### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs F eb ru ar y 24, 200 4



### STA TE OF TENNESS EE v. RI CHARD LAFAYETTE S UMNER

Appeal f rom the Circ uit Court for Cocke County No. 8285 Ben W. Hooper, II, Jud ge

_______________________
No. E2003-00570-CC A-R3- CD ___________April 30, 2004____________

The de fenda

nt, Richard L afa

y ette Sumner, a

ppeals a s of rig ht from his convictions by a jury in the Coc ke County

Cir c uit Court fo r tw o c ounts of fi rs t de g re e pr e me dit a te d mur de r, on e c ount o f f ir st deg ree felony

murder, a

nd one count of

ag g ravated ar son. The def endant wa s sentence d to life imprisonment with the possibi lity of parole for eac h murder and twenty -five y ear s for the a g g ravated

ars on , to be se rv e d c on c ur re ntl y in the De pa

rtme nt of Cor

re c tio n. He c on te nd s that the e vid e nc e is ins uf fi c ie nt t o s up po rt

the jur y ’s re je c tio n o f h is i ns anit

y de fe ns e . We ho ld that th e e vid e nc e is sufficie nt to convict the def endant of first deg ree murder. We also hold, though, that the convictions for the preme ditated and felony murders in c ounts one and thre e should be mer g ed pursua nt to the Double Jeopardy

Clause. We aff

irm the convictions, but vacate t he judgments as to counts one a nd three an d r e ma n d th e c a s e f

o r th e tr ia l c o u rt t o e n te r

a ju d g me n t r e f

le c ti n g a me r g e r o f th o s e two

c ounts

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nts of

the Circ uit Court Aff

irm ed in Par t; Vacat ed in Par t; Case Rem anded

J OS EP H M. T I PTON , J ., delivere d the opinion of the cour t, in which N OR MA M C G EE O G LE and A L AN E. G L EN N , J J ., joined.

Edwar d C. Mill er, D istrict Publi c De fende r, for the appe llant, Richard L afa y ette Sumner.

Paul G. Summers, Attorney Gene ral a

nd Reporter ; Thomas E. Wil liams, I I I , Assistant Attorney Ge ne ra l; Al C. Sch mut zer , Jr. , D istri c t A tto rn e y Ge ne ra l; Ja me s B ru c e Dunn and Joanne El lis
, Assistant District Attorney s Gene ral, for the appe llee, State of Te nnessee

.

OP IN ION

This case relates to the defe ndant’s killing his mother and fathe r, Richard a nd J une Sumner, on September 7, 2000. Sue Massey
, the vi ctims’ and the defe ndant’s neighbor
, testified that in the

ear ly hours of Septembe r 7, 2000, she sm elled sm oke but di d not see a fire w hen she looke d out of her w indow tow ar d t h e victims’ trailer . She said that around 6:00 a .m., her son re turned home,2

blowing his c ar’ s horn. She said he told her the victims’ trailer w as on fire and t o ca l l 9 -1-1. On

cross-e x amination, Ms. Massey testified that she wa s awa

re the defe ndant had mental problems. She said the def

endant’ s mother was w orried a bout him but never m en t i o n ed the de fenda nt becoming vio le nt.

Wil lard Ta

y lor, Chief of the Coc ke County Fire Depa

rtment, testified that whe n he ar rived at the victims’ trailer

on September 7, 2000, it wa s eng ulfed in flame s. He said tha t afte r the fir e de pa rtme nt e xtinguis he d th e fi re , the y we nt t hr ou g h th e re ma ins of

the tr a ile r a

nd fo un d tw o b od ie s. He sa id that he later

found the de fenda

nt about one-ha lf mile from the tra ile r an d t h at h e wa s standing next t o a ca

r with a shotg un on top of the ca r. He said he left without talking to the de f e n d an t an d to ld th e p o li c e w h e r e th e y c o u ld f in d h im

