            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                         MARCH SESSION, 1996              FILED
                                                          February 19, 1999

                                                     Cecil W. Crowson
STATE OF TENNESSEE,               )
                                                   Appellate Court Clerk
                                  )   No. 01C01-9508-CC-00270
      Appellee                    )
                                  )   RUTHERFORD COUNTY
vs.                               )
                                  )   Hon. J. S. Daniel, Judge
LAURA ANN HUDSON,                 )
                                  )   (Direct Appeal-First Degree Murder)
      Appellant                   )



For the Appellant:                    For the Appellee:

Gerald L. Melton                      John Knox Walkup
District Public Defender              Attorney General and Reporter
201 West Main Street, Suite 101
Murfreesboro, TN 37130                William David Bridgers
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      425 Fifth Avenue North
                                      2d Floor, Cordell Hull Building
                                      Nashville, TN 37243-0493


                                      Bill Whitsell
                                      District Attorney General
                                      Rutherford County Judicial Bldg.
                                      Murfreesboro, TN 37130




OPINION FILED:

REVERSED AND REMANDED



David G. Hayes
Judge
                                                   OPINION



       The appellant, Laura Ann Hudson, was convicted by a Rutherford County jury

of the first degree murder of her infant nephew and of arson to personal property.

Following the jury’s verdict, the appellant filed a motion for judgment of acquittal and

a motion for new trial. After taking the matter under advisement, the trial court

denied her motion for judgment of acquittal, but granted her motion for new trial on

the basis that the State failed to carry its burden of proof on the issue of insanity. In

this appeal, the appellant contends that the trial court erred in denying her motion

for judgment of acquittal. We hold that a new trial is not the appropriate remedy

when the trial court finds that the State did not meet its burden of proof; therefore,

the trial court erred in granting a new trial. Moreover, because we find that the State

of Tennessee failed to present sufficient evidence to support the jury’s finding that

the appellant was not insane, the appellant’s convictions for first degree murder and

setting fire to personal property are vacated and dismissed. This cause is

remanded to the trial court for entry of a judgment of “not guilty by reason of

insanity” and the initiation of proceedings under Tenn. Code Ann. § 33-7-303.




                                                Background



       On December 29, 1991, the appellant took her one month old nephew,

William Randall Youngblood, into a Buddhist Temple in Murfreesboro, and while

cradling the baby in her arms, shot and killed him.1 Because the appellant was

holding the baby at the time, she also wounded herself. The appellant then

attempted to set her vehicle on fire while she and the baby were inside. When

police officers arrived at the scene, the appellant was found lying on the ground

beside her vehicle, clutching the child in her arms. The appellant’s Bible was found


       1
           The infa nt susta ined two n ear gun shot wo unds to the poste rior of his left c hest.

                                                      2
nearby, opened to the Book of Psalms, Twenty-third Chapter. In the front of the

Bible, the following inscription was handwritten: “I, Laura, will die, but hope will live

for always for her father. I love my heavenly father and my brother for always, and I

hope will love heaven always. Hope will live always for our God almighty.” When an

officer approached, she confessed to the shooting, claiming, “God told me to.”



       Several days after the incident, the appellant gave the police a different

version of events. The appellant claimed that an anonymous caller had telephoned

her and asked if she could bring some gas to the Buddhist Temple. When she

arrived at the temple, the person shot her and the baby. However, when the police

challenged this story, she once again admitted shooting the child and stated that the

child was the son of Satan.    One officer testified at trial that the appellant “stated

that God told her in 1990 that the Devil’s baby would be born and that she was to kill

it.” The appellant also told officers that God gave her the baby in 1990, and she

gave the baby to her sister, who subsequently delivered him. The appellant added

that God had instructed her to bring the gasoline to “burn the Temple down” and to

“battle the Devil.” She explained her actions by the statement, “when God tells you

to do something you do it.”



