                                                                                               01/30/2019
                      IN THE SUPREME COURT OF TENNESSEE
                                  AT JACKSON
                            May 31, 2018 Session Heard at Nashville1

                    STATE OF TENNESSEE v. HENRY LEE JONES
                    Automatic Appeal from the Court of Criminal Appeals
                             Criminal Court for Shelby County
                         No. 03-06997      W. Mark Ward, Judge2
                          ___________________________________

                                 No. W2015-02210-SC-DDT-DD
                             ___________________________________

In this capital case, a Shelby County jury convicted the Defendant, Henry Lee Jones, of
alternative counts of first degree premeditated murder and first degree felony murder of
Clarence James and alternative counts of first degree premeditated murder and first
degree felony murder of Lillian James. The jury sentenced the Defendant to death on all
four counts. As for the two counts related to Mr. James, the jury found the evidence
sufficient to support six aggravating circumstances. As for the two counts related to Mrs.
James, the jury found the evidence sufficient to support five aggravating circumstances.
The trial court merged each of the felony murder convictions into the corresponding
premeditated murder convictions and imposed two sentences of death. On direct appeal,
the Court of Criminal Appeals affirmed the Defendant’s convictions and sentences. On
automatic review pursuant to Tennessee Code Annotated 39-13-206(a)(1), we now
address the following issues: (1) Whether the Defendant was unconstitutionally denied
the right to counsel; (2) whether the trial court abused its discretion in admitting into
evidence the former testimony of Tevarus Young; (3) whether the evidence was sufficient
to support his convictions; and (4) whether the trial court erred in denying the
appointment of a mitigation expert. We also conduct our mandatory review of the
Defendant’s death sentences. Upon our thorough review of the record and applicable
law, we affirm the Defendant’s convictions and death sentences. As to the remaining
issues raised by the Defendant, we agree with the Court of Criminal Appeals’ conclusions
and attach as an appendix to this opinion the relevant portions of that court’s decision.

                      Tenn. Code Ann. § 39-13-206(a)(1); Judgment of the
                             Court of Criminal Appeals Affirmed

       1
         Oral argument was heard on the campus of Lipscomb University in Nashville, Davidson
County, Tennessee, as part of the American Legion Auxiliary Volunteer Girls State S.C.A.L.E.S.
(Supreme Court Advancing Legal Education for Students) project.
       2
           The Hon. J. Robert Carter, Jr., presided over the pre-trial matters of this case.
JEFFREY S. BIVINS, C.J., delivered the opinion of the court, in which CORNELIA A.
CLARK, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined. SHARON G. LEE, J., filed a
concurring opinion.

James E. Thomas (on appeal)3 and James M. Gulley (on appeal/resource counsel at trial),
Memphis, Tennessee, for the appellant, Henry Lee Jones.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; Leslie E. Price, Senior Counsel; Amy Weirich, District Attorney
General; Tom Henderson and Jennifer Nichols, Assistant District Attorneys General, for
the appellee, State of Tennessee.

                                              OPINION

                                 Factual and Procedural History

        This case arises out of the murders of Clarence and Lillian James in their Bartlett,
Tennessee, home on August 22, 2003. The Shelby County Grand Jury indicted the
Defendant, Henry Lee Jones, on October 7, 2003, for the first degree premeditated
murder of Clarence James, the first degree premeditated murder of Lillian James, the first
degree felony murder of Clarence James in perpetration of a robbery, and the first degree
felony murder of Lillian James in perpetration of a robbery. The State filed a notice of
intent to seek the death penalty on February 17, 2004.

        This is the second trial for the Defendant, who was first tried in 2009. Although
the first trial resulted in convictions on all counts and sentences of death, this Court
reversed the convictions because of a prejudicial evidentiary error and remanded the case
to the trial court for a new trial. State v. Jones, 450 S.W.3d 866, 871 (Tenn. 2014). The
second trial was held on May 11–16, 2015.

                                         I. Pretrial Hearings

       Prior to trial, the attorney who represented the Defendant in the first trial was
permitted to withdraw. On October 31, 2014, the trial court appointed two private
attorneys to represent the Defendant. These attorneys filed ex parte motions seeking
funding for a “fact investigator,” which was granted, and for a mitigation investigator,
which was denied. In denying the motion for a mitigation investigator, the trial court
expressed its opinion that, in view of the appointment of two lawyers and approval of
        3
          Mr. Thomas was permitted to withdraw on January 23, 2018, after he accepted a position with
the District Attorney General’s office for the 30th Judicial District and began employment with that office
on January 16, 2018.
                                                    2
funding for a fact investigator, “one of the lawyers appointed to represent Mr. Jones
should be able to perform the mitigation investigation.” Thereafter, the Defendant
became dissatisfied with his new attorneys and, in December 2014, filed a series of pro
se motions with the trial court. Included in those motions was a motion to waive his right
to an attorney and asking that he be permitted to represent himself.

       The trial court held a hearing on the motion. At that hearing, the trial judge
engaged the Defendant in an extensive colloquy concerning his right to representation by
an attorney, the pitfalls of proceeding without an attorney, and the fact that he would be
bound by the Tennessee Rules of Evidence and the Tennessee Rules of Criminal
Procedure. The Defendant told the court that he had represented himself in a prior capital
case in Florida and wished to represent himself in this case as well. He affirmed that he
understood he was facing the death penalty, asserted that he understood the elements of
the offenses with which he was charged, and represented that he had read and was
familiar with the rules of evidence and procedure. The trial judge repeatedly and strongly
discouraged the Defendant from representing himself. In the end, however, the court
found that the Defendant had knowingly and voluntarily waived his right to counsel.

       On no fewer than nine occasions during the pretrial proceedings, the trial court
questioned the Defendant about his decision to represent himself and offered to re-
appoint counsel. The Defendant repeatedly declined the offer. On February 11, 2015,
the Defendant agreed to “resource counsel” to assist him in obtaining discovery, in
issuing subpoenas, and otherwise assisting in matters that the Defendant could not do
from the jail. As a result, the trial court appointed private attorney James Gulley to assist
the Defendant.

       When trial began on May 11, 2015, the court once again advised the Defendant of
his right to an attorney and offered to appoint counsel for him. The trial judge stated, “I
am begging you to let an attorney represent you.” The Defendant responded, “It won’t
happen.” When the Defendant affirmed that he was waiving his right to counsel, the
court had Mr. Gulley review with him the written waiver of right to counsel, and the
Defendant reviewed and signed it.

       The first two days of trial encompassed jury selection, reading of the indictments,
the Defendant’s entry of a “not guilty” plea, preliminary instructions to the jury, and
opening statements. When trial resumed on May 13, 2015, the trial court yet again asked
the Defendant to reconsider his decision to represent himself. Although the Defendant
persisted in his decision to proceed pro se, the court advised him that if at any point he
would like Mr. Gulley to step in and represent him, he was available.4

       4
           On May 14, 2015, the trial court reiterated the Defendant’s right to consult with elbow counsel
                                                    3
        At the first trial, the State’s key witness was the Defendant’s co-defendant,
Tevarus Young. Following the Defendant’s convictions in that trial, Mr. Young pled
guilty as a mitigated offender to two counts of facilitation of first degree murder in return
for two concurrent thirteen-and-one-half-year sentences. By the time of this second trial,
Mr. Young had fully served those sentences, been released, and returned to his home
state of Florida.

        On April 13, 2015, one month before trial, the State filed a petition to secure Mr.
Young’s appearance as a material witness for trial and for the advance payment of
witness travel expenses pursuant to the Uniform Law to Secure the Attendance of
Witnesses from Within or Without a State in Criminal Proceedings. See Tenn. Code
Ann. § 40-17-201 through -212 (2012) (“the Law to Secure Witnesses”). That same day,
the trial court granted the State’s petition and issued a certificate to secure Mr. Young’s
attendance to testify at trial.

       On May 4, 2015, the State filed another petition to secure Mr. Young’s appearance
including an averment that the Assistant District Attorney trying the case had spoken
with Mr. Young and that Mr. Young had advised him that he would not agree to appear
and testify. Mr. Young also had stopped answering his phone and appeared to be evading
service by Dade County, Florida, investigators trying to locate him.

       The State requested that Mr. Young be taken into custody and delivered to an
officer of Shelby County, Tennessee, to secure his presence for the trial scheduled to
begin on May 11, 2015. The trial court issued a certificate and an order to transport Mr.
Young to Tennessee pursuant to the Law to Secure Witnesses on May 7, 2015. In that
order, the court noted that the Circuit Court of the Eleventh Judicial Circuit for Miami-
Dade County, Florida, had received the earlier certificate issued by the trial court and had
issued a summons for Mr. Young. The trial court noted that, on May 6, 2015, the Florida
court found that Mr. Young was actively evading service of the summons to appear in
that court, that service on Mr. Young’s mother did not procure his appearance in court
pursuant to that summons, and that the court had ordered the immediate arrest of Mr.
Young.

      Nevertheless, as of May 11, 2015, Mr. Young was still eluding service.
Accordingly, the State filed a motion to have Mr. Young declared an unavailable witness
and sought permission to use a transcript of Mr. Young’s testimony from the 2009 trial.
This motion documented the State’s efforts to find Mr. Young:



at any time and told the Defendant that if he changed his mind and wanted counsel to step in, the court
would “make that happen.”
                                                  4
       In attempting to prepare for the pending trial, the State of Tennessee
has made every effort to obtain the presence of Tevarus Young to testify at
the pending trial. Law enforcement officers in Fort Lauderdale, Broward
County, Florida, where witness Young was living when these events began,
were contacted. Using paperwork from the misdemeanor probation, law
enforcement officers in Miami-Dade County, Florida, were able to locate
his mother’s residence in Miami-Dade County. Officers were told by his
mother that Young was living there and ascertained his cell phone number.
Assistant District Attorney General talked with Tevarus Young at that
number in early April. Young advised that he would not return to
Tennessee to testify. Accordingly, paperwork pursuant to the Uniform Law
to Secure the Attendance of Witnesses from Within or Without a State in
Criminal Prosecution was prepared, filed, and forwarded to the Florida
State’s Attorney’s office with jurisdiction over that address. Law
enforcement officers continued to try to locate Young and served papers on
his mother, ordering Tevarus Young to appear in their Court to show cause
why he should not be ordered to appear in this Honorable Court. Young’s
mother then told the officers that Young did not live there. Officers in two
different counties have searched for Tevarus Young to no avail.

       Fort Lauderdale, Florida, Broward County, law enforcement officers
have visited addresses of possible relatives of the witness in their
jurisdiction as well as developing an address in Oklahoma for a possible
past girlfriend. That address is being checked on by Oklahoma officers.
Multiple emails [] and phone calls have been exchanged between multiple
prosecutor’s law enforcement offices in an attempt to locate the witness.

       On May 6, 2015, the Circuit Court of the Eleventh Judicial Circuit in
and for Miami-Dade County entered an Order [] finding that Tevarus
Young was “actively evading service” of the papers and issued a Writ of
Bodily Attachment [] which has been entered into the National as well as
Florida law enforcement networks (NCIC and FCIC). Additionally, the
Tvarus [sic] Young has been flagged by the Florida Department of Law
Enforcement, the equivalent of our Tennessee Bureau of Investigation.

        The Miami Herald newspaper, on May 6, 2015, printed and posted
an article about the search for Tevarus Young. []

      As of this date, Tevarus Young has not been located.



                                     5
        Prior to the beginning of trial on May 11, 2015, the trial court held a brief
discussion on the record concerning the unavailability of Mr. Young. The State
represented that while an active search for Mr. Young was ongoing and a warrant had
been issued for his arrest in Florida, Mr. Young had not been found. Mid-trial, the court
held a jury-out hearing on the status of Mr. Young. The State again represented that
while the search for Mr. Young continued, he had not been found. The State introduced a
redacted copy of the transcript of Mr. Young’s testimony from the 2009 trial, with all
references to a jury trial, bench conferences, and objections omitted. It proposed advising
the jury that the witness was unavailable and having the testimony read in question and
answer form, with one prosecutor reading the former questions and another reading Mr.
Young’s answers. Over the Defendant’s objection that he would not have the opportunity
to cross-examine Mr. Young about his former testimony, the trial court ruled that Mr.
Young was unavailable as a witness. The court overruled the objection, noting that the
Defendant was present and had an opportunity to cross-examine Mr. Young when he
testified at the first trial. Therefore, his testimony from that prior trial would be read to
the jury in question and answer form.

       Prior to the reading of Mr. Young’s testimony, the jury was instructed that because
Mr. Young was unavailable, his testimony would be read to them. The jury was
informed that the testimony was given under oath as a witness in a prior courtroom
hearing and that the Defendant was involved in that hearing and had an opportunity to
cross-examine Mr. Young at that time while being represented by an attorney. The jury
was told to “regard this prior sworn testimony the same as you would as if any other
witness had testified to it here in open court and this witness’s credibility will be
determined by the same rules by which you determine the credibility of other witnesses.”
The Defendant’s request at that time to also tell the jury why Mr. Young was not
present—because he was evading process—was denied. The following proof was
adduced during the guilt/innocence phase.

                                          II. Trial

        The murders in this case were committed on August 22, 2004. Tevarus Young
testified in detail about meeting the Defendant in Ft. Lauderdale, Florida, sometime in
August 2003. In the days leading up to the Tennessee murders, they met in a Ft.
Lauderdale park where Mr. Young—then homeless—was sleeping. The Defendant
approached Mr. Young and offered to pay Mr. Young twenty dollars to perform oral sex
on him. Mr. Young agreed. The Defendant first drove Mr. Young in a Dodge Aries K-
car to a local McDonalds, where the Defendant bought Mr. Young breakfast. The
Defendant then made numerous stops. He drove to a woman’s house where he made a
phone call, to a pawn shop where he pawned a necklace, to a second pawn shop where he
pawned a ring, then to a courthouse in Miami where he paid some tickets.
                                             6
        From the courthouse, after a short delay caused by running out of gas, the
Defendant drove to a warehouse where he parked the car. While parked at the
warehouse, Mr. Young performed oral sex upon the Defendant inside the car, and the
Defendant paid Mr. Young twenty dollars, as agreed. The Defendant then invited Mr.
Young to travel with him to Daytona to visit some women. Mr. Young agreed, and they
ended up spending the night with the women, “Toosie” and “Tawana,” in Daytona,
Florida. The next morning, following an argument between the Defendant and Toosie,
the two men embarked on a road trip. The Defendant told Mr. Young they were going to
visit some of his relatives, but Mr. Young did not know the destination and never asked.
He testified that the Defendant drove the entire trip and claimed that he slept for much of
the trip.

