IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs March 5, 2013

TONY VON CARRUTHERS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P-25948 John Fowlkes, Jr., Judge

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

In 1996, Petitioner, Tony Von Carruthers, was convicted of three counts of first degree

murder and sentenced to death on each count by a Shelby County Jury. See State v.

Carruthers, 35 S.W.3d 516, 523 (Tenn. 2000). Petitioner subsequently sought postconviction relief for, inter alia, ineffective assistance of pretrial counsel for failing to retain

an expert in the field of deoxyribonucleic acid (“DNA”) analysis. See Tony Carruthers v.

State, No. W2006-00376-CCA-R3-PD, 2007 WL 4355481, at *1 (Tenn. Crim. App., at

Jackson, Dec. 12, 2007), perm. app. denied, (Tenn. May 27, 2008). After a hearing, the postconviction court denied relief, and this Court affirmed the post-conviction court’s judgment.

Id. In December of 2011, Petitioner sought to have DNA analysis performed on a vaginal

swab and a blanket pursuant to the Post-Conviction DNA Analysis Act of 2001. The Shelby

County Criminal Court denied relief. Petitioner appeals, arguing that the post-conviction

court improperly denied relief. Because Petitioner did not establish the criteria for ordering

DNA analysis under the Act, the judgment of the post-conviction court is affirmed.

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

JERRY L. SMITH,J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

ROGER A. PAGE, J., joined.

Tony Von Carruthers, Pro Se, Nashville, Tennessee

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney

General; Amy P. Weirich, District Attorney General, and John Campbell, Assistant District

Attorney General, for the appellee, State of Tennessee.
OPINION

Factual Background

Petitioner and James Montgomery were convicted of first degree murder for killing

1

Marcellos “Cello” Anderson, his mother Delois Anderson, and Frederick Tucker in Memphis

in February of 1994. The men were also convicted of three counts of especially aggravated

kidnapping and one count of especially aggravated robbery of Marcellos Anderson. The

victims disappeared on the night of February 24, 1994. Their bodies were found buried

together approximately one week later in a pit that had been dug beneath a casket in a grave

in a Memphis cemetery. Testimony from the medical examiner indicated that although

several of the victims suffered from external injuries, including gunshot wounds, prior to

their burial, each of the victims was buried alive. Petitioner received three death sentences

for the first degree murder convictions. Carruthers, 35 S.W.3d at 523-24. Because of his

disruptive behavior, Petitioner was required to represent himself at trial. Id. at 534-552.

The Tennessee Supreme Court affirmed the convictions and sentences on direct

appeal. Id. at 523. In December 2001, Petitioner filed a pro se petition for post-conviction

relief. Counsel was appointed, and an amended petition was filed. Tony Carruthers v. State,

2007 WL 4355481, at *1. Despite representing himself during the majority of the trial, in his

post-conviction petition, Petitioner alleged that pretrial counsel were ineffective for failing

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

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

in various acts of prejudicial misconduct. Id. at *22. Among Petitioner’s complaints about

his pretrial counsel was that they were ineffective for failing to retain a DNA expert. Id. at

*38. At the evidentiary hearing, Petitioner presented evidence to show the following:

On November 3, 2005, Todd Bille, accepted as an expert in forensic

DNA analysis, testified that, in November 2002, he was hired by codefendant

James Montgomery to serve as an expert in his case. Bille was asked to

examine evidence to determine if there could be potential biological fluids and

whether DNA analysis could be performed. Bille examined a total of nineteen

items, including Marcellos Anderson’s socks, pants,shirt, underwear and belt;

Tucker’s socks, jeans, belt, shirt, and boots; Delois Anderson’s dress and

underwear; an unidentified red sock; ties or bindings from Tucker; and a

Another defendant, James Montgomery’s youngerbrother, was also originally charged on all counts 1

involved in this case. However, he was found hanged in his cell in the Shelby County jail prior to trial.

-2-
section of a white cloth blanket. From the testing done on these items, Bille

prepared a summary report in June 2003 and a final report on March 17, 2005.

Bille reported that samples from the white blanket did not match the

DNA of any of the victims, the petitioner, or the codefendants. Bille

commented that the tests performed on the white blanket could not have been

performed at the time of the trial, but similar tests could have been performed

with the same results.

Id. at *33.

