1 Th is case was h eard as part of t he Apri l 10, 2003, S. C.A.L. E.S. ( S upreme C ourt A dvancing L egal E ducat ion for S tudent s) project

in Dyers burg, Dyer

County, Tennessee. 

### IN THE SUPREME COURT OF TENNESS EE

AT JACKSON April 10, 2003 Session Heard at Dyer sburg 1



### STATE OF TENN ESSEE v. CHRISTOP HER M. FLAKE

Appeal by pe rmissio n from the Court of Cr

iminal App eals Criminal Court for Shelby County Nos. 97-09254 & 97-09255 Bernie Weinman, Judge

No. W2001-00568-SC-R11-CD - Filed August 5, 2003

The defendant, Christopher Flake, was indicted by the Shelby

County Grand Jury

on two counts of premedi tate d first degree murder for the shooting deaths of Mike Fultz and Fred Bizot. The fa ct s surrounding the shootings were not contested at trial. Instead, the de fense focused upon

establishing the affirmative defense of insanity

. See Tenn. Code Ann. § 39-11 -501. The jury rejected the insanity defense, however, and found the def endant guilty on both counts of pre meditated first degree murder. The def

endant w as sente

nced to c onsecuti ve sente nces of l ife imp risonment without the possibility

of parole. The trial court entered a judgment in ac cordancewith the jury’s verdict, and the defenda

nt appea led, asse rting, a mong othe

r things
, that the insanity defense had been established by clear and convincing evidence and that the jury had erred in rejecting it. The Court of Criminal Appeals agreed with the defendant, modified the ve rdict to not guilty by

reas on of i nsanity, and

reman ded the case to the trial court for further proc eedings in accordance with Tennessee Code Annotatedsection 33-7-303. The State filed an application for permission to appeal arguing that the intermediate appellate court had erre d by rever sing the jury’ s verdict.

We granted the State ’s applic ation to c onsider t his case in light of State v. Flake , 88 S.W.3d 540, 542 (Tenn. 2002) (“Flake I”), ren der ed a fte r th e Co urt of C rim in al A ppe als ’ de cis io n i n t hi s ca se. In Flake I , this Court unanimously held that “an appellate c ourt should reverse a jury verdict rejecting the insanity

defense only if, afte r viewing the evide nce in the light most

favora ble to the State, the appella te court concludes that

no reasonable trier of fact could have failed to find that the defendant’s insanity at the time

of committing the offense was established by clear and convincing evidence.” After reviewing the evidence

in this record in the light most favorable to the State, a majority

of this Courtis unable to

conclude that no re asonable

juror could have f

ail ed to find that the defendant’s insanity at the time of

committing the offenses was established by c lear and convincing evidence. Ac co rd in gl y, that

portion of the judgment of the Court of Criminal Appeals modify ing the verdict2 Insanity was the primary i ssue at tr ial as wel l. In opening s tate ments def ense couns el i nformed the jury “[t] his is not a case of

who, caus e we submit

to you on t

his j ourney t

hat you’re a bou t to emb ark up on as juror s in this case , it will be shown t o you beyond a re asonable doubt as to wh o is re sponsibl e.”

-2- to not guilt

y by reason of

insanity is reversed. A s to the defendant’s claim that the trialcourt erred in denying

his motion to suppress, the judgment of the Court of Criminal Appeals is affirmed. The judgment of the trial court is reinstated.

Tenn. R. App.P. 11; J

udgment of the Cour

t of Crim inal Appeals

Revers ed in Par

t and Affirmed in Part; Judgment of the Trial Court Reinstated

F RANK F. D ROWOT A , II

I, C.J., delivered the opinion of the court, in which J ANICE M. H OLDER and W ILLI AM M. B ARKER , JJ., joined.

E. R IL EY A NDERSON filed a dissenting opinion, in which A DOLPHO A. B IRCH , J R ., J., joined.

A DOLPHO A. B IRCH , J R ., J., filed a dissenting opinion.

Paul G. Summers , Attorne y General and Repo rter; Mic hael E. Mo ore, Solic itor Gene ral; Kim R. Helper, As si st an t A tt or ne y G ener al; Wi lliam L. Gibbons, District Attorney General; Thomas D. Hendersonand John W. Campbell, Assistant District Attorneys Gene ral, for the appellant, State of Tennessee.

Leslie I . Ballin, Memphis, Tennessee, and Steven E. Fare se, Ashland, Mississippi, for the appellee, Christopher M. Flake.

OPINION

Facts As stated, the primary issue in this appe al is whether the jury errone ously

rejected the insa

nity defense. 2 In determining a de fendant’s sanity, juror s may consider the fac ts surrou

nding the crime

as we ll as the te stimony of lay and exper

t witnesse s; theref

ore, the proof of fered a t trial i s summarized in detail hereafter.

On Mar ch 19, 199 7, the def endant, t wenty -five-y

ear-ol d Christoph

er Flak e, applie d t o purchas e a Jenning s Model J-25 automatic pistol at G

uns and Am

mo in Memphis, Tenness ee. State law mandated a background chec k and a fifteen-day

waiting period. The defendant completed the required paperwork, providing background information that indicated he was not addic ted to drugs

or alcohol a

nd had never bee

n hospital

ized or tre ated for

mental i llness. T he application was processed; the retailer received the Sheriff’ s Department clearance for the defendant’s application; and on April

4, 1997, the day on which the mandatory wa

iting periodexpired, the defendant returned
to Guns and A

mmo and re

trieved the wea pon. The d

efenda nt compl eted another for m, and in-3-

response to specif

ic questions , again indicated that he had not used drug s and had not been committed to amental institution. The next day, Saturday , April 5, 1997, the defendant committed these mur ders.

The defendant was a friend and part- time employee of the first v ictim, thir

ty- one-y ear-ol d Mike Fultz. Angela Fultz, the victim’s wife, had no knowledge of animosity between her

husband and the defendant. Thedefendant was one of the last names she g ave the polic e as possi ble suspe cts. She said her husband was kind to the defenda nt, explaining that the victim hired Flake, often gave him rides t

o work, a nd occa sionally

socialize d with the d

efenda nt.

Mike and Angela Fultz spent the day at their ho me on Ap ri l 5 , 1 99 7. At ap pr ox im at el y 7 p.m., Angela

Fultz took a bath in the back of the house and left the television on in the adjoining bedroom. Afterwards, she called f or her hu sband to he

lp with the laundry. She looked f or him when he didnot respond and found her husband in the gara ge ly ing unconscious in a pool of blood. She calledfor emergency

assistance, b eliev ing he had fallen and injured his head. The medical technicians discover

ed that Mik

e Fultz ha

d been sh ot five ti mes. Arri ving on the scene at approxima

tely 7:55 p.m., Officer Jason Pagenkopf of the Shelby County Sheriff’s Depa

rtment found five .25 caliber shell casings inside the Fultzes’ g arage.

Prior to the shooting, Anthony Turne r, a neighbor o f th e Fultzes, noticed a man in an unfam il iar

car parked near his residenc e. When the car remained in the same location for approxima

tely thirty minutes, Turner dec ided to appr oach the car and ask the man’s purpose. However, as Turner approac h ed, the car pulled away and parked in front of the Fultzes’ home. Turner returne d to his home , believi ng the ma n in the ca

r knew the Fultz es. A fter t he sho otin g, Turner identified the car he had seen as that owned by the defendant

and identified the defendant as the driver of the car. Another neig hbor, Bernard L

eo Miller, was working in his garage that evening when he heard

what he believed to be five or six fireworks shots. A short time later, Miller saw a light-colored car with metallic paint and tinted windows drive awa y from the F

ultzes’ house.

