September 25, 2014
STATE OF TENNESSEE
HENRY LEE JONES
Session April 9, 2014
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Tenn. Code Ann. § 39-13-206(a)(1) (2014); Judgment of
the Court of Criminal Appeals Reversed; Case Remanded to the Trial Court.
Automatic Appeal from the Court of Criminal Appeals Criminal Court for Shelby
County. No. 0306997. John P. Colton, Jr., Judge.
Judgment of the Court of Criminal Appeals Reversed;
Case Remanded to the Trial Court.
Robert L. Parris (at
trial and on appeal), and Michael E. Scholl and Jake Erwin (at trial), Memphis,
Tennessee, for the appellant, Henry Lee Jones.
Robert E. Cooper, Jr.,
Attorney General and Reporter; William E. Young, Solicitor General; Gordon W.
Smith, Associate Solicitor General; Leslie E. Price, Senior Counsel; William L.
Gibbons, District Attorney General; and Thomas D. Henderson and John Campbell,
Assistant District Attorneys General, for the appellee, State of Tennessee.
GARY R. WADE, C.J.,
delivered the opinion of the Court, in which JANICE M. HOLDER, CORNELIA A.
CLARK, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.
GARY R. WADE, C.J.
The defendant was indicted for two first degree
murders in Shelby County. During the trial, the court allowed the jury to
hear evidence of a third murder allegedly committed by the
defendant in a different state, ruling that the out-of-state murder qualified as
a " signature crime" and was relevant to the issue of identity. The defendant
was convicted as charged and received a sentence of death for each offense. In a
divided opinion, the Court of Criminal Appeals affirmed. Because the
out-of-state murder did not qualify as a signature crime and, under these
circumstances, the danger of unfair prejudice outweighed the probative value of
the evidence, the trial court erred by allowing the proof of the third murder.
Because the error does not qualify as harmless, the convictions must be reversed
and a new trial must be granted. On remand, the State may again seek the death
penalty for each offense.
I. Facts and Procedural History
On the afternoon of August 23, 2003, Margaret Coleman
stopped by to check on her sixty-six-year-old mother, Lillian James, and her
eighty-two-year-old step-father, Clarence James, at their home in Bartlett. The
front door was partially open, and there were linens, papers, and other items
strewn about the house, which was ordinarily neatly maintained. When she called
out for her mother and received no response, she dialed 911. Officers with the
Bartlett Police Department soon arrived and discovered the bodies of the victims
inside the house. Both victims had incision wounds on the neck, among other
injuries. There were also signs of strangulation. An extensive investigation led
the police to develop Henry Lee Jones (the " Defendant" ) as the primary
On October 7, 2003, the Shelby County Grand Jury
indicted the Defendant for two counts of first degree premeditated murder and
two counts of first degree felony murder. Later, the Defendant was arrested in
Florida. The State filed a notice of intent to seek the death penalty.
A. Tennessee Rule of Evidence 404(b) Hearing
On July 19, 2004, the State filed a " Notice of
Intention to Use Evidence of Proof of Other Crimes in Order to Establish
Identity." In particular, the State sought to introduce evidence that the
Defendant killed Carlos Perez in a motel room in Melbourne, Florida, four days
after the murders of Mr. and Mrs. James. While acknowledging that Tennessee Rule
of Evidence 404(b) prohibits the admission of evidence of other crimes to show
action in conformity with a character trait, the State asserted that the modus
operandi in the Perez murder and was so distinctive and so strikingly similar to
the modus operandi in the James murders that proof of the Perez murder was
admissible as evidence on the issue of identity. The State later amended its
notice, seeking to also introduce evidence that the Defendant, using a similar
modus operandi, had killed another individual, Keith Gross, in Fort Lauderdale,
Florida, on September 7, 2002, approximately one year prior to the murders of
Mr. and Mrs. James. In order to determine whether the proof surrounding the
Perez and Gross murders qualified for admission under Tennessee Rule of Evidence
404(b), the trial court conducted a pre-trial hearing. The terms of Rule 404(b)
provide context for the purpose of the hearing:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity with the
character trait. It may, however, be admissible for other purposes. The
conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury's
(2) The court must determine that a material issue exists other
than conduct conforming with a character trait and must upon request state
on the record the material issue, the ruling, and the reasons for admitting
(3) The court must find proof of the other crime, wrong, or act to
be clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
At the Rule 404(b) hearing, a proceeding which
involved five days of testimony, Tevarus Young, a witness for the State,
testified that in August of 2003 he was homeless and had spent a night at a park
in Fort Lauderdale. He recalled that when he awoke he was confronted by the
Defendant, who was driving a light-beige, four-door Dodge. According to Young,
the Defendant introduced himself as " Bambam" and offered to pay Young for oral
sex. Young agreed, got into the car, and was driven to a McDonald's Restaurant.
The Defendant then took Young on a series of errands, stopping by a woman's
residence to make a phone call, visiting two pawn shops, and driving to a
courthouse in Miami to pay some traffic tickets.
According to Young, the Defendant then drove " to
some warehouses where [Young] performed oral sex on him." Afterward, the
Defendant gave Young twenty dollars and asked him if he would like to meet some
women the Defendant knew in Daytona. Young agreed. After stopping to pick up
some clothes at the residence of Young's grandmother, the two men traveled
approximately 250 miles north to meet two otherwise unidentified women called "
Toosie" and " Tawana." The Defendant left with Toosie, and Young spent the night
with Tawana. When the Defendant and Toosie returned the next morning, they were
arguing. Although Young claimed that he wanted to stay in Daytona and start a
new life with Tawana, the Defendant convinced him to leave so they could visit
some of his relatives. Although he did not know where they were going, Young
recalled that the Defendant drove for " [m]aybe a day, a day and a half." Young
fell asleep during the latter part of the trip, and when he awoke he was alone
in the car, which was parked in front of a Burger King Restaurant in Bartlett,
Tennessee. He remembered that a Burger King employee approached the car, asked
for the Defendant, and left. Eventually, Young went inside the Burger King and
saw the same employee having a conversation with the Defendant. A different
employee brought them some food and, after their meal, the Defendant drove to a
nearby apartment complex and parked his vehicle.
Young and the Defendant got out of the car and
encountered an elderly African-American man, later identified as Mr. James, who
was sitting in his garage. The Defendant said, " Hey, Pops, how are you doing?"
Mr. James then informed the Defendant that he had just been released from the
hospital and was waiting for a man to come and mow his lawn. Young claimed that
he offered to mow the lawn for free, but that Mr. James asked only that he move
the lawnmower from the front yard to the back yard.
Young testified that when he returned to the front
yard, neither the Defendant nor Mr. James were in sight and the garage door was
closed. Young knocked on the front door, but received no answer. When he walked
inside, he saw the Defendant with a bloody rope and two bloody towels in his
hand. According to Young, the Defendant then entered one of the rooms, threw to
the floor an elderly woman, later
identified as Mrs.
James, and shouted, " [O]ld lady, do you know what time it is, do you know what
time it is[?] . . . [W]here's your purse? . . . [W]here's the money?" When, in
response, Mrs. James pointed the Defendant to another room, he tied her arms and
legs, took off her rings, and directed Young to sit in a chair by the door. As
the Defendant left the room to look for the purse, Mrs. James asked Young if
they were going to kill her. When Young answered that he thought that the
Defendant was related to her, Mrs. James explained that she did not even know
According to Young, the Defendant returned, picked up
Mrs. James, and used her body to push Young into the hallway and then into a
bedroom. Young testified that the Defendant threw Mrs. James to the floor,
placed the rope around her neck, choked her by pressing his foot into the back
of her neck, and then cut her neck with a knife, killing her. The Defendant
explained to Young that Mrs. James had seen his face.
Young stated that the Defendant then went to another
part of the house and returned with a plastic grocery bag. He led Young into a
laundry room, where Mr. James was lying, apparently dead. Mr. James' body was
surrounded by blood and his hands were tied behind his back. The Defendant
removed the ropes used to tie Mr. James' hands and placed them in the bag that
Young held. Eventually, the Defendant put the contents of Mrs. James' purse into
the bag and the two men left the house. As the Defendant drove away, he threw
several items out of the car window. The Defendant later took a billfold from
the bag, removed the cash, and threw the billfold out the window. He gave Young
approximately $1500 in cash and the rings he had taken from Mrs. James' fingers.
Young claimed that the Defendant then displayed his knife and threatened to kill
him if he told anyone of the murders. The Defendant drove to a shopping center
and bought clothes and shoes for himself and Young. As they drove away, the
Defendant instructed Young to change into his new clothes and throw his old
clothes out the window.
Young testified that the Defendant next drove to a
used car dealership in Mississippi. After talking with a salesman, the Defendant
purchased a white Lincoln Town Car. From there, the two drove back to Florida,
with the Defendant driving the Lincoln and Young following in the Dodge. Young
claimed that along the way he decided to try to escape from the Defendant or, if
necessary, " to have a car fight with him." As he was about to pass the
Defendant, however, he noticed that a police vehicle had activated its blue
lights, so he pulled over to the side of the road. Young initially gave the
officer a false name. The Defendant turned around and stopped his Lincoln behind
the officer's vehicle during the course of the stop. When the officer learned
Young's real name, he discovered an outstanding warrant for Young's arrest.
After being taken into custody, Young was questioned about the murders in
Bartlett. He first told the officers that he had remained outside while the
Defendant entered the residence of an elderly couple and killed them. On the
next day, Young " broke down and . . . told them everything that happened,"
including what he had seen inside the residence.
Margaret Coleman, the daughter of Mrs. James and the
step-daughter of Mr. James, also testified at the Rule 404(b) hearing. She
stated that Mr. James had recently retired and that Mrs. James worked the night
shift in the environmental services department at Methodist Central Hospital in
Memphis. Because she did not drive, Mrs. James typically rode a
bus to work and had one of her children drive her home at the end of her shift.
When Coleman arrived at 1:30 a.m. on Saturday, August 23, 2003, her mother was
not at the hospital, and so she assumed that her mother had found another way
home. Coleman telephoned Mrs. James at her house at that time and later in the
morning, but received no answer. At first, she suspected that Mrs. James may
have been without phone service because of a recent storm. Coleman visited Mr.
and Mrs. James' residence between 2:30 and 3:00 that afternoon. When she noticed
that the garage door was closed, the front door was open, and the inside of the
residence was in disarray, she called 911. Coleman testified that her mother
owned diamonds, gold jewelry, and several credit cards, and that Mr. James owned
a brown wallet.
Phillip Devers, an officer with the Bartlett Police
Department, testified that he was dispatched to the James residence. He found
the body of Mrs. James lying " face down in a large pool of blood, clothed only
in a pair of panties." He described her head as " almost cut completely off."
When Officer Devers looked into the laundry room, he discovered the body of Mr.
James lying on his side on the floor in a pool of blood. He did not enter the
room because he could not open the door any further without disturbing the
location of the body. Officer Devers then went outside and waited for backup.
Lieutenant Joseph Massey, also with the Bartlett
Police Department, carried out the task of diagraming the rooms of the James
residence. He observed a piece of duct tape about the size of a quarter on Mrs.
James' right shoulder and a cord under her right foot. In addition, he found
blood in and around the sink in one of the bathrooms, which suggested that the
murderer had made some attempt to clean the crime scene.
