### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Septem ber 10, 200 2 Session
STATE OF TENNESSEE v. GEORG E GLENN KING, JR.
Appeal from the Circuit Court for Gibson County No. 15643 L. Terry Lafferty, Senior Judge, by Designation

No. W2001-02823-CCA-R3-CD - Filed May 15, 2003

The defendant, George Glenn King, Jr. , appea

ls his convictions by a Gibson County Circuit Court jury for first degree

murder for which he received a n effec tive sente

nce of li fe in pris on. He wa s also convict ed of especially

aggravated burg

lary, a Class B felony, for w hich he received a concur ren t sentence of eight y ears. He contends that he is enti tled to a new trial because the state’s eliciting experttestimony on the ultimate issue of his insani ty and p rosecutorial misconduct in closing argument constitute

plain er ror. He also arg ues that th

e tr ial court sho uld have m erged his convictions for premed itated and felony murder arising from a single killing. We ag ree that the defendant’s first degree murder convictions should be merg ed, but we otherwise disce rn no plain error and affirm the judgments of c onviction as modified. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed As Modified; Case Remanded

J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AVID G. H AYES and J OE G

. R ILEY , JJ., joined. Wayne Emmons and

Robert C. B rooks, Me

mphis, Tennessee (on motion for new trial and appeal), and L. L. Harrel l, J r., an d Jer ald Ca mpbel l, Tre nton , Tenn essee ( at tri al), f or the appel lant, George Glenn King, Jr.

Paul G. Su mm er s, At to rn ey G en er al an d R ep or te r; Jo hn H. Bl ed so e, As si st an t A tt or ne y Gen eral; Garry G. Brown, District Attorney General; and Hal Dorsey , Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION

This case arises out of the August 7, 1998 shooting of t he victim, Michael Gardner. Pam Lancaster testified that

the victim was a close friend of her and her two sonsand that he had lived withthem at one point. On the morning of August 7, 1998, the victim was sleeping on her living
roomcouch after

staying ove

rnight. She was in her bathroom after 7:00 a.m. when she heard a door-2-

slam, a noise like a firecracker, and a door slam again. She ran to the door, looked out, and saw the defendant in his car backing up. The defenda nt waved to her as he d

rov e away . One of h

er sons, who were also sleeping in the living room, said he noticed a strang e smell. She looked a t the victim and saw blood on the top of his head and coming from his nose. She saw a shell ca sing on the floor.

On cross-examination, Ms. Lancaster testified that the victim had lived with the defendant at one point and that the defendant had been to her home several times. She denied knowing of any argume nts between the defendant and the victim. She said that once the victim ca me to her house upset saying tha

t the defendant had asked him to start sellingdrugs for the defendant again and w as upset because he had refused. Althoug h she knew that the victim had used drugs in the past, she was
su rp ri se d t o l ea rn th at th e a ut op sy r ev ea le d t he pr es en ce of dr ug s i n t he vi ct im ’s bo dy.

Sheriff Joe Shephe

rd testif ied that he went to t

he defe ndant’s home on Narrow Gap Road on August 7, 1998, after receiving a re port of the shooting. He said he stopped the defendant about onehalf mile from his home about thirty minutes la

ter. He d escribe d the def

endant a s subdued

and said the defenda

nt complie d with his request s and did not say any thing. He said that he saw a gun on the right side of the driver’s seat, that it contained .40 ca liber shells, and that it was ready to fire. Deputy Ben Edw ards of t

he Gibson

County Sheriff ’s Depa rtment te stified th at on Aug ust 7, 1998, he worked for the

Trenton Police Department. He said that he went to Narrow Gap Road and took t h e defendant into custody from the Sheriff’s Department. The sheriff g ave him a gun and a magazine. He took a recorded statement from the defenda nt while e n route to the polic e depar

tment. He said that the defendant told him that he had shot the victim

once in th

e top of the head b ecause his niece Te

resa B utler ha

d called him aroun d 6:00 or 6: 30 a.m. and told him that the victim had raped her. The defendant told him, “No one’s g oing to rape my niece.”

O n cross-examination, Deputy Edwa rds described the defendant’s demeanor in the patrol car
as quiet and cooperative. He said that he read the defendant his rights and that the defenda nt said he did not want to make a statement. He agr eed th at en rou

te to the p olice de

partmen t, Captain Ki mbrough, who was riding with them, asked the defendant wha t happened, and the defendan t startedtalking. He agreed that whe n he and Capt ain Kimbroug h were commenting on the heavy rain, the defendant said, “God said it was going to rain hard today .” He said that about the time they pulled into the station, the defendant said, “God’s work is never done.” Special Agent D avid

Jolley of the

Tennessee Bureau of I

nvestigation (TBI ) testified that he took a statement from the defendant just after 10:00 a.m. on August 7, 1998. He said the defenda nt told him that his fourteen-yea r-old niece called

him that morning and told him that the victim had raped her. The de fen dant said he entered the house where the victim was staying throug h an unlockedside entrance. The defendant stated that he returned to his car for a flashlight because the house was dar k. The defendant

said that he went to

an L- shaped sectional c ouch in the living r oom, two people were sleeping on the couc h, and he recognized the

victim by his ponytail. The defe

ndant said he shined his flashlight into the victim’s eye s to make sure he had the right person. The defendant said he shot the victim in the t op of the he ad, saw the victim jump after the shot, and-3-

watched the victim

exhale his last breath. Agent Jolley said the TB I crime lab had dete rmined that the bullet removed from the victim and the casingfound at the crime scene were fired f rom the .40 caliber, semi-automatic Firestar pistol that the sheriff found in the de fendant’s car. Agent Jolley testified that the defendant told him that he

was afr aid the vi ctim was g oing to do something to him butnever g ave a re ason for this. He sa

id the def endant a lso told him that the victim had once said he wanted to have sex with the defendant’s niec e and the defendant’s wife. The defendant also reported that the victim owed him $600, part o f whic h was f or the defend ant’s drugs that the victim had been selling. Agent Jolley acknowledged that during the inter view, the defendant told him thatGod was h

is father , that he w as God’s son, and th at God told him to commit the crime. He said that d

espite these statements, he believed that the defendant was c ompetent to continue the interview. He described the defendant’s demea nor as calm and

unemotional. He said the only fa cial expression the defendant made was to smile when he would mention God. He said the defendant reported smoking part

of a marijuana joint earlier that morning but denied that he w as high. Hesaid that when he asked the defendant about his mental condition, the defendant insisted that he was sane. During cross-e xami nat io n, A gen t J ol ley r ead th e de fen dan t’s st ate men t i nt o ev id enc e. In addition to the abo ve listed d etails, th e defendant rep eatedly

insis ted that God t old him to kill the victim. He said he was ha ving pro blems with

his wife a

nd had pr eviously hit her in the mouth and threatened

to kill her or their children if she did not admit her crack c ocaine problem. He said that the day before the offe nse, he h ad talke d with

his fathe r on the g olf cour se about h is marita l problems and had consumed three or four swallows of beer at that time. He r epo rted vomiting the evening before the offense because he was c leansing his body. He said that he liked the victim but that God left him no choice but

to kill the victim. He said he had seen visions of a silver gun and believed that the victim was going to kill him. He said that the victim owe d him $600 a nd had sold

drugs f or him, buthe denie d killing

the victim

because of this. I nstead, h e agre ed that he committe d the o ffense because of his niece.

In his statement, the defendant said that after shooting the victim, he we nt to check on h i s niece and then w as going

to play golf wit h his father. He said he did not think the police would find him because God can d

o any thing. H e said

his father already

knew wha

t he had do ne to the victim because his father told him to do

it. He sai d that his e arthly father was God b ut that he

would be God
once his father left the earth. He denied knowing that he was going to kill the vic tim until that
morn ing. He said tha t he was good, that the victim was evil, that he knew he had done the right thin g, and that he had committed the crime for the sake of the world. He said the victim wanted the defendant to kill him or

else the victim would not have

been asl eep. The

defenda nt admit ted t hat he smoked thr

ee or four mariju ana cig arettesdaily . He said that he wa s “perf

ectly sane” and

was not trying to fe

ign being insane.

Fiftee n-y ear-ol d Teresa Butler, the defenda nt’s niece by

marriage, testified that she knew the victim from see ing him a t the def endant’ s house. She said

that she did not call the defendant on the morning of August 7, 1998, and that she did not tell him that the victim had raped her. She said the victim had never made any

sexual advances towa

rd h er. She said that in July 1998, she and the-4-

defendant had a conversation about sex at his house. She said the defendant had asked her

to have
sex with him and had shown her t hat he had some pornographic videotapes and some dr ugs. She said she had told the defe ndant tha t sh e wanted to remain a virgin. She said he had shown he r marijuana on other occasions and had previously invited her to use marijuana and crank

with him. She said she h ad neve

r used dr ugs with the defendant and had not returned to the defenda nt’s house since the c onve

rsat ion a bout s ex. Wesley Brasfield, an in ma te co nv ic te d o f a ggr av at ed as sa ul t a nd ag gr av at ed bu rg la ry, testified that he met the defendant in the Gibson County Jai l in July 1999 , nearly a year a fter the offense s. He said the defen dant told h im that he shot the victim because the victim was sleeping withhis wife and was about to start sleeping with his niece. He s aid

the defendant told him that he positioned the gun to permit the victim’s family to have an open casket funeral. He said t he defendant never showed any

remorse for the victim’s death. H e said the defendant told him that the state was seeking the death penalty but that he was trying

an insanity plea so that he would not have to spend the rest o f his life in prison. Brasfi eld said th at he wa s gettin g no benefit from testifying in this case.

