          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                   AT JACKSON
                           MARCH SE SSION, 1999             FILED
STATE OF TENNESSEE,                                         December 21, 1999
                                     )C.C.A. NO. W1997-00097-CCA-R3-CD
                                     )
                                                             Cecil Crowson, Jr.
            Appellee,                )     SHELBY COUNTY   Appellate Court Clerk
                                     )
V.                                   )     HON. JOSEPH B. DAILEY, JUDGE
                                     )
TONY V. CARRUTHERS and               )     CAPITAL CASE (Premeditated First
JAMES MONTGOMERY,                    )     Degree Murder, Three Counts; Especially
                                     )     Aggravated Kidnapping; Three Counts;
            Appellants.              )     Especially Aggravated Robbery, One Count


FOR THE APPELLANTS:                        FOR THE APPELLEE:

STEPHEN R. LEFFLER                         PAUL G. SUMMERS
Counsel for Carruthers On Appeal           Attorney General & Reporter
50 North Front Street, Suite 999
Memphis, TN 38103                          AMY L. TARKINGTON
                                           Assistant Attorney General
LEE A. FILDERMAN                           2nd Floor, Cordell Hull Building
Counsel for Carruthers On Appeal           425 Fifth Avenue North
44 North Front Street, Suite 701           Nashville, TN 37243
Memphis, TN 38103
                                           JOH N W. P IERO TTI
TON Y V. CA RRU THE RS, pro se at trial    District Attorn ey Ge neral

ROBERT C. BROOKS                           PHILL IP GE RAL D HA RRIS
Counsel for Montgomery On Appeal           Assistant District Attorney General
707 Adams Avenue
Memphis, TN 38105                          J. ROBERT CARTER, JR.
                                           Assistant District Attorney General
EDWARD W. CHANDLER                         Criminal Justice Center, Suite 301
Counsel for Montgomery On Appeal           201 Poplar Avenue
2502 Mt. Moriah, Suite A-100               Memphis, TN 38103
Memphis, TN 38115

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

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

OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
                                   OPINION
       The appellan ts, Jame s Mon tgomery and Tony Carruthers, were each indicted,

along with their co-defendant, Jonathan Montgomery, on three counts of the

premeditated first degree mu rders of Ma rcellos Ande rson, h is mo ther, D elois

Anderson, and Frederick Tucker. Prior to trial, Jonathan Montgomery was found

hanged in his jail cell. James Mo ntgome ry and Ton y Carruthers were also indicted

on three counts e ach of the esp ecially aggravated kidnapping of all three victims,

and one count each of the especially aggravated robbery of Marcellos Anderson.

The appellants w ere tried and co nvicted on ea ch charge . The appe llants were

sentenced to death by electrocution for the three murder convictions and received

forty year sentences for each of the other offenses. The jury found the existence

of four aggravating circumstances as to each appellant for each murder conviction:

1) the mu rder wa s espe cially heino us, atrocious or cruel in that it involved torture;

2) the appellants co mmitted m ass murd er; 3) the appellan ts had previously been

convicted of one or more violent felonies; and 4) the murders were committed during

the perpe tration o f espe cially aggravated kidnapping and especially aggravated

robbery. T.C.A. § 39-13-20 4(i)(2), (5), (7), and (12). On appeal, the appellants raise

the following issues concerning alleged errors occurring before trial as well as during

both p hase s of the trial:



                                 Appellant Carru thers

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

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

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

       Whethe r the grand jury pro ceedings w ere proper;

       Whether the trial court erroneously admitted hearsay and irrelevant
       evidence;

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

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




                                             2
      Whether appellant was denied his right to be present at sentencing for
      the especially aggravated kidnapping convictions;

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

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

       Whether the death penalty statute is unconstitutional; and

       Whether the evidence was sufficient to support the verdicts.



                                Appellant Mo ntgomery

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

       Whether the trial court erroneously admitted hearsay evidence;

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

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

       Whether the trial court erred in admitting photographic evidence;

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

       Whether the trial court erroneously excluded evidence of alternative
       perpetrators;

       Whether the trial court improperly admitted opinion testimony;

       Whether the trial court properly instructed the jury;

       Whether the evidence was sufficient to sustain the verdicts;

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


Having thoroughly reviewed the 82 volume record in light of the issues raised by

both appellants in their separate briefs, and finding no errors requiring reversal of

either the c onviction s or sente nces, w e affirm the judgm ent of the tria l court.



                                        HISTORY

       In order to put the proce dural h istory o f this case in proper perspective for the

issues raised, we will first outline the events leading up to trial and will then discuss

the evidence introduced at trial. The appellants were indicted for first degree murder

in March 1994. The Office of the Public Defender was appointed to represent

Montgomery. Carruthers initially retained an attorney, A.C. W harton, who was

subs eque ntly allowed to withdraw because of a poten tial conflict of inte rest. Nothing



                                             3
in the rec ord su gges ts this conflict was created by the co nduct o f Carruth ers. At a

hearing on April 27, 1994, the trial court mentioned that Carruthers informed the

court he wanted some input as to which attorney would be appointed to his case.

In a sub sequ ent he aring o n Ma y 18, 1 994, C arruth ers ind icated that his family ’s

attempt to retain cou nsel failed. H e aske d the cou rt to appo int cou nsel so he co uld

start filing mo tions.



       Carruthers, who eventually represented himself at trial, was appointed a

number of attorneys throughout the two years leading up to the trial in this case.

Although we go into more detail below, for the sake of reference we will list in order

all the attorneys who were appointed and allowed to withdraw: Larry Nance

(appointed May 1994 - withdrawn December 1994); Craig Morton (appointed August

1994 - withdrawn July 1995 ); Coleman Garrett (appointed December 1994 -

withdrawn July 1995); W illiam Masse y (appointed J uly 1995 - w ithdrawn Jan uary

1996); Harry Sayle (appo inted J uly 1995 - withdrawn February 1 996). The trial court

also appoin ted at differe nt times tw o attorne ys, Jam es Turn er and G lenn W right, to

assist in the inve stigation o f the case , but both were subs equen tly allowed to

withd raw a s well.



       On May 31, 1 994, after Carru thers informed the court that he had no success

in hiring another lawyer, the trial court appointed Larry N ance. On July 8, 1994, the

state filed its notice to seek the death penalty against both appellants for each

murder charge. In a hearing on July 15, 1994, the trial court scheduled a hearing on

pretrial motion s for Sep tembe r 30, 199 4, and se t the trial date for February 20, 1995.

Carruthers was present at the hearing and asked the trial court “why this is being

dragged out like this. I asked Mr. N ance if w e can go forward with a motion of

discovery and he’s asking for a reset. And I’d like to know why.” Nance informed

the court that he was going to visit the prosecutor’s office later in the week to review

their evidence. The trial court stated:



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



                                            4
      Carruthers: Y eah, Your H onor, but --

      Court: Wait a minute. Wait a minute.
              And we’ve got a trial date now as early as possible. A three-
      defendant capital murder case requires at least a week, probably two,
      to try an d so w e can ’t set it this fa ll beca use th is fall is alre ady fu ll.
              We’ve already go t cases set for trial every week between now
      and January. And Mr. Stein [counsel for Montgomery] has cases set
      throughout Janu ary. So the ea rliest po ssible date, th e earlie st pos sible
      date, that we can try a three-defendant capital murder case is in
      February. That’s the best we can do.
              We’ve got a lot of other cases . There are a lo t of othe r peop le
      sitting back the re waiting for their trials that have been waiting longer
      than you have.
              And so given the fact that the trial isn’t until February, we’re
      setting the next Court date in September for the arguing of motions.
      Between now and September, your attorney and the attorneys
      representing your two co-defendants can get with the prosecutors and
      can obtain their discovery.
              They’re all excellent attorneys. And they’ll all do that. And once
      they’ve obtained the discov ery, the y’ll mee t with th eir clien ts and they’ll
      file appropriate motions, which will be heard on September 30th, which
      will still be well in advance of the trial date, which will give everyone
      amp le time to then evaluate the case, after the motions have been
      heard and ruled on.
              So given the fact that w e can ’t get a three-defendant capital case
      that’s still in the arraignment stage to trial any earlier than February,
      there’s plenty of time for your attorneys to meet with the prosecutors,
      get the discovery, meet with the clients, file motions, argue motions.
              Just because he hadn’t done it yeste rday, b ecau se yo u wan t him
      to have it done yesterday, doesn’t mean that he’s not working on your
      case diligen tly and prope rly. He’ll h ave e veryth ing do ne we ll in
      advance of the next Court date.
              And so, you know, he may not do it the very moment you want
      it done, b ut you’re going to have to work with him on that because
      there’s ample time for him to get it done.

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

      Court: Well, that’s fine.

      Carruthers: And that’s forty-five days.

      Court: T hat’s fine. S tep out.


      The record reflects that Nance filed numerous pretrial motions, including

reques ts for discovery, investigative services and a menta l exam ination. On August

12, 1994 , Craig Morto n was appo inted a s co-c ouns el for Carruthers. The rec ord

reflects that Mo rton started filing a litany of m otions after his appointment. These

included motions in limine to exclude certain evidence, e.g., letters Carruthers

mailed to Jim my M aze, a motio n for ind ividua l voir dire, motions for various

discovery reques ts, a motion for impeachment evidence, a motion for competency

evaluation of prosecution witnesses, motion for another mental evaluation of

                                              5
Carruthers, motions to dismiss the indictments, motion to suppress statement of co-

defendant Jonathan M ontgom ery, motions for s everance , a motion for exp ert

services , and a no tice of an a libi defense .



       In a hearing on September 30, 1994, the trial court continued the motion

hearing date u ntil Nove mbe r 18, 19 94. Th e cou rt stated that it wo uld consider any

motion filed by either appellant to apply to both, if applicable. The trial judge also

mentioned that he had re ceived “an abu ndanc e of corre spond ence” fro m both

appellan ts expressing c oncern about the pretrial performance of counsel. The court

allowed coun sel to make statements on the record in response to these letters.

Initially, Nance stated that the defense had almost obtained complete discovery from

the state. He further stated that he could not say ho w ma ny of the 1 00 state

witnesses (which included everyone remotely related to this case including all of the

police officers and state employees) he had interviewed, but that he had alr eady

issued subpoenas for about eight of those witnesses. Nance indicated that he had

met with Ca rruthers tw o sepa rate occa sions for a n exten ded pe riod of time to

discuss his case. He had also met Carruthers’ family to discuss matters. Nance

admitted there was quite a bit more work yet to be done, such as obtaining the

services of an investigator, an d stated that he h ad spent ap proximately 2 5 hours

work ing on the case up to that time, including discussions with co-counsel about

defense strategy. Nance also informed the court that there was “some enm ity that’s

developed betwe en he a nd I,” but that counsel had hoped it could be worked out.



       The court also allowed Ca rruthers to tell his side of the story . Carruthers

disputed counsel’s recollection of the visits and informed the court that he had filed

a complaint with the Board of Professional Responsibility against Nance. He also

stated that counsel ha s shown no “eagern ess” in this case a nd that he did n ot “fear”

counse l.   Carruth ers’ ma in com plaint see med to be a lack of face-to-fa ce

communications. The court acknowledged the appellants’ concerns given what they

faced, but told them tha t many as pects of the attorne y-client relationship did not

involve personal contact. The court stated that the representation up to that point

as he saw it was well w ithin the proper standards: the appropriate motions had been



                                             6
filed, discovery had been sought, and conferences had been held. The fact that the

appe llants m ay no t like the ir attorney s, accord ing to the tria l court, had no bearing

on counsel’s performance.



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

services (Arthur R. Anderson) for Carruthers. Morton informed the court, howev er,

that the investigator tried to talk to Carruthers on two sep arate occa sions at the ja il

but was told Carruthers refused to see him. Also at the hearing on the 21st, the

prosecutor informed the court that he had provided all the disc overy he had at that

point; he wa s still waiting o n a ballistic report. In addition, the court authorized

comp etency evaluations for each appellant. In a hearing before the trial court on

November 18, 1994, Morton requested permission to hire a new investigator

because he felt the one they had, Arthur Anderson, was not taking an aggressive

enough role in the matter. The court continued the hearing date on pretrial motions

until December 16, 1994.         Morton informed the court in another hearing on

November 23, 1994, that they had secured the services of Premier Investigations.



       Throughout Nance and Morton’s representation, Carruthers filed various pro

se motions on his own be half. Along with a m otion fo r subs titution o f coun sel,

Carruthers filed motions similar to those filed by counsel, as well as those filed by

his co-defendant, James Montgomery. In fact, many of these pro se filings are

identical to those filed by Montgomery pro se. On Decem ber 9, 1994, Larry Nance

was allowed to withdraw as counsel. The record does not contain a copy of the

motion or transcript of a hear ing, if there w as one . Colem an Ga rrett was appointed

as co-counsel that same day.          Thereafter, counsel continued to file motions,

including motions to continue the trial date . Carruthers also continued filing pro se

pleadings.    Similarly, Morton filed several motions prepared by Carruthers,

appa rently at Carruthers’ insistence. On December 16, 1994, the court heard most

of the motions filed by counsel, and continued hearing on those involving an

evidentiary hearing until Janu ary 30, 1 995.       It should be noted that since the

beginning of this ca se, M ontgo mery also vo iced n ume rous c omp laints a bout h is

coun sel.    In fact, counsel was allowed to withdraw from M ontgo mery ’s



                                             7
representation as well. There is nothing in the record, however, to suggest that

Mon tgom ery’s c ondu ct was as eg regiou s as C arruth ers’.



      Garrett and Morton appeared at the motion hearing on January 30, 1995, and

presented argument on over seventeen motions, including joining the motions filed

by the code fendan t. These motions addressed suppression and discovery issues,

re-evaluation of Carruthers, co mpeten cy of state witnes ses, severan ce, expert

services, and courtroom security. Also at the hearing, the trial court continued the

trial date until September 5, 1995.



      On May 1, 19 95, Garrett and Morton inform ed the court they had been having

difficulty finding a willing investigator because of the nature of the case and the pay

(the court ad opted a paym ent scheme whereby th e inve stigato r wou ld be p aid

$1,000 and must file an accounting of services and the court would then decide later

if additional funding was appropriate; the court set the hourly rate the same as for

the attorney s, but app arently the investiga tors wer e dem anding more). G arrett

secured an investigator to appear at the hearing, but when the court announced the

amount of compensation granted for her services, she informed counsel she was

unab le to take the case. The court decided that since coun sel wa s hav ing trou ble

finding an investigator, the c ourt would appoint a third attorney (James Turner) , to

be paid at the sam e rate as cou nsel, to serve as appellant’s investiga tor. Carruthers

objected to this alternative, stating that attorneys cannot obtain the same information

as a certified investigator. The court stated that Carru thers’ o bjectio n was not we ll

founded. Coun sel also a ddress ed sev eral pretrial m otions, inclu ding a m otion to

dismiss indictments (Alfredo Shaw testified before the grand ju ry, but the s tate

informed the court that it was not going to use Alfredo Shaw’s statements at trial

because the state had since considered him to be unreliable), a motion to sever, and

a motio n for ex pert se rvices to ana lyze an audio tape o f Nake ita Mo ntgom ery’s

statem ent.



      On May 5, 19 95, Attorney James Turner appeared before the court and

stated, due to the number of witnesses Carruthers named and the amoun t of work



                                           8
involved in the ca se, he did no t believ e, as a solo p ractition er, that h e cou ld

effectiv ely perfor m inv estiga tion to a ssist co unse l. The c ourt sta ted tha t it would

continue to locate an attorney/investigator. Attorney Glenn Wright was subsequently

appointed to ass ist Mo rton an d Ga rrett in investigating the case. On June 2, 1995,

Garrett argue d the a ppella nt’s m otion to dism iss indic tmen ts due to Sha w’s alle gedly

false testimony before the grand jury.



       Morton and Garrett eventually filed a motion to withdraw. The record re flects

that Carruthers also filed a motion for substitution of counsel. The trial court granted

both requests and in a hearing on July 27, 1995, the court appointed William Massey

and Harry Sayle to represent Carruthers. During this hearing, the trial judge made

the following comments:



               All right. I understand that these three defendants are on trial for
       their lives and that these are the most serious of charges and that they
       are all concerned that they are we ll repres ented and p roper ly
       represented, and it’s every one’s desire to see to it that th ey are well
       represented and p roper ly represented . And toward that end, efforts are
       being made that they are represented by attorneys that have enough
       experience to handle this type of case and by attorneys that can
       establish a rapport with their clients that would allow them to represent
       their clie nts as well.
               We have gone through several attorneys n ow in an effort to
       accommodate the defendants’ requests in that regard; but at some
       point -- and in m y opinion , each of the attorneys and each of the
       investigators that has represented these defendants that has been
       relieved have been eminently qualified to do the jo b, but I have allowed
       them to be relieved for one rea son or ano ther.
               I want the record to be perfectly clear at this point because of
       some suggestions that have already been raised by some of the
       correspondence that I have received from M r. Carruth ers; and all of it,
       by the way, will be made a part of the record. But Mr. Carruthers has
       suggested, in his correspondence, that some of the previous attorneys
       have been relieved because they weren’t capable or competent to do
       the job. And this is, in my opinion, at least -- my humble opinion as the
       judge in this ca se -- ab solutely and totally an inacc urate sta temen t.
       The attorne ys tha t have been relieve d thus far hav e bee n fully ca pable
       and fully competen t and had be en doing an outstanding job ; but for a
       variety of reasons, I’ve allowed them to withdraw from the case.
               Obv iously Mr. Carruthers can say anything he wants. It’s a free
       country. He can write letters to the Commercial Appeal or the
       President of the United States and say whatever it is he wants to say.
       But the point is that I want the record to reflect, each step of the way,
       so that if he is conv icted, a nd if so if he raises these sorts of questions
       three years or five years or ten years down the road, the record is
       perfec tly clear that these attorneys were not relieved because they
       were not doing an ade quate job. They were not relieved because Mr.
       Carruthers was not well represented and left in an untenable position
       because he ha d ineffe ctive a ssista nce o f coun sel pre trial. Tha t is
       absolutely not the case in my opinion.



                                             9
        Mr. Carruthers has raised, through his correspondence, and
appa rently through direct communication with his previous attorneys,
certain matters that are pretty outrageous suggestions; but because of
the nature of the matters that he’s raised, the attorneys that
represented him previously felt that an irreparable breach had occurred
between their ability -- between Mr. Carruthe rs and them selves --
effecting their ability to continue to represent them. And at some point
-- and that could well have been the point, but it wasn’t. But at some
point these ma tters that are raised by the defendants cannot continue
to be used to get new counsel because it gets to be a point where
they’re -- it’s already well beyond the point, but, obviously, at some
point, gets to the point where they’re manipulating the system and
getting what they want -- Mr. Carruthers, sit still, plea se, or y ou ca n sit
back there. -- gets to the point where they’re manipulating the system
and getting trial dates and representation that they want and are calling
the shots. That’s another matter that’s bee n raised by M r. Carruthers
in some of his correspondence; that he w ants his a ttorneys to know that
he’s the man c alling the sh ots in this ca se, and he’s the m an to look to.
        Well, of course , again, it’s a fre e coun try, and he can say
whatever he wants, and he can think whatever he wants; but as far as
I’m concerned -- and this applies to all three defendants and any
defend ants that come through this court that are represented by
counsel -- and this gets back to what Mr. McLin alluded to earlier -- the
attorneys are calling the shots in this case. They are trying the case
except for certain areas where the defendant has the exclusive and
final say, such as whether he wants to testify or not and that sort of
thing. The attorney s are in here representing these clients and will do
so to the best of their ability. They are the ones who have been to law
scho ol. They are the ones that have been through trial many times
before, and they’re the o nes that are he re for a reason, and that reason
is to represent these individuals. And, so, you know, if there’s a conflict
between the attorney and client with regard to how to proceed in the
case, you all resolve it as be st you ca n, but ultim ately th e attorn ey is
trying the case. And, yo u know , we don ’t pull peop le off the sidew alk
to try these cases; and th e reas on we don’t is because of certain things
that they need to learn and certain experiences they need to have
profes siona lly before they’re prepared to try these ca ses. So they ’re
here for th at reaso n and fo r that purp ose. . . .
...
        So that gets me to the reason for our being here. Because of the
matters raised by Mr. Carruthers, I have granted th e requ est of h is
previous two attorneys and investigato r reluctantly because, in my
opinion, they were doing an outstanding job of representing Mr.
Carruthers and his interests.
        Mr. Carruthers, if you want to laugh through this proceeding,
then, again, I’m going to allow y ou to s it back in the ba ck. If you can sit
here and listen to what goes on and communicate with your new
attorney, that’s fine. You have every right to do that. But if you
continue tossin g you r pen in the air and laughing every fifteen seconds,
then it’s fine if you sit back in the back, and your attorney can
comm unicate with you back there. So it’s up to y ou. I m ean it d oesn ’t
make any difference to me. We can have this hearing with you, or we
can have it w ithout you . And it’s com pletely your decision, but if you
continue to act in that wa y, I don’t plan to condu ct this busin ess with
you back there laughing and that sort of thing. You can put your hand
down, and you can talk to your attorney, and he can address me if he
thinks it’s appropriate . If he thin ks it’s ina pprop riate, the n he d oesn ’t
have to, and you’ll have an opp ortunity to address him and talk to your
attorney in just a minute -- as soon as I’m through making these
statements for the record.
        And, so, again, if -- you know, if you contin ue with this, an d this
is going to be true for every hearing that we have -- pretrial and during
the trial itself -- if you all wa nt to -- if you want to act that way -- if you
want to make faces, toss pen s in the air, waive your h and, la ugh, th at’s

                                      10
      fine. You can sit back there and do that, and that’s fine. If you wa nt to
      sit and listen intently because this is a serious matter to everybody
      concerned, that’s fin e. It’s your choice. It doesn’t make any difference
      to me. B ut you mak e the d ecisio n, and I’ll -- and if you persist in acting
      this way, you can sit back there, and your attorney can convey to you
      wha t’s going on in court. If you want to sit and act responsibly out here,
      you can do so, and you can participate in the trial. Now, whe re were
      we?
             Because of the most recent rash of allegations raised by Mr.
      Carruthers in his many letters that he’s sent me -- I assume he’s sent
      copies of the letters to his counsel and to others; but I’ve certainly got
      them, and they will be made a part of the record. And because of the
      types of things he alleged in those letters a nd the positio n that it p ut his
      previous attorneys in, and their very, very strong feelings about not
      continuing to represent Mr. Carruthers under those c ircums tances , I
      have reluctantly agreed to let them withdraw.
      ...
             And as I have sta ted, I’m run ning ou t of patienc e with reg ard to
      these different issues -- and I use that word advisedly -- being raised by
      the clients w ith rega rd to an y obje ctions they h ave w ith rega rd to the ir
      attorneys. And as far as I’m concerned, there are the attorneys
      [Massey and Sayle] that will represent these men at trial. It’s going to
      have to be one gigantic co nflict -- one gigantic and real proven,
      demo nstrated conflict before any of these men will be relieved from
      representation in this case. There will be no more perceived conflicts,
      no more unfou nded , wild alle gations raised through correspondence,
      no more dissatisfaction with how my attorney is handling my case for
      anybody to be relieved in this case.
             These are the attorneys, gentlemen. You either work with them
      or don’t. It’s up to you. Bu t they’re the men th at are going to be
      represe nting you at trial. . . . [empha sis adde d].


