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

CAMILLE R. MCMULLEN, 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-CCAR3-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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