                  IN THE SUPREME COURT OF TENNESSEE
                              AT JACKSON
                                  April 9, 2014 Session

                STATE OF TENNESSEE v. HENRY LEE JONES

                Automatic Appeal from the Court of Criminal Appeals
                         Criminal Court for Shelby County
                     No. 0306997    John P. Colton, Jr., Judge




              No. W2009-01655-SC-DDT-DD - Filed September 25, 2014



The defendant was indicted for two first degree murders in Shelby County. During the trial,
the court allowed the jury to hear evidence of a third murder allegedly committed by the
defendant in a different state, ruling that the out-of-state murder qualified as a “signature
crime” and was relevant to the issue of identity. The defendant was convicted as charged and
received a sentence of death for each offense. In a divided opinion, the Court of Criminal
Appeals affirmed. Because the out-of-state murder did not qualify as a signature crime and,
under these circumstances, the danger of unfair prejudice outweighed the probative value of
the evidence, the trial court erred by allowing the proof of the third murder. Because the
error does not qualify as harmless, the convictions must be reversed and a new trial must be
granted. On remand, the State may again seek the death penalty for each offense.

   Tenn. Code Ann. § 39-13-206(a)(1) (2014); Judgment of the Court of Criminal
              Appeals Reversed; Case Remanded to the Trial Court

G ARY R. W ADE, C.J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C ORNELIA A. C LARK, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Robert L. Parris (at trial and on appeal), and Michael E. Scholl and Jake Erwin (at trial),
Memphis, Tennessee, for the appellant, Henry Lee Jones.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Gordon W. Smith, Associate Solicitor General; Leslie E. Price, Senior Counsel; William L.
Gibbons, District Attorney General; and Thomas D. Henderson and John Campbell, Assistant
District Attorneys General, for the appellee, State of Tennessee.
                                        OPINION
                             I. Facts and Procedural History
        On the afternoon of August 23, 2003, Margaret Coleman stopped by to check on her
sixty-six-year-old mother, Lillian James, and her eighty-two-year-old step-father, Clarence
James, at their home in Bartlett. The front door was partially open, and there were linens,
papers, and other items strewn about the house, which was ordinarily neatly maintained.
When she called out for her mother and received no response, she dialed 911. Officers with
the Bartlett Police Department soon arrived and discovered the bodies of the victims inside
the house. Both victims had incision wounds on the neck, among other injuries. There were
also signs of strangulation. An extensive investigation led the police to develop Henry Lee
Jones (the “Defendant”) as the primary suspect.

        On October 7, 2003, the Shelby County Grand Jury indicted the Defendant for two
counts of first degree premeditated murder and two counts of first degree felony murder.
Later, the Defendant was arrested in Florida. The State filed a notice of intent to seek the
death penalty.

                     A. Tennessee Rule of Evidence 404(b) Hearing
       On July 19, 2004, the State filed a “Notice of Intention to Use Evidence of Proof of
Other Crimes in Order to Establish Identity.” In particular, the State sought to introduce
evidence that the Defendant killed Carlos Perez in a motel room in Melbourne, Florida, four
days after the murders of Mr. and Mrs. James. While acknowledging that Tennessee Rule of
Evidence 404(b) prohibits the admission of evidence of other crimes to show action in
conformity with a character trait, the State asserted that the modus operandi in the Perez
murder and was so distinctive and so strikingly similar to the modus operandi in the James
murders that proof of the Perez murder was admissible as evidence on the issue of identity.
The State later amended its notice, seeking to also introduce evidence that the Defendant,
using a similar modus operandi, had killed another individual, Keith Gross, in Fort
Lauderdale, Florida, on September 7, 2002, approximately one year prior to the murders of
Mr. and Mrs. James. In order to determine whether the proof surrounding the Perez and
Gross murders qualified for admission under Tennessee Rule of Evidence 404(b), the trial
court conducted a pre-trial hearing. The terms of Rule 404(b) provide context for the
purpose of the hearing:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity with the character
       trait. It may, however, be admissible for other purposes. The conditions
       which must be satisfied before allowing such evidence are:

              (1) The court upon request must hold a hearing outside the jury’s

                                            -2-
              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.

        At the Rule 404(b) hearing, a proceeding which involved five days of testimony,
Tevarus Young, a witness for the State, testified that in August of 2003 he was homeless and
had spent a night at a park in Fort Lauderdale. He recalled that when he awoke he was
confronted by the Defendant, who was driving a light-beige, four-door Dodge. According
to Young, the Defendant introduced himself as “Bambam” and offered to pay Young for oral
sex. Young agreed, got into the car, and was driven to a McDonald’s Restaurant. The
Defendant then took Young on a series of errands, stopping by a woman’s residence to make
a phone call, visiting two pawn shops, and driving to a courthouse in Miami to pay some
traffic tickets.

       According to Young, the Defendant then drove “to some warehouses where [Young]
performed oral sex on him.” Afterward, the Defendant gave Young twenty dollars and asked
him if he would like to meet some women the Defendant knew in Daytona. Young agreed.
After stopping to pick up some clothes at the residence of Young’s grandmother, the two
men traveled approximately 250 miles north to meet two otherwise unidentified women
called “Toosie” and “Tawana.” The Defendant left with Toosie, and Young spent the night
with Tawana. When the Defendant and Toosie returned the next morning, they were arguing.
Although Young claimed that he wanted to stay in Daytona and start a new life with Tawana,
the Defendant convinced him to leave so they could visit some of his relatives. Although he
did not know where they were going, Young recalled that the Defendant drove for “[m]aybe
a day, a day and a half.” Young fell asleep during the latter part of the trip, and when he
awoke he was alone in the car, which was parked in front of a Burger King Restaurant in
Bartlett, Tennessee. He remembered that a Burger King employee approached the car, asked
for the Defendant, and left. Eventually, Young went inside the Burger King and saw the
same employee having a conversation with the Defendant. A different employee brought
them some food and, after their meal, the Defendant drove to a nearby apartment complex
and parked his vehicle.

                                            -3-
       Young and the Defendant got out of the car and encountered an elderly African-
American man, later identified as Mr. James, who was sitting in his garage. The Defendant
said, “Hey, Pops, how are you doing?” Mr. James then informed the Defendant that he had
just been released from the hospital and was waiting for a man to come and mow his lawn.
Young claimed that he offered to mow the lawn for free, but that Mr. James asked only that
he move the lawnmower from the front yard to the back yard.

        Young testified that when he returned to the front yard, neither the Defendant nor Mr.
James were in sight and the garage door was closed. Young knocked on the front door, but
received no answer. When he walked inside, he saw the Defendant with a bloody rope and
two bloody towels in his hand. According to Young, the Defendant then entered one of the
rooms, threw to the floor an elderly woman, later identified as Mrs. James, and shouted,
“[O]ld lady, do you know what time it is, do you know what time it is[?] . . . [W]here’s your
purse? . . . [W]here’s the money?” When, in response, Mrs. James pointed the Defendant
to another room, he tied her arms and legs, took off her rings, and directed Young to sit in
a chair by the door. As the Defendant left the room to look for the purse, Mrs. James asked
Young if they were going to kill her. When Young answered that he thought that the
Defendant was related to her, Mrs. James explained that she did not even know the
Defendant.

       According to Young, the Defendant returned, picked up Mrs. James, and used her
body to push Young into the hallway and then into a bedroom. Young testified that the
Defendant threw Mrs. James to the floor, placed the rope around her neck, choked her by
pressing his foot into the back of her neck, and then cut her neck with a knife, killing her.
The Defendant explained to Young that Mrs. James had seen his face.

        Young stated that the Defendant then went to another part of the house and returned
with a plastic grocery bag. He led Young into a laundry room, where Mr. James was lying,
apparently dead. Mr. James’ body was surrounded by blood and his hands were tied behind
his back. The Defendant removed the ropes used to tie Mr. James’ hands and placed them
in the bag that Young held. Eventually, the Defendant put the contents of Mrs. James’ purse
into the bag and the two men left the house. As the Defendant drove away, he threw several
items out of the car window. The Defendant later took a billfold from the bag, removed the
cash, and threw the billfold out the window. He gave Young approximately $1500 in cash
and the rings he had taken from Mrs. James’ fingers. Young claimed that the Defendant then
displayed his knife and threatened to kill him if he told anyone of the murders. The
Defendant drove to a shopping center and bought clothes and shoes for himself and Young.
As they drove away, the Defendant instructed Young to change into his new clothes and
throw his old clothes out the window.



                                             -4-
        Young testified that the Defendant next drove to a used car dealership in Mississippi.
After talking with a salesman, the Defendant purchased a white Lincoln Town Car. From
there, the two drove back to Florida, with the Defendant driving the Lincoln and Young
following in the Dodge. Young claimed that along the way he decided to try to escape from
the Defendant or, if necessary, “to have a car fight with him.” As he was about to pass the
Defendant, however, he noticed that a police vehicle had activated its blue lights, so he
pulled over to the side of the road. Young initially gave the officer a false name. The
Defendant turned around and stopped his Lincoln behind the officer’s vehicle during the
course of the stop. When the officer learned Young’s real name, he discovered an
outstanding warrant for Young’s arrest. After being taken into custody, Young was
questioned about the murders in Bartlett. He first told the officers that he had remained
outside while the Defendant entered the residence of an elderly couple and killed them. On
the next day, Young “broke down and . . . told them everything that happened,” including
what he had seen inside the residence.

        Margaret Coleman, the daughter of Mrs. James and the step-daughter of Mr. James,
also testified at the Rule 404(b) hearing. She stated that Mr. James had recently retired and
that Mrs. James worked the night shift in the environmental services department at Methodist
Central Hospital in Memphis. Because she did not drive, Mrs. James typically rode a bus to
work and had one of her children drive her home at the end of her shift. When Coleman
arrived at 1:30 a.m. on Saturday, August 23, 2003, her mother was not at the hospital, and
so she assumed that her mother had found another way home. Coleman telephoned Mrs.
James at her house at that time and later in the morning, but received no answer. At first, she
suspected that Mrs. James may have been without phone service because of a recent storm.
Coleman visited Mr. and Mrs. James’ residence between 2:30 and 3:00 that afternoon. When
she noticed that the garage door was closed, the front door was open, and the inside of the
residence was in disarray, she called 911. Coleman testified that her mother owned
diamonds, gold jewelry, and several credit cards, and that Mr. James owned a brown wallet.

       Phillip Devers, an officer with the Bartlett Police Department, testified that he was
dispatched to the James residence. He found the body of Mrs. James lying “face down in a
large pool of blood, clothed only in a pair of panties.” He described her head as “almost cut
completely off.” When Officer Devers looked into the laundry room, he discovered the body
of Mr. James lying on his side on the floor in a pool of blood. He did not enter the room
because he could not open the door any further without disturbing the location of the body.
Officer Devers then went outside and waited for backup.

        Lieutenant Joseph Massey, also with the Bartlett Police Department, carried out the
task of diagraming the rooms of the James residence. He observed a piece of duct tape about
the size of a quarter on Mrs. James’ right shoulder and a cord under her right foot. In

                                              -5-
addition, he found blood in and around the sink in one of the bathrooms, which suggested
that the murderer had made some attempt to clean the crime scene.

       Michael Smith, the owner of a used car dealership in Batesville, Mississippi, located
about seventy miles south of Bartlett, also testified at the Rule 404(b) hearing. He recalled
that between 5:20 and 5:25 p.m. on Friday, August 22, 2003 (the day of the James murders),
the Defendant, accompanied by another man, arrived in a white Dodge Aries K-car and
purchased a white Lincoln Town Car. Smith testified that the Defendant appeared to be in
a hurry and paid in cash, which the Defendant claimed to have received through a tax refund.

