### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs A

pril 11, 2001
STATE OF TENNESSEE v. CHRISTOP HER M. FLAKE Direct Appeal from the Criminal Court for Shelby County No. 97-09256 Bernie Weinman, Judge

No. W2000-01131-CCA-MR3-CD - Filed July 13, 2001

The defendant was indicted for attempted first degree murder. A Shelby County jury

convicted the defendant of the lesser-included offense of attempt ed vol untary manslaughter, and the trial court sentenced him to four years imprisonment . In t his appeal, the de

fendant allege

s: (1) his insanity defense was established by clear and convincing evidence; (2) the trial court erroneously a dmitted stat ements made by the defendant and a weapon seized from his vehicle; (3) the tr i al cour t erroneously

restricted the testimony of a psychiatrist by disallowing his statement that the defendant was committable if found not guilty by reason of insanity , while allo wing him to testify that the defendant stated he be li eved he would be free to go home within 60 to 90 days if adjudicated not guilty b y reaso n of insanity ; (4) the trial cou rt erroneously

allowed the state

to call a psy

chiatrist because the defense was not notified pre-trial that he would be an expert witness; (5) the trial court improperly

found that a psychiatrist was qualified to testify as an e xpert; and (6) the trial court erroneously

refused the defendant's request to have the opening and rebuttal closing arguments. After a through review of the record, we reverse the judgment of conviction, modify the judgment to “Not Guilty by Reason of Insanity,” and remand for further proceedings pursuant to Tenn. Code Ann. § 33-7-303. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Reversed; Modified to “Not Guilty By Reason of Insanity;” Remanded
J OE G. R ILEY , J., delivered the op inion of the court,

in which J OHN E VERETT W ILLI AMS and R OBERT W. W EDEMEYER , JJ., joined.
Leslie I. Ballin, Me

mphis, Tennessee

, and Steven E. Fa

rese, Ashland, Mi

ssissippi, for

the appellant, Christopher M. Flake.
Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant At torne y General; William L. Gibbons, District A

ttorney General ; Thomas D.

Henderso

n and John W. Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.

OPINION1 The defendant wasfound inco mpetent to sta nd trial on sev eral occasio ns. After receiving treatment, including anti-psychotic medication, t he defendant was f

inally det

ermined to be competent to stand tri al in Februar

y 1999

. Defenda nt’s trial began N ovemb er 15, 19 99. -2- FACTS
The background of

this case is

quite bizarre, although the facts surrounding the shooting are undisputed. The victim was a pastoral counselor at a local church, and he met the d efend ant approximately

six weeks prior to the shootin g. The victim sch

eduled counselin

g sessions with

the defe nd ant three times, each of which the defendant canceled. On April 6, 1997, the victim and Patricia Ann Hoffman were meeting in his office when the defendant, whom the victim recognized, "stuck his head in" the office and inquired if he co uld meet with the victim. When the v ictim responded that he

would meet with the defe

ndant in fifteen minutes, the defendant shook his head in d isapproval and exited the office. Several mi nutes late r the defend ant burst i nto the vic tim's office, wielding a pistol, and yelled the victim's name. The startled victim inquired if the defendant was kidding. The def

endant responde

d that h e was n ot kidding and shot the victim. Hoffman screamed, and the defendant held a gun to Hoffman's head befor e fleeing. On cross-examination, the victim testified that there was no ill will between the defendant andhim. He described theincide nt as being "[s]omething totally off the wall, weird, and crazy .” He further described the

defendant

as changing f

rom a normal appe

arance when the

defendant first walked into his office, into being “horrible looking,” “crazed,” and "the devil himself.”
Officer Robert Brandon Lampley was dispatched to the de fendant's residence. Officer Lampley testified that he s

aw a vehicle

pull in the defendant's driveway. The defenda nt then exited this vehicle and was taken into custody. The defendant's fa ther exited the house

and instructed the defendant to cooperate with the officers.
Detective Johnny T. Brown met with the defendant a