       On the morning of the murders, Mr. Young woke up in a gas station/Burger King
parking lot when a man in a Burger King uniform knocked on the window of the car and
asked for “Henry.” The Defendant was not in the car, so the man went inside the store.
Mr. Young went inside where he saw the Defendant talking to the man, who turned out to
be the Defendant’s nephew by marriage. Mr. Young used the restroom and then sat at the
table with the two men. An employee brought them some food.

       After eating, they left the restaurant, and the Defendant drove to an apartment
complex where he parked the car. Mr. Young followed the Defendant across the street
and past several houses to a house where an elderly man was sitting in his garage with the
garage door open. The Defendant greeted the man with, “Hey Pops, how are you doing?”
After a brief discussion about mowing the man’s grass, the man, although declining Mr.
Young’s offer to mow, asked Mr. Young to put the mower in the back yard for him. Mr.
Young left the Defendant and the man talking and took the mower through a fence gate to
a shed in the back yard and left it beside the shed. He then stopped to get a drink from a
garden hose. When he returned to the front of the house a few minutes later, the garage
door was closed and neither the man nor the Defendant was present.

       Mr. Young knocked on the front door and, when no one answered, walked inside.
He saw the Defendant carrying a rope and some bloody rags. Mr. Young followed the
Defendant down a hallway to a room where an older woman was present. The Defendant
threw the woman, who was screaming, face down on the floor and asked her, “Old lady,
old lady, you know what time it is?” The woman was fully clothed at the time. The
Defendant used a rope to tie the woman’s arms behind her back, then asked for her purse
and her money. She told him it was in another room. The Defendant instructed Mr.
Young to sit in a chair next to the doorway and left to retrieve the purse. While he was
gone, the woman asked Mr. Young if they were going to kill her. Until then, Mr. Young
thought that the man and woman were relatives of the Defendant. The woman denied
knowing the Defendant.
                                            7
       When the Defendant returned, he told Mr. Young to stand and dumped the
contents of a purse into the chair. When the woman told the men that her son was
supposed to be on his way the Defendant remarked, “Yeah, if he come he going to get the
same thing as you’re going to get.” The Defendant then picked up the woman and
pushed her into another room, where he put her face down on the floor, removed the rope
from her arms, put it around her neck, and put his foot on the back of her neck as he
strangled her with the rope. The Defendant then took a hook-bladed knife from his
waistband and cut the woman’s neck more than one time. When Mr. Young asked him
why he killed the woman, the Defendant replied that he had to kill her because she had
seen his face.

       The Defendant left the room, and Mr. Young heard him slamming cabinet doors in
the kitchen. He returned with a brown plastic bag and instructed Mr. Young to hold the
bag while he put in it the rope from the woman’s wrists and some rags. Mr. Young
followed the Defendant to the laundry room where he saw the older man he met earlier
lying face down on the floor in a pool of blood with his hands tied behind his back. The
Defendant removed ropes from the man’s hands and legs and put them inside the bag.
The Defendant and Mr. Young took the bag into a bathroom, and the Defendant ran water
into the bag. The Defendant took the bag from Mr. Young, went back to the bedroom,
and emptied the contents of the female victim’s purse into the bag. At some point, the
Defendant removed rings from the dead woman’s fingers, and Mr. Young later put them
on his own fingers. The men then left the victims’ home, taking the bag with them.

        Mr. Young testified that their first stop was a gas station. The Defendant and Mr.
Young went inside. When the Defendant returned to the car, he took a billfold out of the
plastic bag, removed a credit card, and used the credit card to pay for gas. Next, the
Defendant drove to a shopping mall. On the way, he began taking things out of the
billfold and throwing them out the window. He gave Mr. Young $1,500 in cash from the
billfold. When they arrived at the mall, the men went inside to a Footlocker store and
bought some shoes, then to a J.C. Penney store and bought some clothes. They used cash
to pay for these items.

       Mr. Young testified that after leaving the mall and as they were driving, he saw
the knife used to kill the woman on the console between the car seats. The Defendant
commented that the knife had been with him a long time and made Mr. Young touch it.
Then, the Defendant threatened that if Mr. Young ever told anyone what happened, he
would kill him and cut off his genitals. Mr. Young swore to the Defendant that he would
never tell.

      The two men drove from the mall to a car lot. On the way, they changed into the
new clothes and threw the ones they wore during the murders out of the window. At the
                                            8
car lot, the Defendant purchased a white Lincoln Town Car. After the car was purchased,
the Defendant gave Mr. Young the keys to the Dodge Aries and told Mr. Young to follow
him. Mr. Young testified that he did not try to drive away because he did not know
where they were and did not want to risk the Defendant stopping him. He wanted to wait
to get somewhere safe.

       They drove to a hardware store, where the Defendant purchased some screws that
he used to put a license plate from the trunk of the Dodge onto the Lincoln. From there,
they drove for several hours, stopping two or three times for gas. When they stopped, the
Defendant would pay for the gas with a credit card at the pump. Eventually, the
Defendant pulled into a rest stop. Mr. Young crawled into the back of the Lincoln to
sleep but was awakened by the Defendant “wrestling” him and forcibly sodomizing him.

        When the drive resumed, the two men went back to Toosie and Tawana’s place in
Florida. Mr. Young used drugs with Tawana, while the Defendant left with Toosie. The
Defendant took the keys to both cars with him. When the Defendant returned, he and Mr.
Young left again, with the Defendant in the lead and Mr. Young following. They headed
south on I-95. Mr. Young claimed that, in an attempt to escape the Defendant, he started
driving “like a maniac” until he was eventually stopped by a police officer. Mr. Young,
who had no license or registration for the car, gave the officer a false name and social
security number and told the officer he was driving the car for his stepfather, whom he
was following. The Defendant exited the highway and came back, pulling in behind the
police officer. The Defendant confirmed that Mr. Young was driving the car for him but
told the officer that he had just met Mr. Young. Due to the discrepancies in Mr. Young’s
story, the officer pressured him for his real name. When Mr. Young eventually gave his
real name, the officer discovered a misdemeanor warrant and arrested him. The officer
told the Defendant to leave and come back for the car.

       Mr. Young testified that he initially was taken to the local jail in Melbourne,
Florida, but was subsequently transferred to a jail in Ft. Lauderdale. He had Lillian
James’ rings in his possession when he was arrested, and they were stored with his
personal property at the jail while he was incarcerated. Eventually, law enforcement
officers showed up in Ft. Lauderdale and began questioning him about the murders in
Bartlett, Tennessee. Mr. Young admitted that he first lied to the officers and denied any
knowledge of the Bartlett murders. Later, he falsely implicated the Defendant’s nephew
by marriage, Wesley Armstrong, as being involved in the murders. He testified that he
eventually gave a truthful account of his own and the Defendant’s involvement.

       Margaret Coleman, Lillian James’ daughter, discovered the victims’ bodies on the
afternoon of August 23, 2003, when she stopped by the house to check on her mother.
Mrs. James worked in housekeeping on the night shift at Methodist University Hospital.
                                           9
While Mrs. James usually rode the bus to work, her son and daughter took turns picking
her up when she got off work at 1:30 a.m. When Ms. Coleman went to the hospital to
pick up her mother on the morning of Saturday, August 23, 2003, she was told that Mrs.
James had not shown up for work. Ms. Coleman tried to call her mother, but there was
no answer at the house. Ms. Coleman attributed this to the storms that had moved
through the area that night. Ms. Coleman called again later that morning and several
times throughout the day. When her calls continued to go unanswered, she went to the
house to check on her mother. As Ms. Coleman entered the house, she noted that the
front door was open, and it was apparent from several items that were out of place that
something was awry. Sensing that something was wrong, Ms. Coleman entered the
house only far enough to retrieve a telephone from the den, then immediately went
outside and called 9-1-1. Ms. Coleman testified that it was Clarence James’ habit to
carry two wallets—one in each back pocket. It was Lillian James’ habit to wear several
favorite pieces of jewelry. Ms. Coleman identified several rings that were retrieved from
Tevarus Young’s personal effects as being her mother’s rings.

       Investigating officers arrived in response to the 9-1-1 call at about 3:30 p.m. on
August 23, 2003. Several officers testified about the crime scene and the injuries to the
victims. Although the victims’ house overall was very neat, a few items were out of
place. For instance, a linen closet door was open, and linens were spilling out of the
closet onto the floor. In the dining room on a sideboard table, there was a lamp from
which the electrical cord had been cut off. In one bedroom, the bed mattress was
sideways on top of the box springs and chest drawers were opened. In the hall bathroom,
officers observed splashes of “watered-down blood” around the bathroom sink as though
someone had washed blood off their hands.

        In the master bedroom, the body of Lillian James was lying face down on the floor
in a pool of blood, clothed only in a pair of panties. Her throat had been cut, nearly
severing her head from her body. When Mrs. James’ body was moved, a yellow
electrical cord and a piece of duct tape were found beneath it. Police discovered the body
of Clarence James lying on his side in a pool of blood on the floor of the utility room.

       Captain Tina Schaber of the Bartlett Police Department testified that no forensic
leads in the form of fingerprints or DNA were recovered from the James’ house. Both
she and Detective Kevin Thompson testified that on August 24, 2003, they returned to the
victims’ home and collected bank and credit card statements. They started tracing use of
the cards to see if they were used after August 22, 2003. Mrs. James’ First Tennessee
Bank credit card records showed that the card was used five times beginning on August
22nd and through August 24th. At 3:18 p.m. on the 22nd, it was used to purchase fuel at
the Sycamore View Citgo Station near the victims’ home. That evening at 7:56 p.m., it
was used to purchase fuel in Batesville, Mississippi. Later that night, at 11:41 p.m., it
                                           10
was used to purchase fuel in Madison, Mississippi. The following day, the credit card
was used to purchase fuel in Gulfport, Mississippi. Then, on August 24th, at 8:12 a.m.,
the card was used to purchase fuel in Melbourne, Florida. Bartlett detectives issued a
“be-on-the-lookout” (BOLO) bulletin on the National Crime Information Center database
regarding use of the credit card, with information that the card was related to a homicide
and that any suspect using the card should be detained.

       Police investigators pulled videos from each of the locations where the card was
used. The video from inside the Sycamore View Citgo station depicted a man resembling
Tevarus Young making a purchase. A common thread in several of the videos was the
appearance of a light-colored Dodge Aries K-car and a white Lincoln Town Car. The
BOLO bulletin was updated with this information, leading to the discovery of the
purchase, on August 22, 2003, of a white 1993 Lincoln Town Car from the “Auto Corral”
in Batesville, Mississippi, within five miles of where Mrs. James’ credit card was used
that same day. The purchaser of the white Lincoln Town Car was Henry Lee Jones, the
Defendant.

       Michael Smith was the co-owner of the Auto Corral, a used car dealership in
Batesville, Mississippi. Mr. Smith corroborated Mr. Young’s testimony about the
Defendant’s purchase of a white Lincoln Town Car. He testified that in the late afternoon
hours of August 22, 2003, the Defendant arrived at the lot driving a white Dodge Aries
K-car. He was accompanied by another man. Mr. Smith’s father sold a white 1993
Lincoln Town Car to the Defendant, and Mr. Smith handled the paperwork for the
purchase. Mr. Smith drew up a contract for sale and made a copy of the Defendant’s
driver’s license and social security card. The Defendant paid cash for the car. The
Defendant left driving the Lincoln, followed by his companion, who drove the Dodge.
Mr. Smith identified a bill of sale for the purchase, signed by “Henry Lee Jones,” and a
photocopy of the Defendant’s driver’s license and social security card that the Defendant
used for identification while making the purchase.

       Several witnesses corroborated the Defendant’s presence in or near Bartlett,
Tennessee, during the time of the murders. Diane Armstrong is the Defendant’s niece.
She testified that, earlier in 2003, the Defendant and his girlfriend had lived with her and
her husband, Wesley Armstrong, in their home in Arlington, Tennessee. For a time, the
Defendant worked for Wesley at the Burger King where Wesley was employed as a
manager. Eventually, the Defendant and his girlfriend moved into their own apartment in
the Bartlett area of Memphis, and Ms. Armstrong saw him less frequently after he
moved. Ms. Armstrong testified that, early on a Friday morning in August 2003, after
she had not seen the Defendant in a month or two, he showed up at her house looking for
Wesley. Ms. Armstrong sent the Defendant to the Burger King that Mr. Armstrong
managed and told him that Mr. Armstrong would buy his breakfast. When Ms.
                                            11
Armstrong walked the Defendant back to his car, she saw another young man asleep in
the front passenger seat. The Defendant left, and she never saw him again.

       Ms. Armstrong’s husband, Wesley Armstrong, testified that he was the general
manager of the Burger King in Wolfchase Mall in Arlington, Tennessee. In May or June
2003, the Defendant and his girlfriend came to live with him and his wife, and they
stayed for three to four weeks. Both of them worked for him for a short time—the
Defendant six to eight weeks, the girlfriend for a lesser time. Mr. Armstrong had not
seen the Defendant in a while and assumed he had left town when, one Friday morning in
August 2003, while he was on his way back to the Burger King store from making a bank
deposit, he received a telephone call from his wife telling him that the Defendant was on
his way to the store to eat breakfast. Mr. Armstrong testified that when he arrived back at
the store, the Defendant was already there. The Defendant was accompanied by a young
skinny black man with braids, and Mr. Armstrong had the Defendant bring his friend
inside the store where he fed both of them breakfast. The Defendant told him he was in
town to get mail and stayed for approximately an hour. After they finished eating, the
Defendant and his companion got into the car and left.

