# FILED

December 30, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON OCTOBER SESSION, 1997

STATE OF TENN ESSEE, ) ) No. 02C01-9702-CR-00082 Appellee ) ) SHELBY COUNTY vs. ) ) Hon. JOSEPH B. DAILEY, Judge JAMES E. HATHAWAY, ) ) (Felony Murder and Appellant ) Espe cia lly Agg rava ted R obbe ry)

For the Appellant : For the Appellee : Brad S. Tisdale John Knox Walkup 642 Washington, Suite 1 Attorney General and Repor ter Memphis, TN 38105 Kenneth W. Rucker Charles Waldman Assistant Attorney Gener al 147 Jefferson Ave. Criminal Justice Div ision Suite 1101 450 James Robertson Parkwa y Memphis, TN 38103 Nashville, TN 37243-0493

William Gibbons District Attorney General Terrell L. Harris and David C. Henry Asst. District Attor

neys General Criminal Justice Comple x, Suite 301 201 Poplar Street Memphis, TN 38103

OPINION FILED: AFFIRMED

David G. Hay

es Judge2 OPINION

The appellant, James E. Hathaway, appeals his jury conv ictions for the crimes of especially ag gravated robbery an d felony murder. At the concl usion of the penalty phase of the trial, the jury imposed a sentence of l ife imprisonment without the possibility of parol e for the felony murder convi ction. The Criminal Court of Shelby County sentenced the appellant to twenty-five years for the especially aggravated robbery

conviction, ordering

that this twenty-fiv

e year sentence run consecutively to the appellant’s life sentence. On appeal, the appellant raises the following issues:

I. Whether the trial court properly reseated Juror Ward after concluding that the defense’s ex ercise of a peremptory chal lenge was racially motivated ; II. Whether the State established the appellant’ s sanity beyond a reasonable doubt; and III. Whether the trial court properly prohibited th e defense’s expert witness from testifying

regarding the diagn oses of non-testifying physicians and th e effects of cocaine on an in dividual exhibitin g a history of seizure disorder.

After a t horough r eview of th e record a nd the la w applicab le theret o, we affirm the judgment of the trial cour t.

Background

The proof at trial revealed that, in December of 1993, the vi ctims in this case, Elbert Dan Swa rtz and

his wife, Maxine Swa rtz, ow ned and operated K

eyportSelfStorage, a mini-storag e facility in Memphis. The couple’s residence was attached to the office of the business. Mr. Swartz was a sixty-one year old retired Memphis police officer.1 At tri al, Mrs. Swar tz advi sed that, prior t o this i ncident, she and her husband had employed the appel lant to perform odd jobs, i ncluding “ detail ing” thei r automobiles. She continued t hat, on numerous occasi ons, her husband had l oaned money to the appel lant and t hat the appell ant was welcomed in t heir home.

2 Rega rding the s tabbing, the appellant s tated “I wan t my sha re of this.” 3 On December 14, 1993, as Mr. Sw artz was locking

the office door at closing time, the appellant and a co-defendant, ea ch carrying a handg un, entered the business. Mrs. Swar

tz, who was in the residence area, heard the beepi ng sound which indicated that the o ffice door had been opened. Seconds later,the appellant and the co-defendant, Abraham Galmore, enter ed the Swartzs’ apar

tment. The appellant grabbed Mrs. Sw artz and demanded money, wh ile Galmore held a gun to Mr. Swartz’s h ead. Mr. Swartz r eplied that they did not hav e any money. The appellant then began kicking and shoving Mrs. Swartz toward the bedroom, where he forced her onto her knees. Poi nting his weapon at the ba ck of her head, the appellant informed Mr. Swartz that, if he didn’t produce some mo ney, he would “blow [Mrs. Sw

artz’s] brains out.”

After hearing his wi

fe’s pleas for compliance with the intruder’s request,Mr. Swartz took two bank bags from the bedroom.The appellant remarked, “Ms. Maxine, I sure hate to do this to you,” and then shot Mrs. Swartz in the back o

f the head. 1 Galmore retrieved a k nife from the kitchen and the two men took turns stabbing the already wounded Mr s. Swartz in the thr

oat.

The perpetrators then returned t o Mr. Swartz and s hot him in the back of the head. As the assailants argued over who would stab Mr. Swartz, one held Mrs. Swartz by the back

of the head, forcing her to w atch the execution of her husband. 2 The two me n then pi llaged th rough the ir victims’ persona l belongin gs, taking jewelry, Mr. Swartz’s father

’s watch, money, and v arious handguns. Before leav ing the apartment, the appellant grabbed Mrs. Swartz by her hair and jokingly

remarked to his companion, “Don’t w aste another bullet on her. She’ s already dead too.” After the two assailants left, M rs. Swartz craw led to the telephone in the liv ing room and dialed 911. Concerned that her attempt was unsuccessful, she contacted her granddaughter who als o notified 911.3 Ballard a lso rel ated that the appell ant and Galmore had vi sited at his apart ment earlier that aftern oon an d that he h ad over heard th e two plan ning a rob bery or in their te rms , “going to mak e a sting.”

