### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE April 11, 2001 Sessi

on STATE OF TENNESSEE v. THOMAS D EE HUSKEY Appeal from the Criminal Court for Knox County No. 51903 Richard Baumgartner, Judge

No. E1999-00524-CCA-R3-CD August 13, 2001

The defendant, Thomas Dee Huskey, brings this interlocutory appeal, contendin g that the double jeopa rdy protections of the United States and T

ennessee Constitu

tions bar a retria

l follo wing th e jury’s deadlock on four counts of first degree murder. He argues that the trialcourt failed to declare a mistrial and manife

st necessity did not

compel one, that pr

osecutorial m

isconduct and judicial overreaching precipitated the jury’s inabilit

y to reach a verd

ict, and that the tr

ial court errone

ously failedto accept the jury’s special verdicts. We conclude that double jeopardy does not bar a retria

l. Tenn. R. App. P. 9 Appeal; Judgment of the Criminal Court Affirmed
J OSEPH M. T IPTON , J., delivered the opinion of the court, in which D AVID H. W ELLES and D AVID G. H AYES , JJ., joined.
Herbert S. Moncier and Gregory P. Isaacs, Knoxville, Tennessee, for the appellant, Thomas Dee Huskey.
Pa ul G. Sum mers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Erik W. Daab, Assistant A ttorney General; Randall E. Nichols, District Attorney General; and Jennifer Welch , Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
The defendant was charged with four counts of

first degree murder, following the discovery of the victims’ bodies in a wooded area near Cahaba Lane in Knox County. The defendant pleaded notguilty and not guilty b y reason of insan

ity to all four coun

ts. On the fif

th day of deliberat

ions, the jury sent the trial court a note stating that it was unable to arrive at a unanimous decision. The trial court recalled the jury, asked if further deliberations would be beneficial, and then discharged the jury upon receiving a negative response. This court’s order granting the defendant permi ssion to appeal limited the issues for review to whethe

r the Double Jeopa

rdy Clause bars a

retrial of the ca

se2

because: (1) the trial court dis

mis sed the jury after the appellant had been placed in jeopardy without declaring

a mistrial; (2) there was no “manifest nece ssity” to di scharge the jury on the issue of the appellant’s factual guilt of each offense; and (3) the jury’s inability to reacha verdict was precipitated by prosecutorial misconduct or judicial misconduct during the course of the trial itself.
The defendant co ntends t hat federal and

state constitutiona

l prohibitions again

st double jeopardy preve

nt retrial, argui

ng that: (1) the jury’s notes on February 12 an d 13, 1999, place th

e defendant in je

opardy with regard to the act of killing; (2) manifest necessity did not require the trialcourt to release the jury before accepting its partial verdict on the issue of the act of killing; (3) the trial court’s

improper comme

nts to the jury made it impossible for the court to determine that manifest necessity existed; (4) the trial court de

nied him due proce

ss, includin

g the r ight to be heard, b efore it discharged the jury; (5) prosecutorial misconduct and judicial overreaching resulted in the jury’s inability to reach a verd

ict and caused je

opardy to attach; (6) the trial court erroneously failed to take the jury’s special verdicts on fact

ual guilt or the degree of homicide; and (7) double jeopardy, res judicata, and collateral estoppel prohibit retrial of the issue of whether he sufferedfrom a mental disease or defect because the jury rendered a special verdict as to that issue.
Because d ouble jeopardy does not bar retrial of the defendant on the four counts of first degree murder, we aff

irm the trial cour

t’s denial of his mot

ion to bar retrial

. I. DISCHARGE OF JURY
We first address the defend ant’s contentions rela ting to whether the

trial court prope

rly declared a mistrial following the jury’s announcement that it could not reach a unanimous decision.3

The defendant argu

es that although je

opardy had attac

hed, th e trial court

released the jury without declaring a mistrial; thatno manifest nece ssity existed to discharge the jury without taking its partial verdicts; and that the trial c ourt’s improper c

omments to the jury made it impossible for a meaningful manifest necessity determination to be had. Finally, he claims that the trial court denied him due processwhen it

discharged the jury without conferring with c

ounsel or allowing

him an opportunity to be heard. The sta

te contends that ma

nifest necessity existe

d due tothe jury’s inability to reach a verdict and that all of the parties knew that the trial court was going to and did declare a mistrial when it called the jury into the courtroom, following the jury’s February 13 note.
Because of

the nature of the defendant’s contentions, we review the events surrounding the discharge of the jury in some detail. The jury began deliberating on the morning of February 9, 1999. On February 12, the jury sent the court a note, which read:
Your Honor: We are unable to come to a unanimous decision on mental responsibility. People’s decisions are unlikely to change. Leslie Boone Foreman
We can a gree that h

e has a mental disease or defect, but we cannot decide on the second part on p. 18 # 2 & 3. Can you give us some guidance?
With the jury out, the trial court noted that the jury was referring to the second porti

on of the insanity instruct ion re lating to the defe ndant’s capacit

y to appreciate t

he wrongfulness o

f his conduct or to conform his conduct to the requirements of the law. The defendant requested a mistrial, arguing that the jury was irrevocably hung. The court reread the note to defense counsel, who confer redand then repeated the request for a mistrial, arguing that the jury had deliberated for four days and that the note was not asking for clarification. The court stated that i

t viewed the jury to

be asking for clarification and commented

that it was amazed that the defendant did not want the jury to deliberate further on the issue. The court stated its intention to give the jury further instructions on insanity and to allow the jury to deliberate longer. The following morn

ing, February 13, t

he court instruct

ed the jury as foll

ows:
Tennessee Code Annotated 39- 11-501 provides a s f ollo ws: Insanity. Insa

nity is a defense to prosecution if

at the time of such conduct as a result of a mental disease or defect, the person lacke

d substantial capa

city either to appreciate the wrongfulness of the person’s conduct or to conform that conduct to the requirements of the law. As used in this section, men ta l disease or defe ct does not include

any abnormality manifested only by repeated criminal or otherwise antisocial conduct. Therefore, Mr. Huskey would no t be legally respo

nsible for his

cri minal conduct if at the time of such conduct, as theresult of a mental disease or defect, Mr.4

Huskey lacked the

substantial capa

city to either app

reciate the wro

ngfulness of his
conduct or conform his conduct to the requirements of the law he is charge d with violating.
The c ourt returned the jury to its deliberations. The defendant renewed his objection to the new instruction and mov

ed for a mistrial.
Just over two hours later, the jury sent the court another note, stating “We have deliberated at length and we can

not reach a unani mous decision.” Th e court observe

d that the note was

not a question, and the following discussion occurred:
The Court: I am going to ask them about that. I think clearly, they have deliberated for four and a half days. I just don’t see how you can ask a jury to do any more than they have done. I am go

ing to ask the m the perfunctory question of whether or not th ey feel any deliberations would be of any benefit, but I am certainly not going t o push them at this poin

t.
I know that they have worked hard, and I know that they have tried to resolve their differences, and it is clear that they are unable to

do that. Do you want

me to inquire as to the sp

lit? [Defense Counsel]: No, sir. [Prosecutor]: Yes, sir. [Defense Counse

l]: We would move f

or a mistrial. [Prosecutor]: Well, of course, that would be after a mistrial had been declared. [Defense Counsel]: After you declare a mistrial – [Prosecutor]: Oh, yes. It would be improper to ask – [Defense Counse

l]: Yes. [Prosecutor]: – before a

judge made a ruling on the mistr ial motion. And we w

ould ask for – [Defense Counse

l]: But you would not a

sk which way it goe

s. The Court: Yes.5

[Prosecutor]: Yo

u just ask the numer

ical split? The Court: I was going to ask both. [Defense Counsel]: Well, don’t ask the second question, Judge. I think, under the law, you don’t. [Defense Co-Counsel]: I think you can ask what the split is, but not – [Defense Counsel]: You can ask the split, but not which way. [Prosecutor]: Well, after you mistrial it, you can do anything you want to do.
The Court: Yes, well, th

at is the point. I mea

n, once it is over, I think you can inquire as to either one. [Defense Counsel]: No, the reason you don’t do that, Judge, is because it influences future jurors. It is information in the public – The court agree

