### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J une 24, 2003

STATE OF TENNESSEE v. GLENN C. SUMMERS

Appeal from the Criminal Court for Sullivan County No. S44,706 Phyllis H. Miller, Judge

No. E2002-01996-CCA-R3-CD October 27, 2003

The defenda

nt, Glenn C. Summers, was convicted of first degree mur der and sentenced to life imprisonme

nt. In this appeal, the defenda nt presents two issues for review: (1) that he established the affirma

tive def ense of insanity

and (2) t

hat the tr ial cour t erred by p roviding an irrele v ant definition of "intentional" in its jury instruc tions. The judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID H. W ELLES and N ORMA M C G EE O GLE , JJ., joined.

Stephen M. Wallace , Distric t Public De fender (at tria l) , and Steve Mc Ew en , M ou nt ai n C it y, Tenness ee (on a

ppeal), for the a

ppellant , Glenn C. S ummers.

Paul G. Summers, Attorney General & Reporter; Brent C. Cherry , Assistant Attorney Gene ral; and J. Lewis Combs, Assistant District Attorney Ge neral, for the appellee, State of Tennessee.

OPINION

On December 20, 2000, the defendant, while in a corridor outside the victim 's apa

rtment in Bristol, stabbed to death the victim, Carter Ball. The victim suffered forty-nine stab wounds and his tongue was cut out. In

the day s before

the murde

r, the vic tim had co mplained that the def

endant, who lived in the apartment next door, was noisy a t night. Pursuant to the complaint, the landlord, Shelby Hopkins, asked the defendant to be quieter and the de

fendant apolog ized to her . During their conversation, Ms. Hopkins noticed that the defe ndant' s apartme

nt, usuall y ve ry neat, wa s in a state of di sa rr ay.

On the following morning, the victim again complained about the noise. As Ms. Hopkins
went to the defendant's apartment, she met him in the hall. Accor ding to Ms. Hopkins, the defendant

was repeat ing to hims elf, "W here's he at, where's he at." When asked what was wrong, the defendant looked out the window and a sked, "I s them old b ig car p still out there?" Ms. Hopkins recalled that-2-

the defenda

nt "looke d at the do or [to the vi ctim's] a partme nt real strange." She described the defendant and victim as good friends, not having expressed any animosity toward one

another until a few da ys before t he sta bbin g.

On the even

ing of th e offen se, Ms. Hopkins heard the sounds of a struggle c oming from the

common ha ll wa y ou ts id e o f t he ap ar tm en ts . A ft er hu rr ie dl y p utting on h er clothes, she found the victim lying on his back in the doorw ay of his apartment. The defendant was seated on top of the victim. When Ms. Hopkins directed the defendant to "get of f," the defendant did not

move. At that point, Ms. Hopkin s saw "th e knife a nd . . . the

puddle o f blood." Ms. Hopkins informed the defendant that she intended to call the police and he re sponded, "Call them, call them." The defendant was still seated on top of the victim when the police arrived approximately five minutes later.

Officer

Danny Farmer of the B ristol Polic e Depar tment, who resp onded to Ms . Hopkins' call, ordered the defendant to stand. A knife was protruding fr om the right side of the victim's neck. The defenda nt, who was covered in blood, remarked, " The one I killed was Carter B all the draft dodger." Claiming that

he was a gene

ral, the defenda nt then ap ologized

to the off icer fo r causin g him to c ome outat such a late hour and asked if the officer " was going to have a g ood Christmas." The defendant askedabout an NFL football g ame and requested permission to look at Officer F armer's du t y weapon. He also told the officer that his shoes were not well shined. At one point, the defendant claimedthat the victim had s hot at him bu t cou ld not, however, provide Officer Far mer with the location of the g

un. Just bef

ore bein g taken

to the jail, t he defendant began to sing, " Everybody loves somebody sometimes . . . ." Officer Farmer stated that he di d not finish the song but beg an to sing, " Do-da, d

o-da, do -da," b efore f

alling s ilent.

