after the statement had been grand Montgomery Reception formally arrived intended to recant his testimony Center on This as a proof November when called witness for the impeach testimony Therefore, was offered to Smith’s defense. when Carruthers Montgomery prosecu- that and Carruthers called testify, dis- Alfredo Shaw to robbing cussed Marcellos announced if he getting tion that took stand Anderson prior testimony, after Anderson drove Carruth- and recanted his sworn he following back the Reception charged prosecuted ers Center would be with An furlough. investigator appointed aggravated perjury. light two counts of announcement, prosecution’s assist Carruthers with his testified the tri- defense Maze, who that he had interviewed admit- al court summoned Alfredo Shaw’s attor- anything ney ted he did not know about the and allowed Alfredo Shaw confer “master re- that plan” privately Following private which Carruthers him. conference, attorney ferred the letters until Carruthers was Alfredo ad- Shaw’s counsel, court, in- prison. released from On cross-examina- defense vised Carruthers, told Alfredo Shaw and the folks.” Carruthers eluding prosecution, attorney to hire an testify con- he not going that Alfredo Shaw intended sistently prior with his statements and would prosecution post bond because testimony incon- grand jury been a then the murders had learn sistent statements Alfredo Shaw had made Alfredo “hit.” Carruthers told Shaw press motivated his fear of also to have been supposed Johnson and he Carruthers threats had received Terry Durham Jerry “hit” and that and from him. people having these were the “main behind said that individuals killed.” Carruthers information,

Despite this Carruthers revenge because the Durhams wanted and as called Alfredo Shaw as a witness advised, attorney previously had sto- provided his testi- Aiderson and Johnson Shaw mony consistent with his initial statement len from them. grand police jury testimony.

to and his response questioning to Carruth- Specifically, that Alfredo Shaw testified he ers, acknowledged that he Mfredo Shaw three-way had on a call with been Carruth- had that his statement to press told Durham, Terry Jerry ers and either or testimony police grand jury and his had call, during and had asked this Carruthers fabricated, but he had done so been said murders, saying him participate to these him because Carruthers had threatened plan” they he that had “sweet and would family. According to and his Mfredo $100,000 each kilogram earn and a co- Shaw, investigators one of had Carruthers’ Following caine. his arrest for these mur- speak arranged reporter for a news ders, Carruthers was incarcerated recanting jury him his grand about Shelby County along Jail with Alfredo testimony. Shaw, who was incarcerated on unrelated charges. Carruthers and Alfredo Shaw witness, impeachment of his own As library

were in the law when Carruthers Jerry Terry both and Carruthers called told Alfredo and Shaw that he some other Durham, brothers, twin as witnesses. The unidentified individuals went to Delois knowing Shaw Durhams denied Alfredo looking Anderson’s house for Marcellos they party and had never been said money. Anderson and his Marcellos was three-way involving Alfredo telephone call arrived, they not there when but Carruth- Carruthers also Shaw Carruthers. ers told Delois Anderson to call her son attorney AC Wharton who testified called home, something and tell him to come “it’s initially was that he retained Carruth- arrived, important.” Anderson When these represent ers’ mother to her son on Anderson, Tucker, defendants forced who required but to with- charges, murder Anderson, was with and Delois Anderson aof conflict of interest. draw because jeep gunpoint into the at and drove them impeach was offered to M- testimony This Mississippi, where shot the defendants statement fredo Shaw’s Marcellos Anderson and Tucker he hire an going was not said According jeep. burned the to Alfredo Finally, attorney post or bond. Carruth- Shaw, the defendants drove all three then ers called an administrative assistant Memphis in a vehi- victims back to stolen County jail Shelby who testified that, they cle. Alfredo testified after Shaw records, jail indicated that Mfredo Shaw put and Tucker into Marcellos Anderson time library law at the same not grave, Delois Anderson started February as either screaming one of defendants told records, According jail March of 1994. like her to “shut or she would die her up” custody protective Mfredo Shaw was grave. pushed son her into the Car- result, and, as a would much of that time also ruthei’s told Alfredo Shaw by guard. times escorted all if have been bodies would never have been discovered cross-examination, However, wit- boy “the wouldn’t have went and told them jail wound, ness admitted that the regard- records cord but the wound would have ing library always the law com- airway lungs, bled into his making his plete or accurate and that Alfredo Shaw very breathing difficult. Dr. Smith said protective had been housed outside of cus- literally Anderson would have been tody early from mid-March April 1994 “drowning on his own blood.” which him would afforded the oppor- Tucker, With respect Frederick Dr. tunity interact with Carruthers. The gunshot Smith testified that the wound to record reflects that Alfredo Shaw came pierced chest fractured two ribs provided forward and police statement to would lung, but not have been fatal had on March 1994 and that the indict- he obtained medical treatment. Because ments were returned on March the wound bled into lungs Tucker’s upon Based this proof, found cavity, abdominal Dr. testified that Smith each guilty beyond defendant a reasonable “breathing Tucker was also blood” and degree doubt of three counts of first mur- “starving oxygen.” for Tucker also had der, of especially aggravated three counts multiple injuries, according internal to Dr. kidnapping, and especially one count of Smith, that resulted weight from some be- aggravated robbery. However, ing placed his body. on Dr. opined Smith that the weight neither Sentencing The Phase alone, body weight Anderson’s nor the proceeded The trial to the sentencing body ply- Anderson’s combined the phase. upon proof The State relied the produced wood and dirt would have presented during guilt phase of the injuries extensive internal sustained trial and also introduced evidence to show weight Tucker and that some additional that Carruthers had been previously con- force applied body. had been to his aggravated victed of assault and that Dr. testified that Delois Smith Anderson James Montgomery previous had two con- injuries, also had sustained several includ- robbery victions deadly with a weapon ing scalp a of her tear the back head and one conviction for assault with intent death, inflicted to six her two hours before robbery deadly commit with a weapon. injury an to her forehead consistent with proof The Montgomery showed that was position injuries her grave, and only years seventeen old. at time he her strangula- neck consistent with manual previous committed these offenses and injuries tion. None of these would have that all previous of these convictions arose caused death had she been afforded medi- from a criminal single episode. cal Dr. testified treatment. Smith that also Dr. recalled Smith who asphyxia Delois Anderson died from testified that none of in the victims died position caused against of her head and stantaneously that all suffered as a nose, body, her and dirt her mouth and separate injuries result of being their and weight body. trauma from on her Although buried alive. Anderson par chest, alyzed below his Dr. Smith mitigating Montgomery testified As evidence cousin, that have presented he would felt some of the testimony effects of his Na- Shaw, airway particular Montgomery trauma his and keita that she and had ly windpipe, his wThich according relationship during to Dr. close childhood their Smith, very painful injury. According teenage years, they and that had attended Smith, Dr. bullet elementary together, wound to Anderson’s that Mont- school gomery “pro- head would not have been fatal had he her had been “brother” tector,” proper they received medical attention and and that had continued their necessarily would not caused uncon relationship have close as adults. Nakeita Shaw addition, Anderson Montgomery siblings, sciousness. would said that has other sister, thirty-year-old twenty- have been able to breathe after the spinal including a he but testified that brother, temper a hot fourteen-year- had six-year-old anything wrong but planned she to do Nakeita said that never old brother. Shaw much, “anguish anger.” She very she out of Montgomery loves acted still been her had spare Montgom- life. also stated that brother jury his asked aunt, Calhoun, the truth. Miller told ery’s Mattie also testified raised tell if believed her brother jury said that Mont- she on his behalf. Calhoun student, would be he these crimes she committed gomery average say he deserved fa- relationship person with his first very poor had a Miller said that Car- ther, helped penalty, to rear but man had death another therefore, that, ruthers was innocent when father abandoned Montgomery six, sentence.” individ- not deserve the death age five or and that this he “does him behalf, Carruthers Testifying on his own ual had in 1986. Calhoun told died innocent of the “wrong that he was jury prosecution that the had the asserted He not to die. spare crimes and did deserve begged people” killed friend Lastly, he would Montgomery’s Montgomery life. said he like that.” on his own behalf about how he “wasn’t raised testified because and his were raised brothers sisters Jury Findings Memphis his mother in and about how alive, father, last his who was he saw still jury found the proof, Based on this the years He

when he five old. testified was to following circumstances as aggravating spent slightly years that he over nine mur- defendant on each of the three each penitentiary previous in the convic- for (1) was defendant “[t]he der convictions: tions, job that he had a when he was (1) of one or more convicted previously January released in and that at the felonies, charge, present other than the ten-year-old time of crimes son these involve use statutory elements the whose living Montgomery pro- was with him. (2) person;” mur- “[t]he violence to the of jury claimed his innocence and asked the heinous, or atrocious especially der was spare life. or in it involved torture serious cruel beyond necessary to presented testimony the abuse physical Carruthers (3) death;” Fiddler, murder was Bishop Richard L. who had been produce “[t]he the was en- prison ministry twenty involved in for committed while defendant committing, accomplice in or was an years gaged and had visited while he Carruthers of, attempting trial. in the commission or was awaiting was incarcerated Fiddler commit, or fleeing committing or after and believed Carruthers honest commit, any degree first straightforward, person quality attempting was “a murder, arson, rape, robbery, burglary, worth,” very upset and and was about Fiddler, theft, or un- piracy; aircraft According kidnapping, victims’ deaths. throwing, placing discharging or opportu- viewed trial as his lawful (4) bomb;” “[t]he or nity to vindicated. Fiddler asked a destructive device murder, which mass spare life. Carruthers’ defendant committed Carruthers’ (3) Miller, sister, the murder of three Tonya Yvette a counselor defined as center, persons within the state Tennes- County offender more Shelby adult (48) forty-eight period chil- within a testified that their mother raised four see months, in a similar fash- perpetrated in of the hous- and dren her own one worst Tenn. that, plan.” in a scheme or as the ion common ing projects Memphis (7), 39-13-204(2), (5), § son, Ann. oldest was the “man of Code (12) ag- (Supp.1994).6 Finding that these Miller her household.” admitted that miti- outweighed circumstances company gravating had fallen into bad brother § Ann. 39-13- aggravating was tried. See Tenn.Code these circumstances Two of (1999 204(i)(7) (12) Supp.). slightly this case have been amended since stances, gating beyond circumstances a reasonable that the sentences of death were doubt, jury imposed fashion, the death sen- imposed arbitrary in an tence as to each defendant for each of the that the sentences of death are not exces- three murder convictions.7 disproportionate the penalty sive or im- cases, posed similar considering both

Appellate Review the nature of the crimes and the defen- Accordingly, dant. defendant appeal On direct Carruthers’ of Crimi- Court convictions for degree first murder and Appeals, nal challenged defendants sentences of death are affirmed. degree both their convictions of mur- first sentences, der and death raising their nu- However, we also have determined that fully merous claims error. After consid- Montgomery defendant should been ering claims, the defendants’ the Court of granted a severance and that the failure to Criminal Appeals affirmed the convictions grant a severance in this case resulted statute,8 and sentences. Pursuant prejudicial requiring error a new trial. case was thereafter docketed this Court. Accordingly, Montgomery’s we reverse

The defendants raised numerous issues convictions and sentences and remand his Court, carefully and after examin- case a new trial. law, ing the entire record and includ- Analysis

ing thorough opinion of Court of Criminal Appeals the briefs of the Dismissal Murder Indictments State, and the defendants this Court en- first Defendant Carruthers contends tered an setting order for oral cause that the indictments should have been dis- argument designating ten issues for missed because they upon were based oral argument. See Tenn. R. 12.9 S.Ct. admittedly questiona- what he terms “the carefully After and fully reviewing the testimony ble” of Alfredo Shaw before the record, counsel, the of briefs and the rele- grand jury. argues Carruthers also that authority, vant legal we that none conclude transcript grand he was entitled to a of the assigned of the require errors reversal of jury proceedings. disagree. We defendant Carruthers’ convictions or sen- Moreover, tences. respect long with to defen- It has the in been rule this Carruthers, dant we sufficiency legality have determined that State that the supports jury’s findings the evidence the by grand jury the evidence considered the subject as to aggravating mitigating judicial circum- is not review.10 Where 7. Each of the Supreme proceed defendants was sentenced as a Court and the case shall in (40) multiple, Range II forty years offender to Ap- accordance with the Tennessee Rules of especially on each of three the convictions of pellate § Procedure.” Tenn.Code Ann. 39- aggravated kidnapping especially and on the 206(a)(1). 13— aggravated robbery The trial conviction. judge ordered that two of the for sentences Supreme provides 9. Rule Tennessee Court 12 especially aggravated kidnapping run concur- pertinent part "Prior as follows: to the penalty rent to the death with other sen- all argument, setting of oral Court shall the re- running pen- tences consecutive death view the record and briefs and consider all alty. assigned. may enter an errors Court designating it wishes order those issues ad- imposed penalty 8. the "Whenever death is argument.” at oral dressed degree judgment first murder when the court, has the become final defen- Culbreath, Recently 30 in State v. S.W.3d right appeal dant shall the direct from (Tenn.2000), we held that dismissal of an Ap- the trial court the Court of Criminal prosecu- appropriate where a indictment peals. The affirmance of the conviction and private attorney of a who tor’s use received automatically the sentence of death shall be compensation private, a spe- substantial by Supreme reviewed the Tennessee Court. group Upon cial conflict of the affirmance the Court of Criminal interest created a inter- Appeals, appearance impropriety the clerk shall docket case in the est and face, is Carruthers’ without merit it is Also is valid on its an indictment transcript to a entitled charge claim that he was require a trial of the sufficient to cer jury proceedings. With guilt or of the grand merits to determine the on the accused, exceptions apply that do of the tain limited regardless innocence of grand law mandates sufficiency general con- this case legality the evidence secret. See jury remain grand jury.11 proceedings sidered 6(k)(l) (stating such P. Tenn. R.Crim. Supreme As the United States secret); P. Tenn. R.Crim. proceedings are v. United Costello recognized Court 6(k)(2) grand jury (allowing disclosure of 406, 408, States, 359, 361, 76 S.Ct. U.S. testimony if to ascertain proceedings (1956): L.Ed. jury is con grand of a before the witness open held If indictments to be of the at testimony witness sistent with challenge ground that there was on grand jury allowing trial and disclosure incompetent inadequate or evidence be- per any charged witness with testimony of jury, resulting delay grand fore the 16(a)(3) (requiring P. jury); Tenn. R.Crim. indeed. The results of great would be discovery as provide the state to would be that before trial on such rule testimony of defendant “recorded always a defendant could in- merits jury which re grand before defendant preliminary kind of sist charged”); Tiller lates to the offense cf. adequacy competency determine (Tenn.1980) State, 709, 712 jury. grand evidence before secrecy requirement (discussing the Burton, also See Tenn. 377 applies grand proceedings).13 (quoting ap- at 903 S.W.2d Costello proval). adopt decline to such rule. We Forfeiture of Counsel Carruthers’ claim the indictments begin analysis Alfredo We our issue must be dismissed because Shaw’s culminated testimony grand jury summarizing was not the events that before being required represent This trustworthy is without merit.12 mat- Carruthers stated, subject judicial previously himself at trial. As ter is not review. 1973) process (refusing indictment that right to dismiss an violated the defendants’ to due upon hearsay testimo- was based inadmissible under the Tennessee Constitution. Carruth- 90, State, (Tenn. misconduct, ny); Casey v. S.W.2d 91 allege prosecutorial 491 ers does not Marks, 1972) (same); 3 Crim.App. State v. support not and the record in case would 326, 539, Tenn.Crim.App. S.W.2d 327 464 allegation. an such State, (1970) (same); v. 2 Parton Tenn.Crim. 626, 645, (1970) (same). App. 455 S.W.2d 648 9, State, 15-18, 11. See Burton v. 214 Tenn. 900, (1964) (refusing 377 902-904 to S.W.2d reflects, however, that Alfredo 12. record upon was based dismiss an indictment that testimony a Dixon, trial when called as Shaw’s hearsay); inadmissible State v. 880 apparently witness defendant 696, 1992) (re (Tenn.Crim.App. S.W.2d testimony was with his before consistent fusing to that was dismiss indictment grand jury. suppressed based on evidence had been Amendment); v. under the zales, State Gon Fourth 841, (Tenn.Crim. appears S.W.2d 844 — 45 13. It from the record 1982) transcription App. (refusing copy a provided dismiss an indictment grand jury. upon testimony testimony that was unsworn before based Shaw’s copy grand jury); Grady, 619 left in his cell on the State v. S.W.2d Carruthers had one 139, (refusing given (Tenn.Crim.App.1979) day another Shaw testified and immediately prior to upon copy by prosecutor was based dismiss an indictment that addition, testimony. hearsay testimony); State v. the trial court Shaw’s inadmissible (Tenn.Crim. Northcutt, 636, testimony "the in front of 568 S.W.2d mentioned 1978) discussing (refusing grand when App. jury” to dismiss an indictment he was question a Carruth- of witness "three or four different statements" because of asked using during direct examination grand jury); ers was Gammon the foreman State, 188, (Tenn.Crim.App. of Alfredo Shaw. these crimes occurred February on 24 or February, there’s plenty time for 25, family 1994. initially Carruthers’ re- your attorneys to prosecu- meet with the Wharton, Jr., represent tained AC him. tors, get the discovery, meet with the Wharton was allowed withdraw on clients, motions, file argue motions. 19, 1994, March because of conflict of Just he yester- because hadn’t done it 31, May 1994, interest. On the trial court day, you because want him to have it appointed Larry represent Nance to Car- yesterday, done doesn’t mean that he’s ruthers. The State filed a notice of intent working your on diligently case 8, July to seek the death penalty on properly. He’ll everything done hearing At a held on July well in advance of the next Court date. trial court scheduled a pre-trial motions so, know, may you And he not do it the hearing September 30,1994 and set the very you done, moment want it but case for trial on February 1995. Car- you’re going to have to work with him present hearing ruthers was at this ample that because there’s time for court, asked why “I’d like to know him it get done. being dragged this is like out this. I asked go Mr. Nance if we can forward 12, 1994, August On the trial court ap- with a of discovery motion and he’s asking pointed Craig Morton to assist Nance.14 for a reset. And I’d to know why.” like pre-trial When the hearing motions con- Nance informed the court that he was 30, 1994, September vened on all defense to visit planning prosecutor’s office attorneys involved in the requested case later in the week to review the discover- until continuance November 1994 so able materials and evidence. The trial pre-trial additional motions could be judge in pertinent then advised Carruthers filed. judge The trial agreed continue part as follows: that, hearing and also indicated where the fact [G]iven isn’t appropriate, pre-trial motion filed on be- until February, setting we’re the next half of one be applied defendant would in September Court date for the arguing all specific request. defendants without a Septem- motions. Between now and ber, your attorney the attorneys Because the trial judge had received “an representing your two co-defendants can correspondence abundance of from both get prosecutors with the and can obtain Mr. Montgomery and Mr. Carruthers ex- their discovery. all They’re excellent pressing pretrial concern about the investi- attorneys. they’ll And do that. all And gation that has been conducted their once they’ve discovery, obtained the attorneys,” the brought defendants were

they’ll meet with their and they’ll clients open into court advised the continu- motions, file which appropriate will be judge ance. The trial then asked the at- 30th, September heard on which will still “state, record, torneys to for the the work date, be well in advance of the trial they’ve they that done and the work intend give everyone ample which will time to to doing continue on behalf their of client.” case, then evaluate after the motions lawyers reported Each team of defense to heard on. given been and ruled So judge trial on the work that had been the fact that we can’t aget three-defen- completed they and on the dant case work intended capital that’s still the ar- raignment stage days. to trial to complete following earlier than in the predicted, competency prosecution 14. As court the trial the record evaluation of wit- nesses, reflects that both Nance and Morton filed of for another mental evaluation Car- pre-trial indictments, numerous behalf of Car- ruthers, motions on sup- to dismiss the to ruthers, including discovery, motions for for press statements of co-defendant Jonathan services, investigative tion, for a mental examina- severance, Montgomery, expert for a for ser- evidence, to exclude certain for individu- vices, and a notice an alibi defense. evidence, dire, impeachment for al voir for a agreed The trial court approach. he particular, gressive Nance indicated that and contin- investigator a new majority physical appoint had a to inspected motions, mo- evidence, hearing pre-trial date on the filed six or issued ued the seven 16, wit- On No- subpoenas approximately eight for until December 1994. tions nesses, 28, 1994, trial several of the one-hun- Morton advised the interviewed vember State,15 met dred witnesses listed that he had retained the services court in lock-up at the court- Investigation. with Carruthers Premier occasions, separate room on two met not Although record does reflect family, spent approxi- Carruthers’ held, trial court hearing that a was mately twenty-five on case. hours repre- to from allowed Nance withdraw had enmity” Nance that “some admitted 9, on 1994.16 senting Carruthers December Carruthers, developed between him and trial According to statements made that problem but indicated he believed the Nance al- hearing, at a later was court could be resolved. “personal to withdraw because lowed Carruthers also was allowed to voice made physical threats” Carruthers complaints attorneys about his the rec- on Nance point did escalated ord, primary complaint and his safe, safe, personally “feel comfortable attorneys had not met with him as Tony represent Mr. Car- continuing hearing expected. often he had After as ruthers.” the comments of both Nance and Carruth- re- appointed Coleman Garrett ers, judge the trial concluded follows: as represent Carruthers place Nance and my been thus opinion, what has done judge also along with Morton. The trial case, given far in this the fact that there Turner, attorney, third authorized James are more the next still six weeks before investigator. assist the defense as an date, then a three motion full continued to Both and Carruthers counsel beyond before the trial months mo- pre-trial file motions. Some of these date, appropriate and well within 16, 1994, were heard on December tions proper representation. standards for hearing another was scheduled 21, 1994, ap- On October the trial court date, 30, January 1995. On that Garrett proved payment investigative for services presented argu- appeared and Morton for competency authorized motions. At this ment on over seventeen both Morton evaluations for defendants. judge hearing, agreed the trial resched- investiga- that the informed court February of 1995 to ule trial tor, Anderson, twice attempted Arthur 5, May At hearing 1995. on September Shelby meet with Carruthers presented ar- Garrett Morton County jail and had re- that Carruthers pre-trial more motions gument several fused to meet with him on both occasions. including a motion dismiss indict- ments, 14, 1994, sever, request for filed a motion to On November analyze expert audio-tape counsel. services to his first motion substitution of later, May statement. On days Four on November Morton Nakeita Shaw’s James Turner was appoint investigator/attorney a different asked the court to he was ag- because a solo investigator who would take more allowed withdraw note, did Although We as the Court Criminal the witness list contained 16. Appeals, for in addition to his motion that previ- people, the names of one hundred counsel, many filed of Carruthers substitution ously no of indicated that it had intention throughout the time pro se motions he simply calling hundred witnesses and was one Many represented by Morton. of Nance and every person providing name that had the pro filings se are similar or identical the investigation as been mentioned in the by Carruthers or filed counsel for motions giving discovery. means of defense Montgom- by James counsel co-defendant for ery. practitioner and sug- could not maintain his But Mr. has record. Carruthers and practice effectively perform gested, the inves- in his correspondence, that some However, tigation needed on the previous attorneys case. been re- have appointed trial attorney, capable court another lieved they because weren’t or is, Wright, investigator. Glenn to act competent job. as On to do the And that 2, 1995, again argued June Garrett my opinion, my opin- that at humble least — judge the indictments should be due to absolutely dismissed ion as the in this case— allegedly Shaw’s false before testimony totally and an inaccurate statement. grand jury. attorneys that have been relieved fully thus have been and capable far 23, 1995, Garrett, Morton, On June and competent fully doing and had been Wright sought permis- and granted outstanding job, variety but for by sion to withdraw the trial court. The reasons, I’ve allowed them to withdraw record reflects that also filed case. motion substitution At a of counsel. n n n n n n 27, 1995, hearing July trial court William appointed Massey Harry and raised, through Mr. Carruthers has represent Sayle During Carruthers. correspondence, apparently and hearing, this the trial judge commented as direct with his through communication follows: previous attorneys, certain matters that right.

