State v Carruthers
| Decision Date | 21 December 1999 |
| Docket Number | 97-00097 |
| Parties | STATE OF TENNESSEE, Appellee, V. TONY V. CARRUTHERS and JAMES MONTGOMERY, Appellants. C.C.A. NO. W1997-00097-IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON |
| Court | Tennessee Court of Criminal Appeals |
SHELBY COUNTY
CAPITAL CASE (Premeditated First Degree Murder, Three Counts; Especially Aggravated Kidnapping; Three Counts; Especially Aggravated Robbery, One Count)
The appellants, James Montgomery and Tony Carruthers, were each indicted, along with their co-defendant, Jonathan Montgomery, on three counts of the premeditated first degree murders of Marcellos Anderson, his mother, Delois Anderson, and Frederick Tucker. Prior to trial, Jonathan Montgomery was found hanged in his jail cell. James Montgomery and Tony Carruthers were also indicted on three counts each of the especially aggravated kidnapping of all three victims, and one count each of the especially aggravated robbery of Marcellos Anderson. The appellants were tried and convicted on each charge. The appellants 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 murder was especially heinous, atrocious or cruel in that it involved torture; 2) the appellants committed mass murder; 3) the appellants had previously been convicted of one or more violent felonies; and 4) the murders were committed during the perpetration of especially aggravated kidnapping and especially aggravated robbery. T.C.A. § 39-13-204(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 phases of the trial:
Appellant Carruthers
Whether appellant was denied his right to due process by having to represent himself;
Whether appellant was denied the effective assistance of counsel;
Whether the state should have been required to elect on which indictment it was proceeding;
Whether the grand jury proceedings were 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 court erroneously admitted videotape and photographic evidence;
Whether appellant was denied his right to be present at sentencing for the especially aggravated kidnapping convictions;
Whether the prosecutor engaged in improper argument;
Whether 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 Montgomery
Whether the trial court erred in denying appellant's motion for severance;
Whether the trial court erroneously admitted hearsay evidence;
Whether the prosecutor engaged in improper argument;
Whether prior consistent statements were improperly introduced 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;
Whether the death penalty statute is unconstitutional.
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 convictions or sentences, we affirm the judgment of the trial court.
PAUL G. SUMMERS, Attorney General & Reporter, AMY L. TARKINGTON, Assistant Attorney General, 2nd Floor, Cordell Hull, 425 Fifth Avenue North Building, Nashville, TN 37243
JOHN W. PIEROTTI, District Attorney General, PHILLIP GERALD HARRIS, Assistant District Attorney General, J. ROBERT CARTER, JR., Assistant District Attorney General, Criminal Justice Center, Suite 301 201 Poplar Avenue Memphis, TN 38103
AFFIRMED
In order to put the procedural history of 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. Wharton, who was subsequently allowed to withdraw because of a potential conflict of interest. Nothing in the record suggests this conflict was created by the conduct of Carruthers. 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 subsequent hearing on May 18, 1994, Carruthers indicated that his family's attempt to retain counsel failed. He asked the court to appoint counsel so he could start filing motions.
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); William Massey (appointed July 1995 - withdrawn January 1996); Harry Sayle (appointed July 1995 - withdrawn February 1996). The trial court also appointed at different times two attorneys, James Turner and Glenn Wright, to assist in the investigation of the case, but both were subsequently allowed to withdraw as well.
On May 31, 1994, after Carruthers informed the court that he had no success in hiring another lawyer, the trial court appointed Larry Nance. 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 motions for September 30, 1994, and set the trial date for February 20, 1995. Carruthers was present at the hearing and asked the trial court 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:
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 and so we can't set it this fall because this fall is already full.
We've already got cases set for trial every week between now and January. And Mr. Stein [counsel for Montgomery] has cases set throughout January. So the earliest possible date, the earliest possible 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 lot of other people sitting back there 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 discovery, they'll meet with their clients 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 ample time to then evaluate the case, after the motions have been heard and ruled on.
So given the fact that we 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 yesterday, because you want him to have it done yesterday, doesn't mean that he's not working on your case diligently and properly. He'll have everything done well in advance of the next Court date.
And so, you know, he may not do it the very moment you want it done, but 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 about getting the time of death and autopsy. He hadn't did that yet.
Court: Well, that's fine.
Carruthers: And that's forty-five...
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