IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON AUGUST SESSION , 1999 STATE OF TENN ESSEE, ) C.C.A. NO. W1998-00583-CCA-R3-CD ) Appellee, ) ) ) SHELBY COUNTY VS. ) ) HON. JOSEPH DAILEY JAMES M ORROW, ) JUDGE ) Appellant. ) (Direct App eal- First Degree Murder)

FOR THE APPELLANT : FOR THE APPELLEE : R. PRICE HARRIS PAUL G. SUMMERS 100 North Main, Suite 926 Attorney General & Repor ter Memphis, TN 38103 PATRICIA C. KUSSMANN Assistant Attorney Gener al 425 Fifth Avenue North Nashville, TN 37243-0493 WILLIAM L. GIBBONS District Attorney General EDWARD PETERSON Assistant District A

ttorney 201 Poplar Avenue Memphis, TN 38103

OPINION FILED ________________________ AFFIRMED JERRY L. SMITH, JUDGE 

# FILED
December 29, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk-2- 

## OPINION

On July 6, 199 8, foll owing a benc h tria l, in the Shelby County Criminal Court, James Morrow wa s convict ed of two (2) counts o f first degree murd er. This appeal raises the fol lowing issues: (1)W hether th e eviden ce was legally sufficien t to convict the defend ant; (2)Whether the trial court erred in den yi ng defens e coun sel’s mo tion to withdraw f rom the case; (3)Whethe r the trial cou rt shou ld have supp resse d the d efend ant’s confession; and (4)Whether the cour t erred in allo wing the state to ca ll lay witnesse s to rebut expert

testimony without giv ing prior notice to the defense. The judgment of the t rial cour t is af firmed. 

## FACTUA L BACKGROUND
On June 21, 1996, JamesMorrow (“appel lant” or “defendant” ) called 911 and told the operator t hat he had stabbed his wife and son to deat h, and that he had attempted to commit suicide. Police, responding to the call, a rrived at the defen dant’s house and found both t he defendant’ s wife, Vel ma, and his son, Jerrell, dead as the result of multiple knife woun ds. Th e defe ndan t was s evere ly injured. Medical pers onnel arrived shortl y thereaf ter and tr

ansported the defendantto a hospital where he was t reated f or mul tiple self-inflicted knife wounds and the apparent ingesti on of a household cl eaning solut ion. Two days later, p olice off icers q uestio ned th e defe ndan t at the h ospita l. After waiving his Mirandarights, the defendant tol d the poli ce that he had ki lled his wife and son because he was su fferi ng f rom d elusio ns at th e time . This statem ent was typed by th e police a nd signe d by the d efenda nt. The defen dant w as ind icted in December, 1996, and the tri al court or dered a psyc hiatric evaluati on to determine whether the defendant was competent to stand trial . Dr. Wyatt Nich ols, a cl inical psychologi st, found tha t although the defendantwas competent to stand trial, he was insane at the time of the ki llings.-3-

The sta t e proce eded to hire a sec ond ps ycholog ist, Dr. Edw ard W ise. After conducting several inter views with t he defendant and re searc hing th e defe ndan t’s medic al backg round, D r. Wis e conc urred with Dr. Nich ols’ earlier res ult. On April 8, 1998, the defendant waived hi s right t o a jury t rial, and a bench trialcomm enced . First, the State Medi cal Examiner testifi ed that althou gh both vi cti ms died from mult iple stab wou nds, they each probably r emained alivefor
some time whil e being stabbed. Next, a pol ice offi cer who arrivedon the scene te stifi ed that t he defen dant cal mly asked t he of

fi cer to s hoot

him and beca me angry when the offi cer did not . The offi cerwho questioned t he defendant i n the hospital testif ied tha t the d efendant waived his Miranda rights a nd volu ntarily confes sed to the murde rs. After this te stimon y, the state re sted. The defe nse ca lled Dr. Nichols, who testif ied that i n his opini on the defendantwas insa ne at the tim e of the ho micides . A fter a thorough crossexamination, howe ver, Dr . Nicho ls adm itted tha t the killing s cou ld have been the result of jealousy, not insanity. The defense then called Dr. Wise to test ify