All I that these understand outrageous are but pretty suggestions, three defendants are on for their of the matters because nature of the and that lives these are the most serious raised, attorneys rep- that he’s that charges all they and that are con- him previously resented that an ir- felt they represented cerned that are well reparable breach had occurred between properly represented, and it’s ev- ability their Mr. Carruthers —between eryone’s they desire to see to it that are effecting ability their themselves — represented repre- well and properly represent to continue to And at them. end, And sented. toward that efforts point some that could well have —and being they represent- are made that are point, been the but it But at wasn’t. by attorneys enough ed that expe- have these matters point some that are raised to handle type by rience of case and by the cannot to be continue defendants attorneys rapport that can establish get gets used new counsel it because with their clients that allow them would point they’re already to be a where —it’s represent their clients well. but, beyond point, obviously, well gets gone through point, point have attor- some to the zuhere

We several neys they’re manipulating now in an system effort to accommodate they what leant —Mr. Carruth- requests regard, getting the defendants’ ers, still, sit back point my opinion, please, you but at some sit or can —and they’re attorneys gets point each of the where and each there — investigators getting represented manipulating system that has these representation they defendants that has been have trial dates relieved are eminently qualified job, calling do the want and the shots. That’s been matter raised I have allowed them be relieved another that’s been but Mr. some of his corre- for one reason another. attorneys that he spondence, wants his I the record to clear perfectly want calling that he’s the man know point sugges- at this because of some case, man in this shots he’s the already that have raised tions been look to. I correspondence of the some Carruthers, course, Well, from Mr. and all of free coun- again,

received it’s a wants, it, way, part say he can he try, will be made a whatever in those let- wants, things alleged he types but of and he can think whatever he that his ap- position put this it as far as I’m concerned—and ters and any in, very, and plies attorneys to all three defendants and their previous court through that come this very strong feelings defendants about not continu- by represented are that counsel—and represent under ing to Mr. Carruthers gets this to what Mr. McLin allud- circumstances, reluctantly back I have those calling attorneys to are ed earlier —the let withdraw. agreed to them trying are They the shots in this case. get attorneys to again in an effort And case for certain areas where except the experience I’m satisfied have who final has the and defendant exclusive of to handle a case willingness and the say, such areas of he wants as whether seriousness, approached I have this thing. testify to not and that of or sort Harry Sayle, to Mr. appoint am inclined attorneys representing are in here is out of town week who so of these clients and will do to the best who today be here but indicated couldn’t They are who ability. their the ones on, willing be to take case he would They have been law school. are the to Massey, represent Mr. Bill to Mr. many through ones have been Carruthers. before, they’re times ones that reason, are here for a and that reason is And, represent

to these so individuals. stated, running I I’m out And as have know, you if there’s a conflict between regard to these patience with of different attorney regard and client with to I advisedly— issues —and use that ivord proceed case, re- you how all being regard raised the clients with can, you ultimately solve it as best but any objections they regard have urith And, attorney trying is the case. attorneys. And as as I’m to their far know, you pull we don’t in off the people concerned, attorneys are the these cases, try sidewalk to these and the men at It’s represent will these trial. reason is certain we don’t because of gigantic going to have to be one con- things they cer- need learn and gigantic proven, and real flict—one experiences they pro- tain need to have demonstrated conflict before of fessionally they’re prepared before repre- men these will be relieved from try they’re these cases. So here for in this There will be no sentation case. purpose. reason and for that conflicts, no un- perceived more more

founded, allegations through wild raised correspondence, no more dissatisfaction So that me to the our gets reason for my my attorney handling with how being Because matters here. anybody to be relieved in this case Cairuthers, grant- raised Mr. I have case. request previous ed the two attor- neys investigator reluctantly be- attorneys, gentlemen. These are the cause, doing in my opinion, they were with them don’t. You either ivork outstanding job representing Mr. you. they’re But the men that up It’s and his you interests. at tri- going representing are

al. added.) prior most rash of Consistent with (Emphasis Because of the recent approved court an initial allegations practice, raised Mr. investigative many expenditure for ser- letters that sent me—I he’s $1000 appointed de- newly for Carruthers’ copies assume he’s sent the letters vices others, fund- I’ve cer- fense team conditioned further his counsel and but tainly them, they necessity by got ing upon specific showing be made a will he investigator. Massey And indicated that part the record. because of preferred to use his own investigator rath- I’ve found it never difficult to advocate therefore, er than an attorney; Arthur on behalf of a I case. wouldn’t find it Anderson, who previously had been em- difficult to advocate on behalf of this case, ployed on the was retained. however, I point, case. do at this it find very to advocate on approved The trial court additional fund- difficult behalf of Mr. Carruthers. simply And that is ing 11, for investigative services on August way. because he’s made it that If I 31, August again September and on receiving merely letters that stated Also, 1995. due to recent appointment I incompetent and that I case, wasn’t Massey requested and handling right, type his case and those afforded a trial January continuance until all get letters —we those time to counsel, previous 1996. Like Massey time—I don’t mind those. Sayle Those don’t many pre-trial filed motions on I bother me. When have letters that By behalf of Carruthers. November threatening, come me that are I Massey informed the trial court ivhen all necessary telephone have appropriate pre-trial my mo- calls that come to tions had been filed. that are threatening safety office me, me my and those around I staff However, later, about a month on De- problems It’s-got- real with that. 19, 1995, Massey cember filed motion bad, Honor, your my ten so secre- requesting permission to withdraw as tary having nightmares. The last motion, grounds counsel. As for the Mas- call Mr. Carruthers made is Exhibit E sey relationship stated that his with Car- to this motion. She called me ruthers had “deteriorated to such a serious verified crying in absolute tears uncontrollably, degree that can provide [counsel] ef- hysterically crying over his antics. fective required by assistance as state and law..,. way That’s the same doing he’s been me. federal Counsel’s professional just I haven’t broken down and started judgment cannot solely be exercised crying about it. I very, But do have Defendant, the benefit of as counsel fears very strong, strong personal such reser- safety for his and those around him.” At- experienced tached vations as I have never to the motion were be- several letters honor, Massey, Carruthers had sent to both at fore as advocate. Your cases, advocating home and at particularly capital his office late November early cases, December of 1995. In thing the let- I find the first I have to do ters, Massey lying,17 Carruthers accused persuasive I is to believe. have to being drugs,18 threatened coun- believe and I have to feel. if I Because sel,19 expressed overall dissatisfaction don’t believe and I don’t feel and I’m not handling with counsel’s of the case.20 Mas- sincere, I cannot impart jury. that to a sey following made the statements to the They my insincerity. They just see see hearing trial court at the on his motion to words, a parrott-like proficiency op- as withdraw: posed feeling. They don’t act on that.

I just say They would shut years my out. That’s been law, practicing experience. I have never I ever made a And don’t believe that motion of this I feeling, nature. have never— that I that I know can’t advo- 7, 1995, example, 17. For in a letter dated November In a letter dated December Car- 19. 22, 1995, said, Carruthers said: “You have violated you you ruthers [sic] "All I tell is to do by lying my do, the code of ethics to me and co- want I’ll what I DO! do HAVE TO Montgomery....” defendant James Point blank!” 15, 1995, In a letter dated December Car- 18. 5, 1995, In a letter dated December Car- said, you ruthers "I don’t if know are on that said, ruthers "You have violated several ethic again drug COCAINE but don’t let the alter your style codes with and tactics.” you ability to see the truth and no [sic] [sic] the truth.” system the the is my possible will on this as fact that cate. I’ve lost to advocate any have about that make sure doing everything ease. I don’t doubt it can to any at I don’t doubt. point. properly this have and that Mr. Carruthers is I I’ll you tell as an officer of this court. thoroughly represented in this ease. a any doubt would be don’t have that to may step Mr. out the And Carruthers And Mr. Car- major problem. despite to Mr. just pointing He back. antics, I threats and care ruthers threatening with some sort Massey of integrity system. I care that in the going And to sit gesture. of he’s tries rights even when he protected are hearing. for the remainder of back destroy impair to them himself keep in him Put him the back room I them. And don’t know what Lock door. Mr. Mont- back there. I is. Court’s answer know that in a if you join will him minute gomery, very position a Court is in difficult in yourself to that you choose conduct Obviously, vei'y it’s clear what here. system well. The has done manner as very clear never ploy is. It’s that tve’re can, my make opinion, all it in to sure if going get to trial like And we to this. Tony repre- well that Mr. Carruthers is do, going there’s be a record then to patient And I’ve tried to be as sented. made for ineffective of coun- assistance in listening I can be to the concerns as believe, they sel. And Mr. Carruthers investigators in of defense counsel and believes, doing things that all is of these existed in making sure that no conflict make him a going opposed to record as of representation of either these to doing things legal standpoint from a reasons, specific the narrow men. motions, in the courtroom. There are specific reasons for the excusal objections prop- at trial and through the attorneys previous investigators dif- appeals er avenues that courts complaints that fer a little bit from those will a recognize legal as basis for today. has And Massey Mr. raised so gotten But we’ve reversal. outside ‘[tjhat just Massey says when Mr. be- legal gone area in this we’ve case and attorney 4th I’m the or 5th line cause intimidation, into the area threats. mean that I now have to be doesn’t added.) (Emphasis Massey’s ar- Despite effect, stuck, just him in representing gument, judge Massey’s denied others have been relieved and because motion, stating as follows: get is the case the Court anxious regard Massey’s to Mr. con- With My complaints are as valid as tried. cerns, certainly everything I believe that relieved, they were. And if were theirs Massey Mr. has stated in is his motion I should be as well.’ And then relieved factually accurate and I don’t correct. But first position. I understand that any reason to that his secre- doubt saying respond all I’ll to that their tary phone call that she received different, complaints were a little bit says pre- received memo she she going go through I’m not them the pared, things that other these now. The record is clear those record I I transpired. But do think and do envelope One is sealed with instances. agree Massey’s with Mr. characteriza- letters reveal what that will several tion these Mr. Carruthers that efforts complaints were and the com- those part are on his part ploy overall to that were plaints attorneys prior something the case until delay forever Not a little bit in nature. different being happens prevents that it from Mr. minimize the seriousness of Mas- tried. complaints those sey’s complaints, but its little bit And so

were a different. just happens the 5th make the that he to be attor- my opinion, try line, accurately the one ney as clearly record reflect he.’s stuck, going quote, get representing informed the trial court that he had contin- Mr. Their complaints Carruthers. ued to receive threatening letters factually little bit different. And there daughter’s home and was concerned for his are some that can distinctions be drawn safety because had described complaints they between the Massey the car she drove. indicated complaints you’ve voiced. right he cared more about Carruthers’ himself, fair trial than did but added.) (Emphasis The trial court also threats, given the and ongoing recent Mas- emphasized that ploy Carruthers’ had be- declared, sey represent “I don’t want to come more apparent over the course of the I represent this man. can’t him. I won’t proceedings. represent him.” the very attorneys With first set of I to give tried Mr. Carruthers the benefit hearing, prosecution At this took the of the and doubt excused them for rea- position that Massey should not be allowed yours, sons to similar but a little bit to withdraw because the defendant was different. With the second set attor- of in simply manipulating system an at- I neys give tried to Mr. Carruthers the tempt delay pointed to his trial. The State benefit of the doubt and excuse them for pending out that for case been yours, reasons similar to but a little bit years almost two and each time a trial date different. in Now that we’re the third drew near would increase his attorneys, set of much ploy is more and attorneys letters efforts to alienate his apparent than it was with first set of through personal either written or verbal attorneys. Although, it was somewhat urged attacks threats. The State to apparent any of us who have been in deny court to the motion to withdraw many, these courts for many years as we proceed and to trial: all have wanting jump been. Not to to defendant, Honor, can [I]f Your any give him conclusions or not the ben- system, manipu- threaten the if he can doubt, efit of the the first and second threats, letters, system by late the attorneys sets of were excused. But I’m not sure if what the makers of that’s now that we’re into the third set of they the constitution meant when sat in attorneys ploy appar- is much more said, look, and, Philadelphia they let’s let therefore, recep- ent I’m much less every defendant have a fair trial. Let’s tive I arguments to these sorts than of lawyer. let him have a Let’s let year ago ivas a when the set first be let him have a attorneys came be re- over here. Let’s wanting in fair. no man judge; lieved. that’s Let’s let be crime, trial, go accused of a will not added.) (Emphasis unless he a fair trial. Let no receives in Finally, response to com- counsel’s man be convicted—but the framers just go “pro ment that Carruthers should constitution, Honor, Your had not se,” the trial concluded that it should court Tony met Carruthers. go pro refuse “to a man to se in a force if capital case he doesn’t want” and ob- considering After the comments of coun- served that Carruthers had never asserted sel, judge briefly the trial recounted the right self-representation. Although his history again emphasized of the case and denied, Massey’s motion withdraw that, opinion, attorneys all of the his judge granted request his for defendant, appointed including for investigation additional funds for further trial law- Massey Sayle, were excellent hiring mitigation specialist. for their duties yers fully performed who had defense, 2, 1996, includ- regard to January days On six before the with Carruthers’ and thor- begin, Massey ing filing re- all relevant motions trial was scheduled to Massey oughly pursing investigation newed motion to withdraw. Mr. that is available case. trial court then ruled on Mas- still if withdraw, Mr. sey’s stating Massey as fol- with motion chooses not to work lows: going Mr. with Sayle forward Now, way that Monday, this is the case is case him to this next Monday.

going proceed Mr. Mas- provide And I’ll him represent himself sey He repre- on the case. still is still with a the rules Tennessee copy If now sents Mr. Carruthers. between evidence. And procedure, the ndes of Mr. Monday Carruthers chooses voir can sit table and dire he at counsel Massey the and to discuss with Mr. case witnesses, jury, question cooperate Massey Mr. prepa- statement, give an as law- opening case, ration the defense then ivould, required yer and he would I’ll Massey go to Mr. look forward any lawyer as comply with all the rules There representing Mr. Carruthers. would, goto on his he chooses if forward disputes and conflicts be- been say nothing, then own. he chooses If attorney tween and client before. This his and —But prerogative, that’s that’s that is not the first time has been there Monday, be next what situation will problem attorney client, between and Mr. Carruthers. And the choice is types problems these can be re- yours. yours. Again, the choice is You paired oftentimes. And differences can an have for the third time around out- patched up, attorneys go be can standing attorney representing you. hope I forward. And would that that here, be If And he’s and he’ll available. in would the case this case. And I be yourself of his you choose to avail ser- hope would that Mr. would Carruthers vices, Monday. he on represent you will Monday, now and with between work to, you you go If not can forward choose Massey Sayle Mr. and Mr. in prepara- you go If for- representing yourself. tion a trial. Mr. for Carruthers elects If yourself, I will representing ward re- however, to, go rep- he will fonvard Sayle Mr. quire Massey Mr. to be resenting This was raised on himself. any counsel so that at available as elbow Massey when Mr. mo- 19th filed his can overnight, you recess or seek advice tion to withdraw and we first heard it. them, they you can confer with from time, rejected At that I I was idea. any way they in that you and advise required reluctant to because I’ve never if you deem elect not to appropriate. So go individual to forward representing you go you him for- represent have requested he has not that. himself when they’ll yourself, in representing ward be idea, And given I don’t like that but I’ve they’ll observing, and the courtroom suggestion a lot that thought since available advice and counsel to to offer record, Massey 19th. For the Mr. break, recess, at lunch over- you shortly after our on hearing called me two night break. of those scenarios One the 19th when he received letters some Monday. again, And will occur next it’s in mail from Mr. Carruthers we’ve up to Mr. because been dealt further —that he felt further un- through many, many this now ability represent his him. dermined time, point months and at this And that on the just I want record so There go case needs to is no misunderstanding no that. there is about forward. reset, other for the case to be no reason 19th, But phone and after the since one side or the proof problems received, Massey call that I from Mr. other, problems no from one witness 19th, hearing after the on and after is side or other. The case now set today, given I’ve it a lot of request trial. There no for the third time for left, options to what what thought extrinsic for an additional contin- options case. reason are still available go- Carmthers is option And uance. And —so Mr. my judgment, only ing Appeals challenging to have to decide in which manner the Court of Criminal proceed he wishes to on but the Monday, ruling the trial court’s that he remain on go Monday. advisory case will And the case either as counsel or as forward Massey Monday I’ll back from Mr. January hear In an dated counsel. order morning regard to whether he has Appeals held Court Criminal been to confer with his client and able Massey should be allowed immedi- been, progress what the of that has ately representa- withdraw from further he progress whether feels that the has tion, stating: it go been such that would allow him to opinion This is of the that the Court in representing forward Mr. Carruthers. attorney-client may which relationship added.) (Emphasis existed, previously has deteriorated relationship until such a does not exist The record that at a hearing reflects Massey. between Carruthers and Mr. 3, 1996, day, January held the next Car- Also the circumstances of this case make “glaring” Massey ruthers was while ethically impossible Massey it for Mr. jaw.”21 “gritting Upon observing Car- represent Mr. Carruthers. Carruthers conduct, again ruthers’ trial court once bodily he proclaimed has will do cautioned the defendant as follows: Massey. He harm has essence again, yesterday, And as I did I want to Massey fact threatened with death. remind Mr. it is his if Carruthers, history who has violent proceed Massey decision not to with Mr. conduct, apparently a member of a and proceed pro just to a minute. se— gang. correspondence All to Mas- of his you speak I’ll let in a moment —then he sey drawing eye carries a of lidless to he needs understand that will be held top pyramid. that watches from the of a attorneys to same standard that are Moreover, Massey’s family is filled with during held to a trial. evi- Rules of anxiety to fear and due the threats made dence, procedure apply. rules will of Massey’s secretary, Massey; and who And he will need to familiarize himself dealings with has procedures as best he can with those telephone, anxiety likewise has fear and between those rules now and trial upon with Car- based her conversations se, proceeding pro date because in he against ruthers the threats made certainly will be held to that same stan- circumstances, Massey. these Given Obviously, dard. realizes he Massey Mr. had no alternative but that charges pending poten- are and the permission seek to withdraw as counsel. tial the imposition pen- for of the death in supported He is this endeavor alty in involved this case. We’ve had for the Disciplinary Counsel Tennessee hearings and over the numerous motions Office, which advised Supreme Court months, past eighteen fifteen or and all Massey ethically required that he was very appar- of those matters should be and, counsel, if withdraw as the motion point ent to Mr. Carruthers at this in required was denied he was to seek time. in appellate relief courts. admonition, Responding to the trial court’s Massey not want Carruthers said he did

representing Massey him because was on these facts and circumstances Given cocaine. provisions of the as well as the relevant Conduct, Professional which