Michael Smith, the owner of a used car dealership in
Batesville, Mississippi, located about seventy miles south of Bartlett, also
testified at the Rule 404(b) hearing. He recalled that between 5:20 and 5:25
p.m. on Friday, August 22, 2003 (the day of the James murders), the Defendant,
accompanied by another man, arrived in a white Dodge Aries K-car and purchased a
white Lincoln Town Car. Smith testified that the Defendant appeared to be in a
hurry and paid in cash, which the Defendant claimed to have received through a
Carlos Reyes, a homicide detective with the Brevard
County Sheriff's Office in Florida, testified that on August 25, 2003 (three
days after the James murders), he was driving southbound on Interstate 95 near
Melbourne, Florida, in an unmarked police vehicle when he noticed a man, later
identified as Young, driving a white Dodge Aries K-car in a reckless
fashion--weaving in and out of traffic, cutting off other vehicles, and
following too closely. When the Dodge tailgated Detective Reyes, he first
flashed his blue lights as a warning, and, a few minutes later, when the Dodge
passed him at a speed in excess of the limit, he conducted a traffic stop. When
asked for his license, registration, and proof of insurance, Young admitted to
Detective Reyes that he did not have his license with him and provided a false
name. He claimed that he was following his step-father, but was unable to tell
the detective his step-father's name. A few minutes later, a white Lincoln Town
Car driven by the Defendant pulled behind the detective's vehicle. At that
point, Detective Reyes instructed the Defendant to stay in his car and called
for backup. Another officer in a marked police car arrived within two minutes.
Reyes asked the Defendant to identify
the driver of the Dodge, the Defendant responded that he was " someone he just
met through a friend." The Defendant explained that he had just purchased a
second vehicle and had paid Young to follow him to Florida in the Dodge. The
Defendant provided his license and the proper documentation for both vehicles.
When further questioned, Young identified himself and
provided his correct date of birth. Because Young had an outstanding warrant in
Broward County, Florida, for an " occupied burglary and assault," he was placed
under arrest. Detective Reyes instructed the Defendant to leave the scene and to
" come back in around twenty . . . minutes" to retrieve the Dodge. When the
Defendant did not return, Detective Reyes left the Dodge parked on the side of
Ravindra Patel, the manager of a Super 8 Motel in
Melbourne, Florida, testified at the Rule 404(b) hearing about the Perez murder.
Patel stated that he saw a mid-sized white sedan enter the motel parking lot at
1:00 p.m. on August 26, 2003 (four days after the James murders), and observed
the passenger, a white male wearing khaki shorts and a t-shirt, step out of the
car, enter the motel office, and then return to the car. Patel stated that an
African-American male exited the car and entered the motel with the other man.
Patel described the African-American male as short, skinny, and approximately
nineteen or twenty years old, wearing long pants and a button-up shirt worn open
over a t-shirt. Later, when Patel was working at the front desk, he noticed that
the white male had rented Room 217. According to Patel, on the following day, a
housekeeping employee discovered a body on the bed in Room 217. The body was
partially covered by a comforter. Patel called 911 and did not allow anyone to
enter the room until police arrived.
Johnny Lawson of the Melbourne Police Department
investigated the murder at the Super 8 Motel. Although he found no
identification on the body in Room 217, a motel clerk provided a registration
card with the name Carlos Perez and a Pennsylvania driver's license number.
Officers learned that Perez had previously lived in Florida, returned briefly to
Pennsylvania, and only a month before had moved back to Florida to live with his
father in Wilton Manors--some 150 miles south of Melbourne. According to
Detective Lawson, another officer learned that a credit card belonging to a
murder victim in Bartlett, Tennessee, had been used at a gas station located
approximately five miles from the Super 8 Motel where Perez's body was
discovered. The officers also received information that the Bartlett police were
on the lookout for a white Lincoln in connection with their murder
On the morning of September 4, 2003 (two weeks after
the James murders), Detective Lawson, accompanied by several other officers,
traveled to Perez's workplace--Dependable Temps in Fort Lauderdale--to ask his
co-workers if they knew why he had been in Melbourne on the day he died. While
there, one of the officers noticed a white 1993 Lincoln Town Car with the
personalized license plate " 69BAM." Although the officers asked several
employees about Perez, none had any new information, and so the officers left.
Detective Lawson then ran a check on the " 69BAM" tag number and discovered that
it was registered to the Defendant. When the officers returned to check the
vehicle identification number, the Lincoln was gone. Detective Lawson then
learned that the Defendant was also an employee of Dependable Temps.
By searching motor vehicle records, Detective Lawson
determined that the Defendant also owned a white 1987 Dodge Aries K-car. Records
showed that the same Dodge had been stopped three days after the James murders
on Interstate 95 in Brevard County. When Detective Lawson contacted officers
with the Brevard County Sheriff's Office, he learned that Tevarus Young had been
arrested on an outstanding warrant during the stop. Detective Lawson later spoke
with Detective Reyes, who described the actions of the Defendant during the
August 25th traffic stop. Detective Lawson then contacted the Bartlett Police
Department to relay the information he had collected. When Detective Lawson
mentioned the name of the Defendant, the Bartlett police discovered that the
Defendant had previously resided within a mile of the James residence.
Lieutenant Massey traveled to Melbourne, where he and Detective Lawson compared
the crime scenes and the time lines in their respective investigations.
On September 12, 2003, Detective Lawson and
Lieutenant Massey interviewed Young at the Broward County Detention Center.
After waiving his Fifth Amendment rights, Young talked to the officers for
several hours. Detective Lawson described Young as " congenial" during the first
part of the interview, but stated that Young later became upset to the point of
physical illness, " throwing up in the trash can, rolling on the floor,
screaming, hollering, crying, banging his hands, trying to talk but unable to
because he was crying so hard." When Detective Lawson and Lieutenant Massey
returned the next day to conduct a second interview, Young changed his story,
and, when the officers challenged the veracity of his statements, he became
upset and changed his story again.
Approximately one month after the interviews with
Young, the Defendant was indicted for the murders of Mr. and Mrs. James, a
warrant for his arrest was issued, and he was apprehended in Florida. Around the
same time, officers in Florida executed warrants to seize and search both the
Dodge and the Lincoln owned by the Defendant. After his arrest, the Defendant
waived his Fifth Amendment rights and agreed to a recorded interview by
Detective Lawson and another detective from his unit. Detective Lawson testified
as to the content of the statement. The Defendant acknowledged that he knew
Perez through his employment with Dependable Temps and that on a couple of
occasions the two had purchased cocaine together. While denying any contact with
Perez on the day he died, the Defendant admitted that he owned a white 1987
Dodge Aries K-car and a white 1993 Lincoln Town Car. According to the Defendant,
Perez had been in both cars in the past. The Defendant also admitted that he had
purchased the Lincoln in Mississippi and that Young had helped him transport the
Lincoln to Florida. The Defendant acknowledged his awareness of the stop and
arrest of Young in Brevard County. He stated that he took a bus from Fort
Lauderdale back to Melbourne to get the Dodge the day after the stop. By the
time the Defendant made his statement to the police, Detective Lawson had
already verified with Greyhound Bus Lines that the Defendant had purchased a bus
ticket two days after the Brevard County traffic stop and one day after Perez
had checked into the Super 8 Motel. Detective Lawson testified that a copy of
the ticket was found during a search of one of the Defendant's vehicles.
Dr. O'Brian Cleary Smith, the Shelby County Medical
Examiner and a witness for the State, provided medical testimony concerning the
murders of Mr. and Mrs.
James. Dr. Smith, an expert in
forensic pathology, examined the crime scene at the James residence and
performed the autopsies of Mr. and Mrs. James. His autopsy report, which listed
Mr. James' height as five feet, nine inches and his weight as 137 pounds,
indicated that Mr. James had sustained three distinct neck injuries. First, he
suffered a fracture of his cervical spine, likely caused by either compressive
forces applied to the neck or forcible flexion of the neck. Dr. Smith explained
that this type of injury may result from bending the head down in a forceful
manner, which can cause the bones of the spine to compress so tightly that they
fracture. He stated that the compression results from " pushing the head down,"
as may occur when something forcefully " cause[s] the chin to drop down on the
chest or in some instances a maneuver like a half-nelson where the [attacker's]
forearm is across the neck and the other arm is at the back of the head." He
described the second neck injury as a fracture of the hyoid bone, which is
between the base of the jaw and the top of the Adam's apple. The hyoid fracture
was caused by compressive forces applied to the front of the neck in a
left-to-right direction. As to both the cervical spine and hyoid fractures, Dr.
Smith testified that these injuries, while not fatal on their own, were
indicative of the application of " moderate to severe" forces that " can have
effects on other structures of the body that can result in strangulation." He
stated that the third category of neck wound suffered by Mr. James consisted of
" sharp force injuries," including four incisions and a single stab wound.
Dr. Smith described the incision wounds as " confluent," meaning that they may
have started in multiple distinct areas but they ran together " to create one
slightly ragged wound" on the front of the neck. The stab wound occurred on the
right front part of the neck and resulted in a punctured windpipe.
Dr. Smith further reported that Mr. James' eyes
showed signs of petechial hemorrhaging, the rupture of small blood vessels
within the " membrane that lines the inside of the eyelids and also covers the
majority of the white of the eye that one sees." He testified that petechial
hemorrhaging often occurs in cases of strangulation. The autopsy further
indicated that bindings had been used on Mr. James' extremities. In particular,
there were pressure marks on each forearm, " indicating that some type of narrow
band-like material had been applied" in a forcible manner. The left forearm had
incision wounds that demonstrated " an absence of active bleeding," meaning that
the wounds had been inflicted at the time of or after death occurred. Fragments
of a red metallic material--likely copper--were present in the incision, and the
pressure marks were consistent with the use of a metallic wire binding. Dr.
Smith found that Mr. James sustained fractures to both the left and right side
of the ribs resulting from a compressive force. He described the pattern of
bleeding around the rib injuries as indicative that they occurred while Mr.
James was still alive. Dr. Smith testified that the injuries were consistent
with the attacker standing on Mr. James' back while he lay face down on the
floor. He further noted, however, that any other method of applying compressive
force could also explain the rib fractures, especially
given that his bones were more fragile than most due to osteoporosis.
Dr. Smith also discovered a bruise on the right side
of Mr. James' tongue, which may have been caused by the tongue " being pinched
by a tooth." There was bleeding on the base of the left side of the tongue
caused by the stab wound to the neck. The autopsy also revealed " blood in the
airway," which typically occurs when a person has blood somewhere in their "
upper airway" and struggles to breathe, thereby causing the blood to go " down
the windpipe and . . . into the air sacs of the lung." Dr. Smith determined
the cause of death for Mr. James to be " multiple injuries to different areas of
the body by different mechanisms."
Dr. Smith also performed the autopsy of Mrs. James.
He found that Mrs. James, who was five feet, six inches tall and weighed 184
pounds, sustained five incisions in the neck--two confluent incisions on the
right side, which created a single wound just under an inch in depth, and three
confluent incisions on the left side, which created a wound that was three
inches deep and reached all the way to the spine. He discovered multiple
superficial incisions in the chin area and other injuries indicating that Mrs.
James had been strangled. Parallel lines of bruising on the right side of the
neck, combined with deeper bruising of the muscles underneath, suggested that
her attacker had forcibly applied a hard object to her neck. Dr. Smith found
signs of petechial hemorrhaging in the eyes and face, which, as noted, often
appear in cases of strangulation. Dr. Smith displayed photographs that showed
bleeding into the membranes of Mrs. James' eyes, caused by either the petechial
hemorrhaging or blunt trauma to the head. Mrs. James also had bruising on her
tongue, the back of her throat, and her windpipe, which indicated that " the
compressive force may have driven the tongue and the uppermost portion of the
airway back with enough force to cause bleeding of those elements."