      The court also , consiste nt with prior practice in this case, authorized an initial

$1,000 for investigative services and conditioned any further compensation on an

itemized showing of necessity by the investigator. Massey stated he preferred to

use his own investigator rather than a third attorney; the investigator was Arthur

Anderson, the same investigator originally hired b y counsel in this ca se. Thereafter,

for some reason, the trial court entered two orders to that affect. An order filed

August 11, 1995, allowed Morton and G arrett to withdraw and appointed Attorneys

William Massey and Harry Sayle; an order filed on September 29, 1995, permitted

counsel and Glenn Wright to withdraw.



      On August 11, August 31, and September 27, 1995, the trial court authorized

additional compensation for investigative services. In a hearing on August 11, 1995,

due to his rec ent ap pointm ent, M asse y requ ested and w as gra nted a trial

continuance until Ja nuary 8, 199 6.       Ma ssey inform ed the court th at there still

remained som e disco very to be ha d in the case and that his investigator had been

working diligently on the matter.

                                            11
       Like previo us co unse l, Massey and Sayle filed numerous pretrial motions on

beha lf of the app ellant. In a hearing on November 17, 1995, Massey informed the

court that he had filed all the necessary and appropriate pretrial motions. On

December 19, 1995, Massey filed a motion to withdraw as counsel. Cou nsel’s

motion expla ined th at “his re lations hip with [Carruthers] has deteriorated to such a

serious degree that he can not provide effective assistance as required by state and

federal law. . . C ouns el’s professional judgment cannot be exercised solely for the

bene fit of Defendant, as counsel fears fo r his safety and those around him. As such,

defendant cannot have effective communication with counsel to discuss the case

and counsel cannot discuss strategy and legal options with Defendant.” Attached

to this nine page motion are seve ral letters Ca rruthers m ailed to co unsel in late

November and early December 1995. In these letters, Carru thers accused counsel

of lying, threa tened c ounse l, and can didly exp ressed his overa ll dissatisfactio n with

the way counsel handled his case. Excerpts from these letters are quoted below:



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

       [Letter dated December 2, 1995] I want to make this statement that
       you are about to cross a [sic] innocent man out of his life. I hope you
       can live with that. You and your friend are the ones that are in a [sic]
       organization, and y ou’ll [sic] are all a thr eat to the black men, but make
       this one your best one, because you deserve it! you have practice [sic]
       law 15 years and you got to look good, because you can’t keep doing
       this forever. You save the best for last. P.S. This is your last one!
        [emphasis added]

       [Letter dated December 5, 1995] You have violated several ethic codes
       with your style and tactics. I don’t know if you want to find another
       profession or not. This one Black man that w on’t allo w you to walk
       around pride [sic] with you [sic] head up high. I want your licen se to
       practice law revoke [sic] or suspended. I don’t know how far you plan
       to play this game but I’m serious. I should be seeing you soon, and I
       don’t know what you a re exp ecting . I prom ise it wo n’t be th at sam e old
       sweet smooth talking. It better be some actions around your words.
       Life is to [sic] short to be playing games with you. Read what the Legal
       Medical Dictionary has to describe it. You need to get your sorry but
       [sic] over here to this jail house and tell me what kind of strategy you
       have fo r trial Mr. Slick T alker;



                                            12
       [Letter dated December 6, 1995] I want to see you in [sic] your
       investigator over at the jail as soon as you receiv e this letter w ith a full
       report and transcribe interviews from witnesses. Please do not come
       with anything that isn’t proper, because if it ain’t right you w ill have to
       do it again. I’ll be looking for you soon. Everyday until my trial date you
       need to send somebody over here to keep me informed of your
       progress.

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

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


Also attached to the m otion is a statem ent from M assey’s sec retary describing

Carru thers’s abusive and threatening tone during her telephone conve rsations w ith

him:



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


       On December 19, 1995, the trial court held a hearing on pretrial motions,

including counsel’s motion to withdraw. Before counsel presented arguments, the

judge made the following statements for the record:



               A couple of statements I need to m ake for the reco rd before we
       begin the hearings that were scheduled today, the cases, in fact, set for
       trial on the 8th of January.
               My first statement is that all statements that these defendants
       need to mak e to this Co urt can and will be m ade th rough their
       attorneys. They are represented by very experienced, highly effective,
       excellent trial attorneys and anything they need to say, w ith regard to
       their trial, will be addressed to me throug h their a ttorney s. And if there
       are any disruptions or problems -- disruptions caused by the
       defend ants in the process of these hearings, then they will be removed
       to the room behind this do or, and we’ll co ntinue with the hearin gs in
       their absence.
               Secondly, the letters that I have received from Mr. Mon tgomery
       and Mr. Carruthers over the past several months I have diligen tly tried

                                              13
     to main tain. I’ve hand ed the m all o ver to the clerk’s office. They’ve
     filed them all in one of th e clerk’s files. W e have dozens if not hundreds
     of letters from these two defendants over the past several months. I’ve
     opened each one. I’ve read each one. I’ve tried to give copies to
     defense counsel. If I’ve not done that I’ve certainly made them
     availa ble by putting them in the jacke ts. There ’s been n o secre t as to
     the content of any of the letters.
             About a week ago I received a letter from one of the defendants,
     Mr. Carruthers, in which he told me that he was going to send me an
     envelope full of roaches from the jail. I gues s to -- I guess to suggest
     that there is a roach p roblem in the S helby Cou nty Jail or whatev er.
     But my job description does not include opening letters of that sort. So,
     for the record I will no longer open any letters from either of these
     defendants. They have from that day and will continue to be put
     imm ediate ly in the trash. If they have anything to say, they can, again,
     address me through their attorneys. They’re represented by excellent
     coun sel, and they can se nd lette rs to the ir attorneys, and their attorneys
     can then address me on anything that relates to this case.


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

withdraw.

            I would ju st say I don’t n eed to, I don’t guess, repeat word for
     word what’s in [m y motion ]. I would just say that in 15 years of
     practicing law, I have never ever made a motion of this nature. I have
     never -- I’ve neve r found it difficu lt to advoc ate on b ehalf of a c ase. I
     wou ldn’t find it difficult to advocate on behalf of this cas e. I do a t this
     point, however, find it very difficult to advocate on behalf of Mr.
     Carruthers. And that is simply because he’s made it that way.
            If I were receiving letters that merely stated I was incompetent
     and that I wasn’t handling his case right, and those type letters -- we all
     get those time to time -- I don’t mind those. Those don’t bother me.
            When I have letters that come to me that are threatening, when
     I have telephone calls that come to my office that are threatening the
     safety of me and my staff and those around me, I have real problems
     with that.
            It’s gotten so bad, Your Honor, that my secretary is having
     nightmares. The la st call M r. Carru thers m ade is Exhib it E to this
     verified motion . She called me in absolute tears crying uncontrollably,
     hyste rically crying over his antics. That’s the same way he’s been
     doing m e. I just have n’t broken down and star ted crying about it.
            But I do have very, very strong, such strong personal
     reservations as I have never experienced before as an advocate. Your
     Honor, in adv ocatin g cas es, pa rticularly capital cases, I find the first
     thing I have to do to be persuasive is to believe. I have to believe and
     I have to feel. Because if I don’t believe and I don’t feel and I’m not
     sincere, I cannot impart that to a jury. They see my insincerity. They
     just see words, a parrot-like proficiency as opposed to feeling. They
     don’t act on that. They shut that out. That’s been my experience. And
     I don’t believe that that feeling, I know that I can’t advocate. I’ve lost
     my will to advocate on this case. I don’t have any doubt about that at
     this point. I don’t have any doubt. I’ll tell you as an officer of this c ourt.
     I don’t have any doubt that would be a major problem.
            And despite Mr. Carruthers threats and antics, I care for the
     integrity of the system. I care that his rights are protected even when
     he tries to destroy them himself and impair them. And I don’t know
     what the Cou rt’s answ er is. I know that the Court is in a ve ry difficu lt
     position here.
            Obviously, it’s very clear what the ploy is. It’s very clear that
     we’re never g oing to ge t to trial like this. And if we do , then th ere’s
     going to be a record made for ineffective assistance of counsel. And
     they believe, Mr. Carruthers believes, that doing all of thes e thing s is


                                           14
      going to make him a record, as opposed to doing things from a legal
      standpoint in the courtroom.


The trial judge responded:


             In my opinion, to try to make the record reflect as clearly and
      accu rately as possible the fact that the system is doing everything it can
      to mak e sure that M r. Carru thers is prope rly and thorou ghly
      represented in this case.
             And Mr. Carruthers may step out to the back. He just was
      pointing to Mr. M assey w ith some sort of threatening gesture. And h e’s
      going to sit in the back for the rem ainde r of this hearing. Put him in the
      back room and keep him back there. Lock the door. Mr. Montgomery,
      you will join him in a minute if you choose to conduct yourself in that
      man ner as well.
             The system has done all it can, in my opinion, to ma ke sure that
      Mr. Toney [sic] Ca rruthers is well represented. And I’ve tried to be as
      patient as I can be in listening to the concerns of defense counsel and
      investigators in ma king sure that no conflict existed in the
      representation of either of these men.
             The specific reasons, the narrow specific reasons for the excusal
      of the previous a ttorneys and inv estigators differ a little bit from those
      comp laints that Mr. Mas sey has raise d today. And so when Mr.
      Massey says “That just because I’m the 4th or 5th attorney in line
      does n’t mea n that I n ow ha ve to b e stuc k, in effe ct, in rep resen ting him
      just because others have been relieved and the Court is anxious to get
      the case tried. My complaints are as valid as theirs were. And if they
      were relieved, then I should be relieved as we ll.” And I understand that
      position. But first of all I’ll respond to that by s aying the ir comp laints
      were a little bit different, and I’m not going to go through them on the
      record now. The record is clear in tho se inst ance s. One enve lope is
      sealed with several letters that will reveal what those complaints w ere
      and the complaints from attorneys prior to th at we re a little bit different
      in nature. Not to minimize the seriousness of Mr. Massey’s complaints,
      but those complaints were a little bit different. And so it’s not that he
      just happens to be the 5th atto rney in line, an d he’s the on e that is
      going to quote, get stuck, representing Mr. C arruth ers.                   Th eir
      comp laints were a little bit different. And factually there are some
      distinctions that can be drawn between the complaints that they had
      and the complaints that you’ve voiced.

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

      The Court: Yes. Yes, I am.

      Mr. Massey: The threats of physical bodily harm?

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

      Mr. Massey: Threats I received.

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




                                             15
The trial judge stated that he was “much less rece ptive to the se sorts o f argum ents

than [he] was a year ago when the first set of attorneys came in wanting to be

relieved.” He also stated that Carruthers never requested to proceed pro se, and

that he was “not going to force a ma n to go pro se in a cap ital case if he do esn’t

want.” The trial court denied Massey ’s motion to withd raw. The trial court, ho wever,

did authorize additional funds for investigation and mitigation.



       In another hearing on Janua ry 2, 1996, Massey again requested permission

to withdraw. Massey informed the court that he had continued to receive threatening

letters at his home and was co ncerne d for his da ughter’s s afety because Carruthers

referred to the car she drove. Mas sey stated tha t he cared m ore about C arruthers

receiving a fair trial than Carruthers himself did, but that due to the actions of

Carruthers Massey did not believe he could responsibly represent him. He told the

court, quite c learly, “I d on’t want to repres ent this man . I can’t re prese nt him . I won’t

represent him .”



       During this hearing, the prosecution, for the first time, voiced its position on the

matter. The prosecutor recounted the procedural history of the case, that several

extrem ely competent and professional attorneys were forced off the case by

Carruthers, and stated:



       And if a defendant, Your honor, can threaten the system, if he can
       manip ulate the system by threats, by letters, I’m not sure if that’s what
       the makers of the constitution meant when they sat in Philadelphia and
       they said, look, let’s let every defendant have a fair trial. Le t’s let him
       have a lawyer. Let’s let a jury be over here. Let’s let him have a judge;
       that’s fair. Let’s let no m an be accu sed o f a crim e, will not go to trial,
       unless he receives a fair trial. Let no man be c onvicted -- but the
       framers of the constitution, Your Honor, had not met Tony Carruthers.


The prosec utor und erstood Mass ey’s pred icame nt, but told the co urt it sim ply could

not allow Carruthers to continue the trial of the case any longer. The court, again,

denied Massey’s request. The court’s main concern, apparently, was that it could

not just keep granting these requests to withdraw; there had to be an end to it. The

court noted, tho ugh, tha t everything that had taken place during the course of the

proceedings had be en reco rded so the app ellate courts “can un derstand w hy we’re



                                              16
in this dilemm a that we ’re in today . So that they ca n understan d why M r. Carruthers

wou ld be representing himse lf . . . so that they can have the full understanding.” At

one point during the hearing, Carruthers stated to the court that he did not w ant

Massey representing him because Massey was on co caine. The rec ord also reflec ts

that during the hea ring Car ruthers w as glaring at Mas sey an d gritting his ja w.



       Although the trial c ourt pr eviou sly me ntione d that it w as no t going to force

Carruthers to repre sent h imse lf in this ca pital trial, after furthe r though t the court,

citing federa l case la w, stat ed tha t Carru thers h ad tw o optio ns rem aining, either

proceed with Massey and Sayle or proceed pro se. The record clearly reflects that

everyone involved in this case , with the a pparen t exceptio n of Carr uthers, w as

particu larly frustrated w ith the turn of events. The court, for the record again, stated

that in its opin ion all o f the atto rneys appo inted in this case were excellent trial

lawyers and had fully performed their duties, including filing all relevant motions and

thoroughly pursuing the investigation.



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

In an order dated January 8, 1996, this Court re counte d som e of the sta temen ts

from the letters written by Carruthers, including a description of the car driven by

Massey’s daughter, a n alleg ation th at Ca rruthe rs’ friend s cou ld disco ver de tails

about Mass ey like the c olor of his too thbrush in his hom e, and a statement to the

trial judge accusing Massey of using cocaine.            After noting that several other

attorneys were allowed to withdraw in this case, the Court stated:



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

                                             17
       Tennessee Supreme Court Office, which advised Massey that he was
       ethica lly required to withdraw as counsel, and, if the motion was
       denied, he was required to seek relief in the appellate courts.
       ...
               Given these facts and circumstances as well as the relevant
       provisions of the Code of Professional Conduct, which governs the
       conduct of lawyers in the State of Tennessee, Mr. Massey was entitled
       to be relieved as c ounsel of reco rd for Mr. Carruthers. If there ever was
       an amic able a ttorney -client re lations hip, it was erad icated by M r.
       Carruthers’s conduct in writing the letters aforementioned and
       threatening to do bodily harm to Mr. Massey the first time he saw him.
       Today, Mr. Massey and Mr. Carruthers are at odds and their
       differences are irreconcilable.           Furthermore, Mr. Massey, who
       emp hatica lly denied any m iscondu ct or add iction to dru gs, mu st attempt
       to protec t his fam ily, secr etary, a nd him self from physical harm as well
       as protect himself from further disciplinary complaints.


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

Interestingly, in a hearing on January 8, 1996, the trial court allowe d coun sel to

withdraw, but this was appa rently before the jud ge rec eived a cop y of this Cour t’s

order. That day, Massey had filed a supplement to his motion to withdraw, and

attach ed se ven m ore lette rs Ca rruthe rs ma iled to c ouns el’s ho me a nd bu sines s in

late December 1995. These letters were also attached to the application Massey

filed in this Court. Although Carruthers was aware of the motion to withdraw filed by

Massey, he persisted in sending even more letters to counsel which only added

ammunition to counsel’s cau se. In these letters, Ca rruthers again, in an accusatory

and threatening tone, expressed his dissatisfaction with Massey’s representation:



       [Letter dated December 19, 1995] Hey M r. Attorn ey yo u sit aroun d in
       your big tie office in Raleigh and ride around in your 1994 Ford Probe.
       I can’t even get 50 full hours of inves tigation out of you or y our sorry
       investigator but that’s okay, because I have investigator [sic] myself and
       they don’t charge me anything and a couple [sic] of days I’ll be able to
       tell you anything you need to know even the color of a toothbrush they
       are good I’m telling you they aren’t from Memphis so you know they
       must be pretty good. P.S. L et me know when you a re read y to sit
       down and talk to them I’ll send them over to help. [emphasis added]

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

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

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




                                            18
      [Letter dated December 27, 1995] Look BOY you don’t have to except
      [sic] my calls or come to see me. I will put it on paper what I want your
      sorry ass to do. You don’t have to do it if you d on’t wan t. Your brains
      aren’t as big as you th ink. It’s not a gam e you are it [sic ] my life . i can’t
      live but once, and I promise you I won’t let you take it just so you can
      ride around town and brag. This is where I stand fa ir trial or nothing.
      You are one crazy white b oy or ju st a se nd ou t. Like I to ld you, let your
      conscience be your guide.

      [Letter to trial judge dated December 27, 1995] I have once, twice, and
      even three times wrote you and made you aware that my attorney of
      the record William D. Massey is ineffe ctive in h is assis tance of cou nsel.
      We have disag reed on m ore than one occasion ab out which rights of
      mine where [sic] being violated. He Mr. William D. Massey has refused
      to prope rly investigate my case. He refuse to file prosecutorial
      misconduct charges against the Asst. Attorney General Jerry Harris.
      He also is addicted to cocaine a [sic] illegal controlled substance which
      affects his ability to practice law. This is a disgrace to the judicial
      system.


The record also reflects that Carruthers filed a disciplinary complaint against Massey

with the Board of Professional Responsibility.



       Just before the start of jury selection, the trial court, again citing federal

opinions, ruled that Carruthers had forfeited his right to counsel by his egregious

conduct and compelled him to proceed pro se. The trial court, however, appointed

Massey and Sayle to serve as “elbow counsel.”               Despite Massey’s continued

position that the attorne y-clien t relation ship had com pletely deteriorated, C arruthers

informed the court that he tried to reconcile with Massey the weekend before the

start of trial. When the judge made his ruling, Carruthers expressed his concerns

to the court about proceeding pro se; he informed the judge, in essence, that he had

no idea what to do. The judge stated:



              Well, those are the pe rils in going forward pro se. And in my
       judgm ent, Mr. Carruthers, as I’ve said on seve ral occ asion s, and I don’t
       intend to g et back in to a lengthy hearing on this issue at this time, but
       we’ve had two or three hearings already on this.
              In my judgment, and I understand you’re stating now that you
       don’t feel capable of g oing forward and representing yourself. But you
       need to und erstan d that in my judgment you have created this problem
       for yourse lf. You are the autho r of your ow n predica ment b y, in my
       opinion, sabotaging the representation of you by four previous
       attorneys. These are now your fifth and sixth attorneys. In my
       judgm ent, because of actions that you’ve taken over the past 18
       months, because of ac tions th at you ’ve tak en, yo u are n ow in th is
       situation.
              And so it ma y well b e difficu lt for you to go fo rward in
       representing yourse lf, but this is the situation that you’ve created and
       you’re going to hav e to do the be st you can, b ecau se the re is virtually
       no option left at this point. To reset it again, history would show would

                                             19
      only -- would be a futile effort, because at the eleventh hour with the
      seven th and eighth attorneys representing you, there would be some
      other effort, in my opinion, s ome o ther ma nipulation on you r part that
      wou ld then cause those attorneys to come in and want to get off your
      case. And then we’d reset it and appoint the ninth and tenth attorneys,
      and the eleventh and twe lfth. And the re’d be n o end to it.
      ...
              And so we ’re goin g forw ard an d you ’re goin g to represent
      yourse lf. I understa nd you ’re not an e xperien ced attor ney. I
      understand you may well have never gone through a voir dire process
      before. And that’s unfortunate. I wish you had cooperated and gotten
      along with M r. Nan ce a ye ar and a half a go. He was a n exc ellent
      attorne y, has tried m any, m any c ases in thes e cou rts, serio us diffic ult
      cases and done an excellent job.
              I wish you had cooperated and gotten along with Coleman
      Garrett who, in my opinio n, is on e of the best tria l attorne ys in this
      entire state. He’s tried many cases in this courtroom and defended
      individ uals re mark ably w ell.
              I wish y ou ha d coo perate d and gotten along with M r. Craig
      Morton, and Mr. Glen Wright, and Mr. Harry Sayle, and Mr. William
      Massey, beca use I th ink it would’ve been in your best interest to have
      done so. But it’s been obvious that you have not. And so for that
      reason we’re going forward.
      ...
              It’s not easy to make this decision. It’s not a decision that I made
      lightly or take ligh tly. But I tell you wh at, if this record isn’t com plete
      enough and replete enough with evidence of manipulative conduct and
      obstructionism, then I can’t imagine ever there being a record for the
      appellate courts in Tennessee that would meet that criteria.


The record indicates that in an effort to waive any conflict with Massey representing

him at trial Carruthers wanted to take the stand to apologize and te stify that the

accusations he mad e against cou nsel earlier were untrue. The court noted that this

was m erely ano ther tactic C arruthers was us ing and denied the requ est.



