# FILED
April 22, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE SEPTEMBER 1998 SESSION

STATE OF TENNESSEE, * C.C.A. # 01C01-9710-CC- 00467 Appellee, * DICKSON CO UNTY VS. * Hon. Robert E. Bu rch, Judge JEFFERY L. PERRY, * (Second Degree Murder)

Appellant. *

For Appellant : For Appellee : Shipp R. Weems John Knox Walkup District Public Defender Attorney General & Repor ter Carey J. Thompson Daryl J. Brand and Senior Counsel Mitch Dugan Criminal Justice Div ision Assistant Public Defenders 425 Fifth Avenue North P.O. Box 160 Nashville, TN 37243 Charlotte, TN 37036 Robert S. Wilson Assistant District A

ttorney General Court Square, P.O. Box 580 Charlotte, TN 37036

OPINION FILED: __________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE2 OPINION The defendant, Jeffery L. Perry, w as convicted in the second degree murder of his father, Leon Perry. The trial court sentenced t he defendant, who qualified as a violent o

ffender, to fifteen years imprisonment i n a special needs facility. In this appeal

of right, the defendant presents the following issues for review: (I) whether the ev idence is sufficient to support t he conviction for second degree murder; (II) whether the tri al court erred by deny ing the defendant's motion to suppress his custodial statement; and (III) whether Tenn. Code Ann. § 39-11-501, the statute governing the affirmative defense of insanity, is unconstitutional.
We affirm the judgment of the trial court.
Late in the evening of Nov ember 5, 1995, Donald Shirley of the Dickson County Sheri

ff's Department was dispatched t o the Perry residence t o investigate a shooting . Upon his arrival at the residence, Deputy Shirley survey ed the front yard while Se rgeant Steve Lovell went to the rear of the house. When he heard Sergeant Lovell or der the defendant to put his hands in t he air, Deputy Shirle

y ran to the side of the residence a nd informed the sergeant that the defendant was deaf. Upon ente ring the r esidence, Deputy Shir

ley locate

d the body of t

he victim, Leon Perry, on the liv

ing room floor.
Sergeant Steve Lovell testified that he made hand gestures to direct the defendant, who was in hi s truck, to unlock the tr uck and step outside the vehi cle. Sergeant Lovell, w

ho described the defendant as being under the influence of glue, noticed several empty glue containers, a case of glue, and the strong odor of glue in3 the truck. He recalled that the defendant appeared to be surpri sed and "tensed up" several times whil e he was being handcuffed. After bei ng placed in a patrol car , the defendant kicked out the side wi ndow and propelled himself thr ough the broken glass onto the drivewa y.

Deputy Sheriff Robert Hay es, who assisted in the arrest, described the defendant as uncooperative, but other wise calm and expres

sionless. He recalled that the smell of glue in the tr uck was very s

trong and he observed a box on the floorboard that contained tubes of glue. He test ified that there were five or six opened packages of glue on the seat of the truck and a space heater w as in the floorboard.
Martha Kay Perry, the defendant's mother, testified that on t he day of the shooting the defendant had spent the a fternoon sniffing glue in his t ruck. At about 9:35 P.M., she heard the defendant ent er the house and go to his bedr oom. The victim, the defendant's father, w as in the living r

oom. She testified that she then heard a gunshot and heard the v ictim say something l ike, "[p]lease don't shoot me, Jeff." When a second shot was fired, Ms. Perr y grabbed a can of mace and ran into the hallway w

here the defendant stood with a sho tgun. Ms. Perry s prayed the defendant with mace, and, after a str uggle, she was able to break free. When she saw the victim ly

ing on the living room floor, she grabbed the cor dless telephone, called 9-1-1, and fled in her vehicle.

Ms. Perry testified th at the defendant had suffered nerve deafness at the age of two. Sh e stated that f rom the age of f ive until he gradua ted from high school, the defendant attended the Tennessee Sc hool for the Deaf in Knoxvil le. She recalled that her son was popular and excelled as a student and athlete . He4 received his high s

chool diploma in 1982. Ms. Per ry testified that the defendant could read fairly we ll but not as well as a hearing person. After hig h school, the defendant returned to Dickson to live with his parents and worked at their service station as a mechanic for the next four years. Although he had perf ormed well at his job, he had experienced difficulty making friends in Dickson and had become very self-co nscious

about be ing dea

f.

In 1985, after the defendant sustained a head i njury in an auto accident and refused medical treatment, Ms. Perry noticed behavioral changes in the defendant. She described him as "pa ranoid" and recalled him say, "Everybody's watching me, looking

at me ... They're laughin g at me." She testified that he w as easily agitated and that his behavior deterior

ated until eventually the Perrys had asked him to stop wor king at the service sta tion. She recalled that over t he next year, the defendant routinely paced the floor for hours at a time w hile yelling and making animal sounds.

In 1987, the Perrys took th e defendant to Middle Tennessee Mental Health Institute and then to the P arthenon Pavilion wher e he remained for several weeks. He was diagnosed as a paranoid schizophrenic. During the following year, the defendant stopped taking his pr escribed medication, became "real violent," and required sedation. Two days after an incident req uiring sedation, the defendant attacked a bank teller and w as readmitted to the Middle Tennes see Mental Health Institute. He was then transferred to Horizon Hospital in Clearwater, Florida, where the hospital staff was trained in American Sign Languag e. The defendant, who remained at Horizon Hos pital for approximately five months, was again diagnosed as a paranoid schizophreni c. During his stay there, the defendant ingested thumbtacks, rocks, and toothpic ks, ultimately requi ring emergency sur gery.5 After the defendant was returned to his home , he required quarterly evaluations at Southridg e, a psychological hos pital in Dickson. He experienced few problems until 1995, when th e defendant became more frequently ag itated even though he consistently received his prescribed medications. At that point, Ms. Perry learned that the defendant was sniffin g glue. He stayed away from home on most nights and returned in an i ntoxicated condition but not smelling of alcohol. She described the defendant as even mor e agitated and more violent during this period. He also stopped communicating with his parents. M s. Perry testified that s he had learned some American Sign Lan guage but that the vict im knew very l ittle.
Ms. Perry recall ed that the defendant would sit i n his truck behind her residence and sniff glue throug hout the night. When she tried to convin ce him to stop, the defendant replied, "It stops the electricity in

