        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                  June 9, 2015 Session

          STATE OF TENNESSEE v. LESERGIO DURAN WILSON

                   Appeal from the Criminal Court for Davidson County
                   No. 2010-B-1227   Cheryl A. Blackburn, Judge


              No. M2014-01487-CCA-R9-CD – Filed September 2, 2015


The Defendant-Appellant, Lesergio Duran Wilson, was charged with first degree
premeditated murder, and the State filed its notice of intent to seek the death penalty.
Wilson then filed a notice of intent to introduce expert testimony regarding his mental
diseases, defects, and other mental conditions bearing on his guilt for the charged offense,
and the State filed a motion to exclude this expert testimony. Following an evidentiary
hearing, the trial court granted the State‘s motion. In this interlocutory appeal, Wilson
argues that the trial court erred in ruling that he could not present expert testimony during
the guilt/innocence phase of trial regarding his incapacity to form the requisite culpable
mental states for the offense. Upon review, we affirm the judgment of the trial court and
remand this matter for further proceedings consistent with this opinion.

Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Criminal Court Affirmed
                                  and Remanded

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and JOHN EVERETT WILLIAMS, J., joined.

Paul Bruno, Brentwood, Tennessee, and Luke A. Evans, Murfreesboro, Tennessee, for
the Defendant-Appellant, Lesergio Duran Wilson.

Robert E. Cooper, Jr., Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Victor S. Johnson, III, District Attorney General; and Thomas B.
Thurman, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

       On October 14, 2009, David Hurst was fatally shot inside a trailer he shared with
his girlfriend, Doris Williams. Following his apprehension, Wilson admitted to police
that he fired the shots after Williams1 offered to pay him $1,000 to kill Hurst, who she
claimed had been abusing her. Less than twenty-four hours prior to the shooting, Wilson
stole a vehicle that he and his girlfriend later drove to Williams‘s trailer. He brought a
gun and rubber gloves with him to the scene of the shooting. When Wilson arrived at
Williams‘s home, he sat in the stolen vehicle for a short time before entering the
unlocked front door of the trailer. He walked into the bedroom, placed a pillow over
Hurst, and shot Hurst multiple times through the pillow, ostensibly for the purpose of
reducing the sound of the gunshots. Before Wilson arrived, Williams staged the trailer to
look as if a robbery had occurred. After the shooting, Williams gave Wilson more than
$500 dollars but less than the $1000 they had agreed upon, and she asked Wilson to spray
her in the face with a can of mace to make the staged robbery look more believable,
which he did. He then fled the trailer and abandoned the stolen vehicle near the Percy
Priest Dam. Wilson was subsequently charged with first degree premeditated murder.

        Following his indictment, Wilson filed written notice pursuant to Tennessee Rule
of Criminal Procedure 12.2(b) of his intent to introduce expert testimony from Dr.
Jonathan Lipman and Dr. Susan Rich ―relating to mental diseases, defects and other
mental conditions of Mr. Wilson bearing on the issue of his guilt of the offense of first
degree premeditated murder charged in this indictment.‖ The State then filed a motion to
exclude this testimony on the basis that it was irrelevant, that it was mere speculation
regarding Wilson‘s state of mind at the time of the offense, and that it was inadmissible
pursuant to Hall and its progeny. On May 30, 2014, the trial court conducted an
evidentiary hearing on the State‘s motion, during which both Dr. Rich and Dr. Lipman
testified.

        Dr. Joseph Lipman, a Ph.D in neuropharmacology, was tendered as an expert in
the field of neuropharmacology without objection from the State. Dr. Lipman stated that
neuropharmacology deals with the effects of drugs and alcohol on nerve brain behavior.
He explained that ―an individual‘s chronic drug use is very, very important in
understanding how a drug will affect [a person] at some later time‖ because the person
carries with them the injuries caused by the drug use. He noted that Wilson began
smoking marijuana cigarettes rolled with either crack or powder cocaine at age eight or
nine, began drinking alcohol at age ten, began regularly smoking marijuana and drinking
alcohol without limitation at age thirteen and fourteen, used cocaine as frequently as he
could obtain it at age sixteen, and later abused Xanax and ecstasy. Dr. Lipman stated that
in addition to the impairments Wilson received while in utero from his mother‘s drug and


        1
            We acknowledge that we do not use titles when referring to every witness. We intend no
disrespect in doing so. Judge John Everett Williams believes that referring to witnesses without proper
titles is disrespectful even though none is intended. He would prefer that every adult witness be referred
to as Mr. or Mrs. or by his or her proper title.
                                                   -2-
alcohol abuse, Wilson‘s own drug use during his developmental years altered his brain
development.

       Dr. Lipman determined, based on accounts from Alicia Williams and Yvonne
Holt, that Wilson was in a constant state of intoxication and was openly using ecstasy and
Xanax in 2009, the year of the offense. He said that ecstasy users often took Xanax, a
tranquilizer, because they believed that it would mitigate the adverse effects of their
ecstasy use; however, in reality, Xanax caused individuals to have anxiety, paranoia, and
psychosis and led to further addiction of ecstasy when chronically used. Dr. Lipman
admitted he did not have any ―qualitative numbers‖ regarding Wilson‘s level of
intoxication or any specific information about Wilson‘s drug use during the day or night
of the offense; however, he said witnesses had disclosed that Wilson was ―popping pills
back to back‖ and was ―drinking continuously morning to night and through the night on
those nights that he didn‘t go to sleep.‖ Moreover, during Dr. Lipman‘s examination of
him, Wilson admitted that he was a daily user of ecstasy and alcohol. Dr. Lipman said
there was no indication that Wilson did not ingest alcohol or ecstasy on the day of the
victim‘s death.

