           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT JACKSON              FILED
                            AUGUST SESSION, 1999
                                                           December 29, 1999

STATE OF TENNESSEE,            )                       Cecil Crowson, Jr.
                                      C.C.A. NO. W1998-00583-CCA-R3-CD
                               )                      Appellate Court Clerk
      Appellee,                )
                               )
                               )      SHELBY COUNTY
VS.                            )
                               )      HON. JOSEPH DAILEY
JAMES MORROW,                  )      JUDGE
                               )
      Appellant.               )      (Direct Appeal- First Degree Murder)



FOR THE APPELLANT:                    FOR THE APPELLEE:

R. PRICE HARRIS                       PAUL G. SUMMERS
100 North Main, Suite 926             Attorney General & Reporter
Memphis, TN 38103
                                      PATRICIA C. KUSSMANN
                                      Assistant Attorney General
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      WILLIAM L. GIBBONS
                                      District Attorney General
                                      EDWARD PETERSON
                                      Assistant District Attorney
                                      201 Poplar Avenue
                                      Memphis, TN 38103




OPINION FILED ________________________

AFFIRMED
JERRY L. SMITH, JUDGE
                                   OPINION

      On July 6, 1998, following a benc h trial, in the Shelby County Criminal

Court, James Morrow was convicted of two (2) counts o f first degree murd er.

This appeal raises the following issues:

      (1)W hether th e eviden ce was legally sufficien t to convict the defend ant;

      (2)Whether the trial court erred in den ying defens e coun sel’s mo tion to
      withdraw from the case;

      (3)Whether the trial cou rt shou ld have supp resse d the d efend ant’s
      confession; and

      (4)Whether the cour t erred in allo wing the state to ca ll lay witnesse s to
      rebut expert testimony without giving prior notice to the defense.

The judgment of the trial court is affirmed.



                     FACTUAL BACKGROUND
      On June 21, 1996, James Morrow (“appellant” or “defendant”) called 911

and told the operator that he had stabbed his wife and son to death, and that he

had attempted to commit suicide. Police, responding to the call, arrived at the

defen dant’s house and found both the defendant’s wife, Velma, and his son,

Jerrell, dead as the result of multiple knife woun ds. Th e defe ndan t was s evere ly

injured.   Medical personnel arrived shortly thereafter and transported the

defendant to a hospital where he was treated for multiple self-inflicted knife

wounds and the apparent ingestion of a household cleaning solution.

      Two days later, p olice officers q uestio ned th e defe ndan t at the h ospita l.

After waiving his Miranda rights, the defendant told the police that he had killed

his wife and son because he was suffering from d elusio ns at th e time . This

statem ent was typed by th e police a nd signe d by the d efenda nt.

      The defen dant w as ind icted in December, 1996, and the trial court ordered

a psyc hiatric evaluation to determine whether the defendant was competent to

stand trial. Dr. Wyatt Nichols, a clinical psychologist, found that although the

defendant was competent to stand trial, he was insane at the time of the killings.

                                         -2-
The state proce eded to hire a sec ond ps ycholog ist, Dr. Edw ard W ise.          After

conducting several interviews with the defendant and re searc hing th e defe ndan t’s

medic al backg round, D r. Wis e conc urred with Dr. Nich ols’ earlier res ult.

       On April 8, 1998, the defendant waived his right to a jury trial, and a bench

trial comm enced . First, the State Medical Examiner testified that althou gh both

victims died from multiple stab wounds, they each probably remained alive for

some time while being stabbed. Next, a police officer who arrived on the scene

testified that the defendant calmly asked the officer to shoot him and became

angry when the officer did not. The officer who questioned the defendant in the

hospital testified that the defendant waived his Miranda rights a nd volu ntarily

confes sed to the murde rs. After this te stimon y, the state re sted.

       The defense called Dr. Nichols, who testified that in his opinion the

defendant was insa ne at the tim e of the ho micides . After a thorough cross-

examination, howe ver, Dr . Nicho ls adm itted tha t the killing s cou ld have been the

result of jealousy, not insanity. The defense then called Dr. Wise to testify.

Unfortunate ly, Dr. W ise’s sche dule con flicted with the court’s, and the remainder

of the tria l was re sche duled to acc omm odate Dr. W ise’s sc hedu le.

       The trial did not resume until July 6, 1998, alm ost three mo nths later.

During the recess, the defendant and his attorney apparently had a

disagreement. Both the defendant and his attorney filed separate motions asking

the trial court to allow the defense counsel to withdraw and to appo int new

coun sel.   When the trial resumed, the court denied those motions, and the

defense continued presenting its case.

