                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                                     April 2, 2002 Session

             STATE OF TENNESSEE v. CHRISTOPHER M. FLAKE

                  Appeal by permission from the Court of Criminal Appeals
                             Criminal Court for Shelby County
                          No. 97-09256    Bernie Weinman, Judge


                    No. W2000-01131-SC-R11-CD - Filed August 29, 2002



The defendant was charged with attempted first degree murder for shooting the victim, a pastoral
counselor, at a church in Memphis, Tennessee. At trial, the facts surrounding the shooting and the
defendant’s guilt were not contested. Instead, the defense sought to establish the affirmative defense
of insanity. See Tenn. Code Ann. § 39-11-501. The jury found the defendant guilty of attempted
voluntary manslaughter, and by this verdict, implicitly rejected the insanity defense. The trial court
entered a judgment in accordance with the jury’s verdict, and the defendant appealed, asserting,
among other things, that the insanity defense was established by clear and convincing evidence and
that the jury had erred in rejecting it. The Court of Criminal Appeals agreed, modified the verdict
to not guilty by reason of insanity, and remanded the case to the trial court for further proceedings
in accordance with Tenn. Code Ann. § 33-7-303. Thereafter, we granted the State’s application for
permission to appeal to determine whether the burden of proof on the issue of insanity affects the
standard of appellate review of a jury’s rejection of the insanity defense. After exhaustively
reviewing the record and the applicable authorities, we unanimously hold that an appellate court
should reverse a jury verdict rejecting the insanity defense only if, after viewing the evidence in the
light most favorable to the State, the appellate court concludes that no reasonable trier of fact could
have failed to find that the defendant’s insanity at the time of committing the offense was established
by clear and convincing evidence. Applying this standard to the record in this case, a majority of this
Court is of the opinion that the jury did not err in rejecting the insanity defense. Accordingly, the
judgment of the Court of Criminal Appeals is reversed and the judgment of the trial court is
reinstated.

 Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Reversed; Judgment of
                              the Trial Court Reinstated

FRANK F. DROWOTA , III, C.J.,, delivered the opinion of the court, in which JANICE M. HOLDER and
WILLIAM M. BARKER, JJ., joined.

E. RILEY ANDERSON filed a concurring-dissenting opinion, in which ADOLPHO A. BIRCH, JR., J.,
joined.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; William L. Gibbons, District Attorney General, Thomas D.
Henderson and John W. Campbell, Assistant District Attorneys General, for the appellant, State of
Tennessee.

David L. Raybin, Nashville, Tennessee; Leslie I. Ballin, Memphis, Tennessee, and Steven E.
Farese, Ashland, Mississippi, for the appellee, Christopher M. Flake.



                                            OPINION

                                               Facts
        As stated, the facts surrounding the shooting are not disputed. However, the issue in this
appeal is whether the jury erroneously rejected the insanity defense. Because a jury may in
determining a defendant’s sanity consider the facts surrounding the crime as well as the testimony
of lay and expert witnesses, the proof offered at trial is summarized in detail hereafter.

        On March 19, 1997, the defendant, twenty-five-year-old Christopher Flake, applied to
purchase a Jennings .25 automatic pistol at Guns and Ammo in Memphis, Tennessee. He completed
a form, providing background information that indicated he was not addicted to drugs or alcohol and
had never been hospitalized or treated for mental illness. The application was processed; the retailer
received the Sheriff’s Department clearance for the defendant to purchase the gun; and on April 4,
1997, the defendant picked up the weapon. At this time, the defendant completed a second form,
again indicating in response to specific questions that he had not used drugs or been committed to
a mental institution.

        The victim, Turner Carpenter, was a pastoral counselor at Central Church in Memphis,
Tennessee. Carpenter was introduced to the defendant about six weeks prior to the shooting by the
senior pastor of Central Church. At that time, Carpenter was told that the defendant was an
alcoholic, who despite three years of sobriety, was unable to “get any peace.” The defendant
scheduled three individual counseling sessions with Carpenter, but the defendant, who was working
and was enrolled in a criminal justice program at the University of Memphis, cancelled on each
occasion because of scheduling conflicts. After the third cancellation, Carpenter recommended that
the defendant participate in supervised group sessions at Central Church until his college and work
schedule improved. The defendant agreed.

        Carpenter next saw the defendant at approximately 6 p.m., on Sunday evening, April 6, 1997.
Carpenter was meeting with a parishioner, Patricia Ann Hoffman, in his office at the church when
the defendant "stuck his head in" the door and inquired if he could meet with Carpenter. When
Carpenter responded that he would meet with the defendant in fifteen minutes, the defendant shook
his head in disapproval but exited the office. Several minutes later, upon hearing a door open in the
waiting area outside his office, Carpenter exited his office and saw the defendant in the waiting area.

                                                 -2-
After nodding to the defendant, Carpenter turned and walked back toward his office, intending to
conclude his meeting with Hoffman. The defendant followed Carpenter down the hallway, however,
yelling Carpenter’s name and brandishing a gun. Obviously bewildered by the defendant’s behavior,
Carpenter asked, “Are you kidding?” The defendant responded that he was not kidding and shot
Carpenter. The bullet struck Carpenter’s outstretched hand, traveled between his index and ring
fingers, through his arm, diaphragm, and liver, and lodged in his back, where it remained at the time
of trial.

       When he was shot, Carpenter fell to the floor, and in doing so, turned toward Hoffman, who
was seated on a sofa not readily apparent from the defendant’s position in the doorway. When
Hoffman began to scream, the defendant turned toward her and held the gun to her head for some
moments. The defendant did not shoot Hoffman, and after the defendant fled, Hoffman quickly
summoned assistance, and Carpenter survived the shooting.

        At trial, Carpenter characterized the shooting as "totally off the wall, weird, and crazy.”
Carpenter stated that there was no ill will between him and the defendant, and Carpenter could not
provide a rational explanation for the defendant’s behavior. Carpenter further testified that the
defendant appeared normal and spoke in a soft voice when he first arrived at the church office. Just
before the shooting, however, Carpenter described the defendant as “horrible looking,” “crazed,”
like "the devil himself,” yelling the victim’s name in an “abnormal” voice.