my head." Ms. Perry

testified that the defendant claimed to hear v oices that directed him to do things. She realized that the defendant's g lue consumption continued to incr ease over time.
By October of 1995, Ms. Perr y had become increasingly fearful of the defendant. When he acted violently towar d her and the victim, she r eturned him to Parthenon Pavilion for trea tment of the glue addiction. Dur ing his last hospitalization before the shooting, a physician at Parthenon Pavilion changed the de fendant's medication an d released him s ix days later despite the Perrys' objecti ons. Although the defendant was scheduled to attend a drug rehab ilitation program in Memphis especially designed for the hearing impaired, the facility would not al low admission until a neurologist examined a cyst that had been discovered on his brain. Ms. Perry explained that she did not want the defendant at her home because "he wasn't well enoug h ...." The appointment with the n eurologist was sc heduled for the day after the shooting.6 During the week that followed his release from Par thenon Pavilion, the defend ant resum ed the ab use of glu e. Ms. Perr y recalled that on th e "Friday we brought him home ... after he got his clothes unpacked ... [he] bought glue and started sniffing it." At tr ial, she testified that she w as certain that the defendant understood that he was to be admitted to a drug treatment center . She believed that he was willi ng to go. Ms. Perry recalled that on the day of the shooting, the victim had asked the defendant to t ry to stop sniffing gl ue.
Detective Randy Star

key of the Dickson County Sheriff's Department investigated the crime scene at 11:30 P.M. He collected a spent shotgun shell in the living room, another in the hallway, and a third in the defendant's bedroom . He found a .12-gauge single- shot shotgun on the defendant's bed. The g un was empty but had the odor of recently bur ned gun powder. Detecti ve Starkey explai ned that to load a single-shot shotg un, the weapon had to be broken dow n, a shell inserted, and the gun closed. He stated that after the gun is fired, it must be broken down to eject the spent shell and before anot her live shell can be inserted.
After the shooting, officers found a box of .12-gauge live shot

gun shells in the defendant's bedroom, t he same type as the spent shells collected from the living room, hallway, and bedroom. A can of mace was located near the back door of the house near a woman's bedroom shoe. Detective Starkey found a plastic bag containing model gl ue and eight empty tubes of gl ue in the defendant's truck.

At 2:30 A. M., abou t four ho urs afte r the def endant' s arrest, D etective Starkey and Detectiv

e Butts interrogated the defendant at the station house. Detective Butts read the defendant an admonition and waiver of rights and allowed the defendant to read the form. According to the detectives, the defendant i ndicated7 that he understood his rig hts, signed the form, and did not ask for a lawyer. Detective Butts then w

rote questions on one piece o f paper and the defendant wrote answers on another, as foll ows:

Det. Butts: My name is Detectiv e Craig Butts[.] Nex

t to me is Capt. Randy Starkey. Would you read this form stating your Miranda rights? Do you understand your rights[?] Defendant: Yes. Det. Butts: Will you write out a statement as t o what happened? Defendant: I killed m y dad for re ason I get angry. Det. Butts: Will you write it on this form an d tell us what

happened at the house. Why did you get angry[?] Defendant: I killed m y dad for re ason I get angry. Det. Butts: Why[?] Defendant: I lost my control. Det. Butts: What did you do to him (your father)[?] Defendant: Because I don' t like him. Det. Butts: Did you shoot him[?] Defendant: Yes. Det. Butts: With what and how many times[?] Defendant: 3 bullet. Det. Butts: Shotgun or Rifle[?] Defendant: Rifle. Det. Butts: .12 ga. -.20 ga. or .410[?] Defendant: 12 gauge. Det. Butts: What did your father do tonight to make

you angry[?] Defendant: He watched TV. He keep w atch me. Det. Butts: Did you try to hur t your mother[?]8 Defendant: No. Det. Butts: If you shot 3 times, where did the three shots go[?] Defendant: I shot him at couch. Det. Butts: Do you know wher e the 3 shots hit your father[?] Defendant: 3 times. Det. Butts: Where[?] Defendant: [underlined couch] Det. Butts: Did you shoot the couch fir st or your father[?] Defendant: I started to shoot him. Det. Butts: Did you ever plan to kill your father[?] Defendant: [N]o, first time. Det. Butts: What were you doing before you shot y our father[?] Defendant: I took glue. Det. Butts: What did you do with the glue and how [?] Defendant: I sniff get glue with bags. Det. Butts: How much glue did y ou sniff before going into the house[?] Defendant: About 5 or 8. Det. Butts: Tubes if so, please write it behind the 8. Defendant: (circled five) I g et sniff glue then I stop it. Det. Butts: Are you alright[?] Defendant: Yes. Det. Butts: Do you need a doctor[?] Defendant: Yes. Det. Butts: For what[?] Defendant: Stop glue.9 The defendant signed the statement. Detec tive Starkey recal led that the defendant was calm an d appear ed alert a nd coope rative dur ing the int erview.

On cross-examination, Detective Starkey acknowledged that there were no signs of a str

uggle at the Perry residence. He agreed that the defendant had not attempted to conceal the w eapon, shells, or other ev idence of the crime and recalled that the defendant was restrained in the back seat of the patrol car during the collection and preserv ation of evidence. Detectiv e Starkey, who did not

know whether the defendant was given anything to drink or provided an opportunity to use the restroom, was aware that the defendant had been using glue and was aware that he was deaf . He acknowledged th at he considere d trying to find a sign language interpreter t

o assist in intervi ewing the defendant but, because o f the late hour and fees involved, he el ected to proceed without an i nterpreter.

Dr. Donna L. Seger is Assistant Professor of Medicine at Vanderbilt University Medi cal Center and Medical D irector of the Middle Tennessee Poison Control Center. Her s pecialty is toxi cology and she primari ly treats indivi duals who have been exposed to inhalants. Through deposition, Dr. Seger testified that she examined the defendant's medical r ecords from 1987 until January 1996. Based upon the content of the records, Dr . Seger agreed that the defendant s uffered from paranoid schizophrenia. She determined that the def endant had a history of chronic drug dependence, including cocaine and alcohol use and sni ffing model airplane glue.
Dr. Seger testified that model airplane glue contains s olvents and adhesives which, w

hen inhaled, have signific ant effects upon the nervous sys tem. It was her opinion that the ingredients affect a person's ability to think, decrease10 intelligence, cause per

sonality changes, anx

iety, depression and, w hen used chronically, "result in paranoid thinking." Dr. Seger testified that on e who had sniffed glue as long as the defendant ha d would necessarily

suffer permanent and irreversible brai n damage. She also concluded that one who sniffed five to eight tubes of glue would exhibit depression, anxiety, paranoia, an inability to remember, an inability to concentr

ate, personality change s, decreased intelligen ce, and increased fat

igue. It w

as her opini on that the effec ts of glue w

ould be more e

xtreme in one affected with paranoid sch izophrenia. She stated that glue inhalation affects a deaf person's ability to understand what was bei ng communicated, whether w ritten or verbal.
Dr. Seger was uncer tain, however, w

hether the defendant, who had apparen tly sniff ed severa l tubes of glue bef ore shoo ting his f ather, co uld have appreciated the wrongfulnes s of his actions at that time. S he agreed that if the defendant had not been taking his medic ations as prescribed, the effect of g lue on his nervous system, in combination with the pr esence of paranoid schizophren ia, would have been profound. Dr . Seger explained that mos t glue sniffers show no physical manifestations, the primary reason the practice is so popular. It is well documented, however, that c hronic use results in l ong term damage to the central nervous system. Dr

. Seger concluded that if someone h ad sniffed five tubes of glue, that person could appear calm and attentive, because "a lot of sniffing makes you feel very tir

ed and just like sitting ."