       The defense called Dr. Wise who testified that he, too, was of the opinion

that the defendant was insane at the time of the commission of the offenses. On

cross-examination, Dr. W ise reje cted th e hypo thesis that the killings w ere a re sult

of the defendant’s jealousy. The defense then rested.

       In rebuttal, the state called seven (7) witnesses to rebut the experts’

conclusions that insanity, not jealousy, precipitated the crime. All of these

witnesses testified to see ing an d/or he aring s pecific instances of the defen dant’s

                                           -3-
jealous, controlling behavior before the killings took place.        The trial court

convicted the defen dant an d sente nced h im to two concu rrent life sen tences .



                        SUFFICIENCY OF THE EVIDENCE

       The appellant contends that, given the evidence at tria l, no rationa l fact-

finder could have concluded that the appellant was legally sane when he

murdered his wife and son. He also asserts that the trial judge erred by ignoring

the we ight of th e evide nce p resen ted at tria l.

       Although this case was a bench trial, the findings o f the trial judge who

conducted the proceeding carry the same weight as a jury verdict. State v. T ate,

615 S.W.2d 161, 162 (Tenn. Crim. App. 1981). Thus, on appeal, the state is

entitled to the strongest legitimate view of the evidence and all reasonable

inferences which m ay be dra wn there from. State v.Cabbage, 571 S.W.2d 832,

835 (Tenn. 1978).        When the sufficiency of the evidence is challenged, the

relevant question is wheth er, after reviewing the evidence in a light most

favorable to the state, any rational trier of fact could have found the essential

eleme nts of the c rime b eyond a reas onab le doubt. Jackson v. Virgin ia, 443 U.S.

307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (19 79); State v. Cazes, 875 S.W.2d 253

(Tenn. 1994), cert. denied, 513 U.S . 1086, 11 5 S. Ct. 74 3, 130 L . Ed. 2d 644

(1995) ; Ten n. R. App. P. 1 3(e).

       Moreover, questions concerning the cred ibility of the witnesses, the weight

and value to be given the evidence, as well as all factual issues raised by the

evidence, are resolved by the trier of fact, not th is Court. State v. Pappas, 754

S.W.2d 620, 623 (Tenn. Crim. App. 1987). This Court may no t reweigh or

reevalua te the evide nce. Cabbage, 571 S.W .2d at 835 .

       First degree murder is “[a] premeditated and intentional killing of anothe r.”

Tenn. Code. Ann. § 39-13-202(a)(1)(Supp. 1995). “‘Premeditation’ means that

the intent to kill must have been formed prior to the act itself. It is not necessa ry

that the purpose to kill pre-exist in the mind of the accused for any definite period

of time.” T enn. C ode. An n. § 39-1 3-202(d )(Supp . 1996).        Finally , the fact

                                            -4-
finder may in fer pre med itation fro m the circum stanc es su rroun ding th e killing.

State v. Gentry, 881 S.W .2d 1, 3 (T enn. C rim. App . 1993).

        In this case , the state presented uncontoverted evidence that the

defendant killed his wife and son inten tionally and with prem editation. T he state

played a 911 tape in which the de fenda nt calm ly told the operator that he killed

the victims becau se “they chose to die.” The state also introduced the

defen dant’s signed confession in which the defendant articulated his reasons,

formed before the ac t, for killing the victims. He also told police th at he ha d to

chase his son down the hall to finish killing him. The medical examiner explained

that both victims had been stabb ed num erous times . Thus, the judg e had m ore

than enough eviden ce to c onvict th e defe ndan t if he was sane at the time of the

killings.

        The defendant claims, however, that the trial judge erred in not agreeing

with two experts who testified that the defendant was legally insane at the time

of the killings. Insanity at the time an offense is committed is an abso lute

defense to a crime .         State v. Sparks, 891 S.W .2d 607, 615 (Tenn. 199 5).

Tennessee defines insanity as “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 b y clear an d convin cing evide nce.” Tenn. Code. Ann. § 39-11-

501(a)(Su pp. 1996). 1

        At trial, the defendant presented two experts who testified that, at the time

of the offense, the de fenda nt was legally insane. Although the state did not offer

any contrary expert testimony, it did offer rebuttal by lay-witnesses. The thrust

of this rebuttal and of the state’s cross-examination of the d efens e’s experts was


  1
    Although a crim inal defen dant has always be en pres ume d sane , prior to 199 5 he only ha d to
present prima facie evidence to the contrary. The burden then shifted to the state to prove, beyond a
reasonable doubt, that the defendant was sane at the time of the offense. In 1995 the Le gislature
amended Tennessee Code Annotated Section 39-11-501 to place the burden of proof of insanity on
the defe ndant.

