         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  December 7, 1999, Session

                STATE OF TENNESSEE v. RONALD WEEKS, SR.

                  Direct Appeal from the Criminal Court for Shelby County
                        No. 97-12318    James C. Beasley, Jr., Judge



                  No. W1998-00022-CCA-R3-CD - Decided October 2, 2000



NORMA MCGEE OGLE , J., dissenting.

I must respectfully dissent because, while I agree that the appellant’s confession to the police should
have been suppressed, I do not believe that the trial court’s admission of the confession at trial
constituted reversible error. Our supreme court has previously noted that “the existence of a
constitutional error does not automatically entitle a defendant to a reversal.” State v. Howell, 868
S.W.2d 238, 252 (Tenn. 1993). Specifically, constitutional error does not warrant reversal if the
State establishes “beyond a reasonable doubt that the error complained of did not contribute to the
verdict obtained.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828 (1967). In Delaware
v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436 (1986)(citations omitted), the United States
Supreme Court explained the rationale of this “harmless error doctrine”:
                The harmless error doctrine recognizes the principle that the central
                purpose of a criminal trial is to decide the factual question of the
                defendant’s guilt or innocence, . . . and promotes public respect for
                the criminal process by focusing on the underlying fairness of the trial
                rather than on the virtually inevitable presence of immaterial error. .
                . . ‘Reversal for error regardless of its effect on the judgment,
                encourages litigants to abuse the judicial process and bestirs the
                public to ridicule it’ . . . .
Of course, the court in this case is applying the harmless error doctrine to the admission at trial of
a confession by the appellant obtained in violation of Miranda v. Arizona, 384 U.S. 436, 445, 86
S.Ct. 1602, 1612 (1966). Nevertheless, in Arizona v. Fulminante, 499 U.S. 279, 306-312, 111 S.Ct.
1246, 1263-1266 (1991), the Court approved the application of the harmless error doctrine even to
the admission at trial of involuntary confessions. The Court stated:
                When reviewing the erroneous admission of an involuntary
                confession, the appellate court, as it does with the admission of other
                forms of improperly admitted evidence, simply reviews the remainder
                of the evidence against the defendant to determine whether the
                admission of the confession was harmless beyond a reasonable doubt.
Id. at 310, 1265.

                 In sum, even in cases of erroneously admitted confessions, whether involuntary or
obtained in violation of Miranda, “the goal of harmless error analysis is to identify the actual basis
on which the jury rested its verdict.” Momon v. State, 18 S.W.3d 152, 168 (Tenn. 1999). Thus, in
applying the harmless error doctrine to this case, I would preliminarily note that the primary issue
at trial was not whether the appellant committed the offense of aggravated sexual battery but rather
whether the appellant was insane at the time of his offense. Indeed, the focus of the appellant’s
defense is apparent from the direct testimony by the appellant’s psychologist, Dr. John Victor
Ciocca, relating the appellant’s statements to him concerning the offense and remarking that the
statements were substantially identical to the appellant’s confession to the police. In this context,
the court’s application of harmless error analysis should address three separate inquiries: (1) whether
the trial court’s admission of the appellant’s statements to the police affected the jury’s resolution
of the issue of insanity; (2) whether the admission of the statements otherwise affected the jury’s
verdict of guilt; and (3) whether the appellant could have asserted a more successful defense had the
statements been suppressed.

                With respect to the first inquiry, the appellant had the burden at trial of proving his
insanity by clear and convincing evidence. Tenn. Code Ann. § 39-11-501(a) (1997); see also State
v. Perry, No. 01C01-9710-CC-00467, 1999 WL 233522, at *16 (Tenn. Crim. App. at Nashville,
April 22, 1999), perm. to appeal denied, (Tenn. 1999)(upholding the constitutionality of the statutory
provision requiring the defendant to prove insanity by clear and convincing evidence). In other
words, the appellant was required to prove by clear and convincing evidence that, as a result of a
severe mental disease or defect, he was unable to appreciate the nature or wrongfulness of his
conduct at the time of his offense. Id.; see also State v. Holder, No. 03C01-9812-CC-00439, 1999
WL 771550, at **7-8 (Tenn. Crim. App. at Knoxville, September 27, 1999), perm. to appeal denied,
(Tenn. 2000)(upholding the constitutionality of the current statutory definition of insanity). “‘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, No. 03C01-9812-CC-00439,
1999 WL 771550, at *5 (quoting Hodges v. S.C. Toof & Company, 833 S.W.2d 896, 901 n.2 (Tenn.
1992)).

