State of Tennessee v. Wesley Jones ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 5, 2012
STATE OF TENNESSEE v. WESLEY JONES
Appeal from the Criminal Court for Shelby County
No. 10-06236 James C. Beasley, Jr., Judge
No. W2012-00301-CCA-R3-CD - Filed February 27, 2013
The Defendant-Appellant, Wesley Jones, appeals his conviction for first degree premeditated
murder. On appeal, he argues that (1) the trial court abused its discretion in allowing a
witness to be recalled to testify, and (2) the evidence is insufficient to support his conviction.
Upon review, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J EFFREY S. B IVINS, JJ., joined.
Mark Mesler, Memphis, Tennessee, for the Defendant-Appellant, Wesley Jones.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Pamela Fleming and Reginald
Henderson, Assistant District Attorneys General, for the Appellee, State of Tennessee.
OPINION
Trial. Stephanie Kimball testified that she was the daughter of the victim, Glenda
Kimball. She said that on Saturday, March 13, 2010, Sergeant Lundy informed her that her
mother’s body had been found. Kimball said that the last time she had seen or spoken to her
mother was “like a day or so before that[.]”
On cross-examination, Kimball stated that she also talked to Sergeant Lundy on
Friday, March 12, 2010, because she and her son had been unable to locate her mother that
day. During the March 12, 2010 conversation, Sergeant Lundy told her that he could not
give her any information about the body they had found near Lucille Price Park because they
had not yet identified the body. When asked if she told Sergeant Lundy that she had last seen
her mother at 7:00 a.m. on Friday, March 12, 2010, she responded, “No sir. I said it was the
day before.”
Erroll Davis testified that on the afternoon of March 12, 2010, he discovered the
victim’s body while picking up cans in a wooded area near Lucille Price Park in Memphis,
Tennessee. He stated that he immediately notified the sanitation department of the body and
then walked to a nearby fire station to show them the location of the victim’s body. Davis
said he remained at the crime scene before accompanying the police to the homicide division,
where he told the police that he did not know how the victim’s body got to the area near the
park and did not know who put the body there. Davis admitted that he had a prior felony
conviction for burglary of a motor vehicle and two misdemeanor convictions for theft.
On cross-examination, Davis said he signed a form consenting to give a saliva sample
containing his DNA. He also said that the police did not ask him to remove his shirt for the
purpose of examining his back during the interview.
Udell Shelton, an officer with the Memphis Police Department, testified that he
responded to a call that a body had been found near Lucille Price Park on March 12, 2010.
When he arrived at the scene at 7:15 p.m., he observed the victim’s body and protected the
crime scene until other officers arrived. Officer Shelton stated that there were no clothes on
the victim’s body and that there was no other evidence near the crime scene.
Autra Fitch testified that he had seen the victim, an acquaintance, around 7:15 to 7:30
p.m. on Thursday, March 11, 2010. Approximately ten minutes later, Fitch saw the victim
and Jones, whom he had known for several years, leave a store at the corner of Smith Avenue
and Bellevue Boulevard. When Fitch walked down Smith Avenue a short distance, he saw
the victim and Jones again. Once he found a ride home, Fitch saw the victim and Jones on
Capitol Street walking towards Lucille Price Park. A short time later, he saw them near a
bench in the park. Fitch said that this was the last time he saw the victim. On March 13,
2010, Fitch gave a statement to police about his observations and identified a picture of the
victim. He also identified Jones in a photo spread. Fitch admitted that he had a prior
conviction for conspiracy to commit money laundering. On cross-examination, he said that
the police never asked him to submit a DNA sample.
Dr. Karen Chancellor, the Chief Medical Examiner for Shelby County, testified that
she performed the autopsy on the victim. She stated that the victim’s body was unclothed
and was in the early stages of decomposition when it arrived at her office. During the
autopsy, Dr. Chancellor noticed that the inner lids of the victim’s eyes and inner portion of
her lips had pinpoint hemorrhages indicating that the victim had died from asphyxiation. The
victim also had superficial abrasions and bruises on her neck that were indicative of manual
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strangulation. After considering the pinpoint hemorrhages and the injuries to the victim’s
neck, Dr. Chancellor concluded that the victim’s cause of death was manual strangulation.
She explained how an individual dies from manual strangulation:
[W]hen a person is manually strangled generally the assailant has his or her
hands around the neck . . . and the blood vessels that supply oxygen to the
brain are compressed. . . .