       Justin Turberville testified that, in August 2003, he lived at the Deerfield
Apartments on the corner of Bartlett Boulevard and Sycamore View. For a time, the
Defendant lived in an apartment “caddy-corner” from him, and they would see each other
coming and going. On a Friday before seeing the crime tape up at the victim’s house, he
saw the Defendant in the neighborhood. The Defendant told him he was in town
checking on mail. Mr. Turberville drove by the crime scene on the way home from work
that day. He later saw the Defendant’s photograph on a television news report of the
crime and contacted the police.

       Two witnesses testified that, on a day prior to the report of the victims’ deaths,
they saw victim Clarence James sitting in his garage and speaking to two African-
American men. Gretta Thompson, who knew the victims “in passing,” passed the
victims’ house nearly every morning on her way to work. She testified about Clarence
James’ habit of sitting out in his garage or his yard and waving to passers-by. She
recalled that, on a Friday morning in August 2003, as she was driving to work at about
8:00 a.m. that morning, she noticed Mr. James in his usual spot, with two black men
standing beside him and talking.

      Christopher Stallion, who was employed by the Bartlett City Sanitation
Department, regularly drove a Friday route that passed by the victims’ house. He saw
Mr. James every Friday, sitting out under his “carport.” On Friday, August 22, 2003, he
would have passed by the victim’s home at 12:40 p.m. On that day, he recalled seeing
Mr. James in his usual spot. Mr. Stallion recalled that on this occasion, he saw two black
                                            12
men with the victim, one standing to the left and one kneeling down. Once he heard on
the news what had happened to the victims, Mr. Stallion contacted the Bartlett Police
Department and told them what he had observed.

        Officer Carlos Reyes of the Brevard County, Florida Sheriff’s Office, testified that
on Monday, August 25, 2003, as he was driving southbound on I-95 in an unmarked
police car, he noticed a white Dodge Aries “erratically” driving south on I-95 near
Melbourne, Florida. The car was speeding, weaving in and out of traffic, tailgating, and
flashing its lights for cars to get out of its way. Officer Reyes testified he was reluctant to
make a traffic stop because he was on his way to a meeting. When the car began to
tailgate him, Officer Reyes flashed his rear blue lights in an attempt to get the car to back
off. The car slowed for a short time, but eventually pulled behind him and began to
tailgate again. Officer Reyes moved over to allow the car to pass and then, reluctantly,
made a traffic stop. He asked the driver, later identified as Tevarus Young, why he was
driving so erratically. Mr. Young told Office Reyes that he was following his stepfather,
who was driving a white Lincoln Town Car. Mr. Young did not have a driver’s license
or vehicle registration and initially gave Officer Reyes a fictitious name and date of birth,
which came back from the dispatcher as “no record found.” Shortly after Officer Reyes
made the traffic stop, a white Lincoln Town Car pulled in behind him. The driver
identified himself as Henry Lee Jones and told the officer that he had just met Mr. Young
and was paying him to drive the Dodge to south Florida. Mr. Jones provided the proper
documentation for both cars.

       Based on the inconsistent information provided by the two men, and after
verifying that Mr. Jones was the owner of both vehicles, Officer Reyes told Mr. Jones
that while he would not have the Dodge towed, Mr. Jones could not remain in the area
and would have to return in about twenty-five minutes to retrieve the Dodge. The
Defendant left, and Officer Reyes confronted Mr. Young with the information that Mr.
Jones was not his stepfather and he had provided a false name and date of birth. Mr.
Young relented and gave Officer Reyes his true name and date of birth. When Officer
Reyes performed a records check and discovered that Mr. Young had an outstanding
warrant from Broward County, Florida, he arrested him.

        Detective Johnny Lawson, formerly of the Melbourne, Florida, Police Department,
testified that, in late August 2003, he received a BOLO from the Bartlett, Tennessee,
Police Department about a white Lincoln Town Car identified with the use of a credit
card at a Speedway gas station at the intersection of I-95 and US192 in Melbourne.
Detective Lawson contacted a Brevard County Sheriff’s deputy, who provided him a
photo of the car taken from security cameras at the Melbourne Speedway station.



                                              13
        On about September 4, 2003, while in Ft. Lauderdale, Florida, working another
case, Detective Lawson saw a white Lincoln Town Car matching the description in the
BOLO, with vanity tags “69BAM,” which was registered to the Defendant. Detective
Lawson contacted the Bartlett, Tennessee, Police Department with this information.
When doing an “offline search,” he learned that this vehicle was involved in a traffic stop
in Melbourne on August 25, 2003, with a Dodge Aries K-car. He contacted Officer
Reyes and learned of Tevarus Young’s involvement and that Mr. Young was incarcerated
in Ft. Lauderdale, Florida. Detective Lawson contacted Detective Massey of the Bartlett
Police Department with this information. On September 12, 2003, he and Detective
Massey went together to Ft. Lauderdale and interviewed Mr. Young.5

       The first interview with Mr. Young lasted over two hours. Initially, his demeanor
was congenial but reserved. However, when they began questioning him about the
Bartlett murders, Mr. Young’s demeanor changed dramatically. Detective Lawson
described him as “crying almost uncontrollably” to the point of getting “violently sick”
and vomiting. Eventually, Mr. Young gave them information related to the Bartlett
homicides. The following day, the detectives returned for a second interview with Mr.
Young. Mr. Young was very emotional during this second interview as well but gave
them more information about the crimes.

       Thereafter, Detective Lawson learned from the Bartlett Police Department that the
Defendant had been indicted. Detective Lawson and detectives from the Bartlett Police
Department traveled to Ft. Lauderdale and found the Lincoln in an apartment complex
parking lot. Later, on September 17, 2003, Detective Lawson was notified that the
Defendant had been arrested6 and that the Dodge had been located, also in Ft.
Lauderdale. Search warrants were obtained for both vehicles, and they were both sent to
the Florida Department of Law Enforcement Crime Lab for processing. One of Mrs.
James’ rings was found in the back seat of the Lincoln. Three more of Mrs. James’ rings
were recovered from Tevarus Young’s personal property at the Ft. Lauderdale jail.

      Detective Lawson interviewed the Defendant at the Ft. Lauderdale Police
Department after he was arrested. The Defendant waived his Miranda rights and denied
any involvement in the Bartlett murders. He claimed he went to Batesville, Mississippi,
and purchased the Lincoln Town Car two to three weeks before he actually picked it up.
He said that he drove from Ft. Lauderdale to Batesville and took Tevarus Young with
him to pick it up. He did not mention going to Bartlett, Tennessee. He said that on the
way back, he left Mr. Young in Bunell, Florida, with the Dodge, and drove the Lincoln to
Orlando, Florida, to “do some things.” He denied leaving the keys to the Dodge with Mr.
      5
          The testimony of Detectives Lawson and Massey is discussed together in narrative form.
      6
          The record does not describe the details of the Defendant’s arrest.
                                                    14
Young. Eventually, he returned to Bunell to retrieve the Dodge. The Defendant told
Detective Lawson about the incident on I-95 south when Mr. Young was arrested.

       After Detective Lawson’s testimony, the State had only one remaining witness:
the medical examiner. Just before the medical examiner was called to the stand, the
Defendant announced to the trial court that he was going to step down and allow Mr.
Gulley to take over as counsel. The trial court had the Defendant take the witness stand
and directed Mr. Gulley to examine the Defendant about this latest decision. The
Defendant simply stated that, “after thinking about it,” he had changed his mind and
wished counsel to examine the State’s last witness and present his defense. He said no
one had forced or coerced him into making the decision. The Defendant affirmed that he
understood he had a right to represent himself and that he would be giving up control of
the case. The court permitted Mr. Gulley to take over.

       Before the medical examiner began testifying, Mr. Gulley objected to several of
the autopsy photographs that the State intended to introduce, arguing that they were
cumulative to the medical examiner’s testimony, inflammatory, and unduly prejudicial.
The trial court overruled the objections, finding that the probative value of the
photographs to show premeditation and identity of the perpetrator outweighed any
prejudicial effect.

        Dr. Karen Chancellor, the Shelby County Medical Examiner, did not perform the
autopsies of Mr. and Mrs. James, but she testified from the autopsy reports prepared by
those who did—Dr. O. C. Smith and Dr. Teresa Campbell.7 Dr. Chancellor testified that
Mrs. James suffered from bruising to the right side of her neck consistent with the use of
a cord, bruising on both shoulders, and bruising of her tongue. There were petechial
hemorrhages around both eyes, on the face, and within the eyes themselves, indicative of
compression of the victim’s neck and asphyxia. The victim suffered from several
superficial cut marks to the neck and two significant cut wounds that caused injury to the
right external jugular vein, the left internal jugular vein, and the left carotid artery. These
latter injuries caused significant bleeding. There were cut marks on the cervical spine
bone, indicating the instrument used to cut the neck had penetrated to the bone. Both
forearms had cut wounds and bruising. There were compression marks around the base
of both ring fingers, but no rings. Over the defense’s continued objection, the trial court
admitted twelve photographs depicting cut wounds to Mrs. James’ neck and both
forearms, bruising to Mrs. James’ neck, arms, and underarms, and indention impressions
on the base of Mrs. James’ ring finger. Dr. Chancellor reported that the cause of Mrs.
James’ death was strangulation and sharp force injuries to the neck.


       7
           There was no objection to this testimony.
                                                       15
       Dr. Chancellor testified that Mr. James had suffered several sharp force injuries to
his neck, which included four confluent incised wounds to the front of the neck and one
stab wound to the right side of the neck that penetrated the larynx and caused bleeding
into the upper airway. He also had fractures to the C-4, C-5, and C-6 vertebrae, likely
caused by some form of restraint that caused his head to be forced forward. Mr. James
suffered compressive wounds to the front of the neck that fractured the hyoid bone,
consistent with being manually strangled. He also had petechial hemorrhaging around
the eyes that was common in victims who were strangled. Mr. James suffered blunt force
injuries to his chest as well, which resulted in twelve fractures of eleven ribs on both
sides of the chest. The chest injuries were the result of a compressive force applied to the
front or the back of the body. Dr. Chancellor agreed that stomping could have caused
such injuries. There were bruises on Mr. James’ forearms and on his shoulder, and
ligature marks on his forearm with an incise wound crossing the ligature mark. Over the
defense’s continued objection, the trial court admitted eight photographs depicting cut
and stab wounds to Mr. James’ neck, petechial hemorrhaging in Mr. James’ right eye,
bruising to Mr. James’ right shoulder, arms and wrists, and Mr. James’ cleaned rib cage
with broken ribs. Dr. Chancellor opined that Mr. James’ cause of death was a
combination of sharp force injuries to the neck, multiple blunt force rib fractures to the
chest, and compressive injury to the neck resulting in strangulation.

        The defense did not cross-examine Dr. Chancellor about the injuries to the victims
or their cause of death.

        After Dr. Chancellor’s testimony, the State rested its case. Mr. Gulley
immediately made several motions. In the first, he moved for a mistrial on the basis that
the Defendant should not have been allowed to represent himself, that he failed to
adequately represent himself, and that the Defendant’s right to represent himself was not
absolute, especially in these circumstances when he was charged with multiple capital
offenses. The trial court denied the motion, stating that the Defendant had an absolute
right to represent himself. The court noted that it had repeatedly advised the Defendant
against proceeding pro se and found that although proceeding without a lawyer was not a
wise decision, the Defendant was nevertheless competent to make it.

       In the second motion, defense counsel noted that he was not appointed as resource
counsel until three months before trial and moved the court for appointment of a second
attorney to assist him with the presentation of the Defendant’s defense and for a
mitigation expert to assist him with the gathering and presentation of mitigation evidence
at the penalty phase. The trial court noted that counsel was in a difficult situation, but it
was due entirely to the Defendant’s actions in refusing the assistance of counsel. The
court stated,

                                             16
       [H]ad he not insisted on representing himself then he probably would have
       had two attorneys with a lot more time to get ready but he waived all that
       when he insisted upon swearing this jury and getting through this trial as
       his own attorney.

              Again, I don’t think anybody in the room thinks it was a wise choice
       but that was his choice and his right and his privilege under our constitution
       to represent himself and we gave him that right and now he can’t after we
       give him that right use that right to manipulate the system. We’re going to
       go forward.

The court denied the motions. The court noted that since the Defendant had waived his
right to counsel, technically, Mr. Gulley was not obligated to represent him, but the court
would appreciate it if he would assist the Defendant. Mr. Gulley agreed to go forward.

        Mr. Gulley then made a motion for judgment of acquittal, which the trial court
denied. The defense presented one witness, Florence Jones, who was Lillian James’
sister. Ms. Jones testified that she talked to Mrs. James on the morning of August 22,
2003, between 11:00 a.m. and noon. The defense then introduced as an exhibit a certified
copy of the judgments against Tevarus Young for his role in these offenses, which
reflected that he pled guilty to two counts of facilitation of first degree murder and was
sentenced as a mitigated offender to two concurrent sentences of thirteen-and-one-half
years of incarceration. The trial court held a hearing pursuant to Momon v. State, 18
S.W.3d 152, 162 (Tenn. 1999), during which the Defendant acknowledged and waived
his constitutional right to testify in his own defense.

        The defense sought to admit documentation showing that Tevarus Young was
“unavailable” because he was evading process. The State objected unless the jury was
also told that the Defendant was offered a continuance to give the State time to procure
Mr. Young, but he declined the offer. In the end, the trial court permitted the defense to
introduce the judgment sheets reflecting Mr. Young’s convictions for these offenses and
a certificate from the Criminal Court of the 30th District of the State of Tennessee for the
arrest of Tevarus Young to appear and testify in the case. The court explained to the jury
that the Defendant was offered a continuance to give the State time to locate Mr. Young,
but he declined. The defense then rested its case and made a motion for a judgment of
acquittal, which the trial court denied.