       The appellant’s sister, Polly Youngblood, and her boyfriend, William Beeman,

were the parents of the young victim. Youngblood testified that she and her sister

had a close relationship, in which there was no animosity. When Youngblood

became pregnant with William, the appellant appeared very excited. The appellant

helped care for her sister when Youngblood began having problems with her

pregnancy and was present in the delivery room when William was born. The proof

revealed, on cross-examination, that the appellant was actually of little help to her

pregnant sister, as the appellant slept on the couch all day long, while Youngblood

was forced to carry in firewood. Youngblood testified that the appellant was “crazy”

about William and mothered the child as if he were her own.


                                           3
       On the Friday prior to the shooting, the appellant left her home in Kentucky

and arrived at her sister’s home for a visit. Both Youngblood and Beeman testified

that they noticed nothing unusual about the appellant, except that she repeatedly

offered to pay Youngblood and Beeman to spend the night at a hotel while she

stayed with the children. Youngblood and Beeman declined.



       The next day, the appellant expressed an interest in buying from her sister a

small pistol to give as a gift to her husband. Youngblood and Beeman agreed to sell

her the gun for $150, even though the gun’s value was much less. That night, the

appellant purchased ammunition for the gun at K-Mart. The gun was used to shoot

her nephew the following day.



       At the time of the incident, the appellant had recently undergone a

hysterectomy, and her children had moved away. The appellant had previously

suggested to her sister that she and her husband adopt William. The appellant had

also offered Beeman money or a motorcycle to leave Youngblood so that she could

live with her sister and the baby.



       Both Youngblood and Beeman testified that the appellant had become

increasingly religious before the offenses occurred. However, neither regarded the

appellant’s religious behavior as particularly unusual or odd. They testified that the

appellant appeared normal during her visit, with the exception that she was

depressed. In fact, Youngblood, on one occasion, telephoned the appellant’s

husband in Kentucky suggesting that the appellant seek psychiatric counseling.



       Both Youngblood and Beeman were astonished to learn that the appellant

had killed their child. When Youngblood confronted her sister after the shooting, the

appellant denied any involvement and claimed that someone else had shot her and




                                         4
William. Youngblood testified that her sister has never expressed any remorse over

her actions.



      The appellant’s husband, Joe Hudson, testified on behalf of the defense at

trial. He stated that the appellant had become very depressed in the three months

preceding the shooting, He testified that she slept during the day and stayed awake

at night. She also seemed disinterested in their marriage and was away from home

often. He also noted that, although the appellant was typically a religious person,

her interest in religion grew more intense in the months prior to the shooting.

Indeed, Hudson testified that, a few months prior to the shooting, the appellant

stated that she was God’s favorite angel and believed that she could see the future.

She also believed that she had a “face-to-face” conversation with God. After the

incident, Hudson noticed crosses and crucifixes hanging in all of the windows of

their home. Hudson further testified that he did not believe that his wife knew the

difference between right and wrong nor that she knew what she was doing at the

time she shot the child.



       Several of the appellant’s friends also testified for the defense. Patricia

Neighbors, a close friend of the appellant, stated that the appellant had become

withdrawn in the months preceding the shooting. Amanda Embry and her older

sister, Crystal, were also friends of the appellant. Amanda testified that the

appellant appeared normal just days prior to the incident, but noted that the

appellant advised her to avoid the Devil. Crystal, on the other hand, testified that

the appellant’s behavior was unusual in the days preceding the incident. She

remembered the appellant saying that she could feel her sister’s contractions when

she was pregnant with William. Crystal also recalled an incident where the

appellant brought china, jewelry and other items to Crystal’s home and broke them

over a garbage can. Further, the appellant asked Crystal if she would give her soul

to fight the Devil if God so asked her. Amanda and Crystal’s mother, Elizabeth


                                         5
Embry, testified that the appellant told her on two separate occasions that she was

being tormented by the Devil.



       Three expert witnesses were called to testify regarding the appellant’s sanity

at the time of the incident. All three experts testified that the appellant was insane

when the crimes were committed. All three agreed that the appellant was suffering

from the diagnosed mental illnesses of delusional disorder and depression. Dr.