        Shortly after the shooting, Officer Robert Brandon Lampley was directed to the defendant’s
residence in Germantown to await the defendant’s arrival. Officer Lampley parked so he could
observe the defendant’s driveway. About thirty to forty-five minutes later, a vehicle pulled into the
driveway, and the defendant exited this vehicle. Officer Lampley and another officer walked up the
driveway with guns drawn, and yelled, “Christopher.” The defendant stopped, and a man, who
Officer Lampley later learned was the defendant's father, walked out of the house and instructed the
defendant to cooperate. After conducting a pat-down search, the officers handcuffed the defendant
and placed him in the patrol car. Officer Lampley said the defendant showed no emotion when he
was arrested.

        A short time later Detective Johnny Brown verbally advised the defendant of his Miranda
rights and asked the defendant if he knew why the officers were there. The defendant responded,
“yes.” When Detective Brown told the defendant he needed the weapon, the defendant advised that
it was located in the vehicle's glove compartment. Detective Brown read a consent to search form
to the defendant, and the defendant executed the form, which was witnessed by two officers.
Detective Brown then opened the glove compartment and seized the pistol. Detective Brown said
the defendant looked “tired” and ‘kind of distraught,” at this time, but he was otherwise behaving
normally.




                                                -3-
        In support of the affirmative defense of insanity, 1 the defendant offered the testimony of
several mental health professionals, including, Dr. Lynne Zager, Dr. Hilary Linder, Rebecca Smith,
a psychiatric social worker, Dr. Rokeya Farooque, Dr. Sam Craddock, and Dr. John Hutson.

        Dr. Lynne Zager is a clinical psychologist and Director of the Forensic Services Program at
Midtown Mental Health Center, a private not-for-profit mental health center. Dr. Zager evaluated
the defendant pursuant to a court order from October 17, 1997 to January 28, 1998, to determine his
competency to stand trial and his mental state at the time of the shooting. Dr. Zager was certified
as a forensic evaluator in 1983 and had conducted such evaluations since that time, often testifying
as an expert witness, including a prior hearing to determine the defendant’s competency to stand trial
where she testified for the prosecution. In conducting the competency evaluations, Dr. Zager
personally interviewed the defendant and reviewed the results of psychological tests previously
administered. Dr. Zager opined that on April 6, 1997, the defendant suffered from paranoid
schizophrenia, a severe mental disease or defect. She also opined that the defendant had been unable
to appreciate the wrongfulness of his conduct in shooting Turner Carpenter. In forming these
opinions, Dr. Zager relied in part upon Dr. Janet Johnson’s medical records, 2 which indicated that
Dr. Johnson saw the defendant twice during the week prior to the shooting, once for a regular
appointment on April 1, 1997 and again on April 3, 1997, three days prior to the shooting, at the
request of the defendant’s father “because of [the defendant’s] bizarre behavior.” One example of
the defendant’s bizarre behavior described in Dr. Johnson’s records was an incident where the
defendant, upon seeing a man working outside on a farm, placed his prescription Prozac medication
in the man’s mailbox because he “felt that the man was in need of help.” According to Dr. Zager,
the defendant’s mental problems were not apparent in a structured interview involving forms and
questions about basic information. The problems became apparent, Dr. Zager explained, when the
defendant was asked open-ended questions which allowed him to share his bizarre and false beliefs.

        On cross-examination, Dr. Zager admitted that the defendant described
the victim as “huggie, touchy” and suspected that the victim was homosexual.3 Dr. Zager also
acknowledged that the defendant’s score on the Minnesota Multi-Phasic Personality Inventory -
Second Edition (“MMPI-II”) was indicative of malingering. Furthermore, according to Dr. Zager,
the defendant first mentioned hearing voices, i.e., experiencing auditory hallucinations, after he was
arrested for this crime. Despite a ten year history of mental health treatment preceding his arrest, the
defendant had neither previously mentioned auditory hallucinations nor previously been diagnosed
as schizophrenic. The defendant had been previously diagnosed with depression, mixed chemical
dependency, oppositional disorder, which is characterized by resisting authority and refusing to



         1
            The defendant was found incompetent to stand trial on several oc casions. After receiving treatment, including
anti-psychotic medication, the defendant was finally determined to be competent to stand trial in February of 1999, and
his trial began N ovembe r 15, 199 9.

         2
             Dr. Johnson wa s deceased at the time of trial.

         3
             The pro of indicated that the victim was no t homosexual.

                                                               -4-
follow rules, and major affective disorder, which is characterized by severe mood problems rather
than thought psychosis.

        Testifying next for the defense was Dr. Hilary Linder, a psychiatrist employed since 1994 by
the State of Tennessee at Western Mental Health Institute (“Western”). Dr. Linder began treating
and evaluating the defendant in November of 1998, after the defendant had been declared
incompetent to stand trial, with the goal of assisting the defendant attain competency to stand trial.
To this end, Dr. Linder prescribed medication and counseling sessions. Dr. Linder testified as an
expert witness on behalf of the prosecution at prior proceedings to determine the defendant’s
competency to stand trial, but he opined at trial that the defendant suffers from paranoid
schizophrenia and has suffered from this severe mental illness since his early teen years. In addition,
Dr. Linder opined that, on April 6, 1997, the defendant could not appreciate the wrongfulness of his
actions in shooting the victim. Based on thirty-three years experience practicing psychiatry, Dr.
Linder opined that the defendant was not malingering mental illness.

        On cross-examination, Dr. Linder conceded that, despite ten years of prior mental health
treatment, the defendant had not been diagnosed as schizophrenic prior to his arrest. Dr. Linder also
acknowledged that prior to his arrest the defendant had not reported auditory hallucinations, a
symptom critical to a diagnosis of schizophrenia. Had the defendant never reported auditory
hallucinations, Dr. Linder conceded that the defendant most likely would have been diagnosed with
anti-social personality disorder, a non-psychotic illness manifested by an inability to follow the law,
which generally is not considered a severe mental disease or defect capable of supporting an insanity
defense. Dr. Linder also acknowledged that the defendant’s medical records reflect a history of
polysubstance abuse, including alcohol, marijuana, inhalants, LSD, and amphetamines. Dr. Linder
did not believe drug abuse was a factor in his evaluation since the defendant did not have access to
drugs while incarcerated. Dr. Linder acknowledged, however, that the defendant tested positive for
amphetamines upon his arrival at Western. Dr. Linder dismissed the result as a false positive even
though no second test was performed to confirm this assumption. Dr. Linder confirmed that the
defendant’s records indicate three years of college course work in criminal justice and that, when he
arrived at Western, the defendant said he planned to plead not guilty by reason of insanity and
believed he would be released within sixty to ninety days if he obtained a verdict on this plea.

