Tony Carruthers v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

June 5, 2007 Session

TONY CARRUTHERS v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-25948 Walter C. Kurtz, Judge, Sitting by Designation

No. W2006-00376-CCA-R3-PD - Filed December 12, 2007

The petitioner, Tony Carruthers, appeals the denial of his petition for post-conviction relief. In April

1996, a Shelby County jury convicted the petitioner of the first degree murders of Marcellos

Anderson, Delois Anderson, and Frederick Tucker and imposed a sentence of death for each

conviction. The Tennessee Supreme Court affirmed the convictions and sentences on direct appeal.

State v. Carruthers, 35 S.W.3d 516 (Tenn. 2000). In December 2001, the petitioner filed a pro se

petition for post-conviction relief. By order entered April 16, 2002, the supreme court appointed a

Davidson County post-conviction court to preside over the case. Post-conviction counsel was

appointed and an evidentiary hearing was subsequently conducted on various dates between August

29, 2005, and November 3, 2005. On February 2, 2006, the post-conviction court entered an order

denying the petition. On appeal to this court, the petitioner raises issues of ineffective assistance of

pretrial and appellate counsel and prosecutorial misconduct. Following our review, we affirm the

judgment of the post-conviction court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT

WILLIAMS, JJ., joined.

Larry E. Copeland, Jr., Memphis, Tennessee; William T. Ramsey, James G. Thomas, and J. Aaron

Morris, Nashville, Tennessee, for the appellant, Tony Carruthers.1

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

Elizabeth T. Ryan, Assistant Attorney General; William L. Gibbons, District Attorney General; and

John Campbell, Assistant District Attorney General, for the appellee, State of Tennessee.

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The court thanks the petitioner’s counsel for their dedicated and exhaustive efforts on his behalf, especially

in view of the very large and complicated record in this matter.

OPINION

FACTS UNDERLYING THE PETITIONER’S CONVICTIONS

The facts underlying the petitioner’s convictions and sentences are set forth in our supreme

court’s direct appeal opinion in this case:

The Guilt Phase

The proof introduced at the guilt phase of the trial showed that one of the

victims, Marcellos Anderson, was heavily involved in the drug trade, along with two

other men, Andre “Baby Brother” Johnson and Terrell Adair. Anderson wore

expensive jewelry, including a large diamond ring, carried large sums of money on

his person, and kept a considerable amount of cash in the attic of the home of his

mother, victim Delois Anderson. When his body was discovered, Anderson was not

wearing any jewelry and did not have any cash on his person. Anderson was

acquainted with both defendants, and he considered Carruthers to be a trustworthy

friend. The proof showed that Anderson’s trust was misplaced.

In the summer of 1993 Jimmy Lee Maze, Jr., a convicted felon, received two

letters from Carruthers, who was then in prison on an unrelated conviction. In the

letters, Carruthers referred to “a master plan” that was “a winner.” Carruthers wrote

of his intention to “make those streets pay me” and announced, “everything I do from

now on will be well organized and extremely violent.” Later, in the fall of 1993,

while incarcerated at the Mark Luttrell Reception Center in Memphis awaiting his

release, Carruthers was assigned to a work detail at a local cemetery, the West

Tennessee Veterans’ Cemetery. At one point, as he helped bury a body, Carruthers

remarked to fellow inmate Charles Ray Smith “that would be a good way, you know,

to bury somebody, if you’re going to kill them. . . . [I]f you ain’t got no body, you

don’t have a case.”

Smith also testified that he overheard Carruthers and Montgomery, who also

was incarcerated at the Reception Center, talking about Marcellos Anderson after

Anderson had driven Carruthers back to the Reception Center from a furlough.

According to Smith, when Montgomery asked Carruthers about Anderson, Carruthers

told him that both Anderson and “Baby Brother” Johnson dealt drugs and had a lot

of money. Carruthers said he and Montgomery could “rob” and “get” Anderson and

Johnson once they were released from prison.

When Carruthers was released from the Department of Correction on

November 15, 1993, he left the Reception Center with Anderson. Carruthers

accompanied Anderson to Andre Johnson’s house, and received a gift of $200 cash

from Anderson, Johnson, and Terrell Adair, who was present at Johnson’s house.

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One month later, on December 15, 1993, Smith was released from the

Department of Correction. Upon his release, Smith warned Anderson and Johnson

of Carruthers’ and Montgomery’s plans to “get them.” According to Smith and

Johnson, Anderson did not take the warning or the defendants’ threats seriously.

In mid-December 1993, Maze, his brother and Carruthers were riding around

Memphis together. They came upon Terrell Adair’s red Jeep on the street in front

of Delois Anderson’s home where a drive-by shooting had just occurred. Adair had

been injured in the shooting and was in the hospital. Jonathan “Lulu” Montgomery,

James Montgomery’s brother, was at the scene of the shooting, and he joined

Carruthers in the back seat of Maze’s car. According to Maze, Carruthers remarked

to Jonathan that, “it would be the best time to kidnap Marcellos,” and Jonathan

asked, “which one Baby Brother or Marcellos?” Carruthers then nudged

Montgomery with his elbow and said “it” was going to take place after James

Montgomery was released from prison. About two weeks later, on December 31,

Maze saw Carruthers loading three antifreeze containers into a car, and Carruthers

indicated to Maze that the containers were filled with gasoline.

On January 11, 1994, James Montgomery was released from prison. After

his release, Montgomery told “Baby Brother” Johnson that he, not Johnson, was in

charge of the neighborhood. Montgomery said, “It was my neighborhood before I

left, and now I’m back and its my neighborhood again.” Montgomery asked Johnson

if he wanted to “go to war about this neighborhood.” When Johnson said, “no,”

Montgomery replied “You feeling now like I’m about to blow your motherf-----g

brains out” and “you all need to get in line around here or we’re going to war about

this.” Near the end of January or the first of February 1994, Johnson and Adair saw

the defendants sitting together in an older model grey car down the street from

Johnson’s mother’s home. It was late at night, between 11 p.m. and 1 a.m. When the

defendants approached Johnson and Adair, Montgomery asked why they thought he

was trying to harm them. Montgomery told them, “Look, I told you, we ain’t got no

problem with nobody in this neighborhood. We already got our man staked out. If

we wanted some trouble or something, we got you right now. We’d kill your whole

family.” Confirming Montgomery’s statement, Carruthers told them, “We already

got our man staked out. You all right. If it’s any problem, we’ll deal with it later.”

Montgomery explained that he intended to take the “man’s” money and drugs, and

said, “if the police didn’t have no body, they wouldn’t have no case.”

On February 23, 1994, Marcellos Anderson borrowed a white Jeep Cherokee

from his cousin, Michael Harris. Around 4:30 on the afternoon of February 24, 1994,

witnesses saw Marcellos Anderson and Frederick Tucker riding in the Jeep Cherokee

along with James and Jonathan Montgomery. About 5 p.m. that day, James and

Jonathan Montgomery and Anderson and Tucker arrived in the Jeep Cherokee at the

house of Nakeita Shaw, the Montgomery brothers’ cousin. Nakeita Shaw, her four

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children, and Benton West, also her cousin, were present at the house when they

arrived.

The four men entered the house and went downstairs to the basement. A

short time later, James Montgomery came back upstairs and asked Nakeita Shaw if

she could leave for a while so he could “take care of some business.” Nakeita Shaw

told West that she thought “they” were being kidnapped, and then she left the house

with West and her children. West agreed to care for Nakeita Shaw’s children while

she attended a meeting.

When Nakeita Shaw returned home after the meeting, she saw only

Carruthers and James Montgomery. Montgomery asked her to go pick up her

children and to “stay gone a little longer.” Nakeita Shaw returned home with her

children before 10 p.m. The Jeep Cherokee was gone, but James Montgomery and

Carruthers were still present at her home. Montgomery told Nakeita Shaw to put her

children to bed upstairs and remain there until he told her he was leaving. Sometime

later, Montgomery called out to Nakeita Shaw that he was leaving. She returned

downstairs and saw James Montgomery, Carruthers, and the two victims, Anderson

and Tucker, leave in the Jeep Cherokee. Prior to trial, Nakeita Shaw told the police

that Anderson’s and Tucker’s hands were tied behind their backs when they left her

house. While she admitted making this statement, she testified at trial that the

statement was false and that she had not seen Anderson’s and Tucker’s hands tied

when they left her home.

In the meantime, around 8 p.m. on February 24, Laventhia Briggs telephoned

her aunt, victim Delois Anderson. When someone picked up the telephone but said

nothing, Briggs hung up. Briggs called “a couple of more times” but received no

answer. Briggs was living with Delois Anderson at the time and arrived at her aunt’s

home around 9:00 p.m. Although Delois Anderson was not home, her purse, car, and

keys were there. Food left in Anderson’s bedroom indicated that she had been

interrupted while eating. Briggs went to bed, assuming her aunt would return home

soon. A co-worker, whom Delois Anderson had driven home around 7:15 p.m., was

the last person to have seen her alive.

Chris Hines, who had known the defendants since junior high school, testified

that around 8:45 p.m. on February 24, 1994, Jonathan Montgomery “beeped” him.

Jonathan said, “Man, a n----r got them folks.” When Hines asked, “What folks?”

Jonathan replied, “Cello and them” and said something about stealing $200,000.

Jonathan then indicated that he could not talk more on the telephone and arranged to

meet Hines in person. Jonathan arrived at Hines’ home at about 9:00 p.m. and told

him, “Man, we got them folks out at the cemetery on Elvis Presley, and we got

$200,000. Man, a n----r had to kill them folks.” At that point, James Montgomery

“beeped in” and talked with Jonathan. When the telephone call ended, Jonathan

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asked Hines to drive him to the cemetery. Hines refused, but he allowed Jonathan

to borrow his car, which Jonathan promised to return in an hour. When the car was

not returned, Hines called James Montgomery’s cellular telephone at around 11 p.m.

James told Hines that he did not know where Jonathan was, that Jonathan did not

have a driver’s license, and that the car should be returned by 4 a.m. because

Jonathan was supposed to drive James to his girlfriend’s house.

The Jeep Cherokee that Anderson had borrowed was found in Mississippi on

February 25 around 2:40 a.m. It had been destroyed by fire. About 3:30 a.m., after

he was informed of the vehicle fire by law enforcement officials, Harris telephoned

Delois Anderson’s home, and Laventhia Briggs then discovered that neither her aunt

Delois nor her cousin Marcellos had returned home. Briggs filed a missing person

report with the police later that day.

The Montgomery brothers and Carruthers did not return Hines’ car until

approximately 8:30 a.m. on February 25. The car was very muddy. Hines drove

James Montgomery and Carruthers to Montgomery’s mother’s home and then drove

away with Jonathan Montgomery. That morning Jonathan, whom Hines described

as acting “paranoid” and “nervous,” repeatedly told Hines that “they had to kill some

people.” About two hours later, James Montgomery and Carruthers came to Hines’

home looking for Jonathan. Hines advised Carruthers and James Montgomery that

he was celebrating his birthday, and he asked James Montgomery to give him a

birthday present. James agreed to give Hines twenty dollars after he picked up his

paycheck, and James also agreed to have Hines’ car washed immediately as a

birthday present.

Hines, the Montgomery brothers, and Carruthers drove to a carwash, and

James Montgomery paid an unidentified elderly man to clean the car. The man

cleaned the interior of the car and the trunk of the car. Neither Carruthers nor James

Montgomery supervised the cleaning of the car. After Jonathan Montgomery

abruptly left the carwash, Carruthers and James Montgomery asked Hines what

Jonathan had told him, but Hines did not tell them. Several days later James

Montgomery came to Hines’ home and offered Hines an AK-47 assault rifle because

Montgomery said he had “heard that Hines was into it with some people on the

street.” James Montgomery told Hines the rifle had “blood on it.” Hines testified

that he interpreted this statement to mean that someone had been shot with the

weapon.

On March 3, 1994, about one week after a missing person report was filed on

Delois and Marcellos Anderson, Jonathan Montgomery directed Detective Jack Ruby

of the Memphis Police Department to the grave of Dorothy Daniels at the Rose Hill

Cemetery on Elvis Presley Boulevard. Daniels’ grave was located six plots away

from the grave site of the Montgomery brothers’ cousin. Daniels had been buried on

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February 25, 1994. Pursuant to a court order, Daniels’ casket was disinterred, and

the authorities discovered the bodies of the three victims buried beneath the casket

under several inches of dirt and a single piece of plywood.

An employee of the cemetery testified that a pressed wood box or vault had

been placed in Daniels’ grave during working hours on February 24 and that it would

have taken at least two people to remove the box. Daniels’ casket had been placed

in the grave inside the box on February 25, and, according to Dr. Hugh Edward

Berryman, one of the forensic anthropologists who assisted in the removal of the

bodies from the crime scene, there was no evidence to suggest that Daniels’ casket

had been disturbed after she was buried. Thus, it can be inferred that the bodies of

the three victims were placed in the grave and covered with dirt and a piece of

plywood prior to the casket being placed in the grave.

Dr. O.C. Smith, who helped remove the bodies from the grave and who

performed autopsies on the victims, testified that, when found, the body of Delois

Anderson was lying at the bottom of the grave and the bodies of the two male victims

were lying on top of her. The hands of all three victims were bound behind their

backs. Frederick Tucker’s feet were also bound and his neck showed signs of

bruising caused by a ligature. A red sock was found around Delois Anderson’s neck.

Marcellos Anderson was not wearing any jewelry. Dr. Smith testified that Delois

Anderson died from asphyxia caused by several factors: the position of her head

against her body, dirt in her mouth and nose, and trauma from weight on her body.

Frederick Tucker had received a gunshot wound to his chest, which would not have

been fatal had he received medical care. He had also suffered injuries from blunt

trauma to his abdomen and head resulting in broken ribs, a fractured skull, and a

ruptured liver. Dr. Smith opined that Tucker was shot and placed in the grave, where

the force of compression from being buried produced the other injuries and, along

with the gunshot wound, caused his death. According to Dr. Smith, Marcellos

Anderson had been shot three times: a contact wound to his forehead that was not

severe and two shots to his neck, one of which was also not serious. However, the

gunshot causing the other neck wound had entered Anderson’s windpipe and severed

his spinal cord, paralyzing him from the neck down. This wound was not

instantaneously fatal. Anderson had also suffered blunt trauma to his abdomen from

compression forces. Dr. Smith opined that each victim was alive when buried.

