IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
SEPTEMBER 1998 SESSION
April 22, 1999
Cecil W. Crowson
STATE OF TENNESSEE, * Appellate Court Clerk
C.C.A. # 01C01-9710-CC-00467
Appellee, * DICKSON COUNTY
VS. * Hon. Robert E. Burch, Judge
JEFFERY L. PERRY, * (Second Degree Murder)
Appellant. *
For Appellant: For Appellee:
Shipp R. Weems John Knox Walkup
District Public Defender Attorney General & Reporter
Carey J. Thompson Daryl J. Brand
and Senior Counsel
Mitch Dugan Criminal Justice Division
Assistant Public Defenders 425 Fifth Avenue North
P.O. Box 160 Nashville, TN 37243
Charlotte, TN 37036
Robert S. Wilson
Assistant District Attorney General
Court Square, P.O. Box 580
Charlotte, TN 37036
OPINION FILED: __________________
AFFIRMED
GARY R. WADE, PRESIDING JUDGE
OPINION
The defendant, Jeffery L. Perry, was convicted in the second degree
murder of his father, Leon Perry. The trial court sentenced the defendant, who
qualified as a violent offender, to fifteen years imprisonment in a special needs
facility. In this appeal of right, the defendant presents the following issues for
review:
(I) whether the evidence is sufficient to support the
conviction for second degree murder;
(II) whether the trial court erred by denying the
defendant's motion to suppress his custodial statement;
and
(III) whether Tenn. Code Ann. § 39-11-501, the statute
governing the affirmative defense of insanity, is
unconstitutional.
We affirm the judgment of the trial court.
Late in the evening of November 5, 1995, Donald Shirley of the
Dickson County Sheriff's Department was dispatched to the Perry residence to
investigate a shooting. Upon his arrival at the residence, Deputy Shirley surveyed
the front yard while Sergeant Steve Lovell went to the rear of the house. When he
heard Sergeant Lovell order the defendant to put his hands in the air, Deputy Shirley
ran to the side of the residence and informed the sergeant that the defendant was
deaf. Upon entering the residence, Deputy Shirley located the body of the victim,
Leon Perry, on the living room floor.
Sergeant Steve Lovell testified that he made hand gestures to direct
the defendant, who was in his truck, to unlock the truck and step outside the vehicle.
Sergeant Lovell, who described the defendant as being under the influence of glue,
noticed several empty glue containers, a case of glue, and the strong odor of glue in
2
the truck. He recalled that the defendant appeared to be surprised and "tensed up"
several times while he was being handcuffed. After being placed in a patrol car, the
defendant kicked out the side window and propelled himself through the broken
glass onto the driveway.
Deputy Sheriff Robert Hayes, who assisted in the arrest, described the
defendant as uncooperative, but otherwise calm and expressionless. He recalled
that the smell of glue in the truck was very strong and he observed a box on the
floorboard that contained tubes of glue. He testified that there were five or six
opened packages of glue on the seat of the truck and a space heater was in the
floorboard.
Martha Kay Perry, the defendant's mother, testified that on the day of
the shooting the defendant had spent the afternoon sniffing glue in his truck. At
about 9:35 P.M., she heard the defendant enter the house and go to his bedroom.
The victim, the defendant's father, was in the living room. She testified that she
then heard a gunshot and heard the victim say something like, "[p]lease don't shoot
me, Jeff." When a second shot was fired, Ms. Perry grabbed a can of mace and ran
into the hallway where the defendant stood with a shotgun. Ms. Perry sprayed the
defendant with mace, and, after a struggle, she was able to break free. When she
saw the victim lying on the living room floor, she grabbed the cordless telephone,
called 9-1-1, and fled in her vehicle.
Ms. Perry testified that the defendant had suffered nerve deafness at
the age of two. She stated that from the age of five until he graduated from high
school, the defendant attended the Tennessee School for the Deaf in Knoxville.
She recalled that her son was popular and excelled as a student and athlete. He
3
received his high school diploma in 1982. Ms. Perry testified that the defendant
could read fairly well but not as well as a hearing person. After high school, the
defendant returned to Dickson to live with his parents and worked at their service
station as a mechanic for the next four years. Although he had performed well at his
job, he had experienced difficulty making friends in Dickson and had become very
self-conscious about being deaf.
In 1985, after the defendant sustained a head injury in an auto
accident and refused medical treatment, Ms. Perry noticed behavioral changes in
the defendant. She described him as "paranoid" and recalled him say, "Everybody's
watching me, looking at me ... They're laughing at me." She testified that he was
easily agitated and that his behavior deteriorated until eventually the Perrys had
asked him to stop working at the service station. She recalled that over the next
year, the defendant routinely paced the floor for hours at a time while yelling and
making animal sounds.
In 1987, the Perrys took the defendant to Middle Tennessee Mental
Health Institute and then to the Parthenon Pavilion where he remained for several
weeks. He was diagnosed as a paranoid schizophrenic. During the following year,
the defendant stopped taking his prescribed medication, became "real violent," and
required sedation. Two days after an incident requiring sedation, the defendant
attacked a bank teller and was readmitted to the Middle Tennessee Mental Health
Institute. He was then transferred to Horizon Hospital in Clearwater, Florida, where
the hospital staff was trained in American Sign Language. The defendant, who
remained at Horizon Hospital for approximately five months, was again diagnosed
as a paranoid schizophrenic. During his stay there, the defendant ingested
thumbtacks, rocks, and toothpicks, ultimately requiring emergency surgery.
4
After the defendant was returned to his home, he required quarterly
evaluations at Southridge, a psychological hospital in Dickson. He experienced few
problems until 1995, when the defendant became more frequently agitated even
though he consistently received his prescribed medications. At that point, Ms. Perry
learned that the defendant was sniffing glue. He stayed away from home on most
nights and returned in an intoxicated condition but not smelling of alcohol. She
described the defendant as even more agitated and more violent during this period.
He also stopped communicating with his parents. Ms. Perry testified that she had
learned some American Sign Language but that the victim knew very little.
Ms. Perry recalled that the defendant would sit in his truck behind her
residence and sniff glue throughout the night. When she tried to convince him to
stop, the defendant replied, "It stops the electricity in my head." Ms. Perry testified
that the defendant claimed to hear voices that directed him to do things. She
realized that the defendant's glue consumption continued to increase over time.