        Carlos Reyes, a homicide detective with the Brevard County Sheriff’s Office in
Florida, testified that on August 25, 2003 (three days after the James murders), he was
driving southbound on Interstate 95 near Melbourne, Florida, in an unmarked police vehicle
when he noticed a man, later identified as Young, driving a white Dodge Aries K-car in a
reckless fashion—weaving in and out of traffic, cutting off other vehicles, and following too
closely. When the Dodge tailgated Detective Reyes, he first flashed his blue lights as a
warning, and, a few minutes later, when the Dodge passed him at a speed in excess of the
limit, he conducted a traffic stop. When asked for his license, registration, and proof of
insurance, Young admitted to Detective Reyes that he did not have his license with him and
provided a false name. He claimed that he was following his step-father, but was unable to
tell the detective his step-father’s name. A few minutes later, a white Lincoln Town Car
driven by the Defendant pulled behind the detective’s vehicle. At that point, Detective Reyes
instructed the Defendant to stay in his car and called for backup. Another officer in a marked
police car arrived within two minutes. When Detective Reyes asked the Defendant to
identify the driver of the Dodge, the Defendant responded that he was “someone he just met
through a friend.” The Defendant explained that he had just purchased a second vehicle and
had paid Young to follow him to Florida in the Dodge. The Defendant provided his license
and the proper documentation for both vehicles.

       When further questioned, Young identified himself and provided his correct date of
birth. Because Young had an outstanding warrant in Broward County, Florida, for an
“occupied burglary and assault,” he was placed under arrest. Detective Reyes instructed the
Defendant to leave the scene and to “come back in around twenty . . . minutes” to retrieve
the Dodge. When the Defendant did not return, Detective Reyes left the Dodge parked on
the side of the road.

       Ravindra Patel, the manager of a Super 8 Motel in Melbourne, Florida, testified at the
Rule 404(b) hearing about the Perez murder. Patel stated that he saw a mid-sized white
sedan enter the motel parking lot at 1:00 p.m. on August 26, 2003 (four days after the James
murders), and observed the passenger, a white male wearing khaki shorts and a t-shirt, step

                                             -6-
out of the car, enter the motel office, and then return to the car. Patel stated that an African-
American male exited the car and entered the motel with the other man. Patel described the
African-American male as short, skinny, and approximately nineteen or twenty years old,
wearing long pants and a button-up shirt worn open over a t-shirt. Later, when Patel was
working at the front desk, he noticed that the white male had rented Room 217. According
to Patel, on the following day, a housekeeping employee discovered a body on the bed in
Room 217. The body was partially covered by a comforter. Patel called 911 and did not
allow anyone to enter the room until police arrived.

       Johnny Lawson of the Melbourne Police Department investigated the murder at the
Super 8 Motel. Although he found no identification on the body in Room 217, a motel clerk
provided a registration card with the name Carlos Perez and a Pennsylvania driver’s license
number. Officers learned that Perez had previously lived in Florida, returned briefly to
Pennsylvania, and only a month before had moved back to Florida to live with his father in
Wilton Manors—some 150 miles south of Melbourne. According to Detective Lawson,
another officer learned that a credit card belonging to a murder victim in Bartlett, Tennessee,
had been used at a gas station located approximately five miles from the Super 8 Motel where
Perez’s body was discovered. The officers also received information that the Bartlett police
were on the lookout for a white Lincoln in connection with their murder investigation.

        On the morning of September 4, 2003 (two weeks after the James murders), Detective
Lawson, accompanied by several other officers, traveled to Perez’s workplace—Dependable
Temps in Fort Lauderdale—to ask his co-workers if they knew why he had been in
Melbourne on the day he died. While there, one of the officers noticed a white 1993 Lincoln
Town Car with the personalized license plate “69BAM.” Although the officers asked several
employees about Perez, none had any new information, and so the officers left. Detective
Lawson then ran a check on the “69BAM” tag number and discovered that it was registered
to the Defendant. When the officers returned to check the vehicle identification number, the
Lincoln was gone. Detective Lawson then learned that the Defendant was also an employee
of Dependable Temps.

        By searching motor vehicle records, Detective Lawson determined that the Defendant
also owned a white 1987 Dodge Aries K-car. Records showed that the same Dodge had been
stopped three days after the James murders on Interstate 95 in Brevard County. When
Detective Lawson contacted officers with the Brevard County Sheriff’s Office, he learned
that Tevarus Young had been arrested on an outstanding warrant during the stop. Detective
Lawson later spoke with Detective Reyes, who described the actions of the Defendant during
the August 25th traffic stop. Detective Lawson then contacted the Bartlett Police Department
to relay the information he had collected. When Detective Lawson mentioned the name of
the Defendant, the Bartlett police discovered that the Defendant had previously resided

                                               -7-
within a mile of the James residence. Lieutenant Massey traveled to Melbourne, where he
and Detective Lawson compared the crime scenes and the time lines in their respective
investigations.

        On September 12, 2003, Detective Lawson and Lieutenant Massey interviewed Young
at the Broward County Detention Center. After waiving his Fifth Amendment rights, Young
talked to the officers for several hours. Detective Lawson described Young as “congenial”
during the first part of the interview, but stated that Young later became upset to the point
of physical illness, “throwing up[] in the trash can, rolling on the floor, screaming, hollering,
crying, banging his hands, trying to talk but unable to because he was crying so hard.” When
Detective Lawson and Lieutenant Massey returned the next day to conduct a second
interview, Young changed his story, and, when the officers challenged the veracity of his
statements, he became upset and changed his story again.

        Approximately one month after the interviews with Young, the Defendant was
indicted for the murders of Mr. and Mrs. James, a warrant for his arrest was issued, and he
was apprehended in Florida. Around the same time, officers in Florida executed warrants
to seize and search both the Dodge and the Lincoln owned by the Defendant. After his arrest,
the Defendant waived his Fifth Amendment rights and agreed to a recorded interview by
Detective Lawson and another detective from his unit. Detective Lawson testified as to the
content of the statement. The Defendant acknowledged that he knew Perez through his
employment with Dependable Temps and that on a couple of occasions the two had
purchased cocaine together. While denying any contact with Perez on the day he died, the
Defendant admitted that he owned a white 1987 Dodge Aries K-car and a white 1993
Lincoln Town Car. According to the Defendant, Perez had been in both cars in the past. The
Defendant also admitted that he had purchased the Lincoln in Mississippi and that Young had
helped him transport the Lincoln to Florida. The Defendant acknowledged his awareness of
the stop and arrest of Young in Brevard County. He stated that he took a bus from Fort
Lauderdale back to Melbourne to get the Dodge the day after the stop. By the time the
Defendant made his statement to the police, Detective Lawson had already verified with
Greyhound Bus Lines that the Defendant had purchased a bus ticket two days after the
Brevard County traffic stop and one day after Perez had checked into the Super 8 Motel.
Detective Lawson testified that a copy of the ticket was found during a search of one of the
Defendant’s vehicles.

       Dr. O’Brian Cleary Smith, the Shelby County Medical Examiner and a witness for the
State, provided medical testimony concerning the murders of Mr. and Mrs. James. Dr.
Smith, an expert in forensic pathology, examined the crime scene at the James residence and
performed the autopsies of Mr. and Mrs. James. His autopsy report, which listed Mr. James’
height as five feet, nine inches and his weight as 137 pounds, indicated that Mr. James had

                                              -8-
sustained three distinct neck injuries. First, he suffered a fracture of his cervical spine, likely
caused by either compressive forces applied to the neck or forcible flexion of the neck. Dr.
Smith explained that this type of injury may result from bending the head down in a forceful
manner, which can cause the bones of the spine to compress so tightly that they fracture. He
stated that the compression results from “pushing the head down,” as may occur when
something forcefully “cause[s] the chin to drop down on the chest or in some instances a
maneuver like a half-nelson where the [attacker’s] forearm is across the neck and the other
arm is at the back of the head.” He described the second neck injury as a fracture of the
hyoid bone, which is between the base of the jaw and the top of the Adam’s apple. The
hyoid fracture was caused by compressive forces applied to the front of the neck in a left-to-
right direction. As to both the cervical spine and hyoid fractures, Dr. Smith testified that
these injuries, while not fatal on their own, were indicative of the application of “moderate
to severe” forces that “can have effects on other structures of the body that can result in
strangulation.” He stated that the third category of neck wound suffered by Mr. James
consisted of “sharp force injuries,” including four incisions and a single stab wound.1 Dr.
Smith described the incision wounds as “confluent,” meaning that they may have started in
multiple distinct areas but they ran together “to create one slightly ragged wound” on the
front of the neck. The stab wound occurred on the right front part of the neck and resulted
in a punctured windpipe.

        Dr. Smith further reported that Mr. James’ eyes showed signs of petechial
hemorrhaging, the rupture of small blood vessels within the “membrane that lines the inside
of the eyelids and also covers the majority of the white of the eye that one sees.” He testified
that petechial hemorrhaging often occurs in cases of strangulation. The autopsy further
indicated that bindings had been used on Mr. James’ extremities. In particular, there were
pressure marks on each forearm, “indicating that some type of narrow band-like material had
been applied” in a forcible manner. The left forearm had incision wounds that demonstrated
“an absence of active bleeding,” meaning that the wounds had been inflicted at the time of
or after death occurred. Fragments of a red metallic material—likely copper—were present
in the incision, and the pressure marks were consistent with the use of a metallic wire
binding. Dr. Smith found that Mr. James sustained fractures to both the left and right side
of the ribs resulting from a compressive force. He described the pattern of bleeding around
the rib injuries as indicative that they occurred while Mr. James was still alive. Dr. Smith
testified that the injuries were consistent with the attacker standing on Mr. James’ back while


        1
          Dr. Smith defined an incision as “a wound made by an instrument of sharp force, such as a knife
or a sharp piece of glass,” that is “longer and wider than it is deep.” In contrast, he defined a stab wound as
a wound that is made by an instrument of sharp force and that is deeper than it is long or wide, which
typically occurs “when [a] sharp object is inserted into the body instead of being dragged across the surface
of it.”

                                                     -9-
he lay face down on the floor. He further noted, however, that any other method of applying
compressive force could also explain the rib fractures, especially given that his bones were
more fragile than most due to osteoporosis.

        Dr. Smith also discovered a bruise on the right side of Mr. James’ tongue, which may
have been caused by the tongue “being pinched by a tooth.” There was bleeding on the base
of the left side of the tongue caused by the stab wound to the neck. The autopsy also
revealed “blood in the airway,” which typically occurs when a person has blood somewhere
in their “upper airway” and struggles to breathe, thereby causing the blood to go “down the[]
windpipe and . . . into the air sacs of the lung.” Dr. Smith determined the cause of death for
Mr. James to be “multiple injuries to different areas of the body by different mechanisms.”

        Dr. Smith also performed the autopsy of Mrs. James. He found that Mrs. James, who
was five feet, six inches tall and weighed 184 pounds, sustained five incisions in the
neck—two confluent incisions on the right side, which created a single wound just under an
inch in depth, and three confluent incisions on the left side, which created a wound that was
three inches deep and reached all the way to the spine. He discovered multiple superficial
incisions in the chin area and other injuries indicating that Mrs. James had been strangled.
Parallel lines of bruising on the right side of the neck, combined with deeper bruising of the
muscles underneath, suggested that her attacker had forcibly applied a hard object to her
neck. Dr. Smith found signs of petechial hemorrhaging in the eyes and face, which, as noted,
often appear in cases of strangulation. Dr. Smith displayed photographs that showed
bleeding into the membranes of Mrs. James’ eyes, caused by either the petechial
hemorrhaging or blunt trauma to the head. Mrs. James also had bruising on her tongue, the
back of her throat, and her windpipe, which indicated that “the compressive force may have
driven the tongue and the uppermost portion of the airway back with enough force to cause
bleeding of those elements.”

       Dr. Smith found no conclusive forensic evidence that Mrs. James had been bound, but
he did identify signs consistent with bondage. Specifically, Dr. Smith noted bruising on the
back of the right wrist that may have been caused by a rope or other ligature, as well as
incisions to the forearm area that “may have been the result of the severance of a ligature.”
The pattern of bleeding around the forearm incisions suggested that they occurred close to
the time of death. Mrs. James’ ring finger on her left hand had pressure marks indicating that
she had worn two rings on that finger. There was a small abrasion just above the pressure
marks, which Dr. Smith testified could have been caused by the forceful removal of the rings.
Dr. Smith testified that “multiple injuries” caused the death of Mrs. James.