Dr. Gillian Blair,a licensed clinical ps ychologist certifie

d to determine compete ncy for tri al in this s tate, me t with the d efenda nt on thre e occasio ns in May, July, and September of 1996 for total of twelve to fourteen hours. She administered psychological ex

aminations with the assi stance of Dr. Laurel Goodric h, a1 Affect is defined as "[a] pattern of observable behaviors that is the expression of a subjectiv

ely exper

ienced feel ing stat

e (emotion). Comm on examples of affect are sadness, el ation, and anger." A flat af fect is a d isturbance i n affect i n which there is an "absence or

near absence of any signs of affec tive expre ssion." Am erican P sychiatric A ssocia tion, Diagnostic and Stati stical Manual of Ment

al Diso rders (DSM-IV) 763 (4th ed. 1994 ). 11 psychologist who

specializes in couns

eling deaf persons. Dr. Bl air also interview ed the defendant's mother and reviewed all the defen dant's medical and psychiatric records. She discovered that there was a history of "significant mental illness" in their family. One uncle c ommitted suicide several years ago for unknown reasons and another uncle had been diagnosed a schizophrenic. She rep orted that every hospital which had treated the defendant had d etermined that the defendant was a paranoid schizophrenic with the possible ex ception of Middle Tennessee Mental Health Institute, which had not made a conclusive diagnosis. Dr. Blair's independent diagnosis of the defendant w as paranoid schizophreni a coupled with a substance abuse disorder.

Dr. Blair testified that schizophrenia is a psy chotic thought disorder and the symptoms must be present for more than six months before a diag nosis can be made. She st

ated that the d efendant prese nts primari ly negative symptom s which include flat affect, 1 an inability to engage in goal directed behav ior, a poverty of speech, dysfunctional personal relationships, an d paranoia, which is a "suspicious feeling ... that people are talking about you or that peop le are against you." A paranoid type sc hizophrenic does not ex hibit disorganized behavior or an inappropriate affect. Dr. Blair testified that the de fendant described the chronic experience of hallucination s. It was her vi ew that for a number of years,he had been "unable to engage in goal directed behavior." She stated that the defendant also has a poverty of speech, which appears frequently in schizophrenics but also could result from his deafness. D r. Blair concluded that the defendant had experienced command hallucina tions, which consist

of voices that tell him to do2 The Global Assessment of Functi oning Scale ( GAS) is a hypotheticalcontinuum of mental health illness that cons iders ps ychologica l, social and occup ational levels of function ing in a patien t. The score of 21 to 30 i ndicates that the patient' s behavior i s "considerabl y infl uenced by del usions or halluci nations or serious i mpairment in communication or j udgment or an inabi lit y to funct

ion in al most all ar eas .... " In comparison, a score of 91 to 100 indicat es superior f

unctioni ng in a broad r ange of activities and a scor

e of 41 to 50 re

flects ser

ious symptoms such as suici dal ideat ion or serious impairment in fu nctioni ng. A score betwee n 1 and 10 warns that the pati ent presents pe rsistent dange r to hims elf or other s or is pers istently unab le to ma intain m inimal pe rsonal hyg iene or co mm its serious suicidal ac ts with a clea r expec tation of de ath. DSM -IV at 32. 12 something, and other symptoms of paranoid schizophrenia "l ong before" he began sniffing glue. She testified that the defe ndant had informed her that the voices told him to shoot his father. She believed that he had ingested rocks an d thumbtacks in 1988 while at Horiz

on Hospital as a result of si milar command hallucinations.

Dr. Blair testified that the defendant was in Parthenon Pav ilion from October 21 to October 27, 1995, and while he was there the psychiatrist changed his medication. Dr. Blai r testified that she thought his discharge from the hospital was premature. At that ti me, his global assessment of functi oning was valued at thirty, 2 which indicated serious impairment in communications or judgment. His discharge notes indicated , "[b]ehavior is consi derably influenced by del usions or hallucinations, or there is serious impairment of judg ment and/or inability to funct ion in almost all areas."

Through an interpreter the defendant communicated to Dr. Blair t hat he took glue as a way

of diminishing the halluci nations that he experienced. She stated that the act of sniffing gl ue was volitional but that the desire of the defendant to rid himself of the hallucinati ons may have been so strong as to overcome the voluntariness of the act. Dr. Blair testified that the defen dant suffered from a severe mental disease or defect, namely,schizophrenia. Based upon all of the information available to her, she con cluded that the defendant was unable to appreciate the wrongfulness of his behav ior the night of the shooting . Dr. Blair, who h ad performed hundreds of forensic evaluations and had testified in over one hundred trials, stated13 that she had found evidence supporting an insanity defe nse in only four cases, including this one.

On cross-examination, D r. Blair acknowledged that while the defendant has schizophrenia, he was nonetheless com petent to stand trial. Dr. Blair stated that the defendant had loved his f ather but that it was possible that he felt resentment because his father had difficulty accepting his son' s impairments and failed to learn sign language so as to improve their level of communication. Dr. Blair conceded the possibility that the defendant ha d shot his father out of anger, as his statement indicated.

Dr. Blair also acknow

ledged that Dr. Farooq ue at Middle Tennessee Mental Health Institute had d iagnosed the defendant in December 1987 as having an adjustment disorder with depressed mood. She was al so aware that one month later, Dr. Farooque had diagnosed the defendant as having schizophrenif orm disorder, which is a precursor to schizophrenia. In March 1998, before his discharge to Horizon Hospital in Florida, Dr. Farooque deferred making a diagnosis of the defendant on the basis of insufficient information.

