A TTORNEY FOR A PPELLANT A TTORNEY S FOR A PPE L LEE

Stacy R. Uliana Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Stephen Creason Angela N. Sanchez Deputy Attorney s General Indianapolis, Indian a

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________ No. 33S01

- 1004

- CR

- 163

G REGORY L. G ALLOWAY , Appellant ( Defendant below)
,

v.

S TATE OF I NDIANA , Appellee ( Pl aintiff below)

.

_________________________________ Appeal from the Henry Circuit Court, No. 33C01

- 0710

- MR

- 0002

The Honorable Mary G. Willis , Judge

_________________________________ On Petition to Transfer from th e Indiana Court of Appeals, No. 33A01

- 0906

- CR

- 280

_________________________________

December 22, 2010
Sullivan, Justice.

Despite nonconflicting expert and lay opinion testimony that defendant Gregory Gall oway was insane, t he trial court rejected the insanity defense after concluding that the def endant could continue to be a danger to society because of an inadequate State mental health system.
This was insufficient to sustain the trial court‟s finding be cause there wa s no probative evidence
from which an inference of sa n ity could be drawn.2 Back ground

The defendant , Gregory Galloway, was found guilty but mentally ill for the October, 2007, mu r der 1 of his grandmother, Eva B. Groves

. The defendant raised the “ insanity defense ” 2
at his bench trial. The trial court found that although the defendan t ha d a long history of mental
il l ness, he did not meet his burden of proving that he was “insane” at the time of the crime.

The trial court concluded
, based on the expert testimony and the numerous medical
records introduced into evidence
, that the defen dant suffers from b ipolar d isorder, an Axis I ps ychiatric disorder. 3 This evidence showed that prior to his killing his grandmother, t he defe n dant
ha d had a long history of mental illness , and he had had many “contacts” with the mental health system. 4 H e ha d been diagnosed with bipolar disorder by up to twenty different physicians , o ften with accompanying psychotic and manic symp toms. He had also been voluntarily and inv oluntarily detained or commi t ted for short

- term trea tment more than fifteen times.

T he defendant was first diagnosed with an Axis I mental illness in 1989, when he was a senior in high school. By 2000, hi s mental health bec a me more problematic; he had difficulty holding a steady job, he struggled with substance abuse, 5 and his marriage f ailed. De spite these

1 Ind. Code § 35

- 42

- 1

- 1(1) (2008).

2 I.C. § 35

- 41

- 3

- 6(a).

3 Axis I disorders are the mental health disorders recognized by the DSM

- IV , except for personality di sorders and mental retardation (which are both reported on Axis II). See Am. Ps ychiatric Ass‟n, DSM

- IV: Diagnostic and Statistical Manual of Mental Disorders 25

- 26 (4 th ed. 1994). Thus, a finding that the d efendant has an Axis I disorder means that he ha s a recognized mental illness.

4 The trial court tabul ated the defendant ‟s cont acts with the mental health system; he has had at least 40 contacts since 1989, but more than 30 occurred after 2000. See Appellant‟s App. 251

- 55.

5 Substance abuse is highly prevalent among people with mental illness, particularly schizophrenia and bipo lar disorder. See generally Peter F. Buckley, Prevalence and Consequences of the Dual Diagnosis of Substance Abuse and Severe Mental Illness , 67 J. Clinical Psychiatry (Supp. 7) 5 (2006). The probability of a person with bipolar disorder also having drug

- abuse problems “is 11 times greater than in those wit hout bipolar disorder.” Darrel A. Regier et al., Como r bidity of Mental Disorders with Alcohol and Other Drug Abuse: Results from the Epidemiologic Catchment Area (ECA) Study , 264 J. Am. Med. Ass‟n 2511 , 2514

- 15, 2516 tbl.3, 2517 (1990).3

difficulties, he had very few encounters with law enforcement that we re not traffic or mental il lness related. After his divorce, the defendant moved in with his grandmother, who lived next door to his parents. He had a great relati onship with his grandmother; “ he loved [ her ] very much
and considered [ her to b e ] his best friend. ” Appellant‟s Br. 3; see also Appellant‟s App. 183 ; Tr.
40

- 41, 83

- 84, 175.

Since 2001
, the defendant experienced psychotic episodes with increased frequency and severity. See Galloway v. State , 920 N.E.2d 711, 713

- 14 (Ind. Ct. App. 2010) (chronicling the
defendant ‟s psychotic episodes). For insta nce, in February, 2002, he was involuntarily commi tted after his parents found him with a gun and looking for amm unition

– he planned to kill his grandmother because she was the devil and he was Jesus Christ , and he planned to kill his neig hbor because he believed his neighbor was controlling his son. Then in June , 2004, the defe n dant
drov e to Dayton, Ohio, after Go d told him t o leave his job; he was hospitalized in Ohio after b eing found in a stranger‟s driveway looking for the perfect wife for the son of God. I n July, 2005,
the defendant was admitted to a hospital after crashing his car during a car chase with his mot her ; he believed she was the devil and was chasing her so that he could kill her , and he b e lieved he was protected because he was an alien

.

In the year leading up to the murder, the defendant had at least twelve contacts with the mental health system. In January , 2007, he pulled over on the side of the interstate near L afayette, Indiana, got out of his car
, and began erratically yelling and talking to himself . Because the air temperature was 27 degrees, concerned bystanders called the police. When t he medics

a rrived, he was sitting in the back of a police car; his skin was cold to the touch, and there were ice particles in the facial hair under his nose. At the emergency room, the defendant was unco oper a tive, mumbling to himself, acting aggressive ly toward staff, and reacting to au dio and visual hallucinations; h e was admitted to a Lafayette ho s pital for a few days.

I n March, 2007, after refusing to eat or sleep for one week because he was fearful of something bad happening to him, the defendant la cerated his stomach while trying to get into his grandmother‟s house through a window after he was accidentally locked out. At the emergency room, he was attending to internal stimuli, having difficulty concentrating, and experiencing a u-4

ditory halluc i na ti ons and paranoid delusions. He was transferred to an Anderson hospital, where he was confused and disoriented, detached from reality, and in a catatonic

- like state ; he was di scharged after a few days . Several days later, the defendant was involuntarily c ommitted after the

court found him to be a danger to himself because he did not know who or where he was, he had been staying awake all night, he had been trying to sleep with his parents in their bed because he believed someone was in his room, and he was hearing voices ; again, he was r e leased after a few days.

I n June, 2007, the defendant was admitted to a hospital in Ten nessee after police found him driving a sem i

- truck full of gasoline, threatening to blow up a gas station ; he was co n fused
and disorien ted, responding to internal stimuli and laughing inappropriately, experiencing racing thoughts and auditory hallucinations, and had not slept for three days. He was discharged from the Tennessee hospital with in days. A few days lat er, he went to counseli ng where he was del usional about raping a girl (there was no evidence that any rape had occurred). He did not take medications pr e scribed for him in Tennes see

.