        Also testifying for the defense was Rebecca Smith, a psychiatric social worker employed by
the State of Tennessee at Middle Tennessee Mental Health Institute (“MTMHI”). Smith was
responsible for researching and gathering the defendant’s medical and personal history. The
defendant told Smith that he was drunk for the first time at age twelve, that he was using inhalants
three times per week by age fourteen, and had used LSD twice weekly since age eighteen. The
defendant’s mental health records indicated that he had often lied to family members about his drug
and alcohol abuse. Smith testified that the defendant had not reported auditory hallucinations prior
to his arrest for this crime, nor had he been diagnosed as schizophrenic. The defendant told Smith
he originally met the victim while seeking help for alcohol dependency and became suspicious after
the victim related his own history of alcohol dependency and criminal conduct. Because the victim
was involved in a chemical dependency group at the church, the defendant believed the victim was


                                                 -5-
a terrorist with access to chemical weapons. The defendant explained that “voices” told him to
shoot, but not kill, the victim, and that these same “voices” instructed him not to kill the woman who
was meeting with the victim. According to the defendant, the shooting was intended to signal the
Federal Bureau of Investigation to come to the church and take care of the terrorists and Mafia
members associated with the church.

         Dr. Rokeya Farooque, employed by the State of Tennessee as the attending psychiatrist in
the forensic service program at MTMHI, also testified for the defense. Dr. Farooque evaluated the
defendant from November 17 to December 16, 1997, to determine his competency to stand trial and
his mental state at the time of the offense. As a result of this evaluation, Dr. Farooque concluded
that the defendant was not competent to stand trial. Dr. Farooque explained that patients who are
evaluated as a result of criminal charges are closely watched by all MTMHI staff because of the
potential for malingering. Dr. Farooque concluded that the defendant was not malingering. After
the trial court found the defendant incompetent to stand trial, Dr. Farooque treated him for nine or
ten months before he was transferred to Western. As part of her evaluation and treatment, Dr.
Farooque reviewed the defendant’s medical records which indicated that he had experienced
hallucinations associated with drug abuse, blackouts, major depression, an anxiety disorder, and an
obsessive-compulsive disorder beginning around age twelve or thirteen and that he had received
psychiatric treatment and hospitalization as a result of these conditions. Dr. Farooque diagnosed the
defendant as paranoid schizophrenic and opined that the defendant was incapable of appreciating the
wrongfulness of his conduct in shooting Turner Carpenter. While the defendant had not been
diagnosed as schizophrenic prior to his arrest, Dr. Farooque explained that the prior diagnoses were
completely consistent with undiagnosed schizophrenia. On cross-examination Dr. Farooque
conceded that the defendant did not report auditory hallucinations until after his arrest and that this
report was crucial to her diagnosis of schizophrenia. Dr. Farooque also admitted that no means are
available to objectively verify that the defendant actually experiences the symptoms he reports,
including auditory hallucinations.

        Also testifying for the defense was Dr. Samuel Craddock, a clinical psychologist employed
by the state at MTMHI to conduct forensic evaluations. Dr. Craddock has appeared in court as an
expert witness once or twice per month since 1976, and previously testified for the prosecution in
a prior hearing to determine the defendant’s competency to stand trial. Dr. Craddock examined the
defendant in November and December of 1997, pursuant to a court order, and during this time,
administered a battery of tests to assess the defendant’s intelligence, personality, reasoning,
judgment, visual, and processing skills. While conceding that some of these test scores indicated
malingering, Dr. Craddock explained that the scores are not conclusive and may also indicate severe
mental illness. Based upon his clinical evaluation, Dr. Craddock opined that the defendant was not
malingering. Dr. Craddock diagnosed the defendant with paranoid schizophrenia and said the
defendant was suffering from this severe mental disease or defect at the time of the shooting. Dr.
Craddock also opined “with qualifications” that the defendant could not appreciate the wrongfulness
of his actions. While the defendant understood that shooting a person is wrong and can result in an
arrest, Dr. Craddock explained that the defendant “morally felt justified” in shooting the victim
because the defendant believed the victim was a terrorist and that eliminating such a terrorist would


                                                 -6-
morally benefit society. On cross-examination, Dr. Craddock admitted that the defendant is quick
to believe he is being treated inequitably and will hold a grudge against others even if the perceived
wrong is unintentional. Dr. Craddock also acknowledged that the defendant had not mentioned
experiencing auditory hallucinations prior to his arrest in this case and that despite many years of
mental health treatment, the defendant had not been diagnosed as schizophrenic prior to his arrest.

        The defendant’s final expert witness was Dr. John Hutson, a clinical psychologist who was
hired by the defendant’s family and who met with the defendant in the Shelby County Jail on April
8, 1997, two days after the shooting. Dr. Hutson said he initially was struck by the defendant’s
“impeccable,” “male model” appearance, which Dr. Hutson described as not typical of incarcerated,
mentally ill individuals. Nevertheless, Dr. Hutson said the defendant had a flat affect, complained
of auditory hallucinations, and was reluctant to speak with him because of instructions from defense
counsel to remain silent. The defendant freely spoke with Dr. Hutson only after his attorney
instructed him to do so, but according to Dr. Hutson, the defendant was not on the same “logic line”
as the interview questions. Dr. Hutson reviewed the records of the defendant’s ten year history of
psychiatric treatment, including in-patient treatment, and talked with some of the defendant’s treating
psychologists and psychiatrists. Dr. Hutson also administered several tests including the MMPI-II.
According to Dr. Hutson, the results of this test indicated that the defendant was “floridly psychotic.”
Dr. Hutson, who had evaluated over 10,000 individuals, described the defendant as “one of [the]
three most disturbed individuals I’ve ever seen in my career,” and opined that the defendant was not
malingering. Dr. Hutson stated that the defendant suffers from schizophrenia, undifferentiated-
disorganized type, “a very serious incapacitating psychiatric illness.” Over the course of his career,
Dr. Hutson had opined in only twenty-five cases that the patient could not appreciate the
wrongfulness of his or her conduct, but he stated that the defendant falls squarely within that narrow
category of patients. According to Dr. Hutson, the defendant believed he was working for the
government as an agent or an enforcer when he shot the victim.