That same evening, between 7:55 and 8 p.m ., the sec ond victim, seventy- y ear-old Fred Bizot, was shot

in the parking lot of the Church of the Holy Apostle in

Memphis. B izot regularly attendedthe 8 p.m. Alcoholics Anonymous (“A.A .”) meeting at that location. Testimony indicated that Bizot had been activein A.A. f or appro ximately

sevente en y ears and that he w as partic ularly helpful and friendly towar d younge r members. At approximately 7:55 p.m., Rober t Wil ford G ragg

was walking through the parking lot of the church when he noticed Bizot “warmly ” greet another individua l, but Gragg did not turn to look at this individual. Just as he was entering the church, Gragg hea rd what he thought was a car bac kfire, and turning, he saw a “ra ckety” c ar go by

th e church. Some ten minutes after the meeting began, a nother attendee walked in the back door and said “Fred was laid o

ut on the g

round outs id e.” Bi zot was unc onscious a nd ly ing in the grass betweenthe parking lot and the church. Medical personnel discovered that Bizot had been shot once in the che st.3 Detective Scallions f ound a Feb ruary 2 3, 19 96 p rescrip tion bo ttle for twice -daily Zolo ft, contain ing twen ty-six capsules , an Octob er 30, 19 96 p rescription bo ttle for once-daily Cylert containing thirty-five tablets, a November 13, 1996 presc ription bottle for three- daily Cylert containing twen ty -ei ghttabl ets , an d a November 15, 1996 pres cri pti on bottle for once -daily Zoloft containing 12 9 tablets.

-4- The ne xt day, Sunday , April 6, 1997, Turner Carpenter, a pastoral counse lor at Central Church in Memphis was shot. However, Carpenter survived the shooting and provided information
to the police that enabled them to identify the defendant as his assailant. Flake I , 88 S.W.3d at 543. Acting on this information, Shelby County Sheriff’s Department Officer Robert Brandon Lampley and another

officer proceeded to the residence the def endant shared with his parents in Germantown. About thirty minutes later, the defe ndant ar rived and exited his vehicle. With guns drawn, Officer Lampley and another officer walked towar d the defendant, and

one officer yelled, “Christopher.” The defendant stopped, and as the officer approached, a man, w ho Officer La

mpley later lea

rned was the defendant's father, walke d out of the house and spoke to the defendant. Officer Lampley holsteredhis gun, and after conducting a pat-down search, the of ficers handcuffed the defe ndant and placed him inside the patrol car. Officer Lampley testified that the de fendant cooperated but

showed no emotion

during h is arres t.

After ve rbally advising the defendant of his constitutional rights, Detective Johnny Brown

as ked the d efendant if he knew why the officers were there. The defendant responded, “y es.” Detecti ve Brown then ask ed if the weapon was in his vehicle, and the defendant again responded, “yes.”In response to further que stioning, the defenda nt advise d that the

weapon w as in

the glove compart ment. Detective Brown then read a c onsent to search form to the defendant, and the defendant executed the form, which was witnessed by two other officers. Fro m the glove compartment

offic ers sei zed a l oaded Jenn ings automatic .25 caliber pistol, and they also recovered

a shell casing from

the right rear

seat of the vehicle. When Detective Brown a sked if he had attended

an A.A. meeting on Hickory Hill the previous evening, the defendant wasunsure of the location, but when Detective Brown mentioned the Church of the Holy Apostle, the defendant indicated

that he had attend ed the meeting. When asked, “Did y ou get in an altercation there,” the de fendant responded, “yes.” A

nd, when asked, “What happened?” the defendant responded, “I shot the guy .” Detective Brown said the defenda nt looked “tired” and showed no emotion.

Detective Eddie Scallions of t he Shelby County

Sheriff’s Department investigated the shooting s. Detective Scallions executed a search warrant for the residence the defenda nt share d with his par ent s. In the defendant ’s bedroom Detective Scallions found an empty box of .22 caliber cartrid ges, several live .22 caliber rou nds, a nd a box for a Jennings Model J.25 pistol, which

co nt ainedthe Guns and Ammo receipt. Detective Scallions also found prescr iption bottles belonging to thedefenda

nt which c ontained

Zoloft, Prozac, a

nd Cylert. Some

of the prescriptions date d to more than one yea r before the shootings, but, based on the contents of ea ch bottle, the defendant had not regularly taken the medication. 3

Dr. O.C. Smith, head of th e foren sic patho logy division a

t the Unive

rsity of Tenne ssee in Memphis, performed

both autopsies and testified about the victims’ injuries. Dr. Smith testified that-5-

Fultz’s death was caused by multiple gunshot wounds to his chest and back, which struck his lungs, heart, liver, and diaphragm, causing a great deal of bleeding

into his chest cavity. Five bullets we re recovered from Fultz’s body. Dr. Smith testifed that Bizot’s death resulted from a single gunshot wound to his chest which traveled from left to right, striking his aorta, lung, and diaphra gm, causing a great deal

of blood loss which interfe red with h

is breath ing. One bullet wa s recove

red fro m his bo dy. According to Dr. Smith, neither victim lived longer than four to five minutes after b eing shot. Steve Scott, with

the fire arms iden

tificatio n unit

of the Tennessee Bureau of I nvestigation (“TBI”), testified that ballistics tests revealed that thebullets recovered from the victims’ bodies were fired from the gun seized from the defendant’s ca r.
The prosecution offered

no further

proof; ho wever, the defe nse call ed sever

al witnes ses in support of the affirmative defense of insanity . Michael Todd Musso, the defendant’s co-worker at Cooper Moving Company, te stified that he had worked with the defendant for over oneyear pr

ior
to these shootings. Musso characterized the defendant as “just kind of out there .” Musso had previous ly

complained about the defendant’s poor work perf ormance; however, on the day of these shooting s, Musso described the defendant’s work performance as “really

bad.” Musso stated that the defendant appeared unusually agitated and that he stopped to smoke five to seven times in the customer’s presence, which was strange since

Musso and F

lake we re being paid by the hour. Musso also recalled that

the defe ndant wa s particu

larly untalkat ive, spea king only when he needed a tool and when he borrowed money for lunch. Musso remembered that the defendant ate ver y little food after borrowing the money to purchase it and instead tore his hamburger into small piece s. At the end of th e d ay, Musso again complained about the defendant’s poor work performa nce and informed their supervisor that

he would not work with the defendant again. When Musso left, the defenda nt was waiting outside their supervisor’s office.

Testifying

next for the defense was the defendant’s fa ther, James R. F lake (“Mr. Flake”), who g raduat ed from law school in 1969 and has been a special ag ent with the Federal Bureau of Investigation

(“FBI ”) since 1977. Mr. Flake recounted that at ag e three, the defendant experienced serious medical problems which required the removal of a kidne y and limited to some ex tent the defendant’s act ivities. While Mr. Flake was reluctant to describe the defenda nt as “babied,” he testified that both parents werevery conc er ned abou t the def endant be cause of their fe ar that h

is remaining healthy kidney

would be damaged. Mr. Flake said the de fendant was an

exceptional child, described as a “leader” by

his teachers, until he began having e motional problems at

age eleven or twel ve. Mr. Flake said the defendant then beca me a “follower,” talked very little, and had few friends

. The defendant’s academ ic performance d eclined , and he b egan h aving d isciplina ry problems at school.

During his freshman ye ar of high school, the defendant and his father consulted a chur ch counselor, but the counselor i ndicate d that he w as not qua lified to addressthe defe

ndant’s p roblems and suggested the defendant c onsult a psychiatrist or psy chologist. Mr. Flak e followed the counselor’s advice and

consulted a psycholog

ist, Dr. RichardLuscomb, who treated the def endant for three to four y ear s . Mr. Flake and his wife attended the treatment se ssions as well. The defendant began drinking heavily

during this time and became very depressed, stay

ing in be d a lot,-6-

and his academic performance continued to decline. The defendant was hospitalized for a sixty-day period in 1988 after he came home drunk from his part-time job. After the defendant’s relea se, Mr. Flake, his wife, and the defendant, attended A.A. meeting s and other similar meetings six nights per week, but the defendant’s condition did not improve. In 1989, the defendant voluntarily re-entered the hospital f

or anothe r sixty -day

period. A

fter be ing discharge d, the def

endant a nd his par

ents attendedA.A. meetings and a support group at the defendant’s high school for students with alcohol and dr ug de pe nd en cy p ro bl em s, bu t h is co nd it io n d et er io ra te d. Th e d ef en da nt wa s a ng ry, frustrated, and dep res sed . In 1990, as a high school senior, he aga in voluntarily entered the

hospital. He was treated by t hree dif ferent mental he alth prof

essional s, but Mr. F

lake saw no improve

ment.