. Unfortunate ly, Dr. W ise’s sche dule con flicted with the court’s, and the remainder of the tria l was re sche duled to acc omm odate Dr. W ise’s sc hedu le . The trial did not resume until July 6, 1998, alm ost three mo nths later. Duri ng t he recess, t he defendant and hi s attorney apparently

had a disagreement . Both the defendan t and his at torney f iled separ

ate motionsasking the trialcourt to al low the defens e counsel to wi thdraw and to appo int new coun sel. When the trialresumed, the cour t denied t hose motions, and t he defense conti nued presenti ng its case. The defense call ed Dr. Wise who testi fied that he, too, was of the opi nion thatthedef enda nt was i nsan e at theti me of the commissi on of the offense s. On cross-examinat ion, Dr. W ise reje cted th e hypo thesis that the killings w ere a re sult of the defenda nt’s j ealousy. The defense then rested. I n rebuttal , the state call ed seven (7) witnesses to rebut t he experts’ conclusionsthat insanit y, not jealousy, precipitated t he crime. All of t hese witnessestestified to see ing an d/or he aring s pecific instances of the defen dant’s-4-

jealo us, controll ing behavior before the k illi ngs took place. The trialcou r t convicted the defen dant an d sente nced h im to two concu rrent life sen tences

.
SUFFICI ENCY OF THE EVI DENCE The appellant

contends that , given t he evidenc e at tria l, no rationa l factfin der could have concl uded that the appellant was legall y sane whe n h e murdered his wife and son. He also ass erts that the tri al judge er red by ignoring the we ight of th e evide nce p resen ted at tria l. Although this case was a bench tria l, thefindings o f th e trialjudge who conducted the proceedi ng carry t he same weight as a jury verdict. State v. T ate , 615 S. W.2d 161, 162 (Tenn. Crim. App. 1981). Thus, on appeal , the state i s entitl ed to the str

ongest legi timate vi ew of the evi dence and all r easonab l e inferences

which m ay be dra wn there from. State v.Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978) . When the sufficiencyof the evidence is chall enged, the relevant question is wheth er, after revi ewing the evidence in a li ght most favo rable to the state, any rational trier of fact could have found the esse ntia l eleme nts of the c rime b eyond a reas onab le doubt. Jackson v. Virgin ia , 443 U. S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (19 79); State v. Cazes , 875 S.W.2d 253 (Tenn. 1994), cert. denied , 513 U.S . 1086, 11 5 S. Ct. 74 3, 130 L

. Ed. 2 d 644 (1995) ; Ten n. R. App. P. 1 3(e). Moreover, questions conce rning the cred ibility of the wit nesses, the wei ght and value t o be given the evidence, as well as al l factua l issues r aised by the evidence, ar

e resolved by

the trier of fact, not th is Court. State v. Pappas , 754 S.W.2d 620, 623 (Tenn. Cri m. App. 1987). Thi s Cou rt may no t reweigh or reevalua te the evide nce. Cabbage , 571 S.W .2d at 835

. Firstdegree murder

is “[a]premeditated an d intenti onal kil ling of anothe r.” Tenn. Code. Ann. § 39-13-202(a)(1)( Supp. 1995). “‘Premeditation’ means t hat the intent to kill must have been formed prior to the act itself. It is not necessa ry thatthe purpose to killpre-exi st in t he mind of theaccused for any def inite pe riod of time.” T enn. C ode. An n. § 39-1 3-202(d )(Supp . 1996). Finally , the f ac t1 Although a crim inal defen dant has always be en pres ume d sane , prior to 199 5 he only ha d to present pri ma facie evidence t o the contrar

