        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  August 2, 2011 Session

                STATE OF TENNESSEE v. HENRY LEE JONES

              Direct Appeal from the Criminal Court for Shelby County
                      No. 03-06997   John P. Colton, Jr., Judge


                 No. W2009-01655-CCA-R3-DD - Filed April 18, 2013


C AMILLE R. M CM ULLEN, J., concurring in part and dissenting in part.

       I respectfully dissent from the portion of the majority opinion in this case concluding
that the trial court properly admitted the murder of Carlos Perez (the Florida murder)
pursuant to Rule 404(b) of the Tennessee Rules of Evidence. In my view, the State 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. Based on the following authority and analysis,
I would have concluded that the admission of the Florida murder was unfairly prejudicial and
reversed the judgment of conviction and remanded for a new trial.

        “A trial court’s decision regarding the admission of Rule 404(b) evidence will be
reviewed under an abuse of discretion standard; however, ‘the decision of the trial court
should be afforded no deference unless there has been substantial compliance with the
procedural requirements of the Rule.’” State v. Marcos Enrique Collazo, Sr., No. M2009-
02319-CCA-R3-CD, 2011 WL 4529643, at *14 (Tenn. Crim. App. Sept. 29, 2011), perm.
app. denied (Tenn. Feb. 16, 2012) (quoting State v. DuBose, 953 S.W.2d 649, 652 (Tenn.
1997)). Because the trial court held the requisite hearings, considering the necessary factors,
it substantially complied with the procedures of Rule 404(b), and its decision is reviewed for
an abuse of discretion. “An abuse of discretion only occurs if the trial court ‘applied an
incorrect legal standard, or reached a decision which is against logic or reasoning that caused
an injustice to the party complaining.’” State v. Jerry Kirkpatrick, No. E2011-01091-CCA-
R3-CD, 2013 WL 105896, at *8 (Tenn. Crim. App. Jan. 6, 2013) (quoting State v. Shirley,
6 S.W.3d 243, 247 (Tenn. 1999)).

       It has long been settled that “[o]nly in an exceptional case will another crime, wrong,
or bad act be relevant to an issue other than the accused’s character.” State v. Shropshire,
45 S.W.3d 64, 75 (Tenn. Crim. App. 2000). “Such exceptional cases include identity, intent,
motive, opportunity, or rebuttal of mistake or accident.” Id. “When evidence that the
defendant committed another crime is offered to prove his identity as the perpetrator of the
crime on trial, the modus operandi of the other crime and of the crime on trial must be
substantially identical and must be so unique that proof that the defendant committed the
other offense fairly tends to establish that he also committed the offense with which he is
charged.” Bunch v. State, 605 S.W.2d 227, 230 (Tenn. 1980) (emphasis added). As
explained in Bunch,

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

Id. at 230 (quoting United States v. Powell, 587 F.2d 443, 448 (9th Cir. 1978)). “To be
relevant and, therefore, admissible, it is not necessary that the other crime be identical in
every detail to the offense on trial; it is sufficient if evidence of the other crime supports the
inference that the perpetrator of it, shown to be the defendant, is the same person who
committed the offense on trial.” Id. at 231 (affirming admission of evidence to prove
identity). However, “[o]nly when the method used to commit the crimes is so unique as to
be like a signature can the inference of identity properly arise.” State v. Shirley, 6 S.W.3d
243, 248 (Tenn. 1999). “To determine whether certain crimes are substantially identical and
permit an inference of identity, ‘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


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crimes.’” State v. Derrick Sloan Taylor, No. M2010-00571-CCA-R3-CD, 2011 WL
2418911, at *23 (Tenn. Crim. App. June 10, 2011) (quoting Young v. State, 566 S.W.2d 895,
898 (Tenn. Crim. App. 1978)), perm. app. denied (Tenn. Sept. 21, 2011); accord Shirley, 6
S.W.3d at 250.

       “[B]efore evidence of another crime may be admitted to identify the accused as the
perpetrator of the crime charged, there must be some similarity and uniqueness of the plan
or method common to the two (2) offenses.” State v. Bobo, 724 S.W.2d 760, 764 (Tenn.
Crim. App. 1981). Significantly,

       [T]he proof depended on to show that the two crimes were committed by the
       same person must establish some peculiarity of plan or method common to the
       two offenses, otherwise evidence showing the defendant guilty of the collateral
       crime could do no more than indicate an evil propensity. Such propensity is not
       considered relevant to identify and the probable prejudicial effect of such
       evidence lies at the root of the rule excluding it.

Id. at 764 (quoting Harris v. State, 227 S.W.2d 8, 10-11 (Tenn. 1950)). The Tennessee
Supreme Court best explained this exception and stated, “[i]t may be . . . that a particular
stratagem or method has 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.” Harris,
227 S.W.2d at 11 (citing Wrather v. State, 169 S.W.2d 854 (Tenn. 1943)).

        In this case, the State does not specifically point to anything unique or distinctive
about murders in order to establish the Defendant’s identity. Instead, the State insists that
the Defendant’s identity was established based on his modus operandi, which included the
following similarities: the victims were bound, strangled, suffered multiple incised wounds
to the throat, had bindings removed from their bodies, two of their bodies were left face
down, items of value were taken, and the crime scenes were wiped cleaned.