      At the conclusion of the guilt phase, the jury found the Defendant guilty of the
premeditated and felony murder of Clarence James and the premeditated and felony
murder of Lillian James.

                                            17
                                     III. Penalty Phase

        After the jury returned its verdicts of guilt, Mr. Gulley informed the trial court that
the Defendant wanted to reassert his right to proceed pro se. Counsel stated that he and
the Defendant disagreed over whether to present evidence in mitigation. The Defendant
did not want to present any evidence in mitigation, but counsel felt he had a duty to
present such evidence and intended to do so in the form of prior testimony from the
Defendant’s brother. The trial court advised counsel that under this Court’s opinion in
Zagorski v. State, 983 S.W.2d 654, 658-59 (Tenn. 1998), a competent and informed
defendant had the right to waive the presentation of proof in mitigation. After a short
recess to allow counsel to further consult with the Defendant on the issue, the parties
returned to court where Mr. Gulley informed the trial court that the Defendant was firm
in his resolve to represent himself and to not present any evidence in mitigation. The trial
court conducted another voir dire of the Defendant to assess his competency to waive his
right to present mitigation evidence. The Defendant affirmed that he wished to proceed
pro se. After consulting with counsel, who advised him on the importance of presenting
evidence in mitigation, he wished to waive that right. The court advised the Defendant
against proceeding pro se but ultimately allowed him to resume self-representation. Mr.
Gulley remained on as resource counsel.

       Before beginning the penalty phase, the State proposed that the Defendant
stipulate to five prior convictions out of Broward County, Florida. The Defendant
objected to admission of his prior convictions but stated that he was “waiving the hearing
and they can do whatever they want to do.”

       Thereafter, the State presented as exhibits certified copies of judgments reflecting
the Defendant’s prior convictions for robbery and kidnapping (Broward County, Florida
Indictment No. 81-11113CF), two counts of battery of a law enforcement officer
(Broward County, Florida Indictment No. 81-10611CF), and aggravated battery
(Broward County, Florida Indictment No. 31-7772CF). The trial court determined that
these prior convictions were for crimes of violence whose statutory elements involved
violence to the person, and those documents were admitted as exhibits.

        The State then offered, over the Defendant’s objection that the case was still on
appeal in the State of Florida, testimony from Florida Assistant State Attorney Russell
Bausch. Mr. Bausch testified that the Defendant was convicted on October 6, 2013, of
the first degree premeditated murder of Carlos Perez. Mr. Perez was murdered on
August 27, 2003, in a motel room in Melbourne, Florida, just five days after the murders
of the victims in this case. Florida detectives Johnny Lawson and Scott Dwyer testified
as to the details of Mr. Perez’s murder, including the facts that Mr. Perez’s throat was cut
and he had ligature marks on his wrists and ankles. The scene of Mr. Perez’s murder had
                                              18
been cleaned with towels and washcloths from the motel room. The furniture had been
wiped clean of fingerprints, although one shoeprint was found in the bathroom. A pillow
case was missing, as were Mr. Perez’s clothes. Two pubic hairs found in the room were a
mitochondrial DNA match to the Defendant.

        The State then offered victim impact testimony from Lillian James’
granddaughter, Lashaundria Kemmons, and Clarence James’ granddaughter, Veronica
Lewis. Both women testified concerning their relationship with the victims and the
trauma of the loss suffered by family members. They each detailed the major life
milestones in their lives of which the victims missed being a part, including graduations,
births, and deaths of close family members.

       At the conclusion of the penalty phase, the jury found the evidence sufficient to
support the following aggravating circumstances: history of prior violent felony
convictions, Tenn. Code Ann. § 39-13-204(i)(2) (2003); murders were heinous, atrocious
or cruel, id. at (i)(5); murders were committed to avoid or prevent lawful arrest or
prosecution, id. at (i)(6); murders were committed during robbery, id. at (i)(7); mass
murder, id. at (i)(12); and, as to Clarence James only, the victim was seventy years of age
or older, id. at (i)(14). The jury unanimously determined that these aggravating
circumstances outweighed any mitigating circumstances beyond a reasonable doubt and
sentenced the Defendant to death on all four counts of first degree murder. The trial
court merged the felony murder convictions into the premeditated murder convictions.

        Over the Defendant’s objection, Mr. Gulley was appointed to represent the
Defendant for purposes of filing a motion for new trial and pursuing an appeal. Although
maintaining that he wished to proceed pro se on appeal, the Defendant refused to sign a
document waiving his right to an attorney on appeal. Accordingly, the trial court
appointed James Thomas as lead counsel and Mr. Gulley as co-counsel for purposes of
filing a motion for new trial and pursuing an appeal.8 Thereafter, counsel filed a motion
for new trial and the Defendant filed a pro se motion for new trial. The trial court
considered and denied both motions. On appeal, the Court of Criminal Appeals affirmed
the convictions and sentences of death. State v. Jones, No. W2015-02210-CCA-R3-DD,
2017 WL 4124164 (Tenn. Crim. App. Sept. 18, 2017).


        8
          After the briefs were filed in this Court, Mr. Thomas was permitted to withdraw after he took a
position as an Assistant District Attorney General for the 30th Judicial District. Mr. Gulley graciously
agreed to continue to serve through the oral argument of this case and, despite this Court’s offer to
appoint a second attorney to assist him pursuant to Tennessee Supreme Court Rule 13, section 3, did not
ask for the appointment of a second attorney. We commend Mr. Gulley for his willingness to serve, his
participation in the S.C.A.L.E.S. project, and his excellent performance through oral argument.

                                                   19
                                         Analysis

                                    I. Right to Counsel

        The Defendant asserts that the trial court erred in permitting him to represent
himself in the first place and that when resource counsel ultimately took over, the trial
court erred in denying the motion for a mistrial based on his own ineffective pro se
representation or in failing to appoint a second attorney to represent him. The State
responds that the Defendant knowingly and voluntarily waived his right to counsel, his
self-representation did not create a manifest necessity for a mistrial, and by waiving his
right to counsel, he necessarily waived his right to the appointment of a second attorney.

       The standard of review for a defendant’s exercise of the right of self-
representation and the concurrent waiver of the right to counsel is a mixed question of
law and fact. State v. Hester, 324 S.W.3d 1, 29 (Tenn. 2010). Our review is de novo
with a presumption of correctness as to the trial court’s factual findings. Id. at 29-30.
“An error in denying the exercise of the right to self-representation is a structural
constitutional error not amenable to harmless error review and requires automatic
reversal when it occurs.” Id. (citing State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn.
2008)).

        It has long been established that a criminal defendant has a constitutional right to
proceed without counsel “when he voluntarily and intelligently elects to do so.” Faretta
v. California, 422 U.S. 806, 807 (1975); see also State v. Small, 988 S.W.2d 671, 673
(Tenn. 1999). The fact that a capital defendant faces the death penalty does not alter the
availability of the right of self-representation. Hester, 324 S.W.3d at 32 (stating, “While
the trial court’s added concern for assuring that [the defendant] is competently
represented in a capital case is understandable, it was error to prevent [the defendant]
from exercising his right to self-representation on this basis. A defendant does not lose
his or her right to self-representation because he is being tried for a capital offense.”
(citing Sherwood v. State, 717 N.E.2d 131, 135 (Ind. 1999); State v. Mems, 190 S.E.2d
164, 173 (N.C. 1972); Commonwealth v. Davido, 868 S.2d 431, 444 (Penn. 2005); State
v. Brewer, 492 S.E.2d 97, 98–99 (S.C. 1997))).

       However, there are three essential prerequisites that must be present before the
right of self-representation becomes absolute: (1) the right must be asserted in a timely
manner; (2) the request must be clear and unequivocal; and (3) the defendant must
knowingly and intelligently waive the right to counsel. Id. at 30–31. A defendant need
not have knowledge of the law and the legal system equivalent to that of an attorney to
knowingly and intelligently waive his right to counsel. State v. Goodwin, 909 S.W.2d
35, 40 (Tenn. Crim. App. 1995) (citing Faretta, 422 U.S. at 835). The record need only
                                            20
show that the defendant made his decision knowing the disadvantages and the dangers of
self-representation. Id.

       “The accused’s lack of expertise or professional capabilities is not a factor to be
considered by the trial court when an accused invokes his constitutional right to self-
representation.” State v. Herrod, 754 S.W.2d 627, 630 (Tenn. Crim. App. 1988) (citing
Faretta, 422 U.S. at 836; Johnstone v. Kelly, 808 F.2d 214 (2nd Cir. 1986)). In Faretta,
the Court said that “a defendant need not himself have the skill and experience of a
lawyer in order competently and intelligently to choose self-representation.” 422 U.S. at
835.

      In other words, the accused’s ‘technical legal knowledge’ is irrelevant to
      the inquiry of whether an accused should be permitted to exercise his right
      to self-representation; and, a court may not deny an accused the right of
      self-representation because the accused does not possess the basic
      knowledge of how a jury trial is conducted or knowledge of his rights.

Herrod, 754 S.W.2d at 630 (quoting Faretta, 422 U.S. at 836) (internal quotation marks
omitted).

       When a defendant asks to proceed pro se, the court must conduct an intensive
inquiry as to his ability to represent himself. See State v. Northington, 667 S.W.2d 57, 61
(Tenn. 1984). To be valid, a defendant’s waiver of his right to counsel “must be made
with an apprehension of the nature of the charges, the statutory offenses included within
them, the range of allowable punishments thereunder, possible defenses to the charges
and circumstances in mitigation thereof, and all other facts essential to a broad
understanding of the whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724 (1948).
“A judge can make certain that an accused’s professed waiver of counsel is
understandingly and wisely made only from a penetrating and comprehensive
examination of all the circumstances under which such a plea is tendered.” Id.

      Tennessee Rule of Criminal Procedure 44(b)(1) specifically provides that

      [b]efore accepting a waiver of counsel, the court shall: (A) advise the
      accused in open court of the right to the aid of counsel at every stage of the
      proceedings; and (B) determine whether there has been a competent and
      intelligent waiver of such right by inquiring into the background,
      experience, and conduct of the accused, and other appropriate matters.

In addition, the waiver of counsel must be submitted in writing and made a part of the
record. Tenn. R. Crim. P. 44(b)(2) & (b)(3).
                                            21
        As summarized above, the record makes clear that the trial court conducted the
appropriate inquiry and properly advised the Defendant before concluding that the
Defendant had effectively waived his right to counsel. We hold that the trial court did
not err in its ruling.

       The Defendant contends that, for capital cases, this Court should go beyond the
requirements set out in Herrod and require additional findings. He submits that
permitting a pro se defendant to represent himself in a capital trial is never beneficial, nor
should it be constitutional. The Defendant goes on to point out multiple instances in
which he now claims he was ineffective. This argument is expressly precluded by this
Court’s decisions in Hester, 324 S.W.3d at 32, and State v. Carruthers, 35 S.W.3d 516,
551 (Tenn. 2000), both cases in which this Court addressed the capital defendants’
waiver or forfeiture of their right to counsel. The record shows that the trial court
repeatedly advised the Defendant of his right to counsel, strenuously discouraged the
Defendant from proceeding pro se, and gave him multiple opportunities at various
junctures during the trial to bring in counsel. In fact, as noted above, the Defendant was
permitted to avail himself of the right to counsel for the examination of the medical
examiner and closing arguments at the guilt phase, although he later changed his mind
and resumed acting pro se for the sentencing phase. We hold that the Defendant
knowingly and intelligently waived his right to counsel.

        The Defendant next contends that, when resource counsel took over briefly for the
examination of the medical examiner and closing arguments, the trial court erred by
denying counsel’s motion for mistrial based on ineffective representation. He contends
that he had so woefully conducted his own representation that a mistrial was warranted.

       A mistrial is appropriate “‘to correct damage done to the judicial process when
some event has occurred which precludes an impartial verdict.’” State v. Reid, 164
S.W.3d 286, appx. 341–42 (Tenn. 2005) (quoting State v. Williams, 929 S.W.2d 385, 388
(Tenn. Crim. App. 1996)). The decision whether to grant a mistrial lies within the
discretion of the trial court, and “‘[t]his Court will not interfere with the trial court’s
decision absent a clear abuse of discretion on the record.’” State v. Bell, 512 S.W.3d
167, 187 (Tenn. 2015) (quoting State v. Reid, 91 S.W.3d 247, 279 (Tenn. 2002)), cert.
denied 136 S. Ct. 2006 (U.S. May 16, 2016). “‘Normally, a mistrial should be declared
only if there is a manifest necessity for such action.’” Id. (quoting State v. Saylor, 117
S.W.3d 239, 250 (Tenn. 2003)). “‘In other words, a mistrial is an appropriate remedy
when a trial cannot continue, or a miscarriage of justice would result if it did.’” Id.
(quoting State v. Land, 34 S.W.3d 516, 527 (Tenn. Crim. App. 2000)). “The party
seeking a mistrial has the burden of establishing its necessity.” Id. (citing State v. Banks,
271 S.W.3d 90, 137 (Tenn. 2008)).

                                             22
        A defendant who knowingly and intelligently waives the right to counsel cannot
later allege the denial of effective assistance of counsel because of his own poor
performance. See Carruthers, 35 S.W.3d at 551. As the Court of Criminal Appeals
pointed out below, to declare a mistrial under these circumstances would only encourage
future defendants to delay their trial indefinitely by flip-flopping on the decision to
proceed pro se. Additionally, as this Court noted in Carruthers, “when a defendant
forfeits or waives the right to counsel, . . . he or she also forfeits or waives the right to
effective assistance of counsel.” Id.

       The Defendant was the author of his own fate, and “[n]othing is better settled than
the rule that an appellant cannot take advantage of errors which he committed, invited or
induced the trial court to commit.” State v. Jones, 733 S.W.2d 517, 521 (Tenn. Crim.
App. 1987) (citing Gentry v. Betty Lou Bakeries, 100 S.W.2d 230, 231 (Tenn. 1937)).
The Defendant has failed to establish that the trial court erred by denying his request for a
mistrial.