         On cross-examination, Dr. Hutson admitted that the defendant exhibited a preoccupation with
homosexuality. The defendant believed the victim was very effeminate and hated the victim for the
way he touched him. The defendant was so overly sensitive to homosexuality that Dr. Hutson
thought “it might have had fatal consequences if somebody physically touched him.” Dr. Hutson
also was questioned about the defendant’s activities during the day prior to the shooting. Based on
notes apparently taken during an interview with the defendant’s father, Dr. Hutson said the defendant
awoke about 9:00 a.m., was in a good mood, helped his father cook breakfast, worked on his car with
his father, rode his trail bike, walked his dog in the park, watched a movie about a criminal trial,
chose a television movie to watch that evening with his parents, helped cook dinner on an outdoor
grill, ate dinner, and then left for a meeting at Central Church about 5:40 p.m., assuring his parents
that he would return right after the meeting so they could watch the movie together as planned. Like
the other defense experts, Dr. Hutson admitted that the defendant reported auditory hallucinations
for the first time on the day after his arrest and acknowledged that this report was not spontaneous
but was in response to questioning by the defendant’s mother about whether he had ever heard
voices. Dr. Hutson also conceded that if the defendant had not reported auditory hallucinations his



                                                  -7-
diagnosis would not have been schizophrenia and instead probably would have been borderline,
antisocial, or schizoid personality disorder.4

        In rebuttal, the prosecution offered three witnesses. Dr. John McIntosh, a psychiatrist
employed by Shelby County to render psychiatric care to inmates, testified that he had conferred
with the defendant for approximately one hour on May 9, 1997, at the Shelby County Jail. At that
time, Dr. McIntosh found no evidence to suggest that the defendant suffered from psychosis but
concluded instead that the defendant was suffering from depression and attention deficit disorder.
The defendant did not report auditory hallucinations. Dr. McIntosh acknowledged that his
examination was not designed to determine the defendant’s competency to stand trial or his mental
state at the time the offense was committed and conceded that mental health professionals who
observed the defendant for a thirty-day period were in a better position to perform a comprehensive
evaluation and render an opinion. Dr. McIntosh acknowledged that he did not review the
defendant’s prior psychiatric medical records. While agreeing with the defense experts that the
defendant has a “serious mental disease,” Dr. McIntosh disagreed with the diagnosis of
schizophrenia. Dr. McIntosh was not asked to opine whether or not the defendant was able to
appreciate the wrongfulness of his conduct in shooting the victim.

         Also testifying for the prosecution was Dr. Mark Luttrell, a physician who provided medical
services at the Shelby County Jail. Dr. Luttrell treated the defendant in July of 1997, for a urinary
tract infection and noticed no apparent mental distress or signs of schizophrenia on that occasion.
Dr. Luttrell described the defendant as “unremarkable, . . . just like everybody else.” Although he
did not conduct a mental evaluation of the defendant, Dr. Luttrell, who had completed a residency
in psychiatry, agreed with Dr. McIntosh’s diagnosis that the defendant suffered from a serious mental
disorder. Dr. Luttrell was not asked to opine whether or not the defendant could appreciate the
wrongfulness of his conduct in shooting the victim.

        The prosecution’s final rebuttal witness was John Perry, director of mental health for the
Shelby County Jail. Perry saw the defendant when he first arrived at the jail and four or five days
per week thereafter while he was incarcerated. According to Perry, the defendant did not “sit and
stare” during that time as he was doing during the trial.

        At the conclusion of this proof, the jury was instructed on the offense of attempted first
degree murder and the lesser offenses of attempted second degree murder, attempted voluntary
manslaughter, and aggravated assault. The jury also was instructed on the insanity defense. The jury
returned a verdict finding the defendant guilty of attempted voluntary manslaughter, thereby
implicitly rejecting the insanity defense. The trial court entered a judgment in accordance with the
jury’s verdict, and explicitly refused to set aside the verdict as the thirteenth juror. The defendant
appealed, arguing in the Court of Criminal Appeals that he had met his burden of establishing the


         4
           According to the testimony of Dr. Zager, schizoid personality disorder is not schizophrenia and perso ns with
schizo id personality disorder tend to stay to themselves, have few social relationships, and manifest odd or unusual
behavior.

                                                          -8-
insanity defense by clear and convincing evidence and that the jury had erred in rejecting the defense.
 The intermediate appellate court agreed, concluding that “a rational trier of fact could only find that
there is no serious or substantial doubt that the defendant, at the time of the shooting, was unable to
appreciate the wrongfulness of his act as a result of a severe mental disease.” In so holding, the
Court of Criminal Appeals stated, “our review of this record does not reveal sufficient lay testimony,
or expert testimony, concerning the defendant’s mental state at or near the time of the shooting that
would justify rejection of the insanity defense.” Accordingly, the Court of Criminal Appeals
modified the judgment to not guilty by reason of insanity and remanded the case to the trial court for
further proceedings pursuant to Tenn. Code Ann. § 33-7-303.