By October of 1995, Ms. Perry had become increasingly fearful of the
defendant. When he acted violently toward her and the victim, she returned him to
Parthenon Pavilion for treatment of the glue addiction. During his last hospitalization
before the shooting, a physician at Parthenon Pavilion changed the defendant's
medication and released him six days later despite the Perrys' objections. Although
the defendant was scheduled to attend a drug rehabilitation program in Memphis
especially designed for the hearing impaired, the facility would not allow admission
until a neurologist examined a cyst that had been discovered on his brain. Ms.
Perry explained that she did not want the defendant at her home because "he
wasn't well enough ...." The appointment with the neurologist was scheduled for the
day after the shooting.
5
During the week that followed his release from Parthenon Pavilion, the
defendant resumed the abuse of glue. Ms. Perry recalled that on the "Friday we
brought him home ... after he got his clothes unpacked ... [he] bought glue and
started sniffing it." At trial, she testified that she was certain that the defendant
understood that he was to be admitted to a drug treatment center. She believed
that he was willing to go. Ms. Perry recalled that on the day of the shooting, the
victim had asked the defendant to try to stop sniffing glue.
Detective Randy Starkey of the Dickson County Sheriff's Department
investigated the crime scene at 11:30 P.M. He collected a spent shotgun shell in
the living room, another in the hallway, and a third in the defendant's bedroom. He
found a .12-gauge single-shot shotgun on the defendant's bed. The gun was empty
but had the odor of recently burned gun powder. Detective Starkey explained that to
load a single-shot shotgun, the weapon had to be broken down, a shell inserted,
and the gun closed. He stated that after the gun is fired, it must be broken down to
eject the spent shell and before another live shell can be inserted.
After the shooting, officers found a box of .12-gauge live shotgun
shells in the defendant's bedroom, the same type as the spent shells collected from
the living room, hallway, and bedroom. A can of mace was located near the back
door of the house near a woman's bedroom shoe. Detective Starkey found a plastic
bag containing model glue and eight empty tubes of glue in the defendant's truck.
At 2:30 A.M., about four hours after the defendant's arrest, Detective
Starkey and Detective Butts interrogated the defendant at the station house.
Detective Butts read the defendant an admonition and waiver of rights and allowed
the defendant to read the form. According to the detectives, the defendant indicated
6
that he understood his rights, signed the form, and did not ask for a lawyer.
Detective Butts then wrote questions on one piece of paper and the defendant wrote
answers on another, as follows:
Det. Butts: My name is Detective Craig Butts[.] Next to
me is Capt. Randy Starkey. Would you
read this form stating your Miranda rights?
Do you understand your rights[?]
Defendant: Yes.
Det. Butts: Will you write out a statement as to what
happened?
Defendant: I killed my dad for reason I get angry.
Det. Butts: Will you write it on this form and tell us what
happened at the house. Why did you get
angry[?]
Defendant: I killed my dad for reason I get angry.
Det. Butts: Why[?]
Defendant: I lost my control.
Det. Butts: What did you do to him (your father)[?]
Defendant: Because I don't like him.
Det. Butts: Did you shoot him[?]
Defendant: Yes.
Det. Butts: With what and how many times[?]
Defendant: 3 bullet.
Det. Butts: Shotgun or Rifle[?]
Defendant: Rifle.
Det. Butts: .12 ga. -.20 ga. or .410[?]
Defendant: 12 gauge.
Det. Butts: What did your father do tonight to make
you angry[?]
Defendant: He watched TV. He keep watch me.
Det. Butts: Did you try to hurt your mother[?]
7
Defendant: No.
Det. Butts: If you shot 3 times, where did the three
shots go[?]
Defendant: I shot him at couch.
Det. Butts: Do you know where the 3 shots hit your
father[?]
Defendant: 3 times.
Det. Butts: Where[?]
Defendant: [underlined couch]
Det. Butts: Did you shoot the couch first or your father[?]
Defendant: I started to shoot him.
Det. Butts: Did you ever plan to kill your father[?]
Defendant: [N]o, first time.
Det. Butts: What were you doing before you shot your
father[?]
Defendant: I took glue.
Det. Butts: What did you do with the glue and how[?]
Defendant: I sniff get glue with bags.
Det. Butts: How much glue did you sniff before going
into the house[?]
Defendant: About 5 or 8.
Det. Butts: Tubes if so, please write it behind the 8.
Defendant: (circled five) I get sniff glue then I stop it.
Det. Butts: Are you alright[?]
Defendant: Yes.
Det. Butts: Do you need a doctor[?]
Defendant: Yes.
Det. Butts: For what[?]
Defendant: Stop glue.
8
The defendant signed the statement. Detective Starkey recalled that the defendant
was calm and appeared alert and cooperative during the interview.
On cross-examination, Detective Starkey acknowledged that there
were no signs of a struggle at the Perry residence. He agreed that the defendant
had not attempted to conceal the weapon, shells, or other evidence of the crime and
recalled that the defendant was restrained in the back seat of the patrol car during
the collection and preservation of evidence. Detective Starkey, who did not know
whether the defendant was given anything to drink or provided an opportunity to use
the restroom, was aware that the defendant had been using glue and was aware
that he was deaf. He acknowledged that he considered trying to find a sign
language interpreter to assist in interviewing the defendant but, because of the late
hour and fees involved, he elected to proceed without an interpreter.
Dr. Donna L. Seger is Assistant Professor of Medicine at Vanderbilt
University Medical Center and Medical Director of the Middle Tennessee Poison
Control Center. Her specialty is toxicology and she primarily treats individuals who
have been exposed to inhalants. Through deposition, Dr. Seger testified that she
examined the defendant's medical records from 1987 until January 1996. Based
upon the content of the records, Dr. Seger agreed that the defendant suffered from
paranoid schizophrenia. She determined that the defendant had a history of chronic
drug dependence, including cocaine and alcohol use and sniffing model airplane
glue.
Dr. Seger testified that model airplane glue contains solvents and
adhesives which, when inhaled, have significant effects upon the nervous system. It
was her opinion that the ingredients affect a person's ability to think, decrease
9
intelligence, cause personality changes, anxiety, depression and, when used
chronically, "result in paranoid thinking." Dr. Seger testified that one who had
sniffed glue as long as the defendant had would necessarily suffer permanent and
irreversible brain damage. She also concluded that one who sniffed five to eight
tubes of glue would exhibit depression, anxiety, paranoia, an inability to remember,
an inability to concentrate, personality changes, decreased intelligence, and
increased fatigue. It was her opinion that the effects of glue would be more extreme
in one affected with paranoid schizophrenia. She stated that glue inhalation affects
a deaf person's ability to understand what was being communicated, whether written
or verbal.