       When Dr. Lipman asked Alicia Williams, Wilson‘s girlfriend, about the effects of
Wilson‘s alcohol and drug abuse in 2009, Williams stated that Wilson ―couldn‘t sit still‖
and was ―paranoid.‖ Alicia Williams described an incident when a SWAT team came to
Wilson‘s neighborhood to extract a neighbor who had barricaded himself in his house.
When the SWAT team arrived, Wilson began cursing and behaving in a disorderly
manner. When Wilson‘s family was unable to get Wilson under control because of his
intoxication, officers took Wilson into custody for his own safety and the safety of all
persons in the area.

       Dr. Lipman‘s report, which was entered as an exhibit during the hearing, stated
that during the period preceding the victim‘s murder, Wilson was abusing alcohol and
ecstasy and that his intoxication from these substances ―would have compounded the
underlying neuropsychological impairments (inherited, traumatic, developmental or
organic in nature) from which [Wilson] also suffered at the time.‖ He stated that
Wilson‘s alcohol abuse caused ―disinhibition, and render[ed] the individual more
impulsive, less capable of self[-]control, and more perserverative,‖ which meant that the
person was unable ―to stop an act once initiated, despite a change in circumstance that
render[ed] the act unadvisable.‖ He also said that Wilson‘s abuse of ecstasy was
―associated with sleep disorders, depressed mood, persistent elevation of anxiety,
impulsiveness and hostility and selective impairment of episodic memory, working
memory and attention, with cognitive deficits persisting for at least 6 months after
abstinence and anxiety and hostility remitting after a year of abstinence.‖

                                           -3-
       When asked at the hearing if he had an opinion as to Wilson‘s capacity to
formulate the requisite culpable mental state for first degree murder based on his
intoxication, Dr. Lipman replied:

              It would have to have been impaired. I‘m not a lawyer so that I
       think you probably have to be completely unconscious to have no culpable
       mental state. I don‘t think that‘s what the law is really asking. Somewhere
       between total unconsciousness and normality there is a region of
       impairment, and he was certainly in that region of impairment.

        Dr. Lipman stated that if premeditation meant something that involved ―the
application of intelligence, cognitive abilities, the ability to think, [and] judge,‖ then
Wilson‘s ability to do these things ―would have been quite dramatically impaired.‖ He
added that if Wilson was as intoxicated and as under the influence of ecstasy as
witnesses described, he would be ―extremely confused,‖ his ―perceptions would be
distorted,‖ and his ―ability to think clearly would be very, very degraded.‖ Moreover, the
ill effects from his alcohol and ecstasy use would be worsened by his substance abuse
history and his genetic predilection for addiction. In addition, regarding Wilson‘s
capacity to act intentionally in causing the victim‘s death, he stated that Wilson‘s ―ability
to formulate plans . . . and fully understand consequences is even now impaired‖ based
on recent neuropsychological and other tests and that ―when you add alcohol to that, you
further degrade his ability on those domains.‖

       On cross-examination, Dr. Lipman stated that as a neuropharmacologist, he could
provide an opinion as to ―[Wilson‘s] intoxication and the effect on his thinking.‖
However, because he was not a psychologist or a psychiatrist, he could not give an
opinion as to whether Wilson had any mental diseases or defects at the time of the
offense. He acknowledged that he could not state within a reasonable degree of medical
certainty what Wilson‘s level of intoxication was on the night of the murder because he
did not have any blood or breath testing. He conceded that, even after interviewing
Wilson, he had no specific information about what alcohol or drugs Wilson ingested on
the day of the murder.

       Dr. Lipman admitted that Wilson never told the police he was intoxicated the night
of the victim‘s murder. He also admitted that Alicia Williams informed the police that
she and Wilson had not ingested any drugs the night of the offense, and that although
they had been drinking, Wilson was fine, normal, and not nervous the night of the
murder, even though she told police that she and Wilson had gotten drunk and high on
drugs at other times. Dr. Lipman acknowledged that Alicia Williams told him there were
times when Wilson was not under the influence of alcohol or drugs because he did not
have money to purchase these substances. He also acknowledged that Wilson had been
                                             -4-
employed for nearly two years around the time of the victim‘s death but asserted that
Wilson‘s employment was ―erratic.‖

       Although Dr. Lipman asserted that the impairment from alcohol and drugs could
―outlast the presence of the natural chemical in the blood,‖ he acknowledged that Wilson
was able to function at a certain level despite his brain injuries from drinking and drugs.
Moreover, he conceded that although Wilson was stopped by police several times, he was
never charged with driving under the influence; however, he stated that ―more than fifty
percent of chronic alcoholics can escape casual detection by trained people.‖
Furthermore, Dr. Lipman recognized that although Wilson had received medical
treatment four times near the date of the murder, the medical records associated with this
treatment never indicated that Wilson was under the influence of alcohol or drugs during
these visits. Dr. Lipman admitted that there were times when Wilson was more
competent than others.

       Dr. Lipman acknowledged that Wilson stole a vehicle and drove it to the scene of
the murder, obtained a gun, wore gloves so that he would not leave fingerprints, used a
pillow to attempt to muffle the sound of the gunshots, fired five shots into the victim,
collected money for killing the victim, and sprayed mace on Williams to make the
murder appear as though it were a home invasion. Despite these acknowledgements, he
asserted that it would have required very little cognitive effort for Wilson to steal a car
and that Wilson was merely carrying out Doris Williams‘s scheme the night of the
Hurst‘s death. Although Dr. Lipman recognized that Wilson was unable to drink on the
days he did not have money, he asserted that a person who chronically drinks is
―massively impaired‖ even on the days they are not drinking because certain
neuropsychological functions take at least three months of abstinence before they are
recovered.