Following hearing, Massey this filed an Code of lawyers in the in the conduct of application extraordinary appeal22 governs for R.App. P. 10. judge 21. The stated that "since 22. See Tenn. [Carruth- trial courtroom, brought he has been ers] glaring Massey has in fact been at Mr. non- stop." complained Massey and Tennessee, Massey was to reconcile Mr. him- represent qualified rec- as counsel of that he was not to be relieved entitled responded: there ever judge Mr. Carruthers. ord for self. The If rela- attorney-client was an amicable Well, perils going are the those by Mr. Car- tionship, it was eradicated judgment, my And in pro se. forward writing the letters conduct in ruthers’ Carruthers, on several as I’ve said Mr. threatening do aforementioned get back occasions, I intend to and don’t Massey the bodily harm to Mr. first on this issue hearing lengthy into a Massey Mr. Today, him. time he saw time, or three we’ve had two this but are at odds and Mr. Carruthers judg- my In already on this. hearings are their differences irreconcilable. you’re stating ment, I understand Furthermore, Massey, emphati- Mr. who going you capable don’t feel now that or addiction cally denied misconduct But representing yourself. forward and attempt protect must drugs, my that to understand you need himself family, secretary, problem have created judgment you himself protect as well as physical harm are the author yourself. You disciplinary complaints.23 from further by, my opin- your predicament own added.) (Emphasis ion, sabotaging representation filed, day this order was but The same attorneys. These previous you four judge had received the before attorneys. your are and sixth now fifth order, healing held in the trial court. because actions my judgment, Massey had received learning After months, past over the you’ve taken at his of certified mail pieces seven more taken, you’ve because actions January hearing home since the And so in this situation. you are now by Massey that being after advised go you may it well difficult for im- with Carruthers had not difficulties yourself, but representing fonvard judge that Car- proved, the trial concluded you've created this is the situation ruthers, the best going to have to do you’re and actions, through through his accusa- can, virtually no there is you because letters, tions, himself and he has forced Tq it at reset option point. this left option into a where I have no situation should ivould again, history would proceed pro se. require but to that he because effort, only be futile —would I your request, And so in deference to seventh hour with the at the eleventh my previous with state- gowill forward you, eighth attorneys representing and Sayle you ment and that is that and Mr. effort, my be some other there would Mr. Car- will remain as elbow counsel. manipulation other opinion, some represent ruthers will himself. would, then cause those your part “[fjrom reiterated, The trial court then get in and want to attorneys to come off give I’ll Mr. Carruthers point forward it and And then we’d reset your case. speak on his own behalf opportunity to attorneys, ninth and tenth appoint the him I indicated to appropriate times. As And and and the eleventh twelfth. week, comply expected he will be last be no end to it. there’d and procedure the rules of with all of re- attorney that an would be

evidence quired comply with.” and forward going And so we’re I yourself. represent you’re going ruling, hearing the trial court’s

Upon experienced you’re not an understand attempted that he had claimed Responsibility. of Professional Carruthers had Board 23. The record reflects that Massey complaint against with the filed a attorney. you may including providing I case as “el- understand well assistance However, Sayle continued gone through a voir dire bow counsel.” never standby or counsel. on the case as elbow process And that’s unfortunate. before. I you cooperated gotten wish had later, days January During voir dire two along year with Mr. Nance a and a half 11, 1996, requested a continuance ago. attorney, He was an excellent has trial due to of one hospitalization courts, many, many tried cases these witnesses, of its material Nakeita Shaw. difficult serious cases and done excel- granted The trial court the State’s motion job. you lent I had cooperated wish for a continuance and rescheduled the who, gotten along with Coleman Garrett April point, light 1996. At this in my opinion, is one of the best trial continuance, made an oral attorneys in this entire state. He’s tried appointment motion for of new counsel.24 many in this courtroom and de- cases motion, stating: The trial court denied the I remarkably fended individuals well. system ruling still stands. The will you cooperated gotten wish Carruthers, hostage by Tony not be held along Craig with Mr. Morton and Mr. go through and to another round of at- Wright, Harry Sayle, Glenn and Mr. that, just will because torneys doing Massey, Mr. I think it William because history you’ve done suggests, as in your would’ve been best interest past, attorneys ap- if new were so. But have done it’s been obvious pointed spent the time and investi- you And have not. so for that reason gated, get ready the effort to on this going we’re forward. case, hour some- then at the eleventh allegations thing happen, would some n

n n n nn be made that would undermine would easy It’s to make this decision. they’d ability represent you, their ask lightly that I It’s not decision made withdraw, back in the same we’d be what, lightly. you take But I tell if Larry Mr. situation that we were with complete enough replete record isn’t Garrett, Nance, with Mr. Coleman enough manipulative with evidence of Massey, Mr. Bill all three of whom are obstructionism, then I can’t conduct attorneys. criminal outstanding defense imagine being ever there a record for fully capable All three of whom appellate courts in Tennessee that you, representing and all three whom would meet that criteria. your ac- had to be relieved because of added.) (Emphasis my judgment, enough in tions. And ruled, actions, After the trial court Carruthers your enough. And because of conflict, any offered to waive to allow Mas- represent- attorneys longer these are no him, sey representing apolo- therefore, to continue and, ing you you rep- will be gize Massey, testify and to ample You have resenting yourself. Massey had against accusations he made have access to prepare. time to You refused, untrue. trial court find- were Sayle. from Mr. You have legal opinion ing merely using an- that Carruthers have the rules. You the file. You delay proceeding. other tactic to consultant. You have investi- in the manner which gator. And this is 9, 1996, the day, January The next going forward. we’re Appeals entered an ad- Court of Criminal 16, 1996, the trial court January On previous dendum to its order and allowed request for funds to approved from fur- Carruthers’ Massey completely to be relieved him and investigator to assist in the obtain an representation participation ther earlier, ready to any and he was day the State mentioned continuance stated 24. One when might possibly requesting that it a continu- go to trial. ance, adamantly objected to Carruthers had I frankly of the advice And none pacity. investigator to contact authorized followed, I think don’t give him is if funds were directly additional trial court following it. 1996, any intention of there is February In Carruthers needed. just gets the abuse frankly its appoint- And motions for filed two more written —and villifiea- personal. Personal extremely again denied of counsel which ment meetings, couple of the last reasons set tion over trial court for the same by the being able 20, no basis for and I see February hearing In a on out above. continue. 1996, court considered Carruth- ex- funding for for requests pre-trial ers’ made oral Thereafter, twice Carruthers services, and, again hearing, at this pert counsel, first appointment motions for in culminated the events that recounted 15, April then on on March required represent being Carruthers began. Again, day jury selection that “it trial court himself. The observed motions trial court denied these objectively anyone who apparent

will be in the first case this was not noted that is not that Carruthers views this situation tac- employed such which Carruthers right to counsel.” being denied represented therefore tics.25 Carruthers sentencing, participat- at trial and proceedings, himself Throughout pre-trial these dire, opening state- presenting in ing with re- voir trial court treated Carruthers ment, on cross-ex- questioning witnesses arguments listened to his spect, patiently amination, objections, making presenting requests, and afforded Carruthers defense, presenting in his latitude witnesses investigator considerable motions, jury returned argument. After the arguing closing even scheduling and sentencing, guilt its verdicts as to of these motions were similar though most represent counsel to already appointed that had trial court or identical to motions trial and on his motion for new by counsel who had Carruthers argued been filed and appeal. When previously represented Carruthers. hearings ex requested parte Appeals, Car- In the Court of Criminal funding experts, prosecution seek for counsel, ruthers, through first as- by and voluntarily the court room.

would leave pro- been denied due serted that he had re- judge granted The trial Carruthers’ required him to the trial court cess when pa- quest funding for to obtain a forensic sentencing represent himself at trial and request for fund- thologist, but denied his Criminal case. The Court of capital this ing for an accident reconstructionist. that, rejected his claim and held Appeals ease, the circumstances of February of the trial court al- under justified requiring Car- trial court was Sayle to withdraw as elbow counsel lowed himself, reasoning as represent had no ruthers to apparently because Sayle trust and because follows: confidence or launching personal, verbal

Carruthers was the result lightly do not take We Sayle moved upon Sayle. When attacks proceed pro se a defendant has as elbow coun- permission to withdraw trial, involving capital one especially sel, system he stated: could not judicial offense. Our of crimes were I if those accused feeling that survive expressed

He has But “roughshod.” literally run over him and that I have working for am not protected him, individual must be I’m while the anything going not not done judicial system must system, suspects— by anything for him. He to do by an from abuses protected suspects also he’s made it clear he crim- charged A with person ca- individual. in some working I’m with state 02C01-9505-CR-00130, State, 1996 Car- v. No. aggravated case es In an earlier assault Jackson, April (Tenn.Crim.App., attorneys appointed WL 181394 four ruthers had been 17, 1996). finally tried. See Carruth- before the case 546 44(a). 1984); Tenn. P.

inal acts cannot be allowed to subvert see also R.Crim. judicial system. right of an accused to assistance of counsel, however, does not include the Court, In this counsel for Carruthers choice, appointment to of counsel of right again right contend that he was denied his confidence, special rapport, or to or even process required to due when he was meaningful relationship appointed represent during the trial of this himself 1, v. Slappy, counsel. See Morris 461 U.S. capital case. Counsel assert that Carruth- 13-14, 1610, 1617-18, 103 S.Ct. 75 L.Ed.2d expressly right ers not his did waive (1983); v. Gallop, 610 United States 838 counsel, any implicit waiver was inval- (4th Cir.1988); 105, F.2d 107 Siers v. because court not id did advise (3d 37, Cir.1985); 44 Ryan, 773 F.2d State possibility of the of waiver 505, 578, Moody, v. 192 Ariz. 968 P.2d 579 dangers self-representation, of State, (1998); 105, v. Snell 723 So.2d 107 egregious enough that his conduct is not State, v. (Ala.Crim.App.1998); Jones 449 justify finding of forfeiture. re- (Fla.1984); 253, Ryan, 258 State v. So.2d sponse, argues the State that the Court of (1989). 74, 610, 233 Neb. 444 N.W.2d 625 Appeals correctly Criminal found Car- The essential aim of the Sixth Amendment right ruthers forfeited his to counsel be- advocate, guarantee is to an effective right cause using Carruthers was preferred counsel the defendant. See manipulate judicial system order to States, 153, 159, v. United 486 U.S. Wheat alternative, delay the trial. In the 1692, 1697, L.Ed.2d 140 108 S.Ct. 100 argues appeal that the record in this (1988). supports finding implic- that Carruthers itly right waived his to counsel his Ordinarily, right waiver of the course of and that trial court’s conduct voluntary, knowing, and counsel must be warnings to Carruthers were sufficient Zerbst, intelligent. See Johnson v. 304 him inform that he would be deemed to 1023, 458, 464-65, 1019, 58 82 U.S. S.Ct. if right have waived his to counsel his Small, 1461, (1938); L.Ed. 1466-67 988 dangers conduct continued and of the of Typically, such a waiver S.W.2d alt 673. self-representation. only judge occurs after the trial advises dangers

Both the States and Ten defendant of the and disadvan United guarantee indigent tages self-representation and deter nessee Constitutions he right criminal defendant the to assistance mines that the defendant “knows what doing eyes choice is made with appointed counsel at trial. See U.S is his VI; I, open.” art. Adams v. United States ex rel. Const. amend. Tenn. Const. McCann, 269, 236, 9; 279, § 317 U.S. 63 S.Ct. Appeal Martinez v. Court Cali Small, 152, 684, 686, 242, (1942); L.Ed. 268 see also fornia, 528 U.S. 120 S.Ct. 87 673; (2000); Northington, 145 L.Ed.2d 597 Gideon v. Wain- 988 667 S.W.2d however, 792, courts, 335, Many 9 at 61-62. might, 372 U.S. 83 S.Ct. S.W.2d (1963); Small, recognized right that the to counsel is L.Ed.2d 799 State v. 988 (Tenn.1999); 671, dignity of the State v. not a license to abuse the S.W.2d 673 (Tenn. orderly proceedings.26 Northington, 667 S.W.2d court or to frustrate Flewitt, power inherent to control the administration 26. See United States v. 874 F.2d White, (9th Cir.1989) (“The right justice.”); F.2d self-repre- United States v. course, Cir.1976) (“Of (8th dignity sentation is not a license to abuse shield, Lockhart, courtroom.”); right A Berry to counsel is a not a sword. (8th Cir.1989) ("A right manipulate right has F.2d defendant defendant no disrupting manipulate right purpose delaying right has no to coun- for the 40, State, trial.”); trial.”); Ark.App. v. 819 delay disrupt or Brooks 36 sel in order to 288, (“[T]he (1991) ("[R]ight constitutional Gallop, F.2d at 108 S.W.2d 290 [to counsel] 838 sword, shield, right orderly judicial procedure to counsel is a not must not obstruct manipulate right may deprive exercise of their ... a defendant not courts of the

547 interest have a conflict of known to courts have acknowl- counsel Accordingly, several counsel); Rich that, other and failed to retain like other constitutional edged (5th Lucas, 753, 756 741 F.2d implic- ardson v. right to counsel can be rights,27the Cir.1984) that defendant’s refusal (holding if a ma- itly waived or forfeited defendant defender, of abuses, regardless any public allow right or utilizes the nipulates, him represent constituted competence, to delay disrupt or a trial. See United States Cir.1998) counsel); (3rd 237, right United waiver of Leggett, v. 162 F.3d 249 (5th Moore, 538, 540 v. 706 F.2d right forfeited his States (holding that defendant Cir.1983) (holding “persis that defendant’s his physically to counsel when he assaulted tent, of demand for dismissal Goldberg, 67 unreasonable attorney); United States v. (dis- (3rd Cir.1995) new 1092, appointment of counsel 1097-1101 counsel F.3d equivalent ... functional of know- implicit waiver is the cussing principles of counsel”); forfeiture, voluntary waiver of ing that concluding conduct and but Leavitt, 1290, v. 608 F.2d right not his to United States defendant had forfeited (9th McLeod, Cir.1979); v. Tra counsel); 53 1292 United States United States v. Cir.1995) (S.D.Fla.1998) (11th vers, 6, 322, F.Supp. 17 (holding that 996 F.3d 326 a result of the defen (finding forfeiture as right defendant forfeited his to counsel abusive, abusive, threatening “persistently dant’s exhibiting threatening, and coer- attorney his dealings and coercive” attorney); cive conduct toward his United (7th Fazzini, 635, had been noting the defendant v. 871 F.2d 642 States Cir.1989) coop- warned that his failure to repeatedly waived (holding defendant where, finding in a of forfei- being erate could result right his to counsel after ture); Jennings, v. 855 if he States right warned that he could lose the United (M.D.Pa.1994) 1427, (finding 1442 cooperate, F.Supp. continued to failed to defendant right to counsel court- that defendant waived his cooperate refuse to with numerous attorney); his physically v. when he assaulted appointed lawyers); United States Cir.1987) State, 1062, (9th Kelm, 1319, 491 1063-64 Siniard v. So.2d 827 F.2d 1322 that de- (Ala.Ct.Crim.App.1986) (holding (holding implicitly that defendant waived where, right to counsel delay fendant forfeited right to counsel trial, eight was allowed months accept appoint defendant refused to where he to retain counsel but attorney); own several continuances ed counsel or hire his Brooks, so); Mitchell, 248, to do v. 777 F.2d failed United States forfeiture, (5th Cir.1985) but conclud- (recognizing at 290 (holding 256-57 defendant when, appropriate not be- ing that forfeiture was right to counsel bad waived did not show that delay, cause the record purpose faith and for he retained ("The may right of counsel playing to assistance purpose delaying the trial or court.”); Jones, 449 delaying 'cat-and-mouse' with the or put to service as a means ("We implicit ... at 258 consider it court.”); So.2d trifling States v. with the United counsel, right appointed like the Cir.1979) that the 181, (5th Fowler, 183 605 F.2d right self-representation, is not a obverse counsel, ("The right cherished to assistance dignity the court or to license to abuse be, put though may it not be and fundamental orderly proceedings....”); v. State frustrate delaying trilling to service as a means Green, 475, 402, N.W.2d 407 238 Neb. 471 court.”); California, Faretta v. with the Cf. (1991) ("A may not utilize his or defendant 46, 2525, 806, 2541 422 834 n. 95 S.Ct. U.S. manipulate right her to counsel to or obstruct 46, (1975) (“The right of L.Ed.2d 562 n. orderly procedure or to inter- in the court self-representation not a license to abuse justice.”); the fair administration of fere with courtroom.”). dignity Montgomery, S.E.2d v. (”[A]n may accused lose (N.C.Ct.App.2000) See, Allen, e.g. v. U.S. Illinois right represented to be his constitutional (1970) (holding 25 L.Ed.2d 353 S.Ct. perverts he counsel of his choice when disruptive conduct by persisting in purpose right weapon for the of obstruct- to a State, right to be his constitutional trial.”); accused lost delaying ing Painter trial). throughout (Okla.Ct.Crim.App.1992) present 762 P.2d 548 disrupt, delay pro- right manipulate manipulate,

defendant used his State, judicial system); Wayne Potter v. 547 R. La- ceedings); generally see (Del.1988) 595, 11.3(c) (stating Fave, Procedure, A.2d 602 that a al., § et Criminal dilatory retaining (“What actions in (2nd 1999) defendant’s courts have ed. these justify right counsel can a forfeiture of the held, effect, in is that the state’s interest counsel); Jones, at 449 So.2d 256 orderly trial schedule and maintaining (holding right that defendant waived his indifference, or negligence, the defendant’s by persistently demanding counsel counsel tactic, com- possibly purposeful delaying refusing cooperate of his choice and justify of bined to a forfeiture defendant’s counsel); appointed Brickert v. counsel_”). right to State, 493, (Ind.Ct.App. 673 N.E.2d 496 attempted to distin- Some courts 1997) (holding that defendant waived his implicit guish concepts of waiver right by engaging to counsel conduct See, e.g., Goldberg, forfeiture. 67 F.3d at judicial process designed to frustrate the Tacoma, 1099-1100; City P.2d at 920 trial); delay People or v. and avoid of implicit These courts hold that an 218. Sloane, 52, 431, 262 A.D.2d 693 N.Y.S.2d when, being occurs after warned (1999) waiver (holding 53 that defendant forfeited if the court that counsel will be lost dilato- right “persistent pat- his to counsel his abusive, ry, uncooperative or misconduct abusive, threatening, obstreperous, tern of continues, in such be- persists a defendant towards four uncooperative” behavior contrast, attorneys); havior. Id. forfeiture results appointed People successive Gilchrist, 306, to re- regardless v. 239 A.D.2d 658 of the defendant’s intent (1997) (holding that irrespective N.Y.S.2d 269 defen- of the linquish right right dant forfeited his to counsel when he right. of the Id. knowledge defendant’s attorney); appointed assaulted his fourth Accordingly, engages where defendant (hold- Montgomery, 530 S.E.2d at 69 misconduct, extremely finding serious right ing that defendant forfeited his appropriate though even forfeiture is when, counsel over the course of fifteen potential defendant was not warned months, appointed he was twice counsel consequences of or her actions or the his counsel); appointed released his twice self-representation. risks associated with Painter, (holding 762 P.2d at 992 1102; Goldberg, City 67 F.3d at See right defendant waived his to counsel when Tacoma, 920 P.2d request ap- counsel or he failed to secure However, considering this many courts delay he could pointed counsel so that the two distinguish do not between issue hearing); Boykin, State v. 324 S.C. implicit concepts and have used terms 552, 689, (Ct.App.1996) 478 S.E.2d 690 interchangeably. waiver and forfeiture may (recognizing implicit- that a defendant 1098; Freytag Goldberg, See 67 F.3d at ly counsel miscon- Cf. right waive the Revenue, 501 v. Commissioner Internal duct, finding implicit no waiver be- but 868, 2, 2631, 2647 n. n. 111 S.Ct. U.S. given the warnings cause no had been (1991) (Sealia, J., 2, con- L.Ed.2d 764 defendant); Bishop, City Tacoma v. concurring judg- curring part (1996) Wash.App. 920 P.2d ment) (“The the term ‘waive’ Court uses concluding that (recognizing forfeiture but really not The two are instead ‘forfeit.’ misconduct was not suffi the defendant’s same, often although our cases have so ciently egregious support finding may it be interchangeably used them forfeiture); Cummings, Waiver, (1996) precision. too late to introduce 546 N.W.2d Wis.2d or abandon- relinquishment the intentional (holding that defendant had forfeited right privilege, ment of a known consistently he re right to counsel where by which a forfeiture merely one means constantly com cooperate fused to may forfeited rights occur. performance may Some plained about counsel’s

