State of Tennessee v. Tony v. Carruthers And James Montgomery

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

MARCH SE SSION, 1999 FILED STATE OF TENNESSEE, December 21, 1999 )C.C.A. NO. W1997-00097-CCA-R3-CD )

Cecil Crowson, Jr.

Appellee, ) SHELBY COUNTY Appellate Court Clerk )

V. ) HON. JOSEPH B. DAILEY, JUDGE )

TONY V. CARRUTHERS and ) CAPITAL CASE (Premeditated First JAMES MONTGOMERY, ) Degree Murder, Three Counts; Especially ) Aggravated Kidnapping; Three Counts;

Appellants. ) Especially Aggravated Robbery, One Count

FOR THE APPELLANTS: FOR THE APPELLEE:

STEPHEN R. LEFFLER PAUL G. SUMMERS Counsel for Carruthers On Appeal Attorney General & Reporter 50 North Front Street, Suite 999 Memphis, TN 38103 AMY L. TARKINGTON Assistant Attorney General LEE A. FILDERMAN 2nd Floor, Cordell Hull Building Counsel for Carruthers On Appeal 425 Fifth Avenue North 44 North Front Street, Suite 701 Nashville, TN 37243 Memphis, TN 38103 JOH N W. P IERO TTI

TON Y V. CA RRU THE RS, pro se at trial District Attorn ey Ge neral

ROBERT C. BROOKS PHILL IP GE RAL D HA RRIS Counsel for Montgomery On Appeal Assistant District Attorney General 707 Adams Avenue Memphis, TN 38105 J. ROBERT CARTER, JR.

Assistant District Attorney General EDWARD W. CHANDLER Criminal Justice Center, Suite 301 Counsel for Montgomery On Appeal 201 Poplar Avenue 2502 Mt. Moriah, Suite A-100 Memphis, TN 38103 Memphis, TN 38115

HAROLD D. ARCHIBALD Counsel for Montgomery At Trial 22 North Front Street, Suite 900 Memphis, TN 38103

J.C. M cLIN Counsel for Montgomery At Trial 301 Washington Avenue, Suite 210 Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE

OPINION

The appellan ts, Jame s Mon tgomery and Tony Carruthers, were each indicted,

along with their co-defendant, Jonathan Montgomery, on three counts of the premeditated first degree mu rders of Ma rcellos Ande rson, h is mo ther, D elois Anderson, and Frederick Tucker. Prior to trial, Jonathan Montgomery was found hanged in his jail cell. James Mo ntgome ry and Ton y Carruthers were also indicted on three counts e ach of the esp ecially aggravated kidnapping of all three victims, and one count each of the especially aggravated robbery of Marcellos Anderson. The appellants w ere tried and co nvicted on ea ch charge . The appe llants were sentenced to death by electrocution for the three murder convictions and received forty year sentences for each of the other offenses. The jury found the existence of four aggravating circumstances as to each appellant for each murder conviction: 1) the mu rder wa s espe cially heino us, atrocious or cruel in that it involved torture; 2) the appellants co mmitted m ass murd er; 3) the appellan ts had previously been convicted of one or more violent felonies; and 4) the murders were committed during the perpe tration o f espe cially aggravated kidnapping and especially aggravated robbery. T.C.A. § 39-13-20 4(i)(2), (5), (7), and (12). On appeal, the appellants raise the following issues concerning alleged errors occurring before trial as well as during both p hase s of the trial:

Appellant Carru thers

Whether appellant was denied his right to due process by h aving to represe nt himse lf;

Whe ther ap pellan t was d enied the effe ctive a ssista nce o f coun sel;

Whether the state should have been required to elect on which indictment it was proceeding;

Whethe r the grand jury pro ceedings w ere proper;

Whether the trial court erroneously admitted hearsay and irrelevant evidence;

Whether the trial court should have ordered a competency evaluation of a prosecution witness;

Whether the co urt erro neou sly adm itted vid eotap e and photo graph ic evidence;

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Whether appellant was denied his right to be present at sentencing for the especially aggravated kidnapping convictions;

Whe ther the p rosecu tor enga ged in im proper a rgume nt;

Whethe r the trial court erred in issuing a gag order;

Whether the death penalty statute is unconstitutional; and Whether the evidence was sufficient to support the verdicts.

Appellant Mo ntgomery

Whether the trial court erred in denying appellant’s motion for severance;

Whether the trial court erroneously admitted hearsay evidence;

Whe ther the p rosecu tor enga ged in im proper a rgume nt;

Whe ther prior cons istent state ments were im properly introduce d into evidence;

Whether the trial court erred in admitting photographic evidence;

Whether the trial court erred in admitting photographs of the victims taken while they were alive;

Whether the trial court erroneously excluded evidence of alternative perpetrators;

Whether the trial court improperly admitted opinion testimony;

Whether the trial court properly instructed the jury;

Whether the evidence was sufficient to sustain the verdicts;

Whe ther the death pena lty statu te is un cons titutiona l.

Having thoroughly reviewed the 82 volume record in light of the issues raised by both appellants in their separate briefs, and finding no errors requiring reversal of either the c onviction s or sente nces, w e affirm the judgm ent of the tria l court.

HISTORY

In order to put the proce dural h istory o f this case in proper perspective for the issues raised, we will first outline the events leading up to trial and will then discuss the evidence introduced at trial. The appellants were indicted for first degree murder in March 1994. The Office of the Public Defender was appointed to represent Montgomery. Carruthers initially retained an attorney, A.C. W harton, who was subs eque ntly allowed to withdraw because of a poten tial conflict of inte rest. Nothing

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in the rec ord su gges ts this conflict was created by the co nduct o f Carruth ers. At a hearing on April 27, 1994, the trial court mentioned that Carruthers informed the court he wanted some input as to which attorney would be appointed to his case. In a sub sequ ent he aring o n Ma y 18, 1 994, C arruth ers ind icated that his family ’s attempt to retain cou nsel failed. H e aske d the cou rt to appo int cou nsel so he co uld start filing mo tions.

Carruthers, who eventually represented himself at trial, was appointed a number of attorneys throughout the two years leading up to the trial in this case. Although we go into more detail below, for the sake of reference we will list in order all the attorneys who were appointed and allowed to withdraw: Larry Nance (appointed May 1994 - withdrawn December 1994); Craig Morton (appointed August 1994 - withdrawn July 1995 ); Coleman Garrett (appointed December 1994 - withdrawn July 1995); W illiam Masse y (appointed J uly 1995 - w ithdrawn Jan uary 1996); Harry Sayle (appo inted J uly 1995 - withdrawn February 1 996). The trial court also appoin ted at differe nt times tw o attorne ys, Jam es Turn er and G lenn W right, to assist in the inve stigation o f the case , but both were subs equen tly allowed to withd raw a s well.

On May 31, 1 994, after Carru thers informed the court that he had no success in hiring another lawyer, the trial court appointed Larry N ance. On July 8, 1994, the state filed its notice to seek the death penalty against both appellants for each murder charge. In a hearing on July 15, 1994, the trial court scheduled a hearing on pretrial motion s for Sep tembe r 30, 199 4, and se t the trial date for February 20, 1995. Carruthers was present at the hearing and asked the trial court “why this is being dragged out like this. I asked Mr. N ance if w e can go forward with a motion of discovery and he’s asking for a reset. And I’d like to know why.” Nance informed the court that he was going to visit the prosecutor’s office later in the week to review their evidence. The trial court stated:

Court: This is a complex case. We have several lawyers who have a lot of work to do on this case and a lot of work to do on other cases that they’re handling --

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Carruthers: Y eah, Your H onor, but --

Court: Wait a minute. Wait a minute.

And we’ve got a trial date now as early as possible. A three-

defendant capital murder case requires at least a week, probably two, to try an d so w e can ’t set it this fa ll beca use th is fall is alre ady fu ll.

We’ve already go t cases set for trial every week between now and January. And Mr. Stein [counsel for Montgomery] has cases set throughout Janu ary. So the ea rliest po ssible date, th e earlie st pos sible date, that we can try a three-defendant capital murder case is in February. That’s the best we can do.

We’ve got a lot of other cases . There are a lo t of othe r peop le sitting back the re waiting for their trials that have been waiting longer than you have.

And so given the fact that the trial isn’t until February, we’re setting the next Court date in September for the arguing of motions.

Between now and September, your attorney and the attorneys representing your two co-defendants can get with the prosecutors and can obtain their discovery.

They’re all excellent attorneys. And they’ll all do that. And once they’ve obtained the discov ery, the y’ll mee t with th eir clien ts and they’ll file appropriate motions, which will be heard on September 30th, which will still be well in advance of the trial date, which will give everyone amp le time to then evaluate the case, after the motions have been heard and ruled on.

So given the fact that w e can ’t get a three-defendant capital case that’s still in the arraignment stage to trial any earlier than February, there’s plenty of time for your attorneys to meet with the prosecutors, get the discovery, meet with the clients, file motions, argue motions.

Just because he hadn’t done it yeste rday, b ecau se yo u wan t him to have it done yesterday, doesn’t mean that he’s not working on your case diligen tly and prope rly. He’ll h ave e veryth ing do ne we ll in advance of the next Court date.

And so, you know, he may not do it the very moment you want it done, b ut you’re going to have to work with him on that because there’s ample time for him to get it done.

Carruthers: I talked to him over forty-five days ago [approximately the time Nance was appointed] and asked him to talk to the medical examiner abou t getting the tim e of de ath an d auto psy. H e had n’t did that yet.

Court: Well, that’s fine.

Carruthers: And that’s forty-five days.

Court: T hat’s fine. S tep out.

The record reflects that Nance filed numerous pretrial motions, including reques ts for discovery, investigative services and a menta l exam ination. On August 12, 1994 , Craig Morto n was appo inted a s co-c ouns el for Carruthers. The rec ord reflects that Mo rton started filing a litany of m otions after his appointment. These included motions in limine to exclude certain evidence, e.g., letters Carruthers mailed to Jim my M aze, a motio n for ind ividua l voir dire, motions for various discovery reques ts, a motion for impeachment evidence, a motion for competency evaluation of prosecution witnesses, motion for another mental evaluation of

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Carruthers, motions to dismiss the indictments, motion to suppress statement of co- defendant Jonathan M ontgom ery, motions for s everance , a motion for exp ert services , and a no tice of an a libi defense .

In a hearing on September 30, 1994, the trial court continued the motion hearing date u ntil Nove mbe r 18, 19 94. Th e cou rt stated that it wo uld consider any motion filed by either appellant to apply to both, if applicable. The trial judge also mentioned that he had re ceived “an abu ndanc e of corre spond ence” fro m both appellan ts expressing c oncern about the pretrial performance of counsel. The court allowed coun sel to make statements on the record in response to these letters. Initially, Nance stated that the defense had almost obtained complete discovery from the state. He further stated that he could not say ho w ma ny of the 1 00 state witnesses (which included everyone remotely related to this case including all of the police officers and state employees) he had interviewed, but that he had alr eady issued subpoenas for about eight of those witnesses. Nance indicated that he had met with Ca rruthers tw o sepa rate occa sions for a n exten ded pe riod of time to discuss his case. He had also met Carruthers’ family to discuss matters. Nance admitted there was quite a bit more work yet to be done, such as obtaining the services of an investigator, an d stated that he h ad spent ap proximately 2 5 hours work ing on the case up to that time, including discussions with co-counsel about defense strategy. Nance also informed the court that there was “some enm ity that’s developed betwe en he a nd I,” but that counsel had hoped it could be worked out.

The court also allowed Ca rruthers to tell his side of the story . Carruthers disputed counsel’s recollection of the visits and informed the court that he had filed a complaint with the Board of Professional Responsibility against Nance. He also stated that counsel ha s shown no “eagern ess” in this case a nd that he did n ot “fear” counse l. Carruth ers’ ma in com plaint see med to be a lack of face-to-fa ce communications. The court acknowledged the appellants’ concerns given what they faced, but told them tha t many as pects of the attorne y-client relationship did not involve personal contact. The court stated that the representation up to that point as he saw it was well w ithin the proper standards: the appropriate motions had been

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filed, discovery had been sought, and conferences had been held. The fact that the appe llants m ay no t like the ir attorney s, accord ing to the tria l court, had no bearing on counsel’s performance.

On October 21, 1994, the trial court authorized payment for investigative services (Arthur R. Anderson) for Carruthers. Morton informed the court, howev er, that the investigator tried to talk to Carruthers on two sep arate occa sions at the ja il but was told Carruthers refused to see him. Also at the hearing on the 21st, the prosecutor informed the court that he had provided all the disc overy he had at that point; he wa s still waiting o n a ballistic report. In addition, the court authorized comp etency evaluations for each appellant. In a hearing before the trial court on November 18, 1994, Morton requested permission to hire a new investigator because he felt the one they had, Arthur Anderson, was not taking an aggressive enough role in the matter. The court continued the hearing date on pretrial motions until December 16, 1994. Morton informed the court in another hearing on November 23, 1994, that they had secured the services of Premier Investigations.

Throughout Nance and Morton’s representation, Carruthers filed various pro se motions on his own be half. Along with a m otion fo r subs titution o f coun sel, Carruthers filed motions similar to those filed by counsel, as well as those filed by his co-defendant, James Montgomery. In fact, many of these pro se filings are identical to those filed by Montgomery pro se. On Decem ber 9, 1994, Larry Nance was allowed to withdraw as counsel. The record does not contain a copy of the motion or transcript of a hear ing, if there w as one . Colem an Ga rrett was appointed as co-counsel that same day. Thereafter, counsel continued to file motions, including motions to continue the trial date . Carruthers also continued filing pro se pleadings. Similarly, Morton filed several motions prepared by Carruthers, appa rently at Carruthers’ insistence. On December 16, 1994, the court heard most of the motions filed by counsel, and continued hearing on those involving an evidentiary hearing until Janu ary 30, 1 995. It should be noted that since the beginning of this ca se, M ontgo mery also vo iced n ume rous c omp laints a bout h is coun sel. In fact, counsel was allowed to withdraw from M ontgo mery ’s

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representation as well. There is nothing in the record, however, to suggest that Mon tgom ery’s c ondu ct was as eg regiou s as C arruth ers’.

Garrett and Morton appeared at the motion hearing on January 30, 1995, and presented argument on over seventeen motions, including joining the motions filed by the code fendan t. These motions addressed suppression and discovery issues, re-evaluation of Carruthers, co mpeten cy of state witnes ses, severan ce, expert services, and courtroom security. Also at the hearing, the trial court continued the trial date until September 5, 1995.

On May 1, 19 95, Garrett and Morton inform ed the court they had been having difficulty finding a willing investigator because of the nature of the case and the pay (the court ad opted a paym ent scheme whereby th e inve stigato r wou ld be p aid $1,000 and must file an accounting of services and the court would then decide later if additional funding was appropriate; the court set the hourly rate the same as for the attorney s, but app arently the investiga tors wer e dem anding more). G arrett secured an investigator to appear at the hearing, but when the court announced the amount of compensation granted for her services, she informed counsel she was unab le to take the case. The court decided that since coun sel wa s hav ing trou ble finding an investigator, the c ourt would appoint a third attorney (James Turner) , to be paid at the sam e rate as cou nsel, to serve as appellant’s investiga tor. Carruthers objected to this alternative, stating that attorneys cannot obtain the same information as a certified investigator. The court stated that Carru thers’ o bjectio n was not we ll founded. Coun sel also a ddress ed sev eral pretrial m otions, inclu ding a m otion to dismiss indictments (Alfredo Shaw testified before the grand ju ry, but the s tate informed the court that it was not going to use Alfredo Shaw’s statements at trial because the state had since considered him to be unreliable), a motion to sever, and a motio n for ex pert se rvices to ana lyze an audio tape o f Nake ita Mo ntgom ery’s statem ent.

On May 5, 19 95, Attorney James Turner appeared before the court and stated, due to the number of witnesses Carruthers named and the amoun t of work

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involved in the ca se, he did no t believ e, as a solo p ractition er, that h e cou ld effectiv ely perfor m inv estiga tion to a ssist co unse l. The c ourt sta ted tha t it would continue to locate an attorney/investigator. Attorney Glenn Wright was subsequently appointed to ass ist Mo rton an d Ga rrett in investigating the case. On June 2, 1995, Garrett argue d the a ppella nt’s m otion to dism iss indic tmen ts due to Sha w’s alle gedly false testimony before the grand jury.

Morton and Garrett eventually filed a motion to withdraw. The record re flects that Carruthers also filed a motion for substitution of counsel. The trial court granted both requests and in a hearing on July 27, 1995, the court appointed William Massey and Harry Sayle to represent Carruthers. During this hearing, the trial judge made the following comments:

All right. I understand that these three defendants are on trial for their lives and that these are the most serious of charges and that they are all concerned that they are we ll repres ented and p roper ly represented, and it’s every one’s desire to see to it that th ey are well represented and p roper ly represented . And toward that end, efforts are being made that they are represented by attorneys that have enough experience to handle this type of case and by attorneys that can establish a rapport with their clients that would allow them to represent their clie nts as well.

We have gone through several attorneys n ow in an effort to accommodate the defendants’ requests in that regard; but at some point -- and in m y opinion , each of the attorneys and each of the investigators that has represented these defendants that has been relieved have been eminently qualified to do the jo b, but I have allowed them to be relieved for one rea son or ano ther.

I want the record to be perfectly clear at this point because of some suggestions that have already been raised by some of the correspondence that I have received from M r. Carruth ers; and all of it, by the way, will be made a part of the record. But Mr. Carruthers has suggested, in his correspondence, that some of the previous attorneys have been relieved because they weren’t capable or competent to do the job. And this is, in my opinion, at least -- my humble opinion as the judge in this ca se -- ab solutely and totally an inacc urate sta temen t.

The attorne ys tha t have been relieve d thus far hav e bee n fully ca pable and fully competen t and had be en doing an outstanding job ; but for a variety of reasons, I’ve allowed them to withdraw from the case.

Obv iously Mr. Carruthers can say anything he wants. It’s a free country. He can write letters to the Commercial Appeal or the President of the United States and say whatever it is he wants to say.

But the point is that I want the record to reflect, each step of the way, so that if he is conv icted, a nd if so if he raises these sorts of questions three years or five years or ten years down the road, the record is perfec tly clear that these attorneys were not relieved because they were not doing an ade quate job. They were not relieved because Mr.

Carruthers was not well represented and left in an untenable position because he ha d ineffe ctive a ssista nce o f coun sel pre trial. Tha t is absolutely not the case in my opinion.

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Mr. Carruthers has raised, through his correspondence, and appa rently through direct communication with his previous attorneys, certain matters that are pretty outrageous suggestions; but because of the nature of the matters that he’s raised, the attorneys that represented him previously felt that an irreparable breach had occurred between their ability -- between Mr. Carruthe rs and them selves -- effecting their ability to continue to represent them. And at some point -- and that could well have been the point, but it wasn’t. But at some point these ma tters that are raised by the defendants cannot continue to be used to get new counsel because it gets to be a point where they’re -- it’s already well beyond the point, but, obviously, at some point, gets to the point where they’re manipulating the system and getting what they want -- Mr. Carruthers, sit still, plea se, or y ou ca n sit back there. -- gets to the point where they’re manipulating the system and getting trial dates and representation that they want and are calling the shots. That’s another matter that’s bee n raised by M r. Carruthers in some of his correspondence; that he w ants his a ttorneys to know that he’s the man c alling the sh ots in this ca se, and he’s the m an to look to.

Well, of course , again, it’s a fre e coun try, and he can say whatever he wants, and he can think whatever he wants; but as far as I’m concerned -- and this applies to all three defendants and any defend ants that come through this court that are represented by counsel -- and this gets back to what Mr. McLin alluded to earlier -- the attorneys are calling the shots in this case. They are trying the case except for certain areas where the defendant has the exclusive and final say, such as whether he wants to testify or not and that sort of thing. The attorney s are in here representing these clients and will do so to the best of their ability. They are the ones who have been to law scho ol. They are the ones that have been through trial many times before, and they’re the o nes that are he re for a reason, and that reason is to represent these individuals. And, so, you know, if there’s a conflict between the attorney and client with regard to how to proceed in the case, you all resolve it as be st you ca n, but ultim ately th e attorn ey is trying the case. And, yo u know , we don ’t pull peop le off the sidew alk to try these cases; and th e reas on we don’t is because of certain things that they need to learn and certain experiences they need to have profes siona lly before they’re prepared to try these ca ses. So they ’re here for th at reaso n and fo r that purp ose. . . . ...

So that gets me to the reason for our being here. Because of the matters raised by Mr. Carruthers, I have granted th e requ est of h is previous two attorneys and investigato r reluctantly because, in my opinion, they were doing an outstanding job of representing Mr. Carruthers and his interests.

Mr. Carruthers, if you want to laugh through this proceeding, then, again, I’m going to allow y ou to s it back in the ba ck. If you can sit here and listen to what goes on and communicate with your new attorney, that’s fine. You have every right to do that. But if you continue tossin g you r pen in the air and laughing every fifteen seconds, then it’s fine if you sit back in the back, and your attorney can comm unicate with you back there. So it’s up to y ou. I m ean it d oesn ’t make any difference to me. We can have this hearing with you, or we can have it w ithout you . And it’s com pletely your decision, but if you continue to act in that wa y, I don’t plan to condu ct this busin ess with you back there laughing and that sort of thing. You can put your hand down, and you can talk to your attorney, and he can address me if he thinks it’s appropriate . If he thin ks it’s ina pprop riate, the n he d oesn ’t have to, and you’ll have an opp ortunity to address him and talk to your attorney in just a minute -- as soon as I’m through making these statements for the record.

And, so, again, if -- you know, if you contin ue with this, an d this is going to be true for every hearing that we have -- pretrial and during the trial itself -- if you all wa nt to -- if you want to act that way -- if you want to make faces, toss pen s in the air, waive your h and, la ugh, th at’s

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fine. You can sit back there and do that, and that’s fine. If you wa nt to sit and listen intently because this is a serious matter to everybody concerned, that’s fin e. It’s your choice. It doesn’t make any difference to me. B ut you mak e the d ecisio n, and I’ll -- and if you persist in acting this way, you can sit back there, and your attorney can convey to you wha t’s going on in court. If you want to sit and act responsibly out here, you can do so, and you can participate in the trial. Now, whe re were we?

Because of the most recent rash of allegations raised by Mr.

Carruthers in his many letters that he’s sent me -- I assume he’s sent copies of the letters to his counsel and to others; but I’ve certainly got them, and they will be made a part of the record. And because of the types of things he alleged in those letters a nd the positio n that it p ut his previous attorneys in, and their very, very strong feelings about not continuing to represent Mr. Carruthers under those c ircums tances , I have reluctantly agreed to let them withdraw.