       The Defendant also contends that the trial court erred, when resource counsel took
over, in failing to appoint a second attorney. Although the Defendant earlier had
expressly waived his right to counsel, once he requested counsel and Mr. Gulley took
over, Mr. Gulley moved for the assistance of a second attorney, which the trial court
denied.

       Tennessee Supreme Court Rule 13, section 3(b)(1) provides for appointment of
two attorneys in capital cases. However, as the Court of Criminal Appeals pointed out
below, this is not a rule of constitutional dimension—there is no “per se” right to the
assistance of two attorneys in capital cases. Hester, 324 S.W.3d at 35 (citing Bell v.
Watkins, 692 F.2d 999, 1009 (5th Cir. 1982); Arrington v. State, 687 S.E.2d 438, 448
(Ga. 2009); Davis v. State, 743 So. 2d 326, 340–41 (Miss. 1999)). Moreover, the
Defendant’s waiver of his right to counsel necessarily included the waiver of the right to
two attorneys. Furthermore, appointment of a second attorney at this point would have
been futile. Without time to review the evidence and without participating in the trial up
to that point, any assistance provided by a second attorney would have been minimal at
best. The trial court did not abuse its discretion in denying the motion for a second
attorney.

                         II. Former Testimony of Tevarus Young

       The Defendant asserts that the trial court erred in finding that Mr. Young was
unavailable as a witness, by instructing the jury that the Defendant could have agreed to a
continuance to allow the State to locate Mr. Young, and by allowing into evidence Mr.
Young’s testimony that the Defendant raped him. The State responds that, after its good
                                             23
faith efforts to locate Mr. Young and bring him to court failed, the trial court properly
determined that Mr. Young was unavailable for purposes of introducing his prior
testimony at trial. As for the Defendant’s claim that the court erred by instructing the
jury that he had objected to a continuance for the State to try to locate Mr. Young, the
State points out that the Defendant affirmatively agreed to this instruction at trial as part
of an agreement that the jury also would be instructed that Mr. Young was evading
service of process. By acquiescing in the trial court’s instruction, the State contends, the
Defendant waived his right to claim this issue as “plain error.”

       “Generally, this Court reviews a trial court’s decisions regarding the admissibility
of evidence for an abuse of discretion.” State v. Davis, 466 S.W.3d 49, 61 (Tenn. 2015)
(citing State v. Franklin, 308 S.W.3d 799, 809 (Tenn. 2010)). “A trial court abuses its
discretion when it applies an incorrect legal standard, reaches an illogical conclusion,
bases its decision on a clearly erroneous assessment of the evidence, or employs
reasoning that causes an injustice to the complaining party.” Id. (citing State v. Clark,
452 S.W.3d 268, 287 (Tenn. 2014)).

       Prior testimony is considered hearsay, defined as “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” Tenn. R. Evid. 801(c). Subject to the exceptions set
forth in Tennessee Rules of Evidence 803 and 804, hearsay generally is not admissible.
Tenn. R. Evid. 802. “Prior statements of witnesses . . . constitute hearsay evidence if
offered for the truth of the matter asserted therein.” State v. Braggs, 604 S.W.2d 883,
885 (Tenn. Crim. App. 1980) (citing Mays v. State, 495 S.W.2d 833 (Tenn. Crim. App.
1972); Johnson v. State, 596 S.W.2d 97 (Tenn. Crim. App. 1979)).

       Tennessee Rule of Evidence 804 provides a hearsay exception for the former
testimony of a declarant who is unavailable as a witness if the testimony was

       given as a witness at another hearing of the same or a different proceeding
       or in a deposition taken in compliance with law in the course of the same or
       another proceeding, if the party against whom the testimony is now offered
       had both an opportunity and a similar motive to develop the testimony by
       direct, cross, or redirect examination.

Tenn. R. Evid. 804(b)(1). “‘Unavailability of a witness’ includes situations in which the
declarant . . . is absent from the hearing and the proponent of a statement has been unable
to procure the declarant’s attendance by process.” Tenn. R. Evid. 804(a)(5).

       Trial courts must conduct layered inquiries when determining the admissibility of

                                             24
evidence objected to on the grounds of hearsay, and our standard of review varies
accordingly:

       Initially, the trial court must determine whether the statement is hearsay. If
       the statement is hearsay, then the trial court must then determine whether
       the hearsay statement fits within one of the exceptions. To answer these
       questions, the trial court may need to receive evidence and hear testimony.
       When the trial court makes factual findings and credibility determinations
       in the course of ruling on an evidentiary motion, these factual and
       credibility findings are binding on a reviewing court unless the evidence in
       the record preponderates against them. State v. Gilley, 297 S.W.3d [739,]
       759–61 [(Tenn. Crim. App. 2008)]. Once the trial court has made its factual
       findings, the next questions—whether the facts prove that the statement (1)
       was hearsay and (2) fits under one [of] the exceptions to the hearsay rule—
       are questions of law subject to de novo review. State v. Schiefelbein, 230
       S.W.3d 88, 128 (Tenn. Crim. App. 2007); Keisling v. Keisling, 196 S.W.3d
       703, 721 (Tenn. Ct. App. 2005).

Kendrick v. State, 454 S.W.3d 450, 479 (Tenn. 2015).

       Intertwined with the rules on the admissibility of hearsay is the constitutional right
to confront witnesses. See U.S. Const. Amend. VI; Tenn. Const. art. I, § 9; see also
Crawford v. Washington, 541 U.S. 36, 51 (2004); State v. Brown, 29 S.W.3d 427, 430–
31 (Tenn. 2000). This includes the right to physically face the witness and the right to
cross-examine the witness. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987); Brown, 29
S.W.3d at 430–31. Accordingly, a witness’s prior testimony against a criminal defendant
is inadmissible unless the witness appears at trial or, if the witness is unavailable, the
defendant had a prior opportunity to cross-examine the witness. See Crawford, 541 U.S.
at 53–54.

        In order to satisfy the right to confrontation when the State seeks to admit prior
testimony of an unavailable witness, the State must show that the witness is truly
unavailable after good faith efforts were made to obtain the witness’s presence. See State
v. Sharp, 327 S.W.3d 704, 709, 712 (Tenn. Crim. App. 2010) (citing State v. Henderson,
554 S.W.2d 117, 120 (Tenn. 1997); State v. Armes, 607 S.W.2d 234, 236–37 (Tenn.
1980)). “The ultimate question is whether the witness is unavailable despite good-faith
efforts undertaken prior to trial to locate and present that witness.” Ohio v. Roberts, 448
U.S. 56, 74 (1980), overruled on other grounds by Crawford, 541 U.S. 36. “Good faith”
contemplates “‘[t]he lengths to which the prosecution must go to produce a witness . . .
[and] is a question of reasonableness.’” Id. (quoting California v. Green, 399 U.S. 149,
189 n.22 (1970)). We review a trial court’s determination regarding the absent witness’s
                                             25
unavailability for an abuse of discretion. Sharp. 327 S.W.3d at 712 (citing Hicks v. State,
490 S.W.2d 174, 179 (Tenn. Crim. App. 1972)).

        The Defendant contends that, by delaying until one month prior to trial before
trying to find Tavarus Young, the State failed to make a good faith effort to locate him,
and, as a result, his prior testimony should not have been admitted. The evidence shows
that, approximately one month before trial, the State contacted multiple jurisdictions in
Florida, where Mr. Young was believed to be living. The Florida authorities found an
address for Mr. Young’s mother, and she provided his phone number. One of the
prosecutors called Mr. Young in early April 2015, and Mr. Young stated that he would
not return to Tennessee to testify. The State provided multiple emails between the State
of Tennessee and the State of Florida reflecting the law enforcement attempts to locate
Mr. Young. Mr. Young’s photograph also was posted in a Florida newspaper in an effort
to obtain the assistance of the general public in finding him. The State filed two
petitions, on April 13, 2015, and on May 4, 2015, to secure Mr. Young’s presence at trial.
Based on those petitions, and pursuant to the Law to Secure Witnesses, the trial court
issued certificates to secure Mr. Young’s presence in court for the Defendant’s trial. In
the second certificate, the court stated that Mr. Young appeared to be evading service of
process and had indicated his unwillingness to appear and testify. The court ordered that
Mr. Young be immediately taken into custody and delivered to Tennessee. The Circuit
Court of the Eleventh Judicial District in Miami, Dade County, Florida, received the
certificates issued by the trial court and issued a summons for Mr. Young. However, the
Florida court found that Mr. Young was “actively evading service of the summons to
appear.” A summons was served on Mr. Young’s mother, and, when he nevertheless
failed to appear in the Florida court pursuant to that summons, the Florida court ordered
his arrest. Law enforcement continued to try to locate Mr. Young by contacting his
relatives in Florida and a previous girlfriend in Oklahoma, all to no avail. The prosecutor
explained that Mr. Young could not be located and that he was unaware of any other
efforts the State could make to secure his presence. The efforts to locate Mr. Young
continued even after the trial began.

       The record establishes that the State made multiple good-faith efforts to locate Mr.
Young and secure his presence at trial. We conclude that the trial court did not abuse its
discretion in determining that Mr. Young was unavailable.

       Next, the Defendant contends that the trial court erred by instructing the jury that
he could have agreed to a continuance to allow the State to locate Mr. Young. Prior to
the reading of Mr. Young’s testimony, the trial court explained to the jury that the State
would be introducing the testimony of a witness from a prior hearing because the witness
was unavailable. The court expressly informed the jury that it had found the witness was
unavailable, that the prior testimony had been given under oath in a prior courtroom
                                            26
hearing, that the Defendant had been involved in the prior proceeding and had the
opportunity to cross-examine the witness at that prior proceeding, and that the Defendant
had been represented by counsel at the prior proceeding. Before introduction of Mr.
Young’s testimony and out of the presence of the jury, the Defendant asked whether the
court was going to inform the jury why Mr. Young was not present. The court responded
that it was not going to give the jury any additional information. Mr. Young’s testimony
was then read to the jury in question and answer format.

       At the conclusion of the State’s proof and following the Momon hearing at which
he waived his right to testify, the Defendant sought to admit documentation showing that
Mr. Young was unavailable because he was evading process. The State objected on the
basis that it was unfair to let the jury know that Mr. Young was evading process without
also letting it know that the State had offered a continuance to procure Mr. Young but
that the Defendant declined a continuance. In the end, the trial court agreed to
accommodate both parties. The court permitted the Defendant, for the purpose of
showing that Mr. Young was evading process, to introduce a certificate of the criminal
court for the arrest of Mr. Young to appear and testify. The court then told the jury:

              Now, ladies and gentlemen, that’s a document that pertains to the
      efforts to obtain the appearance of Mr. Young here in court.

             I’ve already told you previously that as a matter of law I have ruled
      that Mr. Young’s transcript of his prior sworn testimony could be admitted
      into evidence because it fell within what we call a well-recognized
      exception to the hearsay rule when a witness is unavailable.

             Mr. Young was unavailable. The State made what we call under the
      law diligent and good faith effort to produce Mr. Young through service of
      process but was unable to do so at the time of this trial.

             And since that made him legally unavailable for the trial and since
      he had given his testimony prior in a court in which he was sworn to tell the
      truth and which Mr. Jones was a party and had counsel there cross-
      examining and confronting that witness then that made it legally
      admissible.

             Also, we decided to go through as far as the good faith efforts of the
      State are concerned, at the time this case was set for trial, the State offered
      to continue to try to look for him and continue the case for a few weeks in
      order to try to find him but it was the Defendant who insisted to go to trial
      this week with Mr. Young not being able to be served at this time. And
                                            27
        beyond that, that’s really all I think I want to tell you about the legal
        rulings.

                I normally don’t tell the jury about these legal rulings, but the parties
        at least have asked that some of this stuff that normally the jury doesn’t
        hear, that you hear about, so I thought I would tell you the whole story.

There was no contemporaneous objection to this instruction, and the defense thereafter
rested its case.

        The Defendant contended in the Court of Criminal Appeals and contends here that
this instruction had the effect of improperly imposing on him the burden of finding Mr.
Young or continuing the case to allow the State to find him. The State responds that the
Defendant invited this instruction when he requested that the jury be instructed that Mr.
Young was evading service so as to impugn Mr. Young’s credibility, because to omit the
fact that the Defendant could have waited until Mr. Young was found would have been
unfair. The Court of Criminal Appeals concluded that the trial court “diminutively erred”
by instructing the jury in this fashion9 but that the error did not result in prejudice and,
thus, did not rise to the level of reversible error. Jones, 2017 WL 4124164, at *14.

       In view of the fact that the Defendant did not object to this instruction and, in fact,
appeared to be in agreement with the trial court’s resolution of the issue, we agree with
the State’s characterization of the issue as waived. See Tenn. R. App. P. 3(e), 36(a). As
the State points out, the Defendant does not acknowledge his acquiescence in the trial
court’s action on this point and fails to argue that the instruction was plain error. We
hold that the Defendant is not entitled to relief on this issue.10

       Next, the Defendant argues that the trial court erred in allowing into evidence that
portion of Mr. Young’s testimony indicating that the Defendant raped him. The State
points out that the testimony of Mr. Young was identical to that presented at the
Defendant’s first trial, and thus, the Defendant should have been aware of it and should
have objected to it before it was read into evidence. His failure to do so, it argues,
resulted in waiver of the issue pursuant to Tennessee Rule of Appellate Procedure 36(a)

        9
          The Court of Criminal Appeals found error because the trial court did not expressly tell the jury
that Mr. Young was intentionally evading service. Jones, 2017 WL 4124164, at *14. However, we note
that the document admitted as Exhibit 83, the court order directing Mr. Young’s arrest and compelling his
appearance for trial, expressly stated that “Tevarus Young appears to be evading process on this case . . .
and has indicated his unwillingness to appear and testify.”
        10
           We disagree with the Court of Criminal Appeals that the trial court’s handling of this issue
constituted “diminutive error” or any level of error.
                                                    28
(“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”); see also State v. Jones, 15 S.W.3d
880, 895 (Tenn. Crim. App. 1999) (defendant waived issue of improper admission of
prior bad act because he made no objection and did not request a jury-out hearing).