Dr. Seger was uncertain, however, whether the defendant, who had
apparently sniffed several tubes of glue before shooting his father, could have
appreciated the wrongfulness of his actions at that time. She agreed that if the
defendant had not been taking his medications as prescribed, the effect of glue on
his nervous system, in combination with the presence of paranoid schizophrenia,
would have been profound. Dr. Seger explained that most glue sniffers show no
physical manifestations, the primary reason the practice is so popular. It is well
documented, however, that chronic use results in long term damage to the central
nervous system. Dr. Seger concluded that if someone had sniffed five tubes of
glue, that person could appear calm and attentive, because "a lot of sniffing makes
you feel very tired and just like sitting."
Dr. Gillian Blair, a licensed clinical psychologist certified to determine
competency for trial in this state, met with the defendant on three occasions in May,
July, and September of 1996 for total of twelve to fourteen hours. She administered
psychological examinations with the assistance of Dr. Laurel Goodrich, a
10
psychologist who specializes in counseling deaf persons. Dr. Blair also interviewed
the defendant's mother and reviewed all the defendant's medical and psychiatric
records. She discovered that there was a history of "significant mental illness" in
their family. One uncle committed suicide several years ago for unknown reasons
and another uncle had been diagnosed a schizophrenic. She reported that every
hospital which had treated the defendant had determined that the defendant was a
paranoid schizophrenic with the possible exception of Middle Tennessee Mental
Health Institute, which had not made a conclusive diagnosis. Dr. Blair's
independent diagnosis of the defendant was paranoid schizophrenia coupled with a
substance abuse disorder.
Dr. Blair testified that schizophrenia is a psychotic thought disorder
and the symptoms must be present for more than six months before a diagnosis can
be made. She stated that the defendant presents primarily negative symptoms
which include flat affect,1 an inability to engage in goal directed behavior, a poverty
of speech, dysfunctional personal relationships, and paranoia, which is a
"suspicious feeling ... that people are talking about you or that people are against
you." A paranoid type schizophrenic does not exhibit disorganized behavior or an
inappropriate affect. Dr. Blair testified that the defendant described the chronic
experience of hallucinations. It was her view that for a number of years, he had
been "unable to engage in goal directed behavior." She stated that the defendant
also has a poverty of speech, which appears frequently in schizophrenics but also
could result from his deafness. Dr. Blair concluded that the defendant had
experienced command hallucinations, which consist of voices that tell him to do
1
Affect is defined as "[a] pattern of observable behaviors that is the expression of a
subjectively experienced feeling state (emotion). Comm on examples of affect are sadness, elation,
and anger." A flat affect is a disturbance in affect in which there is an "absence or near absence of
any signs of affec tive expre ssion." Am erican P sychiatric A ssocia tion, Diagnostic and Statistical
Manual of Mental Disorders (DSM-IV) 763 (4th ed. 1994 ).
11
something, and other symptoms of paranoid schizophrenia "long before" he began
sniffing glue. She testified that the defendant had informed her that the voices told
him to shoot his father. She believed that he had ingested rocks and thumbtacks in
1988 while at Horizon Hospital as a result of similar command hallucinations.
Dr. Blair testified that the defendant was in Parthenon Pavilion from
October 21 to October 27, 1995, and while he was there the psychiatrist changed
his medication. Dr. Blair testified that she thought his discharge from the hospital
was premature. At that time, his global assessment of functioning was valued at
thirty, 2 which indicated serious impairment in communications or judgment. His
discharge notes indicated, "[b]ehavior is considerably influenced by delusions or
hallucinations, or there is serious impairment of judgment and/or inability to function
in almost all areas."
Through an interpreter the defendant communicated to Dr. Blair that
he took glue as a way of diminishing the hallucinations that he experienced. She
stated that the act of sniffing glue was volitional but that the desire of the defendant
to rid himself of the hallucinations may have been so strong as to overcome the
voluntariness of the act. Dr. Blair testified that the defendant suffered from a severe
mental disease or defect, namely, schizophrenia. Based upon all of the information
available to her, she concluded that the defendant was unable to appreciate the
wrongfulness of his behavior the night of the shooting. Dr. Blair, who had performed
hundreds of forensic evaluations and had testified in over one hundred trials, stated
2
The Global Assessment of Functioning Scale (GAS) is a hypothetical continuum of mental
health illness that cons iders ps ychologica l, social and occup ational levels of function ing in a patien t.
The score of 21 to 30 indicates that the patient's behavior is "considerably influenced by delusions or
hallucinations or serious impairment in communication or judgment or an inability to function in almost
all areas ...." In comparison, a score of 91 to 100 indicates superior functioning in a broad range of
activities and a score of 41 to 50 reflects serious symptoms such as suicidal ideation or serious
impairment in functioning. A score between 1 and 10 warns that the patient presents persistent
dange r to hims elf or other s or is pers istently unab le to ma intain m inimal pe rsonal hyg iene or co mm its
serious suicidal ac ts with a clea r expec tation of de ath. DSM -IV at 32.
12
that she had found evidence supporting an insanity defense in only four cases,
including this one.
On cross-examination, Dr. Blair acknowledged that while the
defendant has schizophrenia, he was nonetheless competent to stand trial. Dr. Blair
stated that the defendant had loved his father but that it was possible that he felt
resentment because his father had difficulty accepting his son's impairments and
failed to learn sign language so as to improve their level of communication. Dr. Blair
conceded the possibility that the defendant had shot his father out of anger, as his
statement indicated.
Dr. Blair also acknowledged that Dr. Farooque at Middle Tennessee
Mental Health Institute had diagnosed the defendant in December 1987 as having
an adjustment disorder with depressed mood. She was also aware that one month
later, Dr. Farooque had diagnosed the defendant as having schizophreniform
disorder, which is a precursor to schizophrenia. In March 1998, before his
discharge to Horizon Hospital in Florida, Dr. Farooque deferred making a diagnosis
of the defendant on the basis of insufficient information.
Dr. Robert A. Brimmer, a psychiatrist board certified in psychiatry and
forensics, presented rebuttal proof for the state. After reviewing all of the
defendant's medical records, including the summary by Dr. Blair, Dr. Brimmer
observed the defendant, interviewed him with the assistance of an interpreter, and
provided him with a form questionnaire. Based on the two-hour examination, Dr.