. O n c r o s s

- e xa mi n a ti o n , Ch ief Ta y lor
te sti fi e d th a t th e de fe nd a

nt d id n ot h ide or

ru n f ro m hi m.
April Mullins, t he def

endant’ s sister, testified that her mother wa s s i x t y -one y ear s old and that her fathe r wa s fifty -eig ht y ear s old when they wer e killed. She said that her mother owne d a Chevrolet Celebr ity

and that she let the defe ndant drive the ca r whe never

he wa nted. She said the defe ndant lived with their pare nts, w as neve r marr ied, but had two kids. She said the def endant ha d

never had a r eg ular job but cooke d and mowed the y ard f or their pa

rents sometimes. She said she kn e w t he de fe nd ant wa s me nta lly ill bu t a llo we d him to b a by sit he r t hr e e c hil dr e n o n a

re g ula r b a sis

. She said the defe ndant g ave her a letter in which he a dmitted kill ing the ir pare nts and apolog ized for it. She sa id t

hat i n th e letter , th e de fe nd ant s a id t hat he wa s o ut o f h is m ind wh e n h e kil le d th e ir
pare nts, that aliens told him t o do it, a nd that their mother ha d beg g ed for her life befor e he killed he r. She sa id the le tte r state d that he se t th e fi re to k ill the ir fathe r a nd that he he ld t

he do or shut t o keep the ir fathe r fr om esca ping.

On c ro ss- e xami natio n, Ms. Mu lli ns te sti fi e d th a t w he n th e de fe nd ant w a s ta kin g his

me dic a tio n, he wa s kin d bu t that he c ou ld b e c ome vio le nt w he n h e did no t take it. She sa id s he did

no t take he r c hil dr e n to he r p are nts ’ t ra ile r f or the de fe nd ant t o b a

by sit a ft e r h e qu it t a kin g his medication in the fa ll of 2000. She said, howeve r, that she did not believe the def enda nt was da ng e ro us ; sh e jus t di d n ot w ant t o a dd to t he str e ss at th e tr a ile r. She a c kn ow le dg e d th a t th e ir mother told her that on one occa sion, the defe ndant had r eturne d to the trailer na k ed
, s t at i ng that aliens we re a fter him. S h e ac k n o wl edg ed that on anothe r occ asion, the def endant dr ove to the Kno x vi ll e ai rpo rtto mee t t hes e al ien s. S he s aid he h ad al so cal led th e po li ce tw ice to repo rtUFO sighting s. She said that the def endant ha d been involuntarily committed twice but that their mother

co u l d n o t b ri n g h er s el f t o co m m i t h i m aga i n

. S h e ac kn o wl ed ged t h e d ef en d an tb el i ev edi nas t ro l o gy and had a sked for

her to br ing him one of his a strology books in jail. S he said the de fenda nt believed his penis was def

ormed a nd wanted to find the doctor who had cir cumcised him. She ac knowledg ed that in the letter fr om the defe ndant, he sa id that aliens to l d h i m t h at i f he killed his mother a nd fathe r, he w ould ge t his own place to live and a g irlfriend. She acknow ledg ed that the defenda nt’s be havio r b e c a me pr og re ssi ve ly wo rs e thr ou g ho ut t

he su mme r b e fo re he kil le d th e ir pa re nts . Sh e sa id the de fe nd a nt t old

he r t hat D r. Al an M e g ibo w h a d a dv ise d h im that he c ou ld stop ta kin g his medication. She said that the de fenda nt was si ck and that she wanted him to be in a hospital rathe r tha n ja il.3

Gar y Clay boug h, an ar son investigator from the Te nnessee Fire Marsha l’s Offic e, testified that he ar rived at the victims’ trailer at 9:00 a.m. and saw the two victims’ bodie s. He sa id that one body was in the kitche n and that the other was in a be droom. He sa id that he deter mined th at an

acc eler ant had be en used to star t the fire a

nd that he found a five-g allon can he believed contained
g asoline. He said the fire was intentional and de liberate

.