t the residence a

nd advised him of his Miranda righ ts. T he defendant responded that he understood them. After informing Detective Brownthat the weapon used in the shooting was located in the vehicle's glove box, the defendant executeda consent to search form. Detective Brown opened the g love box and seized the pistol.
At trial, the defendant relied upon the insanity defense and o ffered the testimony of Dr. Ly nne Zager, Dr. Hilary Linder, Dr. Rokeya Farooque, Dr. Sam Craddock, Dr.John Hutson and Rebecca Smith. The state offered rebuttal testimony of Dr. Joh n Mc Into sh, Dr. Mar k Lut tre ll, and Joh n Pe rry. All of these

witnesses testified about their mental evaluations performed on, or observations of, the defendant after the commission of the offense. 1
Dr. Ly nne Zager, a cli nical psychol ogist and Di rector of th e Forensic S ervices Pro gr am a t Midtown Mental Health Center, testified that she evaluated the defendant from October 17, 1997, to January 28, 1998, under a court order for the purpose of determining the defendant’s competency for trial and ment al state at the time of the shooting. Dr. Zager determined that the defendant2 Dr. John son was de ceased at the time of trial. -3-

suffered from paranoid schizophrenia on April 6, 1997, and due his severe mental illness, he could notappreciate the

wrongfulness of his co nduct. She stated the defendant’s mental state was evidenced

in Dr. Janet Joh nson’s med ical records, upon which Dr. Zager relied. 2 Dr. Johnson’s records indicated that she saw the defendant on April 3, 1997, three days prior to the shooting, at the request of the defendant’s fa ther “because

of his [the defendant’s] bizarre behavior.” The records indicatedthe manifestation of the defendant’s bizarre behavior occurred when he, after seeing a man on a farm, placed h

is Prozac medicatio

n in the man’s mailbo

x because he “fe

lt that the man was in need of help.” Dr. Hilary Linder, a

psychiatrist employed by the state at Western Mental Health Institute, testified that he evaluated the defendant pursuant to a court order in November 1998. Hedetermined the defendant w as a paranoi d schizop hrenic; was severely menta lly ill at the time of the shooting; and could not appreciate the wrongfulness of his actions.
Dr. Ro keya Farooque, a psychiatrist employe d by the state at Middle Tennessee Mental Health Institute, tes

tif ied she evaluated the defendant from November 17, 1997, to December 16, 1997. Dr. Farooque stated that the defendant’s medical records indicated he experienced hallucinations,

blackouts, major depression, an anxie ty disorder, and an obsessive-compulsive disorder starting at the age of 12 or 13, and he received psychiatric treatment and hospitalization as a result of his conditions. Dr. Farooque testified that the defendant was a paranoid schizophrenic, and he could not appreciate the wrongfulness of his conduct.
Dr. Sam Craddock, a clinical psychologist employed by the state at Middle Tennessee Mental Health Institute, testified that he examined the def endant in N ovember and December of 1997, pursuant to acourt order. He tested the defendant and found that the defendan t was not ma lingering, although he conceded

certain test results might suggest malingering. Dr. Craddock opined that the defendant suffered from a

serious mental c

ondition at the time of the shooting, and he could not appreciate

the wrongfulness of his actions “with a condition.” He stated that the defendant believed he “morally felt justified to do it.”
Dr. John Hutson, a clinical psychologist, testified that he was hired by the

defendant’s fa

mily andi nitia lly met with the defendant on April 8, 1997, two days after the shooting, in the Shelby County Jail. Initially, the defendant refused to talk with him because he was ins tructed by h

is attorney to be silent. Accordingly, Dr. Hutson requested defense counsel instruct the defendant that it was permissible to talk with him, and defense counsel complied. Dr. Hutson tes tified that the MMPI-II test indicated the defendant was psychotic. Dr. Hutson further testified that he had done competency

/insanity ev aluations on over 10,000 pat ients since 1974, a

nd he concluded in

only approximately

25 cases that

the patient

could not apprec

iate the wrongf

ulness of his or her

conduct. He stated that the defendant suffered from “a very serious incapacitating psy chiatric illness” from which the defendant could not appreciate t

he wrongfulne

ss of his actions. Dr. Hutson further stated that “ Mr. Flake is one

of [the] three most

disturbed individuals I’ve ever seen in my care er.” Dr.-4-

Hutson diagnosed the defendant as suffering f rom schizophrenia, undifferentiated-disorganized type. Dr. Hutson insisted that he did not believe the defendant was malingering, although he conceded somemental health experts might use a different numbering system on the MMPI -II test which

might suggest otherwise.
Rebecca Smith, a psychiatric social worker employe d by the state at Western Mental Health Institute, examined the defendant and stated that the

defendant belie

ved the victim was a

terrorist. She further testified that the defendant claimed that voices told him to shoot the victim, butnot kill him, and it would be a signal for the FBI.
The state’s rebuttal proof consisted of testimony fr

om Dr. John McInt

osh, Dr. Mark L

uttrell, and John Perry.
Dr. John McIntosh, a psychiatrist employed by the Shelby County