        When the trial court asked him whether Wilson was incapable of premeditating the
victim‘s death or intentionally killing the victim, Dr. Lipman replied, ―As [to] that
question . . . , I think the individual would have to be unconscious to be incapable [of
premeditating or acting with intent to kill the victim].‖ He said he was unable to opine
that Wilson was incapable of forming the requisite culpable mental states at the time of
the offense and could only state that Wilson‘s capacity to do so was impaired from the
chronicity of his substance abuse. When asked by the court if he was precluded from
asserting that Wilson was suffering from a mental disease or defect because he was a
neuropharmacologist, Dr. Lipman replied, ―That‘s a statutory matter, and in Tennessee I
can‘t. . . . In other places I can.‖2
       2
           Dr. Lipman, a PhD in neuropharmacology, was likely precluded from testifying that Wilson
suffered from a mental disease or defect because he was not qualified by ―knowledge, skill, experience,
training, or education‖ to render such an opinion. See Tenn. R. Evid. 702.
                                                 -5-
        Dr. Susan Rich, a psychiatrist, was tendered as an expert in the field of child,
adolescent, and adult psychiatry without objection from the State. She stated that she
obtained a Tennessee medical license so that she could conduct a neuropsychiatric
examination of Wilson.          Dr. Rich testified that Wilson suffered from a
neurodevelopmental disorder associated with prenatal alcohol exposure (ND-PAE) called
fetal alcohol spectrum disorder (FASD), a psychotic disorder, a panic disorder, a post-
traumatic-stress disorder, an alcohol use disorder, a cannabis use disorder, and a
stimulant use disorder, each of which she deemed to be a severe mental disease or defect
that ―impaired his functioning.‖ She stated that Wilson‘s brain injuries, along with his
substance abuse from a young age, caused him to have adaptive functioning deficits
qualifying him for intellectual disability at a mild level. These adaptive functioning
deficits affected the way Wilson ―perceives the world, the way that he interacts with
other people, the way that he picks up on social cues, misinterprets social cues, the way
that he communicates with other people, the way that he understands their
communication, the way that he reacts in certain situations.‖

       Dr. Rich asserted that the ND-PAE, which caused damage to Wilson‘s brain, had
psychotic features including delusions and hallucinations that were often confused with
schizophrenia. She noted that Wilson believed he was sending out messages from each
of the tattoos on his body. She said Wilson often counted the number of objects in a
room, and if the number was an even number, he believed the day would be a good one.
She also said Wilson insisted on leaving the volume of the television on an even-
numbered level. Dr. Rich asserted that Wilson had a bizarre appearance and affect and
would often smile inappropriately during a conversation based on the issues being
discussed. In addition, she stated that Wilson believed that he was invincible based on
his four failed attempts at suicide.

       Dr. Rich‘s report, which was also entered as an exhibit during the hearing, stated
that ―[b]ased on Mr. Wilson‘s underlying brain damage, neuropsychiatric conditions, and
impaired functioning, it is my clinical opinion that Mr. Wilson suffers from severe mental
diseases and defects that could have impaired his ability to act with premeditation in the
murder of David Hurst.‖ Her report explained how she reached this opinion:

      [B]ecause of [Wilson‘s] mental defects, he was unable to fully appreciate
      his own feelings (i.e., alexithymia) and was further dissociated from the
      events associated with this crime. As a result, his capacity to appreciate the
      criminality of his conduct was substantially impaired. It is also my opinion
      that his mental defects caused him to be highly suggestible to the influence
      of others, and substantially impaired his ability to control his impulses.
      Finally, his mental defects substantially impaired his ability to appreciate
                                           -6-
       the consequences of his actions, and to make decisions using reflection and
       judgment.

        In her report, Dr. Rich also asserted, ―It is also my opinion that if Mr. Wilson was
intoxicated during the commission of that offense, it is even more likely that his ability to
act with premeditation in the commission of that offense was impaired.‖ She provided
the following explanation for this opinion in her report:

       Undoubtedly, Mr. Wilson suffers from significant baseline deficits in his
       mental functioning—particularly in his consequential thinking, lack of
       impulse control, suggestibility, disinhibition, and socialization skills—as a
       result of his brain damage and neuropsychiatric deficits (ND-PAE;
       Psychotic Disorder; PTSD; Panic Disorder). These baseline conditions
       exist when he is completely sober and free of any intoxicants. When Mr.
       Wilson uses intoxicants (including alcohol and ecstasy pills), the negative
       impacts of his mental deficits are greatly exacerbated (made worse), and
       intoxication further deteriorates his ability to act with reflection and
       judgment.

       At the hearing, when asked what effect Wilson‘s mental diseases and defects had
on his ability to premeditate the victim‘s murder, Dr. Rich stated:

              Well, in my belief for this particular crime he would have had
       difficulty to the extent of all of the arrangements that were made in
       formulating such an elaborate plan. And based on his intellectual capacity,
       based on his incapacitation due to intoxication I believe he would have a
       very difficult time and that it would have been impossible.

She added, ―[M]y clinical opinion is that a person with his degree of brain damage and
his degree of intoxication from alcohol and ecstasy at the time of the event [based on Dr.
Lipman‘s report] . . . is that it would be very difficult for him to have such an elaborate
plan himself, create that himself, and implement it.‖ Defense counsel and Dr. Rich then
had the following exchange regarding Wilson‘s capacity to premeditate the victim‘s
murder:

       Q.     . . . Do you think that he lacked the capacity to form the requisite
              culpable mental state to commit the offense charged in this case?

       A.     I do.



                                             -7-
       Dr. Rich stated that Wilson‘s false belief that he was invincible, along with his
impaired functioning from his brain damage, ―impaired his ability to really even
understand what he was doing . . . at the time this offense was committed.‖ Instead, she
believed that any acts done by Wilson on the day of the victim‘s death would have been
―involuntary‖ and would have been done as if Wilson were ―on auto pilot.‖ She also said
that Wilson‘s ―degree of incapacity based on [his] baseline brain functioning
superimposed with the intoxication on the day of the event I believe impaired his ability
to form an intent.‖ She added, ―I believe that it did impact his ability to form an intent
and his ability to premeditate, to create such an elaborate plan.‖

      On cross-examination, the State asked Dr. Rich about Wilson‘s capacity to
premeditate the victim‘s murder:

      Q.     Now, let me—just looking at your report you‘re not saying that he‘s
      absolutely incapable of premeditation because of mental disease or defect,
      are you?