Dr. Cleland Blake, a patholog ist, testified that he re ceive d the victims’ bodies and pe rfor med

an a uto ps y on e a c h b od y . H e sa id t

he de fe nd ant’ s moth e r did no t di e fr om t

he fi re be c a

us e sh e did not have c arbon monox ide i n her lungs. He said his finding s with reg ard to the de fenda nt’s mother

wer e consistent with strangulation. He said that the de fenda nt’s fathe r died fr om the fire.

Detec tive Der

rick Woods of the Cocke County Sheriff’ s De p artment testified that he inv e sti g a te d th e are a

wh e re the de fe nd ant w a s fo un d by Chi e f Ta y lor and c oll e c te d a T- sh ir t, a pa ir of pa nts , a fi re sa fe ty

bo ok , c a mpi ngg e ar, tw o li g hte rs , a fi ve -g a llo n g a s c an, and a sh otgun . H e sa id he sent t h e fi re c hief to look for the defe ndant bec ause he had not bee n found af ter the f ire. On

cross-e x amination, Detec tive Wo o d s te s ti f ie d th a t w h e n h e a p p r e h e n d ed the de fenda

nt, the defe ndant did not attempt to escape

. Robert Caldwell, chie f dete ctive for the Cocke County Sheriff’ s Depa rtment, testified that he met with the def

endant at the scene of the fir e and that the defendant ag ree d to talk at the police station. He said the de fenda nt told him wher e he pour ed g asoline into the trailer and identified the
g as ca n he used. H e said the de fenda nt told him that he cha

ng ed clothes a fter the fire a nd that blood on his right soc k was his mother’s. H e said the defenda nt stated t hat hi s father

was a sleep whe n he killed his mot her.

Earl Campbe ll, the de fenda nt’s and his mother ’s prea cher
, testified that he wa s awa re of the defe ndant’s mental pr oblems. He said the de fenda nt was quiet whe n he was on his medication but vocal whe n he wa s off. He said that the defendant tol d him that his penis was de formed be cause of a cir cumcision and that the de fenda nt showed him his pe nis. He sa id that the defe ndant had bizarre relig ious beliefs involving a strology and that he told the de fenda nt to throw awa

y the materia l he had
reg ardingit. He said the defe ndant’s mother called him se vera l day s befor e the de fenda nt killed her

and tol d h im that sh e wa s c on c e rn e d b e c a us e the de fe nd ant w a s o ff his me dic a ti on

. On

c ro ssexamination, Mr. Campbell testified that in a conver sation with the defe ndant t h re e weeks befor e he killed his pare nts, the defe ndant told him that his mother owned proper ty in Dandridg e, Te nnessee and that it would be adva

ntag eous if “she was not in the way of prog ress.” He sa id he believe d that a possibility

of a se rious occurrenc e existed beca use of this conve rsation and e ncoura g ed the de fe nd ant t o d

ro p th e ma tte r. On

re c ro ss- e xami na

tio n, Mr . Ca

mpb e ll t e sti fi e d th a t th e de f e nd ant t old h i m t h a th e w an t e d

h i s m o t h e r ’ s n a m e o f

f t h e d e e d o f t r u s tf o r t h e D an dr i d g e p r o p e rt y.

Dr. Ala n Meg ibow testified that he wa s a psy chiatrist at the Cher okee Me ntal Hea lth Center

and that he be g an tr e a tin g the de fe nd ant i n 1 99 5. He sa id t he de fe nd ant w a s d ia g no se d a s a c hr on ic
para noid schizophrenic and wa s presc ribed potent medic ation to control his delusions. He said that the def endant be lieved aliens w ere trying to take over the world and that they wer e trying to c ontrol4

him. He said the defe ndant did not take his me dication on sever al occ asions while he wa s treating him . H e sa id that in a