The thing is usually there’s some sort of struggle so that pressure is
intermittent. If the pressure is held constant for about ten seconds the person
will pass out. They will become unconscious and will not move, [and] if the
pressure is released after that point before irreversible brain damage has
occurred[,] they will wake up and all will be normal.
So in order to manually strangle someone the compression has to be
held for somewhere between two and three minutes in a constant way. During
that time a person will already become unconscious but the two to three
minutes lack of oxygen with compression around the neck causes irreversible
brain injury and the person will not wake up or cannot be revived.
Dr. Chancellor took swabs from the vaginal, oral, and anal orifices and collected a scalp hair
sample and a pubic hair sample, which were included in the sexual assault evidence kit. In
addition, she took fingernail clippings from the victim’s hands.
Dr. Chancellor opined that the time between the victim’s death and the time that the
body was discovered was approximately twenty-four hours. She also noted that the victim’s
body had some superficial abrasions on the back and buttocks and bruises to the left and right
sides of the chest. In addition, she observed some areas of bleeding from warts inside the
vaginal cavity and some irritation to the vaginal area, which was consistent with recent
sexual intercourse. She noted that there was some material, later identified as skin cells,
found underneath the victim’s fingernails on her right hand. In addition, the victim’s tongue
was bruised because she had bitten it. She stated that the abrasions on the victim’s neck were
consistent with scratch marks from the perpetrator’s fingernails.
Kevin Lundy, a sergeant with the Memphis Police Department, testified that he was
the case coordinator for this case. He arrived at the crime scene between 7:15 and 7:45 p.m.
on March 12, 2010, and was able to observe the victim’s body before it was moved. Sergeant
Lundy said that he and other officers searched the entire field near the body and were unable
to locate any clothing items, footprints, or drag marks. After talking with Autra Fitch about
seeing the victim and Jones together just prior to the victim’s death, Sergeant Lundy
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determined that he needed to talk to Jones because Jones “would have been the last person
to be seen [with] the victim” prior to her death. He said that Fitch told him Jones was
wearing a waist-length, dark jacket and dark pants or jeans at the time he saw Jones with the
victim. He subsequently interviewed Jones and obtained samples of Jones’s DNA.
Sergeant Lundy said that during the interview, Jones admitted that he spent some time
with the victim on Thursday, March 11, 2010, the day before the victim’s body was found.
Jones said that he and the victim were at a store at the corner of Smith Avenue and Bellevue
Boulevard and that he was smoking some marijuana. The victim asked him for a cigarette,
and he told her he needed the cigarette to light his marijuana joint. Jones stated that when
the owner of the store came outside and informed them that they could not be there, Jones
and the victim left the store separately. Sergeant Lundy noted that during the interview,
Jones was wearing a dark jacket and jeans, which was consistent with Fitch’s description of
Jones’s clothing prior to the victim’s murder. Sergeant Lundy also noticed a scratch on
Jones’s arm, which Jones claimed he had received during a “scuffle” at a club when someone
tried to steal his money. When Sergeant Lundy asked Jones what other injuries he suffered
during the “scuffle,” Jones pulled his shirt up and showed him some other scratches on his
back. Photographs of these scratches were entered into evidence. During the interview,
Jones denied having any contact with victim and denied having sexual intercourse with her.
Sergeant Lundy said that Fitch later identified Jones in a photo spread as the individual who
was with the victim shortly before her death.
On cross-examination, Sergeant Lundy stated that he had several conversations with
Stephanie Kimball, the victim’s daughter, around the time that the victim’s body was found
He said that when he talked to Kimball the night of March 12, 2010, he did not know the
identity of the body found in Lucille Price Park. Sergeant Lundy said he thought Kimball
had told him that the last time she had seen her mother was at 7:00 a.m. on Friday, March 12,
2010.
Sergeant Lundy said that on Saturday, March 13, 2010, Lawrence Goodwin asked to
talk to him because Goodwin had heard his name mentioned in conjunction with the victim’s
death. He talked to Goodwin before he interviewed Jones. Sergeant Lundy admitted that he
did not take a statement from Goodwin and did not ask him for a sample of his DNA. He
also admitted that he did not look at Davis’s, Fitch’s, or Jones’s fingernails after learning that
the victim had scratch marks on her neck. Sergeant Lundy acknowledged that he did not
have Fitch remove his shirt to determine whether he had scratch marks on his body. He also
acknowledged that he did not ask Jones to give him the jacket he was wearing during the
interview, even though the jacket matched Fitch’s description of the one Jones was wearing
shortly before the victim’s death. Sergeant Lundy admitted that Jones consented to giving
him a DNA sample and called him the day after his interview to give him his new cell phone
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number. He said he did not send Davis’s DNA for testing because everything Davis had told
the police was consistent with the proof they had uncovered during their investigation.