y. The burden then shiftedto the state to prov e, beyond a reasonable doubt, that the defendant was sane at the time of the offense. In 1995 the Le gislature amended Tennessee Code Annotated Section39-11-501 to place the burden of proof of i nsanity on the defe ndant. -5- fin der may in fer pre med itation fro m the circum stanc es su rroun ding th e killin g
. State v. Gentry , 881 S.W .2d 1, 3 (T enn. C rim. App . 1993). In this case , the s tate presented uncontoverted evidence th at the defendantkilled his wife and son inten tionally and with prem editation. T he state played a 911 tape in which the de fenda nt calm ly told the operator that he ki lled the victims becau se “they chose to die.” T he s tate als o introduced the defen dant’s s igne d confession in which the defendant ar ticulated hi s reasons, formed before the ac t, for killing the vic tims. He also told police th at he ha d to chase his son down the hall to finis h kill ing him. The medicalexaminer expl ained thatboth victims had been stabb ed num erous times . Thus, the judg e had m ore than enough eviden ce to c onvict th e defe ndan t if he was sane at the t ime of the killi ngs. The defendant cl aims, however, that the t rial j udge erred in not agreeing with two experts who testi fied that the defendant

was legall y insane at theti me of theki ll ing s. Ins ani ty at t he t ime an of

fen se i s co mmi tted is a n abso lute defense to a crime

. State v. Sparks , 891 S.W .2d 607, 615 (Tenn. 199 5). Tennessee defines i nsanity as “an affi rmative defense to prosecut ion that, at the time of thecommission ofthe acts const ituti ng the offens e, the defendant, as a result of a severe mental disease or defect, was unable to appr eciate t he nature
or wrongfulness of such defendant’s acts. Mental dise as e or defect d oes not otherwise constit ute a defense. The defen d ant has the bur den of provi ng the defense of insanity b y clear an d convin cing evide nce.” Tenn. Code. Ann. § 39-11- 501(a)(Su pp. 1996). 1 At trial , the defendan t presented t wo experts whotestif ied that, at theti me of the offens e, the de fenda nt was legally insane. Al though the state did not offer any contrary

expert testimony, it did offer rebuttal by l ay-witnesses. The thrust of this rebut

tal and of

the state ’s cross- examination of the d efens e’s experts was2 The record is uncl ear as to when t he suit was f iled. -6- thatthe action s of the de fendan t were m ore likely tho se of a jealous, controll ing husba nd than that of an in sane p erson. The fact-f inder “i s al lowed to consider bot h lay and exper t testi mony as evidence, and it may d iscou nt expe rt testim ony wh ich it find s to be in conflict with the facts of the case.” Sparks , 891 S.W.2d at 616. Accor dingly, the judge, acting
as fact fi nder, had both t he prerogati ve and the duty to evaluate the credi bilit y of all witnes ses a nd to c redit the testi mony as he saw fit . In thi s case, he specifi cally st

ated that he found the de fense ’s experts’theories i mplausible but found the state ’s witne sses credible. We will not second guess the trial ju dge’s findings in thi s regard. This issu e is withou t merit.



### SUBSTITUTION OF COUN SEL The defendant next

contends that the t rial cour t erred i n denying his motion to allow defense counsel to withdraw and have new couns el appointed after his relation ship with his attor ney had deteriora ted. We must disagree with t he defend ant on this point. I n this case, the timi ng of the t rial was un usual. The trial commenced without a jury on Ap ril 8, 1998. Th e state conclud ed its direct proof on tha t day, and the defense cal led the fi rst exper t to test ify. After

the first expert testified , it beca me clear that the defense would need to ca ll a second expert. In ord er to
accom moda te the second expert’s sched ule, the trial court adjou rned a nd did not
res ume until Ju ly 6, 1998. I n the inte rim (May 22, 1998) , the defendan t fil ed a pro semotion to have his appointed attorney replaced wi th new coun sel. The defendantalso fi led a civilsuit agai nst the appoi nted attorney for malpracti ce and breach of pro mise. 2 Sev eral days later, the de fense a ttorney filed a motion to-7-

withdraw

as counsel. The defendant’s at torney renewed her motion o n the day the trial resu med, a nd the jud ge den ied relief. A defend ant who reques ts the substit ution of d efense counsel bear s the burden of dem onstr a ting that (1) counsel ’s represent ation is ineffec tive, inadequate, and falls bel ow the range of competency expected i n criminal representat ion; (2) the defendant and appo in ted counsel have been embroiled in an irrec oncila ble co nflict; or (3 ) com mun ic ations be tween the defendan t and counsel have c omp letely broken down. State v. Gilmore , 823 S.W.2d 566, 568- 69 (Tenn