4 "Testimony rev

ealed that

“Greg” was Abraham Galmore’s nickname. Pri or to the app ellant ’s trial, G alm ore w as c onvic ted o f crim inally ne gligen t hom icide a nd es pec ially aggravated rob bery. He was sent enced, as a career offender, t o sixty -six yea rs in the Department of Correcti on. 4 Paramedics arrived at the scene at approximately 5:59 p.m, and discovered Mr. Swartz lay

ing face down in a pool of blood . He was pronounced dead at the scene. Mrs. Swartz

was in shock from the los s of blood. The paramedics, believ ing her condition to be critical with a high risk of death, inquired as to whether Mrs. Swartz c ould identify

her assail ants. She re plied “James ” and a last name indiscernible to the paramedi cs. Before being transported to the hospital, she was able to state, “James Hathaw ay did it.”

After fleeing the scene, the appell ant and Galmore went to the apar tment of Roy Ballard. 3 Ballard observed that the appellant was carry ing two handguns and Galmore was armed with a knife. Galmore handed the knife to the appellant who began washing off what appea red to be blood from the knife. Balla rd noted that the appella nt had bl ood on hi s person a nd clothi ng. Ballar d also obs erved tha t the two men “had a lot of money.” After lea ving Ballard’s apar

tment, the appellant proceeded to the Sun Inn Motel, w here he registered in hi s own name. The appellant then purchased $250.00 w orth of crack cocaine whi ch he smoked. At 11:00 a.m. the following morni ng, the appellant telephoned his mother and told her that he had done something awful. He was then taken to the police stat ion by his mother and her husband.

At the police station, the appellant appeared norm al and was willing to talk with police officers. After being advised of and sig ning a waiver of r ights, the appellant gave a statement in which he admitted that he had shot Mr. Swartz. He stated that “a man he only knew as Greg” accompanied him dur ing the “robbery/murder.” 4 Narrating the event

s of the prior evening, the appellant stated5

that “Greg put a pillow

to Dan’s head and told [the appel lant] to shoot. And [the appellant] shot once. Greg then shot Dan two more times.. . . Greg came out of the bedroom and went in the kitc hen and got a knife.” He stated that “Greg” had stabbed Dan. The appellant recall ed that “[he] took Maxine back into the bedroom where Dan was. [The appel lant] advised that he did not shoot or stab Maxine.” At the conclusion of this statement, the appe llant telephoned his parents and live-in girlfriend, Stella Mar

tin.

After completing his telephone calls, the appellant, agai n, voluntarily w aived his rights, and stated th at he wished to make a second s tatement. The appellant related that [he] went to Dan’s to g o borrow some money. [He ] got out and went inside and Dan opened the door for me. Greg was still in the truck when I got out. When I got inside he c ame in like before that door closed. He was inside in the back of me. He, Greg, had the gun in his hand; and he said this is a r obbery. At that point, Gr eg took Dan to the bedroom and told him to sit dow n. Greg told Maxine

to get in here, and she was talking r

eal drowsy like.. . . Greg asked him, w here is the money. Dan told me it w as under the bed, and I got it out. Dan kept asking me, w

hy am I doing

this. I’l l give y

ou the money i

f you ask me for it. From there Greg grabbed a pillow, put it to the back of Dan’s head, handed me the pistol and said shoot. And I shot him once. Him and Dan got to fighting, and after I shot him, I gave Greg the gun back. I went in the living room and got the money out of the drawer., After I got the money, I heard the sho ts. . . . Greg was going in the kitchen. He came out the kitchen with a knife. . . . Then Greg w ent back in the room and Dan and Greg started scuffling again. Greg s tarted stabbing Dan with a knife. Then he w as just stabbing and Dan w as kicking. The appellant again denied stabbi ng or shooting Max ine Swartz. How

ever, he stated “There ain’t no excuse f or doing what I did. I’ m sorry, but it won’t ch ange anything.”

Testifying in his own defense, the appellant related that, on the date of these crimes, he had been smoking c rack cocaine earlier i n the day. He was lat er joined by Galmore at Ballard’s apartment where the two continued to use cocaine. The appella nt testified that

he had no

recoll ection o

f the eve nts tra nspiri ng after he left Ballard’s apartment until the next morning when he awoke in the hotel. The5 On cross-examination, however, th e State reve aled medical r eports from 1991 which indicat ed that t he appellant

began his abuse of ill egal substances at the age of t hirteen.

6 At tria l, “neu rops ycho logy” w as de fined by Dr. Little a s a st udy of the re lation ship betw een the b rain a nd be havio r. It inclu des the s tudy o f indiv iduals who have suff ered brain traum a “and h ow they fun ction in their da ily world.”