       On January 9, 1996, this Court filed an addendum to its previous order and

ordered that Massey be completely relieved of any representation of Carruthers,

including providing assistance as “elbow counsel.” On January 11, 1996, during voir

dire, the state requested a trial continuance due to the hospitaliza tion of one of its

material witnesses. Th e court resche duled trial until April 15, 1996 . Carruthers

made an oral request for appointment of new counsel. The trial court denied the

request, reiterating w hat it had stated ea rlier:



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

                                            20
       situation that we were in with Mr. Larry Nance, with Mr. Coleman
       Garrett, with Mr. Bill Massey, all three of whom are outstanding criminal
       defense attorney s. All three of who m we re fully capable of representing
       you, and all three of whom had to be relieved because of your actions.
              And in my judgment, enough is enough. And because of your
       actions, these attorneys are no longer representing you and, therefore,
       you will be representing yourself. You have ample time to prepare.
       You have access to legal opinion from Mr. Sayle. You have the file.
       You have the rules. You have a jury consultant. You have an
       investigator. And this is the manner in which we’re going forward.


       On January 19, 1996, the trial court entered orde rs allowing Ca rruthers to hire

a jury selection consultant and an investigator. During a hearing on January 16,

1996, the appellant informed the court that he had contacte d a new investiga tor to

assist him. The court talked to this new investigator about the nature of the case and

questioned whether he would be able to proceed to trial on April 15, 1996. The

investigator informed the court that he had discuss ed the m atter with the appellant

and was in the process of assem bling an in vestigative team. He stated that he had

the files that had already been prepared and indicated that he would complete the

investigation by that date. The court allowed John Billings to assist the appellant

and authorized Billings to contact the court if additional funds were needed. The

court also cautioned the appellant that this would be the last investigator appointed

in this case.



       In February 1996, Carruthers filed two more written motions for appointment

of counsel, which were also denied by the trial court for the same reasons mentioned

earlier.   In a hearing on February 20, 1996, the court recounted the lengthy

procedural history of this case and cited several federal opinions discussing a

defen dant’s forfeiture of counsel due to defendant’s hostile actions. The court stated

that “it will be apparent to anyone who objectively views this situation th at Mr.

Carruthers is not being denied right to cou nsel.” Also during the hearing on the 20th,

the court entertained some of Carruthers’s pretrial requests for expert services and

discovery. Although appellan t represe nted him self at this po int, the reco rd reflects

that the trial judge continued with a professional approach in this matter and made

informed decisions after allowing the appellant ample opportunity to make his

argum ents in open court on his pretrial requests. The record suggests that the judge

provided Carruthers with added guidance and granted him and his investigator



                                           21
cons iderab le latitude during the pre trial hearings. Hearing dates were continued

several times to allow the appellant additional time to prepare for his arguments .

Moreov er, at times when Carruthers requested an ex parte hearing, the state

voluntarily left the courtroom so the appellant could speak freely to the judge.



      The court eve ntually allow ed Say le to withdr aw as e lbow co unsel du e to

appe llant’s lack of tr ust an d con fidenc e in co unse l and his personal attacks against

Sayle. The court denied Carruthers’ motion for court paid accident reconstruction

services, but granted h is request for a forensic p atholog ist. On March 4, 1996, the

trial court entered an order denying another request by Carruthers for appointment

of coun sel. Als o on March 4, the court heard arguments from Carruthers on all of

the remaining p retrial motions he h ad filed. As the trial court no ted and as the record

reflects, the appellant filed various pretrial motions that appear to be similar or the

same as those filed by counsel before they were allowed to withdraw. In addition,

the record reflects that the appellant obtained the assistance of another attorney to

prepare som e of the se m otions on his beha lf. The a ppella nt inten ded to retain th is

attorney to represent him, but apparently this never materialized. Among these

motions are motions for severance, individual voir dire, suppression of evidence, and

general discovery reques ts. Incidentally, once the court removed the final attorney

from Carruthers’’s cas e, counsel for M ontgom ery started m oving the cou rt for a

severance. In fact, almost every time the court held a pretrial hearing on one of

Carru thers’’s requests, cou nsel for Mon tgomery re newed their motion for a

severance. These were denied.



        Anoth er oral m otion fo r appo intme nt of co unse l was d enied on Ap ril 15,

1996, the day jury s election s tarted. After trial, Carruthers filed yet another motion

for appointment of counsel. The trial court appointed Stephen Leffler and Lee

Filderman to represent appellant on the motion for new trial and direct appeal to this

Court. Even after new counsel were appointed, Carruthers still insisted on filing pro

se motions in the trial court. Appellant also wrote letters to the trial judge about

issues he wanted to raise in the motion for new trial and witnesses he wanted to call.




                                            22
He also complained to the trial court that his new counsel were inexperienc ed to

handle a capital case.



                                       FACTS

Guilt Phase

       The victims, Marcellos Anderson, Delois Anderson, an d Frederick T ucker,

were murdered sometime between the evening of February 24, 1994, and the

morning of February 25, 1994. Their bo dies we re discov ered un dernea th a buried

casket in a cem etery in M emph is, Tenne ssee, on March 3, 1994 .



       Michael Harris let his cousin, Marcellos Anderson, borrow his Jeep Cherokee

on Wednesday, February 23, 1994. Harris learned early Friday morning, Fe bruary

25, that his Jeep was d estroy ed by fire in Mississippi. Harris testified that Anderson

stayed with him sometimes during the week and that he would loan Anderson his car

once or twice a week. H e testified, ho weve r, that he did not know what Anderson

did for a living.



       At about 2:40 a.m. o n Feb ruary 2 5, 199 4, Arch ie Yancey, an officer with the

Deso to Coun ty, Mississ ippi She riff’s Depa rtment, o bserve d wha t appea red to be a

“Jeep vehicle ” engu lfed in fla mes in a field a bout tw elve m iles south of the

Tennessee-Mississippi state line. According to Officer Yanc ey, the way th e veh icle

was burning suggested that it may have been torched.



       Jean Tucker testified that her son, Frederick Tucker, was seventeen years old

when he was killed. Sh e last saw him around no on on Feb ruary 24, 1994. Tucker

also testified that her oldest son , Andre Tuc ker, was m urdered on January 13, 1995.



       Ola Jean Anderson was a friend of Marcellos Anderson. She testified that she

saw Ander son with James and Jonathon Montgomery sometime around 4:30 p.m.

on Thursday afternoon, the 24th. Ola Jean Anderson was standing on the street

talking to Anderson, who was in a white Jeep with another person, when

Montgomery and his brother approached and got into the Jeep.



                                          23
      Lave nthia Denise Anderson Briggs is a niece of Delois Anderson and c ousin

of Marcellos A nderson. B riggs lived with Delois and Marcellos Anderson. She

testified that she did not know what Marcellos did for a living, but she d id state that

he had been shot in July 1993. Briggs telephoned Delois at home from a friend’s

house shortly after 8:00 p.m. on the 24th. Someone answered the phone but did not

speak. Briggs testified that she said “hello” several times but received no response.

She hung up the phone and tried calling back, but no one answered the phone.

Briggs went home about thirty minutes later and noticed that Delois had been there

“because her thin gs we re ther e and she h ad left h er food .” Brigg s assu med Delois

wou ld be back soon because she left her car, purse, cigarettes and keys. Briggs

went to sleep and was awoken about 3:30 a.m. b y a ph one c all from Mich ael Ha rris

asking if Delois was home . She ha d not retu rned, no r was M arcellos h ome. A

missing person repo rt was filed the next day. Briggs testified that Marcellos wore a

“big diamo nd ring,” a watch and a beeper. She also testified that a pillow case was

missing from Delois’ bed.



      Charles Ray Smith, a convicted felon, testified on behalf of the state. In the

fall of 199 3, Sm ith was incarc erated at the M ark Lu ttrell Re ceptio n Cen ter in

Memphis. Appellants Carruthers and Montgomery were also incarcerated there at

that time. According to Smith, sometime during the early part of November 1993,

Smith and Carruthers were on work detail together at the cemetery where the victims

were discovered. Part of their duties included placing coffins in the grave sites.

According to Smith, at som e point Carruth ers stated “that would be a good way, you

know, to bury somebody, if you’re going to kill them. He said, you know, he sa id,

you know, if yo u ain’t got n o body , you don ’t have a case.” Smith testified that he

heard Anderson brought Carruthers back to jail from furlough one day. Montgom ery

apparen tly saw Anderson with Carruthers.         Smith overheard Montgomery ask

Carruthers about A nderso n.       Smith testified that he he ard C arruth ers tell

Montgo mery both Anderson and Andre “Baby Brother” Johnson dealt drugs and had

a lot of money. Carruthers said when he and Montgomery got out of prison they

could rob and “ge t” Anders on and Johns on.




                                          24
      Smith further testified that upon his release, he approached Anderson and

Johnson and told them what he had overheard.           Thereafter, Montgomery was

released and Smith saw him on the street sometime in January 1994. “When I had

seen him, he told me that, you know, [Johnson] is trying to get me killed because

he sa id I went back and told [Johnson] that he supposed to be robbing them, what

he told me.” Smith testified that he saw James and Jonath an Mo ntgom ery get into

a white Jeep Cherokee with Marcellos Anderson and Fred Tucker on February 24,

1994. Smith also sa w Jonatha n Montgo mery “han ging around ” by him self from

about 5:00 to 6:30 p.m.



      Smith testified that h e receive d a call from Johns on arou nd 4:00 a.m. on

February 25, 1994. Johnson said Anderson was missing and asked Smith if he had

seen him. Smith, Andre Tucker and Johnson drove around looking for Anderson.

Smith testified the y saw ligh ts on at Ja mes M ontgom ery’s hou se, so w hen Sm ith

returned home around 5:00 a.m. he telephon ed Mo ntgom ery, desp ite the fact that

he and Montgomery did not have a friendly rela tionship. Carruthe rs answered the

phone and Sm ith asked to talk to M ontgo mery . Smith aske d Mo ntgom ery if he knew

Ande rson’s whereabouts because he was the last on e he sa w with h im. Smith also

informed Montgomery that Anderson’s Jeep was found burned in Mississippi.

According to Smith, Montgomery said he did n ot feel lik e talkin g, that “W e’ll talk

tomorrow,” and hung up the phone.



      On cross-examination, Smith acknowledged that he did not have a good

relation ship with Jame s Mon tgome ry. Smith could no t remem ber the s pecific da te

he heard Carruthers and Montgomery talking about Anderson.              Nor could he

remember if there we re any o ther inm ates pre sent du ring the co nversa tion. Sm ith

also acknowledged on cross that prior to h is relea se from prison in the fa ll of 1993

he and Carruthers “had a fallout” and did not “talk much anymore” because he

learned that Carruthers and Montgomery “was plotting to do something” to him.



      Nake ita Montgomery Shaw testified that her cousins, James and Jonathan

Montgomery, and Anderson and Tucker stopped by her house to visit around 4:30



                                          25
or 5:00 p .m. on Febru ary 24 , 1994 . They arrived in a white Jeep Cherokee. Benton

Wes t, another of Shaw’s cousins, and Shaw’s four children were also present in the

house. Shaw testified that the four men entere d the house and went down to the

basem ent. James then came back upstairs and asked Shaw if she could leave the

house for a while so he could take care of some business. West, the children, and

Shaw all left the house. West told Shaw that he would never visit her again if James

was in the house.



      When Shaw returned later that evening, Carruthers and James M ontgom ery

were the on ly individuals she saw in her ho use. M ontgo mery aske d if she could

leave for a little longer. When she returned home again, sometime before 10:00

p.m., James M ontgom ery and C arruthers were still the re. The w hite Jeep, how ever,

was gone, and Shaw did not see or hear Anderson or Tucker. Shaw testified that

Montgo mery told her to put her kids to bed upstairs and stay there until he said

otherwise. When M ontgom ery told her he w as leaving sh e went ba ck down stairs

and saw Montgomery, Carruthers, Anderson and Tucker w alk out the front doo r.

Shaw locked the front door behind them. She testified that the Jeep had returned

to the front of her house. The next m orning, Jam es, Jonatha n, and Ca rruthers

returned to Shaw’s house.



      After the po lice star ted the ir inves tigation in this ca se, Ja mes Mon tgom ery told

Shaw that she did not have to talk to the police about a nything. Montgomery also

told her later that if he was going to be put to death for something he did not do, then

“all of us needed to die.”     Shaw testified that she subsequently moved to her

moth er’s in Milwaukee with her children and Jonathan Montgo mery because she had

received death threats. In early April, Shaw was questioned by the Milwaukee

Police Department regarding the evening of February 24, 1994. She informed the

officers of Jonathan’s whereabouts. When she was questioned by the Memphis

Police Department at a later date, she mentioned that Anderson and Tucker’s hands

were tied behin d their bac ks whe n they left h er hous e. She testified that she has

been afraid for he r life, and during her testimony she stated that she did not see

Anderson and Tucker restrained in any manner. She informed the police that James



                                             26
Montgo mery threate ned h er and told her she could be an accessory. Montgom ery

also told Shaw that he did not w ant to have to h urt her.



      On cross-e xamin ation, Shaw testified that she was not afraid of James

Montgo mery but, be caus e of he r involv eme nt in this case, she was still scared. She

testified that James was living with her in February 1994, and that it was not

uncommon for him to come and go as he pleased. James also brought friends by

the house occasionally. Shaw testified that she did not care for Anderson, because

he dealt drugs, and told Ben West that she did not want Anderson in her house.



      Benton West was a t Shaw ’s house on Feb ruary 24 , 1994. H e testified th at

around 5:00 p.m. James and Jonathan Montgomery, Anderson and Tucker stopped

by the house in a Jeep. West spoke to Anderson and then all four men walked

downsta irs to the basement. West testified that a couple of minutes later Shaw

came into the kitch en and told him th at she th ought “they” were being kidnapped.

West then took Shaw’s children and left the house. West saw Sha w two da ys later,

and she sta ted, “I hope didn’t noth ing happen to them or no thing like that.” On

cross-examination, West testified that he did not see any weapons or notice anything

unusual about the four men as they came inside the house. He also testified that

Shaw never told him she was afraid of Anderson or that s he did not want him in her

house.



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

Maze received two letters from Carruthers in the summer of 1993 while Carruthe rs

was incarcerated. In the first letter, Carruthers mentioned he had “a master plan”

and “all the right ideas and the support to back it.” In his second letter, he stated he

was trying to get transferred to Mark Luttrell Reception Center. He also wro te: “I

can’t wait to make tho se streets pay me”; “If you really want to be rich, take time out

when you ge t out to listen to my plans and goals”; “Everything I do from now o n will

be well organized and extremely violent”; “I have big plans for us and th ere isn ’t

anything they can do about it”. Maze also testified that in December 1993, he and

his brother and Carruthers were riding around together. They happened upon a



                                          27
scene where a car had been s hot in front of Delois Anderson’s house. Jonathan

Montgo mery was at the scene, and when they arrived Montgomery got in the back

seat of the car w ith Carruthers. Maze testified that Carruthers said “it would be the

best time to kidnap M arcellos,” once Ja mes M ontgom ery was relea sed from custody.

When Montgom ery asked w ho Carruthe rs was talking about, Anderson or Johnson,

Maze observed Carruthers bump Montgomery with his elbow. A couple of weeks

later, on New Year’s night, Maze saw Ca rruthers loading three an tifreeze containers

into a car. Maze got in the car with Carruthers, and as he was about to light a

cigarette, Carruthers told him not to do it because there was gasoline in the

antifreeze containers.



      Terre ll Adair, a convicted felon, testified that prior to his incarceration he was

involved in the sa le of coc aine w ith Ma rcellos Ande rson a nd An dre Jo hnso n. Ada ir

was present when Charles Ray Smith warned Anderson and Johnson about

Carruthers and Montgomery.          Sometime in February 1994, Carruthers and

Montgom ery approached Adair and Johnson on the street. Montgomery asked

Johnson and A dair “why did we feel like he was trying to do something, something

to one of us, because if he was trying to do something to us he would come around

and kill our whole family.” Montgomery told Adair and Johnson that he already had

someone else targeted, an d that he wa s going to take th is person’s money and

drugs. Montgom ery also sa id, “if the p olice d idn’t have no body, they wouldn’t have

no case.” Adair s tated th at this was the first time he met Montgomery. Adair also

testified that Anderson always wore an $1,800 ring. Adair admitted to having been

shot during a drive-by shooting, allegedly something to do with the drug business.

He also stated that Anderson had previously been shot in a drive-by shooting.



      Andre Johnson (“Baby Brother”) testified that he, Marcellos Anderson and

Terre ll Adair were best friends and sold cocaine together. According to Johnson,

Anderson was known to carry about $5,000 or $6,000 cash on his person. Johnson

also stated that Anderson had about $57,000 stored in his mother’s attic. Johnson,

Anderso n and Ad air all wore similar rings. Jo hnson testified tha t when C arruthers

was released from jail in the fall of 1993, he, Anderson and Adair each gave



                                           28
Carruthers $200, which apparently was customary when someone they knew was

released from jail. Johnson stated tha t Anders on trans ported C arruthers to and from

jail when he was released on furlough. Johnson testified that after Carruthers was

released from jail Charles Smith warned him, Anderson, and Adair to watch out for

Carruthers and Montgomery. Johnson said Anderson did not take Smith’s comment

too seriously. According to Johnson, Anderson acted friendly toward Carruthers and

trusted him. Johnson also testified that he saw Montgomery after he was released

from jail. Montgomery stated “this is my neighborhood” and asked Johnson whether

he want ed to g o to “w ar” ove r it. Mon tgom ery als o told J ohns on, so metim e later in

front of Johnson’s house, “we already got our man staked out . . . If we wanted some

trouble or som ething, we go t you right now. W e’d kill your whole fam ily.”



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

Anderson had also been shot in a similar manner. Johnson also testified that he and

his asso ciates had p reviou sly been involved in a drug war with a rival organization

caused by differences in pricing. Upon questioning by Carruthers, Johnson stated

that when Carruthers was released from jail he mentio ned so methin g to him about

a master plan and making a million dollars in about two months.



       Chris Hines had known the appellants since junior high school. About 9:00

p.m. on February 24, 1994, Jonathan Montgomery visited Hines at his home. Hines

testified that Jonathan told him he killed some people and stole their money; he said,

“Man, a n----r got them folks . . . Cello and them.” Jonathan said “Man, we got them

folks out at the cem etery on Elvis P resley, and w e got $200 ,000.” Jonathan asked

Hines to take him to the cemetery. Hines refused, but allowed Jonathan to borrow

his car. Although Jonathan said he would return the car in an hour, Hines did not

see it again until the next morning. Hines also testified that he called James

Montgo mery about 11:00 p.m. that same night. Hines wa s looking for his car.

James told him he did not know where Jonathan was, but that he would probably not

get his car back until about 4:00 a.m. beca use J onath an ha d to driv e Jam es to h is

girlfriend’s house. Jonathan, James and Carruthers eventually returned his car

around 8:30 a.m. the n ext mo rning. Th e car wa s mud dy but the three de fendan ts



                                            29
took the car to clean the exterior and vacuum the interior, including the trunk. Hines

testified that Jo natha n told h im again the morning of the 25th that they killed some

people.   According to Hines, Jonathan was paranoid and nervous. Jonathan

appa rently left the carwash and Carruthers and James asked Hines what Jonathan

had told him. Hines said Jonathan told him nothing. Several days later James

offered Hines an AK-47 assa ult rifle for his protection. James said the gun had

blood o n it, which w as slang mean ing som eone h ad bee n shot w ith it.



      On cross-examination, Hines stated that when the three defendants returned

his car the next morning, James and Carruthers left. Hines stated that he saw

James and C arruthers about 2 ½ hours later, at which point James asked Hines why

his car was so muddy. Hines testified that James told him he would take him to get

his car washed as soon as he got h is check . Hines sta ted that his car was dirty

when he let Jonathan borrow it. Hines further testified on cro ss tha t Jona than to ld

him that “I had to kill them folks.” He stated that Ja mes aske d him what Jonathan

had told him and said that they needed to find out what Jonathan had done. Hines

also stated on cross that neither James nor Carruthers directed the man washing the

car to clean an ything in particular.



      Orlandus Buddy Sesley, an employee with the Tennessee Department of

Correction, testified about the op eration at the M ark Luttrell Recep tion Center in

Memphis, where he wa s statione d. The reception Center serves as a processing

center for prisoners before they are transported to or released from the various

penitentiaries across the state.        Sesley worked as a counselor assisting and

orientating prisoners back into society before their release. Sesley counseled the

appellan ts and Charles Ray Smith .        Carruthers was released from custody on

November 15, 1993, Smith on December 15, 1993, and Montgomery on January 11,

1994. Sesley testified that both Sm ith and C arruthers were a ssigned to work release

at a graveyard before their release from custody. Sesley further testified that

Carruthers was rem oved from the ceme tery deta il in Octobe r and give n light duty

work inside because of a medical problem with his hand or wrist. Sesley authorized

furloughs for inmates which allowe d a prison er to leave custody for three d ays to



                                            30
make arrangements for release. Carruthers was granted three furloughs, the last

occurring October 1, 1993. Sesley testified that Montgo mery arrived at the Mark

Luttrell Reception Center on November 4, 1993.



      On March 3, 1994, Detective Jack Ruby of the Memphis Police Department

accompanied Jonathan Montgomery to the Rose Hill Cemetery on Elvis Presley

Boulevard. Jonathan directed Detective Ruby to the grave site of Dorothy Daniels,

who wa s buried on F ebruary 25, 199 4. This gra ve site was located six plots away

from James Montgome ry’s cousin ’s grave site.         Ruby obtained a court order

permitting disinterment of the casket from this grave. Along with the police officers,

two anthropologists and two medical examiners assisted in the removal of the

bodies. The ca sket containing the body of Daniels was located in a plywood box

inside the grave. Below this box, underneath several inches of dirt, they found

another single piece of plywood. The bodies of the three victims were discovered

undern eath this piece of plywood lying in a pit that had been dug further down in the

dirt. The two male victims were on top of the fe male victim and all three victim s were

bound.



      Patrick Williams, an employee of the Rose Hill Cemetery, testified that it would

have taken two people to remove the empty plywood box that was found in Daniels’

grave. This box was placed in the grave the day before the casket was lowered,

which would have bee n during wo rking hours on February 24, 199 4. Acco rding to

Dr. Hugh Edward Berryman, one of the forensic anthropologists who assisted with

the crime scene, the casket of Daniels had not been disturbed after she was buried

on the 25th.