       Although conceding that he did not object to that portion of Mr. Young’s
testimony, the Defendant argues that admission of this prior bad act evidence was plain
error because it was not relevant and its probative value was outweighed by the danger of
unfair prejudice. The State argues that plain error review is not warranted because the
Defendant failed to show the breach of a clear and unequivocal rule of law. Additionally,
even if the testimony was erroneously admitted, given the overwhelming evidence of the
Defendant’s guilt, the Defendant failed to demonstrate that the evidence adversely
affected a substantial right or that consideration of the alleged error is necessary to do
substantial justice. The State also argues that the fact of the rape was relevant to show
that Mr. Young remained with the Defendant after the murders only because he was
afraid of the Defendant and that the rape was a way for the Defendant to exercise control
over Mr. Young. Thus, it would have been within the trial court’s discretion to admit the
testimony.

       Tennessee Rule of Evidence 404(b) precludes the admission of an accused’s prior
bad acts absent certain exceptions. It provides:

      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;

      (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.

Id.
                                           29
        The rationale underlying Rule 404(b) is that admitting evidence of an accused’s
other crimes, wrongs, or bad acts carries an inherent risk of the jury convicting him of the
charged crime based upon his “bad character” or propensity to commit a crime rather
than upon the strength of the evidence. State v. Dotson, 450 S.W.3d 1, 76 (Tenn. 2014);
State v. Rickman, 876 S.W.2d 824, 828 (Tenn. 1994). However, such evidence may be
admitted for other purposes if relevant to some “material issue” in the case on trial and if
its probative value is not outweighed by the danger of its prejudicial effect. Tenn. R.
Evid. 404(b)(2) & (b)(4). “‘[O]ther purposes’ have been defined to include (1) motive;
(2) intent; (3) guilty knowledge; (4) identity of the defendant; (5) absence of mistake or
accident; (6) a common scheme or plan; (7) completion of the story; (8) opportunity; and
(9) preparation.” State v. Berry, 141 S.W.3d 549, appx. 582 (Tenn. 2004); see also Neil
P. Cohen, et al., Tennessee Law of Evidence § 4.04[7][a] (6th ed. 2011 & Supp. 2017).

       Had the Defendant timely objected to that portion of Mr. Young’s testimony
concerning the alleged rape, the trial court would have been obligated to hold a 404(b)
hearing outside the presence of the jury to determine its admissibility. Given the
Defendant’s concession that he failed to object to this evidence at trial, our review is for
plain error. For an appellate court to grant relief on the basis of plain error,

       “(a) the record must clearly establish what occurred in the trial court; (b) a
       clear and unequivocal rule of law must have been breached; (c) a
       substantial right of the accused must have been adversely affected; (d) the
       accused did not waive the issue for tactical reasons; and (e) consideration of
       the error is ‘necessary to do substantial justice.”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting and adopting the test
established by State v. Adkisson, 899 S.W.2d 626, 641–42 (Tenn. Crim. App. 1994)). A
defendant must establish all five factors before this Court will grant plain error relief, and
we may cease our review upon concluding that any of the five factors is not established.
Id. at 283.

       We conclude that, given the overwhelming evidence of the Defendant’s guilt, this
passing reference to another alleged bad act by the Defendant did not influence the jury’s
verdict. Accordingly, no substantial right of the Defendant was adversely affected and
consideration of the alleged error is not necessary to do substantial justice. The
Defendant is entitled to no relief on this basis.

                              III. Sufficiency of the Evidence

      The Defendant contends that because the only evidence that he committed the
crime came from Mr. Young, the Court should conclude that the evidence is insufficient
                                             30
to sustain his convictions.

        In conducting a review of the sufficiency of the evidence, our inquiry is “whether,
after viewing the evidence in the light most favorable to the prosecution, 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 (1979); see also Tenn. R. App. P. 13(e) (“Findings
of guilt in criminal actions whether by the trial court or jury shall be set aside if the
evidence is insufficient to support the finding . . . of guilt beyond a reasonable doubt.”).

       After a jury finds a defendant guilty, the presumption of innocence is removed and
replaced with a presumption of guilt. State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).
Consequently, the defendant has the burden on appeal of demonstrating why the evidence
is insufficient to support the jury’s verdict. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn.
1982).

       An appellate court does not weigh the evidence anew. Evans, 838 S.W.2d at 191.
Rather, “a jury verdict, approved by the trial judge, accredits the testimony of the
witnesses for the State and resolves all conflicts” in the testimony in favor of the State.
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). “[T]he State is entitled to the strongest
legitimate view of the evidence and all reasonable or legitimate inferences which may be
drawn therefrom.” Id. This “standard of review ‘is the same whether the conviction is
based upon direct or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011) (quoting State v. Hanson, 279 S.W.3d 265, 275 (Tenn. 2009)).

       When the only proof of a crime is the uncorroborated testimony of an accomplice,
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, 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 (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) (emphasis deleted) (quoting State v. Bigbee, 885 S.W.2d 797, 803
(Tenn. 1994)). Corroborative evidence must lead to the inferences that a crime has been
                                             31
committed and that the defendant is implicated in the crime. Id.

       The trial court instructed the jury to determine whether Mr. Young was an
accomplice, and further instructed it that, if it found he was an accomplice, there must be
other corroborating evidence to support his testimony. The State does not disagree that
Mr. Young’s admitted participation in the offenses was sufficient to render him an
accomplice in the murders of Mr. and Mrs. James. It simply contends that Mr. Young’s
testimony was adequately corroborated and established the elements of each offense.

        Mr. Young testified that he traveled with the Defendant from Florida to the
victims’ home in Tennessee and was present when the Defendant killed the victims. He
provided details about how they met Mr. James sitting on a chair in his garage, a habit
several witnesses testified that Mr. James engaged in daily. Mr. Young provided accurate
details about the interior of the victims’ home and the manner in which the Defendant
robbed and killed the victims. Although he did not witness the Defendant kill Mr. James,
Mr. Young stated that he saw Mr. James in the laundry room lying in a pool of blood
with his hands tied behind his back. Officer Devers testified that he found Mr. James in
this condition. According to Mr. Young, the Defendant bound, strangled, and slit the
throat of Mrs. James, which was corroborated by the medical examiner. The Defendant
then cleaned the scene and took various items from the home, facts corroborated by
photographs from the scene showing an open linen closet and watered-down blood spots
in the bathroom sink. Mr. Young expressly recalled the Defendant’s removing Mrs.
James’ rings from her fingers, a fact corroborated by indentation marks on her fingers, a
ring recovered in the Lincoln Town Car, and the rings later recovered from Mr. Young’s
property at the Ft. Lauderdale jail and identified by Mrs. James’ daughter. After leaving
the victims’ home, Mr. Young said he and the Defendant stopped for gas, then went
shopping at a nearby mall. Lillian James’ credit card was used at 3:18 p.m. on the
afternoon of August 23, 2003, at a gas station near the victims’ home, corroborating this
portion of Mr. Young’s testimony. The two men then drove south and stopped at a car
lot in Batesville, Mississippi, where the Defendant purchased a white Lincoln Town Car.
The Defendant left the lot in the Lincoln, and Mr. Young followed in the Defendant’s
Dodge Aries K-car. Car lot co-owner Michael Smith corroborated the Defendant’s
presence and purchase of the Lincoln from his Batesville lot. A credit card transaction
associated with Lillian James’ credit card occurred at 7:56 p.m. at a gas station less than
five miles from the car dealership. The Defendant and Mr. Young then drove back to
Florida, stopping several times for gas and paying each time with Lillian James’ credit
card at the pump. Credit card receipts corroborated the route taken, and surveillance
footage from the gas station/markets showed the time correlation of the credit card
transactions with the presence of a white Lincoln and a light-colored Dodge. At 8:12
a.m. on August 24, 2003, Mrs. James’ credit card was used at a gas station in Melbourne,
Florida. Again, surveillance footage from that station showed a Dodge Aries K-car and a
                                            32
white Lincoln that appeared to be traveling together. Mr. Young testified that,
eventually, in an effort to get away from the Defendant, he began driving erratically until
he caught the attention of a law enforcement officer, who stopped him. This episode was
corroborated by Officer Carlos Reyes of Brevard County, Florida, who made the traffic
stop in question. Officer Reyes testified that during the stop, the Defendant approached
in a white Lincoln Town Car and told him that Mr. Young was driving the Dodge to Ft.
Lauderdale for him.

       Furthermore, several other witnesses placed the Defendant in Memphis on the day
of the murders. Diane and Wesley Armstrong both testified to their encounters with the
Defendant on a Friday morning in August 2003. They both described the car as a white
Dodge K-car and his traveling companion as a tall skinny African-American man with
braids, a description that matched Mr. Young’s appearance at the time. A former
neighbor of the Defendant’s, Justin Turberville, also recalled seeing the Defendant in the
Bartlett neighborhood on the Friday before the crimes.

       This corroborative evidence, which confirmed Mr. 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. Accordingly, Mr. Young’s testimony clearly was adequately corroborated.

       Furthermore, Mr. Young’s testimony, considered 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. 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) (2003), “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 Tenn. Code Ann. § 39-13-202(d)). 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 putting the person in fear.” Id. § 39-13-401(a). Mr. 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, strangling,
                                            33
and throat cutting—was especially cruel. The Defendant explained to Mr. Young that he
had killed Mrs. James because she had seen his face. The Defendant’s robbery of the
James’ money, credit cards, and jewelry indicates another motive for the murders. After
the murders, the Defendant methodically and calmly attempted to clean the crime scene
before leaving. His statements and conduct are indicative of premeditation and, taken
together, 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 violence to accomplish the theft of two billfolds 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 Defendant’s use of
violence. Accordingly, the evidence supports the Defendant’s convictions for the first
degree felony murders of Mr. and Mrs. James during the perpetration of a robbery.

                            IV. Denial of a Mitigation Expert

       The Defendant asserts that the trial court erred in denying the appointment of a
mitigation expert. The State responds that the appellate record is insufficient to allow
review of this issue but that, even if the record was sufficient, the Defendant failed to
show a particularized need for such an expert and that furthermore, he waived this issue
by declining to present mitigation evidence during the penalty phase.

              [T]he Eighth and Fourteenth Amendments require that the sentencer,
      in all but the rarest kind of capital case, not be precluded from considering,
      as a mitigating factor, any aspect of a defendant’s character or record and
      any of the circumstances of the offense that the defendant proffers as a
      basis for a sentence less than death.

Lockett v. Ohio, 438 U.S. 586, 604 (1978) (emphasis added, emphasis deleted, footnote
deleted); see also Penry v. Johnson, 532 U.S. 782, 797 (2001); Skipper v. South Carolina,
476 U.S. 1, 4–5, 8 (1986); Eddings v. Oklahoma, 455 U.S. 104, 112 (1982). There is no
question that capital defendants have a constitutionally protected right to provide a jury
with mitigation evidence that humanizes the defendant and assists the jury in accurately
determining a defendant’s moral culpability for the crime. See Porter v. McCollum, 558
                                           34
U.S. 30, 41 (2009).

       However, the fact that a capital defendant has a constitutional right to present
evidence in mitigation is separate from the question of whether such a defendant has a
constitutional right to a mitigation expert. The Defendant has cited to no authority
expressly stating so. Pursuant to statute,

       [i]n capital cases where the defendant has been found to be indigent by the
       court of record having jurisdiction of the case, the court in an ex parte
       hearing may, in its discretion, determine that investigative or expert
       services or other similar services are necessary to ensure that the
       constitutional rights of the defendant are properly protected.

Tenn. Code Ann. § 40-14-207(b) (2012) (second emphasis added). This Court’s own
rules, in turn, provide that

       [i]n the trial and direct appeal of all criminal cases in which the defendant is
       entitled to appointed counsel . . . the court, in an ex parte hearing, may in its
       discretion determine that investigative or expert services or other similar services
       are necessary to ensure that the constitutional rights of the defendant are properly
       protected.

Tenn. Sup. Ct. R. 13, §5(a)(1) (second emphasis added).

       “To warrant reversal for failure of a trial court to allocate resources for expert
assistance, a defendant must show the existence of a ‘particularized need’ for the
allocation of resources for expert assistance.” Hester, 324 S.W.3d at 47 (citing State v.
Dellinger, 79 S.W.3d 458, 469 (Tenn. 2002); State v. Barnett, 909 S.W.2d 423, 430
(Tenn. 1995); State v. Shepherd, 902 S.W.2d 895, 904 (Tenn. 1995); Evans, 838 S.W.2d
at 192); see also State v. Smith, 993 S.W.2d 6, appx. 28 (Tenn. 1999).

       “In order to demonstrate a particularized need, a defendant must first establish that
he or she will not have a fair trial without the requested expert assistance.” Hester, 324
S.W.3d at 47 (citing Dellinger, 79 S.W.3d at 469; State v. Scott, 33 S.W.3d 746, 753
(Tenn. 2000); Barnett, 909 S.W.2d at 430–31). “The defendant must also establish that
there is a reasonable likelihood that the requested expert assistance will materially assist
him or her in preparing or presenting his or her case.” Id. (citing Dellinger, 79 S.W.3d at
469; Scott, 33 S.W.3d at 753; Barnett, 909 S.W.2d at 430–31).




                                            35
       Tennessee Supreme Court Rule 13 also provides that

       [p]articularized need cannot be established and funding requests should be
       denied where the motion contains only:

       (A) undeveloped or conclusory assertions that such services would be
       beneficial;

       (B) assertions establishing only the mere hope or suspicion that favorable
       evidence may be obtained;

       (C) information indicating that the requested services relate to factual issues
       or matters within the province and understanding of the jury; or

       (D) information indicating that the requested services fall within the
       capability and expertise of appointed counsel.

Tenn. Sup. Ct. R. 13, § 5(c)(4) (citing State v. Barnett, 909 S.W.2d 423, 430 (Tenn.
1995); Caldwell v. Mississippi, 472 U.S. 320, 323 n.1 (1985); State v. Abraham, 451
S.E.2d 131, 149 (N.C. 1994)).

