State v. Perry

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