      Dr. O.C. S mith pe rformed the autop sies in this case. He als o ass isted in

removing the bodies from the grave site. Dr. Smith testified that the fema le victim

was in the bottom of the grave and the two male victims were found lying on top of

her. The hands of all three victims were tied behind their backs and, in addition, the

feet of Frederick Tu cker were bound. Delois Anderson also had a red sock around




                                          31
her neck and F reder ick Tu cker’s neck showed signs of bruising caused by a ligature.

Dr. Sm ith did not find any jew elry on M arcellos A nderso n.



       Delo is Anderson died as a result of asphyxia caused by a combination of

factors: 1) difficulty in breathing due to the position of the body, i.e., her head was

bent forward and he r chin wa s presse d again st her che st, 2) dirt in the mouth and

nose blocking the airflow , and 3 ) traum a from the we ight on her bo dy. Th is victim

also suffere d traum a befo re she was p laced in the g rave. D r. Sm ith opin ed tha t this

victim was strang led two to six hou rs before dea th. Also, the victim suffere d a more

recent wound to the back of her head which could have been caused by a blow from

a shovel. She also showed bruising on the elbows, the back of the left shoulder, and

the forehead, possibly caused when she hit her head o n the bo ttom of the grave.



       Frederick Tucker received a near gunshot wound to his chest which was not

instan taneo usly fatal. He also suffered blunt trauma to his abdomen and head,

which includ ed bro ken rib s, a frac tured s kull and a rupture d liver. Dr. Smith opined

that Tucker was shot and then placed in the grave where the force of compression

from being buried produced the other injuries and ultimately cause d his death. Dr.

Smith further opined that Tucker was alive when he was placed in the grave. Tucker

also sho wed sig ns of stran gulation.



       Marcellos Ander son rec eived thre e guns hot wo unds: a contact wound to his

forehead, which was not that severe, and two gunshot wounds to the neck, one a

near shot severing his spinal cord and paralyzing him from the chest down. None

of the gun shot wo unds, h owev er, were instantaneously fatal.            Anderson also

suffered blunt traum a to his ab dome n from b eing bu ried in the g rave.



       Dr. Smith opined that each victim was buried alive.



       Appe llant Montgom ery presente d no proof, ho wever, app ellant Carruthers

called several witnesses to testify on his behalf. Albert James Herm an, Jr., a health

administrator at Mark Luttrell Reception Center, testified that on October 6, 1993, the



                                            32
appellant was gra nted a job chang e beca use of an injury to his le ft hand. Freddy L.

McCullough, a private investigator assigned to this case, interviewed Jimmy Maze

prior to trial. According to McCullough, Maze knew Carruthers was talking about a

master plan in his letters, but Maze did not know specifically what Carruthers was

talking about until Carru thers was re leased from jail (apparently beca use the letters

Carruthers w rote to Maze did not go into de tails or mention na mes).



       Alfredo Shaw gave a state men t to the p olice in March 1994. Shaw stated that

he saw a television news report about this case and called crime stoppers to provide

information. Some time be fore the m urders, Shaw testified that he was in a three-

way telephone conversation with Carruthers and either Terry or Jerry Durham.

Carruthers told Shaw he had a “sweet plan” and that they would each earn $100,000

and a kilogram of cocaine. Shaw told Carruthers, however, that he did not want to

get involved. Shaw was in the same jail with the appellants after they were arrested

for these crimes. Shaw testified that Carruthers told him how the crimes w ere

committed. Carruthers said he and some other people (he apparently did not

mention the other appellants by name) went to Delois Anderson’s house looking for

Marcellos and h is mone y. Marc ellos w as no t there s o Car ruther s told D elois to call

Marcellos and tell him to come ho me, “it’s some thing importan t.” When Marcellos

arrived, the ap pellan ts force d the v ictims (appa rently Tucker arrived with Marcellos)

into the Jeep at gunpoint and drove them to Mississippi where they shot Marcellos

and Tucker and burned the Jeep. The appellants then drove all three victims back

to Mem phis in a sto len vehic le. Accord ing to Sh aw, Ca rruthers s tated they drove to

the cem etery a nd pu t Marc ellos a nd Tu cker in the gra ve. De lois started screaming

so one of the appellants told her to shut up or she would die like her son, and then

pushed her in the grave . Shaw testified ab out this information b efore the gran d jury

in this case.



       Carruthers told Sha w that he was no t going to hire an attorney because then

the state might have learned that they planned the murders in order to steal

Marcellos’ mone y. Carruthers also said th e bod ies wo uld ha ve ne ver be en fou nd if

“the boy wouldn’t have went and told them folks.” Carruthers informed Shaw that



                                            33
Johnson was also supposed to be “hit.” Carruthers also stated that two other

individuals, Terry and Jerry Durham, were “the main people behind having these

individ uals killed.” Apparently the Durhams wanted revenge because they had

previo usly been ro bbed b y Marc ellos and Johns on. Shaw testified that he feared for

his safety for having come forward with this information because the Durhams had

control over people who were in jail along with Shaw. Shaw testified at trial that he

attempted to recant his gran d jury testimony and statem ent to th e polic e bec ause his

and his family’s safety was threaten ed by Ca rruthers. Appa rently, Carruthers made

arrange ments through one of his investigators to ha ve a new s reporter intervie w

Shaw about his recantation. The Durha ms tes tified on be half of Ca rruthers a nd both

individuals stated that they did not know Shaw nor had they heard of him.



       Aldolpho Antonio Jame s testified that he was w ith Car ruther s at a frie nd’s

house betwe en 1:00 a.m. an d 2:00 a .m. the day before James first saw a news

report about this case. On cross-examination, however, James admitted that he did

not know th e date of this enc ounter.



       Terrance Roderick Carruthe rs, the a ppella nt’s bro ther, tes tified tha t Terre ll

Adair was sh ot in a drive -by sho oting in D ecem ber 199 3. He further testified that he

went to the hospital later that day with Carruthers, Marcellos Anderson, and And re

Johnson to see Adair. According to his testimony, Jonathan Montgomery was not

present at the sce ne nor a t the hosp ital. Carruth ers also c alled An tonio Ba teman to

the witness stand who testified that he did not see Jonathan Montgomery at the

hospital a fter Adair w as sho t.



       An administrative assistant with the Shelby County Jail testified that Shaw was

not in the law library of the jail at the same time as Carruthers in February or March

1994. The co nversa tion Carru thers ha d with Shaw allegedly took p lace in the jail

library. Carruthers also called several employees of the Shelby County Jail who

testified about the various classifications of prisoners and how certain prisoners,

such as those in protective custody , are segregated at all times from other

classifications of prisoners. Some of these employees admitted, however, that this



                                            34
system is not foolproof and that there could be tim es when inmates with different

classifications could come into contact with one another. Carruthers and Shaw had

different classifications.




Sentencing Phase

       During the Sentencing phase of the trial, the state introduced evidence of the

appellants’ prior convictions. Carruthers had a previous conviction for aggravated

assa ult, wh ile Mo ntgom ery ha d two previo us co nvictio ns for ro bbery with a d eadly

weapon and one for assault with intent to commit robbery with a deadly weapon.

The state also called the medical examiner back to the s tand to testify a bout th e pain

suffered by the victims.         Dr. Smith testified that none of the victims died

instantan eously. Each victim s uffered as a re sult of th eir sep arate in juries, a s well

as from the sensation of being buried alive.



       Nakeita Montgom ery Shaw testified on behalf of M ontgom ery during the

sentencing phase. Shaw and Montgomery were close growing up together. Shaw

stated that she loved her cousin very much and asked the jury to spare his life.

Mattie Calhoun, Montgomery’s aunt, testified that Montgomery was an average

student in school. She also stated that Montgomery did not have a meaningful

relation ship with his father. She also begged the jury to spare his life. Mon tgomery

testified on his own behalf. Mon tgomery a nd his three bro thers and two sisters were

raised by his mother in North Memphis. Montgom ery stated that he was five yea rs

old when he las t saw h is father, w ho wa s still living in M ississip pi at the time o f trial.

He testified that he pled guilty in his prior cases because he wa s guilty. He testified,

howeve r, that he was innocent in this case. He stated that he spent a little over nine

years in the penitentiary for his previous convictions and had secured a job when he

was r eleas ed. M ontgo mery ’s son w as ten years old at th e time of trial.



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

Fiddler believed Carruthers was honest and straightforward and a person of quality

and worth. Fiddler stated that Carruthers was upset about the deaths of the victims



                                               35
in this case. Fiddler asked the jury to give Carruthers a chance to live. Tonya

Yvette Miller, Carruthers’ sister, testified that their mother raised four children on her

own.   Miller st ated th at they grew up in o ne of th e wor st hou sing p rojects in

Memphis. Carruth ers, the old est son, h ad a lot of re spons ibility as the “man of the

house hold.” She lov es her b rother, bu t admitted that he ha d a hot temper. Miller

stated, however, that he never planned to do anything wrong . She told the jury that

her mother raised her children to tell the truth. Miller asked the jury to spare

Carruthers’ life because he is innocent of these crimes. Carruthers took the stand

on his ow n beh alf. He to ld the ju ry he was innocent of the crimes and did not

deserve to die.



                                       ANA LYSIS

Forfeiture of Right to Counsel

       In his first issue, Carruthers claims he was denied his right to due process

when he wa s forced to represe nt himse lf during the trial of this capital case. The

state argues in response that Carruthers forfeited his right to counsel. It is not

disputed that Carru thers is ind igent.



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

Cons t. amend. VI; Tenn . Const. a rt. I, § 9; Gideon v. Wainwright, 372 U.S. 335, 83

S.Ct. 792, 9 L.E d.2d 79 9 (1963 ); State v. Northington, 667 S.W.2d 57 (Tenn. 1984).

Howe ver, this right is not absolute, in that a defendant does not hav e the right to

appointment of couns el of choice nor the righ t to a “me aningfu l relationsh ip” with

appointed couns el. See Morris v. Slappy, 461 U .S. 1, 13-1 4, 103 S .Ct. 1610, 1617,

75 L.Ed .2d 610 (1983); United States v. Gallop, 838 F.2d 105, 107 (4th Cir.), cert.

denied, 487 U.S. 12 11, 108 S.C t. 2858, 101 L.E d.2d 895 (19 88).              Moreo ver,

appointed counsel is not required to blindly follow a defendant’s instruction s, see

United States v. Padilla , 819 F.2 d 952, 9 56 (10th Cir. 1987), and a defendant does

not have the right to manipulate his right to counsel in order to delay or disrup t a trial,

see United S tates v. W hite, 529 F.2 d 1390 , 1393 (8 th Cir. 197 6). “The rig ht to

assistance of cou nsel, cheris hed a nd fun dam ental th ough it may be, may not be put

to service as a means of delaying or trifling with the court.” United States v. Fowler,


                                            36
605 F.2d 18 1, 183 (5 th Cir. 197 9), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63

L.Ed.2d 78 5 (1980).



       Similarly, a defendant may only request a substitution of appointed counsel

for good c ause s hown . See Gallop, 838 F.2d at 108. Good cause may include a

conflict of interest, a comp lete breakdow n of comm unication, or an irreconcilable

conflict with cou nsel, see United States v. Goldberg , 67 F.3d 109 2 (3rd Cir. 1995 ),

but does not include defendant’s statements that counsel is unenthused about the

case or is inadequately addressing the issue s, see, e.g., United States v. Jennings,

855 F.Supp. 1427, 1441 (M.D.Pa. 1994).               Moreover, good cause “cannot be

determined solely acco rding to the subjective standard of what the defendant

perceive s.” Thomas v. Wainwright, 767 F.2d 738 (11 th Cir. 198 5), cert. denied, 475

U.S. 1031, 106 S.Ct. 1241, 89 L.Ed.2d 345 (1986). The court may deny a request

for substitution of couns el if the defen dant’s req uest “pro ceeds from a transparent

plot to bring about de lay.” Gallop, 838 F.2d at 108 (citing Morris v. Slappy, 461 U.S.

at 13, 103 S.Ct. at 1617); see also Unite d State s v. Ke lm, 827 F.2 d 1319 , 1322 (9 th

Cir. 1987).



       While the de fenda nt is guaranteed the right to appointed counsel in criminal

cases, this right may be waived. In order for a court to accept defendant’s waiver

of appointed counsel and allow him or her to proceed pro se, the court must find that

the waiver is v oluntary, k nowing , and intellige nt. Faretta v. Califo rnia, 422 U.S. 806,

95 S.Ct. 2525, 45 L.Ed.2d 56 2 (1975); State v. Sm all, 988 S.W.2d 671 (Tenn. 199 9).

This should in clude an explana tion to the d efenda nt abou t the inhere nt risks of

proceeding pro se and a determination that the defendant is aware of the nature of

the charges against him, as well as the possible penalties . See Hendricks v. Zenon,

993 F.2d 664, 670 (9th Cir. 1993 ); Sma ll, 988 S.W.2d at 674. The appellant in this

case did not vo luntarily wa ive his right to couns el. Eve n after M asse y and Sayle

were allowe d to with draw , Carru thers c ontinu ed to re ques t appo intme nt of co unse l.

Although we find that C arruthers did not w aive his righ t to couns el, we do agree w ith

the trial ju dge’s conc lusion that C arruth ers forfe ited his right to c ouns el.




                                              37
       Forfeiture of a right, as it has been defined by the federal courts, means “the

loss of a right regardless of the defendant’s knowledge thereof and irrespective of

whether the defen dant inten ded to relinquish the right.” United States v. Goldberg ,

67 F.3d 1092 (3rd Cir. 1995). It is well-recogn ized that criminal defendants may

forfeit certain fundamental constitutional rights. See, e.g., Levine v. United States,

362 U.S. 610, 8 0 S.Ct. 1 038, 4 L .Ed.2d 9 89 (196 0) (right to pu blic trial); Illinois v.

Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (right to be present at

trial); United States v. Boscaro , 742 F.2d 1335, 1365 (11th Cir. 1984) (right to raise

doub le jeopard y defen se); Broo khart v . Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d

314 (1966) (right to confrontation). And while it appears the appellate courts of

Tennessee have not yet addressed the specific issue currently before us, several of

the federal courts h ave rec ognize d that a de fendan t may a lso forfeit his

constitutional right to cou nsel. See United States v. Goldberg , 67 F.3d 1092 (3rd

Cir. 1995); United States v. McLeod, 53 F.3d 322 (11th Cir. 1 995); United States v.

Travers, 996 F.Supp. 6 (S.D.Fla. 1998). See also United States v. Meeks, 987 F.2d

575, 579 (9th Cir. 1993 ), cert. denied, 510 U.S. 919, 114 S.Ct. 314, 126 L.Ed.2d 261

(1993) (citing Unite d State s v. Ke lm, 827 F.2d 1319 (9th Cir. 1987) and United

States v. Leavitt, 608 F.2d 1 290 (9th Cir. 197 9) (“In limited circums tances, a cou rt

may force a de fendan t to proceed pro se if his conduct is “‘dilatory and hinders the

efficient admin istration of jus tice.’”)); United States v. Fazzini, 871 F.2d 635, 642 (7th

Cir. 1989), cert. denied, 493 U.S . 982, 110 S.Ct. 517, 107 L.Ed.2d 518 (1989)

(quoting United States v. Moore , 706 F.2d 53 8, 540 (5th C ir.), cert. denied, 464 U.S.

859, 104 S.Ct. 183, 78 L.Ed.2d 163 (1983) (“a persistent, unreasonable demand for

dismissal of counsel and appointment of new counsel . . . is the functional equivalent

of a knowing and voluntary waiver of cou nsel”)).



       Forfeiting the right to counsel is different than voluntarily waiving the right. It

can also be distinguished from an implied waiver of the right after having been

warned that se lf-repre senta tion m ay follo w if the prohibitory condu ct continu es. See

Goldberg , 67 F.3d at 1100. In the case of an implied waiver, the defendant has

been cautioned against future conduct and has been informed of the consequences

of his actions. In the case of forfeiture, there may have been no warnings given by


                                            38
the court. In both cases, however, the defendant has not voluntarily waived counsel

nor indica ted that he wishes to proce ed pro s e.



      In the case at hand, after denying Massey’s motion to withdraw b ut prior to

this Court’s order on extraordinary appeal, the trial court, referring to some of the

above-cited federa l law, sta ted tha t Carru thers h ad tw o optio ns rem aining: either

proceed to trial with the assistance of Massey and Sayle or proceed on his own.

This statement would sugge st that an im plied wa iver resulte d. How ever, as to

Massey, this Court allowed Massey to withdraw shortly after the trial court warned

the appe llant, an d there fore, the result is more akin to a forfeiture since counsel was

removed without any additional egregious conduct by Carruthers directed at Massey.

Regarding Sayle, however, Carruthers did engage in additional egregious conduct

resulting in Sayle’s removal. Because the forfeiture of a constitutional right is the

most severe sanction, the defendant’s conduct leading up to the forfeiture must be

extrem ely dilatory. Id. at 1101. The Goldberg court suggests that an implied waiver

(waiver by conduct) could be based on conduct less seve re. Id. We believe,

however, that in either case, the forfe iture of counsel or the implied waive r of

counsel, since the defendant is not voluntarily giving up one of his basic,

fundamental cons titutiona l rights, th e defe ndan t’s con duct m ust be so ext reme ly

egregious and dilatory that the trial court has no other option but to force the

defendant to proceed pro se. The sanction imposed should be appropriate under

the circumstances and commensurate with the nature and extent of the de fenda nt’s

condu ct. Again, the asse rtion of th e defe ndan t’s rights must be weighed against the

effective and efficie nt adm inistration of ju stice. See Leavitt, 608 F.2d at 1293. The

courts canno t permit de fendan ts to abus e their rights to the detriment of the system.



      We have not been able to find any capital cases involving the forfeiture of the

right to couns el. Cf. Wate rhouse v. State, 596 So.2d 1008 (Fla. 1992) (defendant

considered to have forfeited right to counsel during closing argument of resentencing

hearing in capital ca se). And w hile we are cognizant of the heightened due process

concerns in death penalty cases, we also recognize that courts cannot be

handcuffed by the whims of the defendants. Although we are not bound by the


                                           39
decisions of the lower federal courts, after carefully reviewing the record in this case,

we are persuaded by the reasoning of these decisions concerning forfeiture of the

right to counsel. “We believe th at there m ust be so me lim it to the defe ndant’s a bility

to manipulate the judicial system even if he is unknow ing and uninte lligent.” Gallop,

838 F.2d at 110.



       Carruthers’ conduct regarding his relationship with Massey has been

thorou ghly outlined above. After Massey was removed from the case completely,

the court allowed Sayle to remain as “elbow” counsel. The record indicates that the

appellant wished to recan t the accu sations h e mad e towa rd Mas sey. The court,

howeve r, said enough was enough. As noted above, Sayle was also finally allowed

to withdraw completely from the case . Even after Carruthers lost the assistance of

one of his two remaining attorneys, he still continued with his conduct toward Sayle.

The court had warned Carruthers that he could either cooperate with Massey and

Sayle or lose his right to counsel. Apparently, neither the removal of Massey nor the

trial court’s w arning p ersuad ed Ca rruthers. W hen Sa yle finally m oved th e court to

be allowed to quit as elbow counsel, he made the following statements:



               He has expressed the feeling that I am not working for him, and
       that I have not done anything for him, I’m not going to do anything for
       him. He suspe cts -- he ’s ma de it cle ar that h e sus pects that I’m
       working with the sta te in som e capa city. And frankly none of the advice
       I give h im is followed, and I don’t think there is any intention of following
       it. And frankly it’s just -- and the abuse ge ts extremely person al.
       Personal vilification over the last couple of meetings, and I see no ba sis
       for being able to continue.


       The threats C arruthers made in his letters and c alls to M asse y clear ly

threatened physical violence . Com ments about what type of car Massey’s daughter

drove and the ability to discover the color of Massey’s toothbrush could be taken no

other way. Carru thers also accused Massey of abusing drugs. The comments and

accusations Carruthers made toward Craig Morton and Coleman Garrett, were much

more personal. Though the threats of physical violence are not as apparent, we do

not believe any attorney in Tennessee could work under the abhorrent conditions

created by Carruthers. These letters were written in June and July of 1995. Garrett

and Morton were relieved as counsel in late July 1995. These letters were in a



                                            40
sealed exhibit in the record. They shall remain sealed, and out of respect to the

attorneys involved, we will not reveal the nature of the comments which these

attorneys could rightfully consider outrageous.



       We have previously quoted extensively from the numerous pretrial hearings.

During the hearing on Garrett and Morton’s motion to withdraw, the trial judge

referred to the outrageous accusations Carruthers made against his attorneys.

Howe ver, the judge did not recite anything specific from these letters. Nor will we,

except to say that n o attorne y shou ld have to tolerate the ho stile an d unc omfo rtable

atmosph ere created by Carr uthers. The letters to Garrett and Morton indicate that

Carruthers’ conduct was not limited to his relationship w ith Massey . There is simp ly

no evidenc e in the rec ord to su pport any of Carru thers’ accusa tions. This Cou rt

found on extraordinary appeal that Massey was entitled to withdraw. This was at

least the fifth attorney appoin ted to rep resent C arruthers who w as allow ed to

withdraw because o f the ho stile en vironm ent cre ated b y Car ruther s.            Say le

subs eque ntly was allowed to withdraw for similar reasons. We do not believe this

history of abuse would have ceased if yet another set of attorneys were appointed.




       In fact, the history predates this case. The trial judge noted that in a previous

case, Carruthers had gone through four sets of attorneys. In this respect, we take

notice of the fact that the de fenda nt wa s con victed of agg ravate d ass ault in 1 990 in

a case in whic h he was appointed four successive attorneys due to his continuing

dis-satisfaction with cou nsel. The last attorne y was a ppointe d less tha n a mo nth

before trial and was the object of the d efend ant’s u nsuc cess ful pos t-conv iction cla im

of ineffec tive as sistan ce of c ouns el. See Tony V. Carruthers v. State, 02C01-9505-

CR-001 30, Shelby C ounty (Ten n. Crim. App . Apr. 17, 1996 ).



       As noted above, a criminal defendant does not have the right to a meaningful

relation ship with his counsel, nor the right to choose which counsel shall be

appointed. See Morris v. Slappy, 461 U.S . 1, 13-14 , 103 S.C t. 1610, 1617, 75

L.Ed.2d 610 (19 83); United States v. Gallop, 838 F.2 d 105, 1 07 (4th C ir.), cert.