...

And as I have sta ted, I’m run ning ou t of patienc e with reg ard to these different issues -- and I use that word advisedly -- being raised by the clients w ith rega rd to an y obje ctions they h ave w ith rega rd to the ir attorneys. And as far as I’m concerned, there are the attorneys [Massey and Sayle] that will represent these men at trial. It’s going to have to be one gigantic co nflict -- one gigantic and real proven, demo nstrated conflict before any of these men will be relieved from representation in this case. There will be no more perceived conflicts, no more unfou nded , wild alle gations raised through correspondence, no more dissatisfaction with how my attorney is handling my case for anybody to be relieved in this case.

These are the attorneys, gentlemen. You either work with them or don’t. It’s up to you. Bu t they’re the men th at are going to be represe nting you at trial. . . . [empha sis adde d].

The court also , consiste nt with prior practice in this case, authorized an initial $1,000 for investigative services and conditioned any further compensation on an itemized showing of necessity by the investigator. Massey stated he preferred to use his own investigator rather than a third attorney; the investigator was Arthur Anderson, the same investigator originally hired b y counsel in this ca se. Thereafter, for some reason, the trial court entered two orders to that affect. An order filed August 11, 1995, allowed Morton and G arrett to withdraw and appointed Attorneys William Massey and Harry Sayle; an order filed on September 29, 1995, permitted counsel and Glenn Wright to withdraw.

On August 11, August 31, and September 27, 1995, the trial court authorized additional compensation for investigative services. In a hearing on August 11, 1995, due to his rec ent ap pointm ent, M asse y requ ested and w as gra nted a trial continuance until Ja nuary 8, 199 6. Ma ssey inform ed the court th at there still remained som e disco very to be ha d in the case and that his investigator had been working diligently on the matter.

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Like previo us co unse l, Massey and Sayle filed numerous pretrial motions on beha lf of the app ellant. In a hearing on November 17, 1995, Massey informed the court that he had filed all the necessary and appropriate pretrial motions. On December 19, 1995, Massey filed a motion to withdraw as counsel. Cou nsel’s motion expla ined th at “his re lations hip with [Carruthers] has deteriorated to such a serious degree that he can not provide effective assistance as required by state and federal law. . . C ouns el’s professional judgment cannot be exercised solely for the bene fit of Defendant, as counsel fears fo r his safety and those around him. As such, defendant cannot have effective communication with counsel to discuss the case and counsel cannot discuss strategy and legal options with Defendant.” Attached to this nine page motion are seve ral letters Ca rruthers m ailed to co unsel in late November and early December 1995. In these letters, Carru thers accused counsel of lying, threa tened c ounse l, and can didly exp ressed his overa ll dissatisfactio n with the way counsel handled his case. Excerpts from these letters are quoted below:

[Letter dated November 22, 1995] You have violate[d] the code of ethics by lying to me and my co-defendant James Montgomery that the prosecutor Jerry Harris had a plea barg ain of 25 y ears. W e both declined your offer and found out later that you lied along with attorney J.C. McLin and Harry Sayle. I will will [sic] and report you to the board of professional responsibility ethic misconduct [sic]. I want your dishonesty, fraud and deceit to be exposed and acknowledged. You must withdr aw fro m m y case before you fu rther p rejudic e my case . I’m not going to let you deny me a fair trial. I’m asking you as nice as I can to stay away from me. You have less than 72 hours to withdraw from my case, or I will do what I would have to do; [emphasis added]

[Letter dated December 2, 1995] I want to make this statement that you are about to cross a [sic] innocent man out of his life. I hope you can live with that. You and your friend are the ones that are in a [sic]

organization, and y ou’ll [sic] are all a thr eat to the black men, but make this one your best one, because you deserve it! you have practice [sic]

law 15 years and you got to look good, because you can’t keep doing this forever. You save the best for last. P.S. This is your last one!

[emphasis added]

[Letter dated December 5, 1995] You have violated several ethic codes with your style and tactics. I don’t know if you want to find another profession or not. This one Black man that w on’t allo w you to walk around pride [sic] with you [sic] head up high. I want your licen se to practice law revoke [sic] or suspended. I don’t know how far you plan to play this game but I’m serious. I should be seeing you soon, and I don’t know what you a re exp ecting . I prom ise it wo n’t be th at sam e old sweet smooth talking. It better be some actions around your words.

Life is to [sic] short to be playing games with you. Read what the Legal Medical Dictionary has to describe it. You need to get your sorry but [sic] over here to this jail house and tell me what kind of strategy you have fo r trial Mr. Slick T alker;

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[Letter dated December 6, 1995] I want to see you in [sic] your investigator over at the jail as soon as you receiv e this letter w ith a full report and transcribe interviews from witnesses. Please do not come with anything that isn’t proper, because if it ain’t right you w ill have to do it again. I’ll be looking for you soon. Everyday until my trial date you need to send somebody over here to keep me informed of your progress.

[Letter dated December 7, 1995] You are one white boy i don’t even worry about. Your brains are going to get your slick racist ass in a who le lot of trouble . All I tell you is to do you [sic] want to do, and I’ll do what I HAVE TO DO! Point blank!; [emphasis added]

[Letter dated D ecem ber 15, 1 995] I’ve tried everythin g in the w orld to be fair with you racist CR ACK ERS ! I’m telling you now there will be no turning back the hands of time. You have violated my rights to equal protection, and there will be no COMPROMISING! I don’t know if you are on that COCAINE again but don’t let the d rug alter yo u [sic] ability to see the truth and no [sic] the truth. I will not excep t [sic] anything other than the truth. I realize you boys went to school to be profess ional liars, bu t I’m not ha ving it.

Also attached to the m otion is a statem ent from M assey’s sec retary describing Carru thers’s abusive and threatening tone during her telephone conve rsations w ith him:

I received a collect call from Tony Carruthers . . . on December 13, 1995. . . . It was then he started screaming and cursing, most of which I couldn’t u ndersta nd. One p art I did understand and remember was that if he go t close enou gh to B ill [Mas sey] h e was going to whip his white ass. He repeated this several times. The way he was screaming and yelling rea lly scar ed m e. I belie ve he was v ery se rious in his threats. I told him that I wa sn’t go ing to list en to h is threa ts and he sa id “F--k you, too, you whore,” at least twice before I started to hang up.

[emphasis added]

On December 19, 1995, the trial court held a hearing on pretrial motions, including counsel’s motion to withdraw. Before counsel presented arguments, the judge made the following statements for the record:

A couple of statements I need to m ake for the reco rd before we begin the hearings that were scheduled today, the cases, in fact, set for trial on the 8th of January.

My first statement is that all statements that these defendants need to mak e to this Co urt can and will be m ade th rough their attorneys. They are represented by very experienced, highly effective, excellent trial attorneys and anything they need to say, w ith regard to their trial, will be addressed to me throug h their a ttorney s. And if there are any disruptions or problems -- disruptions caused by the defend ants in the process of these hearings, then they will be removed to the room behind this do or, and we’ll co ntinue with the hearin gs in their absence.

Secondly, the letters that I have received from Mr. Mon tgomery and Mr. Carruthers over the past several months I have diligen tly tried

14

to main tain. I’ve hand ed the m all o ver to the clerk’s office. They’ve filed them all in one of th e clerk’s files. W e have dozens if not hundreds of letters from these two defendants over the past several months. I’ve opened each one. I’ve read each one. I’ve tried to give copies to defense counsel. If I’ve not done that I’ve certainly made them availa ble by putting them in the jacke ts. There ’s been n o secre t as to the content of any of the letters.

About a week ago I received a letter from one of the defendants, Mr. Carruthers, in which he told me that he was going to send me an envelope full of roaches from the jail. I gues s to -- I guess to suggest that there is a roach p roblem in the S helby Cou nty Jail or whatev er.

But my job description does not include opening letters of that sort. So, for the record I will no longer open any letters from either of these defendants. They have from that day and will continue to be put imm ediate ly in the trash. If they have anything to say, they can, again, address me through their attorneys. They’re represented by excellent coun sel, and they can se nd lette rs to the ir attorneys, and their attorneys can then address me on anything that relates to this case.

The court the n heard statem ents from Mass ey con cerning his motio n to withdraw.

I would ju st say I don’t n eed to, I don’t guess, repeat word for word what’s in [m y motion ]. I would just say that in 15 years of practicing law, I have never ever made a motion of this nature. I have never -- I’ve neve r found it difficu lt to advoc ate on b ehalf of a c ase. I wou ldn’t find it difficult to advocate on behalf of this cas e. I do a t this point, however, find it very difficult to advocate on behalf of Mr.

Carruthers. And that is simply because he’s made it that way.

If I were receiving letters that merely stated I was incompetent and that I wasn’t handling his case right, and those type letters -- we all get those time to time -- I don’t mind those. Those don’t bother me.

When I have letters that come to me that are threatening, when I have telephone calls that come to my office that are threatening the safety of me and my staff and those around me, I have real problems with that.

It’s gotten so bad, Your Honor, that my secretary is having nightmares. The la st call M r. Carru thers m ade is Exhib it E to this verified motion . She called me in absolute tears crying uncontrollably, hyste rically crying over his antics. That’s the same way he’s been doing m e. I just have n’t broken down and star ted crying about it.

But I do have very, very strong, such strong personal reservations as I have never experienced before as an advocate. Your Honor, in adv ocatin g cas es, pa rticularly capital cases, I find the first thing I have to do to be persuasive is to believe. I have to believe and I have to feel. Because if I don’t believe and I don’t feel and I’m not sincere, I cannot impart that to a jury. They see my insincerity. They just see words, a parrot-like proficiency as opposed to feeling. They don’t act on that. They shut that out. That’s been my experience. And I don’t believe that that feeling, I know that I can’t advocate. I’ve lost my will to advocate on this case. I don’t have any doubt about that at this point. I don’t have any doubt. I’ll tell you as an officer of this c ourt.

I don’t have any doubt that would be a major problem.

And despite Mr. Carruthers threats and antics, I care for the integrity of the system. I care that his rights are protected even when he tries to destroy them himself and impair them. And I don’t know what the Cou rt’s answ er is. I know that the Court is in a ve ry difficu lt position here.

Obviously, it’s very clear what the ploy is. It’s very clear that we’re never g oing to ge t to trial like this. And if we do , then th ere’s going to be a record made for ineffective assistance of counsel. And they believe, Mr. Carruthers believes, that doing all of thes e thing s is

15

going to make him a record, as opposed to doing things from a legal standpoint in the courtroom.

The trial judge responded:

In my opinion, to try to make the record reflect as clearly and accu rately as possible the fact that the system is doing everything it can to mak e sure that M r. Carru thers is prope rly and thorou ghly represented in this case.

And Mr. Carruthers may step out to the back. He just was pointing to Mr. M assey w ith some sort of threatening gesture. And h e’s going to sit in the back for the rem ainde r of this hearing. Put him in the back room and keep him back there. Lock the door. Mr. Montgomery, you will join him in a minute if you choose to conduct yourself in that man ner as well.

The system has done all it can, in my opinion, to ma ke sure that Mr. Toney [sic] Ca rruthers is well represented. And I’ve tried to be as patient as I can be in listening to the concerns of defense counsel and investigators in ma king sure that no conflict existed in the representation of either of these men.

The specific reasons, the narrow specific reasons for the excusal of the previous a ttorneys and inv estigators differ a little bit from those comp laints that Mr. Mas sey has raise d today. And so when Mr.

Massey says “That just because I’m the 4th or 5th attorney in line does n’t mea n that I n ow ha ve to b e stuc k, in effe ct, in rep resen ting him just because others have been relieved and the Court is anxious to get the case tried. My complaints are as valid as theirs were. And if they were relieved, then I should be relieved as we ll.” And I understand that position. But first of all I’ll respond to that by s aying the ir comp laints were a little bit different, and I’m not going to go through them on the record now. The record is clear in tho se inst ance s. One enve lope is sealed with several letters that will reveal what those complaints w ere and the complaints from attorneys prior to th at we re a little bit different in nature. Not to minimize the seriousness of Mr. Massey’s complaints, but those complaints were a little bit different. And so it’s not that he just happens to be the 5th atto rney in line, an d he’s the on e that is going to quote, get stuck, representing Mr. C arruth ers. Th eir comp laints were a little bit different. And factually there are some distinctions that can be drawn between the complaints that they had and the complaints that you’ve voiced.

Mr. Massey : Your Hon or, is the Court finding tha t my com plaints are of a less serious nature than those previously made?

The Court: Yes. Yes, I am.

Mr. Massey: The threats of physical bodily harm?

The Court: Yes, I am. And I’m not minimizing those threats. And I understand that the threats that yo ur secretary rec eived affected h er, and I don’t dou bt that at all. But I do find that they a re different --

Mr. Massey: Threats I received.

The Court: And that yo u’ve received , certainly. But I think they are different and less serious in nature and not such as would prevent you from going forward in this case. [emphasis added]

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The trial judge stated that he was “much less rece ptive to the se sorts o f argum ents than [he] was a year ago when the first set of attorneys came in wanting to be relieved.” He also stated that Carruthers never requested to proceed pro se, and that he was “not going to force a ma n to go pro se in a cap ital case if he do esn’t want.” The trial court denied Massey ’s motion to withd raw. The trial court, ho wever, did authorize additional funds for investigation and mitigation.

In another hearing on Janua ry 2, 1996, Massey again requested permission to withdraw. Massey informed the court that he had continued to receive threatening letters at his home and was co ncerne d for his da ughter’s s afety because Carruthers referred to the car she drove. Mas sey stated tha t he cared m ore about C arruthers receiving a fair trial than Carruthers himself did, but that due to the actions of Carruthers Massey did not believe he could responsibly represent him. He told the court, quite c learly, “I d on’t want to repres ent this man . I can’t re prese nt him . I won’t represent him .”

During this hearing, the prosecution, for the first time, voiced its position on the matter. The prosecutor recounted the procedural history of the case, that several extrem ely competent and professional attorneys were forced off the case by Carruthers, and stated:

And if a defendant, Your honor, can threaten the system, if he can manip ulate the system by threats, by letters, I’m not sure if that’s what the makers of the constitution meant when they sat in Philadelphia and they said, look, let’s let every defendant have a fair trial. Le t’s let him have a lawyer. Let’s let a jury be over here. Let’s let him have a judge;

that’s fair. Let’s let no m an be accu sed o f a crim e, will not go to trial, unless he receives a fair trial. Let no man be c onvicted -- but the framers of the constitution, Your Honor, had not met Tony Carruthers.

The prosec utor und erstood Mass ey’s pred icame nt, but told the co urt it sim ply could not allow Carruthers to continue the trial of the case any longer. The court, again, denied Massey’s request. The court’s main concern, apparently, was that it could not just keep granting these requests to withdraw; there had to be an end to it. The court noted, tho ugh, tha t everything that had taken place during the course of the proceedings had be en reco rded so the app ellate courts “can un derstand w hy we’re

17

in this dilemm a that we ’re in today . So that they ca n understan d why M r. Carruthers wou ld be representing himse lf . . . so that they can have the full understanding.” At one point during the hearing, Carruthers stated to the court that he did not w ant Massey representing him because Massey was on co caine. The rec ord also reflec ts that during the hea ring Car ruthers w as glaring at Mas sey an d gritting his ja w.

Although the trial c ourt pr eviou sly me ntione d that it w as no t going to force Carruthers to repre sent h imse lf in this ca pital trial, after furthe r though t the court, citing federa l case la w, stat ed tha t Carru thers h ad tw o optio ns rem aining, either proceed with Massey and Sayle or proceed pro se. The record clearly reflects that everyone involved in this case , with the a pparen t exceptio n of Carr uthers, w as particu larly frustrated w ith the turn of events. The court, for the record again, stated that in its opin ion all o f the atto rneys appo inted in this case were excellent trial lawyers and had fully performed their duties, including filing all relevant motions and thoroughly pursuing the investigation.

Thereafter, Massey sought a T.R .A.P. 10 extrao rdinary appea l to this Cou rt.

In an order dated January 8, 1996, this Court re counte d som e of the sta temen ts from the letters written by Carruthers, including a description of the car driven by Massey’s daughter, a n alleg ation th at Ca rruthe rs’ friend s cou ld disco ver de tails about Mass ey like the c olor of his too thbrush in his hom e, and a statement to the trial judge accusing Massey of using cocaine. After noting that several other attorneys were allowed to withdraw in this case, the Court stated:

This Court is of the opinion that the attorney-client relationship, which may have previously existed, has deteriorated until such a relation ship does not exist between Carruthers and Mr. Massey. Also, the circumstances of this case m ake it imp ossible fo r Mr. Ma ssey to ethica lly represent Mr. Carruthers. Carruthers has proclaimed that he will do bodily harm to Massey. He has in essence and in fact threatened Massey with death. Carruthers, who has a history of violent condu ct, is apparently a member of a gang. All of his correspondence to Massey carries a drawing of a lidless eye that watches from the top of a pyramid. M oreover, Massey’s family is filled with fear and an xiety due to the threats made to Massey; and Massey’s secretary, who has had dealings with C arruthers by telep hone, likewise has fear and anxiety based upon her conversations with Ca rruthers a nd the thr eats made against Massey. Given these circumstances, Mr. Massey had no alternative but to seek permission to withdraw as counsel. He is supported in this endeavor by the Disciplinary Counsel for the

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Tennessee Supreme Court Office, which advised Massey that he was ethica lly required to withdraw as counsel, and, if the motion was denied, he was required to seek relief in the appellate courts.

...

Given these facts and circumstances as well as the relevant provisions of the Code of Professional Conduct, which governs the conduct of lawyers in the State of Tennessee, Mr. Massey was entitled to be relieved as c ounsel of reco rd for Mr. Carruthers. If there ever was an amic able a ttorney -client re lations hip, it was erad icated by M r.

Carruthers’s conduct in writing the letters aforementioned and threatening to do bodily harm to Mr. Massey the first time he saw him.

Today, Mr. Massey and Mr. Carruthers are at odds and their differences are irreconcilable. Furthermore, Mr. Massey, who emp hatica lly denied any m iscondu ct or add iction to dru gs, mu st attempt to protec t his fam ily, secr etary, a nd him self from physical harm as well as protect himself from further disciplinary complaints.

This Court granted Massey’s request and allowed him to withdraw.

Interestingly, in a hearing on January 8, 1996, the trial court allowe d coun sel to withdraw, but this was appa rently before the jud ge rec eived a cop y of this Cour t’s order. That day, Massey had filed a supplement to his motion to withdraw, and attach ed se ven m ore lette rs Ca rruthe rs ma iled to c ouns el’s ho me a nd bu sines s in late December 1995. These letters were also attached to the application Massey filed in this Court. Although Carruthers was aware of the motion to withdraw filed by Massey, he persisted in sending even more letters to counsel which only added ammunition to counsel’s cau se. In these letters, Ca rruthers again, in an accusatory and threatening tone, expressed his dissatisfaction with Massey’s representation:

[Letter dated December 19, 1995] Hey M r. Attorn ey yo u sit aroun d in your big tie office in Raleigh and ride around in your 1994 Ford Probe.

I can’t even get 50 full hours of inves tigation out of you or y our sorry investigator but that’s okay, because I have investigator [sic] myself and they don’t charge me anything and a couple [sic] of days I’ll be able to tell you anything you need to know even the color of a toothbrush they are good I’m telling you they aren’t from Memphis so you know they must be pretty good. P.S. L et me know when you a re read y to sit down and talk to them I’ll send them over to help. [emphasis added]

[Letter dated December 23, 1995] I’ve tried everything in my powe r to wake you up but you are determine [sic] to cross me. We’ll let the games go on. Let your conscience be your guide!

[Letter dated Dece mbe r 26, 19 95] Th is is the la st blac k ma n in Memphis, TN you will cross so make it good WHITE BOY!

[Letter dated D ecem ber 27, 1 995] Since you refuse to contact m y witnesses or any of the state’s witnesses I will have them come by your house or call you. So I hope this will be a more effective way to get your legal ass istance. I hope you don’t pull weapons or scare them away. If so then let em know up front. [emphasis added]

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[Letter dated December 27, 1995] Look BOY you don’t have to except [sic] my calls or come to see me. I will put it on paper what I want your sorry ass to do. You don’t have to do it if you d on’t wan t. Your brains aren’t as big as you th ink. It’s not a gam e you are it [sic ] my life . i can’t live but once, and I promise you I won’t let you take it just so you can ride around town and brag. This is where I stand fa ir trial or nothing.

You are one crazy white b oy or ju st a se nd ou t. Like I to ld you, let your conscience be your guide.

[Letter to trial judge dated December 27, 1995] I have once, twice, and even three times wrote you and made you aware that my attorney of the record William D. Massey is ineffe ctive in h is assis tance of cou nsel.

We have disag reed on m ore than one occasion ab out which rights of mine where [sic] being violated. He Mr. William D. Massey has refused to prope rly investigate my case. He refuse to file prosecutorial misconduct charges against the Asst. Attorney General Jerry Harris.

He also is addicted to cocaine a [sic] illegal controlled substance which affects his ability to practice law. This is a disgrace to the judicial system.

The record also reflects that Carruthers filed a disciplinary complaint against Massey with the Board of Professional Responsibility.

Just before the start of jury selection, the trial court, again citing federal opinions, ruled that Carruthers had forfeited his right to counsel by his egregious conduct and compelled him to proceed pro se. The trial court, however, appointed Massey and Sayle to serve as “elbow counsel.” Despite Massey’s continued position that the attorne y-clien t relation ship had com pletely deteriorated, C arruthers informed the court that he tried to reconcile with Massey the weekend before the start of trial. When the judge made his ruling, Carruthers expressed his concerns to the court about proceeding pro se; he informed the judge, in essence, that he had no idea what to do. The judge stated:

Well, those are the pe rils in going forward pro se. And in my judgm ent, Mr. Carruthers, as I’ve said on seve ral occ asion s, and I don’t intend to g et back in to a lengthy hearing on this issue at this time, but we’ve had two or three hearings already on this.

In my judgment, and I understand you’re stating now that you don’t feel capable of g oing forward and representing yourself. But you need to und erstan d that in my judgment you have created this problem for yourse lf. You are the autho r of your ow n predica ment b y, in my opinion, sabotaging the representation of you by four previous attorneys. These are now your fifth and sixth attorneys. In my judgm ent, because of actions that you’ve taken over the past 18 months, because of ac tions th at you ’ve tak en, yo u are n ow in th is situation.