       On cross-examination, Dr. Smith testified that he had performed “thousands” of
autopsies of homicide victims in Shelby County and the surrounding area during his career

                                            -10-
of nearly thirty years in forensic pathology. According to Dr. Smith, a “sizable percentage”
of homicides involved either a death attributable to “multiple injuries” or a death “caused by
sharp instruments like knives.” Dr. Smith stated that “throat cutting” had become
increasingly common in recent years and was not an unusual method of homicide in 2003.
He further explained that in such cases, multiple incisions are typical because, unlike surgical
instruments, ordinary knives provide an inefficient method of cutting through loose skin in
order to reach the tissue underneath. He stated that a non-surgical knife must typically “be
applied in a serial fashion to increase the depth of the injury with each subsequent cutting
action.” Dr. Smith described stab wounds to the neck as “not particularly rare” in cases
where a victim’s throat has been cut. In Dr. Smith’s experience, “asphyxiation by possible
strangulation” was “probably a little bit more common than throat cutting.” Dr. Smith
testified that bondage was not unusual and, like throat cutting, had become more prevalent
in recent years. When asked whether the combination of bondage, throat cutting, and
asphyxiation by possible strangulation was uncommon, Dr. Smith responded, “No.”

        Although Mrs. James was found dressed in only her panties, Dr. Smith testified that
he found no evidence of sexual assault or sexual deviancy. In his opinion, the crime scene
was unusual only in that it was a double homicide, the victims were found in separate parts
of the residence, and the victims appeared to be “regular folks” who lived in a well-kept
home, whereas in most “crime scenes, especially in a home, the home has been used for illicit
activities.” Dr. Smith distinguished between ligature strangulation, which involves the use
of “some sort of flexible object, [such as] a wire, a cord, [or a] rope,” and “compressive force
strangulation,” which involves the use of a rigid object. Dr. Smith clarified that there had
been no evidence of ligature strangulation as to either victim, but the autopsy of Mrs. James
revealed evidence of compressive force strangulation. Regarding the position of Mrs. James’
body, Dr. Smith testified that Mrs. James had been found lying face down with a pool of
blood behind her, which suggested that she had been “in a position other than that in which
she was found at the time that [her] neck wounds were produced.” Dr. Smith confirmed that
it was not unusual for a victim whose throat has been cut to be found lying face down.

       On redirect examination by the State, Dr. Smith testified that gunshot wounds were
likely the most common form of homicide in Shelby County, followed by sharp force
injuries, “multiple injuries,” and blunt force trauma. Dr. Smith estimated that less than half
of Shelby County homicides involve incision wounds. A smaller percentage involve both
incisions and strangulation, and an even smaller percentage involve incisions, strangulation,
binding, and the removal of the bindings prior to discovery. On re-cross-examination,
however, Dr. Smith reiterated that the elements of the homicides of Mr. and Mrs.
James—throat cutting, strangulation, binding, and the removal of bindings—are not unusual,
and that the combination of these elements is “[n]ot unique.”



                                             -11-
        Melbourne Police Department Officer Scott Dwyer, who investigated the crime scene
at the Super 8 Motel where the body of Carlos Perez was discovered, also testified at the
Rule 404(b) hearing. He conducted a vacuum sweep of the carpet to collect hair and fiber
evidence. There was blood spatter on the wall by the bed and on a night stand, consistent
with the deep laceration in Perez’s neck. After photographing the body, Officer Dwyer used
an alternative light source to scan the bathroom floor for shoe prints. Officer Dwyer
recovered four footwear impressions from the tile floor, which were preserved and later
transferred to a crime laboratory for comparison. Officer Dwyer also recovered twenty-seven
fingerprints from the room, but none of the prints matched the Defendant, Perez, or anyone
else involved in the investigation. Officer Dwyer testified that while searching for prints, he
observed “distinctive wipe down marks” on several surfaces in the room, indicating that
someone had used a wet cloth in an attempt to clean the area to remove any fingerprints.
Officer Dwyer also noted that the pillow cases, towels, and washcloths were missing from
the room.

        Officer Dwyer acknowledged that hairs collected from the bed and comforter were
tested for DNA, and the hairs did not match the DNA of either Perez or the Defendant. Hair
and debris collected from Perez’s pubic area were also tested and did not match the
Defendant’s DNA. Officer Dwyer reported that five cigarette butts were recovered from the
room and tested. Some of the cigarette butts matched the DNA of Perez, and one of the butts
tested positive for female DNA. Officer Dwyer testified that DNA testing was also
performed on a sample retrieved from a swab of Perez’s penis, and the DNA profile from the
swab was that of a female. Officer Dwyer indicated that fluid recovered from Perez’s anal
cavity did not match the DNA profile of Perez or the Defendant. Because the samples taken
from Perez’s genitals and anal cavity did not match Perez’s DNA, it appeared to Officer
Dwyer that “some kind of sexual activity [had taken] place.” Officer Dwyer reiterated his
conclusion that the room had been wiped down, but he admitted that it was impossible to
ascertain when the wiping down occurred and that it could have resulted from motel
employees cleaning the room before Perez checked in.

       Special Agent Thomas Davis with the Florida Department of Law Enforcement
(“FDLE”)2 testified that on September 16, 2003, he and other agents executed a search
warrant on the Defendant’s Lincoln Town Car. He supervised the search of the vehicle,
during which officers found a pair of Nike tennis shoes in the trunk. The shoes were
transferred to the custody of Emily Strickland, an FDLE crime analyst, for shoe-print
comparison.



        2
          The record reflects that the FDLE is the investigative state police agency for Florida, comparable
to the Tennessee Bureau of Investigation.

                                                   -12-
        Strickland, an expert in footwear impression comparisons, testified that in 2003, she
was assigned the task of comparing the pair of Nike tennis shoes seized from the Defendant’s
Lincoln to a latent shoe print recovered from the bathroom in the Super 8 Motel. Using
standard techniques, Strickland determined that the prints from the crime scene were made
by Nikes of the same size, shape, and “tread design” as those recovered from the Lincoln.
In addition, Strickland explained that footwear impression analysts look for “individual
characteristics,” which a shoe may acquire after the manufacturing process when something
happens that gives the shoe a unique print, such as a person damaging the sole by walking
over a sharp rock or a piece of glass. Strickland found on the Nikes two individual
characteristics that matched the latent prints from the Perez crime scene: first, both the Nikes
and the latent prints had a “cut” in the shape of a finger that matched in terms of size and
position, and, second, Strickland identified a “wear pattern” on the edge of the left Nike, near
the arch, that showed up in the print. Based on these findings, Strickland initially concluded
in her report that the prints at the Perez crime scene “could have been made” by the Nikes
recovered from the Defendant’s Lincoln. Upon further consideration, however, she believed
that the prints were “most likely” made by the Nikes.

        Dr. Sajid Qaiser, the Brevard County Medical Examiner and an expert in forensic
pathology, performed the autopsy of Perez. Dr. Qaiser observed evidence of ligature
strangulation, including a ligature mark almost completely encircling the neck, and petechial
hemorrhaging in the eyes, eye lids, and the area of the face surrounding the eyes. Dr. Qaiser
also observed seven to eight incisions on the neck, which created a wound that was seven to
twelve inches long and one to two inches deep. The neck incisions resulted in the severance
of the internal jugular vein and were consistent with the application of a knife or a similar
sharp object. Dr. Qaiser found blood in the lungs and throughout the tracheal bronchial tree,
indicating that Perez had both aspirated and ingested blood as a result of the incisions to his
neck. Dr. Qaiser further testified that there were abrasions on one of Perez’s wrists, as well
as tape residue on both wrists. The nature of the abrasions indicated that they occurred after
Perez’s death, likely as a result of the removal of the tape. Dr. Qaiser concluded that the
cause of death was ligature strangulation and incision wounds to the neck.

       On cross-examination, Dr. Qaiser testified that he observed “marks” or “furrows” on
the neck, wrists, and ankles, all indicating that the victim had been bound. The size and
pattern of the marks suggested that the attacker had used a “band-like” ligature
approximately one quarter inch in width. Dr. Qaiser testified that there was a small injury
on Perez’s back that may have been a bite mark. Dr. Qaiser further testified that although
the anal opening was dilated and two fresh abrasions were present on the walls of the anal
opening, this was not necessarily indicative of non-consensual sexual activity. In addition,
Dr. Qaiser noted that the toxicology report for Perez revealed the presence of marijuana. Dr.
Qaiser further observed that although the hyoid bone and larynx were intact, that is not

                                             -13-
unusual in cases of ligature strangulation.3

        At the conclusion of the hearing, the trial court issued a written order addressing the
admissibility of the proposed evidence of the Perez murder under Tennessee Rule of
Evidence 404(b). The trial court first determined that “the method of commission of the
[Perez murder] establishes such a unique modus operandi that it fairly leads to the inference
that the perpetrator of the Perez murder was the perpetrator of the James murders.” The trial
court found that the murders of Perez and Mr. and Mrs. James shared the following
characteristics: (1) multiple incision wounds to the neck; (2) strangulation; (3) the use of
bindings; (4) the body being found face down; and (5) an attempt by the perpetrator to “wipe
down” or “clean” the scene after the murder. The trial court further observed that both Mrs.
James and Perez were found nude or partially unclothed, and that “it appear[ed] that each of
the victim[s] may have known [the] attacker.” The trial court acknowledged the existence
of “some differences” between the Perez murder and the James murders, especially the fact
that Perez was a “young, male victim[] who showed signs of recent sexual activity,” whereas
the Jameses were “elderly victims” who were not sexually assaulted. Nevertheless, the trial
court found that the similarities between the crimes outweighed “any differences in the
victimology of the offenses.”

        Second, the trial court concluded that the proof “of the other crime, wrong, or act”
presented by the State at the hearing qualified as “clear and convincing.” See Tenn. R. Evid.
404(b)(3). The trial court emphasized the likely shoe print match, the fact that the Defendant
and Perez had worked together, and “additional evidence plac[ing] the [D]efendant in the
area at the time of the murder.”

        Third, the trial court deferred ruling as to whether “a material issue exists other than
conduct conforming with a character trait,” such as the identity of the perpetrator, indicating
that the proof at trial would dictate the result. See Tenn. R. Evid. 404(b)(2). Nevertheless,
the trial court provided guidance by informing the parties that if the proof were to place at
issue the Defendant’s identity as the perpetrator of the murders of Mr. and Mrs. James, then
the evidence that the Defendant killed Perez in a similar fashion would be material to the
issue.

        3
           During the Rule 404(b) hearing, the State also offered testimony from numerous witnesses
regarding the murder of Keith Gross in Fort Lauderdale, Florida, on September 7, 2002, approximately one
year prior to the murders of Mr. and Mrs. James. The State sought permission from the trial court to allow
evidence of the Gross murder in the prosecution of the Defendant for the murders of Mr. and Mrs. James.
The trial court held that the evidence pertaining to the Gross murder was inadmissible because it was “simply
too remote in time to have sufficient relevance to the issue of the [D]efendant’s identity as the perpetrator
of the instant crimes.” Because the trial court excluded all evidence of the Gross murder and the State has
not appealed that ruling, we have omitted that evidence from our summary of the facts.

                                                    -14-
       Fourth, the trial court also deferred ruling as to whether the probative value of the
evidence of the Perez murder was “outweighed by the danger of unfair prejudice.” See Tenn.
R. Evid. 404(b)(4). The trial court again indicated that resolution of this issue would depend
upon the proof at trial.

        Finally, the trial court observed that because of the “nearly inextricable investigative
connection” between the Perez murder and the James murders, “it may be necessary to admit
at least portions of proof, relating to the Perez murder, in order to create a complete picture
for the jury of the investigation conducted by the Bartlett authorities.”

                                        B. Guilt Phase
       During the guilt phase of the trial, the State offered testimony from many of the same
witnesses who had testified at the Rule 404(b) hearing prior to trial. Detective Carlos Reyes
(the detective who pulled over and arrested Young), Margaret Coleman (the daughter of Mrs.
James), and Michael Smith (the car dealer who sold the Lincoln to the Defendant) all
provided testimony as to the investigation of the James murders that was in all material
respects consistent with their prior testimony.