7 Dr. Lit tle defi ned “impulsiv ity ” as the i nability to think befor e one acts or makes statements. 6 appellant revealed that, in 1984, he suffere d a gunshot wound to the head. As a result of this incident, the appellant’s equilibri um was affected and, subsequently , he underwent surgery , a labyrinthectomy, t o correct this problem. The appellant related that the bullet is still

lodged in the back of his sk ull. After this injury , the appellant began suffering seizures , for which he takes 100 mil ligrams of Dilantin per day. Moreover, in order t

o obtain relief from the pain suffered from thi s injury, he began using illegal drugs, including heroin, c ocaine, crack, and PCP. 5

Dr. Marsha Little, a clinical p sychologis t with a spe ciality in n europsych ology, performed an evaluation of the appell ant. 6 Testifying on his behalf, s he opined that the appellant

has “difficul

ty in abstr

act reasoni ng, social

judgment, [

and suffers from ] impulsivity.”

7 Dr. Little diagnosed the appellant as mentally i ll and suffering from an organic mental disorder resulting from damage to the br ain caused by structural insult. Specifically , she stated that, as a result of the gunshot wound, the appell ant endured impairment of the functioning of the front temporal lobes of the brain. In sum, Dr. Little concluded that on the evening of December 1 4, 1993, the appellant was unable to control his impulses.

In rebuttal of Dr. Little’s diagnoses, the State calle d Drs. John Whirley and Wyatt Lee Nichols, both clinical ps ychologists. Dr. Whirley conducted an interview of the appellant during whi ch the appellant indicated a l ack of memory of the criminal episode. Acknow ledging that the appellant was admittedly “hi gh” on cocaine at the time of the offen se and that “a drug dependant state can aff ect memory functioning,” he deter mined that, at the time of the offense, the appell ant7

“was able to appreciate the wrongfulness of the behav ior; and he was able to c ontrol his behavior or conform his behavior to the requirements of the law.” Although Dr. Whir ley admit ted that the appe llant has a substan ce abuse history of twenty-fi ve years and that the appellant may be suffering from depression, he concluded that these observations are not “remarkable or a mark of ins anity. It’s actually

a mark of some reality to be depress ed when you’re facing these kinds of charges. But Isaw no evidence of psychosis which is the most common thing that we would expect if one had access to insanity .” With regard to Dr. Little’s conclusion that the appellant suffered from impulsivity, D r. Whirley countered that “[h]e may be impulsive, but I think he’s been impulsive since he was small.” He explained that impulsivity is “more of a symptom or a personal ity trait” and not a di agnosis or a mental disor der. Moreover, impulsivity “doesn’t take away one’s ability to appreciate the wrongfulness of behavior or to conform to the behav ior to the law.” Bas

ed upon the circumstances of the criminal episode, Dr. W hirley found evidence of planning which negated the suggestion of an impulsive act. Furthermore, he could not con firm Dr. Little’s diagnosis of or

ganic brain damage.

Dr. Nichols also testified as to the appellant’s mental state. Dr. Nichols conducted two mental examina tions of the appellant. Dr. N ichols determined that the appellant was competent to stand trial and that the appell ant did not suffer from a mental illness. Regarding Dr. Little’s diagnosis of impulsivity, Dr. Nichols responded that, although he might have impulse contr ol problems. . . that reall y doesn’t mean much. Most people with an antisocial personality . . . that’s one of the cardinal symptoms of that - - impulse control problems. Most people with chronic chemical dependency histories, . . . it’s not unusual at all for him to have impulse contro l problems. And when he’s intoxicated or high, then he’s goin g to more likely hav e trouble with his impul ses. I mean, that’s true for anybody as a general rule. Regarding the present offenses, Dr. Nichols determi ned that they were goal directed, and not an impulsiv e act. In summary, he concl uded that “[the appellant]8 The appellant is an Afri can American male. Ms. Ward is a Caucasian fe male. The reference fr

om the record is t hat all of the seven per

emptory chall enges exercised by the defense were direct

ed toward Caucasian members of the v enire. Moreov

er, six of

these seven prospe ctive jurors were fem ale. J.E.B. v. Alabama , 511 U.S. at 127, 114 S.Ct. at 1419 (1994), extended the Batson rational e to gender di scriminati on. Although not

raised by

either p arty, the fact t hat the basi s of juror excl usion in t he present case is that

the juror

is Caucasian i s of no consequence. The Batson princi ple is not limitedto the exclus ion from juries of his torically oppre ssed m inorities. See J.E.B. v. Alabama , 511 U.S. at 127, 114 S.C t. at 1419. Batson held that equal protection guar anties for

bid the St

ate in a cr iminal pros ecu tion to use p erem ptory c hallen ges to ex clud e pot entia l juror s so lely on a cco unt o f their race or on the a ssu mp tion th at be cau se of their r ace they w ill be un able t o be im partia l. This protecti on applies e qually to Caucasians and Afr ican-Americans. 8 was not out of touch with reality or distorting reality past any thing that would be accounted for by being intox icated. . . . His behavi or was still goal oriented.”