                 A more detailed review of the evidence adduced at the appellant’s trial is essential
in assessing the impact of the admission of the appellant’s confession to the police upon the jury’s
resolution of the above issue and, more broadly, the issue of guilt or innocence. Initially, the State
presented the testimony of the victim, who was six years old at the time of the appellant’s trial. She
testified that the appellant lived next door to her home. On July 24, 1997, she was riding her bicycle
past the appellant’s home when he invited her inside. The victim stated that, while she was visiting
the appellant’s home, she went into his bedroom where “something bad happened.” She further
testified that she was later examined by a nurse “[b]ecause of what Mr. Ronnie did.” She was unable
to otherwise describe the events inside the appellant’s bedroom.




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                The victim’s mother also testified on behalf of the State at the appellant’s trial. She
recounted that, on July 24, 1997, the victim left their home at 10:30 a.m. to visit a friend who lived
in the neighborhood. Approximately one hour later, the victim returned home and was “extremely
upset.” Seconds later, the appellant arrived at the front door in “red satin-type boxer shorts” and
stated that he had seen the victim riding her bicycle and had asked her to come inside his house. He
further stated,
                I’m sorry . . . I was asleep. The phone rang three times. I woke up.
                I got mad. I’m sorry. I was asleep. I didn’t know what I was doing.
                I’m sorry.
After reassuring the appellant, the victim’s mother spoke with the victim. The victim “was so upset
that she was, at that point of almost throwing up.” According to the mother, the victim stated,
                Mama, mama. He forced me, mama. He forced me. . . . He forced
                me to take off my shorts and my panties, mama. . . . He laid on top of
                me, mama, and he peed on me, mama.
The victim’s mother reported the assault to the police and drove her daughter to the Memphis Sexual
Assault Resource Center. Steven Weichman, a special agent forensic scientist with the Tennessee
Bureau of Investigation Crime Laboratory in Jackson, Tennessee, testified that subsequent testing
of the underwear worn by the victim at the time of the offense revealed the presence of sperm and
semen.

                Of course, the State also introduced the appellant’s confession, which was obtained
by police approximately five hours following the instant offense. In his confession, the appellant
stated that, on the morning of his offense, he was attempting to sleep in his bedroom at home.
However, he was awakened on several occasions by the ringing of the telephone. Additionally, the
appellant was experiencing pain in his back, and he was concerned that he might be developing
kidney stones. At approximately 11:15 a.m., he was still unable to sleep and began looking out a
window of his home. At this point, he noticed the victim passing by his home on her bicycle. He
invited the victim into the house, where he spoke with her about Disney World and allowed her to
see his dog and his bird and play with his cat. The victim was playing with the cat in the appellant’s
bedroom when the appellant “started losing [his] mind.” The appellant recalled that he began to feel
hungry, the pain in his back resumed, and he again began to worry about the possibility that he was
developing kidney stones. According to the appellant, his discomfort precipitated the sexual assault.
The appellant recalled,
                I laid down on her and just rubbing and that’s where I ejaculated, I
                told her sorry and then I got the towel and tried to clean her up. I was
                again checking for kidney stone but uh there was no problem there.
                But I told her I said I am very sorry . . . . I told her to go on out, but
                I do feel guilt and decided I would walk over there and knock and tell
                her mother that I was very apologetic about what I had done and that
                I was sorry and so.