Dr. Robert A. Brimmer, a psychiatrist board c ertified in psychiatry

and forensics, presented rebuttal proof for the state. After revie wing all of the defendant's medical records, inc luding the summary by Dr. Blair, Dr. Br

immer observed the defendant, interv iewed him with the as

sistance of an interpreter, and provided him with a form questionnaire. Based on the two-hour examination, Dr. Brimmer concluded that the defendant had c ommand hallucinations and had "[s]chizophrenia by history." He considered the possibility that t he defendant had been misdiagnosed and might suffer from a character disorder, "not otherwise14 specified with antisocial and passive-aggressive features." As for the defend ant's substance abuse, Dr. Brimmer agreed that glue sniffing mimics the symptoms of schizophrenia and concluded that glue sniffing would increase his paranoia. He also determined that the defendant could "read, write and communicate in a rational manner." He testified that the defendant di d not suffer from a mental disease or defect but rather had a character disorder and that he was a ble to discern right fr om wrong. As an example of the defendant's ability to appreciate the natu re of his acts, Dr. Brimmer testified that he had asked the defendant, "[if you] w ent to a store and wanted something but didn't have the money to pay for it, would you take it? And [the defend ant] told me, 'N o.'" In Dr. Brimme r's opinion, the act of loading, shooting, and reloading the shotgun indicated that the defe ndant understood the nature of his acts.
On cross-examination, Dr. Brimmer testified that his usual procedure in diagnosing schiz

ophrenia is to listen car efully to the speech of the patient for "word salad," putting odd words together. He

conceded that the procedure w as not helpful in assessing the defendant. He recognized that a fla t affect could be a symptom of the disease or a lear ned behavior and that someone w ho sat motionless and expressionl ess could be schizophreni c. In reviewing the historical diagnoses made by other doct ors, Dr. Brimmer conceded that most had diagnosed paranoid schizophrenia. He also pointed out that Dr. Farooque at Middle Tennessee Mental Health Institute had initially diagnosed schizophrenif orm, which serves as an early dia gnosis of schizop hrenia, and lat er deferred on making a diagnosis. Dr. Brimmer explained that if substance abuse were present, a diagnosis of schizophreniform could be incorrect, but he concede d there was no evidence in the medical records to indi cate that the defendant abused alcohol, c ocaine or inhalants in 1987 or 1988, w hen Dr. Farooque made the diag nosis of15 schizophr

eniform.
It was stipulated that the .12 gauge shingle-s hot shotgun was a gift t o the defendant from his grandfather. The defendant had owned the shotgun for several years. The c

ause of the victim's death w as hemorrhage from a gunshot wound.

I

The defendant challenges the suff iciency of the evidence. He contends that he proved the affirmative defense of insanity by clear and convincing evidence and that the jury ignored the weight

of the evidence. He contends t hat the jury should have found that the defendant's diminished capacity prevented him from forming a knowing mens r ea.
On appeal, of course, the state is entitled to the strongest legitimate view of the evidence a nd all reasonable inferences w hich might be drawn ther efrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the wei ght to be given their testimony, and the reconci liation of conflicts in the proof are matters entruste d to the jury as trier

of fact. Byrge v. State , 575 S.W.2d 292, 295 (T enn. Crim. App. 1978). When the sufficiency of the evidence is challenged, the relevant question is whether , after reviewing the evidence in the lig ht most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a rea sonable doubt. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13 (e).

Second degree murder is defined a s a "knowing kill ing of another." Tenn. Code Ann. § 39-13-210(a)(1). Knowing is a culpable mental state th at is16 defined as follows:

"Knowing" refers to a pers on who acts knowing ly with respect to the conduct or to c ircumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circ umstances exist. A perso n acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to c ause the result. Tenn. Code Ann. § 39-11-302(b).

Regarding the defense of insanity which was amende d in 1995, our Code provides as follows:

(a) It is an affirmativ

e defense to prosecution that, at the time of the commission of the acts co nstituting the offense, the defendant, as a result of a sever e mental disease or defect, was unable to appreciate the nature or wrongfulness of such defendant's acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear

and convincing evidence. (b) As used in this s

ection, "mental disease or defect" does not include any abnormality manifested only by repeated criminal or otherw ise antisocial conduct. (c) No expert w

itness may testify as t

o whether the defendant was or was not insane as set forth in subsection (a). Such ulti mate issue is a matter for the trier of fact alone. Tenn. Code Ann. § 39-11-501.

The defense of diminished capacity, w hile not codified, has been recognized by our supreme court. In State v. Hall , 958 S.W.2d 679 (Te nn. 1997), the court observed that "'di minished capacity' is actually a defendant's present ation of expert, psychiatri c evidence aimed at negati ng the requisite culp able mental state." Id. at 688; see Tenn. Code Ann. § 39-11-201(a)(2 ). While diminished capacity is not an ex

cuse or justification for committing the offense, it contemplates an acquittal of the indicted offense and a conviction for a lesser included offense.17 Hall , 958 S.W.2d at 688.

This court may not reweigh or reevaluate the evidence. The jury rejected claims of insanity and diminished capacity, determining that the defendant was fully capable of forming the mens rea necessary to commit a knowing kil ling. Because there was evi dence to support their determi nation, we must defer to the results reached by the finde rs of fact.

The evidence viewed i n a light most favorable t o the state is sufficient to support a conviction for second degree murder. It is uncontested that the defendant entered the residence, w ent into his bedroom, armed himsel f, and approached the victim w ho was lying on th e couch in the living room. The proof established that the defendant fired his shotgun at the couch, broke do wn the weapon, discharged the spent shell, and reloaded the weapon. W hile the victim pleaded for his life, the defendant shot hi m in the shoulder.

Although the defendant presented proof to s upport insanity and diminished capacity, the jury accredited the ex pert witness for the state who determined that the defendant had a charact er disorder rather than a mental disease or defect and that he was able to appreciate the nature of his conduct at the time of the shooting. In the light most favorable to the state, a rational trier of fact could have concluded that the defendant was aware of his cond uct and the likely results of his conduct. Jackson v. Virginia , 443 U.S. 307 (1979).

II Next, the defendant argues that the trial court erred b

y failing to suppress two separate cu stodial statements. He clai ms that the officer failed to18 advise him of his constitut ional rights before the firs t statement and that the warnings provi ded before the second statement wer e not effectively communicated because the defendant had no sign lang uage interpreter, suffered from a mental disease, and was under the i nfluence of glue. The state argues that any error surrounding the first statement is harmless because the stat ement was not placed in evidence during tri al. While the state concedes that the defendant did not have the benefit of a sign language int erpreter, the state argues that he nonetheless had read, understood, and voluntar ily waived hi s rights so as to all ow introduction of the second statement.

The first written statement, taken by Detective St arkey at 2:30 A.M., was as follows:

Det. Star key: Do you know why you are here? Defendant: Yes. I killed my dad. Det. Star key: Jeff, can you sign your n ame? Defendant: Sure. Det. Star key: Will you? Detective Starkey had not provided the defendant with any warnings befor e taking the statement.