Dr. Smith found no conclusive forensic evidence that
Mrs. James had been bound, but he did identify signs consistent with bondage.
Specifically, Dr. Smith noted bruising on the back of the right wrist that may
have been caused by a rope or other ligature, as well as incisions to the
forearm area that " may have been the result of the severance of a ligature."
The pattern of bleeding around the forearm incisions suggested that they
occurred close to the time of death. Mrs. James' ring finger on her left hand
had pressure marks indicating that she had worn two rings on that finger. There
was a small abrasion just above the pressure marks, which Dr. Smith testified
could have been caused by the forceful removal of the rings. Dr. Smith testified
that " multiple injuries" caused the death of Mrs. James.
On cross-examination, Dr. Smith testified that he had
performed " thousands" of autopsies of homicide victims in Shelby County and the
surrounding area during his career of nearly thirty years in forensic pathology.
According to Dr. Smith, a " sizable percentage" of homicides involved either a
death attributable to " multiple injuries" or a death " caused by sharp
instruments like knives." Dr. Smith stated that " throat cutting" had become
increasingly common in recent years and was not an unusual method of homicide in
2003. He further explained that in such cases, multiple incisions are typical
because, unlike surgical instruments, ordinary knives provide an inefficient
method of cutting through loose skin in order to reach the tissue underneath. He
stated that a non-surgical knife must typically " be applied in a serial fashion
to increase the depth of the injury with each subsequent cutting
action." Dr. Smith described stab wounds to the neck as " not
particularly rare" in cases where a victim's throat has been cut. In Dr. Smith's
experience, " asphyxiation by possible strangulation" was " probably a little
bit more common than throat cutting." Dr. Smith testified that bondage was not
unusual and, like throat cutting, had become more prevalent in recent years.
When asked whether the combination of bondage, throat cutting, and asphyxiation
by possible strangulation was uncommon, Dr. Smith responded, " No."
Although Mrs. James was found dressed in only her
panties, Dr. Smith testified that he found no evidence of sexual assault or
sexual deviancy. In his opinion, the crime scene was unusual only in that it was
a double homicide, the victims were found in separate parts of the residence,
and the victims appeared to be " regular folks" who lived in a well-kept home,
whereas in most " crime scenes, especially in a home, the home has been used for
illicit activities." Dr. Smith distinguished between ligature strangulation,
which involves the use of " some sort of flexible object, [such as] a wire, a
cord, [or a] rope," and " compressive force strangulation," which involves the
use of a rigid object. Dr. Smith clarified that there had been no evidence of
ligature strangulation as to either victim, but the autopsy of Mrs. James
revealed evidence of compressive force strangulation. Regarding the position of
Mrs. James' body, Dr. Smith testified that Mrs. James had been found lying face
down with a pool of blood behind her, which suggested that she had been " in a
position other than that in which she was found at the time that [her] neck
wounds were produced." Dr. Smith confirmed that it was not unusual for a victim
whose throat has been cut to be found lying face down.
On redirect examination by the State, Dr. Smith
testified that gunshot wounds were likely the most common form of homicide in
Shelby County, followed by sharp force injuries, " multiple injuries," and blunt
force trauma. Dr. Smith estimated that less than half of Shelby County homicides
involve incision wounds. A smaller percentage involve both incisions and
strangulation, and an even smaller percentage involve incisions, strangulation,
binding, and the removal of the bindings prior to discovery. On
re-cross-examination, however, Dr. Smith reiterated that the elements of the
homicides of Mr. and Mrs. James--throat cutting, strangulation, binding, and the
removal of bindings--are not unusual, and that the combination of these elements
is " [n]ot unique."
Melbourne Police Department Officer Scott Dwyer, who
investigated the crime scene at the Super 8 Motel where the body of Carlos Perez
was discovered, also testified at the Rule 404(b) hearing. He conducted a vacuum
sweep of the carpet to collect hair and fiber evidence. There was blood spatter
on the wall by the bed and on a night stand, consistent with the deep laceration
in Perez's neck. After photographing the body, Officer Dwyer used an alternative
light source to scan the bathroom floor for shoe prints. Officer Dwyer recovered
four footwear impressions from the tile floor, which were preserved and later
transferred to a crime laboratory for comparison. Officer Dwyer also recovered
twenty-seven fingerprints from the room, but none of the prints matched the
Defendant, Perez, or anyone else involved in the investigation. Officer Dwyer
testified that while searching for prints, he observed " distinctive wipe down
marks" on several surfaces in the room, indicating that someone had used a wet
cloth in an attempt to clean the area to remove any fingerprints. Officer Dwyer
also noted that the pillow
cases, towels, and
washcloths were missing from the room.
Officer Dwyer acknowledged that hairs collected from
the bed and comforter were tested for DNA, and the hairs did not match the DNA
of either Perez or the Defendant. Hair and debris collected from Perez's pubic
area were also tested and did not match the Defendant's DNA. Officer Dwyer
reported that five cigarette butts were recovered from the room and tested. Some
of the cigarette butts matched the DNA of Perez, and one of the butts tested
positive for female DNA. Officer Dwyer testified that DNA testing was also
performed on a sample retrieved from a swab of Perez's penis, and the DNA
profile from the swab was that of a female. Officer Dwyer indicated that fluid
recovered from Perez's anal cavity did not match the DNA profile of Perez or the
Defendant. Because the samples taken from Perez's genitals and anal cavity did
not match Perez's DNA, it appeared to Officer Dwyer that " some kind of sexual
activity [had taken] place." Officer Dwyer reiterated his conclusion that the
room had been wiped down, but he admitted that it was impossible to ascertain
when the wiping down occurred and that it could have resulted from motel
employees cleaning the room before Perez checked in.
Special Agent Thomas Davis with the Florida
Department of Law Enforcement (" FDLE" )
testified that on September 16, 2003, he and other agents executed a search
warrant on the Defendant's Lincoln Town Car. He supervised the search of the
vehicle, during which officers found a pair of Nike tennis shoes in the trunk.
The shoes were transferred to the custody of Emily Strickland, an FDLE crime
analyst, for shoe-print comparison.
Strickland, an expert in footwear impression
comparisons, testified that in 2003, she was assigned the task of comparing the
pair of Nike tennis shoes seized from the Defendant's Lincoln to a latent shoe
print recovered from the bathroom in the Super 8 Motel. Using standard
techniques, Strickland determined that the prints from the crime scene were made
by Nikes of the same size, shape, and " tread design" as those recovered from
the Lincoln. In addition, Strickland explained that footwear impression analysts
look for " individual characteristics," which a shoe may acquire after the
manufacturing process when something happens that gives the shoe a unique print,
such as a person damaging the sole by walking over a sharp rock or a piece of
glass. Strickland found on the Nikes two individual characteristics that matched
the latent prints from the Perez crime scene: first, both the Nikes and the
latent prints had a " cut" in the shape of a finger that matched in terms of
size and position, and, second, Strickland identified a " wear pattern" on the
edge of the left Nike, near the arch, that showed up in the print. Based on
these findings, Strickland initially concluded in her report that the prints at
the Perez crime scene " could have been made" by the Nikes recovered from the
Defendant's Lincoln. Upon further consideration, however, she believed that the
prints were " most likely" made by the Nikes.
Dr. Sajid Qaiser, the Brevard County Medical Examiner
and an expert in forensic pathology, performed the autopsy of Perez. Dr. Qaiser
observed evidence of ligature strangulation, including a ligature mark almost
completely encircling the neck, and petechial hemorrhaging in the eyes, eye
lids, and the area of the face surrounding the eyes. Dr. Qaiser also observed
seven to eight incisions on the neck, which created a wound
that was seven to twelve inches long and one to two inches deep. The neck
incisions resulted in the severance of the internal jugular vein and were
consistent with the application of a knife or a similar sharp object. Dr. Qaiser
found blood in the lungs and throughout the tracheal bronchial tree, indicating
that Perez had both aspirated and ingested blood as a result of the incisions to
his neck. Dr. Qaiser further testified that there were abrasions on one of
Perez's wrists, as well as tape residue on both wrists. The nature of the
abrasions indicated that they occurred after Perez's death, likely as a result
of the removal of the tape. Dr. Qaiser concluded that the cause of death was
ligature strangulation and incision wounds to the neck.
On cross-examination, Dr. Qaiser testified that he
observed " marks" or " furrows" on the neck, wrists, and ankles, all indicating
that the victim had been bound. The size and pattern of the marks suggested that
the attacker had used a " band-like" ligature approximately one quarter inch in
width. Dr. Qaiser testified that there was a small injury on Perez's back that
may have been a bite mark. Dr. Qaiser further testified that although the anal
opening was dilated and two fresh abrasions were present on the walls of the
anal opening, this was not necessarily indicative of non-consensual sexual
activity. In addition, Dr. Qaiser noted that the toxicology report for Perez
revealed the presence of marijuana. Dr. Qaiser further observed that although
the hyoid bone and larynx were intact, that is not unusual in cases of ligature
At the conclusion of the hearing, the trial court
issued a written order addressing the admissibility of the proposed evidence of
the Perez murder under Tennessee Rule of Evidence 404(b). The trial court first
determined that " the method of commission of the [Perez murder] establishes
such a unique modus operandi that it fairly leads to the inference that the
perpetrator of the Perez murder was the perpetrator of the James murders." The
trial court found that the murders of Perez and Mr. and Mrs. James shared the
following characteristics: (1) multiple incision wounds to the neck; (2)
strangulation; (3) the use of bindings; (4) the body being found face down; and
(5) an attempt by the perpetrator to " wipe down" or " clean" the scene after
the murder. The trial court further observed that both Mrs. James and Perez were
found nude or partially unclothed, and that " it appear[ed] that each of the
victim[s] may have known [the] attacker." The trial court acknowledged the
existence of " some differences" between the Perez murder and the James murders,
especially the fact that Perez was a " young, male victim who showed signs of
recent sexual activity," whereas the Jameses were " elderly victims" who were
not sexually assaulted. Nevertheless, the trial court found that the
similarities between the crimes outweighed " any differences in the victimology
of the offenses."
Second, the trial court concluded that the proof "
of the other crime, wrong, or act" presented by the State at the hearing
qualified as " clear and convincing." See Tenn. R. Evid. 404(b)(3). The trial
court emphasized the likely shoe print match, the fact that the Defendant and
Perez had worked together, and " additional evidence plac[ing] the [D]efendant
in the area at the time of the murder."
Third, the trial court deferred ruling as to whether
" a material issue exists other than conduct conforming with a character trait,"
such as the identity of the perpetrator, indicating that the proof at trial
would dictate the result. See Tenn. R. Evid. 404(b)(2). Nevertheless, the trial
court provided guidance by informing the parties that if the proof were to place
at issue the Defendant's identity as the perpetrator of the murders of Mr. and
Mrs. James, then the evidence that the Defendant killed Perez in a similar
fashion would be material to the issue.