On cross-examination, inmate Brasfield testified that he did not witness the defendant’s behavior before July 1 999. He a

greed that the d efenda nt had told

him that when the defendant first
ca me to the jail, h e smeared feces on his body to keep demons away . He acknowledged that the defendant never said that he was pretending to be crazy but said he believed that this was what the defendant meant. He said the defendant ne ver said any

thing about the victim raping his niece.

Mike Fowler testified that he was in the Gibson County Jail when they brought in the defenda nt. Fowler said the defendant smirked and snicker ed when giving an account of his crimes and told them he was going to plead insanity to get out of it. He said that he and another inmate beat th e defendant because he was “la ughing about it like he stole a piece of ca ndy,” and they

did no t think it was a laughing matter. He said th at he wa s gettin g no benefit fro m his testimo ny. On cross

examination, he admitted that he had never seen the defendant before that day and did not know the defendant’s manneri sms or rea ctions. He

agreed that he d

id not know

if the defendant

was menta

lly incompet ent

and that the defendant went to the hospital after the bea ting. He said he serv e d addit ional time becaus e of th e beati ng.
Dr. William Ward Daniels, Jr., a p syc hi at ri st , t es ti fi ed th at he an d D r. Jo hn Mc Co y, a clinical psy cholog ist, examined the defendant for about one hour on October 10, 1998, pursuant to a court order. Based upon their examination, he determined that the defendant was competent to stand trial. He said the defendant’s history and the evaluation caused him to concl ude that the defendant was suffering from a su

bstance -induce d psy chosis at the time of t he crime s. He expla ined that a substance-induced

psychosis causes the pe

rson to lose contact with reality due t o mood altering chemica ls and was not a severe mental disease or de fect in the defen dant’s case. He said that considering what the d

efenda nt told him in

the eval uation, th e defendant unde

rstood at the time of the of fenses that w hat he was do ing was wrong.-5-

On cross-examination, Dr. Danie ls tes tifi ed tha t alt hough he had read in a transcript that the defenda nt said he was carry

ing out a mission from God, the defendant did not tell him this during th e interview, which was just over two months after the offenses. He agreed that a profes siona l evaluating the defe

ndant clo ser in time

to the off enses co uld possibl

y better e valuate him. He sa

id he had reviewed

the records of Dr. Monette and Western Mental Hea lth Institute (WMHI), whic h
were made closer

in time to the crimes than his evaluation. He agreed tha t he was aware that when the defendant was first taken into custody , he claime d he had talked to God and had other hallucin ations, had smeared feces on himself to

ward off demons, and had reported ra rely sleeping and hearing demons screaming a t night. He stated that he was also aware that the defendant ha d been admitted to WMHI for suicidal and bizarre behavior . He agreed that a phy sician at WMHI had not ed that the defendant had a history of hearing voices, believing that he had ex trasensor y perception, and para

noia dating back several y

ears. He stated that at WMHI, the de fendant had been diagnosed with an un specified psyc hotic disorder and polysubstanc e dependence, which is an addiction to three

or more s ubstance s. He s tated tha t his own evaluation also revealed that the defendant had an unspecified psychotic disorder that involved h alluc inations a nd was pr

obably inducedby amphetamines. He said that a person with thi s d iagnosis would experience a loss of contact with reality due to the use of stimulants and might be unable to think logically . He said that withampheta

mines, the

substanc e-induc ed sy

mptoms can last for day s or months after the person stops using the drug. He stated that typically , amphetamines leave the user’s body within 24 to 48 hours even with prolonged use.

D r. Da ni el s t es ti fi ed th at te st in g a t W MH I re ve al ed th at at th e t im e t he y saw him, th e defendant’s global assessment of functioning was at a level of 40, which indicated some impairment in communication, judgment, or thinking. He said that acc ording t

o the test, the defe

ndant’s h ighest level over the past y ear wa s 30, which shows tha t the subje ct’s beh avior is considerably influe nced by hallucin ations or

delusions , a serious impairm ent in com

municatio ns or judgment, or th e inabilit y to function in almost all areas. He stated that the test identified the defendant’s lowest level over the past year a s 20, which reveals some danger of hur ting himself or o thers, oc casiona l failure to maintain minimal personal hyg iene, or gro ss ly i mpaired communication. He stated that his own evaluation revealed the defendant’s g lobal assessment of functioning to be 45, which would reflect sym ptoms such as su

icidal te ndencie s, se verely obsessive rit uals, or a ny s erious imp airment in social, occupa tional, or school functions. He said that he did n ot di sagr ee with 20 being the defendant’s lowest level over the past y ear.
On redirect examination, Dr. Daniels testified that the defendant had bee n treate d daily

with ten millig rams of H aldol, an antips ychotic med ication th at stops ha

llucinati ons and de

lusions. He described this as a “normal” dosage that could corr ect psychosis over

time. He said that the report from WMHI stated that the defenda nt’s psychotic thoughts a

nd hallucin ations cle ared wit hin da ys of starting the Haldol. H e stated that this qu

ick result was con sistent wit h a diag nosis of substanceinducedpsy chosis and inconsistent with schizophrenia. He stated that in his professional opinion, the defenda

nt was ab le to unde

rstand wh at he wa s doing a t the time he shot the victim and that it was wrong. On recross-examination, he agreed tha t a person suffering from an amphe tamine-induced psy chosis could believe that they were on a

mission from God buthe said th e defendant neve

r told-6-

him that God to ld th e defen dant t o kill the victim. He said that at the time of the offenses, the defendant did not believe that he was on a mission from God.

Dr. Jo hn W. Mc Co y, a clinical psycholog ist at the Cary Counseling Center, testified that he evaluated the defe ndant on O ctober 10, 1998. He said the defendant told him that before the offense s, he had snort e d methamphetamine for eight consecutive day s. The defendant said he argue d with h is wife, who went to stay a t her mother’s house on either the day before or the day

of th e crimes. He said he awoke at 5:30 or 6:00 a.m. on the morning of the offenses, smoked one-half of
a marijuana joint, walked in the front door of the house where the victim was stay ing, shot the victim in the head, and left.

Dr. McCoy

testifie d that the

defenda nt g ave several different reasons for c ommitting the offense s. He said th

e defendant told h

im that he h as troubl e with his t emper a nd does things whil e enraged that he later

wishes he had not done. He said the defendant repor ted becoming enraged when his niece called say

ing that the victim had raped her. Dr. McCoy

said the d efenda nt later t old him that the story about

his niece ha

d alway s been a “

bogus sto ry .” He sa

id the def endant a lso told him that at the time of the crimes, the defendant was still angry

with the victim for refusing to leave his house on o ne occa sion. The defenda nt told Dr. McCoy

that he decided to k

ill the vic tim becau se he had remembered that the victim had threatened to kill him at one point. He said the victim owed him $500. The def

endant a lso said tha

t before shooting the victim , he had thought a bout the vi ctim sleepi ng with his wif

e. Dr. Mc Coy

stated tha

t all of the se reas ons, except the one r elati ng to th e defenda nt’ s niece , could have play ed a role in the killing but that the defendant’s belief that the victim wa s sleepin g with hiswife pro bably trigg ered the

crimes.

Dr. McCoy

testifie d that he a

lso inter viewed the defendant on April 19, 1999, and that he found the defe ndant compe tent to stand trial on both October 10 and April 19. He said the defendant’s condition was not significantly diff erent on April 19, but the defendant was calmer and
more straightforward and truthful. He said he did not believe t he insani tydefense could be supported because the defendant told him that in the time lead ing up to t he shootin g and a

t the time he shot the victim, he knew it was wrong. He said that the defendant’sdrug-induced psy chosis was nota severe mental disorder. He said t ha t a person using one to two grams of methampheta mine daily would be paranoid, aggressive, a nd fearful; act strangely ; and do things that others would not understandbased upon the pers on’s stra nge inner thoug

hts and be liefs. In his professional opinion, the de fendan t knew what h e was do ing whe n he sh ot th e vict im and that i t was w rong.
Dr. McCoy testified that the defe ndant told him that he had not rec eived an y ps ychiatric treatment before the offenses. Dr. McCoy said that the appear ance of a non-substance-induced psy chosis such as schizophre nia at t he defendant’s age would be ve ry rar e. He said that amphetamine-induced

psy chosis is n otoriously confuse d with schizophrenia. He noted that schizophrenics do not show immediate

improveme

nt w hen trea

ted with H aldol but p ersons w ith amphetamine-induced

psychoses do. He ag reed that it was significant that the defendant did not
smear feces on himself until after he had been charged with murder. He said th at a schi zophrenic person would hav e acted

in this way

regar dless of th

e charg es. Dr. McCoy ac knowledged that the-7-

defendant was not thinking well when he committed the crimes and that he may have been delusiona l. He said that a paranoid schizophre nic in a psychotic state a nd someone with an amphetamine-induced

psychosis would both have inapprop riate am ounts of e motion and

paranoi d beliefs t hat would reach t he point of

delusions

. The thirty -five-y

ear-ol d defend ant testif

ied that he was a

high school graduate and that he and his father had founded King Technolog ies. He said that although he had been the president of the company and mana ged da ily o peratio ns, his father relieved him of his duties and hire d someone with
a college education. He said that many of his family members worke d at King Technologies, that his employ

ment was f

raugh t with family squabbles, and that it had been three and one-half to four yearssince he last worked there. He said that sometime a

fter he left King Technol ogies, h

e becam e depressed and began smoking marijuana to feel better. He said that six or seven months before the incident , he tried cry stal methamphetamine. He said he did not use methamphet amine on a daily basis and never sold drugs, notingthat he continued to draw a weekly paycheck of $1600 after he stopped working at

King Technologies. He said he sometimes helped friends get drugs as a favor. He said he used methamphetamine six days before he shot the victim. He admitted that he smoked marijuana in the day s leading

up to the shooting and

that he smoked part of a joint on the morning of the inc ident.

