"The Fall of Fathead Caruthers" by J.W. Hardin Esq. (deceased)

From Hell, May 9, 2010. As many of you know, I, John W. Hardin was a fully licensed attorney at the time of my death in El Paso. For that reason I take great interest in following developments in the law. (You would probably NOT be surprised to find how many lawyers there are here in Hell. We have quite lively discussions and debates on issues that develop in the law. Bill Rehnquist is especially vocal as he is pretty much up to date on the current state of affairs ...he likes to hang with Roy Cohn).

It is from this perspective that I write to comment on the "Fall" of a very notable fellow from

the community of Jeffersonville, Indiana: Robert "Fathead" Caruthers, who was convicted of

drug dealing last Friday.

This was not the Head's first rodeo. nearly a decade ago, the honorable Men in Blue, the Law

tried to take him down. Here's the story:

DICKSON, Justice.

The defendant, Robert O. Caruthers, Jr., appeals from his convictions for possession of cocaine in an amount over three grams with the intent to deliver, ^[1] a class A felony. ^[2] In this direct appeal, he raises several issues, but we find one issue dispositive: whether the evidence was sufficient to convict.

The defendant contends that the evidence was insufficient to prove that he possessed the drugs at issue. An appellate claim of insufficient evidence will prevail if, considering the probative evidence and reasonable inferences that support the judgment, and without weighing evidence or assessing witness credibility, we conclude that no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Case v. State, 458 N.E.2d 223, 226 (Ind.1984); Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d 1260, 1264 (1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

In this case, acting upon a tip from a confidential informant, the police obtained a search warrant to search the defendant's mother's house. On the way to her house, the police stopped the defendant as he was driving and subsequently searched the defendant and his car, but found no drugs or drug-related paraphernalia. The police did find empty packages of Newport cigarettes in the defendant's car. When the police searched the home, they found four people in the home--the defendant's mother, sister, niece,

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and Victoria Carter. The defendant's mother, brother, sister, niece, Carter, and Jackie Grant lived at the mother's house. The defendant was residing elsewhere at the time, but received mail at his mother's house, and kept a few items, such as a Social Security card, his high school diploma, and a receipt for a child support payment, in a discreet small area in the house.

During the search, the police found cocaine in the home. However, none of the cocaine found was present in the area where the defendant kept his personal items. The police also discovered empty packages of Newport cigarettes near the cocaine, but there was no evidence that the cigarette packs found in the home belonged to the defendant, and others who lived in the home also smoked Newport cigarettes. The State also introduced the testimony of Joan Mull, who testified that she had called the defendant at his mother's house about drug purchases on several occasions prior to the day on which the police search discovered the cocaine. The defendant never personally delivered any drugs to Mull.

Additionally, although the State has not commented upon it in its brief, we consider the testimony of Eric Green, who was with the defendant in jail the night the defendant was arrested. Green testified that the defendant told him that "they were trying to charge him with something that ain't his, wasn't his," Record at 1260, and that "they did him wrong and he's going to beat this case and they found some dope but it wasn't that much and he was going to get his brother to take responsibility for it." Record at 1261. He also said that the defendant "told the others don't say anything." Record at 1261. When the State asked a question concerning a "discussion about any kind of money," Green responded that "only so much of it supposed to be his." Record at 1261. On cross examination defense counsel asked, "And when he said it wasn't his, was he referring to the cocaine that supposedly had been found there? A: Yes. Q: He was, wasn't he? As a matter of fact, in all the statements that he made to you he never did admit that thecocaine, if there had been cocaine in the house, was his, did he? A: Yes, he did." Record at 1271. Because the second question is phrased in the negative, the meaning of Green's affirmative answer cannot be ascertained.

Because the defendant was not in physical possession of the cocaine at the time it was seized, the State relies upon the doctrine of constructive possession. Goodner v. State, 685 N.E.2d 1058, 1061 (Ind.1997). Constructive possession is shown by "the intent and capability to maintain dominion and control over the illegal drugs." Fassoth v. State, 525 N.E.2d 318, 323 (Ind.1988).

The State argues that the evidence showed that the defendant had the intent and ability to maintain dominion over the drugs found in the house. However, the State showed neither that the defendant stayed in the area in which the items were found, nor could they place any other identifying marks of the defendant such as fingerprints or other of the defendant's specific possessions with the drugs seized. The drugs were not found within the defendant's immediate control. The police did not find any items on the defendant or in his car which showed his intent to maintain control over the drugs in the house. That the State could show that the defendant was in possession of drugs in the past, through Mull's testimony, is insufficient to establish the offense charged. Likewise, we cannot find any support for the conviction in Green's unclear testimony.