                                                 -5-
that the action s of the de fendan t were m ore likely tho se of a jealous, controlling

husba nd than that of an in sane p erson.

           The fact-finder “is allowed to consider both lay and expert testimony as

evidence, and it may d iscou nt expe rt testim ony wh ich it find s to be in conflict with

the facts of the case.” Sparks, 891 S.W.2d at 616. Accordingly, the judge, acting

as fact finder, had both the prerogative and the duty to evaluate the credibility of

all       witnes ses a nd to c redit the testimony as he saw fit.       In this case, he

specifically stated that he found the de fense ’s experts’ theories implausible but

found the state’s witnesses credible. We will not second guess the trial ju dge’s

findings in this regard.

           This issu e is withou t merit.




                                SUBSTITUTION OF COUNSEL
           The defendant next contends that the trial court erred in denying his motion

to allow defense counsel to withdraw and have new counsel appointed after his

relation ship with his attor ney had deteriora ted.           We must disagree with the

defend ant on this point.

           In this case, the timing of the trial was unusual. The trial commenced

without a jury on Ap ril 8, 1998. Th e state conclud ed its direct proof on tha t day,

and the defense called the first expert to testify. After the first expert testified , it

became clear that the defense would need to call a second expert. In ord er to

accom moda te the second expert’s sched ule, the trial court adjou rned a nd did not

resume until Ju ly 6, 1998. In the interim (May 22, 1998), the defendant filed a pro

se motion to have his appointed attorney replaced with new coun sel.                 The

defendant also filed a civil suit against the appointed attorney for malpractice and

breach of promise.2 Several days later, the de fense a ttorney filed a motion to




      2
       The record is unclear as to when the suit was filed.

                                                     -6-
withdraw as counsel. The defendant’s attorney renewed her motion on the day

the trial resu med, a nd the jud ge den ied relief.

       A defend ant who reques ts the substitution of defense counsel bears the

burden of dem onstrating that           (1) counsel’s representation is ineffective,

inadequate, and falls below the range of competency expected in criminal

representation; (2) the defendant and appo inted counsel have been embroiled

in an irrec oncila ble co nflict; or (3 ) com mun ications between the defendant and

counsel have c omp letely broken down. State v. Gilmore, 823 S.W.2d 566, 568-

69 (Tenn . Crim. A pp. 1991 ). A defe ndan t’s refus al to co opera te with c ouns el,

however, does not jus tify subs tituting c ouns el. State v. McClennon, 669 S.W.2d

705, 70 7 (Ten n. Crim. A pp. 198 4).

       A trial judge m ay perm it the withdra wal of an a ttorney ap pointed to

represent an indigent defendant in a crimin al case fo r good c ause. Tenn. Code

Ann. § 40-14 -205 (1 990). H e has wide d iscretio n, how ever, in matters regarding

the appo intme nt and relief of c ouns el, and his actio n will not be set aside on

appeal unless a plain abuse of that discretion is shown . State v. Branam, 855

S.W.2d 563, 566 (Tenn. 1993); State v. Rub io, 746 S.W.2d 732, 737 (Tenn.

Crim . App. 1987).     Here, the trial judge did not abuse his discretion when he

found no bas is for requirin g appo intmen t of new co unsel. H e listened to th e

defense counsel’s arguments that her relationship with the defendant had

become acrimonious and that the defendant had filed a civil suit ag ainst her. In

response, the cour t found tha t the coun sel’s perfo rmanc e was m ore than

adequ ate and that any breakdown in communications between the defendant and

his attorney was n ot severe enough to require substitution o f counsel. The court

also found that the request was an improper one to make in the m iddle o f trial,

because

       [if the filing of a civil suit necessitated substitution of
       coun sel] then in the middle of any trial that was h eard in
       these courts if a defendan t didn’t like how things we re
       going or wanted to reset this matter for six months, [he
       would only ne ed to] w alk acr oss th e stree t and file a civil
       suit, and boom, the attorney’s gone and the case is reset.


                                  -7-
          The appellant also asse rts that h is filing of a civil suit ag ainst h is

attorney midw ay thro ugh th e trial cre ated a conflict of interest that required

appointment of new counsel. An actual conflict, rather than a mere p ossibility

of a conflict, mus t exist in o rder to implica te the d efend ant’s Sixth Amendment

rights.     Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1717-19, 64

L.Ed.2d 333 (1980). Furthermore, the appellant must show that the actual

conflict adversely affected the lawyer's performance. Id.; Netters v . State, 957

S.W.2d 844, 848 (Tenn. Crim. App. 1997). Assuming arguendo that the

lawsu it created an actual conflict of interest for the attorney, the appellant has

not demonstrated how it affected his attorne y’s perform ance. State v. Street,

768 S.W.2d 703, 708 (Tenn. Crim. App.1988). Indeed, the trial judge found

that the defense lawyer performed “extreme ly well.” Based on the record

before this Court, we agree w ith that ass essm ent. For these reasons we find

no revers ible erro r in con nectio n with th e trial court's rulin g on c ouns el's

motion to withdraw.