Based upon this evidence, the jury convicted the appellant of felony murder and espe cially aggra vated rob bery.

I. Batson Challenge & Reseating of Juror Ward

During voir dire, the defense exercised the seventh of their eight peremptory challenges against pr

ospective juror Car

ol Ward. 8 Ms. Ward was discharged as a juror and excused from the courtroom. The State the n objected to Ms. Ward’s
remova l as bei ng a pos sible v iolati on of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712 (1986) (holding that per emptory challenges may not be exercised in a discriminatory manner. A jury out hearing was then held during which the defense provided the court with several race-neut ral explanations for the ex ercise of the peremptory challenge against Ms. Ward. Specifically, defense c ounsel noted, as to Ms. Ward, that she “appeared. . .to be. . . s trongly in favor of the death penalty,” she appeared to have agreed w ith another juror’s doubts about an insanity defense, her home had been burglarized, and her ex-husband had been addic ted to cocaine. Additionally, prior

to exercising the c

hallenge, defense counsel consulted with the appellant who indicated that , during the voir di re process, he felt that Ms. Ward was staring at him inten tly, and th at he fe lt animo sity eman ating fro m her. Fin ally,9

defense counsel advised the cour t that it was the combinati on of these reasons that supported their exerci se of the peremptory challeng e.

The trial court, before ruling on the State’s objection, interviewed defen se counsel as to its prior peremptory challenges o f prospective jurors. In making extensive findings on the record, the trial cour t concluded that, even thoug h the reasons articulated by defense counsel are sound, in and of themselves, w hen you start looking at the . . . AfricanAmerican jurors that weren’t challenged and start realizing that there is an abundance of African-American jur ors who have perhaps responded in similar or i dentical manner that weren’ t challenged, then the soundness of those reasons star ts to evaporate. Moreover, the court acknowledged that in listening to [Ms. Ward’s] responses . . . [she] seemed ver y candid, forthright, ready to r

espond to anything asked of her, willing to li sten to the case; a bright, arti culate, intelligent w oman who said she could be fair and impartial. . . . [W]hen she was c hallenged, it did raise

a red flag in my mind because I can’ t think of anything val id --- anything that I would consider to be a valid race-neutral reason in the context of all the jurors that are on the panel right now. . . . [A]ll these women are the women who apparently nodded at the wrong time or apparently were too qu ick to agre e that th ey could f ollow the l aw. Specifically, the court concluded that, as to the burg lary, Ms. Ward indicated that the incident would have no bearing whatsoever on her ability to sit on this case. “There are other jurors who have had equal or grea ter crimes committed agains t them who are still on the panel.” With regard to the death penalty, Ms. Ward is no different than many of the other African-American jurors who have not been cha llenged. Ms. Ward indicated that the fact that her ex-husban d of nine years ago was addicted to cocaine or alcohol would have absolutely no bearing on her ability to sit on this case and the court noted that “other j urors have had at least as close or have had simil ar types of relatives or friends involved with drugs or alcohol who were not challenged.”

And the temporary insanity situation. . . . I’m not su re that nod, in and of itself, is a sufficient race-neut ral reason particularl y in light of the fact that there were no follow -up questions, no attempt to clarify what that nod meant, what she was agreeing with, w

hether she was nodding in agreement with Mr. Tisdale or nodding in agreement with the juror or10 nodding because she was g etting sleepy . . . [t ]here is no attempt to clarify what that noddi ng was all about. The court concluded that the basis for the challenge exercised by the defense is not sufficient “when view

ed in the context of all the j urors that are presently on the panel and those who have thus far bee n dismissed.” The court then r eseated Ms. Ward.

The appellant now disputes the trial court’s ruli ng that defense counsel failed to assert sufficient race-neutral explanations for the e xercise of the peremptory challenge against Jur

or Ward. Alternatively, he arg ues that, in any event, the reseating of Juror Ward resulted in the possibility of bias against the appellant by that juror.