The defendant testified that he and the victim had been friends a nd that the victim had lived with him for three or four months one yea r before the shooting. He said he lent the victim money and allowed t

he victim t

o have hisfood whe

never th e victim was hungry . He said that a couple of
wee ks before the shooting, the victim came to his house and was flirting with his niece, T eres a Butler. He said the victim liked y oung girls and had brag ged about taking t heir virg inity . He said the victim had told him on previous occasions that the victim could easily g et the defendant’s niece to have sex with the victim. He said he wanted to tak e a nap b ut di d not want t o go to sleep with the victim aro und his nie ce. He s aid the vi ctim stay ed afte r being asked to l eave se

veral tim es and , ul ti ma te ly, left only after

the defendant screamed

at him. He said this was the biggest arg ument that he and the victim had ever had.

The defenda

nt testifie d that on the Sunday

before the shooti ng, the

victim ca me to his house and told him that the victim had had a vision of a silver gun. He said the victim was always play

ing withthe defendant’s guns and he beg an to fear that thevictim would take one of them. He said he took his guns t

o his father-in-law’s house and had them locked in the g un safe. He said that on Tu es da y, he ha d his wife ret rieve his pistol in order for him to lend it to someone but, when that person decided not to use it, he l e ft it in his car. He said that on Thursday , the day bef ore the shoot ing, something told him to contact hi s father because something

was going to ha

ppen to his father. He said he joined his father on the golf course and talkedto him about God, the defendant’s troubled marriage, and marijuana. He said he believed

that he needed to te

ll his father he lov ed him. He thought his father’s responsibilities would then be plac ed on him, but he was afraid to tell his father because he thoug ht his father

might die

after he told

him. He said that while there, he drank three or four swallows of a beer and spilled the rest. He sa id that later that

day , he went

to Milan to-8-

get some marijuana and became sick and vomited on the way home. He said he awoke a fte r midnight and called his father, who was ang ry about being

awakened.

The defenda

nt testified that on the Frida y mo rning of the offe nses, he c alled his wife and told her that God said that she should come over. He said his wife was ang ry but ag reed to come. He said that in his m

ind, he be lieved th at God wa s talking to him. He said he put his golf clubs in the
car because he wanted to play golf with his father and talk wi th him som e more. He said that the telephone rang a

nd that he talked to his niece, who said that

the victim was raping or had raped her

. He said he r

emember ed this as if it had actually ha ppened. He said he went to his niece’s house, but she was not the

re. He d rove to Pa

m Lancaster ’s house b ecause he thoug ht his niece was with the victim and he knew the victim was there. He said he we nt to the room whe

re the vi ctim

stayed but returned to his car for a fla shlight b ecause

it was dark. Hesaid that as he reached for his flashlight under the seat , he saw his gun and became frig htened that

the victim

was hurting his niece or would hurt him. He grabbed the gun and the flashlight and returned to the house. He started to lea ve when he found no one in the victim’s room, but he saw the victim ly

ing on the couch. H e said all he could think about was his niece screaming. He said that a chill came ove r him and that he pointed the gun at the victim and pulled the trigger. He said that at the time he

was thinking that t

he victim w as evil and that he was suppose to do this. He said hecould still hear his niece cry ing as he left. He said he waived to Ms. Lancaster a s he drove away . He said that he went to the victim’s house on Gibson Street but could n ot find his niece there. He said he th

en went h ome beca

use he re membere d his niece say ing that she was with his wife’s uncle at the defenda nt’s house.

The defendant testified that the police were at his house whe n he arrived. He

said that h

is wife began yelling at him for leaving the children alone a nd that he told her

that he had left

because the victim had raped

their niece. He said the officers ar rested him and told him that he had killed the victim. He said he remembered talking about evil and the devil and thinking that the victim’s tattoo was the si gn of the devil. He said he did not remember re ferring to God on the way to th e police station, b ut he rec alled the office rs talking about how

hard it wa s raining . He said he thought that he was the chosen one, that he knew what wa s going to happen, and that he had mad e i t rain. He said he remembered talking to Age nt Jolley about God. He said that while hewas interviewed, he began s eeing t wo of ev erything and believed that he was seeing the g ood side and the bad side of people. He said that he was still hearing voices and tha the had a constant “ringing” in

his head. He said that the computer screens in the booking are a were “jumping” and talking to him but that he could not understand what they were say ing. He said that he felt that he had done what he was suppose to do and did not think that he had done any thing wrong.

The defendant testified that while he was in jail, he could not sleep. He said he believed that the victim was the devil, was in a cell near him, and was trying

to get him while he was in transition to becoming

God. He s aid

he believed that t

he victim h ad hy

pnotized a

ll of the g uards and deputie s, who were also try

ing to prevent him from fulfilling his destiny of becoming God. He said he drew
crosses and stars of David on his cell walls in order to keep evil peop le from coming into his cell and wiped all the surfaces of his ce ll with a shirt soaked in urine in order to keep the demons out. He said he also pray ed over his urine and then sprinkled it over the room and himself, thinking it was-9-

holy water. He said he believed that he was disguising himself to prevent the devil from recognizing him. He said he to ok his clothes off because he believed that he w as invisible when he was naked because he was God. He said he spoke with Vice Pre sident Al Gore, whom he believed was preside nt, and asked him to send the army to destroy

the jail with the devil in it in order to rid the world of evil. He said that

he was ta ken to WMHI

where he was fin ally

able to sle

ep and did not feel as paranoid and scared. He said he was prescribed medication that made him feel a lot better . He said that he use to believe that he c ould pred ict the fu ture but th at he had

not had tha

t feeling while on the medicine.

The defendant denied asking his niece to have sex with him. He said he did have a conversation about sex with her in which she told him thatshe had never had sex. He sa

id he told her if she de cided to h ave sex, to talk to him f

irst. He said he was concerned about her becoming pregnant while she was still a

teenag er. He s aid

he told her that if she needed to learn any thing about sex, she co

uld watch his pornog

raphic v ideotape s. He said that he was never alone with his niece and that h is wife a nd childr en were alway s there a

lso. He de

nied off ering h is niece drugs b ut said that she might have seen

him with drugs. He said that he never thought that the victim was having
sex with his wife and that his wife did not like the victim. He said that he and his wife dated other people while they wer

e separated. He

said that t

he victim u sed drug s and could be violent but that when the defendant was in his right mind, he knew t he victim c ared ab out him and his children and was not g oing to hu

rt him.

The defenda

nt testified that whe

n he met wi

th Drs. McCoy and

Daniels, Dr. McCoy

did most of the talking. He said he did talk to Dr. Daniels about God. He said th at when h e tried to talk to Dr. McCoy about the offe nses, Dr. McCoy bec ame angry and called him a liar. He said he to ld Dr. McCoy that at the time of the interview, he knew the story about his niece was not

true but that Dr. McCoy would not let him explain what he thought at the time of t he offe nse s. He said that when Wesley Brasfi eld aske d him why he was in jail, he to ld him

that Dr. McCoy was sa

ying that it was because of drugs and his wife. He said he told Brasfield that he had shot the victim in the head and that the victim

had a nor mal fune ral. He denied laughing or snicker ing when telling inmate Michael Fowler about the offenses and what Dr . McCoy had said about them.

The defendant testified

that he killed the victim because he believed the things in his mind
were real and that he was doing what God told him to do. He said that at the time he pulled the trigger, he believed that

he was killin g evil, n ot the vic tim. On cr oss-examin ation, the

defenda nt said he did not pla

n to shoot the victim when he went to Ms. Lancaster ’s house. He said that he was not angry withthe victim

when he s hot him and

that the in

cident c oncerning the victim not le aving h is house was long forgotten. He said he ha d been depressed for a long time before the offenses and had thought he could predict the future, but he admitted he had never heard voices in his head or e ngaged in other bizarre behavior before the time of the of fens es . He denied using two to three gra ms of methamphetamine daily. The parties stipulate d that the defenda nt was tes ted for d

rugs on August 12, 1998, and that the test was negative for methampheta mine and positive for marijuana.-10-

RhondaKing, the defendant’s wife, testified that she and the defendant lost their jobs at King Technologies due to conflicts with his family. She said that after this, she a nd the defendant fought all the time and were abusive to each other. She said she h ad never had sexual relations with the victim and that she and the victim did not “get along.” She said the victim lived with the defendant while she and the defendant were sepa rated and that she blamed the victim for a substantial part of the problems between her and the defendant. She said that they fought about the victim because the defendant and the victim were “party ing” with other women at the house. She said she never saw any problems between the defendant and the victim. She said she did not know when the de fendant started using drugs because he hid his drug use from her.