19 95 re po rt , h e wr ote that th e de fe nd ant w a s p ote nti a lly vio le nt a nd that in

a 19 98 re po rt , h e wr ote that he re tur ne d the de fe nd ant to m e dic a tio n b e c a us e he ha d b e c ome vio le nt. He said that on J une 22, 2000, he deter mined that the defe ndant had stopped taking his medic ation. He sa id the de fe nd ant h a d to ld a nurs e tha t a lie ns c re a te d huma

ns on thi s p lane t. D r. Me g ibo w s a id th e d e f e n d an t to ld h im n o t to ta lk a b o u t h is c a s e w it

h h is mo th e r

. H e s a id th a t u n le ss he involuntarily

committed the defe ndant bec ause he was a dang er to himself or othe rs, he could not forc e the d ef

en d an t t o take medic ation. He sa id the defe ndant had made no direc t threats towar d
any one at that time. He said that in his visits with the defendant at jail, the defe ndant see med okay

a t ti me s w hil e a t ot

he rs , h e ob se sse d a

bo ut a lie ns

.

On cr oss-examination, Dr. Meg ibow testified that in a prog ress note dated Marc h 13, 2002, he wr ote that the def

endant told him that aliens would g ive him a g irlfriend and a place of his own if he killed his pare nts and t h at t h i s i s wh y h e dec ided to kill his pare nts. He said the de fenda nt wrote in a separ ate note that aliens told him to slap his father but that he hug g ed his fathe r instead. He sa id the not e also stated t hat t he aliens had wanted hi m to lie in the y ard during a s torm but that the de fe nd ant d id n ot b e c a us e he wa s to o s c are d. Dr . M e g ibo w a c kn ow le dg e d tha t man y pe op le wi th schizophrenia do not kill other pe ople. He sa id he believe d that the def endant kne w the diffe renc e be tw e e n r ig ht a

nd wr on g wh e n h e killed his pa re nts . O n r e dir e c t e xami natio n, Dr . M e g ibo w s a id that it was possible that the defe ndant killed his parents in orde r to get a gi rl fr iend and did not

c on sid e r t he wr on g fu lne ss o f h is a c tio ns

.

Christie Hansel testified that she was one of the de fenda nt’s ca s e m an agers at Cheroke e Me nta l H e a lthSy ste ms. She sa id C he ro ke e ’s re po rt s ind ica ted the d e fe nd ant h a d atta c ke d h is brother- in-law with a ha

mmer and had also attacke d his f ather in the past. She said the def endant h adal s o b ee nv i o l en tt o wa rdh i s m o t h er at t i m es

. S h e s ai d

t h e d ef en d an tb el i ev edt h at a f

o re i gn materia l was inserte d into his penis during his circ umcision and that he wa nted to confr ont the doctor wh o p e rf or me d th e c ir c umc isi on

on him . Sh e sa id t

he de fe nd ant t old

he r i n ja il that voic e s to ld h im that his parents we re c old and cr uel bef ore he killed them. She said that in the weeks befor e the f ire, the def endant r efuse d to help his parents with work a round the h o u s e. She said e ven thoug h the de fe nd ant w a s f

or c e d to take me dic a tio n in ja il, he sti ll ha d d e lus ion s. On c ro ss- e xami natio n, Ms. Ha n s el t es t i fi edt h at h e r n o t e s i n d i ca t edt h at t h e d ef en d an twa s co n ce rn edab o u tn o th av i n g a g irlfriend.

Dr. Rokey a F arooque , a psy chiatrist at Middle Tenne ssee Mental Hea lth Institut e (MTMHI ), testified that the def

endant wa s a par anoid schizophrenic a nd that she did not believe he understood the diffe renc e betwe en rig ht and w ro ng when he killed his parents. She said that in a test she perf ormed on the de fen d ant, his score indicated he was menta lly ill, having ha llucinations and delusions upon which he a cted. She said that the defendant’s not hiding or attempting to escape afte r the killi ng ind ic a te d th a t th e de fe nd ant d id n ot k no w k ill inghis pa

re nts wa s w ro ng . O n c ro sse xami na tio n, sh e a c kn ow le dg e d th a t th e de fe nd ant h a d c ri e d o ve r k ill inghis pa re nts