In the days leading up to the murder, t he defendant heard voices and thought that his grandmot her‟s trailer was haunted. To abate his fears, he slept on the floor next to his pa r ents‟ bed while holding his mother‟s hand. The night before the murder, he drank a pint of whiskey,
f i nishing around 3:00 or 4:00 a.m., and did not sleep.

The defendant reported feeling strange on October, 26, 2007, the morning of the murder

. He was supposed to pick up his friend from work, but he refused to do so because he was feeling strange. When the friend called to ask about the ride, the defendant uncharacteristi cally yelled at
him

. The d e fendant also spoke with his father that morning, and during their conversation, his father became concerned because his son was not acting normal and seemed to be in another
world. The defendant told the police that during this conversation, his father was telling him through coded verbal messages that he needed to kill his gran d mother.

During the early afternoon, the defendant went shopping with his grandmother and his aunt (the victim‟s daughter). They shopped for only fifte en minutes and then went to lunch,5

though the defendant did not eat much. While eating lunch, the defendant began thinking that his grandmother was against him and “ that life should be more colorful ” and that it would be if
she were gone

– life would be b etter again once he killed his grandmother. Appella nt‟s App.
194

. He believed that she was the devil, that she was out to get him, and that he needed to kill her to restore his powers. As they sat there eating, he was hoping that his grandmother would
d ie. After lunch, they stopped at a gas station, where the defendant pumped their gas and pu rchased ci g arettes. They returned home a little more than an hour after they had originally left; there had been no arguments
, and nothing unusual had oc curred dur ing their outing. O n the way home, the defendant‟s gran d mother remarked that it had been a wonderful day.

Once they arrived ho me, the defendant went next door to his parents‟ house while his grandmother and aunt sat on a couch inside the grandmother‟s tr ailer and talked

. While at his parents‟ house, the defendant began believing that he was reading his father‟s mind ; his father was communicating telepathically, telling the defendant that he needed to kill his grandmother

“ to feel good again [,] to see lik e the bright lights and the flowers and the pretty things. ” Appe llant‟s App. 194

.

The defendant then went back to his grandmother‟s house and sat on the porch swing. Shortly thereafter, the defendant‟s fif teen

- year

- old son, Cory, arrived and said “hi” t o his dad. Cory had seen his father cycle from normal to psychotic before and could tell that somethin g was not quite right

. At the same time, the defendant‟s father, who had come over from next door,

was e n tering the gran dmother‟s house.

The defendant entered the house at the same time as his father and went to his bedroom, grabbed his knife, and came back down the hallway to the living room, where his aunt and grandmother were sit ting on a couch . According to his aunt, the defendant had a “wild look” in his eye that she had seen before

– it was the look he gets right before he “ lose [ s ] it

. ” Tr. 60.
With his f

a ther, son, and aunt in the room
, and with no plan or motive, the defendant jumped on top of his grandmother, strad dled her, and stab bed her in the chest while yelling “you ‟ re going to die, I told you, you‟re the devil.” Tr. 50, 74

- 75. His father yelled, “What have you done ! ,” and
the d e fendant responded that she “was going to kill me.” Tr. 86

.6

As soon as everyone started screaming, the defend ant realized that he did not feel better like he thought he would, and he hoped that his grandmother would survive. His father was able

to co m mandeer the knife and store it in a safe place until the police arrived. As the defendant‟s

son a p plied pressure to the wound, the defendant told his grandmother that he loved her and that
he did not mean to do it. He pleaded for the paramedics to save his grandmother‟s life. When the police arrived, he told them that he loved his grandmother and would not hurt he r . Wh e n the police were getting ready to take him to the police station, he did not understand what was ha ppening and asked where he was going. But h e was cooperative during the police interrogation
, which occurred two

- and

- a

- half hours lat er.

Prior to t rial, the defendant was examined by thre e experts: Dr. Parker, a psychiatrist e ngaged by the defense ; Dr. Coons, a court

- appointed psychiatrist; and Dr. Davidson, a court

appointed psychologist. All three experts agreed that he suffers from a mental illn ess, suffers paranoid delusions (a symptom of severe psychosis), and has suffered from intermittent psych osis since 1999. Dr. Parker and Dr. Coon s both testified (and submitted in their preliminary r eports) that the defendant was legally insane at the tim e of the murder. They both opined that he was jolted out of his delusion when he realized that he did not feel better and had just harmed someone he loved. The psychologist, Dr. Davidson, submitted a preliminary opinion to the court
that the defendant wa s sane at the time of the murder. The basis for his opinion was that it was

u n like ly the defendant would have been insane only for the few moments that it took for him to grab the knife and stab his grandmother

. But while testifying, Dr. Davidson withdre w his op inion in light of additional facts that he did not have when he submitted his preliminary op i nion. Among other things, Dr. Davidson was unaware that the defendant had been experiencing del usions and responding to internal stimuli in the days leadi ng up to the murder and on the day of the murder. Dr. Davidson also was unaware that eyewitnesses heard the defendant call his grandmother the devil as he stabbed her

. After being presented with all of the facts while on the witness stand, Dr. Davidson u ltimately testified that he could not give an opinion on the ma t ter.7

After the close of trial
, but before a verdict was rendered, the defendant stopped taking
his medication and deteriorated to the point where he was found incompetent to stand trial. He regained competence after trea t ment at a state mental hospital.

On May 4, 2009, the trial court found the defendant guilty but mentally ill for murdering his grandmother , rejecting the insanity defense . Finding that none of the experts or lay witnesses
testified that the defendant was sane, the trial court based its con clusion on demeanor evidence

. Specifically, the court found that the defendant and his grandmother had interacted with each other and other people on the day of the murder, he had committ ed the offense in front of several family members and made no effort to conceal his crime, he had not attempt ed to evade police,
and he had cooperated with law enforcement. Additionally, the defendant had been alert and oriented throughout the trial proce edings and had been able to assist counsel. The court also
found that the defendant‟s “psychotic episodes increased in duration and frequency” and that he “lacks insight into the need for his prescribed medication.” Appellant‟s App. 255. The court
then found that the defendant had “repeatedly discontinued medication because of side effect complaints and would self medicate” by abusing alcohol and illicit drugs. Id. Furthermore, there was “no evidence that this pattern of conduct [would] not continue if the Defendant [were] ho sp i talized and released, posing a danger to himself and others in the community.” Id. The court
concluded that the defendant “is in need of long term stabilizing treatment in a secure f a cility.”
Id.

During the sentencing hear ing
, on June 2, 2009, the trial court indicated that the preferred
route would be to commit the defendant to a mental health facility for the rest of his life but co ncluded that route was not an option.