        Thereafter, the State filed an application for permission to appeal, arguing that the Court of
Criminal Appeals had erred both in reversing the jury’s verdict and by imposing upon the State a
burden to offer proof to rebut the insanity defense when the statute describing the defense, Tenn.
Code Ann. § 39-11-501, does not impose any burden upon the State. We granted the State’s
application to determine whether the burden of proof on the insanity defense affects the standard of
appellate review of a jury’s finding on insanity. We unanimously conclude that the proper standard
of review in light of the statute requiring the defendant to prove insanity by clear and convincing
evidence is whether, considering the evidence in the light most favorable to the prosecution, no
reasonable trier of fact could have failed to find that the defendant’s insanity at the time of the
offense was established by clear and convincing evidence. This essentially is the standard of review
adopted by the Court of Criminal Appeals in this case; however, for the reasons that follow, a
majority of this Court concludes that the Court of Criminal Appeals did not afford appropriate
deference to the jury’s verdict when applying this standard.5 Accordingly, the judgment of the Court
of Criminal Appeals is reversed and the judgment of the trial court is reinstated.

                                           Insanity Defense
        Until 1995, the standard for sustaining an insanity defense was as follows:
        Insanity. –(a) Insanity is a defense to prosecution if, at the time of such conduct, as
        a result of mental disease or defect, the person lacked substantial capacity either to
        appreciate the wrongfulness of the person’s conduct or to conform that conduct to the
        requirements of the law.
        (b) As used in this section, “mental disease or defect” does not include any
        abnormality manifested only by repeated criminal or otherwise antisocial conduct.

Tenn. Code Ann. § 39-11-501(repealed 1995); see also Graham v. State, 547 S.W.2d 531 (Tenn.
1977). Under this standard, a defendant was presumed sane, but if the evidence introduced during
the course of the trial raised a reasonable doubt as to the defendant’s sanity, the State then had the
burden of proving the defendant’s sanity beyond a reasonable doubt. Graham, 547 S.W.2d at 544;
see also State v. Sparks, 891 S.W.2d 607, 616 (Tenn. 1995); State v. Jackson, 890 S.W.2d 436, 440
(Tenn. 1994); Edwards v. State, 540 S.W.2d 641, 646 (Tenn. 1976). Sanity became an element of


        5
          Justice Anderson and Justice Birch concur in the adoption of this standard of review but disagree with the
majority’s application of this standard to the facts and circumstances of this case.

                                                        -9-
the crime. Sparks, 891 S.W.2d at 616; Jackson, 890 S.W.2d at 440; State v. Clayton, 656 S.W.2d
344, 346 (Tenn. 1983).

       The General Assembly adopted a statutory amendment, effective July 1, 1995, which
substantially revised the insanity defense. Currently, the insanity defense is as follows:

         Insanity. (a) It is an affirmative defense to prosecution that, at the time of the
         commission of the acts constituting the offense, the defendant, as a result of a severe
         mental disease or defect, was unable to appreciate the nature or wrongfulness of such
         defendant's acts. Mental disease or defect does not otherwise constitute a defense.
         The defendant has the burden of proving the defense of insanity by clear and
         convincing evidence.

         (b) As used in this section, “mental disease or defect” does not include any
         abnormality manifested only by repeated criminal or otherwise antisocial conduct.

         (c) No expert witness may testify as to whether the defendant was or was not insane
         as set forth in subsection (a). Such ultimate issue is a matter for the trier of fact
         alone.

Tenn. Code Ann. § 39-11-501 (1997 Repl.). Passage of this statute resulted in three principal
changes to the insanity defense.6 First, the definition of insanity has been narrowed so that the
defense now applies only when the defendant has a severe mental disease or defect which results in
the defendant’s being “unable to appreciate the nature or wrongfulness of such defendant’s acts.”7
Second, insanity is an affirmative defense. The prosecution no longer has the burden of proving
sanity beyond a reasonable doubt. Instead, the defendant bears the burden of establishing the defense
by clear and convincing evidence. “Clear and convincing evidence means evidence in which there
is no serious or substantial doubt about the correctness of the conclusions drawn from the evidence.”
Holder, 15 S.W.3d at 911(quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.2 (Tenn.
1992)). Third, under the current statute, both prosecution and defense experts are prohibited from
offering opinion testimony as to whether or not the defendant was sane at the time the offense was
committed. See, e.g., State v. Perry, 13 S.W.3d 724 , 739-42 (Tenn. Crim. App.), perm. app denied
(Tenn. 1999); see also Advisory Commission Comments to Tenn. R. Evid. 704 (explaining that
insanity is one ultimate issue outside the scope of expert testimony). The ultimate issue of the



         6
           This statute was patterned upon and is very similar to the Federal Insanity Defense Reform Act of 1984
codified at 18 U.S.C. § 1 7. See State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999), perm. app. denied (Tenn.
2000). The changes to the insanity defense in federal courts resulting from the Insanity Defense Refrom Act of 1984
are described by the Court of Appeals for the Eleventh Circuit in United States v. Freeman, 804 F.2d 15 74 (11th Cir.
1986).

         7
         The 1995 amendme nt eliminated the volitional pro ng of the insanity de fense i.e., “lac ked the cap acity to
conform that conduc t to the req uirements of the law.”

                                                        -10-
defendant’s sanity is “a matter for the trier of fact alone.” Tenn. Code Ann. § 39-11-501(c) (1997
Repl.).

        Admittedly, the 1995 statute does not by its terms alter the standard of appellate review of
a jury’s finding on the insanity defense. Nevertheless, the defense has been fundamentally altered
by the statute, and the standard of review must be revised to account for these modifications. Sanity
is no longer an element of the offense. The sufficiency of the evidence standard previously applied
by appellate courts reviewing a jury finding on sanity – whether, after viewing the evidence in the
light most favorable to the state, any rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt8 – is no longer appropriate. This Court has not previously
addressed the current insanity defense or its effect on the standard of appellate review.

        In this Court, the State relies upon United States v. Barton, 992 F.2d 66, 68-69 (5th Cir.
1993), and argues that an appellate court should view the evidence in the light most favorable to the
prosecution and reverse a jury verdict rejecting an insanity defense “only if no reasonable trier of fact
could have failed to find that the defendant’s criminal insanity at the time of the offense was
established by clear and convincing evidence.” Id. According to the State, such a standard permits
reversal on appeal only when the jury’s rejection of the insanity defense is contrary to the evidence
as a matter of law. The State says that the Court of Criminal Appeals essentially adopted this
standard but erred in applying it by substituting its judgment for that of the jury and by imposing a
burden of proof on the State not mandated or contemplated by the statute. In support of this second
assertion, the State points to the following sentence in the decision of the Court of Criminal
Appeals: “The testimony of state witnesses Dr. John McIntosh, Dr. Mark Luttrell, and John Perry
did not create an issue for the jury.” The defendant responds that the Court of Criminal Appeals
adopted and properly applied the governing standard of review. According to the defense, the
sentence to which the State objects indicates that the intermediate appellate court properly
considered whether the prosecution had offered substantial evidence to counter the defense proof of
insanity and create a jury question on the issue.