Fourth, the trial court also deferred ruling as to
whether the probative value of the evidence of the Perez murder was " outweighed
by the danger of unfair prejudice." See Tenn. R. Evid. 404(b)(4). The trial
court again indicated that resolution of this issue would depend upon the proof
Finally, the trial court observed that because of the
" nearly inextricable investigative connection" between the Perez murder and the
James murders, " it may be necessary to admit at least portions of proof,
relating to the Perez murder, in order to create a complete picture for the jury
of the investigation conducted by the Bartlett authorities."
B. Guilt Phase
During the guilt phase of the trial, the State
offered testimony from many of the same witnesses who had testified at the Rule
404(b) hearing prior to trial. Detective Carlos Reyes (the detective who pulled
over and arrested Young), Margaret Coleman (the daughter of Mrs. James), and
Michael Smith (the car dealer who sold the Lincoln to the Defendant) all
provided testimony as to the investigation of the James murders that was in all
material respects consistent with their prior testimony.
During the testimony of Officer Phillip Devers (the
Bartlett police officer who first responded to the scene of the James murders
and discovered the victims), the State sought to admit photographs of the bodies
of Mr. and Mrs. James. The defense objected to both photographs on the basis
that they were overly inflammatory and prejudicial. The trial court admitted the
photographs, holding that the pictures were not inflammatory because they
depicted the bodies as they were " found immediately upon going into the area
where they were deceased." The remainder of Officer Devers' testimony was
consistent with his testimony during the Rule 404(b) hearing.
Lieutenant Joseph Massey's testimony about his first
two interviews with Tevarus Young was essentially the same as Detective Johnny
Lawson's account of the interviews. Lieutenant Massey testified that Young was "
very emotional" during the first interview, crying uncontrollably and vomiting.
While confirming that Young calmed down somewhat for the second interview,
Lieutenant Massey stated that Young continued to " cry uncontrollably at times."
Lieutenant Massey also confirmed that Young changed his story numerous times.
Lieutenant Massey acknowledged that Young repeatedly lied to the officers during
the interviews. He also conceded that James White, an individual who lived near
the James residence, had initially
been another viable
person of interest in the course of the investigation.
Detective David Neyman of the Bartlett Police
Department, who went to three different gas stations in Mississippi where Mrs.
James' stolen credit card was used, was able to view surveillance video at two
of the gas stations. Detective Neyman observed a Dodge Aries K-car in the video
from a gas station where the stolen card was used in Batesville, Mississippi,
and observed the same Dodge following a white Lincoln Town Car when leaving a
gas station where the same card was used in Madison, Mississippi. The second
video included footage of an African-American male wearing a yellow shirt
exiting and reentering the Lincoln Town Car. Detective Neyman acknowledged,
however, that the surveillance video did not include an image of the person
using the stolen card. The State introduced into evidence records showing that
Mrs. James' credit card was used to purchase gas at a Citgo station in Memphis
at 3:18 p.m. on the date of the James murders and at several gas stations in
Mississippi and Florida on the night of the murders and over the following two
Diane Armstrong, the Defendant's niece, testified
that she and her husband had previously helped get the Defendant a job at the
Burger King in Bartlett, where they both worked. She recalled that in August of
2003, the Defendant showed up unexpectedly at her house, and that a " young man"
whom she could not identify was asleep in the Defendant's car. She stated that
she informed the Defendant that her husband was at Burger King and that he could
go get breakfast there.
Wesley Armstrong, Diane's husband, testified that on
the same morning, he was returning from making a deposit when he saw the
Defendant's car parked in the lot at the Burger King where he worked. Armstrong
learned from the man inside the vehicle that the Defendant was inside the
restaurant. Armstrong described the man in the car as a " skinny," young
African-American man with " braids in his hair." Armstrong spoke briefly to the
Defendant and gave food to the Defendant and the other man, after which they
Christopher Stallion, an employee of the City of
Bartlett, testified that he frequently drove past the James residence and would
often see Mr. James sitting in his garage. Stallion recalled that on the date of
the murders, at approximately 1:00 p.m., he drove by and saw Mr. James talking
with two African-American men in front of his garage. Stallion could not provide
any further description of the men, although during the investigation he told
officers that one of the men was approximately six feet, one inch in height and
the other was slim and had a " low hair cut."
James White, a resident of Bartlett who mowed lawns
for supplemental income, testified that he often mowed the lawns for the
neighbors of Mr. and Mrs. James but had never worked for the Jameses. White, who
was initially a person of interest in the investigation of the murders,
maintained his innocence at all times. The police interviewed him and searched
his residence. When asked about his drug use, White admitted to previously using
crack cocaine but denied using it at the time of the murders.
Tevarus Young's testimony at trial was consistent
with his testimony from the Rule 404(b) hearing, although he testified to
certain additional facts. For example, when asked to recount what happened at
the James residence, Young testified that after the Defendant tied Mrs. James
and rummaged through her purse, she informed the Defendant that her son was
supposed to be coming to the house. According to Young, the Defendant responded,
[I]f he come[s] he['s] going to get the same thing
you're going to get." The Defendant then pushed her into another room and
strangled her with a rope before cutting her throat. Young further testified
that the Defendant removed the rings from Mrs. James' fingers, put them in the
plastic bag along with the contents of her purse, and later put on the bracelet
he had stolen and gave Young the rings.
As at the Rule 404(b) hearing, Young testified that
following the James murders, the Defendant purchased the Lincoln Town Car. He
added that some time after the purchase, the Defendant raped Young at a rest
area " somewhere on the interstate." According to Young, they again stopped to
see Toosie and Tawana, the Defendant left for a while with Toosie, and Young did
" a lot of drugs." When the Defendant came back, they continued on their trip
until Young was stopped and arrested in Brevard County.
On cross-examination, Young admitted that after being
pulled over by Detective Reyes, he wanted to get rid of Mrs. James' rings
because they tied him to the murder. Young denied that he kept Mrs. James' rings
as " trophies," lied to the police as part of his " game," or falsely portrayed
himself as the victim in order to avoid prosecution. He admitted, however, that
he had initially lied to the police by stating that he, the Defendant, and
Wesley Armstrong had gone to the James residence, where he waited in the car
while the Defendant and Armstrong went inside. Young ultimately admitted that
Armstrong had nothing to do with the murders. Young acknowledged that he had
been charged with facilitation of first degree murder, and that he did not have
a plea deal but hoped to receive leniency in exchange for testifying against the
Dr. O'Brian Cleary Smith's trial testimony was
consistent with his testimony at the Rule 404(b) hearing concerning the injuries
to Mr. and Mrs. James. On direct examination, the State sought to admit four
photographs of the autopsy of Mr. James and three photographs of the autopsy of
Mrs. James. The trial court admitted the photographs over the Defendant's
objection. When asked on cross-examination about the marks on Mrs. James' right
wrist, Dr. Smith acknowledged that he classified the marks as ligature marks
based " mainly on the other circumstances surrounding the scene and Mr. James's
[ligature marks]," rather than making the determination solely on the marks
themselves. Moreover, Dr. Smith testified that the only unusual aspect of the
case was the identity of the victims, not how the murders were committed. Dr.
Smith explained that murders involving a combination of techniques are something
" that you see." He further testified that the cutting of the throat took place
" relatively frequently" and was not a unique homicide method.
Following the introduction of this evidence, the
trial court addressed the Rule 404(b) issues left unresolved at the pre-trial
hearing--whether identity was at issue and whether the probative value of the
proposed evidence was outweighed by the risk of prejudice to the Defendant. The
trial court ruled that identity was a material issue at trial and that the risk
of prejudice did not outweigh the probative value of the proof in light of the
Defendant " vigorously challeng[ing]" Young's testimony and raising the issue of
other " possible suspects." Upon ruling that the evidence of the Perez murder
was admissible, the trial court instructed the jury as follows:
Jurors, the State at this time intends to present proof regarding
another crime or crimes allegedly committed by the [D]efendant other than
that which he's
on trial for, and you may not consider such evidence to prove his
disposition to commit such a crime on this case here.
This evidence may only be considered by you for the limited purpose
of determining whether it provides proof of [the D]efendant's identity, that
is, such evidence may be considered by you if it tends to establish the
[D]efendant's identity in the case on trial.
A number of witnesses then testified as to the
circumstances of the Perez murder. Ravindra Patel, Special Agent Thomas Davis of
the FDLE, and FDLE crime analyst Emily Strickland all provided testimony at
trial that was consistent with their prior testimony at the Rule 404(b) hearing.
The State sought to admit five photographs of the
Perez crime scene during the testimony of Officer Scott Dwyer (one of the
Melbourne police officers who investigated the Perez murder). The Defendant
objected to three of the photographs on the grounds that they were cumulative
and prejudicial due to their graphic nature. Although the trial court excluded
one of the three photographs, the other two were admitted. Officer Dwyer
acknowledged that the Super 8 Motel at which the murder was committed is in an
area of high crime and prostitution, and that he believed the Perez murder to be
sexual in nature. The remainder of his testimony was substantially the same as
his testimony at the Rule 404(b) hearing.
Detective Johnny Lawson (another Melbourne police
officer who investigated the Perez murder) testified that he believed the crime
scene at the Super 8 Motel had features which initially suggested that the crime
was " probably" sexual in nature. He also characterized the area where the Super
8 Motel is located as being a " high crime rate area." Detective Lawson did not
address his interviews with Young as extensively as he did during the Rule
404(b) hearing, but his trial testimony was otherwise consistent with his
Dr. Sajid Qaiser's trial testimony was essentially
identical to his testimony at the Rule 404(b) hearing. Four photographs of the
Perez autopsy were admitted as evidence, all over the Defendant's objection.
Patti Orta, a crime lab analyst for the FDLE,
identified a pair of Nike shoes, a woman's ring, a J.C. Penney bag, clothing,
and multiple cleaning products found in the searches of the Defendant's
Catherine Theisen, a forensic mitochondrial DNA
examiner for the FBI, compared pubic hair found at the Perez crime scene with
the Defendant's mitochondrial DNA, concluding that the Defendant could not be
excluded as the source of the hair found at the scene of Perez's murder. She
stated that mitochondrial DNA is not unique to a particular individual, but that
the FBI has a database to determine if a particular sample is common or rare.
Theisen determined that " [she] would not expect to see that type" in more than
.26% of the African-American population, .17% of the Caucasian population, or
.39% of the Hispanic population.
The Defendant chose not to testify. After receiving
instructions from the trial court, the jury returned verdicts of guilt for the
felony murder and the premeditated murder of both Mr. and Mrs. James.
C. Penalty Phase
During the penalty phase, the State offered victim
impact evidence from Turkessa Kenetta Helton, the granddaughter of Mrs. James
and a middle school Language Arts teacher. She testified that her family was
particularly close. She explained that all of Mrs. James' children would drive
her to and from work and often took her shopping.
further testified that she had named her daughter after Mrs. James and that she
wished Mrs. James could see her son and daughter grow up. Helton described Mr.
James as nice, generous, and family-oriented.
As mitigating evidence, the defense called Eddie
Jones, the Defendant's brother, to testify about their childhood. Jones
explained that they grew up in a very poor family in Cleveland, Mississippi,
with ten brothers and four sisters. Jones remembered that their older brothers
were " very abusive" to both him and the Defendant, hitting them with water
hoses, coat hangers, belts, and extension cords. He also recalled that when the
Defendant was approximately five years old, one of their older brothers gave a
gun to the Defendant and directed the Defendant to shoot him. The Defendant
pulled the trigger, but the gun was unloaded. Jones stated that the Defendant
had been imprisoned for fifteen to sixteen years, but, upon release, became
actively involved with their family, especially with his nieces and nephews.