       During the testimony of Officer Phillip Devers (the Bartlett police officer who first
responded to the scene of the James murders and discovered the victims), the State sought
to admit photographs of the bodies of Mr. and Mrs. James. The defense objected to both
photographs on the basis that they were overly inflammatory and prejudicial. The trial court
admitted the photographs, holding that the pictures were not inflammatory because they
depicted the bodies as they were “found immediately upon going into the area where they
were deceased.” The remainder of Officer Devers’ testimony was consistent with his
testimony during the Rule 404(b) hearing.

       Lieutenant Joseph Massey’s testimony about his first two interviews with Tevarus
Young was essentially the same as Detective Johnny Lawson’s account of the interviews.
Lieutenant Massey testified that Young was “very emotional” during the first interview,
crying uncontrollably and vomiting. While confirming that Young calmed down somewhat
for the second interview, Lieutenant Massey stated that Young continued to “cry
uncontrollably at times.” Lieutenant Massey also confirmed that Young changed his story
numerous times. Lieutenant Massey acknowledged that Young repeatedly lied to the officers
during the interviews. He also conceded that James White, an individual who lived near the
James residence, had initially been another viable person of interest in the course of the
investigation.

       Detective David Neyman of the Bartlett Police Department, who went to three
different gas stations in Mississippi where Mrs. James’ stolen credit card was used, was able

                                             -15-
to view surveillance video at two of the gas stations. Detective Neyman observed a Dodge
Aries K-car in the video from a gas station where the stolen card was used in Batesville,
Mississippi, and observed the same Dodge following a white Lincoln Town Car when
leaving a gas station where the same card was used in Madison, Mississippi. The second
video included footage of an African-American male wearing a yellow shirt exiting and
reentering the Lincoln Town Car. Detective Neyman acknowledged, however, that the
surveillance video did not include an image of the person using the stolen card. The State
introduced into evidence records showing that Mrs. James’ credit card was used to purchase
gas at a Citgo station in Memphis at 3:18 p.m. on the date of the James murders and at
several gas stations in Mississippi and Florida on the night of the murders and over the
following two days.

       Diane Armstrong, the Defendant’s niece, testified that she and her husband had
previously helped get the Defendant a job at the Burger King in Bartlett, where they both
worked. She recalled that in August of 2003, the Defendant showed up unexpectedly at her
house, and that a “young man” whom she could not identify was asleep in the Defendant’s
car. She stated that she informed the Defendant that her husband was at Burger King and
that he could go get breakfast there.

       Wesley Armstrong, Diane’s husband, testified that on the same morning, he was
returning from making a deposit when he saw the Defendant’s car parked in the lot at the
Burger King where he worked. Armstrong learned from the man inside the vehicle that the
Defendant was inside the restaurant. Armstrong described the man in the car as a “skinny,”
young African-American man with “braids in his hair.” Armstrong spoke briefly to the
Defendant and gave food to the Defendant and the other man, after which they left.

       Christopher Stallion, an employee of the City of Bartlett, testified that he frequently
drove past the James residence and would often see Mr. James sitting in his garage. Stallion
recalled that on the date of the murders, at approximately 1:00 p.m., he drove by and saw Mr.
James talking with two African-American men in front of his garage. Stallion could not
provide any further description of the men, although during the investigation he told officers
that one of the men was approximately six feet, one inch in height and the other was slim and
had a “low hair cut.”

        James White, a resident of Bartlett who mowed lawns for supplemental income,
testified that he often mowed the lawns for the neighbors of Mr. and Mrs. James but had
never worked for the Jameses. White, who was initially a person of interest in the
investigation of the murders, maintained his innocence at all times. The police interviewed
him and searched his residence. When asked about his drug use, White admitted to
previously using crack cocaine but denied using it at the time of the murders.

                                            -16-
        Tevarus Young’s testimony at trial was consistent with his testimony from the Rule
404(b) hearing, although he testified to certain additional facts. For example, when asked
to recount what happened at the James residence, Young testified that after the Defendant
tied Mrs. James and rummaged through her purse, she informed the Defendant that her son
was supposed to be coming to the house. According to Young, the Defendant responded,
“[I]f he come[s] he[’s] going to get the same thing you’re going to get.” The Defendant then
pushed her into another room and strangled her with a rope before cutting her throat. Young
further testified that the Defendant removed the rings from Mrs. James’ fingers, put them in
the plastic bag along with the contents of her purse, and later put on the bracelet he had
stolen and gave Young the rings.

        As at the Rule 404(b) hearing, Young testified that following the James murders, the
Defendant purchased the Lincoln Town Car. He added that some time after the purchase,
the Defendant raped Young at a rest area “somewhere on the interstate.” According to
Young, they again stopped to see Toosie and Tawana, the Defendant left for a while with
Toosie, and Young did “a lot of drugs.” When the Defendant came back, they continued on
their trip until Young was stopped and arrested in Brevard County.

        On cross-examination, Young admitted that after being pulled over by Detective
Reyes, he wanted to get rid of Mrs. James’ rings because they tied him to the murder. Young
denied that he kept Mrs. James’ rings as “trophies,” lied to the police as part of his “game,”
or falsely portrayed himself as the victim in order to avoid prosecution. He admitted,
however, that he had initially lied to the police by stating that he, the Defendant, and Wesley
Armstrong had gone to the James residence, where he waited in the car while the Defendant
and Armstrong went inside. Young ultimately admitted that Armstrong had nothing to do
with the murders. Young acknowledged that he had been charged with facilitation of first
degree murder, and that he did not have a plea deal but hoped to receive leniency in exchange
for testifying against the Defendant.

        Dr. O’Brian Cleary Smith’s trial testimony was consistent with his testimony at the
Rule 404(b) hearing concerning the injuries to Mr. and Mrs. James. On direct examination,
the State sought to admit four photographs of the autopsy of Mr. James and three
photographs of the autopsy of Mrs. James. The trial court admitted the photographs over the
Defendant’s objection. When asked on cross-examination about the marks on Mrs. James’
right wrist, Dr. Smith acknowledged that he classified the marks as ligature marks based
“mainly on the other circumstances surrounding the scene and Mr. James’s [ligature marks],”
rather than making the determination solely on the marks themselves. Moreover, Dr. Smith
testified that the only unusual aspect of the case was the identity of the victims, not how the
murders were committed. Dr. Smith explained that murders involving a combination of
techniques are something “that you see.” He further testified that the cutting of the throat

                                             -17-
took place “relatively frequently” and was not a unique homicide method.

        Following the introduction of this evidence, the trial court addressed the Rule 404(b)
issues left unresolved at the pre-trial hearing—whether identity was at issue and whether the
probative value of the proposed evidence was outweighed by the risk of prejudice to the
Defendant. The trial court ruled that identity was a material issue at trial and that the risk of
prejudice did not outweigh the probative value of the proof in light of the Defendant
“vigorously challeng[ing]” Young’s testimony and raising the issue of other “possible
suspects.” Upon ruling that the evidence of the Perez murder was admissible, the trial court
instructed the jury as follows:

       Jurors, the State at this time intends to present proof regarding another crime
       or crimes allegedly committed by the [D]efendant other than that which he’s
       on trial for, and you may not consider such evidence to prove his disposition
       to commit such a crime on this case here.

       This evidence may only be considered by you for the limited purpose of
       determining whether it provides proof of [the D]efendant’s identity, that is,
       such evidence may be considered by you if it tends to establish the
       [D]efendant’s identity in the case on trial.

       A number of witnesses then testified as to the circumstances of the Perez murder.
Ravindra Patel, Special Agent Thomas Davis of the FDLE, and FDLE crime analyst Emily
Strickland all provided testimony at trial that was consistent with their prior testimony at the
Rule 404(b) hearing.

       The State sought to admit five photographs of the Perez crime scene during the
testimony of Officer Scott Dwyer (one of the Melbourne police officers who investigated the
Perez murder). The Defendant objected to three of the photographs on the grounds that they
were cumulative and prejudicial due to their graphic nature. Although the trial court
excluded one of the three photographs, the other two were admitted. Officer Dwyer
acknowledged that the Super 8 Motel at which the murder was committed is in an area of
high crime and prostitution, and that he believed the Perez murder to be sexual in nature.
The remainder of his testimony was substantially the same as his testimony at the Rule
404(b) hearing.

       Detective Johnny Lawson (another Melbourne police officer who investigated the
Perez murder) testified that he believed the crime scene at the Super 8 Motel had features
which initially suggested that the crime was “probably” sexual in nature. He also
characterized the area where the Super 8 Motel is located as being a “high crime rate area.”

                                              -18-
Detective Lawson did not address his interviews with Young as extensively as he did during
the Rule 404(b) hearing, but his trial testimony was otherwise consistent with his earlier
testimony.

       Dr. Sajid Qaiser’s trial testimony was essentially identical to his testimony at the Rule
404(b) hearing. Four photographs of the Perez autopsy were admitted as evidence, all over
the Defendant’s objection.

       Patti Orta, a crime lab analyst for the FDLE, identified a pair of Nike shoes, a
woman’s ring, a J.C. Penney bag, clothing, and multiple cleaning products found in the
searches of the Defendant’s automobiles.

       Catherine Theisen, a forensic mitochondrial DNA examiner for the FBI, compared
pubic hair found at the Perez crime scene with the Defendant’s mitochondrial DNA,
concluding that the Defendant could not be excluded as the source of the hair found at the
scene of Perez’s murder. She stated that mitochondrial DNA is not unique to a particular
individual, but that the FBI has a database to determine if a particular sample is common or
rare. Theisen determined that “[she] would not expect to see that type” in more than .26%
of the African-American population, .17% of the Caucasian population, or .39% of the
Hispanic population.

        The Defendant chose not to testify. After receiving instructions from the trial court,
the jury returned verdicts of guilt for the felony murder and the premeditated murder of both
Mr. and Mrs. James.

                                      C. Penalty Phase
        During the penalty phase, the State offered victim impact evidence from Turkessa
Kenetta Helton, the granddaughter of Mrs. James and a middle school Language Arts
teacher. She testified that her family was particularly close. She explained that all of Mrs.
James’ children would drive her to and from work and often took her shopping. She further
testified that she had named her daughter after Mrs. James and that she wished Mrs. James
could see her son and daughter grow up. Helton described Mr. James as nice, generous, and
family-oriented.

        As mitigating evidence, the defense called Eddie Jones, the Defendant’s brother, to
testify about their childhood. Jones explained that they grew up in a very poor family in
Cleveland, Mississippi, with ten brothers and four sisters. Jones remembered that their older
brothers were “very abusive” to both him and the Defendant, hitting them with water hoses,
coat hangers, belts, and extension cords. He also recalled that when the Defendant was
approximately five years old, one of their older brothers gave a gun to the Defendant and

                                             -19-
directed the Defendant to shoot him. The Defendant pulled the trigger, but the gun was
unloaded. Jones stated that the Defendant had been imprisoned for fifteen to sixteen years,
but, upon release, became actively involved with their family, especially with his nieces and
nephews. Jones asked the jury for mercy.

       Against the advice of his counsel, the Defendant chose to testify. He recalled that he
had a difficult childhood and described being beaten with water hoses and belts. The
Defendant stated that he never developed a relationship with his father, but that his mother
“did the best she could.” He admitted that at age eighteen he had been convicted of robbery
and served sixteen years of a thirty-year sentence. He testified that while serving this
sentence, he apologized to the victim and sought forgiveness. The Defendant maintained his
innocence of the murders of Mr. and Mrs. James. He also denied ever sexually assaulting
another person or paying Young for oral sex. The Defendant contended that Young had
fabricated his account of the murders while he was incarcerated at the Broward County
Detention Center. The Defendant acknowledged that he and Young traveled from Florida
to Tennessee and back, but denied that they committed any crimes together. The Defendant
further stated that he previously resided within one mile of Mr. and Mrs. James’ residence
and had seen them before but had never spoken with them. Although the Defendant admitted
to smoking marijuana on occasion, he testified that he was not on drugs at the time of the
murders.