Samuel Craddock, a clinical psychologist, evaluated the appellant during her month-

long stay at the Middle Tennessee Mental Health Institution (MTMHI) beginning in

October of 1992. Dr. Craddock opined that, at the time that he met with her, the

appellant was mildly depressed; however, she was not out of touch with reality as

the result of this depression. According to Craddock, the appellant was suffering

from delusional disorder at the time of the incident. Specifically, the appellant was

experiencing delusions that God directed her to kill her nephew. Craddock believed

that the appellant’s bizarre, deviant thinking had existed for a considerable period of

time prior to the shooting.



       Dr. Craddock testified that the appellant failed to appreciate the wrongfulness

of her actions as a result of the delusional disorder. However, Dr. Craddock was of

the opinion that the appellant could conform her conduct to the requirements of the

law.



       On cross-examination, the State’s questions and Craddock’s responses

revealed that Craddock had been misinformed by various family members and

friends giving background information on the appellant. Craddock acknowledged

that, if his evaluation were based on inaccurate information, his conclusion might

have been erroneous. He recognized that the appellant’s mother, as a psychiatric

technician in the Veteran’s Hospital, would be familiar with characteristics which

would create an insanity defense. He further agreed that there were many


                                         6
inconsistencies in the appellant’s behavior, an example of which being the

appellant’s loving and nurturing relationship with the child she claimed to be the

child of the Devil. Additionally, he testified that the appellant was able to

premeditate and deliberate, and the evidence indicated that the appellant had

planned the murder.



       Dr. Gillian Blair, a clinical psychologist, met with the appellant on three

separate occasions in April and May of 1992. She testified that the appellant

appeared emotionless and depressed and suffered from major depressive disorder

with psychotic features. Dr. Blair opined that, in the circumstances of W illiam’s

death, the appellant was unable to conform her conduct to the requirements of the

law. However, she stated that the appellant could appreciate the wrongfulness of

killing someone “in the abstract.”



       When confronted with the disparity in her opinion and that of Dr. Craddock,

Blair testified that the appellant’s ability to appreciate the wrongfulness of her

actions and to conform her conduct to the requirements of the law “kind of become

intertwined in that . . . her appreciation of what was right and what was wrong was

influenced by her delusional system and the command that she believed she had

from God.” However, she acknowledged that, in her opinion, the appellant could

appreciate that it was wrong to kill someone. Furthermore, she was surprised to

learn that Dr. Craddock believed that the appellant had the ability to conform her

conduct to the requirements of the law.



       On cross-examination, Dr. Blair testified that she only interviewed the

appellant and the appellant’s father for background information. Although Dr. Blair

testified that the appellant was withdrawn and introverted with distant and

“conflictual” family relationships, she was unaware that friends and family

considered the appellant to be friendly and outgoing with close family ties.


                                          7
Furthermore, in making her assessment of the appellant’s mental condition, Dr. Blair

did not consider that the appellant was considered “bossy” and “social” in her

interactions with other patients at MTMHI. Additionally, Dr. Blair thought it was

possible that the appellant, as a dependent personality, would have feelings of

resentment toward those close to her, including her sister.



       Dr. Ahmad Farooque, a staff psychiatrist at MTMHI, was the third expert

called by the defense. Dr. Farooque evaluated the appellant as part of a team with

Dr. Craddock. During her stay at MTMHI, Dr. Farooque saw the appellant seven or

eight times. He concluded that the appellant suffered from a delusional disorder.

He further opined that, as a result of this disorder, the appellant could not appreciate

the wrongfulness of her conduct and could not conform her conduct to the

requirements of the law.



       Dr. Farooque admitted on cross-examination that his report failed to express

his opinion that the appellant could not conform her conduct to the requirements of

the law. Although his report contained the opinion that the appellant failed to

appreciate the wrongfulness of her conduct only, Dr. Farooque insisted that he had

furnished a complete report to the court. When questioned as to why he failed to

include in his report that the appellant was unable to conform her conduct to the

requirements of the law, Dr. Farooque responded that he did not have time to

communicate this fact in his opinion.



       The State offered no proof in rebuttal.