After gradu ating f

rom high school, the defendant enrolled at Northwest Mississippi Junior College, but dropped out afte r one sem

ester. Accordin g to Mr. F lake, th e defen dant became frustrated, angry , and depressed because of his po or acade mic performance. The defenda nt then enrolledat the University of Te nnessee at Martin (“UT-Martin”). He shar ed a room with another young man who also attended A.A. One of Mr. Flake’ s friends, a re tired FBI age nt, taught in the criminal justice program at UT-Martin, so the defendant enrolled in that program. Ac cording to Mr. Flake, the defe

ndant did “ fairly

well, academically ” at UT-Martin, but he did not like the town and

came ho me on we ek en ds . H e w as ve ry up se t t ha t h e w as no t a cc ep te d i nt o a pa rt ic ul ar fr at er ni ty. Alth ough the defendant was depressed and ang ry to the point that he larg ely remaine d in bed o n weekends, he continued to regular ly attend A.A. mee tings while he attended UT-Martin, from August 1991 to May 1993.

After leaving UT-Martin, the defendant enr olled at Shelby State C ommunity College a nd attendedfrom 1993 to 1995. However, he perform ed poorly, managing only a 1.8 grade point average before dropping out of Shelby State. During this time, the defendant was under the care

of

a psychiatrist, Dr. Melvin Goldin. Howeve r, Mr. Flake testified that he continued to be depressed

a nd reserved. The defendant also made comments such as “my he ad’s messed up,” “my mind’s blank,” and “I don’t know who I am,” indi cating

that he ha

d not known

“who I am” since moving from Baltimore to Memphis as a y oung child.

In 1995, the defendant

began treatment with Dr. Janet Johnson at Lakeside Hospital, but Mr. Flake testified that by this time the defenda nt had no confi dence th at doctor s or medic ation could help him. In the fall of 1996, the defendant cut himself off from every one, refusing to take telephone calls and stating that his father was the only person he could trust. He was fired from one job f or fighting with aco-worker and lost another job because, a fter three weeks, he failed to lear n the menu. During this time, the defendant was enrolled in six courses at the University of Memphis, three of these criminal justice courses, but he passe d only

two courses and withdrew from the remaining f our

courses

. During this time, the defendant’s academic skills seemed to disappear . Mr. Flake compared the defendant’s handwriting to that of an eleme ntary school student.

Mr. Flake said the defendant’s behavior became increasing ly bizarre in th e m on th s a nd da ys leading up to the shootings. For example, a few months before the shootings, the defendant told Mr. Flake that he did not trust his longtime A.A. sponsor and believed that he was running drugs from-7-

Mexico. The defendant also expressed fear that another A.A. member was planning to beat him to death with a baseball bat. At

about this same time, Mr. Flake discovered a piece of paper on which the defend ant had scribbled, “Hazel Goodall, the first woman to hit me.” Hazel Goodall was the defendant’s elementary

school principal, at least ten y ears earlier.

Several days later, the

defendant informed Mr. Flake that he had caused

a Florid a plane c

rash because he had traveled to Florida two y ears earlier. A few day s later, the defendant remarked that he h ad seen a former classmate at a service sta tion and then whispered, “Buchanani, has the answer.” When asked to ex plain , the d efenda nt cla imed t hat Buc hanan i had s aid th at ano ther h igh school student and an elementary school teacher had “bad-mouthed” him, there by prevent ing him from being elected the m ost pop ular student in the school. After say ing, “[t]he answer is getting closer, I’m getting

closer to the a nswer,” the defendant gave his father the former classmate’s business card and emphasized the importance of his father keeping the card.

The def endant a lso beca me convinced that

a couple he

had moved

from Nor

th Carolin a to Memphis had take

n the truc k belong ing to one

of his A.A . friend s who had m oved fro m Memphis
to North Carolina. After mentioning that the coupl e and his f

riend ha d similar tr

ucks, the defendant commentedthat “some

thing wa s wrong ” and ask ed Mr. Flake to keep some paperwork from the moving company. Ac cording to Mr. Flake, having a conversation with the defendant was ve r y difficult.

In March of 1997, the defendant told his father that he knew who was respons ibl e for the Oklahoma

City bombing, the 1993 World Trade Center bombing, an d the Pan America airline bomb ing. In explaining why he did not ask the defendant to disclose the identity of the re sponsible party , Mr. Fla

ke state d: “I

was afr aid to ask him. I wa

nted the s pecialis t that he w as seein g to ask him who it was because I

felt like that she would the n know how

to deal wi

th his answ er.” Als o in Marchof 1997, the defendant drove bare-f ooted, in a thunderstorm, to a conveniencemarket during the middle of

the night, took a pack of cigare ttes from the shelf, waved to the clerk, smiled, walked out without paying for

the cigarettes, and

drove away . When the police arrived at the defendant’s hometo investigate the theft, Mr. Flake explained that the defend ant was unde r the care of a psy chiatris t. The police indicated that no charges would be brought if the defendant paid for the cigar ettes, so Mr. Flake drove the defendant bac k to the market and i nsisted that he pay for the cigar ettes. The defendant was very angry and had no remorse for the incident, instead insisting that he had been smoking for a long time, and tha t “they” owed him the cigarettes.

As a resul t of th is bi zarre behav ior, M r. Flak e arran ge d for the defendant to meet with Dr. Janet Johnson on April 1, just four days before these shootings. On April 2, Mr. Flake received a callfrom Dr. John son, who explained that she had been telephoned by a man who had seen the defendant place an envelope in his mailbox. The envelope contained samples of the pres cription medication Prozac that

Dr. Johnson had given the defendant during their mee ting th e p re vi ou s d ay. When confronted, the defendant informed his father that he hadseen the man working under the hood of a truc

k and beli eved tha

t he was in

trouble and needed the medicine. About this same time, the defendant also set off a fire alar m at the University of Memphis, and w hen aske d about thi s-8-

incident, he explained that the professor had changed the c lass assignment, that the class had been in chaos, and that triggering the f ire alarm had

seemed to be the appropriate action. When Mr. Flake askedthe d efenda

nt what wa s causing

him to do suc

h strang e things , the def

endant lo oked at him for ten seconds or more before re ply ing that

th e opening of the new Wolfchase Galler ia Mall had caused his strange behavior. Mr. Flake testified tha t he was “petrified” by

the look in

the defendant’s ey es. Believing that h

is son had “ lost

his mind,” Mr. Flake scheduled another appointment with Dr. Johnson for April 3, 1997. At this appointment, both Mr. Flake and Dr. Johnson tried to persuade the de fe nd an t t o v ol un ta ri ly c ommit h imself, bu t he ref used, say ing “the y” had neve

r helped him be fo re an d h e b el ie ve d e ve ryt hi ng wa s o ka y.

Mr

. Flake r

ecalle d that on the day

of the sho otings, t

he defe ndant lef t at his usu al time t o attend the A.A. meeting and returned home at a pproximately 11:00 p.m. Upon hearing him return, Mr. Flake a sked if every

thing wa s alright, and the defendant responded “y es.” The defendant

came downstairs the next day, hugg ed and kissedhis mother, ate breakfast, worked on his car, took his dog to the park, grilled outsidewith his family, and made plans to watc h a movie later that night. The defend ant left at a pproximate

ly 5 :30 p.m., a

nd told his f

ather th at he wa s going

to a me eting a t Central Church. Mr. Flake descr i bed the de

fendant ’s demea

nor as “[p ]erfect

ly, fine. Cam

e downstairs, hugged and kissed his mother, that’s it, just a reg ular day.”

After receiving a te

lephone c all at app

roximately

6:20 p.m. from

an unknown person at the Shelby Coun ty Sherif f’s Dep artme nt adv isin g him th at the defend ant wa s a sus pect i n a sho otin g, Mr. Flake looked in the defendant’s room and saw what he thought c ould be evidence. He then returned to the kitchen without disturbing the evidence and waited for the defendant to arrive. He met the defe ndant outs ide and a

dvised him

to cooper

ate with t he police office rs and allow them to handcuff him. Mr. Flake said the defendant had a “blank look” in his eyes a nd on his face and was “unmoved

” during the arr est – not tr

embling or upset.