And so it ma y well b e difficu lt for you to go fo rward in representing yourse lf, but this is the situation that you’ve created and you’re going to hav e to do the be st you can, b ecau se the re is virtually no option left at this point. To reset it again, history would show would

20

only -- would be a futile effort, because at the eleventh hour with the seven th and eighth attorneys representing you, there would be some other effort, in my opinion, s ome o ther ma nipulation on you r part that wou ld then cause those attorneys to come in and want to get off your case. And then we’d reset it and appoint the ninth and tenth attorneys, and the eleventh and twe lfth. And the re’d be n o end to it.

...

And so we ’re goin g forw ard an d you ’re goin g to represent yourse lf. I understa nd you ’re not an e xperien ced attor ney. I understand you may well have never gone through a voir dire process before. And that’s unfortunate. I wish you had cooperated and gotten along with M r. Nan ce a ye ar and a half a go. He was a n exc ellent attorne y, has tried m any, m any c ases in thes e cou rts, serio us diffic ult cases and done an excellent job.

I wish you had cooperated and gotten along with Coleman Garrett who, in my opinio n, is on e of the best tria l attorne ys in this entire state. He’s tried many cases in this courtroom and defended individ uals re mark ably w ell.

I wish y ou ha d coo perate d and gotten along with M r. Craig Morton, and Mr. Glen Wright, and Mr. Harry Sayle, and Mr. William Massey, beca use I th ink it would’ve been in your best interest to have done so. But it’s been obvious that you have not. And so for that reason we’re going forward.

...

It’s not easy to make this decision. It’s not a decision that I made lightly or take ligh tly. But I tell you wh at, if this record isn’t com plete enough and replete enough with evidence of manipulative conduct and obstructionism, then I can’t imagine ever there being a record for the appellate courts in Tennessee that would meet that criteria.

The record indicates that in an effort to waive any conflict with Massey representing him at trial Carruthers wanted to take the stand to apologize and te stify that the accusations he mad e against cou nsel earlier were untrue. The court noted that this was m erely ano ther tactic C arruthers was us ing and denied the requ est.

On January 9, 1996, this Court filed an addendum to its previous order and ordered that Massey be completely relieved of any representation of Carruthers, including providing assistance as “elbow counsel.” On January 11, 1996, during voir dire, the state requested a trial continuance due to the hospitaliza tion of one of its material witnesses. Th e court resche duled trial until April 15, 1996 . Carruthers made an oral request for appointment of new counsel. The trial court denied the request, reiterating w hat it had stated ea rlier:

The system will not be held hostag e by To ny Car ruthers, a nd to go throug h ano ther ro und o f attorne ys will be doing just that, because history suggests, as you’ve done in the past, that is if new attorneys were appoin ted and spent the time and investigated, the effort to get ready on this case, then at the eleventh hour something would happen, some allegation s would be ma de that w ould un dermin e their ability to represent you, they’d ask to withdraw, we’d be back in the same

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situation that we were in with Mr. Larry Nance, with Mr. Coleman Garrett, with Mr. Bill Massey, all three of whom are outstanding criminal defense attorney s. All three of who m we re fully capable of representing you, and all three of whom had to be relieved because of your actions.

And in my judgment, enough is enough. And because of your actions, these attorneys are no longer representing you and, therefore, you will be representing yourself. You have ample time to prepare.

You have access to legal opinion from Mr. Sayle. You have the file.

You have the rules. You have a jury consultant. You have an investigator. And this is the manner in which we’re going forward.

On January 19, 1996, the trial court entered orde rs allowing Ca rruthers to hire a jury selection consultant and an investigator. During a hearing on January 16, 1996, the appellant informed the court that he had contacte d a new investiga tor to assist him. The court talked to this new investigator about the nature of the case and questioned whether he would be able to proceed to trial on April 15, 1996. The investigator informed the court that he had discuss ed the m atter with the appellant and was in the process of assem bling an in vestigative team. He stated that he had the files that had already been prepared and indicated that he would complete the investigation by that date. The court allowed John Billings to assist the appellant and authorized Billings to contact the court if additional funds were needed. The court also cautioned the appellant that this would be the last investigator appointed in this case.

In February 1996, Carruthers filed two more written motions for appointment of counsel, which were also denied by the trial court for the same reasons mentioned earlier. In a hearing on February 20, 1996, the court recounted the lengthy procedural history of this case and cited several federal opinions discussing a defen dant’s forfeiture of counsel due to defendant’s hostile actions. The court stated that “it will be apparent to anyone who objectively views this situation th at Mr. Carruthers is not being denied right to cou nsel.” Also during the hearing on the 20th, the court entertained some of Carruthers’s pretrial requests for expert services and discovery. Although appellan t represe nted him self at this po int, the reco rd reflects that the trial judge continued with a professional approach in this matter and made informed decisions after allowing the appellant ample opportunity to make his argum ents in open court on his pretrial requests. The record suggests that the judge provided Carruthers with added guidance and granted him and his investigator

22

cons iderab le latitude during the pre trial hearings. Hearing dates were continued several times to allow the appellant additional time to prepare for his arguments . Moreov er, at times when Carruthers requested an ex parte hearing, the state voluntarily left the courtroom so the appellant could speak freely to the judge.

The court eve ntually allow ed Say le to withdr aw as e lbow co unsel du e to appe llant’s lack of tr ust an d con fidenc e in co unse l and his personal attacks against Sayle. The court denied Carruthers’ motion for court paid accident reconstruction services, but granted h is request for a forensic p atholog ist. On March 4, 1996, the trial court entered an order denying another request by Carruthers for appointment of coun sel. Als o on March 4, the court heard arguments from Carruthers on all of the remaining p retrial motions he h ad filed. As the trial court no ted and as the record reflects, the appellant filed various pretrial motions that appear to be similar or the same as those filed by counsel before they were allowed to withdraw. In addition, the record reflects that the appellant obtained the assistance of another attorney to prepare som e of the se m otions on his beha lf. The a ppella nt inten ded to retain th is attorney to represent him, but apparently this never materialized. Among these motions are motions for severance, individual voir dire, suppression of evidence, and general discovery reques ts. Incidentally, once the court removed the final attorney from Carruthers’’s cas e, counsel for M ontgom ery started m oving the cou rt for a severance. In fact, almost every time the court held a pretrial hearing on one of Carru thers’’s requests, cou nsel for Mon tgomery re newed their motion for a severance. These were denied.

Anoth er oral m otion fo r appo intme nt of co unse l was d enied on Ap ril 15, 1996, the day jury s election s tarted. After trial, Carruthers filed yet another motion for appointment of counsel. The trial court appointed Stephen Leffler and Lee Filderman to represent appellant on the motion for new trial and direct appeal to this Court. Even after new counsel were appointed, Carruthers still insisted on filing pro se motions in the trial court. Appellant also wrote letters to the trial judge about issues he wanted to raise in the motion for new trial and witnesses he wanted to call.

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He also complained to the trial court that his new counsel were inexperienc ed to handle a capital case.

FACTS

Guilt Phase The victims, Marcellos Anderson, Delois Anderson, an d Frederick T ucker, were murdered sometime between the evening of February 24, 1994, and the morning of February 25, 1994. Their bo dies we re discov ered un dernea th a buried casket in a cem etery in M emph is, Tenne ssee, on March 3, 1994 .

Michael Harris let his cousin, Marcellos Anderson, borrow his Jeep Cherokee on Wednesday, February 23, 1994. Harris learned early Friday morning, Fe bruary 25, that his Jeep was d estroy ed by fire in Mississippi. Harris testified that Anderson stayed with him sometimes during the week and that he would loan Anderson his car once or twice a week. H e testified, ho weve r, that he did not know what Anderson did for a living.

At about 2:40 a.m. o n Feb ruary 2 5, 199 4, Arch ie Yancey, an officer with the Deso to Coun ty, Mississ ippi She riff’s Depa rtment, o bserve d wha t appea red to be a “Jeep vehicle ” engu lfed in fla mes in a field a bout tw elve m iles south of the Tennessee-Mississippi state line. According to Officer Yanc ey, the way th e veh icle was burning suggested that it may have been torched.

Jean Tucker testified that her son, Frederick Tucker, was seventeen years old when he was killed. Sh e last saw him around no on on Feb ruary 24, 1994. Tucker also testified that her oldest son , Andre Tuc ker, was m urdered on January 13, 1995.

Ola Jean Anderson was a friend of Marcellos Anderson. She testified that she saw Ander son with James and Jonathon Montgomery sometime around 4:30 p.m. on Thursday afternoon, the 24th. Ola Jean Anderson was standing on the street talking to Anderson, who was in a white Jeep with another person, when Montgomery and his brother approached and got into the Jeep.

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Lave nthia Denise Anderson Briggs is a niece of Delois Anderson and c ousin of Marcellos A nderson. B riggs lived with Delois and Marcellos Anderson. She testified that she did not know what Marcellos did for a living, but she d id state that he had been shot in July 1993. Briggs telephoned Delois at home from a friend’s house shortly after 8:00 p.m. on the 24th. Someone answered the phone but did not speak. Briggs testified that she said “hello” several times but received no response. She hung up the phone and tried calling back, but no one answered the phone. Briggs went home about thirty minutes later and noticed that Delois had been there “because her thin gs we re ther e and she h ad left h er food .” Brigg s assu med Delois wou ld be back soon because she left her car, purse, cigarettes and keys. Briggs went to sleep and was awoken about 3:30 a.m. b y a ph one c all from Mich ael Ha rris asking if Delois was home . She ha d not retu rned, no r was M arcellos h ome. A missing person repo rt was filed the next day. Briggs testified that Marcellos wore a “big diamo nd ring,” a watch and a beeper. She also testified that a pillow case was missing from Delois’ bed.

Charles Ray Smith, a convicted felon, testified on behalf of the state. In the fall of 199 3, Sm ith was incarc erated at the M ark Lu ttrell Re ceptio n Cen ter in Memphis. Appellants Carruthers and Montgomery were also incarcerated there at that time. According to Smith, sometime during the early part of November 1993, Smith and Carruthers were on work detail together at the cemetery where the victims were discovered. Part of their duties included placing coffins in the grave sites. According to Smith, at som e point Carruth ers stated “that would be a good way, you know, to bury somebody, if you’re going to kill them. He said, you know, he sa id, you know, if yo u ain’t got n o body , you don ’t have a case.” Smith testified that he heard Anderson brought Carruthers back to jail from furlough one day. Montgom ery apparen tly saw Anderson with Carruthers. Smith overheard Montgomery ask Carruthers about A nderso n. Smith testified that he he ard C arruth ers tell Montgo mery both Anderson and Andre “Baby Brother” Johnson dealt drugs and had a lot of money. Carruthers said when he and Montgomery got out of prison they could rob and “ge t” Anders on and Johns on.

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Smith further testified that upon his release, he approached Anderson and Johnson and told them what he had overheard. Thereafter, Montgomery was released and Smith saw him on the street sometime in January 1994. “When I had seen him, he told me that, you know, [Johnson] is trying to get me killed because he sa id I went back and told [Johnson] that he supposed to be robbing them, what he told me.” Smith testified that he saw James and Jonath an Mo ntgom ery get into a white Jeep Cherokee with Marcellos Anderson and Fred Tucker on February 24, 1994. Smith also sa w Jonatha n Montgo mery “han ging around ” by him self from about 5:00 to 6:30 p.m.

Smith testified that h e receive d a call from Johns on arou nd 4:00 a.m. on February 25, 1994. Johnson said Anderson was missing and asked Smith if he had seen him. Smith, Andre Tucker and Johnson drove around looking for Anderson. Smith testified the y saw ligh ts on at Ja mes M ontgom ery’s hou se, so w hen Sm ith returned home around 5:00 a.m. he telephon ed Mo ntgom ery, desp ite the fact that he and Montgomery did not have a friendly rela tionship. Carruthe rs answered the phone and Sm ith asked to talk to M ontgo mery . Smith aske d Mo ntgom ery if he knew Ande rson’s whereabouts because he was the last on e he sa w with h im. Smith also informed Montgomery that Anderson’s Jeep was found burned in Mississippi. According to Smith, Montgomery said he did n ot feel lik e talkin g, that “W e’ll talk tomorrow,” and hung up the phone.

On cross-examination, Smith acknowledged that he did not have a good relation ship with Jame s Mon tgome ry. Smith could no t remem ber the s pecific da te he heard Carruthers and Montgomery talking about Anderson. Nor could he remember if there we re any o ther inm ates pre sent du ring the co nversa tion. Sm ith also acknowledged on cross that prior to h is relea se from prison in the fa ll of 1993 he and Carruthers “had a fallout” and did not “talk much anymore” because he learned that Carruthers and Montgomery “was plotting to do something” to him.

Nake ita Montgomery Shaw testified that her cousins, James and Jonathan Montgomery, and Anderson and Tucker stopped by her house to visit around 4:30

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or 5:00 p .m. on Febru ary 24 , 1994 . They arrived in a white Jeep Cherokee. Benton Wes t, another of Shaw’s cousins, and Shaw’s four children were also present in the house. Shaw testified that the four men entere d the house and went down to the basem ent. James then came back upstairs and asked Shaw if she could leave the house for a while so he could take care of some business. West, the children, and Shaw all left the house. West told Shaw that he would never visit her again if James was in the house.

When Shaw returned later that evening, Carruthers and James M ontgom ery were the on ly individuals she saw in her ho use. M ontgo mery aske d if she could leave for a little longer. When she returned home again, sometime before 10:00 p.m., James M ontgom ery and C arruthers were still the re. The w hite Jeep, how ever, was gone, and Shaw did not see or hear Anderson or Tucker. Shaw testified that Montgo mery told her to put her kids to bed upstairs and stay there until he said otherwise. When M ontgom ery told her he w as leaving sh e went ba ck down stairs and saw Montgomery, Carruthers, Anderson and Tucker w alk out the front doo r. Shaw locked the front door behind them. She testified that the Jeep had returned to the front of her house. The next m orning, Jam es, Jonatha n, and Ca rruthers returned to Shaw’s house.

After the po lice star ted the ir inves tigation in this ca se, Ja mes Mon tgom ery told Shaw that she did not have to talk to the police about a nything. Montgomery also told her later that if he was going to be put to death for something he did not do, then “all of us needed to die.” Shaw testified that she subsequently moved to her moth er’s in Milwaukee with her children and Jonathan Montgo mery because she had received death threats. In early April, Shaw was questioned by the Milwaukee Police Department regarding the evening of February 24, 1994. She informed the officers of Jonathan’s whereabouts. When she was questioned by the Memphis Police Department at a later date, she mentioned that Anderson and Tucker’s hands were tied behin d their bac ks whe n they left h er hous e. She testified that she has been afraid for he r life, and during her testimony she stated that she did not see Anderson and Tucker restrained in any manner. She informed the police that James

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Montgo mery threate ned h er and told her she could be an accessory. Montgom ery also told Shaw that he did not w ant to have to h urt her.

On cross-e xamin ation, Shaw testified that she was not afraid of James Montgo mery but, be caus e of he r involv eme nt in this case, she was still scared. She testified that James was living with her in February 1994, and that it was not uncommon for him to come and go as he pleased. James also brought friends by the house occasionally. Shaw testified that she did not care for Anderson, because he dealt drugs, and told Ben West that she did not want Anderson in her house.

Benton West was a t Shaw ’s house on Feb ruary 24 , 1994. H e testified th at around 5:00 p.m. James and Jonathan Montgomery, Anderson and Tucker stopped by the house in a Jeep. West spoke to Anderson and then all four men walked downsta irs to the basement. West testified that a couple of minutes later Shaw came into the kitch en and told him th at she th ought “they” were being kidnapped. West then took Shaw’s children and left the house. West saw Sha w two da ys later, and she sta ted, “I hope didn’t noth ing happen to them or no thing like that.” On cross-examination, West testified that he did not see any weapons or notice anything unusual about the four men as they came inside the house. He also testified that Shaw never told him she was afraid of Anderson or that s he did not want him in her house.

Jimmy Lee Maze, Jr., another convicted felon, testified on behalf of the state.

Maze received two letters from Carruthers in the summer of 1993 while Carruthe rs was incarcerated. In the first letter, Carruthers mentioned he had “a master plan” and “all the right ideas and the support to back it.” In his second letter, he stated he was trying to get transferred to Mark Luttrell Reception Center. He also wro te: “I can’t wait to make tho se streets pay me”; “If you really want to be rich, take time out when you ge t out to listen to my plans and goals”; “Everything I do from now o n will be well organized and extremely violent”; “I have big plans for us and th ere isn ’t anything they can do about it”. Maze also testified that in December 1993, he and his brother and Carruthers were riding around together. They happened upon a

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scene where a car had been s hot in front of Delois Anderson’s house. Jonathan Montgo mery was at the scene, and when they arrived Montgomery got in the back seat of the car w ith Carruthers. Maze testified that Carruthers said “it would be the best time to kidnap M arcellos,” once Ja mes M ontgom ery was relea sed from custody. When Montgom ery asked w ho Carruthe rs was talking about, Anderson or Johnson, Maze observed Carruthers bump Montgomery with his elbow. A couple of weeks later, on New Year’s night, Maze saw Ca rruthers loading three an tifreeze containers into a car. Maze got in the car with Carruthers, and as he was about to light a cigarette, Carruthers told him not to do it because there was gasoline in the antifreeze containers.

Terre ll Adair, a convicted felon, testified that prior to his incarceration he was involved in the sa le of coc aine w ith Ma rcellos Ande rson a nd An dre Jo hnso n. Ada ir was present when Charles Ray Smith warned Anderson and Johnson about Carruthers and Montgomery. Sometime in February 1994, Carruthers and Montgom ery approached Adair and Johnson on the street. Montgomery asked Johnson and A dair “why did we feel like he was trying to do something, something to one of us, because if he was trying to do something to us he would come around and kill our whole family.” Montgomery told Adair and Johnson that he already had someone else targeted, an d that he wa s going to take th is person’s money and drugs. Montgom ery also sa id, “if the p olice d idn’t have no body, they wouldn’t have no case.” Adair s tated th at this was the first time he met Montgomery. Adair also testified that Anderson always wore an $1,800 ring. Adair admitted to having been shot during a drive-by shooting, allegedly something to do with the drug business. He also stated that Anderson had previously been shot in a drive-by shooting.

Andre Johnson (“Baby Brother”) testified that he, Marcellos Anderson and Terre ll Adair were best friends and sold cocaine together. According to Johnson, Anderson was known to carry about $5,000 or $6,000 cash on his person. Johnson also stated that Anderson had about $57,000 stored in his mother’s attic. Johnson, Anderso n and Ad air all wore similar rings. Jo hnson testified tha t when C arruthers was released from jail in the fall of 1993, he, Anderson and Adair each gave

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Carruthers $200, which apparently was customary when someone they knew was released from jail. Johnson stated tha t Anders on trans ported C arruthers to and from jail when he was released on furlough. Johnson testified that after Carruthers was released from jail Charles Smith warned him, Anderson, and Adair to watch out for Carruthers and Montgomery. Johnson said Anderson did not take Smith’s comment too seriously. According to Johnson, Anderson acted friendly toward Carruthers and trusted him. Johnson also testified that he saw Montgomery after he was released from jail. Montgomery stated “this is my neighborhood” and asked Johnson whether he want ed to g o to “w ar” ove r it. Mon tgom ery als o told J ohns on, so metim e later in front of Johnson’s house, “we already got our man staked out . . . If we wanted some trouble or som ething, we go t you right now. W e’d kill your whole fam ily.”

On cross, Johnson also admitted he had been shot during a drive-by shooting.

Anderson had also been shot in a similar manner. Johnson also testified that he and his asso ciates had p reviou sly been involved in a drug war with a rival organization caused by differences in pricing. Upon questioning by Carruthers, Johnson stated that when Carruthers was released from jail he mentio ned so methin g to him about a master plan and making a million dollars in about two months.

Chris Hines had known the appellants since junior high school. About 9:00 p.m. on February 24, 1994, Jonathan Montgomery visited Hines at his home. Hines testified that Jonathan told him he killed some people and stole their money; he said, “Man, a n----r got them folks . . . Cello and them.” Jonathan said “Man, we got them folks out at the cem etery on Elvis P resley, and w e got $200 ,000.” Jonathan asked Hines to take him to the cemetery. Hines refused, but allowed Jonathan to borrow his car. Although Jonathan said he would return the car in an hour, Hines did not see it again until the next morning. Hines also testified that he called James Montgo mery about 11:00 p.m. that same night. Hines wa s looking for his car. James told him he did not know where Jonathan was, but that he would probably not get his car back until about 4:00 a.m. beca use J onath an ha d to driv e Jam es to h is girlfriend’s house. Jonathan, James and Carruthers eventually returned his car around 8:30 a.m. the n ext mo rning. Th e car wa s mud dy but the three de fendan ts

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took the car to clean the exterior and vacuum the interior, including the trunk. Hines testified that Jo natha n told h im again the morning of the 25th that they killed some people. According to Hines, Jonathan was paranoid and nervous. Jonathan appa rently left the carwash and Carruthers and James asked Hines what Jonathan had told him. Hines said Jonathan told him nothing. Several days later James offered Hines an AK-47 assa ult rifle for his protection. James said the gun had blood o n it, which w as slang mean ing som eone h ad bee n shot w ith it.

On cross-examination, Hines stated that when the three defendants returned his car the next morning, James and Carruthers left. Hines stated that he saw James and C arruthers about 2 ½ hours later, at which point James asked Hines why his car was so muddy. Hines testified that James told him he would take him to get his car washed as soon as he got h is check . Hines sta ted that his car was dirty when he let Jonathan borrow it. Hines further testified on cro ss tha t Jona than to ld him that “I had to kill them folks.” He stated that Ja mes aske d him what Jonathan had told him and said that they needed to find out what Jonathan had done. Hines also stated on cross that neither James nor Carruthers directed the man washing the car to clean an ything in particular.

Orlandus Buddy Sesley, an employee with the Tennessee Department of Correction, testified about the op eration at the M ark Luttrell Recep tion Center in Memphis, where he wa s statione d. The reception Center serves as a processing center for prisoners before they are transported to or released from the various penitentiaries across the state. Sesley worked as a counselor assisting and orientating prisoners back into society before their release. Sesley counseled the appellan ts and Charles Ray Smith . Carruthers was released from custody on November 15, 1993, Smith on December 15, 1993, and Montgomery on January 11, 1994. Sesley testified that both Sm ith and C arruthers were a ssigned to work release at a graveyard before their release from custody. Sesley further testified that Carruthers was rem oved from the ceme tery deta il in Octobe r and give n light duty work inside because of a medical problem with his hand or wrist. Sesley authorized furloughs for inmates which allowe d a prison er to leave custody for three d ays to

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make arrangements for release. Carruthers was granted three furloughs, the last occurring October 1, 1993. Sesley testified that Montgo mery arrived at the Mark Luttrell Reception Center on November 4, 1993.

