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State v. Jones

Court of Criminal Appeals of Tennessee, Jackson

September 18, 2017

STATE OF TENNESSEE
v.
HENRY LEE JONES

          Session: May 2, 2017

         Appeal from the Criminal Court for Shelby County No. 03-06997 W. Mark Ward, Judge

         Defendant, Henry Lee Jones, was convicted of two counts of premeditated first degree murder and two counts of felony murder for his role in the 2003 murders of two Shelby County citizens. The jury sentenced Defendant to death for each murder. Defendant now appeals from these convictions and sentences. Defendant argues that the trial court erred by allowing Defendant to represent himself and committed other errors with regard to the provision of elbow counsel; the trial court erred by declaring a witness unavailable and allowing testimony from that witness regarding a prior bad act; the trial court erred by admitting photographs of the victims' bodies and wounds; the State utilized improper closing argument; the evidence was insufficient to support the convictions; the trial court erred in denying Defendant a mitigation expert or investigator in preparation for sentencing; and the death sentence is arbitrary and disproportionate. After a thorough review of the record and the applicable law, we affirm Defendant's convictions and sentences of death.

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

          James E. Thomas (on appeal) and James M. Gulley (elbow counsel at trial), Memphis, Tennessee, for the appellant, Henry Lee Jones.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie R. Price, Assistant Attorney General; Amy Weirich, District Attorney General; Tom Henderson and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.

          Timothy L. Easter, J., delivered the opinion of the court, in which Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.

          OPINION

          TIMOTHY L. EASTER, JUDGE

         PRE-TRIAL PROCEEDINGS

         Defendant was previously tried and convicted of two counts of premeditated first degree murder and two counts of felony murder and subsequently sentenced to death by a Shelby County Jury for the deaths of Clarence and Lillian James. The convictions and sentences were affirmed by this Court on direct appeal. State v. Henry Lee Jones, No. W2009-01655-CCA-R3-DD, 2013 WL 1697611, at *1 (Tenn. Crim. App. Apr. 18, 2013). However, the Tennessee Supreme Court ordered that the convictions and sentences be set aside and the matter remanded to the Criminal Court of Shelby County for a new trial because the court determined that admission of evidence that Defendant committed an out-of-state murder was reversible error. State v. Jones, 450 S.W.3d 866 (Tenn. 2014).

         On remand, pursuant to Rule 13 of the Tennessee Supreme Court Rules, Defendant was appointed two attorneys. Shortly after appointment of counsel, Defendant became dissatisfied with his attorneys and filed a "Pro Se Motion to Withdraw/Waive Court Appointed Attorneys." After a court appearance on this motion, which included questioning of Defendant, the trial court entered an order granting Defendant the relief he sought and releasing the attorneys appointed to represent him. At every subsequent court appearance, the trial court repeatedly informed Defendant of his right to representation and asked Defendant to accept court-appointed counsel. Defendant persistently declined representation. As the matter proceeded to trial, Defendant repeatedly complained about discovery issues, so the trial court quite astutely arranged for a meeting in the courtroom to allow Defendant to see and review every item of discoverable material from the State. The meeting was set for April 2, 2015, but Defendant refused to participate and instead filed a pro se motion to waive his appearance on April 2, 2015. After appearing in the trial court, Defendant refused to look at the discovery material provided and was once again admonished by the trial court to accept counsel. Defendant continued to refuse counsel and refused to view the discovery items available to him. The case proceeded to trial where Defendant represented himself and had access to elbow counsel for assistance.

         GUILT PHASE

         Margaret Coleman was the daughter of the sixty-eight-year-old victim, Lillian James. In 2003, Mrs. James typically rode the bus to work at Methodist University Hospital. Ms. Coleman and her brother often picked Mrs. James up from work and drove her to the home in Bartlett that she shared with her eighty-one-year-old husband, the second victim, Clarence James.

         On the night of August 22, 2003, Ms. Coleman arrived at her mother's place of work to drive her home but was informed that Mrs. James did not come in to work that day. When Ms. Coleman attempted to contact her mother and was unable to reach her, she drove to her mother's home to check on her and Mr. James. When she arrived, the front door was partially open, and there were linens, papers, and other items strewn about the house, which was ordinarily neatly maintained. Ms. Coleman called out for her mother and received no response, so she dialed 911 and waited outside until police arrived.