There is absolutely no evidence that this mental illnes s is [feigned], or mali ngered, or not accurate and there is no dispute as to that. But quite frankly, this is a tragedy that‟s ripped apart a family and there is very little this Court can do to r emedy that. This case is as much a trial of our mental hea lth system as it is of a man. For 20 years, Mr. Galloway‟s family has sought long

- standing permanent treatment for Mr. Galloway, and the fact that there may not be the funds available to pay for the mentally ill in the State of Indiana does not mean that we don‟t have mentally ill people in the State of Indiana. . . . [T]his is difficult for everyone[,] and I can pick apart about 20 mental health records that were submitted to this8

Court where I would have begged a mental health provider to keep Mr. Gallow ay long term in a civil commitment, but they have not. Mr. Galloway is able to take his medication when forced to do so in a very structured setting, but we have a 20

- year history which shows when he is not in that setting that he will not take his medic a tion, that he will continue to have episodes[,] and most concerning for this Court is that he will e n danger others and himself. One of my options is not to say that he‟s committed for the rest of his life in a mental health institution. That would have b een easy, but that‟s not one of my choices. . . . I cannot in good co nscience allow someone with the severe mental health illness to return to the co mmunity[,] and that is what has made this case so very difficult.

Tr. 3 8 9

- 91. After considering the aggr avating and mitigating factors under Weeks v. State , 697
N.E.2d 28 , 30 (Ind. 1998) , the court se n tenced the defendant to 50 years imprisonment.

The Court of Appeals affirmed the defendant‟s conviction, holding that this Court‟s dec ision in Thompson v. Sta te , 804 N.E.2d 1146 (Ind. 2004), compelled such a result. Galloway
, 920 N.E.2d at 720. The Court of Appeals interpreted Thompson as holding that where a defe ndant appeals claiming that his insanity defense should have prevailed, the conviction must be a ffirmed “if there is any evidence whatsoever supporting the verdict, no ma t ter how slight.” Id.

The defendant sought, and we granted, transfer, Galloway v. State , 929 N.E.2d 790 (Ind. 2010) (table) , thereby vacating the opinion of the Court of Appeals, In d. Appellate Rule 58(A)

.

Discussion

I

To sustain a conviction, the State must prove each element of the charged offense beyond
a reasonable doubt. See I.C. § 35

- 41

- 4

- 1(a); see also In re Winship , 397 U.S. 358, 364 (1970).
Even where the State meets th is burden, a defendant in Indiana can avoid criminal responsibility by successfully raising and establishing the “insanity defense.” 6 See I.C. § 35

- 41

- 3

- 6 (a)

. A su c-

6 The rationale underlying the insanity defense is that a legally insane person is unable to form the requ isite criminal intent. See Truman v. State , 481 N.E .2d 1089, 1089

- 90 (Ind. 1985) (“the inability to form intent b y reason of insanity” is a defense to crime in Indiana).9

cessful insanity defense results in the defendant being found not responsible by reason of insan ity (“NRI”). See I.C. § § 35

- 36

- 2

- 3,

- 4.

The defendant bears the burden of establishing the insanity defense by a preponderance
of the evidence. 7 I.C. § 35

- 41

- 4

- 1(b). To meet this burden, the defendant must establish both (1)
that he or she suffer s from a mental illness and (2) that the mental illness rendered him or her
unable to a p preciate the wrongfulness of his or her conduct at the time of the offense. 8 See I.C. §
35

- 41

- 3

- 6(a). Thus, mental illness alone is not sufficient to relieve criminal responsibility. See
Weeks v. State , 697 N.E.2d 28, 29 (Ind. 1998). Rather, a defendant who is mentally ill but fails
to establish that he or she was unable to appreciate the wrongfulness of his or her conduct may be found guilty but me n tally ill (“GBMI” ). 9 See, e.g. , Taylor v State , 440 N.E.2d 1109, 1112 (Ind. 1982).

7 “Preponderance of the evidence” means “[t]he greater weight of the evidence, not necessarily esta blished by the greater number of witnesses testifying to a fact but by evidence that has the most co nvincing force.” Black‟s Law Dictionary 1301 (9 th ed. 2009). Thus, a defendant must convince the trier of fact that, in consideration of all the evidence in the case, he or she was more probably legally insane than l egally sane at the time of the crime. See Gambill v. State , 675 N.E.2d 668, 676 (Ind. 1996)

.

8 I ndiana Code section 35

- 41

- 3

- 6 provides that a person is not criminally responsible for engaging in criminal acts “if, as a result of mental disease or defect, he was unable to ap preciate the wrong fulness of the con duct at the time of the offense, ” a nd it defines a “mental disease or defect” as a “severely abnormal mental condition that grossly and demonstrably impairs a person‟s pe r ception.”

9 The results of a n NRI verdict an d of a GBMI verdict ar e different. When an NRI verdict is re n dered, the prosecutor is required to initiate a civil commitment proceeding under either section 12

- 26

- 6

- 2(a)(3) (temporary commitment) or section 12

- 26

- 7 (regular commi t ment) of the Indiana Code. See I.C. § 35

- 36

- 2

- 4. The defendant remains in custody pending the completion of the commitment procee d ing. Id. T he trial court may order the defendant committed if it finds by clear and convincing evidence that the defe ndant is currently mentally ill and either dangerou s or gravely disabled. See Deal v. State , 446 N.E.2d 32, 34 (Ind. Ct. App. 1983) (citing Addington v. Texas , 441 U.S. 418, 425

- 33 (1979)) , trans. denied

. But see Foucha v. Louisiana , 504 U.S. 71, 87

- 88 (1992) (O‟Connor, J., concurring) (stating that it m ight be pe rmiss i ble for a state “to confine an insanity acquittee who has regained sanity if . . . the nature and duration of detention were tailored to reflect pressing public safety concerns related to the acquittee‟s continuing dangerousness”); Jones v. United States , 463 U.S. 354, 361

- 70 (1983) (holding that a defendant who su ccessfully establishes the insanity defense may be committed to a mental institution on the basis of the i nsanity judgment alone)

. Unlike an NRI verdict, a GBMI verdict is a convi ction. See I.C. § 35

- 36

- 2

- 5(a). The trial court sentences a GBMI defendant “in the same manner as a defendant found guilty of the offense,” id.
, but the full consequences of a GBMI verdict are different from the consequences of a guilty verdict. See Geo rgopolu s v. State , 735 N.E.2d 1138, 1141 (Ind. 2000). Specifically, a physician must evaluate the GBMI10

Whether a defendant appreciated the wrongfulness of his or her conduct at the time of the offense is a question for the trier of fact. Thompson v. State , 804 N.E.2d 1146, 1149 (Ind. 2004)

. Ind i ana Code section 35

- 36

- 2

- 2 provides for the use of expert testimony to assist the trier of fact in determining the defendant‟s insanity. 10 Such expert testimony, however, is merely adv i sor y, and e ven unanimous expert testimony is not conclusive on t he issue of sanity. Cate v. State , 644 N.E.2d 546, 547 (Ind. 1994). The trier of fact is free to disregard the unanimous testimony of experts and rely on conflicting test i mony by lay witnesses. Barany v. State , 658 N.E.2d 60, 63 (Ind. 1995). And even i f there is no conflicting lay testimony, the trier of fact is free to disr e gard or discredit the expert testimony. Thom p son , 804 N.E.2d at 1149.