Ms. King testified

that follo wing a s ix-month sep aration , she ret urned to their home for two weeks in an attempt to reconcile with the defendant. She said that during this time, h

er niec e Teres a was visiting and went out to the yard with the victim, who had c ome to get a car part. She said the defendant told her that that was not appro priate a nd sent he

r to get Teresa . She said

that when the victim came ba ck inside , the def

endant a sked him

to leave , and the v

ictim left. She said that Teresa and the victim were flirting and agreed that she felt uncomfortable with Teresa being ar ound the victim.

Ms. King testifie d that she and the de

fendant talked to Teresa about sex and asked her if she
was still a virgin. She said that she and Teresa were close and w ere not uncomfortable having this conversation. She said th e defendant did

not ask Te

resa for sex. She said that they did not mention pornog raphic videotap es to Teresa but that Teresa knew they had them. She said they

asked Te resa to tell them when she decided to become sexually active in order that they

could try to dissuade her

. She said she was present for the entire conver sation with Tere sa but ag reed the re could have been another conversation when she was not there. On cross-examination, she said the defendant showed the pornog

raphic v ideotape s to Tere sa but did n ot play them. Sh e said tha

t she had ta

lked with Teresa since Te resa had testified in this trial and that Teresa had told her that the defenda nt never asked Te resa to h ave sex wit

h him.

Ms. King testified that the weekend before the shoot ing, she and the defe ndant had a big argument because the defendant acc use d her of u sing cr

ack coc aine. She

said that t

he defe ndant, who has alwa

ys h ad a te m per, was phy sically abusive to her dur ing the argument. She said the defendant brought his guns to her parents’ house. She said she did not know of him returning to get
one of the guns. She said she andher sister went to the home during the week bef ore the shooting and saw th e defen dant a nd th e vict im la ugh ing a nd joking together. She said the defendant wa s behaving normally

at this time. She said the defendant had their children on the Thursday before the shooting while she was shopping in Jackson.

Ms. King ag

reed tha t the def endant brought the guns to her at her parent’s house on the Monday before the shooting. She acknowledged that the defendant made her drink out of the toilet when he beat

her on Satu rday night . She s aid th at she susp ected t hat th e defen dant w as usi ng drugs buthad no proof. She said the defendant called her at 5:30 a.m. and again before 7:00 a.m. on the morning of the shooting. She said that she did not know that he had killed the victim at the time of-11-

the second c all and that he asked her to bring him some cigarettes because he ha d the children. On redirect examination, she said that she did not remember which day the defendant brought

the guns to her parents’ house. Cathy Ashley, the def

endant’s sister-in-law, testified that she accompanied her sister Rhonda King to the defendant’s house on theMonday befor e the shooting. She said the d efenda nt, victim, and her Uncle Mike were working on the defendant’s truck. She said they were behaving in a friendly and nor

mal manner.

Diane Hensley, the de

fendant’s sister, testified that she works at King Technologiesand that the defenda

nt had lef t the business one a

nd one-h alf years before Au gust 7 , 1998. She said that before he left, she had noticed some changes in the de fendant: He was missing a lot of work, his hygie ne had dec lined, he

was cons tantly

nervous, and he would not make eye contact when talking to people. She said t hat al thou gh the defendant had alway s had an explosive temper, his temper had grownworse over the last couple of years. She note d that on July 25, 1998, he pushed her down in a parking lot. She said that she saw him andhis children at her parent’s house on the night bef ore the shooting and that he was pacing and see med nervous and agitated. She said that when she visited him in jailseveral months after the shooting, he was “wild-e yed” a nd looked like an animal but that he seeme d to be bac

k to norma

l at the time

of the tri al.

Joan King, the defendant’s mother, testified that starting three or four years earlier, she had noticed changes in the defendant’s at ti tu de , p er so na li ty, and appearance. She said that althoug h he had always had a

violent temper, he became more “hotheade d.” She said that on the Thursday be fore the shooting, the defendant called between 4:30 and 5 :30 a.m. asking if he could come cook breakf ast for them. She said that although the defendant said he was hungry , he did not eat after he cookedbreakfa st. She said the defendant could not keep still and kept going outside to smoke becaus e s he was on oxyge n. She said that the defendant called later asking for his father and that she told him

that her husband was on the golf course. She said that whe n she visited the defendant in jail befo

re he we nt to WMHI , he was s a ying that he was God and that he or his son would be crowned king, and talking about

Vice Pre sident Al Gore. She said that h

e gave his wife a small bag of dried feces as an anniversary gift. She said that since the defendant had ret u rne d fr om WM HI, he had improved and no longer looked wild or talked “out of his head.” On cross-examination, she acknowledged

that the d efenda nt’s beha vior whe n he cook ed brea kfast on the Thursday be

fore the shooting did not cause her concern. She said sh

e did not r emember the defe ndant being at he

r house that Thursday nig

ht. She sa id that she had accused the defendant of using drugs but that he had deniedit. She said that before the offenses, the defendant had

come to her house a few times talking about helicopters flying

over the house, causing her to believe that he was on drugs or that something
was wrong with him

. George King, the def

endant’s father, testified that the defendant became president of King T echnologies in 1993 and that the defendant’s behavior started deter iorating in 1995. He said he hired a new Director of Marketing in 1996, which c aused problems with the defendant’s wife, who had been in charge of adve rtisements. He said that at that point, the defendant was still performing-12-

his duties butthat his concentration had declined and that he spent more time brooding in his office. He said that the defendant left the business after his wife quit and that during 1997, the defendant
no longer worked at King Technologies but lived off the proceeds of the sa

le of his st

ock. He s aid that t he defendant, who had alway s had a bad temper, seemed “more temper prone,” and

that h e could no longe r talk to th e defendant witho

ut the def endant lo sing his t

emper. H e said

the defendant refused his many sugge stions toseek help. He said the defendant seemed reclusive in the months leading up to the August 1998 shooting. He said he was present when the defendant pushed the defendant’s sister down in the parking lot. He said that he w ould somet imes f eel as if he were in dange r when he and the de

fendant argue d but that th

e defendant neve

r struck him.

Mr. King t estified

th at the defendant called at 4:30 a.m. on the day before the offenses wanting to come prepare

breakf ast. He sa id that whi le the defendant was ther e, the defendant

could notsit down and have a c onversation. He said the defendant came to him on the g olf course that eveni ng, acting like he wa s in a rush . He said the defe ndant rod e with him in his ca

rt and told

him that he was God and that the defendant was Jesus. He said the defendant was chain smoking and not making sense. He said he stopped by the defendant’s house after he play ed golf and foun d the defendant play ing with h

is sons and te

lling the m, “Every

thing’s going to be all right.” He said the defenda nt seeme d to calm down while he was with his children. He said that the defendant called again at 4:30 a.m. on the day of the shooting and that

he asked the defe ndant tolet him sleep. He said he went to work, le arned th

e victim ha

d been sh ot, and went

to the def endant’ s house. H e said the defenda

nt y elled to h

is wife that he had shot the victim because Teresa c alled and said she was being raped. Mr. King testified that he had previously accused the defendant of using dr ugs but that the defendant had denied it. He said th at after the defe ndant wa s arres ted, he a sked the o fficer s to test the defe ndant for drugs b ut that to hi s knowledge, they did not test him. He said that when he sa w the defendant four hours after his arr est, the defendant was say ing that he was God and Jesus, that he was doing God’s work, and that God told him to do

it. He said that when he visited the defendant in jail before the defendant went to WMHI, the

defendant was “out of it,” “wild-ey ed,” did not make sense, and gave his mother scraps from

the floor as gifts. He said the defendant onc e claimed to be Walt Disney but mostly

claimed he was God. He said th e defendant prof

essed to g et telephone call s in his head andto sense things. He said that after the defenda nt return ed from WMH

I, he was almos t himself again but that he

still talke d about g etting a telephone call fr

om Teres a befor

e the off enses. Sergeant J. C. Ward, Gibson County Sheriff’s Depa rtment jailer, testified that the defendant behaved normally during h is first week at the j ail. He said that he checked on the jail’s inmates hourly at night and th at o ne night when he checked on the de fendant, feces were all over the defenda nt, the wall, and the floor. He said he noticed no other bizarre be havior from the defendant other than this incident

and that h

e did not notice much difference in the defenda nt’s behavior after he returned from

WMHI. Serge ant Charl es McL in of the G

ibson Count

y She riff’s D epartme

nt also testified that on one occasion before the defenda nt went to WMHI, the defendant had feces all over his body. He said aside f rom this incident, the defendant behaved normally