         Officer Phillip Devers of the Bartlett Police Department was the first officer to respond to the scene. Ms. Coleman met him in the driveway. She was "distraught, " and informed Officer Devers that both her mother and Mr. James should be in the house. Officer Devers entered through the front door, initially thinking that "this was probably the neatest[, ] cleanest house [he] had ever been in." When he looked to his left, he could see down the hallway where he observed parts of the residence in disarray. Specifically, he saw an open linen closet with the linens spilling out of the closet onto the floor. In one bedroom, the mattress was "cattycornered on the box springs of the bed", and there was an open chest of drawers with articles removed and hanging from the drawers. Further down the hall, he entered the master bedroom where he saw two bare feet, "soles up, like somebody was l[]ying face down in the floor." Mrs. James was lying face down in a very large pool of blood. Her throat was cut and "it was apparent that she was gone." Her head was almost completely severed from her body. At this point Officer Devers drew his weapon, retraced his steps, exited the residence through the front door and got on the radio and asked for assistance.

         After backup arrived, Officer Robert Allen and Officer Devers entered the house in order to "clear" the residence. Ms. Coleman informed officers that both Mrs. James and her step-father, Clarence James, should be in the house. The officers entered the dining area and observed a lamp on the table with part of the electrical cord cut off. When the officers went through the kitchen, Officer Devers saw some knives lying in the sink. Officer Devers tried to open the door to the utility room. The door only opened about a foot and a half before stopping. When he "peeked" his head around the partially opened door he saw Mr. James lying face down "with his arms bound behind his back in a pool of blood with his throat cut." Again, it was "apparent that [Mr. James] was dead." Officer Devers and several other officers "cleared" the upstairs of the residence and then assisted in securing the crime scene.

         Dr. Karen Chancellor, a forensic pathologist and Chief Medical Examiner for Shelby County, Tennessee, testified as an expert at trial.[1] Dr. Chancellor did not perform the autopsies on the victims, instead basing her testimony upon autopsies performed by other doctors. Autopsy photographs were entered into evidence over the objection of Defendant.

         According to the autopsy report, Mrs. James was 5'6" tall and weighed 184 pounds. She suffered from two large cut wounds on both the right and left sides of her neck caused by a knife or sharp object. Internally, the cut wounds injured both the left and right jugular vein and the carotid artery and the knife continued to make cut marks on the spine. There were additional superficial cuts on the neck. Cuts to the major blood vessels of the neck would have caused bleeding outside the body. In addition, Mrs. James had contusions on the right, front side of the neck and both shoulders as well as cuts on both forearms and petechial hemorrhages around both eyes. The noted bruises and petechial hemorrhaging around the eyes were consistent with rope strangulation. Dr. Chancellor opined that Mrs. James died from a combination of sharp force injuries of the neck which resulted in massive hemorrhage or bleeding and asphyxiation, also called strangulation. Mrs. James also had an impression in the skin on her finger that was consistent with wearing a ring on that finger. According to Ms. Coleman, Mrs. James owned jewelry that she wore daily and jewelry that she wore to church. Mrs. James always wore a diamond pendant necklace, a diamond cluster ring, another diamond ring, a gold bracelet and a watch.

         Clarence James, on the other hand, was 81 years old, 5'9" tall and weighed 137 pounds. Mr. James had a large cut wound on the neck, petechial hemorrhaging in both eyes, bruising on the left shoulder and both forearms and a superficial cut wound on the forearm. Internally, the hyoid bone in the neck was fractured and there was a stab wound in the neck in addition to the incised cutting wounds from the knife. The stab wound punctured the larynx which would have led to asphyxiation due to blood loss from the stab wound. Mr. James had multiple rib fractures including six ribs on the right side and five ribs on the left side. In addition to the rib fractures, Mr. James had multiple fractured vertebrae. The combination of the fractured hyoid bone, fractured ribs and fractured vertebrae indicated massive compressive force applied to Mr. James's body. Utilizing photographs, Dr. Chancellor was able to explain the differentiation between the stab wound and the wound in the neck. Additionally, photographs of the broken ribs were used to demonstrate the compressive force consistent with either mechanical force, such as being struck with a piece of equipment, or physical force, consistent with stomping the victim, that would have resulted in the broken ribs. Dr. Chancellor opined that Mr. James's death resulted from a combination of sharp force injuries to the neck, multiple blunt force rib fractures to the chest and a compressive injury to the neck resulting in strangulation.