Detective Matt

Austin questioned the defendant on the evening of the mur der. The defendant claimedthat he was a gene ral in the U.S. A

rmy and explained that h

e had kill ed the victim becau se he was a draft dodger. After o btain ing a waiver of rights, the detective asked the defendant if he preferred to be called Mr. Summers or Genera l Summers. The def

endant la ughed a nd said, " Well, you know, I'm not a Gene

ral, you ca

n call me Glenn." According to Detective Austin, the defendant
eventua lly admitted t

hat he did not kill th e victim because he was a draft dodg er. The defendant contended

that the victim had been "running his mouth, telling things that aren't true." He c laimed that the victim had been making noise at night which kept the other tenants awake. The defendant informedthe detective that after seeing the vi ctim in the hallway holding a bundle of sticks, he returned to his apartme

nt and g ot a

knife. Th

e defendant stated that whe n he conf ronted the victim, the victim swung the b undle of s ticks and in respon se, he sta

bbed the v

ictim in the

ribs while throwing him

to the floor. The defendant explained that he continued to inflict wounds because the victim attempte d to take h

is knife a way . When asked why

he had c ut the vic tim's tong ue out, th e defendant responded that he did not realize that he had done so but "w ished he w ould

have be cause he was mad at him."

Dr. Gretal Harlan, a forensic pathologist, performed the autopsy . She testifie d that the cause of death wa s multiple s tab wound s. She dete rmined tha

t the victim suffered a total of forty -nine stab-3-

wounds. There were twenty -two cuts to the fac e and tongue, two scrapes to the face , seven slice wounds to the neck, nine superficial wounds to the lef t belly and le ft chest, and eight defensive wounds to both arms and hands. It was Dr. Ha rlan's opinion that the deepest wound, a stab wound
to the groin, was sufficient alone to have ca used death within twenty minutes. She indicated that the victim was in a standing position when this wound was inflicted. Further, the nature of the wounds established that the murder weapon was dull and that the victim's hands were open throughout the attack. Dr. Harlan classified the victim's wounds as "over kill." She estimated that the stabbing took betwee n eight a nd thirty minutes.

Dr. Charl ton S tanle y, a psycholo gist, testi fied f or the defens e. He re viewe d the d efenda nt's medical record s, in tervi ewed t he defe ndant , and s poke w ith t he defe ndant 's friends. Dr. Stanley explained that he conducted only one test, the Rorshcach Inkblot Test, in evaluating the defend ant's mental health

because the defendant was too distractable to perform any more involved testing procedu res. Dr. Stanley discover

ed that the defendant

had been hospitalized several times between 1990 and 2000. Medical records es tablish ed that in 1990, the defendant had showed signs of antisocial personality disorder, pa ranoia, and delusional disorder. After anemergency commitment in 1995, the defenda

nt was dia

gnosed withbipolar disorder, which Dr. Stanley described as a "real serious" mental illn

ess. Dur

ing a 19 97 hosp it alization, the defendant reported auditory hallucinations and was d iagnosed with bipol ar disor der, sch izoaffectiv e disorde r, and alcohol de pendence. Dr. Stanley desc ribed schizoaffective disorder as a form of sc hizophrenia. In a subsequent

hospitaliza

tion, the d efenda nt was dia gnose d with schizoaffective disorder with psychoti c featur es. The defendant was hospitalized in July of 1999 afte r attacking a police dispatcher in a
store. At that time , the def endant suffere d from de lusional ideation with paranoid symptoms and dementia. In April of 2000, the def endant was diagnosed with paranoid psy chosis disorder.

Dr. Stanley testified that he believe d the def

endant to be psy chotic. I t was his opinion that the defendant suffered from para noid schizophrenia. The doctor stated that the defendant's behavior in the day s before

the murde

r indica ted that he was de compensa ting into mental illness and was delusional at the time of the murder, believingthat the victim had been hired by his family to murder him and stea l his artw ork. Dur

ing inte rviews, t he defe ndant cla imed that h

is artwor k was pric eless because he had studied painting with Michelangelo. It was Dr. Stanley 's opinion that the defendant knew right from wrongbut, beca use of pa ranoid de lusions as sociate d with

his mental illness, was unable to app reciat e that kill ing t he victim was wrong. He state d that the defenda nt earne stly believe d that he w as actin g in self -defen se when t

he victim l

unged a t him with a bundle of s ticks.