On cross-examination Mr. Flake acknowledged that the defendant had been drinking alcohol on and off since age twelve, whe n his emotional problems reportedly began. When the defendant

came home intoxicated atage fifteen, he attempted to strike his fathe r, andth e d ef

en da nt ’s fi rs t s ix tyday hospitaliza

tion came after th is episode. At age

eighte en or nine

teen, the defenda nt phy sically attacked his mother

and was f

orced to move out of

the famil y r esidenc e for a t

ime. Mr. F

lake als o acknowledged

that the d efenda nt had a g ambling

problem, losing approximately $1500 in a ca sino
at one po int, which resul ted in Mr. Fl ake ter minat ing t he defendant’s weekly allowance. Furthermore, Mr. Flake admitted that the defendant had not been hone st abouthis alcohol and drug problems in the past, and he conce ded that the defendant had initially lied about the stolen cigar ettes, maintaining that the market clerk had give n them to him. Mr. Flak e said he knew the defendant had beenconsi derin g purch asing a gun, but he believed the defendant had take n his advice and abandoned theidea. Mr. Flake further acknowle dged that the defendant had fired g uns at FBI picnics when he was very young, tha

tthe FBI tea

ches agents to aim for the “cente r of mass” – the torso or chest area of the body – when fir

ing a we apon, an d that the victims in th

is case were shot in that ar ea of the ir bodies

.4 For thi s shooti ng, t he defendant

was convi cted of a ttempt ed volun tary ma nslaug hter. See Flake I , 88 S.W.3d at 540.

-9- As to the defendant’s mental state, Mr. Flake ag reed that the defendant was “not all that depressed” on April 6, 1997, the day af ter these shoot ing s, describing it as a “good day ” for the defenda nt. Mr. Flake admitted that the defendant’s treating physician at the time, Dr. Johnson, believedthat he was analcoholic and a drug addict. Mr. Flake further testified that the defenda nt had told him he was no longer going to work fo

r Mike Fu ltz becau se Fultz ha

d sent him to

a house guarded by four or f

ive dogs and because Fultz sank boats in the Gulf of Mexico to collect the insurance proceeds. Finally , Mr. Flake testified that he had attended more than half of the defendant’s treatment

sessions, that the defendant had signed waivers a llowing him to have access to the defendant’s psychologic al records, and that the defendant had never reported he aring voices until April 9, 1997, three day s after his arrest for these crimes. Mr. F lake a ckn owledged that the report was given only

after hi s wife as k ed the defendant if he ever hea rd voices, to which the defendant responded, “y es, they told me to shoot the people.” When Mrs. Flake asked how long he had been hearing the voices, the de fendant replied, “since I

was in treatment.”

Testifying

next for the defense was Turner Carpenter
, who was introduced to the defendant by the pastor of his church, Central Church. Carpenter’ s pas tor described the defendant as an alcoholi c who had not drank i n three ye ars but had been unable to obtain serenity . Carpenter, a pastoral counselor at the Central Church responsible for an outrea ch p rogra m f or addictions and depend encies, agreed to meet with the defenda nt. After the defendant made, but failed to kee p , several appointments, Carpenter suggested that the defendant attend thegroup d epend ency meeti ngs until a workable schedule for individual sessions could be arranged. Shortly before 6 p.m. on Apr

il 6, 1997, one

day after F ultz and Bizot

were shot, the defendant unexpectedly arrived at Carpenter’s office and asked to meet with him. Carpenter agree d to meet with the defendant, but asked the defendant to wait a short time until Carpenter concluded his meeting with another parishioner. The defendant agreed, but appea

red ang ry . Carpen

ter resu med his mee

ting, but just a few minutes later, he heard th

e door in t

he outer office open and

went out to

s ee who had arrived. Seeing the defenda nt, Carpente

r nodded and turned to go back into his office. However, the defenda nt “leaped
outfrom the couch” and “screame d my name out, just as loud as he cou ld scream it.” Carpenter described the defendant, who was pointing a gun a thim, as “r

eally angry .” The defendant fired the gun once, striking Carpenter in the hand. The bullet traveled throug h Carpenter’s hand and

into his lung, liver, a

nd diaphr agm. Ca rpenter survived th e shoo ting a nd was able to give the police information leading to the defendant’s arrest. Carpenter’s only explanation for

the shooting was that the defendant became ang ry that Carpente

r was unable to meet with him when he arrived. 4

Dr. Melvin Goldin, a board certified psych iatrist, treated the defe ndant from February of 1991
to February

of 1995, meeting with the defendant on seventeen or eighteen times occasions during this period. Dr. Goldin testified that the d efenda nt had bee n under th e care of Dr. Ric

hard L uscomb since January of 1988, and that he r emained under thecare of a psy chologist from 1991 to 1995. Dr. Goldin noted that

the defendant was hospitalized in 1988 due to “growing sa dness, irritability, .

. . and some alc ohol probl ems,” and again in 1989 and 19 90 due to suicidal thoughts. At the initial-10-

meeting with Dr. Goldin, the defenda nt and his father reported that the defendant wa s having a great de al of trouble with obsessions and that he was hostile toward his mother, swinging at her a nd breaking things. Also at this initial interview, the defend an t reported having homicida

l thought s towardpe op le wh o f

ru st ra te d h im . A s a n e xa mp le , t he de fe nd an t r ef er re d t o a n i nc id en t a fe w d ays earlier where a wo man h onked her horn at him while he was driving. Dr. Goldin diag nosed the defendant with obsessive -co mpulsive d isorder . During

his four y

ears of treatme nt, Dr. Go ldin prescribed

a variety of

medications for the defendan t, including Anafranil, Clomipramine, Imipramine, Palamor, Nortriptyline, Norpr amine, Proz ac, a nd lithium, in an attempt to find the medication that work

ed best for the defendant. Dr. Goldin testified that the defendant’s condition fluctuatedbut that he

experienced some

improveme

nt, par ticularl

y a fter he prescr ibed Ana franil. Dr. Goldin recalled that at his last session, Mr. Flake thought the medication was not working and should be discontinued, but the defendant disagreed, so the medic ation was not discontinued. Dr. Goldin testified that the defendant was not functioning very well at their last meeting.

On cross-e

xamination, Dr. Goldin admitted that he r eferr ed the defendant

to Dr. Johnson because she specialized in treating addictions and dependencies; she wa s “tough”; and the defendant needed a change of pace. D

r. Goldin also acknowledged that the defenda ntdid notreport auditory hallucinat ions dur ing his f our y ears of treatme nt, and he

did not dia

gnose th e defendant with schizophr enia during that time. According to Dr. Goldin, the defe ndan t’s compulsio ns larg ely related to his appearance. Dr. Goldin had not reviewe d any rec ords of the defen d ant’s treatment since 1995 and did no t offer a n opinion on

the defe ndant’s m ental sta tus at the t

ime these offenses

were committed. Howeve r, when a sked by

defense counsel whether or not a person suffering from schizophr enia knows right fr om wrong , Dr. Gold in responded, “un

less a pe rson is so totally scrambled

that he ju st has no c ontact wi th realit y, h e can usu ally

tellthe difference between rig ht and wrong. However the material that he’s basing his decision on might distortwhat he chooses to do.”

Testifying

next was Dr. Ly

nne Za ger, a

clinical psy cholog ist and Dir

ector of the Fore nsic Services Progra

m at Midtow n Mental H ealth Center. Dr. Zager evaluated the defendant pursuant to a court order from October 17, 1997 to January 28, 1998, to determine his competency to stand trial and his mental state at the time of these shootings. I n conducting the eval uation, Dr. Zag er persona lly interviewed the defendant four times, and she reviewed the results of psy chological tests previous ly

administered. Dr. Zager

opined that

the defendant suffered from par anoid schizophrenia,

a severe mental dis ease or

defect . She also o

pined tha t h e had not been ab le to appreciate the wrongf ulness of his conduct in sh ooti ng the victim s. Accor ding to D r. Zag er, schi zophrenia sufferers experience fals e fixed beliefs, po ssible ha llucinati ons, a nd judgment problems. She recalled that the defendant had a

number of delusional beliefs. For example, the defendant expressed fear that television personality David L etterman was par

t of a con spiracy

to cause him harm because Mr. Letterman had on

one occasion said, “Hi Mike, from Tennessee.”The defendant also thought

an inm ate at th e Shelby County jail was notorious serial killer Jeffrey Dahmer, and he believed another inmate had stolen a letter written to him by his father and was plotting to harm his father. The defendant claimed to hear voices and believed that his thoughts were being broadca st to other people. When asked why he killed the victims, the defendant told Dr. Zager that one v icti m was-11-

responsi ble for the 1 993 World

Trade Ce nter bomb ing and

the other victim was responsible for the bo mbing of t he Oklahoma City fede ral building. The defendant explained that he had killed the victims to protect society, himself, a nd his family. When asked why he did not go to the police for help, the defendant claimed that the police were part of a major conspiracy

.