Detective Randy Starkey, who testified that the defendant was in custody within tw

enty minutes of the 9-1-1 call and did not have access to any intoxicants for over four hours, from 10:16 P.M. until 2: 30 A.M., when he was interrogated. He descr ibed the defendant as calm during t he interview. Alt

hough he had never interview

ed a deaf person, Detective Star key testified that he believ ed the defendant could read lips. The detective explained tha t he put the questions in writing so th at he would have a reco rd of the full inte rview.

Craig Butts, formerly

an officer with the Dicks on Police Department,19 had questioned the defendant moments after Det ective Starkey. Officer Butts directed the defendant to read the w aiver of rights form and the n asked in writing whether he understood his r ights. The defendant responded affirmativ ely. Officer Butts testified that the defendan t had appeared "[r]elatively calm" and attentive while making his statement. He dete rmined that the statement of the defendant incl uded a fairly accurate descr

iption of the physical proo f found at the scene.
The defendant, through an interpreter , testified at the suppression hearing that he recalled b eing questioned by Officer Butts and Detective Star key on the evening of his arres t and that he remembered signing the waiver of rig hts form. He claimed that, due to the glue he had inhaled, he did not understand some of his rights. When asked if it was easier for him to communicate with s omeone using American Sign Language or through the written w

ord, he responded: "Written ... Well, both." He acknowledged that he r ead lips "[a] little bit. "
At the suppression hearing , the defendant read and translated the written Miranda

warnings as follows: Warning: Do you understand that yo u have a right to

an attorney before you're questioned by the police? Defendant: Before going to talk and then going to court. Warning: Do you understand that yo u do not have to

talk to the police wit

hout an attorney being present? Defendant: I don't understand. Warning: Do you understand that yo u could stop the

questioning by poli ce at any time until y ou have an attorney present? Defendant: I don't understand. Warning: You have the right to remain silent. Defendant: I will talk with a lawyer. Warning: Anything you say can be used against you in court.20 Defendant: What I want, to talk with a lawyer, just

whatever. Warning: If you cannot afford to hire a law yer, one will be appointed to represent you before any questioning if y

ou wish one. Defendant: If I can't afford a lawyer, then I will not talk

with a lawyer

. And then if I can afford a lawyer, then I will talk to a lawyer. Warning: If you de cide to an swer any ques tions now,

without a lawyer

present, you will

have the right to stop answer

ing at any time. You also have the right to stop answering at any time until you talk to a lawyer. Defendant: I can't decide to talk to a lawyer until a

lawyer's gotten, then we can talk.

On cross-examination, t he defendant testified that he had receiv ed instruction in American S ign Language in school for fourteen years. He stated that he understood the written word and American Sign Language "the same." He conceded that he was somewh at familiar with the cour t system but maintained that he did not fully understand hi s rights because he w as under the influence of glue and the words were bl urry. He stated that he would have understood hi s rights as he read them if he had not taken any glue. The def endant maintained that he could write clearly and on the line because he took his time and the influence of glue had begun to wear off at that point. He admitted that he n ever asked for a lawyer.

Dr. Gillian Blair summarized the defendant's social and medical history and presented her diagnosis of schizophrenia, paranoid type, with substance dependence, all of which was similar to her testimony later at trial. Dr. Blair also explained that at Middle Tennessee Mental Health Instit ute, an examining psychologist Dr. Sheila Peters had found that the defendant w as untestable and "question[ed] whether he could adequately understand the written word." Dr. Blair stated that the defendant was "sig nificantly impaired by virtue of the solvents

that he21 had been inhaling" and she again pointed to his diagnosis of pa ranoid schizophrenia. Dr. Blair, who revi ewed the defendant's second statement to police, testified that she had "grav e concerns" about the defendant's condition when the statement was given, some four hours after the shooting. The defendant told her that he had felt very confused at the time. Dr. Blair al so had "grave concerns about his ability to unders

tand written statements." D r. Blair testified that w hile she was testing the defendant, he had exper ienced difficulty understandi ng the meaning of words, which had su rprised her because he is a high school graduate w ho can read and write. She had learned from the interpreter that assisted in the interview that "in the [American Sign Languag e] translation, the meaning c an be very concrete, a nd the abstract meaning [of a wor d] is not always appar

ent."

On cross-examination, D r. Blair conceded that the q uestions put to the defendant by Detective Butts were not complicate d, that the def endant had ave rage intelligence, and in her report she had noted that he "reads well." She also acknowledged that the defendant's statement was consistent w ith the physical evidence found at the Perry residence. Dr. Blair

recognized that the defendant ha d some familiar

ity wit h the court s

ystem.

Yvonne Fuhrer, an inter preter with the League for the Hearing Impaired, has been using American Sign Language all of her life and is certified as a sign-language inter

preter. She testified that w hile English is a w

ritten and spoken language, American Sig n Language is a conceptual l anguage that is "dependent upon visio n to have t he conte xt of an id ea." Ame rican Sign Language is actual ly a foreign language in the U nited States: "It has its ow n grammatical order and sy ntax ... completely separate from the English language." Ms. Fuhrer testified tha t while most English speaking pe ople learn the language from l istening, the deaf, who do22 not have the benefit of incidental l earning, do not "pick up" phr ases or hear the different contexts in whi ch words can be used. Thus, Ms. Fuhrer concluded that the defendant, after having read the Miranda warnings, woul d not understand them as would a hearing person

.

Ms. Fuhrer testified that mos t deaf people read on a third or fourt h grade level and, although the defendant had graduated from high school, that fact did not convince her that h e would have understood t he Mirandarights as he read them. Ms. Fuhrer stated that only a small percentag e of the deaf can read lips because it requires special training and many hours of study. She described lip reading as only thir

ty-five percent accur

ate. Ms. Fuhrer testified that she interpreted the Mirandawarnings to the defendant at the arraignment and he had repl ied immediately that he wanted an attorney. Ms. Fuhrer said, given her ex

perience with the deaf, that there was a substa ntial possibility that the defendant did not understand the written Mirandawarnings.