During c ross-examination, Dr. Stanley acknow ledged that the defendant appea red logical during his interview with Detective Austin but explained that the defe ndant had a "flat affect," indicating schizophrenia. Dr. Stanley desc ribed a "flat affect" as expressing no emotion at all. He also admitted that the forensic evidence established that the victim had notattacked the defendant in the manner that the defendant had alleg ed. Dr. Stanley a greed that it was possible for someone who is mentally ill to malinger and that the defe ndant had an incen tive to mak

e his menta

l illness appear worse than it really

was. He conceded

that the defendant was an alcoholic and that he abused marijuana.-4-

Dr. James Turn

bull, a psychiatrist and Dir ector of Medical Affairs at Frontier Hea lth, which operates a number of mental health facilities, testified as a rebuttal witness for the state. He stated that he had evaluate d the def endant a t the req uest of the tr

ia l cour t to d eterm ine th e defen dant's competence to stand trial and to ascertain his mental state at the time of the murder. Dr. Turn bull contended that the defendant had performed very

well on an intelligence test, which indicates that he was not suffering from dementia. He f urther stated

that the defendant

cooperated fully

with the evaluation and was awa re o f the nat

ure of the crimina

l charg e and the

possible punishment

. According to Dr. Turnbull, the defendant was able to relate his mental hea lth history and admitted that some of his hospitalizations had been the result of alcohol abuse. He described the defendant

as "alert , resp onsi ve, [ and ha ving] display ed a full range of affect inthe interview," claiming that he killed the victim in self-defense. It wa s Dr. Tu rnbul l's opinion that although the defendant was "sufferingfrom a me

ntal disea se he wa s still able to appreciate the nature and wr ongfulness of the acts constituting the offense."

I The defendant

first asserts that he met his burden to establish the affirmative defense of insanity by c lear an d convinc ing evid ence. O n appea

l, of cour se, the st

ate is en titled to the strong est legitima te view of the evidence and all reasonable inferences which

might be drawn therefrom. State v. Cab bage
, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the rec onciliation of conflicts in the proof are matters entrusted to the jury

as the trier of fact. By

rge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978 ). Whe n the sufficiency

of the evidence is challenged, the r elevant question is whether, after reviewing the evidence in the lig

ht most fav orable t

o the state , any

rationa l trie r of fact coul d have found the essential elements of the crime beyond a reasonable do ubt. Tenn . R. App. P. 1 3(e); State v. Williams
, 657 S.W.2d 405, 410 (Tenn. 1983). Questions concerning the credibi lity of the wit nesses, the weight and value of the evidence, a s well as all factual issues raised by the evidence are resolved by the trier of fact. Liak

as v. State , 199 Tenn. 298, 286 S.W.2d 856, 859 (1956). Because a verdict of guilty remov es t he presumption of innocence and raises a pre sumption of guilt, the convicted criminal defendant bears the burden of showing that the e vidence was leg ally

insuffic ient to sust

ain a guilty ve

rdict. State v. Evans , 838 S.W.2d 185, 191 (Tenn. 1992).

At the time

of the sho otings, f

irst deg ree mur der was defined

as follow s:

(a) Fir st degr

ee murde r is: (1) A premeditated and intentional killing of another; (2) A killing of another committed in t he perpe tration of or attempt to perpetr ate any first degre e murder , arson, r

ape, rob bery , burgla

ry , theft, kidn appin g, aggravated child abuse , aggravated child neg lect or aircraft piracy ; or (3) A kill ing o f anot her com mitt ed as t he resu lt of t he unl awful throw ing, placing or discharging

of a destructive device or bomb.

Tenn. Code Ann. § 39-13-202(a) (Supp. 2000).-5-

Here, the defense concedes that the defendant stabbed the victim to death but argues tha tthe pr oof a t trial established that because of his mental illness, he was unable to apprec iate the wrongf ulness of his conduct and must, therefore, be declar ed not guilty

by reason of

insanity. See Tenn. Code Ann. § 39-11-501( a). Tenness ee Code A nnotated section 3 9-11-501 (a) pro vides in pertine nt part a s follows:

It is an aff irmative defense to prosec ution that, at the time of the commission of the acts c onstitutin g the offense, the defenda nt, as a result of a severe mental disease or defect, was unable to apprecia t e th e nature or wrongfulness of such defen dant's acts. Mental disease or defect does not otherwise c onstitute a defense. The defenda

nt has the

burden o f provin g the defen se of insanity by clear and convincing evidence.

Tenn. Code Ann. § 39-11-5 01(a). T he statute places t he burde n on th e defen dant to establish insanity by clear and convincing evidence; the state is not require d to prove sanity. See State v. Holder
, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999). "Clear and convincing evidence " is "evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence." Id. Although a higher standard than " preponderance of the evidence," this standard is less than "beyond a reasonabl e doubt." O'Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).