       The parties stipulated that the Defendant had previously been convicted of five violent
felony offenses arising out of three incidents in Florida. On March 29, 1982, the Defendant
was convicted of two counts of battery of a law enforcement officer; on April 23, 1982, he
was convicted of aggravated battery; and on July 21, 1982, he was convicted of robbery and
kidnapping.

        The trial court instructed the jury to consider the following aggravating circumstances:
(1) that the Defendant had previously been convicted of one or more violent felonies; (2) that
the murders were especially heinous, atrocious, or cruel; (3) that the murders were committed
for the purpose of avoiding or interfering with a lawful arrest or prosecution; (4) that the
murders were knowingly committed while the Defendant had a substantial role in committing
or attempting to commit a robbery; and (5) as to Mr. James only, that the victim of the
murder was seventy years of age or older. See Tenn. Code Ann. § 39-13-204(i)(2), (5)–(7),
(14) (2014). In addition, the trial court instructed the jury to consider the following as
possible mitigating circumstances: (1) whether the Defendant was an accomplice to the
murder committed by another and the Defendant’s participation was relatively minor; (2) any
lingering doubt as to the Defendant’s guilt; (3) the fact that the accomplice would not be
charged with capital murder and would not face a possible death sentence; (4) the fact that



                                             -20-
the Defendant may face a capital murder charge;4 (5) the Defendant’s background and
childhood; and (6) any other mitigating circumstance raised by the evidence.

       The jury imposed a death sentence as to each count, having unanimously found that
the State proved all of the aggravating circumstances beyond a reasonable doubt and that the
aggravating circumstances outweighed any mitigating circumstances beyond a reasonable
doubt.

                                D. Appellate Proceedings
       On direct appeal, the Defendant challenged the admission of the evidence of the Perez
murder, the sufficiency of the evidence to support his convictions, the admission of certain
victim photographs, and the constitutionality of Tennessee’s sentencing statute for first
degree murder. State v. Jones, No. W2009-01655-CCA-R3-DD, 2013 WL 1697611, at *22
(Tenn. Crim. App. Apr. 18, 2013). A majority of the panel of the Court of Criminal Appeals
rejected each of these claims. The panel majority also addressed the issues of mandatory
review set out in Tennessee Code Annotated section 39-13-206(c)(1)(A)–(D) (2014) and
concluded that the death sentences were not imposed in any arbitrary fashion; that the
evidence supported the aggravating circumstances found by the jury; that the evidence
supported the jury’s finding that the aggravating circumstances outweighed any mitigating
circumstances; and that the death sentences were not excessive or disproportionate to the
penalty imposed in similar cases. Id. at *50-54. The majority opinion affirmed the
convictions and the sentences of death, but, as required by law, remanded with instructions
for the trial court to merge each conviction for felony murder into the corresponding
premeditated murder conviction. Id. at *55 (citing State v. Kiser, 284 S.W.3d 227, 234
(Tenn. 2009)).

        Judge Camille R. McMullen dissented, finding that the State had “failed to show that
the method used in these murders was so unique as to constitute a signature that would give
rise to the inference of identity.” Id. (McMullen, J., dissenting). Moreover, because Judge
McMullen was “unable to conclude that the erroneous admission of the [Perez] murder did
not [a]ffect the outcome of the verdict,” she concluded that a new trial should be granted as
to the murders of Mr. and Mrs. James. Id. at *59.




        4
         As to the fourth mitigating circumstance, the trial court instructed the jury that “the [D]efendant
may face a capital murder charge.” The written instructions, however, read as follows: “The Defendant may
face a capital murder charge in Florida.” (Emphasis added.) After a bench conference, the trial court
decided not to re-instruct the jury as to that mitigating factor but left the reference to Florida in the written
charge.

                                                     -21-
                                       II. Analysis
       The Defendant challenges the sufficiency of the evidence and asserts that the trial
court erred by allowing evidence of the Perez murder.

                                A. Sufficiency of the Evidence
        The first issue is whether the evidence adequately supports the jury’s finding of guilt
as to each count of first degree murder. Our standard for reviewing the sufficiency of the
evidence, both direct and circumstantial, is limited. State v. Dorantes, 331 S.W.3d 370, 379
(Tenn. 2011). We must afford the State “the strongest legitimate view of the evidence and
all reasonable inferences that may be drawn therefrom.” State v. Vasques, 221 S.W.3d 514,
521 (Tenn. 2007) (citing State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978)). The
determinative question is whether, after reviewing the evidence in the light most favorable
to the State, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.
R. App. P. 13(e). “Because a verdict of guilt removes the presumption of innocence and
raises a presumption of guilt, the criminal defendant bears the burden on appeal of showing
that the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992)).
Although we review de novo the application of the law to the facts, Jordan v. Knox Cnty.,
213 S.W.3d 751, 763 (Tenn. 2007) (citing State v. Thacker, 164 S.W.3d 208, 247-48 (Tenn.
2005)), we cannot substitute our own inferences for those drawn by the factfinders at trial,
State v. Lewter, 313 S.W.3d 745, 747-48 (Tenn. 2010).

         When the only proof of a crime is the uncorroborated testimony of one or more
accomplices, the evidence is insufficient to sustain a conviction as a matter of law. State v.
Collier, 411 S.W.3d 886, 894 (Tenn. 2013) (citing State v. Little, 402 S.W.3d 202, 211-12
(Tenn. 2013)). This Court has defined the term “accomplice” to mean “one who knowingly,
voluntarily, and with common intent with the principal unites in the commission of a crime.”
Id. (citing State v. Bough, 152 S.W.3d 453, 464 (Tenn. 2004); Clapp v. State, 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) (quoting State v. Bigbee, 885
S.W.2d 797, 803 (Tenn. 1994)). Corroborative evidence must lead to the inferences that a
crime has been committed and that the defendant is implicated in the crime. Id.



                                             -22-
       The Defendant asserts that “[t]here is a complete lack of evidence to corroborate the
testimony of indicted co-conspirator, Tevarus Young, and no rational jury could find beyond
a reasonable doubt that the [Defendant] was guilty of any of the crimes upon which he was
convicted.” The State contends that Young’s testimony was adequately corroborated and
established the elements of each offense. The State has not challenged the determination by
the Court of Criminal Appeals that “Young’s admitted participation in the offenses was
sufficient to render him an accomplice in the murders of Mr. and Mrs. James.” Jones, 2013
WL 1697611, at *44. We agree that Young’s involvement qualifies him as an accomplice.
The question before us, therefore, is whether Young’s testimony was adequately corroborated
by other evidence.

       Wesley and Diane Armstrong of Bartlett, Tennessee, confirmed that the Defendant
visited both their residence and their place of employment, a Burger King Restaurant, in
August of 2003. The Armstrongs testified that the Defendant was accompanied by an
unknown person whom they described as a skinny African-American male with braided
hair—a description that would closely resemble Young. The Armstrongs’ testimony is
consistent with Young’s testimony as to the events leading up to the James murders.

       Christopher Stallion testified that at approximately 1:00 p.m. on the date of the
murders, he saw two African-American men standing with Mr. James near his garage. This
is consistent with Young’s testimony that he and the Defendant had talked with Mr. James
in front of the Jameses’ garage prior to the murders.

       Young testified that just after the murder and several times during their drive back to
Florida, the Defendant used a credit card stolen from the victims to purchase gas. The State
introduced records confirming the use of Mrs. James’ card at a gas station in Memphis at
3:18 p.m. on the date of the James murders. The State also produced documentation of
purchases made with the same credit card on the night of the murders and over the following
two days at several gas stations in Mississippi and Florida. Surveillance video from a gas
station in Batesville, Mississippi, at approximately 8:00 p.m. on the day of the James
murders, depicted a Dodge Aries K-car matching that owned by the Defendant. Video from
a gas station in Madison, Mississippi, taken on the same date at approximately 11:00 p.m.,
showed an African-American male with a yellow shirt, which is consistent with Young’s
testimony that the Defendant purchased such a shirt at J.C. Penney. The Madison video
showed that the man in the yellow shirt exited and then reentered a Lincoln Town Car, and
also showed that the Lincoln, upon leaving the station, was followed by a Dodge Aries K-car.

       Michael Smith, the owner of a used car dealership in Mississippi, confirmed Young’s
testimony that the Defendant paid cash for the Lincoln Town Car shortly after the murders.
Detective Carlos Reyes verified Young’s testimony that he was stopped and arrested in

                                            -23-
Brevard County, Florida, and that the Defendant returned to the place of the stop to
acknowledge his ownership of the car driven by Young. Further, during a search of the
Defendant’s Lincoln, Florida officers discovered a J.C. Penney bag and a ring, the latter of
which was later identified by Margaret Coleman as belonging to Mrs. James.

       Of further significance, the testimony of Dr. Smith, the Shelby County Medical
Examiner, corroborated Young’s testimony as to both the nature of the injuries sustained by
Mr. and Mrs. James and the manner in which they were murdered. Dr. Smith testified that
both Mr. and Mrs. James sustained incision wounds to the neck and displayed signs of
strangulation and bondage, all of which was consistent with Young’s testimony. Dr. Smith
also found abrasions that were compatible with the forcible removal of rings from Mrs.
James’ fingers, as Young testified the Defendant had done. Moreover, Dr. Smith’s
description of the crime scene verified Young’s testimony that he and the Defendant left Mrs.
James’ body in one of the bedrooms and left Mr. James’ body in the laundry room.

       This corroborative evidence, which confirmed Young’s testimony as to the events
before, during, and after the murders of Mr. and Mrs. James, fairly and legitimately tends to
connect the Defendant with these crimes. See Bane, 57 S.W.3d at 419. In consequence,
Young’s testimony was adequately corroborated.

       Furthermore, Young’s testimony, combined with the other evidence at trial, was
sufficient for a rational trier of fact to find the essential elements of each offense beyond a
reasonable doubt. In this instance, the offenses at issue are first degree premeditated murder
and first degree felony murder. Premeditated murder, defined as the “premeditated and
intentional killing of another,” Tenn. Code Ann. § 39-13-202(a)(1) (2014), “may be
established by any evidence from which a rational trier of fact may infer that the killing was
done ‘after the exercise of reflection and judgment,’” State v. Leach, 148 S.W.3d 42, 53
(Tenn. 2004) (quoting State v. Davidson, 121 S.W.3d 600, 615 (Tenn. 2003)). Felony
murder is defined, in relevant part, as “[a] killing of another committed in the perpetration
of or attempt to perpetrate . . . [a] robbery.” Tenn. Code Ann. § 39-13-202(a)(2). For a
felony murder conviction, “[n]o culpable mental state is required . . . except the intent to
commit” the underlying offense, id. § 39-13-202(b), which in this instance is robbery.
“Robbery is the intentional or knowing theft of property from the person of another by
violence or by putting the person in fear.” Id. § 39-13-401(a) (2014).

      Young testified that he witnessed the Defendant murder Mrs. James and observed the
body of Mr. James after the Defendant had been alone with him just moments before. The
evidence established that the Defendant used weapons, including a knife and rope, upon
unarmed victims who were particularly vulnerable because of their ages. The Defendant’s
method of killing Mr. and Mrs. James—which involved binding, strangulation, and throat

                                             -24-
cutting—was especially cruel. The Defendant explained to Young that he had killed Mrs.
James because she had seen his face. The Defendant’s robbery of the Jameses’ money, credit
cards, and jewelry indicates another motive for the murders. The Defendant proceeded
methodically and calmly after the murders, and attempted to clean the crime scene before
making his escape. Each of these facts is indicative of premeditation and, taken together,
they provide a basis for a rational trier of fact to infer that the murders were committed “after
the exercise of reflection and judgment,” as required by Tennessee Code Annotated section
39-13-202(d). See Leach, 148 S.W.3d at 53-54 (noting that circumstances which may
support a finding of premeditation include the use of a deadly weapon upon an unarmed
victim, the particular cruelty of the killing, the destruction or secretion of evidence of the
killing, a defendant’s calmness after the killing, and the motive for the killing). As a result,
the evidence adequately supports the Defendant’s convictions for the first degree
premeditated murders of Mr. and Mrs. James.