Because it is the trier of fact‟s province to weigh the evidence and assess witness cred ibi l ity, a finding th at a defendant was not insane at the time of the offense warrants substantial
deference from reviewing courts. See Barany , 658 N.E.2d at 63. A defendant claiming the i nsanity defense should have prevailed at trial faces a heavy burden because he or she “ is in the position of one appealing from a negative judgment.” Thompson , 804 N.E.2d at 1149. A court
on review will not reweigh evidence, reassess witness credibility, or disturb reasonable inf erences made by the trier of fact (even though “more reasonab le” inferences cou ld have been made). Id. at 1149

- 50.

Although this standard of review is deferential, it is not impossible , nor can it be . The Indiana Constitution guarantees “in all cases an absolute right to one appeal.” Ind. Const. art. VII, § 6. An impossible standard of review under which appellate courts merely “rubber stamp” the fact finder‟s determinations, no matter how unreasonable, would raise serious constitutional
concerns be cause it would make the right to an appeal illusory. Cf. Serino v. State , 798 N.E.2d 852, 856 (Ind. 2003) (standard of review for sentencing claims so high that it risked impinging

defendant before sentencing, and the defendant must be appropriately treated and evaluated once in the Department of Correction ‟ s custody. Id. (citing I.C. § 35

- 36

- 2

- 5(b), (c)).

10 The trial court is required to appoint two or three disinterested experts to examine the defendant and testify at trial as the court‟s witnesses, after the State and the defendant have both presented their respe ctive cases. I .C. § 35

- 36

- 2

- 2(b). Additionally , the State and the defense may each employ its own e xpert(s) to testify along with the court‟s wi t nesses. Id.11

upon the constitutional right to appeal). As such, this Court has long held that where the defe ndant claims the insanity defense should h ave prevailed, the conviction will be set aside “when the

ev i dence is without conflict and leads only to the conclusion that the defendant was insane when the crime was committed.” Thompson , 804 N.E.2d at 1149 (emphasis added) ; see also Barany , 658 N.E.2d at 63

- 64 (citation omitted)

.

II

We have on several occasions addressed a defendant‟s claim that his or her insanity d efense should have prevailed at trial because of nonconflicting expert testimony that the defendant
was insane at the time of the crime

. Each time we have upheld the conviction(s) because the
eviden ce as to the defendant‟s insanity was in conflict and thus sufficient to sustain the tr i er of
fact‟s determination of sanity

. See, e.g. , Thompson , 804 N.E.2d 1146; Gambill v. State , 675
N.E.2d 668 (Ind. 1996); Barany , 658 N.E.2d 60; Cate , 644 N.E.2d 546; Rogers v. State , 514 N.E.2d 1259 (Ind. 1987); Green v. State , 469 N.E.2d 1169 (Ind. 1984). That is, in each of the cases where there has been nonconflicting expert opinion testimony that a def endant was insane, there has been other sufficient probative evidence from which a conflicting inference of sanity reasonably could be drawn. See Thompson , 804 N.E.2d at 1152 (Sullivan, J., concu rring).

A

The strongest showing of an evidentiary conflict occurs where the experts disagree as to whether the defendant was insane at the time of the offense. Our cases have consistently held
that conflictin g credible expert testimony is sufficient ly probative of sanity. See, e.g. , R o binette
v. State , 741 N.E. 2d 1162, 1167 (Ind. 2001); Weeks , 697 N.E.2d at 29; Metzler v. State , 540 N.E.2d 606, 610 (Ind. 1989); Smith v. State , 502 N.E.2d 485, 490 (Ind. 1987); Reed v. State , 479 N.E.2d 1248, 1253 (Ind. 1985). Such a conflict arises where one or several experts o pine that the
defe n dant was insane at the time of the offense, while one or several other experts opine that the
d e fendant was sa ne at the time of the offense.12 A

- 1

A conflict does not exist, however, where one or several experts testify that the defenda nt was i n sane at the time of the offense and another expert testifies that he or she is unable to give an opinion as to the defendant‟s sanit y at the time of the o f fense.

In Green , three of four experts testified that the defendant was insane at the time of the
crime. 469 N.E.2d at 1172. The fourth expert testified that the defe n dant met only one of the requirements of insanity under then

- applicable law , but he could not form an opinion as to the
second. Id. Even though there was no actual conflict in the expert testimony, we affirmed the conviction because the “other evidence” presented to the jury was sufficient to support its finding
that the defendant was sane at the time of the crime. 11 Id. Similarly, in Rogers , the court

appointed expert testifie d that the defendant was insane at the time of the crime, while the defe ndant‟s expert testified that he could not render an opinion on the matter. 514 N.E.2d at 1261. Although there was no actual conflict in the experts‟ testimony, this Court once again a f firmed the conviction based on the conflict presented by the lay testimony. Id. The Court cited Green for the proposition that a jury may reject expert testimony of insanity and rely upon lay testim ony that the d e fendant was sane at the time of the cr ime. Id. Like Green , the conflicting evidence that provided sufficient grounds for the jury‟s finding of sanity was based on a conflict between lay testimony and expert testimony, not a conflict between e x perts. 12 Id.

Moreover, a s a matter of law, a per son is either sane or insane at the time of the crime; there is no intermediate ground. Marley v. State , 747 N.E.2d 1123, 1128 (Ind. 2001) (quoting
Cowell v. State
, 263 Ind. 344, 331 N.E.2d 21, 24 ( 1975) (providing that “complete mental inc a-

11 The “other evidence” included testimony from a detective that, based on his interactions with the d efendant, in his lay opinion the defendant was sane. Green , 469 N.E.2d at 1172. Moreover . . . . [a]fter beating her daughter with the skillet, Defendant changed her clot hing, told her daughter‟s schoolmate that [the victim] was not going to school, packed a suitc ase, ripped a page from an address book bearing the name of a friend in Chicago, withdrew money from the bank, pu r chased a bus ticket, and went to her friend‟s house. Id.