Brimmer concluded that the defendant had command hallucinations and had
"[s]chizophrenia by history." He considered the possibility that the defendant had
been misdiagnosed and might suffer from a character disorder, "not otherwise
13
specified with antisocial and passive-aggressive features." As for the defendant's
substance abuse, Dr. Brimmer agreed that glue sniffing mimics the symptoms of
schizophrenia and concluded that glue sniffing would increase his paranoia. He
also determined that the defendant could "read, write and communicate in a rational
manner." He testified that the defendant did not suffer from a mental disease or
defect but rather had a character disorder and that he was able to discern right from
wrong. As an example of the defendant's ability to appreciate the nature of his acts,
Dr. Brimmer testified that he had asked the defendant, "[if you] went to a store and
wanted something but didn't have the money to pay for it, would you take it? And
[the defendant] told me, 'No.'" In Dr. Brimmer's opinion, the act of loading, shooting,
and reloading the shotgun indicated that the defendant understood the nature of his
acts.
On cross-examination, Dr. Brimmer testified that his usual procedure
in diagnosing schizophrenia is to listen carefully to the speech of the patient for
"word salad," putting odd words together. He conceded that the procedure was not
helpful in assessing the defendant. He recognized that a flat affect could be a
symptom of the disease or a learned behavior and that someone who sat
motionless and expressionless could be schizophrenic. In reviewing the historical
diagnoses made by other doctors, Dr. Brimmer conceded that most had diagnosed
paranoid schizophrenia. He also pointed out that Dr. Farooque at Middle
Tennessee Mental Health Institute had initially diagnosed schizophreniform, which
serves as an early diagnosis of schizophrenia, and later deferred on making a
diagnosis. Dr. Brimmer explained that if substance abuse were present, a diagnosis
of schizophreniform could be incorrect, but he conceded there was no evidence in
the medical records to indicate that the defendant abused alcohol, cocaine or
inhalants in 1987 or 1988, when Dr. Farooque made the diagnosis of
14
schizophreniform.
It was stipulated that the .12 gauge shingle-shot shotgun was a gift to
the defendant from his grandfather. The defendant had owned the shotgun for
several years. The cause of the victim's death was hemorrhage from a gunshot
wound.
I
The defendant challenges the sufficiency of the evidence. He
contends that he proved the affirmative defense of insanity by clear and convincing
evidence and that the jury ignored the weight of the evidence. He contends that the
jury should have found that the defendant's diminished capacity prevented him from
forming a knowing mens rea.
On appeal, of course, the state is entitled to the strongest legitimate
view of the evidence and all reasonable inferences which might be drawn therefrom.
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the
witnesses, the weight to be given their testimony, and the reconciliation of conflicts
in the proof are matters entrusted to the jury as trier of fact. Byrge v. State, 575
S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is
challenged, the relevant question is whether, after reviewing the evidence in the light
most favorable to the state, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Williams, 657 S.W.2d
405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).
Second degree murder is defined as a "knowing killing of another."
Tenn. Code Ann. § 39-13-210(a)(1). Knowing is a culpable mental state that is
15
defined as follows:
"Knowing" refers to a person who acts knowingly with
respect to the conduct or to circumstances surrounding
the conduct when the person is aware of the nature of
the conduct or that the circumstances exist. A person
acts knowingly with respect to a result of the person's
conduct when the person is aware that the conduct is
reasonably certain to cause the result.
Tenn. Code Ann. § 39-11-302(b).
Regarding the defense of insanity which was amended in 1995, our
Code provides as follows:
(a) It is an affirmative defense to prosecution that, at
the time of the commission of the acts constituting the
offense, the defendant, as a result of a severe mental
disease or defect, was unable to appreciate the nature or
wrongfulness of such defendant's acts. Mental disease
or defect does not otherwise constitute a defense. The
defendant has the burden of proving the defense of
insanity by clear and convincing evidence.
(b) As used in this section, "mental disease or defect"
does not include any abnormality manifested only by
repeated criminal or otherwise antisocial conduct.
(c) No expert witness may testify as to whether the
defendant was or was not insane as set forth in
subsection (a). Such ultimate issue is a matter for the
trier of fact alone.
Tenn. Code Ann. § 39-11-501.
The defense of diminished capacity, while not codified, has been
recognized by our supreme court. In State v. Hall, 958 S.W.2d 679 (Tenn. 1997),
the court observed that "'diminished capacity' is actually a defendant's presentation
of expert, psychiatric evidence aimed at negating the requisite culpable mental
state." Id. at 688; see Tenn. Code Ann. § 39-11-201(a)(2). While diminished
capacity is not an excuse or justification for committing the offense, it contemplates
an acquittal of the indicted offense and a conviction for a lesser included offense.
16
Hall, 958 S.W.2d at 688.
This court may not reweigh or reevaluate the evidence. The jury
rejected claims of insanity and diminished capacity, determining that the defendant
was fully capable of forming the mens rea necessary to commit a knowing killing.
Because there was evidence to support their determination, we must defer to the
results reached by the finders of fact.
The evidence viewed in a light most favorable to the state is sufficient
to support a conviction for second degree murder. It is uncontested that the
defendant entered the residence, went into his bedroom, armed himself, and
approached the victim who was lying on the couch in the living room. The proof
established that the defendant fired his shotgun at the couch, broke down the
weapon, discharged the spent shell, and reloaded the weapon. W hile the victim
pleaded for his life, the defendant shot him in the shoulder.
Although the defendant presented proof to support insanity and
diminished capacity, the jury accredited the expert witness for the state who
determined that the defendant had a character disorder rather than a mental
disease or defect and that he was able to appreciate the nature of his conduct at the
time of the shooting. In the light most favorable to the state, a rational trier of fact
could have concluded that the defendant was aware of his conduct and the likely
results of his conduct. Jackson v. Virginia, 443 U.S. 307 (1979).
II
Next, the defendant argues that the trial court erred by failing to
suppress two separate custodial statements. He claims that the officer failed to
17
advise him of his constitutional rights before the first statement and that the
warnings provided before the second statement were not effectively communicated
because the defendant had no sign language interpreter, suffered from a mental
disease, and was under the influence of glue. The state argues that any error
surrounding the first statement is harmless because the statement was not placed in
evidence during trial. While the state concedes that the defendant did not have the
benefit of a sign language interpreter, the state argues that he nonetheless had
read, understood, and voluntarily waived his rights so as to allow introduction of the
second statement.
The first written statement, taken by Detective Starkey at 2:30 A.M.,
was as follows:
Det. Starkey: Do you know why you are here?
Defendant: Yes. I killed my dad.
Det. Starkey: Jeff, can you sign your name?