       As to the felony murder convictions, the evidence demonstrated that the Defendant
used threats and violence to accomplish the theft of a billfold from Mr. James and the theft
of money, credit cards, and jewelry from Mrs. James. The proof further established that Mr.
and Mrs. James died as a result of injuries sustained from the use of violence by the
Defendant. Accordingly, the evidence supports the Defendant’s convictions for the first
degree felony murders of Mr. and Mrs. James during the perpetration of a robbery.5

                 B. Admissibility of the Evidence of the Perez Murder
       The second question is whether the trial court properly admitted evidence relating to
the Perez murder. As noted, this issue is governed by Tennessee Rule of Evidence 404(b),
which generally prohibits “[e]vidence of other crimes, wrongs, or acts . . . to prove the
character of a person in order to show action in conformity with the character trait.” The
Rule, however, allows such evidence “for other purposes” upon the following conditions:

        (1) The court upon request must hold a hearing outside the jury’s 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;



        5
           As noted by the Court of Criminal Appeals, our law requires “the merger of multiple convictions
of first degree murder involving a single victim.” Kiser, 284 S.W.3d at 234 n.2 (citing State v. Cribbs, 967
S.W.2d 773, 788 (Tenn. 1998)). Thus, while the evidence is sufficient to support each of the convictions in
this case, the convictions for premeditated murder and felony murder should have been merged, resulting in
a single judgment of conviction as to each victim.

                                                   -25-
       (3) The court must find proof of the other crime, wrong, or act to be clear and
       convincing; and

       (4) The court must exclude the evidence if its probative value is outweighed
       by the danger of unfair prejudice.

The comments to the Rule provide that the evidence of other crimes, wrongs, or acts should
be excluded unless relevant to an issue other than the character of a defendant, such as
identity, motive, intent, or absence of mistake. See Tenn. R. Evid. 404, Advisory
Commission cmt.; see also Bunch v. State, 605 S.W.2d 227, 229 (Tenn. 1980). In State v.
Parton, 694 S.W.2d 299, 303 (Tenn. 1985), the decision upon which the Rule is based, this
Court specifically held that before the proposed evidence can be admitted, the trial court must
first find that the Defendant’s connection to the other crime, wrong, or act has been clearly
and convincingly established. In 2003, Rule 404(b) was amended to confirm the “clear and
convincing” requirement explicated in Parton. See Tenn. R. Evid. 404(b)(3) & 2003
Advisory Commission cmt.

         Trial courts have been encouraged to take a “restrictive approach of [Rule] 404(b) . . .
because ‘other act’ evidence carries a significant potential for unfairly influencing a jury.”
State v. Dotson, 254 S.W.3d 378, 387 (Tenn. 2008) (second alteration in original) (quoting
State v. Bordis, 905 S.W.2d 214, 227 (Tenn. Crim. App. 1995)) (internal quotation marks
omitted). In Old Chief v. United States, the United States Supreme Court pointed out that
“‘the risk that a jury will convict for crimes other than those charged—or that, uncertain of
guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial
effect that outweighs ordinary relevance.’” 519 U.S. 172, 181 (1997) (quoting United States
v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)); see also Michelson v. United States, 335 U.S.
469, 475-76 (1948). In Dotson, this Court reaffirmed the policy of exclusion:

       The rationale behind the general rule is that admission of other wrongs carries
       with it the inherent risk of the jury convicting a defendant of a crime based
       upon his or her bad character or propensity to commit a crime, rather than the
       strength of the proof of guilt on the specific charge. . . . As this Court has
       consistently cautioned, the jury should not “be tempted to convict based upon
       a defendant’s propensity to commit crimes rather than . . . evidence relating to
       the charged offense.”

254 S.W.3d at 387 (second alteration in original) (quoting Spicer v. State, 12 S.W.3d 438,
448 (Tenn. 2000)).

       Although appellate courts have repeatedly emphasized a restrictive approach to Rule

                                              -26-
404(b), the decision of a trial court to admit or exclude evidence will not be overturned on
appeal absent an abuse of discretion, provided that the court adhered to the Rule’s procedure.
Kiser, 284 S.W.3d at 288 (citing State v. DuBose, 953 S.W.2d 649, 652 (Tenn. 1997)). The
terms of Rule 404(b) direct the trial court to first hold a hearing outside the presence of the
jury to assess the criteria set forth in the Rule. Tenn. R. Evid. 404(b)(1). This Court has
previously observed that a trial court may, as in this instance, conduct the required hearing
prior to trial. State v. Gilley, 173 S.W.3d 1, 6 (Tenn. 2005). Nevertheless, because “the Rule
404(b) criteria . . . require consideration of the evidence at trial,” we have cautioned that “if
pretrial evidentiary rulings are made, they may need to be reconsidered or revised based on
the evidence presented at trial.” Id.

        Here, as our Court of Criminal Appeals acknowledged, see Jones, 2013 WL 1697611,
at *40, and as the Defendant concedes, the trial court complied with the Rule 404(b)
procedure by hearing the proposed evidence prior to trial, considering each of the criteria in
light of the evidence presented at trial, and making the required findings prior to admitting
the evidence. Abuse of discretion is, therefore, our standard of review. “‘A court abuses its
discretion when it applies an incorrect legal standard or its decision is illogical or
unreasonable, is based on a clearly erroneous assessment of the evidence, or utilizes
reasoning that results in an injustice to the complaining party.’” State v. Adams, 405 S.W.3d
641, 660 (Tenn. 2013) (quoting Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012)).

                                1. Existence of a Material Issue
       The first criterion under Rule 404(b) is whether “a material issue exists other than
conduct conforming with a character trait.” Tenn. R. Evid. 404(b)(2). “[E]vidence that the
defendant committed another crime is admissible only if the ground for relevance”—in this
instance, the identity of the perpetrator—“is actually being contested in the case on trial.”
Bunch, 605 S.W.2d at 230. If a defendant’s identity is conclusively established by other
proof at trial, then identity is no longer at issue and the evidence of the other crime should
not be admitted. White v. State, 533 S.W.2d 735, 739 (Tenn. Crim. App. 1975) (quoting
Warren v. State, 156 S.W.2d 416, 418 (Tenn. 1941)).

        Here, the trial court waited until it had heard the majority of the evidence pertaining
to the investigation of the James murders before ruling that identity was a material issue
because the Defendant had “vigorously challenged” Young’s testimony that the Defendant
committed the murders and had raised the issue of other “possible suspects.” The Court of
Criminal Appeals affirmed this determination. Jones, 2013 WL 1697611, at *41. The
Defendant concedes that identity was a material issue at trial. We agree. By challenging the
proof that he murdered Mr. and Mrs. James and by attempting to shift the blame to others,
most notably Young, the Defendant placed identity at issue. Moreover, the evidence did not
establish the Defendant’s identity so conclusively as to eliminate the issue as a jury question.

                                              -27-
See White, 533 S.W.2d at 739.

                    2. Clear and Convincing Proof of the Other Crime
       The second criterion under Rule 404(b) is whether the Defendant’s commission of the
other crime was established by clear and convincing evidence. See Tenn. R. Evid. 404(b)(3).
The Defendant contends that the evidence established only that: (1) the Defendant knew
Perez; (2) the Defendant was in the vicinity of Perez at the time of his death; and (3) Perez
checked into the Super 8 Motel accompanied by a skinny, African-American male. Thus,
he claims that the State failed to present clear and convincing evidence that he committed the
Perez murder. We disagree.

        To meet the clear and convincing standard, the trial court must determine that the
evidence offered to show the defendant’s involvement in the other crime is not “‘vague and
uncertain.’” State v. Fisher, 670 S.W.2d 232, 236 (Tenn. Crim. App. 1983) (quoting Wrather
v. State, 169 S.W.2d 854, 858 (Tenn. 1943)). The clear and convincing evidence standard
is more exacting than preponderance of the evidence but less exacting than beyond a
reasonable doubt, and it requires that “‘there [be] no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.’” State v. Kennedy, 152 S.W.3d 16,
18 (Tenn. Crim. App. 2004) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3
(Tenn. 1992)); see also Little, 402 S.W.3d at 214 n.7 (observing that “Tennessee is different
from most state and federal jurisdictions that evaluate the admissibility of prior crime
evidence by a preponderance of the evidence standard”). The burden is on the State to
establish by clear and convincing evidence that: (1) another crime was committed; and (2) the
crime was committed by the defendant. White, 533 S.W.2d at 743 (quoting Wrather, 169
S.W.2d at 858). “Only thus can identification, or other proof of guilt, of the accused in the
pending case be aided by evidence of the [other] crime.” Id. (quoting Wrather, 169 S.W.2d
at 858).

       As indicated, a criminal offense may be established exclusively by circumstantial
evidence. Dorantes, 331 S.W.3d at 379. This principle also applies in the context of
determining whether another crime has been established by clear and convincing evidence.
Accordingly, we may not substitute our own inferences for those drawn by the trial court,
which acted as the finder of fact in determining whether the proof of the Perez murder was
clear and convincing. See id. (“On appeal, the court may not substitute its inferences for
those drawn by the trier of fact in circumstantial evidence cases.”); see also State v. Rice, 184
S.W.3d 646, 662 (Tenn. 2006) (noting that “the weight to be given to circumstantial
evidence, . . . ‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the [finder of fact]’” (second alteration in original) (quoting Marable v. State,
313 S.W.2d 451, 457 (Tenn. 1958))).

                                              -28-
        At the Rule 404(b) hearing, the State presented significant evidence placing the
Defendant in both temporal and physical proximity of the Perez murder. Detective Reyes
testified that on August 25, 2003, he initiated a traffic stop near Melbourne, Florida, of a
Dodge Aries K-car driven by Young. During the stop, the Defendant pulled behind the
detective’s vehicle in his Lincoln and acknowledged that he owned the Dodge. Because
Young was subsequently arrested, the Dodge was left parked on the side of the interstate,
approximately five miles from the Super 8 Motel, and the Defendant was instructed to later
retrieve the vehicle. Perez was last seen alive the following day at approximately 1:00 p.m.
when Patel, the manager of the Super 8 Motel, observed Perez exit a white, mid-sized
sedan—a description matching both of the Defendant’s vehicles—and enter the motel office.
Thereafter, Perez returned to the vehicle and an African-American male accompanied him
into the motel. Perez’s body was discovered the next day.

        Notably, the Defendant admitted that he had worked with Perez, that they had
associated with each other outside of work, and that Perez had been in both the Defendant’s
Dodge and his recently purchased Lincoln. Most importantly, a Nike shoe print matching
the size, shape, and tread design of a shoe recovered from the Defendant’s Lincoln was lifted
from the motel room’s bathroom. FDLE crime analyst Emily Strickland, a footprint
impression expert, testified that two unique individual characteristics on the shoe matched
the latent prints from the Perez crime scene, indicating a high probability that the footprint
impression from the motel room was made by the Defendant’s shoe.

       Based on this proof, we conclude that the trial court did not abuse its discretion by
determining that the evidence of the Perez murder was clear and convincing. The evidence,
while circumstantial, was neither vague nor uncertain, see Fisher, 670 S.W.2d at 236, and it
provided a sufficient basis for the trial court to conclude, free from serious or substantial
doubt, see Kennedy, 152 S.W.3d at 18, that the Defendant murdered Perez.6




        6
          The State urges this Court to consider the testimony of Catherine Theisen, the mitochondrial DNA
specialist who determined that the DNA from pubic hairs found in the motel room was consistent with the
Defendant’s DNA and is of a type found in only a small percentage of the population. As noted by the Court
of Criminal Appeals, this evidence was presented for the first time at trial after the trial court’s Rule 404(b)
ruling and was not available to the trial court in assessing the sufficiency of the evidence of the Perez murder.
Jones, 2013 WL 1697611, at *43. We agree with the Court of Criminal Appeals that because the trial court
must base its Rule 404(b) findings upon other crime evidence heard outside of the presence of the jury, we
must refrain from considering additional evidence presented to the jury after the trial court’s Rule 404(b)
ruling. See State v. Roshell, No. M2007-02358-CCA-R3-CD, 2009 WL 890875, at *8 (Tenn. Crim. App.
Apr. 2, 2009) (limiting review of the evidence to “‘the evidence presented at the jury[-]out hearing’”
(alteration in original) (quoting Dubose, 953 S.W.2d at 653)), perm. app. denied (Tenn. Aug. 17, 2009).