                                             41
denied, 487 U.S. 12 11, 108 S.C t. 2858, 101 L.E d.2d 895 (19 88). Furthermore,

counsel is not requ ired to blind ly follow the defend ant’s instru ctions. See United

States v. Pad illa, 819 F.2 d 952, 9 56 (10th Cir. 1987 ). Counsel, whether appointed

or not, are trained and licensed professionals who are req uired to abide by cer tain

standards in the performance of their duties. Similarly, the defendant does have the

absolu te right to make certain choices during his trial. Counsel, however, cannot

simp ly acquiesce to every single demand or request of the defendant which does not

affect the exercise of certain absolute rights. The Post-Conviction Procedure Act

was created to add ress any of th e defe ndan t’s con cerns abou t coun sel’s

represe ntation.



       Given the history of this ca se, wh ich ha s bee n thoro ughly summarized above,

it is clear to us that C arruth ers w ould not have been satisfied with any attorney and

was simply trying to manipulate the system. Even after the court appointed counsel

for the mo tion for new trial and ap peal, Ca rruthers wrote several letters to the trial

judge insisting that his new attorneys were incompetent. We do not believe the trial

court interfer ed with the ex ercise of Car ruther s’ cons titutional rights.            After

cons iderab le time and consideration, the trial court properly weighed the effective

and efficient adm inistration of ju stice aga inst Carru thers’ right to couns el. As the trial

court observed, Carruthers was the author of his own predicament. Again, there has

to be a point when the courts are permitted to stop the abuse and delay tactics

employed by a criminal defendant under the guise of his or her constitutional rights.



       We do not take lig htly the result that a defendant has to proceed pro se in any

trial, especially one involving a capital offense. Our judicial system could not survive

if those accu sed o f crime s wer e literally run over “roughshod.”            But while the

individual must be protected by the system, the judicial system must also be

protected from abuses by an individual. A person charged with criminal acts cannot

be allowe d to su bvert th e judic ial syste m. Ap pellan t Carru thers w as, in effect, given

one last cha nce fo r assis tance of counsel after Massey was allowed to withdraw;

Sayle remained as “elbow” counsel for a period of time until he, too, was allowed to

withdraw due to C arruthers ’ conduc t. The removal of Sayle came after Carruthers



                                              42
was clearly warned by the trial court that his conduct could result in him being

required to proceed pro se at trial. A reversal of a conviction and a rem and for a

new trial is done with the appellate court having confidence that the new trial will

correct the previous error. We concur with the trial court’s judgment in this case that

no matter how man y time s Car ruther s mig ht be a llowed to hav e cou nsel, h e wou ld

continue his egregious conduct to force counsel off the case until ultimately, again,

he would have to proceed pro se. Carruthers is not entitled to relief on this issue.



        The appellant also claims that because he was forced to represent himself the trial judge did not

treat him fairly or in the same manner as an attorney. Carruthers argues this was prejudicial error

requiring a new trial. Having reviewed each of the numerous instances cited by appellant on appeal in

this respect, we do not believe the trial court denied the appellant a fair and impartial trial. When this

Court allowed Massey off the case, Carruthers expressed his concerns to the trial judge about

proceeding pro se. The judge stated that this was unfortunate but reminded Carruthers that he placed

himself in this position. The Court assigned Massey and Sayle as elbow counsel and informed the

appellant that they would provide assistance and advice during trial. Shortly thereafter, however, this

Court ruled that Massey was to be completely removed from any involvement in this case. Carruthers

again asked for appointment of new counsel, but the judge denied this and stated that Sayle would

remain to assist. Even at this point, when the appellant had expressed concerns about proceeding to

trial without counsel, he still persisted with his antics which eventually led to the removal of Sayle from

service as elbow counsel.



        While a pro se litigant is not held to the same strict standards as a practicing attorney, see, e.g.,

Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975), because he is proceeding without the assistance of

counsel does not mean the court must completely ignore the procedural and substantive rules of law.

“This Court does bend over backwards with pro se litigants to make sure they are treated fairly.

However, we cannot bend the rules until they break. Otherwise, our system lacks consistency and

honesty.” State v. Allen, No. 01C01-9510-CC-00338 (Tenn. Crim. App., Oct. 29, 1996), perm. to app.

denied, (Tenn., May 12, 1997). The appellant must realize that although he was conducting his own

defense, given the nature of the charges against him he remained in protective custody and was bound

by certain limitations not endured by an attorney. These limitations would necessarily be more evident

when there were heightened security concerns in a case such as this. Accordingly, because of these


                                                    43
limitations inherent in his status as a pro se litigant, Carruthers certainly could not exercise all of the

privileges of an attorney not confined in a jail cell.



        Carruthers enjoyed the services of a jury selection expert and an investigator who could assist

in any matters Carruthers could not accomplish from the confines of his cell. The appointment of an

investigator, however, was not a substitution for counsel. Carruthers remained a pro se litigant.

Immediately prior to the start of trial in April, after a continuance from January, Carruthers requested

additional time in order to retain counsel. The trial court denied any further continuances. Contrary to

the appellant’s claim that he was denied sufficient time, we agree with the trial judge that this was

another in a long line of delay tactics by Carruthers. Furthermore, because Carruthers had the files from

his previous attorneys, and because the trial was continued three months after he began to represent

himself, there is nothing in the record to suggest that Carruthers did not have ample opportunity to

prepare his case.


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

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



        Again, there are certain perils a defendant may encounter when he represents himself in a

criminal trial. Obviously, the better practice would be to proceed with counsel. But as in this case,

where the defendant consistently abused his right to counsel and had to proceed pro se, the pro se

defendant will not necessarily perform as well as an experienced attorney and may invariably make

certain mistakes. However, this alone is not cause for a new trial. As long as the judge ensures that

a fair and impartial trial is conducted, the mistakes and ill-advised strategy decisions are merely

byproducts of self-representation. We have carefully reviewed each of appellant’s assignments of error

during trial. The trial judge in this case was extremely understanding and forgiving. This is not to say

that the trial judge allowed Carruthers to conduct his defense without regard for maintaining orderly

proceedings. While the judge was more lenient in the application of the rules of law, he did not, nor was

he required to, allow Carruthers free reign in the courtroom. Having completely reviewed the record in

light of all of Carruthers’ claims in this respect, we find that the appellant was afforded a fair and impartial

trial. A new trial is not required.

                                                      44
       Carruthers claims that he was denied the effective assistance of counsel. While a criminal

defendant has the right to the effective assistance of counsel, see Baxter v. Rose, 523 S.W.2d 930

(Tenn. 1975), when the defendant waives or forfeits his right to counsel, he also waives or forfeits his

right to the effective assistance of counsel, see State v. Goodwin, 909 S.W.2d 35, 45 (Tenn. Crim. App.

1995). This claim is without merit.

Conso lidation of Ind ictments

       Appe llant Carru thers claim s the trial cou rt erred by not requ iring the sta te to

elect upon w hich indictm ents it intend ed to pro ceed u pon at trial. In March 1994,

both appe llants w ere orig inally indicted on three counts of first degree murder.

Subsequently, in Novem ber 1995, bo th appellants w ere indicted o n three c ounts of

espe cially aggravated kidna pping and o ne co unt of e spec ially aggravated robbery.

All of these offenses arose from the same criminal episode and involved the same

three victims . The tria l date in this matter wa s originally schedu led for Februa ry

1995, prior to the return of the second set of indictments. Howe ver, due mainly to

Carruthers’ cond uct reg arding coun sel, the trial wa s eve ntually contin ued several

times until the Spring of 1996.



       Carruthers contends that the murder indictments should have been dismissed.

Because the state was not forced to elect between the two indictments, according

to the appellant’s argument, he “could not reasonably have known whether he was

defending murder charges or charges of kidnapping and robbery .” The appellant

further claims that if the trial court had followed “normal procedure,” he would have

never been tried on the murder charges. The state disagrees and asserts that the

appellant was properly tried on all charges.



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

offenses provides:



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


                                                  45
        not be subject to sep arate tr ials for m ultiple o ffense s falling within th is
        subsection unless they are severed pursuant to Rule 14.


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


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

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


        Carruthers’ argume nt ignores the basic premise behind the Rule.                    The

purpose of Rule 8 is to promote efficient administration of justice and to protect the

rights of the acc used. The ru le clea rly perm its a sub sequ ently returned indictment

to be joined with a previous indictment where the alleged offenses relate to the same

criminal episode . See King v. S tate, 717 S .W.2 d 306 (Tenn . Crim . App. 1 986). T his

practice, howeve r, does have certain limitations which, as the comments note,

safeguard an accused against prosecutorial abuse. For example, a prosecutor

cannot simply decide to “save” charges on other offenses arising out of the same

conduct until after a trial is had on the original charges. Obvio usly, th is wou ld resu lt

in multiple trials and prejudice the defendant. This concern, however, is not present

in the case at hand because the subsequent indictments were returned well before

the sta rt of trial.



        Although the re is no written trial court order cons olidatin g the in dictm ents in

this case, not only w as co nsolid ation m anda ted by the rule s, it was clearly

understood by the court and all parties involved in this case. As soon as the 1995

indictme nts were re turned, th e appe llants filed a motion to dismiss. After a hearing

on December 19, 1995, the trial court denied the motion, and the matter proceeded

on all charges. In fact, counsel admitted that they k new th ey wer e going to trial on

the murder charges; they moved to dismiss the new charges. Carruthers’ claim that

he did not know what charges the state was prosecuting is wholly without merit. Not



                                               46
only did the appe llant file a motio n to dis miss the subsequent charges, which was

denied, the sty le of the pleadings and orders filed in this case after the return of the

1995 indictments, includ ing letters Carruthe rs wrote to h is attorney , refer to both the

1994 and 1 995 in dictm ents. M oreov er, jury s electio n had alread y starte d in ea rly

January 1996, when the state moved for a continuance. There certainly was no

confusion as to charges being tried when a jury was again selected and trial finally

began three mon ths later in April 1996. A ll of the indictments w ere read to the jury

at the b eginn ing of th e trial.



       As this Court observed in King,



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


717 S.W.2d at 308 . To follo w the appe llant’s su gges tion in this cas e wou ld resu lt in

the non-prosecution of three murder charges. Surely this type of windfall was not

contemplated by the drafters of the Rules. The appellant has simply failed to show

how he wa s unpre pared to defend on kidnapping and robbery charges that stemmed

from the same criminal episode in which three individuals were killed.



Grand Jury Proceedings

       Carruthers also claims that the murder indictments should have been

dismissed becau se of “the a dmitted ly questio nable tes timony presen ted to the grand

jury in suppo rt” of them . Accord ing to Carruthers, the bad faith of the prosecutor by

refusing to call Alfredo Shaw as a w itness at trial, de spite h aving relied u pon h is

testimony to sec ure the murd er indic tmen ts, nec essa rily implies that the grand jury

process was corrupted. The state denies that the murder indictments are invalid.

The appellant also cla ims he should have been entitled to the transcript of these

grand jury proceedings.




                                            47
       As noted above, Alfredo Shaw testified before the grand jury about the

circumstances of the murders related to him by Carruthers in jail.                  The state,

howeve r, indicated that it did not intend to call Shaw as a witness during trial

because they had some concerns about his credibility due to criminal conduct after

the grand jury testim ony. D espite this, Ca rruthe rs him self called Shaw as a witness

and Shaw conveyed to the jury the same information he reportedly told the grand

jury. Shaw testified that he previously attem pted to recant h is grand jury testimony,

but inform ed the jury this was b ecau se his a nd his family ’s safety was threatened by

Carruthers. Accordingly, the “admittedly questionable testimony” the appellant

complains about was explained away.



       Nevertheless, the appellant’s claim must fail. It has long been the rule of law

that the sufficiency and legality of the evidence presented to a grand jury is not

subject to judicial rev iew. State v. Gonzales, 638 S.W .2d 841, 845 (Tenn. C rim.

App. 1982); State v. Northc utt, 568 S.W .2d 636 , 639 (Te nn. Crim . App. 19 78). “[I]f

an indictment is valid on its face, it is sufficient to require a trial to de termin e the g uilt

of the accused regardless of the sufficiency and/or antecedence of the evidence

considered by the grand jury.” State v. Dixon, 880 S.W.2d 696, 700 (Tenn. Crim.

App. 1992). Accordingly, the appellant cannot rely on this claim to challenge the

validity of the murder indictm ents. See United States v. Calandra , 414 U.S. 338,

345, 94 S.Ct. 613 , 38 L.Ed.2d 5 61 (1974). As the cases indicate, the proper remedy

for the app ellant is throu gh a m otion to su ppress the evide nce. See e.g. State v.

Culbre ath and M cCallie , No. 02C01-9805-CR-00145 (Tenn. Crim. App., Mar. 9,

1999) (Rule 11 ap plication pending ) (citing United States v. Blue, 384 U.S. 251, 255,

86 S.Ct. 1416, L.Ed.2d 510 (1966)). Here, the evidence the appellant complains

about would never have been presented to the trial jury if Carruthers himself did not

call Shaw to the witness stand. This issue is without merit. Also without merit is the

appe llant’s claim that he should have been prov ided a transcript of the grand jury

proceeding in this instan ce. See Rules 1 6(a)(3) an d 6(k), Te nn.R.C rim.P. See also

Wes t v. State, 466 S.W .2d 524, 525 (Tenn. Crim . App. 1971 ).



Letters from Carruthers to Maze


                                               48
       Next, Carruthers claims that the trial court erroneously allowed into evidence

two letters the a ppellant w rote to Jim my M aze. In the se letters, C arruthers refers to

a mas ter plan for ma king m oney . The s tate alle ged th at this p lan involved the

murder of Marcellos Anderson and the theft of his drugs and money. The appellant

argues that the letters are too vague, have no evide ntiary v alue, a nd are highly

prejud icial.



       The adm issibility o f evide nce is within the sound discretion of the trial court,

and this Cou rt will not interfer e with that discretion absent a clear showing of abuse.

See State v. How ard, 926 S.W.2d 579, 585 (Tenn. Crim. App. 1996),overruled on

other grounds, State v. Williams, 977 S .W.2 d 101 (Tenn . 1998 ).            Evide nce is

relevant if it has "any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence." Rule 401, Tenn.R.Evid. However, relevant

evidence "may be excluded if its probative value is substantially outweighed by the

danger of unfair preju dice, c onfus ion of th e issue s, or m islead ing the jury." R ule

403. Of cou rse, sim ply beca use e viden ce is prejudicial does not mean the evidence

must be excluded as a matte r of law. See State v. Gen try, 881 S.W.2d 1, 6 (Tenn.

Crim. App. 199 3), perm. to app. denied, (Tenn. 1 994).             Th e Cou rt must still

determine the relevance of the evidence and weigh its probative value against any

undue prejudice.



       The appellant argues that the letters are irrelevant because they were written

too far in advance of the actual murde rs and d o not refe r to the victims or mention

how the money would be made. He also suggests that the letters are improper

evidence of othe r crimes or wrongdoings. After a jury-out hearing as to whether

these letters should be admitted, the trial court made the following findings:



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

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

                                            49
       “get with me when I get out.” And it makes reference to the fact that he
       is trying to get transferred to MLRC, Mark Luttrell Reception Center,
       which then ties in to the testimony that Charles Smith gave, which
       wou ld -- of having overheard some conversations along these line [sic]
       as we ll.

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

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


       The trial judge clearly explained how the se letters w ere relev ant to the issues

being tried, and having reviewed the transcript of the jury-out he aring, we are

satisfied that the jud ge did no t abuse his discre tion in adm itting these letters into

evidence. Their probative value substantially outweighed any prejudicial effect. This

issue is w ithout me rit.



Statement of Co-Conspirator

       Next, Carruthers claims that the testimony of Hines relating what Jonathan

Montgo mery told him was inadmissable hearsay. The state counters by arguing

these statemen ts were adm issible under the c o-conspirator exception to the hearsay

rule. See Tenn.R.E vid. 803(1.2)(E).



       Hearsay, which is “a statem ent, other than one made by the decla rant w hile

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserte d,” Rule 801(c), is not admissible at trial except as provided by the Rules of

Evidence or otherwise by law. Rule 802. A statement made by a coconspirator of

the defendant “during the course of and in furtherance of the conspiracy” is one of

the exceptions to the hearsay rule. Rule 803(1.2)(E). However, before this type of

hearsay may be admitted, certain conditions must be met: 1) there must be

evidence of a conspiracy involving the defendant and coconspirator; 2) the

statement must be made during the pendency of the conspiracy; and 3) the

statement mus t be m ade in the further ance o f the cons piracy. State v. Gaylor, 862

S.W.2d 5 46, 553 (Te nn. Crim. Ap p. 1992).


                                              50
      On the nig ht of the murd ers in th is case , Jona than M ontgo mery told Ch ris

Hines that they “got them folks out at the cem etery” an d aske d Hines to take him to

the ceme tery. Hine s refused but allow ed Mo ntgom ery to borrow his car. The next

morn ing, when the three defendants took Hines to get his car washed, Jonathan

Montgo mery again told Hines they killed some people. The appellant argues that

the conspiracy in this case ended with the murders, and that these statem ents were

not during the course of and in furtherance of the conspiracy. The state disagrees.

In its brief, the state argues the first statement by Montgomery was made during the

course of the conspiracy because he was seeking a vehicle in which to transport the

victims to the cemetery. The second statement, the state argues, was made during

the concealment of the conspiracy, and thus admissible under the same hearsay

exception.



      In State v. Walker, 910 S.W.2d 3 81, 386 (Te nn. 1995), a case wherein several

defend ants conspired to rob the victim, who was ultimately killed during the robbery,

our Supreme Court held that a statement by a coconspirator made three or four days

after the robbery and murde r was ina dmiss ible beca use the consp iracy end ed with

the commission of the robbery. The Court found that the statement merely related

the circumstances of the robbery and killing and were not made during a further

conspiracy to conce al the circu mstan ces of the crime. Id. It would follow then that

if there is evidence of a further conspiracy a fter the fact to conceal the crime, any

statement by a coconspirator made during the course of and in further ance of this

further conspiracy may be admis sible aga inst the de fendan t. Id.; see also State v.

Henry, No. 01C01-9505-CR-00161 (Tenn. Crim. App., Feb. 25, 1999) (Rule 11

pendin g).



      In Henry, we no ted tha t a con spirac y to co mm it a crim e did n ot histo rically

extend to steps ta ken to co nceal the crime u nless pro of establish ed that

concealment furthered the objec tives of the crime. Id. (citing Gaylor, 862 S.W.2d at

554 (where conspiracy to commit murder did not end until victim’s insurance

proceeds were collected )). We also noted that the Supreme Court in Walker did not

explore the relationship, if any, between the Rules of Evidence and T.C.A. § 39-12-


                                           51
103, the cons piracy sta tute, whic h provide s that the c onspira cy includ es efforts to

conceal the crime or to obstruct justice in relation to it. The Court suggested that the

coconspirator exception to the hearsay rule should be examined under the law as

it existed prior to the enactment of the conspiracy statute because of subsection (g)

of that statute, which p rovides th at “[n]othing in this provis ion is intend ed to m odify

the evidentiary rules allowing statem ents of co -consp irators in furth erance of a

consp iracy.”   However, there may be some relationship between the Rules of

Evidence and the criminal s tatute if the de fendan t is specifica lly charge d with

consp iracy, wh ich is not the case he re. See Henry.



       The question in this case then becomes whether the statements made by

Jonathan Montgomery were made either when the defendants were concealing the

murders to achieve the objectives of the crimes or duri ng a furth er cons piracy to

conceal the murd ers. To fall under this hearsay exception, the statements by the

coconspirator must advance in some way the objectives of the conspiracy and not

simp ly be “casual conversation” about the crime s. State v. Hutchinson, 898 S.W.2d

161, 17 0 (Tenn . 1994).



       We agree w ith the state that Montgomery’s first statement to Hines falls under

this hearsay exception. Harris’ Jeep was fo und b urned in Mississippi. The victims

were buried alive in a cem etery in M emph is. Trial tes timon y indica ted tha t it would

have taken approximately two people to remove the plywood vault that lined the

grave site under which the victims were buried. The jury could reasonably have

inferred that when Jo nathan M ontgom ery asked Hines to take him to the cemetery,

the victims had not yet been buried and Jonathan was needed to assist the other two

defendants. Moreove r, the jury could have reasonably inferred since Hines’ car was

muddy when returned that it was taken to the cemetery.                The testimony and

videotape reveal that the cemetery grounds did contain muddy areas.                  Since

Jonathan was n eede d to co mple te the ro bbery , kidna pping s and murd ers, his

statement to Hines that he killed some folks and needed a ride to the ceme tery

advanced the conspiracy and w as no t mere ly a na rrative s tatem ent to H ines. W hile

we find that the sta tement was admissible, we do not agree with the particular



                                            52
argument the sta te adv ance s in support thereof. Montgomery told Hines, “Man, we

got them folks out at the cemetery.” Since the victims were allegedly already at the

cemetery, we can not agre e with the state th at the car w as nee ded to transport the

victims there.



       Jonathan Mon tgom ery’s n ext sta teme nt alleg edly came after the bodies we re

buried. The state argues that this statement was made during the concealment of

the conspiracy.     Whether or not the concealment of the crimes furthered the

objectives of the original conspiracy, there was certainly evidence of a further

conspiracy to conceal the commission of the c rimes . Mon tgom ery co uld have been

connected to Hines’ car and the mud from Hines’ car could have been traced to the

cemetery where the v ictims were discov ered. T he qu estion , how ever, is whether the

second statement furthered in some way the objectives of the conspiracy or was

mere ly a narrative statem ent of pas t condu ct. Apparently, while Montgomery and

Hines were standing around waiting for the car wash, Montgomery told Hines they

killed some people. We do not believe Montgomery made this statement during or

in furthe rance of the c onsp iracy to conc eal ev idenc e of the crime s. It is mo re akin

to “casual conv ersation” about past events and should not have been admitted.

Because Jonathan M ontgom ery’s first statement w as adm issible, we find, how ever,

that the erroneous admission of the second statement was harmless. The content

of the sec ond sta temen t mirrored that of the first.