Jones asked the jury for mercy.
Against the advice of his counsel, the Defendant
chose to testify. He recalled that he had a difficult childhood and described
being beaten with water hoses and belts. The Defendant stated that he never
developed a relationship with his father, but that his mother " did the best she
could." He admitted that at age eighteen he had been convicted of robbery and
served sixteen years of a thirty-year sentence. He testified that while serving
this sentence, he apologized to the victim and sought forgiveness. The Defendant
maintained his innocence of the murders of Mr. and Mrs. James. He also denied
ever sexually assaulting another person or paying Young for oral sex. The
Defendant contended that Young had fabricated his account of the murders while
he was incarcerated at the Broward County Detention Center. The Defendant
acknowledged that he and Young traveled from Florida to Tennessee and back, but
denied that they committed any crimes together. The Defendant further stated
that he previously resided within one mile of Mr. and Mrs. James' residence and
had seen them before but had never spoken with them. Although the Defendant
admitted to smoking marijuana on occasion, he testified that he was not on drugs
at the time of the murders.
The parties stipulated that the Defendant had
previously been convicted of five violent felony offenses arising out of three
incidents in Florida. On March 29, 1982, the Defendant was convicted of two
counts of battery of a law enforcement officer; on April 23, 1982, he was
convicted of aggravated battery; and on July 21, 1982, he was convicted of
robbery and kidnapping.
The trial court instructed the jury to consider the
following aggravating circumstances: (1) that the Defendant had previously been
convicted of one or more violent felonies; (2) that the murders were especially
heinous, atrocious, or cruel; (3) that the murders were committed for the
purpose of avoiding or interfering with a lawful arrest or prosecution; (4) that
the murders were knowingly committed while the Defendant had a substantial role
in committing or attempting to commit a robbery; and (5) as to Mr. James only,
that the victim of the murder was seventy years of age or older. See Tenn. Code
Ann. § 39-13-204(i)(2), (5)-(7), (14) (2014). In addition, the trial court
instructed the jury to consider the following as possible mitigating
circumstances: (1) whether the Defendant was an accomplice to the murder
committed by another and the Defendant's participation was relatively minor; (2)
any lingering doubt as to the Defendant's guilt; (3) the fact that the
would not be charged with capital murder and
would not face a possible death sentence; (4) the fact that the Defendant may
face a capital murder charge;  (5)
the Defendant's background and childhood; and (6) any other mitigating
circumstance raised by the evidence.
The jury imposed a death sentence as to each count,
having unanimously found that the State proved all of the aggravating
circumstances beyond a reasonable doubt and that the aggravating circumstances
outweighed any mitigating circumstances beyond a reasonable doubt.
D. Appellate Proceedings
On direct appeal, the Defendant challenged the
admission of the evidence of the Perez murder, the sufficiency of the evidence
to support his convictions, the admission of certain victim photographs, and the
constitutionality of Tennessee's sentencing statute for first degree murder.
State v. Jones, No. W2009-01655-CCA-R3-DD, 2013 WL 1697611, at *22 (Tenn. Crim.
App. Apr. 18, 2013). A majority of the panel of the Court of Criminal Appeals
rejected each of these claims. The panel majority also addressed the issues of
mandatory review set out in Tennessee Code Annotated section
39-13-206(c)(1)(A)-(D) (2014) and concluded that the death sentences were not
imposed in any arbitrary fashion; that the evidence supported the aggravating
circumstances found by the jury; that the evidence supported the jury's finding
that the aggravating circumstances outweighed any mitigating circumstances; and
that the death sentences were not excessive or disproportionate to the penalty
imposed in similar cases. [WL] at *50-54. The majority opinion affirmed the
convictions and the sentences of death, but, as required by law, remanded with
instructions for the trial court to merge each conviction for felony murder into
the corresponding premeditated murder conviction. [WL] at *55 (citing State v. Kiser, 284 S.W.3d 227, 234 (Tenn.
Judge Camille R. McMullen dissented, finding that the
State had " failed to show that the method used in these murders was so unique
as to constitute a signature that would give rise to the inference of identity."
Id. (McMullen, J., dissenting). Moreover, because Judge McMullen was "
unable to conclude that the erroneous admission of the [Perez] murder did not [a]ffect
the outcome of the verdict," she concluded that a new trial should be granted as
to the murders of Mr. and Mrs. James. [WL] at
The Defendant challenges the sufficiency of the
evidence and asserts that the trial court erred by allowing evidence of the
A. Sufficiency of the Evidence
The first issue is whether the evidence adequately
supports the jury's finding of guilt as to each count of first degree murder.
Our standard for reviewing the sufficiency of the evidence, both direct and
circumstantial, is limited. State v. Dorantes, 331 S.W.3d 370, 379 (Tenn.
2011). We must afford the State " the strongest legitimate view of the evidence
and all reasonable inferences that may be drawn therefrom." State v. Vasques,
221 S.W.3d 514, 521 (Tenn. 2007) (citing State v.
Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The determinative question is
whether, after reviewing the evidence in the light most favorable to the State,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S.Ct. 2781, 61 L.Ed.2d 560 (1979); see also Tenn. R. App. P. 13(e). " Because a
verdict of guilt removes the presumption of innocence and raises a presumption
of guilt, the criminal defendant bears the burden on appeal of showing that the
evidence was legally insufficient to sustain a guilty verdict." State v.
Hanson, 279 S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838
S.W.2d 185, 191 (Tenn. 1992)). Although we review de novo the application of
the law to the facts, Jordan v. Knox Cnty., 213 S.W.3d 751, 763 (Tenn. 2007)
(citing State v. Thacker, 164 S.W.3d 208, 247-48 (Tenn. 2005)), we cannot
substitute our own inferences for those drawn by the factfinders at trial,
State v. Lewter, 313 S.W.3d 745, 747-48 (Tenn. 2010).
When the only proof of a crime is the uncorroborated
testimony of one or more accomplices, the evidence is insufficient to sustain a
conviction as a matter of law. State v. Collier, 411 S.W.3d 886, 894
(Tenn. 2013) (citing State v. Little, 402 S.W.3d 202, 211-12 (Tenn.
2013)). This Court has defined the term " accomplice" to mean " one who
knowingly, voluntarily, and with common intent with the principal unites in the
commission of a crime." Id. (citing State v. Bough, 152 S.W.3d
453, 464 (Tenn. 2004); Clapp v. State, 94 Tenn. 186, 30 S.W. 214, 216
(Tenn. 1895)). The test for whether a witness qualifies as an accomplice is "
'whether the alleged accomplice could be indicted for the same offense charged
against the defendant.'" Id. (quoting Monts v. State, 379 S.W.2d
34, 43, 379 S.W.2d 34 (Tenn. 1964)). Although a defendant cannot be convicted
solely upon the uncorroborated testimony of an accomplice, " corroborative
evidence may be direct or entirely circumstantial, and it need not be adequate,
in and of itself, to support a conviction; it is sufficient to meet the
requirements of the rule if it fairly and legitimately tends to connect the
defendant with the commission of the crime charged." State v. Bane, 57
S.W.3d 411, 419 (Tenn. 2001) (quoting State v. Bigbee, 885 S.W.2d 797,
803 (Tenn. 1994)). Corroborative evidence must lead to the inferences that a
crime has been committed and that the defendant is implicated in the crime.
The Defendant asserts that " [t]here is a complete
lack of evidence to corroborate the testimony of indicted co-conspirator,
Tevarus Young, and no rational jury could find beyond a reasonable doubt that
the [Defendant] was guilty of any of the crimes upon which he was convicted."
The State contends that Young's testimony was adequately corroborated and
established the elements of each offense. The State has not challenged the
determination by the Court of Criminal Appeals that " Young's admitted
participation in the offenses was sufficient to render him an accomplice in the
murders of Mr. and Mrs. James." Jones, 2013 WL
1697611, at *44. We agree that Young's involvement qualifies him as an
accomplice. The question before us, therefore, is whether Young's testimony was
adequately corroborated by other evidence.
Wesley and Diane Armstrong of Bartlett, Tennessee,
confirmed that the Defendant visited both their residence and their place of
employment, a Burger King Restaurant, in August of 2003. The Armstrongs
testified that the Defendant was accompanied by an unknown person whom they
described as a skinny African-American male with braided hair--a description
that would closely resemble Young. The
testimony is consistent with Young's testimony as to the events leading up to
the James murders.
Christopher Stallion testified that at approximately
1:00 p.m. on the date of the murders, he saw two African-American men standing
with Mr. James near his garage. This is consistent with Young's testimony that
he and the Defendant had talked with Mr. James in front of the Jameses' garage
prior to the murders.
Young testified that just after the murder and
several times during their drive back to Florida, the Defendant used a credit
card stolen from the victims to purchase gas. The State introduced records
confirming the use of Mrs. James' card at a gas station in Memphis at 3:18 p.m.
on the date of the James murders. The State also produced documentation of
purchases made with the same credit card on the night of the murders and over
the following two days at several gas stations in Mississippi and Florida.
Surveillance video from a gas station in Batesville, Mississippi, at
approximately 8:00 p.m. on the day of the James murders, depicted a Dodge Aries
K-car matching that owned by the Defendant. Video from a gas station in Madison,
Mississippi, taken on the same date at approximately 11:00 p.m., showed an
African-American male with a yellow shirt, which is consistent with Young's
testimony that the Defendant purchased such a shirt at J.C. Penney. The Madison
video showed that the man in the yellow shirt exited and then reentered a
Lincoln Town Car, and also showed that the Lincoln, upon leaving the station,
was followed by a Dodge Aries K-car.
Michael Smith, the owner of a used car dealership in
Mississippi, confirmed Young's testimony that the Defendant paid cash for the
Lincoln Town Car shortly after the murders. Detective Carlos Reyes verified
Young's testimony that he was stopped and arrested in Brevard County, Florida,
and that the Defendant returned to the place of the stop to acknowledge his
ownership of the car driven by Young. Further, during a search of the
Defendant's Lincoln, Florida officers discovered a J.C. Penney bag and a ring,
the latter of which was later identified by Margaret Coleman as belonging to
Of further significance, the testimony of Dr. Smith,
the Shelby County Medical Examiner, corroborated Young's testimony as to both
the nature of the injuries sustained by Mr. and Mrs. James and the manner in
which they were murdered. Dr. Smith testified that both Mr. and Mrs. James
sustained incision wounds to the neck and displayed signs of strangulation and
bondage, all of which was consistent with Young's testimony. Dr. Smith also
found abrasions that were compatible with the forcible removal of rings from
Mrs. James' fingers, as Young testified the Defendant had done. Moreover, Dr.
Smith's description of the crime scene verified Young's testimony that he and
the Defendant left Mrs. James' body in one of the bedrooms and left Mr. James'
body in the laundry room.
This corroborative evidence, which confirmed Young's
testimony as to the events before, during, and after the murders of Mr. and Mrs.
James, fairly and legitimately tends to connect the Defendant with these crimes.
See Bane, 57 S.W.3d at 419. In consequence, Young's testimony was adequately
Furthermore, Young's testimony, combined with the
other evidence at trial, was sufficient for a rational trier of fact to find the
essential elements of each offense beyond a reasonable doubt. In this instance,
the offenses at issue are first degree premeditated murder and first degree
felony murder. Premeditated murder, defined as the "
premeditated and intentional killing of another," Tenn. Code Ann. §
39-13-202(a)(1) (2014), " may be established by any evidence from which a
rational trier of fact may infer that the killing was done 'after the exercise
of reflection and judgment,'" State v. Leach, 148 S.W.3d 42, 53 (Tenn.