                In support of his defense of insanity, the appellant first introduced the testimony of
his wife, Vicki Weeks. Ms. Weeks testified that she and the appellant had been married for twenty-


                                                 -3-
five years and currently had one adult son. Ms. Weeks described the appellant as “outgoing” and
“very friendly” and asserted that he had been “a very good husband . . . .” Ms. Weeks further related
that her husband had been employed by the United States Postal Service for twenty-four years and
enjoyed playing tennis in his free time. In 1997, however, the appellant began to experience stress
relating to financial difficulties, appeared “real tired all the time,” and bathed and shaved less
frequently. Additionally, the appellant was reluctant to take leave from work and was somewhat
withdrawn at family gatherings. Finally, Ms. Weeks noted that, at the beginning of July 1997, the
appellant stopped playing tennis.

                 Mae Weeks, the appellant’s mother, testified that the appellant has been hearing-
impaired since birth, although he can hear some sounds such as the ringing of a telephone. As a
child, the appellant initially attended an “oral school for the deaf” where he was taught to speak.
Subsequently, he attended Raleigh-Egypt High School, “a hearing school,” where he was “the leader
in his class.” Upon graduating from the high school, he immediately began his employment with
the Postal Service. The appellant’s mother, like his wife, described the appellant as “real outgoing -
real pleasant - funny - clowned a lot.” However, she recalled that, in the spring or early summer of
1997, the appellant began to appear depressed, “looked haggard . . . unkempt,” and was withdrawn
at family gatherings.

                 The appellant’s son, Ronald Weeks, Jr., testified on the appellant’s behalf that he has
always had a good relationship with his father. He stated that the appellant was “[v]ery outgoing .
. . [a]lways cutting up - joking. He was like a friend.” However, Mr. Weeks recalled that, in 1997,
the appellant began to appear “unkempt” and became “very quiet, reserved.” Mr. Weeks particularly
noted that, shortly before this offense, the appellant stopped playing tennis with his son.

               The appellant’s psychologist, Dr. Ciocca, testified that he interviewed the appellant
on four occasions following this offense, including August 16, 19, and 22, 1997, and January 27,
1998. During these interviews, the appellant related to Dr. Ciocca his offense. Dr. Ciocca also
reviewed the appellant’s statements to the police and noted that the two accounts were substantially
identical. Additionally, Dr. Ciocca interviewed various family members. Finally, he administered
to the appellant various psychological tests, including the Minnesota Multi-Phasic Personality
Inventory II (MMPI) and the Millon Inventory II.

               Dr. Ciocca diagnosed the appellant with
               severe depression - major depression and that co-existing with that
               was a paranoid delusional disorder in which he suffered from the
               inability to tell reality from fantasy in which his reality testing was
               impaired, and in which his ability to govern his behavior would be
               impaired.
Dr. Ciocca conceded that hearing-impaired individuals “have modest additions to . . . all of their
MMPI scales,” and individuals facing criminal charges are likewise more depressed and suicidal.
Nevertheless, he opined that, at the time of this offense, the appellant was in the midst of a



                                                  -4-
                rather long-standing psychological decompensation; that his - his
                difficulties with reality testing and his difficulties with depression,
                and his difficulties with distortions of reality had been occurring over
                an extended period of time.

               Dr. Ciocca further testified that, when depression is accompanied by a paranoid
delusional disorder, “an individual will, periodically, with and without external stressors, . . . lose
contact with reality . . . .” Accordingly, he asserted that the “occurrence of many different kinds of
bizarre, unusual behavior in an individual,” such as the instant offense, would be consistent with his
diagnosis. He concluded that, at the time of the instant offense, the appellant was experiencing a
psychotic episode and was unable to comprehend the nature and wrongfulness of his conduct.

               The psychologist conceded that the appellant’s psychotic episode would have lasted
several hours. Indeed, Dr. Ciocca assumed that the appellant’s “decline into this [psychotic] state
took some time and that his movement out of the state took some time.” Dr. Ciocca further
conceded that he was unsure how much time elapsed between the appellant’s offense and his apology
to the victim’s mother and was unsure whether or not the appellant was still experiencing the
psychotic episode when he apologized to the victim’s mother following this offense.