       At the conclusion of the proof, the jury rejected the insanity defense and

returned guilty verdicts for one count of premeditated first degree murder and one

count of setting fire to personal property.




                                          8
       Following the jury’s verdict, the appellant filed a motion for judgment of

acquittal alleging that the State failed to carry its burden of proof on the question of

the appellant’s insanity. The appellant simultaneously moved for a new trial.

Although these motions were heard in July 1993, the trial court held them under

advisement until April 24, 1995. In the interim, the Tennessee Supreme Court

decided the cases of State v. Jackson, 890 S.W.2d 436 (Tenn. 1994) and State v.

Sparks, 891 S.W.2d 607 (Tenn. 1995). Both cases bear on the nature of the proof

required to rebut the defense of insanity. Although these cases do not alter the well-

settled principle that the State may rebut a claim of legal insanity solely through lay

testimony, the opinions hold that such lay testimony “must be consistent with sanity

and inconsistent with insanity.” Sparks, 891 S.W.2d at 616.



       On April 24, 1995, the trial court denied the motion for judgment of acquittal,

but granted the appellant a new trial. The trial court concluded that :

       [Jackson and Sparks] alter[] the capacity of the State to meet its
       burden when utilizing exclusively lay testimony. It appears from these
       most recent decisions that when expert testimony supports the
       defense of insanity, that lay opinion of witnesses must be supported by
       adequate foundation and the evidence offered by the lay witness must
       be consistent with sanity and not [sic] inconsistent with insanity. This
       standard renders it almost impossible for the State to succeed without
       the assistance of an expert when the mental disease or defect of
       paranoid schizophrenia is advanced because such persons often
       demonstrate conduct or action that would appear to be consistent with
       sanity when they are in effect not inconsistent with insanity as viewed
       by the professional experts in the field.

At the hearing on the motion, the trial court stated that the State lacked proof “to

carry out [its] burden of proof on the issue of sanity.” In its order, the trial court

concluded that it must grant a new trial since “this new standard was not addressed

by the State in the trial of this matter or met.”



       The appellant now brings this appeal from the denial of the motion for

judgment of acquittal and the grant of a new trial in lieu thereof.




                                           9
                                    Procedural Error



       Although the trial court determined that the State had not carried its burden

on the issue of sanity, it denied the appellant’s motion for judgment of acquittal.

However, the trial court granted the appellant’s motion for a new trial “to afford the

State an opportunity to prove the issue of sanity under the standards now

enunciated by the Tennessee Supreme Court” in Jackson and Sparks. Due to the

trial court’s ruling, this court deems it necessary to further clarify the distinction

between sufficiency of the evidence and the weight of the evidence.



       In Tibbs v. Florida, 457 U.S. 31, 102 S.Ct. 2211 (1982), the United States

Supreme Court discussed the distinction between evidentiary weight and

evidentiary sufficiency. The Court stated:

       a conviction rests upon insufficient evidence when, after viewing the
       evidence in the light most favorable to the prosecution, no rational
       factfinder could have found the defendant guilty beyond a reasonable
       doubt. A reversal based on the weight of the evidence, on the other
       hand, draws the appellate court into questions of credibility. The
       “weight of the evidence” refers to “a determination [by] the trier of fact
       that a greater amount of credible evidence supports one side of an
       issue or cause than the other.”

457 U.S. at 37-38, 102 S.Ct. at 2216. A finding of legal insufficiency “means that

the government’s case was so lacking that it should not have even been submitted

to the jury.” Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150 (1978)

(emphasis in original). However,

       [ a]n inquiry into the weight of the evidence is entirely different. The
       trial judge does not have to view the evidence in the light most
       favorable to the prosecution; he may weigh the evidence himself as if
       he were a juror and determine for himself the credibility of the
       witnesses and the preponderance of the evidence. As the Eighth
       Circuit stated in United States v. Lincoln, 630 F.2d 1313 (8th Cir.
       1980), even if the trial judge concludes that “Despite the abstract
       sufficiency of the evidence to sustain the verdict, [that] the evidence
       preponderates sufficiently heavily against the verdict that a serious
       miscarriage of justice may have occurred, [he] may set aside the
       verdict, grant a new trial, and submit the issues for determination by
       another jury.” Id. at 1319.