2004) (quoting State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003)).
Felony murder is defined, in relevant part, as " [a] killing of another
committed in the perpetration of or attempt to perpetrate . . . [a] robbery."
Tenn. Code Ann. § 39-13-202(a)(2). For a felony murder conviction, " [n]o
culpable mental state is required . . . except the intent to commit" the
underlying offense, id. § 39-13-202(b), which in this instance is robbery. "
Robbery is the intentional or knowing theft of property from the person of
another by violence or by putting the person in fear." Id. § 39-13-401(a)
Young testified that he witnessed the Defendant
murder Mrs. James and observed the body of Mr. James after the Defendant had
been alone with him just moments before. The evidence established that the
Defendant used weapons, including a knife and rope, upon unarmed victims who
were particularly vulnerable because of their ages. The Defendant's method of
killing Mr. and Mrs. James--which involved binding, strangulation, and throat
cutting--was especially cruel. The Defendant explained to Young that he had
killed Mrs. James because she had seen his face. The Defendant's robbery of the
Jameses' money, credit cards, and jewelry indicates another motive for the
murders. The Defendant proceeded methodically and calmly after the murders, and
attempted to clean the crime scene before making his escape. Each of these facts
is indicative of premeditation and, taken together, they provide a basis for a
rational trier of fact to infer that the murders were committed " after the
exercise of reflection and judgment," as required by Tennessee Code Annotated
section 39-13-202(d). See Leach, 148 S.W.3d at 53-54 (noting that circumstances
which may support a finding of premeditation include the use of a deadly weapon
upon an unarmed victim, the particular cruelty of the killing, the destruction
or secretion of evidence of the killing, a defendant's calmness after the
killing, and the motive for the killing). As a result, the evidence adequately
supports the Defendant's convictions for the first degree premeditated murders
of Mr. and Mrs. James.
As to the felony murder convictions, the evidence
demonstrated that the Defendant used threats and violence to accomplish the
theft of a billfold from Mr. James and the theft of money, credit cards, and
jewelry from Mrs. James. The proof further established that Mr. and Mrs. James
died as a result of injuries sustained from the use of violence by the
Defendant. Accordingly, the evidence supports the Defendant's convictions for
the first degree felony murders of Mr. and Mrs. James during the perpetration of
B. Admissibility of the Evidence of the Perez
The second question is whether the trial court
properly admitted evidence relating
to the Perez
murder. As noted, this issue is governed by Tennessee Rule of Evidence 404(b),
which generally prohibits " [e]vidence of other crimes, wrongs, or acts . . . to
prove the character of a person in order to show action in conformity with the
character trait." The Rule, however, allows such evidence " for other purposes"
upon the following conditions:
(1) The court upon request must hold a hearing outside the jury's
(2) The court must determine that a material issue exists other than
conduct conforming with a character trait and must upon request state on the
record the material issue, the ruling, and the reasons for admitting the
(3) The court must find proof of the other crime, wrong, or act to
be clear and convincing; and
(4) The court must exclude the evidence if its probative value is
outweighed by the danger of unfair prejudice.
The comments to the Rule provide that the evidence of
other crimes, wrongs, or acts should be excluded unless relevant to an issue
other than the character of a defendant, such as identity, motive, intent, or
absence of mistake. See Tenn. R. Evid. 404, Advisory Commission cmt.; see also
Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980). In State v. Parton,
694 S.W.2d 299, 303 (Tenn. 1985), the decision upon which the Rule is based,
this Court specifically held that before the proposed evidence can be admitted,
the trial court must first find that the Defendant's connection to the other
crime, wrong, or act has been clearly and convincingly established. In 2003,
Rule 404(b) was amended to confirm the " clear and convincing" requirement
explicated in Parton. See Tenn. R. Evid. 404(b)(3) & 2003 Advisory Commission
Trial courts have been encouraged to take a "
restrictive approach of [Rule] 404(b) . . . because 'other act' evidence carries
a significant potential for unfairly influencing a jury." State v. Dotson,
254 S.W.3d 378, 387 (Tenn. 2008) (second alteration in original) (quoting
State v. Bordis, 905 S.W.2d 214, 227 (Tenn. Crim. App. 1995)) (internal
quotation marks omitted). In Old Chief v. United States, the United States
Supreme Court pointed out that " 'the risk that a jury will convict for crimes
other than those charged--or that, uncertain of guilt, it will convict anyway
because a bad person deserves punishment--creates a prejudicial effect that
outweighs ordinary relevance.'" 519 U.S. 172, 181, 117 S.Ct. 644, 136 L.Ed.2d
574 (1997) (quoting United States v. Moccia, 681 F.2d 61, 63 (1st
Cir. 1982)); see also Michelson v. United States, 335 U.S. 469, 475-76,
69 S.Ct. 213, 93 L.Ed. 168 (1948). In Dotson, this Court reaffirmed the policy
The rationale behind the general rule is that admission of other
wrongs carries with it the inherent risk of the jury convicting a defendant
of a crime based upon his or her bad character or propensity to commit a
crime, rather than the strength of the proof of guilt on the specific
charge. . . . As this Court has consistently cautioned, the jury should not
" be tempted to convict based upon a defendant's propensity to commit crimes
rather than . . . evidence relating to the charged offense."
254 S.W.3d at 387 (second alteration in original) (quoting Spicer v.
State, 12 S.W.3d 438, 448 (Tenn. 2000)).
Although appellate courts have repeatedly emphasized
a restrictive approach to Rule 404(b), the decision of a trial court to admit or
exclude evidence will not be overturned on appeal absent an abuse of discretion,
provided that the court adhered to the Rule's procedure. Kiser, 284 S.W.3d at
288 (citing State v. DuBose, 953 S.W.2d 649, 652
(Tenn. 1997)). The terms of Rule 404(b) direct the trial court
to first hold a hearing outside the presence of the jury to assess the criteria
set forth in the Rule. Tenn. R. Evid. 404(b)(1). This Court has previously
observed that a trial court may, as in this instance, conduct the required
hearing prior to trial. State v. Gilley, 173 S.W.3d 1, 6 (Tenn. 2005).
Nevertheless, because " the Rule 404(b) criteria . . . require consideration of
the evidence at trial," we have cautioned that " if pretrial evidentiary rulings
are made, they may need to be reconsidered or revised based on the evidence
presented at trial." Id.
Here, as our Court of Criminal Appeals acknowledged,
see Jones, 2013 WL 1697611, at *40, and as the
Defendant concedes, the trial court complied with the Rule 404(b) procedure by
hearing the proposed evidence prior to trial, considering each of the criteria
in light of the evidence presented at trial, and making the required findings
prior to admitting the evidence. Abuse of discretion is, therefore, our standard
of review. " 'A court abuses its discretion when it applies an incorrect legal
standard or its decision is illogical or unreasonable, is based on a clearly
erroneous assessment of the evidence, or utilizes reasoning that results in an
injustice to the complaining party.'" State v. Adams, 405 S.W.3d 641, 660
(Tenn. 2013) (quoting Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012)).
1. Existence of a Material Issue
The first criterion under Rule 404(b) is whether " a
material issue exists other than conduct conforming with a character trait."
Tenn. R. Evid. 404(b)(2). " [E]vidence that the defendant committed another
crime is admissible only if the ground for relevance" --in this instance, the
identity of the perpetrator--" is actually being contested in the case on
trial." Bunch, 605 S.W.2d at 230. If a defendant's identity is conclusively
established by other proof at trial, then identity is no longer at issue and the
evidence of the other crime should not be admitted. White v. State, 533
S.W.2d 735, 739 (Tenn. Crim. App. 1975) (quoting Warren v. State, 178
Tenn. 157, 156 S.W.2d 416, 418 (Tenn. 1941)).
Here, the trial court waited until it had heard the
majority of the evidence pertaining to the investigation of the James murders
before ruling that identity was a material issue because the Defendant had "
vigorously challenged" Young's testimony that the Defendant committed the
murders and had raised the issue of other " possible suspects." The Court of
Criminal Appeals affirmed this determination. Jones, 2013 WL 1697611, at *41. The Defendant concedes that identity was a
material issue at trial. We agree. By challenging the proof that he murdered Mr.
and Mrs. James and by attempting to shift the blame to others, most notably
Young, the Defendant placed identity at issue. Moreover, the evidence did not
establish the Defendant's identity so conclusively as to eliminate the issue as
a jury question. See White, 533 S.W.2d at 739.
2. Clear and Convincing Proof of the Other Crime
The second criterion under Rule 404(b) is whether
the Defendant's commission of the other crime was established by clear and
convincing evidence. See Tenn. R. Evid. 404(b)(3). The Defendant contends that
the evidence established only that: (1) the Defendant knew Perez; (2) the
Defendant was in the vicinity of Perez at the time of his death; and (3) Perez
checked into the Super 8 Motel accompanied by a skinny, African-American male.
Thus, he claims that the State failed to present
and convincing evidence that he committed the Perez murder. We disagree.
To meet the clear and convincing standard, the trial
court must determine that the evidence offered to show the defendant's
involvement in the other crime is not " 'vague and uncertain.'" State v.
Fisher, 670 S.W.2d 232, 236 (Tenn. Crim. App. 1983) (quoting Wrather v.
State, 179 Tenn. 666, 169 S.W.2d 854, 858 (Tenn. 1943)). The clear and
convincing evidence standard is more exacting than preponderance of the evidence
but less exacting than beyond a reasonable doubt, and it requires that " 'there
[be] no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.'" State v. Kennedy, 152 S.W.3d 16, 18 (Tenn.
Crim. App. 2004) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901
n.3 (Tenn. 1992)); see also Little, 402 S.W.3d at 214 n.7 (observing that
" Tennessee is different from most state and federal jurisdictions that evaluate
the admissibility of prior crime evidence by a preponderance of the evidence
standard" ). The burden is on the State to establish by clear and convincing
evidence that: (1) another crime was committed; and (2) the crime was committed
by the defendant. White, 533 S.W.2d at 743 (quoting Wrather, 169
S.W.2d at 858). " Only thus can identification, or other proof of guilt, of the
accused in the pending case be aided by evidence of the [other] crime." Id.
(quoting Wrather, 169 S.W.2d at 858).
As indicated, a criminal offense may be established
exclusively by circumstantial evidence. Dorantes, 331 S.W.3d at 379. This
principle also applies in the context of determining whether another crime has
been established by clear and convincing evidence. Accordingly, we may not
substitute our own inferences for those drawn by the trial court, which acted as
the finder of fact in determining whether the proof of the Perez murder was
clear and convincing. See id. ( " On appeal, the court may not substitute
its inferences for those drawn by the trier of fact in circumstantial evidence
cases." ); see also State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006)
(noting that " the weight to be given to circumstantial evidence, . . . '[t]he
inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are
questions primarily for the [finder of fact]'" (second alteration in original)
(quoting Marable v. State, 203 Tenn. 440, 313 S.W.2d 451, 457 (Tenn.
At the Rule 404(b) hearing, the State presented
significant evidence placing the Defendant in both temporal and physical
proximity of the Perez murder. Detective Reyes testified that on August 25,
2003, he initiated a traffic stop near Melbourne, Florida, of a Dodge Aries
K-car driven by Young. During the stop, the Defendant pulled behind the
detective's vehicle in his Lincoln and acknowledged that he owned the Dodge.