      A.     At any given time on a day that he‘s not also intoxicated and using
      ecstasy and everything else, but on the day of this event I do believe he was
      [incapable of premeditation].

She stated that she heavily relied on Dr. Lipman‘s report as to the degree of Wilson‘s
intoxication on the day of the offense when she made her determination regarding
Wilson‘s incapacity to premeditate. However, she acknowledged there was no scientific
proof of Wilson‘s intoxication on the night of the offense. As cross-examination
continued, Dr. Rich retreated from her prior opinion that Wilson lacked the capacity to
premeditate and to act intentionally at the time of the offense:

      Q.     So is he able to form the intent to rob people out there to get money?
             He knew if you go over and hold a gun on somebody they give their
             money and you go back?

      A.     I think on any given day—you know, again, on the day of the
             offense, as I stated in my report, these issues [including Wilson‘s
             mental diseases and defects, intoxication, and drug use] could have .
             . . impaired his ability to . . . premeditate these actions. I didn‘t say
             it did because I would have had to be there and evaluate him on that
             particular day.

      Q.     Okay.

                                            -8-
      A.     And I wasn‘t there.

      ....

      Q.     But basically it would have to be for one of three people that saw
             him that particular night at the time of the murder or himself that
             would actually know his real condition; is that correct? There‘s no
             test medically that you can go back several years and determine if a
             person was intoxicated?

      A.     I mean, I guess what you‘re saying is—and that‘s what I had just
             said. I wasn‘t there on the day of [the offense to observe whether
             Wilson was intoxicated].

      Q.     I understand.

      A.     And that‘s why I said it could have impacted his ability to
             premeditate, you know, that his mental defects and his mental status
             as well as his intoxication could have impacted his ability to
             premeditate.

       The trial court also questioned Dr. Rich about whether she believed Wilson lacked
the capacity to premeditate and to act intentionally at the time he killed the victim:

      Q.     [R]eading your report it says if he was intoxicated. Now, let‘s do
             that one first. If he was intoxicated, it could have impacted or
             affected his ability to premeditate or to form the intent; is that right?
             It could have?

      A.     (Witness moves head up and down [in the affirmative].)

      Q.     Are you saying that it did or that it completely eroded his ability to
             do that?

      A.     If he was [intoxicated].

      Q.     Okay. But if he was [intoxicated]. But would it have completely
             made him incapable of [forming premeditation or intent]?

      A.     In my clinical opinion I believe so.


                                            -9-
Q.   But that‘s not what your report says.

A.   Well, my report—

Q.   The report says it could have [impaired his ability to act with
     premeditation in the murder]—and you just testified it could have
     impacted [his ability to premeditate or to form intent]. If he was
     intoxicated, it could have. That‘s different than the question just
     asked you. Would it have made him incapable of [premeditating the
     murder]?

A.   So this is why I wrote ―could have‖ because I was not there.

Q.   Okay. I know. But the question I‘m asking you is would you testify
     that he was—if he was intoxicated, was he incapable of forming . . .
     premeditation or an intent to commit this crime?

A.   Again, I don‘t mean to—

Q.   It‘s an important question. I mean, I don‘t know what your answer
     is. I‘m just trying to find out. Would he be totally incapable of
     [premeditating] in your opinion if he was intoxicated?

A.   If a person with this degree of brain damage was intoxicated to the
     point that Dr. Lipman says that he lived in a constant state of, you
     know, in his report—but, again, I am—I am basing my answer on
     something that isn‘t–.

Q.   No, no.

A.   –my knowledge.

Q.   I guess the thing is presuming that he was intoxicated and given the
     background of all these other things that you‘ve found would he be
     incapable of forming an intent? . . . Not that it affected him but
     would he be incapable of forming the intent or to premeditate? You
     said it diminished his ability. You said it could have impaired his
     ability. All that is fine. I‘m just trying to see if you have an opinion.
     You may not, I don‘t know.

A.   I mean, as I stated, you know, earlier, if I had evidence—if I had
                                   -10-
             strong evidence, you know, so the if is if—

      Q.     Not looking at the if.

      A.     Right.

      Q.     I‘m looking at the incapability.

      A.     Right. I understand that. The only reason that I say ―could‖ is that I
             wasn‘t there and I don‘t have the data.

      ....

      Q.     So if he wasn‘t, though, intoxicated and all you have is all the other
             things [regarding his mental diseases and defects], would he be
             incapable of [premeditating]? Incapable is the term I‘m looking at.

      A.     You know, I think it would be easier for him to make a better
             judgment and to be able to, you know—I mean, a little bit reason
             through what he was going to do on a day that he was not inebriated.

       Following the hearing, the trial court entered an order on June 16, 2014, granting
the State‘s motion to exclude the testimony of Dr. Rich and Dr. Lipman regarding
Wilson‘s mental diseases, defects, or other mental conditions bearing on the issue of his
guilty for first degree premeditated murder. The trial court found that Dr. Lipman was
unable to testify that Wilson suffered from a mental disease or defect. It noted Dr.
Lipman‘s opinion that only a person who was unconscious would be unable to act
intentionally and with premeditation and that Wilson did not meet this standard. The
court also found that neither Dr. Lipman nor Dr. Rich ―stat[ed] conclusively that a mental
disease or defect rendered [Wilson] incapable of acting intentionally and with
premeditation in this case.‖ The trial court cited the following three instances where Dr.
Rich testified that Wilson‘s mental diseases or defects made him incapable of forming the
requisite mental state for the offense:

      During direct examination:

      Q.     . . . Do you think that he lacked the capacity to form the requisite
             culpable mental state to commit the offense charged in this case?