         Gretta Thompson drove by the residence of the victims sometime between 7:00 and 8:00 a.m. on the morning of August 22, 2003. She claimed to have seen Mr. James in his garage with two African American males. Christopher Stallion, an employee with the City of Bartlett, passed by the victims' residence at approximately 12:40 p.m. on August 22, 2003, and also saw Mr. James outside with two African American men.

         Justin Franklin Turberville[2] lived at the same apartment complex as Defendant at the corner of Sycamore View and Bartlett Blvd. After passing by the crime scene and seeing reports of the crime which included photographs of Defendant, he contacted the police. Mr. Turberville informed police he saw Defendant at the apartment complex where he lived on the Friday of the weekend that the murders occurred. Mr. Turberville's wife saw Defendant walking down the street the same day.

         Defendant visited his niece, Diane Armstrong, at her home near Bartlett around that same time period. Mrs. Armstrong worked as the assistant manager of a Burger King in Arlington, Tennessee. Her husband, Wesley Joseph Armstrong, was the general manager of the restaurant. Defendant informed Mrs. Armstrong that he went to the Burger King looking for her husband, but Mr. Armstrong was out running an errand. Defendant told her if anybody "pull a gun on you and make you get in the car, you're dead already before you get in there." She found this statement strange and called her husband to tell him Defendant would be coming to his Burger King. Mrs. Armstrong called the Burger King and was informed that her husband was not at work; however, she told Defendant that Mr. Armstrong wanted Defendant to return to Burger King. Mrs. Armstrong walked Defendant to his car and saw a young African American man in the car, later identified at Tevarus Young.

         Defendant drove to Burger King where Mr. Armstrong, who had returned to the Burger King, came outside to meet him. Defendant was driving a white Dodge Aries. There was a man in the vehicle, whom Mr. Armstrong did not know but described as a skinny African American with braids in his hair. Mr. Armstrong gave food to Defendant and Mr. Young and did not see them again. Mr. Armstrong was initially questioned by the police as a possible suspect in this crime, but after giving a statement, he was no longer investigated.

         Detective Kevin Thompson worked the crime scene at the James residence and assisted in taking pictures and videos of the crime scene. Detective Thompson was also a financial crimes investigator, and in addition to collecting photographic and video evidence, he conducted a search of the victims' residence for financial documents. He discovered documents pertaining to credit cards, including a First Tennessee debit card in the name of Lillian V. Wilson (the maiden name of Mrs. James). Detective Thompson determined the debit card was used on August 22 at a Citgo gas station on Sycamore

          View in Memphis, Tennessee; on August 22 in Batesville and Madison, Mississippi; on August 23 in Gulfport, Mississippi; and August 24 in Melbourne, Florida. Detective Thompson travelled to Batesville, Mississippi, to visit a used car dealership where Defendant purchased a white Lincoln Town Car with the victim's debit card.

         David Neyman, a former detective with the Bartlett Police Department, obtained video from the gas stations where Mrs. James's debit card was used. Detective Neyman reviewed the video from the gas station on Sycamore View near the scene of the murders and was able to make out the silhouette of a "very slender" African American male with a "high afro." The video from the Shell Station in Batesville, Mississippi, showed a Dodge Aries in the area of the gas pumps between 7:45 p.m. and 8:00 p.m. on August 22. The driver of the car from the Batesville video was not identified. However, the video from the gas station in Madison, Mississippi, showed an African American man wearing a light-colored baseball cap, a yellow shirt, and shorts exiting a white Lincoln Town Car at approximately 11:00 p.m. Detective Neyman observed that as the driver of the Lincoln was leaving, a Dodge Aries immediately pulled out behind the Lincoln on the roadway.