        Our research indicates that appellate courts in other jurisdictions apply a deferential standard
when reviewing a jury’s rejection of the insanity defense, but appellate courts do not use uniform
language when describing the applicable standard. The “reasonableness” standard adopted by the
Fifth Circuit Court of Appeals in Barton has been adopted by some state courts considering the issue.
See Fuss v. State, 519 S.E.2d 446, 448 (Ga. 1999)(“whether after reviewing the evidence in the light
most favorable to the state, a rational trier of fact could have found that the defendant failed to prove
by a preponderance of the evidence that he was insane at the time of the crime.”); State v. Silman,
663 So.2d 27, 32 (La. 1995); State v. Prince, 688 So.2d 643, 649 (La. Ct. App. 1997) (“whether,
viewing the evidence in the light most favorable to the state, any rational juror could have found that
the defendant had not proven by a preponderance of the evidence that he was insane at the time of
the offense.”). Other state appellate courts preclude disturbing the fact-finder’s resolution of the



        8
            See Jackson v. V irginia, 443 U. S. 307 , 99 S . Ct. 2781, 61 L. Ed .2d 5 60 (197 9); Jackson, 890 S.W.2d at 441.

                                                            -11-
sanity issue “unless the verdict is contrary to the manifest weight of the evidence,”9 or “the proof of
insanity is overwhelming”10 or the verdict is “contrary to the great preponderance of the evidence,”11
or the “judgment is so against the great weight and preponderance of the evidence so as to be
manifestly unjust.”12 Arkansas appellate courts review a jury verdict rejecting the insanity defense
to determine “whether there was any substantial evidence to support the verdict.”13 The Indiana
Supreme Court has stated that a defendant whose insanity defense fails at trial “has a monumental
burden if he seeks to upset the finding of the fact trier on appeal, for he is appealing from a negative
finding, and the issue is not whether or not the finding was sustained by the evidence but rather
whether it was contrary to all the evidence and hence contrary to law.” Turner v. State, 428 N.E.2d
1244, 1246 (Ind. 1981) (emphasis in original). Indiana appellate courts, therefore, reverse a fact
finder’s rejection of the insanity defense “only when the evidence is without conflict and leads to but
one conclusion which the trier of fact did not reach.”14

        This lack of uniformity on the proper standard of appellate review is also reflected in federal
appellate court decisions, which we view as particularly relevant to the issue in this appeal since, as
noted, the federal insanity statute is the model upon which our current statute is based. Some federal
circuit courts apply a “clearly erroneous” standard of review, reversing a jury’s finding on the
insanity issue only if it is clearly erroneous. See United States v. Hiebert, 30 F.3d 1005, 1007 (8th
Cir. 1994); United States v. Reed, 997 F.2d 332, 334 (7th Cir. 1993); United States v. Freeman, 804
F.2d 1574, 1577 (11th Cir. 1986). Other federal courts, including the Fifth Circuit, apply the
“reasonableness” standard, derived from the Jackson v. Virginia, sufficiency standard. Barton, 992
F.2d at 69; United States v. Martin, 56 M.J. 97, 106 (C.A.A.F. 2001). This “reasonableness”
standard requires an appellate court to view the evidence in the light most favorable to the
prosecution and reverse a jury verdict rejecting the insanity defense “only if no reasonable trier of
fact could have failed to find that the defendant’s criminal insanity at the time of the offense was
established by clear and convincing evidence.” Barton, 992 F.2d at 69; Martin, 56 M.J. at 107. Like
the various other standards applied in both state and federal courts, the reasonableness standard is
deferential in nature, as the Fifth Circuit aptly explained as follows:




          9
              People v. Johnson, 585 N.E.2d 78, 86 (Ill. 1991).

          10
               Christian v. State, 351 So.2d 6 23, 624 (Ala. 197 7).

          11
               Alvis v. Alabama, 434 So.2d 8 59, 862 (Ala. Ct. Crim. App 19 83).

          12
            Meraz v. State, 785 S.W .2d 1 46, 1 55 (Tex. Ct. Crim. App. 1 990 ); Jackson v. S tate, 941 S.W.2d 351, 352
(Tex. Ct. App. , 13 th Dist. Corpus Christi 199 7); Mo rgan v. State, 869 S.W .2d 388, 389 (Tex. Ct. App. 12th Dist. Tyler
199 3); see also People v. Sangalang, 2001 G uam 18, 200 1 W L 9501 61, *8 (Guam 20 01).

          13
               Haynes v. State, 58 S .W .3d 3 36, 3 41 (Ark. 2 001 ); Phillips v. State, 863 S.W .2d 309, 311 (Ark. 1993).

          14
               Gambill v. State, 675 N.E .2d 6 68, 6 73 (Ind. 1 996 ); see also Hurst v. State, 699 N.E.2d 651, 654 n.3 (Ind.
199 8).

                                                              -12-
       It is not sufficient here that Barton’s evidence might appear to us, were we the finder
       of fact, to be clear and convincing. We are not fact finders and do not assess the
       credibility of the testimony or the weight of the evidence. These are the jury’s
       responsibilities. This deference is particularly appropriate where the jury has found
       against a party having the burden of proof by clear and convincing evidence. As the
       D.C. Circuit said, “when insanity is raised as a defense to crime, a judgment of
       acquittal by reason thereof, we have emphasized, should be granted only in
       exceptional cases. And in view of the complicated nature of the decision to be made
       – intertwining moral, legal, and medical judgments – it will require an unusually
       strong showing to induce us to reverse a conviction because the judge left the critical
       issue of criminal responsibility with the jury. We think it clear in this case that the
       trial judge left it where it belonged.”