       First, we note that, although the Defendant, before waiving his right to counsel,
filed an ex parte motion requesting funding for a mitigation expert and the trial court
conducted a hearing on the matter, neither the motion nor a transcript of the hearing is
included in the appellate record. The technical record contains only the trial court’s order
denying funding, which justified its decision on the basis that the court had already
appointed two lawyers and a fact investigator, any one of whom was capable of
conducting an investigation into mitigation evidence, and that the appointment of a
mitigation expert would not assist the Defendant in any way.

       Capital defendants do not have an inherent statutory or constitutional right to a
mitigation expert, although circumstances may arise in which a particularized need for a
mitigation expert would require the appointment of such an expert. Absent a showing of
any special need, there is no constitutional violation in the denial of a capital murder
defendant’s request for funds for a mitigation expert. We hold that, on the basis of this
record, the Defendant failed to show a particularized need for a mitigation expert.11




       11
          We also note that the Defendant expressly waived his right to present evidence in mitigation,
although there was mitigation evidence available in the form of prior testimony from his first trial.
                                                  36
                         V. Mandatory Review of Death Sentence

       This Court is statutorily required to review the Defendant’s death sentences.
Tenn. Code Ann. § 39-13-206(a)(1) (2014). Our review includes analyzing whether (1)
either death sentence was imposed in any arbitrary fashion; (2) the evidence supports the
jury’s findings of statutory aggravating circumstances; (3) the evidence supports the
jury’s finding that the aggravating circumstances outweighed any mitigating
circumstances; and (4) the capital sentence is excessive or disproportionate to the penalty
imposed in similar cases, considering both the nature of the crime and the Defendant. Id.
§ 39-13-206(c)(1)(A)–(D).

                     A. Arbitrariness in Imposition of Death Penalty

       The Defendant contends that his capital trial was not conducted pursuant to the
applicable statutory provisions and rules of criminal procedure. Specifically, he asserts
that he was denied the right to the assistance of two qualified capital attorneys and denied
the resources to adequately prepare mitigation evidence for the penalty phase of trial. As
discussed above, the Defendant’s knowing waiver of the right to counsel and insistence
on proceeding pro se necessarily resulted in his waiver of the right to two attorneys. As
to the denial of the assistance of a mitigation expert, the Defendant failed to make the
requisite showing of a particularized need for such expert. Moreover, although he had
access to the mitigation evidence prepared for his first trial, he chose to waive the
presentation of any mitigation evidence during the penalty phase. That the Defendant
waived these rights did not render these capital proceedings arbitrary.

                              B. Aggravating Circumstances

       Tennessee law provides that no sentence of death or imprisonment for life without
parole shall be imposed by a jury but upon a unanimous finding that the State has proven
beyond a reasonable doubt the existence of one or more aggravating circumstances and
that those aggravating circumstances outweigh any mitigating circumstances beyond a
reasonable doubt. Tenn. Code Ann. § 39-13-204(g)(1) (2003).

      After deliberation, the jury returned sentences of death after finding that the State
had proven the following aggravating circumstances beyond a reasonable doubt:

       (2) The defendant was previously convicted of one (1) or more felonies,
       other than the present charge, whose statutory elements involve the use of
       violence to the person;

       ....
                                            37
       (5) The murder was especially heinous, atrocious, or cruel in that it
       involved torture or serious physical abuse beyond that necessary to produce
       death;

       (6) The murder was committed for the purpose of avoiding, interfering
       with, or preventing a lawful arrest or prosecution of the defendant or
       another;

       (7) The murder was knowingly committed, solicited, directed, or aided by
       the defendant, while the defendant had a substantial role in committing or
       attempting to commit, or was fleeing after having a substantial role in
       committing or attempting to commit, any first degree murder, arson, rape,
       robbery, burglary, theft, kidnapping, aircraft piracy, or unlawful throwing,
       placing or discharging of a destructive device or bomb;

       ....

       (12) The defendant committed “mass murder,” which is defined as the
       murder of three (3) or more persons whether committed during a single
       criminal episode or at different times within a forty-eight-month period;

and, as to Mr. James only, that

       (14) The victim of the murder was seventy (70) years of age or older[.]

Tenn. Code Ann. § 39-13-204(i).       We examine the proof supporting each of these
aggravating circumstances in turn.

                      1. Previous Convictions for Violent Felonies

      Tennessee Code Annotated section 39-13-204(i)(2) provides that one of the
aggravating circumstances that may justify the imposition of the death penalty is “[t]he
defendant was previously convicted of one (1) or more felonies, other than the present
charge, whose statutory elements involve the use of violence to the person.” This Court
has construed the word “violence” as “physical force unlawfully exercised so as to injure,
damage or abuse.” State v. Fitz, 19 S.W.3d 213, 217 (Tenn. 2000).

      The State presented as exhibits certified copies of judgments reflecting the
Defendant’s prior Broward County, Florida, convictions for robbery and kidnapping, two
counts of battery of a law enforcement officer, and aggravated battery. The trial court
determined that these prior convictions were for crimes of violence whose statutory
                                           38
elements involved violence to the person, and the Defendant did not contest this
characterization. The State also offered testimony from a Florida Assistant State
Attorney who prosecuted the case in which the Defendant was convicted in Florida on
October 6, 2013, of the first degree premeditated murder of Carlos Perez in Melbourne,
Florida. Florida detectives testified as to the details of the murder, including the fact that
Mr. Perez’s throat was cut. First degree murder is undoubtedly a crime involving
violence to the person. Taken together, this evidence clearly established aggravating
circumstance (i)(2), that the Defendant was previously convicted of one or more felonies
whose statutory elements involved the use of violence against the person.

                              2. Heinous, Atrocious, or Cruel

        Tennessee Code Annotated section 39-13-204(i)(5) provides that another of the
aggravating circumstances that may justify the imposition of the death penalty is when
“[t]he murder was especially heinous, atrocious, or cruel, in that it involved torture or
serious physical abuse beyond that necessary to produce death.” “The (i)(5) aggravating
circumstance may be applied if the evidence is sufficient to support either torture or
serious physical abuse beyond that necessary to produce death.” State v. Rollins, 188
S.W.3d 553, 572 (Tenn. 2006) (citing State v. Suttles, 30 S.W.3d 252, 262 (Tenn. 2000)).
This Court has defined torture as “the infliction of severe physical or mental pain upon
the victim while he or she remains alive and conscious.” State v. Willis, 496 S.W.3d 653,
730–31 (Tenn. 2016) (citing State v. Pike, 978 S.W.2d 904, 917 (Tenn. 1998); State v.
Williams, 690 S.W.2d 517, 529 (Tenn. 1985)). “[S]erious physical abuse beyond that
necessary to produce death” means just what it says; there must be serious physical, not
mental, abuse, “and it must be ‘beyond that’ or more than what is ‘necessary to produce
death.’” State v. Odom, 928 S.W.2d 18, 26 (Tenn. 1996). Moreover, abuse is “an act
that is ‘excessive’ or which makes ‘improper use of a thing,’ or which uses a thing ‘in a
manner contrary to the natural or legal rules for its use.’” Id. (quoting Black’s Law
Dictionary 11 (6th ed. 1990)). The law does not require that jurors agree as to which
theory supports their view that the murder is “especially heinous, atrocious, or cruel.”
State v. Keen, 31 S.W.3d 196, 209 (Tenn. 2000).

       The proof established that both victims were bound and strangled before their
throats were cut multiple times. Mrs. James’s head was almost completely severed from
her body. Mr. James suffered multiple broken ribs, which was consistent with the
Defendant having stomped on him. For both victims, this proof established aggravating
circumstance (i)(5), that the killings were heinous, atrocious, or cruel in that they
involved torture or serious physical abuse beyond that necessary to produce death.




                                             39
                            3. Preventing Lawful Arrest or Prosecution

       Tennessee Code Annotated section 39-13-204(i)(6) provides that one of the
aggravating circumstances that may justify the imposition of the death penalty is when
“[t]he murder was committed for the purpose of avoiding, interfering with, or preventing
a lawful arrest or prosecution of the defendant or another.” This aggravating
circumstance “focuses on a defendant’s motives in committing a murder.” State v. Reid,
164 S.W.3d 286, 315 (Tenn. 2005). Although there must be some “particular proof”
supporting this aggravating circumstance, see State v. Hartman, 42 S.W.3d 44, 58 (Tenn.
2001), the State need not prove that the defendant’s desire to avoid prosecution was his
sole motive in murdering the victim, Terry v. State, 46 S.W.3d 147, 162 (Tenn. 2001).

       Mr. Young testified that when he asked the Defendant why he killed Mrs. James,
the Defendant responded that it was because she had seen his face. Although there was
no evidence that the Defendant made a similar remark concerning Mr. James, his
response to the question why he killed Mrs. James gives rise to the inference that he
killed both victims to insure they would not identify him as the person who robbed them.
This proof is sufficient to establish aggravating circumstance (i)(6), that both murders
were committed for the purpose of avoiding prosecution.

                                           4. Felony Murder

       Another aggravating circumstance that may justify the imposition of the death
penalty is when “[t]he murder was knowingly committed, solicited, directed, or aided by
the defendant, while the defendant had a substantial role in committing or attempting to
commit, or was fleeing after having a substantial role in committing or attempting to
commit, any . . . robbery[.]” Tenn. Code Ann. § 39-13-204(i)(7).12 The Defendant took
large amounts of cash, at least one credit card, and jewelry from the victims. Thus, the
proof clearly established that the killings occurred during the course of a robbery,
establishing, as to both victims, aggravating circumstance (i)(7), that the murders were

        12
           When it charged the jury on this felony murder aggravating circumstance, the trial court did not
limit the statutory list of underlying felonies to “committing or attempting to commit, any . . . robbery.”
Instead, the trial court charged all of the underlying felonies included in aggravating circumstance (i)(7).
See Tenn. Code Ann. § 39-13-204(i)(7). This was error. See State v. Blanton, 975 S.W.2d 269, 281
(Tenn. 1998) (stating that “charging all felonies under (i)(7) without regard to whether the felonies are
supported by the evidence is error”); see also State v. Van Tran, 864 S.W.2d 465, 479 (Tenn. 1993)
(reiterating that “a trial court should charge only those aspects of an aggravating circumstance supported
by the evidence in a case”) (citing State v. Pritchett, 621 S.W.2d 127, 140 (Tenn. 1981)). The Defendant,
however, is entitled to no relief on the basis of this error because the application of this aggravating
circumstance was “amply supported by the evidence.” Blanton, 975 S.W.2d at 281. We are convinced
beyond a reasonable doubt that the erroneous inclusion of inapplicable underlying felonies had no effect
on the result. See Van Tran, 864 S.W.2d at 479.
                                                    40
knowingly committed while the Defendant had a substantial role in committing robbery.

                                     5. Mass Murder

        Tennessee Code section 39-13-204(i)(12) provides as an aggravating circumstance
to justify imposition of the death penalty that “[t]he defendant committed ‘mass murder,’
which is defined as the murder of three (3) or more persons, whether committed during a
single criminal episode or at different times within a forty-eight-month period.” In
addition to proof of the murders of Clarence and Lillian James, the State introduced
evidence that the Defendant murdered Carlos Perez in Florida within days of murdering
these victims. The Defendant does not contest the sufficiency of the proof for this
aggravating circumstance. Given the proof, the State clearly established, for both
victims, aggravating circumstance (i)(12), the mass murder aggravating circumstance.

                          6. Victim Over Seventy Years of Age

       Finally, Tennessee Code section 39-13-204(i)(14) provides as an aggravating
circumstance to support imposition of the death penalty that “[t]he victim of the murder
was seventy (70) years of age or older . . . .” As to Clarence James only, the medical
examiner testified that Mr. James was eighty-two years old, thus supporting the
application of this aggravating circumstance.

           C. Aggravating Circumstances Outweigh Mitigating Circumstances

       We also are statutorily required to assess whether “[t]he evidence supports the
jury’s finding that the aggravating . . . circumstances outweigh any mitigating
circumstances.” Tenn. Code Ann. § 39-13-206(c)(1)(C). In this case, the Defendant
waived presentation of mitigating circumstances. Given that fact, we agree with the
jury’s decision that the aggravating circumstances—five in the case of Mrs. James and
six in the case of Mr. James—outweighed the mitigating circumstances beyond a
reasonable doubt.

                               D. Proportionality Review

       Finally, we are statutorily required to review the Defendant’s sentence of death in
order to determine whether it is excessive or disproportionate to the penalty imposed in
similar cases. Tenn. Code Ann. § 39-13-206(c)(1)(D). “Our review is intended to
determine whether the Defendant’s death sentence is aberrant, arbitrary, or capricious
insofar as it is ‘disproportionate to the punishment imposed on others convicted of the
same crime.’” Bell, 512 S.W.3d at 207-08 (quoting State v. Bland, 958 S.W.2d 651, 662
(Tenn. 1997)); see also State v. Pruitt, 415 S.W.3d 180, 212–17 (Tenn. 2013) (re-
                                           41
affirming the Bland analysis). Our review employs the precedent-seeking method of
comparative proportionality review, in which we compare this case with other cases
involving similar crimes and similar defendants. The pool of cases into which we peer
consists of “those first degree murder cases in which the State sought the death penalty, a
capital sentencing hearing was held, and the jury determined whether the sentence should
be life imprisonment, life imprisonment without possibility of parole, or death.” State v.
Rice, 184 S.W.3d 646, 679 (Tenn. 2006) (citing State v. Godsey, 60 S.W.3d 759, 783
(Tenn. 2001); Bland, 958 S.W.2d at 666).