                                           10
State v. Johnson, 692 S.W.2d 412, 415 (Tenn. 1985) (Drowota, J., dissenting)

(emphasis in original).



         Under principles of double jeopardy, the State is precluded from retrying a

defendant where the trial court found insufficient evidence to sustain the conviction

and entered a judgment of acquittal. Burks v. United States, 437 U.S. at 18, 98

S.Ct. at 2150-51. However, if the trial court finds that the weight of the evidence

falls in favor of the defendant, he or she may be retried without violating double

jeopardy. Tibbs v. Florida, 457 U.S. at 44, 102 S.Ct. at 2219.



         When a trial court determines that the evidence is legally insufficient to

sustain a conviction, the court “shall order the entry of judgment of acquittal.” Tenn.

R. Crim. P. 29(a). However, if the trial court merely “disagrees with the jury about

the weight of the evidence,” the court is permitted to grant a new trial on that basis.

Tenn. R. Crim. P. 33(f). From this court’s review of the record, it is clear that the trial

court found that the State failed to carry its burden of proof on the issue of sanity

and, therefore, determined that the evidence was legally insufficient to sustain the

appellant’s conviction. Thus, the trial court erred in granting a new trial. It is now

the duty of this court to review the evidence to ascertain whether the evidence is,

indeed, insufficient to support a finding of sanity beyond a reasonable doubt.2




         2
          The trial co urt determ ined that Jackson and Sparks changed the State’s burden of proof
on the issue of insanity. The trial court expressed its belief that holding the State to this additional
burden would be inherently unfair in that this trial concluded prior to the release of Jackson and
Sparks. The refo re, the trial co urt gr ante d a ne w trial. If , in fac t, thes e cas es alt ered the S tate’s
burd en of proo f on th e issu e of in san ity, and there by cre ated a new cons titution al rule , that r ule
should have been applied retroactively to this case. “[N]ewly announced state constitutional rules
will be given retroactive application to cases which are still in the trial or appellate process at the
time such rules are anno unced, unless som e compe lling reason exists for not so doing.”
Mead ows v. S tate, 849 S.W .2d 748, 7 54 (Te nn. 1993 ). Jackson and Sparks do not modify the
State’s bu rden of p roof on th is issue, an d the doc trine of retro activity would, the refore, no t apply.
Infra.

                                                      11
                                         Insanity



         The question before this court is whether the State sufficiently established,

beyond a reasonable doubt, that the appellant was legally sane at the time the

offenses were committed. Insanity at the time an offense is committed is an

absolute defense to a crime. Indeed, “[i]nsanity 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 the law.” Tenn. Code Ann. § 39-11-

501(a)(1991) (amended 1995); Graham v. State, 547 S.W.2d 531, 543-544 (Tenn.

1977). It is clear from the statutory language that proof of either the “wrongfulness”

prong or the “volitional” prong resulting from a mental disease or defect is sufficient

to support an insanity defense. Id.



         The sanity of the accused is presumed. State v. Overbay, 874 S.W.2d 645,

650 (Tenn. Crim. App. 1993); Brooks v. State, 489 S.W.2d 70, 72 (Tenn. Crim. App.

1972). Thus, the accused bears the initial burden of proof. If the evidence raises a

reasonable doubt as to the sanity of the defendant, the State assumes the burden of

proving the defendant’s sanity beyond a reasonable doubt. State v. Sparks, 891

S.W.2d 607, 615 (Tenn. 1995). Once the burden has shifted to the State, sanity

becomes an essential element of the crime. Sparks, 891 S.W.2d at 616 (citations

omitted). There is no dispute that the appellant made an adequate prima facie

showing of insanity. Therefore, we proceed directly to the sufficiency of the State’s

proof.



