# FILED

March 25, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY SESSION, 1996

STATE OF TENN ESSEE, ) ) No. 02C01-9506-CR-00157 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. BERNIE WEINMAN, Judge DARREN SMITH, ) ) (Direct App

eal - Reckless Appellant ) Endangerment and A ttempted Second Degree Murder)

DISSENTING OPINION I am unable to join with the majority in concluding that the State's evidence was insufficient to establi sh the defendant's sanity bey ond a reasonable doubt. For this reason, I would r

everse the trial cour

t's decision granting

the defendant's motion for judgments of acquittal upon grounds of insanity and would reinstate the jury’s verdict of guilt on all charges. I find from the proof that the State has met it s burden of establishing the defendant's sanity through the acts or statements of the defendant, at or very near the time of the commission of the crime, and that these acts are consis tent with sanity and inconsistent with insanity. See State v. Sparks , 891 S.W.2d 607, 616 (Tenn. 1995); State v. Jackson , 890 S.W.2d 436, 44 0 (Tenn. 1994). This case presents a classi c example of the tragedies c aused by spurned love. The theme is neither new nor novel and its ending predictable. The defendant and Ms. Moss endured a four y ear relationship whi ch could be characteriz ed as turbulent at times. The defendant’s f irst recorded act of aggression toward Ms. Moss occurred in 1991. On this occasion, the two h ad argued and Ms. Moss had ordered the defendant to leave her home. The defendant, however, retur ned to her home where he broke out windows, resulting in injury to Ms. Moss, and forced his way into her home. The int ernal affairs office was assig ned this investigati on and,2

as a result of their report,the defendant received a two day suspension. Other complaints followed. Finally, in April 1993, Ms. Moss ended the relationship. Ms. Moss testified, "He was very angry w ith me for breaking up." Short ly thereafter, she began dating another police officer. The def endant began making threats to Ms. Moss. He was repeatedly told not to come to her home. These requests were ignored. On one occasion, he again entered her home uninv ited and confronted Ms. Moss’ friend whi ch resulted in a physic al confrontation between the tw o. On June 4, 1993, the date of the instant offenses, th e defendant made three uninvited visits to the vic

tim's home and had called her by telephone ten to fifteen times. On the first visit, the defendant delivered to Ms. Mos s a torn-up credit card statement which the two had been ar guing about. On the second v isit, the defendant brought some flowers. Ms. Moss called the police who w ere en route when the defendant left. On the th ird visit, he returne d to Ms. Moss’ home armed with a 12 gauge shotgun loaded with sl ugs. During this v isit, he fired four rounds into various windows in her home te rrorizing the chi ldren and narrowly missing Ms. Moss and her male friend. Additionally, on this last visit, the defendant, upo n entering Ms. Moss’ driveway, struck her friend’s car with his truck. Following this episode of terror, the defendant returned to his mo ther's residence where the rec ord suggests that he cal led the police. Upon arri val of the police, the defendant advised the responding of ficer, "that he had shot into Ms. Laura Moss' house." The officer test ified, "I asked Mr. Smith w ith what. He advised me a shotgun. I asked him w here was it. He told me it was in the back ro om." The shotgun was recover

ed from under the bed and the defendant was a rrested. The defense called, as an expert w itness, Dr. Freeman, his attending psychiatrist. Dr. Freeman’s testimony pro ved interesting and the following portions are parti cularly no teworthy. Dr. Freeman : He [defendant] was suffering from a mental condition at that time. Defense Counsel : Okay. And how would you term that in layman’s terms?3 Dr. Freeman : Temporary insanity is how we would describe it in layman’s terms. Defense Counsel : [D]id Mr. Smith lac k substantial capacity

to appreciate the wrongfulness of his actions? Dr. Freeman : I would sa y so, that i s a possib ility. Prosecutor : . . . Now as a qual ified professional, can you tel l me at what point he became temporari ly insane? Dr. Freeman : . . . I think the act is the point. The act of the shooting was the point of being ins ane. Prosecutor : Are you saying that if he had not don e that (shootin g) that he would not have been i nsane? Dr. Freeman : Well, I mean that's hard to say. I mean, I can say that a particular act is an i nsane act. Now, wheth er one has seeming insanity underneath throug hout that time, I can say y eah. Prosecutor : Now, you mentioned that he was depressed . . . isn’t it possible . . . part of the reas on about his depression wer e (sic) the fact that he had been arrested and was facing criminal charges? Dr. Freeman : That could be part of the constellation of responses. Additionally, the psy

chiatrist testified that a 1993 physical injury to the defendant’s head “was a larg e factor” in forming his opi nion that the defendant was “temporarily insane”