Jail to render psy

chiatric care to inmates, testified that he conferred with the defendant for approximately one hour on May 9, 1997, at the Shelby

County Jail. Dr. McIntosh testified he found no evidence that the defendant suffered from psycho

sis. Dr. McIntosh believed the defendant had a depressive disorder and did not suffer from schizophrenia. On cross-examination, D r. McIntosh conceded that the other mental health professionals had an opportunity to observe the defendant for a thirty-day period andwere in a better position to perform a comprehensive evaluation. Dr. McIntosh a cknowledged th

at he did notha ve the defendant’s prior medical records, and the defendant seemed to be doing we ll on the psychotrop

ic medicine he had b

een taking. Dr.

McIntosh pre

scribed both anti-

depressant and a

ntipsychotic medications. Dr. McIntosh further conceded that he agree d with the other

evaluations that the d efendant had a “serious mental disease,” but disagreed that it was schizophrenia. He furthe r acknowledged

that he did not examin

e the defendant

for the purpose

of determining competency or ins ani ty. Dr. McIntosh was never asked if he believed the defendant could a ppreciate the wrongfulness of his conduct in view of his severe mental disease.
Dr. Mark Luttrell, a physician who provided medical servic es at the Shelby County Jail, testified th a t he was the defendant’s primary care phy sician. Additionally, he stated that he had completeda residency in psychiatry but was not board certified in psychiatry . H e stated that he treated the defendant in Jul

y 1997, for a

urinary tr

act infect ion and noticed no apparent mental distress. Dr. Luttrell further stated that the defendant “was unremarka ble, . . . just like everybody else.” Dr. Luttrell further stated that he obse

rved no signs of s

chizophrenia. He

testified that he d

id notconduct a mental evaluation of the defendant, but agreed with Dr. McIntosh’s diagnosis that the defendant suffered from a severe mental disorder.
John Perry, the director of mental health for the Shelby County Jail, testified that he saw the defendant four or five days per week. He further stated that the defendant did not

“sit and stare” in jail, as he stated t

he defendant wa

s doing in court. A

dditionally,

Perry testif

ied that he joked w

ith the defendant

one week prior to court concerning the defendant’s we

ight gain exper

ienced while in jail. On cross-examination, Perry acknowledged that he put the defe nda nt i n “p rot ect ive cus tod y” since he had experienced problems with other inmates.-5-

The jury was instructed on the offense of attempted first degree murder and the lesser offenses of attempted sec ond degree mur

der, att empted voluntary manslaughter and aggra vated assault. The jury returned a guilty verdict on attempted voluntary manslaughter.

I. INSANITY DEFENSE
The defendant contends that he met his burden of proo

f in establishing

the defense

of insanity by clear and convincing evidence. Upon our review of the record, we must agree w ith the defendant

. A. Standard of Review
EffectiveJuly 1, 1995, the defense of insanity b

ecame an affirmative d

efense. The sta

tute provides:
It is an affirmative defen

se to prosecution tha

t, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mentaldisease or defect, was unable

to appreciate th

e nature or wron

gfulness of suc

h defendant's a

cts. Mental disease

or defect does not otherwise constitute a defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
Tenn. Code Ann. § 39-11-501(a) (emphasis added). This statute places the burden on the defendant to establish insanity by clear and convincing evidence; the state is not required to provesanity. See State v. Holder , 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999).
In determining the i ssue of insanity, the trier of fact may c onsider both lay and expert testimonyand may discount expert testimony which it find s to be in conflict with the facts of the case. State v. Sparks , 891 S.W.2d 607, 616 (Tenn. 1995); State v. Jackson , 890 S.W.2d 436, 440 (Tenn. 1994). Where there is a conflict between expert testimony and testimony as to the facts, the trier of fact is not required to accept expert testimony over other testimony and must determine the weight and credibility of each in light of all the facts and circumstance s of the ca se. Edwards v. State , 540 S.W.2d 641, 647 (Tenn . 1976 ). In determining the defendant's me