549 waiver.”) (internal to his motion with- Massey cita- When renewed by means short omitted). 2, 1996, trial court January draw on quotations tions clearly advised Carruthers specifically has never Although this Court cooperate with had two that he choices— question presented the precise considered himself. Carruthers Massey represent or discussing a non-indi appeal, in this when to that if he chose not was advised also attorney in who fired his gent defendant represent Massey and to cooperate with repeatedly pro open court thereafter himself, comply to required would be he a law going about to trial without tested if an rules as he were procedural with all “[t]hough that a yer, recognized we even ad- repeated court attorney. The trial own right has a to select his defendant 8, January a hearing monishment at do so expeditiously if he acts to counsel warn- the trial court’s clear Despite ‘cat may right play ... not use this a he opinion, fully earlier ings, quoted game with the court....” and mouse’ attitude of persisted with his Carruthers Chadwick, 79, 75, 224 Tenn. 450 State v. Massey, as is evidenced hostility toward (1970); Glasgow 570 see also S.W.2d by “glaring” Massey during both State, 25 v. Tenn. by Massey re- hearings and the letters Dubrock, (1970); v. S.W.2d view, In our hearings. ceived after those (Tenn.Crim.App.1988) (holding that non- right implicitly waived his Carruthers indigent right defendants waived the counsel, because, being after warned they to hire an counsel because refused attor- the trial court that he would lose his attorney). right The idea that the to coun continued, ney if his misconduct Carruth- toy may manipulate sel not be used to or ers in his misconduct. persisted judicial system applies equally with the Al indigent non-indigent defendants. reject holding, In so we Carruth- though indigent an criminal defendant has him warnings given claim that the ers’ counsel, a right appointed constitutional sup court were not sufficient to may right not be used as license waiver. The port finding implied manipulate, delay, disrupt or a trial. See upon sup which relies cases Carruthers supra, citing footnote 26 cases. Accord inapposite are because port of this claim ingly, indigent we conclude that an crimi voluntary they explicit, involve waiver may implicitly nal defendant waive or for McDowell, v. cases. See United States right utilizing feit the counsel (6th Cir.1987); Crandell F.2d 251-52 trial right manipulate, delay, disrupt (9th Bunnell, Cir.1994); 25 F.3d 754 v. dis proceedings. We also hold that the Silkwood, 893 F.2d United States concepts tinction these two between (10th Cir.1989). to hold We decline 248-49 slight and that the record this case extensive provide that a trial court must supports finding implicit of both waiver warnings a defendant’s and detailed when and forfeiture. or she under conduct illustrates he to counsel and is able to right stands the Garrett and Morton were When con manipulate system. it to We Massey Sayle withdraw and use allowed to implicit may appropri waiver appointed, the trial court advised clude that where, here, found, ately as the record Massey Sayle would trial him at trial reflects that court advises lawyers representing be the right to counsel will be lost further with defendant the and that there would be no persists generally appointments absent a if the misconduct drawal and new self-rep the risks associated with “gigantic Despite explains conflict.” this admonish Kelm, F.2d at 1322 ment, per resentation. again once launched Cf. the record as a whole when Massey, (considering against sonal attacks and threats sufficiency eventually determining to Mas threats that extended advisements). family staff and members. court’s sey’s office trial court and the assuming warnings giv As did the Even we have care Appeals, Court of Criminal support insufficient to en Carruthers were hold fully considered the ramifications of waiver, however, finding implicit we that criminal defendant ing indigent an that Carruthers’ conduct was suf conclude capital implicitly a case has waived and finding a ficiently egregious support to right valuable to counsel.28 forfeited his right that he forfeited his to counsel. waiver implicit We are aware that both culminating circumstances and forfeiture are extreme sanctions. fully ruling court’s have been summarized. However, conduct was ex Carruthers’ repeatedly unreasonably Carruthers ap egregious. treme and The sanction is appointed demanded that his counsel with propriate under the circumstances and appointed. draw and new counsel be commensurate with Carruthers’ miscon as his Carruthers’ demands escalated finding duct. We reiterate that a of forfei trial dates drew near. As the scheduled appropriate only ture is where a defendant recognized, “ploy” delay trial court to egregiously manipulates the constitutional increasingly apparent the trial became right delay, disrupt, to counsel so as to or attorneys. new In addi with each set jus prevent orderly administration of tion, degenerated Carruthers’ conduct tice. the record demonstrates such Where outrageous and threats es allegations his finding a of forfei egregious manipulation finding a markedly calated with each new set of ture should be made and such sustained, if the will be even defendant attorneys. emphasized, As the trial court charged capital a offense. Persons with pre was the author of his own Carruthers not be charged capital with offenses should sabotaged relationship dicament and manipulate greater afforded latitude to attorney with the ob with each successive and misuse valuable and treasured consti goal delaying disrupting vious rights. tutional orderly trial of the case. Under these circumstances, fully the trial court was also claims that he Carruthers justified concluding that Carruthers had process denied due because he was Indeed, incompetent to choose between in forced right forfeited his to counsel. all, counsel and no counsel at and he as one, a trial court situations such as this held judge serts that should have a has no other choice but find that validity of his hearing a to determine the to coun right defendant has forfeited the complaints attorneys. about his sel; otherwise, intelligent defendant theoretically through tens of go “could disagree. simply There is We delay court-appointed attorneys and indicating no evidence one of Cummings, N.W.2d years.” trial for 546 many attorneys appointed represent fact, ineffective.29 Carruthers was noted, asserting assistance of coun- Appeals ineffective 28. As the Court of Criminal petition post relief. We appears only capital in the for conviction this to be the case sel in assertion of inef- country which a defendant has been held to have considered Carruthers’ right appeal implicitly waived forfeited the as a forfeiture or fective counsel in required represent emphasize argument, counsel and has been we that claims sentencing. generally Water are himself at trial and ineffective assistance of counsel Cf. State, (Fla. petition So.2d 1011-15 appropriately house v. in a more raised Anderson, 1992) capital (requiring the defendant post relief. See State conviction argument capital pro se at his re- (Tenn.Crim.App.1992) make a sentencing hearing). ("Raising pertaining the ineffective issues in the of counsel for the first time assistance fraught per- appellate practice sup- court is holding 29. Our that this record does not Wilson, il.”); S.W.3d 189 State v. port claim that he was forced to Carruthers’ cf. (Tenn.2000) (holding that a constitutional ineffective counsel or no choose between guilty plea challenge validity preclude at all does not Carruthers counsel (“[W]hat- n. at 2541 n. 95 S.Ct. trial court’s re- folly supports the record him open to attorneys may may not be findings that ever else peated tri- competent, highly repre- skilled qualified, who elects appeal, defendant lawyers. The record demonstrates al complain himself cannot thereafter sent case, closely supervised the the trial court defense quality of his own progress, about defense counsel’s inquired assistance a denial of effective amounted to concerns allowed to voice his counsel.”).31 counsel, conscientiously re- about right that his argues also from Car- viewed and considered letters trial court violated when the counsel was about his at- containing allegations ruthers advisory as Sayle to withdraw allowed information, the torneys. upon Based this This Court recent- disagree. We counsel. attorneys repeatedly trial court found the “there is no constitutional ly held that competent. Carruthers to be representing advisory coun- appointment right about his complaints Most of Carruthers’ knowingly has where a defendant sel attorneys outrageous personal at- right to counsel.” intelligently with waived nothing tacks that had little or to do Indeed, Small, allega- recog- at also legal representation. these 988 675. We S.W.2d that the letters outrageous tions were so have dis- nized in Small that courts at trial a sealed counsel, were sealed and remain advisory but to appoint cretion Although appeal. exhibit to the record on re- trial court decisions emphasized letters, it not we have reviewed the is advisory counsel garding appointment necessary specific to reveal the nature a appeal absent will not be overturned allegations.30 and unfounded the offensive Id. Car- showing of abuse of discretion. that, say it the nature of given Suffice authority no that would ruthers has cited court’s close allegations and the trial in this a different rule require adoption of case, supervision careful a for- case. compe- hearing mal to determine counsel’s tency necessary. was not finding After Carruthers right implicitly waived or forfeited his is To extent that Carruthers court, counsel, the trial consis appointed alleging pro representation that his se was appointed preferred practice,32 tent with ineffective, agree with we the Court Sayle was allowed advisory counsel. a Appeals’ Criminal conclusion that when per leveled withdraw because Carruthers right defendant forfeits or waives the Carruth- against attacks him. Given sonal counsel, regardless of whether the waiver prior five court- relationship with his ers’ explicit implicit, or he or she also forfeits attorneys, we conclude that appointed right to effective assistance waives trial court did not abuse its discretion Small, 673; at of counsel. See Indeed, (Tenn. Sayle to withdraw. Goodwin, permitting State v. S.W.2d Faretta, entirely reason- trial court’s decision Crim.App.1995); U.S. Cf. State, Ga.App. petition Daughtry v. litigated in a sel. should be raised and Cf. (1997) (stating direct 482 S.E.2d post-conviction relief rather than on heard to assert defendant will criminal appeal). assistance of counsel a claim of ineffective slated, stages pro- previously respect after the trial court of the of the 30. As with counsel). right his There- ceedings Carruthers had forfeited he was ruled that counsel, wherein stated, fore, holding this testify previously that the our Carruthers offered to as al- allegations Massey preclude were un- Carruthers from appeal he made about does not petition ineffective leging post conviction true. stage respect with of counsel assistance note, however, represented that a defendant retains 31. We proceeding wherein he was of the right complain of ineffective assistance by counsel. any stage proceeding respect to of the with 32. Moore, 706 F.2d at 540. represented by coun- he or she was wherein Cummings, able. 546 N.W.2d at 419 that of Carruthers under Tenn. R.Crim. Cf. 14(c)(2).33 (upholding ap- the trial court’s refusal to Montgomery P. asked for a standby severance, trial, trial, counsel because the defen- point during before totally cooperate dant had refused to trial, motion for new again once his counsel). previous court-appointed failure to arguing that the trial court’s This issue is without merit. grant prejudicial a severance resulted mandating error a new trial.34 Finally, argues that Carruthers Court, unduly Montgomery claims he was fairly him the trial court did not treat prejudiced by joint trial because of the represent because he forced to him admission of certain statements made self. Carruthers recites an extensive list that would not have been ad- thirty episodes allegedly support of over separate at a trial and because of missible ing unfair allegations that his trial was prejudicial fashion” in which “grossly unequal. and his treatment As the Court represented himself at trial. found, Appeals of Criminal most responds the trial court com restrictions about which Carruthers Montgomery’s denied re- appropriately proa se plains resulted from his status as alternatively quests for a severance and subject litigant prisoner and a to strict deny- any possible contends that error fact, In the record security measures. ing request was harmless. much reflects that the trial court was more lenient with Carruthers than with the oth a should be Whether severance attorneys great er defense and went to is a matter entrusted to the sound granted to lengths accommodate Carruthers’ re court, of the trial and this Court discretion quests, issuing subpoenas even for wit will not interfere with the exercise of trial. The trial court also during nesses preju it in clear discretion unless results liberally for to approved funds v. Hutch dice the defendant. See State expert investigative secure assistance. ison, 161, (Tenn.1994); 898 166 S.W.2d required exempt The trial court was not Coleman, 112, 619 116 State v. S.W.2d complying from with the rules State, (Tenn.1981); 222 Hunter v. Tenn. procedure of evidence and or to allow Car- 1, (1969); 672, 681, 440 6 State v. S.W.2d reign ruthers free the courtroom. The (Tenn.Crim. Burton, 440, 447 S.W.2d was treated record reveals that Carruthers State, 164 v. App.1988). Woodruff court, fairly by the trial and this issue is 530, 538-39, 843, 845 Tenn. without merit. (1932), noted that: this Court Montgomery’s

Denial of Motion state, ac- persons as well as the for Severance cused, pro- rights is entitled to have its tected, are persons and when several Montgomery claims that the trial court crime, single a we charged jointly his case from by refusing erred sever (c)(1) guilt or innocence of provides for severance determination of the 33. Subsection one or more defendants. where a co-defendant’s out-of-court statement refers to the defendant but is not admissible requested on Montgomery first a severance 34. (c)(2) pro- against the defendant. Subsection 16, 1994, again February on December part vides in relevant that: might be appeared Carruthers when it se, court, proceed April required pro on motion of the state or on [t]he on during as a result of Car- than under the course of trial motion of the defendant other (c)(1), again representation, grant pro se shall a severance of ruthers’ subdivision 24, 1996, (i)[b]efore immediately April before Carruthers if: trial ... it is defendants witness, testify as a appropriate promote a de- called Alfredo Shaw to deemed fair hearing jury-out guilt when it became clear in a termination or innocence of one trial, defendants; consistently testify (ii)[d]uring Shaw would that Alfredo or more severed, testimony implicate grand jury to be with his with consent of defendant killings. necessary a Carruthers in the it is deemed to achieve fair make judge should also [T]he have the district think the state is entitled to any- punishment at the outset guilt fact of determined clear to the trial, single says unless to do so in his thing pro assessed a se defendant rights unfairly ‘prejudice would and should ‘lawyer role’ is not evidence defendant beforehand pro instruct the se defendants. avoid reference that he should both added.) required (Emphasis Reversal statement opening co-defendants only the record demonstrates when prior permission or summation without clearly prejudiced “the defendant comment- court and refrain from point that the trial court’s discretion solely evidence or ing on matters granting [a] and the severance ended knowledge or belief. personal within his Hunter, 222 judicial duty.” became a 6; 682, 440 see also Tenn. at S.W.2d Veteto, 138-39; Oglesby, 764 701 F.2d at Burton, at 447. S.W.2d 556-57; Sacco, 1275; F.2d at F.2d at previously court con- No Tennessee has Canedo-Astorga, 903 P.2d at 506. These of one defendant’s self- sidered the effect precau- emphasized courts have such representation right on a co-defendant’s “suggestions, are not re- tionary measures a Several federal courts have severance. preventing possibility quirements, that, “pregnant held while with the possi- actuality” into prejudice ripening pro bility prejudice,” involving involving pro in a trial se defendant a represented se defendant and co-defen- Veteto, 701 co-defendant. represented prejudicial per dant is not se. United precau- agree F.2d at We that these (11th Veteto, 701 F.2d 138-39 States tionary employed measures should be Miller, Cir.1983); see also Person v. represent- proa se and a when defendant (4th 656, Cir.1988); F.2d 665 United States jointly. are tried Howev- ed co-defendant (7th 1273, Oglesby, v. 764 F.2d 1275-76 cases, one, er, in rare such as this even Sacco, Cir.1985); v. United States protective measures will not be suffi- these (2nd Cir.1977); F.2d 555-56 possibility preju- “the prevent cient to Canedo-Astorga, Wash.App. actuality.” into Id. ripening dice from (1995). than auto P.2d Rather Although required the trial court a in matically granting severance such cases, generally adhere suggested that Carruthers these courts procedure and cau em rules of evidence precautionary certain measures be making him about statements to the ployed possibility preju to minimize the tioned dice, enough were not including jury, these measures from prevent pro representation his se counsel,

appointing standby warning the a fair Montgomery’s right to prejudicing pro se defendant that he will be held Indeed, ef despite trial. the trial court’s the of law and evidence and that rules forts, that Mont the record demonstrates speaking he should refrain from the severely prejudiced by Car- gomery was on the evi- person first his comments self-representation, specifically, dence, ruthers’ instructing jury prior the jury,35 mannerisms before the remarks, his offensive closing during the summation that instructions, of witnesses elicited nothing questioning in final that evidence,36 impor- and most incriminating lawyer said is evidence this case. the example, during judge cross-examination jury to the trial com- 36. For 35. The sent notes “scratching pull- Terrell Adair if he knew plaining Carruthers asked about Carruthers why groin standing facing had shot him and he had been shot. ing when who around his offensive,” "they say you did it.” responded, very later Adair jury. We find this cross-examination, Again during Carruthers why asking judge trial Carruthers “was Johnson, you tell me that asking question Andre “Did constantly the same over asked somebody you that was Reginald Burkes told over.” testify fully apparent until the trial had tantly, calling Alfredo Shaw to come Only at the conclusion of the concluded. prejudice Montgom- as witness. trial court to possible trial was it ery compounded when the State used comprehend the full effect of Carruthers’ incriminating emphasized evidence representation upon Montgomery’s self during closing its elicited that right to a fair trial. We realize argument.37 properly attempted trial court to accom- with asser- agree We do not the State’s judicial economy, modate the interest tion that error is harmless because the in having guilt interest deter- State’s jury “that if evi- trial court instructed the punishment single mined and assessed they applied dence to one defendant should trial, a fair right and the defendants’ only apply it to the one defendant.” As However, trial. the time this issue out, gen- Montgomery points despite this trial, we raised in the motion for new instruction, no trial point eral at did the that believe that the record demonstrated any particular court instruct that clearly prejudiced to Montgomery “was only to defendant and applied evidence one trial point court’s discretion though Montgom- the other. Even severance granting [a] ended and the mentioned, ery’s name was not Alfredo Hunter, judicial duty.” became a testimony clearly Shaw’s indicated 6; see also at Tenn. 440 S.W.2d with others were involved Burton, at 447. therefore We crimes, given committing these fair Montgomery’s right hold that to a trial, joint jury likely inferred prejudiced trial was when he was denied Montgomery was one of the others.38 jointly severance and was tried Car- recognize preju Accordingly, We reverse Mont- ruthers.39 we resulting Montgomery being gomery’s convictions and sentences and dice trial.40 jointly tried with Carruthers did not be- remand for new separate trying get you?” responded, will be inadmissible in a trial. Johnson “Yes section, you, fully explained you And I it was sir.” As more in the next sir. told hearsay under the statements are admissible conspira- co-conspirator exception even if the example, closing argument, 37. For in its tried, separately conspir- a tors are and where State reminded the that Carruthers exists, acy Montgomery yet a even if was not drug dealing put on a seminar about in Shel- member, adopted the he is deemed to have by County, highlighted Carruthers’ cross-ex- previous of his fellow acts and declarations incriminating evi- amination that elicited State, 1, conspirators. dence, See Owens v. 84 Tenn. emphasized that Carruthers had (1885) ("And everyone entering a con- 4 into put proof through Shaw to show Alfredo spiracy party every act which has happened [p.m.] and “what between 11:00 others, every done and to day killings before been 5:00 occurred. [a.m.]” afterward, act in furtherance of others design.”); the common see also United States generically referred to others Carruthers Brown, 1246, (10th 1255 Cir. v. 943 F.2d describing the to Alfredo Shaw. when events 1991); § 23 C.J.S.2d Criminal Law 982 example, “Tony Shaw testified that told For (1989). house, they mother’s me went to Marcellos’ Delois, and told her—asked her where money Again, Shaw testified that Montgomery’s was.” are be- 40.Because convictions truck, up "they burned Marcellos’ ing trial, burned for a new reversed and his case remanded fingerprints up up, up the truck to cover address all his claims relat- we need not Tony Carruthers then improper was inside the truck. ing use admission and erroneous they drove the bodies back to stated that likely it is not these same of evidence because However, I’m Memphis. Marcellos and Tucker were we alleged reoccur. errors will assuming dead.” emphasize prior statements that Shaw, inconsistent witness, ordi- Nakeita or other only purposes of narily are admissible though that a 39. Even we have concluded and, impeachment unless the satis- granted, we do statement have been severance should hearsay exception, should not be Montgomery’s fies another agree with assertions that not prove of the matter joint admitted to the truth of the evidence admitted in the much

555 Admissibility of Jonathan by exceptions in the Tennessee Rules of

Montgomery’s applicable or other law. See Evidence

Statements exceptions Tenn. R. Evid. 802. One of of a co- hearsay to the rule is a statement complains next that the trial Tenn. R. Evid. conspirator. See allowing court witness erred the State’s 803(1.2)(E). exception, hear- Under testify Chris the state- Hines about if say is it constitutes “a state- admissible Montgomery. ments of Jonathan Accord- by co-conspirator party during ment Carruthers, ing testimony Hines’ about in furtherance of the the course of and Jonathan’s statements was inadmissible conspiracy.” Id. hearsay. argues The State that Hines’ testimony was admissible under the co- A conspiracy is defined as

conspirator hearsay exception. See Tenn. 803(1.2)(E). persons R. two or more Evid. combination between to do a criminal or unlawful act or a lawful Specifically, complains about act criminal or unlawful means. See testimony relating Hines’ the statements (Tenn. v. Alley, 968 S.W.2d Jonathan made to him mur- about these Gaylor, Crim.App.1997); State ders when Jonathan car borrowed Hines’ (Tenn.Crim.App.1992); S.W.2d night of the murders and when Jona- Houston, State v. S.W.2d than and Hines the carwash the (Tenn.Crim.App.1984); Lequire, State v. morning after the murders. The Court of 608, 612 (Tenn.Crim.App.1981). 634 S.W.2d Appeals Criminal held that Jonathan’s first co-conspirator To be admissible under the statement to Hines fell within the co-con- hearsay exception, a statement must be spirator exception because at the time Jon- “during conspiracy. made the course of’ a athan him asked Hines to take conspiracy This means that the must cemetery, one could infer that the victims occurring ongoing been at the time the had not been buried and Jonathan was Walker, statement was made. See State v. needed to complete robbery, kidnap- (Tenn.1995); pings, Gaylor, murders. The Court of Crimi- 554; al., Appeals nal also held that Jonathan Mont- 862 S.W.2d at Neil Cohen et gomery’s 803(1.2)(6) § statements to Hines the next Tennessee Law Evidence (3d ed.1995). morning while car being Hines’ conspiracy If the had not washed were not in furtherance of the already begun or had concluded when the conspiracy but were more akin to “casual made, will statement was the statement past conversation” about thus events and co-conspirator under be admissible inadmissible. Since the second inadmissi- exception. exception requires Id. The also ble statement was cumulative of the first “in of’ that the statement be furtherance statement, admissible the Court of Crimi- short, conspiracy. In the statement Appeals nal found the error harmless. We must be one that will advance or aid the agree. way. conspiracy some See State Hef lin, 519, (Tenn.Crim.App. S.W.3d statement,