We conclude that, even when considering only the evidence favorable to the State, it is insufficient to support the conviction. The judgment of the trial court is reversed.

SHEPARD, C.J., and SULLIVAN and BOEHM, JJ., concur.

SELBY, J., dissents without opinion.

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As you see, that did not work out too well for the City of Jeffersonville. They had confiscated

over $130,000 in Cash from Robert's mother's house which all had to be turned back over to him and his mom, Georgia. OUCH!!! that was a lot of Eggs on a lot of FACES! You might even say its an OMELET on those faces.

Now, a little background on Mr. Caruthers. He is a well known figure in Jeffersonville (in certain circles). A quick check of the Clark County records shows a total of Sixteen cases over

the years ranging from the serious to the not so serious. And it was considered that Mr. Caruthers had more legal courtroom experience than many many practicing attorneys! However, despite this plentitude of cases and chances for the State of Indiana to 'take him out

of action'... Robert had always managed to 'slip the hangman's noose' (the case above a prime

example!).

And to affirm to all that Robert was not merely a lion in the courtroom.... Robert was legendary for his STREET SURVIVOR skills! A few years ago, a gang of three young men

broke into Robert's mother's house in the middle of the night (probably lured by the well known

fact that Robert kept a large sum in the bureau 'because he doesn't trust BANKS!!" The men were armed with rifles and Shot guns. When Robert confronted this trio of robbers, THEY SHOT HIS RIGHT LEG OFF!!! However, what might have felled a lesser man....was a mere impediment to Robert who DISARMED HIS ASSAILANTS AND DROVE THEM FROM HIS HOME!!! After being taken to the hospital where what was left of his leg was taken off, the police wanted Robert to make a statement and identify his assailants. Unfortunately Robert was unable to identify them or provide ANY helpful information. (Yeah...right!).

But, our sturdy men in blue of the Jeff Police were not to be discouraged after all these

years.... they set up a 'sting' operation and got a 'snitch' to infiltrate Robert's supposed confidences. Now those of us with some familarity might imagine Robert far to wary a quarry

to be tripped up by such a simple play. But that was the claim put forward and on this basis

Robert's home (or rather his mothers) was searched, drugs found and, again, a large sum of

cash. Robert was taken to jail but made bond! But they didn't like THAT! See: http://newsandtribune.com/clarkcounty/x993511646/Bond-revoked-for-Jeffersonville-suspect-awaiting-trial-for-dealing

Last week, Robert went to trial. He had changed attorney from his earlier days, thinking to

"freshen up" and go with the 'newer models' so his attorney was Niles Driskell with back up from William Gray. Neither of these fellows had, perhaps, been involved in a trial that more resembles a locomotive moving swiftly down a railroad track and were not well suited to slow down those inexorable steel wheels although both are fine lawyers.

The jury, twelve good men and women from Clark County retired shortly before noon on

Friday. They were taken to Luncheon at a fine Jeffersonville establishment. They returned

to the Courthouse. In moments the door to the jury room sounded with a sharp and determined

knock. They had a verdict.

The EVENING NEWS (Matt Thacker) Wrote :

JEFFERSONVILLE — A Jeffersonville man described by prosecutors as Clark County’s most well-known drug dealer was convicted by a jury in Clark County Superior Court No. 2 on Friday of six felony drug charges.

(the story here: http://newsandtribune.com/publicsafety/x1008077855/Jury-Jeffersonville-man-guilty-of-dealing-cocaine)

GUILTY on all Counts.

But, while I could not dispute that Robert was alleged to be "the county's most well known

drug dealer" I certainly note they did not say he is the county's 'BIGGEST' drug dealer

and someone should ask 'who is that?' also, as a former criminal myself, I, J.W. Hardin, who

actually left Texas to live in Florida under an assumed name, can tell you....is it really sensible

to be that 'well known' if you are in that line of business? Would one smart enough to avoid

prison all those years be that foolish? But ... I digress.

A legend of Jeffersonville ...a LION of the

Street (and a man so very far from the real large drug trade as to almost be comical) was

felled.

He awaits his just sentence, as these words are writ, in the Michael Becher Correctional Facility.

-J.W. Hardin, Esq.