Defendant: Sure.
Det. Starkey: Will you?
Detective Starkey had not provided the defendant with any warnings before taking
the statement.
Detective Randy Starkey, who testified that the defendant was in
custody within twenty minutes of the 9-1-1 call and did not have access to any
intoxicants for over four hours, from 10:16 P.M. until 2:30 A.M., when he was
interrogated. He described the defendant as calm during the interview. Although he
had never interviewed a deaf person, Detective Starkey testified that he believed the
defendant could read lips. The detective explained that he put the questions in
writing so that he would have a record of the full interview.
Craig Butts, formerly an officer with the Dickson Police Department,
18
had questioned the defendant moments after Detective Starkey. Officer Butts
directed the defendant to read the waiver of rights form and then asked in writing
whether he understood his rights. The defendant responded affirmatively. Officer
Butts testified that the defendant had appeared "[r]elatively calm" and attentive while
making his statement. He determined that the statement of the defendant included
a fairly accurate description of the physical proof found at the scene.
The defendant, through an interpreter, testified at the suppression
hearing that he recalled being questioned by Officer Butts and Detective Starkey on
the evening of his arrest and that he remembered signing the waiver of rights form.
He claimed that, due to the glue he had inhaled, he did not understand some of his
rights. When asked if it was easier for him to communicate with someone using
American Sign Language or through the written word, he responded: "Written ...
Well, both." He acknowledged that he read lips "[a] little bit."
At the suppression hearing, the defendant read and translated the
written Miranda warnings as follows:
Warning: Do you understand that you have a right to
an attorney before you're questioned by the
police?
Defendant: Before going to talk and then going to court.
Warning: Do you understand that you do not have to
talk to the police without an attorney being
present?
Defendant: I don't understand.
Warning: Do you understand that you could stop the
questioning by police at any time until you
have an attorney present?
Defendant: I don't understand.
Warning: You have the right to remain silent.
Defendant: I will talk with a lawyer.
Warning: Anything you say can be used against you
in court.
19
Defendant: What I want, to talk with a lawyer, just
whatever.
Warning: If you cannot afford to hire a lawyer, one
will be appointed to represent you before
any questioning if you wish one.
Defendant: If I can't afford a lawyer, then I will not talk
with a lawyer. And then if I can afford a
lawyer, then I will talk to a lawyer.
Warning: If you decide to answer any questions now,
without a lawyer present, you will have the
right to stop answering at any time. You
also have the right to stop answering at any
time until you talk to a lawyer.
Defendant: I can't decide to talk to a lawyer until a
lawyer's gotten, then we can talk.
On cross-examination, the defendant testified that he had received
instruction in American Sign Language in school for fourteen years. He stated that
he understood the written word and American Sign Language "the same." He
conceded that he was somewhat familiar with the court system but maintained that
he did not fully understand his rights because he was under the influence of glue
and the words were blurry. He stated that he would have understood his rights as
he read them if he had not taken any glue. The defendant maintained that he could
write clearly and on the line because he took his time and the influence of glue had
begun to wear off at that point. He admitted that he never asked for a lawyer.
Dr. Gillian Blair summarized the defendant's social and medical history
and presented her diagnosis of schizophrenia, paranoid type, with substance
dependence, all of which was similar to her testimony later at trial. Dr. Blair also
explained that at Middle Tennessee Mental Health Institute, an examining
psychologist Dr. Sheila Peters had found that the defendant was untestable and
"question[ed] whether he could adequately understand the written word." Dr. Blair
stated that the defendant was "significantly impaired by virtue of the solvents that he
20
had been inhaling" and she again pointed to his diagnosis of paranoid
schizophrenia. Dr. Blair, who reviewed the defendant's second statement to police,
testified that she had "grave concerns" about the defendant's condition when the
statement was given, some four hours after the shooting. The defendant told her
that he had felt very confused at the time. Dr. Blair also had "grave concerns about
his ability to understand written statements." Dr. Blair testified that while she was
testing the defendant, he had experienced difficulty understanding the meaning of
words, which had surprised her because he is a high school graduate who can read
and write. She had learned from the interpreter that assisted in the interview that "in
the [American Sign Language] translation, the meaning can be very concrete, and
the abstract meaning [of a word] is not always apparent."
On cross-examination, Dr. Blair conceded that the questions put to the
defendant by Detective Butts were not complicated, that the defendant had average
intelligence, and in her report she had noted that he "reads well." She also
acknowledged that the defendant's statement was consistent with the physical
evidence found at the Perry residence. Dr. Blair recognized that the defendant had
some familiarity with the court system.
Yvonne Fuhrer, an interpreter with the League for the Hearing
Impaired, has been using American Sign Language all of her life and is certified as a
sign-language interpreter. She testified that while English is a written and spoken
language, American Sign Language is a conceptual language that is "dependent
upon vision to have the context of an idea." American Sign Language is actually a
foreign language in the United States: "It has its own grammatical order and syntax
... completely separate from the English language." Ms. Fuhrer testified that while
most English speaking people learn the language from listening, the deaf, who do
21
not have the benefit of incidental learning, do not "pick up" phrases or hear the
different contexts in which words can be used. Thus, Ms. Fuhrer concluded that the
defendant, after having read the Miranda warnings, would not understand them as
would a hearing person.
Ms. Fuhrer testified that most deaf people read on a third or fourth
grade level and, although the defendant had graduated from high school, that fact
did not convince her that he would have understood the Miranda rights as he read
them. Ms. Fuhrer stated that only a small percentage of the deaf can read lips
because it requires special training and many hours of study. She described lip
reading as only thirty-five percent accurate. Ms. Fuhrer testified that she interpreted
the Miranda warnings to the defendant at the arraignment and he had replied
immediately that he wanted an attorney. Ms. Fuhrer said, given her experience with
the deaf, that there was a substantial possibility that the defendant did not
understand the written Miranda warnings.
In denying the defendant's motion to suppress, the trial court
concluded as follows:
[The defendant] is more intelligent than the normal
person that we deal with. Now, he has communication
difficulties, but intelligence is not the problem.
I make that observation to point out the level of
understanding of the rights of a defendant is very low for
admissibility, because if it were any higher, many of the
citizens charged with crimes ... simply would never
understand their rights.
[I]f the accused has sufficient understanding to
comprehend the obligation of an oath and is capable of
giving a correct account of the matters of which he has
knowledge, he's competent to be a witness. ...
[C]ompetency of a witness and competency to confess
[equate with each other].