12 In Rogers , there was lay testimony that although the defendant “had a „weird‟ faci al expression” earlier in the day, his speech and actions were “calmer” and he was not acting “crazy” at the time of the crime. 514 N.E.2d at 1261.13

pacity must be demonstrated before criminal responsibility can be relieved”)). The trier of fact therefore has one of only two options with regard to insanity. And its decision must be based on probative evidence, which means “[e]vidence that tends to prove or disprov e a point in issue.” Black‟s Law Dictionary 639 (9 th ed. 2009). An expert witness who is called to test i fy as to his or her opinion, in an effort to aid the trier of fact, and who testifies that he or she has no opinion
does not pro vide prob a tive evidenc e.

A

- 2

The expert testimony in this case did not conflict. Although Dr. Davidson submitted a preliminary report opining that the defendant was sane at the time of the murder, he recanted that opinion under cross

- exa mination in light of learning critical facts. The State contends that Dr. Davidson‟s equivocation illustrates that the expert testimony was in co n flict. We disagree.

First, the State‟s argument is not consistent with our prior cases. Both Green and Rogers involved an expert who was unable to form an opinion as to the defendant‟s sanity. We affirmed
the convictions in both cases only because there was conflicting lay evidence. Under the State‟s view that no opinion represents a conflicting opinion, both Green and Rogers could have been

a f f irmed without a discussion of the lay evidence, given our consistent holdings as to the value and sufficiency of conflicting expert testimony.

Second, the trial court‟s findings preclude the possibility of a true conflict in the expert testimony because i t did not give any weight to the expert testimony in this case. Rather, the trial court focused its analysis on demeanor evidence to support its finding that the defendant was guilty but mentally ill. It mentions the experts only once, as a preface to it s finding that the d efendant meets the definition of “mentally ill,” and merely states that “[e]ach of the examining doctors . . . were divided on the issue of insanity.” Appellant‟s App. 258. Given the consistent
hol d ings of this Court with respect to t he strength of conflicting expert testimony i n sustaining a
fin d ing of sanity, and given the trial court‟s analysis in this case, the trial court clearly did not make a finding that the expert testimony was in conflict. Thus, the experts‟ testimony about the
defendant ‟s insanity at the time of the crime did not conflict.14 B

Where there is no conflict among the expert opinions that the defendant was insane at the time of the offense, there must be other evidence of probative value from which a conflicting i nference of sanity can be drawn. See Thompson , 804 N.E.2d at 1152 (Sullivan, J., concurring). Such probative evidence is usually in the form of lay opinion testimony that conflicts with the experts or demeanor evidence that, when considered in light of the other evidence, permits a re asonable i n ference of sanity to be drawn.

B

- 1

In many cases, there will be lay opinion testimony that the defendant was sane at the time
of the crime. Credible and informed l ay opinion testimony as to the defendant‟s ment al state at
the time of the crime may be sufficiently probative to support a trier of fact‟s determination of sanity, even where there is unanimous expert testimony to the contrary. See , e.g. , Barany , 658 N.E.2d at 64; Green , 469 N.E.2d at 1172. Lay witn esses who are familiar with and observe the
defendant at or a round the time of the crime reasonably may be able to give a more accurate a ccount of the defendant‟s mental state at the time of the crime than experts who examine the d efendant months later. S ee Thompson , 804 N.E.2d at 1149.

For instance, i n Gambill , we affirmed the conviction of a mother convicted of murde r ing her son because there was lay opinion testimony that conflicted with the unanimous expert test imony. 675 N.E.2d 668

. One of the offi cers who spent time with the defendant at the ho s pital in the immediate aftermath of her arrest had attended high school with the defe n dant, and based on his familiarity with her and his observations of her on the day of the murder, he test i fied that, in
h is lay opinion, she was able to appreciate the wrongfulness of her conduct at the time of the
crime. Id. at 672 ; see also Green , 469 N.E.2d at 1172 . A jail

- house informant with whom the
defendant discussed the murder also testified that she believed the defendant was able to appr eciate the wrongfulness of her co n duct at the time of the murder. Gambill , 675 N.E.2d at 67 1

- 7 2. Additionally, the defendant made several self

- serving exculpatory statements during the imm e-15

diate aftermath of the murder

– namely, she did not tell medical personnel of her heavy drug use that day, and she told a motorist who gave her a ride that she had been raped and that her former boyfriend had hurt her son. Id. at 672

- 73.

B

- 2

Even where there is no conflict among the experts and the lay witnesses, a finding that a
defendant was sane at the time of the crime still may be sustained by probative demeanor ev idence from which a conflicting inference of sanity may be drawn. See Thompson , 804 N.E.2d at
1149. We have recognized the importance of demeanor evidence in insanity cases. Demeanor is useful because a defendant‟s “behavior before, during, and after a crime may be more indicative
of actual men tal health at [the] time of the crime than mental exams conducted weeks or months
l a t er.” Id. (citing Barany , 658 N.E.2d at 64).

Demeanor evidence may be most useful where there is some indication that the defendant is feigning mental illness and insanity. E.g. , Thompson , 804 N.E.2d 1146; Cate , 644 N.E.2d
546. In Thompson
, we affirme d the defendant‟s conviction for residential entry because there

was su f ficient evidence of probative value to sustain the trial court‟s finding that the defendant
was not insane at the time of the crime. 804 N.E.2d at 1150

. For instance, the defendant r emoved only her possessions once she entered the victim‟s residence , which reasonably su g gested
that she was aware that i t was wrong to take things that did not belong to her

. Id. at 1148. Moreover, as she fled from the scene of the crime, she was stoppe d momentarily by police but allowed to leave, which reasonably suggested that she was sufficiently lucid to continue about
her bus i ness. Id. Thompson had also recently been discharged from the hospital with “no active psychotic symptoms . . . and was cal m and pleasant without agitation.” Id. at 1150. Finally, Thompson had a history of lying and “ avoiding criminal responsibility through her illness. ” Id.
Based on all of the probative evidence, the trial judge concluded that Thompson “knew her a ctions w ere wrong but was using her illness to manipulate the system.” Id. ; see also Cate , 644
N.E.2d at 547

- 48 (affirming the defendant‟s conviction because of inconsistencies in hi s story, which su g gested feigning, and because there was probative demeanor evide nce of defen dant‟s lucidity upon a r rest).16

To be sure, demeanor evidence may be appropriate in cases where there is no evidence of feigning. For instance, the defendant in Barany was found by all three experts to have been l egally insane at the time of th e crime, but we affirmed his murder conviction because there was conflicting evidence of sanity given by lay witnesses. 658 N.E.2d at 64. Specifically, an inve stigating police detective testified that the defendant “talked about the victim‟s complaints a nd nagging” only a few hours after the crime. Id. Additionally, one of the defendant‟s friends test ified that although the defendant engaged in unusual topics of convers a tion, he “seemed O.K.”
Id. Finally, the defendant told his sister that he believed the victim was calling the police when
he killed her. Id. We concluded that “[t]he jury could have decided that this testimony about [the defendant‟s] behavior was more indicative of his actual mental health at the time of the kil ling than medical exami nations conducted four weeks after the a r rest.” Id.

