Carruthers v. State
| Decision Date | 11 October 2022 |
| Docket Number | 2021-KA-00654-COA |
| Citation | 348 So.3d 1042 |
| Parties | Walter CARRUTHERS a/k/a Walter "Cookie" Carruthers, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE
BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.
WILSON, P.J., FOR THE COURT:
¶1. Walter "Cookie" Carruthers was convicted and sentenced as a habitual offender for trafficking methamphetamine as a subsequent drug offender while in possession of a firearm and within 1,500 feet of a church (Count I) and possession of a firearm by a felon (Count II). On appeal, Carruthers argues that his trial counsel committed numerous errors and provided constitutionally ineffective assistance. However, Carruthers fails to show that his attorney "made errors so serious that [he] was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment" or that the alleged "errors were so serious as to deprive [Carruthers] of a fair trial, a trial whose result is reliable." Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Therefore, Carruthers's ineffective assistance claim fails, and we affirm his convictions and sentences.
¶2. On July 9, 2018, after receiving complaints about drug activity at Carruthers's home, Investigator Kevin Johnson of the New Albany Police Department sent a confidential informant (CI) to buy drugs from Carruthers. Using a hidden surveillance camera, the CI recorded Carruthers cutting, weighing, and selling methamphetamine. The video also showed a pistol nearby on Carruthers's bed.
¶3. About three weeks later, Carruthers posted a Facebook video of himself in the same room in which he had sold methamphetamine to the CI. In the video, Carruthers was holding a long gun and said that he had "things for sale."
¶4. About two months later, a suspect in a home burglary, Dorian Robertson, told police that Carruthers had traded him methamphetamine for property taken in the burglary. On October 1, 2018, the police obtained a search warrant for Carruthers's home, which they executed the same day.
¶5. During the search, the police found the long gun that Carruthers had held in the Facebook video. They also found scales and other drug paraphernalia in Carruthers's bedroom and approximately fifty grams of methamphetamine under Carruthers's bed. Carruthers and the two other men in the home, Clay Potts and Reggie Boles, were arrested and placed in Johnson's patrol car. Johnson saw Boles take methamphetamine out of his pocket and attempt to hide it in the backseat of the patrol car.
¶6. Carruthers was indicted for trafficking methamphetamine—i.e., possession of thirty grams or more of methamphetamine with the intent to distribute—as a subsequent drug offender while in possession of a firearm and within 1,500 feet of a church (Count I). He was also indicted for possession of a firearm by a felon (Count II) and as a habitual offender.
¶7. At trial, Potts testified that there was "no dope" in Carruthers's home prior to Boles's arrival at the house around lunchtime. Potts claimed that Boles had brought the drugs with him. Potts also testified that he went to Carruthers's home that morning to get methamphetamine and that people knew that you could get drugs at Carruthers's home.
¶8. Carruthers testified that the long gun found in his home belonged to his uncle. He also denied that the methamphetamine found under his bed belonged to him. Carruthers testified that when the search warrant was executed, he was in the bathroom, and Boles was in the bedroom where the methamphetamine was found. Carruthers claimed that there "wasn't no dope in the house until [Boles] made it to the house."
¶9. The jury found Carruthers guilty on both counts, and the court sentenced him to serve concurrent terms of 160 years and 10 years in the custody of the Department of Corrections. Carruthers filed a motion for judgment notwithstanding the verdict or a new trial, which was denied, and a notice of appeal. On appeal, Carruthers argues that a series of errors by his trial attorney deprived him of the effective assistance of counsel and a fair trial.
¶10. A defendant's constitutional "right to counsel is the right to the effective assistance of counsel." Strickland , 466 U.S. at 686, 104 S.Ct. 2052 (quoting McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ). "Generally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings." Ross v. State , 288 So. 3d 317, 324 (¶29) (Miss. 2020) (brackets omitted) (quoting Bell v. State , 202 So. 3d 1239, 1242 (¶12) (Miss. 2016) ). However, "[t]his Court will address such claims on direct appeal when [1] the record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties stipulate that the record is adequate and the Court determines that the findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed." Id. (). In addition, we may address such "claims on direct appeal when the record affirmatively shows that the claims are without merit." Id.