Hearsay “is a than other one 1999). long This has been the law by testifying made the declarant while Owens, 4; 84 Tenn. at Tennessee. See the trial or hearing, offered evidence to Wisdom, Harrison v. 54 Tenn. 107-08 prove the truth of the matter asserted.” (1872). 801(c). explained R. Hearsay Tenn. Evid. is not Commentators except provided admissible evidence as that: instruction, limiting asserted. An instruction to the so limit- the trial court should

ing any prior sponte its consideration of inconsistent consider whether a sua instruction is appeal ordinarily appropriate. statement is a on If warranted to foreclose reversal Smith, object prior plain defense 24 S.W.3d fails to to admission of a for error. See State v. (Tenn.2000). request inconsistent statement or fails to person. to meet Hines in When ranged in furtherance of may be [a] statement ways. Ex- home around conspiracy in countless arrived at Hines’ Jonathan Hines, “man, designed to we amples p.m., include statements 9:00 told Jonathan started, plans, develop cemetery the scheme on get folks out at the got them done to accom- arrange things $200,000. be Man Presley, got and we Elvis goal, update conspirators other plish the Accord- n-—r had to kill them folks.”41 arising prob- progress, on the deal Hines, Mont- point at this James ing to lems, provide information relevant in” with Jona- “beeped and talked gomery project. to the While such statements conversation, than, Jonathan and after this conspira- ordinarily made to other are cemetery. him to the asked Hines to drive 803(1.2)(E) tors, does not so re- Rule al- Hines refused to drive Jonathan but may parties to third quire. Statements his car. lowed him to borrow conspira- qualify if in furtherance of the support The record does not Carruthers’ cy- conspiracy that the had ended assertion 803(1.2). 6, Evidence, § Tennessee Law of made Montgomery time Jonathan exists, “every- p. conspiracy 522. Where fact, In Nakeita Shaw these statements. party entering conspiracy one into the is victims, two of the testified she saw every which has before been done act Tuck- Anderson and Frederick Marcellos act every the others and to er, p.m. home alive around 10 leave her of the others afterward in furtherance and Carruthers. Montgomery with James Oioens, Tenn. at 4. design.” common addition, In the record demonstrates between Casual conversation Jeep Anderson’s Cherokee Marcellos not among co-conspirators is considered in Missis- much later at 2:40 a.m. burned conspiracy. in furtherance of the Clearly, conspiracy sippi. Hutchison, In at 170. See made Montgomery ended when Jonathan addition, conspirator appre where a to 9:30 at around 8:45 these statements police, all to the it is hended and “tells addition, the record reflects p.m. unlikely confession is admissible as a in furtherance the statements were made Walker, 910 conspirator statement.” contacted conspiracy. of the Jonathan those at 386. Under circum S.W.2d to ob- Hines made these statements stances, only a the statement “becomes he cemetery to the so transportation tain conduct be past narrative statement of in complet- co-conspirators assist his could tween Id. conspirators.” hold We therefore ing conspiracy. principles, these we about

Applying testimony of Hines that the Chris testimony about agree Montgomery that Hines’ statements Jonathan murders, made Montgomery statements Jonathan night him on the made to to borrow Hines’ car was asking when admitted February properly co-conspira properly hearsay admitted under the ex- co-conspirator pursuant stat hearsay exception. previously As tor hearsay rule. ception to the ed, Mont that Jonathan Hines testified However, as the Court “beeped” p.m. him around 8:45 gomery held, the statements Appeals Criminal said, “Man, 24,1994, a n — r February Hines at made to asked, Montgomery Jonathan When Hines got them folks.” morning after on the the car wash replied, “Cello “What folks?” Jonathan co- under the not admissible murders were something about steal and them” and said stat exception. previously As $200,000. conspirator indicated he could ing Jonathan repeated- ed, that Jonathan ar- Hines testified telephone not talk more on folks.” Montgom- I had to kill them explained that Jonathan 41. Hines Man, telling saying-like you, ery "was if I was

557 sepa- had tried “they ery complains him at the ear that he been ly told wash rately, kill statements the circumstantial evidence admissi- people.” some These separate him at a trial would conspiracy against not made while the ble were nor these in fur- ongoing, statements have been insufficient. conspiracy. of the These state- therance ap proper inquiry The ments are best described as a narrative “of sufficiency pellate determining court past conspirators” conduct between conviction, wheth support evidence to is Walker, therefore were inadmissible. See er, in a most considering light the evidence Nonetheless, agree 910 at we S.W.2d any rational prosecution, favorable to the Appeals

with the Court Criminal fact have found the essential trier of could testimony the erroneous admission of beyond elements of the crime a reasonable about these is harmless error. statements Virginia, doubt. See Jackson v. 443 U.S. testimony This is consistent with and (1979); 307, 2781, 99 61 L.Ed.2d 560 S.Ct. merely testimony cumulative of Hines’ (Tenn. Hall, 593, State v. 8 S.W.3d 599 night about Jonathan’s statements on the 1999). jury, guilty by ap “A verdict properly of the murders which were admit- court, proved by the trial accredits co-conspirator exception. ted under the testimony of the witnesses for the State Finally, we agree also with and resolves all conflicts favor of the Appeals the Court of Criminal that rever Bland, prosecution’s theory.” v. 958 State required sal is not because the court (Tenn.1997). 651, Questions S.W.2d 659 refused to allow question Carruthers to witnesses, credibility about Ruby Detective about the content of Jona evidence, weight given and value to be Montgomery’s than the po statements to as well as all factual issues raised testimony clearly lice. This ad was not fact, evidence are resolved the trier of hearsay missible co-conspirator under the reweigh and this Court does not or reeval exception. a co-conspirator When “tells may uate the evidence. Id. Nor this Court all to the it police, unlikely is the confes substitute its inferences drawn from cir conspirator sion is admissible as a state cumstantial evidence for those drawn Walker, ment.” 910 S.W.2d at 386. Even State, the trier of fact. See Liakas v. assuming the statement would have been (1956). 298, 305, Tenn. 286 S.W.2d hearsay exception admissible under appellate The standard for review is the interest,42 against for statements penal upon same whether the conviction is based any error in excluding the evidence was direct or circumstantial evidence. See harmless. statements Jonathan (Tenn. Vann, v. State S.W.2d Montgomery police implicat made to the 1998). may entirely A conviction be based prej ed Carruthers and would have been on circumstantial evidence where the facts udicial to defense. This claim is with clearly are “so interwoven and connected out merit. pointed unerring finger guilt that the ly at the Defendant and the Defendant Sufficiency of the Evidence Smith, alone.” State v. 868 S.W.2d (Tenn.1993) Duncan, Both chal- Montgomery (quoting Carruthers and (Tenn.1985)). lenge sufficiency convicting of the evi- A verdict argues guilt presumption dence. Carruthers the wit- removes the of inno him it against replaces presumption nesses were not credible and cence and appeal defendant has heavily guilt, the State relied too on the testimony Montgom- illustrating why of convicted the burden of the evidence felons. however, note, placed 42. Since scene that the trial court Jonathan himself murders, might have admit these statements under Rule these statements asked to 804(b)(3) penal its against and therefore never considered been admissible as statements 804(b)(3). applicability. We interest. See Tenn. R. Evid. 558 crime; support insufficient verdict ren- cealment the im the of calmness Id.; see v. also State See jury. mediately State v. by killing.

dered the the after Pike, (Tenn.1982). Tuggle, 639 S.W.2d (Tenn.1998); 914 978 914 S.W.2d Bland, contrast, 660; Brown, appeal In the on State is entitled 958 S.W.2d 836 West, strongest legitimate the view of the trial 541-42; S.W.2d at 844 legitimate (Tenn.1992). evidence and all reasonable and 144, 148 S.W.2d may which be drawn the inferences from proof reviewed the Having Hall, 599; evidence. See S.W.3d at State, light the favorable to the most as we

Bland, at 659. 958 S.W.2d do, required agree are we with the committed, At this offense the time was Appeals Court of Criminal the evi degree first murder defined as an legally support dence is sufficient the “intentional, premeditated and deliberate jury’s verdicts as to each defendant. The § killing of another.” Ann. 39- Tenn.Code proof thoroughly fully trial been has 13-202(a)(l)(1991).43 “Intentional” is de- respect to Carruthers’ summarized. With objective the “conscious fined as desire witnesses, challenges to the State’s suffice engage the conduct or cause the that, cross-examination, say it to through § result.” TenmCode Ann. 39-11- jury the was made aware that some of the (1991). 106(a)(18) Premeditation, the records, felony prior witnesses had hand, requires other “the exercise of re- of past some the witnesses admitted to Ann. judgment.” flection and Tenn.Code drug and that some of dealing, the wit 13—201(b)(2)(1991). § Finally, deliber- 39— nesses given inconsistent statements requires proof purpose” ation “cool police to the the events of regarding Feb period that includes some reflection dur- However, ruary 1994. the ing passion which the mind is free from credibility resolved these issues of in favor See and excitement. Ann. TenmCode State, appellate may of the and an court 39-13-201(b)(l) (1991). § jury’s credibility the reconsider assess elements of premeditation The Moreover, already ments. while we have questions and deliberation are of fact to be resolved the severance issue favor of Bland, See jury. resolved reject claim Montgomery, we may at 660. These elements S.W.2d legally circumstantial evidence insuffi by proof established circumstances view, cient. the evidence is legally our Id.; also see killing. surrounding (dis 39, supra sufficient. See Footnote Brown, (Tenn. State v. cussing of the applicability co-conspira Bland, 1992). As we stated there are tor hearsay exception). tend support several factors which elements including: existence of these Gag Order Issuance upon deadly weapon use of a an unarmed victim; cruelty particular killing; argues next error declarations the defendant of an intent court committed reversible issu- kill; procurement ing preventing him from weap “gag evidence of a order” on; The trial killing speaking before the for con- media.44 court’s preparations to the only prosecution has since cation one witness. The The statute been amended order, longer requires proof of no deliberation. See Appeals Court of vacated this Criminal (1999 39-13-202(a)(l) § Ann. Tenn.Code holding prior restraint that it was in viola- (l)[a] ("(a) degree Supp.) First murder is: tion of .the First Amendment to United killing premeditated and intentional of anoth- Montgomery, States State v. Constitution. ...”). er. 1996). (Tenn.Crim.App. gag S.W.2d attorneys prohibiting and Carruth- order gag 44. The trial court also issued a order media, however, talking ers re- preventing publishing the media from throughout place mained trial. witnesses, prosecution names of certain prevent publi- which was later modified

559 order, elements of a fair issued about a month before the but it defines the basic began, largely through provisions trial states: trial the several Amendment.”). Nonetheless, of the Sixth

The Constitutions of the United simply have referred numerous courts guar- the of States and Tennessee trial right the to a fair Sixth Amendment antee defendants all criminal cases context, and we will do the same. this process of a fair right due law and the Co., Inc., See, e.g., re Dow & 842 Jones impartial jury. duty It is the of the (2d denied, Cir.), cert. 488 trial court F.2d every to see that defendant is all his 102 L.Ed.2d 365 rights. afforded constitutional U.S. S.Ct. Ford, (1988); v. F.2d United States safeguard In order to those rights, (6th Cir.1987). 596, 600 of opinion this Court is following necessary rule is to constitu- Carruthers also raises First Amendment tionally guarantee an fair orderly concerns, given which is understandable Therefore, impartial jury. trial gag orders exhibit the characteristics orders the following: this Court prior restraints. United See States case, lawyers participating

All in this (5th Cir.2000). Brown, 415, 424 218 F.3d including any proceeding defendants pro (not Jones, But see at 608 Dow 842 F.2d se, assistants, staff, investigators, ing “substantial difference” between employees investigators are for- press restraint on the and a on restraint part bidden to take interviews for crux of participants). Yet the Car- publicity making extra-judicial and from that his argument appeal ruthers’ statements about this from this case defense was inhibited because he could not date until such time as a verdict is re- respond coverage to the media’s of the turned in this in open case court. trial; he could do to alter the nothing case, gravity jurors’

Because of case preconceptions this about long because of the history gained exposure of concerns from their to news re personal safety attorneys, for the liti- ports. argues Carruthers also that his case, gants inability and witnesses in speak press may this because of the potential danger prevented coming this potential witnesses —believed stated, very very pres- Properly Court to be real and forward to his defense. then, ent —of undermining integrity argument gag asserts judicial system by “trying right the case in order with his to a fair interfered the media” of sullying jury pool, trial. To the extent brief rais Carruthers’ claim, however, this compelled adopt Court feels es a First Amendment we terms, extraordinary pretrial it By measure. find moot. its own upon court’s order ceased to exist the re challenges this order as vio- verdict, turn of the which occurred several trial, lating right to a fair guaranteed course, years ago. gag Of since a order is by the Sixth Amendment the United speech, definition a restriction on our I, States Constitution Article Section 9 review Sixth Amendment of Carruthers’ Tennessee Constitution. Carruth- claim demands consideration of First rely ers is upon correct the Sixth principles. Amendment As is clear from note, however, Amendment. that the We law, below, proper the case discussed Supreme has United States Court stated validity governing gag standard or “right impli- that a to fair trial” claim also explicitly incorporates princi ders these cates the Fifth and Fourteenth Amend- analysis. in our ples, as do we See, e.g., ment Due Process Clauses. rejected Washington, Appeals Strickland v.. 466 U.S. The Court of Criminal 684-85, 2052, 2068, arguments upheld gag L.Ed.2d 104 S.Ct. Carruthers’ (1984) (“The guarantees entirety. opin- Constitution a order in its As noted its Clauses, ion, circumstances were con- through following fair trial the Due Process him, gag for trial court’s order directed by the trial court as reasons sidered defendant, at representing himself trial. issuing gag the order: numerous threats one of the co- attorneys; the death of Appeals As the States Court of United defendants; highly-charged the emotional recently deter- for the Fifth Circuit has was (e.g., climate of the trial the courtroom mined, split circuit courts are the federal members); the guarded by S.W.A.T. team to the correct constitutional standard as jailer in his gunning deputy down of trial gag participants. orders on governing driveway, judge thought which the trial Brown, F.3d at 425-28. For ex- See 218 case; fleeing related to the of one was gag ample, the has held that Sixth Circuit in the reading after about the case witness must meet the participants orders on trial of two wit- newspaper; and the statements exacting present danger” test “clear and already testified that de- in Near v. speech nesses who free cases enunciated Minnesota, 625, 697, kill threatened to 51 S.Ct. 75 Montgomery fendant 283 U.S. Also, (1931). Ford, F.2d at they if talked about the case. L.Ed. 1357 See 830 them (“We noted, reasons for a Appeals legitimate 598 see no as the Court of Criminal com- [as for individuals lower standard Alfredo Shaw testified Chicago Accord press].”). to the arrangements pared him made threatened Bauer, F.2d Lawyers v. 522 him Council reporter have a interview about re- (7th denied, 242, Cir.1975), 427 Thus, 249 cert. canting story. the court held 912, 3201, L.Ed.2d 1204 96 49 U.S. S.Ct. con- judge properly (1976) and imminent (applying a “serious media’s influence on the cerned about the test); v. States Dis threat” Levine United safety and the of all potential jury pool (9th Court, 590, Cir. trict 764 F.2d 595-96 trial. court also held involved in the 1158, 106 denied, 1985), 476 U.S. S.Ct. cert. certainly aware of the public that the (1986) (same). 2276, 90 L.Ed.2d 719 coverage and that trial from the media’s Second, Fourth, contrast, and Tenth would press statements to the Carruthers’ validity gag orders analyze Circuits likely have led to unknown witnesses strin- trial under less participants coming forward. participant’s gent standard of whether agree We with the Court Criminal likeli- present comments “reasonable cir- judgment that under these Appeals’ trial. Dow prejudicing hood” of a fair See proper. order was We gag cumstances Russell, 610; Jones, at In re 726 842 F.2d hold, however, under the constitution- denied, (4th Cir.), 1007, cert. 469 F.2d 1010 below, scope of al discussed standards 134, 837, L.Ed.2d 74 83 U.S. S.Ct. Nevertheless, that order was too broad. (1984); 412 F.2d Tijerina, v. United States case, of this the circumstances given (10th denied, Cir.), 661, cert. 666-67 error is harmless. 478, 24 L.Ed.2d 452 90 S.Ct. U.S. (1969). v. Corp. See also News-Journal recognized that courts have Numerous (11th Foxman, Cir. 939 F.2d 1512-15 by which to evaluate the correct standard 1991) authority for (discussing the case law constitutionality gag depends orders standard). de Without stringent the less press upon being who is restrained: adopt the “reasonable ciding whether to Brown, See, e.g., participants. trial standard, de the Fifth Circuit likelihood” Jones, 425; F.2d at 608. at Dow F.3d dan present that the “clear and termined press, gag If the order is directed analyzed required, ger” test was not very strin- the constitutional standard it a “substantial the case before under at 414 gent. Montgomery, See Brown, test. 218 F.3d likelihood” See Nebraska Press Ass’n (discussing 427-28. Stuart, 96 S.Ct. 427 U.S. upheld (1976)). this Court has Although appeal L.Ed.2d 683 Carruthers’ see State v. Court, however, participants, restraints on concerns before this facts). (Tenn.1985) (or- Hartman, (discussing the The attor- 703 S.W.2d 106 2738-40 innocence, ney proclaimed client’s restraining talking counsel from der strongly suggested police that a detective public or media about the facts of the perpetrator, was in fact the and stated that case), the under- we have never discussed Al- alleged victims were not credible. constitutional therefore lying issues. We though trial court “succeeded em- decide this issue based on our own inter- paneling jury that had not been affected pretation of United States Court Supreme coverage [the client] the media precedent and the Tennessee Constitution acquitted charges, on all the [Nevada] guidance with from the federal circuit attorney] state bar for his disciplined [the courts.45We note that the Court of Crimi- 1064, 111 statements.” Id. at S.Ct. at Appeals’ opinion emphasizes nal that “[t]he Supreme upheld 2739. The Nevada Court case, however, in twist is that Car- action, disciplinary finding the state bar’s representing during ruthers was himself attorney reasonably that .the “knew or Although trial.” this fact is relevant have known that should his comments applying the constitutional standard to de- materially of preju- substantial likelihood right termine whether a fair Carruthers’ dicing adjudication client’s case.” breached, trial was our review of the case 1065, Although Id. at 111 S.Ct. at 2739. law indicates that the constitutional stan- Supreme judgment Court reversed this dard regardless is the same of which trial Supreme it Nevada because found the participant is restrained. disciplinary construction of Court’s The Brown court’s decision follow a 1048-51, vagueness,” rule “void for id. at “substantial likelihood” test rather than 2731-32, 111 at a majority S.Ct. the “clear present danger” test rests Court held that “substantial likelihood interpretation on its of Gentile v. State prejudice” proper test struck the consti- Nevada, 1030, Bar 501 111 U.S. S.Ct. attorney’s tutional between an balance 2720, (1991). 115 L.Ed.2d 888 The Brown rights First Amendment the state’s rejected court determined that Gentile 1065-76, interest in fair trials. Id. at 111 present clear and danger test for trial S.Ct. at 2740-45.46 participants and that Gentile Su- doing, In so the Court held that preme Court’s latest discussion of the is- stringent governing standard on restraints Brown, (not- sue. See 218 at F.3d 426-28 press articulated Nebraska Press ing endorsing the cases the more Stuart, 539, Ass’n v. 427 96 S.Ct. U.S. Gentile). stringent predated test We (1976) 2791, 49 L.Ed.2d 683 should agree with the Brown holding. court’s apply lawyers to restraints whose an attorney