Defendant James Montgomery presented no proof. Carruthers, acting pro se,

called several witnesses to rebut the testimony offered by the State, primarily by

attacking the credibility of the State’s witnesses.

A health administrator at the Mark Luttrell Reception Center testified that,

because of an injury to his arm, Carruthers had been given a job change on October

6, 1993, and had not worked at the cemetery after that date. Another official at the

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Reception Center testified that Carruthers was not released on furlough after

Montgomery arrived at the Reception Center on November 4, 1994. This proof was

offered to impeach Smith’s testimony that Montgomery and Carruthers discussed

robbing and getting Marcellos Anderson after Anderson drove Carruthers back to the

Reception Center following a furlough. An investigator appointed to assist

Carruthers with his defense testified that he had interviewed Maze, who admitted he

did not know anything about the “master plan” to which Carruthers referred in the

letters until Carruthers was released from prison. On cross-examination, the

investigator admitted that Maze said that when he was released from prison,

Carruthers had explained that the master plan involved kidnapping Marcellos

Anderson. Carruthers’ brother and another witness testified that Jonathan

Montgomery was not at the scene of the drive-by shooting involving Terrell Adair.

This proof was offered to impeach Maze’s testimony that Carruthers and Jonathan

Montgomery discussed kidnapping Marcellos on the day that Terrell Adair was shot.

Another witness, Aldolpho Antonio James testified that he and Carruthers had been

visiting a friend between the hours of 1:00 a.m. and 2:00 a.m. the day before these

homicides were first reported on the news. This testimony was offered to provide at

least a partial alibi for Carruthers for the early morning hours of February 25, 1994.

However, on cross-examination, James admitted that he did not know the exact date

he and Carruthers had been together.

Carruthers also called Alfredo Shaw as a witness. After seeing a television

news report about these killings in March of 1994, Alfredo Shaw had telephoned

CrimeStoppers and given a statement to the police implicating Carruthers. Alfredo

Shaw later testified before the grand jury which eventually returned the indictments

against Carruthers and Montgomery. Prior to trial, however, several press reports

indicated that Alfredo Shaw had recanted his grand jury testimony, professed that the

statement had been fabricated, and intended to formally recant his grand jury

testimony when called as a witness for the defense. Therefore, when Carruthers

called Alfredo Shaw to testify, the prosecution announced that if he took the stand

and recanted his prior sworn testimony, he would be charged with and prosecuted for

two counts of aggravated perjury. In light of the prosecution’s announcement, the

trial court summoned Alfredo Shaw’s attorney and allowed Alfredo Shaw to confer

privately with him. Following that private conference, Alfredo Shaw’s attorney

advised the trial court, defense counsel, including Carruthers, and the prosecution,

that Alfredo Shaw intended to testify consistently with his prior statements and grand

jury testimony and that any inconsistent statements Alfredo Shaw had made to the

press were motivated by his fear of Carruthers and by threats he had received from

him.

Despite this information, Carruthers called Alfredo Shaw as a witness and as

his attorney advised, Shaw provided testimony consistent with his initial statement

to the police and his grand jury testimony. Specifically, Alfredo Shaw testified that

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he had been on a three-way call with Carruthers and either Terry or Jerry Durham,

and during this call, Carruthers had asked him to participate in these murders, saying

he had a “sweet plan” and that they would each earn $100,000 and a kilogram of

cocaine. Following his arrest for these murders, Carruthers was incarcerated in the

Shelby County Jail along with Alfredo Shaw, who was incarcerated on unrelated

charges. Carruthers and Alfredo Shaw were in the law library when Carruthers told

Alfredo Shaw that he and some other unidentified individuals went to Delois

Anderson’s house looking for Marcellos Anderson and his money. Marcellos was

not there when they arrived, but Carruthers told Delois Anderson to call her son and

tell him to come home, “it’s something important.” When Anderson arrived, the

defendants forced Anderson, Tucker, who was with Anderson, and Delois Anderson

into the jeep at gunpoint and drove them to Mississippi, where the defendants shot

Marcellos Anderson and Tucker and burned the jeep. According to Alfredo Shaw,

the defendants then drove all three victims back to Memphis in a stolen vehicle.

Alfredo Shaw testified that, after they put Marcellos Anderson and Tucker into the

grave, Delois Anderson started screaming and one of the defendants told her to “shut

up” or she would die like her son and pushed her into the grave. Carruthers also told

Alfredo Shaw that the bodies would never have been discovered if “the boy wouldn’t

have went and told them folks.” Carruthers told Alfredo Shaw that he was not going

to hire an attorney or post bond because the prosecution would then learn that the

murders had been a “hit.” Carruthers told Alfredo Shaw that Johnson also was

supposed to have been “hit” and that Terry and Jerry Durham were the “main people

behind having these individuals killed.” Carruthers said that the Durhams wanted

revenge because Anderson and Johnson had previously stolen from them.

In response to questioning by Carruthers, Alfredo Shaw acknowledged that

he had told the press that his statement to police and his grand jury testimony had

been fabricated, but said he had done so because Carruthers had threatened him and

his family. According to Alfredo Shaw, one of Carruthers’ investigators had

arranged for a news reporter to speak with him about recanting his grand jury

testimony.

As impeachment of his own witness, Carruthers called both Jerry and Terry

Durham, twin brothers, as witnesses. The Durhams denied knowing Alfredo Shaw

and said they had never been party to a three-way telephone call involving Alfredo

Shaw and Carruthers. Carruthers also called attorney AC Wharton who testified that

he was initially retained by Carruthers’ mother to represent her son on these murder

charges, but was required to withdraw because of a conflict of interest. This

testimony was offered to impeach Alfredo Shaw’s statement that Carruthers had said

he was not going to hire an attorney or post bond. Finally, Carruthers called an

administrative assistant from the Shelby County jail who testified that jail records,

indicated that Alfredo Shaw was not in the law library at the same time as Carruthers

in either February or March of 1994. According to jail records, Alfredo Shaw was

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in protective custody for much of that time and, as a result, would have been escorted

at all times by a guard. However, on cross-examination, this witness admitted that

the jail records regarding the law library were not always complete or accurate and

that Alfredo Shaw had been housed outside of protective custody from mid-March

to early April 1994 which would have afforded him the opportunity to interact with

Carruthers. The record reflects that Alfredo Shaw came forward and provided a

statement to police on March 27, 1994 and that the indictments were returned on

March 29, 1994.

Based upon this proof, the jury found each defendant guilty beyond a

reasonable doubt of three counts of first degree murder, three counts of especially

aggravated kidnapping, and one count of especially aggravated robbery.

The Sentencing Phase

The trial proceeded to the sentencing phase. The State relied upon the proof

presented during the guilt phase of the trial and also introduced evidence to show that

Carruthers had been previously convicted of aggravated assault and that James

Montgomery had two previous convictions for robbery with a deadly weapon and one

conviction for assault with intent to commit robbery with a deadly weapon. The

proof showed that Montgomery was only seventeen years old at the time he

committed these previous offenses and that all of these previous convictions arose

from a single criminal episode.

The State also recalled Dr. Smith who testified that none of the victims died

instantaneously and that all suffered as a result of their separate injuries and being

buried alive. Although Anderson was paralyzed below his chest, Dr. Smith testified

that he would have felt some of the effects of the trauma to his airway and

particularly his windpipe, which is according to Dr. Smith, a very painful injury.

According to Dr. Smith, the bullet wound to Anderson’s head would not have been

fatal had he received proper medical attention and would not necessarily have caused

unconsciousness. In addition, Anderson would have been able to breathe after the

spinal cord wound, but the wound would have bled into his airway and his lungs,

making breathing very difficult. Dr. Smith said that Anderson literally would have

been “drowning on his own blood.”

With respect to Frederick Tucker, Dr. Smith testified that the gunshot wound

to his chest fractured two ribs and pierced his lung, but would not have been fatal had

he obtained medical treatment. Because the wound bled into Tucker’s lungs and

abdominal cavity, Dr. Smith testified that Tucker also was “breathing blood” and

“starving for oxygen.” Tucker also had multiple internal injuries, according to Dr.

Smith, that resulted from some weight being placed on his body. However, Dr.

Smith opined that neither the weight of Anderson’s body alone, nor the weight of

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Anderson’s body combined with the plywood and dirt would have produced the

extensive internal injuries sustained by Tucker and that some additional weight or

force had been applied to his body.

Dr. Smith testified that Delois Anderson also had sustained several injuries,

including a scalp tear on the back of her head inflicted two to six hours before her

death, an injury to her forehead consistent with her position in the grave, and injuries

to her neck consistent with manual strangulation. None of these injuries would have

caused death had she been afforded medical treatment. Dr. Smith testified that

Delois Anderson died from asphyxia caused by the position of her head against her

body, dirt in her mouth and nose, and trauma from weight on her body.

. . . Nakeita Shaw said that she still loves Montgomery very much, and she

asked the jury to spare his life. Montgomery’s aunt, Mattie Calhoun, also testified

on his behalf. Calhoun said that Montgomery was an average student, that he had a

very poor relationship with his father, that another man had helped to rear

Montgomery when his father abandoned him at age five or six, and that this

individual had died in 1986. Calhoun told the jury that the prosecution had the

“wrong people” and begged the jury to spare Montgomery’s life. Lastly,

Montgomery testified on his own behalf about how he and his brothers and sisters

were raised by his mother in Memphis and about how he last saw his father, who was

still alive, when he was five years old. He testified that he had spent slightly over

nine years in the penitentiary for previous convictions, that he had a job when he was

released in January 1994, and that at the time of these crimes his ten-year-old son was

living with him. Montgomery proclaimed his innocence and asked the jury to spare

his life.

Carruthers presented the testimony of Bishop Richard L. Fiddler, who had

been involved in prison ministry for twenty years and had visited Carruthers while

he was incarcerated awaiting trial. Fiddler believed that Carruthers was honest and

straightforward, was “a person of quality and worth,” and was very upset about the

victims’ deaths. According to Fiddler, Carruthers viewed the trial as his opportunity

to be vindicated. Fiddler asked the jury to spare Carruthers’ life. Carruthers’ sister,

Tonya Yvette Miller, a counselor at the Shelby County adult offender center, testified

that their mother raised four children on her own in one of the worst housing projects

in Memphis and that, as the oldest son, Carruthers was the “man of the household.”

Miller admitted that her brother had fallen into bad company and had a hot temper

but testified that he never planned to do anything wrong but acted out of “anguish

and anger.” She also stated that her brother had been raised to tell the truth. Miller

told the jury that if she believed her brother had committed these crimes she would

be the first person to say that he deserved the death penalty, but Miller said that

Carruthers was innocent and that, therefore, he “does not deserve the death sentence.”

Testifying on his own behalf, Carruthers asserted that he was innocent of the crimes

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and did not deserve to die. He said he would not have killed his friend because he

“wasn’t raised like that.”

Jury Findings

Based on this proof, the jury found the following aggravating circumstances

as to each defendant on each of the three murder convictions: (1) “[t]he defendant

was previously convicted of one (1) or more felonies, other than the present charge,

whose statutory elements involve the use of violence to the person;” (2) “[t]he

murder was especially heinous, atrocious or cruel in that it involved torture or serious

physical abuse beyond that necessary to produce death;” (3) “[t]he murder was

committed while the defendant was engaged in committing, or was an accomplice in

the commission of, or was attempting to commit, or was fleeing after committing or

attempting to commit, any first degree murder, arson, rape, robbery, burglary, theft,

kidnapping, aircraft piracy; or unlawful throwing, placing or discharging of a

destructive device or bomb;” (4) “[t]he defendant committed mass murder, which is

defined as the murder of three (3) or more persons within the state of Tennessee

within a period of forty-eight (48) months, and perpetrated in a similar fashion in a

common scheme or plan.” Tenn. Code Ann. § 39-13-204(2), (5), (7), and (12) (Supp.

1994). Finding that these aggravating circumstances outweighed mitigating

circumstances beyond a reasonable doubt, the jury imposed the death sentence as to

each defendant for each of the three murder convictions.

Carruthers, 35 S.W.3d at 524-32 (footnotes omitted).

FORFEITURE OF RIGHT TO COUNSEL

The present case is unique in that the petitioner, a capital defendant, was required to represent

himself at trial. In its direct appeal opinion, our supreme court detailed the circumstances that led

to the petitioner’s self-representation. Because these circumstances are pertinent to an understanding

of the petitioner’s current claims of ineffective assistance of pretrial and appellate counsel, we again

quote extensively from our supreme court’s direct appeal opinion:

Forfeiture of Counsel

We begin our analysis of this issue by summarizing the events that

culminated in Carruthers being required to represent himself at trial. As previously

stated, these crimes occurred on February 24 or 25, 1994. Carruthers’ family initially

retained AC Wharton, Jr., to represent him. Wharton was allowed to withdraw on

March 19, 1994, because of a conflict of interest. On May 31, 1994, the trial court

appointed Larry Nance to represent Carruthers. The State filed a notice of intent to

seek the death penalty on July 8, 1994. At a hearing held on July 15, 1994, the trial

court scheduled a pre-trial motions hearing for September 30, 1994 and set the case

for trial on February 20, 1995. Carruthers was present at this hearing and asked the

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trial court, “I’d like to know why this is being dragged out like this. I asked Mr.

Nance if we 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 planning to visit

the prosecutor’s office later in the week to review the discoverable materials and

evidence. The trial judge then advised Carruthers in pertinent part as follows:

[G]iven 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.

On August 12, 1994, the trial court appointed Craig Morton to assist Nance.

When the pre-trial motions hearing convened on September 30, 1994, all defense

attorneys involved in the case requested a continuance until November 14, 1994 so

that additional pre-trial motions could be filed. The trial judge agreed to continue the

hearing and also indicated that, where appropriate, a pre-trial motion filed on behalf

of one defendant would be applied to all defendants without a specific request.

Because the trial judge had received “an abundance of correspondence from

both Mr. Montgomery and Mr. Carruthers expressing concern about the pretrial

investigation that has been conducted by their attorneys,” the defendants were

brought into open court and advised of the continuance. The trial judge then asked

the attorneys to “state, for the record, the work that they’ve done and the work they

intend to continue doing on behalf of their client.” Each team of defense lawyers

reported to the trial judge on the work that had been completed and on the work they

intended to complete in the following days.