The Unit ed State s Suprem e Court ha s consist ently reco gnized tha t raciallybased juror exclusions

affect and injure the integrit y of the justice syste m. See Woodson v. Porter Brown Limestone Co. , 916 S.W.2d 896, 902 (Tenn. 1996) (citing Strauder v. West Virginia , 100 U.S. 303, -- S.Ct. -- (1879); Norris v . Alabama , 294 U.S. 587, 55 S.Ct. 579 (1935); Hollins v . Oklahoma , 295 U.S. 394, 55 S.Ct. 784 (1935) ( per curium

); Ballard v. United State s , 329 U.S. 187, 67 S.Ct. 261 (1946); Carter v. Jury Comm’n of Greene County , 396 U.S. 320, 90 S.Ct. 518 (1970) ). Discrimination in the j ury selection process not only constitutes a feder al offense, but also taints the judici al process and “extends beyond that inflicted on the [l itigant] and the excluded juror to touch the entire community.” Woodson , 916 S.W.2d at 902 (citing 18 U.S.C. § 243 (1969); Batson v. Kentucky , 476 U.S. at 79, 106 S.Ct. at 1712). See also Powers v. Ohio , 499 U.S. 400, 409, 111 S.Ct. 1364, 1370 (1991) (emphasizing that the individual juror has a right not to be excluded from a petit jury on account of race). “The exclusion ‘undermine[s] public conf idence in the fairness of our system of justice.’” Woodson , 916 S.W .2d at 902 (citin g Batson , 476 U.S. at 87, 106 S.Ct. at 1718).9 McCollum held that a criminal defendant, al though otherwi se in an adversar ial relationship, is an agent of the State for the particular purpose of exercising a peremptory challeng e when picking a jury. McCollum , 505 U.S. at 55-56, 112 S.Ct . at 2357. 11 The Supreme Court’s decision i n Georgia v. McCol lum , 505 U.S. 42, 112 S.Ct. 2348 (1992), ensures tha t Batson will apply to al l parties by prohibiting criminal defendants from using peremptory c hallenges to strike a v

enireperson solely on the basis of the venireperson’s minority status. 9 Thus, the State may make a “rev erse” Batson objection.

Under McCollum , a defendant is subject to the three-part test outline d in Batson . To inv

oke the p rotecti ons of Batson and its progeny, the State must establish a prima facie case that a juror is being c hallenged on the basis of race or gender. See Batson , 476 U.S. at 94, 106 S.Ct. at 1721; see also Purkett v. Elem , 514 U.S. 765, 767, 115 S.Ct. 1769, 1770- 71 (1995); Woodson , 916 S.W.2d at 902. Once the State has presented a pri ma facie case, the trial court shall require the defendant to give a race-neutr al reason for the challenge. McCollum , 505 U.S. at 59, 112 S.Ct. at 2359; see also Purkett , 514 U.S. at 767, 115 S.Ct. at 1770-71. “The race or gender neutral explanation need not be persuas ive, or even plausi ble . . . . Unless a discri minatory intent is inher ent in the [proponent’s] expl anation, the reason offered will be deemed race neutral.” Purkett , 514 U.S. at 767, 115 S.Ct. at 1770-71. If a race or gender neutral explanation is g iven, the court must then determine, given all the circumstances, whether the State has established purposeful discrimination. McCollum , 505 U.S. at 59, 112 S.Ct. at 2359; Batson , 476 U.S. at 96-98, 106 S.Ct. at 1 723-24; see also Purkett , 514 U.S. at 767, 115 S.Ct. at 1770-71. Although a trial court must accept a faci ally race-neutral explanation for purposes of determining whether the propon ent has satisfied his burden of production, this does not mean that the court is bound to beli eve the explanation in making its determination. In other w ords, while the court may find that a proffered explanation is r ace-neutral, the court is not required, in the final analysis, to find that the pr offered explanation was the actual reason for striking the12

juror. If the court determines that a race or gender based motive was behind the challenge, the juror may not be excluded. Woodson , 916 S.W.2d at 903.

In making its determination , the trial court must look to the totality of the circumstances for rarely will a party admit that its purpose in stri king a juror was discriminatory. Acc

ordingly, the tria l court may infer discr iminatory intent from circumstantial evidenc

e. “The factfinder’s disbelief of the r easons put forth by the defend ant (part icularly if disbelie f is accom panied b y a suspicio n of men dacity) ma y, together with the elements of the prima facie case, suffice to show intentional discrimination, and . . . no additional proof of discrimina tion is required.” St. Mary’s Honor Center v. Hicks , 509 U.S. 502, 511, 113 S.Ct. 2742, 2749 (1993). Additionally, the court

may consider whether similarly situated members of another race were seated on the ju ry or whether the r ace-neutral explanation pr offered by the strikes’ proponent is so implausible or fantastic that it renders the expl anation pretextual. The trial c

ourt may also consider the demeanor of the attorney who exercises the challenge which is often the best evidence of the credibility of his proffered explanations. See Hernandez v. New York , 500 U.S. 352, 365, 111 S.Ct. 1859, 1868-1869 (1991).