         Again, in order to prove sanity, the State must prove either :

         (1) the defendant was not suffering from a mental illness at the time of
         the offense; or

         (2) the illness did not prevent the defendant from knowing the
         wrongfulness of his act and did not render the defendant substantially
         incapable of conforming his conduct to the requirements of the law.

                                          12
State v. Peevyhouse, No. 01C01-9409-CC-00307 (Tenn. Crim. App. at Nashville,

Mar. 22, 1996), perm. to appeal dismissed, (Tenn. Sept. 9, 1996) (citing Jackson,

890 S.W.2d at 440; Graham, 547 S.W.2d at 544). The State may show the sanity

of the defendant “through the use of expert testimony, lay testimony, or by showing

that the defendant’s behavior prior to, during, or after the commission of the crime

was consistent with sanity and inconsistent with insanity.” Sparks, 891 S.W.2d at

616; Peevyhouse, No. 01C01-9409-CC-00307 (citing Edwards v. State, 540

S.W.2d 641, 646 (Tenn. 1976), cert. denied, 492 U.S. 1061, 97 S.Ct. 784 (1977)).

Thus, “the jury is allowed to consider both lay and expert testimony as evidence,

and it may discount expert testimony which it finds to be in conflict with the facts of

the case.” Sparks, 891 S.W.2d at 616; see also Jackson, 890 S.W.2d at 440.



       Again, the appellant’s proof consisted of three mental health experts and

numerous lay witnesses. All three mental health experts testified that the appellant

was legally insane. Even though two of the experts disagreed as to which prong of

the legal insanity test applied to the appellant, Dr. Blair noted that, the nature of the

appellant’s mental illness, i.e., that God was directing her to perform certain acts,

would confuse the two prongs of appreciating the wrongfulness of her act and

conforming her conduct. See, e.g., Jackson, 890 S.W.2d at 441. Additionally, lay

witnesses presented by the defense related numerous incidents of the appellant’s

abnormal behavior.



       The State presented no evidence to rebut the defense proof regarding

insanity. Rather, the State relied upon its cross-examination of the expert

witnesses, which although tactically effective from a juror’s perspective, failed to

cause the experts to retreat from their initial diagnoses. The State also relied upon

the testimony of lay witnesses presented in their case-in-chief. However, the

testimony of the State’s lay witnesses is also supportive of the appellant’s bizarre

behavior, e.g., act of laying a crucifix on her pregnant sister’s stomach confirming


                                          13
that the child was the son of Satan, the appellant’s conversation with the Devil at a

bar, her staying up all night to color and sleeping throughout the day, her fascination

with becoming the queen of a motorcycle club and her face-to-face conversation

with God.



       Regardless of this bizarre behavior, lay testimony of a defendant’s normal

behavior, in and of itself, is insufficient to rebut the testimony of expert witnesses

when the mental illness or defect involved is of such a nature that the appellant

would behave normally and would not exhibit any signs of mental illness unless

specifically questioned as to that defect. See Sparks, 891 S.W.2d at 617; Jackson,

890 S.W .2d at 441. In the present case, for example, for a lay witness to perceive

the appellant’s mental illness, that witness would have to specifically question the

appellant as to whether she spoke with God. Neither Beeman nor Youngblood ever

questioned the appellant regarding her relationship with God. Thus, although the

State’s proof was, to a large extent, consistent with sanity, we cannot conclude that

it was entirely inconsistent with insanity.



       We conclude that the State has failed to prove that the appellant was capable

of appreciating the wrongfulness of her conduct and conforming her conduct to the

requirements of the law. As a consequence, the evidence was not sufficient to

warrant any rational finder of fact to find the existence of each of the elements of

first degree murder beyond a reasonable doubt. Accordingly, the conviction entered

by the jury is reversed and vacated. This cause is remanded for entry of a judgment

of “not guilty by reason of insanity” and the initiation of proceedings under Tenn.

Code Ann. § 33-7-303.




                                          14
                            ____________________________________
                            DAVID G. HAYES, Judge




CONCUR:



_______________________________
JERRY L. SMITH, Judge


_______________________________
WILLIAM S. RUSSELL, Special Judge




                                    15