.5

Dr. Samuel Cra ddock, a psycholog ist at MTMHI , testified that not all schizophrenics lac k the ca pacity to understand the dif

fer ence betwee n rig ht and wrong . He s aid he be lieved that the de fe nd ant h a d k

no wn tha t kill in g h is p are nts wa s b oth c ri min a lly

and mor a lly wr on g . O n c ro ssexamination, Dr. Craddock te stified that he believe d the defendant had delusions about aliens. He said, howeve r, that just be cause the defe ndant hear d voices promising him a g irlfriend if he killed h i s p ar en t s d i d

n o tm ea nt h at t h e d ef

en d an td i d

n o tu n d er s t an d t h at k i l l i n g h i s p ar en t s wa s wr o n g. He sa id he did not know for a cer tainty that the defe ndant under stood the differ ence betwee n rig ht and wrong

. He said, howeve r, t hat s etting fire to his pare nts’ trailer to cover up his kill ing indicated that he knew

rig ht from wrong . He a cknowledg ed that he ha d previously deter min ed t hat the defe ndant was not c ompetent to stand trial and that he was committable. He sa id, however , that afte r the de fe nd ant r e su me d ta kin g his medi c a tio n, he de te rm ine d th a t th e de fe nd ant w a s c omp e te nt t o stand trial.

Offic er D uane Johnson of the Cocke County Sh e r if f ’ s D e p a r tm e nt t e s ti fied that on Septembe r 7, 2000, the defe ndant g ave the following statement: On the night he killed his parents, his mother

wa s a g g ra vate d at hi s f

a the r ov e r the te le vis ion and tol d his fa the r to g o to be d. Hi s fa

the r we nt t o bed “disg usted and hurt.” His mother then went into the bathroom and when she came out, he shoved her

into his bedroom and wre stled her to t h e fl o o r. He held a blanke t over he r mouth, suffoc ating her. H e put newspa per in a trash ca n and starte d a fire bec ause he had panic ked and wanted to c over up w hat he ha d done. His father never hear d what happe ned and ne ver w oke up. He we nt to the barn, re trieved a g asoline ca

n, and poure d g asoline t hroug h the window of t he tra iler beca use the tra iler wa s not burning well enoug h. The fire t hen blaz ed, and he returned the g asoline can to the ba

rn. Afte r he le ft the trailer , he cha ng ed his pants and shirt.

The jury convicted the defe ndant of two counts of first deg ree preme ditated murder , one count of fe lony m u rd er against the de fenda nt’s fathe r, and one count of a g g ravated ar son. The de fe nd ant c on te nd s th a t he sh ou ld h a ve be e n f ound no t g uil ty by

re a so n o f i ns anit

y be c a us e he c ou ld
not appre ciate the wrong fulness of his actions when he kil led hi s pare nts. The state c ontends that the evidenc e is sufficie nt. We ag ree with the state.

I. IN SAN ITYDE F EN SE

The de fenda

nt contends that he proved by clea r and c onvincing evidenc e that he w as insane at the time of the killing . Wit h reg ard t o the def ense of insanity , T.C.A. § 39-11-501 pr ovides as fo llo ws :
(a) I t is an aff irmative defense to prosecution that, at the time of the

c omm is si on of

the a c ts c on sti tut ing

the of fe ns e , th e de fe nd ant, a s a

re su lt o f a se ve re me nta l dis e a se or de fe c t, wa s un a ble to a pp re c ia te the natur e or wr on g fu lne ss of su c h de fe nd ant’ s a c ts. Me nta l di se a se or def ect doe s not otherwise c onstitut e a de fense . The de fenda nt has the burden of

proving the def

ense of insanity by clea r and c onvincing evidenc e.6 (b) As used in this section, “mental disease or def ect” does not include any

abnorma lity

manifested only

by repe ated c riminal or oth e rw ise anti so c ia l c on du c t.

(c) No expert witness may testify as to w hether the def endant wa s or

wa s n ot ins ane a s se t f

or th i n s ub se c tio n ( a ). Suc h u lti ma te iss ue is a matter for the trier of

fac t alone.