Although demeanor evidence often is useful, there are limits to its probative value. First,
demeanor evidence is of more limited value when the defendant has a long history of mental il lness with psych osis. As the Court of Appeals previously explained:

While the jury is the ultimate finder of fact, we fail to see how evidence of a defendant‟s demeanor before and after a crime can have much probative value when a schizophrenic defe n dant is involved. .

. .

. . . . The proposition that a jury may infer that a person‟s actions before and a fter a crime are “indicative of his actual mental health at the time of the” crime is logical when dealing with a defendant who is not prone to delusional or halluc inog enic episodes. However, when a defendant has a serious and well

documented mental disorder, such as schizophrenia, one that causes him to see, hear, and believe realities that do not exist, such lo g ic collapses. . . .

Moler v. State , 782 N.E.2d 454, 458

- 59 (Ind. Ct. App. 2003)
, trans. denied , 792 N.E.2d 43 (Ind. 2003) (table) . Demeanor evidence requires the trier of fact to infer what the defendant was thinking based on his or her conduct. The trier of fact uses its common knowledge of what is
normal an d what is abnormal to make these inferences. But insanity is not limited to the stere o-17

typical view of a “raging lunatic”

– a person experiencing a psychotic delusion may appear no rmal to pa s sersby.

Second, Indiana‟s insanity test is a purely cognitive te st

– it asks only what the defendant was thinking and whether he or she could appreciate the wrongfulness of his or her conduct. At one time, Indiana included, as a second basis for insanity, whether a defe n dant had the capacity
to conform his or her cond uct to the law

– i.e., the irresistible impulse test

. Green , 469 N.E.2d at 1171 (citing Ind. Code § 35

- 41

- 3

- 6(a) (Burns 1979)). This volitional component was removed
from the statute in 1984. See Act of Feb. 24, 1984, No. 184, § 1, 1984 Ind. Acts 1501, 1501

. Demeanor evidence thus had more probative value to negate a defense of insane conduct because of the volitional component of the i n sanity test

. See , e.g. , Taylor , 440 N.E.2d 1109

.

Finally, demeanor evidence before and after a crime is of more limi ted value than the d efendant‟s demeanor during the crime. The insanity defense concerns th e defendant‟s mental

state at the time of the crime. As such, Indiana law recognizes the defense of “temporary insan ity.” Gambill , 675 N.E.2d at 674

- 75; Flowers v. State , 2 3 6 Ind. 151, 139 N.E.2 d 185, 196 (1956 ).
T he law thus allows for the possibility that a defendant will be legally insane at the time of the crime, but compos mentis immediately before and immediately after the crime. Therefore , a d efendant‟s dem eanor before and after a crime may be even less indicative of the defendant‟s me ntal state during the crime than deme a nor evidence normally is.

Thus, as a general rule, demeanor evidence must be considered as a whole, in relation to
all the other evidence . To allow otherwise would give carte blanche to the trier of fact and make appellate review virtually impossible. For instance, in Thompson and Gambill , the trial courts found that the defendant‟s flight from police was probative of sanity. But in Lyon v. State , the fact that the defendant did not flee but rather waited for police in the next room was probative of sanity. 608 N.E.2d 1368, 1369

- 70 (Ind. 1993). If a piece of demeanor evidence standing alone
is cons i dered probative, evidence of the defen dant‟s actions after the crime could be used as the sole basis for a finding of sanity, whether t he defendant cooperated with p o lice or not.18 C

In this case, t h ere was not sufficient evidence of probative value from which an inference of sanity could be drawn sufficient to create a conflict with the ( nonconflicting ) expert testimony that the defendant was insane at the time of the offense. First, there was no lay opinion testim ony given that conflicted with the experts‟ opinions that the defendant was in sane at the time of the stabbing. The three eyewitnesses to the stabbing called by the State testified that the defe ndant was showing familiar signs of “losing it.” The defendant‟s aunt, who was sitting on the couch as her mother was stabbed only a few f eet away, testified that the defendant had a “wild look” in his eye and that she recognized this as the look he gets right before he loses it. She also
heard the defendant call his beloved grandmot her the devil as he stabbed her . Two other wi tnesses

– th e defendant‟s mother and the defendant‟s friend

– also testified that the defendant was showing signs of losing it in the days and hours leading up to the murder. Thus, unlike Thom pson , where there was no lay opinion evidence on the issue of insanity, the re were five lay wi tnesses in this case whose testimony supports the experts‟ op i nions.

Second, there wa s not sufficient demeanor evidence of probative value from which an i nference of sanity could be drawn. The trial court based its findings on very lit tle evidence. It found as probative of sanity the fact that , over the course of an hour, the defendant shopped, ate, and filled a car with gasoline without incident. It also found as probative the fact that the defe ndant cooperated with police after the fact. Viewed in isolation, each of these events may indeed represent the normal events of daily life. However, w hen viewed against the defendant ‟s long history of mental illness with psychotic episodes, the defendant ‟s demeanor during the crime, as

te s ti fied to by three eyewitnesses, and the absence of any suggestions of feigning or malingering, this demeanor evidence is simply neutral and not probative of sa n ity.

Additionally, we are unable to agree with the trial court‟s conclusions that certain facts were probative of sanity . Two investigating officers testified that there was absolutely no ev idence of a plan or motive. In light of this, the trial court found as probative of sanity the fact that
the defendant , without any warning, stabbed his grandmo ther, his best friend with whom he had lived for seven years, in front of three family members while calling her the devil. We see not h-19

ing connecting the absence of plan or motive and the defendant acting without warning as he did as probative of sanity.

The trial court also found as probative of sanity the fact that t he defendant deteriorated during trial to the point that he was deemed legally incompetent and was committed to a state hospital to regain competence. We do not find the defendant‟s deterio rating to incompe tence to stand trial to be probative of his sani ty at the time of the offense.

The trial court expressly found that the defendant deteriorates mentally and experiences psychosis when he does not take his medication. At the time of the st abbing, the defendant was supposed to be taking his medications twice a day. He told police, however, that he had not ta ken any prescription medication in two days. The trial court found this failure to take medic a ti on to be probative of sanity
, but we d o not, especially in light of the trial court‟s finding that the d efendant bec a me psychotic when not on his medication.