.-13-

Lieutenan tJimmy H and of the Gibson Coun

ty Sh eriff’ s Depar

tment test

ified tha t h e occasio nally

noticed that the d

efenda nt was dir ty w hile in jail. He said that once while the defendant
was in seclusion at the jail, he attempted to quiet the defe ndan t who was being loud. He said the defendant claimed he was talking to God and to his grandf ather, and he agreed the defe

ndant seemed anxious as if coming down off drugs. Lieutenant Hand said he later learned that the defe ndant’s grandfather

was deceased. On

cross-e xamination, he agr

eed that it was not un

usual for prisoner s to be dirty or loud. Deputy Jailer Aus tin Fred Little of the Gibson County Sheriff’s Depa rtment testified that he
once saw that t

he defe ndant had smeare d feceson him self. He not ed that the defendant’s clothes
were taken away

from him because other officers said he wa s trying to hurt himself. H e sa id the defenda nt once g rabbed a pitcher of tea f rom a kitchen worker and threw it on Deputy Little when he told the defendant he did not need the entir e pitc her. He said that once the defendant re turned from WMHI , the def

endant w as a diff

erent pe rson and c aused no

problems

. Dr. Gerard Monette, a psy chiatrist, testified that he examine d the defen dant at the jail on August 24 and 31, 1998. He s aid that o n the 24th , the def endant w as naked , distrau ght, men tally disorganized, and being

kept in se clusion f

or his own

safety . He said

he attempted to test the defen dant but the defendant, who had a headache and blurry vision, was untestable . He said th e defendant had an obvious thought

disorder and made frequent requests for tea. He said the defendant said he had se en thousa

nds of spid

ers in his j ail cell a

nd that he would urin ate on the

m. He said that he spent four to five hours with the defendant and t hat three h ours of e

xamination i s usually sufficient for a forensic evaluation. He said he re turned on the 31st and found the defendant clothed butdisheveled and dirty. He said the defendant said that he got the ability to hear people

screaming for help from miles away

from his grandfather and that his life’s mission was rescuing these people. He said the defendant reported being pe rsecuted in jail and seemed obsessed with drinking tea. He said that he signed the form committing the defendant to WMHI after speaking with jailers who were concerned

with the defendant’s suicide attempts. He said the defendant told him that he planned to commit suicide w ith an exten sion cord , and he s aid he saw an extension cord in the defenda nt’s cell

. Dr. Monette testified that based upon his examination of the def endant, the history he g ot from the defe ndant’s p arents, and the de fendant ’s st

ress while b eing tested, he concluded that the defendant had paranoid schizophrenia, which is a severe mental di sea se. He stated that the defendant’s schizophr

enia sta rted in 1996, tha t he had th

is disease at the time

of the cr imes, and that it was exac erbate d by

his use of methamphetamine. He said that at the time of the shooting, the defendant had acute sy

mptoms of schizophrenia and that his actions were determined by a uditory hallucin ations. He said th at at the t ime of the

offense s, the def

endant ha d substant

ial proble ms in understanding what he was doing and did not think it was wrong. He agr

eed that the defe ndant cou ld have believed that he was on a mission from God and involved in a battle between good and evil. He said the feeling that one understands eve rything is ty

pical of schizophrenics.

Dr. Monette testified that

methamphetamine can

cause a syndrome tha

t is indisting

uishable fr om pa ranoid schizophrenia. He said that with paranoid schizophrenia, the individual’s-14-

hallucinations are primarily auditory but that, with amphetamine-induc ed psychosis, they are u s ually visual. Dr. Monette said that the telep hone ca ll from the

defenda nt’s niec e and the

calls for help from others were hallucinations but were real to the de fendant. He disagreed with Dr. Watford that the defendant had a bipolar disorder beca use the defendant had reported no manic attacks in the two yearspreceding the offenses. He said that Dr. Watson could have interpreted the defendant’s e pisode of euphoria while at WMHI and his post-psy chotic episode of depr ession as par t of a bipolar spectrum but that this was contradicted by the defendant’s two-year histo ry of dete riorating behavior. He said that t

he defe ndant wa s treate d with ten m illigra ms of Hald

ol, which is a high dose for serious psycho tic s ymptoms. He said that an ac utely psy chotic individual who was not exhibiting much agitation could reasonabl y be expected to have some improvement after four to five day s of treatment with Haldol.

Dr. Monette testified he examined the defendant on March 10, 1999, after the defendant had been to WMHIand received treatment. He said that the defendant’s hy giene was poor and that he appeared exhausted

and withd

rawn. He said the defendant talked again of committing

suicide w ith
an extension cord, said the guards had “maced” a nd beaten him, and thenla ug he d i na pp ro pr ia te ly. He said the length of time between his question s and the defendant’s answers indicated that the defendant could not put his thoughts together. He said the defendant r epeated that hebelieve d in his telepathic abilities and that his niece had called on the morning of the of fenses say

ing that she had been raped. He said thedefendant still believed that he had received a telephone ca ll from his niece
even though he was now ashamed about the events involving his excrement while in jail, which the defendant attribute d to being

“nuts in the head. ” He said the fact that the defendant still believed that the telephone call a

nd his telepath

ic powers were real despite six months of treatment with Haldol sho wed that the defendant suffered from par anoid schizophrenia rather than a drug-induc ed psy chosis. He said that with an amphetamine-induced psy chosis, the person realizes that the hallucinations were no t real once t he dru gs disappear from their sy stem, which takes about five day s. He said that a

fter pe rforming an algo rithmicanalysis of all of his data on the defendant, he was 95% certain that the defendan t had p aranoid schizophr

enia. He said that h

is decep tion anal

ysi s of this data re vealed that t he defe ndant was no t mal ingeri ng.
On cross-examination, Dr. Monette testified that the defendant told him that on the morning of the offe nses, his n iece t eleph oned h im scr eamin g, crying, and plea ding for the defe ndant to he

lp her because the victim

had raped her and

was try ing to kill her. He said the defendant told him that the victim was evil and that w hen he went i nto t he pla ce wher e the v icti m was s taying, the defendant
saw t he victi m on top of his niece who was in a pool of blood and was screaming . He said the defendant related that the victim was r

aping a nd proba bly killing h is niece, that he emptied his gun into the victim who kept coming toward him, and that he left after the victim had finally died. Dr

. Mone tte agreed it was possible for a person to be lieve they we

re on a mission from God and s til l intend their

actions. He s aid the de fendant told him tha

t he thoug

ht he was in a movie

while committing the offenses. He concluded that beca use the defendant believed he was acting in a movie when he set

out for the victim’s house, the defendant did not believe what he was doing was wro ng. He said that based upon his examinations of the defendant, the defendant never had any c ommand hallucinations or he ard G od commanding him. He said that the defendant told him that the-15-

defenda nt, his wife, and the victim had engaged in conse nsual sex together. He said he believed that the diagnoses of

Drs. Daniels, McCoy, a

nd Watford agreed with his diagnosis for the most part. He said that Dr. McCoy’s re

port reflected that Dr. McCoy had suggested that

the account involving the defenda nt’ s nie ce was f

alse and that the d

efenda nt had ag reed be cause he

was susc eptible to suggestion.

Dr. Dale Michael Watford, a phy sician, testified that his area of expertise was the medical treatment of psyc

hiatric patients. He said that hetreated the defendant on August 31, 1998, when he was wor ki ng a s t he G ene ral Med ica l Of fic er a t W MHI. He sai d the Gibson County Sheriff’s Departm ent broug ht the def endant to WMHI b ecause

of his unusual behavior while confined. He stated that he took the defendant’s history , which showed that the defendant had been exhibiting bizarre behavior and delusional thought processes, threate ning suicide , and sme aring f eces on h is body with some religious preoccupation. He said he believe d that the defendant met the cri t erion for admission t

o WMHI because he was a danger to himself or

others or was out of

contact with
re al it y. He said he treated the def endant with Haldol, giving the maximum starting dosage of ten milligra ms daily . He said

that base d upon re cent stud ies, patie nts who resp ond to Hal dol will do s o fairly ra pidly.

Dr. Watford testified that he initially diag nosed the defendant with a bipolar disorder with psy choticfeatures but his diagnos is changed to an unspecified psy chotic disorder. He said a patient’s global assessment

of functioning (GAF) refle cts how the practitioner feels the patient will function in every day living. H e said a G

AF of 40 i s the cutof

f limit for discharging a patient. He stated that a person witha GAF of

20 would ha

ve proble ms that we

re over tly o bvious toa layperson, such as notgrooming oneself, talking to oneself, or believing that one had special powers. He said that the defendant remained at WMHI for about ten da ys and that a pra

ctitioner would need a minimum of two to three weeks to observe a patient before making an accurate diagnosis. He stated tha

t he did notbelieve that the defendant was a para n oid s chizophre

nic. On c

ross-exa mination, h

e initially testified that he di d not come to a conclusion about whether the defendant wa s insane at the time he examined him. He sa

id that he could not

say that the def

endant was “floridly

psychotic” and tha

t the defendant had a moderate, rather than a seve re, mental disease. On redirect examination, he said that he had no opi nion abou

t whether the defe ndant wa s able t o appreciate the w rongfu lness of h

is conduct a t the time o f the cr

imes and th at he did n ot examine t he defe ndant to de

termine t his.