-12-

In particular, Nance indicated that he had inspected a majority of the physical

evidence, filed six or seven motions, issued subpoenas for approximately eight

witnesses, interviewed several of the one-hundred witnesses listed by the State, met

with Carruthers in lock-up at the courtroom on two separate occasions, met with

Carruthers’ family, and spent approximately twenty-five hours on the case. Nance

admitted that “some enmity” had developed between him and Carruthers, but

indicated that he believed the problem could be resolved.

Carruthers also was allowed to voice his complaints about his attorneys on

the record, and his primary complaint was that his attorneys had not met with him as

often as he had expected. After hearing the comments of both Nance and Carruthers,

the trial judge concluded as follows:

in my opinion, what has been done thus far in this case, given the fact

that there are still six more weeks before the next motion date, and

then a full three months beyond that before the trial date, is

appropriate and well within the standards of proper representation.

On October 21, 1994, the trial court approved payment for investigative

services for Carruthers and authorized competency evaluations for both defendants.

Morton informed the trial court that the investigator, Arthur Anderson, had attempted

twice to meet with Carruthers at the Shelby County jail and that Carruthers had

refused to meet with him on both occasions.

On November 14, 1994, Carruthers filed his first motion for substitution of

counsel. Four days later, on November 18, Morton asked the trial court to appoint

a different investigator who would take a more aggressive approach. The trial court

agreed to appoint a new investigator and continued the hearing date on the pre-trial

motions until December 16, 1994. On November 23, 1994, Morton advised the trial

court that he had retained the services of Premier Investigation.

Although the record does not reflect that a hearing was held, the trial court

allowed Nance to withdraw from representing Carruthers on December 9, 1994.

According to statements made by the trial court at a later hearing, Nance was allowed

to withdraw because of “personal physical threats” made by Carruthers that escalated

to the point that Nance did not “feel comfortable or safe, personally safe, in

continuing to represent Mr. Tony Carruthers.”

Coleman Garrett was appointed to replace Nance and represent Carruthers

along with Morton. The trial judge also authorized James Turner, a third attorney,

to assist the defense as an investigator. Both counsel and Carruthers continued to file

pre-trial motions. Some of these motions were heard on December 16, 1994, and

another hearing was scheduled for January 30, 1995. On that date, Garrett and

-13-

Morton appeared and presented argument on over seventeen motions. At this

hearing, the trial judge agreed to reschedule the trial from February of 1995 to

September 5, 1995. At a hearing on May 1, 1995, Garrett and Morton presented

argument on several more pre-trial motions including a motion to dismiss the

indictments, a motion to sever, and a request for expert services to analyze an

audio-tape of Nakeita Shaw’s statement. On May 5, investigator/attorney James

Turner was allowed to withdraw because he was a solo practitioner and could not

maintain his practice and effectively perform the investigation needed on the case.

However, the trial court appointed another attorney, Glenn Wright, to act as

investigator. On June 2, 1995, Garrett again argued that the indictments should be

dismissed due to Shaw’s allegedly false testimony before the grand jury.

On June 23, 1995, Garrett, Morton, and Wright sought and were granted

permission to withdraw by the trial court. The record reflects that Carruthers also

filed a motion for substitution of counsel. At a hearing on July 27, 1995, the trial

court appointed William Massey and Harry Sayle to represent Carruthers. During

this hearing, the trial judge commented as follows:

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 well represented and properly

represented, and it’s everyone’s desire to see to it that they are well

represented and properly 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 clients well.

We have gone through several attorneys now in an effort to

accommodate the defendants’ requests in that regard, but at some

point--and in my 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 job, but I have

allowed them to be relieved for one reason or another.

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 Mr. Carruthers, 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 that is, in my opinion, at least--my

humble opinion as the judge in this case--absolutely and totally an

-14-

inaccurate statement. The attorneys that have been relieved thus far

have been fully capable and fully competent and had been doing an

outstanding job, but for a variety of reasons, I’ve allowed them to

withdraw from the case.

* * * * * *

Mr. Carruthers has raised, through his correspondence, and

apparently 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. Carruthers and

themselves--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 matters 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 that 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,

please, or you can 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

been raised by Mr. Carruthers in some of his correspondence, that he

wants his attorneys to know that he’s the man calling the shots in this

case, and he’s the man to look to.

Well, of course, again, it’s a free country, 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

defendants 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 areas of whether he wants to testify or not and that

sort of thing. The attorneys 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 school. They are the ones that have been through trial

many times before, and they’re the ones that are here 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 best you can, but

ultimately the attorney is trying the case. And, you know, we don’t

-15-

pull people in off the sidewalk to try these cases, and the reason we

don’t is because of certain things that they need to learn and certain

experiences they need to have professionally before they’re prepared

to try these cases. So they’re here for that reason and for that

purpose.

* * * * * *

So that gets me to the reason for our being here. Because of

the matters raised by Mr. Carruthers, I have granted the request of

his previous two attorneys and investigator reluctantly because, in my

opinion, they were doing an outstanding job of representing Mr.

Carruthers and his interests.

* * * * * *

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 and the position that it put

his previous attorneys in, and their very, very strong feelings about

not continuing to represent Mr. Carruthers under those circumstances,

I have reluctantly agreed to let them withdraw.

And in an effort again to get attorneys who I’m satisfied have

the experience and the willingness to handle a case of this

seriousness, I have approached and am inclined to appoint Mr. Harry

Sayle, who is out of town this week and couldn’t be here today but

who indicated he would be willing to take the case on, and Mr. Bill

Massey, to represent Mr. Carruthers.

* * * * * *

And as I have stated, I’m running out of patience with regard

to these different issues--and I use that word advisedly--being raised

by the clients with regard to any objections they have with regard to

their attorneys. And as far as I’m concerned, these are the attorneys

that will represent these men at trial. It’s going to have to be one

gigantic conflict--one gigantic and real proven, demonstrated conflict

before any of these men will be relieved from representation in this

case. There will be no more perceived conflicts, no more unfounded,

wild allegations raised through correspondence, no more

-16-

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. But they’re the men that are going to

be representing you at trial.

(Emphasis added.) Consistent with prior practice, the trial court approved an initial

$1000 expenditure for investigative services for Carruthers’ newly appointed defense

team and conditioned further funding upon a specific showing of necessity by the

investigator. Massey indicated that he preferred to use his own investigator rather

than an attorney; therefore, Arthur Anderson, who previously had been employed on

the case, was retained.

The trial court approved additional funding for investigative services on

August 11, August 31, and again on September 27, 1995. Also, due to his recent

appointment to the case, Massey requested and was afforded a trial continuance until

January 8, 1996. Like previous counsel, Massey and Sayle filed many pre-trial

motions on behalf of Carruthers. By November 17, 1995, Massey informed the trial

court that all necessary and appropriate pre-trial motions had been filed.

However, about a month later, on December 19, 1995, Massey filed a motion

requesting permission to withdraw as counsel. As grounds for the motion, Massey

stated that his relationship with Carruthers had “deteriorated to such a serious degree

that [counsel] can not provide effective assistance as required by state and federal

law. . . . Counsel’s professional judgment cannot be exercised solely for the benefit

of Defendant, as counsel fears for his safety and those around him.” Attached to the

motion were several letters Carruthers had sent to Massey, both at his home and at

his office in late November and early December of 1995. In the letters, Carruthers

accused Massey of lying, and of being on drugs, threatened counsel, and expressed

overall dissatisfaction with counsel’s handling of the case. Massey made the

following statements to the trial court at the hearing on his motion to withdraw:

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 never found it

difficult to advocate on behalf of a case. I wouldn’t find it difficult

to advocate on behalf of this case. I do at 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 of 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

-17-

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 last call Mr.

Carruthers made is Exhibit E to this verified motion. She called me

in absolute tears crying uncontrollably, hysterically crying over his

antics. That’s the same way he’s been doing me. I just haven’t

broken down and started 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 advocating cases, particularly

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 see just words, a parrott-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 court. 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 Court’s answer is. I

know that the Court is in a very difficult position here. Obviously,

it’s very clear what the ploy is. It’s very clear that we’re never going

to get to trial like this. And if we do, then there’s going to be a record

made for ineffective assistance of counsel. And they believe, Mr.

Carruthers believes, that doing all of these things is going to make

him a record as opposed to doing things from a legal standpoint in the

courtroom. There are motions, objections at trial and through the

proper avenues that the courts of appeals will recognize as a legal

basis for a reversal. But we’ve gotten outside the legal area in this

case and we’ve gone into the area of intimidation, threats.

(Emphasis added.) Despite Massey’s argument, the trial judge denied Massey’s

motion, stating as follows:

With regard to Mr. Massey’s concerns, I certainly believe that

everything Mr. Massey has stated in his motion is factually accurate

and correct. I don’t have any reason to doubt that his secretary

received the phone call that she says she received in the memo she

prepared, or that any of these other things transpired. But I do think

and I do agree with Mr. Massey’s characterization that these efforts

by Mr. Carruthers are a part of an overall ploy on his part to delay

-18-

the case forever until something happens that prevents it from being

tried.

* * * * * *

In my opinion, to try to make the record reflect as clearly and

accurately as possible the fact that the system is doing everything it

can to make sure that Mr. Carruthers is properly and thoroughly

represented in this case. And Mr. Carruthers may step out to the

back. He just was pointing to Mr. Massey with some sort of

threatening gesture. And he’s going to sit in the back for the

remainder 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 manner as well. The

system has done all it can, in my opinion, to make sure that Mr. Tony

Carruthers 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 making 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 attorneys and

investigators differ a little bit from those complaints that Mr. Massey

has raised today. And so when Mr. Massey says ‘[t]hat just because

I’m the 4th or 5th attorney in line doesn’t mean that I now have to be

stuck, in effect, in representing 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 well.’ And I understand that position. But first of all

I’ll respond to that by saying their complaints were a little bit

different, and I’m not going to go through them on the record now.

The record is clear in those instances. One envelope is sealed with

several letters that will reveal what those complaints were and the

complaints from attorneys prior to that were 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 attorney in line, and he’s the one that is

going to quote, get stuck, representing Mr. Carruthers. Their

complaints 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.

(Emphasis added.) The trial court also emphasized that Carruthers’ ploy had become

more apparent over the course of the proceedings.

-19-

With the very first set of attorneys I tried to give Mr. Carruthers the

benefit of the doubt and excused them for reasons similar to yours,

but a little bit different. With the second set of attorneys I tried to

give Mr. Carruthers the benefit of the doubt and excuse them for

reasons similar to yours, but a little bit different. Now that we’re in

the third set of attorneys, the ploy is much more apparent than it was

with the first set of attorneys. Although, it was somewhat apparent

to any of us who have been in these courts for many, many years as

we all have been. Not wanting to jump to any conclusions or not give

him the benefit of the doubt, the first and second sets of attorneys

were excused. But now that we’re into the third set of attorneys the

ploy is much more apparent and, therefore, I'm much less receptive

to these sorts of arguments than I was a year ago when the first set

of attorneys came in wanting to be relieved.

(Emphasis added.)

Finally, in response to counsel’s comment that Carruthers should just go “pro

se,” the trial court concluded that it should refuse “to force a man to go pro se in a

capital case if he doesn’t want” and observed that Carruthers had never asserted his

right of self-representation. Although Massey’s motion to withdraw was denied, the

trial judge granted his request for additional funds for further investigation and for

hiring a mitigation specialist.

On January 2, 1996, six days before the trial was scheduled to begin, Massey

renewed his motion to withdraw. Massey informed the trial court that he had

continued to receive threatening letters at his home and was concerned for his

daughter’s safety because Carruthers had described the car she drove. Massey

indicated that he cared more about Carruthers’ right to a fair trial than did Carruthers

himself, but given the recent and ongoing threats, Massey declared, “I don’t want to

represent this man. I can’t represent him. I won’t represent him.”

At this hearing, the prosecution took the position that Massey should not be

allowed to withdraw because the defendant was simply manipulating the system in

an attempt to delay his trial. The State pointed out that the case had been pending for

almost two years and each time a trial date drew near Carruthers would increase his

letters and efforts to alienate his attorneys either through written or verbal personal

attacks or threats. The State urged the trial court to deny the motion to withdraw and

proceed to trial:

[I]f a defendant, Your Honor, can threaten the system, if he can

manipulate the system by threats, by letters, I’m not sure if that’s

what the makers of the constitution meant when they sat in

-20-

Philadelphia and they said, look, let’s let every defendant have a fair

trial. Let’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 man be accused of a

crime, will not go to trial, unless he receives a fair trial. Let no man

be convicted--but the framers of the constitution, Your Honor, had

not met Tony Carruthers.

After considering the comments of counsel, the trial judge briefly recounted

the history of the case and again emphasized that, in his opinion, all of the attorneys

appointed for the defendant, including Massey and Sayle, were excellent trial lawyers

who had fully performed their duties with regard to Carruthers’ defense, including

filing all relevant motions and thoroughly pursing the investigation of the case. The

trial court then ruled on Massey’s motion to withdraw, stating as follows:

Now, this is the way that the case is going to proceed on

Monday. Mr. Massey is still on the case. He still represents Mr.

Carruthers. If between now and Monday Mr. Carruthers chooses to

discuss with Mr. Massey the case and to cooperate with Mr. Massey

in his preparation of the defense in this case, then I’ll look to Mr.

Massey to go forward in representing Mr. Carruthers. There have

been disputes and conflicts between attorney and client before. This

is not the first time that there has been a problem between attorney

and client, and these types of problems can be repaired oftentimes.

And differences can be patched up, and attorneys can go forward.

And I would hope that that would be the case in this case. And I

would hope that Mr. Carruthers would between now and Monday,

work with Mr. Massey and Mr. Sayle in preparation for a trial. If Mr.