Barton, 992 F.2d at 70 (quoting Gaskins v. United States, 410 F.2d 987, 990-91 (D.C. Cir. 1967))
(internal citations omitted). In so holding, the court rejected Barton’s assertion that the government
is required to counter the defendant’s proof by offering rebuttal evidence or contrary expert
testimony. Barton, 992 F.2d at 70. The court further pointed out that the prosecution can counter
defense proof of insanity by presenting the testimony of lay witnesses and by undermining the
defense expert’s credibility through cross-examination. Id.

       The United States Court of Appeals for the Armed Forces recently adopted the Fifth Circuit
approach and, in a comprehensive and thorough opinion, explained the rationale underlying its
decision:

       Such a test of reasonableness is consistent with congressional intent that
       determinations of mental responsibility are for the trier of fact to make alone, and not
       experts offering ultimate opinions. It also recognizes that the trier of fact is better
       positioned than are appellate courts to appraise and weigh the evidence and apply the
       appropriate burden of proof to the party that bears the burden. This may be
       particularly true of an insanity defense, such as that presented in this case, where
       there are multiple competitive experts, complex facts, and numerous witnesses
       testifying to the accused’s demeanor at the time of the offense.

               A reasonableness standard is also appropriate because appellate courts have
       only a jury’s conclusion, implicit in an ultimate finding of guilt, against which to test
       for error. In contrast, where a trial judge makes a finding of fact on mental
       responsibility, an appellate court tests for clear error - against the judge’s specific
       findings of fact, included in the record, underpinning his or her conclusion. Finally,
       the reasonableness standard is consistent with our preference for, and deference
       afforded to, juries in our constitutional system of justice.

Martin, 56 M.J. at 107.



                                                 -13-
         After considering these various standards, we unanimously conclude that appellate courts in
Tennessee should apply the reasonableness standard when reviewing a jury’s rejection of the insanity
defense. Consistent with the expressed legislative intent of Tenn. Code Ann. § 39-11-501(c) and
other Tennessee standards governing appellate review of factual findings,15 this standard is properly
deferential to the finding of the trier of fact. On the other hand, this standard does not totally insulate
the jury’s finding from appellate review; rather, it enhances appellate review by virtue of its
similarity to the familiar sufficiency standard which appellate courts are accustomed to applying.
Accordingly, appellate courts in Tennessee should reverse a jury verdict rejecting the insanity
defense only if, considering the evidence in the light most favorable to the prosecution, no reasonable
trier of fact could have failed to find that the defendant’s insanity at the time of the offense was
established by clear and convincing evidence. Although phrased differently, this essentially is the
standard applied by the Court of Criminal Appeals in this case. In so holding, we explicitly reject
the notion that the State must rebut defense proof of insanity with substantial evidence. The current
statute clearly does not impose such a burden of proof on the prosecution. The statute places the
burden of establishing this affirmative defense squarely on the defendant. Once this defense has
been interposed, the prosecution likely will in most cases attempt in some manner to counter the
defense proof. As noted by the Fifth Circuit, however, defense proof can be countered by contrary
expert testimony, lay witnesses, or vigorous cross-examination designed to undermine the credibility
of the defense experts. A reviewing court applying the reasonableness standard should consider all
the evidence in the record in the light most favorable to the state in determining whether the jury
appropriately rejected the insanity defense.

         Appellate courts also should be mindful of several other well-settled propositions that were
not affected by the 1995 statutory revision of the insanity defense. For example, in determining the
defendant's mental status at the time of the alleged crime, the trier of fact may consider evidence of
his actions and words at or near the time of the offense. Sparks, 891 S.W.2d at 616. The trier of fact
may also consider both lay and expert testimony. Sparks, 891 S.W.2d at 616; Jackson, 890 S.W.2d
at 440; Edwards, 540 S.W.2d at 647. The weight and value to be given expert testimony is a
question for the jury. Id. Where there is a conflict in the evidence, the trier of fact is not required
to accept expert testimony over other evidence and must determine the weight and credibility of each
in light of all the facts and circumstances of the case. Id. Questions concerning the credibility of
witnesses, the weight and value of the evidence, as well as all factual disputes raised by the evidence,
are for the trier of fact; appellate courts do not reweigh the evidence or reevaluate credibility
determinations. Holder, 15 S.W.3d at 912.

       Considering the evidence in this record in the light most favorable to the prosecution, a
majority of this Court concludes that a reasonable trier of fact could have found the defendant failed
to show by clear and convincing evidence that as a result of a severe mental illness or defect he was


         15
             See, e.g., Tenn. R. App. P. 36(a)(“The Supreme Court, Court of Appeals, and Court of Criminal Ap peals shall
grant the relief on the law and facts to which the party is entitled or the proceeding otherwise requires and may grant any
relief, includ ing the giving of any judgment and m aking o f any ord er; provided, however, relief may not be granted in
contravention of the province of the trier of fact.”)(emphasis added).

                                                          -14-
unable to appreciate the wrongfulness of his acts. First, the record contains evidence suggesting the
defendant was not suffering from a severe mental illness at the time of the offense. As much as two
weeks and as little as two days prior to this shooting, the defendant had the presence of mind to
falsely answer questions regarding prior mental health treatment and drug abuse which, had he
answered truthfully, probably would have prevented him from obtaining the weapon used to commit
this crime. In addition, the proof showed that, while the defendant behaved strangely during the
week preceding the shooting, his behavior on the day of the shooting had been perfectly normal. As
stated by Dr. Hutson, the defendant awoke about 9:00 a.m., was in a good mood, helped his father
cook breakfast, worked on his car with his father, rode his trail bike, walked his dog in the park,
watched a movie about a criminal trial, chose a television movie to watch that evening with his
parents, helped cook dinner on an outdoor grill, ate dinner, and then left for a meeting at Central
Church about 5:40 p.m., assuring his parents he would return immediately after the meeting to watch
the movie together as planned. While the shooting itself was certainly unexpected, there is proof in
the record to suggest an explanation, albeit far-fetched, for the shooting. The testimony indicated
that the defendant was preoccupied with homosexuality, that he believed the victim was very
effeminate, that he suspected the victim was homosexual, and that he hated the victim for the way
he touched him. Dr. Hutson testified that, given his preoccupation with homosexuality, physically
touching the defendant could have fatal consequences. This proof suggests a motive for the shooting,
and the jury’s verdict of attempted voluntary manslaughter indicates that perhaps this motive was
credited.