Wit h respe ct to appellate revie w of a jury ’s re jection of a

defe ndant’s insanity

defe nse, our supreme c ourt has stated:

[A]pp e llate c ourt s in

Te nn e sse e sh ou ld a

pp ly the re a so na

ble ne ss standard w hen re v i ewinga jury ’s re jection of the insanity

defe nse. Consist ent with the expressed leg islative intent of Tenn. Code Ann. § 3 9- 11 -5 01 (c ) a

nd oth e r T e nn e sse e sta

nd ard s g ov e rn inga

pp e llate revie w of fac tual finding s, this st andar d is properly defe rential to the finding of the trier of

fac t. On the other ha

nd, this standard does not
tot a lly ins ulate th e jury ’s fi nd ingfr om a pp e llate re vie w; rathe r, it enhanc e s a

p p e ll a te r e v ie w b y

v ir tu e o f it s s im il ar it

y to th e f a mi liar

su ff ic ie nc y sta nd ard wh ic h a

pp e llate c ourt s a

re accu sto me d to

a pp lying . Ac c or din g ly , ap pe llate c ourt s in Te nn e sse e sh ou ld r e ve rs e a jury verdi ct reje cting the insanity defe nse only

if, consider ing the

e vid e nc e in t

he lig ht mos t fa vo ra

ble to the pr os e c uti on , n o r e a so na ble trier of fac t c ould ha

ve failed to f

ind that the defe ndant’s insanity at th e ti me o f

th e o f f e n s e w a s e s ta

b li s h e d b y c le ar an d c o n vincing

e v i d e n c e

. . . . [W ]e e xp l i c i t l y r e j e c t t h e n o t i o n t h a t t h e S t a te mus t rebut de fense proof of insanity with substantial evidence . The c urre nt statute clea

rl y d o es not impose such a burde n of proof on the
pr os e c uti on . T he statut e pla c e s th e burd e n o f e sta bli sh ingthi s aff irmative def

ense squarely on the defendant. Once thi s defe nse has be e n in te rp os e d, the pr os e c uti on lik e ly wi ll i n mo st c a se s atte mpt in

some manner

to c ounter the def

ense pr oof . . . . [D] efe nse proof can be counte red by

contra ry expert testimony , lay

witnesses, or vig orous

cross-e x amination desig ned to under mine the cr edibility

of the de fe ns e e xp ert s. A r e vie wi ngc ourt a pp lyingthe re a so na

ble ne ss standard should c onside r all the evidenc e in the re cord in the lig ht most favora

ble to the state in dete rmining w hether the jury
appropr iately

reje cted the insa

nity defe nse.

. . . .

The we ight a

nd value to be g iven exp ert testimony is a question for the jury . [S tate v. S parks, 891 S.W .2d 607, 616 (Tenn. 1995) ]. W here7 t h e r e i s a c o n f

l i c t i n t h e e v i d e n c e , t h e t r i e r o f f a c t i s n o t r e qu i r e d to

acc ept expert testimony

over othe r evidence a

nd must determine the weig ht and cr edibility

of ea ch i n l i gh t of all the fa cts and circ umstances of

the ca se. I d. Questions conce rning the cr edibility of witnesses, the we ight and value of the evidenc e, as we ll as all fac tual di sp ut e s r a ise d b y

the e vid e nc e , a

re fo r t he tr ie r o f f

a c t; a pp e llate

c ourt s d o n ot r e we ig h the e vid e nc e or re e va luate c re dib ili ty de te rm inatio ns

. [Sta te v. Ho lde r, 15 S.W. 3d 90 5, 91 2 (T enn . C rim. A p p

. 1 9 9 9 ) ].

State v. Flake , 88 S.W .3d 540, 554 (Tenn. 2002)

.