Dr. Zager admitted that the defe ndant had a history of po lysubstanc e abuse, alcohol and marijuana in particular, but

she sai d the def

endant ha d indicat ed that he

was sobe

r when these shoot ings occurr ed. Dr. Za ger a lso ackno wledge d that dur ing his te n ye ars of me

ntal hea lth
treatment the defendant had failed to report auditory hallucinations and did not report hearing voices until after his arrest, howe ver, sh e said his failure to report hearing voice s did not change her diagnosis or her thoughts about his condition.

On cross-examination, Dr. Zager a dmitted that the defendant believed the vi c tims were homosexual and said

they made him f

eel unco mfortabl e be ca us e t he y we re “h ug gy, to uc hy, fe el y, kind of people .” Dr. Z ager r elated th at the defendant

said he ha

d a list o f 140 names, that he had been planning

to kill themand that he did not believe he “would be caug ht.” Dr. Zager c onceded that the defendant’s sc ore on the Minnesota Multi-Phasic Personality I nventory–Second Edition (“MMPI-I

I”) was indicative of malingering, and she acknowledged that the defenda n t gav e inconsistent answers when questioned about when he beg an experiencing auditory hallucin ations,

on one occasion say

ing the voices began afte

r he was jailed and on

another occasion say

ing he had heard voices all his life. Dr. Za ger also acknowledged that John Perry, the coordinator of me ntal health services at the Shelby

County jail, advised Dr. Z ager’s team that the defendant was not really sick and that he was “ pulling o ne” on the

evaluat ion team. Finally , Dr. Za ger ag reed tha t no tests

were conducted to determine whether the defenda nt ha d be en drinking when these offenses we re committed, and she acknowledged that drug use can induce sy

mptoms similar to those exhibited by schizophr enia suf ferer s.

Also testifying for

the defe nse was Dr. Samuel Craddock, a clinical psy chologist employed
at Middle Te

nnessee Mental He alth I

nstitute ( “MT MHI” ) to conduct forensic evaluations. Dr. Cr addock examined the defendant for a thirty -day per iod in November and December of 1997
, pursuant to a court order. During

this time he met personally with the defe ndant on nine occasions and admin ister ed a bat tery of tes ts to asses s the d efenda nt’s i ntell igence, perso nalit y, reasoni ng, judgmen t, visual, and processing skills. Dr. Craddock testified that psyc hological testing revealed that the defendant was within the averag e range of intelligence and possessed college-level reading comprehension, but that hislogic a nd reaso ning skills were e qual to that o f a fifth-grader. Dr. Cr addock opined tha

t these te st resultswere c onsistent with mental illness and inconsis t ent wit h mali ngerin g, explaining that malingere rs generally experience deficits in both reading comprehension and re ason ing. As further support for his conclusion that the defenda nt was not mali ngerin g, Dr. Craddock pointed to the defendant’s high score on a visual skills test and his score

on a test specifically

designed to deter

mine if a pa tient is ma

linger ing schi zophrenia

sym ptoms. While Dr. Crad

dock admi

tted that t

he defe ndant’s s c ore on the

MM PI -I

I sugg ested a strong likelihood of maling ering o r sy mptom exag gerat

ion, he expl ained tha

t the scor e could also be t he result of sever e mental i llness or random responses. Dr. Craddock also admitted that the defendant’s-12-

initial scores on the Personality A ssessment Inventory (“PAI”) wer

e indicative of malingering, but Dr. Craddock had

re-scored the test using upgra ded software, and he opined that the revised scores

were consiste

nt with par

anoid schizophrenia. Dr. Craddock referred to the defe ndant’s expressed delusional beliefs as further indications of this mental illness. For example, Dr. Craddock said the defendant claimed t o know who

was resp onsible

for the V alue Jet cr

ash in Flo rida, the 1993 World Trade Center bombing, and the Oklahoma City bombing.

Relying on the psy

cholog ical test

results, the defendant’s history and treatment records, and the defendant’s performance in the psy chiatric unit, Dr. Craddock diagnosed the def endant w ith paranoi d schizophrenia and opined that he had been suffering from this severe mental illness at the time of these shootings. Having so conclude d, howev er, Dr. Craddock acknowledg ed that the d efendant “had some test scores to say he might be malingering and I ’m not going to rule out the po ss ib il it y, at any time, that he might be malingering.” F urthermore, Dr. Crad

dock wasunable to

answer to a rea sonable d

egree of cert ainty whether or not the

defenda nt could di stinguis h between right and wrong at the time he committed these crimes. Of the defendant’s perc eptions Dr. Craddock said, “Some things that he perceived would be right under our p ercept

ions and ot

her thing s would not be.” Dr. Craddock gave the f ollowing example:

If I we re to ask Mr. Flak e, “I s it wrong

to shoot or

ass au lt somebody, can y ou get arrested for

it?” Without hes itation, he can rec ognize th

e crimina lity of his alleged actions. Howeve

r, as he s aw the wo

rld, not a s it

existed, bu

t as he believed the world
to be, he tho

ught wha t he was doing wa s morally justified and esse ntiall y it wa s appropr iate ac tions.

On cross-examination, Dr. Craddock acknowledged that the defendant’s scores on the PAI and the MM PI-II w ere in di cat iv e of mal in ger in g an d t hat whe n t he d efe nda nt arr iv ed a t M TMH I, he indica ted he intended to plead “not guilty by reason of

insanity,” stating, “ I didn’t think I’ d get caugh t. I thought I

was doing society

a favor.” Dr. Craddock ag reed that the defendant’s use of the word “caught” indicated that he had a n understanding of

right and wrong and rea

lized the sh ooti ngs

were wrong. Dr. Craddock acknowledged that, de spite ten year s of prior mental health tr eatment, the defendant

had not been diagnosed as schizophrenic and had not re ported auditory hallucinations prior to his arrest. Dr. Craddock testified that the defenda nt had no good explanation for why he had

never told other

mental he alth prof

essional s about he aring v oices, st ating on ly, “No, I didn’t tell them, I felt it was their job, that’s what they g et pai d for.” Dr. Craddock further rela ted that the defendant fears homosexuals, fears they will approach him because he is confused about his sexual id en ti ty, and believed the victims were homosexual. The defendant also told Dr. Craddock that he and Mike Fultz were initially friendly , but that he came to h ate Fult z because the wag es Fultz

paid the defendant were never e nough. Furthermore, Dr. Craddock ag reed that the defendant’s records reflected criminal convictions for vandalism, malicious mischief, and driving under the influence of an into xicant and an arrest in 1992 for arguing with a bouncer at a nightclub. Finally , Dr. Craddock acknowledged that the defenda ntreported he had used

illegal drugs and alcohol since the eighth grade, including mar ijuana, LSD, inhalants, and speed.-13-

Testifying

next for the defense was Dr. Rokey a Farooque, a psy chiatrist empl o yed by

the Stateof Tennessee at MTMHI . In November and December of 1997, Dr. Farooque e valuated the defendant for a thirty-day

period to determine his competency to stand trial and his mental state at the time of the se offenses. Dr. Farooque stated tha t during this time she saw the defendant onc e every “two, three, or four day s,” that the defendant did not receive any medica

tion, that he reported hearing voices, and that he experienced delusional thinking. The defendant a lso talked about receiving messages through t he televi sion. She confirmed that the defendant believed that one victim was resp onsible f

or the Ok lahoma City bombing and the other w as responsible for the 1993 World Trade Center bombing. Dr. Farooque sta ted that the defendant claimed that he was an FBI agent and th at he w as doi ng society a fa vor by taking c are of these terrorists. According to Dr. Farooque, the defe

ndant repea tedly said, “I

did not do anything wrong .” At the end of the initial evaluation, the forensic team, including Dr. Far ooque, determined that the defendant was not competent

to stand trial. After the tria l court found the defendant incompetent to stand trial, he returned to MTMHI

for ten mo nths befo

re his tran sfer to We stern Me ntal Hea lth In stitute (“Western”), a less secure psychiatric facility in Bolivar, Tennes see. Dr . Faroo que trea ted him during this perio d as wel l. Bas ed upo n her ev aluat ion an d treat ment, Dr. Far ooque diagn osed t he defendant with paranoid schizophrenia, which she described as a very se rious mental disease marked by auditory hallucinations, fixed false beliefs, disorganized affect, and ne gative sy mptomology. She testified that the defendant’s history reflected a gradual decline in his mental health, characteristic of schizophr

enia suf ferer s. Dr. Farooque concluded that on the day of these shootings, the defendant

was suffer ing from paranoi d schizophrenia, that he was not malingering, and that he did not understa nd the wr ongfuln ess of his conduct in shooting the victim s.