Because a trial record al one cannot provide a legi timate basis from which to substitute an appellate court opinion for a trial court’s find ings, the trial court must carefully articulate i

ts findings on the record. The trial court has the opport unity to both visually and auditorially observe the demeanor of both prospective j urors and counsel and, accordingly, evaluate their credi bility. See State v. Smith , 893 S.W.2d 908, 914 (Tenn. 1994), cert. denied , -- U.S. --, 116 S.Ct . 996 (1995) (citi ng State v. Ellison , 841 S.W.2d 824, 82 7 (Tenn. 1992)). On appeal, the trial court’s findings are to be accorded great deference and are not to be set asid e by this court unless clearly erroneous. See Woodson , 916 S.W .2d at 906 (citin g In re A.D.E. , 880 S.W.2d 241, 2432 (Tex. App. 1994)); Smith , 893 S.W.2d at 914.13 In the present case, the evi dence supports the trial cou rt’s finding that the proffered reasons for the appellant’s strikes were pretex tual and that the strike w as actually exercis

ed for a racially discriminatory purpose. At this point, the appellant had used six of his seven peremptory strikes to eliminate white female juror s, and an additional strike to eliminate a white male juror. This patent use of peremptory strikes to exclude j urors of one race establishes a prima facie showing of discrimination. Additionally, the trial court was in a far better position than this court to evaluate the appellant’s laundry list of race-neutral explanations. The trial court made extensive findings on the record to support his conclusions. Moreover, the trial court was abl e to observe the demeanor of defense couns el and the challenged jurors. Accordingl

y, we hold that the rec

ord supports the trial co urt’s conclusion that the peremptory challenge lodged by the appellant against Juror Ward was racially/gender moti

vated.

We next address the appellant’s con tention that the trial court erred in reseating Juror Ward after finding that d efense counsel had violated Batson

. Specifically, he argues that, “having Juror Ward reinstated to th e panel [after a jury out hearing,] impermissibly suggests to the prospective jurors that the appellant is the one who has exercis ed his peremptory challen ge against her, thereby raising the possibility of bias against the appellant by that juror.” We disagree.

Although leaving the task of prescribing the appr opriate remedy for the unconstitutional exercise of a peremptory strike to the states, the Sup reme Court identified two possible r emedies: reseating persons improperly struck and discharging the entir

e venire. Batson , 476 U.S. at 100 n. 24, 106 S.Ct. at 1725 n. 24. In Woodson v. Porter Brown Limestone Co. , 916 S.W.2d at 906-907, our supreme court determined that the s election of an appropriate remedy is best left to the discr etion of the trial c ourt. For g uidance the court propose d two alter native remedies, i.e. , the court may exclude the entire venire and beg in selection with a14

new panel, or, “the jur

or should remain, his or her name should not be announced, and the excluding party should be restored to the peremptory challenge.” Accord

. Jefferson v. State , 595 So. 2d 38, 41 (Fla. 1992); Jones v. State , 683 A.2d 520, 529 (1996); Commonwealth v. Fruchtman , 633 N.E. 2d 369, 373 (Mass.) , cert. denied , 513 U.S. 951, 115 S.Ct. 366 (1994) ; Ezell v. State , 909 P.2d 68, 72 (Okla. C rim. App. 1995); State ex rel. Curry v. Bowman , 885 S.W.2d 421, 42 5 (Tex. Crim. App.), cert. denied , 513 U.S. 866, 115 S.Ct. 184 (1994 ); Coleman v. Hogan , 486 S.E.2d 548, 550 (Va. 1997). In the present case, the trial court c

hose the latter method of recourse. We find this method of reparation quite appropriate. If the trial court, after finding purposeful discrimi nation by the appellant, w ere to remove the challeng ed juror from the panel, the appellant would be profiting from his own misconduct because, as a result, he w ould get the jury that he wanted. Moreover,removing the juror does not correct the Batson violation because the ex cluded juror has still

been subjected to discriminati on. Accordingly, w e find no error by the cour t’s reseating of Juror Ward. This issue is without merit.

II. Insanity D

efense

Originally c aptione d under “s uffici ency of th e evidenc e,” the ap pellant next argues that the State has failed to prove that he was not insane at the time of the commission of the offens es beyond a reaso nable doubt. When th ere is a challenge to the sufficiency of the evidence, the standard f or review by an appellate court is whether, after considerin g the evidence in the li ght most favorable to the State , any rational trier of fact could have found all the essential elem ents of the offense beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318-319, 99 S.Ct. 2781, 2789 (1979); State v. Cazes , 875 S.W.2d 253, 25 9 (Tenn. 1994); Tenn. R. App. P. 1 3(e). Clea rly, the evid ence is ove rwhelming to find t he appel lant guilt y, beyond a reasonable doubt, of felony murder and especially aggravated robbery.15

Thus, the only question i s whether the appellant w as legally sane at the

time the offen se was comm itted. T he jury con cluded th at the ap pellant was sane an d we agree.