Gentile involved who held a parties clients are Id. proceeding. press day 1074, conference the after his client at 111 S.Ct. at 2744. See also News- charges. Corp., (noting indicted on criminal See 939 F.2d at Journal 1512-13 Gentile, 1063-65, at 111 Supreme suggested 501 U.S. S.Ct. at Court has Though they persuasive authority 45. are when the Tennessee and United States Constitu- Constitution, interpreting was, the United States holding part, tions. The Zimmermann this Court is not bound decisions of the Jersey based on a decision of the New Su- federal district and circuit courts. We are preme analyzing Court the balance between only by bound decisions the United States rights en- First Amendment and the need to State, Supreme Court. See Strouth v. 999 justice. sure the fair administration of mermann, Zim 759, (Tenn.1999); S.W.2d n. State v. (discussing 764 S.W.2d at 761 In re 447, (Tenn.1984). McKay, 680 S.W.2d Rachmiel, 646, (1982)). 90 N.J. 449 A.2d 505 Rachmiel, Both ever, and In how Zimmermann re In Zimmermann v. Board Professional light were decided before Gentile. In (Tenn.1989) Responsibility, 764 S.W.2d 757 Gentile, we have reconsidered the constitu 7-107(B) upheld Disciplinary we Rule at tional issues stake under both the Tennes (E), govern extrajudicial which statements see and United States Constitutions. cases, by attorneys made under criminal hart, 20, 104 467 U.S. S.Ct. as an alterna-

restricting participants media). (1984). 1072-73, 111 L.Ed.2d 17 Id. at prior restraint on the tive to by the from As characterized quoted approval S.Ct. 2743-44. The Court Maxwell, Court, the Court Seattle Times Sheppard v. 384 U.S. Gentile (1966) newspaper, in which “unanimously 16 L.Ed.2d 600 held that S.Ct. conviction was overturned in a the defendant’s itself a defendant libel which was prejudicial publicity pre- action, publishing because of from could be restrained a fair trial: receiving sup- vented him from plaintiffs and their material about gained it had access porters to which steps by rule The courts must take such discovery.” Id. at through court-ordered will their regulation protect 2744. The Court inter- 111 S.Ct. at Gentile prejudicial from outside processes Times as follows: quoted counsel then Seattle prosecutors, ferences. Neither witnesses, defense, accused, not ‘surrender “[ajlthough litigants do for at the court- rights officers com- Amendment court staff nor enforcement their First jurisdiction door,’ rights may of the court be subordi- ing under house those in permitted to frustrate its that arise this should nated to other interests (citation further, omitted); between counsel function. Collaboration setting” affecting press and the as to information approved [we have] “on several occasions only a criminal trial is not the fairness of trial restriction on the communications subject highly but is cen- regulation, necessary to ensure a participants where worthy disciplinary mea- surable and Id. fair trial for a criminal defendant.” at at 1522. “[flew, sures. 384 U.S. 86 S.Ct. if stated that The Court also are more interests under the Constitution at 111 at 2743. Id. S.Ct. to a fair trial right than the fundamental held, however, see the Brown court As jurors, and an outcome af- by ‘impartial’ Brown, 426, the in Gen 218 F.3d at Court extrajudicial would by statements fected did not conclude that the “substantial tile at right.” Id. violate that fundamental required; prejudice” test was likelihood (citing Sheppard, at 2745 S.Ct. with the only complies that this test it held 1515-16). 350-51, at at 86 S.Ct. 384 U.S. Gentile, 501 First Amendment. See U.S. (“We with agree at 2745 S.Ct. in that the concerns raised conclude We stan- majority of the States [this applicable are re- Sheppard Gentile constitutionally permis- dard] constitutes or his or her party whether a gardless of Amend- balance between the First sible A being prejudicial restrained. attorney is in cases attorneys pending rights ment by an attor- press made to the statement trials.”). in fair and the interest State’s if made prejudicial less ney is not somehow Moreover, a restraint on short, Gentile involved matters is what by party. what case, attorney’s speech; this Car- saying is it. See being and not who is said (“As well as his own party Brown, was a as ruthers the district F.3d at therefore, necessary, attorney. out, It is like participants, trial pointed court ap- rationale whether the Gentile of infor- decide to a wealth attorneys, ‘privy are plies parties. that, public, if disclosed mation fair trial readily jeopardize could unnecessary holding, to its we Although ”). as anything, If parties.’ of all rights evidence the Gentile significant find reasoned, extrajudicial com- one court has present danger that the clear opinion have the participants trial ments made gag orders re- required not test com- harmful than to be more potential partici- trial parties or other straining by attorneys: ments made the distinc- emphasized pants. Court supreme court involved a state Gentile litigation in the “participants tion between members the conduct of governing rule by an recognized to it” as strangers state, we exam- while case, of the bar of Times Co. v. Rhine- Seattle earlier stan this constitutional me a state trial court’s restrictive order Under dard, trial court was particular in a and directed we hold that entered case justified gag order on Car- participants. imposing to all trial Because trial, garnered At this case legal training, attorneys their are knowl- ruthers. rais extrajudicial coverage, of media edgeable regarding significant which amount likely prejudi- ing expressed Sheppard. communications are to be the concerns participants cial. The other trial encom- As himself notes his brief: in this passed the restrictive order charged This trial was with emotion legal case did not have such discernment allega to finish. There were from start expertise. public Given the atten- testimony gang tions of affiliations and defendants, case, generated by tion dealings. The large scale narcotics witnesses and law person- enforcement guarded by courtroom was S.W.A.T. eager press nel were to talk deputies team members and Sheriffs concerning particular their views. to search those who were authorized attorneys governed by While can be entering Representa the courtroom. rules, supreme court or bar other state organizations present of news tives participants do these daily proceedings. record guidelines. Corp., News-Journal media In addition to its concerns about F.2d at 1515 n. 18. presented trial court coverage, the Thus, purposes we conclude that for problem with the of witness intimidation. trial, right constitutional to a fair Gentile’s judge The trial found that witnesses who applies rationale to all trial participants, already had testified stated that defendant that meaning stringent the more clear and threatened kill them if Montgomery present danger test not required. is Moreover, they talked. Alfredo Shaw tes- him tified that Carruthers had threatened Having decided that the clear and arrangements reporter and made to have a present danger constitutionally test not is recanting story. him interview about mandated, we must now decide which test circumstances, these unusual the Under adopt: the “substantial likelihood of justified in employing trial court was or, prejudice” test as some courts have heightened to ensure that a measures employed, the “reasonable likelihood” test. jury prevent and to proper could be found noted, only As Gentile held that the sub manipulating the media constitutional, stantial likelihood test was trial so as to intimidate witnesses. The Brown, required. not that it was See 218 In- judge ignore could not these issues. 426-28; at Corp., F.Bd News-Journal 939 deed, duty he had a constitutional under Nonetheless, F.2d at 1515 n. 18. we con to en- the state and federal constitutions clude under both the state and federal sure a fair trial. constitutions that the substantial likelihood entered, a constitutionally permissible gag test strikes Before a order can be how- ever, rights balance between the free that a trial speech suggests the case law trial the participants, Sixth Amendment court should consider reasonable alterna- trial, right of to a fair a fair defendants and the tive measures would ensure Gentile, In restricting speech. interest in a fair trial. trial without State’s Cf. press, 501 at 111 at 2742. Ac context of restraints on the U.S. S.Ct. cordingly, may Supreme specifi- we hold that a trial court has United States Court extrajudicial constitutionally cally restrict com held that a trial court should consider Press, including law 427 participants, ments trial such measures. See Nebraska 563-64, witnesses, yers, the trial at 96 at 2804-05. These parties, when U.S. S.Ct. venue; change court determines those comments measures include: a of trial public the trial allow pose prejudicing postponement a substantial likelihood of subside; searching questions a fair trial. attention to 564 Having decided that jurors; “emphatic” in- prospective order, issuing gag jurors case did not err to decide the court

structions scope final issue to consider is (discussing Sheppard, Id. on the evidence. 1519-22). above, 357-62, order. As discussed Carruth- at at 384 U.S. 86 S.Ct. argument appeal properly on is con ers’ it not whether Although is clear fair trial” claim rather “right strued as a neces- need to consider alternatives is also claim. than a First Amendment Never sary in the restraints on trial context of theless, restricts gag order definition circuit courts participants, some federal determining gag whether speech. see, Brown, so, e.g., have assumed therefore, appropriate, a court order is Jones, 430-31; Dow 842 F.2d F.3d at may that “[g]overnment must be mindful 611-12, judge considered sev- expression in such a manner regulate trial court eral of the alternatives. The the burden on portion that a substantial nor a change found that neither of venue to advance its speech does not serve because the case practical continuance was Racism, Against v. Rock goals.” Ward years attempt was several old and one 781, 799, 491 U.S. S.Ct. try already been made. The case (1989); Procunier v. L.Ed.2d 661 see also gave careful attention appropriately court Martinez, 396, 413, U.S. S.Ct. instructions, to voir dire and but de- (1974) (the 1811, L.Ed.2d 224 limitation alone termined these alternatives than speech greater “must be no were insufficient. protection necessary or essential to in particular governmental interest extraordinary nature of this Given volved”) Brown, 218 F.3d at (quoted case, trial court was we hold 429). also judgment. entitled to make this We apart from the note that addition to face, the trial court’s order has no On its pretrial publicity concerns about interfer- prohibits it exceptions or limitations: finding an ing with the task of unbiased attorneys mak- and their from defendants jury, trial court was concerned about about the any press comments to ing po- and Carruthers’ witness intimidation considerably gag order case. This manipulation press. tential of the None of in cases dis- any upheld than broader in Nebraska the alternatives mentioned Gentile, though gag not a above. cussed Sheppard likely Press and would have alle- case, a limitation on attor- order involved concerns. The trial court rea- viated these only state- ney speech prohibited which only a sonably gag concluded that order “substantially likely prejudice” ments Finally, we note that would be effective. Gentile, adjudication case. See of the above are not the alternatives mentioned at at 111 S.Ct. 2739. 501 U.S. judicial system. As the free of cost to the avail- an order which “left Brown involved Gentile Court wrote: of ex- various avenues parties able to the ultimately innocence, if a trial can be Even fair pression, including assertions dire, change voir through ensured the nature of an statements about general device, venue, defense, or other these mea- some and statements allegation or Brown, system. sures entail serious costs public matters of record.” may dire not be able in Extensive voir The order Dow Jones F.3d at 429-30. Jones, pretrial the effects of F.2d at filter out all of Dow similar. See was increasingly with wide- publicity, 606. trials, coverage of criminal

spread media trial, we history of this Given the may not suffice change of venue trial court why the certainly understand such as undo the effects of statements Indeed, in Gentile, a broad order. crafted such petitioner. those made cases, takes as where defendant at 2745. certain 111 S.Ct. 501 U.S. hearing on his convic- sentencing ed the advantage gag of a limited order or fails it, robbery of such breadth comply especially aggravated with an order tions for Nonetheless, justified. hold may be we kidnapping especially aggravated gag participants that initial orders on trial that Car- responds The State absence. ordinarily exceptions should contain the right present to be ruthers waived found in the Brown order and allow trial voluntarily he was absent because participants general to make statements sentencing hearing. agree. We innocence, commenting on the asserting immediately reflects that af- The record defense, an or allegation nature of rendered on sentencing ter the verdict was public matters of record. discussing offenses, an- judge capital find the trial court’s failure to We sentencing hearing for nounced that exceptions gag include these in the order would held on non-capital offenses was harmless error. We fail to see how May present 1996. Carruthers was limited statements made Carruthers to made. The when this announcement was innocence, allegations the media about his prepared proceed judge was defenses, public or matters in the rec sentencing hearing on that date. Be- ord have altered the result of the would which misunderstanding cause of a about think that allowing trial. We do not Car- responsible agency law enforcement was such would ruthers to make statements from the transporting for defendants im goal finding have furthered the Mem- prison facility outside of Nashville to partial jury, probable nor do we think it phis, Montgomery neither Carruthers nor come new witnesses would have present hearing were court. The point forward. We also out that these 28,1996, May but the trial rescheduled gag crimes occurred in and the order judge day announced that that because of only was issued one month before trial security hearing concerns the would be years preceding the two issuance 29, 1996, day, May held the next at the order, gag Carruthers had access Security Maximum Institution Riverbend the media. The record shows both he where Carruthers and Mont- Nashville availed himself of that access and that the The defen- gomery were incarcerated.47 responded actively covering media present dants court when leading up trial and events to the trial. made, and the record announcement circumstances, Under these the error be does not indicate that the defendants low was harmless. change in date personally notified of the Sentencing: Non-Capital Offenses sentencing hearing. and location of the attor- Montgomery Counsel for and the Citing state and federal constitu neys represent on appointed to Carruthers provisions tional and Tennessee Rule of appeal previ- the new trial motion and on next Criminal Procedure Carruthers meeting in ously had been advised at a right present contends that his to be at a to of the trial court’s decision stage proceeding crucial of his criminal chambers hearing conduct- hold the at Riverbend. judge was violated when the session, session, any recog- any part its at Appeals 47. As the Court Criminal its or nized, judge county the trial had the discretion other room within the limits of the seat, hearing sentencing conduct the Riverbend any open public or at other room to the security pursuant Tenn. if was a concern department within an institution (1999 Supp.), § which Ann. 16-1-105 Code department or the of children’s correction provides as follows: necessary, and if the court deems it services cause, opinion any in of the court [i]f place, proceedings at such whether all its sufficient, impracticable it is or in- deemed cases, are as valid as if civil or criminal any convenient for court to hold its session done at the courthouse. courthouse, place designated at the law, or added.) (Emphasis hold it shall be lawful for the court to sence, they voluntarily since both judge the trial convened the hear- When from these day, elected to absent themselves ing at Riverbend the next par- or If an individual were al- Montgomery proceedings. refused to attend present delay disrupt proceedings or ticipate although they were lowed to twenty to that he did not want to holding approximately simply by stating room judicial sys- thirty hearing room. War- then the entire present, feet from be very quickly. the trial court Ricky grind Bell informed halt den tem would refusing to that defendant Carruthers sentenc- Noting complete” that “a full and the trial informed participate. Counsel held in con- hearing already had been ing lengthy conference judge despite convictions and junction with the murder to appear had been advised which he likely would additional witnesses refusing appear, Montgomery also was what has al- “cumulative witnesses to purportedly presence because of testified to at the first sentenc- ready been judge The trial recessed personnel. media judge decided to ing hearing,” the trial to confer with hearing to allow counsel hearing. sentencing with the proceed and to allow Warden Bell to Montgomery witness, employ- The called one State inform him confer and to with Carruthers Shelby County Criminal Court ee if he that the restraints would be removed Office, testified that Carruth- Clerk’s who sentencing in the participate decided aggra- guilty had to two counts pled ers hearing. had been sen- assault 1990 and vated resumed, Warden hearing When the years those years ten and five tenced to under- announced that Carruthers Bell upon also relied convictions. removed, but his restraints would be stood guilt and adduced at both the the evidence partici- or refusing he was still to attend pre- of trial and the sentencing phases, pro- pate hearing. in the as to each defen- report prepared sentence for his refusal. explanation no vided dant. that he reported for Montgomery Counsel proof, the trial Following the State’s partici- or refusing also was still to attend to allow again took a recess court once objecting that he was pate and Montgomery to de- confer with counsel to held in a being it was not hearing because participate if he had decided to termine Bell was sworn public place.48 Warden Warden Bell to hearing and to enable about his conversation and testified and advise him that with Carruthers speak Carruthers, refusal including Carruthers’ if he so desired. testify he could that his re- despite attend assurances Following be removed. straints would returned and informed Counsel judge testimony, the trial refusing Bell’s Warden was still judge Montgomery options: that he had two testify hearing. observed in the participate they trial court that will, They advised the their also against out here drag them any proof and present not intend to strap them did screaming, and and kicking presented have been proof that no would them to sit down to a chair and force Memphis. hearing been held in the had the to remain here. Or allow them what was his returned after the Warden Bell go forward with holding room and conversation with Carruthers And I third in their absence. proceedings judge trial that he still course, advised the again the more wiser think that in the participate or refusing to attend course, that the law was the course prudent argument, hearing. Following the latter. taken is suggest would be sentence on forty-year judge imposed in their ab- proceed going We are public bend. was not reflects that 48. The record hearing room at River- from the excluded respect to waiv- Id. at 767. present. for each defen- With

each of the four convictions absence, P. Tenn. R.Crim. by voluntary and ordered that two the sentences er dant 43(b) run especially aggravated kidnapping part: in relevant provides concurrent to the other sentences and to (b)The trial to progress further penalty, death with all other sentences verdict the return of the including and to running consecutive to each other not be sentence shall imposition penalty. the death shall be and the defendant prevented right that the Initially acknowledge we right to have waived the considered at all present of a criminal defendant to be defendant, initial- present be whenever stages proceeding critical of a criminal de- ly present: sources, including rives from several both (1)voluntarily after the trial is absent the federal and state constitutions. See (whether or not he or has commenced Gagnon, United States v. 470 U.S. by she has been informed the court 1482, 1484, 105 S.Ct. 84 L.Ed.2d 486 during to remain obligation (1985) (“The pres- constitutional right trial).... large ence is to a extent in the rooted Confrontation Clause of the Sixth Amend- (2) proceeds ... If a trial in the vol- ment, recognized ... but we have that this ... untary absence of the defendant by right protected the Due Process represented must be he she Clause some situations where the defen- by competent court counsel.... not actually confronting dant is witnesses (b) only years Construing subsection seven Muse, him.”); against or evidence the Court of adopted, after Rule 43 was (Tenn.1998) (“Article Appeals explained that Criminal I, § pro- 9 of the Tennessee Constitution vides that ‘the hath right accused to be the time accused who has notice of [a]n by heard himself and his counsel.’ The place right of the trial and of his ‘right to requires be heard himself attend, voluntarily and who nonetheless presence during of the defendant the en- himself, will be deemed to have absents trial”). tire present. right waived his protection, addition to constitutional every indulge court should reason- [T]he right of a criminal defendant to be presumption against able a waiver. present at stages critical of a criminal given Counsel should be a reasonable proceeding protected by also is Tennessee client, opportunity locate 48(a), Rule of Criminal Procedure which affirmative evidence there should be provides: the accused was informed of his upon Unless excused court defen- trial date. think it is wise to take We motion, dant’s the defendant shall be precautions when a defendant special present arraignment, every stage at appear fails to on the date set for trial including impaneling of the trial require high proof and to standard of verdict, and the return of the trial date that the defendant knew his sentence, imposition and at the ex- voluntary. Trial and that his absence is provided cept as otherwise this rule. favored, pro- in his absence is not added.) (Emphasis only find later that ceeding with trial not know trial date or defendant did many

Like constitutional other voluntarily absent himself would however, did statutory rights, right purposes expressed run counter to the may present be be waived a criminal Muse, 2. at in R.Crim. Mere absence [Tenn. P.] defendant. See 967 S.W.2d at 764. the case is called for trial is Voluntary absence after the trial has com the time right a of the disruptive menced or in-court insufficient to show waiver behavior may right constitute waiver of the to be present. to be Kirk, (Tenn. the hear- persuade Carruthers to attend

State v. to 699 S.W.2d Muse, occasions, see also ing. separate On three Crim.App.1985); Bell confer approving judge at instructed Warden to (quoting S.W.2d Kirk). attempt persuade analysis Applying from this with Carruthers and occasions, in analysis, Appeals of Criminal him each of those appear. Court On Kirk concluded that the defendant had Bell that Warden as- the record reflects right present his to be when he waived his restraints would be sured Carruthers custody ap- after he had escaped right his to make emphasized removed and in and had been advised of peared court hearing.49 at the Under these a statement begin. the date on which his tidal would circumstances, no hesitation in we have Kirk, See 699 S.W.2d at 819. his concluding that Carruthers waived sentencing. at right present to be Muse this Court ap- years ago Two plied the Kirk analysis in a case in which Tenn. Finally, pointing R.Crim. appear jury did not se- the defendant 43(b)(2), that a trial provides “[i]f P. which he was not proceedings lection because voluntary proceeds in the absence judge that the trial had rescheduled aware defendant, repre ... he or she must be of defense proceedings request at the counsel,” by competent in court sented that had been Concluding counsel. Muse if argues that even he waived defendant deprived right present of his be at entitled to a right present, to be he is deprivation consti- selection and that the because the trial sentencing hearing new judicial process, this prejudice tuted appoint competent counsel to judge did reversed his conviction and remand- Court represent him. Muse, See trial. ed for a new question, the scenario Without at 768. uncommon. In most arose this case is purposes appeal, For of this we instances, voluntarily a absent criminal de- that he accepted Carruthers’ contention already represented by will be fendant right pres- a to be had both constitutional continue to be counsel and therefore will Tenn. right present and a to be under ent represented by proceedings counsel 43(a), P. and we have concluded R.Crim. Here, or her absence. be- occur rights. waived those Car- right had forfeited his cause the defendant sentencing hearing ruthers aware counsel, attorney present no there was held, when present be and he was would sentencing him in hear- represent hearing initially was scheduled. While ing. hearing not occur on the date did scheduled, hearing was held originally view, the decision of In our 29, delay only days. nine May on repre appoint or not to counsel whether exactly does not reflect when Car- record absent defendant who voluntarily sent hearing became aware ruthers right to coun has forfeited his previously 29,May but held at Riverbend on would be by the trial court should be determined sel that he was aware there is no doubt court The trial case-by-case on a basis. about to be held when he hearing was familiar in the with the case and is most hearing holding public area near the attorney if an to determine position best room. Appellate courts appointed. should on trial court’s decision should defer where waiver was This is not a case record demonstrates a this issue unless the mere absence from Carruthers’ presumed Small, con- clear abuse of discretion. sentencing hearing at the time the Cf 674. every effort judge made S.W.2d vened. The with Carruthers. ap- his conversations about Contrary to Carruthers' assertions testimony gave sworn peal, Warden Bell