Carruthers elects not to, however, he will go forward representing

himself. This was raised on the 19th when Mr. Massey filed his

motion to withdraw and we first heard it. At that time, I rejected the

idea. I was reluctant to because I’ve never required an individual to

go forward representing himself when he has not requested that. And

I don’t like that idea, but I’ve given a lot of thought to that suggestion

since the 19th. For the record, Mr. Massey called me shortly after our

hearing on the 19th when he received some letters in the mail from

Mr. Carruthers that dealt further--that he felt further undermined his

ability to represent him. And I just want that on the record so there

is no misunderstanding about that. But since the 19th, and after the

phone call from Mr. Massey that I received, after the hearing on the

19th, and after his request today, I’ve given it a lot of thought to what

options were left, what options are still available in this case. And in

my judgment, the only option that is still available if Mr. Carruthers

chooses not to work with Mr. Massey and Mr. Sayle in going forward

-21-

with this case next Monday, is for him to represent himself. And I’ll

provide him with a copy of the rules of Tennessee procedure, the

rules of evidence. And he can sit at counsel table and voir dire the

jury, and question witnesses, and give an opening statement, as any

lawyer would, and he would be required to comply with all the rules

as any lawyer would, if he chooses to go forward on his own. If he

chooses to say nothing, then that’s his prerogative, and--But that’s

what the situation will be next Monday, Mr. Carruthers. And the

choice is yours. Again, the choice is yours. You have for the third

time around an outstanding attorney representing you. And he’s here,

and he’ll be available. If you choose to avail yourself of his services,

he will represent you on Monday. If you choose not to, you can go

forward representing yourself. If you go forward representing

yourself, I will require Mr. Massey and Mr. Sayle to be available as

elbow counsel so that at any recess or overnight, you can seek advice

from them, and they can confer with you and advise you in any way

that they deem appropriate. So if you elect not to have him represent

you and you go forward representing yourself, they’ll be in the

courtroom observing, and they’ll be available to offer advice and

counsel to you at any recess, lunch break, overnight break. One of

those two scenarios will occur next Monday. And again, it’s up to

Mr. Carruthers because we’ve been through this now for many, many

months and at this point in time, the case needs to go forward. There

is no other reason for the case to be reset, no proof problems from one

side or the other, no witness problems from one side or the other.

The case is now set for the third time for trial. There is no extrinsic

reason for an additional continuance. And--so Mr. Carruthers is

going to have to decide in which manner he wishes to proceed on

Monday, but the case will go forward on Monday. And I’ll hear back

from Mr. Massey Monday morning with regard to whether he has

been able to confer with his client and what the progress of that has

been, and whether he feels that the progress has been such that it

would allow him to go forward in representing Mr. Carruthers.

(Emphasis added.)

The record reflects that at a hearing held the next day, January 3, 1996,

Carruthers was “glaring” at Massey while “gritting his jaw.” Upon observing

Carruthers’ conduct, the trial court once again cautioned the defendant as follows:

And again, as I did yesterday, I want to remind Mr. Carruthers that

if it is his decision not to proceed with Mr. Massey and to proceed

pro se--just a minute. I’ll let you speak in a moment--then he needs

-22-

to understand that he will be held to the same standard that attorneys

are held to during a trial. Rules of evidence, rules of procedure will

apply. And he will need to familiarize himself as best he can with

those procedures and those rules between now and trial date because

in proceeding pro se, he will certainly be held to that same standard.

Obviously, he realizes the charges that are pending and the potential

for the imposition of the death penalty involved in this case. We’ve

had numerous hearings and motions over the past fifteen or eighteen

months, and all of those matters should be very apparent to Mr.

Carruthers at this point in time.

Responding to the trial court’s admonition, Carruthers said he did not want Massey

representing him because Massey was on cocaine.

Following this hearing, Massey filed an application for extraordinary appeal

in the Court of Criminal Appeals challenging the trial court’s ruling that he remain

on the case either as counsel or as advisory counsel. In an order dated January 8,

1996, the Court of Criminal Appeals held that Massey should be allowed to

immediately withdraw from further representation, stating:

This Court is of the opinion that the attorney-client

relationship which may have previously existed, has deteriorated until

such a relationship does not exist between Carruthers and Mr.

Massey. Also the circumstances of this case make it impossible for

Mr. Massey to ethically 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 conduct, 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. Moreover, Massey’s family is

filled with fear and anxiety due to the threats made to Massey; and

Massey’s secretary, who has had dealings with Carruthers by

telephone, likewise has fear and anxiety based upon her conversations

with Carruthers and the threats 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 Tennessee Supreme Court Office, which

advised Massey that he was ethically required to withdraw as counsel,

and, if the motion was denied he was required to seek relief in the

appellate courts.

* * * * * *

-23-

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 counsel of record for Mr. Carruthers. If

there ever was an amicable attorney-client relationship, it was

eradicated by Mr. Carruthers’ 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 emphatically denied any misconduct or addiction to

drugs, must attempt to protect his family, secretary, and himself from

physical harm as well as protect himself from further disciplinary

complaints.

(Emphasis added.)

The same day this order was filed, but before the trial judge had received the

order, a hearing was held in the trial court. After learning that Massey had received

seven more pieces of certified mail at his home since the hearing on January 2, and

after being advised by Massey that the difficulties with Carruthers had not improved,

the trial judge concluded that Carruthers,

through his actions, through his accusations, and letters, he has forced

himself into a situation where I have no option but to require that he

proceed pro se. And so in deference to your request, I will go forward

with my previous statement and that is that you and Mr. Sayle will

remain as elbow counsel. Mr. Carruthers will represent himself.

The trial court then reiterated, “[f]rom this point forward I’ll give Mr.

Carruthers the opportunity to speak on his own behalf at appropriate times. As I

indicated to him last week, he will be expected to comply with all of the rules of

procedure and evidence that an attorney would be required to comply with.”

Upon hearing the trial court’s ruling, Carruthers claimed that he had

attempted to reconcile with Massey and complained that he was not qualified to

represent himself. The trial judge responded:

Well, those are the perils in going forward pro se. And in my

judgment, Mr. Carruthers, as I’ve said on several occasions, and I

don’t intend to get back into 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 going forward and representing yourself. But you need to

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understand that in my judgment you have created this problem for

yourself. You are the author of your own predicament by, in my

opinion, sabotaging the representation of you by four previous

attorneys. These are now your fifth and sixth attorneys. In my

judgment, because of actions that you’ve taken over the past 18

months, because of actions that you’ve taken, you are now in this

situation. And so it may well be difficult for you to go forward in

representing yourself, but this is the situation that you’ve created and

you’re going to have to do the best you can, because there is virtually

no option left at this point. To reset it again, history would should

would only--would be a futile effort, because at the eleventh hour

with the seventh and eighth attorneys representing you, there would

be some other effort, in my opinion, some other manipulation on your

part that would 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 twelfth. And there’d be no end to it.

* * * * * *

And so we’re going forward and you’re going to represent

attorney.ourueld . rI tu nd ystunmay u’re lnh tv n n xv errig nn edhrough a voir dire process

y I sn fe s an der o a d yo wel oa ae ee pe eo ce t

before. And that’s unfortunate. I wish you had cooperated and gotten along with Mr.

Nance a year and a half ago. He was an excellent attorney, has tried many, many

cases in these courts, serious difficult cases and done an excellent job. I wish you

had cooperated and gotten along with Coleman Garrett who, in my opinion, is one

of the best trial attorneys in this entire state. He’s tried many cases in this courtroom

and defended individuals remarkably well. I wish you had cooperated and gotten

along with Mr. Craig Morton and Mr. Glenn Wright, and Mr. Harry Sayle, and Mr.

William Massey, because I think 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 lightly. But I tell you what, if the record isn’t

complete 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.

(Emphasis added.)

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After the trial court ruled, Carruthers offered to waive any conflict, to allow

Massey to continue representing him, to apologize to Massey, and to testify that the

accusations he had made against Massey were untrue. The trial court refused, finding

that Carruthers was merely using another tactic to delay the proceeding.

The next day, January 9, 1996, the Court of Criminal Appeals entered an

addendum to its previous order and allowed Massey to be completely relieved from

further representation or participation in the case including providing assistance as

“elbow counsel.” However, Sayle continued on the case as elbow or standby

counsel.

During voir dire two days later, January 11, 1996, the State requested a

continuance of the trial due to the hospitalization of one of its material witnesses,

Nakeita Shaw. The trial court granted the State’s motion for a continuance and

rescheduled the trial for April 15, 1996. At this point, in light of the continuance,

Carruthers made an oral motion for appointment of new counsel. The trial court

denied the motion, stating:

The ruling still stands. The system will not be held hostage by Tony

Carruthers, and to go through another round of attorneys will be

doing just that, because history suggests, as you’ve done in the past,

that is if new attorneys were appointed and spent the time and

investigated, the effort to get ready on this case, then at the eleventh

hour something would happen, some allegations would be made that

would undermine their ability to represent you, they’d ask to

withdraw, we’d be back in the same 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 attorneys. All

three of whom were 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 16, 1996, the trial court approved Carruthers’ request for funds

to obtain an investigator to assist him and authorized the investigator to contact the

trial court directly if additional funds were needed. In February of 1996, Carruthers

filed two more written motions for appointment of counsel which were again denied

by the trial court for the same reasons set out above. In a hearing on February 20,

1996, the trial court considered Carruthers’ pre-trial requests for funding for expert

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services, and, at this hearing, again recounted the events that culminated in

Carruthers being required to represent himself. The trial court observed that “it will

be apparent to anyone who objectively views this situation that Carruthers is not

being denied the right to counsel.”

Throughout these pre-trial proceedings, the trial court treated Carruthers with

respect, patiently listened to his arguments and requests, and afforded Carruthers and

his investigator considerable latitude in scheduling and arguing motions, even though

most of these motions were similar or identical to motions that had already been filed

and argued by counsel who had previously represented Carruthers. When Carruthers

requested ex parte hearings to seek funding for experts, the prosecution would

voluntarily leave the court room. The trial judge granted Carruthers’ request for

funding to obtain a forensic pathologist, but denied his request for funding for an

accident reconstructionist.

In February of 1996, the trial court allowed Sayle to withdraw as elbow

counsel because Carruthers apparently had no confidence or trust in Sayle and

because Carruthers was launching personal, verbal attacks upon Sayle. When Sayle

moved for permission to withdraw as elbow counsel, he stated:

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 suspects--he’s made it clear that he suspects

that I’m working with the state in some capacity. And frankly none

of the advice I give him is followed, and I don’t think there is any

intention of following it. And frankly its just--and the abuse gets

extremely personal. Personal villification over the last couple of

meetings, and I see no basis for being able to continue.

Thereafter, Carruthers twice made oral motions for appointment of counsel,

first on March 4, 1996, and then on April 15, 1996, the day jury selection began.

Again, the trial court denied these motions and noted that this was not the first case

in which Carruthers had employed such tactics. Carruthers therefore represented

himself at trial and sentencing, participating in voir dire, presenting opening

statement, questioning witnesses on cross-examination, making objections,

presenting witnesses in his defense, and presenting closing argument. After the jury

returned its verdicts as to guilt and sentencing, the trial court appointed counsel to

represent Carruthers on his motion for new trial and on appeal.

Carruthers, 35 S.W.3d at 533-45 (footnotes omitted).

On direct appeal, the petitioner argued that he was denied his right to due process when he

was required to represent himself during the trial of his capital case. In rejecting his claims, our

-27-

supreme court concluded that “an indigent criminal defendant may implicitly waive or forfeit the

right to counsel by utilizing that right to manipulate, delay, or disrupt trial proceedings.” Id. at 549.

The court then found that the record in the case supported a finding of both implicit waiver, based

on the trial court’s repeated warnings to the petitioner that he would lose his right to counsel if he

persisted in his misbehavior, and of forfeiture, based on the petitioner’s “extreme and egregious”

conduct. Id. at 549-50.

The court further concluded that the petitioner’s implicit waiver or forfeiture of his right to

counsel included a waiver or forfeiture of his right to effective assistance of counsel based on his

own self-representation:

To the extent that [the petitioner] is alleging his pro se representation was

ineffective, we agree with the Court of Criminal Appeals’ conclusion that when a

defendant forfeits or waives the right to counsel, regardless of whether the waiver is

explicit or implicit, he or she also forfeits or waives the right to effective assistance

of counsel.

Id. at 551 (citations omitted). Despite having found “no evidence indicating that any one of the

many attorneys appointed to represent [the petitioner] was ineffective,” id. at 550, the court

nonetheless noted in a footnote that the petitioner retained the right to raise an ineffective assistance

of counsel claim with respect to any stage of the proceedings at which he had been represented by

counsel:

We note, however, that a defendant retains the right to complain of ineffective

assistance with respect to any stage of the proceeding wherein he or she was

represented by counsel. Cf. Daughtry v. State, 225 Ga. App. 45, 482 S.E.2d 532, 533

(1997) (stating that a criminal defendant will not be heard to assert a claim of

ineffective assistance of counsel with respect to any of the stages of the proceedings

wherein he was counsel). Therefore, as previously stated, our holding in this appeal

does not preclude the petitioner from alleging in a post conviction petition ineffective

assistance of counsel with respect to a stage of the proceeding wherein he was

represented by counsel.

Id. at 551 n.31.

POST-CONVICTION EVIDENTIARY HEARING

In his post-conviction petition, the petitioner alleged that pretrial counsel were ineffective

for failing to conduct any meaningful investigation or preparation for trial, that appellate counsel

were ineffective for failing to raise meritorious issues on appeal, and that the prosecution engaged

in various acts of prejudicial misconduct. The petitioner’s first witness at the evidentiary hearing

was Dr. Cleveland Blake, who was accepted by the post-conviction court as an expert witness in the

areas of forensic pathology, clinical pathology, and anatomical pathology. Dr. Blake testified that

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he had performed over 6000 autopsies during the course of his career and had testified in a “[q]uite

a few” criminal proceedings, primarily as a witness for the prosecution. He said he had been

commissioned by the former director of the Tennessee Bureau of Investigation (“TBI”) to teach

death scene investigation to field agents and had worked in that capacity for approximately twenty-

two years until his affiliation with the TBI ended in 1999 or 2000.

Dr. Blake testified that in February 1996, the trial court asked him to review some records

in the petitioner’s case, including the autopsy reports, and write an opinion based on his review. At

the request of post-conviction counsel, Dr. Blake read aloud from a portion of the three-page

opinion, dated April 1, 1996, which he had tendered to the trial court:

In summary it would appear that the two black males were killed somewhat

before the female who disappeared later. All three of the victims having their lives

snuffed out well before adequate time to place them and conceal their bodies in the

bottom of the already prepared burial site before Daniel’s casket and vault were

placed in the ground some time on February the 25th.