On March 3, 1994, Detective Jack Ruby of the Memphis Police Department accompanied Jonathan Montgomery to the Rose Hill Cemetery on Elvis Presley Boulevard. Jonathan directed Detective Ruby to the grave site of Dorothy Daniels, who wa s buried on F ebruary 25, 199 4. This gra ve site was located six plots away from James Montgome ry’s cousin ’s grave site. Ruby obtained a court order permitting disinterment of the casket from this grave. Along with the police officers, two anthropologists and two medical examiners assisted in the removal of the bodies. The ca sket containing the body of Daniels was located in a plywood box inside the grave. Below this box, underneath several inches of dirt, they found another single piece of plywood. The bodies of the three victims were discovered undern eath this piece of plywood lying in a pit that had been dug further down in the dirt. The two male victims were on top of the fe male victim and all three victim s were bound.

Patrick Williams, an employee of the Rose Hill Cemetery, testified that it would have taken two people to remove the empty plywood box that was found in Daniels’ grave. This box was placed in the grave the day before the casket was lowered, which would have bee n during wo rking hours on February 24, 199 4. Acco rding to Dr. Hugh Edward Berryman, one of the forensic anthropologists who assisted with the crime scene, the casket of Daniels had not been disturbed after she was buried on the 25th.

Dr. O.C. S mith pe rformed the autop sies in this case. He als o ass isted in removing the bodies from the grave site. Dr. Smith testified that the fema le victim was in the bottom of the grave and the two male victims were found lying on top of her. The hands of all three victims were tied behind their backs and, in addition, the feet of Frederick Tu cker were bound. Delois Anderson also had a red sock around

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her neck and F reder ick Tu cker’s neck showed signs of bruising caused by a ligature. Dr. Sm ith did not find any jew elry on M arcellos A nderso n.

Delo is Anderson died as a result of asphyxia caused by a combination of factors: 1) difficulty in breathing due to the position of the body, i.e., her head was bent forward and he r chin wa s presse d again st her che st, 2) dirt in the mouth and nose blocking the airflow , and 3 ) traum a from the we ight on her bo dy. Th is victim also suffere d traum a befo re she was p laced in the g rave. D r. Sm ith opin ed tha t this victim was strang led two to six hou rs before dea th. Also, the victim suffere d a more recent wound to the back of her head which could have been caused by a blow from a shovel. She also showed bruising on the elbows, the back of the left shoulder, and the forehead, possibly caused when she hit her head o n the bo ttom of the grave.

Frederick Tucker received a near gunshot wound to his chest which was not instan taneo usly fatal. He also suffered blunt trauma to his abdomen and head, which includ ed bro ken rib s, a frac tured s kull and a rupture d liver. Dr. Smith opined that Tucker was shot and then placed in the grave where the force of compression from being buried produced the other injuries and ultimately cause d his death. Dr. Smith further opined that Tucker was alive when he was placed in the grave. Tucker also sho wed sig ns of stran gulation.

Marcellos Ander son rec eived thre e guns hot wo unds: a contact wound to his forehead, which was not that severe, and two gunshot wounds to the neck, one a near shot severing his spinal cord and paralyzing him from the chest down. None of the gun shot wo unds, h owev er, were instantaneously fatal. Anderson also suffered blunt traum a to his ab dome n from b eing bu ried in the g rave.

Dr. Smith opined that each victim was buried alive.

Appe llant Montgom ery presente d no proof, ho wever, app ellant Carruthers called several witnesses to testify on his behalf. Albert James Herm an, Jr., a health administrator at Mark Luttrell Reception Center, testified that on October 6, 1993, the

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appellant was gra nted a job chang e beca use of an injury to his le ft hand. Freddy L. McCullough, a private investigator assigned to this case, interviewed Jimmy Maze prior to trial. According to McCullough, Maze knew Carruthers was talking about a master plan in his letters, but Maze did not know specifically what Carruthers was talking about until Carru thers was re leased from jail (apparently beca use the letters Carruthers w rote to Maze did not go into de tails or mention na mes).

Alfredo Shaw gave a state men t to the p olice in March 1994. Shaw stated that he saw a television news report about this case and called crime stoppers to provide information. Some time be fore the m urders, Shaw testified that he was in a three- way telephone conversation with Carruthers and either Terry or Jerry Durham. Carruthers told Shaw he had a “sweet plan” and that they would each earn $100,000 and a kilogram of cocaine. Shaw told Carruthers, however, that he did not want to get involved. Shaw was in the same jail with the appellants after they were arrested for these crimes. Shaw testified that Carruthers told him how the crimes w ere committed. Carruthers said he and some other people (he apparently did not mention the other appellants by name) went to Delois Anderson’s house looking for Marcellos and h is mone y. Marc ellos w as no t there s o Car ruther s told D elois to call Marcellos and tell him to come ho me, “it’s some thing importan t.” When Marcellos arrived, the ap pellan ts force d the v ictims (appa rently Tucker arrived with Marcellos) into the Jeep at gunpoint and drove them to Mississippi where they shot Marcellos and Tucker and burned the Jeep. The appellants then drove all three victims back to Mem phis in a sto len vehic le. Accord ing to Sh aw, Ca rruthers s tated they drove to the cem etery a nd pu t Marc ellos a nd Tu cker in the gra ve. De lois started screaming so one of the appellants told her to shut up or she would die like her son, and then pushed her in the grave . Shaw testified ab out this information b efore the gran d jury in this case.

Carruthers told Sha w that he was no t going to hire an attorney because then the state might have learned that they planned the murders in order to steal Marcellos’ mone y. Carruthers also said th e bod ies wo uld ha ve ne ver be en fou nd if “the boy wouldn’t have went and told them folks.” Carruthers informed Shaw that

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Johnson was also supposed to be “hit.” Carruthers also stated that two other individuals, Terry and Jerry Durham, were “the main people behind having these individ uals killed.” Apparently the Durhams wanted revenge because they had previo usly been ro bbed b y Marc ellos and Johns on. Shaw testified that he feared for his safety for having come forward with this information because the Durhams had control over people who were in jail along with Shaw. Shaw testified at trial that he attempted to recant his gran d jury testimony and statem ent to th e polic e bec ause his and his family’s safety was threaten ed by Ca rruthers. Appa rently, Carruthers made arrange ments through one of his investigators to ha ve a new s reporter intervie w Shaw about his recantation. The Durha ms tes tified on be half of Ca rruthers a nd both individuals stated that they did not know Shaw nor had they heard of him.

Aldolpho Antonio Jame s testified that he was w ith Car ruther s at a frie nd’s house betwe en 1:00 a.m. an d 2:00 a .m. the day before James first saw a news report about this case. On cross-examination, however, James admitted that he did not know th e date of this enc ounter.

Terrance Roderick Carruthe rs, the a ppella nt’s bro ther, tes tified tha t Terre ll Adair was sh ot in a drive -by sho oting in D ecem ber 199 3. He further testified that he went to the hospital later that day with Carruthers, Marcellos Anderson, and And re Johnson to see Adair. According to his testimony, Jonathan Montgomery was not present at the sce ne nor a t the hosp ital. Carruth ers also c alled An tonio Ba teman to the witness stand who testified that he did not see Jonathan Montgomery at the hospital a fter Adair w as sho t.

An administrative assistant with the Shelby County Jail testified that Shaw was not in the law library of the jail at the same time as Carruthers in February or March 1994. The co nversa tion Carru thers ha d with Shaw allegedly took p lace in the jail library. Carruthers also called several employees of the Shelby County Jail who testified about the various classifications of prisoners and how certain prisoners, such as those in protective custody , are segregated at all times from other classifications of prisoners. Some of these employees admitted, however, that this

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system is not foolproof and that there could be tim es when inmates with different classifications could come into contact with one another. Carruthers and Shaw had different classifications.

Sentencing Phase During the Sentencing phase of the trial, the state introduced evidence of the appellants’ prior convictions. Carruthers had a previous conviction for aggravated assa ult, wh ile Mo ntgom ery ha d two previo us co nvictio ns for ro bbery with a d eadly weapon and one for assault with intent to commit robbery with a deadly weapon. The state also called the medical examiner back to the s tand to testify a bout th e pain suffered by the victims. Dr. Smith testified that none of the victims died instantan eously. Each victim s uffered as a re sult of th eir sep arate in juries, a s well as from the sensation of being buried alive.

Nakeita Montgom ery Shaw testified on behalf of M ontgom ery during the sentencing phase. Shaw and Montgomery were close growing up together. Shaw stated that she loved her cousin very much and asked the jury to spare his life. Mattie Calhoun, Montgomery’s aunt, testified that Montgomery was an average student in school. She also stated that Montgomery did not have a meaningful relation ship with his father. She also begged the jury to spare his life. Mon tgomery testified on his own behalf. Mon tgomery a nd his three bro thers and two sisters were raised by his mother in North Memphis. Montgom ery stated that he was five yea rs old when he las t saw h is father, w ho wa s still living in M ississip pi at the time o f trial. He testified that he pled guilty in his prior cases because he wa s guilty. He testified, howeve r, that he was innocent in this case. He stated that he spent a little over nine years in the penitentiary for his previous convictions and had secured a job when he was r eleas ed. M ontgo mery ’s son w as ten years old at th e time of trial.

Bishop R.L. Fiddler had been visiting with Carruthers since his incarceration.

Fiddler believed Carruthers was honest and straightforward and a person of quality and worth. Fiddler stated that Carruthers was upset about the deaths of the victims

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in this case. Fiddler asked the jury to give Carruthers a chance to live. Tonya Yvette Miller, Carruthers’ sister, testified that their mother raised four children on her own. Miller st ated th at they grew up in o ne of th e wor st hou sing p rojects in Memphis. Carruth ers, the old est son, h ad a lot of re spons ibility as the “man of the house hold.” She lov es her b rother, bu t admitted that he ha d a hot temper. Miller stated, however, that he never planned to do anything wrong . She told the jury that her mother raised her children to tell the truth. Miller asked the jury to spare Carruthers’ life because he is innocent of these crimes. Carruthers took the stand on his ow n beh alf. He to ld the ju ry he was innocent of the crimes and did not deserve to die.

ANA LYSIS

Forfeiture of Right to Counsel In his first issue, Carruthers claims he was denied his right to due process when he wa s forced to represe nt himse lf during the trial of this capital case. The state argues in response that Carruthers forfeited his right to counsel. It is not disputed that Carru thers is ind igent.

An indigent defendant has the constitutional right to appointed counsel. U.S.

Cons t. amend. VI; Tenn . Const. a rt. I, § 9; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.E d.2d 79 9 (1963 ); State v. Northington, 667 S.W.2d 57 (Tenn. 1984). Howe ver, this right is not absolute, in that a defendant does not hav e the right to appointment of couns el of choice nor the righ t to a “me aningfu l relationsh ip” with appointed couns el. See Morris v. Slappy, 461 U .S. 1, 13-1 4, 103 S .Ct. 1610, 1617, 75 L.Ed .2d 610 (1983); United States v. Gallop, 838 F.2d 105, 107 (4th Cir.), cert. denied, 487 U.S. 12 11, 108 S.C t. 2858, 101 L.E d.2d 895 (19 88). Moreo ver, appointed counsel is not required to blindly follow a defendant’s instruction s, see United States v. Padilla , 819 F.2 d 952, 9 56 (10th Cir. 1987), and a defendant does not have the right to manipulate his right to counsel in order to delay or disrup t a trial, see United S tates v. W hite, 529 F.2 d 1390 , 1393 (8 th Cir. 197 6). “The rig ht to assistance of cou nsel, cheris hed a nd fun dam ental th ough it may be, may not be put to service as a means of delaying or trifling with the court.” United States v. Fowler,

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605 F.2d 18 1, 183 (5 th Cir. 197 9), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 78 5 (1980).

Similarly, a defendant may only request a substitution of appointed counsel for good c ause s hown . See Gallop, 838 F.2d at 108. Good cause may include a conflict of interest, a comp lete breakdow n of comm unication, or an irreconcilable conflict with cou nsel, see United States v. Goldberg , 67 F.3d 109 2 (3rd Cir. 1995 ), but does not include defendant’s statements that counsel is unenthused about the case or is inadequately addressing the issue s, see, e.g., United States v. Jennings, 855 F.Supp. 1427, 1441 (M.D.Pa. 1994). Moreover, good cause “cannot be determined solely acco rding to the subjective standard of what the defendant perceive s.” Thomas v. Wainwright, 767 F.2d 738 (11 th Cir. 198 5), cert. denied, 475 U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 345 (1986). The court may deny a request for substitution of couns el if the defen dant’s req uest “pro ceeds from a transparent plot to bring about de lay.” Gallop, 838 F.2d at 108 (citing Morris v. Slappy, 461 U.S. at 13, 103 S.Ct. at 1617); see also Unite d State s v. Ke lm, 827 F.2 d 1319 , 1322 (9 th Cir. 1987).

While the de fenda nt is guaranteed the right to appointed counsel in criminal cases, this right may be waived. In order for a court to accept defendant’s waiver of appointed counsel and allow him or her to proceed pro se, the court must find that the waiver is v oluntary, k nowing , and intellige nt. Faretta v. Califo rnia, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 56 2 (1975); State v. Sm all, 988 S.W.2d 671 (Tenn. 199 9). This should in clude an explana tion to the d efenda nt abou t the inhere nt risks of proceeding pro se and a determination that the defendant is aware of the nature of the charges against him, as well as the possible penalties . See Hendricks v. Zenon, 993 F.2d 664, 670 (9th Cir. 1993 ); Sma ll, 988 S.W.2d at 674. The appellant in this case did not vo luntarily wa ive his right to couns el. Eve n after M asse y and Sayle were allowe d to with draw , Carru thers c ontinu ed to re ques t appo intme nt of co unse l. Although we find that C arruthers did not w aive his righ t to couns el, we do agree w ith the trial ju dge’s conc lusion that C arruth ers forfe ited his right to c ouns el.

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Forfeiture of a right, as it has been defined by the federal courts, means “the loss of a right regardless of the defendant’s knowledge thereof and irrespective of whether the defen dant inten ded to relinquish the right.” United States v. Goldberg , 67 F.3d 1092 (3rd Cir. 1995). It is well-recogn ized that criminal defendants may forfeit certain fundamental constitutional rights. See, e.g., Levine v. United States, 362 U.S. 610, 8 0 S.Ct. 1 038, 4 L .Ed.2d 9 89 (196 0) (right to pu blic trial); Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (right to be present at trial); United States v. Boscaro , 742 F.2d 1335, 1365 (11th Cir. 1984) (right to raise doub le jeopard y defen se); Broo khart v . Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966) (right to confrontation). And while it appears the appellate courts of Tennessee have not yet addressed the specific issue currently before us, several of the federal courts h ave rec ognize d that a de fendan t may a lso forfeit his constitutional right to cou nsel. See United States v. Goldberg , 67 F.3d 1092 (3rd Cir. 1995); United States v. McLeod, 53 F.3d 322 (11th Cir. 1 995); United States v. Travers, 996 F.Supp. 6 (S.D.Fla. 1998). See also United States v. Meeks, 987 F.2d 575, 579 (9th Cir. 1993 ), cert. denied, 510 U.S. 919, 114 S.Ct. 314, 126 L.Ed.2d 261 (1993) (citing Unite d State s v. Ke lm, 827 F.2d 1319 (9th Cir. 1987) and United States v. Leavitt, 608 F.2d 1 290 (9th Cir. 197 9) (“In limited circums tances, a cou rt may force a de fendan t to proceed pro se if his conduct is “‘dilatory and hinders the efficient admin istration of jus tice.’”)); United States v. Fazzini, 871 F.2d 635, 642 (7th Cir. 1989), cert. denied, 493 U.S . 982, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989) (quoting United States v. Moore , 706 F.2d 53 8, 540 (5th C ir.), cert. denied, 464 U.S. 859, 104 S.Ct. 183, 78 L.Ed.2d 163 (1983) (“a persistent, unreasonable demand for dismissal of counsel and appointment of new counsel . . . is the functional equivalent of a knowing and voluntary waiver of cou nsel”)).

Forfeiting the right to counsel is different than voluntarily waiving the right. It can also be distinguished from an implied waiver of the right after having been warned that se lf-repre senta tion m ay follo w if the prohibitory condu ct continu es. See Goldberg , 67 F.3d at 1100. In the case of an implied waiver, the defendant has been cautioned against future conduct and has been informed of the consequences of his actions. In the case of forfeiture, there may have been no warnings given by

39

the court. In both cases, however, the defendant has not voluntarily waived counsel nor indica ted that he wishes to proce ed pro s e.

In the case at hand, after denying Massey’s motion to withdraw b ut prior to this Court’s order on extraordinary appeal, the trial court, referring to some of the above-cited federa l law, sta ted tha t Carru thers h ad tw o optio ns rem aining: either proceed to trial with the assistance of Massey and Sayle or proceed on his own. This statement would sugge st that an im plied wa iver resulte d. How ever, as to Massey, this Court allowed Massey to withdraw shortly after the trial court warned the appe llant, an d there fore, the result is more akin to a forfeiture since counsel was removed without any additional egregious conduct by Carruthers directed at Massey. Regarding Sayle, however, Carruthers did engage in additional egregious conduct resulting in Sayle’s removal. Because the forfeiture of a constitutional right is the most severe sanction, the defendant’s conduct leading up to the forfeiture must be extrem ely dilatory. Id. at 1101. The Goldberg court suggests that an implied waiver (waiver by conduct) could be based on conduct less seve re. Id. We believe, however, that in either case, the forfe iture of counsel or the implied waive r of counsel, since the defendant is not voluntarily giving up one of his basic, fundamental cons titutiona l rights, th e defe ndan t’s con duct m ust be so ext reme ly egregious and dilatory that the trial court has no other option but to force the defendant to proceed pro se. The sanction imposed should be appropriate under the circumstances and commensurate with the nature and extent of the de fenda nt’s condu ct. Again, the asse rtion of th e defe ndan t’s rights must be weighed against the effective and efficie nt adm inistration of ju stice. See Leavitt, 608 F.2d at 1293. The courts canno t permit de fendan ts to abus e their rights to the detriment of the system.

We have not been able to find any capital cases involving the forfeiture of the right to couns el. Cf. Wate rhouse v. State, 596 So.2d 1008 (Fla. 1992) (defendant considered to have forfeited right to counsel during closing argument of resentencing hearing in capital ca se). And w hile we are cognizant of the heightened due process concerns in death penalty cases, we also recognize that courts cannot be handcuffed by the whims of the defendants. Although we are not bound by the

40

decisions of the lower federal courts, after carefully reviewing the record in this case, we are persuaded by the reasoning of these decisions concerning forfeiture of the right to counsel. “We believe th at there m ust be so me lim it to the defe ndant’s a bility to manipulate the judicial system even if he is unknow ing and uninte lligent.” Gallop, 838 F.2d at 110.

Carruthers’ conduct regarding his relationship with Massey has been thorou ghly outlined above. After Massey was removed from the case completely, the court allowed Sayle to remain as “elbow” counsel. The record indicates that the appellant wished to recan t the accu sations h e mad e towa rd Mas sey. The court, howeve r, said enough was enough. As noted above, Sayle was also finally allowed to withdraw completely from the case . Even after Carruthers lost the assistance of one of his two remaining attorneys, he still continued with his conduct toward Sayle. The court had warned Carruthers that he could either cooperate with Massey and Sayle or lose his right to counsel. Apparently, neither the removal of Massey nor the trial court’s w arning p ersuad ed Ca rruthers. W hen Sa yle finally m oved th e court to be allowed to quit as elbow counsel, he made the following statements:

He has expressed the feeling that I am not working for him, and that I have not done anything for him, I’m not going to do anything for him. He suspe cts -- he ’s ma de it cle ar that h e sus pects that I’m working with the sta te in som e capa city. And frankly none of the advice I give h im is followed, and I don’t think there is any intention of following it. And frankly it’s just -- and the abuse ge ts extremely person al.

Personal vilification over the last couple of meetings, and I see no ba sis for being able to continue.

The threats C arruthers made in his letters and c alls to M asse y clear ly threatened physical violence . Com ments about what type of car Massey’s daughter drove and the ability to discover the color of Massey’s toothbrush could be taken no other way. Carru thers also accused Massey of abusing drugs. The comments and accusations Carruthers made toward Craig Morton and Coleman Garrett, were much more personal. Though the threats of physical violence are not as apparent, we do not believe any attorney in Tennessee could work under the abhorrent conditions created by Carruthers. These letters were written in June and July of 1995. Garrett and Morton were relieved as counsel in late July 1995. These letters were in a

41

sealed exhibit in the record. They shall remain sealed, and out of respect to the attorneys involved, we will not reveal the nature of the comments which these attorneys could rightfully consider outrageous.

We have previously quoted extensively from the numerous pretrial hearings.

During the hearing on Garrett and Morton’s motion to withdraw, the trial judge referred to the outrageous accusations Carruthers made against his attorneys. Howe ver, the judge did not recite anything specific from these letters. Nor will we, except to say that n o attorne y shou ld have to tolerate the ho stile an d unc omfo rtable atmosph ere created by Carr uthers. The letters to Garrett and Morton indicate that Carruthers’ conduct was not limited to his relationship w ith Massey . There is simp ly no evidenc e in the rec ord to su pport any of Carru thers’ accusa tions. This Cou rt found on extraordinary appeal that Massey was entitled to withdraw. This was at least the fifth attorney appoin ted to rep resent C arruthers who w as allow ed to withdraw because o f the ho stile en vironm ent cre ated b y Car ruther s. Say le subs eque ntly was allowed to withdraw for similar reasons. We do not believe this history of abuse would have ceased if yet another set of attorneys were appointed.

In fact, the history predates this case. The trial judge noted that in a previous case, Carruthers had gone through four sets of attorneys. In this respect, we take notice of the fact that the de fenda nt wa s con victed of agg ravate d ass ault in 1 990 in a case in whic h he was appointed four successive attorneys due to his continuing dis-satisfaction with cou nsel. The last attorne y was a ppointe d less tha n a mo nth before trial and was the object of the d efend ant’s u nsuc cess ful pos t-conv iction cla im of ineffec tive as sistan ce of c ouns el. See Tony V. Carruthers v. State, 02C01-9505- CR-001 30, Shelby C ounty (Ten n. Crim. App . Apr. 17, 1996 ).