In denying the defendant's motion to suppress, the trial court concluded as follows:

[The defendant] is more intellige nt than the normal person that we deal with. Now, he has communicati on difficulties , but intell igence is not the probl em. I make that observation to poi nt out the level of understanding of the rights of a defendant is very low for admissibility, becaus

e if it were any hig her, many of the citizens charged w

ith crimes ... simply

would never understand their rights

. [I]f the accused has sufficient underst anding to comprehend the obligation of an oath a nd is capable of giving a correc

t account of the matters of which he has knowledge, he's competent to be a witness. ... [C]ompetency of a witness and competency to confess [equate with each other]. Therefore, if the accused comprehends that he need not talk, that he could hav e a lawyer, that the statements can be used against him. And if his confession did not involv e official coercion, then he can23 make a valid waiv

er of his rights. I understand the dangers inher ent to taking statements and so forth from persons w ho are deaf. ... The question is: Was the way it w as done sufficient under the law? And the Cour t rules that it is. I have read [the defendant's statement ]. ... [T]he questions were w

ritten out for [the defendant], he read them, and then he wrote out the answers. ... And it is coherent question and answer. Obviously, in w

hatever state [the defendant] w as in that night, he was ab le to comprehend questions and give intelligent

answers. The Court is of the opinion that he was simply capable of understanding these Miran da rights and did understand t hese Miranda rights at the time that they

were show

n to him and he read them.
Our scope of review is limited. The findings of fact made by the trial judge at a hearing on a motion to suppress "will be upheld unless the evidence preponderates otherwise." State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996). Questions about witness credibility and "resolution of conflicts in the evidence are matters entrusted to the trial judge." Id. Testimony presented at tri al may be considered by an appellate court in deciding the pr opriety of the trial cour

t's ruling on a motion to suppress. State v. Henning , 975 S.W.2d 290 (Tenn. 1998). If the "greater weight" of the evidence supports the cour t's ruling, it w

ill be upheld. Id. Yet, this court must conduc t a de novo review

of the trial court's appli cation of law to fact. State v. Bridges , 963 S.W.2d 487 (Tenn. 1997); State v. Yeargan , 958 S.W.2d 626 (Tenn. 1997).

The trial court made no rulin g on the admissibility of the first, unwarned statement. Generally, Miranda warnings must preced e a custodial interrogat ion. Berkemer v. McCarty

, 468 U.S. 420 (1984). The test to be applied to determ ine if an individual is in custody is whether a "reasonable [person] in the suspect's position" would have bel ieved himself or herself to be "in custody." Id. , 468 U.S. at 442; see generally State v. Cooper , 912 S.W.2d 756 (1995).24 In State v. Anderson , 937 S.W.2d 851, 855 (Tenn. 1996),our supreme court held that whether a person is "in custody" depe nds on the totality of the circumstances. Factors which may be consider ed include time, duration, loc ation and character of the intervi ew, the tone and demeanor of the ques tioning officer, the manner in which the suspec t was transported to the location of questioning, the number of law enforcement officials pr esent, limitations or res traints placed on the suspect's movement, interaction between the suspect and th e questioning officer, confrontation by officers with evidence of guilt, and the whether the susp ect is informed that he or she may refuse to answer questions and may end the questioning at any ti me. Id. Here, the defendant's hands and feet were bound. He had been restrained in a patrol car for several hours before being transported to the police station where, still wearing handcuffs, he was interviewed by two officers. He was not free to leave. F rom all of this, we must c onclude that the defendant provided both of the incrimi nating statements while "in custody"; thus, proper Mirandawarnings were required. As no war

nings were provided before the initial statement was elicited, t hat statement should have been suppr essed by the trial court. Any error in failing to suppress the statement was certainly not prejudicial, however, because the unw arned statement was not admitted at trial. Moreover , the defendant does not argue that the first, unwarned confession tainted t he second, warned confession. See State v. Smith , 834 S.W.2d 915 (Te nn. 1992).

A warned confession must meet cons titutional safeguards. Miranda v. Arizona , 384 U.S. 436 (1966). This cou rt must examine the "totality of the circumstances" to ascertai n whether the particular defendant knowingly and voluntarily w

aived his constitutional rights prior to maki ng a confession. State v. Bush , 942 S.W.2d 489, 500 (Tenn. 1997). "The relinquishment of the right must be voluntary in the sens

e that it is the product of a free and deliberate choice rather25 than the product of intimidation, coercion[,] or de ception. Moreover, the waiver must be made with full awarenes s of both the nature of the right bei ng abandoned and the consequences of the decision to abandon it." State v. Stephenson , 878 S.W.2d 530, 544-45 (T enn. 1994) (citi ng Fare v. Michael C. , 442 U.S. 707 (1979); North Carolina v. Butler

, 441 U.S. 369, 374-75 (1979)).Factors relevant i n determining whether a confession is voluntary include (1) the length of time between the arrest and the confession; (2) the occur rence of intervening ev ents between the arrest and confession; (3)

the giv ing of Mirandawarnings; and (4) the purpose and flagrancy of the official misconduct. Brown v. Illinois , 422 U.S. 590, 603-04 (1975); State v. Chandler , 547 S.W.2d 918, 92 0 (Tenn. 1977). The overriding question, however, is whether the behavior of l aw enforcement officials serv ed to overbear the defendant's will to resist. State v. Kelly , 603 S.W.2d 726, 728 (Tenn. 1980); see State v. Howard , 617 S.W.2d 656, 658-59 (Tenn. Crim. App. 1981). With the exception of the initial unw arned confession, there is no ev idence of official misconduct in this record. The defendant was interviewed within hours of his arrest with no remarkable ev

ents intervening. H e appeared coherent and calm and nev er asked fo r an attor ney. He had some fa miliarity wi th the co urt system . Detecti ve Butts read the waiver

of rights form to the defendant and asked the defendant to read it to himself. The defendant read it and indicated that he understood his rights.

The defendant argues that he could not hav e understood his rights or voluntarily or knowingly waived his rights because he suffers from paranoid schizophrenia, was under the influence of glue, and did not have a sign language interpreter. Yet a stat

ement provided by a suspect who is under the influenc e of drugs is admissible s

o long as the statement is co herent. State v. Green , 613 S.W.2d 229, 232-33 (Tenn. Crim. App. 1980). Mental unsoundness will not r ender a confession invalid, so l ong as the evidence demonstr ates that the suspect was26 capable of understanding and w aiving his rig hts. State v. Bell , 690 S.W.2d 879, 882 (Tenn. Crim. App. 1985). "Language difficulties en countered by a defendant are considered in determining if there has been a valid w aiver." State v. Van Tran , 864 S.W.2d 465, 473 (Tenn. 1993).