Therefore, if the accused comprehends that he
need not talk, that he could have a lawyer, that the
statements can be used against him. And if his
confession did not involve official coercion, then he can
22
make a valid waiver of his rights.
I understand the dangers inherent to taking
statements and so forth from persons who are deaf. ...
The question is: Was the way it was done sufficient
under the law? And the Court rules that it is.
I have read [the defendant's statement]. ... [T]he
questions were written out for [the defendant], he read
them, and then he wrote out the answers. ... And it is
coherent question and answer.
Obviously, in whatever state [the defendant] was
in that night, he was able to comprehend questions and
give intelligent answers. The Court is of the opinion that
he was simply capable of understanding these Miranda
rights and did understand these Miranda rights at the
time that they were shown to him and he read them.
Our scope of review is limited. The findings of fact made by the trial
judge at a hearing on a motion to suppress "will be upheld unless the evidence
preponderates otherwise." State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996).
Questions about witness credibility and "resolution of conflicts in the evidence are
matters entrusted to the trial judge." Id. Testimony presented at trial may be
considered by an appellate court in deciding the propriety of the trial court's ruling on
a motion to suppress. State v. Henning, 975 S.W.2d 290 (Tenn. 1998). If the
"greater weight" of the evidence supports the court's ruling, it will be upheld. Id.
Yet, this court must conduct a de novo review of the trial court's application of law to
fact. State v. Bridges, 963 S.W.2d 487 (Tenn. 1997); State v. Yeargan, 958 S.W.2d
626 (Tenn. 1997).
The trial court made no ruling on the admissibility of the first, unwarned
statement. Generally, Miranda warnings must precede a custodial interrogation.
Berkemer v. McCarty, 468 U.S. 420 (1984). The test to be applied to determine if
an individual is in custody is whether a "reasonable [person] in the suspect's
position" would have believed himself or herself to be "in custody." Id., 468 U.S. at
442; see generally State v. Cooper, 912 S.W.2d 756 (1995).
23
In State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996), our supreme
court held that whether a person is "in custody" depends on the totality of the
circumstances. Factors which may be considered include time, duration, location
and character of the interview, the tone and demeanor of the questioning officer, the
manner in which the suspect was transported to the location of questioning, the
number of law enforcement officials present, limitations or restraints placed on the
suspect's movement, interaction between the suspect and the questioning officer,
confrontation by officers with evidence of guilt, and the whether the suspect is
informed that he or she may refuse to answer questions and may end the
questioning at any time. Id. Here, the defendant's hands and feet were bound. He
had been restrained in a patrol car for several hours before being transported to the
police station where, still wearing handcuffs, he was interviewed by two officers. He
was not free to leave. From all of this, we must conclude that the defendant
provided both of the incriminating statements while "in custody"; thus, proper
Miranda warnings were required. As no warnings were provided before the initial
statement was elicited, that statement should have been suppressed by the trial
court. Any error in failing to suppress the statement was certainly not prejudicial,
however, because the unwarned statement was not admitted at trial. Moreover, the
defendant does not argue that the first, unwarned confession tainted the second,
warned confession. See State v. Smith, 834 S.W.2d 915 (Tenn. 1992).
A warned confession must meet constitutional safeguards. Miranda v.
Arizona, 384 U.S. 436 (1966). This court must examine the "totality of the
circumstances" to ascertain whether the particular defendant knowingly and
voluntarily waived his constitutional rights prior to making a confession. State v.
Bush, 942 S.W.2d 489, 500 (Tenn. 1997). "The relinquishment of the right must be
voluntary in the sense that it is the product of a free and deliberate choice rather
24
than the product of intimidation, coercion[,] or deception. Moreover, the waiver must
be made with full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it." State v. Stephenson, 878 S.W.2d
530, 544-45 (Tenn. 1994) (citing Fare v. Michael C., 442 U.S. 707 (1979); North
Carolina v. Butler, 441 U.S. 369, 374-75 (1979)). Factors relevant in determining
whether a confession is voluntary include (1) the length of time between the arrest
and the confession; (2) the occurrence of intervening events between the arrest and
confession; (3) the giving of Miranda warnings; and (4) the purpose and flagrancy of
the official misconduct. Brown v. Illinois, 422 U.S. 590, 603-04 (1975); State v.
Chandler, 547 S.W.2d 918, 920 (Tenn. 1977). The overriding question, however, is
whether the behavior of law enforcement officials served to overbear the
defendant's will to resist. State v. Kelly, 603 S.W.2d 726, 728 (Tenn. 1980); see
State v. Howard, 617 S.W.2d 656, 658-59 (Tenn. Crim. App. 1981). With the
exception of the initial unwarned confession, there is no evidence of official
misconduct in this record. The defendant was interviewed within hours of his arrest
with no remarkable events intervening. He appeared coherent and calm and never
asked for an attorney. He had some familiarity with the court system. Detective
Butts read the waiver of rights form to the defendant and asked the defendant to
read it to himself. The defendant read it and indicated that he understood his rights.
The defendant argues that he could not have understood his rights or
voluntarily or knowingly waived his rights because he suffers from paranoid
schizophrenia, was under the influence of glue, and did not have a sign language
interpreter. Yet a statement provided by a suspect who is under the influence of
drugs is admissible so long as the statement is coherent. State v. Green, 613
S.W.2d 229, 232-33 (Tenn. Crim. App. 1980). Mental unsoundness will not render
a confession invalid, so long as the evidence demonstrates that the suspect was
25
capable of understanding and waiving his rights. State v. Bell, 690 S.W.2d 879, 882
(Tenn. Crim. App. 1985). "Language difficulties encountered by a defendant are
considered in determining if there has been a valid waiver." State v. Van Tran, 864
S.W.2d 465, 473 (Tenn. 1993).
The circumstances involved in this case are troublesome. This deaf
defendant has presented proof of mental illness and intoxication. In addition, the
Miranda warnings were administered without the benefit of a sign language
interpreter. These factors must be considered when reviewing the trial court's
conclusion that the waiver of rights was knowing and voluntary.
Dr. Blair testified that paranoid schizophrenia affected the defendant's
ability to reason and comprehend. Dr. Seger testified that chronic glue sniffing over
a long period of time exacerbated paranoia in the defendant and interfered with the
effectiveness of his medications. Nonetheless, the defense experts, who voiced
"grave concerns" about his ability to comprehend his rights, were unable to say that
the defendant had not, in fact, understood his rights. While there was some
indication that the defendant had some difficulty reading the Miranda warnings and
explaining their meaning, the trial court concluded that the defendant's mental
illness did not affect his ability to understand his rights or voluntarily waive them.