                In cross-examining Dr. Ciocca, the State questioned him concerning the appellant’s
statements to the police, including a portion of the appellant’s confession that had been redacted
from the statements introduced during the State’s case-in-chief. In the redacted portion of his
confession, the appellant stated that a similar incident had almost taken place with another child, but
he had controlled his conduct because he realized that his impulse was wrong. Again, Dr. Ciocca
conceded that the appellant had provided substantially identical information to him during the course
of the psychologist’s interviews with the appellant and that he had considered this information in
forming his opinion on the issue of insanity. With respect to the appellant’s statement concerning
this prior incident, the trial court instructed the jury that it was to consider this evidence solely for
the purpose of evaluating Dr. Ciocca’s testimony concerning the appellant’s mental state at the time
of the offense.

                In rebuttal, the State presented the testimony of Kenneth Fulmar, the manager of the
Bartlett Men’s Single Tennis League. He testified that the appellant was a participant in the tennis
league and had won the tennis league tournament on June 16, 1997, approximately one month prior
to this offense. The State also presented the testimony of Bob Jackson with the United States Postal
Service. Mr. Jackson testified that the appellant was a “general expediter,” responsible for ensuring
that outgoing mail bags were placed in the correct truck or van. According to Mr. Jackson, the
appellant’s work evaluation from May 1997 through July 1997 indicated above average job
performance by the appellant in all categories, including reliability, appearance, personal conduct
and integrity, ability to get along with others, ability to accept criticism, productivity and work
habits, attitude toward work, co-workers, and supervisors, ability to understand and follow
instructions, willingness to handle all assignments, punctuality, and safety consciousness. Mr.
Jackson also noted that, during these three months, the appellant took two days of sick leave and


                                                  -5-
fourteen or fifteen days of “annual leave.” Mr. Jackson acknowledged that the period extending
from May through July is generally “peak annual leave time.”

                The State also presented the testimony of Dr. John Whirley, a psychologist and a
friend of Dr. Ciocca. He stated that he interviewed the appellant on July 2, 1998, approximately one
year following the instant offense, in order to determine if the appellant was competent to stand trial
and whether a defense of insanity was viable. Dr. Whirley additionally reviewed numerous records
documenting the appellant’s treatment and evaluation following this offense by psychologists Dr.
Ciocca and Dr. Murphy and psychiatrist Dr. Hoehn. Finally, he examined records pertaining to
police interviews with the appellant.

               Dr. Whirley initially noted that, prior to the instant offense, the appellant had no
history of mental illness or psychological treatment. As to the psychological testing performed by
Dr. Ciocca and the results thereof, Dr. Whirley testified that the scoring systems for tests such as the
MMPI and the Millon Inventory are based upon “normative or standardized group[s]” representing
the general population. According to Dr. Whirley, when a test subject is a member of a sub-group
of the population, such as the hearing-impaired, “you can get biased scores.” He also noted that the
Millon Inventory II test performed by Dr. Ciocca had been “taken off the market. . . . The Millon II
apparently was over exaggerating pathology in even normal people - making them look like they had
problems . . . .” Finally, Dr. Whirley noted that the results of the psychological testing were
inconsistent with all other available information, including the appellant’s other psychological
records, Dr. Whirley’s own observations of the appellant, and information provided by the
appellant’s family members.

               In this regard, Dr. Whirley observed that the results of the psychological testing
               describe[] a severe psychological disorder, florid psychotic process,
               which includes personality decompensation, social withdrawal,
               disordered affect, erratic, maybe assaultive behavior, confused,
               withdrawn, preoccupied with abstract ideas, may feel that others are
               against him because of his beliefs, apathetic and so forth. In other
               words, it describes a very disorganized, withdrawn, floridly psychotic
               individual in the text of this thing.

                I find that this description - if a person were as psychotic and
                disorganized as this description suggests, I cannot imagine how he
                could sit down and interact in a fashion that is revealed in the
                interviews - both with Dr. Ciocca and with the police and also in his
                written responses to Dr. Ciocca’s questions. Now, those are
                inconsistent with what the MMPI says. The MMPI is also
                inconsistent with my experience with him, but that was certainly one
                year later. And it was inconsistent with some of the family
                descriptions as well.