         Michael Smith, part-owner of a used car dealership in Batesville, Mississippi, testified that just prior to closing on Friday August 22, 2003, two men entered the business wanting to purchase a car. He described one man as African American with a tear drop tattoo on his face below his eye. This man identified himself as Henry Lee Jones. Another man accompanied Defendant, but Mr. Smith did not have any contact with him. Defendant first spoke to Mr. Smith's father about buying a car. Mr. Smith's father made the deal with Defendant to purchase a white 1993 Lincoln Town Car for $3200. Mr. Smith completed the paperwork. Prior to paying for the car in cash, Defendant excused himself and went to the restroom where Mr. Smith could hear him counting money out loud to himself. The bill of sale contained the signatures of both Mr. Smith and Defendant. In addition, Defendant signed a buyer's guide and a privacy disclosure. Mr. Smith obtained a copy of Defendant's driver's license as part of the sale. Defendant returned to the lot a few days later to correct a problem with the title. At that time, Mr. Smith was not present, but someone else at the business assisted Defendant with the title. Defendant told the person that he had driven back from Florida to fix the title.

         Detective Carlos Joseph Reyes of the Brevard County Sheriff's Department in Melbourne, Florida, initiated a traffic stop on Monday, August 25, 2003. As Detective Reyes was driving southbound on Interstate 95, he noticed a white Dodge Aries in his rear view mirror that was driving "very erratic, " approaching at a high rate of speed, and cutting off other vehicles. The car eventually pulled behind the detective's vehicle and began tailgating him. Detective Reyes was in an unmarked car, so he decided to warn the driver by flashing his blue lights. After driving a few more miles, the driver began exhibiting the same behavior, so Detective Reyes slowed down, got behind the vehicle, and conducted a traffic stop of a white Dodge.

         Detective Reyes informed the driver of the reason for the stop and asked the driver for his driver's license and other documents. The driver told the officer that he was following his step-father, who was driving a white Lincoln Town Car. Detective Reyes recalled seeing the Lincoln Town Car pass him earlier as he "was merging onto [I]nterstate 95." The driver did not have a driver's license but provided Detective Reyes a name and date of birth. Upon searching for the name provided, Detective Reyes did not receive any useful information. Shortly thereafter, the Lincoln Town Car pulled up behind Detective Reyes's car. Detective Reyes identified Defendant as the driver of the Lincoln. Defendant started to get out of his vehicle, but Detective Reyes instructed Defendant to remain in the vehicle. Defendant told Detective Reyes that he owned the Dodge. Defendant claimed he met the driver through a friend and that he paid the driver to drive the car to Ft. Lauderdale for him. Defendant showed Detective Reyes his driver's license and documentation verifying that he had just purchased the Lincoln. By that point, backup had arrived on the scene. Detective Reyes asked the other officer to run Defendant's name through the computer database. Detective Reyes testified Defendant did not have any outstanding warrants and that his license was valid.

         When Detective Reyes asked the driver of the Dodge to divulge his real name, he stated his name was Tevarus Young. The detective discovered Mr. Young had an outstanding warrant from Broward County and arrested him. Detective Reyes told Defendant that he would not have the Dodge towed but that Defendant needed to leave while the officers completed the paperwork. Detective Reyes instructed Defendant to return for the vehicle in twenty minutes. Defendant did not return for the vehicle.

         Detective Johnny Lawson of the Melbourne, Florida police department received a be on the lookout ("BOLO") from Bartlett, Tennessee, after a debit card belonging to Mrs. James was used just outside of Melbourne, Florida, at a gas station. The BOLO also referenced a white Lincoln Town Car. Detective Lawson was able to secure a photograph from the gas station where the debit card was used in which a Lincoln Town Car was identified. Later, while working a case in Ft. Lauderdale, Florida, Detective Lawson observed a white Lincoln in a parking lot of Dependable Temps. He took pictures of the vehicle and ran the plates through the Florida system. The vanity plates were registered to Defendant. Detective Lawson also received information that the Lincoln Town Car was involved in the traffic stop conducted by Detective Reyes on August 25. With this information, Detective Lawson contacted the Bartlett Police Department to advise them of his findings with regard to both Defendant and Mr. Young, including the fact that Mr. Young was currently incarcerated in Florida.