569 cap- proportionality review of judge appoint- Comparative trial concluded that The “rationality designed to insure ital cases is unnecessary. ment of counsel was The imposition in the consistency was, presented by the as the proof Bland, 958 S.W.2d at 665. penalty.” death found, to the judge largely trial cumulative be considered dis- A death sentence will already presented sentencing at the proof whole, case, if the taken as a proportionate hearing on the murder convictions. There lacking in circumstances consis- “plainly is in the nothing suggest record to tent with those in similar cases which any addi- Carruthers had intended to offer previously im- penalty the death has been proof sentencing hearing. at the tional However, posed.” a sentence of death Id. appeal, attorneys Even on Carruthers’ merely disproportionate is not because proof have pointed would circumstances of the offense are similar presented pres- been Carruthers been those of another offense for which represented by counsel at hear- ent or received a life sentence. defendant has They ing. simply assert that “the (Tenn. Smith, 6, 17 State v. 993 S.W.2d judge presumed that Carruthers would Blanton, 1999); 269, State v. 975 S.W.2d proof’ have offered the same as that of- Bland, (Tenn.1998); 958 at 281 S.W.2d capital sentencing hearing fered at the in conducting proportionali 665. Our role state, true, or not this is will “[w]hether we ty review is not to assure that a sentence never know.” Given the circumstances of imposed than death was never in a “less case, we conclude that the trial court Blan case with similar characteristics.” failing did not abuse its discretion in ton, 281; Bland, at 975 S.W.2d 958 S.W.2d appoint represent counsel to “ proportionality ‘Since the re- 665. voluntarily when he was absent from the quirement prevent on review is intended to sentencing hearing. to inflict caprice [death] the decision penalty, jury the isolated decision of Proportionality Review50 mercy afford does not render unconstitu- Finally, we consider whether death imposed tional sentences defen- Carruthers’ sentence of death is compara system dants sentenced under a who were tively disproportionate considering na that does not create substantial risk ” ture of the crime and the defendant.51 We Bland, 958 caprice.’ arbitrariness or begin, always, proposition as with the (quoting Georgia, Gregg S.W.2d at 665 proportional 153, 203, 2909, 2939, sentence death is 49 428 U.S. 96 S.Ct. (1976)). Instead, "first-degree duty crime of murder. State v. L.Ed.2d our 859 Hall, (Tenn.1997). conducting review “is to as- proportionality 958 S.W.2d remand, setting 50. circum- Because of the reversal and we sertion forth the nature and forego statutory proportionality review of the stances the crimes that are claimed to be imposed against of the death sentences Mont- to that of which the defendant has similar Bondurant, gomery. See State v. convicted, including statutory ag- been (Tenn.1999); Bigbee, State v. gravating circumstances found (Tenn.1994). S.W.2d mitigating and the evidence of circum- addition, parties shall in- stances. Initially we note that Carruthers has not clude in the section discussion of challenged proportionality of his death character and record of the defendants in- sufficiency sentences or the supporting of the evidence crimes, volved in the to the extent ascer- aggravating circumstances. appellate reports, the Rule tainable from result, As a Carruthers has not briefed these decisions, court or records of the trials and Appeals issues. The Court of cor- Criminal sentencing hearings in those cases. rectly pointed out that: (footnote omitted). S.W.2d at 667 the State and the defendant in each case database, penalty CD Rom death Tennessee fully by specifically must brief the issue Bland, 958 at 667 n. mentioned in S.W.2d identifying those similar cases relevant to may Administrative be now obtained from the comparative proportionality inquiry. review, addressing Office of the Courts. proportionality When parties the briefs of the shall contain a (1) defendant, any prior rec- we consider: sentence is no aberrant death sure that (2) Bland, activity; age, criminal prior 958 S.W.2d at 665. ord or affirmed.” (3) mental, race, emotional or gender; duty, we performing In this (4) condition; involvement or role physical formula or do not utilize mathematical (5) murder; with au- cooperation in the Id. rigid. test is not grid. scientific The (7) (6) thorities; remorse; knowledge of review, se we proportionality To conduct (8) victim; and helplessness of the the cases which pool lect from the of rehabilitation. Id. capacity for actually was sentencing hearing capital the sen to determine whether conducted the circumstances of Considering im imprisonment, life should be life tence of the relevant com light murders these possibility pa the of prisonment without factors, the three we note parative Bland, role, at 666. or death. 958 S.W.2d bound, shot, and kidnapped, victims were “ re proportionality the aim of ‘[B]ecause alive, per another pit beneath buried capital what other view is to ascertain were grave. killings apparently The son’s with sim sentencing authorities have done to rob desire motivated Carruthers’ offenses, only the capital ilar murder Anderson, a successful and Marcellos ... deemed similar cases could be murders were wealthy drug dealer. These of the death imposition are those in which manner, in a cruel particularly committed before the sentenc penalty properly victims proof and the indicates ” Bland, ing authority for determination.’ maliciously they before mistreated were v. (quoting at 666 Tichnell 958 S.W.2d testimony buried alive. The medical State, 15-16 468 A.2d 297 Md. victims were bound indicated that the (1983)).52 choosing comparing In sim being shot and for sometime before abused variables, cases, many ilar we consider clearly were murders buried alive. The (1) of which include the means some of provoca and there was no premeditated, (3) (2) death; death; the manner killings. for the justification tion or (4) killing; place motivation for Carruthers, twenty-six-years who was (5) death; victim’s similarity of the committed, crimes were old when these circumstances, including age, physical and criminal record. prior extensive conditions, treat and the victims’ mental There is no evidence (6) killing; the absence during ment emotionally impaired (7) mentally or the ab presence premeditation; or occurred, and the record (8) these crimes time provocation; presence or sence was instrumental reflects that Carruthers justification; and presence absence suggesting a killings and (9) planning these on nondece- injury to and effects bury the bodies. Carruthers Bland, location to at 667. 958 S.W.2d dent victims. authorities at cooperate with the did not characteristics of reviewing the When 52. per- by which this review is and the method cases are pool from which similar substantially decision in since the With the has increased formed in Tennessee. drawn Bland, was enacted in capital punishment statute one hundred had reviewed this Court comprehensively cases, decision to 1977. The first again, in addition capital ten comparative proportionality review discuss involving of life a sentence cases innumerable Barber, (Tenn. was State imprisonment without imprisonment or life However, 1988). Court had conscien- this capital pool of parole. The possibility proportionali- performed comparative tiously years in the nine had almost doubled cases preceding fifty-seven capital cases ty Bland, this Bland. Since Barber to from those only had we considered Barber. Not twenty approximately Court has reviewed cases, fifty-seven capital we also had reviewed compar- capital the size of the cases. If more of life cases in which a sentence innumerable concern, it is a concern pool was ever a ison de- imposed for first imprisonment had been cases pool which similar longer. The no Bland, years ago in gree Three murder. large enough enable an clearly is drawn thoroughly explained both again once Court comparative review. effective proportionality review comparative the role of (Tenn.1985) drug in a (killing all, has he shown remorse for S.W.2d nor aggravating circum- involving similar addition, deal given his extensive killings. stances). penalty death Other similar record, unlikely criminal it is Carruth- Hutchison, v. 898 S.W.2d cases are State capacity rehabilitation. Con- ers has a (murder (Tenn.1994) ob- of victim to 161 and the sidering the nature of these crimes a proceeds part life as of tain insurance Carruthers, conclude that character of we men); among group a of State conspiracy place these murders Carruthers into the Harris, 54 Leroy v. Edward whom the death class defendants for (Tenn.1992) (double murder of hotel clerk penalty appropriate punishment. is an during robbery involv- security guard and review, upon Based our we conclude aggra- and similar ing multiple defendants following in which the death cases circumstances); v. vating State Groseclose imposed many simi- penalty has been have Rickman, 142 615 S.W.2d and with this case. v. Farris larities See State (Tenn.l981)(murder an resulted from elab- (Tenn.2000) (brutal Morris, 24 S.W.3d plan to kill the wife of one of orate killing family of innocent members oc way in a cruel and particularly defendants during robbery drugs curred a to obtain circum- aggravating involved two similar jury aggravating and the found similar stances).53 circumstances); Cribbs, State v. (Tenn.1998) cases, many the above and (killing S.W.2d 773 of woman Review of others, death sentences a reveals young her home male defendant jury for first imposed by the Carruthers’ killing who told others the a “hit’and proportion- murder convictions are degree jury aggravating found similar circum penalty imposed ate to the similar cases. stances) Burns, v. State 979 S.W.2d 276 (Tenn.1998) (killing young of other males In with the mandate of accordance during robbery by young a a male defen 39-13-206(c) § Ann. and the Tenn.Code dant); Smith, State v. S.W.2d decisions, principles adopted prior we (brutal (Tenn.1993) killing of three victims considered the entire record and con- involving circum aggravating similar imposed that the sentences of death clude stances); Jones, State v. 789 S.W.2d 545 for Carruthers’ three convictions first (brutal (Tenn.1990) drug-related killing arbitrari- degree imposed murder were not which the victim was to death stabbed ly, supports jury’s that the evidence bound, being gagged, after statutory blindfolded cir- findings aggravating tape; cumstances, with duct cir aggravating supports similar that the evidence cumstances); jury’s finding aggravating v. that the circum- Zagorsky State 38(defendant Although three co-defendants kid- lesser sentences have been im- posed degree in some similar first murder napped and murdered three victims after cases, many of these sentences resulted from them; sought stealing drugs death state plea agreements and therefore are not rele- jury imposed penalty, a sentence of but purposes comparative proportion- vant for possibility parole.); v. life without the State See, ality e.g. review. State v. Terrance B. Dewayne Cham- Jordan co-defendant of Eric Burnett, (in County Lauderdale No. 6484 bers, (the sought penal- supra, State the death member, gang attack on a rival defendant and imposed ty, jury a sentence of life but the child, killed a woman and co-defendants possibility parole); without plea, as the result of received sentence of Wilkins, Shelby County No. 97-13179 Kevin parole); life without Cardenas, State v. Michael Brian (defendant kidnap- gang in a was the leader (defen- County Chester No. 99-001 torture, ping, of victim. State execution persuaded dant and co-defendant victim to penalty, jury imposed sought but the death victim, narcotics, bring kidnapped then them possibility pa- of life without the sentence face, dumped the vic- shot victim in the role.). However, a sentence of death is not river, body in the but received tim’s car merely disproportionate because the circum- plea agreement). life sentence as a result of a are similar to those of stances of the offense cases, imposed In other similar See, has for which the defendant another offense e.g. than death. State v. sentence less Chambers, jury. sentence from a Shelby County 97-03036- received a lesser Eric No. mitigating outweigh

stances circumstances doubt, beyond a reasonable that the proceed upon at trial. March sentence is not excessive disproportion- appellants originally both indicted on ate. three degree counts of first murder. Sub- sequently, in appel- November both Conclusion lants were indicted on three counts of es- pecially kidnapping Carruthers, aggravated and one respect to With we conclude aggravated robbery. count of especially alleged require that none of the errors All of arose from these offenses the same Accordingly, we affirm reversal. Carruth- criminal and involved the episode same convictions and direct ers’ sentences and three date in victims. The trial this mat- that the sentences of death carried out originally February ter was scheduled for by day as law on the 11th provided 1995, prior of the to the return second set April, by unless ordered otherwise However, due mainly of indictments. to proper authority. this Court or counsel, regarding Carruthers’ conduct respect Montgomery, With to we con- eventually trial was continued several clude that a severance should have been Spring times until the of 1996. granted raised in when he the issue Carruthers contends that the murder and that motion for new trial the failure to have been indictments should dismissed. grant a severance in this case resulted Because the was not forced to elect state prejudicial requiring error a new trial. indictments, according between the two to Accordingly, Montgomery’s we reverse appellant’s argument, he “could not convictions and remand for a new trial. reasonably have known whether he was not respect With issues addressed defending charges or charges murder opinion, we affirm the decision of the kidnapping robbery.” The appellant Appeals by Court of Criminal authored further that if the trial claims court had joined T. Judge Thomas Woodall and followed he procedure,” “normal would Gary R. Presiding Judge Judge Wade and never been tried the murder Joseph Tipton. portions M. Relevant charges. disagrees The state asserts attached opinion are hereto as an properly that the all appellant was tried on appendix. charges. are appeal Costs of this taxed to the 8(a) added) (emphasis Tenn.R.Crim.P. State. regarding mandatory joinder of offenses provides: BIRCH, J., concurring/dissenting filed a joined Two or offenses shall he more opinion. indictment, presentment, the same or information, offense with each stated APPENDIX count, separate pursu- or consolidated ant to if the offenses are Rule 13 based From the Court of (Excerpts Criminal upon or arise the same conduct Decision) Appeals’ if episode same criminal such of- OPINION appropriate fenses are known to the Summary [Deleted: Facts] at the time prosecuting official indictment(s), present- return [Deleted: Forfeiture of information(s) ments), they if Right Counsel] jurisdiction single are of a within the of Indictments Consolidation subject not be court. A shall defendant multiple Appellant separate Carruthers claims the trials for offenses falling they requiring state to within this subsection unless court erred to Rule 14. pursuant are upon elect which indictments it intended severed Advisory The Commission Comments 1995 indictments case. As soon as the provide, pertinent part: further Rule 8 returned, filed a mo- appellants were designed encourage rule is This on De- hearing tion to dismiss. After multiple disposition single in a trial of court denied the cember from the same conduct arising offenses motion, on all proceeded the matter episode, and from the same criminal fact, counsel admitted charges. efficiency and promote should therefore to trial on the they they going knew economy. joinder of of- Where such they to dismiss charges; murder moved injustice, might give fenses rise to an claim that charges. the new Carruthers’ 14(b)(2) Rule allows the trial court to charges the state he did not know what relax the rule. wholly without merit. prosecuting is wishes to make clear appellant Commission file a motion only Not did (a) stop meant that section subsequent charges, which dismiss attorneys denied, some practice prosecuting pleadings and or- style charges “saving back” one or more in this case after the return of ders filed indictments, from the from arising same conduct or letters including the 1995 criminal other episode. the same Such attorney, wrote to his refer charges prosecu- are barred from future both the 1994 and 1995 indictments. Moreover, if to the appropriate prose- already tion known start- jury selection had cuting official at the time that the other early January ed in when state commenced, prosecution is but deliber- certainly There moved for a continuance. ately presented grand jury. not to a charges being was no as to tried confusion jury again and trial when selected argument ignores Carruthers’ the basic in finally began April three months later premise purpose behind the Rule. The All were read to of the indictments promote Rule 8 is to efficient administra- the trial. beginning justice protect rights tion of and to clearly permits the accused. The rule in King, As this Court observed subsequently retened indictment to be any evil results perceive We do not joined previous with a indictment where being from indictments re- subsequent alleged same offenses relate to the against charging a defendant him turned State, episode. King criminal See additional offenses which are based with (Tenn.Crim.App.1986). S.W.2d 306 This conduct or which arise from on the same however, practice, does have certain limi- which episode upon the same criminal which, note, tations as the comments safe- returned; prior indictments have been guard against prosecutorial an accused tried when the defendant has not been example, prosecutor For abuse. cannot offenses at the time the on simply charges decide to “save” on other returned. subsequent indictments are out conduct arising offenses of the same noted, Rule previously purpose As original until after a trial is had on the charges trials on prevent multiple 8 is to Obviously, this would result charges. the same conduct or from arising from multiple prejudice trials and the defen- episode except under the same criminal concern, however, pres- is not dant. This stated in the rule. the circumstances ent in the case at hand because the sub- appel- at 308. To follow the 717 S.W.2d sequent indictments were returned well result suggestion lant’s this case would before the start of trial. murder in the of three non-prosecution Surely type court of windfall was

Although charges. there is no written trial this in this drafters of the consolidating contemplated order the indictments not case, only simply not mandated failed to appellant was consolidation Rules. The has rules, clearly unprepared it he was to defend understood show how robbery charges parties kidnapping involved in this the court and all episode criminal stemmed the same itself, think, di- proof goes But the I in which three individuals were killed. establishing this one addi- rectly toward link, factor in estab- tional one additional Jury Proceedings] [Deleted: Grand perspective, the lishing, from the State’s Letters from Carruthers to Maze very conspiracy. of a It’s rele- existence Next, Carruthers claims that vant, my judgment. erroneously court allowed into evidence plan. It talks It talks about a master Jimmy appellant letters the wrote to two support personnel having about letters, refers Maze. these having the man- up. lined It talks about money. The plan making to a master up. “joining lined It talks about power alleged plan involved the state getting program, with me” and with the and the murder of Marcellos Anderson effect, get I “get me when money. appel- The drugs theft of it reference to the fact out.” And makes vague, too argues lant that the letters are trying get that he is transferred value, evidentiary highly have no and are MLRC, Reception Luttrell Cen- Mark prejudicial. ter, testimony which then ties admissibility of evidence is within gave, which would— that Charles Smith court, of the trial sound discretion having overheard some conversations with that dis- this Court will not interfere as well. along [sic] these line showing of abuse. cretion absent a clear know, jury may again, the You Howard, 579, 585 See State v. it, that’s to the any up of believe (overruled on other (Tenn.Crim.App.1996) may it all. But it jury. they believe Or if it grounds). Evidence is relevant has in, The together. all and it all ties ties tendency the existence of “any to make in Mr. testi- letters tie with what Smith any consequence fact that is of fied to.... probable the action more determination of additionally why again, this is And than would be without probable or less it during need to be heard these matters 401, Tenn.R.Evid. the evidence.” Rule I pretrial, because now However, “may relevant evidence be ex- having benefit of heard Charles have the substantially probative if its value is cluded oth- testimony having heard Smith’s preju- of unfair outweighed danger the that Maze is now testimony er now Mr. issues, dice, misleading of the or confusion stand, course, judge I how the and can better simply jury.” Rule 403. Of prejudicial testimony does not fits in with all of the other because evidence is be excluded as a mean the evidence must testimony. Gentry, of law. v. matter See State clearly explained how judge The trial 1, (Tenn.Crim.App.1993), perm, S.W.2d relevant to the issues these letters were (Tenn.1994). denied, The Court app. tried, the tran- being having reviewed the relevance of the must still determine we are sat- jury-out hearing, script of the weigh probative its value evidence not abuse his judge isfied that did prejudice. against any undue into admitting in these letters discretion are argues that the letters appellant The value substan- probative evidence. Their were written too they

irrelevant because any effect. tially outweighed prejudicial far in advance of the actual murders merit. This issue is without how the victims or mention do not refer to sug- money would be made. He also of [Deleted: Statement evi- improper that the letters are gests Co-Conspirator] wrongdoings. crimes or dence of other Perpetrators Evidence Other whether jury-out hearing as to After argue the trial court appellants Both admitted, the trial these letters should be other ability their to establish findings: limited following made the court by others been shot previously had Memphis drug trade involved in the people An- shootings. They heard drive-by kill in this case. motives to the victims Tucker, of the of one the brother dre admissibility evidence is Again, case, subsequently in this victims trial discretion of the within the sound arrest- had been appellants killed after the court, will not interfere and this Court the state charges. As present ed on the showing a clear that discretion absent notes, clearly suggests this evidence Howard, 926 State v. of abuse. See were still drug in the world killings (Tenn.Crim.App.1996). S.W.2d appellants The evidence happening. “any relevant if it has tenden Evidence is (testimony that hearsay refer to was either fact that is cy to make the existence drug debt Colombian Anderson consequence to the determination dealers) have con- cumulative and would or than probable probable or less action more (at- jury and misled the fused the issues Rule it be without the evidence.” would Memphis in the involved tacks on others However, relevant evi Tenn.R.Evid. trade). this knew drug Again, “may probative be excluded if its dence drug activities case centered around substantially outweighed by the value is reasonably used they could world and prejudice, unfair confusion of the danger of knowledge to conclude their common issues, misleading jury.” Rule 403. many involved. players there were commonly recognized, an accused As is however, case, pointed evidence present implicating is entitled to evidence issue is appellants. This guilt State, v. others the crime. See Green without merit. (1926); 154 Tenn. 285 S.W. 554 Saw- State, (1885); yers v. 83 Tenn. 694 Competency Nakeita Shaw of Witness (Tenn. 612-13 Spurlock, S.W.2d next claims that support Evidence in Crim.App.1993). ordering competency by not court erred defense, however, must party this third trial, Prior to evaluation of Nakeita Shaw. general governing conform to the rules representing Carruthers counsel admissibility v. McAlis of evidence. State requested time evaluation Shaw ter, (Tenn.Crim.App. 751 S.W.2d treat- history a of mental any records of 1987). type The evidence must be the that it had no The state indicated ment. third against par would be admissible court de- treatment. The trial record of trial, ty proof if he or she were on and the jury During the first request. nied the inconsistent with must be limited to facts selection, a trial contin- the state asked for Kilburn, appellant’s guilt. State v.. checked herself Shaw had uance because (Tenn.Crim.App. 782 S.W.2d 204-05 not depression and could hospital into a 1989). im Accordingly, hearsay evidence granted the in court. The court appear another individual would not be plicating claims, however, continuance. Carruthers admissible. a compel- have been that this fact should trial court to enough reason for the ling light reviewed the record in Having power to order com- exercise its inherent claims, find that appellants’ we evaluation. petency any relevant trial court did not exclude implicate tending admissible evidence claim, re- of his support In exonerating while others in the murders Garland, 617 S.W.2d upon lies v. State jury The was well aware appellants. reli- Carruthers’ (Tenn.Crim.App.1981). heavily Garland, in- Anderson was Marcellos this Court misplaced. is ance “[tjhere statutory The or drug Memphis. volved in the trade in is no held specifically a court authorizing Anderson’s jury heard evidence about case law in Tennessee witness, not a compel prospective and Adair. drug dealings with Johnson present in the case and interested party and Adair heard Anderson only by to sub- has seen or heard reference compulsion subpoena, at issue. questions psychiatric mit to a examination.” Id. at rul- 185. The Court further held that the 617 S.W.2d at 184. State,