On cro ss-e xamination Dr. Farooque admitted that the defendant had not reported a uditory hallucinations prior to his arrest in this case, despite ten years of prior mental health treatment. She also acknowl edged

that m alingering is alway s a concern when a person does not re port hearing voices until afte

r his or he r arre st. She discou

nted the c oncern in this case, stating that the defendant had always re

ported hearing voices while at MTMHI . Dr. Farooqueadmitted that the defendant had giveninconsistent answers to questions about when the voices began, a nd she recalled that th e defendant said he had not reported the voices prior to his arrest because no one had previously asked him. Finally, Dr. Farooq ue ackn owled ged tha t the d efenda nt had compl eted co llege level criminal justice c ourses.

Dr. John Ada

y, a psy cholog ist

employed

at Western, observed the defendant severa l times per week after his transfer from MTMHI , and he interviewed the defendant once ev ery

three mo nths. Dr. Aday and the forensic team at Western evaluated the defenda nt to dete rmine his c ompetency to stand trial. While

Dr. Aday c oncludedthat the d efenda nt was suf fering from par anoid sch izophreni a and believe d himself

to be an F

BI a gent who was per

forming his duty by s hooting t

he victims
, Dr. Aday concluded that

the defendant was competent to stand trial in February

of 1999, some two yea

rs after the shooti ngs. How ever, D r. Aday admitted t

hat the de

fendant still repo rts hear ing voic es, altho ugh he describes the voices as less prominent and say s he is unable to understand them. At the time of trial, the defendant was being trea ted with Haldol, Zy

prexta and Amitriptyline. Dr. Aday-14-

opined that the d

efenda nt’s cond ition likel y w ould not imp

rove with further treatme nt. Dr. Ad ay

did
notevaluate the defendant to determine his competency at the time these offenses were committed.

Testifying

next for the d efense was Dr. H

ilary Linde r, a psy chiatris temployed at Western. Dr. Linde r bega n treating and evaluatin g the de fendant in November of 1998, after the defendant had been declared incompeten t to stand trial, wit h the go al of ass isting the defenda nt attain h

is

co mp et en cy. Dr. Linder opined that the def endant suffers from paranoid schizophrenia and is not mali ngerin g. Dr. Linder also was of the opinion thatthe defe

ndant wa s not able

to appreciate the wrongfulness of his conduct in shooting the victims.

On cross-e

xamination D

r. Li nder con

ceded th at despite

ten years of

prior men

tal healt h
treatme nt, the defendant had not been diagnosed a s schizophrenic or reported auditory halluc inati ons prior to his arrest. Dr. Linder indicate d that the defendant had admitted past drug abuse and claimed that he never thought t o mention hearing

voices un til he wasarrested becau se he believed everyone heard the voices. D r. Linder further indica ted that the defendant gave var ied reports on when the voices began, at one point sa ying it beg an more than two ye ars earlier and at another point say ing it bega n in early a

dolescence. Dr. L

inder also acknowledged that the defendant tested positive for amphetamines when he was admitted to Western in November of 1998 and that no fo llow-up te sts

were perfor

med to det

ermine if the result was a f

als e po sitive. Dr. Linder further a greed that the defendant sometimes falls asleep in group meeting s and that drugs such as Haldol and Zy prexa, if overpr escribed, ca n cause a patient to sleep excessively . Finally, Dr. L inder agreed that, when observed, the defe

ndant’s a ffect w as blunte d to flat

and his mood was unhappy a nd depressed, but when he was interacting, the defenda nt’s affect was moderately blunted to broad and his mood was normal. Further

mo re, Dr. Linder a

cknowledged that the defendant par ticipated in recreational activities at Western, that he enjoyed the bus rides where patients are driven through a nd around Bolivar, but that he

did not enj oy o

r partic ipate in th

e dance s, where ma

le and fe male pati ents danced together.

The defendant’s final expert witness was Dr. John Hutson, a clinical psychologist hired by the defendant’s family , who met with the defendant in the Shelby County

Jail on April 8, 1997, three da ys after the shootings. Dr. Hutson said he initially was struck by the de

fenda nt’s impeccab le, “male model” a

ppeara nce, whi ch is not ty

pical of incarc erated , mentally

ill individu als. Neverth eless, Dr. Hutson s aid the defenda nt had a f lat affect and wa s relucta

nt to spea k with him because of instructions from defense counsel to remain silent. The defenda ntfreely spoke with Dr. Hutson only after his attorne y instructed him to do so, but according to Dr. Hutson, the defenda nt’s thoughtswere disorganized. Dr. Hutson reviewe d the records of the defendant’s ten-y ear history of psychiatric t

reatment, including in-patient treatment, and talked with some of the defendant’s treatin g psy cholog ists and psychiatrists. Dr. Hutson a lso administered several tes ts in clu di ng t he M MP I-II. According to Dr. Hut son, the r esults of t his test were indicativeof sch izop hreni a, not mali ngerin g. Dr. Hutson, who had evaluated over 10,000 individuals, described the defendant as one of the three
most disturbed criminal defendants he had seen in his career. Dr. Hutson opined that the defendant suffers from schizophrenia, undifferentiated-disorga nized type, and that beca use of this severe mental illn

ess, the d efenda nt could not apprec iatethe wron gfulne ss of his conduct in shooting the-15-

victims. According to Dr. Hutson, the defendant believed he was working for the government

as an agent or an enforcer when he shot the victims. Dr. Hutson also opined that the de fendan t has a “patholo gical f

ear” th at he is ho mosexual a nd that it w ould have

been “e xtraordina

rily dange rous, at that time , if y ou were

a man” to

have touc

hed the de

fendant

.

On cross-examination, Dr. Hutson admitted that the defendant expressed hatred for Turner Carpenter, wh om he sh ot on Su nd ay, April 6, 1997, because Carpenter was eff eminate and touched him. The defendant also told Dr. Hutson that he wou ld have c ontinued killing, had he not been “caug ht” because he hated them. Dr. Hutson reiterated his belief “that any physical contactwith Mr. Flake would be very

dangerous on any

male’s part.”

The defense rested at the conclusion of Dr. Hutson’s testimony, and the State offer ed no rebu ttal proof. The jury returned a verdict finding the defe ndant guilty of f

irst degree m

urder
, thereby implicitly rejecting the insa nity defense. The trial court entered a judgment in ac cordance with the jury’s verdict. The defendant appealed, arg uing in the Court of Criminal Appeals that he had met his burden of

establishing the insanity def ense by cle ar and convincing evidence a nd that the jury had

erred in rejecting the defe nse. The intermediate appellate court ag reed, and referring
to the inter

mediate appellate court decision in Flake I

, stated, “[i]t is our view that if the defendant provedthe defe

nse of insanity in the Carpenter case, the evidence

offered here is even clea rer and

more convincing . No rational trier of fact could have found other wise.” Accordingly , the Court of Criminal Appeals modifiedthe judgment to not guilty by reason of insanity a

nd remanded the c ase to the trial court for further proceeding s pursuant to Tennessee Code Annotated section 33-7-303.

Thereafter, the State filed an application for permission to appeal, arguing that the Court of Cr iminal Appeals erred in modify ing the jury’ s verdict. We granted the State’s appl ication t o consider this case in light of the majority decision of this Court in Flake I

.

Insanity De

fense We begin our analy sis of the issue in this appeal with Tennessee CodeAnnotated section 39- 11-501, w hich prov ides as f ollows: Ins an it y. (a) I

t is an aff

irmati ve defense to prosecution that, at the time of the commission of the acts constitu ting the offense , the def

endant, as a result of a severe mental disease or

defect, was unable to appreciate the nature or wrongfulness of such defend ant's acts. Me

ntal disea se or def

ect doesnot other

wise constitute a defense. The defendant has the bu rden of pro ving the defense of insanity by clear and convincing evidence.