In a criminal prosecution,the sanity of the accused is presumed. State v. Overbay , 874 S.W.2d 645, 650 (Tenn. Crim. App. 1993); Brooks v. State , 489 S.W.2d 70, 72 (Tenn. Crim. App. 1972). Thus, the accu sed bears the initial burd en of proof. However, if the ev idence raises a reasonable d oubt as to the sanity of the defendant, the State assumes the burden of prov ing the defendant’s sanity beyond a reasonable doubt. State v. Sparks , 891 S.W.2d 607, 615 (Tenn. 1995). Once the burden has shifted to the State, sanity becomes an essential ele ment of the crime. Sparks , 891 S.W.2d at 616 (citations omitted). The State does not contend on appeal that the appellant made an inadeq uate prima facie showing o f insanity. Therefore, we proceed directl y to the sufficiency of the State ’s rebuttal evidence.

“Insanity is a defense to prosecution if, at the time of such conduct, as a result of mental disease or defect, the person lacked substantial capacity either to appreciate the wrongfulnes s of the person’s conduct or to conform that conduct to the requirements of the law .” Tenn. Code Ann. § 39-11-501(a) (1991) (amended 1995); Graham v. State , 547 S.W.2d 531, 543-44 (Tenn. 1977). Thus, in order to prove sanity, the Stat

e must prove either: “(

a) the defendant was not suffering fr om a mental illness at the time of the offense; (b) the illness did not prevent the defendant from knowing the wr ongfulness of his act and did not r ender the defendant substantially incapabl e of conforming his conduct to the r equirements of the law.” State v. Peevyhouse , No. 01C01-9409-CC-00307 ( Tenn. Crim. App. at Nashville, Mar. 22,1996), perm. to appeal dismissed , (Tenn. Sept. 9, 1996) (citi ng State v. Jackson , 890 S.W.2d 436, 440 (Tenn. 1994); Graham , 547 S.W.2d at 544).) The State may show the sanity of the accused “through the use of expert testimony, lay testi mony, or by showin g that the defendant’s behavior prior to,16

during, or after the commissi on of the crime was consist ent with sanity and inconsistent with insanity.” Peevyhouse , No. 01C01-9409-CC-00307 ( citing Edwards v. State , 540 S.W.2d 641, 646 (Tenn. 1976), cert. denied , 492 U.S. 1061, 97 S.Ct. 784 (19 77)). The appe llant (citing Jackson , 890 S.W.2d at 441) asserts that, although the State’s pr oof is consistent with s anity, it is not incon sistent with insanity, and, therefore, the proof is insufficient to establis h the appellant’s sanity beyond a reasonable doubt.

Dr. Little, the neuropsy chologist testifying

on behalf of the appellant, opined that the appellant suffered from organic mental disorder, a mental il lness or mental disorder caused by damage to the brain by structural insult. She concluded that this brain impairment resulted i n impulsivity w hich impaired the appellant’s ability to conform his behavi or to the l aw at that time. In r ebuttal , the Sta te presen ted two clinical p sycholog ists. Both concluded th at the appell ant was not suffering fro m a mental illness and that an ins anity defense could not be suppor ted. Both found that the appellant could appreciate the wrongfulness of his be havior and that he could conform his behavior to the requirements of the law. Like Dr. W hirley, Dr. Nichols concluded that, although the appellant exhibited impu lsive behavior, the conduct in question was not impuls ive but rather clearl y goal oriented.

In addition to this exper t testimony presented by the State, lay testimony supports the conclusion that the appellant could app reciate the wrongfulness of his conduct. Edroy Ballard testified that the appellant and his co-defendant discussed the robb ery prior to committ ing the cri me. The surviving vict im, Maxine Swartz, testified that, before shooting her, the appellant stated, “Ms.Maxine, I sure hate to do this to you.” Moreo

ver, the appellant’s mother and stepfather both testified that the appellant admitted that he had done something awful.17 The issue of insanity at the ti me of a crime is a question for the jury to decide. Spurlock v. State , 368 S.W.2d 299 (196 3). In making its determination, the jury is allowed to consider both lay and expert testimony as evidence, and it may discount expert testimony w

hich it finds to be in conflict with the facts of the case. Sparks , 891 S.W.2d at 616. By its verdict, the jury obviously accredited the State’s proof over the contrary t

estimony of Dr. Little. We cannot dispute the jury’s conclusio n. The evidence supports a finding by a rational trier

of fact of the appellant’s sanity beyond a reasonable doubt. This issue is without meri t.

III. Testimony

of Dr. Little

In his final issues, the appel lant asserts that the tria l court erred by prohi biting Dr. Little to enumerate the di agnoses or opinions of non-tes tifying physicians

and by prohibiting Dr. Little from testifying rega rding the alleged effects and r eactions of cocaine on a person with a history of seizure disorder. We address the se content ions acco rdingly.

A. Diagnoses of Non-Testifying Phy sicians First, the appellant contends that the trial court erred by prohibiting Dr. Little from relating to the jury the diagnoses and opinions of other non-testifying physicians. This issue is best summarized by the trial court’s findings: The question is whether she should in addition to rel ating her opinion be allowed to go further and tell the jury about the opinions that were reached by these other doctor s on these other occasions. .