d to ask the jury only

about its numerica

l split. Upon the jury’s return to the courtroom, the following transpired: The Court: Ladies and gentlemen, I received your latest communication – and I can tell you that I was not sh

ocked to receiv

e it – which reads that, “We have deliberated at length and cannot

reach a unanimo

us decision.” I kn

ow that y o u have been working for four and a half days. I know that you have been working very hard, and I am going to ask this qu est ion, becau se I feel compel led to do it: Do you thin

k, if given further opportun

ity to discuss the mer

its of this case, that

you could resolve your differences, ladies and gentlemen? The Foreperson: (Shaking head in the negative) The Court: Does anybody feel that you can?
Juror No. 12: No. The Court: Ms. Bunch, it is not going to happen?
Juror No. 12: We did t ake a poll. We did, very nicely, go around the table, and honestly expresse

d ourselves.
The Court: All right. Well, that happens somet imes. Obvio usly, we would have6

preferred to have a verdict. I know that you have worked long and hard on it. You can imagine, we have worked long and hard on it. But you are to be commended for the time and effort

that you have put

into this case. We all observed you during the course of the trial an d are aw are of the fact that you listened very intently, and obviously took your job very seriously. I am going to release you, ladies and gentlemen.
The court proceede

d to instruct the jur

ors not to talk about

the case until they had been contacted by the court and thanked the jurors for their service. Just before the jurors left the courtroom, the court asked: Oh, let me make one inquiry. I don’t want to kn ow which w ay. In other words, I don’t want to know – but I w

ant to know the nume

rical split. Okay? Inother words, was it six to six? Was it eight to four? Was it nine to three? Can you give me a numerical split?
Juror No. 11: Six to si

x, but it was on the me

ntal responsibility

part, not the guilt.
After the jury left, defense counsel discussed the schedule for filing a motion for a judgment of acquittal, s tating that he had thirty days in which to file a motion for a judgment of acquittal on a mistrial.
In its order denying the defendant’s motion to bar r etrial, the trial court found that after substantial time and effort, the jury was unable to reach a verdict on the defendant’s sanity. It found that the defendant requested a mistrial during jury deliberations and, thus, was barred from benefitting fr om an action that he requested. It found that manifest necessity justified a mistrial in t h e defendant’s case. A. Jeopardy
The Double Jeopardy Clause of each of the United States and Tennessee Constitutions states that no person shall be put in jeopardy of life or limb for the same offense. U.S. Const. amend. V; Tenn. Const. art. I, § 10. The clause “protects against a second prosecution for the same offense after acquittal. It protects again st a second prose

cution for the sam

e offense afte

r convicti o n. And it protectsagainst

multiple punishments for the same offense.” North Carolina v. Pearce , 395 U.S. 711, 717, 89 S. Ct. 2072, 2076 (1 969); State v. Phillips , 924 S.W.2d 662, 664 (Tenn. 1996). In a jury trial, jeopar dy attaches when the jury is sworn. See State v. Knight , 616 S.W.2d 593, 595 (Tenn.1 981)

. The defendant contends, and we agree, that at the time the jury was discharged, jeopardy had attached in his case.
Once jeopardy attaches, a defendant has a valued interest in having the particular jury selected for trial render a verdict. United States v. Jorn , 400 U.S. 486, 485, 91 S. Ct. 547, 557 (1971). The7

policy behind limitin

g the state to a sing

le proceeding is t

he recognition tha

t:
the State with all its resourc es a nd power should not be allowed to make repeated attemp ts to convict an indivi dual for an alleg

ed offense, the

reby subjecting hi

m t o embarrassment,

expense and ordeal and

compelling him to live

in a continuing stat

e of anxiety and insecurity, as well as enhancing the possibility that e ven though innocent he may be found guilty.
Greenv. United States , 355 U.S. 184, 187-88, 78 S. Ct. 221, 223 (195 7 ). Although the Dou ble Jeopardy Clause protects the defendant, “a defendant’s valued right to have his trial completed by a partic ular tribunal must in some

instances be subo

rdinated to the pub

lic’s interest in f

air tria l s designed to end in just judgments.” Wade v. Hunter , 336 U.S. 684, 688-8 9, 69 S. Ct. 834, 836-37 (1949). Generally, once jeopardy has attached, do uble jeopardy wil

l not bar a retrial if the defendant assents to the tria

l court ending the proceedings. State v. Mounce , 859 S.W.2d 319, 321 (Tenn. 1993). In such case, the defendant has elected to waive a verdict by that particular jury. Id. ; Knight , 616 S.W.2d at 596. Doub le jeopardy also

does not preclude retrial if manifest necessity exists for the trial court to declare a mistrial. Mounce , 859 S.W.2d at 321. This is true even if the defendant does notconsent to the mistr

ial or, in fact, ob

jects to the mistrial. Id. The decision to grant a mistrial lies within the trial court ’ s discretion, and we defer to the trial court’s decision absent an abuse of discretion. Id. at 322.
B. Mistrial Initially, the defendant argues that the trial court released

the jury without dec

laring a mistrial. The state contends that although the trial court did not expressly state that it was declaring a mistrial, the defendant

requested a

mistrial, all parti

es understood tha

t the trial court wa

s declaring a mistr

ial, and the defendant did not object to the discharge of the jury. In arguing that the defendant requested a mistrial, the state points to the de fendant’s reque

st for a mistrial following the jury’s February 12 noteand aga in foll owing the court’s supplemental insanity instruction the next morning. The defendant argues that the general rule that a mistrial upon defense mo tion does not bar retrial does notapply when the defendant moves for a mistrial but that motion does not relate to the actions of the court that resulted in the termination of the proceedings. First, we note

that the defendant requested a mistrial following the jury’s February 12 note, believing it revealed that the jury was hopelessly deadlocked. After the court’s supplemental instruction and two additional hours of deliberation, the jury reported that it could not reach a unanimous decision. Thus, we question whether the defendant’s earlier requests for a mistrial were for a different reason from that which caused the trial court to relea se the jury. In any event, the record reflects that following the cour t’s receipt of the February 13 note,

defense counse

l again requested a mistr

ial:8

The Court: . . . . Do yo

u want me to inquire

as to the split? [Defense Counsel]: No, sir. [Prosecutor]: Yes, sir. [Defense Counse

l]: We would move for

a mistrial. [Prosecutor]: Well, of course, that would be after a mistrial had been declared. [Defense Counsel]: After you declare a mistrial – [Prosecutor]: Oh, yes. It would be improper to ask – [Defense Counse

l]: Yes. [Prosecutor]: – before a judge made a ruling on the mistrial motion. (Emphasis

added). The discussions preceding and following the jury’s release reveal that all parties understood that the trial court was going to a nd did declare a mistrial. Generally, when the defendant requests or consents to a mistrial, double jeopardy protections do not bar retrial. Knight , 616 S.W.2d at 596. “In such a case, the d efendant has deliberately elected to forego his right to have guilt or innocence determined by the first trier of fact.” Id. Furthermore, even when the trial court lacks manifest necessity to declare a m ist rial, the defendant’s consent to t he mistrial permits retrial. Mounce , 859 S.W.2d at 322. In Mounce , our supreme court held

that consent may be inferred from the defendant’s failure to object to the mistrial if the defendant

has an opportunity

to object: [T]he rationale for re

quiring an objecti

on to a mistake is tha

t it gives the trial judge an opportunity to cure a situation that one or both parties perceive to be in error. A partyought not be permitted to stand silently by while the trial court commits an error in procedure, and

then later rely

on th at error when it is to his advantage to do so. This is why there is precedent dating back to the last century holding that if an accused fails to object to th

e jury's disch arge upon a defective verdict, he is viewed as having waived the right not to be put on trial again. State v. Ra gsdale , 78 Tenn. 671, 672 (1882); see also , Waddle v. State , 112 Tenn. 556, 82 S.W. 827 (1904) (absenceof an objection to th e discharge of the jury equates to a waiver). We thus hold that when a

defendant chooses not to object to the mistrial and give the trial court an opportunity to corr

ect the error, c

onsent may be infe

rred and, there

fore, double jeopardy will not bar a subsequent prosecution.
Id. at 323. In the present