      A.     I do.

                                           -11-
During cross-examination:

Q.     Now, let me—just looking at your report you‘re not saying that he‘s
       absolutely incapable of premeditation because of mental disease or
       defect, are you?

A.     At any given time on a day that he‘s not also intoxicated and using
       ecstasy and everything else, but on the day of this event I do believe
       he was [incapable of premeditation].

On questioning by the trial court:

Q.     [R]eading your report it says if he was intoxicated. Now, let‘s do
       that one first. If he was intoxicated, it could have impacted or
       affected his ability to premeditate or to form the intent; is that right?
       It could have?

A.     (Witness moves head up and down [in the affirmative].)

Q.     Are you saying that it did or that it completely eroded his ability to
       do that?

A.     If he was [intoxicated].

Q.     Okay. But if he was [intoxicated]. But would it have completely
       made him incapable of [forming premeditation or intent]?

A.     In my clinical opinion I believe so.

Q.     But that‘s not what your report says.

A.     Well, my report—

Q.     The report says it could have [impaired his ability to act with
       premeditation in the murder]—and you just testified it could have
       impacted [his ability to premeditate or to form intent]. If he was
       intoxicated, it could have. That‘s different than the question just
       asked you. Would it have made him incapable of [premeditating the
       murder]?

A.     So this is why I wrote ―could have‖ because I was not there.
                                     -12-
        The trial court noted that ―while in the three isolated instances outlined above Dr.
Rich did state that the defendant‘s fetal alcohol syndrome-related disorders did constitute
a mental disease or defect that rendered the defendant wholly unable to form the requisite
mental state, the overwhelming majority of her testimony reflected the conclusions she
reached in her report; the defendant‘s mental deficits, combined with intoxication (if the
defendant was in fact intoxicated) may well have substantially impaired the defendant‘s
ability to premeditate, act intentionally, and understand the consequences of his actions.‖
The court found that the expert testimony in this case was similar to the expert testimony
in State v. Faulkner, 154 S.W.3d 48, 56-57 (Tenn. 2005), State v. Antonio D. Idellfonso-
Diaz, No. M2006-00203-CCA-R9-CD, 2006 WL 3093207 (Tenn. Crim. App. Nov. 1,
2006), and State v. Tray Dontacc Chaney, No. W2013-00914-CCA-R9-CD, 2014 WL
2016655 (Tenn. Crim. App. May 14, 2014), perm. app. denied (Tenn. Sept. 18, 2014), in
that Dr. Lipman‘s and Dr. Rich‘s testimony fell short of stating that Wilson was
―completely unable to form the requisite mental state‖ because of a mental disease or
defect as required by State v. Hall, 958 S.W.2d 679 (Tenn. 1997).

        On July 16, 2014, Wilson filed a motion for an appeal pursuant to Tennessee Rule
of Appellate Procedure 9, which the trial court granted on July 24, 2014. After obtaining
a thirty-day extension of time to file an application for an interlocutory appeal, Wilson
timely filed his application on September 3, 2014, and this court granted the application
for a Rule 9 interlocutory appeal.

                                       ANALYSIS

        In this interlocutory appeal, Wilson argues that his expert testimony is admissible
during the guilt/innocence phase of trial because it meets the standard for admissibility in
State v. Hall, State v. Ferrell, and State v. Tray Dontacc Chaney. The pretrial hearing
that resulted in the court‘s interlocutory order, Wilson‘s Rule 9 application, and Wilson‘s
appellate brief contain no arguments regarding his competency to stand trial or whether
he will pursue an insanity or intoxication defense. Although Wilson contends that his
mental diseases and defects, along with his intoxication at the time of the offense,
negated his capacity to form the requisite mental states for the offense, he has limited his
argument to Hall and its progeny from the pretrial hearing forward and has failed to
reference any authority or make any arguments regarding a voluntary intoxication
defense. See Tenn. Ct. Crim. App. R. 10(b); see also Tenn. R. App. P. 27(a)(7). Much of
the expert testimony in this case applies not only to Wilson‘s capacity to form the
requisite mental state for the offense because of a mental disease or defect but also to
potential issues regarding his competency to stand trial, his sanity, and his voluntary
intoxication at the time of the offense. Nevertheless, because Wilson has failed to
include any arguments or authority regarding his competency to stand trial or an insanity
                                            -13-
or intoxication defense, these issues are not properly before this court. See State v.
Schaller, 975 S.W.2d 313, 318 (Tenn. Crim. App. 1997) (citing State v. Hammons, 737
S.W.2d 549, 552 (Tenn. Crim. App. 1987)).

        Herein, Wilson contends that the trial court abused its discretion in excluding Dr.
Lipman‘s and Dr. Rich‘s testimony because this testimony meets the standard for
admissibility outlined in State v. Hall, State v. Ferrell, 277 S.W.3d 372 (Tenn. 2009), and
State v. Tray Dontacc Chaney. Referencing Dr. Rich‘s testimony on direct and cross-
examination, he asks this court to consider whether Hall stands for the proposition that an
expert‘s testimony is wholly inadmissible at trial ―if upon cross-examination, the mental
health expert provides any arguably conflicting testimony on the question of the absolute
inability of the defendant to form the requisite mental state.‖ Alternatively, he asks this
court to consider ―whether due process, in the context of a capital case, warrants that the
defense be allowed to introduce proof negating intent and premeditation, regardless of
whether the proof is an absolute inability to form the requisite mental state, or a matter of
degree of that inability.‖ As support, Wilson asserts that ―[i]t appears . . . absent a person
being unconscious on one end of the spectrum or legally insane at the other end of the
spectrum (resulting in an outright not guilty verdict at either end), that a defendant is not
able to present proof negating intent and premeditation.‖

        Because Wilson‘s issue regarding his due process right to present a defense was
not presented to the trial court or considered in the trial court‘s order, which is the basis
for this appeal, it is not properly before this court. See Tray Dontacc Chaney, 2014 WL
2016655, at *9 (concluding that the defendant‘s new arguments regarding pattern jury
instructions and due process rights associated with the admissibility of expert testimony
could not be raised on appeal because they were not ―not made by the defendant in the
proceedings before the trial court or ruled upon by that court‖). Therefore, the only issue
on appeal is whether the expert testimony in this case meets the standard of admissibility
set out in Hall, Ferrell, and Tray Dontacc Chaney.