Based upon this evidence, the jury found the de fendant guilty

of premeditated murder, felony murder, and especially

aggravated burg

lary. He a

ttacks only the first deg

ree murder c onviction s in this appeal.
I. ADMISSIBILITY OF EXPERT TESTIMONY ON ULTIMATE ISSUE

The defendant contends that the trial court erroneously permitted the state to question the expertwitnesse s on the ult imate issue of the defendant’s sanity in violation of Tenn. Code Ann. § 39-11-501(c). That section provides that “[n]o expert witne ss ma y testify as to whether the defendant was or was not insane . . . . Such ultimate issue is a matter for the trier of fa ct alone.”-16-

Tenn. Code Ann. § 39-11-501(c). He acknowledg es that he did not object at trial but argues that the admission of

this testim ony constituted plain error that affected his substantial rights because the only issue in this case was his insanity. He a sserts that the state compounded the error by arguing to the jury that experts had not found the de fendant to be insane and by imprope rly bolster

ing the testimony of its expert Dr. McCoy

. The state contends that the defendant’s issues are waived due to the untimely filing of his motion for a ne w trial. It also arg

ues that any err

or in admitting the testimonyin question is not plain but harmless. We conclude that the testimony in question is not plain error. Sp ec if ic al ly, the defendant contends that the st ate impro perly asked Dr. John McCoy and Dr. Dale Michael Watford for their opinions about whether the defenda nt was insane at the time of the offense s. Th e d ef

en da nt po in ts to th e fol lo wi ng di re ct ex am in at io n o f D r. Mc Co y as the state im pr op er ly e li ci ti ng ex pe rt op in io n o n t he ul ti ma te is su e o f t he de fe nd an t’ s s an it y:

Q. With regard to wh eth er or not he was competent – is competent to stand tr

ial, do y ou have a n opinion a

bout that?

. . . . A. He’s – was certainly

competent to stand trial on both oc casions that I saw him.
Q. And what about the question, can the defens e of i nsanity be supported?

A. Well, I

don’t bel ieve tha t it can be supporte d for sev eral re asons. The law req ui res cer tai n cr it eri a to be m et. It requires a severe mental disor der which caused the defendant to be unable to appr eciate t h e wrongf ulness of the acts const

i tuting the crime – the alleged crime. The defenda

nt convinc ed me

and told me that he knew it was wrong to shoo t this man in the head, that he knew that at the time h e sho t him, and he knew it leading up to when he shot the man, and that he knew tha t was wro ng. So, th at knocksout one of the requ irements

. The law say s that stat

es that a re caus ed by

intoxicatio n on alcohol or drugs do not count as the severe mental disorder part of the requ irement. So, the defendant met every requirement for a dr

u g indu ce d psychosis, specifica lly for an amphe

tamine psychosis. . . . [I]t was my belief th at he did n ot have th e required severe mental disorder other than an alcohol and drug disorde r. Q. But even if he did – . . . . Your professional opinion is –-17- A. He said –

my o pinion is tha

t he knew it was wro ng, and

he did it
an ywa y.
The defenda

nt argu es that the

state als o imprope

rly cross-e xamin ed Dr. Watf

ord on his opinion about whether the defendant was insane:

Q. And Mr. – y

ou’ve used the wor

d “crazy .” I s that a

psychologic al term?

A. No, sir. I was try

ing to – [defense couns el] asked for laymen t erms. No, si r. I coul d have expo unded with a lot o f big words i f you’d like me to.
Q. Sure. I s it a leg al term? I t’s not a le gal ter

m either, is it?

A. I wouldn’t know.
Q. Is“insane ” a leg al term?

A. I do n’ t k no w a bo ut “i ns an e. ” “ Ins an it y” i s a le ga l – pr ob ab ly a le ga l c on di ti on . T he re ar e l eg al co nd it io ns th at in di ca te in sa ni ty. Q. Dr. Watford, [defense counsel] asked y ou whether or not he was insane, and your re sponse, if I remember c orrectly, w as that in your opinion – in y our prof

essional opinion he met the criteria for retention.
A. Yes, si

r. That’ s exactly

right.
Q. Now, the fact is y our examination showed that he was not insane, did it not?

A. My evaluation indicated tha t the patient hadprob lems that indicatedfurther study, s ir. I d idn’t – I don’t think I came to a co nc lu si on on e w ay o r t he ot he r o n i ns an it y. Q. Well, the fact is, if you look at y our report . . . it’s obvious that he wasn’t in sane, isn ’t it?

A. It wasn’t ob vio us to me, sir. To me, it indicated that the person – t ha t t he pa ti en t n ee de d t o b e r et ai ne d f or fu rt he r s tu dy.

. . . .-18- Q. Okay. L

et me ask you again, Dr. Watfo

rd, and I ’m not try

ing to

. . . argue with y ou. But as you unde rs tand the t

e rm “insanity,” he was not insane, was he?
A. No, sir. No. I can’t say that he was – floridly psy chotic – I take “insane ” to mean

floridly psy chotic. Now, can w e agre e on that? Q. We – you can say

it any way

you want to.

A

. Okay. Mental illness – insanity has varying

degree s o f presentation. It’s not an if or an ab solute law. It’s not black and white or up and down. I t’s the whole spectrum of the ladder. There’s rungs on a ladder there.

. . . . Q. We had a l ittle tr ouble agreeing or pe rhaps understanding what insanity is. Did he ha

ve a seve re menta l disease when y ou saw him?
A. No, sir. Q. Did he have a –
A. Not a severe. No, sir.
Q. Not severe?

A. Moderate.

The state conten ds that Dr. McCoy spoke in te

rms of whe

ther the re was su pport for the insan ity defense in th e co nt ex t o f wh eth er t he d efe nda nt was com pet ent to st and tri al. It argues that Dr. Watford testified that

he could not determine whether the defendant wa s insane. Thus, it concludes that even if t he questi ons put toDrs. McCoy and Watford w ere improper, neither gave testimony on th e u lt im at e i ss ue of

th e d ef en da nt ’s in sa ni ty.
The defendant argues tha

t the state compounded the erroneous admission of expert testimony
on his i nsani ty by referrin g to it in clo sing ar gument . He ass erts t hat th e foll owing p or tion of the st at e’ s c lo si ng ar gu me nt he ig ht en ed th e p re ju di ci al im pa ct of

th e i mp ro pe r t es ti mo ny:
You heard Dr. McCoy

and you heard Dr. Daniels both say , “this man knew what he w as doing ; this man knew that what he was doing was wrong; this man was not legally insane.” You heard the Defendant’s-19- own wi tn es s, Dr . W at fo rd sa y, I c an ’t sa y he wa s l eg al ly i ns ane.” I didn’t even ask the question.

He also contends that the state improperly bolstered the credibility of Dr. McCoy by

arguing that the jury and the

trial judge had “never hear d [an expertwitness] mor e knowle dgeab le, more

articula te
or who knew more about what he was talking about.”He argues that the state’s eliciting improper testimonyon the only

controve rted issue in the ca se and em

phasizing that testi mony

during i ts closing argument forec losed the possibility of a reliable ver dict, thereby a

ffecting his substantial rights.

In the present case, the defendant’s motion for a new trial was untimel y. Nor mally , only issues which wou

ld result in a dismissa

l, rather thana new trial, may be considered when the motion for new trial is filed late because all other issues contained in the motion are considered waived. See T.R.A.P. 3(e); State v. Givhan , 616 S.W.2d 612, 613 (Tenn. Crim. App. 1980). On the other hand, pursuant to Rule 52(

b), Tenn . R. Crim. P., we have the discr etion tonotice an error

that has affected the substantial rights of anaccused when necessary to do substantial justice. The following factors should be considered in determining the existence of plain error :

“(a) the record must clearly establish what occurred

in the trial

court; (b) a clear and unequivocal rule of law must have been breached;
(c) a substan

tial right of the a

ccused m ust have b een adv ersely affected; (d) the accused did not waive the issue for tactica l reasons; and
(e) consideration of the error is ‘necessar y to do substantial

justice.’”

Statev. Smith , 24 S.W.3d 274, 282-83 (Tenn . 2000 ) (quo ting State v. Adkisson , 899 S.W.2d 626, 641-42 (Tenn. Crim. App.1994)). As noted in Adkisson , “reco gnition s hould be limite d to errors that had an unfair prejudicial impact which undermined the fundamental fairness of the trial.” 899 S.W.2d at 642.

After careful reviewof the record in thepresent case, we cannot say that plain error is evident withregard

to the admission of expert testimony. The defendant did not object to the questioning he now challenges on appeal. Additionally, we note that Dr. Watford’ s challenged testimony relates to whether the def

endant w as in sane at the time Dr. Watford examined him at WMHI over three weeks after the crimes. Even assuming the cha llenged testimony was improp er, we do not view these brief references to have had a pre

judicial i m pact upon the trial in light of the extensive testimonyof four mental health experts that collectively spans over

two hundred pages of transcript from this three-day tr

ial. Over half of this testimony wa s given by the defendant’s expert, Dr. Gerard Monette, who exhaustively presented the de fendant’s theory

that he suffered from the severe me ntal-20-

disease of paranoid schizophrenia and, as a re su lt, could n ot appre ciate the wrongf ulness of his actions in killing the victim. The defendant’s substantial rights were not af fected by the admission of th is te st im on y.