ntal status at the tim

e of the alleged crime, the trier of fact may look to the evidenc e of hi s actions and word s at or near the time of the offense. Sparks , 89 1 S.W.2d at 6 16; Humphreys v . State , 531 S.W.2d 127, 132 (Tenn. Crim. App. 1975). B. Analysis
It is undisputed that the defendant had a prior history of

mental illness with h

ospitalizations. He was comprehensively evaluated on numerous occasions, pursuant to court orders, a

fter his arrest on these charge

s. All such evalua

tions were perfo

rmed by ment

al health experts w

ith extensi v e experience in conducti

ng ment al health evaluations for the criminal justice system. Some were employed by the State of Tennessee; others were not. All

agreed the de

fendant was inco

mpetent to3 We do not view Dr. Craddock’s testimony that the defendant believed the shooting wa s morally justified to be inconsistent with the testimony of the other four evaluating m ental health experts. -6- stand trial for many

months. In fact, the defendant remained incompetent to stand trial for almost two years after the shooting. A fte r ma ny m onths of treatmen t and medication, h

e was finally declared competent to stand trial in February 1999. Both evalua

ting psych

iatrists and all evaluating clinical psychologists testified that the defendant, at the time of the offense, suffered from a severe mental disease and was unable to appre ciatethe wrongfulne ss of his act. 3 The medical testimony consistently

supported the statutory elements of the insanity defe nse. See Tenn. Code Ann. § 39-11- 501. Even the two non-evalu ating phys icians called by

the state in

rebuttal agreed that the defendant suffered from a severe mental disease.
The testimony of state witnesses Dr. John McIntosh, Dr. Mark Luttrell

, and John Perry

did notcreate an issue for the jury. Dr.McIntosh did not perform an evaluation to determine the basis for an insanity

defense; he examined the defendant for only one hour; he acknowle dged that the other professionals

who performed comprehensive eval uations were in a better position to render an analysis; he did not have the defendant’s prior medical records; he agreed that

the defendant had a “severemental disease;” and he did not testify as to appreciation of the wrongfulness of conduct basedupon this severe mental disease. Dr. Luttrell trea ted the defenda

nt for a phys

ical illness in July 1997; he did not

conduct a mental evaluation; yet, he agreed that the defendant had a severe mental disorder. John Perry offered no insight into the defendant’s mental condition at or near the time of the shooting. A defendant is required to establish the defe nse of insanity by “clear a nd convincing ev idence.” Tenn. Code Ann. § 39 -11-501(a). “Cl

ear and convinc

ing evidence”

is “evidence in which there is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.” Holder, 15 S.W.3d at 911 (citations o mitted). Although

this is a higher standard than “preponderance

of the evidence,”

it is a lesser standard than “beyond a reasonable doubt.” O’Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).
After a through review of the evidence, we reach the following inesca pable concl usion: a rational trier of fact co

uld only find that there is no serious or subs tantial doubt that th

e defendant, at the time of the shooting, was unable to appreciate the wrongfulness of his act as a result of a seve re mental disease. Thus, the defense of insanity was established by clear and convinci n g evidence. See. Tenn. Code Ann. § 39-11-501(a). Although this court affirm ed the rejection

of the insanity

defe nse in Holder , 15 S.W.3d at 91 4, a case in which expert testimony supported the insanity defe nse, we view Holder

a s distinguishable. We emphasize that ea ch case is fact specific. In Holder , the trial judge, as the trier of fact, specifically recited numerous instances of the defe ndants’s conduct at or near the time o f commission of the offen se, including the defendant’s admission that he knew the killing was “wrong.” Id . at 909-10. We believe the facts of the instant case are distinguishable. In short, our review of therecord does not reveal sufficient lay testimony , nor expert testimony, concerning the-7-

defendant’s mental state

at or near the time

of the shooting tha

t would justify

rejection of the

insanity defense.
In reaching this conclusion we are mindful that issues of credibility, the weight and value to be given the evidence, as well asall factual issues raised by the evidence, are for the trier of fact, not this court. St ate v. Tuttle , 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor may this court reweigh or re-evaluate the evidence. State v. Cabb age , 571 S.W.2d 832, 835 (Tenn. 1978). Nevertheless,

if we determine,

after viewing

the evidence in

a light most favorable to thestate, that a rational trier of

fact could only

find that insanity

has b een estab lished by clear and convincing evidence, then a guilty verdict may not be sustained. See generally Tenn. R. App. P. 13(e

); Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 ( 1979). We so find in th is case.
Acco rdi ngly, the judgment must be modified to “Not Guilty By Reason of I nsanity” and the case remanded for further proceedings pursuant to Tenn. Code Ann. § 33-7-303.

II. SUPPRESSION
The defendant conte

nds the trial cour

t erred by d

enying his

motio n to suppres s. Although this issue is procedurally moot due to our reversal of the conviction,

we will briefly

address this

issue in the event of review by the Supreme Court of Tennessee.
At the suppression he

aring, only

Officer Robert

Brandon La

mp le y, Detective Johnny T. Brown, and Dr . John Hutson testified. Officer Lampley and Detective B rown testified as to the i r encounter with the d efen dant at his reside nce at the time of h

is apprehension.

In essence,

both indicatedthat defendant seemed to understand what was transpiring, knowingly indicat e d his involvement

in t h e shooting, told them where the weapon was, and knowingly sig ned the consent to sea rch his car which led to the seizure of the weapon. Dr. Hutson testified that the d efendan t suffered from schizophrenia, was one of the three most mentally disturbed people he had seen, and could not understanding

ly waive his Miranda

rights nor understanding consent to a search. The trial court found that

the Miranda

waiver and

consent to search were knowingly executed and denied the motion to suppress.
This issue presents

a close question; however, we find it unnecessary to determine whether the evidence preponderates against the findings of the trial court. If the trial court did err in failing to grant the motion to suppress, we conclude the admission into evidence of the de fendant ’s statement and the weapon was clearly harmless. I t was undisputed that the defendant shot the victim. The admission of

the defendant’s statement and weapon did not affect the judgment. See Tenn. R. App. P. 36(b).

III. TESTIMONY OF DR. HIL ARY LINDER-8-

The defendant contends that thetrial court erroneously allowed the state to elicit Dr. Linder’ s testimony that the defendant said he would be released wit hin 60 t o 90 days if found not guilty by reasonof insanit

y, while refusing to allow Dr. Linder’s testimony that the def endant was “committabl e” and would not likely be released with

in such period. We f

ind the trial court

acte d properly.
A. Denial of Testim

ony Concerning Com

mitment
Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of conseque

nce to the determ

ination of the act

ion more probable

or less probable t

han it would be without the evidence. ” Tenn. R. Evid. 401. For the defendant to be successful in an insanity defense, he must p

rove by cle

ar and convincin

g evidence tha

t “ at the time of the commission of the acts constitutin

g the offense , the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature or wro ngfu lness of such defendant's acts.” Tenn. Code Ann. § 39-11-501(a)(

emphasisadded). The issue of whether the de

fendant was “c ommittable” at the concl usion of his trial is irre levant to his defe

nse of insanity

, nor is such evide

nce necessa

ry t o correct any incorrect impression left with the jury

. B. Defendant’s Belief Concerning His Release Date
The defendant alleges that the trial court impro perly allowed Dr. Linder’s testimony concerning the defendant’s perceived belief that he would be release

d within 60 to 90 day

s if he were found not guilty by reason of insanity . The defen dan t objected to this testimony with a general objection that appeared to be based on hearsay. During a jury-out hearing, the trial court overr uled the defendant’s objection and allowed this testimony holding that it showed the defendant’s state of mind.
On appeal, the defendant alleges this testimony was unfairly pre judicial and did not give the jury an accurate view of the potential outcome. The defendant has changed theor ies on appea l. Since an appella

nt cann ot change theor

ies from the trial c

ourt to the appella

te court, this issue

is waived. State v. Dooley , 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000) . Regardless of waiver , it is clear to this court that the testimony was proper ly admitted b ecause it showed a motive for the defendant to exaggerate his mental condition. The trial court prope

rly instruct

ed the jury t

hat “this has nothing to do w ith what the law is and you’re to make no assumptions from what he’s said.” This issue is without m

erit.