Evidence exis ted to show that the def endant a p p r e c ia te d th e wr o n g f

ulness of his actions whe n he killed the victims. Be fore the ki llings, t he defenda nt had st ated that he wanted a g irlfriend a

nd a plac e of his own a

nd that he believe d these thing s would happen if h e k i l l ed his parents. Mr. Campbell testified that the defendant believed his mother owned proper ty awa y from their trailer a

nd that th e de fe nd ant w ante d th is p ro pe rt y . A ft e r ki ll in g h is p are nts , th e de fe nd ant a c kn ow le dg e d in his statement to the police that he pa nicked a nd set fire to the trailer to cover up killing his mother. Th e de fe nd a nt a lso chan g e d c lot he s and le ft the tr a ile r a ft e r s e tti ngfi re to i t, s ho wi nga po ssi ble attempt to hide his involveme nt in the killi ng s. Dr. Craddoc k and Dr . Meg ibow eac h testified that the y be lie ve d th e de fe nd ant k

ne w the dif

fe re nc e be tw e e n r ig ht a

nd wr on g wh e n he kil le d h is p a re nts

.

Th e e vid e nc e sh ow s th a t th e de fe nd ant s uf fe re d f ro m pa ra no id s c hizo ph re nia . H ow e ve r, thi s does not prec lude the possibilit y t h at h e co u l d be found le g ally sane by a jury . T.C.A. § 39-11- 501(a) (1997). The jury had the responsibility to g ive the prope r we ight a nd value to the e x pert a

nd lay witnesses in deter

mining whe ther the defe ndant was insane by clea r and c onvincing evidenc e. Flake , 88 S.W .3d at 554. Althoug h the defe ndant argues that the jury err ed in not finding him insane at the time of the killing, the jury chose to acc redit the witnesse s who supported the state ’s theory of the c a se . T he jur

y a c c re dit e d te stimony

tha t th e de fe nd ant, kn ow ingit w a s w ro ng , k ill e d h is mother any

way beca use he thoug ht he would g et a g irlfriend a nd place of his own. The de fenda nt then panicke d and tried to c over up the killing by setting f ire to the tra iler, cha

ng ing clot hes, and le a vin g the sc e ne . D r. Cr a dd oc k te sti fi e d that thi s ind ic a te d the de fe nd ant kn e w it wa s wr on g to k ill his parents. F urther, D r. Meg ibow also stated t hat he believed the defe ndant knew rig ht from wrong when he killed his parents. I n the light most fa vorable to the state, a rational trier of fac t could have failed to find that the def

endant’ s criminal insanity at the time of the of

fense was e stablished by

clea r

and c on vin c inge vid e nc e . T he e vid e nc e is s uf fi c ie nt t o ju sti fy

the de fe nd ant’ s c on vic tio ns

.

II. M ER G ER

Although not r aised by

either pa rty , we have conc luded that the trial co u rt should have
merg ed the de fenda

nt’s convictions for pr emeditated mur der a nd felony murder of his father . Our
supreme c o u rt h a s d ir e c te d th a t w h e na

d e f e n d an t i s c h ar g e d

w it h b o th p r e me d it a te d

an d felony murder, the trial court should instruct the jury to rende r a ve rdict on both theories of fi rs t deg ree8

murder. State v. H owar d, 30 S.W .3d 271, 275 (Tenn. 2000)

. Yet, “when only one person has bee n murdere d, a jury verdic t of g uilt on more than one c ount of an indictment cha rg ing dif fer ent means of committi n g fi rs t d eg ree murder w ill support only one judg ment of convic tion for first deg ree murder.” State v. Cribbs, 967 S.W .2d 773, 788 (Tenn. 1998) . Merg er a voids a double jeopa

rdy problem while prote cting the jury ’s finding s. Howar d, 30 S.W .3d at 275. Thus, in this case, the tr ial court should have merg ed the jury ’s ver dicts of g uilt on the one count of pre meditated murde r and one count of

felony murder into only

one judg ment o f convic tion for first deg ree preme ditated murder. See Howar d, 30 S.W .3d at 275; State v. Addison, 973 S.W .2d 260, 267 (Tenn. Crim. App. 1997).

Ba sed upon the for eg oing a nd the re cord a s a whole, w e aff irm the def

endant’ s convictions but vacate the judg ments of conviction for counts one a

nd three and re mand the ca se for the trial

c ourt to e nte r a jud g me nt r e fl e c tin g the me rg e r o f t he tw o c ounts

.

___________________________________ J OSEPH M. TI PTON, J UDGE