       Carruthers also claims that he shou ld have been allowed to question Detective

Ruby about the content of Jonathan Montgomery’s statements to the police. The

state argues that this hearsay testimony was properly excluded. In State v. Walker,

910 S.W.2 d 381, 3 86 (Ten n. 1995 ), the Sup reme C ourt held that a c onsp irator’s

“statement to the police can hardly be in furtherance of the conspiracy. It becomes

only a narrative statement of past conduct between the conspirators.” The Cou rt

noted, however, that a confession to the police may fall under another exception to

the hearsay rule, such as a statement against pena l interes t whe n the d eclara nt is

unava ilable. Id. at 385.




                                            53
       In this case, Jonathan Montgomery gave several varying statements to the

police. At first, he denied knowing anything about the crimes or being present at the

scene. These statements would not fall under this exception to the hearsay rule.

In subsequent statements, he stated that he, the two appellants, and Bobby Wilson,

a fourth person not identified by any of the witnesses at trial, were all at the scene

of the crime. In one statement, he said Bobby Wilson shot one of the victims but he

did not know who shot the other (only two of the three victims were shot). Yet, he

informed the police in another statement that Carruthers and/or Montgomery shot

the victims.   Since Jonathan Montgomery placed himself at the scene of the

murders, these late r statem ents do appear to fall under this exception to the hearsay

rule. Tenn .R.Ev id. 804 (b)(3). H owe ver, w e find th e erron eous exclus ion of th is

testimony to be har mless . See T.R.A.P . 36(b). The state ments clearly im plicate

Carruthers and would have done more harm to his case.



Evidence of O ther Perpetrators

       Both appellants argue the trial court limited their ability to establish that other

peop le involve d in the Mem phis d rug tra de ha d mo tives to kill the vic tims in this

case. Again, the adm issibility of evidence is within the sound discretion of the trial

court, and th is Cou rt will not interfere with that discretion absent a clear showing of

abuse. See State v. How ard, 926 S.W .2d 579, 585 (Tenn. Crim . App. 1996 ).

Evidence is relevan t if it has "any te ndenc y to make the existence of any fact that is

of cons eque nce to the de termin ation o f the ac tion m ore pro bable or less proba ble

than it would be withou t the ev idenc e." Ru le 401, Tenn.R.Evid. However, relevant

evidence "may be excluded if its probative value is substantially outweighed by the

danger of unfair pre judice, co nfusion o f the issues , or mis leadin g the ju ry." Ru le

403.



       As is commonly recognized, an accused is entitled to present evidence

implicating others in th e crime . See Green v. State, 285 S.W. 5 54 (192 6); Sawye rs

v. State, 83 Tenn. 69 4 (1885); State v. Spurlock, 874 S.W.2d 602, 612-13 (Tenn.

Crim. App. 19 93). Evid ence in s upport o f this third party defense, however, must

conform to the general rules governing the ad missibility of evide nce.          State v.


                                           54
McAlister, 751 S.W.2d 436, 439 (Tenn. Crim. App. 1987). The evidence must be the

type that would be admissible against the third party if he or she were on trial, and

the proof must be limited to facts inconsistent with the appellant’s guilt. State v.

Kilburn, 782 S.W .2d 199 , 204-05 (Tenn. C rim. App. 1989). Accordingly, hearsay

evidence implicating another individual would not be admissible.



      Having reviewed the record in light of the appellants’ claims, we find that the

trial court did not exclude any re levant ad missible evidenc e tending to implica te

others in the murders while exonerating the appellants. The jury was well aware that

Marcellos Anderson was hea vily involved in the dru g trade in Mem phis. The jury

heard evidence about Anderson’s drug dealings with Joh nson a nd Ada ir. The jury

heard that Anderson and Adair had previously been shot by others in drive-by

shootings. They heard that An dre Tu cker, th e broth er of on e of the victims in this

case, was subsequently killed after the appellants had been arrested on the present

charges. As the state notes, this evidence clearly suggests that the killings in the

drug world were still happening. The evidence the appellants refer to was either

hearsay (testimony that Anderson was in debt to Colombian drug dealers) or

cumulative and would have confused the issues and misled the jury (attacks on

others involved in the M emphis d rug trade). Aga in, the jury knew this case centered

around activities in the drug world and they could reasonably have used their

common knowle dge to co nclude that there w ere ma ny playe rs involve d.             The

evidence in this cas e, how ever, p ointed to the g uilt of the appe llants. T his issue is

without m erit.



Competency of Witness Nakeita Shaw

       Carruthers next claims that the trial court erred by not ordering a competency

evaluation of Nakeita Shaw. Prior to trial, counsel representing Carruthers at the

time requested an evaluation of Shaw and any records of a history of me ntal

treatme nt. The sta te indicate d that it had no reco rd of treatm ent. The trial court

denied the request. During the first jury selection, the state asked for a trial

continuance because Shaw had checked herself into a hospital for depression and

could not appear in court. The court granted the continuance. Carruthers claims,



                                            55
howeve r, that this fact should have been a compelling enough reason for the trial

court to exercise its inherent power to order a competency evaluation.



      In support of his claim, Carruthers relies upon State v. Garland, 617 S.W.2d

176 (Tenn. C rim. App . 1981). C arruthers ’ reliance is m isplaced . In Garland, this

Court specifically held “[t]here is no statutory or case law in Tennessee authorizing

a court to compel a prospective witness, not a party interested in the case and

present only by c ompu lsion of a su bpoen a, to subm it to a psych iatric exam ination.”

Id. at 185. The Court further held that the ruling in Forbes v. State, 559 S.W.2d 318

(Tenn. 1977), that the trial court h as the inhere nt pow er to co mpe l a psychiatric or

psychological examination of the victim, was restricted to complaining victims in sex

cases. The Court refused to broaden this holding, and neither of the parties in the

case before us have cited to any authority which has done so. The case cited by the

appellant involves the physical examination of a complainant in a sex cas e. State

v. Barone, 852 S.W.2d 216 (Tenn. 1993). It clearly appears that the court ordered

examination of witnesses has been limited to complainants in sex cases, and we do

not intend to broaden the holding in Forbes any further.



      Tenn.R.Evid. 601 provides that every person is presumed competent to be a

witness. The A dviso ry Co mm ission Com men ts to this rule sta te that “[v ]irtually a ll

witnesses may b e perm itted to testify: ch ildren, mentally incompetent persons,

convicted felons.” (Emphasis added). Accordingly, any prospective witness may

testify as long as they have personal knowledg e of the matter a bout which they are

testifying, Rule 602, and swear they will testify truthfully, Rule 603. The trial judge

has the discretion to determ ine whe ther a witn ess is co mpete nt to testify. State v.

Caughron, 855 S.W.2d 526, 538 (Tenn. 1993).             This determination will not be

disturbed on appea l absent a n abus e of discre tion. State v. How ard, 926 S.W.2d

579, 584 (Tenn . Crim. App. 19 96) (overruled o n other grounds). In Garland, this

Court h eld:



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


                                            56
       account of the matters which he has seen or heard in reference to the
       questions at issue.


617 S.W.2d at 184.



       Desp ite the above-cited authority, the state claims Carru thers h as wa ived th is

issue 1) by not renewing his request for a mental examination of Shaw before she

took the witness stand and 2) by failing to question her on cross-examination about

her hospitaliza tion. See T.R.A.P . 36(a). We agree. Since the trial court did not

have the authority to orde r a mental ev aluation of Sha w, and be cause C arruthers

failed to preserve the issue, this matter has been waived. Regardless, even if Shaw

had been found to be mentally incompetent, she could have testified as long as she

was able to understand the obligation of an oath and had personal knowledge of the

matter to which she testified . See Caugh ron, 855 S.W.2d at 538. The trial judge

appa rently determined that she was comp etent acc ording to the law to testify, and

there is nothing in the rec ord to s ugge st he a buse d his d iscretio n. This issue is

without m erit.



Photographic Evidence

       Both appellants claim that the videotape and photographic evidence of the

crime scene and de cease d victims were irrele vant, cum ulative, highly prejudicial and

erron eous ly admitted to inflame the passion of the jury. They claim this evid ence did

not assist the jury in identifying the perpetrators and was cumulative of the oral

testimony of the witnesses. Furthermore, the appellants argue the evidence shou ld

not have been shown to the jury because the appellants offered to stipulate to the

fact that the victims were found bound in the grave site.



       The admissibility of relevant photographs and videotapes of the crime scene

and victims is within the sound discretion of the trial judge, and his or her ruling on

admis sibility will not be disturbed on appeal absent a clear showing of an abuse of

that discretion. State v. Banks, 564 S.W .2d 947 , 949 (Te nn. 197 8). See also, State

v. Bigbee, 885 S.W.2d 797, 807 (Tenn. 1994); State v. Van Tran, 864 S.W.2d 465,

477 (Tenn. 1993 ). More over, th e mo dern tr end is to ves t more discre tion in the trial


                                            57
judge 's rulings on admis sibility. See Banks, 564 S.W .2d at 949 ; State v. Bailey,

01C01-9403-CC-00105 (Tenn. Crim. App., Nashville, July 20, 1 995); perm. to app.

denied, (Tenn. Jan. 8, 19 96).



      Evidence is relevant if it has "any tendency to make the existence of any fact

that is of conse quenc e to the de termina tion of the a ction more probable or less

proba ble than it would be without the evide nce." Rule 401, T enn.R.Ev id. Howeve r,

relevant evidence "may be exclud ed if its pr obativ e valu e is sub stantia lly outweighed

by the danger of unfair prejudice, confus ion of the iss ues, or m isleading the jury."

Rule 403. Of course, simply because evidence is prejudicial does not mean the

evidence must b e exclud ed as a matter o f law. See State v. Gen try, 881 S.W.2d 1,

6 (Tenn.. Crim . App. 1993 ). The court mus t still determine the relevance of the

visual evidenc e and w eigh its probative value against any undue prejudice. Along

these lines, the trial court should be guided by the following matters in determining

the adm issibility o f releva nt vide otape and p hotog raphic evidence: the accuracy and

clarity of the picture and its value as evidence; whether the picture depicts the body

as it was found; the adequ acy of tes timonial e vidence in relating the facts to the jury;

and the need for the evidence to establish a prima facie case of guilt or to rebut the

defend ant's con tentions. Banks, 564 S.W.2d at 951.



      Contrary to the assertion of the appellants, the identity of the perpetrators was

not the on ly issue in this case. The s tate also had to p rove to the jury the existence

of the ele men ts of all the offenses. The video shows the location of the grave site

and the efforts to conceal the presence of the bodies. The trial court limited the

number of still pho tograp hs, bu t allowe d in seve ral to show the restraints on the

victims. As the s tate observes, the trial judge in this case was very conscientious

in his review of the admission of the photographic evidence. The evidence was

relevant to the state’s case and assisted the jury in its finding that the state proved

each element of the offenses. We do not find that the evidence was cumulative or

undu ly prejudicial. Moreover, the admissibility of photograp hic evidence does not

depend upon the defendant’s offer to stipulate to the facts depicted therein,

espe cially when the prosecution does not agree to the stipu lation. See State v.



                                            58
Schafer, 973 S.W .2d 269 , 274-75 (Tenn. C rim. App . 1997); State v. Griffis , 964

S.W.2d 577, 59 5 (Tenn . Crim. App. 1997) (“an accused cannot marshal the

evidence of the state by simply offering to stipulate to a fact for the purpose of

barring the state from introducing admissible, demonstrative evidence the accused

does not want the jury to see”). The trial court did no t abus e its disc retion in this

case, the refore, this iss ue is witho ut merit.



       Montgo mery also challenges the introduction of photographs of the victims

before they were murdered. The appellant cites State v. Dicks, 615 S.W .2d 126,

128 (Tenn. 1981). However, in State v. Nes bit, 978 S.W.2d 872, 901-02 (Tenn.

1998), the Supreme Court adopted that portion of this Court’s opinio n whic h held

that a photograph of the victim while alive was relevant to the state’s case-in-chief

in proving that the person murdered was the same person name d in the ind ictmen t.

We find this evidence was not cumulative and was properly admitted.



Sentencing on Non-capital Offenses

       Carruthers next contends that he was denied his right to be present at the

sentencing hearing on the robbery and kidnapping convictions and he, therefore,

reques ts a new senten cing hea ring. The state claim s he wa ived his righ t.



       The trial judge originally scheduled the non-capital sentencing hearing for May

20, 1996.    However, because of some confusion regarding transportation, the

appellan ts were not brought to Memphis from the Riverbe nd Ma ximum Security

Facility outside of Nashville. At this point, the court had already appointed counsel

to represent Carruthers at the hearing on the m otion for ne w trial a nd on appe al.

The court reset the sentencing hearing for M ay 28, an d inform ed cou nsel for bo th

appellan ts of this continuance . On May 28, the court decided , becau se of sec urity

concerns, that the sentencing hearing would be held at Riverbend the next day. The

court again info rmed Carruthers’ counsel of this change, and stated that although

they could ap pear, the y would not have an active role in the h earing. The record

does n ot reflect, ho weve r, whethe r the app ellants w ere pers onally no tified.




                                             59
      On May 29, the trial judge, along with the prosecutors and counsel for

Montgomery, appeared at Riverbend for the hearing. Just prior to the start of

proceedings, the warden informed the judge that Carruthers said he was not going

to participate . The appellants were apparently located in a different area of the

prison than where the hearing took place. Counsel for Montgomery also informed

the judge that Montg omery was su rprised the hearing was go ing to take place and

that he, too, was not going to p articipate. Counsel stated that Montgomery was not

going to participate becaus e of the presen ce of the me dia. The judge , however,

refused to exclude the media from the proceeding. The judge again asked the

warden to inquire wheth er Carru thers wa nted to be presen t. Carruthers, how ever,

gave no reason other than to say he was not going to participate. The judge then

decided he was going to proceed without the presence of either appellant since they

had volun tarily elected to remain away. T he judg e stated th at the app ellants knew

this hearing was going to take place, however, he admitted they may have been

surprised about its location.



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



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


The trial court determined that it was necessary for security reasons to hold the

sentencing hearing on the non-capital offenses at the prison outside Nashville. The

room used in the prison was open to the public, as the media w as there, and th ere

appea rs to be no error in the tria l court’s judg ment in this respe ct.



       Criminal defen dants have the righ t to be p resen t at all sta ges o f the trial,

including sentencing. T enn.R.Crim .P. 43(a). See also State v. Muse, 967 S.W.2d

764, 766-67 (Tenn. 1 998). Th is right, however, may be wa ived. Ru le 43(b); Muse,

967 S.W.2d at 767-68 (citing State v. Kirk, 699 S.W.2d 814 (Tenn. Crim. App.

                                            60
1985)). “An accused who has notice of the time and place of the trial and of his right

to attend, and who nonetheless voluntarily absents himself, will be deemed to have

waived his right to be prese nt.” Kirk, 699 S.W.2d at 819. Rule 43 also provides that

a defen dant c an wa ive his right to appear if, after present initially, he “[v]olun tarily is

absen t after the trial ha s com menc ed.”



       In Muse, a case discussing whether or no t a defendant may waive the right

to be presen t during jury voir dire, our Supreme Court acknowledged that there is a

long-standing presumption against the waiver of fundamental constitutional rights.

967 S.W.2d a t 767. The C ourt held that waiver would not be presumed from a silent

record, and that in orde r for a de fenda nt to w aive h is or her right to be present during

voir dire, the defendant must personally waive the right in writing or on the record in

open court. Id. at 768. In Muse, the trial court rescheduled the jury selection at

coun sel’s request, but the d efendant w as personally unaware of this. When jury

selection began a day earlier than originally scheduled, the defendant did not

appear. The Sup reme C ourt remanded for a new trial because the defendant was

not informed of the rescheduling.



       In this case, the trial judge admitted Carruthers may not have known that the

court planned on visiting the prison. However, the judge stated that both ap pellants

were aware that a sentencing hearing was going to occur. In fact, the hearing had

origina lly been scheduled the week prior in Memphis. The judge also made the

following comments for the record:



              Obviously, since there has already been a thorough sentencing
       hearing back in April, on April 26th, at the time that Mr. Montgomery
       and Mr. Carruthers were found guilty by the jury on the murder charges,
       the -- all three sides in the case, the state and both defendants, had an
       opportu nity to present any and all proof they cared to at that time, w ith
       regard to sentencing issues. . . . And so I would assume that all three
       parties involved at that sentencing hearing would have presented any
       and all relevant proof that they had available to them at that time with
       regard to sentencing issues in this case.
       ...
              Now, on Mr. Carruthers’ behalf, since he’s not represented by
       coun sel, it had been my intention to addres s him in c ourt toda y to see
       if there was any additional proof that he wanted, that he perhaps was
       missing out on since the matter was being held here. Since he has not
       graced us with his presence, I haven’t h ad the o pportun ity to address
       him today.

                                              61
       After makin g the latter c omm ents, the judge took a short recess to allow

counsel to confer with Montgomery and to allow the warden to inform Carruthers that

this was his opportu nity to ma ke a state ment o n his ow n beha lf, if he so chose.

Counsel for Montgomery returned from their conference and again informed the

judge that Montgo mery was o bjectin g to this hearin g bec ause it was n ot bein g held

in a pub lic place . Coun sel spe cifically s tated th at, to the ir knowledge, they would not

have called any a ddition al witne sses at this h earing .       The w arden once again

informed the judge that Carruthers declined to participate. The warden made at

least three attempts during the hearing to secure Carruthers’ presence.



       Given that the re had previo usly been an ex haus tive se ntenc ing he aring in this

case, the trial judge stated that he did not believe there would be any additional

evidence presented by defen se tha t wou ld not have been cumulative. Of course, as

provided by the Criminal Sentencing Reform Act of 1989, both the state and the

defendant have the right to pres ent relevant evidence at the sentencing hearing.

See T.C.A . §§ 40 -35-2 03(a) ; 40-35 -209( b). This includes the opportunity for the

defendant to make a statement on his ow n beha lf. § 40-35-2 10(b)(6) . Cf. State v.

Stephenson, 878 S.W.2d 530, 550-52 (Tenn. 1994) (capital defendant not allowed

allocution during capital sentencin g hearing). The trial court, however, would have

been perm itted to e xclud e any evide nce th at had alread y bee n pres ented earlier in

the proceedings. § 40-35-209(b). Similarly, in imposing the sentences for the

kidnapping and robbery convictions, the judge was required to consider anything

already in the record from the trial to date, including evidence from the capital

senten cing hea ring. § 40-3 5-210.



       Counsel for Montgomery indic ated they were not aware of any additional

witnesses. And w hile the judge thoug ht it was highly unlike ly Car ruther s wou ld

produce any, the judge was willing to allow Carruthers the opportunity to present any

additional proof as well as make a statement on his own behalf. The record is silent

as to whether Carruthers possessed any additional proof.                 If Carruthers had

appeared at the hearing and requested a continuance so that he could forewarn any

relevant witnesses they would need to travel to Nashville, the trial court could have

                                             62
granted a continuanc e. Howe ver, because we believe Carruthers waived his right

to be pre sent, there was no error by th e trial court in th is respec t.



       The facts of this case ca n readily be distingu ished from those in Muse. In

Muse, beside not knowing about the change in dates, the defendant did not appear

in court on the day tria l comm enced . Cf. State v. Robinson, No. 03C01-9512-CR-

00410 (Tenn. Crim. App., July 16, 1997).            In the case at hand, although the

defendant may not have known about the change in time and place of the hearing,

the defendant was given every opportunity to appear before the judge at the prison.

This is not a case where the trial judge was going to proceed without even making

an effort to secure the presence of the defendant. The defendant was housed in the

same facility where the hearing took place, and the warden informed him on at least

three separate occasions that the judge was going to proceed without him if he

chose not to appea r. Carruthers did n ot personally appear before the judge and

waive his right to be presen t. Howeve r, the record before us clea rly reflec ts that th is

was his intention. We believe this scenario is akin to the situation where a defendant

is initially present in the courtroom and then “[v]oluntarily is absent after the trial has

comm enced .” See Rule 43. Carruthers obviously knew the sentencing hearing was

about to begin but voluntarily chose not to participate. Given the discussion above,

we find that Carruthers waived his right to be present at the sentencing hearing.



Prosecutorial Misconduct

       Both appellan ts claim the prosec utors m ade im proper a rgume nts during b oth

phas es of th e trial w hich re quire a rema nd for a new tr ial.



       As is commonly recognized, closing arguments are an important tool for the

parties during the trial process. Consequently, the attorneys are usually given wide

latitude in the sco pe of their a rgume nts, see State v. Bigbee, 885 S.W.2d 797, 809

(Tenn. 1994 ), and tr ial judg es, in tu rn, are acco rded w ide dis cretion in their control

of those ar gume nts, see State v. Zirkle , 910 S.W.2d 874, 888 (Tenn. Crim. App.

1995).     Such s cope a nd discre tion, how ever, is no t comp letely unfe ttered.

Argument must be temperate, based upon the evidence introduced at trial, relevant


                                             63
to the issues being tried, and not otherwise improper under the facts or law . Coker

v. State, 911 S.W.2d 357, 368 (Tenn. Crim. App. 1995). The test for determining

whether the prosecuting attorney committed reversible misconduct in the argument

is “whether the improper conduct could have affected the verdict to the prejudice of

the defend ant.” Harrington v . State, 385 S.W.2d 758, 759 (Tenn. 1965). The

following factors have been recog nized to aid th e Cou rt in this determination: 1) the

conduct complained of, viewed in light of the facts and circumstances of the case;

2) the curative measures undertaken by the court and the prosecutor; 3) the intent

of the prosecutor in making the improper statement; 4) the cumulative effect of the

improper cond uct an d any other e rrors in the record; and 5) the relative strength or

weak ness o f the case . State v. Bigbee, 885 S.W.2d 797, 809 (Te nn. 199 4); State

v. Buck, 670 S.W .2d 600, 609 (Tenn. 198 4).



       Initially, Carruthers claims that because he was representing himself the trial

court should have taken a more active role in guarding against prosecutorial

misconduct during argument.        As we noted earlier, there are certain perils a

defendant faces when repres enting hims elf at trial. Know ing whe n to object during

argument obviously is one of those perils. While the trial court can intervene sua

sponte and take cu rative meas ures whe n the argum ent becom es blatantly impro per,

see, e.g., State v. Cau thern, 967 S.W.2d 726, 737 (Tenn. 1998), the trial court must

exercise its discretion and should not exert too much control over the arguments.