Dr. Blake also read aloud from the trial court’s April 2, 1996, response letter to him:

I received your report dated April 1, ‘96. I assume that Mr. Carruthers will contact

you if he plans on having you testify at the trial. I have indicated to Mr. Carruthers

that he’s welcome to communicate directly with you and you with him without the

necessity of going through me. If you have any questions, please feel free to contact

me.

Dr. Blake testified that he was uncertain, after receiving this letter, as to how he could communicate

with the petitioner, who was in jail in Memphis at the time. He said that he never spoke with the

petitioner and was later notified by the trial court that the petitioner would not be calling him to

testify as an expert witness at trial.

Dr. Blake testified that the first time he heard any suggestion that any of the victims had been

buried alive was when he read Dr. O.C. Smith’s trial testimony; Dr. Smith never mentioned that

possibility in his conversations with him or in the autopsy reports. Dr. Blake stated that it was

possible that Delois Anderson had been buried alive but that she already had some previously

inflicted wounds, “including a neck strangulation.” Had he been called to testify at trial, he would

have disagreed with Dr. Smith’s conclusions that the two male victims had been buried alive.

Furthermore, “because of the ligature issue,” he would have disagreed that Delois Anderson was

conscious at the time she was buried. When questioned by the post-conviction court about the

discrepancy between his present testimony and the conclusions he had reached in his April 1, 1996,

letter to the trial court, Dr. Blake explained that he had changed his opinion after learning details,

such as the description of the grave and the placement of the bodies in the grave, which were not

available to him at the time he rendered his April 1, 1996, opinion:

-29-

[DR. BLAKE]: I didn’t have at that time, Your Honor, the details of the

testimony and description of the grave and her condition and the details about the

restraint around her neck that apparently cut off her windpipe. She could have been

conscious at the time. I can’t prove that one way or the other, but she could have

been conscious.

....

THE COURT: So if you were asked the question to a reasonable degree of

medical certainty, was she alive or dead when she was placed down there?

[DR. BLAKE]: She was unconscious and suffocated, and her head was

placed down in the corner of this pit at the bottom of the pit and against the wall of

the pit and some dirt was described as having been in her nose and mouth, but it was

not aspirated or swallowed into her stomach.

THE COURT: Which she would -- your opinion is she would have been

unconscious?

[DR. BLAKE]: She would have been unconscious.

THE COURT: Would she have felt any pain?

[DR. BLAKE]: Probably not.

Dr. George Nichols, accepted by the post-conviction court as an expert witness in the areas

of anatomical, clinical, and forensic pathology, testified that, in the fall of 2002, Charles Ray, a

Nashville attorney, asked him to perform an independent cause of death determination. He said that

Ray gave him a number of different materials, including a videotape of the Rose Hill Cemetery crime

scene, photographs, autopsy reports, the report of investigation of the county medical examiner’s

office, transcripts of the trial testimonies of Dr. O.C. Smith and Dr. Hugh Berryman, and various

notes and newspaper clippings. After reviewing these materials, he responded as follows in a letter

to Ray dated November 12, 2002:

Marcellos Anderson died as a result of a gunshot wound. Specifically there

[were] multiple gunshot wounds. One in the back which produced no significant

injury. One, a contact wound in the forehead that resulted in a small amount of

intracranial hemorrhage in the subarachnoid space, but the bullet did not actually

enter into the cranial cavity. Rather, it was restricted into the frontal sinus. What

killed him is a gunshot wound which enters the right upper chest traverses into the

spinal cord where it results in a laceration of the spinal cord at the level C-7.

Associated with this are lacerations of the cervical spine and bleeding in the

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membranes that surrender [sic] the spine and the brain. The subdural and

subarachnoid spaces. That’s the cause of death. . . .

....

Next Fred[e]rick Tucker. Mr. Tucker died as a result of a gunshot wound to

the chest resulting in a massive internal hemorrhage and at the chest called the

hemothorax. He has evidence of other injuries, but the cause of death was clearly a

gunshot wound. And last Delo[is] Anderson. She died as a result of compressive

asphyxia. The compression at this point being around her neck. Resulting in

obstruction of blood flow out of the head, causing petechiae hemorrhages or small

red spots to occur as a result of capillary rupture with at least in the whites and pinks

of her eyes. So she died an asphyxia death. There’s clear evidence of shooting

firearms injury being fatal in the two males.

Dr. Nichols testified that there was no evidence, in his opinion, “that any person was alive

in the site in which their bodies were discovered.” He further testified that there was “no proof of

the best evidence of conscious activity of any victim while alive in the grave site.” Specifically, he

found no evidence of inhalation of dirt, mud, dust, or earth in the upper airways, mouth, or lungs of

any of the victims, which would have indicated that the victims had breathed after being placed in

the grave. On redirect examination, he reiterated that he found no evidence to show that “any of

these three people were alive and breathing in that space. None.”

A member of the petitioner’s anonymous jury, who was identified at trial by the number 121,

testified that he was living at 2031 Pamela Drive in the Frayser community of Shelby County at the

time he served on the petitioner’s jury. He recalled that someone had run over his mailbox during

the summer of 1992 but did not recall having reported the incident to the police or making a

complaint to the police about a neighborhood party. He testified that he later learned that an elderly

man from his church, who could not drive very well, had accidentally run into his mailbox. He said

he did not remember recognizing any of the courtroom spectators as one of his neighbors and,

although someone had mentioned that the petitioner’s mother was present in the courtroom, he was

never sure “which one she was.”

Juror 121 testified that the jurors who served at the petitioner’s trial were kept anonymous

but were not told why. He said he had assumed that it was standard procedure for a criminal trial.

He described the atmosphere during the trial as “pretty intense,” explaining that “they had

[S.W.A.T.] team up there where we were sequestered.” He stated that the jurors were sequestered

on the second floor of the court building and left only one time for one or two hours when they were

taken to the civil courthouse on Adams Avenue. On cross-examination, he testified that the

heightened security during the trial did not affect his decision-making.

Jane Carruthers, the petitioner’s mother, testified that in 1990 she purchased a home at 2013

Pamela Drive in the Frayser community, located two doors from the residence of Juror 121, where

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she lived until 1997. She stated that she was one of the first African-Americans to move into the

predominantly white neighborhood and, as a result, felt intimidated. She was “nice and cordial to

[her] neighbors but . . . kept to [her]self.” She testified that Juror 121 was unfriendly and would not

answer her when she greeted him. In addition, he once accused her son, Terrance, of knocking over

his mailbox. Ms. Carruthers also recalled that when she was hosting a welcome home party on the

street to celebrate the petitioner’s release from prison, someone in the neighborhood complained to

the police.

Ms. Carruthers testified that she was not permitted to attend the jury selection process but

was present every day of the petitioner’s April 1996 trial. She said she recognized Juror 121 on the

first day of trial and relayed the information to Patsy Weber, the jury specialist appointed to assist

the petitioner, who told her that she would pass the information along to the judge. Ms. Carruthers

testified that the trial judge mentioned the fact that Juror 121 was her neighbor at some point during

the trial. However, she could not recall any of the particulars.

Terrance Roger Carruthers, the petitioner’s brother, testified that he lived with his mother

at 2013 Pamela Drive from 1990 until 1993 and first became familiar with Juror 121 when that juror

called the police and accused him of running over his mailbox. He said that when the petitioner was

released from prison in August 1993, his mother held a neighborhood fish fry that was attended by

almost every resident on their street with the exception of Juror 121. During that event, someone

called and complained to the police that the party was disturbing the peace. Because Juror 121 came

out of his house when the police arrived, the witness believed that he was the person who had lodged

the complaint.

Larry Nance, a Memphis attorney, testified that he was appointed to represent the petitioner

on May 31, 1994. At the time of his appointment, Nance had tried one capital case as lead counsel.

Nance stated that A C Wharton had represented the petitioner at the preliminary hearing. The court

later appointed Craig Morton to assist Nance. Nance confirmed that, prior to Morton’s appointment,

he had spent approximately 60.15 hours on the case and, after Morton’s appointment, 18.9 hours.

Nance recalled that the names of more than 100 witnesses were provided by the State in

discovery. Nance located some of the witnesses and then talked to Ron Lax, an investigator with

Truth Incorporated, but could not recall conducting witness interviews. Nance said that the

petitioner provided him with the names of potential alibi witnesses, but he could not recall making

contact with them. Although Nance had the autopsy reports of Dr. O.C. Smith, he did not make an

application with the court to hire a forensic pathologist or a ballistics expert and did not consult with

a DNA expert. Nance acknowledged that in the six-month period that he represented the petitioner

he did not make plans for a social investigator.

Nance estimated that he met with the petitioner “a dozen” times at the jail. He elaborated

that on at least two occasions the petitioner refused to meet with him during jail visits. As a result,

“communication between the two of [them] broke down fairly early in the representation.” On

November 14, 1994, the petitioner filed a motion for substitution of counsel. Nance recalled

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attending a bench conference where he was told he was being relieved but did not recall the

petitioner being present at the conference. He was relieved in December. Nance recalled a hearing

in October 1994 where the petitioner complained to the court about his representation. Upon the

court’s relieving Nance, Coleman Garrett was appointed as lead counsel. Nance said that Garrett

did not ask for his file on the petitioner’s case.

Steven Leffler testified that, in May 1996, he and Lee Filderman were appointed to represent

the petitioner on his motion for new trial and direct appeal. At the time of his appointment, Leffler

had been in practice for twelve years. Leffler said that his practice was “50/50” civil and criminal,

with approximately 40% of his appellate experience being criminal. He acknowledged that he had

not argued a case before the Tennessee Supreme Court prior to his appointment but said he had

worked on other capital cases at the appellate level. Leffler stated that he and Filderman “split up

the work” involving the petitioner’s appeal. Both went through all of the trial transcripts, determined

the scope of the appellate issues, and then decided which issues each would brief.

Leffler said that the amended motion for a new trial filed in September 1997 mentioned the

inability of the petitioner to meet with Dr. Blake to determine whether to call him as a witness.

Although this was raised in the amended motion for a new trial, neither Leffler nor Filderman visited

with Dr. Blake or tried to interview him by other means. Also, no argument was made on this issue

in the direct appeal. Leffler conceded that the issue as to whether the three victims were buried alive

was emphasized by the State at the penalty phase. He acknowledged that there was no strategic

reason for not developing evidence to attack Dr. O.C. Smith’s testimony. Leffler agreed that, at the

time, “the record was frozen” on the issue.

Leffler acknowledged that the petitioner’s case was the first he was aware of where the judge

impaneled an anonymous jury. He stated that he thought they had raised this issue in the motion for

a new trial, but, if not, the issue was not omitted for strategic reasons. Leffler conceded that he did

not think that the jurors’ signing the death penalty verdict form by numbers, instead of names, was

an issue. He explained that he understood that the trial court’s motivation for the anonymous jury

was fear of retaliation. Leffler’s understanding was that the court could not impanel an anonymous

jury throughout the trial and then require the jurors to reveal their identity by signing the verdict.

He disagreed with the suggestion that the jurors were relieved of their sense of responsibility for

imposing the death penalty in this case. Leffler acknowledged that there was no strategic reason not

to pursue the issue as to whether Juror 121 knew the petitioner’s family. Again, he stated that the

“record was frozen,” meaning, apparently, that he would not be permitted to develop a new factual

record in support of these issues.

Regarding the petitioner’s self-representation at trial, Leffler characterized it as “not

competent.” His opinion was that a capital defendant should not be permitted to represent himself.

Leffler said that any challenge to counsel’s omissions that possibly led to the petitioner’s self-

representation was usually raised in a post-conviction petition.

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Leffler testified that he met with the petitioner at least three times and Filderman met with

him at least once to discuss the appeal. Leffler provided the petitioner with drafts of the initial brief

and asked for comments. Leffler could not recall discussing with the petitioner any issue with Juror

121. He also stated that the petitioner had personally approved the brief submitted to the Court of

Criminal Appeals and that the only issue not included in the brief was an issue regarding the

indictment. Leffler said that they were “very careful” regarding the issues included on direct appeal.

Leffler said that he had a “fairly good working relationship” with the petitioner. He also stated that

the petitioner “complained about a lot of things,” including appellate counsel’s lack of experience.

Lee Filderman testified that, prior to his appointment as second chair appellate counsel, he

was familiar with the petitioner’s case due to the media attention and from hearing discussions at the

courthouse. At the time of his appointment, Filderman had been in practice for about three years but

had no capital murder trial experience. He said he expressed his concern as to his inexperience in

appellate work to the trial court.

Filderman testified that he did not contact Dr. Blake or attempt to get a copy of his file.

Filderman described his involvement in this matter as follows:

The way this worked during my entire representation of [the petitioner] was I initially

met with [the petitioner] when he was at Riverbend Maximum Security Prison. I sat

with him for three or four hours in lockup listening to pretty much everything he

wanted to tell me and kind of sharing and trying to learn what had happened in the

case. I reported back to Mr. Leffler at that point. He began his work and we met

many times and reviewed the various aspects of the case and the appeal and what

issues were pertinent and what weren’t and what were appropriate for the appeal and

what weren’t. I was a sounding board to Mr. Leffler and certainly provided counsel

in the matter, but he really ran the ship. He was the captain of the ship. And I was

in no position to challenge that. . . . I did not take an active role in making the final

decisions because I had deferred to Mr. Leffler thinking that would be more

appropriate.

Filderman acknowledged that many of the issues with which they dealt were unique to

Tennessee law. Although they had discussed the fact of the anonymous jury, this was not raised as

an issue in the motion for a new trial or on appeal. Filderman related, however, that if the petitioner

had requested or insisted upon this being raised as an issue, they would have done so. He recalled

some discussion about a juror who lived in the same neighborhood as the petitioner’s family. He

and Leffler had numerous conversations with the petitioner’s family members regarding this matter

but could not recall if the issue regarding Juror 121 was discussed.

Appellate counsel discussed issues relating to the security measures employed at trial.

Filderman opined that “the [S.W.A.T.] team and all of the added security [were] unnecessary and

prejudicial,” but he could not recall whether this issue was raised in the motion for new trial.

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Filderman said that he and Leffler spent “numerous hours, day, weeks, months, reviewing the

lengthy transcript and records of this case.”

Filderman said that the petitioner wanted to focus on the issue of the superseding indictment,

and he and Leffler spent much time working on this issue. Filderman related that, subsequent to his

argument before the Court of Criminal Appeals, he met with the petitioner, who had “nothing but

praise” for Filderman.

Patsy Weber testified that, at the time of the petitioner’s trial, she was employed as a trial

consultant and was appointed by the court to assist the petitioner in jury selection. In assisting the

petitioner, Weber prepared an opening statement and questions for him to ask the jurors. She had

the petitioner practice asking jury questions and reading the statements she prepared for him. She

also advised him during the trial.

Weber said that on April 24, 1996, she telephoned the trial judge to inform him that the

petitioner’s mother suspected that one of the jurors was her neighbor. The trial judge told her she

had done the “right thing.” Upon the advice of an attorney, Weber drafted a letter to the trial judge

outlining the telephone call but never sent it to him and had no knowledge as to what he did with the

information she provided.

Weber described the atmosphere surrounding the petitioner’s trial:

The atmosphere was very tense. When you walked into the hallway out there,

there was crime scene tape around it. You walked through metal detectors which was

very unusual then. . . . And then you walked into the courtroom and everything was

very tense, very silent, very solemn.

....

There were more officers than usual. And there were other officers . . .

besides the . . . Shelby County Sheriffs because I saw officers dressed in navy. And

there were officers on each side of the judge’s bench . . . stationed there as well as at

the door, and the door, and over there. They [sic] were more than usual.

Glenn Wright testified that he was appointed in December 1994 as an attorney/investigator,

along with Coleman Garrett. He was permitted to withdraw on June 23, 1995. Wright did not

interview any witnesses and visited the petitioner one time. No mitigation investigation was

undertaken by Wright. He explained that he and Garrett went to the jail to see the petitioner, who

afterwards attacked Garrett by sending a letter accusing Garrett of making homosexual advances

toward him. This letter effectively destroyed the attorney-client relationship. They then sought to

withdraw from the petitioner’s case. From Wright’s recollection, “there [was] no time to engage in

any type of representation of [the petitioner] on [his] part.”

-35-

Coleman Garrett testified that he spent 97.5 out-of-court hours and 28.5 in-court hours on

the petitioner’s case but had no recollection of meeting with any witnesses. He recalled that the

petitioner had urged him to get the jail law library records to show that he and Alfredo Shaw were

never in the library at the same time. Garrett remembered talking to members of the petitioner’s

family but could not recall “any specifics that was done documenting mitigation.” However, he said

mitigation preparation would “definitely” have been a part of the case preparation. Garrett stated

that there were serious communication problems from the outset with the petitioner who had specific

ideas as to how he wanted his case handled.

On cross-examination, Garrett testified that, before he was appointed by the court, the

petitioner’s mother contacted him and asked him to visit the petitioner. At this meeting, the

petitioner was very angry and upset that Garrett was present. Regarding his representation of the

petitioner, Garrett said that he had numerous meetings with the petitioner and had issued subpoenas,

including one to the chief jailer.

Garrett explained the circumstances leading to his eventual withdrawal from representation.

He said that the petitioner had made personal attacks on his character and allegations of misconduct.

Members of the defense team wanted to be relieved because of threats and allegations of misconduct

by the petitioner. The petitioner’s actions made it very difficult to go forward with preparing the

case. Garrett testified that, had he remained on the case, he would “have done everything that [he]

thought necessary and proper to muster a defense on [the petitioner’s] behalf.” He explained that

it was “somewhat impossible to prepare for this case because of lack of cooperation, because of

communication problems, because of team members’ attitudes about whether they wanted to

continue on the case, and it was a difficult situation.” If he had stayed on the case, he “certainly

would have put together any necessary experts, retained necessary experts, would have prepared for

mitigation in this situation, and would have been prepared to put forth the best defense that [they]

could put together on [the petitioner’s] behalf notwithstanding the fact that this was a very difficult

situation to deal with.”

Harold Archibald testified that he was appointed to assist in the representation of the

petitioner’s codefendant, James Montgomery. He explained that he was second chair, and another

attorney was appointed as lead counsel. Regarding the atmosphere of the trial, Archibald described

it as having “[h]eavy security[;] [a]s a matter of fact there was more security in this trial than any

other trial [he] had participated in.” He stated that there were armed plain clothes officers in the

courtroom and S.W.A.T. team members outside the courtroom. Archibald said that he sat next to

the petitioner during the trial and that the petitioner “behaved himself.” Archibald stated that, in his

opinion, the petitioner was not competent to act as his own counsel.

Craig Morton, II testified that he was appointed as second chair counsel to represent the

petitioner. He was appointed on August 12, 1994, and permitted to withdraw in June of the

following year. During the ten months that he represented the petitioner, Morton spent 213 hours

on the case. He interviewed witnesses and discussed Alfredo Shaw with lead counsel, Larry Nance.

Morton agreed that he had a “fairly decent working relationship” with the petitioner and said that the

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petitioner even had his home telephone number. He added that the petitioner was very demanding,

explaining that, if counsel did not immediately react to one of his demands, the petitioner became

very frustrated. Morton said that he, Glenn Wright, and Coleman Garrett met with the trial judge

about withdrawing from the case, but he could not remember if a court reporter or a member of the

district attorney general’s office was present.

John Billings, a private investigator, testified that in January 1996, the trial court authorized

the petitioner to employ him. At the time, his agency, All Pro Investigations, employed seven

investigators. Prior to his appointment, he had worked for another firm on Jonathan Montgomery’s

case. At the time of his appointment, Billings had worked on fifteen to twenty capital cases.

Billings was the third investigator assigned to the petitioner’s case, and he requested the information

from the two prior investigators. He eventually received two pages of investigatory work from

Randy Anderson but nothing from Glenn Wright. He described this work as “some of the ‘poorest

quality work’ [he] had ever seen.” A review of the prior investigatory work revealed that out of a

pool of 170 to 180 witnesses, statements had been taken from only six or seven. Billings also

received some work from Curtis Lowell, the investigator on James Montgomery’s case. Billings said

that he and his colleagues spent approximately 400 hours on the petitioner’s case. He obtained

seventy-five witness statements and knew of no reason why his predecessors could not have done

the same work he did.

Billings testified that the trial court appointed Dr. Blake, a forensic pathologist, to assist the

petitioner’s defense. He related that Dr. Blake’s office was in Morristown, Tennessee, a five-hour

drive from Memphis. It was Billings’ understanding that he could not receive any information from

Dr. Blake unless the trial court approved it. Billings was finally able to briefly speak to Dr. Blake

before the start of the trial, and Dr. Blake implied that he was not aware that the petitioner was

representing himself at trial. He said that they finally served a subpoena on Dr. Blake, but the

petitioner ultimately did not call him as a witness.

Billings testified that “[t]hings were a bit tight in the courtroom.” He explained:

[The trial judge] had had death threats and tires slashing and a lot of things. He had

– my kids attended the same school and he had a body guard with the children in the

class rooms which . . . his life was tumultuous. And he and [the petitioner] didn’t

seem to get along very well. . . .

He described the courtroom as “unlike anything [he had] ever seen,” saying it was “intimidating,

frightening, looked like something was going to happen.” He related that there was yellow crime

scene tape, a metal detector, three guards by the metal detector, and S.W.A.T. team members with

cobra emblems and bulletproof vests and that, at times, as many as eleven deputies were in the

courtroom.

Billings said that he wrote the trial judge expressing his concerns: (1) he was having serious

problems getting to see the petitioner; and (2) the petitioner was being handcuffed and shackled

when brought in for visitation. He acknowledged that on April 19, 1996, a Shelby County deputy

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jailer was gunned down in his driveway. After that incident, all access to the petitioner was stopped.

While the petitioner was initially the focus of the investigation of that shooting, ultimately, the

investigation led to the arrest of a female deputy jailer.

Billings testified that he interviewed Alfredo Shaw who was a “fourteen time snitch.”

Billings stated that there was no possibility that the petitioner and Shaw were in the law library at

the prison at the same time. After the interview, Shaw was willing to testify for the petitioner. The

petitioner also wanted Billings to locate alibi witnesses, but he was only able to locate a small

percentage of those witnesses because, in his view, “most of them did not want to be found.” He

later learned that the witnesses were being threatened by an opposing gang, the Gangster Disciples.

Regarding trial strategy, Billings stated that they focused on the statements of Jonathan

Montgomery which implicated several individuals. He later received information from a federal

witness, Michael Holmes, in a major cocaine case that led to a new strategy and the investigation of

new individuals. The petitioner’s alibi witnesses included Adolpho James who testified that he was

with the petitioner in the “wee morning hours of [February] 25th.” Billings explained that Holmes

knew the victims and was the courier between the Columbians and the Smoky City People, who

were all dealing in cocaine. Billings testified that he received little assistance from the petitioner’s

appointed counsel. He said that, due to the time constraints between the time of his appointment and

the time of the trial, he was unable to complete the investigation as thoroughly as he desired.

Billings described the petitioner as “very intelligent and very interested in this case and quite

knowledgeable.” He said that he and the petitioner never had any problems, but his relationship with

the trial judge had eroded by the end of the trial and the judge had impeded his ability to properly

investigate the case and confer with the petitioner. He explained that the trial judge denied some

billing charges and refused to address problems at the jail.

William Massey testified that he and Harry Sayle were appointed to represent the petitioner

by order entered on August 11, 1995, but issued nunc pro tunc to July 27, 1995. Massey was

released from further representation of the petitioner on January 9, 1996. He agreed that a trial date

of January 8, 1996, was “extraordinarily quick” in a capital case.

Massey recalled that the State’s witness list was three to four pages long and that, at the time

of his appointment, none had been interviewed. He confirmed that he worked approximately 125

hours on the petitioner’s case. Several witnesses were interviewed by the investigators. Massey did

not know that the investigator at that time, Randy Anderson, was not licensed in Tennessee. He also

was unaware that Anderson had only interviewed one witness but said that codefendant

Montgomery’s investigator had done “a good bit” of investigation and shared that information with

him.

Massey stated that he visited the petitioner more than three times at the jail and visited with

him on days of hearings. He received numerous telephone calls from the petitioner who was “very

upset” and “often said [his case] wasn’t prepared or wasn’t investigated.” The petitioner also wrote

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several letters to Massey which, as the trial date approached, became “more harsh,” with much of

the content directed at Massey himself rather than the case. In a letter dated December 7, 1995, the

petitioner told Massey, “You are one white boy I don’t even worry about. Your brains are going to

get your slick racist ass in a whole lot of trouble. All I tell you is to do you want [sic] to do, and I’ll

do what I HAVE TO DO! Point blank!” The petitioner also made statements about the car

belonging to Massey’s daughter, and his telephone calls to Massey’s office caused Massey’s

secretary to “collapse[].” As a result, Massey felt threatened and “compromised as a lawyer.”

Massey said that, at the same time as his motion to withdraw from further representation was filed,

he asked for a ballistics expert and a mitigation expert. Massey said that the trial court granted

funding for both a ballistics expert and a mitigation specialist.

Regarding the petitioner’s representing himself, Massey said that he was concerned about

the fairness of making a defendant represent himself in a capital case. During jury selection, the

petitioner and Montgomery asked Massey to come back and help with the case, and Massey

informed the trial judge that he was willing to represent the petitioner even though he felt

“compromised.” However, the trial judge would not allow him back on the case.

Harry Sayle testified that he was appointed second chair counsel on the petitioner’s case and

that he reviewed the files and talked to the petitioner about potential experts. The petitioner wanted

a forensic pathologist. Sayle recalled that the petitioner filed numerous pro se motions, including

one requesting DNA evidence. Sayle stated that, after Massey was removed from the case, he,

himself, acted as elbow counsel for about a month before he was removed. He said he soon became

the petitioner’s next target, explaining that, during one telephone conversation, the petitioner

“berat[ed] and holler[ed] at [him] and demeaning in ways that . . . were unacceptable.” The

petitioner also called Sayle’s daughter on two occasions, frightening her “rather significantly.” Sayle

said that the petitioner refused to listen to “anything any of the lawyers had to say at all.” He recalled

that, at one meeting, the petitioner and Montgomery “utterly ignored” the attorneys and talked

between themselves. The petitioner would not listen to the advice of counsel and criticized counsel

for anything they did. Sayle testified that they filed a motion to dismiss the indictment which was

denied. He recalled that the petitioner was indicted without being granted a preliminary hearing.

Juror 127 testified that she served as the foreperson of the petitioner’s jury and recalled that

Juror 121 said he thought he recognized the petitioner’s mother as living down the street from him.

Juror 127 did not recall an excessive amount of security in the courtroom and said that she did not

listen to any radio programming, including the Mike Fleming Show, during the trial. She did listen

to the Mike Fleming Show one to two weeks after the trial and called in to the show to discuss the

case.

The testimony of Sergeant Aqua Hamilton and Jimmy Maze was introduced by deposition

on September 29, 2005. Sergeant Hamilton, an employee of the Shelby County Jail, testified that

the visitation records from February 28, 1994, through April 22, 1996, reflected who visited the

petitioner and what time they did so. She confirmed the following visits:

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03-05-94 7:50 [].m. Terrance Carruthers (relative)

03-19-96 9:00 [].m. John Billings (investigator)

04-01-96 10:30 [].m. Patsy Weber (jury specialist)

Jimmy Lee Maze, a witness at the petitioner’s trial, testified that he wrote a letter to the trial

court sometime in 2000. Maze stated that he was told by the prosecutor and his attorney that, if he

testified at the petitioner’s trial, he “would be taken care of.” He explained that he had received

threats and that they had promised him protection. Maze said that the prosecutor’s promise to get

a job for him was made only after he had received probation.

Maze explained that, in early 1994, he was arrested for theft of property. In May 1994, he

was released on community corrections. This was after he had talked to law enforcement officers

regarding the petitioner’s case. Maze testified at the petitioner’s trial in April 1996. At the time he

testified, Maze was again in jail because of three new charges: theft of property, reckless

endangerment, and robbery. For those charges, Maze was ultimately convicted and received an

effective sentence of six years.