The trial court also relied on the defendant ‟s demeanor during trial, when he was comp etent to stand trial, as probative of his sanity at the time of the crime. As discussed at length s upra , a defendant‟s demeanor during court proceedings is certainly probative of sanity with r e gard to his or her competence to stand trial. See Manuel v. State , 535 N.E.2d 1159, 1162 (Ind. 1989) (per c u ri am). But the probative value of a defendant‟s courtroom demeanor during trial as to his or her mental state at the time of the crime is doubtful. The justification for considering a defe ndant‟s demeanor b e fore and after the crime is that conduct occurrin g in temporal proximity to the crime “may be more indicative of actual mental health at [the] time of the crime than mental e xams conducted weeks or months later.” Thompson , 804 N.E.2d at 1149. Trial proceedings, however, often occur many months or even years after the crime. In this case, the two

- day bench trial occurred nearly a year after the murder. Thus, we do not find the fact that the defendant “was alert and oriented throughout the proceedings and assisted his counsel and the investigator”
to be probative of his sanity at the time of the crime.20

Finally, unlike Thompson and Cate , where there were suggestions of feigning or mali ngering, there is no evidence or suggestion that the defendant here feigned his mental illness. The trial court expressl y found as much with regard to defendant ‟s long history of mental illness.

I II

Because the insanity defense relieves a defendant of criminal responsibility, even where it is established beyond a reasonable doubt that he or she committed the criminal act, there is an
inherent risk of abuse. We are mindful of these risks, which is why substantial deference is gi ven to the trier of fact‟s finding of sanity. The trier of fact is in the best position to judge the cr edibility of the witnesses and to observe t he defendant over a period of time. Accordingly, whether a defendant is malingering or feigning mental illness or insanity is clearly an appropriate
conside r ation for the trier of fact. See Part II.B, supra

.

It was not appropriate, however, for the trie r of fact to consider the condition of our
State‟s mental health system. Although raising the insanity defense opens the door to examining
the d e fendant‟s entire life and allows in evidence that might otherwise be inadmissible under our rules of evidence, see Garner v. State , 704 N.E.2d 1011, 1014 (Ind. 1998)
, what may or may not happen to the defendant in the future cannot be considered. T he trier of fact must make its d etermination as to whether the defendant was insane at the time of the offense using only evidence
and conside r ations that are relevant 13 to the defendant‟s mental state at the time of the offense.

The insanity defense may not be a const itutional mandate, see Clark v. Arizona , 548 U.S. 735, 748

- 49 (2006), but it date s back to the twelfth c entury , see Francis Bowes Sayre, Mens Rea , 45 Harv. L. Rev. 974 (1932)

. Prior to the twelfth century, criminal law was based on principles of strict liability

– the only inquiry was whether the criminal defendant committed the criminal

act. See Sayre, su pra , at 977. Toward the end of the twelfth century, the influences of ancient Roman law and canon law began to call into question the morality of punishing someone for a
criminal act committed without criminal intent. See id. at 982

- 84. Insan ity, like s elf

- defense,

13 Evidence is relevant if it has any tendency to make a fact of consequence mo re or less prob a ble. Ind. Ev idence Rule 401.21

thus became a basis for a royal pardon wherein the insane defendant was convicted of the charged offense but pardoned by the King. See id. at 1004

- 05.

Over the centuries, insanity beca me a defense to criminal responsibility. See, e.g. , 4 Wi lliam Blackstone, Commentaries on the Laws of England 24

- 25 (1769). Arguably the most clear and influential statement of the insanity defense came from the House of Lords in M‟Naghten‟s
Case , (1843) 8 Eng. Rep. 718 ( H.L. ). It was there held that the comm on law test for insanity had been and was “whether the accused at the time of doing the act knew the difference between right and wrong.” Id. at 722. That is, a defendant was not criminally responsible if, at the time of the offense, he was unable to app r e ciate the wrongfulness of his conduct.

The insanity defense has undergone many changes since the mid

- nineteenth century. One of the most significant was the development of the irresistible impulse test, which reco gnized volitional impairment as a basis for the insanity defense , and the subsequent expansion of both the cognitive and volitional tests embodied in the Model Penal Code

. See Christopher Sl obogin, An End to Insanity: Recasting the Role of Mental Disability in Criminal Cases , 86 Va. L.
Rev. 11 99, 1211

- 12 (2000). Although many states, inclu d ing Indiana, adopted some variation of the broader insanity defense during the 1960s and 1970s, most states repealed the volitional test after John Hinckley was found not guilty by reason of insanity for the attempted assassination of President Ronald Reagan in the early 1980s. See id. at 1214. Since then, many states, like Ind iana, have reverted back to the original common law insanity test described in M‟Naghten

. I d. In fact, several states have abolish ed the insanity defense completely. See, e.g. , Idaho Code Ann. §
18

- 207 (2004) ; Kan. Stat. Ann. § 22

- 3220 (2007) ; Mont. Code Ann. § 46

- 14

- 102 (2009)

. 14

The Indiana General Assembly has chosen to return to our common law roots and hold criminally responsib le only those defendants who are morally responsible for their actions. Judges must apply that law and find not responsible by reason of insanity those defendants who
establish each component of the insanity defense by a preponderance of the evidence. It is not

14 Nevada also abolished the insanity defense, see Act of July 5, 1995, ch. 637, § 5, 1995 Nev. Stat. 244 8, 2450 , but the Nevada Legislature reinstated the de fense in 2003, s ee Act of May 28, 2003, ch. 284
, § 4 , 2003 Nev. Stat. 1456, 1457 ( codified as amended at Nev. Rev. Stat. Ann. § 174.035 ( West Supp. 2010)).22

for the judicial branch to decide that a legally insane defendant should be convicted and se ntenced to prison because of the condition of the State‟s mental health system.

The trial court erred in this case by entering a verdict of guilty but ment ally ill when the evidence presented reasonably led only to a concl u sion that the defendant was legally insane at the time of the offense. Underlying the trial court‟s decision was not a concern of malingering or feigning but a concern about the State‟s m ental health system and the defendant ‟s need for stru cture and constant supervision. Among the trial court‟ s findings is that the defendant “lacks i nsight into the need for his prescribed medication” and “is in need of long term stabilizing trea tment in a secure facility.” The trial court also found that the defendant “repeatedly disconti n ued medication” and there was “no evidence that this pattern of conduct will not continue if [ the d efendant ] is hospitalized and released, posing a danger to himself and others in the co m munity.”

Though made after the verdict, the trial court‟s statements at sentencing cast light on the rationale underlying the verdict. 15 The trial court confessed at sentencing that it viewed “[t]his
case . . . as much a trial of our men tal health system as . . . of a man.” The court l a mented that it could not simply commit the defendant to a mental health institution for the rest of his life

– the “easy” decision . What made the court‟s decision so difficult was that it could not “in go od c o nscience allow someone with . . . severe mental illness to return to the commun i ty.”