IV. NOTIFICATION OF EXPERT WITNESS-9-

The defendant conte

nds that the trial c

ourt erroneously

allowed the rebuttal testimony of Dr. John McIntosh since he was not timely notified that Dr. McIntosh would testify . We disagree. Tenn. Code Ann. § 40

-17-106 provides

that:
It is the duty of the di strict at torney general to endorse on each indictment or presentment,

at the term at

which the same

is found, the names of such witnesses as the district attorney

general intends shall be summoned in the cause, and sign such indictment or presentment name thereto.
The defendant conc

edes this statute is

directory in nature, and the state’s failure to provide notice of a witness does no t necessar ily disqualify that witness from testify ing. See State v. Hutchison , 898 S.W.2d 161, 170 (Tenn. 1994). It is clear from the record that the state did not have knowledge of this wit nes s’ i den tit y unt il D r. Za ger’ s te sti mon y, when the state was first allowed the opportunity

to review certain records. Additionally, the defendant was given ample

opportunity t

o cross-examine Dr. McIntosh. The trial court properly a dmitted this rebuttal testimony.

V. EXPERT STATUS OF DR . JOHN McINTOSH
The defendant

next contends that th

e trial court err

oneously allowed Dr. McIntosh to testify as an expert. We disagree.
A. Standard of Review Tenn. R. Evid. 702 provides “[i]f scientific, technical, or other specialized

knowledge will substantially

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledg

e, skill, experienc

e, training, or e

ducation may

testify in the form of an opinion or otherwise.” The determination of the qualifications of an expert witness andthe relevancy and competency of expert testimony are matters entrusted to the sound discretion of the tria l court. State v. Pulliam , 950 S.W.2d 360, 364 (T enn. Crim. App. 1996

) (citation s omitted). This court will not ov erturn the trial c

ourt' s decision absent a clear abuse of discretion. Id. B. Analysis
Dr. McIntosh testi

fied that he had be

en board certif

ied in adul t psychiatry since 1981; he workedin approximately ten prison systems; he had served as head of a psychiatric ward; and he had served as a fore

nsic evaluator. The d

efendant objec

ted to expert status b

ecause Dr. McIntosh had never been “off

icially declared” by a

ny court as an expert. We find no authority, nor does the defendant citeany, that r

equires a witness to have previously testified as an expert in order to be granted expert status by

the trial court. T

he trial court did

not err in allowing Dr. McIntosh to testify as an expert.-10- VI. CLOSING ARGUMEN TS
The defendant alleges the trial court erroneously

denied his reque

st to give the opening and rebuttal closing argument at the conclusion of the proof. We disagree.
Tenn. R. Crim. P. 29.1 (d) provides in pe rtinent part that:

. . . while the [s]tate, having the burden of proof, shall have the right to open an d closethe argument, this right shall not be exercised in such way as to deprive the defendant of the oppo rtunity to ful ly answer all [ s]tate argu ment. The t rial judge upon motion shall enf

orce this purpose

by appropr

iate rulings.
The defendant argues that because he is required to pro

ve the affirmati

ve defense of in

sanity by clear and convincing evidence , he i s entitled to the ope ning and rebutta

l closing argu

ment. Firs tly, the state still had the burden of proof of establishing guilt beyond a reasonable doubt. The insanity defense did not

erase that burde

n. Secondly,

the order of fina

l argument is

not inherently prejudicial to the defendant. See State v. Smith , 857 S.W.2d 1, 24 (Tenn. 1993) (holding the order of final argument

allowing state to

begin and close final argument

in a capital sente

ncing hearing

is notprejudicial to

defendant). The

trial court did

not err in allowing the state to open and close final argument.

CONCLUSION
Based upon our review of

the record, we reverse the judgment of the trial court, modify the judgment to “Not Guilty by Reason of I nsanity,” and

remand for furt

her proceeding

s pursuant to Tenn. Code Ann. § 33-7-303.

___________________________________ JOE G. RILEY, JUDGE