II. PROSECUTORIAL MISCONDUCT

The defenda

nt contends that the

st ate committed prosecutorial misconduct during closing argument. The state responds that the defe ndant has failed to show any error rising to the level of reversible, plain error. We agre e with the state that the record does not contain plain error. Again, we note

that the defendant failed to object to the state’s closing ar gument at trial and untimely filed his motion for a new trial. As such, he has waived our

review of

this issue, subject to our noticing plain error. SeeT.R.A.P. 3(e) (providing that misconduct of the parties in a jury trial notraised in

a motion fo

r new tri al will

be treated as waived on appeal), 36(a) (providing that relief is no t required for a party who failed to take reasonably available action to prevent or nullify a n error); State v. L

ittle , 854 S.W.2d 643, 651 (Tenn. Crim. App. 1992) (holding that the defendant’s failure to object to the state’s alleged misconduct during closing argument waives that issue).

The defendant asserts that the prosecutor called the defendant arrogant and

insulting during the closing arg

ument:

In his testimony ye sterd ay, the Def endan t arro ga ntly explaine d away this heinous act by attempting to convince you that he

thought Michael was the devil. I submit to y ou that this explanation was an insult to you, a n insult to the people of the State of Tennessee, but most of all, an insult to Michael Gardner.

He also maint

ains that t he prose cutor imp

roperly c al led the defendant a “spoiled brat” during the state’s r ebuttal a rgumen t: Yeah, I’ll tell y

ou what’s wrong in his head. He’s a 35 y ear old and by t he wa y, 35 is not young. 19, the ag e of young Michael Gardner when the De fendan t murd ered hi m, th at’s youn g. He’s a 3 5 ye ar old spoiled brat who

wants to bl ame every

bad thing he’s done in his life on somebody else.

It is improper for the prosecutor to use epithets to characterize the defendant. State v

. Cauthern , 967 S.W.2d 967 S.W.2d 726, 737 (Tenn. 1998) (calling the defenda nt the “evil one”) ; see, e.g. , State v. Bates , 804 S.W.2d 868, 881 (Tenn. 1991) (calling the de fendanta “rabi d dog” i s patently improper ); State v. Joel Guilds , No. 01C01 -9804-CC- 00182, Willia mson County , slip op. at 11 (Tenn Crim. App. May 27, 1999) , app. denied (Tenn. Nov. 22, 1999) (referring to the defendant
as “this clown” improper). Here, the prosecutor describ es the defe

ndant’s d emeanor during h is-21-

testimonyas arrogant and his explanation of his behavior as insulting. The def endant’ s credib ility
was an issue at trial, in particular with respect to whether he w as malingering in his insanity defense. These comments were not improper.

This court ha s held tha

t calling the defe ndant a “ liar” is “

rarely to the benefit

or the dign ity of the state . . . eve n if the p roof supports such a conclusion.” State v. Jody Sweat , No. E2000- 02472-CCA-R3-CD, Sevier County, slip op. at 11 (Tenn. Crim. App. Sept. 26, 2001). We believe that calling the pres ent defe

ndant a “ spoiled br

at” is of sim ilar i lk, ev en tho ugh the evidence contains some basi s for such a descr iption of th

e defendant.

The defendant argues that the prosec utor indirectly ac cused defens e co unsel of bei ng a spoiled brat when the prosecutor said that defense c ounsel had blamed others for the defendant’s actions just like the defendant: “It’s alwa ys somebody

else’s fault, and, you know, that condition of blaming somebody

else must b e catch

ing bec ause his l awy er has do ne it all aftern oon.” Rea

ding this passa ge in context, we do not believe the prosecutor is accusing de fense counsel of

being a spoiled brat. The comme

nt that defense

counsel, like the defendant, is blaming others made the point that the defense is one of shifting blame.

The defenda

nt also contends tha

t the pros ecutor i mpugne d defens e counsel’s representation of the def endant by imply

ing that defense counsel knew the insanity defense was contrived and noting that defense counsel could not understand a leg al term. I n concludi ng his initial closing argument, the prosecutor arg ued:

Ladies and Gent

lemen, I will leav e y ou with one

final thou ght. Very early on in this trial Mr. Harrell cross examined the State’s f irst witness, Ms. Pam Lancaster. His final question wasgivenin the form of a statement. Mr. Harrell said, “Miss L ancaster, when Glenn left the scene, he wa s driving normal.”Even his o wn lawy er knows

. Alth ough pointing

out that the

defenda nt did not beg in acting strangely until sometime later on the morning of the of fenses i s valid, impl

yin g that de

fense counsel d

isbelieved the insa

nity defense is questiona ble. We not

e, thoug h, that the defenda nt thoroug

hly counter ed this argument

in his own closi ng, arg uing tha

t the def endant’ s behaving as thou gh nothing unusua l had occurred w ithin minutes of

shooting someone w as abnor

mal.

In his rebuttal argument, the prosecutor marshalled

the evidence on the events of the killing itself, including

the defe ndant’s r eturn to h is car for a flashlight, and then ar gued that this evidence showed premeditation:

We know that his act in shooting him was a willful act. We know that it was a deliberate act. We know that it was an inten tional ac t and we know in

spite of Mr . Harre

ll’s diff iculty in understanding the concep t, we know that it was a premeditated act. The only question-22- is whether or

not Mr. Ha

rrell and Mr. Campb ell have convinced y ou th at the Def

endant w as lega

lly insane at

the time he

committed

this murder.

The supreme

court has held that a prosec utor’s ins ulting r

emark th at he would have to explain something to defen se counse l was impr

oper and in combination with other prosecutorial misconduct warranted a new trial. State v. Hicks , 618 S.W.2d 510, 519 (Tenn. 1981). On the other ha nd, in this case, we believe that

the prosecutor’s statement about defense counsel’s difficulty in understanding the concept of an intentional act is a refere nce to the defense

counsel’ s arguing that even if the jury rejected the insanity defense , the defendant di d not have the mental state to commit first degree murder.

The defendant contends that the prosecutor improper ly a rgued that Dr. M onette

neither knew the facts of the case nor knew that the defenda nt had tes tified at

length about his hallucinations and delusions

. He claim s this arg ument wasimproper

because the state was resp onsible

for having Dr. Monette excluded f

rom the c ourtroom

during t he defe ndant’ s testimo ny over the de fendant’s objection. He also asserts that the prosecutor improperly characterized

Dr. Monette as dishonest by say ing that he di d not car e about th

e facts , compar

ing him to

the Quee n of Hea rts from Al ice i n Wonderland and suggesting that he del iberate lyfailed to include certain facts in his report. After noting the absence of any evidence that the defendant had attempted, as oppos ed to threatened, suicide w hile in jai l, the pro secutor argue d as follo ws:
It’s a big dif

ferenc e in a suic id e threa t and a suicide attempt. He didn’tknow the facts and hedidn’t care about the facts. Wh o was it

–the Qu ee n of

He ar ts i n A lic e i n Wo nde

rla nd? V erdict f

irst; evidence later. Isn’ t that the w ay Dr. Mone

tte appr oached this case?

The state’s argument about the exclusion of facts relates to Dr . Monette’s failure to say any thin g about the defendant telling him that the defendant, the victim, and the defendant’s wife had engage d in a threesome: “Dr. Monette al so felt tha t it was prudent to leave out of his evaluation that the Defendant told him about engaging in three-way

sex with his wife and Michael.” Reading these arguments in context, they relate to the st ate’s point that Dr. Monette’s opinion
was unreliable because the defendant g ave him a different version of the even ts of the c rime. I t also sugge sts that Dr. M onette di d not explore the facts forming the bases of his opinions, i.e., the suicide attempts. Finally, the comment a bout Dr. Monette not knowing that the defendant had testified at length w as set in

contrast to Dr. Monette’s testimony that par anoid sch izophreni cs are r

eluctan t to talk about their halluc inati ons. Neither these arguments nor the illustrative literary reference are improper. See, e .g. , Niebur v. Town of Cicero , 212 F. Supp. 2d 790, 807 (N.D. Ill. 2002) (Plaintiff’s referring to defense witness as Queen of Hearts in closing arg ument was not improper).

The defendant charact

erize s the f ollo wing ar gument as the prose cutor insu ltin g Dr. Monette’ s Frenc h Canadia

n ancest ry and acc ent:-23- He tells Dr. Monette, “I r eceive d a tele

pathic me ssage f

rom Tere sa that she was in trouble and I had to g o and get her out of trouble,” but then, and maybe y

ou understood Dr. Monette better than I did. At
some point the story segued and I don’t kno w whether it was Dr. Monette’s story

or Mr. King’s. There’s a segue to “it wasn’ t really me. It was a movie.”