The judge does not serve as a pro se defendant’s counselor during trial. The judge

shou ld intervene only when requested or when the judge deems proper in the

interest of justice.



       Carruthers refers to several instances of allegedly improper argument that

occurred during the guilt pha se of the trial. He claims the prosecutor imp roper ly

characterized him as a conniver and liar and accused him of manipulating the jury.

Evidence was introduced that Carruthers was the mastermind behind these crimes,

and therefore, any referenc e by the s tate in this regard wa s not improp er. Howev er,

the prosecutor may not comment unfavorably upon the defendant’s pro se

representation of himself or the presen tation of his c ase. See Coke r v. State, 911


                                          64
S.W.2d 357, 368 (Tenn. Crim. App. 1995). Nor should a prosecutor express his or

her personal opinion about the credibility of witnesses, un less the com ments are

grounded upon evidence in the rec ord. See State v. West, 767 S.W.2d 387, 394

(Tenn. 1989). M oreove r, a prosecutor is strictly prohibited from commenting on the

defen dant’s decision not to testify. Coker, 911 S.W.2d at 368. This would include

his decision not to pres ent any proof. How ever, a prose cutor's statement that proof

is unrefuted or uncontradicted is not an improper comment upon a defendant's

failure to testify. State v. Thomas, 818 S.W .2d 350, 364 (Tenn. Crim . App. 1991 );

State v. Coury, 697 S.W.2d 373, 378 (Tenn. Crim. A pp. 1985). The prosecutor

shou ld also refrain from calling the defen dant de rogatory name s. State v. Cauthern ,

967 S.W .2d 726, 737 (Tenn. 199 8).



      In this cas e, it was improper for the prosecutor to call the appellant names,

such a s a liar. However, we do not find improp er the co mm ents telling th e jury to

watch out for “pitfalls” and “mind games” and not to succumb to a “guilt trip.” The

prosecutor was simply making reference to the strength of the state’s proof. Also,

the prosecutor should not have insinuate d that Ca rruthers w as trying to manip ulate

the jury or comment that Carruth ers did no t call any cre dible witne sses on his beha lf.

Contrary to Carru thers’ claim , howe ver, we d o not be lieve thes e com ments

impro perly referred to Carruthers’ failure to testify. Similarly, Carruthers complains

about the prosecutor’s statements that Carruthers was trying to manipulate the

media. Howe ver, Alfred o Shaw testified abo ut this. Moreo ver, the sta te is permitted

to argue reasonable inferences from th e evid ence in the reco rd. Coker, 911 S.W.2d

at 368. The sta te’s argume nt in this respect wa s not improp er. Carruthers also

claims the state’s reference to the “second part” of Carruthers’ master plan

mentioned in the letters he wrote to Maze was improper. Since this was brought up

by the ev idenc e, we do no t think th is comm ent w as improper.        Carruthers also

claims the prosecu tor’s statement to the jury that they have a responsibility to the

victims’ family improperly appealed to the emotions and sympathies of the jury. See

State v. Bigbee, 885 S.W .2d 797, 809 (Tenn. 199 4). We agre e. Finally, Carruthers

contends the prosecutor’s comment that there is a “gap” in the evidence was

improper. Carru thers c laims this wa s an im prope r inferen ce on his failure to testify.


                                            65
We disagree. The state’s case was based on circumstantial evidence and the

prose cutor’s comment in this respect merely informed the jury that not all the pieces

to the p uzzle were prese nted a t trial.



       Both appellants complain about certain comments made by the prosecutor

during argument at the penalty phase of trial. Both appellants take issue with the

prose cutor’s mentio n of the ten comm andm ents in the Bible. Just recently, in State

v. Middlebrooks, 995 S.W.2d 550, 559 (Tenn. 1999), our Supreme Court made the

following comm ent rega rding this typ e of argu ment:



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


This argument by the prosecutor was obviously improper under the decisions of our

Supre me C ourt.



       Both appellants also contend that the state made improper victim impact

argum ent.    Victim impact evidence and argument during sentencing are not

prohibited by the co nstitution o r statute. See State v. Nes bit, 978 S.W.2d 872 (Tenn.

1998). Howe ver, the arg umen t must be relevant to the spec ific harm to the vict im’s

family , Middlebrooks, 995 S.W.2d at 558, and must be limited to “information

designed to show those unique characteristics which provide a brief glimpse into the

life of the individual who has been killed, the contemporaneous and prospective

circumstances surrounding the individual’s death, and how those circumstances

financially, emotionally, psychologically or physically impacted upon members of the

victim ’s family.” Nesb it, 978 S.W.2d at 891 (footno te om itted). Th e “victim ’s fam ily

members’ characterization and opinion about the crime, the defendant, and the

approp riate sentence v iolates the Eighth A mendm ent.” Id. at 888 n.8 . Again, the

prosecutor cann ot sim ply ap peal to the em otions and s ymp athies of the ju ry wh ile

invoking victim impact argum ent. Id. at 891 (citing State v. Bigbee, 885 S.W.2d 797

(Tenn. 1994)).     We agree with the appellants that the prosecutor im properly

commented that the family members who testified did not cry and had remained

                                            66
quiet during trial. Also improper was the comment that the families “trust in you [the

jury].”    The family m embers could have testified that they missed the victims

(emotional impact of victim’s d eath), and the comment by the prosecutor that they

chose no t to solicit this testimony wa s not improp er.



          Montgo mery also claims that the prosecutor improperly asserted his personal

opinion into closing argument. While a prosecutor may not express a personal

opinion or belief, comments during argument prefaced by phrases such as “I think”

or “I subm it” are unlike ly to be ad judged opinions . Coker v. State, 911 S.W.2d 357,

368 (Tenn. C rim. App . 1995).        A ccording ly, we do not believ e the com ments

Montgomery complain a bout which contain these phrases w ere improp er.

Montgomery asserts that the prose cutor improp erly read to the jury a d ictionary

definition of the term “mitigate” and improperly asked the jury to use that definition

to determine whether any mitigating evidenc e was p resente d.              Acco rding to

Montgomery, the prosecutor erroneously told the jury that mitigating evidence is that

which mitigates the crime , rather tha n that wh ich mitiga tes the pu nishm ent.

Although the prosecutor may have not clearly provided the jury with the legal

meaning of mitigation , the trial judge prope rly instru cted th e jury a nd the jury is

presumed to have fo llowed th ose instru ctions. State v. Cribbs, 967 S.W.2d 773, 784

(Tenn. 1998). Finally, we agree with the state that the death penalty statute does

not limit the state’s final closing argument to rebutting that which the defendant

argued. T.C .A. § 39-13-20 4(d).



          We find that the appellants have waived any cha llenge reg arding th e majo rity

of the comments about which they complain because they failed to voice a

contemporaneous objection. T.R.A.P. 36 (a); see also State v. Little, 854 S.W.2d

643, 651 (Te nn. Crim . App. 19 92). Non etheless , we hav e review ed the e ntire

argum ents of all parties, and considering the factors listed above, we find that the

relative ly few improper comments by the prosecutors did not affect the verdict to the

prejudice of the appellants.       This issue is without merit.    However, we remind

counsel of the warnings recently related by our Supreme Court in State v.

Middlebrooks, 995 S.W .2d 550 , 561 (Te nn. 199 9):


                                             67
              Those who interpret these cases as precedent for the view that
       improper closing argume nt and m iscon duct o f this na ture w ill be he ld
       harmless error in all cases do so at their own professional peril and at
       the risk that the misconduct, even if it does not prejudicially affect the
       verdict, may be deemed to be prejudicial to the judicial process as a
       whole a nd there fore requ ire a new trial or sente ncing he aring.



Gag Order

       Next Carruthers claims the trial court erred by issuing a gag order before the

start of trial.   Carruthers contends the gag order, which prevented any of the

attorneys or pro se litigants from making extra-judicia l statements about the case,

adversely affected his ability to present a defense. Specifically, Carruthers claims

that the order may have prevented an important witness from coming forward.



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



               The Constitutions of the United States and the State of
       Tennessee guarantee defendants in all criminal cases due process of
       law and the right to a fair an d impartial jury. It is the duty of the trial
       court to see that every defendant is afforded all his constitutional rights.
               In order to safeguard those rights, this Court is of the opinion that
       the following rule is necessary to constitutionally guarantee an ord erly
       and fair trial by an impartial jury. Therefore, this Court orders the
       following:
               All lawyers participating in this case , including a ny defe ndants
       proceeding pro se, the assistants, staff, investigators, and employees
       of investiga tors are for bidden to take par t in interview s for pub licity and
       from makin g extra-jud icial statem ents ab out this ca se from this date
       until such time as a verdict is retu rned in this case in o pen co urt.
               Because of the gravity of this case; because of the long history
       of concerns for the personal safety of attorneys, litigants and witnesses
       in this case; because of the potential danger - believed by this Cou rt to
       be very real and very present - of undermining the integrity of the
       judicial system by “trying the case in the media” and of sullying the jury
       pool, this Court feels compelled to adopt this extraordinary pretrial
       measure. State v. Hartman , 703 S.W .2d 106 ([Tenn.] 1985), and State
       v. Green, 783 S.W .2d 548 ([Ten n.] 1990).


       Much of the procedural history of this case has been outlined previously,

including the numerous threats to attorneys and the death of one of the co-

defendants. As Carruthers acknowledges in his brief, “[t]his trial was charge d with

emotion from start to finish.       There were allegations of gang affiliations and

testimony of large scale narcotics dealings.           The courtroom was guarded by

S.W.A.T. team mem bers a nd by Sher iff’s deputies who w ere auth orized to search

those entering the cou rtroom.” Furthermore, as the trial judge stated in a n in came ra


                                             68
hearing during the middle of trial on April 20, 1996, a deputy jailer had been gunned

down in the jailer’s driveway the day before and the judge expressed concerns that

there might be a connection to this case. He also noted that one witness fled and

could not be found after reading about this case in the newspaper. Further, the

judge indica ted tha t two w itnesses who already testified stated that appellant

Montgo mery threatened to kill them if they talked about this case. Alfredo Shaw

even testified that Carruthers tried to make arrangements to have Shaw recan t his

testimony in front of the media.



       This case was the subject of another interlocutory appeal to this Court,

whe rein we he ld that the trial court’s gag order on the media precluding them from

printing the nam e of a witness who already testified was an unconstitutional prior

restra int.   State v. Mon tgomery , 929 S.W.2d 409 (Tenn. Crim. App. 1996).

Accordingly, the m edia was not exclud ed from these pr oceed ings and was free to

report anything about the case, including the events that transpired in the courtroom.

The gag order at issue here was directed at the attorneys, including the pro se

litigant. The trial court properly concluded that there was no problem prohibiting the

attorneys or their representatives from speak ing abo ut the cas e. State v. Hartman,

703 S.W .2d 10 6, 116 (Tenn . 1985 ).         The tw ist in this c ase, h owe ver, is that

Carruth ers wa s repres enting him self during trial.



       As we stated earlier, “one of the most fundamental responsibilities of a trial

court in a crim inal ca se is to a ssure that a fa ir trial is conducted.” State v. Fran klin,

714 S.W.2d 252, 258 (Tenn. 1986).            And while prior restraints o n speech are

gene rally suspe ct, see, e.g., State v. Mon tgomery , 929 S.W.2d 409 (Tenn. Crim.

App. 1996), there are instances where the exercise of free speech mus t yield to the

most fundament of all freedo ms, the right to a fair trial. See The News-Journal Corp.

v. Foxman, 939 F .2d 14 99, 15 12 (11 th Cir. 1 991).          T he righ t to a fair tria l is

guaranteed, not only to the accused, but also to the state as the representative of

the people. See, e.g., United States v. Ford, 830 F.2d 596, 603 (6th Cir. 1987)

(Krupansky, J., concurring). Carruthers cites United State v . Ford, which provides

that there m ust ex ist a “cle ar and prese nt dan ger” be fore a tr ial cou rt may impose


                                             69
a prior restraint on a cr imina l defen dant’s spee ch du ring trial. Other federal circuits,

however, apply a lower standard when evaluating restrictive orders imposed upon

criminal defendants; that is, whether there is a “reasonable likelihood” that a fair trial

will be lost ab sent the re striction on speec h. See The News-Journal Corp., 939 F.2d

at 1515 n.18.



       Regardless of which standard is applied in this case , we agre e with the state

that there was at least a spe cific clea r and p resen t dang er that a n unfa ir trial wo uld

occur if the speech of the defendant was not curtailed. Since this case garnere d

substantial med ia atten tion in the Memphis a rea, the trial judg e was rightly

concerned about the media ’s influence on the po tential jury pool. The trial judge

remarked about the several media interviews given by Carruthers, his investigators,

as well as one of the prosecutors. Furthermore, as demonstrated through the

testimony of Shaw, Carruthers appa rently threatened Shaw and made arrange ments

through one of his investigators to have a news reporter interview Shaw about

recanting his story. Obviously, if a criminal d efenda nt is allowe d to ma nipulate the

witnesses and media during trial, the guarantee of a fair trial is nonex istent. Aside

from this, as already made evident, the trial judge was also properly concerned

about the safety of all involved. The order was specifically drawn to curtail the

particular dangers of an unfair trial in this case. That is, the judge did not want any

attorney, staff member, investigator or pro se litigant to have any exchange with the

media. Given the entire record of proceedings in this case, we find no problem with

the trial court’s ga g order. See Pedini v. Bowles, 940 F.Supp. 10 20 (N.D.Te x. 1996);

United States v. Hill, 893 F.Supp. 1039 (N.D.Fla. 1994). Moreover, although

appa rently not considered by the trial judge, we do not believe there were any

reason able altern atives to th e gag o rder. See, e.g., The News-Journal Corp., 939

F.2d at 1513 n.16.



       Carruthers’ main co mplain t about the gag order is that he may have been

prevented from discovering the presence of an otherwise unknown witness. Again,

the med ia was given free rein to cov er the p rocee dings at trial. The public was

certain ly aware of what was going on, and we do not believe an interview by


                                             70
Carruthers would have produced different results than were achieved with the

existent media coverage. Accordingly, even if the gag order was invalid, given the

nature of Car ruther s’ com plaint, it d id not a ffect the fairnes s of the trial.



Severance

       Montgo mery claims the trial court erred in denying his motions to sever the

trial of the tw o defe ndan ts. Spe cifically, h e claim s he w as un duly p rejudic ed in th is

joint trial b ecau se ce rtain statements by Carruthers would not have been admitted

against him in a separate trial and because of the manner in which Carruthers

represented himself at trial. The state contends the trial court acted properly.



       The decision wheth er to gran t a motion to sever defendants lies within the

discretion of the trial judge and that decision will not be overturned on appeal unless

the movin g party w as clearly prejudice d. State v. Hutchison, 898 S.W.2d 161, 166

(Tenn. 1994).      A motion to sever may be granted before trial if “it is deemed

approp riate to prom ote a fa ir determination of the guilt or innocenc e of one or m ore

defend ants.” Tenn.R .Crim.P . 14(c)(2)(i). A motion to sever made during trial may

only be granted when the defend ant to be s evered conse nts and it is necess ary to

achieve a fair determination of guilt. 14 (c)(2)(ii). Befo re a defe ndant is e ntitled to

a reversal, the record must show that the “‘defen dant w as clea rly prejudiced to the

point that the trial court’s discretion ended and the granting of [a] severance became

a judicial duty.’” State v. Burton, 751 S.W .2d 440, 447 (Tenn. Crim . App. 1988 ).



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


State v. Coleman, 619 S.W .2d 112, 116 (Tenn. 198 1) (quoting Woo druff v. Sta te, 51

S.W.2d 8 43, 845 (Te nn. 1932)).




                                              71
      Montgo mery conten ds that lette rs Carru thers wr ote to Jim my M aze, a

statement Carru thers m ade to Jona than M ontgo mery in Maze’s presence, and the

statem ents of Jonathan Montgomery to Chris Hines would not ha ve be en ad miss ible

against him in a separate trial because the evidence was insufficient to establish a

conspiracy at the time the state ments were made.            We disagree.     We have

previo usly discussed the two statements by Jonathan Montgomery to Chris Hines

and found that the first statement was properly admitted under the co-conspirator

exception to the hearsay rule.        The proof at trial clearly connected James

Montgomery to Hines’ car. We also believe, contrary to Montgomery’s insistence,

that Carruthers’ letters and statements to Jimmy Maze would have properly been

admitted against M ontgom ery und er this sam e exce ption to the hearsa y rule. W e

previo usly stated that the trial court properly admitted these letters into evidence

against Carruthers. And while the letters do not specifically mention Montgomery,

other evidence introduced at trial clearly connected Montgomery to Carruthers’ plan.

In fact, while Carruthe rs and Jonathan Montgomery were riding around with Maze

in December 1993, Carruthers mentioned that the y wou ld nee d to wa it until James

was released from prison before kidnapping Anderson. And although the state must

show the existence of a conspiracy in o rder to introduce h earsay of a co -conspirator,

the trial judge may permit independent proof of a conspiracy after the admission of

the hearsa y eviden ce. State v. Hodgkinson, 778 S.W.2d 54, 61 (Tenn. Crim. App.

1989) (citing Solomon v. State, 76 S.W.2d 331 (Tenn. 1934)). However, even if the

letters and statements to Maze would not have been adm issible against Mo ntgome ry

in a sep arate tr ial, the error w as harm less in this c ase. State v. Hutchison, 898

S.W.2d 161, 16 7 (Tenn . 1994). T he evide nce wa s otherw ise sufficien t to sustain the

convictions of Montgomery.



      Similarly, Montgomery also insists that Charles Ray Smith could not have

overheard Carruthers and Montgomery discuss the conspiracy when Marcellos

Anderson returned Carruth ers to priso n from fu rlough because the prison records

reflect that Carruthers did not take furlough after Montgomery was transferred to the

Mark Luttrell Reception Center. However, the records do reflect that Carruthers,

Montgo mery and Sm ith were all hou sed a t the sa me tim e in the Reception Center


                                           72
during the early part of November 1993. Moreover, Andre “Baby Brother” Johnson

testified that Smith warned him and Anderson to watch out for Carruthers and

Montgomery. Both Johnson and Terrell Ad air were also pre sent when Montgom ery

and Carruthers mentioned they had so meone already targeted . Also, Montgo mery

told Adair th at if the p olice d id not h ave a body , there c ould b e no c rime. T his

matched statements attributed to Carruthers. Accordingly, Montgomery’s complaint

in this re spec t mus t fail.



         Montgo mery further claims a severance should have been granted because

the manne r in which Ca rruthers conduc ted his defen se pre judice d Mo ntgom ery’s

case. Montgomery complains about Carruthers’ mannerisms in front of the jury as

well as a few of the que stions he asked some witness es. He also suggests that

Alfredo Shaw w ould not have been called to te stify against him in a s eparate trial

and the fact tha t Carruth ers called him to testify u nduly prejudiced his case because

it was “so me of th e mos t dama ging evid ence o f the entire trial.”



         When two defend ants are on trial toge ther, there will invariably be evidence

adm issible against one that would otherwise not be admissible against the other.

This factor alone, however, does not preclude the state from going forward in a trial

on two or m ore defe ndants . In cases wh ere evidence would be admissible against

one defendant but not the other, the trial court may properly instruct the jury that they

are only to co nsider the evidenc e adm issible aga inst each defend ant sep arately. In

the present case, although certain evide nce, s uch a s Alfred o Sha w’s testimony, may

not have been admissible against Montgomery, the trial court in this case instructed

the jury that each appellant was “entitled to have their cases decided on the

evidence and the law which is applicable to them.” The jury is presumed to have

followed the cour t’s instruction . State v. Little , 854 S.W.2d 643, 648 (Tenn. Crim.

App. 1992). However, even if the trial judge in this case should have excluded

Shaw ’s testimony or severed the trials, given the other convicting evidence

introduced, we do not believe Montgomery was unfairly prejudiced by Carruthers’

questioning of Shaw . See State v. Hutchison, 898 S.W.2d 161, 166-67 (Tenn.

1994).


                                            73
       Furthermore, counsel or a p ro se litigan t has a n oblig ation o nly to represent

the interests o f his or her c lient or him or herse lf. See State v. Brown, 644 S.W.2d

418, 421 (Tenn. Crim. App. 1982). Similarly, counsel or a pro se litigant has no

obligation to protect th e interests of a co-de fendan t. Id. In fact, it is permissible for

one defendant to attempt to place the blame during trial on his or her cod efenda nt.

See State v. Ensley, 956 S.W .2d 502 , 509 (Te nn. Crim . App. 19 96). Each defendant

has discretion to develo p his or he r own trial strategy. Having reviewed each of

Mon tgom ery’s com plaints regard ing the man ner in w hich C arruth ers ha ndled his

case, we do not believ e Carru thers’ con duct viola ted Mo ntgom ery’s rights so as to

warrant a severa nce or a mistrial. See id. Accordingly, for the reasons stated

herein, this issue is w ithout me rit.



Testimony of Benton West and Nakeita Shaw

       Montgo mery next claims that the court improperly allowed hearsay testimony

by Benton West and failed to give limiting instruction s rega rding N akeita Shaw ’s

prior incon sistent state ment.



       At trial West testified that Nakeita Shaw told him she thought Anderson and

Tucker were being kid nappe d and th at she ho ped no thing hap pened to them. The

first statement, that Shaw thought the victims were being kidnapped, was solicited

during the prosecutor’s direct examination of West. The second statement was

initially solicited during Montgomery’s cross exam ination. Both statem ents were

hearsay, however, neither Carruthers nor counsel for Montgomery voiced an

objection. Accord ingly, we find that this e rror has b een w aived. T.R .A.P. 36(a);

State v. Walker, 910 S.W.2d 381, 386 (Tenn. 1995). Moreover, when there is no

contemporaneous objection to a hearsay statement, the jury may consider it as

evidence and give the testimony such weight as it dee ms pro per. See State v.

Benn ett, 549 S.W .2d 949, 950 (Tenn. 197 7).