        As we will explain, we are constrained to conclude that the trial court did not
abuse its discretion in granting the State‘s motion to exclude Dr. Lipman‘s and Dr. Rich‘s
testimony from the guilt/innocence phase of trial. However, we express our concern
regarding the controlling authority that requires us to reach this decision. First, Hall and
its progeny create an almost impossible standard of admissibility for such expert
testimony. Because almost no experts testifying in good faith can meet this standard, we
fully acknowledge that many defendants are deprived of presenting the only meaningful
defense they have to the crime. But see State v. Brown, 29 S.W.3d 427, 432 (Tenn.
2000) (asserting that while the right to present witnesses in defense is of great
importance, it is not absolute and must yield to other legitimate interests in the criminal
trial process, including compliance with established rules of procedure and evidence that
                                            -14-
assure fairness and reliability in the determination of guilt and innocence); State v.
Anthony Poole, No. W2007-00447-CCA-R3-CD, 2009 WL 1025868, at *10 (Tenn.
Crim. App. Apr. 14, 2009) (―Even considering the accused‘s right to present a defense,
the testimony offered by the witness [regarding the defendant‘s capacity to form the
requisite mental state because of a mental disease or defect] must be relevant, reliable,
and material‖ (citing Brown, 29 S.W.3d at 434)). We further acknowledge that this
standard essentially requires defendants to prove that they are insane, or as Wilson
argues, unconscious, before being allowed to present expert testimony during the
guilt/innocence phase regarding their capacity to form the requisite mental state. See
Tray Dontacc Chaney, 2014 WL 2016655, at *3 (psychologist testified that it would be
very difficult for any expert to testify that a defendant completely lacked the capacity to
premeditate unless the defendant had a severe level of psychosis resulting in a disconnect
with reality, which would make him borderline insane). It is our belief that evidence
affecting the defendant‘s capacity to form the requisite mental state is relevant and should
be considered and weighed by the jury during the guilt/innocence phase of trial.
Nevertheless, as in all cases before this court, we are bound to follow existing precedent.

       Expert evidence negating the requisite culpable mental state for an offense is
subject to the relevancy standards in Rules 401 through 403 and the standards for expert
testimony in Rules 702 and 703 of the Tennessee Rules of Evidence. See Hall, 958
S.W.2d at 689. In Hall, the Tennessee Supreme Court held that assuming that the
aforementioned general relevancy standards and standards governing expert testimony
are satisfied, ―psychiatric evidence that the defendant lacks the capacity, because of
mental disease or defect, to form the requisite culpable mental state to commit the offense
charged is admissible under Tennessee law.‖ Id.; see Ferrell, 277 S.W.3d at 379. This
standard is predicated on the fundamental right of due process that ―[n]o person may be
convicted of an offense unless . . . [t]he culpable mental state required is proven beyond
a reasonable doubt.‖ Hall, 958 S.W.2d at 689 (quoting T.C.A. § 39-11-201(a)(2)). The
court stressed that the defendant‘s inability to form the requisite culpable mental state had
to be the product of a mental disease or defect, rather than an emotional state or mental
condition:

       [W]e emphasize that the psychiatric testimony must demonstrate that the
       defendant‘s inability to form the requisite culpable mental state was the
       product of a mental disease or defect, not just a particular emotional state or
       mental condition. It is the showing of lack of capacity to form the requisite
       culpable mental intent that is central to evaluating the admissibility of
       expert psychiatric testimony on the issue.




                                            -15-
Hall, 958 S.W.2d at 690 (citing State v. Shelton, 854 S.W.2d 116, 122 (Tenn. Crim. App.
1992); see Faulkner, 154 S.W.3d at 56-57. While the use of such evidence is not a
defense to a crime, it is a rule of evidence that allows proof of the defendant‘s mental
disease or defect to negate the requisite culpable mental state:

       The rule of diminished capacity originated in Scotland more than a century
       ago and was designed ―to reduce the punishment of the ‗partially insane‘
       from murder to culpable homicide, a non-capital offense.‖ State v. Wilcox,
       70 Ohio St.2d 182, 436 N.E.2d 523, 525 (1982). The doctrine was widely
       accepted in other countries before it gained acceptance in American
       jurisdictions. Id. In modern application, diminished capacity is not
       considered a justification or excuse for a crime, but rather an attempt to
       prove that the defendant, incapable of the requisite intent of the crime
       charged, is innocent of that crime but most likely guilty of a lesser included
       offense. United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990).
       Thus, a defendant claiming diminished capacity contemplates full
       responsibility, but only for the crime actually committed. State v. Padilla,
       347 P.2d 312 (N.M. 1959). In other words, ―diminished capacity‖ is
       actually a defendant‘s presentation of expert, psychiatric evidence aimed at
       negating the requisite culpable mental state. ―Properly understood, it is . . .
       not a defense at all but merely a rule of evidence.‖ United States v. Pohlot,
       827 F.2d 889, 897 (3rd Cir. 1987).

Hall, 958 S.W.2d at 688-89. The court asserted that such evidence should not be offered
as proof of diminished capacity; instead, it should be presented as evidence relevant to
negate the existence of the culpable mental state required for the offense. Id. at 690.