Donna Nelson, a special agent forensic scientist with the Tennessee Bureau of
Investigation, testified that she performed DNA testing on the samples taken from the
victim’s body. She determined that none of the evidence collected in the sexual assault
evidence kit had the presence of semen. When she tested the fingernail scrapings from the
victim, she obtained a partial DNA profile that showed the presence of male DNA on the
victim. At that point, Agent Nelson recommended that Sergeant Lundy send the fingernail
scrapings to Orchid Cellmark, a private lab with more sensitive instrumentation for DNA
testing. Agent Nelson said that Jones’s DNA was consistent with the DNA found underneath
the fingernails of the victim’s right hand.
Huma Nasir, a forensic DNA analyst at Orchid Cellmark, testified that she performed
DNA analysis testing on the fingernail clippings from the victim. Ms. Nasir determined that
the predominate DNA profile belonged to Jones and the minor DNA profile belonged to the
victim. She also stated that the large amount of DNA found underneath the victim’s
fingernails on her right hand could have been there for only a short amount of time prior to
its collection because it would have been removed when the victim washed her hands. She
also stated that this DNA, which was in the form of skin cells, was consistent with the scratch
marks on Jones’s body.
Stephanie Kimball was recalled by the State for the limited purpose of clarifying when
she last saw her mother prior to the discovery of her mother’s body. Kimball testified that
her mother’s body was found on Friday, March 12, 2010. When asked when was the last
time she had seen her mother, she responded: “It was that Wednesday or that Thursday. I’m
sure it was that Thursday because I seen [sic] her on the side of the store. That Friday
morning she didn’t come home so me and my son started looking for her.”
ANALYSIS
I. Recall of Witness. Jones argues that the trial court abused its discretion in
allowing the State to recall Stephanie Kimball, the victim’s daughter, for the purpose of
clarifying when she last saw her mother. He asserts that Tennessee Rule of Evidence 615
“should be used to prevent witnesses who have already testified from listening to other proof
at trial and then being recalled to ‘clarify’ that testimony.” He claims that the State violated
“the spirit” of Rule 615 because Kimball’s testimony on recall that she last saw her mother
on Thursday, March 11, 2010, negated Sergeant Lundy’s testimony that Kimball told him
that she had last seen her mother at 7:00 a.m. on Friday, March 12, 2010. He claims that
Sergeant Lundy’s testimony on this point was particularly significant because it meant that
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he was not the last person to see the victim alive. Jones further argues that the trial court, by
allowing the State to recall Kimball, “infringed on the province of the jury by deciding for
them which witness was to be believed on this crucial point [of] testimony.”
The State responds that Jones has waived this issue because he failed to include a
transcript from the motion for new trial hearing in the appellate record. In addition, the State
asserts that the trial court did not abuse its discretion in allowing it to recall Kimball. Finally,
the State contends that even if the trial court abused its discretion in allowing Kimball to be
recalled, this error is harmless in light of the overwhelming evidence of Jones’s guilt. We
conclude that the trial court did not abuse its discretion in allowing the State to recall
Kimball.
Kimball initially testified at trial that she spoke to Sergeant Lundy on Saturday, March
13, 2010, and that the last time she had seen or spoken to her mother was “like a day or so
before that[.]” On cross-examination, when asked if she told Sergeant Lundy that she had
last seen her mother at 7:00 a.m. on Friday, March 12, 2010, she responded, “No sir. I said
it was the day before.” Sergeant Lundy testified that he thought Kimball had told him that
the last time she had seen her mother was at 7:00 a.m. on Friday, March 12, 2010.
The trial transcript shows that the rule of sequestration was requested and that the
witnesses were placed under the rule and excluded from the courtroom. Stephanie Kimball
testified as the State’s first witness and was excused. The record indicates that Kimball
remained in the courtroom following her testimony and stayed for the duration of the trial.