As noted above, a criminal defendant does not have the right to a meaningful relation ship with his counsel, nor the right to choose which counsel shall be appointed. See Morris v. Slappy, 461 U.S . 1, 13-14 , 103 S.C t. 1610, 1617, 75 L.Ed.2d 610 (19 83); United States v. Gallop, 838 F.2 d 105, 1 07 (4th C ir.), cert.

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denied, 487 U.S. 12 11, 108 S.C t. 2858, 101 L.E d.2d 895 (19 88). Furthermore, counsel is not requ ired to blind ly follow the defend ant’s instru ctions. See United States v. Pad illa, 819 F.2 d 952, 9 56 (10th Cir. 1987 ). Counsel, whether appointed or not, are trained and licensed professionals who are req uired to abide by cer tain standards in the performance of their duties. Similarly, the defendant does have the absolu te right to make certain choices during his trial. Counsel, however, cannot simp ly acquiesce to every single demand or request of the defendant which does not affect the exercise of certain absolute rights. The Post-Conviction Procedure Act was created to add ress any of th e defe ndan t’s con cerns abou t coun sel’s represe ntation.

Given the history of this ca se, wh ich ha s bee n thoro ughly summarized above, it is clear to us that C arruth ers w ould not have been satisfied with any attorney and was simply trying to manipulate the system. Even after the court appointed counsel for the mo tion for new trial and ap peal, Ca rruthers wrote several letters to the trial judge insisting that his new attorneys were incompetent. We do not believe the trial court interfer ed with the ex ercise of Car ruther s’ cons titutional rights. After cons iderab le time and consideration, the trial court properly weighed the effective and efficient adm inistration of ju stice aga inst Carru thers’ right to couns el. As the trial court observed, Carruthers was the author of his own predicament. Again, there has to be a point when the courts are permitted to stop the abuse and delay tactics employed by a criminal defendant under the guise of his or her constitutional rights.

We do not take lig htly the result that a defendant has to proceed pro se in any trial, especially one involving a capital offense. Our judicial system could not survive if those accu sed o f crime s wer e literally run over “roughshod.” But while the individual must be protected by the system, the judicial system must also be protected from abuses by an individual. A person charged with criminal acts cannot be allowe d to su bvert th e judic ial syste m. Ap pellan t Carru thers w as, in effect, given one last cha nce fo r assis tance of counsel after Massey was allowed to withdraw; Sayle remained as “elbow” counsel for a period of time until he, too, was allowed to withdraw due to C arruthers ’ conduc t. The removal of Sayle came after Carruthers

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was clearly warned by the trial court that his conduct could result in him being required to proceed pro se at trial. A reversal of a conviction and a rem and for a new trial is done with the appellate court having confidence that the new trial will correct the previous error. We concur with the trial court’s judgment in this case that no matter how man y time s Car ruther s mig ht be a llowed to hav e cou nsel, h e wou ld continue his egregious conduct to force counsel off the case until ultimately, again, he would have to proceed pro se. Carruthers is not entitled to relief on this issue.

The appellant also claims that because he was forced to represent himself the trial judge did not treat him fairly or in the same manner as an attorney. Carruthers argues this was prejudicial error requiring a new trial. Having reviewed each of the numerous instances cited by appellant on appeal in this respect, we do not believe the trial court denied the appellant a fair and impartial trial. When this Court allowed Massey off the case, Carruthers expressed his concerns to the trial judge about proceeding pro se. The judge stated that this was unfortunate but reminded Carruthers that he placed himself in this position. The Court assigned Massey and Sayle as elbow counsel and informed the appellant that they would provide assistance and advice during trial. Shortly thereafter, however, this Court ruled that Massey was to be completely removed from any involvement in this case. Carruthers again asked for appointment of new counsel, but the judge denied this and stated that Sayle would remain to assist. Even at this point, when the appellant had expressed concerns about proceeding to trial without counsel, he still persisted with his antics which eventually led to the removal of Sayle from service as elbow counsel.

While a pro se litigant is not held to the same strict standards as a practicing attorney, see, e.g., Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), because he is proceeding without the assistance of counsel does not mean the court must completely ignore the procedural and substantive rules of law. “This Court does bend over backwards with pro se litigants to make sure they are treated fairly. However, we cannot bend the rules until they break. Otherwise, our system lacks consistency and honesty.” State v. Allen, No. 01C01-9510-CC-00338 (Tenn. Crim. App., Oct. 29, 1996), perm. to app. denied, (Tenn., May 12, 1997). The appellant must realize that although he was conducting his own defense, given the nature of the charges against him he remained in protective custody and was bound by certain limitations not endured by an attorney. These limitations would necessarily be more evident when there were heightened security concerns in a case such as this. Accordingly, because of these

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limitations inherent in his status as a pro se litigant, Carruthers certainly could not exercise all of the privileges of an attorney not confined in a jail cell.

Carruthers enjoyed the services of a jury selection expert and an investigator who could assist in any matters Carruthers could not accomplish from the confines of his cell. The appointment of an investigator, however, was not a substitution for counsel. Carruthers remained a pro se litigant. Immediately prior to the start of trial in April, after a continuance from January, Carruthers requested additional time in order to retain counsel. The trial court denied any further continuances. Contrary to the appellant’s claim that he was denied sufficient time, we agree with the trial judge that this was another in a long line of delay tactics by Carruthers. Furthermore, because Carruthers had the files from his previous attorneys, and because the trial was continued three months after he began to represent himself, there is nothing in the record to suggest that Carruthers did not have ample opportunity to prepare his case.

One of the most fundamental responsibilities of a trial court in a criminal case is to assure that a fair trial is conducted. See, e.g., State v. Burkhart, [541 S.W.2d 365, 371 (Tenn. 1976)]. Generally, the trial court, which has presided over the proceedings, is in the best position to make determinations regarding how to achieve this primary purpose, and absent some abuse of the trial court’s discretion in marshaling the trial, an appellate court should not redetermine in retrospect and on a cold record how the case could have been better tried.

State v. Franklin, 714 S.W.2d 252, 258 (Tenn. 1986).

Again, there are certain perils a defendant may encounter when he represents himself in a criminal trial. Obviously, the better practice would be to proceed with counsel. But as in this case, where the defendant consistently abused his right to counsel and had to proceed pro se, the pro se defendant will not necessarily perform as well as an experienced attorney and may invariably make certain mistakes. However, this alone is not cause for a new trial. As long as the judge ensures that a fair and impartial trial is conducted, the mistakes and ill-advised strategy decisions are merely byproducts of self-representation. We have carefully reviewed each of appellant’s assignments of error during trial. The trial judge in this case was extremely understanding and forgiving. This is not to say that the trial judge allowed Carruthers to conduct his defense without regard for maintaining orderly proceedings. While the judge was more lenient in the application of the rules of law, he did not, nor was he required to, allow Carruthers free reign in the courtroom. Having completely reviewed the record in light of all of Carruthers’ claims in this respect, we find that the appellant was afforded a fair and impartial trial. A new trial is not required.

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Carruthers claims that he was denied the effective assistance of counsel. While a criminal defendant has the right to the effective assistance of counsel, see Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), when the defendant waives or forfeits his right to counsel, he also waives or forfeits his right to the effective assistance of counsel, see State v. Goodwin, 909 S.W.2d 35, 45 (Tenn. Crim. App. 1995). This claim is without merit. Conso lidation of Ind ictments Appe llant Carru thers claim s the trial cou rt erred by not requ iring the sta te to elect upon w hich indictm ents it intend ed to pro ceed u pon at trial. In March 1994, both appe llants w ere orig inally indicted on three counts of first degree murder. Subsequently, in Novem ber 1995, bo th appellants w ere indicted o n three c ounts of espe cially aggravated kidna pping and o ne co unt of e spec ially aggravated robbery. All of these offenses arose from the same criminal episode and involved the same three victims . The tria l date in this matter wa s originally schedu led for Februa ry 1995, prior to the return of the second set of indictments. Howe ver, due mainly to Carruthers’ cond uct reg arding coun sel, the trial wa s eve ntually contin ued several times until the Spring of 1996.

Carruthers contends that the murder indictments should have been dismissed.

Because the state was not forced to elect between the two indictments, according to the appellant’s argument, he “could not reasonably have known whether he was defending murder charges or charges of kidnapping and robbery .” The appellant further claims that if the trial court had followed “normal procedure,” he would have never been tried on the murder charges. The state disagrees and asserts that the appellant was properly tried on all charges.

Tenn.R.Crim.P. 8(a) (emphasis added) regarding mandatory joinder of offenses provides:

Two or more offenses shall be joined in the sam e indictm ent, presentm ent, or information, w ith each offense stated in a sepa rate count, or consolidated pursua nt to Rule 13 if the offe nses are based upon the sa me c ondu ct or aris e from the sa me c rimina l episo de an d if such offense s are known to the appropriate prosecuting official at the time of the return of the indictm ent(s), presentm ent(s), or information(s)

and if they a re with in the ju risdictio n of a s ingle c ourt. A defen dant s hall

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not be subject to sep arate tr ials for m ultiple o ffense s falling within th is subsection unless they are severed pursuant to Rule 14.

The A dvisory C omm ission C omm ents to R ule 8 furthe r provide , in pertinen t part:

This rule is designed to encourag e the disposition in a single trial of multip le offenses arising from the same conduct and from the same criminal episode, and should therefore promote efficiency and economy. Wher e such joinder of o ffenses m ight give rise to an injustice, Rule 14(b)(2) allows the trial court to relax the rule.

The Commission wishes to make clear that section (a) is meant to stop the practice by some prosecuting attorneys of “saving back” one or more charges arising from the same conduct or from the same criminal episode. Such other charges are barred from future pros ecutio n if known to the appropriate prosecuting official at the time that the other prosecution is commenced, but deliberately not presented to a grand jury.

Carruthers’ argume nt ignores the basic premise behind the Rule. The purpose of Rule 8 is to promote efficient administration of justice and to protect the rights of the acc used. The ru le clea rly perm its a sub sequ ently returned indictment to be joined with a previous indictment where the alleged offenses relate to the same criminal episode . See King v. S tate, 717 S .W.2 d 306 (Tenn . Crim . App. 1 986). T his practice, howeve r, does have certain limitations which, as the comments note, safeguard an accused against prosecutorial abuse. For example, a prosecutor cannot simply decide to “save” charges on other offenses arising out of the same conduct until after a trial is had on the original charges. Obvio usly, th is wou ld resu lt in multiple trials and prejudice the defendant. This concern, however, is not present in the case at hand because the subsequent indictments were returned well before the sta rt of trial.

Although the re is no written trial court order cons olidatin g the in dictm ents in this case, not only w as co nsolid ation m anda ted by the rule s, it was clearly understood by the court and all parties involved in this case. As soon as the 1995 indictme nts were re turned, th e appe llants filed a motion to dismiss. After a hearing on December 19, 1995, the trial court denied the motion, and the matter proceeded on all charges. In fact, counsel admitted that they k new th ey wer e going to trial on the murder charges; they moved to dismiss the new charges. Carruthers’ claim that he did not know what charges the state was prosecuting is wholly without merit. Not

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only did the appe llant file a motio n to dis miss the subsequent charges, which was denied, the sty le of the pleadings and orders filed in this case after the return of the 1995 indictments, includ ing letters Carruthe rs wrote to h is attorney , refer to both the 1994 and 1 995 in dictm ents. M oreov er, jury s electio n had alread y starte d in ea rly January 1996, when the state moved for a continuance. There certainly was no confusion as to charges being tried when a jury was again selected and trial finally began three mon ths later in April 1996. A ll of the indictments w ere read to the jury at the b eginn ing of th e trial.

As this Court observed in King,

We do not perceive that any evil results from subse quent ind ictmen ts being returned against a defendant charging him with additional offenses which are based on the same conduct or which arise from the same criminal episode upon which prior indictments have been returned; when the defendant has not been tried on any of the offenses at the time the subsequent indictments are return ed. As previo usly noted, the purpose of Rule 8 is to prevent multiple trials on charges arising from the same conduct or from the same criminal episode except under the circumstances stated in the rule.

717 S.W.2d at 308 . To follo w the appe llant’s su gges tion in this cas e wou ld resu lt in the non-prosecution of three murder charges. Surely this type of windfall was not contemplated by the drafters of the Rules. The appellant has simply failed to show how he wa s unpre pared to defend on kidnapping and robbery charges that stemmed from the same criminal episode in which three individuals were killed.

Grand Jury Proceedings Carruthers also claims that the murder indictments should have been dismissed becau se of “the a dmitted ly questio nable tes timony presen ted to the grand jury in suppo rt” of them . Accord ing to Carruthers, the bad faith of the prosecutor by refusing to call Alfredo Shaw as a w itness at trial, de spite h aving relied u pon h is testimony to sec ure the murd er indic tmen ts, nec essa rily implies that the grand jury process was corrupted. The state denies that the murder indictments are invalid. The appellant also cla ims he should have been entitled to the transcript of these grand jury proceedings.

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As noted above, Alfredo Shaw testified before the grand jury about the circumstances of the murders related to him by Carruthers in jail. The state, howeve r, indicated that it did not intend to call Shaw as a witness during trial because they had some concerns about his credibility due to criminal conduct after the grand jury testim ony. D espite this, Ca rruthe rs him self called Shaw as a witness and Shaw conveyed to the jury the same information he reportedly told the grand jury. Shaw testified that he previously attem pted to recant h is grand jury testimony, but inform ed the jury this was b ecau se his a nd his family ’s safety was threatened by Carruthers. Accordingly, the “admittedly questionable testimony” the appellant complains about was explained away.

Nevertheless, the appellant’s claim must fail. It has long been the rule of law that the sufficiency and legality of the evidence presented to a grand jury is not subject to judicial rev iew. State v. Gonzales, 638 S.W .2d 841, 845 (Tenn. C rim. App. 1982); State v. Northc utt, 568 S.W .2d 636 , 639 (Te nn. Crim . App. 19 78). “[I]f an indictment is valid on its face, it is sufficient to require a trial to de termin e the g uilt of the accused regardless of the sufficiency and/or antecedence of the evidence considered by the grand jury.” State v. Dixon, 880 S.W.2d 696, 700 (Tenn. Crim. App. 1992). Accordingly, the appellant cannot rely on this claim to challenge the validity of the murder indictm ents. See United States v. Calandra , 414 U.S. 338, 345, 94 S.Ct. 613 , 38 L.Ed.2d 5 61 (1974). As the cases indicate, the proper remedy for the app ellant is throu gh a m otion to su ppress the evide nce. See e.g. State v. Culbre ath and M cCallie , No. 02C01-9805-CR-00145 (Tenn. Crim. App., Mar. 9, 1999) (Rule 11 ap plication pending ) (citing United States v. Blue, 384 U.S. 251, 255, 86 S.Ct. 1416, L.Ed.2d 510 (1966)). Here, the evidence the appellant complains about would never have been presented to the trial jury if Carruthers himself did not call Shaw to the witness stand. This issue is without merit. Also without merit is the appe llant’s claim that he should have been prov ided a transcript of the grand jury proceeding in this instan ce. See Rules 1 6(a)(3) an d 6(k), Te nn.R.C rim.P. See also Wes t v. State, 466 S.W .2d 524, 525 (Tenn. Crim . App. 1971 ).

Letters from Carruthers to Maze

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Next, Carruthers claims that the trial court erroneously allowed into evidence two letters the a ppellant w rote to Jim my M aze. In the se letters, C arruthers refers to a mas ter plan for ma king m oney . The s tate alle ged th at this p lan involved the murder of Marcellos Anderson and the theft of his drugs and money. The appellant argues that the letters are too vague, have no evide ntiary v alue, a nd are highly prejud icial.

The adm issibility o f evide nce is within the sound discretion of the trial court, and this Cou rt will not interfer e with that discretion absent a clear showing of abuse. See State v. How ard, 926 S.W.2d 579, 585 (Tenn. Crim. App. 1996),overruled on other grounds, State v. Williams, 977 S .W.2 d 101 (Tenn . 1998 ). Evide nce is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401, Tenn.R.Evid. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair preju dice, c onfus ion of th e issue s, or m islead ing the jury." R ule 403. Of cou rse, sim ply beca use e viden ce is prejudicial does not mean the evidence must be excluded as a matte r of law. See State v. Gen try, 881 S.W.2d 1, 6 (Tenn. Crim. App. 199 3), perm. to app. denied, (Tenn. 1 994). Th e Cou rt must still determine the relevance of the evidence and weigh its probative value against any undue prejudice.

The appellant argues that the letters are irrelevant because they were written too far in advance of the actual murde rs and d o not refe r to the victims or mention how the money would be made. He also suggests that the letters are improper evidence of othe r crimes or wrongdoings. After a jury-out hearing as to whether these letters should be admitted, the trial court made the following findings:

But the proof itself, I think, goes directly towa rd esta blishin g this one additional link, one additional factor in establishing, from the Sta te’s perspective, the existence of a conspiracy. It’s very relevant, in my judgm ent.

It talks about a m aster plan. It talks abou t having the sup port personnel lined up. It talks abo ut having the ma npow er lined up . It talks about “joining with me” and g etting w ith the p rogra m, in effect, and

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“get with me when I get out.” And it makes reference to the fact that he is trying to get transferred to MLRC, Mark Luttrell Reception Center, which then ties in to the testimony that Charles Smith gave, which wou ld -- of having overheard some conversations along these line [sic]

as we ll.

You know, again, the jury may not believe any of it, and that’s up to the jury. O r they m ay believ e it all. But it all ties in, a nd it all tie s together. The letters tie in with what Mr. Smith testified to.

...

And again, this is additionally why these matters need to be heard during the trial and not pretrial, because I now have the be nefit of havin g hea rd Ch arles Smith’s testimony and having heard other testimony now that Mr. Maze is now on the stand, and I can better judge how his testimony fits in with all of the other testimony.

The trial judge clearly explained how the se letters w ere relev ant to the issues being tried, and having reviewed the transcript of the jury-out he aring, we are satisfied that the jud ge did no t abuse his discre tion in adm itting these letters into evidence. Their probative value substantially outweighed any prejudicial effect. This issue is w ithout me rit.

Statement of Co-Conspirator Next, Carruthers claims that the testimony of Hines relating what Jonathan Montgo mery told him was inadmissable hearsay. The state counters by arguing these statemen ts were adm issible under the c o-conspirator exception to the hearsay rule. See Tenn.R.E vid. 803(1.2)(E).

Hearsay, which is “a statem ent, other than one made by the decla rant w hile testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserte d,” Rule 801(c), is not admissible at trial except as provided by the Rules of Evidence or otherwise by law. Rule 802. A statement made by a coconspirator of the defendant “during the course of and in furtherance of the conspiracy” is one of the exceptions to the hearsay rule. Rule 803(1.2)(E). However, before this type of hearsay may be admitted, certain conditions must be met: 1) there must be evidence of a conspiracy involving the defendant and coconspirator; 2) the statement must be made during the pendency of the conspiracy; and 3) the statement mus t be m ade in the further ance o f the cons piracy. State v. Gaylor, 862 S.W.2d 5 46, 553 (Te nn. Crim. Ap p. 1992).

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On the nig ht of the murd ers in th is case , Jona than M ontgo mery told Ch ris Hines that they “got them folks out at the cem etery” an d aske d Hines to take him to the ceme tery. Hine s refused but allow ed Mo ntgom ery to borrow his car. The next morn ing, when the three defendants took Hines to get his car washed, Jonathan Montgo mery again told Hines they killed some people. The appellant argues that the conspiracy in this case ended with the murders, and that these statem ents were not during the course of and in furtherance of the conspiracy. The state disagrees. In its brief, the state argues the first statement by Montgomery was made during the course of the conspiracy because he was seeking a vehicle in which to transport the victims to the cemetery. The second statement, the state argues, was made during the concealment of the conspiracy, and thus admissible under the same hearsay exception.

In State v. Walker, 910 S.W.2d 3 81, 386 (Te nn. 1995), a case wherein several defend ants conspired to rob the victim, who was ultimately killed during the robbery, our Supreme Court held that a statement by a coconspirator made three or four days after the robbery and murde r was ina dmiss ible beca use the consp iracy end ed with the commission of the robbery. The Court found that the statement merely related the circumstances of the robbery and killing and were not made during a further conspiracy to conce al the circu mstan ces of the crime. Id. It would follow then that if there is evidence of a further conspiracy a fter the fact to conceal the crime, any statement by a coconspirator made during the course of and in further ance of this further conspiracy may be admis sible aga inst the de fendan t. Id.; see also State v. Henry, No. 01C01-9505-CR-00161 (Tenn. Crim. App., Feb. 25, 1999) (Rule 11 pendin g).

In Henry, we no ted tha t a con spirac y to co mm it a crim e did n ot histo rically extend to steps ta ken to co nceal the crime u nless pro of establish ed that concealment furthered the objec tives of the crime. Id. (citing Gaylor, 862 S.W.2d at 554 (where conspiracy to commit murder did not end until victim’s insurance proceeds were collected )). We also noted that the Supreme Court in Walker did not explore the relationship, if any, between the Rules of Evidence and T.C.A. § 39-12-

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103, the cons piracy sta tute, whic h provide s that the c onspira cy includ es efforts to conceal the crime or to obstruct justice in relation to it. The Court suggested that the coconspirator exception to the hearsay rule should be examined under the law as it existed prior to the enactment of the conspiracy statute because of subsection (g) of that statute, which p rovides th at “[n]othing in this provis ion is intend ed to m odify the evidentiary rules allowing statem ents of co -consp irators in furth erance of a consp iracy.” However, there may be some relationship between the Rules of Evidence and the criminal s tatute if the de fendan t is specifica lly charge d with consp iracy, wh ich is not the case he re. See Henry.

The question in this case then becomes whether the statements made by Jonathan Montgomery were made either when the defendants were concealing the murders to achieve the objectives of the crimes or duri ng a furth er cons piracy to conceal the murd ers. To fall under this hearsay exception, the statements by the coconspirator must advance in some way the objectives of the conspiracy and not simp ly be “casual conversation” about the crime s. State v. Hutchinson, 898 S.W.2d 161, 17 0 (Tenn . 1994).