This argument in context referred to a conf using part of Dr. Monette’s tes timony, in wh ich he repeated that the d

efenda nt told him t

hat the defendant killed the victim in order to save his niece and then, for the first

time on cross-examination, said that the defendant told him that the defendant believedhe was in a movie. It was not a r eference to his ethnic origin or accent. I nstead, it was defense counsel who commented in closing argument upon Dr. Monette’s ethnicity , saying that Dr. Monette “is a Canadian” and “does not alway s speak the way we do.”

The defendant contends that the prosecutor char acterizedthe defense as nothing more than “word games” in the following argume nt: “Are n’t you tired o f allthese wo rd game s? Isn’t i

t time to star t cal ling thing s wha

t they really are?” We take this to be a comment upon the insanity defense. It is part of the prosecutor’s job to argue the we akness in the defens e. Thi s argu ment was not improper.

The defendant

points to three portions of the state’s closing argument in which he contends that the prosecutor improperly bolstered its own wit nesses. The first involves the portion of the state’s closing

mentione d in Issue I

in which the prosecutor stated that neither the jury nor the trial judge have heard a more knowledg eable or articul ate witn ess than Dr. McCoy: “Y ou heard Dr. McCoy and you probably

never heard an expert witness and probably nobody in this Courtroo m including the Judge who has hear d a bunch of them – you’ ve probably ne ver heard one more knowledgeable, more articulate or who knew more about what he was talking about.” In the second, after discussing the testimony of the defense experts, the prosecutor said, “The State’s doctors, on the other hand, namely

Dr. McCoy

and Dr. D aniels, were obviously men of intelligence that were obviously men of integrity ,” whose reports were consiste nt with eac h ot her and com mo n se nse . In the third, the prosecutor stated that “Joe Shepherd, one of the most outstanding law enfor cement office rs, recog nized as su ch in the St ate of Te nness ee,” took the defendant into custody within an hour of the offenses and reported that the de fendant was behaving normally

.
In State v. Thornton , this court held that the state’s comment that the crime laboratory does an excell ent job wa s imprope r but har mless:

It is a violat

ion of the

Code of Pr

ofession al R e sponsibility, DR 7-106(C)(4) for lawye

rs engaged in trial to express their per son al opinion about a

ny i ssu e involved in the justice of the cause they repres ent. See State v. Ha ll , 976 S.W.2d 121 (Tenn. 1998). Ce rt ai nl y, a lawy

er should not asser t his or he r person al opinion

as to the credibility of a witness, or as to the accused’s guilt or innocence.-24- Statev. Henley , 774 S.W.2d 908, 911 (Tenn. 1989). Whether a statement qualifies as misconduct often depends upon the speci f ic termi nolo gy

used. Unit ed St ates v . Stu lga , 584 F.2d142, 147 (6th Cir. 1978) (stating “The use of the words ‘[I] submit’ ar e not the equivalent

of expressing [a personal] opinion.”). In this ca se, the prosecuting attorney esse ntially vouched for

the effectiveness of the
cr ime l ab, stating that he was “very proud of our crime lab.” He further stated that “[t]hey do a n ex cellent job.” There were no prefatory words, such as ‘ submit,’ or qualify ing ter ms, such a s “In

my view.” Rather, the statement that the crime lab does “an excellent job,” qualifie d as a persona l opinion ma de befor e the jur y a nd in contravention of the rule.

10 S.W.3d 229, 235 (Tenn. Crim. App. 1999). Similarly, the challeng ed statements in the present
case were not preceded by

prefatory words and constituted the prosecutor’s personal opinion. Such argument was improper.

The defendant argues that the prosecutor improperly

inserted his personal opinion into the argument by ar guing “[t]here’ s not a per son within t he sound o f my

voice wh o believe s that th a t incident [the sex conversation], that encounter didn’t happen just like Teresa Butler said it did”, “I thought it was highly coinc idental that all of this behavior occurred after the De fendant was charged”, and “[w]e know tha t his act in shooting him” was willful and deliberate. A prosecutor may properly ba se hi s or her argument upon inferences supported by evidence in the record, including argument

pertain in g to the veracity of a witness’s testimony. See State v. Brown , 836 S.W.2d 530, 552 ( Tenn. 199 2); Stat e v. Beasley , 536 S.W.2d 328, 330 (Tenn. 1976). Although a prosecutor

is pro hibi ted fr om ex press ing a personal opinion on a witness’s credibility, he or she may argue b ased upon an analy sis of the evidence and the conclusion supported by the eviden ce. Se e Tenn. S. Ct. R. 8, DR 7-106(C)(4). Here, the first statement was the prosecutor ar guing that the jury should believe Teresa Butler over the defendant’s and his wife’s account of the conversation about
sex. It is in response to the defendant’s argument that Ms. Butler likely misconstrued the defe ndant’s attempts to counsel her about sex as a request that she have sex with him. With regard to the second statemen t, Dr. McCoy testified that a pa ranoid schizophrenic would have been engag ing in bizarre behaviors before and after the charge s, rather than solely after the charge. Althoug h the prosecutor couched this state ment in ter

ms of his tho

ughts on the matte r, the impl

ication th at the defendant is malingering has a basis in the record. Finally , the prosecutor’s statements regarding the defendant’s mental state at the time of the offenses follows his pointing out that the defendant returned to his car to acquire a flashlight and shined it on the victim to make sure he had th e right perso n. Alt hough the prosecu

tor said “ [w]e know,”

in essenc e, he is saying tha t the jury can be

sure of the defendant’s mental state because of the defendant’s a ctions.

Fi na ll y, the defendant contends that the prosecutor improperly invoked

the victim’s memory
as a rea son to conv

ict by arguing the fo llowing t

o conclud e his rebuttal arg

ument:-25- Aren’t you tired of all the se word g ames? Isn’t it time to start calling th in gs wh at th ey r ea ll y a re? Hasn’t the family of Michae l Gardner suffered f

ar too much already ? Don’t add to the injustice that has already

been perpetrated

agains tthem by letting this man g et away with murder. Don’t denigrate his life – the life of their son by calling this crime anything but what it is. Honor his memory and do justice to y ourself

and justic e to this count

y by calling this killing ju st what it was, a c old bloode d calc ulat ed, deliberate, premeditated Murder in the First Degree a nd I thank y

ou.

The state “ma

y r isk reversal by eng aging in argument which a ppeals to the emotions and sympathies of the jury,” ra

ther than counseling “jurors to base their decision upon a re asonedmoral re sponse to the evidence.” State v. Cribbs , 967 S.W.2d 773, 786 (Tenn. 1998) (holding that the state’s arg ument that victim’s four-yea

r-old daughter had lost her mother was not so inflammatory that it more likely than not affected the

verdict to the def endant’ s prejudi ce in

light of fact that

it was based on evidence in record and mean t to contra dict the d efense argume nt that a se

ntence o f life wa s the same as a dea th sentence). Although this appeal to sympa thy was improper, it was not lengthy a nd might have been, in part, a response to defense counsel’s asking the jurors to give the case “due consider ation as if the Defendant

was a loved one, a member of y our family and to trea t him as you would hope

they would be.”

As noted, many of the pr osecutor’s arguments raised by the defendant

do not constitute error. As for th e prosecutor’s referring to the de fendant as a “spoiled brat,” stating his persona l opinion about the credibility of the state ’s witnesses, and invoking the victim’s memory , we conclude that th ey do not rise

to the lev el of pla

in error in light o f the tria

l court’sinstructi on th at the parties ’ argume nts were not evidence

and the great weight of evidenc e against the defendant. The def endant is not entitled to relief on this issue.
III. MERG ER

The defenda

nt contends and the

state co ncedes t

hat th e trial court should have merged the defendant’s two convi cti on s for fir st degr ee murde r arising out of a si ngle killing. Ou r suprem e court has directed that when

a defendant is charged with both pre meditated and felony

murder, the trial court should instruct the jury to render a verdict on both theories of first deg ree murder. State
v. Howard , 30 S.W.3d 271, 275 (Tenn. 2000). Yet, “when only one person has been murd ered, a jury verdict of guilt on more than one count of an indictment charging different means of committing first degre e murder

will support only one judgme nt of conviction of first degree murder.” State v. Cribbs , 967 S.W.2d 773, 788 (Tenn. 1998 ). Thus, the trial court should have merged the jury ’s verdict s of guilt on both premeditated and felo ny m

urder in to a sing le judgment of conviction. See Howard , 30 S.W.3d at

275; State v. Addison , 973 S.W.2d 260, 267 (Tenn. Crim. App. 1997). The merger avoids a double jeopardy problem while protecting the jury’s finding s. Howard , 30 S.W.3d at 275. W e m odify the judgme nts of the trial court to merge count two, the felony murder-26-

conviction, into count one, the premeditated murder conviction, and direct the trial cour t to enter a single judgment of conviction for first deg ree murder.

Fi na ll y, the defendant contends that the cumulative effect of the error in the violation of the ultimate is sue rule

and prosecutorial misconduct in closing argume ntwarrant a new trial. Having reviewed the record with regard to these c ontentions, our consideration of them collecti vely

likewise does not uncover plain error. Based upon the for egoing and the recor

d as a whole, we affirm

the judgment s of convic tio n as modif ied and r emand the

case fo r entry of a sing le judgm

ent for f irst degree murder.

___________________________________ JOSEPH M. TIPTON, JUDGE