(b ) As used in this section, “mental disease or defect” does not include a ny abnorma lity manifest ed only by r epeate d crimina

l or other wise anti social c onduct.-16-

(c) No expert witness may testify as to whether 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. As we recognized in Flake I , under this statute, the defense applies only when the defendant has a severemental dis ease or defect which re sults in the defendant’s being “unable to appreciate the na

ture o r wron gf

ulness of such defendant’s acts.” 88 S.W.3d at 550. Furthermore, this statute sq uarely places u pon the de

fendant the burde n of esta blishing the defe nse by clear a nd convincing ev

idence, and unlike

prior law , the State

has no obli gation t

o offer evidence establishing the defendant’s sanity

. Id. Evidence is clear and convincing when “there is no serious or substantial doubt about the correctness of the conclusions drawn fr om the evidence.” Id. at

551 (quoting State v. Holder , 15 S.W.3d 905, 911( Tenn. Crim. App. 1999), perm app. d en ied (Tenn. 2000)). Furthermore, this statute prohibits both prosecu ti on and defense experts from offering opinion testimony on whether or not the defendant

was sane at the time

the offense was committed, declaring that the ultimate issue is “a matter for the trie r of fact alone.” Tenn. Code Ann. § 39-11- 501(c); see also
, Flake I , 88 S.W.3d at 551.

In light of this statute, this Court held in Flake I that appe

llate cou rts in Ten nessee s hould apply a reaso nablene ss standard of appellate review when e valuating a jury ’s rejection of the insan ity defense. 88 S.W.3d at

554. While t

his is an appropriately

deferential standard of review, it does not complete ly insulate the jury verdict. Id. Specifically, we held that “appellate courts in Tennessee should re verse a jury verdict rejecting the in sanity

defense only if, considering the evidence in the light most favorable to the prosecution, no reaso nable tr ier of fa ct could h ave fai led to find that the defenda nt’s insan ity a t the time of the offense was established by clear and convincing evidence .” Id. In s o holding, we explicitly rejected “the notion that the State must rebut def ense proof of insanity with substantial evidence,” noting that the current statute clearly imposes no burden on the pro secution. Id. Howeve r, we re cognize d that onc e the insa nity defense is interpo se d, th e prosecution wil l likel y attempt, in some manner, to counte r the defense proof, either by expert te st im on y, lay

witnesse s, or vigorous cross-examination designed to undermine the credibility of the defense experts. Id. In determining whether the jury

appropriately

rejected the insanity

defense, we emphasized that appellate courts must consider all t he evidence in the record, including the defendant’s actions and words at or near the time of t he of fe ns e a nd th e l ay a nd ex pe rt te st im on y. Id. (citi ng State v. Sparks , 891 S.W.2d 6 07, 616 (T enn. 1995 ); State v. Jac kso n , 890 S.W.2d 436, 440 (Tenn. 1 994); Edwardsv. State , 540 S.W.2d 641, 647 (Tenn. 1976)). Questions concerning the credibi lity

of witnes ses, the weight and value of the evidence , as well as factual disputes raised by the evidenc e, are f

or th e trier of

fact; appellate courts are not in the business of re- weighing the evidence or re-evaluating credibility determinations. Flake I , 88 S.W.3d at 554 (citing Holder
, 15 S.W.3d at 912). Considering the evidence in this record in ac cordance with thes e now set tle d principle s, this Court concludes that a reasonable trier of fact c ould have foundthe defendant failed
to show by clear

and convincing evidence

that, as a result of a severe mental illness or defect, he was unable to appreciate the wrongf ulness of his actions.-17-

First, the record contains evidence sug gesting the defendant was not su ffering

from a severe mental illness at

the time of the of fense. A s much as t

wo week s and as little as one da y pr ior to thes e shooting s, the defendant had the forethought to fa lsely answer que stions regarding his prior mental health treatment and drug abuse wh ich, had h e answe red truth fully , likely

would hav e precl

uded him from obtaining the weapon used to commit these crimes. See also F lake I , 88 S. W. 2d a t 5 55. In addition, as in Flake I , the proof showed that, while the de fendant behav ed strangely during the weeks and months preceding these shootings, his behavior on the day af

ter these shootings had been, in the words of his father, “[p]erfectly , fine.” Mr. Flake de sc ri be d A pr il 6, 19 97 , a s a “r eg ul ar da y” for the defendant, stating tha t he came downstair s, hugg ed and kis sed his moth er, ate breakf ast, workedon his car, took his dog to the park, grilled outside with his family , and made plans to watch

a movie later that

night. While one of the defendant’s co-workers testified that the def endant’s work performance

was poor and his behavior strang e o n the day of these shootings, this co-worker previous ly

had complained about the defend ant’s wor k performance and gene rally descr

ibed the defendant as “o ut there. ” While the shooting s were n ot expecte d, there is proof in

the rec ord to sugge st that the defendant

had felt animosity

toward the victims. Several witnesses testified that the defendant was preoccupied with homosexuality. Dr. Hutson said the defendant had a “pathological fear” of being homosexual and opined that it would have been “extraordinarily dangerous, at that time, if y ou were

a man” to

have touched the defendant. The rec ord also reflects that the defendant said the victim s made him uncomfor table because they

were “huggy , touchy, fee ly kind of people,” and that he suspected they were homosexual. Furthermore, the defenda nt expressed hostility and hatredtoward Mike Fultz because he sent the defendant to a house that was guarded by

three or four dogs, he sank boats in the Gulf of Mexico to collect insurance proce eds, and he refused to pay the defendant well. While

the defe nse proof sugge sted the d

efenda nt committe d these c

rimes bec ause he believe d the vict

ims were terrori sts and he an FBI

agent doing a service

to society, the prosec

ution developed

alternative explanations through cross-examination. Le nding further creden ce to the prosecution’s theory was te stimonyfrom Dr. Goldin that the defendant reported having homicidal thoughts towards individuals who frustrated him and testimony from Mr. Flakethat the defendant had phy sically

assaulte d his mothe

r and fa ther in the

past.

Also, like Flake I

, defense proof that the defendant suffered from a se vere mental illness was countered by t estimony elicited on cross- examinatio n sugg esting t hat it was also plau siblethat

the defendant was ma linger ing. As in Flake I
, all the mental health experts offering an opinion testified that the defendant suffers from schizophrenia. The proof is undisputed, however, that, throughout
ten years of

prior mental health treatment, the defendant had not be en diag nosed as s chizophre nic and had never complained of auditory hallucinations. Significantly, the de fendant’s report of auditory hallucinations following his arrest was not spontaneous but was in response to a question from his mother. The defendant thereafter g ave inconsistent answers as to when the voices began, and according to Dr. Craddock, he had no “good” explanation for why he had fail ed to previously report hearing voices, stating

on one occasion that

he had no t previou sly

reporte d the voic es beca

use the mental health experts did not ask him and stating on another occasion that he did not report the voices because he thought “every one heard the voices.” Results of two psychologic al tests indicated that the defendant was malingering mental illness, and even t hough the expert witnesses discounted these results, D

r. Craddock ref

used to “r ule out t he possibi l ity . . . that [the defendant] might be5 Neither Dr. Goldi n nor

Dr. Aday off

ere d an o pin ion on t he de fe ndan t’ s men tal st atu s at th e t ime these offen ses

were c ommit ted.