To be sure, the trial court was not unreasonable in finding that the defendant ‟s history of mental illness, his lack of insight into the need for medication, and his track record of mentally deteriorating after stopping his medication creates a high probability that the defendant will be a danger to himself and to others in the community if treated and released. Although such consi derations may be relevant and approp riate during a commi t ment proceeding, they are not relevant or appropriate in determining whether the defendant was l e gally insane at the time of the offense. Thus, while we sympathize with the difficulty of the trial court‟s decision, we ca n not sustain i t.

15 We have previously considered the trial court‟s sentencing statements as illustrative of its reasoning with regard to the verdict, at least where the trial court was both the trier of law and the trier of fact. See Thompson , 804 N.E.2d at 1150.23 Conclusion

We reverse the judgment of the trial court.

Rucker and David, JJ., concur.

Shepard, C.J., dissents with separate opini on in which Dickson, J., joins

.SHEPARD, Chief Justice, dissenting.

Gregory Galloway is someone who went shopping at a going

- out

- of

- business sale in the morning, had some lunch at a local restaurant with his aunt and grandmother, and stopped off at a gas station to buy fuel and cigarettes. Galloway appeared normal all day; “everybody was happy,” one of his companions s aid.

When Galloway arrived home, he stabbed his grandmother to death, and then immediat ely announced that he regretted what he had done. The finder of fact in this case, Judge Mary Willis, concluded on the basis of the admitted evidence that Galloway w as not insane at the time of the crime, that is to say, that he knew killing his grandmother was wrong.

Of course, all of the testimony by psychiatrists and psychologists necessarily came from witnesses who were not present at the scene of the crime. Th ey offered their observations based on records of Galloway‟s medical history from moments other than the hour of the killing and on direct observations of Galloway that occurred months or even years after the crime. One of these experts, Dr. Glenn Davidso n, appointed by the court, concluded that Galloway was not insane at the time of the crime. Eyewitness evidence about how Galloway acted before and after the crime also supported the trial court‟s decision.

This was one of those cases where the defense argued that the perpetrator was sane right before the crime and sane right after the crime, but insane for the sixty seconds or so it took to commit it. Dr. Davidson‟s basic view was that it was unlikely that Galloway qualified as insane
on the basis of a “very thin slice of disorganized thinking.” (Tr. at 228.)

Defense counsel‟s vigorous cross

- examination confronted Dr. Davidson with a host of hypotheticals (“now what if I told you”) and asked as to each new proposed fact whether it
would affect his d iagnosis. It was twenty to thirty pages of the sort of energetic cross

examination tactics to which we lawyers are inured but which often befuddle the uninitiated. It finally left the witness saying, in the face of this onslaught, that he was unsure.2

As the majority points out, juries and judicial factfinders are not required to take as co mpletely true all or none of what witnesses say. They are entitled to believe and disbelieve some, all, or none of the testimony of experts and non

- experts alike. Indeed, their assignment is to sort out truth from cacophony. It was altogether plausible that Judge Willis could credit Dr. Davi dson‟s opinion that Galloway was sane and treat the doctor‟s answers under cross as less compe lling. She could also, of cours e, give weight to Galloway‟s own contemporaneous declaration of regret right after he killed his grandmother.

To be sure, if the right of appeal is to be meaningful, both trial and appellate judges must be open to the possibility of mistake. We set a pr etty tough standard for tr ial judges as to casting aside jury verdicts, for example, saying that they may do only when the jury‟s verdict is “against the weight of the evidence” or “clearly erroneous.” Ind. Trial Rule 59(J). Our rules r e quire that the ju dge who sets aside a jury verdict explain in detail, if you will, why the judge is better at weighing the evidence than the members of the jury. The appellate standard is roughly the same, and appellate judges regularly declare that we who have not even s een the witnesses or the d efendant should be extremely restrained when we contemplate announcing that our asses s ment of the weight of the evidence is superior to that of juries or judges who have seen both.

It seems straightforward enough that Dr. Davids on‟s testimony and the defendant‟s own demeanor at the time of the offense support Judge Willis‟s judgment. Thus, the appeallate sta ndard for reversal has not been met. Thompson v. State , 804 N.E.2d 1106, 1149 (Ind. 2004) (“evidence is without conflict a nd leads only to the conclusion the defendant was insane.”)

The majority declares that it is not relevant what may happen as a result of this reversal by appellate judges. Not many of our fellow citizens would not recognize this disclaimer of r esponsibil ity as legitimate.

As the majority does acknowledge, there is risk involved when appellate judges second

guess a jury or trial judge and acquit a criminal offender. If Galloway is declared not guilty by this Court, the prosecutor will initiate a civil c ommitment process to determine whether Gall oway should be confined because his mental illness makes him a danger to himself or to others.3

The one thing we know for sure about Mr. Galloway is that he is in actual fact a danger to
others.

We also know what is likely to occur as a result of this Court setting aside Judge Willis‟s judgment: sooner or later, probably sooner rather than later, Galloway will be determined safe and turned back into society.

The reason we know that is that the civil commitm ent process has produced such an ou tcome over and over again with Mr. Galloway. The majority has recited the long trail of medical
treatments and mental commitments. It has not focused much in that recitation on how the exe rcise of expert medical judgmen ts and the civil commitment processes have combined to turn him back out on the street over and over again.

I count perhaps seventeen identifiable encounters by Galloway. But just to name a few, call it number 5, there was a May 1999 event in which Gall oway‟s wife brought him in because he had been carrying around a gun and threatening to use it on his supervisor at work. This trip produced a prescription for medication and a period of outpatient treatment, then a failure to take
his medications and a m edical trail gone cold.

During encounter number 7, in April 2001, Galloway was admitted to the hospital b ecause of aggressive and frightening behavior at home. He said he had been receiving messages from the television. This interaction with the system produced several months of monitoring during which Galloway took some of his medicines and not others. And then he was out.

During encounter number 8, Galloway was involuntarily committed because he had threatened to kill his neighbor and his grandmoth er. He was released from commitment and then admitted again just a month later, in March 2002. He stayed a few months at Richmond State Hospital before being declared safe for release.4

In encounter number 13, not long before Galloway killed his grandmo ther, Galloway came under care after he stopped taking his medicines and began reporting hallucinations and recurring thoughts of suicide. After being stabilized, he was discharged to live with his gran dmother, with a result plain and painful for all to s ee.

I mention this litany

--

just salient elements in an even longer story

-- to suggest that some innocent future victim is placed at risk by this Court‟s decision to second

- guess Judge Willis. A society that responds to such violence with tolerance should well expect that it will experience more violence than it would if it finally said, “This is unacceptable.” Not knowing what I would say to the next victim, I choose to stand with Judge Willis and affirm the judgment of guilty but mentally ill.

Dickson , J., joins.