We agree w ith the state that Montgomery’s first statement to Hines falls under this hearsay exception. Harris’ Jeep was fo und b urned in Mississippi. The victims were buried alive in a cem etery in M emph is. Trial tes timon y indica ted tha t it would have taken approximately two people to remove the plywood vault that lined the grave site under which the victims were buried. The jury could reasonably have inferred that when Jo nathan M ontgom ery asked Hines to take him to the cemetery, the victims had not yet been buried and Jonathan was needed to assist the other two defendants. Moreove r, the jury could have reasonably inferred since Hines’ car was muddy when returned that it was taken to the cemetery. The testimony and videotape reveal that the cemetery grounds did contain muddy areas. Since Jonathan was n eede d to co mple te the ro bbery , kidna pping s and murd ers, his statement to Hines that he killed some folks and needed a ride to the ceme tery advanced the conspiracy and w as no t mere ly a na rrative s tatem ent to H ines. W hile we find that the sta tement was admissible, we do not agree with the particular

53

argument the sta te adv ance s in support thereof. Montgomery told Hines, “Man, we got them folks out at the cemetery.” Since the victims were allegedly already at the cemetery, we can not agre e with the state th at the car w as nee ded to transport the victims there.

Jonathan Mon tgom ery’s n ext sta teme nt alleg edly came after the bodies we re buried. The state argues that this statement was made during the concealment of the conspiracy. Whether or not the concealment of the crimes furthered the objectives of the original conspiracy, there was certainly evidence of a further conspiracy to conceal the commission of the c rimes . Mon tgom ery co uld have been connected to Hines’ car and the mud from Hines’ car could have been traced to the cemetery where the v ictims were discov ered. T he qu estion , how ever, is whether the second statement furthered in some way the objectives of the conspiracy or was mere ly a narrative statem ent of pas t condu ct. Apparently, while Montgomery and Hines were standing around waiting for the car wash, Montgomery told Hines they killed some people. We do not believe Montgomery made this statement during or in furthe rance of the c onsp iracy to conc eal ev idenc e of the crime s. It is mo re akin to “casual conv ersation” about past events and should not have been admitted. Because Jonathan M ontgom ery’s first statement w as adm issible, we find, how ever, that the erroneous admission of the second statement was harmless. The content of the sec ond sta temen t mirrored that of the first.

Carruthers also claims that he shou ld have been allowed to question Detective Ruby about the content of Jonathan Montgomery’s statements to the police. The state argues that this hearsay testimony was properly excluded. In State v. Walker, 910 S.W.2 d 381, 3 86 (Ten n. 1995 ), the Sup reme C ourt held that a c onsp irator’s “statement to the police can hardly be in furtherance of the conspiracy. It becomes only a narrative statement of past conduct between the conspirators.” The Cou rt noted, however, that a confession to the police may fall under another exception to the hearsay rule, such as a statement against pena l interes t whe n the d eclara nt is unava ilable. Id. at 385.

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In this case, Jonathan Montgomery gave several varying statements to the police. At first, he denied knowing anything about the crimes or being present at the scene. These statements would not fall under this exception to the hearsay rule. In subsequent statements, he stated that he, the two appellants, and Bobby Wilson, a fourth person not identified by any of the witnesses at trial, were all at the scene of the crime. In one statement, he said Bobby Wilson shot one of the victims but he did not know who shot the other (only two of the three victims were shot). Yet, he informed the police in another statement that Carruthers and/or Montgomery shot the victims. Since Jonathan Montgomery placed himself at the scene of the murders, these late r statem ents do appear to fall under this exception to the hearsay rule. Tenn .R.Ev id. 804 (b)(3). H owe ver, w e find th e erron eous exclus ion of th is testimony to be har mless . See T.R.A.P . 36(b). The state ments clearly im plicate Carruthers and would have done more harm to his case.

Evidence of O ther Perpetrators Both appellants argue the trial court limited their ability to establish that other peop le involve d in the Mem phis d rug tra de ha d mo tives to kill the vic tims in this case. Again, the adm issibility of evidence is within the sound discretion of the trial court, and th is Cou rt will not interfere with that discretion absent a clear showing of abuse. See State v. How ard, 926 S.W .2d 579, 585 (Tenn. Crim . App. 1996 ). Evidence is relevan t if it has "any te ndenc y to make the existence of any fact that is of cons eque nce to the de termin ation o f the ac tion m ore pro bable or less proba ble than it would be withou t the ev idenc e." Ru le 401, Tenn.R.Evid. However, relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair pre judice, co nfusion o f the issues , or mis leadin g the ju ry." Ru le 403.

As is commonly recognized, an accused is entitled to present evidence implicating others in th e crime . See Green v. State, 285 S.W. 5 54 (192 6); Sawye rs v. State, 83 Tenn. 69 4 (1885); State v. Spurlock, 874 S.W.2d 602, 612-13 (Tenn. Crim. App. 19 93). Evid ence in s upport o f this third party defense, however, must conform to the general rules governing the ad missibility of evide nce. State v.

55

McAlister, 751 S.W.2d 436, 439 (Tenn. Crim. App. 1987). The evidence must be the type that would be admissible against the third party if he or she were on trial, and the proof must be limited to facts inconsistent with the appellant’s guilt. State v. Kilburn, 782 S.W .2d 199 , 204-05 (Tenn. C rim. App. 1989). Accordingly, hearsay evidence implicating another individual would not be admissible.

Having reviewed the record in light of the appellants’ claims, we find that the trial court did not exclude any re levant ad missible evidenc e tending to implica te others in the murders while exonerating the appellants. The jury was well aware that Marcellos Anderson was hea vily involved in the dru g trade in Mem phis. The jury heard evidence about Anderson’s drug dealings with Joh nson a nd Ada ir. The jury heard that Anderson and Adair had previously been shot by others in drive-by shootings. They heard that An dre Tu cker, th e broth er of on e of the victims in this case, was subsequently killed after the appellants had been arrested on the present charges. As the state notes, this evidence clearly suggests that the killings in the drug world were still happening. The evidence the appellants refer to was either hearsay (testimony that Anderson was in debt to Colombian drug dealers) or cumulative and would have confused the issues and misled the jury (attacks on others involved in the M emphis d rug trade). Aga in, the jury knew this case centered around activities in the drug world and they could reasonably have used their common knowle dge to co nclude that there w ere ma ny playe rs involve d. The evidence in this cas e, how ever, p ointed to the g uilt of the appe llants. T his issue is without m erit.

Competency of Witness Nakeita Shaw Carruthers next claims that the trial court erred by not ordering a competency evaluation of Nakeita Shaw. Prior to trial, counsel representing Carruthers at the time requested an evaluation of Shaw and any records of a history of me ntal treatme nt. The sta te indicate d that it had no reco rd of treatm ent. The trial court denied the request. During the first jury selection, the state asked for a trial continuance because Shaw had checked herself into a hospital for depression and could not appear in court. The court granted the continuance. Carruthers claims,

56

howeve r, that this fact should have been a compelling enough reason for the trial court to exercise its inherent power to order a competency evaluation.

In support of his claim, Carruthers relies upon State v. Garland, 617 S.W.2d 176 (Tenn. C rim. App . 1981). C arruthers ’ reliance is m isplaced . In Garland, this Court specifically held “[t]here is no statutory or case law in Tennessee authorizing a court to compel a prospective witness, not a party interested in the case and present only by c ompu lsion of a su bpoen a, to subm it to a psych iatric exam ination.” Id. at 185. The Court further held that the ruling in Forbes v. State, 559 S.W.2d 318 (Tenn. 1977), that the trial court h as the inhere nt pow er to co mpe l a psychiatric or psychological examination of the victim, was restricted to complaining victims in sex cases. The Court refused to broaden this holding, and neither of the parties in the case before us have cited to any authority which has done so. The case cited by the appellant involves the physical examination of a complainant in a sex cas e. State v. Barone, 852 S.W.2d 216 (Tenn. 1993). It clearly appears that the court ordered examination of witnesses has been limited to complainants in sex cases, and we do not intend to broaden the holding in Forbes any further.

Tenn.R.Evid. 601 provides that every person is presumed competent to be a witness. The A dviso ry Co mm ission Com men ts to this rule sta te that “[v ]irtually a ll witnesses may b e perm itted to testify: ch ildren, mentally incompetent persons, convicted felons.” (Emphasis added). Accordingly, any prospective witness may testify as long as they have personal knowledg e of the matter a bout which they are testifying, Rule 602, and swear they will testify truthfully, Rule 603. The trial judge has the discretion to determ ine whe ther a witn ess is co mpete nt to testify. State v. Caughron, 855 S.W.2d 526, 538 (Tenn. 1993). This determination will not be disturbed on appea l absent a n abus e of discre tion. State v. How ard, 926 S.W.2d 579, 584 (Tenn . Crim. App. 19 96) (overruled o n other grounds). In Garland, this Court h eld:

A lunatic or a person adjudged insane is competent as a witness if, at the time he is offered as a witness, he has sufficient unders tanding to comprehend the obligation of an oath and capable of giving a correct

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account of the matters which he has seen or heard in reference to the questions at issue.

617 S.W.2d at 184.

Desp ite the above-cited authority, the state claims Carru thers h as wa ived th is issue 1) by not renewing his request for a mental examination of Shaw before she took the witness stand and 2) by failing to question her on cross-examination about her hospitaliza tion. See T.R.A.P . 36(a). We agree. Since the trial court did not have the authority to orde r a mental ev aluation of Sha w, and be cause C arruthers failed to preserve the issue, this matter has been waived. Regardless, even if Shaw had been found to be mentally incompetent, she could have testified as long as she was able to understand the obligation of an oath and had personal knowledge of the matter to which she testified . See Caugh ron, 855 S.W.2d at 538. The trial judge appa rently determined that she was comp etent acc ording to the law to testify, and there is nothing in the rec ord to s ugge st he a buse d his d iscretio n. This issue is without m erit.

Photographic Evidence Both appellants claim that the videotape and photographic evidence of the crime scene and de cease d victims were irrele vant, cum ulative, highly prejudicial and erron eous ly admitted to inflame the passion of the jury. They claim this evid ence did not assist the jury in identifying the perpetrators and was cumulative of the oral testimony of the witnesses. Furthermore, the appellants argue the evidence shou ld not have been shown to the jury because the appellants offered to stipulate to the fact that the victims were found bound in the grave site.

The admissibility of relevant photographs and videotapes of the crime scene and victims is within the sound discretion of the trial judge, and his or her ruling on admis sibility will not be disturbed on appeal absent a clear showing of an abuse of that discretion. State v. Banks, 564 S.W .2d 947 , 949 (Te nn. 197 8). See also, State v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994); State v. Van Tran, 864 S.W.2d 465, 477 (Tenn. 1993 ). More over, th e mo dern tr end is to ves t more discre tion in the trial

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judge 's rulings on admis sibility. See Banks, 564 S.W .2d at 949 ; State v. Bailey, 01C01-9403-CC-00105 (Tenn. Crim. App., Nashville, July 20, 1 995); perm. to app. denied, (Tenn. Jan. 8, 19 96).

Evidence is relevant if it has "any tendency to make the existence of any fact that is of conse quenc e to the de termina tion of the a ction more probable or less proba ble than it would be without the evide nce." Rule 401, T enn.R.Ev id. Howeve r, relevant evidence "may be exclud ed if its pr obativ e valu e is sub stantia lly outweighed by the danger of unfair prejudice, confus ion of the iss ues, or m isleading the jury." Rule 403. Of course, simply because evidence is prejudicial does not mean the evidence must b e exclud ed as a matter o f law. See State v. Gen try, 881 S.W.2d 1, 6 (Tenn.. Crim . App. 1993 ). The court mus t still determine the relevance of the visual evidenc e and w eigh its probative value against any undue prejudice. Along these lines, the trial court should be guided by the following matters in determining the adm issibility o f releva nt vide otape and p hotog raphic evidence: the accuracy and clarity of the picture and its value as evidence; whether the picture depicts the body as it was found; the adequ acy of tes timonial e vidence in relating the facts to the jury; and the need for the evidence to establish a prima facie case of guilt or to rebut the defend ant's con tentions. Banks, 564 S.W.2d at 951.

Contrary to the assertion of the appellants, the identity of the perpetrators was not the on ly issue in this case. The s tate also had to p rove to the jury the existence of the ele men ts of all the offenses. The video shows the location of the grave site and the efforts to conceal the presence of the bodies. The trial court limited the number of still pho tograp hs, bu t allowe d in seve ral to show the restraints on the victims. As the s tate observes, the trial judge in this case was very conscientious in his review of the admission of the photographic evidence. The evidence was relevant to the state’s case and assisted the jury in its finding that the state proved each element of the offenses. We do not find that the evidence was cumulative or undu ly prejudicial. Moreover, the admissibility of photograp hic evidence does not depend upon the defendant’s offer to stipulate to the facts depicted therein, espe cially when the prosecution does not agree to the stipu lation. See State v.

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Schafer, 973 S.W .2d 269 , 274-75 (Tenn. C rim. App . 1997); State v. Griffis , 964 S.W.2d 577, 59 5 (Tenn . Crim. App. 1997) (“an accused cannot marshal the evidence of the state by simply offering to stipulate to a fact for the purpose of barring the state from introducing admissible, demonstrative evidence the accused does not want the jury to see”). The trial court did no t abus e its disc retion in this case, the refore, this iss ue is witho ut merit.

Montgo mery also challenges the introduction of photographs of the victims before they were murdered. The appellant cites State v. Dicks, 615 S.W .2d 126, 128 (Tenn. 1981). However, in State v. Nes bit, 978 S.W.2d 872, 901-02 (Tenn. 1998), the Supreme Court adopted that portion of this Court’s opinio n whic h held that a photograph of the victim while alive was relevant to the state’s case-in-chief in proving that the person murdered was the same person name d in the ind ictmen t. We find this evidence was not cumulative and was properly admitted.

Sentencing on Non-capital Offenses Carruthers next contends that he was denied his right to be present at the sentencing hearing on the robbery and kidnapping convictions and he, therefore, reques ts a new senten cing hea ring. The state claim s he wa ived his righ t.

The trial judge originally scheduled the non-capital sentencing hearing for May 20, 1996. However, because of some confusion regarding transportation, the appellan ts were not brought to Memphis from the Riverbe nd Ma ximum Security Facility outside of Nashville. At this point, the court had already appointed counsel to represent Carruthers at the hearing on the m otion for ne w trial a nd on appe al. The court reset the sentencing hearing for M ay 28, an d inform ed cou nsel for bo th appellan ts of this continuance . On May 28, the court decided , becau se of sec urity concerns, that the sentencing hearing would be held at Riverbend the next day. The court again info rmed Carruthers’ counsel of this change, and stated that although they could ap pear, the y would not have an active role in the h earing. The record does n ot reflect, ho weve r, whethe r the app ellants w ere pers onally no tified.

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On May 29, the trial judge, along with the prosecutors and counsel for Montgomery, appeared at Riverbend for the hearing. Just prior to the start of proceedings, the warden informed the judge that Carruthers said he was not going to participate . The appellants were apparently located in a different area of the prison than where the hearing took place. Counsel for Montgomery also informed the judge that Montg omery was su rprised the hearing was go ing to take place and that he, too, was not going to p articipate. Counsel stated that Montgomery was not going to participate becaus e of the presen ce of the me dia. The judge , however, refused to exclude the media from the proceeding. The judge again asked the warden to inquire wheth er Carru thers wa nted to be presen t. Carruthers, how ever, gave no reason other than to say he was not going to participate. The judge then decided he was going to proceed without the presence of either appellant since they had volun tarily elected to remain away. T he judg e stated th at the app ellants knew this hearing was going to take place, however, he admitted they may have been surprised about its location.

T.C.A. § 16-1-105 (1998 supp.) provides that

If for any caus e, in the op inion o f the co urt dee med sufficie nt, it is impracticable or inconv enient for a ny cou rt to hold its se ssion at the courthouse , or place design ated by law, it sha ll be lawful for the court to hold its sess ion, or a ny pa rt of its se ssion , at any other ro om w ithin the limits of the county seat, or at any other room op en to th e pub lic within an institution of the department of correction or the department of children’s services if the court deems it necessary, and all its proceedings at such place, whether in civil or criminal cases, are as valid as if done at the courthouse.

The trial court determined that it was necessary for security reasons to hold the sentencing hearing on the non-capital offenses at the prison outside Nashville. The room used in the prison was open to the public, as the media w as there, and th ere appea rs to be no error in the tria l court’s judg ment in this respe ct.

Criminal defen dants have the righ t to be p resen t at all sta ges o f the trial, including sentencing. T enn.R.Crim .P. 43(a). See also State v. Muse, 967 S.W.2d 764, 766-67 (Tenn. 1 998). Th is right, however, may be wa ived. Ru le 43(b); Muse, 967 S.W.2d at 767-68 (citing State v. Kirk, 699 S.W.2d 814 (Tenn. Crim. App.

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1985)). “An accused who has notice of the time and place of the trial and of his right to attend, and who nonetheless voluntarily absents himself, will be deemed to have waived his right to be prese nt.” Kirk, 699 S.W.2d at 819. Rule 43 also provides that a defen dant c an wa ive his right to appear if, after present initially, he “[v]olun tarily is absen t after the trial ha s com menc ed.”

In Muse, a case discussing whether or no t a defendant may waive the right to be presen t during jury voir dire, our Supreme Court acknowledged that there is a long-standing presumption against the waiver of fundamental constitutional rights. 967 S.W.2d a t 767. The C ourt held that waiver would not be presumed from a silent record, and that in orde r for a de fenda nt to w aive h is or her right to be present during voir dire, the defendant must personally waive the right in writing or on the record in open court. Id. at 768. In Muse, the trial court rescheduled the jury selection at coun sel’s request, but the d efendant w as personally unaware of this. When jury selection began a day earlier than originally scheduled, the defendant did not appear. The Sup reme C ourt remanded for a new trial because the defendant was not informed of the rescheduling.

In this case, the trial judge admitted Carruthers may not have known that the court planned on visiting the prison. However, the judge stated that both ap pellants were aware that a sentencing hearing was going to occur. In fact, the hearing had origina lly been scheduled the week prior in Memphis. The judge also made the following comments for the record:

Obviously, since there has already been a thorough sentencing hearing back in April, on April 26th, at the time that Mr. Montgomery and Mr. Carruthers were found guilty by the jury on the murder charges, the -- all three sides in the case, the state and both defendants, had an opportu nity to present any and all proof they cared to at that time, w ith regard to sentencing issues. . . . And so I would assume that all three parties involved at that sentencing hearing would have presented any and all relevant proof that they had available to them at that time with regard to sentencing issues in this case.

...

Now, on Mr. Carruthers’ behalf, since he’s not represented by coun sel, it had been my intention to addres s him in c ourt toda y to see if there was any additional proof that he wanted, that he perhaps was missing out on since the matter was being held here. Since he has not graced us with his presence, I haven’t h ad the o pportun ity to address him today.

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After makin g the latter c omm ents, the judge took a short recess to allow counsel to confer with Montgomery and to allow the warden to inform Carruthers that this was his opportu nity to ma ke a state ment o n his ow n beha lf, if he so chose. Counsel for Montgomery returned from their conference and again informed the judge that Montgo mery was o bjectin g to this hearin g bec ause it was n ot bein g held in a pub lic place . Coun sel spe cifically s tated th at, to the ir knowledge, they would not have called any a ddition al witne sses at this h earing . The w arden once again informed the judge that Carruthers declined to participate. The warden made at least three attempts during the hearing to secure Carruthers’ presence.

Given that the re had previo usly been an ex haus tive se ntenc ing he aring in this case, the trial judge stated that he did not believe there would be any additional evidence presented by defen se tha t wou ld not have been cumulative. Of course, as provided by the Criminal Sentencing Reform Act of 1989, both the state and the defendant have the right to pres ent relevant evidence at the sentencing hearing. See T.C.A . §§ 40 -35-2 03(a) ; 40-35 -209( b). This includes the opportunity for the defendant to make a statement on his ow n beha lf. § 40-35-2 10(b)(6) . Cf. State v. Stephenson, 878 S.W.2d 530, 550-52 (Tenn. 1994) (capital defendant not allowed allocution during capital sentencin g hearing). The trial court, however, would have been perm itted to e xclud e any evide nce th at had alread y bee n pres ented earlier in the proceedings. § 40-35-209(b). Similarly, in imposing the sentences for the kidnapping and robbery convictions, the judge was required to consider anything already in the record from the trial to date, including evidence from the capital senten cing hea ring. § 40-3 5-210.

Counsel for Montgomery indic ated they were not aware of any additional witnesses. And w hile the judge thoug ht it was highly unlike ly Car ruther s wou ld produce any, the judge was willing to allow Carruthers the opportunity to present any additional proof as well as make a statement on his own behalf. The record is silent as to whether Carruthers possessed any additional proof. If Carruthers had appeared at the hearing and requested a continuance so that he could forewarn any relevant witnesses they would need to travel to Nashville, the trial court could have

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granted a continuanc e. Howe ver, because we believe Carruthers waived his right to be pre sent, there was no error by th e trial court in th is respec t.

The facts of this case ca n readily be distingu ished from those in Muse. In Muse, beside not knowing about the change in dates, the defendant did not appear in court on the day tria l comm enced . Cf. State v. Robinson, No. 03C01-9512-CR- 00410 (Tenn. Crim. App., July 16, 1997). In the case at hand, although the defendant may not have known about the change in time and place of the hearing, the defendant was given every opportunity to appear before the judge at the prison. This is not a case where the trial judge was going to proceed without even making an effort to secure the presence of the defendant. The defendant was housed in the same facility where the hearing took place, and the warden informed him on at least three separate occasions that the judge was going to proceed without him if he chose not to appea r. Carruthers did n ot personally appear before the judge and waive his right to be presen t. Howeve r, the record before us clea rly reflec ts that th is was his intention. We believe this scenario is akin to the situation where a defendant is initially present in the courtroom and then “[v]oluntarily is absent after the trial has comm enced .” See Rule 43. Carruthers obviously knew the sentencing hearing was about to begin but voluntarily chose not to participate. Given the discussion above, we find that Carruthers waived his right to be present at the sentencing hearing.

Prosecutorial Misconduct Both appellan ts claim the prosec utors m ade im proper a rgume nts during b oth phas es of th e trial w hich re quire a rema nd for a new tr ial.

As is commonly recognized, closing arguments are an important tool for the parties during the trial process. Consequently, the attorneys are usually given wide latitude in the sco pe of their a rgume nts, see State v. Bigbee, 885 S.W.2d 797, 809 (Tenn. 1994 ), and tr ial judg es, in tu rn, are acco rded w ide dis cretion in their control of those ar gume nts, see State v. Zirkle , 910 S.W.2d 874, 888 (Tenn. Crim. App. 1995). Such s cope a nd discre tion, how ever, is no t comp letely unfe ttered. Argument must be temperate, based upon the evidence introduced at trial, relevant

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to the issues being tried, and not otherwise improper under the facts or law . Coker v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). The test for determining whether the prosecuting attorney committed reversible misconduct in the argument is “whether the improper conduct could have affected the verdict to the prejudice of the defend ant.” Harrington v . State, 385 S.W.2d 758, 759 (Tenn. 1965). The following factors have been recog nized to aid th e Cou rt in this determination: 1) the conduct complained of, viewed in light of the facts and circumstances of the case; 2) the curative measures undertaken by the court and the prosecutor; 3) the intent of the prosecutor in making the improper statement; 4) the cumulative effect of the improper cond uct an d any other e rrors in the record; and 5) the relative strength or weak ness o f the case . State v. Bigbee, 885 S.W.2d 797, 809 (Te nn. 199 4); State v. Buck, 670 S.W .2d 600, 609 (Tenn. 198 4).