         Second, defense proof that the defendant suffered from a severe mental illness was countered
by testimony elicited on cross-examination of the defense experts suggesting the defendant was
malingering. Although all the mental health experts opined that the defendant suffers from
schizophrenia, the proof is clear that, throughout ten years of prior mental health treatment, the
defendant had not been diagnosed as schizophrenic and had never complained of auditory
hallucinations. In fact, the defendant’s report of auditory hallucinations following his arrest was not
spontaneous but was in response to a question from his mother. The experts admitted that the
defendant’s report of auditory hallucinations was a critical factor in the diagnosis of schizophrenia,
and they conceded that there are no existing objective tests to verify that the defendant actually
suffers from auditory hallucinations. Results of two psychological tests indicated that the defendant
was malingering mental illness, but the expert witnesses discounted these results. Two of the experts
testified that had the defendant not reported auditory hallucinations, he likely would have been
diagnosed as suffering from various personality disorders, which generally are not considered to be
severe mental conditions capable of supporting an insanity defense. The proof also showed that,
before his arrest, the defendant had attended the University of Memphis for three years studying
criminal justice and that on the day of his admission to Western, he had advised Dr. Linder that he
intended to plead not guilty by reason of insanity and believed he would be released within sixty to
ninety days if he received a verdict on that plea. According to psychological records of the
defendant’s mental health treatment prior to his arrest, he had a history of polysubstance abuse and
had often lied to his parents about the extent to which he abused drugs and alcohol. Although the
experts testified that the defendant’s history of substance abuse had no impact on their evaluations
since he had been incarcerated and had no access to drugs, Dr. Linder admitted that the defendant


                                                 -15-
tested positive for amphetamines when he arrived at Western, even though he had no prescription
for amphetamines. Dr. Linder assumed the result was a false positive but admitted that he did not
re-test to confirm this assumption.

        Finally, notwithstanding expert proof to the contrary, the facts surrounding the offense
suggest the defendant realized his conduct was wrongful. With the exception of Dr. Craddock, the
mental health professionals testified that the defendant was unable to appreciate the wrongfulness
of his conduct in shooting the victim. Dr. Craddock opined that the defendant was aware that
shooting someone was wrongful, but he felt morally justified in shooting the victim whom he
believed to be a terrorist. The facts show, however, that the defendant did not shoot the parishioner
with whom the victim was meeting, and he fled the scene, rather than waiting for the arrival of the
FBI. At the time of his arrest, the defendant appeared to realize he had committed a crime. When
asked if he knew why the officers were at his house he responded “yes” and told the officers that the
weapon was in the glove compartment. Although the officers said the defendant showed little
emotion and appeared “distraught” or “tired,” they observed no bizarre behavior. After his arrest,
the defendant complied with his attorney’s instruction not to speak with anyone alone, as is
evidenced by Dr. Hutson’s testimony that the defendant was reluctant to speak with him until
receiving permission from his attorney. Dr. McIntosh, Dr. Luttrell and John Perry said the defendant
behaved normally while incarcerated although he did appear depressed.

        After reviewing the evidence in the light most favorable to the State, a majority of this Court
is unable to conclude that no reasonable trier of fact could have failed to find that the defendant’s
criminal insanity at the time of the offense was established by clear and convincing evidence. Where
the proof is contested, appellate courts should rarely reverse a jury’s rejection of the insanity defense
under this deferential standard of review. As noted by the Fifth Circuit Court of Appeals, appellate
courts are not fact finders, and reversal is not appropriate where the evidence might appear to us
clear and convincing were we fact finders. Appellate courts do not reweigh the evidence or reassess
credibility determinations. These tasks are within the province of the jury. While the proof in this
record indicates that the defendant suffers from a mental disorder, such proof does not mandate a
jury finding that a defendant is legally insane. Cf. Coe v. State, 17 S.W.3d 193, 221 (Tenn. 2000)
(“[T]he existence of a mental disorder does not automatically translate into a finding of
incompetency to be executed.”); Reed, 997 F.2d at 334 (“Insanity, for our purposes, is a legal term.
We do not ask whether Reed is insane by psychiatric or psychological standards.”). In determining
whether a defendant is insane, a jury is entitled to consider all the evidence offered, including the
facts surrounding the crime, the testimony of lay witnesses, and expert testimony. While a jury may
not arbitrarily ignore evidence, a jury is not bound to accept the testimony of experts where the
evidence is contested. Indeed, this principle is explicitly reflected in the current statute which
prohibits experts from testifying on the ultimate issue of the defendant’s sanity and reserves this
issue for the trier of fact alone. There is nothing in this record to suggest that the jury arbitrarily
ignored the expert testimony. The record reflects that the jury deliberated seventy-one minutes, then




                                                  -16-
posed three questions two of which appear related to the insanity defense.16 Moreover, the trial judge
in this case was specifically asked by defense counsel to exercise his role as thirteenth juror and enter
a judgment of not guilty by reason of insanity. The trial court declined, stating, “the defense of
insanity was appropriately litigated and I think that the jury appropriately made the proper
determination.”

                                           Conclusion
        Reviewing this record in the light most favorable to the State, a majority of this Court
concludes that the Court of Criminal Appeals erred in reversing the jury’s verdict. Accordingly, the
judgment of the Court of Criminal Appeals modifying the verdict to “Not Guilty By Reason of
Insanity” is reversed and the judgment of the trial court is reinstated.




                                                       _________________________________________
                                                       FRANK F. DROWOTA, III,
                                                       CHIEF JUSTICE




         16
            The jury inquired: “(1) Where was the second bullet casing found? (2) Was the defendant on medication at
the time of the crime? and (3) Did C hris Flake say anything to Turner Carpenter at the time of the act besides, Turner,
Turner Carpenter?”

                                                         -17-