Recently, in State v. Flake , 88 S.W.3d 540, 554 (Tenn. 2002) ( Flake I), our supreme cour t held that "a ppellate courts in Tenness ee should

apply the reasonableness standard when revie wing

a jury's r ejection of the insanity de fense." Our

high court ruled that "appellate cour ts in Tennessee should re verse a jury verdict rejecting the insanity defense only

if, considering the evidence in the light most favo

rable to the pro secution , no reas onable tr ier of fa ct could have failed to find that the defend ant's insanity at the time of the offe nse wa s establ ished by clear and convincing evidence." Id. "A reviewing court apply ing the reasonableness standard should consider all the evidence in the record in the lig ht most favora ble to the state in determining whether the jury appropriately

rejected the insani ty defense." Id. Later, in State v. Flake , __ S.W.3d __ , No. W2001- 00568-SC- R11-CD (Aug. 5, 2003) ( Flake II), where the evide nce of F lake'sinsanity

was eve n more co mpelling

than in the init ial pr oceedi ng, our supreme court concluded that the jury could have

properly found tha

t the defendant had failed to establish the insanity defense by

clear and convincing evidence

.

In this instance, Dr. Stanley testified extensively regarding the defe

ndant's history of

mental illness. It wa s his opinio n that the defenda nt was a par anoid schizophrenic operating under the insane delusion t

hat the vi ctim was tr

yin g to kill h

im at the tim

e of the m

urder. Dr. Sta

n ley explained that while the defendant knew right from wrong , he was unable to appreciate that it was wrong t o kill the victim because of his delusion. He further believed that Ms. Hopkins' testimony about the de fendan t's behavior in the day s leading up to th e shoo ting w as evi dence o f the d efenda nt's decompensation into menta l il lness. On the other hand, the state provided evidence throug h the testimonyof

Detective Austin that the defenda nt, while b ehaving

somewha t strang ely

immediate

ly after the shooting, provided logical answers during the interview. In addition, the defe ndant claimed-6-

to the officer

that he wa s not insane, ackn owledg ing that the stabb ing was not in

self-de fense bu t in relation to the vic tim's fa

lse claims. Dr. Turnbull testified that the defendant was not insane, having performed

well on an intelligence

test, indicating that he was not suffering from dementia. A jury might have i nferre d that the vi ctim 's woun ds, de scrib ed as "o verki ll," m ilit ated aga ins t the defendant's contention that he acted in self- defense.

Our supreme court ha s held tha

t when de

termining the issue of insanity , the jurymay consider bo th lay and exper

t testimony

and may discount e

xpert testi mony

which it f

inds to be i n conflic t with the facts of the case. State v. Sparks , 891 S.W.2d 6 07, 616 (T enn. 1995 ); State v. Jackson
, 890 S.W.2d 436, 440 (Tenn. 1994). The jury is not required to resolve conflicts between experttesti mony

and t estim ony as to t he fa cts of the c ase i n fav or of

exp ert testimony and must determine the weight and credibility of each in light

of all the facts and circumstances of the ca se. Edwards v. State , 540 S.W.2d 641, 647 (Te nn. 197 6). In determining the defendant's mental status at the time of the crime, the jury may look to the evidence of the defendant’s actions and words at

or near the time of the offense. Sparks
, 891 S.W.2d at 616; Humphre ys v . State , 531 S.W.2d 127, 13 2 ( Te nn . C ri m. Ap p. 19 75 ). He re th er e w as co nf li ct in g t es ti mo ny a bo ut th e d ef en da nt 's sa ni ty. Under these circumstances, it is our view that the defendant has failed to establish that no reaso nable trier of fact would hav e failed

to find tha

t his insani

ty a t the time of the offense was established by clear and convincing proof. See Flake , 88 S.W.3d at 554.

II As his final issue, the defendant contends that the trial court erred by

providing an irrelevant definition of "inte

ntional" in its instru ction on f irst degree murder. He c laims that by providing the nature-of-conduct

definition o f intentio nal in addition to the result-of-conduct definition, the trial court improperly lesse

ned the state's burden of proof.