On November 3, 2005, Todd Bille, accepted as an expert in forensic DNA analysis, testified

that, in November 2002, he was hired by codefendant James Montgomery to serve as an expert in

his case. Bille was asked to examine evidence to determine if there could be potential biological

fluids and whether DNA analysis could be performed. Bille examined a total of nineteen items,

including Marcellos Anderson’s socks, pants, shirt, underwear and belt; Tucker’s socks, jeans, belt,

shirt, and boots; Delois Anderson’s dress and underwear; an unidentified red sock; ties or bindings

from Tucker; and a section of a white cloth blanket. From the testing done on these items, Bille

prepared a summary report in June 2003 and a final report on March 17, 2005.

Bille reported that samples from the white blanket did not match the DNA of any of the

victims, the petitioner, or the codefendants. Bille commented that the tests performed on the white

blanket could not have been performed at the time of the trial, but similar tests could have been

performed with the same results.

FINDINGS OF POST-CONVICTION COURT

On February 2, 2006, the post-conviction court entered an order denying the petition for post-

conviction relief. Among other things, the post-conviction court found that the petitioner failed to

meet the prejudice prong of the Strickland test with respect to his ineffective assistance of pretrial

counsel claim; failed to show that appellate counsel were deficient for not raising the petitioner’s

listed issues on appeal or that he was prejudiced as a result of the issues not being raised; and failed

to show that the prosecution engaged in misconduct or that the alleged misconduct affected the

outcome of the trial. The post-conviction court noted that there were troubling aspects to the trial

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but that they were caused by the petitioner’s own actions in forfeiting his right to counsel. The post-

conviction court concluded:

The Court has carefully considered all of the petitioner’s claims. There are

issues related to the trial of this case that give pause, but when analyzed they all come

down to the fact that the petitioner represented himself at the trial and the petitioner

made some questionable decisions before and during the trial. He is responsible for

the negative impact of his own decisions while acting as his own lawyer. . . . Many

of the complaints here simply come full circle. It comes down to the consequences

of the petitioner having implicitly waived his right to counsel.

For the reasons expressed above, . . . all claims of the petitioner are found to

be without merit.

Thereafter, the petitioner filed a timely appeal to this court.

ANALYSIS

I. Post-Conviction Standard of Review

Post-conviction relief is available to a petitioner who establishes that his or her conviction

or sentence is void or voidable because of an abridgement of a constitutional right. Tenn. Code Ann.

§ 40-30-103 (2006). The post-conviction petitioner bears the burden of proving his allegations by

clear and convincing evidence. Id. § 40-30-110(f) (2006). When an evidentiary hearing is held in

the post-conviction setting, the findings of fact made by the post-conviction court “are entitled to

substantial deference on appeal unless the evidence preponderates against those findings.” Fields

v. State, 40 S.W.3d 450, 456 (Tenn. 2001); see also Tidwell v. State, 922 S.W.2d 497, 500 (Tenn.

1996). Where appellate review is of purely factual issues, the appellate court should not reweigh or

reevaluate the evidence. See Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997). However, review

of a post-conviction court’s application of the law to the facts of the case is de novo, with no

presumption of correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of

ineffective assistance of counsel, which presents mixed questions of fact and law, is reviewed de

novo, with a presumption of correctness given only to the post-conviction court’s findings of fact.

See Fields, 40 S.W.3d at 458; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

II. The Petitioner’s Claims Before this Court

A. Ineffective Assistance of Counsel

1. Legal Standard

To establish a claim of ineffective assistance of counsel, the petitioner has the burden to show

both that trial counsel’s performance was deficient and that counsel’s deficient performance

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prejudiced the outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.

2052 (1984); see also State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (noting that

same standard for determining ineffective assistance of counsel that is applied in federal cases also

applies in Tennessee). The Strickland standard is a two-prong test:

First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S. Ct. at 2064.

The deficient performance prong of the test is satisfied by showing that “counsel’s acts or

omissions were so serious as to fall below an objective standard of reasonableness under prevailing

professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland, 466 U.S.

at 688, 104 S. Ct. at 2065). The prejudice prong of the test is satisfied by showing a reasonable

probability, i.e., a “probability sufficient to undermine confidence in the outcome,” that “but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694, 104 S. Ct. at 2068. “The benchmark for judging any claim of ineffectiveness must

be whether counsel’s conduct so undermined the proper functioning of the adversarial process that

the trial cannot be relied on as having produced a just result.” Id. at 686, 104 S. Ct. at 2064.

“Judicial scrutiny of performance is highly deferential, and ‘[a] fair assessment of attorney

performance requires that every effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.’” Combs v. Coyle, 205 F.3d 269, 278 (6th Cir. 2000) (quoting

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065). When reviewing a claim of ineffective assistance

of counsel, the court “must indulge a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Additionally, courts should defer to trial strategy

or tactical choices if they are informed ones based upon adequate preparation. Hellard v. State, 629

S.W.2d 4, 9 (Tenn. 1982). Finally, it is acknowledged that criminal defendants are not entitled to

perfect representation. Denton v. State, 945 S.W.2d 793, 796 (Tenn. Crim. App. 1996).

In evaluating whether a petitioner satisfies the prejudice prong, a court must ask “whether

counsel’s deficient performance renders the result of the trial unreliable or the proceeding

fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S. Ct. 838, 844 (1993) (citing

Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). That is, a petitioner must establish that the

deficiency of counsel was of such a degree that it deprived the defendant of a fair trial and called into

question the reliability of the outcome. State v. Nichols, 90 S.W.3d 576, 587 (Tenn. 2002). “A

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reasonable probability of being found guilty of a lesser charge, or a shorter sentence, satisfies the

second prong in Strickland.” State v. Zimmerman, 823 S.W.2d 220, 225 (Tenn. Crim. App. 1991);

see also Chambers v. Armontrout, 907 F.2d 825, 832 (8th Cir. 1990). When challenging the

imposition of a sentence of death, the petitioner must show that “‘there is a reasonable probability

that, absent the errors, the sentencer . . . would have concluded that the balance of the aggravating

and mitigating circumstances did not warrant death.’” Henley, 960 S.W.2d at 579-80 (quoting

Strickland, 466 U.S. at 695, 104 S. Ct. at 2069).

2. Ineffective Assistance of Pretrial Counsel

The petitioner contends that the various attorneys who represented him prior to trial

collectively rendered ineffective assistance due to their alleged failure to conduct any meaningful

factual investigation or otherwise prepare for trial. He asserts that such deficiencies constituted the

constructive complete denial of counsel at a critical stage in the proceeding, sufficient to justify a

presumption of prejudice under the standard announced in United States v. Cronic, 466 U.S. 648,

104 S. Ct. 2039 (1984). In the alternative, he asserts that pretrial counsel’s failure to conduct an

investigation or otherwise prepare for trial resulted in actual, demonstrable prejudice under the more

familiar Strickland standard. Specifically, he contends that it was pretrial counsel’s failure to

conduct any meaningful investigation and preparation that directly led to his “involuntary self-

representation, with the disastrous results that the [Tennessee] Supreme Court catalogued in its

decision on direct appeal.”

The State responds by arguing that the petitioner’s forfeiture of the right to counsel by his

egregious and outrageous conduct necessarily included the forfeiture of his right to effective

assistance of counsel. The State acknowledges our supreme court’s direct appeal opinion footnote

in which it commented that the petitioner retained the right to raise an ineffective assistance claim

with respect to any stage of the proceedings where he was represented by counsel. The State

contends, however, that under the circumstances of this case, where the petitioner forfeited the right

to counsel some four months prior to trial, “it is not possible to gauge the effect of the actions of the

various counsel who represented [the petitioner] at the pre-trial stage against the outcome of the

proceedings.” The State further argues that this case does not fall within any of the narrow situations

in which prejudice may be presumed.

a. Presumed Prejudice

The petitioner first contends that pretrial counsel’s failure to conduct any meaningful

preparation or investigation meant that he effectively had no counsel during the critical, investigatory

pretrial phase of the proceedings. As such, he argues that his case is one in which prejudice may

properly be presumed under Cronic, without the necessity of conducting an inquiry into counsel’s

actual performance or the effect it had on the trial. We respectfully disagree.

In Cronic, the United States Supreme Court identified three scenarios involving the right to

counsel where the circumstances are “so likely to prejudice the accused that the cost of litigating

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their effect in a particular case is unjustified.” 466 U.S. at 658, 104 S. Ct. at 2046 (footnote omitted).

In these circumstances, a presumption of prejudice is justified without the necessity of inquiring into

counsel’s actual performance at trial. Id. at 662, 104 S. Ct. at 2048. These scenarios are: (1)

situations involving “the complete denial of counsel,” where the accused is denied the presence of

counsel at “a critical stage” in the proceeding; (2) situations where “counsel entirely fails to subject

the prosecution’s case to meaningful adversarial testing;” and (3) situations where “counsel is

available to assist the accused during trial, [but] the likelihood that any lawyer, even a fully

competent one, could provide effective assistance is so small that a presumption of prejudice is

appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60, 104 S. Ct. at 2047.

The petitioner asserts that pretrial counsel’s billing records and testimony reflect that they

“did nothing of substance during their respective tenures on the case, apart from routine motion

practice, court appearances, obtaining discovery, limited conferences with Petitioner, and

interviewing one major prosecution witness, Nakeita Shaw.” The record, however, reflects that

pretrial counsel actively and diligently worked on the case during their tenures, often in the face of

abusive, uncooperative, and threatening behavior on the part of the petitioner. As revealed in both

the evidentiary hearing testimony and in our supreme court’s direct appeal opinion summary of

counsel’s representation, pretrial counsel, among other things, met regularly with the petitioner,

appeared at numerous pretrial report hearings, reviewed discovery, filed and argued numerous

substantive pretrial motions, and interviewed a number of potential witnesses. The petitioner may

not have been satisfied with the schedule in which pretrial counsel conducted their investigation, but

this was by no means a case in which he suffered the complete denial of counsel during a critical

stage of the proceeding. Cf. Powell v. Alabama, 287 U.S. 45, 57, 53 S. Ct. 55, 60 (1932) (presuming

prejudice based on fact that counsel was not appointed until the morning of trial); Mitchell v. Mason,

325 F.3d 732, 742-44 (6th Cir. 2003) (concluding that the petitioner was constructively denied

counsel when counsel only met with him for a total of six minutes and was suspended from practice

of law for last month of seven-month pretrial period). Accordingly, we, like the post-conviction

court, will review the petitioner’s allegations of ineffective assistance of counsel under the familiar

Strickland standard, which requires the petitioner to show both a deficiency in counsel’s performance

and actual prejudice resulting to his case.

b. Failure to Investigate and Prepare

Led to Petitioner’s Compelled Self-Representation

In the alternative, the petitioner contends that his various pretrial counsel collectively

rendered ineffective assistance under the standards of Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975),

and Strickland, 466 U.S. at 686, 104 S. Ct. at 2063-64, in that their failure to conduct any meaningful

factual investigation, particularly in the face of a list of 125 potential witnesses, led directly to his

“disastrous” and compelled self-representation. The petitioner asserts that there was “nothing

remotely resembling pretrial investigation . . . before Mr. Billings’ entry into the case on January 16,

1996, eight days after [the trial court] had ordered Petitioner to defend himself pro se.” We, again,

respectfully disagree.

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The post-conviction court made the following findings of fact and conclusions of law with

respect to the petitioner’s ineffective assistance of pretrial counsel claim:

The Court rejects the petitioner’s claim that he is entitled to relief for the failures of

his series of appointed counsel.

....

In the Supreme Court of Tennessee decision in this case[,] the court

chronicled the succession of lawyers that represented the petitioner prior to his trial

in Memphis. . . . This Court heard the testimony of all these lawyers and their efforts

to investigate the case and their relationship with the petitioner. There is no doubt

that for all of them their efforts and ability to investigate the case were seriously

distracted by the petitioner’s behavior. . . .

The deficiency in the petitioner’s claim is that there was no evidence

presented from witnesses to support the contention that the petitioner was prejudiced.

In other words, if there were witnesses not found because of a faulty investigation,

the court did not hear from those witnesses. . . . [T]he claim of ineffective assistance

of counsel prior to trial must fail for failure to prove prejudice.

The one possible exception to the above is the testimony of Mr. Bille as to the

DNA evidence. Here, it appears that the petitioner’s theory is that competent counsel

would have hired a DNA expert and that this testimony would have been helpful to

the petitioner at trial. The testimony of Mr. Bille indicated that there was a blanket-

like cloth taken from the grave site, and that on this blanket-like cloth blood was

found that did not belong to any of the three (3) victims and did not belong to any of

the three (3) defendants. The petitioner asserts that this proof is important and that

it is exculpatory and possibly could have [a]ffected the results of the trial. The Court

disagrees.

The testimony of Mr. Bille and the DNA results are only very minimally

helpful to the petitioner. In no way does this evidence negate all other proof in the

case and it is rank speculation to assume that this indicates that a third party might

have committed this crime. There is no proof as to the age of the blood, or any

explanation of how the blood got on the piece of cloth. This evidence does not carry

the prejudice prong of the Strickland test.

The record supports the findings and conclusions of the post-conviction court. As noted by

the post-conviction court, our supreme court detailed the succession of lawyers who were appointed

to represent the petitioner, as well as the major actions each undertook in preparation for the case.

The court also chronicled the obstacles that counsel faced in their attempts to investigate and prepare

for trial, which took the form of unfounded accusations and personal attacks against counsel and

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direct and indirect threats against counsel and counsel’s family and employees. Furthermore, while

not precluding the petitioner from raising an ineffective assistance of counsel claim in the post-

conviction setting, our supreme court concluded that the trial record did not support the petitioner’s

claim that he was forced to represent himself because his appointed counsel were incompetent:

[The petitioner] also claims that he was denied due process because he was

forced to choose between incompetent counsel and no counsel at all, and he asserts

that the trial judge should have held a hearing to determine the validity of his

complaints about his attorneys.

We disagree. There is simply no evidence indicating that any one of the many

attorneys appointed to represent [the petitioner] was ineffective. In fact, the record

fully supports the trial court’s repeated findings that the attorneys were qualified,

competent, and highly skilled trial lawyers. The record demonstrates that the trial

court closely supervised the case, inquired about defense counsel’s progress, allowed

[the petitioner] to voice his concerns about counsel, and conscientiously reviewed

and considered letters from [the petitioner] containing allegations about his attorneys.