        As an initial matter, the record in this case shows the following material differences
in these murders. The charged offense, the Tennessee 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 Florida murder, occurred at a motel
located in a high crime area and involved a young male victim and another unidentified
female. The Florida murder also involved evidence of a sexual assault, while the Tennessee

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murders did not.

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

       The medical examiner was asked directly whether “throat cutting” was an unusual
method of homicide, and he replied, “No.” In addition, the medical examiner noted that the
Tennessee crime scene was unusual because it was a double homicide, the victims were
found in different areas of the home, and the home was “very neat and well-kept.” He
further agreed that while the “victimology” in this case was “rare,” throat cutting, bondage,
asphyxiation by possible strangulation, or any combination thereof had become a common
method of homicide. He stated that multiple incisions as in the instant case were not
uncommon because they are committed with a non-surgical instrument. He described such
killings as “inefficient” because multiple incisions with the cutting edge of the instrument
was necessary to penetrate the skin and ultimately gain access to deeper tissue within the
body.

       On re-direct examination, the medical examiner agreed that “knife wounds . . . [were]
a minority of the homicides in Shelby County” and that there were fewer cases involving
victims who were killed with incisions, bound, strangled, and had bindings removed. He had
no data on the frequency of bodies being left face up or face down. He also said it is
“becoming even increasingly more frequent” for the perpetrator to clean up the crime scene.

       The victim in the Florida murder was found in a motel “laying [sic] across the bed
with his head pointing south. He was covered. His body was covered with a bed comforter
and there was also a pillow over his head area.” Florida law enforcement had conducted
various tests on the evidence collected from the crime scene, and “none of the specimens

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came back matching [the Defendant][.]” To the contrary, a stain on the comforter or mattress
top matched another individual who was eliminated as a suspect, and the DNA from cigarette
butts matched the victim and an unknown female. Additionally, female DNA was recovered
from the victim’s body.

        The Florida medical examiner testified that there were ligature marks on the victim’s
neck, wrists, and ankles and residue from tape on both wrists. There were also seven to eight
cuts to the victim’s neck, with a one-to-two-inch deep “gap” “almost seven to twelve inches
in length.” The medical examiner said “the very remarkable thing is a very deep incised
wound through the neck.” He also found “fresh abrasions about quarter inch size . . . on the
walls of the anal aperture,” and determined the cause of death was “ligature strangulation and
incised wounds of neck.”

        On cross-examination, the medical examiner said the victim’s body was found nude
and face down. He described the ligature marks, or “furrows,” on the neck, ankles, and
wrists as “not very deep,” and “regular and then homogenous.” He explained the “width or
the thickness or the band-like configuration” was regular and “[a]pproximately . . . a quarter
inch.” He also found fifteen to twenty milliliters of a grayish-mucoid substance inside the
anal canal of the victim. He discussed a “deep incision to the neck,” noted the left side of
the neck showed “clear the strangulation or abrasion of the strangulation,” and found what
was consistent with a “bite mark” on the victim’s back.

        Interestingly, the Florida medical examiner opined that ligature strangulation does not
result in breaking the hyoid bone; however, manual strangulation usually does. He testified
that the victim’s “hyoid bone and larynx . . . [were] grossly intact.” He explained “in the
larynx, there are the horns, that small projection, usually with the manual strangulation, they
are fractured, so those were not there. . . . But there is obvious cut between the thyroid
cartilage and the cricoid cartilage where the circumference is about three-fourth of its entire
circumference.”

         In concluding that the similarities of the murders were “unique enough to establish
a signature modus operandi,” the trial court relied heavily upon the testimony of the
Tennessee medical examiner. Specifically, the trial court noted that “death as a result of
knife wounds would comprise a minority of homicides and even fewer cases have both
incised wounds to the neck and strangulation.” The trial court appeared to focus on how
frequent knife crimes were committed in Shelby County rather than the unique or distinct
nature of the Tennessee and Florida murders. As one court has commented, “[r]arity, by
itself, is not to be equated with distinctiveness. If there were an abnormal year with only two
murders by gunshot, . . . could we conclude that a gunshot is a signature for that year and
therefore conclude that the same person did both [crimes]?” State v. Johnson, 832 P.2d 443,
449 n.11 (Or. 1992). Certainly, the answer to that question would be no.

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        While these tragic killings indeed bear some similarities, the record fails to show how
they are unique or distinct from any other killing. Moreover, based on the above proof,
nothing about how these crimes were committed demonstrate that they were perpetrated by
the same person. In my view, the methodology of these murders was far too common to rise
to the level of a signature crime. The inference of identity relied upon by the State simply
did not exist; therefore, the Florida murder should have been excluded under our rules.
Accordingly, I would conclude that the trial court abused its discretion in admitting the
Florida murder. Because I am unable to conclude that the erroneous admission of the Florida
murder did not effect the outcome of the verdict, I would reverse the judgment of conviction
and remand for a new trial.




                                                   ______________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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