The circumstances involv ed in this case are troubl esome. This deaf defendant has presented proof of mental illnes s and intoxication. In ad dition, the Mirandawarnings were administ ered without the benefit of a sign language interpreter. These factors must be considered when reviewing the trial court's conclusion that the waiv er of rights was know

ing and voluntary.
Dr. Blair testified that paranoid schizophrenia affected the defendant's ability to reason and compr ehend. Dr. Seger testified that chronic glue sniffing over a long period of time exacer bated paranoia in the defendant and inter fered with the effectiveness of his medications. Nonetheless, the defense experts , who voiced "grave concerns" about his ability to comprehend his rights, were unabl e to say that the defendant had not, in fact,understood h is rights . While there wa s some indication that the defendant had some di fficulty reading the Mirandawarnings and explaining their meani ng, the trial court conc luded that the defendant's mental illness did not affect his abil ity to understand his r ights or voluntari ly waive them.
Apparently, the defendant had sniffed gl ue throughout the day and evening up to the time of the sho oting. Arresting officer s recalled that the defendant was under the influence of gl ue when arrested and that the odor of glue emanating from the defendant's truck was "s trong." Empty tubes of gl ue and a plastic bag of glue were recove red from the truck. The defendant maintained that had it not been for the glue, he would hav e been able to read and understand the Miranda rights.3 Our leg islature ha s enac ted laws th at are pa rticularly protec tive of dea f suspe cts. Tennessee Code Annotated, sect ion 24-1-103( b)(3) mandates a qual ified interpr eter for a deaf suspect prior

to custodi al int

errogati on: In the event

a person who is deaf is arrest

ed and taken int

o custody for any al leged vi olati on of a criminal law of this state, t

he arresti ng officers an d the arresting offi cer's superi ors shallprocure a qual ified interpreter in order to p roperly interro gate su ch dea f person and to interpr et such person' s statements. No st atement taken from such dea f per son befo re an interp reter is pre sen t ma y be ad mis sible in court. At tri al, t he defendant di d not clai m protection under this st atute. Moreover, the application of the statut

e to these ci rcumstances was neither asserted as a grou nd for a new tr ial nor argued as a bas is for relief in the a ppe llate b rief. F ailure on th e par t of the defe nda nt to ra ise an issue on his motion for new tria l requires w aiver. State v. Durham , 614 S.W .2d 815 ( Tenn . Crim. A pp. 1981 ). Issues are waive d when not briefed . Tenn. R . App. P. 27 (a)(7); T enn. Ct. C rim. Ap p. R. 10. 27 He also testified, howev er, that the effect of the glue was "going away" at abo ut 2:30 A.M., when he read the waiver of rights form. His answers were generally responsive and coherent des pite the possibility that, according to Dr. Seger, the defendant's chronic use of glue may have reduced his cognitive abilities. The tr ial court determined that the defendant posse ssed above-average i ntelligence and was able to comprehend questions and provide intelligent answers.

The defendant also argues that he did not f ully understand his Miranda warnings because he had n o sign language inter preter. He concedes that he c an read, write, and read l ips to some extent. He tes tified that he understands the written word and s ign language "the same." The t rial judge, who hear

d all the testimony, ruled that the defendant was capable of understanding and in fact did understand his Mirandarights. In consequenc e, we find that the greater weight of the evidence supports the tr ial court's conclusion s that the defendant's waiv er was knowing and voluntary and that he was not so intoxicated nor mentally unsound as to render the confession inadmiss ible. 3

III

By challenging the constitutionality of port ions of the statute governi ng28 the defense of insanity, the defendant pres ents issues of first impression. See Tenn. Code Ann. § 39-11-501. The def endant argues that subpart (a), which requir es the de

fendant t o prove insanity by c

lear and convin cing pr

oof, unconstitutionally shi

fts the burden of proof to the defendant. He maintai ns that subpart (c), which prohibits an expert w itness from testifying that the defendant was or was not insane, unconst itutionally limits his ability to present a defense. Ultimately, the defendant complains of a de nial of due process. The state's response is twofold: firs t, the United States Supreme Cour t has found constitutional similar statutes placing the burden of proof on the defendant; and second, the defendant lacks standing to challenge subpa rt (c) or, if the de fendant ha s standing, limiting expert tes

timony on the ultimate issue passes constitutional muster

.
When this issue was argued at the pret rial hearing, the tri al court ruled that the statute was constitutional, as follows:

With regard to Section (a) ... I beli eve there are two or three U.S. Supreme Court cas es that have ruled that shifting the burden of provi ng insanity to the defendant does not violate the Unite d States Constitution. I am not aware of any difference in our Tennessee Constitution of 1870 that would requir

e a different ruling. ... Ins anity was not a defense prior to M[']Na[]ghten . And it was created by the House of Lords in the case and has been, I think, abolished in some states. So it's not a Constitutional right one way or

the other. Therefore, the Court doe s not find Section (a) to be unconstitutional. *** You gentlemen know w hat it is to prove a circumstantial case. It means that you can't ask one question. It does not mean that y ou cannot ask sixteen questions and get the same r esults in front of the jury. Simply, circumstantial ly prove, by q uestions asked the witness, "Was he able to do this? Was he able to comprehend that?" and so forth, to conv ince the jury of this final question of whether the defendant co uld appreciate the nature or wrongfulness of his act. It can't be done in one question, but it can be done in several. It does not prohibit this defense.It does not prohibit expert testimony of this defense. It just makes it harder. Therefore, the Court rules that Section (c),29 likewise, is constitutional, and the motion is respectfully denied. At the motion for new trial,the trial court ruled as the thirteenth juror that t he defendant had proved insanity only by a preponderance of the evidence and not by clear and convincing

evidence.
Until 1995, the statutory definition for insanity was as follows: Insanity.--(a) Ins

anity is a defense to prosecution if, at the time of such conduct, as a result of mental disease or defect, the person lacked substanti al capacity either to appreciate the wrongfulnes s of the person's conduct or to conform that conduct to the requi rements of law. (b) As used in this s

ection, "mental disease or defect" does not include any abnormality manifested only by repeated criminal or otherw ise antisocial conduct. Tenn. Code Ann. § 39-11-501 (Repealed 1995 ). Moreover, until 1995, expert witnesses could testi

fy to an ultimate issue, inc luding that of the defendant's mental responsibility. Tenn. R. Evid. 704. In 1995, our l egislature amended the insanity statute in its entirety, as follows:

(a) It is an affirmativ

e defense to prosecution that, at the time of the commission of the acts co nstituting the offense, the defendant, as a result of a sever e mental disease or defect, was unable to appreciate the nature or wrongfulness of such defendant's acts. Mental disease or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence

. (b) As used in this s

ection, "mental disease or defect" does not include any abnormality manifested only by repeated criminal or otherw ise antisocial conduct. (c) No expert witness may testify as to whet her the defendant was or was not insane as set forth in subsection (a) . Such ultimate issue is a matter for the trier of fact alone. Tenn. Code Ann. § 39-11-501 (emphasis add ed). Although Rule 704, Tenn. R. Evid., was not amended to pr eclude expert testimony on the ultimate issue of insanity, the 1996 Advisory Commission Comments r ecognize that such testi mony4 (a) Affi rmative defense. ---It is an affi rmative defense t o the prosecution under any Feder al statute t hat, at the ti me of the commission of the acts constitu ting the offense, the defendant, as a result of a severe mental di sease or defect, was unable to ap preciate t he nature and qual ity or the wrongfulness of

his acts. Mental di sease or defect does not otherwi se constitute a defense. (b) Burden of p roof.---The defendant has the burden of prov ing the def ense of insanity by clear and convincing proof. 18 U.S.C. § 17. 30 has been restricted under Tenn. C ode Ann. § 39-11-501. It is w ell established that a specific provision relating to a particular subject controls and takes precedence over a general prov

ision applicable to a multitude of subjects. State v. Black , 897 S.W.2d 680, 683 (Tenn. 1995).