Based upon this information, the trial court repeatedly found the attorneys

representing [the petitioner] to be competent. Most of [the petitioner’s] complaints

about his attorneys were outrageous personal attacks that had little or nothing to do

with legal representation. Indeed, these allegations were so outrageous that the letters

were sealed at trial and remain a sealed exhibit to the record on appeal. Although we

have reviewed the letters, it is not necessary to reveal the specific nature of the

offensive and unfounded allegations. Suffice it to say that, given the nature of the

allegations and the trial court’s close and careful supervision of the case, a formal

hearing to determine counsel’s competency was not necessary.

Carruthers, 35 S.W.3d at 550-51 (footnotes omitted).

The evidence at the post-conviction evidentiary hearing, likewise, fails to show that pretrial

counsel were deficient in their investigation or trial preparation or that any alleged deficiencies led

to the petitioner’s self-representation. Larry Nance and his co-counsel, Craig Morton, filed numerous

pretrial motions on the petitioner’s behalf, including motions for discovery, for investigative services,

for a mental examination, to exclude evidence, for individual voir dire, for impeachment evidence,

for a competency evaluation of prosecution witnesses, for another mental evaluation of the petitioner,

to dismiss the indictments, to suppress the statements of codefendant Jonathan Montgomery, for a

severance, for expert services, and for a notice of an alibi defense. Nance estimated that he met with

the petitioner at least a dozen times during the six months of his representation and confirmed that

his billing records reflected he had spent approximately 60.15 hours on the case prior to Morton’s

appointment and 18.9 hours after Morton’s appointment. He said that the State did not provide

discovery, which included over 100 potential witnesses, until approximately two months before his

withdrawal from the case. Nonetheless, during that limited time he was able to locate and interview

several witnesses. He also communicated with the co-defendant’s counsel and spoke with the

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petitioner’s family. Morton testified that he spent 213 hours working on the case, during which time

he, among other things, interviewed several witnesses and talked at length with the petitioner and his

family.

Coleman Garrett, who was appointed as lead counsel when Nance was relieved of

representation, testified that he spent 97.5 out-of-court hours and 28.5 in-court hours on the

petitioner’s case. He said he had numerous meetings with the petitioner and issued several

subpoenas, including one to the chief jailer. However, he, like previous counsel, soon became the

target of the petitioner’s unfounded attacks and accusations, making his work extremely difficult.

Garrett testified that it was “somewhat impossible to prepare for this case because of lack of

cooperation, because of communication problems, because of team members’ attitudes about whether

they wanted to continue on the case, and it was a difficult situation.” However, he said that had he

stayed on the case, he “certainly would have put together any necessary experts, retained necessary

experts, would have prepared for mitigation in this situation, and would have been prepared to put

forth the best defense that [they] could put together on [the petitioner’s] behalf notwithstanding the

fact that this was a very difficult situation to deal with.”

William Massey, who, along with Harry Sayle, was next appointed to represent the petitioner,

testified that he worked approximately 125 hours on the petitioner’s case. Among other things, he

and Sayle reviewed expert and police reports, interviewed a number of witnesses, met with the

petitioner to discuss expert witnesses, requested and received additional funds for investigative

services, requested a ballistics and a mitigation expert, and filed numerous pretrial motions. He said

they also worked extensively with Montgomery’s counsel and investigator, who shared information

with them. Sayle testified that the petitioner would not listen to anything he and Massey had to say

and appeared to request joint meetings with Montgomery and Montgomery’s lawyers simply so that

he and Montgomery could get together and talk. Like the petitioner’s other counsel, Sayle described

abusive and threatening behavior by the petitioner directed toward counsel and counsel’s families.

The petitioner contends that the prejudice he suffered from pretrial counsel’s alleged

deficiencies in investigation and pretrial preparation was his “forced” self-representation. However,

it is abundantly clear from the record that the petitioner’s compelled self-representation resulted from

his own misbehavior and nothing else. All of the counsel appointed to represent the petitioner were

competent and experienced trial attorneys who were taking the appropriate steps in their preparation

of the case at the time they were relieved from representation. Moreover, the petitioner did not

produce any witnesses or evidence that pretrial counsel failed to investigate or uncover that would

have altered the outcome of the trial. In this respect, we agree with the trial court that the DNA

results of the piece of white cloth, obtained by Todd Bille, were inconclusive and would not have

changed the outcome of the trial. In sum, the petitioner has failed to establish that, but for any

deficiency on the part of pretrial counsel, the result of the proceedings would have been different or

that he would have received a sentence other than death. We conclude, therefore, that the petitioner

is not entitled to relief on the basis of this claim.

3. Ineffective Assistance of Appellate Counsel

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The petitioner next contends that appellate counsel were ineffective for failing to raise several

meritorious issues on appeal. Specifically, the petitioner complains that:

1. Appellate counsel’s failure to challenge the trial court’s interference with the

petitioner’s relationship with Dr. Cleland Blake as a violation of due process

principles constituted ineffective assistance of counsel.

2. Appellate counsel’s failure to challenge the trial court’s failure to conduct an

inquiry in response to information received regarding Juror 121 constituted ineffective

assistance of counsel.

3. Appellate counsel’s failure to challenge the impanelment of an anonymous jury as

a matter of constitutional and statutory law constituted ineffective assistance of

counsel.

4. Appellate counsel’s failure to raise an issue regarding the extraordinary and

excessive security measures implemented during the trial constituted ineffective

assistance of counsel.

5. Appellate counsel’s failure to challenge the trial court’s failure to give an alibi

instruction constituted ineffective assistance of counsel.

The same principles apply in determining the effectiveness of both trial and appellate counsel.

Campbell v. State, 904 S.W.2d 594, 596 (Tenn. 1995). A petitioner alleging ineffective assistance of

appellate counsel must prove both that (1) appellate counsel were objectively unreasonable in failing

to raise a particular issue on appeal, and (2) absent counsel’s deficient performance, there was a

reasonable probability that the petitioner’s appeal would have been successful before the state’s

highest court. See, e.g., Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764 (2000); Aparicio

v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994).

To show that counsel was deficient for failing to raise an issue on direct appeal, the reviewing court

must determine the merits of the issue. Carpenter v. State, 126 S.W.3d 879, 887 (Tenn. 2004) (citing

Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574 (1986)). Obviously, if an issue has no

merit or is weak, then appellate counsel’s performance will not be deficient if counsel fails to raise

it. Id. Likewise, unless the omitted issue has some merit, the petitioner suffers no prejudice from

appellate counsel's failure to raise the issue on appeal. Id. When an omitted issue is without merit,

the petitioner cannot prevail on an ineffective assistance of counsel claim. Carpenter, 126 S.W.3d at

888 (citing United States v. Dixon, 1 F.3d 1080, 1083 (10th Cir. 1993)).

a. Dr. Cleland Blake

The petitioner first contends that he was unconstitutionally denied the benefit of an expert

witness because the trial court appointed Dr. Blake, who communicated directly with the trial court

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instead of the petitioner. He also asserts that the trial court forced him to make an uninformed

decision about whether to call Dr. Blake as a witness four days before he had heard the testimony of

Dr. O.C. Smith. The State argues that the petitioner was not denied the benefit of an expert witness

and, as such, cannot establish either deficient performance or prejudice on the basis of appellate

counsel’s failure to raise this issue on appeal.

The petitioner complained during voir dire about the trial court’s communications with Dr.

Blake, asserting that by sending information from the prosecutor directly to Dr. Blake, the trial court

had led Dr. Blake to, in the petitioner’s eyes, believe that he was working for the trial court and the

prosecution instead of for the petitioner. The trial court addressed these concerns:

I contacted Dr. Blake, obviously, the record will reflect, at your request, to have an

independent forensic pathologist review the determination made by the Shelby County

Medical Examiner’s Office, to see if he or she could come up with a more specific

time of death for the three victims in this case.

At Dr. Blake’s request I needed some basic summary of facts so that he would

have some context in which to review the findings of the medical examiner’s office,

and toward that end I asked [the prosecutor] to provide me with a general summary

of what the State felt the facts were so that he, Dr. Blake, could have some factual

context in which to conduct his analysis.

There has never been any question in my mind on Dr. Blake’s behalf with

regard to the fact that he has been retained at taxpayers’ expense by me on your behalf

as an independent expert to review the findings of the Shelby County Medical

Examiner’s Office.

....

You think that all he needed was what was in the file or what came from Dr.

Francisco’s office, but that’s not what he thinks. He asked me to prepare him a factual

summary of the case so he could operate . . . within some factual context.

And so the record should reflect that all of this came from him. He asked for

other information from Dr. Francisco’s office, and again, on your behalf and on his

behalf I told him to feel free to contact them. I mean, he is contacting a lot of people

in an effort to reach this decision that you’re seeking. And so he’s, in trying to reach

this independent decision that you’re asking for, it’s necessary for him to contact a lot

of people to get the information needed to make an informed decision.

The post-conviction court determined that the petitioner’s claims with respect to this issue

were without merit:

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Petitioner now makes much of the role of the trial judge in relation to Dr.

Blake and infers that his involvement interfered with the petitioner’s ability to prepare

for trial and to rebut Dr. Smith.

The record shows considerable confusion about the role of Dr. Blake. Was he

an “independent” expert (See T.R.E. 706) or a defense expert? . . . It was obvious that

when Dr. Blake testified in the post-conviction case he was still unclear as to whether

he was working for the court or for the [petitioner]. . . . While all this confusion may

have resulted from an informality with normal procedures and role definitions it had

no impact on the end result. Dr. Blake submitted a report and offered an opinion

about the time and manner of the death of the victims, referenced above, and all that

was available to the petitioner before trial.

Perhaps the actions of the trial judge were unusual, but this was an unusual

situation and it appears that the trial judge was attempting to obtain an expert for the

petitioner. As it turned out, Dr. Blake’s findings were communicated to [the

petitioner] and [the petitioner] made the decision not to call Dr. Blake. This now

appears to have been a bad decision and may have deprived [the petitioner] of

testimony which would have rebutted Dr. Smith. A criminal defendant who

represents himself cannot complain about his bad judgments. See State v. Carruthers,

35 S.W.3d at 551. The Court would also note that at no time after Dr. Smith’s

testimony did the petitioner request that Dr. Blake be called in rebuttal.

We conclude that the evidence does not preponderate against the findings and conclusions of

the post-conviction court. At the petitioner’s request, the trial court provided him with a qualified

forensic pathologist to review the findings of the Shelby County Medical Examiner’s office and to

prepare an independent cause-and-time-of-death report. While the trial court initiated the contact with

Dr. Blake and facilitated his access to needed information, the court made it clear to the petitioner that

he and his investigator were free to contact Dr. Blake directly and that he could communicate directly

with the petitioner if he wished. The trial court also made Dr. Blake’s report and findings available

to the petitioner several weeks prior to the start of the trial. Nowhere in the record is there any

indication that the prosecution communicated directly with Dr. Blake. The petitioner was given the

opportunity to call Dr. Blake as a witness at his trial but opted not to do so, apparently on the advice

of one of his investigators.

The petitioner additionally complains that the trial court interfered in his relationship with Dr.

Blake by “forcing” the petitioner to decide whether to call Dr. Blake as a witness when he had not yet

had the benefit of Dr. Smith’s surprise testimony that all three victims had been buried alive. We

respectfully disagree. During a break in the trial, the trial court asked the petitioner to decide if he

wanted Dr. Blake as a witness, informing him that Dr. Blake had a tight schedule and needed time

to make the necessary arrangements to attend the trial. The trial court told the petitioner that he

would have Dr. Blake there if the petitioner wanted him, but, barring some “brand new, surprising,

novel revelation” by Dr. Smith or any other medical expert called by the State, the court expected the

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petitioner to put Dr. Blake on the stand if he went to the trouble and expense of coming to Memphis

for the trial:

[Y]ou know generally what he [Dr. Smith] is going to testify to, generally what his

findings are, generally what his conclusions are, generally what the videotape from the

crime scene reveals, and so -- and you have two or three communications, several

communications from Dr. Blake, both sent to me and his direct communications with

Mr. John Billings, Mr. Richard Billings, Mr. Les Arms, all of which should provide

you with ample information to make your decision today as to whether you plan to put

him on the stand or not.

If you don’t want to put him on the stand, I want to notify him today so that

he can go on about his business and not worry about making arrangements to come

to Memphis, Tennessee, next week.

If you do want to put him on the stand, that’s no problem. We will have him

here.

But if we get him all the way down here next week, then unless there is some

dramatic last second surprise in the medical testimony presented by the State, I expect

him to be put on the stand. I don’t want . . . to play games with regard to getting him

down here and then not putting him on the stand. That’s my statement.

As noted by the post-conviction court, the petitioner never requested that Dr. Blake be called

in rebuttal following Dr. Smith’s testimony that all three victims were buried alive. Given the trial

court’s statement that it would allow the petitioner to change his mind about putting Dr. Blake on the

stand should there be a dramatic last minute change in the State’s medical evidence, we have no basis

to conclude that the trial court would not have allowed the petitioner to call Dr. Blake in rebuttal had

the petitioner made such a request. Additionally, the petitioner did not call Dr. Blake as a witness

during the penalty stage of the trial, when his testimony that the two male victims were not buried

alive and the female victim was probably unconscious at the time of her burial might have been

relevant to refute the aggravating circumstance that the murders were especially heinous, atrocious,

or cruel. We conclude, therefore, that the record supports the determination of the post-conviction

court that the petitioner has not met his burden of showing that appellate counsel were deficient in

not raising as an issue on appeal the trial court’s alleged interference in the petitioner’s relationship

with Dr. Blake, or that the petitioner was prejudiced as a result of that alleged deficiency in

representation.

b. Juror 121

The petitioner next contends that appellate counsel should have raised as an issue on appeal

the trial court’s failure to inquire into the alleged bias of Juror 121. The petitioner argues that the trial

court’s failure to inquire into Juror 121’s alleged bias was per se prejudicial and, in the alternative,

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that an unrebutted presumption of prejudice arose when Juror 121’s potential bias was disclosed. The

State responds that the petitioner canno

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