          Both the Lincoln Town Car and the Dodge were soon located in Florida. Defendant was arrested in Florida. Detective Joseph Massey of the Bartlett Police Department executed a search warrant on the Lincoln Town Car and the Dodge Aries. The Lincoln was registered to Defendant and the Dodge Aries was registered to Defendant and Sherry Robinson. As a result of these searches, a ring identified as belonging to Mrs. James was found in the back seat of the Lincoln. Additionally, Mr. Young was in possession of rings that belonged to Mrs. James at the time of his arrest.

         In response to the information received from Detective Lawson, Detective Massey travelled to Florida and accompanied Detective Lawson to the Broward County Jail to interview Mr. Young.[3] The officers conducted three interviews. During the first interview, Detective Lawson did not think that Mr. Young was telling the "truth." When confronted, Mr. Young's "demeanor changed drastically, " he became "extremely upset" and "violently sick" but gave information in regards to the Bartlett murders. The second interview took place the next night. Mr. Young "was not real happy" to be participating but gave "more information" before again turning "violently ill, crying uncontrollably." Despite his reaction, Mr. Young continued to provide information about the deaths of Mr. and Mrs. James.

         The trial court determined that Mr. Young was unavailable to appear as a witness for trial. A transcript of his testimony from Defendant's first trial was read to the jury. Mr. Young first met Defendant when Mr. Young was homeless and sleeping in a park in Fort Lauderdale, Florida. Defendant introduced himself as "Bam Bam" and offered to pay Mr. Young for oral sex. Mr. Young agreed, got into the car, and went with Defendant on a series of errands culminating in driving "to some warehouses where [Mr. Young] performed oral sex on him." Afterward, Defendant continued to drive and provide for Mr. Young over the course of several days. They visited two acquaintances of Defendant in Daytona, Florida, called "Toosie" and "Tawana." Defendant left with Toosie, and Mr. Young spent the night with Tawana. Although Mr. Young claimed that he wanted to stay in Daytona, Defendant convinced him to leave for the stated purpose of visiting some of Defendant's relatives. Although he did not know where they were going, Mr. Young recalled that Defendant drove for "[m]aybe a day, a day and a half." Mr. 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. Mr. Young went inside the Burger King and saw Defendant having a conversation with an employee. A different employee brought them some food, and after their meal, Defendant drove to a nearby apartment complex and parked his vehicle.

          Mr. Young and Defendant got out of the car and encountered an elderly African American man, later identified as Mr. Clarence James, who was sitting in his garage. Defendant said, "Hey, Pops, how are you doing?" Mr. James then informed Defendant that he had just been released from the hospital and was waiting for a man to come and mow his lawn. Mr. Young offered to mow the lawn for Mr. James, but Mr. James asked only that he move the lawnmower from the front yard to the back yard.

         Mr. Young moved the mower to the back yard, looked at a few statues and a bird bath, and drank some water from a faucet in the backyard. When he returned to the front yard, the garage door was closed, and no one was outside. He knocked on the front door, but no one came to the door. The door was unlocked, so Mr. Young entered the house. As Mr. Young walked inside, he saw Defendant walk around the corner with rags and a rope in his hands. Mr. Young saw blood on the items. Mr. Young followed Defendant to the second room where he saw an "old lady, " later identified as Mrs. James. Defendant threw Mrs. James on the floor and said, "old lady, old lady, you know what time it is?" Mr. Young watched Defendant tie Mrs. James's hands behind her back with a rope and demand her purse. Mrs. James told Defendant that her purse was in the other room. Defendant told Mr. Young to sit down, and he sat in a chair next to the door. While Defendant was gone from the room, Mrs. James asked Mr. Young if they were going to kill her. Mr. Young told her that Defendant had said they were relatives, and Mrs. James denied it.