                                                  -6-
                One of the things that both of the - the Millon and the MMPI
                suggested is that these are, to some extent, long term personality
                characteristics of him, and that is certainly not consistent with my
                perception of Mr. Weeks. I found him to be a likeable, pleasant,
                responsive individual.
                                               ***
                [I]t would be extraordinary for a person with a severe case of
                paranoid schizophrenia to be able to function well in society without
                medication and have good interpersonal relationships and function
                well on a job involving working with other people. So that’s part of
                where I get into some concern about what this test is really saying . .
                ..
Dr. Whirley further noted that if the MMPI were accurate, one would expect the appellant to exhibit
“rage and [experience] violent episodes,” and there was simply no evidence of such behavior by the
appellant. Dr. Whirley concluded that the symptoms described by family members were more
consistent with depression than any paranoid psychosis. Indeed, Dr. Whirley noted that the
psychiatrist Dr. Hoehn limited his diagnosis of the appellant to “major depression - single episode”
and administered anti-depressant medications rather than anti-psychotic medications.

                In reference to Dr. Ciocca’s testimony that, at the time of this offense, the appellant
was experiencing a psychotic episode during which he was unable to appreciate the wrongfulness
of his conduct, Dr. Whirley described a “brief psychotic episode”:
                It includes the presence of delusion - one or more delusions,
                disorganized speech, or grossly disorganized or catatonic behavior
                and that this episode should last at least one day but less than one
                month . . . .
He further stated, “In my experience, it’s rare to see something happen and last just a couple of
hours.” He observed that people may “ come out . . . [of a psychotic episode] over days, but to go
in and out briefly would be something I haven’t seen.” He concluded that, at the time of this offense,
the appellant was able to appreciate the wrongfulness of his conduct.

                The State specifically questioned Dr. Whirley concerning the appellant’s statements
to the police. Dr. Whirley responded that, in forming his opinion on the issue of insanity, he did rely
in part upon the appellant’s statement to police that he had immediately apologized to the victim’s
mother following his offense. He similarly noted the appellant’s account of a prior incident with
another child during which the appellant controlled his behavior because he understood the
wrongfulness of his impulse. Moreover, Dr. Whirley opined that the appellant’s reluctance to reveal
this prior incident to the police suggested that, at least at the time of his interview with the police,
the appellant understood the wrongfulness of his conduct.

                Reviewing the above evidence, I would conclude that the trial court’s admission of
the appellant’s statements to the police did not affect the jury’s determination that the appellant
failed to establish his insanity at the time of the offense by clear and convincing evidence. In


                                                  -7-
reaching this conclusion, I acknowledge that, absent the trial court’s erroneous admission of the
appellant’s statements to the police, the State could not have used the statements to impeach a
defense witness other than the defendant himself. See, e.g., James v. Illinois, 493 U.S. 307, 311-312,
110 S.Ct. 648, 651 (1990). Moreover, the State could not have used such statements as substantive
evidence to rebut the appellant’s defense of insanity. See, e.g., United States v. Hinkley, 672 F.2d
115, 132-134 (D.C. Cir. 1982), overruled in part on other grounds by Hudson v. Palmer, 468 U.S.
517, 525-526, 104 S.Ct. 3194, 3200 (1984); People v. Ricco, 437 N.E.2d 1097, 1101 (N.Y. App.
1982); State v. Hubbard, 693 P.2d 718, 721-722 (Wash. 1985). Cf. State v. DeGraw, 470 S.E.2d
215, 222-224 (W. Va. 1996)(consistent with James v. Illinois, when a defendant offers the testimony
of an expert in presenting the insanity defense and the expert’s opinion is based, to any appreciable
extent, on the defendant’s statements to the expert, the State may offer into evidence for
impeachment purposes the defendant’s contradictory statements to police obtained in violation of
Miranda); Wilkes v. United States, 631 A.2d 880, 889-891 (D.C. App. 1993)(enunciating the same
principle). However, as noted earlier, the appellant made substantially identical statements to his
own, defense-retained psychologist, Dr. Ciocca. By asserting the affirmative defense of insanity and
presenting Dr. Ciocca’s testimony in support of his defense, the appellant “waived” any
constitutional privilege with respect to his inculpatory statements to Dr. Ciocca that enabled the
psychologist to form an opinion on the issue of insanity. See, e.g., Isley v. Dugger, 877 F.2d 47, 49-
50 (11th Cir. 1989); Noggle v. Marshall, 706 F.2d 1408, 1416 (6th Cir. 1983). The appellant similarly
waived his statutory psychologist-client privilege. See Tenn. Code Ann. § 63-11-213
(1997)(privileged communications between licensed psychologists and client are placed upon the
same basis as those provided by law between attorney and client); cf. Bryan v. State, 848 S.W.2d 72,
80-81 (Tenn. Crim. App. 1992). Absent these constitutional and statutory bars, the prosecutor could
cross-examine Dr. Ciocca concerning the appellant’s statements to the psychologist that were a basis
of his opinion. Tenn. R. Evid. 705.