The State, at the close of its case-in-chief, requested that it be allowed to recall Kimball to
clarify the day when she last saw her mother. The State asserted that it needed to clarify this
fact because Sergeant Lundy had testified that he thought Kimball had told him the last time
she saw her mother was at 7:00 a.m. on Friday, March 12, 2010, and because Kimball had
informed the State that this was not what she told Sergeant Lundy. The State asserted that
if Kimball were allowed to be recalled, she would testify that she last saw her mother on
Wednesday or Thursday morning and that she and her son were actively looking for her
mother on Friday morning.
The defense objected, arguing that the State had already had an opportunity to clarify
Kimball’s testimony on this point. The court noted that Kimball had already testified that she
told Sergeant Lundy she had last seen her mother the day before March 12, 2010. Then the
defense argued that recalling Kimball would be improper because Kimball had been listening
to the testimony of all of the other witnesses at trial. The State responded that it should be
allowed to recall Kimball because she was not changing her testimony. The court stated that
although it would not normally allow the State to recall a witness, it would permit the State
to recall Kimball for the limited purpose of clarifying when she last saw her mother prior to
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the discovery of her mother’s body. Before allowing the State to recall Kimball, the trial
court gave the following instruction to the jury: “Alright, ladies and gentlemen, I have
agreed to allow Ms. Stephanie Kimball to resume the stand for the limited purpose of
clarifying a particular issue, so she’s going to be recalled at this point.”
On recall, Kimball testified that her mother’s body was found on Friday, March 12,
2010. When asked about the last time she had seen her mother, she responded: “It was that
Wednesday or that Thursday. I’m sure it was that Thursday because I seen her on the side
of the store. That Friday morning she didn’t come home so me and my son started looking
for her.” The defense declined to cross-examine Kimball after she was recalled to testify.
Tennessee Rule of Evidence 615 provides the current rule regarding sequestration of
witnesses:
At the request of a party the court shall order witnesses, including rebuttal
witnesses, excluded at trial or other adjudicatory hearing. In the court’s
discretion, the requested sequestration may be effective before voir dire, but
in any event shall be effective before opening statements. The court shall
order all persons not to disclose by any means to excluded witnesses any live
trial testimony or exhibits created in the courtroom by a witness. This rule
does not authorize exclusion of (1) a party who is a natural person, or (2) a
person designated by counsel for a party that is not a natural person, or (3) a
person whose presence is shown by a party to be essential to the presentation
of the party’s cause. This rule does not forbid testimony of a witness called at
the rebuttal stage of a hearing if, in the court’s discretion, counsel is genuinely
surprised and demonstrates a need for rebuttal testimony from an
unsequestered witness.
The purpose of Rule 615 is to ensure that a witness’s testimony is not improperly influenced
by the other proof presented at trial. However, the Advisory Commission Comment to Rule
615 states: “If a witness inadvertently and unintentionally hears some trial testimony, the
sense of the rule would permit the judge to allow the witness to testify if fair under the
circumstances.” Tenn. R. Evid. 615, Advisory Comm’n Comment.
A trial court has “wide discretion in determining whether to impose the sanction of
excluding the evidence of the witness suspected of having violated the rule.” State v.
Richard Anthony, 836 S.W.2d 600, 605 (Tenn. Crim. App. 1992) (citing State v. Moffett,
729 S.W.2d 679, 681 (Tenn. Crim. App. 1986)); see State v. Wicks, 729 S.W.2d 283, 286
(Tenn. Crim. App. 1987) (“The trial judge has broad discretion in the decision regarding the
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exclusion of witnesses in accordance with the rule, and unless this discretion is abused his
action will not be reversed.”).
The State argues that this issue is waived because Jones failed to include in the
appellate record the transcript from the motion for new trial hearing. Although such an
omission may, in some cases, result in a waiver of an issue on appeal, we conclude that the
record before us is sufficient to review Jones’s claim. We also conclude that Jones was not
prejudiced by the State’s recall of Stephanie Kimball because her testimony on recall was
substantially the same as her initial testimony. As we will explain in the next section, the
evidence against Jones was overwhelming. Jones’s DNA, in the form of skin cells, was
found underneath the fingernails of the victim’s right hand, Jones had scratches on his body,
Fitch saw Jones with the victim the night of March 11, 2010, and the victim’s body was
found approximately twenty-four hours later in the same area. We conclude that Jones has
failed to demonstrate that a violation of the rule of sequestration occurred or that the trial
court abused its discretion in allowing the State to recall Kimball.