         Defendant returned to the room with a purse and told Mr. Young to stand up. When Mr. Young complied, Defendant emptied the contents of the purse in the chair. Mrs. James told Defendant that her son was supposed to be coming over, and Defendant replied that if he did, he would "get the same thing you're going to get." Defendant then picked Mrs. James up and pushed Mr. Young out of the way and into another room. Defendant threw Mrs. James on the floor and put a rope around her neck. Defendant put his foot on the back of her neck and strangled her. Defendant then took out a knife from his side and cut Mrs. James multiple times. When Mr. Young asked Defendant why he had killed Mrs. James, Defendant said she had seen his face.

         After killing Mrs. James, Defendant left the room. Mr. Young heard cabinets "slamming." Defendant returned with a brown plastic bag and instructed Mr. Young to hold the bag. Defendant put the rope and rags inside the bag and instructed Mr. Young to follow him. They went into the laundry room where Mr. James was dead and lying in a puddle of blood. Mr. James was also bound. Defendant removed the rope and put it in the bag. They then went into the bathroom where they ran water inside the bag. Defendant snatched the bag out of Mr. Young's hands and went into another room where he put a billfold and other items inside the bag. Defendant went room by room taking items, including a coin in the room where Mrs. James was lying and the rings that the woman was wearing.

         Defendant and Mr. Young left the house and returned to the vehicle. Defendant drove to a gas station and used a credit card from the billfold that he took from the house to pay for gas at the pump. After they left the gas station, Defendant threw cards and papers from the billfold out of the window. He also gave Mr. Young $1500 in cash, and the rings that Mrs. James had been wearing. Defendant drove to a mall where they both purchased shoes at Foot Locker and clothes from JC Penney. Defendant purchased a yellow Tommy Hilfiger long-sleeve shirt. They paid for their items with cash. Mr. Young used the money Defendant gave him to purchase his clothing. After leaving JC Penney, Defendant instructed Mr. Young to change his clothes and throw his old clothing out the window.

         Defendant placed the hook bladed knife that he had used to kill the victims on the console of the car between the two of them. Defendant told Mr. Young that he had the knife for a long time and instructed Mr. Young to touch it. Mr. Young said that after he touched the knife, Defendant told him to swear that he would not tell anyone about what happened. Defendant warned Mr. Young, "if you ever tell somebody what happened I'm going to kill you and cut your dick off."

         While Defendant was driving, he passed a car dealership and turned the car around. Defendant purchased a Lincoln Town Car at the dealership. He gave the keys to the Dodge Aries to Mr. Young and instructed Mr. Young to follow him. They drove to a grocery store where Defendant purchased screws for the license tag. Defendant got a tag out of the trunk of the Dodge and put it on the Lincoln.

         Mr. Young followed Defendant for several hours. During that time they stopped for gas two or three times. Each time, Defendant paid for the gas using a credit card at the pump. They stopped at a rest stop where they purchased food and drinks. Mr. Young locked the doors of the Dodge and got into the Lincoln. Mr. Young maintained that as he was about to fall asleep, Defendant forced himself on him and raped him. They next stopped to see Toosie and Tawana. Mr. Young was doing drugs, and Defendant and Toosie left. After Defendant returned, he and Mr. Young left and drove south.

         Mr. Young was stopped by an officer in Florida for speeding. He explained he had found the courage to attempt to flee from Defendant. Mr. Young flashed his lights at other vehicles and swerved in the lanes. The driver of one of the cars that he flashed his lights at was a police officer, who then pulled him over. Mr. Young told the officer that he had neither a license nor registration and gave the officer a false name and social security number. Defendant then pulled up behind the officer and talked to him. Mr. Young was arrested on an outstanding warrant. Mr. Young admitted he was in possession of Mrs. James's rings when he was arrested.

         Mr. Young admitted he lied to the police when they first questioned him because he was scared. He was incarcerated and charged with two counts of facilitation of first degree murder at the time of trial but denied that he received any threats or promises in exchange for his testimony.