Initially, Carruthers claims that because he was representing himself the trial court should have taken a more active role in guarding against prosecutorial misconduct during argument. As we noted earlier, there are certain perils a defendant faces when repres enting hims elf at trial. Know ing whe n to object during argument obviously is one of those perils. While the trial court can intervene sua sponte and take cu rative meas ures whe n the argum ent becom es blatantly impro per, see, e.g., State v. Cau thern, 967 S.W.2d 726, 737 (Tenn. 1998), the trial court must exercise its discretion and should not exert too much control over the arguments. The judge does not serve as a pro se defendant’s counselor during trial. The judge shou ld intervene only when requested or when the judge deems proper in the interest of justice.

Carruthers refers to several instances of allegedly improper argument that occurred during the guilt pha se of the trial. He claims the prosecutor imp roper ly characterized him as a conniver and liar and accused him of manipulating the jury. Evidence was introduced that Carruthers was the mastermind behind these crimes, and therefore, any referenc e by the s tate in this regard wa s not improp er. Howev er, the prosecutor may not comment unfavorably upon the defendant’s pro se representation of himself or the presen tation of his c ase. See Coke r v. State, 911

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S.W.2d 357, 368 (Tenn. Crim. App. 1995). Nor should a prosecutor express his or her personal opinion about the credibility of witnesses, un less the com ments are grounded upon evidence in the rec ord. See State v. West, 767 S.W.2d 387, 394 (Tenn. 1989). M oreove r, a prosecutor is strictly prohibited from commenting on the defen dant’s decision not to testify. Coker, 911 S.W.2d at 368. This would include his decision not to pres ent any proof. How ever, a prose cutor's statement that proof is unrefuted or uncontradicted is not an improper comment upon a defendant's failure to testify. State v. Thomas, 818 S.W .2d 350, 364 (Tenn. Crim . App. 1991 ); State v. Coury, 697 S.W.2d 373, 378 (Tenn. Crim. A pp. 1985). The prosecutor shou ld also refrain from calling the defen dant de rogatory name s. State v. Cauthern , 967 S.W .2d 726, 737 (Tenn. 199 8).

In this cas e, it was improper for the prosecutor to call the appellant names, such a s a liar. However, we do not find improp er the co mm ents telling th e jury to watch out for “pitfalls” and “mind games” and not to succumb to a “guilt trip.” The prosecutor was simply making reference to the strength of the state’s proof. Also, the prosecutor should not have insinuate d that Ca rruthers w as trying to manip ulate the jury or comment that Carruth ers did no t call any cre dible witne sses on his beha lf. Contrary to Carru thers’ claim , howe ver, we d o not be lieve thes e com ments impro perly referred to Carruthers’ failure to testify. Similarly, Carruthers complains about the prosecutor’s statements that Carruthers was trying to manipulate the media. Howe ver, Alfred o Shaw testified abo ut this. Moreo ver, the sta te is permitted to argue reasonable inferences from th e evid ence in the reco rd. Coker, 911 S.W.2d at 368. The sta te’s argume nt in this respect wa s not improp er. Carruthers also claims the state’s reference to the “second part” of Carruthers’ master plan mentioned in the letters he wrote to Maze was improper. Since this was brought up by the ev idenc e, we do no t think th is comm ent w as improper. Carruthers also claims the prosecu tor’s statement to the jury that they have a responsibility to the victims’ family improperly appealed to the emotions and sympathies of the jury. See State v. Bigbee, 885 S.W .2d 797, 809 (Tenn. 199 4). We agre e. Finally, Carruthers contends the prosecutor’s comment that there is a “gap” in the evidence was improper. Carru thers c laims this wa s an im prope r inferen ce on his failure to testify.

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We disagree. The state’s case was based on circumstantial evidence and the prose cutor’s comment in this respect merely informed the jury that not all the pieces to the p uzzle were prese nted a t trial.

Both appellants complain about certain comments made by the prosecutor during argument at the penalty phase of trial. Both appellants take issue with the prose cutor’s mentio n of the ten comm andm ents in the Bible. Just recently, in State v. Middlebrooks, 995 S.W.2d 550, 559 (Tenn. 1999), our Supreme Court made the following comm ent rega rding this typ e of argu ment:

We have condemned Biblical and scriptural references in a prose cutor’s closing argument so frequently th at it is difficult not to conclude that the remarks in this case were made either with blatant disregard for our decisions or a level of astonishing ignorance of the state of law in this regard.

This argument by the prosecutor was obviously improper under the decisions of our Supre me C ourt.

Both appellants also contend that the state made improper victim impact argum ent. Victim impact evidence and argument during sentencing are not prohibited by the co nstitution o r statute. See State v. Nes bit, 978 S.W.2d 872 (Tenn. 1998). Howe ver, the arg umen t must be relevant to the spec ific harm to the vict im’s family , Middlebrooks, 995 S.W.2d at 558, and must be limited to “information designed to show those unique characteristics which provide a brief glimpse into the life of the individual who has been killed, the contemporaneous and prospective circumstances surrounding the individual’s death, and how those circumstances financially, emotionally, psychologically or physically impacted upon members of the victim ’s family.” Nesb it, 978 S.W.2d at 891 (footno te om itted). Th e “victim ’s fam ily members’ characterization and opinion about the crime, the defendant, and the approp riate sentence v iolates the Eighth A mendm ent.” Id. at 888 n.8 . Again, the prosecutor cann ot sim ply ap peal to the em otions and s ymp athies of the ju ry wh ile invoking victim impact argum ent. Id. at 891 (citing State v. Bigbee, 885 S.W.2d 797 (Tenn. 1994)). We agree with the appellants that the prosecutor im properly commented that the family members who testified did not cry and had remained

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quiet during trial. Also improper was the comment that the families “trust in you [the jury].” The family m embers could have testified that they missed the victims (emotional impact of victim’s d eath), and the comment by the prosecutor that they chose no t to solicit this testimony wa s not improp er.

Montgo mery also claims that the prosecutor improperly asserted his personal opinion into closing argument. While a prosecutor may not express a personal opinion or belief, comments during argument prefaced by phrases such as “I think” or “I subm it” are unlike ly to be ad judged opinions . Coker v. State, 911 S.W.2d 357, 368 (Tenn. C rim. App . 1995). A ccording ly, we do not believ e the com ments Montgomery complain a bout which contain these phrases w ere improp er. Montgomery asserts that the prose cutor improp erly read to the jury a d ictionary definition of the term “mitigate” and improperly asked the jury to use that definition to determine whether any mitigating evidenc e was p resente d. Acco rding to Montgomery, the prosecutor erroneously told the jury that mitigating evidence is that which mitigates the crime , rather tha n that wh ich mitiga tes the pu nishm ent. Although the prosecutor may have not clearly provided the jury with the legal meaning of mitigation , the trial judge prope rly instru cted th e jury a nd the jury is presumed to have fo llowed th ose instru ctions. State v. Cribbs, 967 S.W.2d 773, 784 (Tenn. 1998). Finally, we agree with the state that the death penalty statute does not limit the state’s final closing argument to rebutting that which the defendant argued. T.C .A. § 39-13-20 4(d).

We find that the appellants have waived any cha llenge reg arding th e majo rity of the comments about which they complain because they failed to voice a contemporaneous objection. T.R.A.P. 36 (a); see also State v. Little, 854 S.W.2d 643, 651 (Te nn. Crim . App. 19 92). Non etheless , we hav e review ed the e ntire argum ents of all parties, and considering the factors listed above, we find that the relative ly few improper comments by the prosecutors did not affect the verdict to the prejudice of the appellants. This issue is without merit. However, we remind counsel of the warnings recently related by our Supreme Court in State v. Middlebrooks, 995 S.W .2d 550 , 561 (Te nn. 199 9):

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Those who interpret these cases as precedent for the view that improper closing argume nt and m iscon duct o f this na ture w ill be he ld harmless error in all cases do so at their own professional peril and at the risk that the misconduct, even if it does not prejudicially affect the verdict, may be deemed to be prejudicial to the judicial process as a whole a nd there fore requ ire a new trial or sente ncing he aring.

Gag Order Next Carruthers claims the trial court erred by issuing a gag order before the start of trial. Carruthers contends the gag order, which prevented any of the attorneys or pro se litigants from making extra-judicia l statements about the case, adversely affected his ability to present a defense. Specifically, Carruthers claims that the order may have prevented an important witness from coming forward.

On March 4, 1996, the trial court issued an order as follows:

The Constitutions of the United States and the State of Tennessee guarantee defendants in all criminal cases due process of law and the right to a fair an d impartial jury. It is the duty of the trial court to see that every defendant is afforded all his constitutional rights.

In order to safeguard those rights, this Court is of the opinion that the following rule is necessary to constitutionally guarantee an ord erly and fair trial by an impartial jury. Therefore, this Court orders the following:

All lawyers participating in this case , including a ny defe ndants proceeding pro se, the assistants, staff, investigators, and employees of investiga tors are for bidden to take par t in interview s for pub licity and from makin g extra-jud icial statem ents ab out this ca se from this date until such time as a verdict is retu rned in this case in o pen co urt.

Because of the gravity of this case; because of the long history of concerns for the personal safety of attorneys, litigants and witnesses in this case; because of the potential danger - believed by this Cou rt to be very real and very present - of undermining the integrity of the judicial system by “trying the case in the media” and of sullying the jury pool, this Court feels compelled to adopt this extraordinary pretrial measure. State v. Hartman , 703 S.W .2d 106 ([Tenn.] 1985), and State v. Green, 783 S.W .2d 548 ([Ten n.] 1990).

Much of the procedural history of this case has been outlined previously, including the numerous threats to attorneys and the death of one of the co- defendants. As Carruthers acknowledges in his brief, “[t]his trial was charge d with emotion from start to finish. There were allegations of gang affiliations and testimony of large scale narcotics dealings. The courtroom was guarded by S.W.A.T. team mem bers a nd by Sher iff’s deputies who w ere auth orized to search those entering the cou rtroom.” Furthermore, as the trial judge stated in a n in came ra

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hearing during the middle of trial on April 20, 1996, a deputy jailer had been gunned down in the jailer’s driveway the day before and the judge expressed concerns that there might be a connection to this case. He also noted that one witness fled and could not be found after reading about this case in the newspaper. Further, the judge indica ted tha t two w itnesses who already testified stated that appellant Montgo mery threatened to kill them if they talked about this case. Alfredo Shaw even testified that Carruthers tried to make arrangements to have Shaw recan t his testimony in front of the media.

This case was the subject of another interlocutory appeal to this Court, whe rein we he ld that the trial court’s gag order on the media precluding them from printing the nam e of a witness who already testified was an unconstitutional prior restra int. State v. Mon tgomery , 929 S.W.2d 409 (Tenn. Crim. App. 1996). Accordingly, the m edia was not exclud ed from these pr oceed ings and was free to report anything about the case, including the events that transpired in the courtroom. The gag order at issue here was directed at the attorneys, including the pro se litigant. The trial court properly concluded that there was no problem prohibiting the attorneys or their representatives from speak ing abo ut the cas e. State v. Hartman, 703 S.W .2d 10 6, 116 (Tenn . 1985 ). The tw ist in this c ase, h owe ver, is that Carruth ers wa s repres enting him self during trial.

As we stated earlier, “one of the most fundamental responsibilities of a trial court in a crim inal ca se is to a ssure that a fa ir trial is conducted.” State v. Fran klin, 714 S.W.2d 252, 258 (Tenn. 1986). And while prior restraints o n speech are gene rally suspe ct, see, e.g., State v. Mon tgomery , 929 S.W.2d 409 (Tenn. Crim. App. 1996), there are instances where the exercise of free speech mus t yield to the most fundament of all freedo ms, the right to a fair trial. See The News-Journal Corp. v. Foxman, 939 F .2d 14 99, 15 12 (11 th Cir. 1 991). T he righ t to a fair tria l is guaranteed, not only to the accused, but also to the state as the representative of the people. See, e.g., United States v. Ford, 830 F.2d 596, 603 (6th Cir. 1987) (Krupansky, J., concurring). Carruthers cites United State v . Ford, which provides that there m ust ex ist a “cle ar and prese nt dan ger” be fore a tr ial cou rt may impose

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a prior restraint on a cr imina l defen dant’s spee ch du ring trial. Other federal circuits, however, apply a lower standard when evaluating restrictive orders imposed upon criminal defendants; that is, whether there is a “reasonable likelihood” that a fair trial will be lost ab sent the re striction on speec h. See The News-Journal Corp., 939 F.2d at 1515 n.18.

Regardless of which standard is applied in this case , we agre e with the state that there was at least a spe cific clea r and p resen t dang er that a n unfa ir trial wo uld occur if the speech of the defendant was not curtailed. Since this case garnere d substantial med ia atten tion in the Memphis a rea, the trial judg e was rightly concerned about the media ’s influence on the po tential jury pool. The trial judge remarked about the several media interviews given by Carruthers, his investigators, as well as one of the prosecutors. Furthermore, as demonstrated through the testimony of Shaw, Carruthers appa rently threatened Shaw and made arrange ments through one of his investigators to have a news reporter interview Shaw about recanting his story. Obviously, if a criminal d efenda nt is allowe d to ma nipulate the witnesses and media during trial, the guarantee of a fair trial is nonex istent. Aside from this, as already made evident, the trial judge was also properly concerned about the safety of all involved. The order was specifically drawn to curtail the particular dangers of an unfair trial in this case. That is, the judge did not want any attorney, staff member, investigator or pro se litigant to have any exchange with the media. Given the entire record of proceedings in this case, we find no problem with the trial court’s ga g order. See Pedini v. Bowles, 940 F.Supp. 10 20 (N.D.Te x. 1996); United States v. Hill, 893 F.Supp. 1039 (N.D.Fla. 1994). Moreover, although appa rently not considered by the trial judge, we do not believe there were any reason able altern atives to th e gag o rder. See, e.g., The News-Journal Corp., 939 F.2d at 1513 n.16.

Carruthers’ main co mplain t about the gag order is that he may have been prevented from discovering the presence of an otherwise unknown witness. Again, the med ia was given free rein to cov er the p rocee dings at trial. The public was certain ly aware of what was going on, and we do not believe an interview by

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Carruthers would have produced different results than were achieved with the existent media coverage. Accordingly, even if the gag order was invalid, given the nature of Car ruther s’ com plaint, it d id not a ffect the fairnes s of the trial.

Severance Montgo mery claims the trial court erred in denying his motions to sever the trial of the tw o defe ndan ts. Spe cifically, h e claim s he w as un duly p rejudic ed in th is joint trial b ecau se ce rtain statements by Carruthers would not have been admitted against him in a separate trial and because of the manner in which Carruthers represented himself at trial. The state contends the trial court acted properly.

The decision wheth er to gran t a motion to sever defendants lies within the discretion of the trial judge and that decision will not be overturned on appeal unless the movin g party w as clearly prejudice d. State v. Hutchison, 898 S.W.2d 161, 166 (Tenn. 1994). A motion to sever may be granted before trial if “it is deemed approp riate to prom ote a fa ir determination of the guilt or innocenc e of one or m ore defend ants.” Tenn.R .Crim.P . 14(c)(2)(i). A motion to sever made during trial may only be granted when the defend ant to be s evered conse nts and it is necess ary to achieve a fair determination of guilt. 14 (c)(2)(ii). Befo re a defe ndant is e ntitled to a reversal, the record must show that the “‘defen dant w as clea rly prejudiced to the point that the trial court’s discretion ended and the granting of [a] severance became a judicial duty.’” State v. Burton, 751 S.W .2d 440, 447 (Tenn. Crim . App. 1988 ).

“It may have been to the interest of each [defendant] that he be tried alone, but the orders of the court are molded to protect rights, and not merely the interests, of persons accused of crime. The state, as well as the persons accused, is entitled to have its rights protected, and when several perso ns are charged jointly with a single crime, we think the state is entitled to have the fact of guilt determined and punishment assessed in a single trial, unless to do so would unfairly prejudice the rights of the defend ants.”

State v. Coleman, 619 S.W .2d 112, 116 (Tenn. 198 1) (quoting Woo druff v. Sta te, 51 S.W.2d 8 43, 845 (Te nn. 1932)).

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Montgo mery conten ds that lette rs Carru thers wr ote to Jim my M aze, a statement Carru thers m ade to Jona than M ontgo mery in Maze’s presence, and the statem ents of Jonathan Montgomery to Chris Hines would not ha ve be en ad miss ible against him in a separate trial because the evidence was insufficient to establish a conspiracy at the time the state ments were made. We disagree. We have previo usly discussed the two statements by Jonathan Montgomery to Chris Hines and found that the first statement was properly admitted under the co-conspirator exception to the hearsay rule. The proof at trial clearly connected James Montgomery to Hines’ car. We also believe, contrary to Montgomery’s insistence, that Carruthers’ letters and statements to Jimmy Maze would have properly been admitted against M ontgom ery und er this sam e exce ption to the hearsa y rule. W e previo usly stated that the trial court properly admitted these letters into evidence against Carruthers. And while the letters do not specifically mention Montgomery, other evidence introduced at trial clearly connected Montgomery to Carruthers’ plan. In fact, while Carruthe rs and Jonathan Montgomery were riding around with Maze in December 1993, Carruthers mentioned that the y wou ld nee d to wa it until James was released from prison before kidnapping Anderson. And although the state must show the existence of a conspiracy in o rder to introduce h earsay of a co -conspirator, the trial judge may permit independent proof of a conspiracy after the admission of the hearsa y eviden ce. State v. Hodgkinson, 778 S.W.2d 54, 61 (Tenn. Crim. App. 1989) (citing Solomon v. State, 76 S.W.2d 331 (Tenn. 1934)). However, even if the letters and statements to Maze would not have been adm issible against Mo ntgome ry in a sep arate tr ial, the error w as harm less in this c ase. State v. Hutchison, 898 S.W.2d 161, 16 7 (Tenn . 1994). T he evide nce wa s otherw ise sufficien t to sustain the convictions of Montgomery.

Similarly, Montgomery also insists that Charles Ray Smith could not have overheard Carruthers and Montgomery discuss the conspiracy when Marcellos Anderson returned Carruth ers to priso n from fu rlough because the prison records reflect that Carruthers did not take furlough after Montgomery was transferred to the Mark Luttrell Reception Center. However, the records do reflect that Carruthers, Montgo mery and Sm ith were all hou sed a t the sa me tim e in the Reception Center

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during the early part of November 1993. Moreover, Andre “Baby Brother” Johnson testified that Smith warned him and Anderson to watch out for Carruthers and Montgomery. Both Johnson and Terrell Ad air were also pre sent when Montgom ery and Carruthers mentioned they had so meone already targeted . Also, Montgo mery told Adair th at if the p olice d id not h ave a body , there c ould b e no c rime. T his matched statements attributed to Carruthers. Accordingly, Montgomery’s complaint in this re spec t mus t fail.

Montgo mery further claims a severance should have been granted because the manne r in which Ca rruthers conduc ted his defen se pre judice d Mo ntgom ery’s case. Montgomery complains about Carruthers’ mannerisms in front of the jury as well as a few of the que stions he asked some witness es. He also suggests that Alfredo Shaw w ould not have been called to te stify against him in a s eparate trial and the fact tha t Carruth ers called him to testify u nduly prejudiced his case because it was “so me of th e mos t dama ging evid ence o f the entire trial.”

When two defend ants are on trial toge ther, there will invariably be evidence adm issible against one that would otherwise not be admissible against the other. This factor alone, however, does not preclude the state from going forward in a trial on two or m ore defe ndants . In cases wh ere evidence would be admissible against one defendant but not the other, the trial court may properly instruct the jury that they are only to co nsider the evidenc e adm issible aga inst each defend ant sep arately. In the present case, although certain evide nce, s uch a s Alfred o Sha w’s testimony, may not have been admissible against Montgomery, the trial court in this case instructed the jury that each appellant was “entitled to have their cases decided on the evidence and the law which is applicable to them.” The jury is presumed to have followed the cour t’s instruction . State v. Little , 854 S.W.2d 643, 648 (Tenn. Crim. App. 1992). However, even if the trial judge in this case should have excluded Shaw ’s testimony or severed the trials, given the other convicting evidence introduced, we do not believe Montgomery was unfairly prejudiced by Carruthers’ questioning of Shaw . See State v. Hutchison, 898 S.W.2d 161, 166-67 (Tenn. 1994).

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Furthermore, counsel or a p ro se litigan t has a n oblig ation o nly to represent the interests o f his or her c lient or him or herse lf. See State v. Brown, 644 S.W.2d 418, 421 (Tenn. Crim. App. 1982). Similarly, counsel or a pro se litigant has no obligation to protect th e interests of a co-de fendan t. Id. In fact, it is permissible for one defendant to attempt to place the blame during trial on his or her cod efenda nt. See State v. Ensley, 956 S.W .2d 502 , 509 (Te nn. Crim . App. 19 96). Each defendant has discretion to develo p his or he r own trial strategy. Having reviewed each of Mon tgom ery’s com plaints regard ing the man ner in w hich C arruth ers ha ndled his case, we do not believ e Carru thers’ con duct viola ted Mo ntgom ery’s rights so as to warrant a severa nce or a mistrial. See id. Accordingly, for the reasons stated herein, this issue is w ithout me rit.

Testimony of Benton West and Nakeita Shaw Montgo mery next claims that the court improperly allowed hearsay testimony by Benton West and failed to give limiting instruction s rega rding N akeita Shaw ’s prior incon sistent state ment.

At trial West testified that Nakeita Shaw told him she thought Anderson and Tucker were being kid nappe d and th at she ho ped no thing hap pened to them. The first statement, that Shaw thought the victims were being kidnapped, was solicited during the prosecutor’s direct examination of West. The second statement was initially solicited during Montgomery’s cross exam ination. Both statem ents were hearsay, however, neither Carruthers nor counsel for Montgomery voiced an objection. Accord ingly, we find that this e rror has b een w aived. T.R .A.P. 36(a); State v. Walker, 910 S.W.2d 381, 386 (Tenn. 1995). Moreover, when there is no contemporaneous objection to a hearsay statement, the jury may consider it as evidence and give the testimony such weight as it dee ms pro per. See State v. Benn ett, 549 S.W .2d 949, 950 (Tenn. 197 7).