-18- malingering.” Furthermor e, the mental health coordinator at the Shelby

County Jail, who saw the defendant on a regu lar basisafter h

is arres t, believ ed the de

fendant was malin gering . The pro of also showed that, bef

ore his a rrest, th e defendant had b een enr olled in a nd comp leted criminal justice

courses at both UT-Martin and the University of Memphis. During his intake interview at M TMH I, the defenda

nt was fa miliar en ough wit

h the cri minal justic e sy stem to adv ise Dr. Craddock that

he intended to pl ea d n ot gu il ty b y re as on of in sa ni ty. Furthermore, according to psychologica

l records of the defe ndant’s m ental he alth trea

tment prio

r to his ar rest, he had a hist ory of poly substanc e abuse and had lied to his parents about the extent to which he abused drugs and alcohol. I n fact, Mr. Flake testified that the defendant’s emotiona l problems began at age twe lve, also the age at which the defendant began drinking alcohol. Mr. Flake acknowledged the defenda nt’s treating phy sician at the time of these shootings, Dr. Johnson, believe d he was a n alcohol ic and a drug addict. Although the experts testified that

the defe ndant’s h istory of substa nce abu se had no

impact on

their evaluations since he had been incarcerate d and had no access to drugs, Dr. L inder admitted that the defendant tested positive for amphetamines when he arrived at Western and no test was performed to confirm this result was a false positive. Dr. Zager also a dmitted that no tests were performed to determine whether the defendant was intoxicated at the time these offenses wer e committed, althoug h sh e testified that no information relating to the offenses indicated that he w as intoxicated.

Fi na ll y, notwithstanding expert proof to the co nt ra ry, the rec ord conta ins proof suggesting that the defe ndant re alized his c onduct wa s wrong ful. Wit h the exception of Dr. Craddock, the mental health

professionals who offered an opinion on the defenda nt’s competency

testified that the defendant had bee n unable t

o appreciate the w

rongfu lness of h is conduc t in shooting

the victim

. 5 Dr. Craddo ck opined that the defendant was aware that killing is wr ongful, but he opined that the defendant felt mora lly j ustified in shooting these victims because he believe d them to be

terrori sts. However, the prosecution pointed out that the defendant did not report

his successful elimination of these “terrorists” to law enforcement authorities. While some testimony indicated that the defe ndant believedthe police were part of the conspiracy , other testimony indicated that the defe ndant trusted his father, so the defendant’s failure to re port the succ essful elimination of these “terro rists” to h is father, an FBI

agent, is a fac tor the jur

y c ould have

consider ed in rej ecting

the insan ity d efense

. Moreover, at the time of his arrest, the defendant appear ed to realize he had

committed a crime. The defendant indicated that

he kne w why the o fficer s were a t his house , and i n resp onse t o ques tion ing, he told them the weapon was in the glove compartment. When asked if he had an altercation at the A.A. meeting, he again

responded in the affirmative, and when further asked, “what happened,” he responded, “I shot the guy .” Although the defendant showed little emotion and appeared “tired,” the officers observed no bizarre behavior. After his arrest, the def endant complied with his attorney’ s instruction not to spea

k with any

one alone , refusi ng to speak to Dr. Hutson until receiving permission from his attorney. Evidenc e suggested that the defendant had feelings of hostility toward all the victims because he believed them to be homosexual, and hostility toward Mik e Fultz in particular bec ause of h

is low wag es and hisbelief th at Fultz was fraudulently

collecting insurance procee ds. The defendant had previously repor

ted having homicidal thoughts toward persons who-19-

frustrated him. The defendant

had thought about purchasing a g un for some time, falsely c ompleted the paperwork so that

he could o

btain the gun, picked up the gun on the first day it became available, and committed

these cr imes the ve

ry next day . When discussing th ese shoot ings with mental he alth professionals, the defendant said that he had 140 names on a list, that h

e had inte nded to kill them all, and that he did not believe he would be “caught.” Dr. Craddoc k agreed that the

use of the word “caug ht” indicate s that the d

efenda nt recog nized that h

is actions w ere wrongful. Finally , when asked by defens e coun sel if

a schi zoph renia s uffere r know s right from w rong, Dr. Goldin responded, “unless a person is so totally scra mbled that he just has no contact wi th re al it y, he can u sually tell the difference between rig ht and wrong. However the materia l that he’s basing his decision on might distort what he chooses to do.”

It is appropriate to reitera te the following points made in Flake I : Where the proof

is contes ted, appe

llate cou rts should rarely revers e a jury’s rejection of the insan ity d efense . . . . [A]ppellate cou

rts are not fact f

inders, and reversal is not appropr iatewhere th

e evidence migh

t appear to us clear and

convincing were we fact find er s. Appellat

e courtsdo not re- weigh t he evide nce or r e-asse ss credi

bility determin ations. These

tasks ar e within the provinc e of the j ury . While the p roof in this record indicates that the d efendant suffers from a mental disorder, suc h proof does notmandate a jury

finding that

a defendant is legally

insane. Cf. Coe v. Stat

e , 17 S.W.3d 193, 221 (Tenn. 2000) (“[T]he existence of a mental disorder does no t automatic ally

translat e into a finding of

incompet ency to be executed.”) ; Reed , 997 F.2dat 33 4 ( “In sa ni ty, for our purposes, is a legal term. We do not ask whether Reed is in san e by p sych iat ric or p sych ol ogi cal st and ard s.” ). In deter mining whether a defendant is insane , a jury

is entitled t

o consider all the evidence offered, inc luding the facts surrounding the

crime, the testimony of lay witnesses, andex pe rt te st im on y. While a jury may

not arbitrarily ignore evidence, a jury is no t boun d to accept the testimonyof expert s w here th e evidence is con tested. I ndeed, th is princip le is explicitly reflected in the cur rent statute whichprohibits experts from testifying on the ultimate issue of the defendant’s sanity and reserves this issue for the trier of fact alone.

88 S.W.3d at 556. In reversing the jury’s verdict, the Court of Criminal Appeals’ opinion appears
notto have considered the evidence elicited by the prosecution through vigorous cross-examination. The intermediate appellate court instead focused upon the State’s failure to offer rebuttal proof. As noted in Flak e I , the statute does not require the prosecution to offer re buttal proof, although the prosecution likely will counter defen se proof by some me ans, including vigorous cross-examination. After review ing all the evidence in this record in the light most favo

rable to the State , this Court is unable to conclude that no reasonable trier of fact could have failed to f ind that the defendant’s criminal insanity

at the time

of the of

fense was estab lished by clear and convincing evidence. Therefore, that porti on of the j udgme nt of th e Court of Criminal Appeals modifying the jury’s verdict to not guilty by

reason of insanity is re

versed.-20- Suppression The defendant argued in his brief to this Court that the trial court erred in deny ing his motion
to suppress because he was n ot mentally capable of knowingly a

nd intelligently consenting to a search or waiving his rig

hts under Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). The State claims that collateral estoppel precludes the defe ndant from re-litigatingthis issue. As support for this claim, the State points out that the claim was explici tly rejected in a n opinion on petition to rehear in Flake I , 88 S.W.3d at 561, that the parties are the same, and that the evidence is the same . Whilecollateral estoppel likely could be applied in this circumstanc e, having thoroug hly reviewed the entire record, we choose to address the defendant’s contention on its merits.

"[A] trial court's findings of fact in a suppre ssion hearing will be upheld unless theevidence preponderates otherwise. " State v. Odom , 928 S.W.2d 1 8, 23 (Te nn. 1996) . "Ques tions of credibilit y of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are
matters entrusted t o the trial judge as the tr ier of fact." Id. ; see also State v. England , 19 S.W.3d 762, 766 (Tenn. 2000). As such, "the pr evailing party in the tria l court is a fforde d the 'st

ronge st legiti mate view of the evidence and all reasonable a nd legitimate inferences that may be drawn from

tha t evidence.' " See State v. Car ter , 16 S .W.3 d 762, 765 (T enn. 2 000) ( quot ing State v. K eith , 978 S.W.2d 861, 864 (Tenn. 1998)). Apply ing thes e princi

ples, we are of the opinion that the evidence does not prepo nderate

agains t the tria

l court’sfinding

that the d

efenda nt was men

tall y capa b le of knowing ly

and intelligently

consenting to a se arch and of waiving his r ights u nde r Miranda

. Ac co rd in gl y, the defe

ndant’s a ssertion t

hat the tr ial cour t erred in deny ing his mo tion to supp

ress is without merit.

Conclusion Reviewing this record in the light most favorable to the State, this Court reverses that portion of the judgment of the Court of Criminal Appeals modify ing the verdict

to not guilty by

reason of insanity. As to the suppression issue, the judgme nt of the Court o f Criminal

Appeals is affirmed. The judgmen

t of the tr ial cour t is r einsta

ted. It appearing

that the defendant is indigent, costs on appeal are assessed to the State of Tennessee, for which execution may issue if necessary

.

_________________________________________ FRA NK F . DR OW OTA , III, CHIE F JUSTI CE