Apparently, the defendant had sniffed glue throughout the day and
evening up to the time of the shooting. Arresting officers recalled that the defendant
was under the influence of glue when arrested and that the odor of glue emanating
from the defendant's truck was "strong." Empty tubes of glue and a plastic bag of
glue were recovered from the truck. The defendant maintained that had it not been
for the glue, he would have been able to read and understand the Miranda rights.
26
He also testified, however, that the effect of the glue was "going away" at about 2:30
A.M., when he read the waiver of rights form. His answers were generally
responsive and coherent despite the possibility that, according to Dr. Seger, the
defendant's chronic use of glue may have reduced his cognitive abilities. The trial
court determined that the defendant possessed above-average intelligence and was
able to comprehend questions and provide intelligent answers.
The defendant also argues that he did not fully understand his Miranda
warnings because he had no sign language interpreter. He concedes that he can
read, write, and read lips to some extent. He testified that he understands the
written word and sign language "the same." The trial judge, who heard all the
testimony, ruled that the defendant was capable of understanding and in fact did
understand his Miranda rights. In consequence, we find that the greater weight of
the evidence supports the trial court's conclusions that the defendant's waiver was
knowing and voluntary and that he was not so intoxicated nor mentally unsound as
to render the confession inadmissible.3
III
By challenging the constitutionality of portions of the statute governing
3
Our leg islature ha s enac ted laws th at are pa rticularly protec tive of dea f suspe cts.
Tennessee Code Annotated, section 24-1-103(b)(3) mandates a qualified interpreter for a deaf
suspect prior to custodial interrogation:
In the event a person who is deaf is arrested and taken into custody
for any alleged violation of a criminal law of this state, the arresting
officers and the arresting officer's superiors shall procure a qualified
interpreter in order to p roperly interro gate su ch dea f person and to
interpret such person's statements. No statement taken from such
dea f per son befo re an interp reter is pre sen t ma y be ad mis sible in
court.
At trial, the defendant did not claim protection under this statute. Moreover, the application of
the statute to these circumstances was neither asserted as a ground for a new trial nor argued as a
bas is for relief in the a ppe llate b rief. F ailure on th e par t of the defe nda nt to ra ise an issue on his
motion for new tria l requires w aiver. State v. Durham, 614 S.W .2d 815 ( Tenn . Crim. A pp. 1981 ).
Issues are waive d when not briefed . Tenn. R . App. P. 27 (a)(7); T enn. Ct. C rim. Ap p. R. 10.
27
the defense of insanity, the defendant presents issues of first impression. See
Tenn. Code Ann. § 39-11-501. The defendant argues that subpart (a), which
requires the defendant to prove insanity by clear and convincing proof,
unconstitutionally shifts the burden of proof to the defendant. He maintains that
subpart (c), which prohibits an expert witness from testifying that the defendant was
or was not insane, unconstitutionally limits his ability to present a defense.
Ultimately, the defendant complains of a denial of due process. The state's
response is twofold: first, the United States Supreme Court has found constitutional
similar statutes placing the burden of proof on the defendant; and second, the
defendant lacks standing to challenge subpart (c) or, if the defendant has standing,
limiting expert testimony on the ultimate issue passes constitutional muster.
When this issue was argued at the pretrial hearing, the trial court ruled
that the statute was constitutional, as follows:
With regard to Section (a) ... I believe there are two or
three U.S. Supreme Court cases that have ruled that
shifting the burden of proving insanity to the defendant
does not violate the United States Constitution. I am not
aware of any difference in our Tennessee Constitution of
1870 that would require a different ruling. ... Insanity was
not a defense prior to M[']Na[]ghten. And it was created
by the House of Lords in the case and has been, I think,
abolished in some states. So it's not a Constitutional
right one way or the other. Therefore, the Court does not
find Section (a) to be unconstitutional.
***
You gentlemen know what it is to prove a
circumstantial case. It means that you can't ask one
question. It does not mean that you cannot ask sixteen
questions and get the same results in front of the jury.
Simply, circumstantially prove, by questions asked the
witness, "Was he able to do this? Was he able to
comprehend that?" and so forth, to convince the jury of
this final question of whether the defendant could
appreciate the nature or wrongfulness of his act. It can't
be done in one question, but it can be done in several.
It does not prohibit this defense. It does not
prohibit expert testimony of this defense. It just makes it
harder.
Therefore, the Court rules that Section (c),
28
likewise, is constitutional, and the motion is respectfully
denied.
At the motion for new trial, the trial court ruled as the thirteenth juror that the
defendant had proved insanity only by a preponderance of the evidence and not by
clear and convincing evidence.
Until 1995, the statutory definition for insanity was as follows:
Insanity.--(a) 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 wrongfulness of the person's conduct or to
conform that conduct to the requirements of law.
(b) As used in this section, "mental disease or defect"
does not include any abnormality manifested only by
repeated criminal or otherwise antisocial conduct.
Tenn. Code Ann. § 39-11-501 (Repealed 1995). Moreover, until 1995, expert
witnesses could testify to an ultimate issue, including that of the defendant's mental
responsibility. Tenn. R. Evid. 704. In 1995, our legislature amended the insanity
statute in its entirety, as follows:
(a) It is an affirmative defense to prosecution that, at
the time of the commission of the acts constituting the
offense, the defendant, as a result of a severe mental
disease or defect, was unable to appreciate the nature or
wrongfulness of such defendant's acts. Mental disease
or defect does not otherwise constitute a defense. The
defendant has the burden of proving the defense of
insanity by clear and convincing evidence.
(b) As used in this section, "mental disease or defect"
does not include any abnormality manifested only by
repeated criminal or otherwise antisocial conduct.
(c) No expert witness may testify as to whether the
defendant was or was not insane as set forth in
subsection (a). Such ultimate issue is a matter for the
trier of fact alone.
Tenn. Code Ann. § 39-11-501 (emphasis added). Although Rule 704, Tenn. R.
Evid., was not amended to preclude expert testimony on the ultimate issue of
insanity, the 1996 Advisory Commission Comments recognize that such testimony
29
has been restricted under Tenn. Code Ann. § 39-11-501. It is well established that
a specific provision relating to a particular subject controls and takes precedence
over a general provision applicable to a multitude of subjects. State v. Black, 897
S.W.2d 680, 683 (Tenn. 1995).