II. Sufficiency of the Evidence. Jones also argues that the evidence is insufficient
to sustain his conviction for first degree premeditated murder. He contends that there was
no proof of premeditation because the evidence suggested that the victim’s death resulted
from a physical altercation rather than a premeditated attack. He asserts that there was no
evidence that he had sexual intercourse with the victim. He also asserts that his DNA under
the victim’s fingernails and the scratches on the right side of his back were more consistent
with a physical altercation than an attack. Finally, he contends that the jury failed to consider
the issue of premeditation before rendering its verdict after thirty-three minutes.
The State responds that Jones has waived this issue for failing to make appropriate
references to the record and that the evidence is sufficient to support Jones’s conviction. We
agree that the evidence is sufficient to sustain the conviction for first degree premeditated
murder.
The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate Procedure states,
“Findings of guilt in criminal actions whether by the trial court or jury shall be set aside if
the evidence is insufficient to support a finding by the trier of fact of guilt beyond a
reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where there is
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direct evidence, circumstantial evidence, or a combination of the two. State v. Matthews,
805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d 329, 331
(Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The trier of fact must
evaluate the credibility of the witnesses, determine the weight given to witnesses’ testimony,
and reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
When reviewing issues regarding the sufficiency of the evidence, this court shall not
“reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-79 (Tenn.
1997). This court has often stated that “[a] guilty verdict by the jury, approved by the trial
court, accredits the testimony of the witnesses for the State and resolves all conflicts in favor
of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A guilty verdict also “removes the
presumption of innocence and replaces it with a presumption of guilt, and the defendant has
the burden of illustrating why the evidence is insufficient to support the jury’s verdict.” Id.
(citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).
“In the absence of direct evidence, a criminal offense may be established exclusively
by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-
58 (Tenn. 1958)). However, “[t]he jury decides the weight to be given to circumstantial
evidence, and ‘[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 jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable,
313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier
of fact in cases involving circumstantial evidence. State v. Sisk, 343 S.W.3d 60, 65 (Tenn.
2011) (citing State v. Lewter, 313 S.W.3d 745, 748 (Tenn. 2010)). We note that the standard
of review “‘is the same whether the conviction is based upon direct or circumstantial
evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (quoting State v. Sutton, 166 S.W.3d 686,
689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000). The court in
Dorantes specifically adopted the standard for circumstantial evidence established by the
United States Supreme Court in Holland:
“Circumstantial evidence . . . is intrinsically no different from
testimonial evidence. Admittedly, circumstantial evidence may in some cases
point to a wholly incorrect result. Yet this is equally true of testimonial
evidence. In both instances, a jury is asked to weigh the chances that the
evidence correctly points to guilt against the possibility of inaccuracy or
ambiguous inference. In both, the jury must use its experience with people and
events in weighing the probabilities. If the jury is convinced beyond a
reasonable doubt, we can require no more.”
Dorantes, 331 S.W.3d at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).
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“The identity of the perpetrator is an essential element of any crime.” State v. Robert
Wayne Pryor, No. M2003-02981-CCA-R3-CD, 2005 WL 901140, at *3 (Tenn. Crim. App.,
at Nashville, Apr. 19, 2005) (citing State v. Thompson, 519 S.W.2d 789, 793 (Tenn. 1975)).
The State has the burden of proving “the identity of the defendant as the perpetrator beyond
a reasonable doubt.” Id. (citing State v. Sneed, 908 S.W.2d 408, 410 (Tenn. Crim. App.
1995)). The State may prove the perpetrator’s identity using only circumstantial evidence.
Rice, 184 S.W.3d at 662 (citing State v. Reid, 91 S.W.3d 247, 277 (Tenn. 2002)). The
identification of the defendant as the perpetrator is a question of fact for the jury after
considering all the relevant proof. State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App.
1993) (citing State v. Crawford, 635 S.W.2d 704, 705 (Tenn. Crim. App. 1982)).
First degree murder is the premeditated and intentional killing of another person.
T.C.A. § 39-13-202(a)(1) (2006). Premeditation is defined as “an act done after the exercise
of reflection and judgment.” Id. § 39-13-202(d). This section further defines premeditation:
“Premeditation” means that the intent to kill must have been formed prior to
the act itself. It is not necessary that the purpose to kill pre-exist in the mind
of the accused for any definite period of time. The mental state of the accused
at the time the accused allegedly decided to kill must be carefully considered
in order to determine whether the accused was sufficiently free from
excitement and passion as to be capable of premeditation.