          This issu e is withou t merit.



              SUPPRESSION OF DEFENDANT’S STATEMENT
          The appellant also claims that the trial court should not have a llowed his

confession to be presented at trial. The defendant did not object to the

admission of his sta teme nt at trial o r raise th e issue in his motion for new trial.

Thus, this issue has been waived. Tenn R. App. P. 3(e); State v. Coker, 746

S.W.2d 167, 17 3 (Ten n. 1987 ), cert. denied, 488 U.S. 871, 109 S.Ct. 180, 102

L.Ed.2d 149 (19 88); State v. McPherson, 882 S.W.2d 365, 373 (Tenn. Crim.

App. 1994). Further, the record of the su ppres sion h earing is not in the record

on appeal. Thus, we cannot reach the merits of the issue even absent the

waiver. State v. Banes, 874 S.W .2d 73, 82 (T enn. Crim. A pp. 1993).

          This issu e is withou t merit.



                              SCOPE OF REBUTTAL
                                           -8-
         The defendant claims the trial court should not have allowed the state

to call several rebuttal witnesses, all of whom testified that they had seen the

defendant threate n his w ife, his w ife’s co- worke r, or oth erwise act jea lously

and/or controlling the past. The defendant claims these witnesses did not

rebut the defense of insanity, but were actually case-in-chief witnesses used

by the prosecution to establish a motive for the murders.             As such the

defendant maintains he should have been given pre-trial notice that these

witnesses would testify, an d that th e testim ony is in adm issible b ecau se it is

not true rebu ttal testimo ny. See, State v. Jones, 1987 WL 25401 (Tenn. Crim.

App. 1987 ). W e mu st disa gree w ith the d efend ant’s a ssertio ns in this regard.



         W e have consistently held that any competent evidence which explains

or is a direct reply to or a contradiction of material evidence introduced by the

accused is admissible in rebuttal. State v. S mith, 735 S.W.2d 831, 835-36

(Tenn. Crim. A pp. 198 7); State v. Jones, 1987 WL 25401 (Tenn. Crim. App.

1987).     Furthermo re, the scope of rebuttal evidence lies within the sound

discretion of the trial judge, and his or her decision will not be disturbed

absent abuse. State v. Scott, 735 S.W .2d 825, 828 (Tenn. Crim . App. 1987 ).

Finally, it is well-settled that lay witnesses m ay be called to re but expert

testimony.     Edwards v. State, 540 S.W .2d 641 , 646 (T enn. 19 76), cert.

denied, 429 U.S. 10 61, 97 S.C t. 784, 50 L.Ed.2 d 777 (197 7).



         In this case both defense experts testified that they rejected the notion

that the defendant killed his wife and son in a jealo us, controlling rage.

Specifically, Dr. Nich ols testified th at, although he co nside red the hypoth esis

that the defendant may have killed the victims because he was jealous, he

thought the defenda nt’s temporary ins anity, not his jealousy, led to the killings.

He also testified that he knew the defendant had a history of jealous behavior

and knew th e nature of the defe ndant’s p rior beha vior. Dr. Wise agreed. The

rebuttal witnesses were called to establish the extent of the jealous behavior

                                         -9-
that the defendan t exhibited before the crime.           Each one refuted a key

assumption on wh ich the defen se exp erts relie d in form ing the ir opinions that

the murders were a result of insanity, not jealousy. For example, one witness

testified that the defendant had lied to Dr. Nichols about his correspondence

with the witness. Another testified that she had seen the defendant threaten

to kill a man he susp ected o f having a n affair with th e defen dant’s wife . It is

clear that this testimony was proper rebuttal to the defense expert’s testimon y.

Thus, the trial court was within its discretion when it allowed these witnesses

to testify without prior notice to the defe nse. See State v. Teel, 793 S.W.2d

236, 24 6 (Ten n. 1990 ) This issu e is withou t merit.



       Accordingly, the judgment of the trial court is AFFIRMED.



                                          ______________________________
                                          JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
DAVID H. WELLES, JUDGE


___________________________________
JAMES CURWOOD WITT, JR., JUDGE




                                        -10-