The United States Supreme Court has ruled that a state may require a
defendant to prove the defense of insanity beyond a reasonable doubt without
resulting in a denial of due process under the federal constitution. Leland v.
Oregon, 343 U.S. 790 (1952). "It is axiomatic, therefore, that a lesser standard of
proof, such as the clear and convincing standard, may be imposed." United States
v. Amos, 803 F.2d 419, 421 (8th Cir. 1986). See also United States v. Freeman,
804 F.2d 1574 (11th Cir. 1986). In Freeman, the defendant challenged the burden
of proving insanity by clear and convincing evidence under the Insanity Defense
Reform Act of 1984. The Circuit Court held that the rule announced in Leland
compelled a determination that the clear and convincing evidence standard was
constitutional. 804 F.2d at 1576. The Insanity Defense Reform Act of 1984 is
similar to the statute challenged by the defendant.4
The defendant cites no authority that would require a different result
under the constitution of our state. Instead, he argues that the ruling in Leland is
called into question by the Supreme Court's more recent holding Cooper v.
Oklahoma, 517 U.S. 348, 116 S. Ct. 1373 (1996). We disagree. Cooper holds that
a defendant may not be required to prove incompetency to stand trial under the
4
(a) Affirmative defense.---It is an affirmative defense to the prosecution under any Federal
statute that, at the time of the commission of the acts constituting the offense, the defendant, as a
result of a severe mental disease or defect, was unable to appreciate the nature and quality or the
wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.
(b) Burden of proof.---The defendant has the burden of proving the defense of insanity by
clear and convincing proof.
18 U.S.C. § 17.
30
clear and convincing standard because to do so is "incompatible with the dictates of
due process." Cooper, 116 S. Ct. at 1384. The Court reasoned that historic and
modern practice as well as the fundamental interest at stake required a
preponderance of the evidence standard rather than one of clear and convincing
evidence for competency determinations. Cooper, 116 S. Ct. at 1377.
Here, the defendant contends that requiring him to prove insanity by
clear and convincing evidence "violates a fundamental principle of justice when ...
the defendant showed that more likely than not he was insane at the time of the
crime." We disagree. The Court in Cooper distinguished the nature of the interest
involved in proving incompetency from the burden of proof and procedural burdens
required to prove insanity. See id., 116 S. Ct. at 1383 (citing Patterson v. New York,
432 U.S. 197 (1977)). While the former warrants constitutional protection because it
is a fundamental and deeply rooted interest, the latter is simply legislatively
established. Id. We must, therefore, reject the defendant's contention that Cooper
requires a different result and, under Leland, we uphold the constitutionality of
subpart (a) requiring the defendant to prove insanity by clear and convincing
evidence.
Next, the defendant challenges subpart (c) of the statute. In response,
the state contends that the defendant has no standing to challenge the statute and
that a similar federal rule limiting expert testimony on the ultimate issue has been
declared constitutional. "[A] person has no standing to contest the constitutionality
of a statutory provision unless the provision[] he claims to be deficient has been
used to deprive him of his rights." State v. Purkey, 689 S.W.2d 196, 201 (Tenn.
Crim. App. 1984); State v. Vanzant, 659 S.W.2d 816 (Tenn. Crim. App. 1983); State
v. Pritchett, 621 S.W.2d 127 (Tenn. 1981). Although Dr. Blair ultimately determined
31
that this was a case in which the evidence supported an insanity defense, she was
not permitted to testify that the defendant was "insane" at the time of the offense. In
our assessment, the defendant has standing.
In his argument that Tenn. Code Ann. § 39-11-501(c)
unconstitutionally restricts the defense from presenting evidence to disprove the
mental element of the offense, the defendant relies upon State v. Phipps, 883
S.W.2d 138 (Tenn. 1994). In Phipps, this court held that a defendant has a
constitutional right to present evidence regarding his state of mind at the time of the
offense. 883 S.W.2d at 148-49. The evidence must be relevant to a mental
disease or defect and demonstrate a lack of capacity to form the required mental
state. State v. Hall, 958 S.W.2d 679, 689-90 (Tenn. 1997). While this court
recognizes that the defendant has a constitutional right to present evidence to
negate an element of the offense, the presentation of evidence is also subject to
reasonable limitation by the trial court. Phipps, 883 S.W.2d at 149 (citing U.S.
Const. Amend. V, VI, XIV; Tenn. Code Ann. § 39-11-201(a)); State v. Hutchison,
898 S.W.2d 161, 172 (Tenn. 1994).
Initially, federal circuit courts have upheld the constitutionality of the
Rule 704(b), Federal Rules of Evidence, which restricts expert testimony as to the
ultimate issue of insanity. The Eleventh Circuit determined that the rule applied
equally to the state and defense and did not prevent the defendant from presenting
evidence. Freeman, 804 F.2d at 1576; accord United States v. Blumberg, 961 F.2d
787, 789-90 (8th Cir. 1992). In Blumberg, the Eighth Circuit held that Rule 704(b),
Fed. R. Evid., does not offend due process or equal protection because the rule
does not exclude evidence and because the right to present witnesses, although
fundamental, is also limited: "Congress amended Rule 704(b) 'to eliminate the
32
confusing spectacle of competing expert witnesses [giving] directly contradictory
conclusions [about] the ultimate legal issue to be found by the trier of fact.'" Id. at
790 (quoting S.Rep. No. 225, 98th Cong., Ist. Sess. 230, reprinted in 1984
U.S.C.C.A.N. 3182, 3412) (alterations in original).
Second, this court must construe subpart (c) narrowly because of the
interests at stake. Although subpart (c) precludes an expert from testifying that the
defendant was, in fact, legally "insane" at the time of the commission of the offense,
the expert may testify that the defendant suffered from a severe mental disease or
defect. The expert may also state whether the defendant could have appreciated
the nature or wrongfulness of his conduct at the time of the offense. Subpart (c),
however, does prevent the expert from stating that the severe mental disease or
defect operated to prevent the defendant from appreciating the nature or
wrongfulness of his conduct. In that regard, the jury must render the ultimate
determination as to the effect of mental disease on the defendant's understanding of
his conduct at the time of the offense.
In summary, the clear and convincing standard does not deprive the
defendant of due process. Moreover, the provision prohibiting expert testimony on
the ultimate issue of insanity does not deny the defendant his right to present a
defense.
Accordingly, the judgment of the trial court is affirmed.
__________________________________
Gary R. Wade, Presiding Judge
33
CONCUR:
_________________________________
John H. Peay, Judge
_________________________________
James Curwood W itt, Jr., Judge
34