        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs March 5, 2013

            TONY VON CARRUTHERS v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                         No. P-25948     John Fowlkes, Jr., Judge



                   No. W2012-01473-CCA-R3-PD - Filed August 1, 2013


In 1996, Petitioner, Tony Von Carruthers, was convicted of three counts of first degree
murder and sentenced to death on each count by a Shelby County Jury. See State v.
Carruthers, 35 S.W.3d 516, 523 (Tenn. 2000). Petitioner subsequently sought post-
conviction relief for, inter alia, ineffective assistance of pretrial counsel for failing to retain
an expert in the field of deoxyribonucleic acid (“DNA”) analysis. See Tony Carruthers v.
State, No. W2006-00376-CCA-R3-PD, 2007 WL 4355481, at *1 (Tenn. Crim. App., at
Jackson, Dec. 12, 2007), perm. app. denied, (Tenn. May 27, 2008). After a hearing, the post-
conviction court denied relief, and this Court affirmed the post-conviction court’s judgment.
Id. In December of 2011, Petitioner sought to have DNA analysis performed on a vaginal
swab and a blanket pursuant to the Post-Conviction DNA Analysis Act of 2001. The Shelby
County Criminal Court denied relief. Petitioner appeals, arguing that the post-conviction
court improperly denied relief. Because Petitioner did not establish the criteria for ordering
DNA analysis under the Act, the judgment of the post-conviction court is affirmed.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
R OGER A. P AGE, J., joined.

Tony Von Carruthers, Pro Se, Nashville, Tennessee

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and John Campbell, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                              OPINION

                                        Factual Background

        Petitioner and James Montgomery1 were convicted of first degree murder for killing
Marcellos “Cello” Anderson, his mother Delois Anderson, and Frederick Tucker in Memphis
in February of 1994. The men were also convicted of three counts of especially aggravated
kidnapping and one count of especially aggravated robbery of Marcellos Anderson. The
victims disappeared on the night of February 24, 1994. Their bodies were found buried
together approximately one week later in a pit that had been dug beneath a casket in a grave
in a Memphis cemetery. Testimony from the medical examiner indicated that although
several of the victims suffered from external injuries, including gunshot wounds, prior to
their burial, each of the victims was buried alive. Petitioner received three death sentences
for the first degree murder convictions. Carruthers, 35 S.W.3d at 523-24. Because of his
disruptive behavior, Petitioner was required to represent himself at trial. Id. at 534-552.

        The Tennessee Supreme Court affirmed the convictions and sentences on direct
appeal. Id. at 523. In December 2001, Petitioner filed a pro se petition for post-conviction
relief. Counsel was appointed, and an amended petition was filed. Tony Carruthers v. State,
2007 WL 4355481, at *1. Despite representing himself during the majority of the trial, in his
post-conviction petition, 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. Id. at *22. Among Petitioner’s complaints about
his pretrial counsel was that they were ineffective for failing to retain a DNA expert. Id. at
*38. At the evidentiary hearing, Petitioner presented evidence to show the following:

                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


        1
         Another defendant, James Montgomery’s younger brother, was also originally charged on all counts
involved in this case. However, he was found hanged in his cell in the Shelby County jail prior to trial.


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       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.

Id. at *33.

        After the evidentiary hearing, the post-conviction court entered an order denying the
petition. Id. at *34. Among other things, the post-conviction court found that 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 [P]etitioner’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.” Id. The post-conviction court
noted that any “troubling aspects” during the trial were caused by Petitioner’s “own actions
in forfeiting his right to counsel.” Id. 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.

Id. Specifically with respect to the DNA results, the post-conviction court noted:

               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



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       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.

On appeal from the denial of post-conviction relief, this Court agreed. Tony Carruthers,
2007 WL 4355481, at *39. The supreme court denied permission to appeal on May 27, 2008.

        In December of 2011, Petitioner filed a “T.C.A. § 40-30-301 Request D.N.A
Evidence” on a pre-printed form for a “Motion to Re-open Post-conviction Petition.”
Petitioner alleged in the petition that in March of 2006, a vaginal swab and blanket were
discovered and the “D.A. Office as proof of ‘C.O.D.I.S.’2 matching.” Petitioner claimed that
the DNA evidence exonerates him because it would exclude him as the source of the DNA
material and that if he is not the source of the DNA material he must be innocent of the
crime. Petitioner further claimed that other persons have since been identified as the
perpetrators due to a DNA match. The State responded to the petition. According to the
State, DNA testing had already been performed on the items, and the results did not give rise
to a reasonable probability that Petitioner would not have been convicted of the crimes.

        The post-conviction court dismissed the motion to reopen the petition for post-
conviction relief on June 11, 2012. The post-conviction court noted, “[I]t appears from the
record that DNA testing has already occurred and[,] the results are only minimally helpful
to [P]etitioner. Thus, [P]etitioner’s request to reopen his Petition for Post Conviction Relief
is denied for failure to comply with the requirements of ‘the Act.’”

       Petitioner appeals.

                                              Analysis

      Petitioner seeks reversal of the post-conviction court’s dismissal of his petition to
reopen his post-conviction petition under the Post-conviction DNA Analysis Act.


       2
        “C.O.D.I.S.” stands for Combined DNA Index System, a computer software system that allows
DNA information to be shared between various law enforcement agencies. See, generally Powers v. State,
343 S.W.3d 36, 45-46 (Tenn. 2011).