                                                     -29-
                  3. Probative Value Versus Danger of Unfair Prejudice
        The third and final criterion for the trial court to consider during a Rule 404(b) hearing
is the probative value of the other crime evidence versus the danger of unfair prejudice that
accompanies the admission of such evidence. State v. Sexton, 368 S.W.3d 371, 405 (Tenn.
2012). This balancing test, under the plain language of the Rule, requires that evidence of
another crime be excluded if the danger of unfair prejudice “outweigh[s]” the probative
value. Tenn. R. Evid. 404(b)(4); cf. Tenn. R. Evid. 403 (allowing the admission of relevant
evidence so long as the danger of unfair prejudice does not “substantially outweigh[]” the
probative value of the evidence). “Th[is] restrictive approach of Rule 404(b) recognizes that
evidence of other crimes, wrongs[,] or acts carries a significant danger of unfair prejudice.”
DuBose, 953 S.W.2d at 654. The term “unfair prejudice” has been defined as “‘[a]n undue
tendency to suggest decision on an improper basis, commonly, though not necessarily, an
emotional one.’” Id. (alteration in original) (quoting State v. Banks, 564 S.W.2d 947, 951
(Tenn. 1978)). When the other crime is similar to the charged offense in the pending case,
the danger of unfair prejudice is especially prevalent, increasing the likelihood that “‘[the]
jury would convict on the perception of a past pattern of conduct, instead of on the facts of
the charged offense.’” State v. Mallard, 40 S.W.3d 473, 488 (Tenn. 2001) (quoting Theus
v. State, 845 S.W.2d 874, 881 (Tex. Crim. App. 1992)).

        The trial court must weigh these concerns of unfair prejudice against any probative
value of the proffered evidence, which will depend upon the actual need for the evidence in
light of the issues at trial and the other evidence available to the State. State v. Burchfield,
664 S.W.2d 284, 287 (Tenn. 1984) (quoting Shockley v. State, 585 S.W.2d 645, 653 (Tenn.
Crim. App. 1978)). Where, as here, the material issue at trial is the identity of the defendant,

       [t]he probative value of evidence of other crimes . . . depends upon the extent
       to which it raises an inference that the perpetrator of the prior offenses was the
       perpetrator of the offense in issue. Both the existence and the strength of an
       inference proceeds through an evaluation of the similarities between the prior
       offense and the charged crime. Thus, if the characteristics of both the prior
       offense and the charged offense are not in any way distinctive, but are similar
       to numerous other crimes committed by persons other than the defendant, no
       inference of identity can arise. An inference of identity from prior crimes can
       only arise when the elements of the prior offense and the charged offense,
       singly or together, are sufficiently distinctive to warrant an inference that the
       person who committed the prior offense[] also committed the offense on
       trial. . . . The probative value of evidence of other crimes on the issue of
       identity always depends upon the strength of the inference; when the inference
       of identity is weak, evidence of prior crimes should be excluded because under
       such circumstances the prejudicial effect of the evidence inevitably outweighs

                                              -30-
       the probative value of that evidence.

Bunch, 605 S.W.2d at 230 (fourth alteration in original) (emphasis added) (quoting United
States v. Powell, 587 F.2d 443, 448 (9th Cir. 1978)).

       Although the evidence of the other crime need not be identical to the evidence of the
charged offense, for other crime evidence to have probative value it must bear a sufficient
connection to the issue of identity so as to establish the defendant’s commission of “signature
crimes.” To meet this threshold, the similarities of the crimes must do more than simply
outweigh their differences—there must be a “‘highly distinctive common mark’” between
the crimes. Id. at 231 (quoting People v. Cavanaugh, 444 P.2d 110, 117 (Cal. 1968)); see
also State v. Moore, 6 S.W.3d 235, 240 (Tenn. 1999) (“Before multiple offenses may be said
to reveal a distinctive design, and therefore give rise to an inference of identity, the ‘modus
operandi employed must be so unique and distinctive as to be like a signature.’” (quoting
State v. Carter, 714 S.W.2d 241, 245 (Tenn. 1986))). The test, therefore, is not whether the
evidence demonstrates that the defendant committed both crimes, but whether the defendant
used a peculiar and distinctive method in committing the crimes. See Young v. State, 566
S.W.2d 895, 897 (Tenn. Crim. App. 1978). For example, in Harris v. State, this Court
recognized that

       a particular strat[a]gem or method [may have] such unusual particularities that
       reasonable men can consider that it would not likely be employed by different
       persons. Many men commit murder, but Jack the Ripper used his knife in a
       manner so peculiar that when his crimes were viewed together there could be
       little doubt that they were committed by the same man. Merely the fact,
       however, that a series of such crimes may be committed with a knife will not
       render them unusual enough to identify the perpetrator of one as the
       perpetrator of the others.

227 S.W.2d 8, 11 (Tenn. 1950) (citation omitted).

        Thus, the focus of our inquiry is whether the trial court erred when it determined that
the probative value of the evidence of the Perez murder outweighed the danger of unfair
prejudice because the details of the crime were sufficiently distinctive to raise an inference
that the Defendant committed the James murders. The State contends, and the trial court
found, that strangulation, binding of the victims, removal of the bindings, multiple incisions
to the throat, removal of clothes from some of the victims, placement of the bodies face
down, and cleaning of the scene after the crime, in combination, constitute a signature crime.
Because this finding would require us to ignore numerous differences between the murders
as well as the expert forensic testimony offered by the State, it is our assessment based upon

                                             -31-
our extensive review of prior decisions of this Court over a number of years, that the trial
court’s ruling was “based on a clearly erroneous assessment of the evidence.” See Adams,
405 S.W.3d at 660. We hold, therefore, that the trial court abused its discretion by admitting
the evidence of the Perez murder.

       Although the trial court acknowledged that there were some differences between the
Perez and James murders, it found that the similarities were distinct enough to establish that
the same person committed both crimes. The trial court pointed to the testimony of Dr.
O’Brian Cleary Smith as compelling such a conclusion:

              Dr. Smith, the former [M]edical [E]xaminer for Shelby County, testified
       that death as a result of knife wounds comprise[s] a minority of homicides and
       even fewer cases have both incised wounds to the neck and strangulation. Dr.
       Smith further stated that fewer still have incised wounds to the neck;
       strangulation; binding; and removal of binding prior to discovery of the body.
       He stated that taking these circumstances in connection with the fact that the
       victims were found lying face down; the crime scene appear[ed] to be “cleaned
       up”[;] and the victims were robbed by someone known to them, made the
       number of similar cases shrink even further.

       Unfortunately, however, the record demonstrates that the trial court misconstrued
portions of the evidence and neglected to accord appropriate weight to the significant
differences between the Perez murder and the James murders. As Judge McMullen observed
in her dissenting opinion:

       The charged offense, the [James] murders, occurred in a suburban home and
       involved two elderly victims. It was perpetrated by two individuals[—]an
       accomplice, Young, and the Defendant. The uncharged offense, the [Perez]
       murder, occurred at a motel located in a high crime area and involved a young
       male victim and an[] unidentified female. The [Perez] murder also involved
       evidence of a sexual assault, while the [James] murders did not.

               Specifically, the [Shelby County] [M]edical [E]xaminer testified that
       both of the victims in the instant case died as a result of multiple injuries. Mr.
       James suffered incised wounds to the neck, a stab wound to his neck, a broken
       hyoid bone, blunt force injuries to his chest, fractured parts of the front neck
       bone, and rib fractures. There was also evidence suggesting that (1) his
       wounds were inflicted after he was killed, (2) possible strangulation, and
       (3) ligatures or bindings on his extremities. Mr. James’s body was found “in
       repose on his right side.” In regard to Ms. James, the medical examiner

                                             -32-
       testified that she suffered multiple incised wounds to the neck, incised wounds
       to forearms, and possible strangulation. Asked whether the linear marks on
       her neck were caused by manual or ligature strangulation, the medical
       examiner said, “it may [have been] some hard object that was used around the
       neck, an object could be held against the neck with enough force to compress
       the neck and leave the marks on the neck.” However, other than a “cut,” he
       found no evidence of bondage, and her hyoid bone was intact. Although Ms.
       James’s body was found face down, the medical examiner opined that her body
       had been moved “in a position other than that in which she was found at the
       time that the neck wounds were produced.”

Jones, 2013 WL 1697611, at *57 (McMullen, J., dissenting).

       Moreover, the applicable standard focuses on the distinctiveness of the crimes, not a
mere assessment of similarities or an existence of rarity. State v. Roberson, 846 S.W.2d 278,
280 (Tenn. Crim. App. 1992) (“[M]ere similarity in the manner in which two crimes are
committed does not produce the relevance necessary for admission—uniqueness does.”
(emphasis added)). During the Rule 404(b) hearing, Dr. Smith unequivocally rejected all
indications that the methodology of the murders was unique or distinctive. Specifically, on
cross-examination, he testified as follows:

       Q: So, death by slashing the throat has become not unusual. Correct?

       A: That’s correct.

       Q: What about asphyxiation by possible strangulation. Is that unusual?

       A: No, sir. That’s probably a little bit more common than throat cutting.

       Q: What about the two of those combined. Is that unusual?

       A: No.

       Q: Bondage. . . . Is bondage unusual?

       A: No.

       ....

       Q: What about the three of those combined. Is that unusual?

                                            -33-
      A: No.

      ....

      Q: So [the bindings on Mr. James] had been removed?

      A: Yes, sir.

      Q: Is that unusual?

      A: No.

Defense counsel then questioned Dr. Smith about the multiple lacerations to the neck:

      Q: . . . Is there anything unusual at first glance to these—in the autopsy as far
      as the incised wounds, anything out of the ordinary that you would see in this
      sort of homicide?

      A: No.

      Q: Was there an efficiency to the incised wounds in any way that would
      indicate any sort of training or technique?

      A: No.

      ....

      Q: So four strokes across the same part of [Mr. James’] neck in layman’s
      terms?

      A: Yes, sir.

      Q: But that’s not unusual?

      A: No.

      Q: Okay. Can you explain?

      A: Well, in the absence of a surgical instrument, cutting or incising the skin
      with a knife is very inefficient. . . . And when the cutting edge is applied to the

                                             -34-
        skin surface and then dragged across, the skin is going to move and you lose
        the power of the knife so that it’s more common than not to see a—an incised
        wound may first open up the skin and then as the knife is reapplied in a slightly
        different area, it goes into the—cuts its way into the already open area from the
        first or prior incision, and then once it gains access to the deeper tissues, it cuts
        with more efficiency. . . . To find a single application of a knife in a throat
        cutting incident would be unusual.

Although Dr. Smith conceded that the number of murders involving incisions, bondage,
strangulation, bindings removed, and cleaning of the crime scene constituted a minority of
all of the murders in Shelby County, he explained that there was nothing unusual about the
methods employed—even in combination. Moreover, as Judge McMullen pointed out in her
dissent, not all of the victims were found lying face down, as the trial court mistakenly
observed.