       Although proof that a defendant lacked the capacity to form the requisite mental
state because of a mental disease or defect is admissible, expert testimony regarding a
personality type is not relevant to the defendant‘s capacity to form the mental state of the
offense and is, therefore, inadmissible:

       ―Society is comprised of myriad individuals with diverse personalities and
       temperaments who are jointly and severally bound by society‘s common
       codes of conduct and responsibility. The mere fact that one is more apt, by
       personality type, to become emotional in response to a particular stimulus
       does not provide a means for that person to be absolved from the same
       responsibility to which the law holds another who might be less apt to
       respond as passionately to the same stimulus. If it did, then each person
       would be the law unto him or herself based solely upon his or her particular
       personality makeup.‖
                                            -16-
Id. at 691-92 (quoting State v. Leroy Hall, Jr., No. 03C01-9303-CR-00065, 1996 WL
740822, at *18 (Tenn. Crim. App., at Knoxville, Dec. 30, 1996)). Therefore, an expert
offering evidence to negate a requisite culpable mental state must show: (1) the
defendant had a mental disease or defect, and (2) the defendant‘s inability to form the
requisite culpable mental state was because of the defendant‘s mental disease or defect,
rather than the defendant‘s emotional state or mental condition. See Hall, 958 S.W.2d at
689-90; Faulkner, 154 S.W.3d at 56-57.

       An expert‘s testimony in the form of an opinion is not objectionable merely
because it concerns an ultimate issue to be determined by the trier of fact. See State v.
Shuck, 953 S.W.2d 662, 668-69 (Tenn. 1997) (citing City of Columbia v. C.F.W. Const.
Co., 557 S.W.2d 734, 742 (Tenn. 1977)); see also Tenn. R. Evid. 704. ―In Tennessee the
only ultimate issue about which an expert explicitly cannot offer an opinion is whether
the defendant was or was not sane at the time of commission of the criminal offense.‖
Shuck, 953 S.W.2d at 663 n.3 (citing T.C.A. § 39-11-501(c)). Therefore, it is appropriate
for experts to testify regarding the ultimate issue in a case in which the defendant‘s
mental disease or defect prevented him from acting intentionally, knowingly, recklessly
or with premeditation. See State v. Robert Austin, No. W2005-01963-CCA-R3-CD,
2007 WL 2624399, at *5 (Tenn. Crim. App. Sept. 10, 2007).

        In State v. Ferrell, 277 S.W.3d at 377, the court considered whether the trial court
abused its discretion in excluding the testimony of Dr. Adams, a family medicine
physician, regarding the defendant‘s capacity to form the mental state required for
escape—intentional, knowing, or reckless. At a pre-trial hearing, Dr. Adams testified
that the defendant, who suffered from a condition of organic brain syndrome, was not
―competent to intentionally commit a crime that requires [any degree of] planning . . .‖
and was unaware of ―the full consequences of [his] action.‖ Id. at 380-81. The trial court
excluded this expert testimony from trial based on its mistaken belief that a jury could not
consider testimony regarding a defendant‘s capacity to form the requisite mental state in
a ―non-specific intent crime.‖ Id. at 376. In considering this case, the supreme court
reiterated that the admissibility of expert testimony largely rests within the discretion of
the trial court, and a trial court‘s ruling on appeal will not be overturned absent a finding
that it had abused its discretion. Id. at 378 (citing State v. Copeland, 226 S.W.3d 287,
301 (Tenn. 2007); State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993)). However, it
asserted that ―[n]othing in Hall limited its application to psychiatric testimony or
specifically precluded other forms of expert testimony regarding a defendant‘s capacity
to form a requisite mental state.‖ Id. at 379. Moreover, it concluded that it was improper
―to distinguish between specific and general intent offenses or otherwise limit a
defendant‘s ability to negate an element of the offense.‖ Id. at 380. Consequently, it held
that the trial court abused its discretion by excluding Dr. Adam‘s testimony:
                                            -17-
              This testimony from a long-term medical provider directly addressed
       whether the Defendant acted intentionally, knowingly, or recklessly as
       required to commit escape, an essential element of the crime. . . . Unlike the
       Court of Criminal Appeals, we view Dr. Adams‘ testimony as probative on
       each of the alternative mental states required to support the offense of
       escape. The evidence should have been considered by the jury. Moreover,
       the exclusion of the testimony divested the Defendant of any real
       opportunity to present his only meaningful defense to the crime. Because
       the error more likely than not affected the result, a new trial is the
       appropriate remedy. See Rodriguez, 254 S.W.3d at 378.

Id. at 380.

        It is well established that a mental disease or defect that impairs or reduces a
defendant‘s capacity to form the requisite culpable mental state for the offense does not
satisfy the two-prong test under Hall. See Tray Dontacc Chaney, 2014 WL 2016655, at
*9 (concluding that the testimony from a psychologist, who opined that the defendant‘s
psychological problems ―eroded his capacity to premeditate‖ but who could not state that
that the defendant‘s capacity to do so ―was completely eroded,‖ was inadmissible under
Hall); State v. Herbert Michael Merritt, No. E2011-01348-CCA-R3-CD, 2013 WL
1189092, at *27 (Tenn. Crim. App. Mar. 22, 2013) (holding that a clinical psychologist‘s
testimony that the defendant‘s mental disease or defect ―impaired or reduced his capacity
to form the requisite mental state . . . did not satisfy the two-prong requirement of Hall
and Faulkner‖); Anthony Poole, 2009 WL 1025868, at *11 (concluding that the
testimony from a clinical psychologist, who stated that the defendant‘s mental defects
impacted his capacity to form the requisite mental state for the offense, was irrelevant
and inadmissible pursuant to Hall); Antonio D. Idellfonso-Diaz, 2006 WL 3093207, at *4
(holding that a psychiatrist‘s testimony that the defendant‘s serious psychiatric disorders
―impaired to some extent‖ his capacity to premeditate or act intentionally did not meet
the two-prong requirement in Hall and Faulkner).