                 Of course, in rebuttal, the State also questioned its own expert concerning the
appellant’s statements to the police. Moreover, in forming their opinions on the insanity issue, Dr.
Ciocca and Dr. Whirley did not rely solely upon the substance of the appellant’s statements to the
police, echoed in the appellant’s statements to Dr. Ciocca, but also upon the fact of the appellant’s
confession, i.e., his acknowledgment of wrongdoing soon after the offense, and the coherence of the
confession. Nevertheless, particularly in light of the appellant’s burden of proof on the issue of
insanity, I would conclude beyond a reasonable doubt that the psychologists’ testimony concerning
the appellant’s confession did not tip the balance in favor of the State. First, there was other
evidence of the appellant’s immediate acknowledgment of guilt following the offense. Second, in
certain respects, the appellant’s confession supported the appellant’s claim of insanity. Thus, during
closing argument, defense counsel highlighted the appellant’s statement to police that he began to
lose his mind prior to the offense and the appellant’s somewhat bizarre focus in his confession upon
the possibility that he was suffering from kidney stones. Finally, there was abundant other evidence
controverting the appellant’s claim of insanity and raising serious or substantial doubts concerning
Dr. Ciocca’s conclusions.




                                                 -8-
                As to the impact of the appellant’s statements to the police on the broader issue of
guilt or innocence, I acknowledge that the impact was not cumulative because the relevance of the
appellant’s statements to Dr. Ciocca would have been limited to the issue of the appellant’s insanity.
Noggle, 706 F.2d at 1416. Nevertheless, the remaining evidence of the appellant’s guilt was simply
overwhelming. Indeed, aside from his assertion of the insanity defense, the appellant’s sole
argument concerning his guilt or innocence of aggravated sexual battery related to the adequacy of
proof that the appellant had touched the victim’s intimate parts or clothing covering the immediate
area of the victim’s intimate parts. In light of the victim’s statement that the appellant laid on top
of her and “peed” on her and in light of the presence of sperm and semen on the victim’s underwear,
I am confident in concluding beyond a reasonable doubt that the admission of the appellant’s
statements to the police did not affect the jury’s resolution of this issue.

                Finally, I do not believe that the suppression of the statements would have afforded
the appellant a more successful defense. On the one hand, had the appellant chosen to forego an
insanity defense and instead testify and deny his commission of the offense, he would have been
subject to impeachment by his otherwise inadmissible statements to the police. See, e.g., Oregon
v. Hass, 420 U.S. 714, 723-724, 95 S.Ct. 1215, 1221 (1975); Harris v. New York, 401 U.S. 222,
225-226, 91 S.Ct. 643, 645-646 (1971); State v. Harts, 7 S.W.3d 78, 85 (Tenn. Crim. App. 1999);
State v. Electroplating, 990 S.W.2d 211, 225-226 (Tenn. Crim. App. 1998)(citing Walder v. United
States, 347 U.S. 62, 74 S.Ct. 345 (1954), and United States v. Haven, 446 U.S. 620, 627, 100 S.Ct.
1912, 1916 (1980)). On the other hand, had the appellant chosen neither to testify nor to present an
insanity defense, the evidence of his guilt was overwhelming.

                 For the foregoing reasons, I would conclude that the admission of the appellant’s
statements to the police was harmless beyond a reasonable doubt and would affirm the judgment of
the trial court.



                       ___________________________________
                           NORMA McGEE OGLE, JUDGE




                                                 -9-