at the time of the shooting. After being advised by the prosecutor that the defendant was committing acts of aggression against Ms. Moss in 1991, two years before he received the head injur y, the question was

then asked whether this fact would “have any effect on your opinion” as to insanity. Dr. Freeman replied, “That would strengthen my diagnosis.” Finally, it is obs

erved that Dr. Freeman te stified that it was possi ble that the defendant was insane in 1991 and ag ain in 1993, however, i t cannot be ignored that, during this same period, the defendant was perf orming his duties as a Memphis police officer and recei ving special commendatio ns for his work. Once raised, the issue of a defendant’s sanity is a questi on for the jury to resolve. See Spurlock v. State , 368 S.W.2d 299 (Tenn. 1963); see also Tenn. R. Crim. P. 29(a). Notw

ithstanding the jury’ s ultimate responsibilit y in making the sanity determination, there are at least three points during the trial when the trial court4

must determine whether the ev idence is sufficient as a matter o f law. First, the tr

ial court must determine whether the defendant has presented sufficient ev idence to put his sanity at issue. Second, the court must determine whether the Stat e’s rebuttal evidence is sufficient to make an issue for the jur y on the defense of insanity. Third, in the

event of a guilty v

erdict, the court must deci de whether the State’s evidence is suffici ent to support the conclusion o f the trier of facts as to the defendant’s sanity at the time of the offense. See United States v. Coll ier , 453 F.2d 1173, 1176-1177 (5th Cir. 1972). In the pre sent case , I would co ncede th at the de fense d id, albei t narrowly, present sufficient proof to create a r easonable doubt as to the defendant’s sani ty. See Sparks , 891 S.W.2d at 615. T he next question is whether the State sufficiently presented evidence to rebut the defendant ’s claim of insanity to warrant the jury’s consideration on the issue of san ity. Although both the k ind and quantum of evidence presented by the State in rebuttal are import ant, the nature and quantum of evidence necessary to raise a jury quest ion is determined in relati on to the strength of the defendant’s case for i nsanity. See United States v. McCr acken , 488 F.2d 406, 409 (5th Cir. 1974). Thus, although the presenta tion of rebuttal expert testimony is preferred, i t is possible for the State to meet its burden without r elying upon expert testimony. Indeed, the State may suff iciently counter defense expert testimo ny: by showing the inc

orrectness or inadequacy of the factual assumption on which the opinion is based, ‘the reasoning by which he progresses from his material to his concl usion,’ the interest or bi as of the expert, [and] inconsistencies or c ontradictions in his testimony as to material matters. . . . Mims v. United States , 375 F.2d 135, 143-144 (5th Cir. 1967). Apparently this is the route chosen by the State in the present case. The Sta te, in an effective cross-examination of the defense’s expert witness, amply reveal ed the inaccuracies, the inconsistencies, and the incompletene ss of Dr. Freeman’s diagnosis. Although no expert witnesses were presented in rebuttal, the State’s1 The record furt her establishes that, on December 15, 1994, the def endant was found not guilt y by r eason of insani ty wi th judi cial hospi tali zation ordered. On Apri l 13, 1995, the defendant was found competent by h is treat ing psychi atrist , Dr. Freeman, and re leased. 5 cross-examination of Dr.Freeman sufficiently rebutted the defendant’s proof so as to create a jury quest ion as to h is sanity. Once the issue of sanity is presented to the jury, th e jury is allow ed to consider both lay and expert testimony as evidence, and it may discount expert testimony as evidence w hich it finds to be in conflict with the facts of the case. Sparks , 891 S.W.2d at 616. Thus, the jury is free to w eigh the relative st rength of lay testimony against the relative weakness of expert testimony in arriving at their verdict. In reviewing the evidence, as we are required to do, in the light most favorable to the State, I find the State has me t its burden and this case was properly submitted to the jury. There is no evidence in the record of mental illness of the defendant prior to the commission of these crimes or afterward. 1 Following four y ears in the U.S. Marine Corps, he became a M emphis police officer during which time he had received commendations for his service. The evidenc

e at trial established that the defendant’s action in attempting t o murder his ex-gir

lfriend and her current boy friend was motivated by ang er and jealousy. The defendant had pr eviously made threats against his victi ms and, on this occasion, the j ury could have rati onally inferred that he armed himself with the intent of carrying out these threats. His conduct w as consistent with prev

ious acts of aggression.Although at trial the d efendant related amnesia as to the shooting, hi s admission to the arresti ng officer stands unrefuted. I find these acts totally c onsistent with sanity

and inconsistent with i nsanity. For these reasons, I would affirm the jury’s verdic t.

____________________________________ DAVID G. HAYES, Jud ge