The United States Supreme Court has ruled that a state may req uire a defendant to prove the defense of insanity beyond a reasonable doubt w ithout resulting in a denial o

f due process under the federal const itution. Leland v. Oregon , 343 U.S. 790 (1952). "It is axiomatic, therefore, that a lesser standard of proof, such as the clear and conv incing standard, may be imposed." United States v. Amos , 803 F.2d 419, 421 (8th Cir. 1986). See also United States v. Freeman , 804 F.2d 1574 (11th Cir. 1986) . In Freeman , the defendant challenged the burden of proving insanity by clear and convincing evidence under the Insanity Defense Reform Act of 1984. The Circuit Co urt held that the rule announced i n Leland compelled a determination that the clear and convincing evidence standard was constitutional. 804 F.2d at 1576. The Insanity Defen se Reform Act of 1984 is similar to the statute chal lenged by the defendant. 4

The defendant cites no authority that would require a diff erent result under the constitution of our stat e. Instead, he argues that the ruling in Leland is called into quest ion by the Suprem e Court's more rec ent holding Cooper v. Oklahoma , 517 U.S. 348, 116 S. Ct. 1373 ( 1996). We disagree. Cooper holds that a defendant may not be required t o prove incompetency to s tand trial under the31 clear and convincing

standard because to do so is "i ncompatible with the dict ates of due process." Cooper , 116 S. Ct. at 1384. The Court r easoned that historic and modern practice as well as the fundamental interest at stak e required a preponderance of the evidence stan dard rather than one of clear and c onvincing evidence for competency deter minations. Cooper , 116 S. Ct. at 1377.
Here, the defendant contends that req uiring him to prove i nsanity by clear and convincing

evidence "violates a fundamental principle of justice w hen ... the defendant showed that more lik ely than not he was ins ane at the time of the crime." We disagree. The Court in Cooper distinguished the nature of the interest involved in prov

ing incompetency from the bur den of proof and procedural burdens required to prove i nsanity. See id. , 116 S. Ct. at 1383 ( citing Patterson v. New York , 432 U.S. 197 (1977)). While the f ormer warrants constitutional protection because it is a fundamental and deeply rooted interest, the latt er is simply legislatively established. Id. We must, therefore, reject the defendant's contention that Cooper requires a different result and, under Leland , we uphold the constituti onality of subpart (a) requiri ng the defendant to prove insani ty by clear and conv

incing evidence.
Next, the defendant challenges subpart (c) of the statute. I n response, the state contends that the defendant has no standing to challenge the statute and that a similar federal rule limiting expert tes timony on the ultimate issue has been declared constitutional. "[ A] person has no standing to c ontest the constitutionality of a statutory provision unless the provision[ ] he claims to be deficient has bee n used to deprive him of his r ights." State v. Purkey , 689 S.W.2d 196, 201 (Tenn. Crim. App. 1984); State v. Vanzant , 659 S.W.2d 816 (Tenn. Crim. App. 1983); State v. Pritchett , 621 S.W.2d 127 (Tenn. 1981). Although Dr. Bl air ultimately determi ned32 that this was a case in which the evidence sup ported an insanity defense, she was not permitted to testify that t he defendant was "insane" at the time o f the offense. In our assessment, the defendant has standi ng.

In his argument that Tenn. Code Ann. § 39-11-501 (c) unconstitutionally res

tricts the defense from presenting evidence to disprove

the mental element of the offense, the defendant relies upo n State v. Phipps , 883 S.W.2d 138 (Tenn. 1994). In Phipps , this court held that a defendant has a constitutional right t

o present evidence regar ding his state of mind at the ti me of the offense. 883 S.W.2d at 148-49. The evidence must be relev ant to a mental disease or defect and demonstrate a l ack of capacity to form the req uired mental state. State v. Hall , 958 S.W.2d 679, 68 9-90 (Tenn. 1997). While th is court recognizes that the defendant h as a constitutional rig ht to present evidence to negate an element of the offense, the presentati on of evidence is also subject to reasonable limitation by the trial court. Phipps , 883 S.W.2d at 149 (citing U.S. Const. Amend. V, VI, XIV; Tenn. C ode Ann. § 39-11-201(a)); State v. Hutchison , 898 S.W.2d 161, 17 2 (Tenn. 1994).

Initially, federal ci rcuit courts have uphel d the constitutionality of the Rule 704(b), Federal Rul es of Evidence, which r estricts expert test

imony as to the ultimate issue of insanity.The Eleventh Circuit de termined that the rule applied equally to the state and d efense and did not prevent the defendant from pr esenting evidence. Freeman , 804 F.2d at 1576; accord United States v. Blumberg , 961 F.2d 787, 789-90 (8th Cir. 1992).In Blumberg , the Eighth Circuit held that Rule 704(b), Fed. R. Evid., does not offend due process or equal protection because the rule does not exclude evidence and be cause the right to present witnesse s, although fundamental, is also limited: "C ongress amended Rule 704(b) 'to eliminate the33 confusing spectacle of competing expert witnesses [giving] directly contradictory conclusions [about] the ulti mate legal issue to be found by the trier of fact.'" Id. at 790 (quoting S.Rep. No. 225, 98th Cong., Ist. Sess. 230, reprinted in 1984 U.S.C.C.A.N. 3182, 3412) ( alterations in origi nal).

Second, this court must constr ue subpart (c) narrow

ly because of the interests at stake. Althoug h subpart (c) precludes an expert from testifying that the defendant was, in fact, legally "insane" at the time of the commiss ion of the offense, the expert may testify

that the defendant suffered from a severe mental disease or defect. The expert may also s tate whether the defendant could hav e appreciated the nature or wrongfulness of his conduct at the time of the offense. Subpart (c), however, does prev

ent the expert from stating that the severe mental diseas e or defect operated to prevent the defendant from appreciating the nature or wrongfulness of his conduct . In that regard, the jur y must render the ultimate determination as to the effect of mental dise ase on the defendant's understanding of his conduct at the time of the offense.

In summary, the clear and co nvincing standard does not deprive the defendant of due process. Moreover , the provision prohibiting expert testimony on the ultimate issue of insanity does not deny the defendant his right to present a defense.
Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Presiding Judge34 CONCUR:

_________________________________ John H. Peay, Jud ge

_________________________________ James Curwood W itt, Jr., Judge