After the evidentiary hearing, the post-conviction court entered an order denying the

petition. Id. at *34. Among other things, the post-conviction court found that Petitioner

“failed to meet the prejudice prong of the Strickland test with respect to his ineffective

assistance of pretrial counsel claim; failed to show that appellate counsel were deficient for

not raising [P]etitioner’s listed issues on appeal or that he was prejudiced as a result of the

issues not being raised; and failed to show that the prosecution engaged in misconduct or that

the alleged misconduct affected the outcome of the trial.” Id. The post-conviction court

noted that any “troubling aspects” during the trial were caused by Petitioner’s “own actions

in forfeiting his right to counsel.” Id. The post-conviction court concluded:

The Court has carefully considered all of the petitioner’s claims. There

are issues related to the trial of this case that give pause, but when analyzed[,]

they all come down to the fact that the petitioner represented himself at the

trial and the petitioner made some questionable decisions before and during the

trial. He is responsible for the negative impact of his own decisions while

acting as his own lawyer. . . . Many of the complaints here simply come full

circle. It comes down to the consequences of the petitioner having implicitly

waived his right to counsel.

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

The one possible exception to the above is the testimony of Mr. Bille

as to the DNA evidence. Here, it appears that the petitioner’s theory is that

competent counsel would have hired a DNA expert and that this testimony

would have been helpful to the petitioner at trial. The testimony of Mr. Bille

indicated that there was a blanket-like cloth taken from the grave site[,] and

that on this blanket-like cloth[,] blood was found that did not belong to any of

the three (3) victims and did not belong to any of the three (3) defendants. The

-3-
petitioner asserts that this proof is important and that it is exculpatory and

possibly could have [a]ffected the results of the trial. The Court disagrees.

The testimony of Mr. Bille and the DNA results are only very minimally

helpful to the petitioner. In no way does this evidence negate all other proof

in the case[,] and it is rank speculation to assume that this indicates that a third

party might have committed this crime. There is no proof as to the age of the

blood, or any explanation of how the blood got on the piece of cloth. This

evidence does not carry the prejudice prong of the Strickland test.

On appeal from the denial of post-conviction relief, this Court agreed. Tony Carruthers,

2007 WL 4355481, at *39. The supreme court denied permission to appeal on May 27, 2008.

In December of 2011, Petitioner filed a “T.C.A. § 40-30-301 Request D.N.A

Evidence” on a pre-printed form for a “Motion to Re-open Post-conviction Petition.”

Petitioner alleged in the petition that in March of 2006, a vaginal swab and blanket were

discovered and the “D.A. Office as proof of ‘C.O.D.I.S.’ matching.” Petitioner claimed that

2

the DNA evidence exonerates him because it would exclude him as the source of the DNA

material and that if he is not the source of the DNA material he must be innocent of the

crime. Petitioner further claimed that other persons have since been identified as the

perpetrators due to a DNA match. The State responded to the petition. According to the

State, DNA testing had already been performed on the items, and the results did not give rise

to a reasonable probability that Petitioner would not have been convicted of the crimes.

The post-conviction court dismissed the motion to reopen the petition for postconviction relief on June 11, 2012. The post-conviction court noted, “[I]t appears from the

record that DNA testing has already occurred and[,] the results are only minimally helpful

to [P]etitioner. Thus, [P]etitioner’s request to reopen his Petition for Post Conviction Relief

is denied for failure to comply with the requirements of ‘the Act.’”

Petitioner appeals.

Analysis

Petitioner seeks reversal of the post-conviction court’s dismissal of his petition to

reopen his post-conviction petition under the Post-conviction DNA Analysis Act.

“C.O.D.I.S.” stands for Combined DNA Index System, a computer software system that allows 2

DNA information to be shared between various law enforcement agencies. See, generally Powers v. State,

343 S.W.3d 36, 45-46 (Tenn. 2011). 

-4-
Tennessee Code Annotated sections 40-30-301-313 is known asthe “Post-Conviction

DNA Analysis Act.” Under Tennessee Code Annotated section 40-30-303, a petitioner may

file a request for forensic DNA analysis in a petition for post-conviction relief at any time.

Tennessee Code Annotated section 40-30-304 states:

After notice to the prosecution and an opportunity to respond, the court shall

order DNA analysis if it finds that:

(1) A reasonable probability exists that the petitioner would not have been

prosecuted or convicted if exculpatory results had been obtained through DNA

analysis;

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

may be conducted;

(3) The evidence was never previously subjected to DNA analysis or was not

subjected to the analysis that is now requested which could resolve an issue not

resolved by previous analysis; and

(4) The application for analysis is made for the purpose of demonstrating

innocence and not to unreasonably delay the execution of sentence or

administration of justice.

In other words, Tennessee Code Annotated section 40-30-304 applies when the exculpatory

results from the DNA analysis would have resulted in no prosecution or no conviction. If

the four factors are present, DNA testing pursuant to Tennessee Code Annotated section 40-

30-304 is mandatory. Section 305, on the other hand, provides for discretionary testing.