       While no crimes or defendants are identical, a death sentence is disproportionate if
the case is “plainly lacking in circumstances consistent with those in cases where the
death penalty has been imposed.” Bland, 958 S.W.2d at 668. Thus, in our
proportionality review, we examine “the facts and circumstances of the crime, the
characteristics of the defendant, and the aggravating and mitigating circumstances
involved.” State v. Stevens, 78 S.W.3d 817, 842 (Tenn. 2002). More specifically, we
consider:

       (1) the means of death; (2) the manner of death; (3) the motivation for the
       killing; (4) the place of death; (5) the victim’s age, physical condition, and
       psychological condition; (6) the absence or presence of premeditation; (7)
       the absence or presence of provocation; (8) the absence or presence of
       justification; and (9) the injury to and effect upon non-decedent victims.

Reid, 164 S.W.3d at 316 (citing Bland, 958 S.W.2d at 667). We also consider several
factors about the defendant, including his (1) record of prior criminal activity; (2) age,
race, and gender; (3) mental, emotional, and physical conditions; (4) role in the murder;
(5) cooperation with authorities; (6) level of remorse; (7) knowledge of the victim’s
helplessness; and (8) potential for rehabilitation. Id. at 316–17.

        In this case, the unemployed, then-forty-year-old male African-American
Defendant, who had a history of violent offenses, targeted an elderly African-American
couple for pecuniary gain. It can be inferred that, having previously lived in close
proximity to the elderly victims, the Defendant was familiar with Clarence James’ habit
of sitting in front of his garage and greeting passers-by. The proof established that on
August 22, 2003, he and Mr. Young approached Mr. James and engaged him in
conversation. Although the proof was not clear how the Defendant gained entrance to the
house, the proof is clear that once inside, he restrained the physically frail eighty-two-
year-old Mr. James by the use of some type of binding around his wrists and ankles, then
stomped and strangled Mr. James, causing massive internal injuries, and eventually ended
the skirmish by slitting Mr. James’ throat. He took Mr. James’ wallets from him and
emptied the wallets of their contents. The Defendant then confronted Lillian James,
                                            42
similarly binding her wrists and ankles, and also beat and strangled her, ending with
cutting her throat to the point of nearly severing her head. He took the rings that Mrs.
James was wearing from her body and then went through the contents of her purse, taking
at least one credit card. The Defendant used the proceeds of his crimes to buy personal
items for himself and Mr. Young, including a car, and then fled to Florida. After his
arrival in Florida, the Defendant killed another person using similar techniques.

        Based on our thorough review of the record and Supreme Court Rule 12 reports,13
we conclude that the death sentences imposed in this case are not excessive or
disproportionate when compared to the penalty imposed in similar cases. We have
upheld the death sentences in numerous other cases where the defendants stabbed, beat
and/or strangled the victims to death. See, e.g., State v. Rollins, 188 S.W.3d 553 (Tenn.
2006) (defendant stabbed eighty-one-year-old victim during a robbery; aggravating
circumstances (i)(5), (i)(6), (i)(7), and (i)(14)); State v. Leach, 148 S.W.3d 42 (Tenn.
2004) (defendant beat, stabbed, and strangled two elderly women during a robbery;
aggravating circumstances (i)(2), (i)(5), (i)(7), and (i)(14)); Bane, 57 S.W.3d 411 (Tenn.
2001) (defendant and companions robbed and murdered elderly man during robbery by
strangling and asphyxiating him; aggravating circumstances (i)(5) and (i)(6)); State v.
Bush, 942 S.W.2d 489 (Tenn. 1997) (defendant repeatedly stabbed seventy-nine-year-old
woman to death during a burglary; aggravating circumstances (i)(5) and (i)(6)); State v.
Barber, 753 S.W.2d 659 (Tenn. 1988) (defendant beat elderly woman to death during
burglary; aggravating circumstances (i)(5) and (i)(7)); State v. McNish, 727 S.W.2d 490
(Tenn. 1987) (defendant bludgeoned seventy-year-old victim to death during a robbery;
aggravating circumstance (i)(5)); State v. Campbell, 664 S.W.2d 281 (Tenn. 1984)
(defendant beat seventy-two-year-old victim to death during robbery; aggravating
circumstances (i)(2), (i)(5), and (i)(7)); State v. Barnes, 703 S.W.2d 611 (Tenn. 1985)
(defendant and companion beat elderly woman during burglary of her home and victim
died of pneumonia resulting from beating; aggravating circumstances (i)(2), (i)(5), and
(i)(7)); State v. Strouth, 620 S.W.2d 467 (Tenn. 1981), and State v. Dicks, 615 S.W.2d
126 (Tenn. 1981) (companion cases in which defendants received death penalty when
elderly store owner’s throat was cut during robbery; aggravating circumstances for both
were (i)(5) and (i)(7)); see also Reid, 164 S.W.3d at 315–16 (defendant robbed a Baskin-
Robbins store, abducted two employees, transported them to a local park, and cut their
throats with a knife; aggravating circumstances (i)(2), (i)(5) and (i)(6)).

       Based upon our close review of the entire record in this case, combined with our
review of these and other cases in which the death penalty was imposed and upheld, we
hold that the sentences of death imposed in this case are not disproportionate to the
        13
          Tennessee Supreme Court Rule 12 requires trial courts to file extensive reports in all cases in
which the defendant is convicted of first degree murder. These reports include data about the crime, the
defendant, and the punishment imposed. See Tenn. Sup. Ct. R. 12(1) and the appendix thereto.
                                                   43
penalty imposed for similar crimes under similar circumstances. The Defendant is not
entitled to relief on this basis.

                                       Conclusion

      For the reasons set forth above, we affirm the Defendant’s convictions and
sentence of death.

       The sentence of death shall be carried out as provided on the 8th day of April,
2020, unless otherwise ordered by this Court or other proper authority. It appearing that
the Defendant Henry Lee Jones is indigent, the costs of this appeal are taxed to the State
of Tennessee.




                                         ____________________________________
                                         JEFFREY S. BIVINS, CHIEF JUSTICE




                                           44
                                    APPENDIX
                          (EXCERPTS FROM THE DECISION OF
                          THE COURT OF CRIMINAL APPEALS)

             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                             May 2, 2017 Session

                 STATE OF TENNESSEE v. HENRY LEE JONES

                 Appeal from the Criminal Court for Shelby County
                    No. 03-06997       W. Mark Ward, Judge
                          No. W2015-02210-CCA-R3-DD

                                     [Introduction]

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT L. HOLLOWAY, JR., JJ., joined.
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.
                                       OPINION
                            [PRE-TRIAL PROCEEDINGS]
                                    [GUILT PHASE]
                                  [PENALTY PHASE]
                                      ANALYSIS
             [I. The Right to Counsel and the Right to Self-Representation]
                             [II. Testimony of Mr. Young]
                 III. Admission of Autopsy Photographs into Evidence
       Defendant asserts the trial court erred in admitting autopsy photographs of Mr. and
Mrs. James through the testimony of Dr. Chancellor. Specifically, Defendant refers to the

                                           45
“horrific injuries” highlighted in the photographs that were merely introduced to inflame
the jury. The State defers to the trial court’s discretion on the matter.

       Evidence is relevant if it has “any tendency to make the existence of any fact that
is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” Tenn. R. Evid. 401. However, relevant evidence
“may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury.” Tenn. R. Evid. 403.
The trial court must determine the relevance of the visual evidence and weigh its
probative value against any undue prejudice. Carruthers, 35 S.W.3d at 577. The term
“undue prejudice” has been defined “an undue tendency to suggest decision on an
improper basis, commonly, though not necessarily, an emotional one.” State v. Banks,
564 S.W.2d 947, 950-51 (Tenn. 1978) (quoting Fed. R. Evid. 403, Advisory Comm.
Notes). In Banks, our supreme court provided the trial courts with guidance for
determining the admissibility of relevant photographic evidence. The trial court should
consider: the accuracy and clarity of the picture and its value as evidence; whether the
picture depicts the body as it was found; the adequacy of testimonial evidence in relating
the facts to the jury; and the need for the evidence to establish a prima facie case of guilt
or to rebut the defendant’s contentions. Id. at 951. The admissibility of relevant
photographs of victims and the crime scene is within the sound discretion of the trial
court, and the court’s ruling on admissibility will not be disturbed on appeal absent a
showing of an abuse of that discretion. Carruthers, 35 S.W.3d at 576-77; State v. Van
Tran, 864 S.W.2d 465, 477 (Tenn. 1993); Banks, 564 S.W.2d at 949. As our supreme
court stated in Carruthers, the modern trend is to vest more discretion in the trial court’s
rulings on admissibility. Carruthers, 35 S.W.3d at 577 (citing Banks, 564 S.W.2d at 949).

       Prior to Dr. Chancellor’s testimony at trial, defense counsel objected to the
autopsy photographs of the victims as inflammatory, overly prejudicial, and cumulative.
During a bench conference, the State presented photographs of both Mr. and Mrs. James
that they planned to introduce. The State sought to introduce photographs of lacerations
on different areas of Mrs. James’s neck, arm, and wrist, bruises on her arm, and pressure
marks on her ring finger. Defense counsel did not object to the admission of the
photographs of Mrs. James’s finger. The prosecutors also presented photographs of cuts
on Mr. James’s neck and arm, a photograph of his eye, a photograph of bruising on his
shoulder and wrist, and a photograph of his rib bones. The State maintained the
photographs of the neck wounds were necessary to prove premeditation, establish that the
same person killed each of the victims, and assist in the jury’s understanding of the
testimony of Dr. Chancellor. The trial court admitted the photographs, finding that Rule
403 is a “rule of inclusion.” The court noted that many of the photographs were not
“graphic” but admitted that the pictures depicting the wounds to the throats of the victims
could be deemed inflammatory. However, the trial court determined that the probative
                                             46
value of the photographs outweighed their prejudicial nature, the pictures illustrated the
State’s case, and the State has “a right to do that.” The trial court found the photographs
were admissible and relevant to the issues to be determined by the jury.

       We have reviewed the photographs in question, and conclude they are not so
sensational as to be out of the ordinary of what would be expected of autopsy
photographs of a victim with knife wounds. Additionally, Dr. Chancellor testified as to
the necessity of the photographs to allow her to explain to the jury the wounds suffered
by the victims. We conclude that the probative value of the photographs outweighs their
prejudicial effect and the trial court did not abuse its discretion in allowing their
admission. Defendant is not entitled to relief on this issue.

                  IV. Tone of the Prosecutor During Closing Arguments

        Defendant argues that the trial court erred in overruling an objection to the “tone
and volume” used by the State during closing argument. Specifically, Defendant contends
that his right to due process was violated when counsel for the State was “standing three
feet from him and pointing at him and yelling at him.” Despite his objection at trial,
Defendant fails to adequately explain on appeal a basis for the overturning of a
conviction based upon a prosecutor’s method of presenting a closing argument.

        While the scope and depth of closing argument is generally a matter within the
trial court’s discretion, Bigbee, 885 S.W.2d at 809, the State is not free to do what they
wish. Arguments are required to be “temperate, based upon the evidence at trial, relevant
to the issues being tried, and not otherwise improper under the facts of the law.” State v.
Goltz, 111 S.W.3d 1, 5 (Tenn. Crim. App. 2003) (citing Coker v. State, 911 S.W.2d 357,
368 (Tenn. Crim. App. 1995)). Although not exhaustive, this Court has recognized five
general areas of potential prosecutorial misconduct during closing arguments: (1)
intentionally misstating the evidence or misleading the jury as to the inferences it may
draw; (2) expressing personal beliefs or opinions as to the truth or falsity of any
testimony or the guilt of the defendant; (3) inflaming or attempting to inflame the
passions or prejudices of the jury; (4) injecting issues broader than the guilt or innocence
of the accused; and (5) arguing or referring to facts outside the record unless the facts are
matters of common knowledge. Goltz, 111 S.W. 3d at 6. However, “[a] criminal
conviction should not be lightly overturned solely on the basis of the prosecutor’s closing
argument.” State v. Banks, 271 S.W.3d 90, 131 (Tenn. 2008). Instead, “an improper
closing argument will not constitute reversible error unless it is so inflammatory or
improper that it affected the outcome of the trial to the defendant’s prejudice.” Id. In
other words, it will be reversible error if the improper comments of the prosecutor were
so improper or the argument so inflammatory that it affected the verdict. See State v.

                                             47
Reid, 164 S.W.3d 286, 344 (Tenn. 2005). We use the following factors when making this
determination:

       (1) the conduct complained of viewed in context and in light of the facts
       and circumstances of the case; (2) the curative measures undertaken by the
       [c]ourt and the prosecution; (3) the intent of the prosecutor in making the
       improper statement; (4) the cumulative effect of the improper conduct and
       any other errors in the record; and (5) the relative strength or weakness of
       the case.

State v. Buck, 670 S.W.2d 600, 609 (Tenn. 1984) (quoting Judge v. State, 539 S.W.2d
340, 344 (Tenn. Crim. App. 1976)); see also Goltz, 111 S.W.3d at 5-6. However, the
analysis set out in Judge applied to an improper statement and made no mention of the
volume or tone of an argument. See Judge, 539 S.W.2d at 344.

        Trial counsel for Defendant failed to adequately preserve any proof of the actions
of the prosecutor other than stating in the objection that the prosecutor was yelling. The
trial court did not note the volume or tone, nor did the trial court ask counsel for the State
to step away from Defendant. In Defendant’s appellate brief, there is only one reference
to the record in his argument on this issue and no mention of any authority that bears on
the issue of the tone and volume of the prosecutor during closing argument. Defendant is
required on appeal to make appropriate references to the record in the argument portion
of his brief and to cite relevant authority. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. Crim.
App. R. 10(b). Failure to do so will ordinarily constitute a waiver of the issue. See State
v. Hammons, 737 S.W.2d 549, 552 (Tenn. Crim. App. 1987). Under these circumstances,
it is not the obligation of an appellate court to review this issue as it is presented. State v.
Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997). There is not enough evidence
before this Court to adequately review the allegations much less overturn a conviction.
Defendant has waived this issue.


                              [V. Sufficiency of the Evidence]
                      [VI. Denial of a Mitigation Expert/Investigator]
                                  [VII. Mandatory Review]
                                      [CONCLUSION]




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