Because Young was subsequently arrested, the Dodge was left parked on the side
of the interstate, approximately five miles from the Super 8 Motel, and the
Defendant was instructed to later retrieve the vehicle. Perez was last seen
alive the following day at approximately 1:00 p.m. when Patel, the manager of
the Super 8 Motel, observed Perez exit a white, mid-sized sedan--a description
matching both of the Defendant's vehicles--and enter the motel office.
Thereafter, Perez returned to the vehicle and an African-American male
accompanied him into the motel. Perez's body was discovered the next day.
Notably, the Defendant admitted that he had worked
with Perez, that they had associated with each other outside of work, and that
Perez had been in both the Defendant's Dodge and his recently purchased
Lincoln. Most importantly, a Nike shoe print matching the size,
shape, and tread design of a shoe recovered from the Defendant's Lincoln was
lifted from the motel room's bathroom. FDLE crime analyst Emily Strickland, a
footprint impression expert, testified that two unique individual
characteristics on the shoe matched the latent prints from the Perez crime
scene, indicating a high probability that the footprint impression from the
motel room was made by the Defendant's shoe.
Based on this proof, we conclude that the trial court
did not abuse its discretion by determining that the evidence of the Perez
murder was clear and convincing. The evidence, while circumstantial, was neither
vague nor uncertain, see Fisher, 670 S.W.2d at 236, and it provided a sufficient
basis for the trial court to conclude, free from serious or substantial doubt,
see Kennedy, 152 S.W.3d at 18, that the Defendant murdered Perez.
3. Probative Value Versus Danger of Unfair
The third and final criterion for the trial court to
consider during a Rule 404(b) hearing is the probative value of the other crime
evidence versus the danger of unfair prejudice that accompanies the admission of
such evidence. State v. Sexton, 368 S.W.3d 371, 405 (Tenn. 2012). This
balancing test, under the plain language of the Rule, requires that evidence of
another crime be excluded if the danger of unfair prejudice " outweigh[s]" the
probative value. Tenn. R. Evid. 404(b)(4); cf. Tenn. R. Evid. 403 (allowing the
admission of relevant evidence so long as the danger of unfair prejudice does
not " substantially outweigh" the probative value of the evidence). " Th[is]
restrictive approach of Rule 404(b) recognizes that evidence of other crimes,
wrongs[,] or acts carries a significant danger of unfair prejudice." DuBose,
953 S.W.2d at 654. The term " unfair prejudice" has been defined as " '[a]n
undue tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one.'" Id. (alteration in original) (quoting
State v. Banks, 564 S.W.2d 947, 951 (Tenn. 1978)). When the other crime is
similar to the charged offense in the pending case, the danger of unfair
prejudice is especially prevalent, increasing the likelihood that " '[the] jury
would convict on the perception of a past pattern of conduct, instead of on the
facts of the charged offense.'" State v. Mallard, 40 S.W.3d 473, 488
(Tenn. 2001) (quoting Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App.
The trial court must weigh these concerns of unfair
prejudice against any probative value of the proffered evidence, which will
depend upon the actual need for the evidence in light of the issues
at trial and the other evidence available to the State. State v.
Burchfield, 664 S.W.2d 284, 287 (Tenn. 1984) (quoting Shockley v. State,
585 S.W.2d 645, 653 (Tenn. Crim. App. 1978)). Where, as here, the material issue
at trial is the identity of the defendant,
[t]he probative value of evidence of other crimes . . . depends upon
the extent to which it raises an inference that the perpetrator of the prior
offenses was the perpetrator of the offense in issue. Both the existence and
the strength of an inference proceeds through an evaluation of the
similarities between the prior offense and the charged crime. Thus, if the
characteristics of both the prior offense and the charged offense are not in
any way distinctive, but are similar to numerous other crimes committed by
persons other than the defendant, no inference of identity can arise. An
inference of identity from prior crimes can only arise when the elements of
the prior offense and the charged offense, singly or together, are
sufficiently distinctive to warrant an inference that the person who
committed the prior offense also committed the offense on trial. . . . The
probative value of evidence of other crimes on the issue of identity always
depends upon the strength of the inference; when the inference of identity
is weak, evidence of prior crimes should be excluded because under such
circumstances the prejudicial effect of the evidence inevitably outweighs
the probative value of that evidence.
Bunch, 605 S.W.2d at 230 (fourth alteration in original) (emphasis
added) (quoting United States v. Powell, 587 F.2d 443, 448 (9th
Although the evidence of the other crime need not be
identical to the evidence of the charged offense, for other crime evidence to
have probative value it must bear a sufficient connection to the issue of
identity so as to establish the defendant's commission of " signature crimes."
To meet this threshold, the similarities of the crimes must do more than simply
outweigh their differences--there must be a " 'highly distinctive common mark'"
between the crimes. Id. at 231 (quoting People v. Cavanaugh, 69
Cal.2d 262, 70 Cal.Rptr. 438, 444 P.2d 110, 117 (Cal. 1968)); see also State
v. Moore, 6 S.W.3d 235, 240 (Tenn. 1999) (" Before multiple offenses may be
said to reveal a distinctive design, and therefore give rise to an inference of
identity, the 'modus operandi employed must be so unique and distinctive as to
be like a signature.'" (quoting State v. Carter, 714 S.W.2d 241, 245
(Tenn. 1986))). The test, therefore, is not whether the evidence demonstrates
that the defendant committed both crimes, but whether the defendant used a
peculiar and distinctive method in committing the crimes. See Young v.
State, 566 S.W.2d 895, 897 (Tenn. Crim. App. 1978). For example, in
Harris v. State, this Court recognized that
a particular strat[a]gem or method [may have] such unusual
particularities that reasonable men can consider that it would not likely be
employed by different persons. Many men commit murder, but Jack the Ripper
used his knife in a manner so peculiar that when his crimes were viewed
together there could be little doubt that they were committed by the same
man. Merely the fact, however, that a series of such crimes may be committed
with a knife will not render them unusual enough to identify the perpetrator
of one as the perpetrator of the others.
189 Tenn. 635, 227 S.W.2d 8, 11 (Tenn. 1950) (citation omitted).
Thus, the focus of our inquiry is whether the trial
court erred when it determined that the probative value of the evidence of the
Perez murder outweighed the danger of unfair prejudice because the details of
the crime were sufficiently distinctive to raise an inference that the Defendant
committed the James murders. The State contends, and the trial court found, that
strangulation, binding of the victims, removal of the bindings, multiple
incisions to the throat, removal of clothes from some of the victims, placement
of the bodies face down, and cleaning of the scene after the crime, in
combination, constitute a signature crime. Because this finding would require us
to ignore numerous differences between the murders as well as the expert
forensic testimony offered by the State, it is our assessment based upon our
extensive review of prior decisions of this Court over a number of years, that
the trial court's ruling was " based on a clearly erroneous assessment of the
evidence." See Adams, 405 S.W.3d at 660. We hold, therefore, that the
trial court abused its discretion by admitting the evidence of the Perez murder.
Although the trial court acknowledged that there were
some differences between the Perez and James murders, it found that the
similarities were distinct enough to establish that the same person committed
both crimes. The trial court pointed to the testimony of Dr. O'Brian Cleary
Smith as compelling such a conclusion:
Dr. Smith, the former [M]edical [E]xaminer for Shelby County,
testified that death as a result of knife wounds comprise[s] a minority of
homicides and even fewer cases have both incised wounds to the neck and
strangulation. Dr. Smith further stated that fewer still have incised wounds
to the neck; strangulation; binding; and removal of binding prior to
discovery of the body. He stated that taking these circumstances in
connection with the fact that the victims were found lying face down; the
crime scene appear[ed] to be " cleaned up" [; ] and the victims were robbed
by someone known to them, made the number of similar cases shrink even
Unfortunately, however, the record demonstrates that
the trial court misconstrued portions of the evidence and neglected to accord
appropriate weight to the significant differences between the Perez murder and
the James murders. As Judge McMullen observed in her dissenting opinion:
The charged offense, the [James] murders, occurred in a suburban
home and involved two elderly victims. It was perpetrated by two
individuals[--]an accomplice, Young, and the Defendant. The uncharged
offense, the [Perez] murder, occurred at a motel located in a high crime
area and involved a young male victim and an unidentified female. The
[Perez] murder also involved evidence of a sexual assault, while the [James]
murders did not.
Specifically, the [Shelby County] [M]edical [E]xaminer testified
that both of the victims in the instant case died as a result of multiple
injuries. Mr. James suffered incised wounds to the neck, a stab wound to his
neck, a broken hyoid bone, blunt force injuries to his chest, fractured
parts of the front neck bone, and rib fractures. There was also evidence
suggesting that (1) his wounds were inflicted after he was killed, (2)
possible strangulation, and (3) ligatures or bindings on his extremities.
Mr. James's body was found " in repose on his right side." In regard to Ms.
James, the medical examiner testified that she suffered multiple incised
wounds to the neck, incised wounds to forearms, and possible strangulation.
the linear marks on her neck were caused by manual or ligature
strangulation, the medical examiner said, " it may [have been] some hard
object that was used around the neck, an object could be held against the
neck with enough force to compress the neck and leave the marks on the
neck." However, other than a " cut," he found no evidence of bondage, and
her hyoid bone was intact. Although Ms. James's body was found face down,
the medical examiner opined that her body had been moved " in a position
other than that in which she was found at the time that the neck wounds were
Jones, 2013 WL 1697611, at *57
(McMullen, J., dissenting).
Moreover, the applicable standard focuses on the
distinctiveness of the crimes, not a mere assessment of similarities or an
existence of rarity. State v. Roberson, 846 S.W.2d 278, 280 (Tenn. Crim.
App. 1992) ( " [M]ere similarity in the manner in which two crimes are committed
does not produce the relevance necessary for admission--uniqueness does."
(emphasis added)). During the Rule 404(b) hearing, Dr. Smith unequivocally
rejected all indications that the methodology of the murders was unique or
distinctive. Specifically, on cross-examination, he testified as follows:
Q: So, death by slashing the throat has become not unusual. Correct?
A: That's correct.
Q: What about asphyxiation by possible strangulation. Is that
A: No, sir. That's probably a little bit more common than throat
Q: What about the two of those combined. Is that unusual?
Q: Bondage. . . . Is bondage unusual?
. . . .
Q: What about the three of those combined. Is that unusual?
. . . .
Q: So [the bindings on Mr. James] had been removed?
A: Yes, sir.
Q: Is that unusual?
Defense counsel then questioned Dr. Smith about the
multiple lacerations to the neck:
Q: . . . Is there anything unusual at first glance to these--in the
autopsy as far as the incised wounds, anything out of the ordinary that you
would see in this sort of homicide?
Q: Was there an efficiency to the incised wounds in any way that
would indicate any sort of training or technique?
. . . .
Q: So four strokes across the same part of [Mr. James'] neck in
A: Yes, sir.
Q: But that's not unusual?
Q: Okay. Can you explain?