case, despite the

discussion regar

ding polling the jury

following a mistria

l,9

the defendant lod

ged no objection to

the jury’s relea

se. Because we c

onclude that the de

fendant
consentedto the mistrial, double jeopardy does not bar a retrial regardless of the presence or absence of manifest necessity.
C. Due Process
The defendant argues that the trial court de

nied him due process when it discharged the jury withoutconferring with counsel or allowing him an opportunity to be heard. We believe the record belies this contention. Following its receiptof the February 13 note, the trial court read the note to the parties and then expressed its view that the jury had deliberated for four and one-half days and was unable

to agree. The ensuing discussion reveals that the parties knew that the trial court intended to declare a mistrial. The defendant failed to take this

opportunity to objec

t to the jury’s rele

ase and, in fact, requeste d a mistrial during the discussion. After the trial court discharged the jury, the defendant participated in a

discussion regarding the schedule for filing his motion for a judgment of acquittal following a mistrial. The defendant had an opportunity to be heard on the jury’s discharge but chose to make no objection. His due process rights were not violated.
II. PROSECUTORIAL MISCONDUCT AND JUDICIAL OVERREACHING
T he defendant conte

nds that numerous in

stances of prose

cutorial miscondu

ct and ju dicia l overreaching caused the jury to be unable to reach a verdict in

this case and, thus, double jeopardy bars a retrial. He ar

gues that bad fait

h conduct on the part of the prosecutor or the trial court, which results in a mistrial, prev ents retrial. He asserts that in addition to the specific examples of overreaching in this case, the totality of the overreaching – including conduct, tactics and proceedings that predate the 1999 homicide trial – precipitated the jury’s inability to reach a verdict on his sanity or to announce its ve

rdict on guilt. The s

tate contends tha

t overreaching a

lone does not bar r

etrial but, instead, that the prosecut

or must intend to goa

d the defendant in

to seeking a mistrial. It argues that the defendant does not even allege that the prosecutor or the court intended to goad the jury into the inability to reach a verdict. Final ly, it maintains that none of the instances mentioned by the defendant can b

e considered misc

onduct or overre

aching on the par

t of the state or the

trial court.
As noted above, double jeopardy does not bar a retrial when the defendant asks for a mistrial. Oregon v. Kennedy , 456 U.S. 667, 672, 102 S. Ct. 2083, 2088 ( 1982); Mounce , 859 S.W.2d at 321. A narrow exception to this rule exists: “Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Kennedy , 456 U.S. at 676, 102 S. Ct. at 2089. In Kennedy , the Supreme Court noted the possible confusion stemming from language in other cas es which indicated that bad faith or harassment by the prosecutor or the trial court would be suff

icient to invoke this exception. Id. at 674, 678 n.8, 102 S. Ct. at 2088-89, 2090 n.8. The Court rejected th ese standards in f

avor of intent, fi

nding them unmanag

eable because the rational prosec

utor is alw ays seeking to “‘prejudice’ the defendant by placing before the judge or jury evidence le

ading toa finding of his

guilt.” Id. at 674, 102 S. Ct. 2089. “Prosecutorial conduct10

that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on
defendant’s motion, therefor e, does not bar re

trial absent inten

t on the part of the

prosecutor to subvert the protections afforded by the Double Jeopardy Clause.” Id. at 675-76, 102 S. Ct. 2089.
Tennessee has expressly adopted the Kennedy standard under article I, section 10 of the Tennessee Constitution for determining whether prosecutorial misconduct will bar a retrial. State v. Tucker , 728 S.W.2d 27, 31 (Tenn. Crim. App. 1986). “Only when it is shown that the pr

osecutor is ‘goading’ the defense into moving for a mistrial will double jeopardy bar a retrial.” Id. In order to determine the prosecutor’ s intent, the trial c ourt shou ld look to the circumstances surrounding the prosecutor at the time:
When things are going well, the prosecutor will seldom want to p rovoke a mistrial. However, when the case is collapsing around the prosecutor because the witnesses are weaker than expected, adverse ruling s have kept out important evidence, or key witnesses cannot be found or did not appear, the trialjudge can infer the prosecutor’s intentand reach the c

onclusion that a

mistrial was actually desired. The prosecutor’s explanation of his intent may be given some cr edence “in light of the minimum requirements expected of all lawyers.”
Id. (quoting Pool v. Superior Court , 677 P.2d 261, 272 (Ariz. 1984)). The trial court’s factual findings in this regardare decisive on appeal unless the evidence preponderates otherwise. State v. Nixon , 669 S.W.2d 679, 681 (Tenn. Crim. App. 1983). The defendant bears the burden of showing that the evidence preponderates against the trial court’s findings. Id.
The defendant relies upon Statev. Love , 597 F.2d 81 (6th Cir. 1979), and State v. Enoch , 650 F.2d 115 (6 th Cir. 1981), to argue that bad faith conduct or overreaching by the prosecutor or the trial court is sufficient to bar a retrial based upon double jeopardy principles. Initially, we note that both of these cases were decided before the Supreme Court’s decision in Kennedy

. In Kennedy , the Court noted that language in United States v. Din tz , 424 U.S. 600, 96 S. Ct. 1075 (1976), and United States v. Jorn , 400 U.S. 470, 91 S.Ct. 547 (1971), could be construe d to mean that over

reaching itself w

ould activate the double jeopardy bar to retrial. 456 U.S. at 674, 678 n.8, 102 S. Ct. at 2088-89, 2090 n.8. The Sixth Circuit in Enoch relied upon Dintz and Jorn to hol d that “when a criminal defendant’s successful request for a mistrial is precipitated by ‘prosecutorial or judicial overreaching,’ a subsequent

trial on the same charges is barred by the double jeopardy clause.” Enoch , 650 F.2d at 117. It is this standard that the Supreme Court in Kenned y foun d too broad to apply . 456 U.S. at 674, 102 S. Ct. 2089. In adopting the Kennedy standard in Tucker , this court noted that it protected boththe “defendant

’s right to a fair t

rial and society’ s right to have guilty criminals convicted” by reserving the double jeopa rdy b ar for only those i

nstances in which

the prosecutor so

ught to cause the defendant to foreclose submitting the case to a particular jury:
In the overwhelm

ing majority of the c

ases, corrective instructions to the jury can be utilized to remove the taint of less serious prosecutorial misconduct. In cases of more11

serious e rror, t he court can admonish the prosecutor in the presence of the jury, expressing the court’s disdain for the prosecutor’s improper actions. Finally, in the most egregious cases, the trial judge can, upon a defense motion, grant a mistrial and preservethe defendant’s right to a retrial before another untainted jury. Only when it is shown thatthe prosecutor is “goading” the defense into moving for a mistrial will double jeopardy b

ar a retrial.
Tucker , 728 S.W.2d at 31. Thus, overreaching or misconduct alone is insufficient to bar a retrial.
In its order d eny ing the defendant’s motion to bar retrial, the trial court found that no prosecutor ial misconduct or tria l court error fo

rced a mistrial in

this case. The re

cord does n

o t preponderate

against this finding. The defendant moved for a mistrial following the jury’s February 12 note, arguing that the jury was hopelessly deadlocked. The prosecutor agreed with the trial court that the jury was merely asking for further instruction. The trial court even stated that it was amazed that the defendant did not want the jury to deliberate fu rtheron the issue. After the trial court provided additional instructions on insanity and the jury deliberated further, the jur

y announced its inability to reach a verdict. At this point, the trial court determined that the jury was deadlocked, the defendant requested a mistrial, and the discussion focused on whether the trial court could ask the jury about it s numerical split. Nothing about these events suggests that the prosecutor or the court was attempting to goad the defendant into requesting a mistrial.
The defendant make

s numerous allega

tions o f pr osecutorial misconduct and judicial overreaching, which he clai ms precipitat ed the jury’s inab ility to reach a ve

rdict. With rega

rd to prosecutorial misconduct, he argues that the prosecut or made improper

and prejudicial a

rguments to the jury which caused it to be unable to reach a verdic t. He contends tha

t the state’s proof

of his sanitywas weak and

hinged upon the testimony of Dr. Herbert Speigel. He argues that Dr. Speigel misapplied the M’Naughten test for insanity and that the jury obviously rejected Dr. Speigel’s testimony that the defendant did not suffer from a mental disease. Thus, the defendant claims that in light of all the experts who found the defenda nt insan e under the Graham test or who could not disprove insanity, the jury necessa rily based its inability to reach a verdict upon the prosecutor’s improper arguments. He al