. . . .[S]he may testify and g ive her opinion. But it doesn’t say anything about her then being allowed to go further and tell the jury about all these other opinions and diag noses from these other doctors from w ho knows where under w

ho knows what types

of criteria and circumstances with who knows what type of motivation and standard that was being applied a t any other given time.

. . . . She can state in general terms that her opinion is based at least in part on these records and hospitali zations of your client over the past eight or ten years . . . . But she cannot state in specific ter ms that your client has been diagnoses by Dr. John Doe in 1987 as having such and such10 W e are constrained to note that the appellant frames his issue a s “W hether the court erred in deny

ing test imony of Defendant’s expert witness as to the ef fects of cocai ne on the mental functi oning and c apa city of a pers on af flicted with s eizure disor der . . . .” (em pha sis add ed). T he tria l cour t exp ress ly permitted inquir y int o this subj ect area. Thus, this i ssue, as curr ently fr am ed, is broa der in sco pe th an th e issu e rais ed at the a ppe llant’s trial. 18 a problem, and therefore that led her to conclude that today he’s - - or on the date of this offense he was suffering from this other problem.

Rule 703 of the Tennessee Rules of Evi dence permits an expert w itness to base an opinion on facts not in ev idence , even if the underly ing facts themselves are not admissible. See Advisory Commissi on Comment, Tenn. R. Evid. 703. “When an expert bases his opinion on facts that are not independently admissible into evidence, the trial

judge should either prohi bit the jury from hearing the foundation for the testimony or deliver a cautionary instruction.” Benson v. Tennessee Valley Elec. Co- op. , 868 S.W.2d 630, 641 (Tenn. App. 1993) (citing Tenn. R. Evid. 703, Advis ory Commission Comments).In the present case, the reports of the non-testifying physicians constitute hearsay and, as they do not f all within one of the enumerated ex ceptions, are not admissible

. See Tenn. R. Evid. 801(c). The decision to admit or exclude expert tes timony is within the sound discretion of the trial cour t. State v. Ha wk , 688 S.W.2d 467, 472 (Tenn. Crim. App.1985). Unless there is a clear showing of an abus e of discretion, an appellate court will not disturb that decision. The trial court did not limit Dr. Little’s ability to give her own pers

onal opinion regarding

her conclusions based upon the reports of the non-testifying phy

sicians. We cannot conclude that the trial court abused its discretion by prev

enting Dr. Little from tes tifying to inadmissibl e hearsay. This issue is without merit.

B. Effects of Cocaine to Seizure Disorders During the appellant’s trial, defense counsel attempted on nu merous occasions to have Dr. Little, a neuropsycholog ist, testify regardi ng the effects that cocaine would have on an individual with a history of seizure disorders. 10 The trial19

court prohibited such testi mony concluding that Dr. Little was neither a medical doctor no r an expert in the fie ld of pha rmacolo gy or toxicol ogy.

At trial, both parties extensively voir dired Dr. Little as to her qualifications, knowledge and experi ence relative to both the beh avioral and physica l effects of the combination of Dilantin and cocaine on an individual. The appellant argued that Dr. Little was qualifie d to give her opinion as to the physical e ffects of t hese drugs because she had read literatur e and observed patients on coc aine. The trial court, making extensive findi ngs on the record, conclud ed that Dr. Little’s “general classroom discussions and her occasional clinical involvement [with A & D patients] does not equate with expertise in this field.” The court expressly prohibited Dr. Little from “offering an opinion with regard to the effects that cocai ne has on the body or the increased likelihood of s eizures and things of that sort.” Nonetheless, based upon her experi ence as a

psycho logist , the cou rt permi tted Dr . Littl e to testify regarding the “beha vioral con sequence s of indi viduals th at she’s t reated wh o have come in and reported a history of drug - - of cocaine addiction or on Dilantin or suffering from seizures.”

The determination of the qualifications o f an expert witness and the relevancy and competency of expert testi mony are matters generall y entrusted to the sound discretion of the trial cour t. State v. Anderson , 880 S.W.2d 720, 728 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1994). This court w ill not overturn the t rial court’s decision absent a c lear abuse of discretion. Id . (citing State v. Willia ms , 657 S.W.2d 405, 411 (Tenn. 1983), cert. denied , 465 U.S. 1073, 104 S.Ct. 1429 (1984)). The record does not establish that the trial court abused its discretion. We find no merit to this issue.20 IV. Conclusion

For the foregoing reasons , we affirm the judgment of convi ctions and the sentences imposed for the offenses of felony mur der and especially ag gravated robbery.

____________________________________ DAVID G. HAYES, Jud ge

CONCUR:

__________________________________ JOHN H. PEAY, Judge

__________________________________ PAUL G. SUMMERS, Ju dge