        In this case, the trial court noted that Dr. Lipman was unable to testify that Wilson
suffered from a mental disease or defect. In granting the State‘s motion to exclude this
testimony, it found that neither Dr. Lipman nor Dr. Rich ―stat[ed] conclusively that a
mental disease or defect rendered [Wilson] incapable of acting intentionally and with
premeditation in this case.‖ Specifically, the trial court held that because the experts in
this case did not testify that Wilson was ―completely unable to form the requisite mental
state,‖ their testimony was inadmissible under Hall. Interestingly, the court noted that the
proposed testimony of Dr. Lipman and Dr. Rich could potentially relate to an intoxication
defense. See T.C.A. § 39-11-503(a); Wiley v. State, 183 S.W.3d 317, 333 (Tenn. 2006);
                                            -18-
Compare T.P.I.—Crim. § 40.02 Defense: Intoxication (2014), with T.P.I.—Crim. §
42.22 Evidence of mental state (2014). However, because Wilson‘s Rule 12.2 notice and
the State‘s motion that were the subject of the court‘s order did not specifically address
the issue of an intoxication defense and whether the expert testimony was relevant and
admissible regarding such a defense, the court declined to address that issue in its order.

        Wilson contends that the trial court abused its discretion in excluding Dr.
Lipman‘s and Dr. Rich‘s testimony because this testimony met the standard for
admissibility established in Hall, Ferrell, and Tray Dontacc Chaney. Focusing on Dr.
Rich‘s testimony, he questions whether Hall stands for the proposition that an expert‘s
testimony is wholly inadmissible at trial ―if upon cross-examination, the mental health
expert provides any arguably conflicting testimony on the question of the absolute
inability of the defendant to form the requisite mental state.‖

       Wilson is charged with first degree premeditated murder, which is defined as ―[a]
premeditated and intentional killing of another.‖ T.C.A. § 39-13-202(a)(1). See id. § 39-
13-202(a)(1). Premeditation is defined as ―an act done after the exercise of reflection and
judgment.‖ Id. § 39-13-202(d). ―‗Intentional‘ refers to a person who acts intentionally
with respect to the nature of the conduct or to a result of the conduct when it is the
person‘s conscious objective or desire to engage in the conduct or cause the result.‖ Id. §
39-11-302(a). In order for their testimony to be admissible at trial, Dr. Lipman and Dr.
Rich had to testify that Wilson suffered from a mental disease or defect that rendered him
incapable of premeditating the victim‘s death or acting intentionally in killing the victim.

        We conclude that Dr. Lipman‘s testimony did not satisfy the test in Hall. He
stated that he was precluded from testifying that Wilson suffered from a mental disease or
defect because he was not a psychiatrist or psychologist. Dr. Lipman asserted his belief
that an individual would have to be unconscious to be incapable of having a culpable
mental state and that Wilson was not unconscious at the time of the offense.
Consequently, he never testified that Wilson was incapable of premeditating the victim‘s
death or acting intentionally in killing the victim. Instead, Dr. Lipman opined that
Wilson‘s ability to premeditate the victim‘s killing was ―dramatically impaired‖ and that
his ability to think clearly, formulate plans, and understand consequences was
―degrade[d].‖ Because Dr. Lipman‘s testimony did not establish that Wilson lacked the
capacity to form the requisite mental states because of a mental disease or defect, his
testimony did not satisfy the Hall test. Therefore, the trial court did not abuse its
discretion in excluding it from the guilt/innocence phase of trial.

      We also conclude that Dr. Rich‘s testimony did not satisfy the test in Hall. While
Dr. Rich did testify that Wilson suffered a mental disease or defect, she failed to
conclusively testify that Wilson lacked the capacity to premeditate or act intentionally at
                                            -19-
the time of the killing. As noted by the trial court, Dr. Rich testified in three isolated
instances that Wilson lacked the capacity to form the requisite mental states; however, at
all other times during her testimony, Dr. Rich opined that Wilson‘s mental diseases or
defects ―could have impaired‖ or ―impaired‖ his capacity to form the requisite mental
states for the offense. In her report, Dr. Rich opined that Wilson‘s mental diseases or
defects ―could have impaired his ability to act with premeditation‖ in the victim‘s murder
and that if Wilson was intoxicated, it was ―even more likely that his ability to act with
premeditation in the commission of that offense was impaired.‖ When the trial court
specifically and repeatedly questioned Dr. Rich about the disparity between her three
isolated instances of testimony and the opinions in her report, Dr. Rich testified that she
could only opine that Wilson‘s mental diseases or defects could have impaired his ability
to premeditate because she did not observe Wilson at the time of the offense. We note
that the standard in Hall ―was designed to ensure that the testimony regarding a
defendant‘s mental state is relevant to negate the existence of the requisite mental state.‖
Anthony Poole, 2009 WL 1025868, at *11. Accordingly, any equivocation in an expert‘s
testimony falls short of negating the existence of the requisite culpable mental state. The
fact that Wilson‘s mental diseases or defects could have impaired or did, in fact, impair
his capacity to form the requisite culpable mental states for the offense does not meet the
two-prong test in Hall, and the trial court did not abuse its discretion in granting the
State‘s motion to exclude Dr. Rich‘s testimony. Because the testimony from both Dr.
Lipman and Dr. Rich failed to establish that Wilson lacked the capacity to form the
requisite culpable mental states because of a mental disease or defect, we must conclude,
based on established precedent, that the trial court did not abuse its discretion in
excluding it from the guilt/innocence phase of trial.

                                     CONCLUSION

       Based upon the above authorities and reasoning, we affirm the June 16, 2014 order
of the trial court and remand this matter for further proceedings consistent with this
opinion.
                                               _________________________________
                                               CAMILLE R. McMULLEN, JUDGE




                                            -20-