so contends that the prosecutor engaged in misconduct during trial, which included his failure to approach the bench during bench conferences, personal comments to the jury, and conduct revealing his obvious hatred of the defen dant. Although the defendant acknowledges the difficulty in linking this alleged conduct to the jury’s inability to reach a verdict, he argues that on ce he has shown that the misconduct occurred, the state must show that the conduct did no t precipitate

the jury’s inability to reach a verdict. To the contrary, as note d above, the defe

ndant must prove that the evidence preponderates against the trial court’s finding that no p rosecutoria

l misconduct forced a mistrial in this case. See Nixon , 669 S.W.2d at 681. Regarding his claims of judicial overreaching, the defendant contends that the following actions on the part of the t rial court result

ed in the state sec

uring the testimony o

f Dr. Speigel: engaging in a sua sponte

and ex parte

investigation of his

mental condition; f

ailing to hold a hearing pursuant to McDani el v. CSXTransp., Inc. , 955 S.W.2d 257 (Tenn. 1997), on the admissibility of12

Dr. Speigel’s testimony; failing to exclude Dr. Speigel’s testimony on the basis of Rules 104, 403, 702, and 703, Tenn. R. Ev id.; permitti

ng Dr. Speig el to testify pursuant to the state’s leading que stions to opinions not contained in his one and one-half page report; and failing to require Dr. Speigel to give his opinions to a reasonable degree of psychiatric certainty. He contends that the trial court erroneously permitted the state to present the testimony of Dr. Speigel and Dr. Neil Haskell, an entomologist,in rebuttal rather than granting his motion for a judgment of acquittal for insufficient evidence at the end of the st ate’s proof with r

egard to his

sanity or to the murd

er of Patricia

Johnson. He also asserts that

the trial court er

roneously refuse

d to suppress his

1992 statements, which resulted in the jury’s inabilit

y to reach a verd

ict because the s

tatements constituted the sole evidence linking him to the murders.He contends that the trial court erroneously denied him funds and international assistance to locate Astrid Poppy, a German citizen whom “Kyle,” one of the defendant’s alt

ernate personalities,

falsely confess

ed to raping. He a

lso asserts that the

tr ial cour t overreached by erroneously

redacting the por

tions of his stateme

nts that related to Astrid Poppy. He argues that the trial court’s erroneous and arbitrary admission of evidence under Rule 404(b), Ten n. R. Evid., precipitated

the jury’s inabilit

y to reach a verdict

on insanity or to ann

ounce a verdict

on factual guilt. He contends that the trial court overreached by sua sponte instructing the jur

y to disregard defe

nse counsel’s arguments

outlining the involuntary hospitalization process contained in Tenn. Code Ann. § 33-7-303. He ar

gues t hat th e trial court erroneously failed to instruct the jury on the time of the offense contained in the bi

ll of particula

rs f or Patricia Johnson’s murder. He claims the trial court overreached

by instructing the jury to continue its deliberations at a time whenneither the defendant nor the court reporter were in the courtroom. He claims t hat the tria

l court’s disqualification constitutes overreaching and infected every ruling and

proceeding, ca

using the jury to be u

nable to reach a verdict.
Even taking all of the defendant’s allegations of prosecutorial misconduct or judicial overreaching as true, we conclude that none of t hi s conduct reveals that the prosecutor or the trial court intended to provoke a mistrial. Furthermore, nothing alleged by the defendant gives any reason to expand upon the requirement in Tucker that the prosecut

or or court mu st inte nd to provoke the defendant’s request for a mistrial.
In addition to the allegations regarding the conduct on the part of the prosecutor and trial court during the murder trial,

the defendant contends that conduct preceding his murder trial caused the jury to be unable to reach

a verdict. He list

s the following con

duct as resulting in

the state securing the testimony of Dr. Speigel: prosecutorial delay in bringing the rape cases bef ore the murder c

ases; prosecutorial manipulation of the Rule 12.2(c), Tenn. R.

Crim. P., mental evaluation process; the trial court continuing the murder trial sua sponte three times over defendant’s objection and request for a spe edy trial; the tria

l judge’s refusa

l to hear any motion

s from May to August 1 998 due to his campaign for reelection; and the trial court’s permitting the state to abuse the Rule 16(a)(1)(D), Tenn. R. Crim. P., disclosure process by not revealing Dr. Speigel’s report until shortly before trial. He argues that the prosecutor directed law enforcement officers to violate the defendant’s constitutional rig hts in November 1992 regarding the taking of the “Kyle” and “Philip Dax” statements, which precipitated

the jury’s inability to reach a verdict in the murder case. He argues that Judges Jenkins and Baumgartner were biased against the defe

nse as reflecte

d in their treatment of the Rule 12.2(c)13

issue in the rape cases. He also contends that his invalid convictions in the Hanshaw and consolidated rape cases affected his defense and prevented him from testifying in the murder

cases. He argues that the trial court’s failure to rule on the motions for new trial in these ca ses befo re his murder trial foreclosed

his opportunity to have those convictions overturned on appeal before his murder trial. Regarding the pretrial events relating to his murder trial, he con tends that the trial court’s allowing th e state to jo in the four murder cases for trial precipitated the jury’s inability to reach a verdict. He alleges that the trial court erroneously permitted the state to d isclose only testifying experts and to withhold consulting experts, forcing the defendant to prepare his defense without disclosure of Dr. Speige l’s repor t until shortly before trial. He contends that the trial court erroneously

delayed in ruling on the motion to suppr ess his statements u

ntil shortly before trial and tha t th is overreaching

lead to the erron

eous admission of th

ose statements, wh

ich were the only evidence linking him

to the murd ers. Finally, the defendant argues that the totality of the overreaching, including the cond uct, tactics, and

proceedings th

at occurred befo

re the 1999 trial, resultedin the jury having enough inadmissible evidence to be unable to ann ounce a verdict

. We fail to see the connect

ion of these pretr

ial events to the mis

trial in the prese

nt case. B ecause we can ascertain no evidence that the prosecutor or the trial court intended through any of the conduct alleged by the defendant to g

oad him into requesting a mistrial, double jeopardy does not bar a retria l due to prosecutorial misconduct or judicial overreaching. And again, we see no reason to expand upon Tucker

. The defendant conte nds that when the te

rmination of the pr

oceedings result

s from a deadlocked

jury rather than a defendant’s request for a mistrial, the question becomes whether the evidence, exc luding that resultin g from prosecutor

ial misconduct or ju

dicial overrea

ching, is sufficient to support a verdict of guilt or whether the defendant was denied a fund

amentally fair tr

ial, precipitating the jury’s inability to agree. Th e termination of the proceedin gs in the present c

ase resultedfrom the defenda nt’s request

for and consent to the mistrial. The proper standard is whether the prosecutor or the trial court intended to goad the defendant into re questing the mistrial by prosecutorial misconduct or judicial overreaching. We hold that the standard was not met in this case and, therefore, that double jeopardy does not bar a retrial of the four first degree murde r charges.
III. SPECIAL VERDICTS
The defendant contends that the jury reached a verdict on factual guilt but that the trial court erroneously

failed to take that

verdict or any verdicts on the degree of homicide before releasing the jury. In his reply brief, he explains that the term “factua

l guilt,” as used by h

imself and the tria

l court, refers to the commission of t he act constituting

the offense , e xcluding the issue of his sanity at the time the act was committed. Although not entirely clear, we take this to mean the commission of the killing. In support of his contention, the defendant argues that the court’s instructions and the verdict form directed the jur

y to make multiple ve

rdicts a nd that he had factual defenses to each homicide in addition to his insanity defense. He also argues that double jeopardy, res judicata, and collateral estoppel prohibit retrial of the issue of whether he suffered from

a mental disease

or defect beca

use the jury rendered a special verdict as to that issue. The state a rgues th at the jury had to determine14

boththe defendant’s guilt of a particular offense and his sanity in order to render a verdict. It thus contends that ther

e were no separ

ate verdicts for

the trial court to a

ccept.
For each of the four victims, the trial court instructed the jury on the elements of first degree murder, second degree murder, and voluntary manslaughter. For victim Patricia Ann Johnson, the court also instructed on the elements of reckless homicide and criminally neglige nt homici de. Because the murders occurred before July 1, 1995 , the defe ndant’s insanity defense was a general defense rather than an

affirmative defense. Tenn. Code Ann. § 39 -11-501 (1991, am

ended 1995) (in post-1995 cases, the defendant has the burden of proving insanity by clear and convincing evidence). Thus, once the defendant ra ised the issue of in

sanity, the state h

ad the burden of p

roving hissanity beyond a reasonable doubt. Regarding the insanity defense, the trial court instructed the jury:

Includedin the defendant’s plea of not guilty is his plea that he was insane at the time of

the commission of the offense. Y ou are not to consid

er this defense u

nless you have found that the State has proven beyond a reasonable doubt the existence of each and every essential element of the crimes charged.
A person is not respo

nsible for crimina

l conduct if

at the time of

such conduct as a result of mental disease or defect he lacked substantial capa

city to appreciate the wrongfulness

of his conduct or to conform his conduct to the requirements of the law.
A mental disease

or defect is defined as any abnormal condition of the mind which substantially affects mental or emotional proces ses an d impairs behavior control. Behavior controls refer to the processes and capacity of a person to

regulate and control his conduct. The terms “mental disease or d efect” do not include any abnormality manif

ested only by repe

ated criminal or o

therwise antisoc

ial conduct.
The court instructed the jury that once the evidence raised a reasonable doubt about the defendant’s sanity, the state h

ad the burden of p

roving the defen

dant’s sanity beyo

nd a reasonable

doubt.
Before deliberations and with the jury out, the court noted with regard to the verdict form: “I decided to just put the mental responsibility as a separate section. Obviously, if they find him insane, it is going to apply toall of it. So I just put that at the end. I think that makes it as clear as it can make it.” Neither party ob jected to this. The court explai ned the verdict f

orm to the jury as fo

llows:
What this does, ladies a

nd gentlemen, is it st

arts with the four

alleged victims in t

his case. It starts with Patricia Rose Anderson. The first paragr aph is, “We, the jury, find the defendant Thomas Dee Huskey guilty, not guilty” – youcircle one of those two, obviously – of the first degree murder of Patricia Rose Anderson.”
If you find him not guilty

of that offense, then you go on to the lesser included offense. If you find him not guilty of second degree, you go on and consider voluntary manslaughter. If you find him guilty

of a greater offense, you stop there.15

Obviously, you don’t have to go beyond that. Okay?

It is listed for

each of the four victims. . . . . And then the last question is the mental responsibility issue; and, if you find the defendant gu ilty of any offens es, it says, “Having found the defendant guilty, as indicated above, we the jury find,” and then you will choose either the defendant sane beyond a reasonable doubt or not guilty by reason of insanity. Those will be your two choices there. The jury began de

liberations.
On February 11, the jury sent the court a note, which read: “Do we have to unanimously agree on all four charges? If we agree on all but one, are we a hung jury? What is the procedure?” During the course of the discussion about how the court would instruct the jury, the following exchange took place: [Defense

Counsel]: Judge, let me bring something – I still do not understand how we are considering fir

st degr ee murder separate from the issue of insanity. What I am saying to th e Court is t

hat, if Mr. Huskey were not guilty by reason of insanity, he could not possibly be guilty of first degree murder.
The Court: He can be guilty of first degree murder, but not mentally responsible by reason – not guilty by reason of insanity. [Defense Counsel]: W

ell, we have always d

isagreed as to tha

t, and I continue to disagree to that; because,

if he was insane a

t the time, he did not h

ave the mens rea

to commit first degree murder. [Prosecutor]: Th

e murders happe

ned at differen

t times.
The Court: If they find

him not guilty by rea

son of insanity , I agree that he is not criminally respon

sible then for tha

t conduct. [Defense Counsel]: But we have an inconsiste ncy in this verdict process that we are going through is wha

t I am suggesting to th

e Court. The Court: You have no objection to that charge [relating to the jury’s note]? [Defense Counsel]: No, but we continue to object to the manne r in which they are being asked to state

their verdict, because what if they come back and say, “We find him guilty of first

degree murder, but we find him not guilty by reason of insanity”? Those are incons

istent verdicts.16

On February 12, the jury sent the court a note, discussed in the above section, which stated:

Your Honor: We are unable to co

me to a unanim ous decision on mental responsibility. People’s decisions are unlikely to change. Leslie Boone Foreman
We can a gree that h

e has a mental disease or defect, but we cannot decide on the second part on p. 18 # 2 & 3. Can you give us some guidance?
On February 13, the trial court announced its intention to release the jury because it could not reach a unanimous verdict. It inquired about the jury’s numerical split, to which one juror replied that the jury was split “[s]ix to six, but it was on the mental responsibility part, not the guilt.”
In its order denyi ng the defe ndant’s motion to bar retrial, the trial court found that the defendant madeno request that the jury be polled for any partial verd

icts and that it had n

o duty to poll the jury sua sponte

for a partial verdict. It also noted that the defendant specifically objected to any poll other than one for the jury’s numerical split on sanity.

A. Special Verdicts on the Act of Killing and the Degrees of Homicide
The defendant argu

es that hisconstitutional right to a verdict by a particular tribunal includes his right toverdicts on the issues of whether he committed the act of killing and which degree of homicide the jur y fou nd. The four counts of first degree murder were tried jointly over the defendant’s objection, and each count had lesser include d offenses. The defendant argues that the jury had to find that he committed the killings as a condition precedent to fi nding him criminally in sane. He asserts that the jury instructions and the verdict form asked the jury to give special verdictson whether he co mmi t ted the act of killing, what degree of homicide he committed, and whether he was insane. He contends that the jury’s February 12 note stating that the jury agreed that he had a mental di sease or de fect and the juror’s comment that the jury was split six to six on the mental responsibility issue necessarily mea

ns that the jury had

found the defend

ant guilty of so me degree of one of the homicides. He argues that the jury was not deadlocked on the issue of whether he committed the act of killing. Thus, he contends that the trial court er red in fai ling to take these special verdicts and that

double jeopardy bars a retrial because these special verdicts were not taken. Furthermore, he claims t hat he was pr ejudiced by the trial court’s failure to collect these special verdictsbecause a jury finding on the act of killing would have entitled him to a Rule 3 , T.R.A.P., appeal on many critical issues, thereby ensuring a fair opportunity for an acquittal in a new trial.
Th e state asserts tha

t the jury could not r

ender a verdic

t on the defendan

t’s guilt f or a particular offense without also determining his sanity at the time of the offense and that there were no separate verdicts for the trial court to accept. It contends that the trial court’s request that the jury17

first determine whether the

defendant was guilty of any degree of homicide and then decide whether he was insane was e

rror. It argues

that the defenda

nt’s mental state a

t the time of each homicide was an essential element of that offense and that a finding on both the act of killing and sanity were necessary before the jury could render any verdict. It argues that because the jury was deadlocked on sanity, it could not have made a determination of the mens rea element of each offense. The state concludes that the trial court could not have taken findings on a degreeof homicide for e ach victim.
Our review of the jury instructions and verdict form lead us to conclud

e that it was impossib

le for the jury to follow th

e trial court’s in

structions and tha

t they could

not arrive at any special findings regarding the degree of homicide. The instructions and the verdict form asked the jury to determine if the defendant was guilty of any degree of homicide before deciding if he was insane at the time of the offenses. Each degree of homicide requires the jury to consider the defendant’s mental state at the time of the offense. Tenn. Code Ann. §§ 39-1 3-202, -210, -211, -212, -215. In this case, the defendant raised the issue of his sanity at the time of the offenses. The issue of whether the defendant was insane at the time of the offense is inextricably intertwined with the det ermination of the defendant’s mental state at the time of the offense. See Stone v. State , 521 S.W.2d 597 , 600-01 (Tenn. Crim. App. 1974) (h olding that the def

endant was not ent

i tled t o a bifurcated trial on the insanity issue because “the

defense of insanity at thetime of the crime is at issue under a plea of not guilty”). The request that the jury separate these considerations and first find the defendant guilty of so me offense before considering whether he was insane – and therefore, not guilty – at the time of the offense was er

roneous. Becaus

e th e jur y deadlocked on insanity, it could not have made any proper findings on the degree of homicide. Regarding the act of killing, we decline to infer a special verdict on the act of killing when the defendant did not request the trial court to take a special verdict and the jury did not affirmatively indicate that it made a finding on the act of killing.
The state contends tha

t the trial court e

rroneously allow

ed th e defendant t

o plead both not gu ilty and not guilty by rea son of insanity. Citin

g Rule 11, Tenn. R. Cr

im. P., it argues th

a t Tennessee law does not permit a plea of not guilty by reason of insanity. It asserts that, instead, the defendant should have pled not guilty and then advanced insanity as one of his theories of defense. The defendant

contends that cas

e law reveals tha

t a plea of not guilty

by reason of insanity is proper.