T.C.A. § 40-30-305. A post-conviction court may order DNA analysis under section 305 if

certain requisite findings are made. In the case herein, Petitioner sought DNA analysis under

Tennessee Code Annotated section 40-30-304.

When this Court reviews a post-conviction court’s decision determining whether to

grant relief under the Post-Conviction DNA Analysis Act, the lower court is afforded

considerable discretion and our scope of review is limited. Sedley Alley v. State, No.

W2006-00179-CCA-R3-PD, 2006 WL 1703820, at *5 (Tenn. Crim. App., at Jackson, June

19, 2006) (citing Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095,

at *3 (Tenn. Crim. App., at Jackson, May 26, 2004), perm. app. denied, (Tenn. Oct. 4,

2004)); Raymond Roger Jones v. State, No. E2003-00580-CCA-R3-PC, 2004 WL 2821300,

at *6 (Tenn. Crim. App., at Knoxville, Dec. 3, 2004), perm. app. denied, (Tenn. Mar. 21,

2005) (citing Willie Tom Ensley v. State, No. M2002-01609-CCA-R3-PC, 2003 WL 186647,

-5-
at *3 (Tenn. Crim. App., at Nashville, Apr. 11, 2003)). Prior opinions of this Court on direct

appeal, as well as appeals from prior post-conviction petitions or habeas corpus petitions,

may be considered by the trial court in reaching its decision. Sedley Alley, 2006 WL

1703820, at *5. In addition, “[a] determination of the evidence and surrounding

circumstances is necessary to evaluate whether exculpatory results would have prevented

prosecution or conviction or would have resulted in a more favorable verdict or sentence.”

State v. David I. Tucker, No. M2002-02602-CCA-R3-CD, 2004 WL 115132, at *2 (Tenn.

Crim. App., at Nashville, Jan. 23, 2004). The evidence considered by the lower court may

include “the evidence presented at trial and any stipulations of fact made by either party.”

Sedley Alley, 2006 WL 1703820, at *5. Under either the mandatory or discretionary

provision, all four elements must be met before DNA analysis will be ordered by the court.

See Sedley Alley, 2004 WL 1196095, at *2; William D. Buford v. State, No. M2002-02180-

CCA-R3-PC, 2003 WL 1937110, at *6 (Tenn. Crim. App., at Nashville, Apr. 24, 2003).

Petitioner herein sought DNA analysis of two items: a blanket and a vaginal swab

from victim Delois Anderson. Attached to Petitioner’s motion was an “Official

Serology/DNA Report” for the blanket indicating that it had already been subject to DNA

analysis and “added to the CODIS database for forensic unknown samples.” Therefore, the

sample had already been subject to DNA analysis and failed to satisfy a requirement of

Tennessee Code Annotated section 40-30-304(3). The State’s response indicated that there

were no CODIS “hits” on the blanket sample as of April 2012. As noted by this Court on

post-conviction appeal, a new CODIS match might identify the depositor of the biological

material on the blanket but could not prove that it was deposited at a time contemporaneous

with the crime for which Petitioner was convicted. See Tony Carruthers v. State, 2007 WL

4355481, at *38. Consequently, the post-conviction court did not abuse its discretion in

denying the motion to reopen the post-conviction petition on the basis of the post-conviction

DNA analysis Act with respect to the blanket.

With regard to the vaginal swab from the victim, Petitioner noted that the

Serology/DNA Report indicated that there was no semen in the sample but that there was the

presence of DNA from an unidentified female individual. The report also indicated that there

was no DNA standard submitted for the victim for comparison purposes prior to the analysis.

Presumably, the DNA of the unidentified female belongs to the victim. However, even if we

assume that DNA analysis results would be exculpatory, see Powers, 343 S.W.3d at 55, such

results would not create a reasonable probability that the Petitioner would not have been

prosecuted or convicted. Any results that identified a female individual would not in any

way provide a reasonable probability that the female individual, rather than Petitioner, would

have been convicted of murdering the victims. Petitioner is not entitled to relief on this issue.

-6-
Petitioner also insists that he was entitled to an evidentiary hearing with the assistance

of counsel prior to dismissal of the petition. Because we have determined that Petitioner did

not satisfy the requirements of Tennessee Code Annotated section 40-30-304, it is

unnecessary for the trial court to conduct a hearing or to order DNA analysis of evidence.

William D. Buford v. State, 2003 WL 1937110, at *6. Consequently, the judgment of the

post-conviction court is affirmed.

Conclusion

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

___________________________________

JERRY L. SMITH, JUDGE

-7-