. Crim. A pp. 1991 ). A defe ndan t’s refus al to co opera te with c ouns el, however, does not jus tify subs tituting c ouns el. State v. McClennon , 669 S.W.2d 705, 70 7 (Ten n. Crim. A pp. 198 4). A trial judge m ay perm it the withdra wal of an a ttorney ap pointed to represent

an indigent

defendantin a crimin al case fo r good c ause. Tenn. Code Ann. § 40-14 -205 (1 990). H e has wide d iscretio n, how ever, in matters regar ding the appo intme nt and relief of c ouns el, and his actio n will not be set aside on appeal unless a pl ain abuse of t hat discretion is shown

. State v. Branam , 855 S.W.2d 563, 566 (Tenn. 1993 ); State v. Rub io , 746 S.W.2d 732, 737 (Tenn. Crim

. App. 1987). Here, the tri al judge di d not abuse his di scretion when he found no bas is for requirin g appo intmen t of new co unsel. H e liste ned to th e defense counsel’s ar gu ment s that her r

elations hip with t he defendant had beco me acrimonious and t hat the defend ant had filed a civil suit ag ainst her. In
re sponse, the cour t found tha t the coun sel’s perfo rmanc e was m ore th a n adequ ate and that any br eakdown in communications between the defendant and his attorney was n ot severe enough to require substitution o f counsel. The court also found t hat the request was an improper one to make in the m iddle o f trial, because [if the fi l ing of a ci vil suit necessitated substi tution of coun sel] then in t he middle of an y trial that was h eard in these cou rts i f a defendan t didn’t like how things we re going or wanted to r

es et this matter for

six months, [he would only ne ed to] w alk acr oss th e stree t and file a civil suit, and boom, the attorney’s gone and the case is reset.-8- The appellan t also asse rts that h is filing of a civil suit ag ainst h is attorney midw ay thro ugh th e trial cre ated a conflict of in terest that requi red appointmentof new counsel. An actual conf lict, rather than a mere p ossibility of a conflict, mus t exist in o rder to implica te the d efend ant’s Sixth Amendment rights

. Cuyler v. Sull ivan , 446 U.S. 335, 350, 100 S.Ct. 1708, 1717-19, 6 4 L.Ed.2d 333 (19 80) . Fu rt her more , t he ap pel lan t mu st sho w that the ac tual conflict adversely

affectedthe lawyer's performance. Id. ; Netters v . State , 957 S.W.2d 84 4, 8 48 (Tenn. Crim. App. 1997). Assuming arg uendo that the lawsu it created an act ual confl ict of interest for theattorney , the appellant has not demonstrated how it aff ected his attorne y’s perform ance. State v. Street , 768 S.W.2d 703, 708 (Ten n. Cri m. Ap p.19 88). Indeed, the tri al judge found thatthe defense lawye r perform ed “extreme ly well.” Based on the record before this Cou rt, we agree w ith that ass essm ent. For these reaso ns we find
no revers ible erro r in con nectio n with th e trial c o urt's rulin g on c ouns el's motion to withdr

aw. This issu e is withou t merit.