Rule 11(a), Tenn. R.

Crim. P., provides th

at a “defendan

t may plead not guilty

, guilty, or nolo contendere.” In Jimmy Don Spangler v. Sta te , No. 968, Hamilton Co unty (Tenn. Crim. App. Apr. 2, 1987), app. dismissed (Tenn. June 29, 1987), the trial court sustained the state’s objection pursuant to Rule 11 to the defendant’s alternative pleas of not guilty and not guilty by reason of insanit y. This court noted that the state was technic ally correct tha

t Rule 11 did not provi

de for a plea of n

ot guilty by r eason of insani ty and that “a plea of not guilty encompasses a plea of not guilty by reason of insanity.” Jimmy Don Spangler , slip op. at 7-8. The court concluded

that no reversible error resulted from the sustaining of the state’s objection because thedefendant developed his insanity defense at trial and the trial cour

t instructed the jur

y to consider his ins

anity defense. W

e do not take this analysis to foreclose a plea of not guilty by reason of insanity. Furthermore, our supreme court has explicitly referred to a defendant pleading not gui lty by reason of insanity. Forbes v. State , 55918

S.W.2d 318, 328-29 (Tenn. 1977) (“It is our view that when any defendant, suffering from a mental illness that is cyclic, periodic or episodic in nature, characterized by periods of remission, interposes a plea of not guilty by reason of insanity, it is incumbent upon h im to make out a prima

facie case of insanity by offering evide

nce of non-remis sion at the time of c ommission of the cri

mes.”); see, e.g. , Sampson v. State , 553 S.W.2d 345, 346 (Tenn. 1977) (noting that the defendant pled not guilty by reason of insanity); Wal d en v. State , 178 Tenn. 71, 72, 156 S.W.2d 385, 385 (Tenn. 1941) (noting that the “defendant entered

pleas of ‘not guilty’ and ‘insanity’”) ; State v. Phillips , 968 S.W.2d 874, 875 (Tenn. Crim. App. 1996) (noting that the defendant pled not guilty by reason of insanity); Matlock v. State , 566 S.W.2d 892, 894 (Tenn. Crim. App. 1978) (noting that the defendant pled not guilty by reason of

insanity). Even the uniform judgment document required by the supreme court provides for a verdict of not guilty by reason of insanity. See Tenn. S. Ct. R. 17. In fact, a ju ry must declarea not guilty

verdict is by reason of insanity in order to trigger the sixty to ninety days detention of a defendant for evaluation. See Tenn. Code Ann. § 33-7- 303(a) . A plea to match the verdict can only be appropriate. In any event, the fact that the defendant in the present case

pled both notguilty and not guilty by reason of insa nity does not mean th

at the jury rende

red special ver

dicts regarding the act of killing or the degree of homicide for each offense. Finally, as a part of his ar gument that the tria

l court erred in

failing to take the jury’s special verdicts, the defendant contends that the trial court was not qualified to rule on his double jeopardy motion because it received an ex parte letter from the foreperson on February 15, 1999. He argues that the letter revealed

the jury’s numerical split on whether the defendant committed the killing and his sanity and the details of the jury’s delibera tions. He contends that t

he trial court fa

iled to tell him that it had received the letter or to fi le the letter with the record. Upon learning of the letter, the defendant filed a motion to disqualify the trial judge. The trial judge overruled this motion, stating that his secretary received

and opened the letter and that he did not read it. The defendant contends that the trial judge’s receipt of this letter provides a reasonable basis to question whether the judge had personal knowledge of the jury’s verdict on the act of killing at the time the judge ruled on the defendant’s motion to bar retrial. He argues that at the v ery least, rece ipt of the letter creates the appearance

that the trial court had personal knowledge of facts before the court in the motion to bar retrial, and therefore, the trial judge was not qualified to rule on the defendant’s motion.
A trial judge should g

rant a motion to rec

use whenever his

or her impartiali

ty can reasonab

ly be questioned. Alley v. State , 882 S.W.2d 810, 820 (Tenn. Crim. App.1994). Recusal is “warranted when a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge would find a reasonable basis for questioning the judge's impartiality.” I d. The stan dard of review on appeal is whether the trial court abused its discretion by denying the motion. State v. Cash , 867 S.W.2d 741, 749 (Tenn. Crim. App.1993). The Code of JudicialConduct states in pe rtinent part: (1) A judge shal l disqualify himself or herself in a proceeding in which the judge’s imp a rtiality

might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or pers

onal knowledge of

disputed evid

entiary facts19 concerning the p

roceeding;

. . . . Tenn. S. Ct. R. 10, Cannon 3 E. Initially, we note that the defendant’s argument regarding the trial court’s receipt of a letter from the jury foreperson

has no bearing upon whether the trial court should have attempted to collect special verdicts before discharging the jury. In any event, the record reflects that the trial court did notread the letter and, ther efore, had no pe

rsonal knowledge

of any facts at is sue in

the defendant’s motion to bar retrial.

B. Factual Determination on Mental Disease or Defect
The defendant contends that the jury found that he had a mental dise ase or defect, and therefore, double jeopardy, res judicata, and collateral estoppel prevent the state from relitigating that issue in any future trial. He asserts that his mental state at the time of the offenses and at the time he made statements to

the police will be a

n issue in the event

of a retrial. He

maintains that in its February 12 note, the jury announced that it unanimously agreed that the defendant suffered from a me ntal disease or defect. He argues that jeopardy attaches to this finding. He al so summaril y contends that res judicata and collateral estoppel prevent the state f rom relitigating the issue of whether he suffered from a mental disease or defect. He arguesthat this finding by the jury implicates the volu n tariness of his statements to the police, the manner in which his Rule 12.2(c) mental evaluations were conducted, the striking of the insa

nity defense

in the Hanshaw rape case, the striking of the right to use expert

testimony in the consolidated rape cases, and the sentencing in the Hanshaw and consolidated rape cases. The state does not respond to this argument other than advancing the general argument that

the jury cannot return any verdict without a finding on both insanity and the elements of the of

fenses. As set out above, on February 12, 1999, the jury sent the trial court a note which stated:
Your Honor: We are u nable to come to a u nanimous decision o

n mental responsib

ilit y . People’s decisions are unlikely to change. Leslie Boone Foreman
We can agree that he has a mental disease or def ect, but we cannot decide on the second part on p. 18 # 2 & 3. Can you give us some guidance?
In its order on the defendant’s motion to bar retrial, the trial court made no determination regarding whether this note constituted a finding of fact by the jury.
The defendant conte

nds that res judicata ba rs relitigation of the issue of mental disease or20

defect. Our supreme

court has noted the

following distinctio

n between the doc

trines of res judic

ata and collateral e

stoppel:
“The doctrine of res j udicata bars a se cond suit b etween the s ame parties or the ir privies on the same cause of action with respect to all issues which were or could have been litigated in the f

orm er suit. Collatera

l estoppel operat

es to bar a secon

d suit betwe en the same parties a nd their privies on

a different ca

use of action only a

s to issues which were actually litigated and determined in the former suit.”
Richardson v. Tennessee Bd. of Den tistry , 913 S.W.2d 446, 459 (Tenn. 1995) (quoting Goeke v. Woods , 777 S.W.2d 347, 349 (Tenn. 1989)). “‘Res judicata’ bars relitigation of the same cause of action between the same parties where there is a prior judgment,