       Shaw testified that she moved to Milwaukee after the police investigation

began because she had received a death threat. While she stated that these thre ats

did not come from James Montgomery, she did testify that James Mon tgom ery told


                                            74
her that sh e cou ld be c harge d as a n acc omp lice in this case.              Shaw gave a

statement to the Milwaukee Police wherein she said Anderson and Tucker were

escorted out of her house with their hands tied behind their backs. At trial, while

reiterating that she was still afraid for her life, s he tes tified tha t she d id not s ee the ir

hands bound in any manner. Montgomery claims Shaw’s earlier statement to the

police was a prior inconsistent statement that should have only been admitted for

impeachment purposes, not for the truth of the matter asserted.                     No limiting

instruction was requested or given. The state argues in response that the prior

statement by Shaw was admissible to help explain to the jury, in light of her

testimony that she was still afraid for her life, why her trial testimony differed from her

statement to the police.



       Prior inconsistent statements of witnesses can only be offered to impeach a

witness’ credibility, no t for the truth o f the ma tter asserte d. State v. Reece, 637

S.W.2d 858, 861 (Tenn. 1982). However, where there is no contemporaneous

request for a limiting instruction, the error of the trial court cannot later be attacked

on appeal. T.R.A .P. 36(a). Mon tgomery c orrectly asserts, how ever, that the failure

by a trial court to issue a contemporaneous curative instruction for prior inconsistent

statements, even in the absence of a special request, could, under some

circumstances, constitute reversible error: "[when] the impeaching testimony is

extrem ely damag ing, the need for the limiting instruction is appa rent, and the failure

to give it results in sub stantial pre judice to th e rights of th e accu sed." Reece, 637

S.W.2d at 861. In Reece, the Suprem e Court also s tated that the review ing court

shou ld consider the overall strength of the state’s case in deciding whether the

failure to instru ct con stitutes revers ible error. Id. Since Shaw testified on the stand

that the victims’ hands were not tied when they left her house, there should have

been an instruction regarding her prior inconsistent statement to the police.



       We do not agree with the state’s argument that the prior inconsistent

statement was properly admitted to explain Shaw’s trial testimony. To allow the

admission of Shaw’s statement to the police for the truth of the matter asserted




                                               75
“wou ld be to hold that hearsay evidence not under oath took precedence over

evidence given by the same witness unde r oath and on the witness stan d.” Id.

Howe ver, considering the nature of the statement in light of the other evidence,

including the fact that the bodies we re discovered with their hands bound, as well as

the strength of the state’s case, albeit predominantly based on circumstantial

evidence, we do not believe the failure to give a contemporaneous instruction

resulted in substan tial prejudice to Mon tgome ry. This claim is without m erit.



Testimony of Terrell Adair, Andre Johnson and Chris Hines

      Montgo mery also claims that certain testimony by these three witnesses was

erroneo usly allow ed by the trial court. Th e state dis agrees .



      The prosecutor asked Adair if he was present during a conversation between

Charles Ray Smith, Marcellos Anderson and Andre Johnson about their personal

safety. Adair stated he was and then the prosecutor asked Adair what Smith said.

Counsel for Montgomery objected claiming the answ er called fo r hearsa y. After a

bench conference, the trial court sustained the objection but allowed the prosecutor

to ask Adair if the conve rsation too k place. The prosecutor then asked the following

question: “Mr. Adair, without telling us what Mr. Smith said, was there a conversation

regarding their personal sa fety between Charles R ay Smith a nd Mr. An dre Johnson

and Marcellos A nderson? ” Montgom ery claims on appeal that this question was an

improp er use o f a prior con sistent state ment.



      We find that the appellant has waived this issue, however, we also disagree

with the app ellant’s claim . Counsel objected to the question at trial because it called

for hears ay. The trial court sus tained the objection . Couns el, howe ver, failed to

voice an objection based on the use of a prior consistent statement. Accordingly,

he wa ived any challeng e to the alle ged erro r. T.R.A.P . 36(a); State v. Walker, 910

S.W.2d 381, 38 6 (Tenn . 1995). See also State v. Matthews, 805 S.W.2d 776, 781

(Tenn. Crim. A pp. 199 0) (a defe ndant “m ay not litigate an issue on one ground,

abandon that ground post-trial, and assert a new basis or ground for his contention

in this Court”). Regardless, we do not believe this is a situation where a witness was


                                           76
impro perly questioned about a prior consistent statement. The witness was not

testifying about a prior statem ent he m ade, rath er he w as testifying about a

conversation that took place between three other individuals. While it may have

been h earsay , we do n ot find any other erro r in the testim ony in this re spect.



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

At one point, the prosecutor asked Johnson if he had a talk with Anderson about

Carruthers and Montg omery. Johnson responded: “I had a talk to Marcellos and

Terre ll Adair. I told th em, ‘Look, do not ride James and Tony in a car with you

because a friend of mine was in jail with them to ld them people --.’” Counsel for

Montgo mery immediately objected and the judge told the witness that he could not

repeat what so meon e else sa id to him. The prosecutor then asked Johnson what

he told Adair and Anderson, and Johnson answered: “I told them, ‘Don’t ride James

and Tony in the car with you because they out to rob you and kill you.’” Mon tgomery

now claim s this was an improper use of a prior statement. For the same reasons we

discussed above in relation to Adair’s testimony, we find that the appellant has

waived this claim.     Nevertheless, we do not believe this constituted a prior

statem ent. This was the first time Johnson was asked about what he told Anderson

and Adair, therefore, there was no other state ment, either con sistent or inc onsisten t,

before the jury.



      Montgo mery alleges that the court erred in allowing the prosecutor to question

Chris Hines about a prio r statement. The appellant claims there was no basis for

this line of que stioning. H ines wa s ques tioned by the pros ecutor a nd then both

appellan ts cross examined him. During redirect, in an attempt to rehabilitate the

witness, the prosecutor questioned Hines about a statement he gave to the police.

Counsel for Montgomery objected to this line of questioning stating that it went

beyond the scope of cross examination.           The trial judge made the following

comments in overruling the objection:



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

                                           77
       when he talked to Jonathan, what the circumstances were when he
       talked to James and Tony, how many phone calls were made, when
       they were made, how they w ere mad e. Eve rything that is re lated to in
       this statement that’s being used on redirect was covered on cross by
       both of you-a ll. And if he ge ts into areas in this statement that go
       beyond what was covered on cross, certainly your objection would be
       sustained. As long as the areas in this statement that he is covering
       pertain to the areas that you-all covered on cross, I’m going to ove rrule
       the objection.


We a gree w ith the trial court’s ruling and find no error in this line of questioning by

the state on redire ct. See State v. Tizard , 897 S.W.2d 732, 746 (Tenn. Crim. App.

1994); State v. Meeks, 867 S.W.2d 361, 374 (Tenn. Crim. App. 1993). This claim,

therefore , is also with out me rit.



Opinion Testimony

       Montgo mery claim s that C hris H ines sh ould n ot hav e bee n allow ed to g ive his

opinio n of wh at Mo ntgom ery m eant w hen h e told Hines that a rifle had blood on it.

Montgo mery cites Tenn. R. Evid. 701, which provides that a lay witness’s “testimony

in the form of opinions or inferences is limited to those opinions or inferences which

are (1) rationally based upon the perception of the witness and (2) helpful to a clear

understanding of the witness’s testimony or the determination of a fact in issue.” He

argues that H ines’ int erpre tation had no fou ndatio n of fac t and w as no t rationa lly

based on his pe rception. In response, the state contends that Hines was not being

asked to give his opinion as to w hat M ontgo mery mea nt, but to expla in why Hines

refused to accep t the wea pon.



       At the trial, the state asked Hines w hat hav ing blood on the w eapon mean t to

him, and he responded tha t it mea nt that s ome body had b een s hot w ith it. At this

point, Montg omery objected “as far as w hat it mea nt to” Hine s, but the trial court

overrule d the ob jection.



       To the extent that the testimony was presented to show Hines’ interpretation

for the purpose of explaining Hines’ rejection of the weapon, we believe the evidence

was inadm issible bec ause it w as who lly irrelevant to the issue s on trial. See Tenn.

R. Evid. 401, 402. To the extent that the testimony could be taken as evidence of

what Montgomery meant by saying that the weapon “had blood on it,” we believe

                                            78
that the record provides insufficient foundation to justify the admission of Hines’

interpretation. If a phrase is not common parlance and carries a particular meaning

in a partic ular context or environment, the witness to such meaning should lay a

foundation that show s that the w itness ha s the spe cialized kn owledg e need ed to

assist the jury su bstantially to understand the evidence. Tenn. R. Evid. 702. Such

was not done in this case.



       Howe ver, we conclude that any error was harmless. We do not believe that

the jury was at undue risk because of Hines’ opinion, given the fact that they already

knew that Montgomery said that the weapon had blood on it. Such is also true in the

context of all of th e rem aining evide nce in this case . The de fendan t does no t specify

any particu lar preju dice th at mo re prob ably than not affected the verdict and we find

none in our review of the record.



Jury Instructions

       Montgo mery claims the trial court’s jury instruction on the especially heinous,

atrocious or cruel aggravating circumstance was improper. He claims that the use

of the phrase “in that” instead of “and” - the murder is especially heinous, atrocious

or cruel in that it involved torture or serious physical abuse - sugg ested to the jury

that all acts of torture or serious physical abuse are automatically classified as

heinous, atrocious or crue l. This very argument has recently been rejected by our

Supreme Court.        See State v. Nesbit, 978 S.W .2d 872, 887 (Tenn. 199 8).

Acco rdingly , this claim mus t fail.



       Montgo mery also claims that the trial court improp erly instructed the jury

regarding mitigating evidence.          Specifically, he claims the trial court erred by

instructing the jury that it should not distinguish between statutory and any requested

non-statutory mitigating circumstances and by instructing the jury on sta tutory

mitigating circumstances that were not supported by the record. The trial judge

instructed the jury on mitigating evidenc e acco rding to the statute in existence at the

time. T.C.A. § 39-13-203(e) (1991). The appellant seems to suggest that the “no

distinction” aspect of the instruction prejudiced him because he did not request an



                                              79
instruction on any non-sta tutory circumsta nce. How ever, since there were no non-

statutory circumstances requested, the jury did not have anything to distinguish.

Accord ingly, we do not be lieve the a ppellant w as prejud iced by th is instruction .



       Montgo mery further claims that the judge erred in instructing the jury on all of

the statutory mitigating circumstances even though they were not all supported by

the record.    According to the appellant’s argument, this undermined his actual

mitigation and emphasized to the jury the number of circumstances missing from the

case. The Supreme Court has recognized that only those mitigating circumstances

raised by the ev idence should b e instructe d. See State v. Cazes, 875 S.W.2d 253,

267 (Tenn. 1993). The Court has also held, however, that any such error in th is

respect does not require reversal unless the appellant can show prejudice. Id. The

appellant claims, d espite the Supre me C ourt’s ruling on this issue, that instructing

on all of the circumstances does not benefit him. Again, absent a showing of

prejudice, this claim m ust fail. See State v. Nes bit, 978 S.W.2d 872, 902 (Tenn.

1998) (adopting the portion of this Court’s opinion addressing this issue). The

appellant has failed to show how he was prejudiced by the instruction. Accordingly,

this issue is without m erit.



Sufficiency of the Evidence

       Both appellan ts challen ge the su fficiency of th e conv icting evide nce. A g uilty

verdict by the jury, approved by the trial court, accredits the testimony of the

witnesses for the state and resolves all conflicts in favor of the state's theory. State

v. Hatche tt, 560 S.W .2d 627 , 630 (Te nn. 197 8); State v. Grace, 493 S.W.2d 474,

476 (Tenn. 197 3). On appeal, "the state is entitled to the strongest legitimate view

of the trial evid ence and a ll reasonable or legitimate inferences which may be drawn

therefrom ." State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). This Court does

not reweigh or reevaluate the evidence . Id. The ju ry's ve rdict, the refore , will only

be disturbed if, after a consideration of the evidence in the light m ost fav orable to the

state, a rational trier of fact could not have found the essential elements of the crime

beyond a reasonable dou bt. Jack son v . Virginia , 443 U.S. 307, 99 S.Ct. 2781

(1979); State v. Williams, 657 S.W .2d 405, 410 (Tenn. 198 3); T.R.A.P. 13 (e).


                                            80
       A criminal offense may be proven through direct evidence, circumstantial

evidence, or a combination of the two. State v. Tharpe, 726 S.W.2d 896, 899-900

(Tenn. 1987). See also State v. Brown, 836 S.W.2d 530, 541 (Tenn. 1992)(“the

cases have lon g recog nized tha t the nece ssary ele ments of first-degree murder may

be shown b y circumstan tial evidence”). Before the defendant may be convicted of

a criminal offense based upon circumstantial evidence alone, the facts and

circumstances "must be so strong and cogent as to exclude every other re ason able

hypo thesis save the guilt of the de fendan t, and that b eyond a reas onable doubt."

State v. Crawford , 470 S.W.2d 610, 612 (Tenn 1971). "A web of guilt must be

woven around the defendant from which he cannot escape and from which facts and

circumstances the jury could draw no other reasonable inference save the guilt of

the defe ndant b eyond a reaso nable d oubt." Id. at 613.



       At the time of this offense, first degree murder was defined as "an inte ntiona l,

premeditated and deliberate killing of anothe r." T.C.A. § 39-13-202(a)(1) (1991) (the

current first degree murder statute does not require proof of deliberation). Once a

homicide has been proven, it is presumed to be a second-degree murder and the

state has the b urden o f establishin g prem editation a nd delibe ration. State v. Brown,

836 S.W.2d 530 (Tenn. 1992). Intentional is defined as "the conscious objective or

desire to engage in the conduct or cause the result."                  T.C.A. § 39-11-

106(a)(18)(19 91).    Premeditation necessitates "the exercise of reflection and

judgment," T.C.A. § 39-13-201(d) (1991), requiring "a previously formed design or

intent to kill."   State v. West, 844 S.W.2d 144, 147 (Tenn. 1992).             Whereas

deliberation is defined as a “cool purp ose,” “without pa ssion or provo cation.” § 39-

13-201 (b)(1) and comm ents (19 91).



       The elements of premeditation and deliberation are questions for the jury and

may be inferred from the circums tances surroun ding the k illing. State v. Bland, 958

S.W.2d 651, 660 (Te nn. 1997). The Supreme Court has delineated several relevant

circumstances which may be indicative of premeditation and deliberation, including

the use of a d eadly w eapon upon a n unarm ed victim , the fact that the k illing was

particu larly cruel, declarations by the defen dant o f his inte nt to kill, and the making


                                            81
of preparations before the killing for the purpose of conc ealing the cr ime. Id. This

Court has also noted several factors from which the jury may infer these elements:

facts about what the appellant did prior to the killing which would show planning;

facts about the appellant's prior relationship with the victim from which motive may

be inferred; an d facts ab out the na ture of the k illing. State v. Bord is, 905 S.W.2d

214, 222 (Te nn. Crim . App.), perm. to app. denied, (Tenn. 1995 ) (citing 2 W. LaFave

and A. S cott, Jr., Substantive Criminal Law § 7.7 (1986)).



       At the time of the crimes, especially aggravated robbery was defined as the

intentional or knowing theft of property from the person of another by violence or

putting the person in fear, accomplished with a deadly weapon and whe re the vict im

suffers seriou s bod ily injury . T.C.A . § 39-1 3-403 (1991 ). Espe cially aggravated

kidnapping was the knowing removal of confinement of another unlawfully so as to

interfere substantially with the other’s liberty, accomplished with a deadly weapon

or where the victim suffers serious bodily injury. T.C.A. § 3 9-13-305 (1 991).



       The trial evid ence is thoro ughly outline d abo ve. Ha ving re viewe d the p roof in

the record in the ligh t mos t favora ble to the s tate, w e find th at a ratio nal jury could

reaso nably have fou nd the a ppellants guilty of all cha rges. Again, convictions may

be based solely on circums tantial evide nce an d all ques tions rega rding cre dibility of

witnesses are res olved by the jury. Th is issue is witho ut me rit. Furth ermo re, wh ile

not addressed by either appellant, we have examined the evidence and have found

that the proof was sufficient to support the aggravating circumstances found by the

jury and that the aggravating circumstances outweigh the mitigating evidence

beyond a reasonab le doubt. T.C.A . § 39-13-206 (c)(B)-(C) (1991 ).



Death P enalty Statu te

       Both appellan ts challen ge the co nstitutiona lity of Tenn essee ’s death p enalty

statute. All of the num erous claim s raise d by th e app ellants have repea tedly been

denied by our S uprem e Cou rt. See, e.g., State v. Burns, 979 S.W.2d 276 (Tenn.

1998) (adopting this C ourt’s review o f this issue); State v. S mith, 893 S.W.2d 908

(Tenn. 1994); State v. Brimmer, 876 S.W.2d 74 (Tenn. 1994). Accordingly, these


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claims must fail. Carruthers also claims that the recent amendment to T.C.A. § 40-

23-114 (1998 Supp.), which allows those capital case defendants who committed

their offense prior to January 1, 1999, to elect to be put to death by lethal injection

constitutes an uncon stitutional de legation o f legislative a uthority. W e disagree. The

statute clearly states that this class of offenders shall be put to death by

electrocution. The s tatute, h owe ver, giv es the offend er the o ption to waive this

method of exe cution and e lect leth al inject ion ins tead. T his is not a delegation of the

legisla ture’s autho rity. This claim is without m erit. At any rate, this statute does not

affect the appellants’ convictions or sentences.



Proportionality Review

       Pursuant to T.C.A. § 39-13-206, this Court must consider whether the

sentence of death was im pose d in an arbitrar y fash ion an d whe ther the sente nce is

excessive or dispropo rtionate to the penalty imposed in similar cases. Interestingly,

neither appellant has addressed the proportionality review in their appellate briefs.

The Supreme Court recently issued the following mandate in order to assist the

appellate courts in fulfilling their statutory duties:


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


State v. Bland, 958 S.W .2d 651, 667 (Tenn. 199 7) (emphasis added) (internal

footnotes omitted). The Bland opinion was issued we ll before the appe llate record

was filed in this case.



       In Bland, the Su prem e Cou rt outlined the proce ss ap pellate courts shou ld

employ when conducting a comparative proportionality review. The review required

is not a rigid, objective test, id. at 668 , nor are the co urts bo und to cons ider on ly

those case s in wh ich exa ctly the same aggravating circumstances have been found,

                                             83
State v. Brimmer, 876 S.W.2d 75, 84 (Te nn. 199 4). It is the duty of the app ellate

court, not to “assure that a sentence less than death was neve r impo sed in a case

with similar character istics,” b ut to “as sure th at no a berra nt dea th sen tence is

affirmed .” Bland, 958 S.W.2d at 665. With respect to the circumstances of the

offense, we con sider: 1) the mean s of death ; 2) the manner of death; 3) the

motivation for the killing; 4) the place of death; 5) the simila rity of the victims’

circumstances including age, physical and mental conditions, and the victims’

treatment during the killing; 6) the absence or presence of premeditation; 7) the

absence or presence of provocation; 8) the absence or presence of justification; and

9) the injury to a nd effects on non deced ent victim s. With re spect to comparing the

character of the de fenda nts, the followin g facto rs are re levan t: 1) the d efend ant’s

prior criminal record or prior criminal activity; 2) the defendant’s age, race, and

gender; 3) the defendant’s mental, emotional or physical condition; 4) the

defendant’s involvement or role in the murder; 5) the defen dant’s co operatio n with

authorities; 6) the defendant’s remorse; 7) the defendant’s knowledge of

helplessness of victim(s); and 8) the defendant’s capacity for rehabilitation.



       The facts and circumstances o f the offe nses in this ca se ha ve be en tho rough ly

detailed above.    The three victims were kidnapped and ultimately buried alive.

Before being placed in the ground, two of the victims were shot and one was beaten

with a shovel. The appellants knew their victims: Marcellos Anderson, twenty-five

years of age; his mother, Delois Anderson, in her forties; and F rederick Tuc ker,

seventeen years old. The appellants w ere both twenty-six years of age at the time

of the mu rders. Bo th appe llants claim they are innocen t of the crim es. As the

presentence reports indicate, both appellants have extensive prior criminal records,

including crimes of violence to the person.



       While no two cas es are th e sam e, the follow ing case s wher e the de ath

sentence was imposed contain similar characteristics to the present one: In State

v. Zagorski, 701 S.W.2d 808 (Tenn . 1985 ), the tw enty-e ight ye ar old defendant shot

and slit the throats of the two victims and left them to die in the woods during an




                                            84
alleged ly botched drug deal. The jury found two aggravating circumstances: the

murder was especially heinous, atrocious or cruel and the murder was committed

during the course of a robbery. In State v. S mith, 868 S.W.2d 561 (Tenn. 1993), the

forty year old defendant was convicted on three counts of the premed itated murde rs

of his estranged wife and her two sons. The victims were shot and stabbed in their

home. There was also evide nce th at the d efend ant ha d prev iously threatened the

victims. The defendant presented an alibi defense at trial. The jury found four

aggravating circumstances for two of the victims (the murder was especially heinous,

atrocious or cruel; the murder was committed for the purpose of avoiding arrest or

prosecution; the murder was committed during the commission of a felony; the

defendant committed mass murder) and two for the third victim (the murder was

espe cially heinous, atrocious or cruel and the defendant committed mass m urder).

In State v. Burns, 979 S.W.2d 276 (Tenn. 1998), the young defendant was convicted

of felony murder and sentenced to death. The defendant and his accomplices

approached four young m en sitting in a car, robbed th em, a nd killed two of them.

The jury found one aggravator, that the defendant created a risk of ha rm to two or

more persons. In State v. Mo rris, No. 02C01-980 1-CC -00012 (Tenn. C rim. App .,

Feb. 5, 1999) (appeal to Supreme Court pending), the thirty-eight year old defendant

was convicte d on two counts of premeditated first degree murder and senten ced to

death. The defendant intended to rob his neighbors for drug money. The two

victims were the male neighbor and his minor cousin-in-law. The defendant also

kidnapped and raped the wife of the male victim. The jury found two aggravating

circumstances: the murde r was especially heinous, atrocious or cruel and the

murder was committed during the course of a first degree murder, rape, burglary or

kidnapping. We are convinced that the result in the case before us was neither

disproportionate nor arbitrary.



                                   CONCLUSION

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

convictions and sentences. Because this case will automatically be reviewed by the

Supreme Court, w e will not se t a date of e xecution . See T.C.A. § 39-13-20 6(a)(1).




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                         ____________________________________
                         THOMAS T. WO ODALL, Judge

CONCUR:



___________________________________
GARY R. WADE , Presiding Judge



___________________________________
JOSEPH M. TIPTON, Judge




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