¶11. To prevail on a claim of ineffective assistance, Carruthers must show both (1) "that counsel's performance was deficient"—i.e., "that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment"—and (2) that he was prejudiced as a result—i.e., "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland , 466 U.S. at 687, 104 S.Ct. 2052. Carruthers "bears the burden of proving both prongs of Strickland ." Ravencraft v. State , 989 So. 2d 437, 443 (¶31) (Miss. Ct. App. 2008). "If either prong is not met, the claim fails." Havard v. State , 928 So. 2d 771, 781 (¶8) (Miss. 2006).
¶12. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland , 466 U.S. at 689, 104 S.Ct. 2052. Therefore, "the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (quotation marks omitted). With these principles in mind, we address Carruthers's various allegations of errors by his trial counsel.
¶13. In general, "the failure of counsel to make certain objections may fall within the ambit of trial strategy, and therefore may not give rise to a claim for ineffective assistance of counsel." Morrow v. State , 275 So. 3d 77, 84 (¶25) (Miss. 2019) (brackets and footnote omitted). In addition, as with any claim of ineffective assistance, the defendant must show that counsel's failure to object prejudiced him and deprived him of a fair trial. Id. at 83-84 (¶¶24-28).
¶14. Carruthers alleges that his trial counsel's failure to object to several leading questions, including questions about drug activity in the area, constituted ineffective assistance. However, the few questions that Carruthers mentions were only used to explain the course of the police investigation and were not unduly prejudicial. Carruthers has not rebutted the presumption that the lack of an objection was trial strategy, nor has he shown that he was prejudiced as a result. See Duck v. State , 225 So. 3d 1, 5-6 (¶¶13-16) (Miss. Ct. App. 2017) (concluding that the lack of an objection to leading questions was trial strategy and that the defendant suffered no prejudice as a result).
¶15. Carruthers next alleges that trial counsel failed to object to hearsay on two occasions. First, he argues that Johnson's testimony about the search of his home was hearsay because Johnson never testified that he entered the home. Carruthers is simply wrong about this. Johnson clearly testified that he entered the house and helped execute the search warrant. Johnson testified that he personally observed the gun from the Facebook video and drug paraphernalia and recovered approximately fifty grams of methamphetamine from Carruthers's bedroom. This testimony was not hearsay. The "[f]ailure to raise meritless objections is not ineffective lawyering; it is the very opposite." Clark v. Collins , 19 F.3d 959, 966 (5th Cir.1994).
¶16. Second, Carruthers alleges that Johnson was allowed to give hearsay testimony about Dorian Robertson's tip that he had traded stolen property to Carruthers. However, this testimony was not hearsay either. "Statements do not constitute hearsay when admitted to explain an officer's course of investigation or motivation for the next investigatory step by that officer." Eubanks v. State , 291 So. 3d 309, 322-23 (¶51) (Miss. 2020) (quoting Smith v. State , 258 So. 3d 292, 309 (¶52) (Miss. Ct. App. 2018) ). Johnson's testimony regarding Robertson's tip was not offered for the truth of the matter asserted but rather to explain why and how the police obtained a search warrant for Carruthers's home. Accordingly, a hearsay objection likely would have been overruled. See M.R.E. 801(c). Thus, the failure to object cannot be deemed ineffective assistance or regarded as prejudicial to Carruthers.
¶17. Carruthers argues that his attorney should have objected to the admission of certain still photographs from the surveillance video of the uncharged July 9, 2018 drug sale to the CI. Carruthers claims that those photos "were admitted without predicate." Carruthers acknowledges that the trial court specifically stated, "Let the record reflect that [defense counsel] on behalf of Mr. Carruthers previously asserted objections to those photographs." But Carruthers states that "[t]he record is opaque as to a previous ruling."1
¶18. The Supreme Court and this Court have held that...
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