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State v. Jones

Supreme Court of Tennessee, Jackson

September 25, 2014

STATE OF TENNESSEE
v.
HENRY LEE JONES

Session April 9, 2014

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Tenn. Code Ann. ยง 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.

OPINION

GARY R. WADE, C.J.

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The defendant was indicted for two first degree murders in Shelby County. During the trial, the court allowed the jury to

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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.

OPINION

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 suspect.

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 presence;

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(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 evidence;
(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

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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 the Defendant.

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

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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 tax refund.

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. When Detective

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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 the road.

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 investigation.

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.

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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.

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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.[1] 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

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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

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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

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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" )[2] 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

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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 ...


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