### SUPPRESSION OF DEFENDANT’S STATEMENT The appellant

also clai ms that the tri al court s hould nothave a llowed his confession to be presented at tri al. The defendant did not obj ect to the admission of his sta teme nt at trial o r raise th e issue in his motion for new trial. Thus, this issue has been wai ved. Tenn R. App. P. 3(e); State v. Coker , 746 S.W.2d 167, 17 3 (Ten n. 1987 ), cert. denied , 488 U.S. 871, 109 S.Ct. 180, 102 L.Ed.2d 149 (19 88); State v. McPherson , 882 S.W.2d 365, 373 (Ten n. C ri m. App. 1994). Furt her, the r ecord ofthe su ppres sion h earing is not in the record
on appea l. T hus, we cannot r each the merits of the i ssue even absent t he waiver. State v. Banes , 874 S.W .2d 73, 82 (T enn. Crim. A pp. 1993). This issu e is withou t merit.



### SCO PE O F RE BUT TAL-9- The defendant cl aims the tri al court shoul d not have all owed the state to call several rebut

tal wit nesses, allof whom testif ied that t hey had seen the de fendantthreate n his w ife, his w ife’s co- worke r, or oth erwise act jea lo usl y and/orcontroll ing the pa st. The defendant claims these witnesses did not rebutthe defense of insanity, but were actuall y case-in- chiefwitnesses used by the prosecut ion to establish a motive f or t he murders. As such t he defendantmaintains he shoul d have been given p re -trial notice that these witnesseswould testify, an d that th e testim ony is in adm issible b ecau se it is not true rebu ttal testimo ny. See, State v. Jones , 1987 WL 2540 1 (Te nn. Cri m. App. 1987 ). W e mu st disa gree w ith the d efend ant’s a ssertio ns in this regar d.

We have consistently hel d thatany competent evidence which explai ns or is a direct r

eply to or a contradi ction of materialevidence introduced by the accused is admissibl e in r ebutt al. State v. S mith , 735 S.W.2d 831, 835-36 (Tenn. Crim. A pp. 198 7); State v. Jones , 1987 WL 25401 (Tenn. Crim. App. 1987). Furthermo re , the scope of r ebuttal ev idence li es withi n the sound discreti on of the trialjudge, and hi s or her deci sion wil l not be di sturbed absent abuse. State v. Scott , 735 S.W .2d 825, 828 (Tenn. Crim . App. 1987 ). Finally, it is well-settled that lay witnesses m ay be called to re but ex pert testi mo ny. Edw ards v. State, 540 S.W .2d 641 , 646 (T enn. 19 76), cert

. denied , 429 U.S. 10 61, 97 S.C t. 784, 50 L.Ed.2 d 777 (197 7).

In this case both defense experts testifi ed that they rejected t he notion thatthe defendant

kill ed his wife and son in a jealo us, control ling rage. Specifically, Dr. Nich ols testified th at, although he co nside red the hypoth esis thatthe defendant

may have kill ed t he victi ms because he was jealous, he thoughtthe defenda nt’s temporary ins anity, not his jealousy, led to t he killi ngs. He also test ified t hat he knew thedefendant had ahistory of jeal ous behavior and knew th e nature of the defe ndant’s p rior beha vior. Dr. Wise agreed. The rebuttalwitnesses wer e called to establi sh the extent of the jealous behav ior-10-

thatthe def endan t e xhibited before the c rime. Each one ref uted a key assumption on wh ich the defen se exp erts relie d in form ing the ir opinions t hat the murders were a result of insani ty, not j ealousy. For example, one witness testif ied that the defendanthad lied to Dr. Nichol s about his correspondence with the witnes s. Another testifi ed that she had seen the defendant thr eaten to kill a man he susp ected o f having a n affair with th e defen dant’s wife

. It is clear that this testimony was proper rebuttalto the defense expert’s testimon y. Thus, the trialcourt was wi thin it s discret ion when it

allowed these wit nesses to testif y without pri or notice to the defe nse. See State v. Teel , 793 S.W.2d 236, 24 6 (Ten n. 1990 ) This issu e is withou t merit.

According ly, the j udgment of t he trial cour

t is AFFIRMED

.

______________________________ JERRY L . SMI TH, J UDGE

CONCUR:

___________________________________ DAVID H. WELLES , JUD GE

___________________________________ JAMES CU RWOOD WITT, JR. , JUD GE