Shaw testified that she moved to Milwaukee after the police investigation began because she had received a death threat. While she stated that these thre ats did not come from James Montgomery, she did testify that James Mon tgom ery told

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her that sh e cou ld be c harge d as a n acc omp lice in this case. Shaw gave a statement to the Milwaukee Police wherein she said Anderson and Tucker were escorted out of her house with their hands tied behind their backs. At trial, while reiterating that she was still afraid for her life, s he tes tified tha t she d id not s ee the ir hands bound in any manner. Montgomery claims Shaw’s earlier statement to the police was a prior inconsistent statement that should have only been admitted for impeachment purposes, not for the truth of the matter asserted. No limiting instruction was requested or given. The state argues in response that the prior statement by Shaw was admissible to help explain to the jury, in light of her testimony that she was still afraid for her life, why her trial testimony differed from her statement to the police.

Prior inconsistent statements of witnesses can only be offered to impeach a witness’ credibility, no t for the truth o f the ma tter asserte d. State v. Reece, 637 S.W.2d 858, 861 (Tenn. 1982). However, where there is no contemporaneous request for a limiting instruction, the error of the trial court cannot later be attacked on appeal. T.R.A .P. 36(a). Mon tgomery c orrectly asserts, how ever, that the failure by a trial court to issue a contemporaneous curative instruction for prior inconsistent statements, even in the absence of a special request, could, under some circumstances, constitute reversible error: "[when] the impeaching testimony is extrem ely damag ing, the need for the limiting instruction is appa rent, and the failure to give it results in sub stantial pre judice to th e rights of th e accu sed." Reece, 637 S.W.2d at 861. In Reece, the Suprem e Court also s tated that the review ing court shou ld consider the overall strength of the state’s case in deciding whether the failure to instru ct con stitutes revers ible error. Id. Since Shaw testified on the stand that the victims’ hands were not tied when they left her house, there should have been an instruction regarding her prior inconsistent statement to the police.

We do not agree with the state’s argument that the prior inconsistent statement was properly admitted to explain Shaw’s trial testimony. To allow the admission of Shaw’s statement to the police for the truth of the matter asserted

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“wou ld be to hold that hearsay evidence not under oath took precedence over evidence given by the same witness unde r oath and on the witness stan d.” Id. Howe ver, considering the nature of the statement in light of the other evidence, including the fact that the bodies we re discovered with their hands bound, as well as the strength of the state’s case, albeit predominantly based on circumstantial evidence, we do not believe the failure to give a contemporaneous instruction resulted in substan tial prejudice to Mon tgome ry. This claim is without m erit.

Testimony of Terrell Adair, Andre Johnson and Chris Hines Montgo mery also claims that certain testimony by these three witnesses was erroneo usly allow ed by the trial court. Th e state dis agrees .

The prosecutor asked Adair if he was present during a conversation between Charles Ray Smith, Marcellos Anderson and Andre Johnson about their personal safety. Adair stated he was and then the prosecutor asked Adair what Smith said. Counsel for Montgomery objected claiming the answ er called fo r hearsa y. After a bench conference, the trial court sustained the objection but allowed the prosecutor to ask Adair if the conve rsation too k place. The prosecutor then asked the following question: “Mr. Adair, without telling us what Mr. Smith said, was there a conversation regarding their personal sa fety between Charles R ay Smith a nd Mr. An dre Johnson and Marcellos A nderson? ” Montgom ery claims on appeal that this question was an improp er use o f a prior con sistent state ment.

We find that the appellant has waived this issue, however, we also disagree with the app ellant’s claim . Counsel objected to the question at trial because it called for hears ay. The trial court sus tained the objection . Couns el, howe ver, failed to voice an objection based on the use of a prior consistent statement. Accordingly, he wa ived any challeng e to the alle ged erro r. T.R.A.P . 36(a); State v. Walker, 910 S.W.2d 381, 38 6 (Tenn . 1995). See also State v. Matthews, 805 S.W.2d 776, 781 (Tenn. Crim. A pp. 199 0) (a defe ndant “m ay not litigate an issue on one ground, abandon that ground post-trial, and assert a new basis or ground for his contention in this Court”). Regardless, we do not believe this is a situation where a witness was

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impro perly questioned about a prior consistent statement. The witness was not testifying about a prior statem ent he m ade, rath er he w as testifying about a conversation that took place between three other individuals. While it may have been h earsay , we do n ot find any other erro r in the testim ony in this re spect.

Montgo mery also complains about a portion of Andre Johnson’s testimony.

At one point, the prosecutor asked Johnson if he had a talk with Anderson about Carruthers and Montg omery. Johnson responded: “I had a talk to Marcellos and Terre ll Adair. I told th em, ‘Look, do not ride James and Tony in a car with you because a friend of mine was in jail with them to ld them people --.’” Counsel for Montgo mery immediately objected and the judge told the witness that he could not repeat what so meon e else sa id to him. The prosecutor then asked Johnson what he told Adair and Anderson, and Johnson answered: “I told them, ‘Don’t ride James and Tony in the car with you because they out to rob you and kill you.’” Mon tgomery now claim s this was an improper use of a prior statement. For the same reasons we discussed above in relation to Adair’s testimony, we find that the appellant has waived this claim. Nevertheless, we do not believe this constituted a prior statem ent. This was the first time Johnson was asked about what he told Anderson and Adair, therefore, there was no other state ment, either con sistent or inc onsisten t, before the jury.

Montgo mery alleges that the court erred in allowing the prosecutor to question Chris Hines about a prio r statement. The appellant claims there was no basis for this line of que stioning. H ines wa s ques tioned by the pros ecutor a nd then both appellan ts cross examined him. During redirect, in an attempt to rehabilitate the witness, the prosecutor questioned Hines about a statement he gave to the police. Counsel for Montgomery objected to this line of questioning stating that it went beyond the scope of cross examination. The trial judge made the following comments in overruling the objection:

Everything he asked about, though, relates to the subject matter that has been covered in this state ment. Qu estions were asked about the car wa sh, wh o was hed it, h ow it was washed, who cleaned out the trunk, what the circumstances were, what the circumstances were

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when he talked to Jonathan, what the circumstances were when he talked to James and Tony, how many phone calls were made, when they were made, how they w ere mad e. Eve rything that is re lated to in this statement that’s being used on redirect was covered on cross by both of you-a ll. And if he ge ts into areas in this statement that go beyond what was covered on cross, certainly your objection would be sustained. As long as the areas in this statement that he is covering pertain to the areas that you-all covered on cross, I’m going to ove rrule the objection.

We a gree w ith the trial court’s ruling and find no error in this line of questioning by the state on redire ct. See State v. Tizard , 897 S.W.2d 732, 746 (Tenn. Crim. App. 1994); State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993). This claim, therefore , is also with out me rit.

Opinion Testimony Montgo mery claim s that C hris H ines sh ould n ot hav e bee n allow ed to g ive his opinio n of wh at Mo ntgom ery m eant w hen h e told Hines that a rifle had blood on it. Montgo mery cites Tenn. R. Evid. 701, which provides that a lay witness’s “testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based upon the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.” He argues that H ines’ int erpre tation had no fou ndatio n of fac t and w as no t rationa lly based on his pe rception. In response, the state contends that Hines was not being asked to give his opinion as to w hat M ontgo mery mea nt, but to expla in why Hines refused to accep t the wea pon.

At the trial, the state asked Hines w hat hav ing blood on the w eapon mean t to him, and he responded tha t it mea nt that s ome body had b een s hot w ith it. At this point, Montg omery objected “as far as w hat it mea nt to” Hine s, but the trial court overrule d the ob jection.

To the extent that the testimony was presented to show Hines’ interpretation for the purpose of explaining Hines’ rejection of the weapon, we believe the evidence was inadm issible bec ause it w as who lly irrelevant to the issue s on trial. See Tenn. R. Evid. 401, 402. To the extent that the testimony could be taken as evidence of what Montgomery meant by saying that the weapon “had blood on it,” we believe

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that the record provides insufficient foundation to justify the admission of Hines’ interpretation. If a phrase is not common parlance and carries a particular meaning in a partic ular context or environment, the witness to such meaning should lay a foundation that show s that the w itness ha s the spe cialized kn owledg e need ed to assist the jury su bstantially to understand the evidence. Tenn. R. Evid. 702. Such was not done in this case.

Howe ver, we conclude that any error was harmless. We do not believe that the jury was at undue risk because of Hines’ opinion, given the fact that they already knew that Montgomery said that the weapon had blood on it. Such is also true in the context of all of th e rem aining evide nce in this case . The de fendan t does no t specify any particu lar preju dice th at mo re prob ably than not affected the verdict and we find none in our review of the record.

Jury Instructions Montgo mery claims the trial court’s jury instruction on the especially heinous, atrocious or cruel aggravating circumstance was improper. He claims that the use of the phrase “in that” instead of “and” - the murder is especially heinous, atrocious or cruel in that it involved torture or serious physical abuse - sugg ested to the jury that all acts of torture or serious physical abuse are automatically classified as heinous, atrocious or crue l. This very argument has recently been rejected by our Supreme Court. See State v. Nesbit, 978 S.W .2d 872, 887 (Tenn. 199 8). Acco rdingly , this claim mus t fail.

Montgo mery also claims that the trial court improp erly instructed the jury regarding mitigating evidence. Specifically, he claims the trial court erred by instructing the jury that it should not distinguish between statutory and any requested non-statutory mitigating circumstances and by instructing the jury on sta tutory mitigating circumstances that were not supported by the record. The trial judge instructed the jury on mitigating evidenc e acco rding to the statute in existence at the time. T.C.A. § 39-13-203(e) (1991). The appellant seems to suggest that the “no distinction” aspect of the instruction prejudiced him because he did not request an

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instruction on any non-sta tutory circumsta nce. How ever, since there were no non- statutory circumstances requested, the jury did not have anything to distinguish. Accord ingly, we do not be lieve the a ppellant w as prejud iced by th is instruction .

Montgo mery further claims that the judge erred in instructing the jury on all of the statutory mitigating circumstances even though they were not all supported by the record. According to the appellant’s argument, this undermined his actual mitigation and emphasized to the jury the number of circumstances missing from the case. The Supreme Court has recognized that only those mitigating circumstances raised by the ev idence should b e instructe d. See State v. Cazes, 875 S.W.2d 253, 267 (Tenn. 1993). The Court has also held, however, that any such error in th is respect does not require reversal unless the appellant can show prejudice. Id. The appellant claims, d espite the Supre me C ourt’s ruling on this issue, that instructing on all of the circumstances does not benefit him. Again, absent a showing of prejudice, this claim m ust fail. See State v. Nes bit, 978 S.W.2d 872, 902 (Tenn. 1998) (adopting the portion of this Court’s opinion addressing this issue). The appellant has failed to show how he was prejudiced by the instruction. Accordingly, this issue is without m erit.

Sufficiency of the Evidence Both appellan ts challen ge the su fficiency of th e conv icting evide nce. A g uilty verdict by the jury, approved by the trial court, accredits the testimony of the witnesses for the state and resolves all conflicts in favor of the state's theory. State v. Hatche tt, 560 S.W .2d 627 , 630 (Te nn. 197 8); State v. Grace, 493 S.W.2d 474, 476 (Tenn. 197 3). On appeal, "the state is entitled to the strongest legitimate view of the trial evid ence and a ll reasonable or legitimate inferences which may be drawn therefrom ." State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court does not reweigh or reevaluate the evidence . Id. The ju ry's ve rdict, the refore , will only be disturbed if, after a consideration of the evidence in the light m ost fav orable to the state, a rational trier of fact could not have found the essential elements of the crime beyond a reasonable dou bt. Jack son v . Virginia , 443 U.S. 307, 99 S.Ct. 2781 (1979); State v. Williams, 657 S.W .2d 405, 410 (Tenn. 198 3); T.R.A.P. 13 (e).

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A criminal offense may be proven through direct evidence, circumstantial evidence, or a combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900 (Tenn. 1987). See also State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992)(“the cases have lon g recog nized tha t the nece ssary ele ments of first-degree murder may be shown b y circumstan tial evidence”). Before the defendant may be convicted of a criminal offense based upon circumstantial evidence alone, the facts and circumstances "must be so strong and cogent as to exclude every other re ason able hypo thesis save the guilt of the de fendan t, and that b eyond a reas onable doubt." State v. Crawford , 470 S.W.2d 610, 612 (Tenn 1971). "A web of guilt must be woven around the defendant from which he cannot escape and from which facts and circumstances the jury could draw no other reasonable inference save the guilt of the defe ndant b eyond a reaso nable d oubt." Id. at 613.

At the time of this offense, first degree murder was defined as "an inte ntiona l, premeditated and deliberate killing of anothe r." T.C.A. § 39-13-202(a)(1) (1991) (the current first degree murder statute does not require proof of deliberation). Once a homicide has been proven, it is presumed to be a second-degree murder and the state has the b urden o f establishin g prem editation a nd delibe ration. State v. Brown, 836 S.W.2d 530 (Tenn. 1992). Intentional is defined as "the conscious objective or desire to engage in the conduct or cause the result." T.C.A. § 39-11- 106(a)(18)(19 91). Premeditation necessitates "the exercise of reflection and judgment," T.C.A. § 39-13-201(d) (1991), requiring "a previously formed design or intent to kill." State v. West, 844 S.W.2d 144, 147 (Tenn. 1992). Whereas deliberation is defined as a “cool purp ose,” “without pa ssion or provo cation.” § 39- 13-201 (b)(1) and comm ents (19 91).

The elements of premeditation and deliberation are questions for the jury and may be inferred from the circums tances surroun ding the k illing. State v. Bland, 958 S.W.2d 651, 660 (Te nn. 1997). The Supreme Court has delineated several relevant circumstances which may be indicative of premeditation and deliberation, including the use of a d eadly w eapon upon a n unarm ed victim , the fact that the k illing was particu larly cruel, declarations by the defen dant o f his inte nt to kill, and the making

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of preparations before the killing for the purpose of conc ealing the cr ime. Id. This Court has also noted several factors from which the jury may infer these elements: facts about what the appellant did prior to the killing which would show planning; facts about the appellant's prior relationship with the victim from which motive may be inferred; an d facts ab out the na ture of the k illing. State v. Bord is, 905 S.W.2d 214, 222 (Te nn. Crim . App.), perm. to app. denied, (Tenn. 1995 ) (citing 2 W. LaFave and A. S cott, Jr., Substantive Criminal Law § 7.7 (1986)).

At the time of the crimes, especially aggravated robbery was defined as the intentional or knowing theft of property from the person of another by violence or putting the person in fear, accomplished with a deadly weapon and whe re the vict im suffers seriou s bod ily injury . T.C.A . § 39-1 3-403 (1991 ). Espe cially aggravated kidnapping was the knowing removal of confinement of another unlawfully so as to interfere substantially with the other’s liberty, accomplished with a deadly weapon or where the victim suffers serious bodily injury. T.C.A. § 3 9-13-305 (1 991).

The trial evid ence is thoro ughly outline d abo ve. Ha ving re viewe d the p roof in the record in the ligh t mos t favora ble to the s tate, w e find th at a ratio nal jury could reaso nably have fou nd the a ppellants guilty of all cha rges. Again, convictions may be based solely on circums tantial evide nce an d all ques tions rega rding cre dibility of witnesses are res olved by the jury. Th is issue is witho ut me rit. Furth ermo re, wh ile not addressed by either appellant, we have examined the evidence and have found that the proof was sufficient to support the aggravating circumstances found by the jury and that the aggravating circumstances outweigh the mitigating evidence beyond a reasonab le doubt. T.C.A . § 39-13-206 (c)(B)-(C) (1991 ).

Death P enalty Statu te Both appellan ts challen ge the co nstitutiona lity of Tenn essee ’s death p enalty statute. All of the num erous claim s raise d by th e app ellants have repea tedly been denied by our S uprem e Cou rt. See, e.g., State v. Burns, 979 S.W.2d 276 (Tenn. 1998) (adopting this C ourt’s review o f this issue); State v. S mith, 893 S.W.2d 908 (Tenn. 1994); State v. Brimmer, 876 S.W.2d 74 (Tenn. 1994). Accordingly, these

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claims must fail. Carruthers also claims that the recent amendment to T.C.A. § 40- 23-114 (1998 Supp.), which allows those capital case defendants who committed their offense prior to January 1, 1999, to elect to be put to death by lethal injection constitutes an uncon stitutional de legation o f legislative a uthority. W e disagree. The statute clearly states that this class of offenders shall be put to death by electrocution. The s tatute, h owe ver, giv es the offend er the o ption to waive this method of exe cution and e lect leth al inject ion ins tead. T his is not a delegation of the legisla ture’s autho rity. This claim is without m erit. At any rate, this statute does not affect the appellants’ convictions or sentences.

Proportionality Review Pursuant to T.C.A. § 39-13-206, this Court must consider whether the sentence of death was im pose d in an arbitrar y fash ion an d whe ther the sente nce is excessive or dispropo rtionate to the penalty imposed in similar cases. Interestingly, neither appellant has addressed the proportionality review in their appellate briefs. The Supreme Court recently issued the following mandate in order to assist the appellate courts in fulfilling their statutory duties:

the State and the defendant in each case must fully brief the issue by spec ifically identifying those similar cases relevant to the comparative proportio nality inquiry. W hen ad dressing proportio nality review , the briefs of the p arties s hall conta in a section setting forth the nature and circumstances of the crimes that are claimed to be similar to that of which the defenda nt has been convicted, including the statutory aggravating circumstances found by the jury and the evidence of mitigating circumstances . In addition, the parties shall include in the section a discussion of the character and record of the defendants involved in the crim es, to the e xtent asce rtainable from the Rule 12 reports, appellate cou rt decisions, or records of the trial and sentencing hearings in those cases.

State v. Bland, 958 S.W .2d 651, 667 (Tenn. 199 7) (emphasis added) (internal footnotes omitted). The Bland opinion was issued we ll before the appe llate record was filed in this case.

In Bland, the Su prem e Cou rt outlined the proce ss ap pellate courts shou ld employ when conducting a comparative proportionality review. The review required is not a rigid, objective test, id. at 668 , nor are the co urts bo und to cons ider on ly those case s in wh ich exa ctly the same aggravating circumstances have been found,

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State v. Brimmer, 876 S.W.2d 75, 84 (Te nn. 199 4). It is the duty of the app ellate court, not to “assure that a sentence less than death was neve r impo sed in a case with similar character istics,” b ut to “as sure th at no a berra nt dea th sen tence is affirmed .” Bland, 958 S.W.2d at 665. With respect to the circumstances of the offense, we con sider: 1) the mean s of death ; 2) the manner of death; 3) the motivation for the killing; 4) the place of death; 5) the simila rity of the victims’ circumstances including age, physical and mental conditions, and the victims’ treatment during the killing; 6) the absence or presence of premeditation; 7) the absence or presence of provocation; 8) the absence or presence of justification; and 9) the injury to a nd effects on non deced ent victim s. With re spect to comparing the character of the de fenda nts, the followin g facto rs are re levan t: 1) the d efend ant’s prior criminal record or prior criminal activity; 2) the defendant’s age, race, and gender; 3) the defendant’s mental, emotional or physical condition; 4) the defendant’s involvement or role in the murder; 5) the defen dant’s co operatio n with authorities; 6) the defendant’s remorse; 7) the defendant’s knowledge of helplessness of victim(s); and 8) the defendant’s capacity for rehabilitation.

The facts and circumstances o f the offe nses in this ca se ha ve be en tho rough ly detailed above. The three victims were kidnapped and ultimately buried alive. Before being placed in the ground, two of the victims were shot and one was beaten with a shovel. The appellants knew their victims: Marcellos Anderson, twenty-five years of age; his mother, Delois Anderson, in her forties; and F rederick Tuc ker, seventeen years old. The appellants w ere both twenty-six years of age at the time of the mu rders. Bo th appe llants claim they are innocen t of the crim es. As the presentence reports indicate, both appellants have extensive prior criminal records, including crimes of violence to the person.

While no two cas es are th e sam e, the follow ing case s wher e the de ath sentence was imposed contain similar characteristics to the present one: In State v. Zagorski, 701 S.W.2d 808 (Tenn . 1985 ), the tw enty-e ight ye ar old defendant shot and slit the throats of the two victims and left them to die in the woods during an

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alleged ly botched drug deal. The jury found two aggravating circumstances: the murder was especially heinous, atrocious or cruel and the murder was committed during the course of a robbery. In State v. S mith, 868 S.W.2d 561 (Tenn. 1993), the forty year old defendant was convicted on three counts of the premed itated murde rs of his estranged wife and her two sons. The victims were shot and stabbed in their home. There was also evide nce th at the d efend ant ha d prev iously threatened the victims. The defendant presented an alibi defense at trial. The jury found four aggravating circumstances for two of the victims (the murder was especially heinous, atrocious or cruel; the murder was committed for the purpose of avoiding arrest or prosecution; the murder was committed during the commission of a felony; the defendant committed mass murder) and two for the third victim (the murder was espe cially heinous, atrocious or cruel and the defendant committed mass m urder). In State v. Burns, 979 S.W.2d 276 (Tenn. 1998), the young defendant was convicted of felony murder and sentenced to death. The defendant and his accomplices approached four young m en sitting in a car, robbed th em, a nd killed two of them. The jury found one aggravator, that the defendant created a risk of ha rm to two or more persons. In State v. Mo rris, No. 02C01-980 1-CC -00012 (Tenn. C rim. App ., Feb. 5, 1999) (appeal to Supreme Court pending), the thirty-eight year old defendant was convicte d on two counts of premeditated first degree murder and senten ced to death. The defendant intended to rob his neighbors for drug money. The two victims were the male neighbor and his minor cousin-in-law. The defendant also kidnapped and raped the wife of the male victim. The jury found two aggravating circumstances: the murde r was especially heinous, atrocious or cruel and the murder was committed during the course of a first degree murder, rape, burglary or kidnapping. We are convinced that the result in the case before us was neither disproportionate nor arbitrary.

CONCLUSION

Accordingly, for the reasons stated above, we affirm the appellants’

convictions and sentences. Because this case will automatically be reviewed by the Supreme Court, w e will not se t a date of e xecution . See T.C.A. § 39-13-20 6(a)(1).

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THOMAS T. WO ODALL, Judge

CONCUR:

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GARY R. WADE , Presiding Judge

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JOSEPH M. TIPTON, Judge