Trial cou rts have a duty " to give a complete charge of the law applicable to the fact s of a case." State v. Harbison , 704 S.W.2d 314, 319 (Ten n. 1986); see also

Tenn. R. Cr

im. P. 30. "[The] defendant has a constitutional right to a correct and complete char ge of the law." State v. Teel , 793 S.W.2d 236, 249 (Tenn. 1990). Our law requires that all of the ele ments of each of fense be described and defined

in connection with that offense. See State v. Cravens , 764 S.W.2d 754, 756 (Tenn. 1989). Jury

instructi ons must, ho wever, be revie wed in th e cont ext o f the o verall charge rather than in isolation. See Sandstrom v. Montana , 442 U.S. 5 10 (1979) ; see also State v. Phipps
, 883 S .W.2d 138, 142 (Tenn. Crim. App. 1994). A charge is prejudicial err or "if it fails to fairl y submit the leg al issues o

r if it misle ads the ju

ry as to th e applicable law. " State v. Hodges , 944 S.W.2d 346, 352 (Ten

n. 1997). Any

omission in t

he instru ctions in

reference to an element of the offense which might lessen the burden of proof placed upon the state i s constit

utional error and requires a new trial unless the er roris harmless beyond a r easonable doubt. State v. Walker , 29 S.W.3d 885, 893-94 (Tenn. Crim. App. 1999).

In this instance, the t

rial cou rt p rovided the following instructions regarding first degree murder:1 "[A] person act s knowin gly w ith respect to th e conduct or to circumstances sur rounding the conduct when the person is aware of the nat ure of the conduct or that the circumstances exi st." Tenn. Code Ann. § 39 -11-302(b).

-7- For you to find the

defenda nt guilty of this offense the State must have proved bey ond a rea sonable d

oubt the e xistence o f the foll owing e ssential e lements: (1) that the defendant unlawfully killed the alleged victim, Carter Ball, and (2) that the defendant acted intentionally and (3) that the killing was premeditated. Inte ntionally means tha

t a person acts intentionally with re spect to the nature of the conduct or to a result of the conduct when it is the person' s conscious objective

or desire to engage in the c onduct or cause the result. A premeditated act is one done after the exercise of reflection and judg ment. Premeditation means that the intent to kill must have been formed prior to the
act itself. It is not necessary that the purpose to k ill preexis t in the mind of the accused for any de

finite period of time. The mental state of the accuse d at the tim

e he alleg ed ly decided to kill must be carefully considered in order to determine whether the a ccused was sufficiently free from excitement and passion as to be capable of premeditation. I f the design to kill was formed with premeditation, it is immaterial that the accused may have been in a state of passion or excitement when the design was carried into effect. Furthermore, premeditation can be found if the decision to kill is first formed during the heat of passion but the acc used com mits the act after the passion has subsided.

In Stat e v. Pa ge , 81 S.W.3d 781 (Tenn. Crim. App. 2002), a panel of this cou r t held that because second degree murder is a result-of-conduct offense , the trial court erred by including the nature-of-conduct

and nature-of-circumstances 1 defin i tions of knowingly. F urther, the panel determinedthat

the error could not be classified as harmless bey ond a reasonable doubt because the defendant's mental state was a conte sted issue at trial. Id. at 789-90.

As indicated, the defendant in this case was convicted of first degree premeditated murde r, which requires a specific finding that the def endant acted intentionally. I

n State v. A

ntoinette Hill
, No. E 2001-02524-CCA-R3-CD (Tenn. Crim. App., at Knoxville, Dec. 13
, 2002), the defenda nt, wh o

was convicted of first degree murd er, comp lain ed that the trial court had erred by providing the nature-of-conduct

definitio n of inten

tionally

. This cour

t determined that t

he trial c ourt shoul d not have reci ted the na

ture-of -conduc t definiti on of inte ntional because f

ir st degree premeditated murder
, like second degree murder, is a r esult-of-conduct offense. The panel ruled, however, that bec ause the defenda

nt had bee n convict ed of fir st degr

ee murde r, which require s a

finding that the defendant acted with prem

editation , the err

or could b e classif

ied as ha rmless bey ond a rea sonable d oubt. Id.

, slip op. at 6.

By its verdict, the jury in this instance concluded tha t the defendant acted with premeditation, that is to say that

he displayed a pr

eviously formed desig

n or intent to kill. See State v. We st , 844-8-

S.W.2d 144, 147 (Tenn. 1 992); Antoinett e Hill , slip op. at6. Implicit in a finding of premeditation is that it was the defendant's desire to cause the result of

his conduct, i.e., the

death of the victim

. Becau se the jury deter

mined that

the defendant acted with the design to kill, it is our view that the inclusion of the nature-of-conduct definition of intenti onal woul d be harm less bey ond a rea sonable doubt. See Antoinett

e Hill , slip op. at 6.

Accordingly , the judgment of the trial court is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE