### IN THE SUPREME COURT OF TENNESS EE AT JACKSON April 2, 2002 Session
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 No. 97-09256 Bernie Weinman, Judge

No. W2000-01131-SC-R11-CD Filed - August 29, 2002

E. R IL EY A NDERSON , J., with whom A DOLPHO A. B IRCH , J R ., J., j oi ns, concurring in part and dissenting

in part.

I concur in the majority’s holding that a jur y verdict re

jecting the insanity defense should be reversed only if the appellate c ourt, viewing the evidence in a light most favorable to the prosecution, concludes that no reasonable trier of fact could have failed to find that the defendant’s insanity at the time of the offense was established by clear and convincing evidence

. I disagree, however, with the majority ’s application of the standard to t he fact s and circumstances of this case in which virtually a ll of the lay and expert testimony establ ished t he defendant’s in sa ni ty at the time of the offen se . Tenn. Code Ann. § 39-11-501(a) (1997). I n my view, the Court of

Criminal Appeals correctly determined that no reasonable trier of fact could have failed to find that the defendant’s insanity at the time of the off

ens e was established by clear and convincing evid

ence. I theref ore disse nt.
As the majority rec ognizes, the evidence indicated that the only two witnesses to the off

ense – Turner Carpenter, the pastoral counselor, and Patricia Ann Hoffman – described the shooting as bizarre and unexplained. According to Carpenter and Hof fman, they

were in C arpente

r’s offi ce in
a counseling session whe n t he defendant “stuck his head in” and asked to mee t with Carpenter. When Carpente

r said he would mee

t with the d

efenda nt in fifte en minute s, the def endant le ft brief ly and then suddenly returned wielding a pistol and ye lling Carpenter’s name. After shooting Carpenter, the defendant held the pistol to Hoffman’s head for a few mom

ents and then fled from the scene. Carpenter testified that the defendant was yelling

in an “abnormal” voice and had chang ed from a normal appearance to “horr ible looking,” “crazed, ” and "the devil himself.” Carpenter1 After the of fense , th e defendant

showed no emoti on when he was ar rest ed and looked “di str aught ” or “ti red” when quest

ioned about t

he wher eab outs o f the gun. T he de fenda nt told o fficers that the gun wa s in a veh icle gl ove bo x an d he e xecu ted a con sen t t o se arc h f orm.
2 Dr. J ohns on wa s dec eased at the time of trial.
-2- described the shooting as “totally of f the wall, weird, and crazy ,” and said that there had been no ill will between he an d the def endant. 1

The evidence also establishe d that th e defendant had a ten-y ear histo ry of menta l illness, including depress ion, mixed c hemical dep endency , oppositional disorder, and major affective disorder, for which he had been hospitalized

. The evidence showed that his mental state had substantia lly deteriorated during the week immedi ately pre ceding this shooting. In f act, the defe ndan t’s bizarre behavior was so apparent that his worried f ather scheduled an additional appointment

with the defendant’s treating psy chiatrist, Dr. Janet Johnson, on April 3, 1997, only two da ys afte r his previous sess ion. Dr. Joh nson’s not

es from th

e April 3, 1997 visit, which wa s only three days befor

e the shooting, described

a recent incident where the defe ndant saw a manworking
on his farm and left

his Prozac

medicati on inthe man’s mailbox because he “looked like he needed help.”

Fi na ll y, the trial evidence reveal ed that a total of five mental he alth prof essional s, both psy chiatris ts and psy

cholog ists, perf

ormed num

erous, comprehensive evaluations of the defendant and all determined

that he suffered from a severe mental illn

ess, schi zophrenia , and wasunable to apprec iatethe wron gfulne ss of his conduct in shooting the victim . Ind

eed, af ter the o ffense

and prior to trial, the

defenda nt was exam

ined by a number

of psy chiatris ts and, asa

result of the proof, the trial court foundhim to be inc ompetent to stand trial for a period of over two y ears after the offense. The trial cou

rt decla red him compet ent to stand trial only after the State had furnished extensive treatment and anti-psy chotic medication over the more than two y ears following the offense.

The first mental health professional to evaluate the defendant was Dr. L ynne Z ager, a clinical psy cholog ist

and Director of the Forensic Service s Program at Midtown Mental Health Center. She examined him over a four-month period f rom Octob er 1997 to

January 1998 to de

termine h is competency

to stand trial and his mental state at the time of the offense. Dr. Zag er testified that the defendant suffe red fro m t he severe mental illness of paranoid schizophrenia and that due to the mental illness, he could not appreciate the wrongfulness of his conduct during the shooti ng on Ap ril 6, 1997. Dr. Zager re

lied in part on the notes of the defendant’s trea ti ng psyc hiatrist, Dr. Janet Johnson, regarding the defendant’s bizarre behavior. 2

Next to testify was Dr. H

ilary Linde r, a pra cticing psy chiatris tfor 33 yea

rs employed by

the Stateat Wester

n Mental H ealth I

nstitute. He evalua

ted th e defen dant i n November of 1998. Dr. Linder , like D r. Zager, deter mined that the defendant had suffered from pa ranoid schizophrenia since his early teen yea rs and could not appreciate the wrongfulness of his acts due to his severe mental illness.-3-

Also te st if

yin g f or th e d ef en se wa s D r. Ro ke ya

Farooq ue, a psy chiatris t at Middle

Tennessee Mental Health Institute, who eva lua ted the defendant from November 17, 1997, to Dece mber 16, 1997. Dr. Farooque review e d the defendant’s medical records which indica ted the defendant had experienced

prior hallucinations associated with dru g abuse , blackou ts, major d

epressi on, an an

xiety disorder, and an obsessive-compulsive disorder. Dr. Farooque noted that the defendant

had received psy chiatric

treatment, including hospitalization, for his prior conditions. Dr. Farooque testified that the defendant suffered from para noid schizophrenia and was incapable of apprecia ting the wrongfulness of his conduct in committing the offense.

The last St

ate-emp loy ed menta

l health professional testifying for the defense was Dr. Sam Craddock, a clinical psy chologist at Middle Tennessee Mental Health Institute, who stated that he evaluated the defendant from November 17 , 19 97 to December 16, 1997. He agreed that the defendant had para noid schizo

phrenia , which is a

serious mental illness, a

nd that the

defenda nt could notappreciate the

wrongfulness of his actions in committing the offense. Dr. Craddock added that the defenda

nt “mora lly felt justified” to shoot

the victim

because he appa rently believe d the vict

im was a terrorist.

The final mental health professional to testify for the defense was Dr. John Hutson, a clinical psy cholog ist

employed by

the defense, who stated

that he ha d evalua ted the de fendant , reviewed his lengthy history of menta l illness and tre atm ent , an d ad mi ni st ere d se ver al t est s, i ncl udi ng t he M MP III, which revealed he was psy chotic. According to Dr. Hutson, the defendan t believed he was working for the government as an agent or enforcer when he shot the victim. Dr. Hutson determined that the defendant suffered from schizophrenia, undifferentiated-disorganized ty pe, which he called
a serious, incapacitating mental illness. He testified that the defe ndant wa s one of th

e three “most disturbed individuals” he had ever seen am ong the

over 10, 000 perso ns he had evaluat ed in his career, and one of only 25 pa t ie nts whom Dr. Hutson concluded could not appreciate the wrongf ulness of his or her

conduct.

Fi na ll y, Rebecca Smith, a psyc hiatric social worker at Western Mental Heal th Ins tit ute, testified th at she i nterviewed and obtained a history from the defendant. According to Smith, the defendant believe d that Car

pente r , the pastoral counselor, was a terrorist with acce ss to chemical weapons , and that

voices to ld the def

endant to shoot the v

ictim as a signal t o the F.B .I. to

come to the church to take care of the ter rorists and mafia associated with the church.

To summarize, allo f the mental health professionals who completed numerous and comprehensive evaluations of the defendant consistently determined that

he suffered from a severe mental illness, paranoi d schizophr enia, and that he w as unable to appre ciate the

wrongf ulness of his conduct in shooting the victim. A ll of the se professionals had y ears of experience in conducting competency

and mental state evaluations. Th ree of t hese experts were employed by the State of Tennessee and had no motive to pr ovide tes timony

favora ble to the defense ; indeed, three of these
sameexpert wit

nesses ha d testifie d on beha

lf of the S tate with

regar d to whether the defendant was competent

to stand trial in this proceeding. In c ontras t, the Stat e presented no expert testimony-4-

showing that the defendant did not havea mental i llness or t hat he co uld appreciate

the wron gfulne ss of his conduct.

Alth ough the majority has ac curately summar ized the e vidence

from the r

ecord, i t nonethel ess upholds the

jury verdict o n the basi s that the jury is to weig h all of the facts and circumstances and that the jury is not require d to accept expert testimony. I agree that the jury has those responsibilities, yet I

disagree with the majority ’s conclusions in this case for several reasons
.

First, the majority arg

ues that the defendant fabricated an answ er on a gun application made befo re the o ffense

and acted “norma

lly” on the day

of the of fense pr ior to the s hooting. These normal actions, however, are as chara cteristic of schizophrenia as abn ormal ac tions. Second, the majority specula tes th at th e j ur y may have be lieved that the defendant’s motive for shooting the victim w as n ot because he thought the victim was a terrorist but was in somewa y related to the defendant’s fantasy that

the victim

was a hom

osexual. Th

e eviden ce noted by t he major ity did not directly relate t o the defendant’s mental state at the time of the offense, in contrast to the testimony of the two ey

e-witne sses to the offe

nse and th e testimon

y of five men tal healt h experts regarding the de fendant’s mental state at the time of the offense. Moreover, the infe rences relied upon by

the majority did not refute the

evidenc e of the d

efenda nt’s seri ous menta

l illness a nd his incapac ity t

o app reciate

the wrongfulness of his actions at the time of the offense . In fact, the expert witnesses testified withoutcontradiction that persons suffering from schizophrenia do not act bizarre or appear “crazy”all the time and often behave normally for periods of time.

Fi na ll y, the major

ity a rgues t hat the Sta

te’s cro ss- examinat ion of the defense experts att empted to establish that the defendant was malingering a nd had never complained o f auditor y hallucinations until after this offense was committed. All of the mental he alth exper

ts uniform

ly and without contradiction responded, however, that the defenda ntwas not malingering or feigning the sym ptoms of his mental illn ess . Moreover, two of the State’s own rebuttal witnesses – Dr. John McIn toshand Dr. Mark Luttrell – re futed the malingering theory by ag reeing that the d efendan t suffered from a serious mental disease. Significantly , the State’s rebuttal witnesses were not asked by the State the core question relevant to the defense of insanity , i.e. , whethe r the def endant c ould appreciate the nature or wrongfulness of his conduct in shooting the victim.

T his is not a case in which experts offered differe nt opinions regarding the defenda nt’ s mental state. All were un animous a nd testifi ed withou

t contra dictio n that the defendant suffered from a sever e mental i llness, schizophren ia, and th at he cou

ld notapprec iate the w

rongfu lness of h is conduct. Nor is this a case in which there was lay testimony reg arding the facts and circumstance s of the offense that differed from the expert testimony . In short, I can find no basis in this record for the jury to have

reasonably

rejected the expert or lay

evidence regarding

the defendant’s mental sta te at the time of t he offense. Al though I am fully aware that reversal of a jury ’s verdict under the standardwe have adopted will be rare, I am concerned that by

upholding the jury’s verdic tunder the f acts and circ

umstance s of this ca se, the ma jority has made

appella te review of a ju

ry ’s verdi c t meaningless and useless.-5-

Ac co rd in gl y, I concur in the major ity’ s hold ing that

a jury verdict rejecting the in sanity defense should be r

everse d only

if the ap pellate c ourt, vie

wing the evidenc e in a lig

ht most favora ble to the prosecution, concludes that no reasonable trier of fact could have f

ailed to f in d that the def endant’s insanity at the time of the offe nse was established by

clear and convincing evidence

. I disagree , however, with the majority’s application of the standard to the facts and circumstance s of this case. In my

view, the Court of Criminal Appeals correctly determined that

no reasonable trier of fact could have f

ailed to f ind that the defendant’s insanity at the time of the offense was establish ed by clear a nd convincing ev

idence. I the

refore dissent. I am authorized to state that Justice Birch joins in this concurring a nd dissenting opinion.

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_ E. RIL EY ANDER SON, JUSTI CE