Id. “‘Premeditation’ is the process of thinking about a proposed killing before engaging in
the homicidal conduct.” State v. Brown, 836 S.W.2d 530, 540-41 (Tenn. 1992) (quoting C.
Torcia, Wharton’s Criminal Law § 140 (14th ed. 1979)).
The existence of premeditation is a question of fact for the jury to determine and may
be inferred from the circumstances surrounding the offense. State v. Rosa, 996 S.W.2d 833,
837 (Tenn. Crim. App. 1999) (citing Brown, 836 S.W.2d at 539). “[T]he use of a deadly
weapon upon an unarmed victim; the particular cruelty of the killing; declarations by the
defendant of an intent to kill; evidence of procurement of a weapon; preparations before the
killing for concealment of the crime; and calmness immediately after the killing” may
support the existence of premeditation. Bland, 958 S.W.2d at 660 (citing Brown, 836 S.W.2d
at 541-42; State v. West, 844 S.W.2d 144, 148 (Tenn. 1992)). This Court has also noted that
the jury may infer premeditation from any planning activity by the defendant before the
killing, evidence concerning the defendant’s motive, and the nature of the killing. State v.
Bordis, 905 S.W.2d 214, 222 (Tenn. Crim. App. 1995) (citation omitted).
The State first argues that Jones has waived this issue for failing to make appropriate
references to the record. “Issues which are not supported by argument, citation to authorities,
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or appropriate references to the record will be treated as waived in this court.” Tenn. Ct.
Crim. App. R. 10(b). Failure to comply with this basic rule will ordinarily constitute a
waiver of the issue. State v. Hammons, 737 S.W.2d 549, 552 (Tenn. Crim. App. 1987). In
addition, Tennessee Rule of Appellate Procedure 27 provides that an appellant’s brief must
contain, among other requirements, a statement of the issues presented for review; a
statement of the case, including the nature of the case, the course of proceedings, and the
lower court’s disposition; a statement of facts, specifying the facts relevant to the issues
presented for review along with appropriate references to the record; a statement of the
applicable standard of review; and arguments containing citations to authorities and
references to the record. Tenn. R. App. P. 27(a). Although we agree that Jones failed to
make appropriate references to the record in the argument section of his brief regarding this
issue, we will nevertheless address his issue on appeal.
Viewed in the light most favorable to the State, we conclude that the evidence was
sufficient to sustain Jones’s conviction for first degree premeditated murder. Significantly,
Jones admitted to police that he was with the victim the day before her body was found. The
evidence showed that Jones was the last person seen with the victim prior to her death. In
addition, Fitch testified that the evening of March 11, 2010, he saw Jones and the victim
leave a store and walk into Lucille Price Park. Davis said he found the victim’s body in a
remote area near this park approximately twenty-four hours later. Officer Shelton stated that
there were no clothes on the victim’s body and that there was no other evidence at the crime
scene. Dr. Chancellor testified that the victim’s cause of death was manual strangulation and
that the evidence from the autopsy revealed that the victim had engaged in sexual intercourse
shortly before her death. She also observed a material, later identified as skin cells,
underneath the fingernails of the victim’s right hand. Sergeant Lundy testified that during
his interview with Jones, he observed scratches on Jones’s arm and back. In addition, he
stated that at the time of the interview, Jones was wearing clothes consistent with Fitch’s
description of Jones’s clothing prior to the victim’s murder. Special Agent Nelson testified
that Jones’s DNA was consistent with the DNA found underneath the fingernails of the
victim’s right hand and that she recommended that Sergeant Lundy send the fingernail
scrapings to Orchid Cellmark, a private lab for further DNA testing. Huma Nasir, a forensic
DNA analyst at Orchid Cellmark, testified that the skin cells containing DNA that were
found underneath the fingernails of the victim’s right hand matched Jones’s DNA and were
consistent with the scratch marks on Jones’s body. Although Jones told the police that he
had no physical contact with the victim, that he did not have sexual intercourse with the
victim, and that the scratches on his body were from a fight in a club, the jury was free to
discredit this evidence. Given this proof, a reasonable jury could have found premeditation
beyond a reasonable doubt based on the nature and cruelty of the killing, which consisted of
the victim being manually strangled as she clawed to get a breath. We conclude that the
evidence was sufficient to support Jones’s conviction.
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CONCLUSION
Upon review, we affirm the trial court’s judgment.
______________________________
CAMILLE R. McMULLEN, JUDGE
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