         After receiving information that Defendant had been arrested in Florida, Detective Lawson took a statement from Defendant in which he denied any involvement in the crimes. Defendant informed Detective Lawson that he drove from Ft. Lauderdale, Florida, to Batesville, Mississippi, where he purchased the Lincoln Town Car. Defendant left the car at the dealership until he and Mr. Young came back later and picked up the Lincoln. Defendant stated he did not go to Bartlett but returned to Florida where he stopped at a "girlfriend's" in Daytona. Defendant left Mr. Young and the Dodge Aries at the girlfriend's while he went to Orlando. Defendant claimed that he kept the keys to the Dodge while he went to Orlando. Defendant's statement referenced the traffic stop and arrest of Mr. Young. Detective Lawson identified Defendant as the man he interviewed in Florida.

         Elbow counsel for Defendant presented the testimony of Florence Jones, the sister of Mrs. James. Ms. Jones testified that sometime after eleven o'clock in the morning on Friday, August 22, 2003, she spoke with Mrs. James on the telephone. Defendant elected not to testify.

         The jury convicted Defendant of two counts of first degree murder and two counts of first degree murder in the perpetration of robbery.

         PENALTY PHASE

         At sentencing, Defendant maintained his desire to proceed pro se. Specifically, Defendant stated that he did not want to participate in the sentencing phase of the trial at all and wanted to waive the opportunity to put on mitigating evidence. After extensive examination of Defendant, the trial court continued to allow Defendant to represent himself for purposes of sentencing and Defendant again reiterated that he was waiving the presentation of any mitigating evidence.

         The State introduced certified copies of five prior violent felony convictions from the state of Florida. These convictions included two counts of battery on a law enforcement officer, one count of aggravated burglary, one count of robbery, and one count of kidnapping. The State presented the testimony of Russell Bausch, an assistant state's attorney for Brevard County, Florida. Mr. Bausch prosecuted Defendant for the August 26, 2003 murder of Carlos Perez. The State presented the testimony of Detectives Johnny Lawson and Scott Dwyer who both participated in the investigation of the Carlos Perez murder in Florida. The State presented testimony from family members of Mr. and Mrs. James regarding the impact of their deaths on the family. At the conclusion of the State's proof, Defendant was asked "will there be any defense proof?" Defendant responded, "No, sir, the defense will be waiving."

         After deliberation, the jury unanimously found five statutory aggravating circumstances for the murder of Mrs. James: (1) Defendant was previously convicted of one or more felonies other than the present charge that involved the use of violence to the person; (2) the murder was especially heinous, atrocious, or cruel and that it involved torture or serious physical abuse beyond that necessary to produce death; (3) the murder was knowingly committed, solicited, directed, or aided by Defendant while he had a substantial role in committing robbery; (4) the murder was committed for the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of Defendant or another; (5) Defendant committed mass murder, defined as the murder of three or more persons whether committed in a single criminal episode or at different times within a forty-eight month period. See T.C.A. § 39-13-204(i)(2), (5), (6), (7), (12). The jury unanimously found the same five statutory aggravating circumstances for the murder of Mr. James with the additional statutory aggravating factor that the victim was 70 years of age or older. See id. at (i)(14). The jury set Defendant's sentence as death.

         ANALYSIS

         Defendant raises the following issues on appeal:[4] (1) the trial court erred by allowing Defendant to represent himself; (2) the trial court erred in denying Defendant's motion for mistrial after the trial court allowed elbow counsel to take over the defense; (3) the trial court erred by failing to appoint a second attorney to assist elbow counsel after Defendant requested that he be represented by counsel; (4) the trial court erred by finding Mr. Young was "unavailable" under the Tennessee Rules of Evidence and then further compounded the error by instructing the jury that Defendant could have had a continuance for the State to locate Mr. Young; (5) the trial court erred in allowing testimony regarding the alleged rape of Mr. Young by Defendant; (6) the trial court erred by admitting photographs of the victims' bodies and wounds in violation of Tennessee Rule of Evidence 403; (7) the trial court erred by overruling elbow counsel's objection to the prosecutor confronting Defendant in closing argument; (8) the evidence was insufficient to support the convictions; (9) the trial court erred in denying Defendant a mitigation expert or investigator in preparation for sentencing; and (10) the death sentence is arbitrary and disproportionate.

          I. The Right to Counsel and the Right ...


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