A: Well, in the absence of a surgical instrument, cutting or
incising the skin with a knife is very inefficient. . . . And when the
cutting edge is applied to the skin surface and then dragged across, the
skin is going to move and you lose the power of the knife so that it's more
common than not to see a--an incised wound may first open up the skin and
then as the knife is reapplied in a slightly different area, it goes into
the--cuts its way into the already open area from the first or prior
incision, and then once it gains access to the deeper tissues, it cuts with
more efficiency. . . . To find a
single application of a knife in a throat cutting incident would be
Although Dr. Smith conceded that the number of
murders involving incisions, bondage, strangulation, bindings removed, and
cleaning of the crime scene constituted a minority of all of the murders in
Shelby County, he explained that there was nothing unusual about the methods
employed--even in combination. Moreover, as Judge McMullen pointed out in her
dissent, not all of the victims were found lying face down, as the trial court
Our prior case law includes numerous decisions which,
as in this instance, involved offenses with similarities that did not rise to
the level of a signature crime. For example, in Harris, 227 S.W.2d at 9,
the defendant was charged with rape, and the trial court admitted evidence that
he had committed another rape one week earlier. This Court noted multiple
similarities in the two offenses, including their temporal proximity, the fact
that both crimes were rapes committed by forcible coercion, and the use of a
knife in both instances. Id. at 11. Nevertheless, because there were also
significant differences--including the nature of the sexual acts committed and
the location of the crimes--the Court held that the " methods pursued were not
so peculiar as to" justify admission of the other crime evidence on the issue of
identity. Id. Similarly, in State v. Toliver, 117 S.W.3d 216, 227
(Tenn. 2003), the Court analyzed whether separate incidents of aggravated child
abuse shared a similar modus operandi such that they qualified as signature
crimes. Again, the Court 7
observed numerous similarities between the two crimes: both involved the same
victim (the defendant's step-son), both involved the defendant striking the
victim on the buttocks with a braided extension cord, and both arose from the
victim receiving poor grades. Id. at 229. Despite these similarities, the
Court highlighted the differences in the methods employed to commit the crimes,
which included the fact that in one instance the extension cord had been braided
with wire and wrapped with duct tape, whereas in the other instance the victim
had been required to lean over a barrel and the defendant had wrapped the
extension cord around the victim's neck, jerking him around the room. Id.
at 229-30. Because the method employed did not " have 'such unusual
particularities that reasonable men can conclude that it would not likely be
employed by different persons,'" the Court concluded that " the method employed
in committing the offenses [did] not constitute a modus operandi so unique and
distinctive as to be comparable to a signature." Id. at 229 (quoting
State v. Shirley, 6 S.W.3d 243, 248 (Tenn. 1999)); see also State v. Bobo,
724 S.W.2d 760, 764 (Tenn. Crim. App. 1981) (excluding evidence of a prior armed
robbery because, although sharing many characteristics with the armed robbery
charged, there was " nothing unique about any of" the similarities, which
included the robber using a pistol, being unmasked, wearing a coat and a hat,
and targeting a Winn-Dixie grocery store); Young v. State, 566
S.W.2d 895, 899 (Tenn. Crim. App. 1978) (" The test is not whether there was
evidence that a defendant committed both crimes, but whether there was a unique
method used in committing the crimes. It is not enough that the appellant was
wearing the same clothing during the commission of the two crimes, unless
in some way, his clothing was a part of the modus operandi." ).
In contrast, our cases allowing other crime evidence
under a signature crime theory demonstrate the type of unique modus operandi
that is lacking in this instance. In Warren, 156 S.W.2d at 419, a robbery
case, this Court affirmed the trial court's admission of evidence of another
robbery with several striking similarities. In particular, the two robberies
occurred within a few nights of one another at the same place and time of night,
and in each instance the victims " were robbed by a man dressed in a black cap
and overalls, with his face smeared with dark grease or paint, carrying a pistol
in one hand and a flash light in the other, who had an impediment in his
speech." Id. at 417. In State v. Wooden, 658 S.W.2d 553, 557-58
(Tenn. Crim. App. 1983), abrogated on other grounds by State v. Dyle, 899
S.W.2d 607, 612 (Tenn. 1995), our Court of Criminal Appeals found the signature
crime standard satisfied as to two sex offenses with the following similarities:
each victim was a young, white female living alone in an apartment; the attacker
covered the head of each victim or forced her to turn around so that she could
not see him; the attacker forced each victim to submit to cunnilingus and then
vaginal intercourse; and the attacker demanded that each victim rub his nipples
as he performed vaginal intercourse.
As these authorities demonstrate, while there are
similarities between the Perez murder and the James murders, those similarities
fail to establish a modus operandi that is comparable to a signature. The trial
court erred, therefore, by determining that the evidence of the Perez murder was
so distinctive that it raised an inference that the Defendant committed the
In light of our conclusion that the State failed to
establish the Perez murder as a signature crime that could be used to prove the
Defendant's identity in the James murders, the admission of the evidence
regarding the Perez murder was profoundly prejudicial. By allowing the evidence
of the Perez murder, a crime for which the Defendant had not been charged, the
trial court created an opportunity for the jury to infer that the Defendant
committed the uncharged murder and, therefore, must have committed the murders
for which he was on trial. See Dotson, 254 S.W.3d at 387 ( " When the
defendant's prior bad acts are similar to the crime for which the defendant is
on trial, the risk of unfair prejudice is even higher. As this Court has
consistently cautioned, the jury should not 'be tempted to convict based upon a
defendant's propensity to commit crimes rather than . . . evidence relating to
the charged offense.'" (alteration in original) (quoting Spicer, 12
S.W.3d at 448)). Although the trial court
limiting instruction to the jury, a substantial amount of evidence was presented
regarding the Perez murder. The presentation of the evidence lasted two days and
included inherently prejudicial testimony about a sexual encounter at the Perez
crime scene, which was absent from the James murders. In the absence of
sufficiently distinctive characteristics amounting to a signature crime, the
danger of unfair prejudice created by the detailed evidence of the Perez murder
clearly outweighed any probative value.
C. Harmless Error
Because the evidentiary error here is neither
structural nor constitutional, our harmless error analysis is governed by
Tennessee Rule of Appellate Procedure 36(b), which provides that " [a] final
judgment from which relief is available and otherwise appropriate shall not be
set aside unless, considering the whole record, error involving a substantial
right more probably than not affected the judgment or would result in prejudice
to the judicial process." This standard " 'recognizes that . . . a person
convicted of a crime as a result of an essentially fair trial is not entitled to
have his or her conviction reversed based on errors that, more probably than
not, did not affect the verdict or judgment.'" Sexton, 368 S.W.3d at 429
(quoting State v. Ferrell, 277 S.W.3d 372, 380 (Tenn. 2009)). Our
harmless error analysis " does not turn upon the existence of sufficient
evidence to affirm a conviction or even a belief that the jury's verdict is
correct. To the contrary, the crucial consideration is what impact the error may
reasonably be taken to have had on the jury's decision-making." State v.
Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (citations omitted).
The evidence connecting the Defendant to the James
murders consisted primarily of the testimony of Young, an accomplice to the
murders. No other witness testified as to the Defendant's presence at the crime
scene. No forensic evidence tied him to the James murders. Therefore, the
evidence of the James murders, although sufficient to support the convictions,
is not so overwhelming as to preclude the grant of a new trial. Moreover, as
stated previously, the improperly admitted evidence of the Perez murder was
extensive. Hardly any evidence in a murder trial could be more prejudicial than
evidence that the Defendant committed another murder. In consequence, we are
constrained to hold that the erroneous admission of the evidence surrounding the
Perez murder more probably than not affected the outcome of the trial. We must,
therefore, reverse the convictions and remand for a new trial.
D. Evidence of Perez Murder as Contextual
In addition to allowing the evidence of the Perez
murder as proof of the Defendant's identity, the trial court observed the "
nearly inextricable investigative connection" between the Perez murder and the
James murders, indicating that " it may be necessary to admit at least portions
of proof, relating to the Perez murder, in order to create a complete picture
for the jury of the investigation conducted by the Bartlett authorities."
Because this issue is likely to recur on remand, we will briefly address the use
of contextual background evidence that involves other crimes, wrongs, or acts.
As discussed, Tennessee Rule of Evidence 404(b)
prohibits the use of other crime evidence " to prove the character of a person
in order to show action in conformity with the character trait," although such
evidence " may . . . be admissible for other purposes." This Court has held that
of the " other purposes" for which evidence of
another crime may be admitted is to provide " contextual background." State
v. Gilliland, 22 S.W.3d 266, 272 (Tenn. 2000). Not all background evidence,
however, will be admissible, and trial courts must strike a careful balance
between evidence that will provide context for the jury and evidence that will
only tend to show a defendant's propensity to commit crimes. Id. Thus,
within the framework of Rule 404(b), the proper analysis is as follows:
[W]hen the [S]tate seeks to offer evidence of other crimes, wrongs,
or acts that is relevant only to provide a contextual background for the
case, the [S]tate must establish, and the trial court must find, that (1)
the absence of the evidence would create a chronological or conceptual void
in the [S]tate's presentation of its case; (2) the void created by the
absence of the evidence would likely result in significant jury confusion as
to the material issues or evidence in the case; and (3) the probative value
of the evidence is not outweighed by the danger of unfair prejudice.
We acknowledge that there exists significant overlap
between the investigations into the Perez and James murders, including crucial
breakthroughs in the James murders during the investigation into the Perez
murder. The various law enforcement agencies in Florida and Tennessee worked
closely to establish the time lines and certain details of both cases. For that
reason, as the trial court observed, it may become necessary to admit at least
some portions of the evidence relating to the investigation of the Perez murder
in order to alleviate potential confusion caused by a chronological or
conceptual void in the explanation of the James murders. We caution the trial
court, however, that if such evidence is offered by the State to provide
contextual background, the evidence must be carefully scrutinized to ensure that
the admissibility requirements of Rule 404(b) and Gilliland are met. The use of
limiting instructions to the jury would also be appropriate in this situation.
See id. at 273 (" [M]ultiple limiting instructions to the jury from the
trial court worked to alleviate the prejudicial effect of the [contextual
background] evidence, and we also presume that juries follow the instructions
given to them by the trial court." ). It is the responsibility of the Defendant,
however, to request the appropriate limiting instructions. See Little,
402 S.W.3d at 210.
E. Mandatory Death Sentence Review
By statute, appellate review of a sentence of death
has " priority over all other cases" and requires determinations as to whether:
(A) The sentence of death was imposed in any arbitrary fashion;
(B) The evidence supports the jury's finding of statutory
aggravating circumstance or circumstances;
(C) The evidence supports the jury's finding that the aggravating
circumstance or circumstances outweigh any mitigating circumstances; and
(D) The sentence of death is excessive or disproportionate to the
penalty imposed in similar cases, considering both the nature of the crime
and the defendant.
Tenn. Code Ann. § 39-13-206(c)(1).
As indicated, the erroneous admission of the evidence
relating to the Perez murder requires a new trial in this case. Accordingly, we
will not evaluate the arbitrariness of the Defendant's death sentence, the
sufficiency of the evidence supporting the aggravating circumstances, whether
the aggravating circumstances outweighed the mitigating circumstances, or
whether the Defendant's sentence of death was disproportionate
to the same penalty imposed in other cases. Cf. Sexton, 368 S.W.3d at 428-29.
Our ruling does not preclude the State from seeking the death penalty on remand.
See Smith v. State, 357 S.W.3d 322, 328 (Tenn. 2011).
The trial court committed prejudicial error by
admitting the evidence of the Perez murder. The convictions are reversed, and
the case is remanded to the trial court for additional proceedings consistent
with this opinion. Costs of this appeal are taxed to the State of Tennessee.