        Our prior case law includes numerous decisions which, as in this instance, involved
offenses with similarities that did not rise to the level of a signature crime. For example, in
Harris, 227 S.W.2d at 9, the defendant was charged with rape, and the trial court admitted
evidence that he had committed another rape one week earlier. This Court noted multiple
similarities in the two offenses, including their temporal proximity, the fact that both crimes
were rapes committed by forcible coercion, and the use of a knife in both instances. Id. at
11. Nevertheless, because there were also significant differences—including the nature of
the sexual acts committed and the location of the crimes—the Court held that the “methods
pursued were not so peculiar as to” justify admission of the other crime evidence on the issue
of identity. Id. Similarly, in State v. Toliver, 117 S.W.3d 216, 227 (Tenn. 2003), the Court
analyzed whether separate incidents of aggravated child abuse shared a similar modus
operandi such that they qualified as signature crimes.7 Again, the Court observed numerous
similarities between the two crimes: both involved the same victim (the defendant’s step-
son), both involved the defendant striking the victim on the buttocks with a braided extension
cord, and both arose from the victim receiving poor grades. Id. at 229. Despite these
similarities, the Court highlighted the differences in the methods employed to commit the
crimes, which included the fact that in one instance the extension cord had been braided with
wire and wrapped with duct tape, whereas in the other instance the victim had been required
to lean over a barrel and the defendant had wrapped the extension cord around the victim’s
neck, jerking him around the room. Id. at 229-30. Because the method employed did not
“have ‘such unusual particularities that reasonable men can conclude that it would not likely


        7
          Although Toliver involved the question of whether the two cases should have been severed rather
than jointly tried, it employed the same standard in its signature crime analysis. Id. at 230 (citing Tenn. R.
Evid. 404(b)).

                                                    -35-
be employed by different persons,’” the Court concluded that “the method employed in
committing the offenses [did] not constitute a modus operandi so unique and distinctive as
to be comparable to a signature.” Id. at 229 (quoting State v. Shirley, 6 S.W.3d 243, 248
(Tenn. 1999)); see also State v. Bobo, 724 S.W.2d 760, 764 (Tenn. Crim. App. 1981)
(excluding evidence of a prior armed robbery because, although sharing many characteristics
with the armed robbery charged, there was “nothing unique about any of” the similarities,
which included the robber using a pistol, being unmasked, wearing a coat and a hat, and
targeting a Winn-Dixie grocery store); Young v. State, 566 S.W.2d 895, 899 (Tenn. Crim.
App. 1978) (“The test is not whether there was evidence that a defendant committed both
crimes, but whether there was a unique method used in committing the crimes. It is not
enough that the appellant was wearing the same clothing during the commission of the two
crimes, unless in some way, his clothing was a part of the modus operandi.”).

        In contrast, our cases allowing other crime evidence under a signature crime theory
demonstrate the type of unique modus operandi that is lacking in this instance. In Warren,
156 S.W.2d at 419, a robbery case, this Court affirmed the trial court’s admission of evidence
of another robbery with several striking similarities. In particular, the two robberies occurred
within a few nights of one another at the same place and time of night, and in each instance
the victims “were robbed by a man dressed in a black cap and overalls, with his face smeared
with dark grease or paint, carrying a pistol in one hand and a flash light in the other, who had
an impediment in his speech.” Id. at 417. In State v. Wooden, 658 S.W.2d 553, 557-58
(Tenn. Crim. App. 1983), abrogated on other grounds by State v. Dyle, 899 S.W.2d 607, 612
(Tenn. 1995), our Court of Criminal Appeals found the signature crime standard satisfied as
to two sex offenses with the following similarities: each victim was a young, white female
living alone in an apartment; the attacker covered the head of each victim or forced her to
turn around so that she could not see him; the attacker forced each victim to submit to
cunnilingus and then vaginal intercourse; and the attacker demanded that each victim rub his
nipples as he performed vaginal intercourse.8



        8
           Like Tennessee, other jurisdictions set a high bar for the admission of other crime evidence on a
signature crime theory. Compare, e.g., Knox v. State, 621 So. 2d 403, 405 (Ala. Crim. App. 1993) (finding
no signature modus operandi in two robberies despite the fact that the victims of both robberies were cab
drivers, both crimes occurred after the cab driver picked up the robber, and the robber in both instances
brandished a gun), and Diffee v. State, 894 S.W.2d 564, 568 (Ark. 1995) (finding no signature modus
operandi in a first degree murder and a prior uncharged incident despite the fact that both incidents involved
the use of an ice pick, both occurred in or near the defendant’s residence, and both victims were members
of the defendant’s family), with State v. Porambo, 544 A.2d 870, 874 (N.J. Super. Ct. App. Div. 1988)
(finding a signature modus operandi in two armed robberies because in both instances the robber gained entry
into a private residence by posing as public safety official and disguised himself using false facial hair,
including a “fake mustache[]” that “was distinctive in appearance”).

                                                    -36-
       As these authorities demonstrate, while there are similarities between the Perez
murder and the James murders, those similarities fail to establish a modus operandi that is
comparable to a signature. The trial court erred, therefore, by determining that the evidence
of the Perez murder was so distinctive that it raised an inference that the Defendant
committed the James murders.

         In light of our conclusion that the State failed to establish the Perez murder as a
signature crime that could be used to prove the Defendant’s identity in the James murders,
the admission of the evidence regarding the Perez murder was profoundly prejudicial. By
allowing the evidence of the Perez murder, a crime for which the Defendant had not been
charged, the trial court created an opportunity for the jury to infer that the Defendant
committed the uncharged murder and, therefore, must have committed the murders for which
he was on trial. See Dotson, 254 S.W.3d at 387 (“When the defendant’s prior bad acts are
similar to the crime for which the defendant is on trial, the risk of unfair prejudice is even
higher. As this Court has consistently cautioned, the jury should not ‘be tempted to convict
based upon a defendant’s propensity to commit crimes rather than . . . evidence relating to
the charged offense.’” (alteration in original) (quoting Spicer, 12 S.W.3d at 448)). Although
the trial court gave a limiting instruction to the jury, a substantial amount of evidence was
presented regarding the Perez murder. The presentation of the evidence lasted two days and
included inherently prejudicial testimony about a sexual encounter at the Perez crime scene,
which was absent from the James murders. In the absence of sufficiently distinctive
characteristics amounting to a signature crime, the danger of unfair prejudice created by the
detailed evidence of the Perez murder clearly outweighed any probative value.

                                      C. Harmless Error
        Because the evidentiary error here is neither structural nor constitutional, our harmless
error analysis is governed by Tennessee Rule of Appellate Procedure 36(b), which provides
that “[a] final judgment from which relief is available and otherwise appropriate shall not be
set aside unless, considering the whole record, error involving a substantial right more
probably than not affected the judgment or would result in prejudice to the judicial process.”
This standard “‘recognizes that . . . a person convicted of a crime as a result of an essentially
fair trial is not entitled to have his or her conviction reversed based on errors that, more
probably than not, did not affect the verdict or judgment.’” Sexton, 368 S.W.3d at 429
(quoting State v. Ferrell, 277 S.W.3d 372, 380 (Tenn. 2009)). Our harmless error analysis
“does not turn upon the existence of sufficient evidence to affirm a conviction or even a
belief that the jury’s verdict is correct. To the contrary, the crucial consideration is what
impact the error may reasonably be taken to have had on the jury’s decision-making.” State
v. Rodriguez, 254 S.W.3d 361, 372 (Tenn. 2008) (citations omitted).

       The evidence connecting the Defendant to the James murders consisted primarily of

                                              -37-
the testimony of Young, an accomplice to the murders. No other witness testified as to the
Defendant’s presence at the crime scene. No forensic evidence tied him to the James
murders. Therefore, the evidence of the James murders, although sufficient to support the
convictions, is not so overwhelming as to preclude the grant of a new trial. Moreover, as
stated previously, the improperly admitted evidence of the Perez murder was extensive.
Hardly any evidence in a murder trial could be more prejudicial than evidence that the
Defendant committed another murder. In consequence, we are constrained to hold that the
erroneous admission of the evidence surrounding the Perez murder more probably than not
affected the outcome of the trial. We must, therefore, reverse the convictions and remand
for a new trial.

                 D. Evidence of Perez Murder as Contextual Background
        In addition to allowing the evidence of the Perez murder as proof of the Defendant’s
identity, the trial court observed the “nearly inextricable investigative connection” between
the Perez murder and the James murders, indicating that “it may be necessary to admit at
least portions of proof, relating to the Perez murder, in order to create a complete picture for
the jury of the investigation conducted by the Bartlett authorities.” Because this issue is
likely to recur on remand, we will briefly address the use of contextual background evidence
that involves other crimes, wrongs, or acts.

       As discussed, Tennessee Rule of Evidence 404(b) prohibits the use of other crime
evidence “to prove the character of a person in order to show action in conformity with the
character trait,” although such evidence “may . . . be admissible for other purposes.” This
Court has held that one of the “other purposes” for which evidence of another crime may be
admitted is to provide “contextual background.” State v. Gilliland, 22 S.W.3d 266, 272
(Tenn. 2000). Not all background evidence, however, will be admissible, and trial courts
must strike a careful balance between evidence that will provide context for the jury and
evidence that will only tend to show a defendant’s propensity to commit crimes. Id. Thus,
within the framework of Rule 404(b), the proper analysis is as follows:

       [W]hen the [S]tate seeks to offer evidence of other crimes, wrongs, or acts that
       is relevant only to provide a contextual background for the case, the [S]tate
       must establish, and the trial court must find, that (1) the absence of the
       evidence would create a chronological or conceptual void in the [S]tate’s
       presentation of its case; (2) the void created by the absence of the evidence
       would likely result in significant jury confusion as to the material issues or
       evidence in the case; and (3) the probative value of the evidence is not
       outweighed by the danger of unfair prejudice.

Id.

                                             -38-
        We acknowledge that there exists significant overlap between the investigations into
the Perez and James murders, including crucial breakthroughs in the James murders during
the investigation into the Perez murder. The various law enforcement agencies in Florida and
Tennessee worked closely to establish the time lines and certain details of both cases. For
that reason, as the trial court observed, it may become necessary to admit at least some
portions of the evidence relating to the investigation of the Perez murder in order to alleviate
potential confusion caused by a chronological or conceptual void in the explanation of the
James murders. We caution the trial court, however, that if such evidence is offered by the
State to provide contextual background, the evidence must be carefully scrutinized to ensure
that the admissibility requirements of Rule 404(b) and Gilliland are met. The use of limiting
instructions to the jury would also be appropriate in this situation. See id. at 273 (“[M]ultiple
limiting instructions to the jury from the trial court worked to alleviate the prejudicial effect
of the [contextual background] evidence, and we also presume that juries follow the
instructions given to them by the trial court.”). It is the responsibility of the Defendant,
however, to request the appropriate limiting instructions. See Little, 402 S.W.3d at 210.

                          E. Mandatory Death Sentence Review
       By statute, appellate review of a sentence of death has “priority over all other cases”
and requires determinations as to whether:

       (A) The sentence of death was imposed in any arbitrary fashion;

       (B) The evidence supports the jury’s finding of statutory aggravating
       circumstance or circumstances;

       (C) The evidence supports the jury’s finding that the aggravating circumstance
       or circumstances outweigh any mitigating circumstances; and

       (D) The sentence of death is excessive or disproportionate to the penalty
       imposed in similar cases, considering both the nature of the crime and the
       defendant.

Tenn. Code Ann. § 39-13-206(c)(1).

       As indicated, the erroneous admission of the evidence relating to the Perez murder
requires a new trial in this case. Accordingly, we will not evaluate the arbitrariness of the
Defendant’s death sentence, the sufficiency of the evidence supporting the aggravating
circumstances, whether the aggravating circumstances outweighed the mitigating
circumstances, or whether the Defendant’s sentence of death was disproportionate to the



                                              -39-
same penalty imposed in other cases. Cf. Sexton, 368 S.W.3d at 428-29.9 Our ruling does
not preclude the State from seeking the death penalty on remand. See Smith v. State, 357
S.W.3d 322, 328 (Tenn. 2011).

                                    III. Conclusion
       The trial court committed prejudicial error by admitting the evidence of the Perez
murder. The convictions are reversed, and the case is remanded to the trial court for
additional proceedings consistent with this opinion. Costs of this appeal are taxed to the
State of Tennessee.




                                                              _____________________________
                                                              GARY R. WADE, CHIEF JUSTICE




        9
         Our reversal of the Defendant’s convictions also pretermits all other issues raised on appeal but
not addressed in this opinion.

                                                  -40-