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        Tennessee Code Annotated sections 40-30-301-313 is known as the “Post-Conviction
DNA Analysis Act.” Under Tennessee Code Annotated section 40-30-303, a petitioner may
file a request for forensic DNA analysis in a petition for post-conviction relief at any time.
Tennessee Code Annotated section 40-30-304 states:

       After notice to the prosecution and an opportunity to respond, the court shall
       order DNA analysis if it finds that:

       (1) A reasonable probability exists that the petitioner would not have been
       prosecuted or convicted if exculpatory results had been obtained through DNA
       analysis;

       (2) The evidence is still in existence and in such a condition that DNA analysis
       may be conducted;

       (3) The evidence was never previously subjected to DNA analysis or was not
       subjected to the analysis that is now requested which could resolve an issue not
       resolved by previous analysis; and

       (4) The application for analysis is made for the purpose of demonstrating
       innocence and not to unreasonably delay the execution of sentence or
       administration of justice.

In other words, Tennessee Code Annotated section 40-30-304 applies when the exculpatory
results from the DNA analysis would have resulted in no prosecution or no conviction. If
the four factors are present, DNA testing pursuant to Tennessee Code Annotated section 40-
30-304 is mandatory. Section 305, on the other hand, provides for discretionary testing.
T.C.A. § 40-30-305. A post-conviction court may order DNA analysis under section 305 if
certain requisite findings are made. In the case herein, Petitioner sought DNA analysis under
Tennessee Code Annotated section 40-30-304.

       When this Court reviews a post-conviction court’s decision determining whether to
grant relief under the Post-Conviction DNA Analysis Act, the lower court is afforded
considerable discretion and our scope of review is limited. Sedley Alley v. State, No.
W2006-00179-CCA-R3-PD, 2006 WL 1703820, at *5 (Tenn. Crim. App., at Jackson, June
19, 2006) (citing Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095,
at *3 (Tenn. Crim. App., at Jackson, May 26, 2004), perm. app. denied, (Tenn. Oct. 4,
2004)); Raymond Roger Jones v. State, No. E2003-00580-CCA-R3-PC, 2004 WL 2821300,
at *6 (Tenn. Crim. App., at Knoxville, Dec. 3, 2004), perm. app. denied, (Tenn. Mar. 21,
2005) (citing Willie Tom Ensley v. State, No. M2002-01609-CCA-R3-PC, 2003 WL 186647,

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at *3 (Tenn. Crim. App., at Nashville, Apr. 11, 2003)). Prior opinions of this Court on direct
appeal, as well as appeals from prior post-conviction petitions or habeas corpus petitions,
may be considered by the trial court in reaching its decision. Sedley Alley, 2006 WL
1703820, at *5. In addition, “[a] determination of the evidence and surrounding
circumstances is necessary to evaluate whether exculpatory results would have prevented
prosecution or conviction or would have resulted in a more favorable verdict or sentence.”
State v. David I. Tucker, No. M2002-02602-CCA-R3-CD, 2004 WL 115132, at *2 (Tenn.
Crim. App., at Nashville, Jan. 23, 2004). The evidence considered by the lower court may
include “the evidence presented at trial and any stipulations of fact made by either party.”
Sedley Alley, 2006 WL 1703820, at *5. Under either the mandatory or discretionary
provision, all four elements must be met before DNA analysis will be ordered by the court.
See Sedley Alley, 2004 WL 1196095, at *2; William D. Buford v. State, No. M2002-02180-
CCA-R3-PC, 2003 WL 1937110, at *6 (Tenn. Crim. App., at Nashville, Apr. 24, 2003).

       Petitioner herein sought DNA analysis of two items: a blanket and a vaginal swab
from victim Delois Anderson. Attached to Petitioner’s motion was an “Official
Serology/DNA Report” for the blanket indicating that it had already been subject to DNA
analysis and “added to the CODIS database for forensic unknown samples.” Therefore, the
sample had already been subject to DNA analysis and failed to satisfy a requirement of
Tennessee Code Annotated section 40-30-304(3). The State’s response indicated that there
were no CODIS “hits” on the blanket sample as of April 2012. As noted by this Court on
post-conviction appeal, a new CODIS match might identify the depositor of the biological
material on the blanket but could not prove that it was deposited at a time contemporaneous
with the crime for which Petitioner was convicted. See Tony Carruthers v. State, 2007 WL
4355481, at *38. Consequently, the post-conviction court did not abuse its discretion in
denying the motion to reopen the post-conviction petition on the basis of the post-conviction
DNA analysis Act with respect to the blanket.

        With regard to the vaginal swab from the victim, Petitioner noted that the
Serology/DNA Report indicated that there was no semen in the sample but that there was the
presence of DNA from an unidentified female individual. The report also indicated that there
was no DNA standard submitted for the victim for comparison purposes prior to the analysis.
Presumably, the DNA of the unidentified female belongs to the victim. However, even if we
assume that DNA analysis results would be exculpatory, see Powers, 343 S.W.3d at 55, such
results would not create a reasonable probability that the Petitioner would not have been
prosecuted or convicted. Any results that identified a female individual would not in any
way provide a reasonable probability that the female individual, rather than Petitioner, would
have been convicted of murdering the victims. Petitioner is not entitled to relief on this issue.




                                               -6-
       Petitioner also insists that he was entitled to an evidentiary hearing with the assistance
of counsel prior to dismissal of the petition. Because we have determined that Petitioner did
not satisfy the requirements of Tennessee Code Annotated section 40-30-304, it is
unnecessary for the trial court to conduct a hearing or to order DNA analysis of evidence.
William D. Buford v. State, 2003 WL 1937110, at *6. Consequently, the judgment of the
post-conviction court is affirmed.




                                          Conclusion

       For the foregoing reasons, the judgment of the post-conviction court is affirmed.




                                            ___________________________________
                                            JERRY L. SMITH, JUDGE




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