whereas ‘colla

teral estoppel’ bars relitigation of a particular issue or determinative fact.” Black’s Law Dictionary 905 (6th ed. 1991). In the present case, the defendant’s mental disease or defect is not a cause of action

but rather a singl

e issue or determinative fact within an action. Therefore, we will consider whether collateral estoppel applies.
The doctrine of colla

teral estoppel in t

he criminal law ste

ms from the constitutional protection against double jeopardy. Ashe v. Swenson , 397 U.S. 436, 445-46, 90 S. Ct. 1189, 1195 (1970); see Statev. Allen , 752 S.W.2d 515, 516 (Tenn. Crim. App. 1987) (analyzing the application of

collateral estoppel as define d in Ashe in a double jeopardy challenge under both the state and federal constitutions). This doctrine pre vents relitigation

of issu es nec essarily decide d in an earlier tr

ial: Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe , 397 U.S. at 443, 90 S. Ct. at 1194. The policy behind the doctrine lies in the inherent reliability of final judgments. Standefer v. United States , 447 U.S. 10, 23 n.18, 100 S. Ct. 1999, 2007 n.18 (1980) (noting that collateral estoppel“is premised upon a n underlying conf

idence that the r

esult achieved in the initial litigation was substantially correct”). Criminal collater al estoppel share

s this policy with civil collateral estoppel, but the policy of pre venting further h arassment to the p

arty prevailing in the initia

l tr ial weighs more he

avily in the crimina

l context. Daniel K

. Mayers & Fletcher L. Yarbrough, Bis Vexari: New Trials and Successive Prosecutions , 74 Harv. L. Rev. 1, 32 (1960). Procedurally, w hen a d efendant’s first trial ends in a general verdict of acquittal, the trial court must examine the record of the first trial; consider the pleadings, proof, jury instructions, and other relevant matters; and determine if a rational jury could have returned the verdict based upon an issue different

from the one the defendant wants to bar. Ashe , 397 U.S. at 444, 90 S. Ct. at 1194. The determination should be practic ally oriented and must l

ook to all the circumsta

nces of the first t

rial. Id. The defendant bears the burden of establishing that the issue that he or she seeks to preclude was actually determined in the first trial. Schiro v. Farley , 510 U.S. 222, 232, 114 S. Ct. 783, 790 (1994); Statev. McKennon , 6 S.W.3d 508, 511 (Tenn. Crim. App. 1998) (noting that the defendant bears the burden of showing that the issue that cannot be relitigated was actually decided and necessary to the judgment in the first trial).
In the present case, the defendant seeks to bar retrial of the issue of whether he suffered from21

a mental disease or defect at the time of the offenses. The jury’s statement that it could agree that the defendant had a mental disease or defect does not arise out of a pre

vious judgment of ac

quittal but, instead, was reported to the trial court before it determined that the jury was deadlocked in the present case. In this way, the circumstances of the present case are distinct from those in Ashe , in which the state sought to try the defendant for the robbery of the six victims successively despite his acquittal of the robbery of one of the victims in the first trial. See 397 U.S. at 439-40, 90 S. Ct. at 1192. We examine whether this distinction is fatal to the defendant’s argument.
Unlike the first trial in Ashe , which resulted in a final verdict of acquittal, the present murder trial resulted in a deadlocked jury. Thus, the jeopardy which attached at the time the jury was sworn didnot end but is deemed to be continuing. See Richardson v. United States , 468 U.S. 317, 325, 104 S. Ct. 3081, 3086 (1984) (concluding that whenthe trial cou rt declares a mistrial after the jury deadlocks,the original jeopardy does not end). Furthermore, the jury’s purported resolution of the issue of the defendan

t’s mental disease

or defect is not a

n issu e “determined by a valid and final judgment”as required by Ashe

. See 397 U.S. at 443, 90 S. Ct. at 119 4. Although not conc

lusive to the present issue, we note that in the context of civil law, our supreme court has required a

final judgmentin the previous case before preclusion can occur under both the doctrines of res judicata and collateral estoppel. Richardson v. Tennessee Bd. of Dentistry , 913 S.W.2d at 459. This requirement is in keeping with the policy behind collateral estoppel of affirming the inherent reliability of judgments. Furthermore, in analyzing whether a defendant timely filed a motion for new trial over thi

rty days after the jury’s verdict but before the trial court entered the judgment in a criminal case, our supreme court obs

erved in dicta that neither

res judicata

or collateral estoppel apply in the absence of a judgment: “A verdict, before a judgment has been en tered thereon, has no finality, cannot be executed, and cannot be pleaded in bar as resjudicata or offered in evidence as collateral estoppel.” Neeley v. St ate , 210 Tenn. 52, 56-57, 356 S.W.2d 401, 403 (Tenn. 1962) (citations omitted). Although Neeley preceded the Supreme Court’s holding in Ashe , which held that collateral estoppel in criminal cases derived from constitutional protections against double jeopardy, both Neeley and Ashe require finality. See Ashe , 397 U.S. at 443, 90 S. Ct. at 1194; Neeley , 210 Tenn. at 56-57, 356 S.W.2d at 403. We note tha t the Arizona high

court has relied

upon this language

from Neeley to hold that collateral e

stoppel in a criminal case r

equires a judgmen

t in the previous ac

tion and, in

fact, that “the force of the

estoppel is the judgment itself.” State v. Williams , 639 P.2d 1036, 1038 (Ariz. 1982) (conc luding that a trial court’s finding that the state did not establish that the defendant had violated his probation did notpreclude a subsequent prosecution for the sexual assault that formed the basis of the state’s evidence at the revocation hearing).
The S eventh Circuit has applied the principles of collateral estoppel when the fi rst jur y acquittedthe defendant of some counts but deadlocked on other counts. United States v. Bailin , 977 F.2d 270, 276 (7th

Cir. 1992). Noting that the original jeopardy is deemed to continue in the event of a hung jury, the co

urt concluded tha

t issue preclusion

arising out of sepa

rate counts of the

first trial is not collateral: “

Issue preclusion

‘within the confin

es of a single cla

imor cause of

action’ is known as ‘direct estoppel.’” Id. at 276 (quoting 18 Charles A. Wright, et al., Federal Practice & Procedure22

§ 4418, at 169 (1981)). The court held that direct estoppel applies in a criminal c ase to bar the government

from relitigating issues in the retrial of the mistried c ounts that were “necessarily and finally decided in the defendant’s favor by reason of the jury’s partial acquittal on ot her counts .” Bailin , 977 F.2d at 276.
Direct estoppel preven

ts a party from relitigating a fact which was already determined against it in “a decision tha

t finally disposes of a part of a claim on the merits but does notpreclude all further action on the remainder of

the claim; issues c

ommon to both parts of the claim are precluded, even though new issues remain to be decided.”
Id. (quoting Wright, supra , § 4418, at 169-70).
The Third Circuit explored the meaning of the necessary and final determination of an issue for purpos es of collateral estoppel in United States v. Cons ole , 13 F.3d 641 (3d Cir. 1993). T he defendant was acquitted of

some counts of mail f

raud, but the jury

was not able to

reach a verdict

on his Racketeering Influenced Corrupt Organizations Act (RICO) counts and other mail fraud c

ounts. The defendant argued that the trial court er re d in denying his request for special verdicts on the predicate offenses in

the RICO counts

and that this erro

r foreclosed his

use of collatera

l estoppel to preclude retrial on tho se predicate counts. The court held that a defendant has no right to special verdictson the elements of the offense and that the decision to submit special interrogatories to the jury regarding the elements of the offense is within the court's discretion. Id. at 663. The court also explained that even if the trial court had submitted interrogatories to the jury and the jury had found that the predicate acts had not been established, collate ral estoppel or direct estoppel under Bailin would notpreclude retrial on the predicate offenses because responses to special interroga tories are not“final” judgme

nts or “necessary” to a final judgment. Id. at 664-65. The court reasoned that the predicate offense was not a RICO violation but merely one element of the offense. Id. at 664 n.27. Thus, the Third Circuit concluded that a factual finding on a count that eventually results in a mistrial due to a hung jury does not preclude relitigation of that issue on retrial. Id. at 664-65.
In contrast, a North