ing Forbes v. 559 S.W.2d authority, Despite the above-cited (Tenn.1977), that the trial court has the has waived this state claims Carruthers 1) power compel psychiatric renewing request inherent for a issue before she victim, mental examination Shaw examination of the psychological 2) failing to took the witness stand and victims in complaining was restricted to about question her on cross-examination sex cases. The Court refused to broaden 36(a). hospitalization. T.R.A.P. her See holding, parties this and neither of the court did not agree. We Since any the case before us have cited to au- authority to order a mental evalu- have thority has The case cited which done so. Shaw, because Carruthers ation physical ex- appellant involves the issue, matter preserve failed to this in a complainant amination of a sex case. if Regardless, has even been waived. (Tenn. Barone, S.W.2d mentally in- Shaw had been found to be 1993). clearly appears It that the court long as competent, she could have testified ordered examination of witnesses has been understand the as she was able to obli- cases, complainants limited to sex personal and had knowl- gation of an oath holding in we do not intend to broaden the to which she testified. edge of the matter Forbes further. Caughron, at 538. The See judge apparently determined that she provides every Tenn.R.Evid. 601 according to the law to competent presumed competent is to be a person testify, nothing there in the record Advisory Com- witness. The Commission his discretion. This suggest he abused “[v]irtually ments to rule state that all merit. issue is without may testify: permitted witnesses children, mentally incompetent persons, Photographic Evidence added). Ac- (Emphasis convicted felons.” appellants videotape Both claim that the cordingly, any prospective may witness evidence of the crime photographic testify long they personal as as victims were irrele- scene and deceased they knowledge of the matter about which vant, cumulative, highly prejudicial and er- they testifying, roneously passion are Rule and swear to inflame the admitted jury. They claim this evidence did testify truthfully, Rule 603. The trial will jury identifying perpe- in the not assist the to judge has the discretion determine of the oral trators and was cumulative testify. competent a witness is whether Furthermore, testimony of the witnesses. 526, Caughron, v. 855 S.W.2d 538 State the evidence should appellants argue the (Tenn.1993). not This determination will jury shown to the because not have been appeal on absent an abuse of be disturbed stipulate to the appellants offered to the Howard, 926 discretion. State v. S.W.2d found bound fact that the victims were (overruled 579, (Tenn.Crim.App.1996) 584 grave the site. Garland, grounds). on other this Court admissibility photo- of relevant held: crime scene videotapes of the graphs person adjudged A lunatic or a insane is within the sound discretion and victims is if, at the time he competent as a witness ruling her on judge, and his or of the witness, he has sufficient is offered as ap- on disturbed admissibility will not be understanding comprehend the obli- an abuse of showing a clear of peal absent Banks, capable giving of 564 gation of an oath and v. that discretion. State also, (Tenn.1978). 947, See 949 which he S.W.2d correct account of the matters 577 observes, 797, (Tenn. the trial v. tims. As the state Bigbee, State 885 S.W.2d 807 Tran, very conscientious 1994); 465, judge this case was 864 State v. Van S.W.2d the (Tenn.1993). photo- the admission of Moreover, his review of 477 the modern evidence rele- graphic evidence. The trend is more discretion in the trial to vest vant to the case and assisted the state’s judge’s rulings admissibility. See proved state jury finding its the Banks, 949; Bailey, 564 S.W.2d at State v. element the offenses. We not each of do 01C01-9403-CC-00105, 1995 WL 424996 find that the evidence was or cumulative Nashville, 1995); 20, (Tenn.Crim.App., July Moreover, unduly prejudicial. the admis- (Tenn. 1996). denied, 8, perm, app. Jan. sibility photographic of evidence does not relevant if it has “any Evidence is ten- upon offer to depend stipu- the defendant’s dency any make the existence of fact therein, depicted late to the facts especial- consequence that is of to the determination agree ly when the does not prosecution of the or probable proba- action more less Schafer, v. stipulation. the See State than the ble it would be without evidence.” 269, (Tenn.Crim.App.1997); S.W.2d 274-75 401, However, Rule Tenn.R.Evid. relevant (Tenn. Griffis, State v. S.W.2d “may evidence excluded if its probative be (“an Crim.App.1997) accused mar- cannot outweighed value is substantially by the by simply shal the of evidence the state danger prejudice, of unfair the confusion of offering to fact for stipulate pur- to a issues, misleading jury.” Rule 403. pose barring introducing state course, simply prej- Of because evidence is admissible, evidence ac- demonstrative udicial does not mean the evidence must see”). cused does want the a matter of law. excluded as See The trial court did not abuse its discretion (Tenn.Crim. v. Gentry, 881 S.W.2d case, therefore, in this this issue is without App.1993). The court must still determine merit. the relevance of the visual evidence and challenges the Montgomery also intro- weigh against value un probative its photographs duction of of the be- victims prejudice. lines, due Along these they appellant fore were murdered. The court guided by following should be Dicks, cites State v. 615 S.W.2d determining admissibility matters in (Tenn.1981). Nesbit, However, in State relevant videotape and evi photographic (Tenn.1998), 901-02 accuracy dence: and clarity Supreme portion adopted Court picture evidence; and its value as whether pho- this Court’s which held that a opinion picture body depicts the it was as tograph of the victim while alive rele- found; adequacy evi testimonial in proving vant the state’s case-in-chief relating dence the facts the jury; person that the murdered was same for the evidence to need establish in the indictment. We find person named prima guilt or to case rebut the facie this evidence was not cumulative and was Banks, defendant’s contentions. properly admitted. S.W.2d at 951. Contrary appel- to the assertion Sentencing [Deleted: on Non- lants, identity perpetrators the of the capital Offenses] the in only issue this case. The state Misconduct Prosecutorial jury the prove also had to existence appellants prosecutors Both claim the the The elements all offenses. during arguments made both improper video of the grave shows the location site phases require of the trial which remand presence and the conceal the efforts to for a new trial. The trial court limited the bodies. but in photographs, commonly recognized, closing number allowed As is ar- of still tool guments important vic- are an for the several to show the restraints on the 578

parties during not exert too process. Conse its discretion and should The arguments. much control over the quently, attorneys usually given are judge pro does not serve as a se defen- in scope argu wide latitude of their during judge dant’s counselor trial. The ments, 797, Bigbee, see State v. 885 S.W.2d only requested when or should intervene (Tenn.1994), turn, judges, 809 and trial in in the inter- judge proper when the deems in are accorded wide discretion their con justice. est of arguments, trol of those see v. Zir State kle, 874, (Tenn.Crim.App. 910 888 S.W.2d Carruthers refers to several instances of 1995). discretion, scope Such howev allegedly improper argument that oc- er, completely Argu is not unfettered. during guilt phase curred of the trial. prosecutor char- temperate, upon improperly ment must be based the He claims the trial, acterized him as a conniver and liar and evidence introduced at relevant manipulating jury. accused him of Ev- tried, being the issues and not otherwise was introduced that idence improper under the facts law. v. or Coker crimes, the mastermind behind these (Tenn.Crim. State, 357, 911 S.W.2d 368 therefore, any reference the state in determining App.1995). The test for However, regard improper. was not prosecuting attorney whether the commit- prosecutor may not comment unfavor- argument ted in the reversible misconduct ably represen- upon pro the defendant’s se improper is “whether the conduct could presentation tation of himself or the prejudice have affected the verdict to the State, 357, case. See Coker v. 911 S.W.2d State, v. Harrington of the defendant.” (Tenn.Crim.App.1995). 368 Nor should (1965). 338, 758, 215 Tenn. 385 S.W.2d 759 prosecutor express personal his or her following recognized The have been factors witnesses, opinion credibility about 1) to aid the this determination: Court grounded upon are unless the comments of, complained light the conduct viewed West, in the See State v. evidence record. case; the facts and circumstances of the (Tenn.1989). 387, More- 767 S.W.2d 394 2) the curative measures undertaken over, prosecutor strictly prohibited 3) prosecutor; the court and the the intent commenting on the defendant’s deci- improper prosecutor making Coker, testify. sion not to 911 S.W.2d at 4) statement; the cumulative effect of the 368. This would include his decision not improper conduct and other errors However, present any proof. prosecu 5) record; strength the relative proof tor’s statement is unrefuted or Bigbee, the case. v. weakness of State improper is not an com uncontradieted (Tenn.1994); State v. S.W.2d upon testify. ment a defendant’s failure to (Tenn.1984). Buck, 670 S.W.2d Thomas, State v. 818 S.W.2d Initially, claims that because (Tenn.Crim.App.1991); Cowry, State v. representing he was himself the trial court (Tenn.Crim.App.1985). S.W.2d more active role prosecutor should have taken a should also refrain from calling derogatory names. guarding against prosecutorial misconduct defendant Cauthern, 726, 737 earlier, during argument. As we noted (Tenn.1998). a defendant faces perils there are certain at trial. Know- representing when himself case, for the improper In this it was object during ing argument when to obvi- names, appellant to call the prosecutor ously perils. of those While the is one However, we do not find such as a liar. sponte and trial court can intervene sua telling improper the comments argu- when the take curative measures games” “pitfalls” out and “mind watch see, blatantly improper, e.g., “guilt trip.” ment becomes The and not to succumb to Cauthern, simply making 737 reference to prosecutor State v. 967 S.W.2d was Also, the (Tenn.1998), strength proof. of the state’s court must exercise the

579 is frequently that it closing argument so have insinuated that prosecutor should not re- that the difficult not to conclude manipulate the trying Carruthers was case made either marks in this were not jury or comment that Carruthers did disregard for our decisions blatant on his behalf. call credible witnesses astonishing of the ignorance or a level of claim, however, Contrary to Carruthers’ regard. state of law in this improp- not believe comments we do these argument prosecutor the was obvi- erly referred to Carruthers’ failure to tes- This our ously under the decisions of Similarly, improper tify. complains Carruthers Supreme Court. prosecutor’s the statements that about manipulate was the trying Carruthers that the Both also contend appellants However, media. Alfredo Shaw testified impact argu- victim improper state made Moreover, permit- about this. the state argu- and impact ment. Victim evidence argue inferences sentencing prohibited ted to reasonable not during ment are Coker, v. in record. the or statute. See State the evidence the constitution (Tenn.1998). Nesbit, How argument S.W.2d at 368. The 978 S.W.2d state’s ever, the the must be relevant to argument respect was Carruth- improper. this not specific family, to the victim’s Mid harm the ers also claims state’s reference to the dlebrooks, must be 995 S.W.2d part” of master plan “second Carruthers’ limited to show designed to “information in the mentioned letters he wrote Maze provide those which unique characteristics improper. brought up was was Since this into the life individu- glimpse a brief of the evidence, by the do not think com- we this killed, contemporane- al who the has been improper. ment was Carruthers also sur- prospective ous circumstances prosecutor’s claims the statement death, how rounding the individual’s jury they responsibility have a to the financially, those circumstances emotional- family improperly appealed victims’ ly, psychologically physically impacted sympathies jury. emotions of the See family.” upon of the victim’s members (Tenn. Bigbee, 885 State v. S.W.2d Nesbit, (footnote at 891 omit- 1994). agree. Finally, We ted). family char- The “victim’s members’ prosecutor’s contends the comment that crime, opinion acterization and about “gap” there is in the evidence was im- defendant, and the sen- appropriate proper. claims this Eighth tence violates the Amendment.” improper testify. inference on his failure to can- Again, prosecutor Id. at n. 8. disagree. The case was We state’s based simply appeal not emotions circumstantial evidence and prose- sympathies jury invoking vic- while respect merely cutor’s comment in this (citing Id. impact argument. tim at 891 pieces informed the that not all the (Tenn. Bigbee, State v. 885 S.W.2d 797 presented at trial. puzzle 1994)). with the agree appellants We appellants complain Both about certain prosecutor improperly commented made by prosecutor diming comments who not family members testified did at the argument penalty phase trial. cry quiet during remained trial. appellants with the prose- Both take issue Aso was the comment that improper you jury].” mention of the [the cutor’s ten commandments families “trust family could have testified recently, Bible. members Just (emotional Middlebrooks, (Tenn. impact they the victims missed S.W.2d death), and the of victim’s comment 1999), Supreme made the our Court follow- they to solicit prosecutor that chose not regarding type argu- this ing comment testimony improper. ment: prose- Biblical Montgomery We condemned also claims that the prosecutor’s personal cutor asserted his scriptural improperly references 580

opinion closing argument. into While a interpret Those who these cases as precedent for the that prosecutor may improper not view express personal closing argument and misconduct of this belief, opinion or during argu- comments nature will be held harmless error in all ment prefaced by phrases such “I as cases do at their professional so own “I unlikely think” or submit” are to be misconduct, and at peril the risk that th'e State, adjudged opinions. Coker v. if prejudicially even it does not affect the (Tenn.Crim.App.1995). S.W.2d verdict, may prejudicial be deemed to be Accordingly, we do not believe the com- judicial process the as a whole and Montgomery complain ments about which require therefore a new trial or sentenc- phrases contain these improper. ing hearing. Montgomery asserts that prosecutor the improperly jury dictionary read to the Gag [Deleted: Order] definition “mitigate” of the term and im- [Deleted: Severance] properly jury asked the to use that defini- tion to determine whether mitigating Testimony [Deleted: of Benton evidence was presented. According to Shaw] West and Nakeita Montgomery, prosecutor erroneously the Testimony Adair, [Deleted: Terrell jury told mitigating that evidence is Hines] Andre Johnson Chris crime, mitigates that which rather than Opinion Testimony] [Deleted: mitigates punishment. that which Al- though prosecutor may have not clear- Jury [Deleted: Instructions] ly provided jury legal with the mean- Sufficiency [Deleted: Evidence] of the ing mitigation, judge properly Penalty Death Statute jury instructed the pre- sumed to have followed those instructions. Both appellants challenge the constitu- Cribbs, (Tenn. State v. 967 S.W.2d tionality of Tennessee’s death penalty stat- 1998). Finally, agree we with the state ute. All of by the numerous claims raised penalty the death statute does not appellants have repeatedly been de- limit the final closing argument state’s See, by Supreme nied our e.g., Court. rebutting argued. which defendant (Tenn. Burns, State v. 979 S.W.2d 276 39-13-204(d). 1998) § T.C.A. (adopting this Court’s review of this Smith, issue); v. State 893 S.W.2d 908 appellants We find that the have waived (Tenn.1994); Brimmer, State v. any challenge regarding majority (Tenn.1994). Accordingly, S.W.2d 75 these they the comments about which complain claims must fail. Carruthers also claims they contempora- because failed to voice a the recent amendment T.C.A. 36(a); objection. neous T.R.A.P. also see (1998 § Supp.), 40-23-114 which allows Little, (Tenn. State v. 854 S.W.2d capital those case defendants who commit- Nonetheless, Crim.App.1992). we have re- 1, 1999, January prior ted their offense viewed arguments parties, the entire of all injec- put by to elect be to death lethal above, and considering the factors listed delega- tion constitutes an unconstitutional relatively improper we find few legislative authority. disagree. tion of We prosecutors comments did not af- clearly The statute states that this class of prejudice fect the verdict of the put offenders shall to death electro- appellants. This issue is without merit. statute, however, gives cution. The However, we remind counsel of the warn- to waive method of option offender the ings recently Supreme related our injection and elect lethal instead. execution Middlebrooks, Court delegation legislature’s This is (Tenn.1999): authority. claim is without merit. At This

1997). conceivably could A sentence death every though even proportionate held rate, not affect the this statute does a life has received comparable defendant sentences. convictions or appellants’ no the State can discern sentence and in sentencing. See basis for the difference Proportionality Review] [Deleted: is no even “where there (stating id. WOODALL, T. THOMAS JUDGE in sen- for difference discernible basis CONCUR: neces- is not tencing, the death sentence in- This test is sarily disproportionate”). WADE, Presiding Judge meet, ordinately difficult for defendants TIPTON, Judge abiding it assurance provide fails to BIRCH, JR., J., A. ADOLPHO [will be] that “no death sentence aberrant concurring, dissenting. Bland, 958 at 665. affirmed.” S.W.2d Cf. agree Assuredly, majority’s I with the Moreover, majority, conceded as uphold degree the first murder decision review comparative proportionality our Tony conviction of order protocol not utilize a mathematical “[does] for I Montgomery. new trial James grid. is not formula or scientific The test however, separately, express my write However, Majority opn. at rigid.” 570. compara- continued dissatisfaction with the defini- only by of a more the establishment proportionality protocol tive review cur- review proportionality tive framework for in rently applied penalty Tennessee death protocol that our guarantee can we review view, my I continue cases. to hold rational, consistently applied, is indeed a previously, stated that Tennessee’s com- subjec- procedural rather than a safeguard parative proportionality procedure review arbi- process tive no more insulated from inadequate is be corrected. should trary application than decisions Chalmers, v. See State 28 S.W.3d 913 protocol designed is review. (Tenn.2000) (Birch, J., concurring and dis- for Finally, “pool” of reviewed cases Keen, v. senting); State 31 S.W.3d 196 remains, view, my too proportionality (Tenn.2000) (Birch, J., concurring and dis- narrow, majority’s assertion senting). which cases are pool from similar “[t]he Chalmers, my dissent I raised substantially”1 increased does drawn has general three concerns Tennessee’s problem remedy this concern. The comparative proportionality review proto- pool reviewed arises because cases comparative “the ‘test’ we employ [for col: all proportionality does not embrace proportionality so broad that review] is degree first murder cases which nearly any pro- could be found sentence only penalty imposed, could be but death our portionate; procedures review are too sentencing “a those in which capital cases subjective; and of cases ‘pool’ which actually to deter- hearing was conducted for proportionality are reviewed is too be life mine whether the sentence should Chalmers, small.” 28 S.W.3d at 923 imprisonment imprisonment, life without J., (Birch, concurring dissenting). possibility parole, death.” See time, concerns Bland, Since that these remain result 666. The Under the test embraced argu- unaddressed. prevented that defendants are majority, a death sentence will be held dispropor- sentence is ing their death “plainly case is do proportionate prosecutors typically unless the tionate because compa- consistent with lacking penalty circumstances not seek the death cases majority’s argument in similar in which death rable theirs. those cases defen- previously imposed.” “pool” See that the death-sentenced penalty has been Bland, (Tenn. has ex- compare cases we dants whose S.W.2d opn. at Majority n. 52. pandea rapidly (precisely because the

Court has found more and more death proportionate

sentences under its own

test) nothing does to solve underlying

problem.

I continue to adhere to my strongly held comparative

view that our proportionality protocol inadequate

review and should Thus, compelled

be corrected. I am opinion my

take issue with the esteemed

colleagues I because have been unable to

discern even the slightest movement on part

their to address the previ- concerns

ously expressed and reiterated here.

Accordingly, respectfully, I dissent. Tennessee, Appellant,

STATE of

George COLLINS, Appellee. Devon Tennessee, Appeals

Court of Criminal

at Nashville. March Meeks, Gregory Thomas R. D. Smith, Clarksville, TN, appellee. for the Application Appeal for Permission to by Supreme Denied Court Summers, Attorney Paul G. General and 6, 2000. Nov. Reporter, Kim Helper, R. Assistant Attor- General, Nashville, TN,

ney Carney, Jim General, Brollier, Attorney District Daniel General, Attorney Assistant District Clarksville, TN, appellant. for the OPINION WELLS, Judge. DAVID H. appeals right The State as of from the dismissing order of the trial court the case following the State’s refusal to reveal the identity of its confidential informant after been to do so having ordered following court. The State sets forth the issue for our review: whether the

Case Details

Case Name: State v. Carruthers

Court Name: Tennessee Supreme Court

Date Published: Dec 11, 2000

Citation: 35 S.W.3d 516

Docket Number: W1997-00097-SC-DDT-DD

Court Abbreviation: Tenn.