Carolina appella

te court has dete

rmin e d that a jury’s special verdict on the court’s jurisdiction precluded relitigation of that issue upon retrial even though the jury was deadlocked

on the defendant’s guilt. State v. Dial , 470 S.E.2d 84, 89 (N.C. Ct. App. 1996). In Dial , the defendant, a Virginia resident, was charged with the first degre e mur der of a Virginia

resident, whose body washed onto a

North Carolina beach. At the first trial, the jury returned a special verdict on jurisdiction but deadlocked on the defendant’s guilt. On retrial, the defendant was convicted of seconddegree murder, and he argued on appeal that the trial court erroneously ref us ed to set aside the special verdict. Analyzing the case in terms of collateral estoppel as derived from res judicata, the appellate court observed that when “‘a fact has been agreed on, or decided in a court

of record, neither of the parties shall b

e allowed to call

it in question, and ha

ve it tried over a

gain at any time th ereafter, so long as the judgment or decree stands unreversed.’” Id. at 89 (quoting Hu mphrey v

. Faison , 100 S.E.2d 799, 804 (N.C. 1957) (internal quotation marks omitted)). The court held that the special verdict met all of the prerequisites for issue preclusion: (1) the parties are the same; (2) the issue as to jurisdiction is the same; (3) the issue was raised and

actually litigated in the prior action; (4) jurisdiction was material and23

relevant to the disposition of the pri or action; and (5) the determination

as to jurisdiction was ne

cessary and ess

ential to the resul

ting judgment.
Id. at 89.

The North Carolina appellate court did not require a

final judgment in the first trial in order for an issue resolved

in the first trial to preclude the same issue in a subsequent trial. See id. at 89. We believe , though, that the court’s failure to require a final judgment is inconsistent with the requirement

of a final judgmen

t for the applica

tion of res judica

ta base d colla

teral estoppel under Tennessee case law. See Richardson v. Tennessee Bd. of Dentistry , 913 S.W.2d at 459. Furthermore, as previously noted, our

supreme court has stated that a final judgment is required before collateral estoppel can bar retrial of an issue in a criminal case. Neeley , 210 Tenn. at 56-57, 356 S.W.2d at 403. This is consistent with

the United States Supreme Court’s requirement that the issue to be precluded must have been “determined by a valid and final judgment.” Ashe , 397 U.S. at 443, 90 S. Ct. at 1194.
In the context of an a

cquittal, we note t

hat as a pract ical matter, there is no need for a judgmentfor jeopardy to bar a retrial of the issue. It is a

“deeply entrenched principle of our criminal law that once a perso

n has been acquit

ted of an offense

he cannot be pros

ecuted again on t

he same charge.” Green v. United States , 355 U.S. 184 , 192,78 S. Ct. 221, 226 (1957). For instance, a conviction on a lesser

included offense constitutes an implied acquittal of the greater offense if the jury had an opportunity to consider the greater offense before considering the lesser. Id. at 190-91, 78 S. Ct. at 225; State v. Madkins , 989 S.W.2d 697, 699 (Tenn. 1999). I n that s ituation, double jeopardy protections prohibit a retrial onthe greater offense. Green , 355 U.S. at 190, 78 S. Ct. at 225, Madkins , 989 S.W.2d at 699. In fact, in Ashe , which required a final judgment for collateral estoppel to preclude the relitigation of an issue, the defe

ndant was acquitt

ed in the first tria

l. 397 U.S. at 446, 90 S. Ct. at 1195-96. In other words, an acquittal enjoys the same finality as a judgment of conviction and, in this respec

t, bars retrial of

issues necessar

ily decided by the a

cquittal. Although not

germane to the present case, w e note in passing tha

t bifurcated pro

ceedings in which the determination of guilt is separate from that of punishment proceed differently. We do not allow the retrial of gui

lt when a retrial

is ordered on punishment although no final judgment yet exists. See, e.g. , State v. Hunter , 496 S.W.2d 900, 903 (Te nn. 1972) (reman

ding for retrial o

n only the penalty phase of

a capital case) ; State v. W ard , 810 S.W.2d 158, 159 (Tenn. Crim. App. 1991) (affirming a retrial on the enhancement count of the indictment charging second offense DUI following a hung jury); State v. Freeman , 669 S.W.2d 688, 692 (Tenn. Crim. App. 1983) (affirming retrial of the habitual criminal count following a hung jury); Sta te v. Hall , 667 S.W.2d 507, 510 (Tenn. Crim. App. 1983) (affirming retrial of the habitual criminal count following a hung jury)

. In light of the continuing jeopardy in the case of a mistrialresulting from a deadlocked jury, we believe that

the better reasoned approach is that a factual finding by a jury on a deadlocked count cannot preclude a jury f

rom reconsideri

ng that issue in

a second trial. In the present case, the jury’s24

purportedfactual determination regarding the defendant’s mental disease lacks even the finality of a special verdict

much less the weight of a judgment and does not equate to a final disposition of that part of the case on the merits. Clearly, the jury’ s gratuit ous statement th

at it could agree that the defendant had a mental disease or defect is not an acqui ttal of the defe ndant on any count in the presentment. Even if we assume that the jury’s statement amounts to a partial resolution of the insanity issue, it has no preclusive effect because it lacks

the requisite fina

lity in terms of ending the proceedings of a judgment or an acquittal. For these reason s, the jury’s state

ment in its February 12 notedoes not

have a preclusive effect on a retrial of the defendant’s first degree murder c harges. Finally, in his reply brief, the defendant a

sserts that the jur

y’s finding tha t he had a mental disease or defect manda

tes a verdict of n

ot guilty by reason o

f insa nity. He a rgues that the jury’s finding on mental disease or defect indica tes that they rejected the testimony of Dr. Speigel, the state’s expert who deemed that the defendant was not insane. He contends that even considering Dr. S peigel’s testimony, the evidence was insufficient to support a finding that the defen dant had th e substantial capa

city to apprecia

te the wrongfulness of his conduct or to conform his conduct to the law. Thus, he arg

ues that double jeo

pardy bars a re

trial and require

s that a finding of not

guilty by reason of insanity be entered. Initially, we note that

in support of this expansive assertion, the defendant cites only the jury’s February 12 note and the trial court’s instructions on the insanity defense. The Tennessee Rules of Criminal Procedure requ ire that appellan

ts support the issue

s t hey seek to raise with argument, citat ion to authorities, and appropriate references to the record. Tenn. R. Crim. P. 10 (b). In an y event, this court denied the de fe ndant’s Rule 10, T.R.A.P., application to appeal on the issue of sufficiency of the evidence because, as discussed above, the jeopardy that attached with

the swearing of the jury in this case has not ended. State v. Thomas Dee Hu skey , No. 03C 01-9903-CR-00125, Knox County (Tenn.

Crim. App. Apr. 26, 1999) (order), applic. denied (Tenn. Sept. 13, 1999); see Richardson , 468 U.S. at 325, 104 S. Ct. at 3086; State v. Bruce , 604 S.W.2d 889, 890 (Te nn. Crim. App. 1980) (holding that an interlocutory appeal to review the trial court’s denial of a judgment of acquittal is not appropriate following a mistrial due to a deadlocked jury). The jur y’s inability to re ach a verdict does not terminate jeopardy. Richardson , 468 U.S. at 325, 104 S. Ct. at 3086. Fo r this reason, the defendant may not challenge the sufficiency of the evidence at the first trial in order to bar a second tr

ial:
The Government, like the defendant, is enti tled to resolution of the case by verdict from the jur y, and jeopardy do es not terminate w

hen the jury is disc

harged because it is unable to

agree. Regardless of the sufficiency of the evidence at [the defenda

nt’s] first trial, he has no valid double jeopardy claim to prevent his retrial.
Id. at 326, 104 S. Ct. 3086. Thus, any insufficiency in the evidence at the first trial would not bar a retrial in this case.
IV. CONCLUSION
In light of the foreg

oing and the reco

rd as a whole, we

hold that double jeopardy does not bar25

the retrial of the de

fendant on the fo

ur countsof first

degree murder. We remand the case to the trial court for furthe

r proceedings.

___________________________________ JOSEPH M. TIPTON, JUDGE