                    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



E. RILEY ANDERSON, J., with whom ADOLPHO A. BIRCH, JR., J., joins, concurring in part and
dissenting in part.


        I concur in the majority’s holding that a jury verdict rejecting the insanity defense should be
reversed only if the appellate court, viewing the evidence in a light most favorable to the prosecution,
concludes that 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.

       I disagree, however, with the majority’s application of the standard to the facts and
circumstances of this case in which virtually all of the lay and expert testimony established the
defendant’s insanity at the time of the offense. Tenn. Code Ann. § 39-11-501(a) (1997). In my view,
the Court of Criminal Appeals correctly determined that 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. I therefore dissent.

        As the majority recognizes, the evidence indicated that the only two witnesses to the offense
– Turner Carpenter, the pastoral counselor, and Patricia Ann Hoffman – described the shooting as
bizarre and unexplained. According to Carpenter and Hoffman, they were in Carpenter’s office in
a counseling session when the defendant “stuck his head in” and asked to meet with Carpenter.
When Carpenter said he would meet with the defendant in fifteen minutes, the defendant left briefly
and then suddenly returned wielding a pistol and yelling Carpenter’s name. After shooting
Carpenter, the defendant held the pistol to Hoffman’s head for a few moments and then fled from
the scene. Carpenter testified that the defendant was yelling in an “abnormal” voice and had changed
from a normal appearance to “horrible looking,” “crazed,” and "the devil himself.” Carpenter
described the shooting as “totally off the wall, weird, and crazy,” and said that there had been no ill
will between he and the defendant.1

        The evidence also established that the defendant had a ten-year history of mental illness,
including depression, mixed chemical dependency, oppositional disorder, and major affective
disorder, for which he had been hospitalized. The evidence showed that his mental state had
substantially deteriorated during the week immediately preceding this shooting. In fact, the
defendant’s bizarre behavior was so apparent that his worried father scheduled an additional
appointment with the defendant’s treating psychiatrist, Dr. Janet Johnson, on April 3, 1997, only two
days after his previous session. Dr. Johnson’s notes from the April 3, 1997 visit, which was only
three days before the shooting, described a recent incident where the defendant saw a man working
on his farm and left his Prozac medication in the man’s mailbox because he “looked like he needed
help.”

         Finally, the trial evidence revealed that a total of five mental health professionals, both
psychiatrists and psychologists, performed numerous, comprehensive evaluations of the defendant
and all determined that he suffered from a severe mental illness, schizophrenia, and was unable to
appreciate the wrongfulness of his conduct in shooting the victim. Indeed, after the offense and prior
to trial, the defendant was examined by a number of psychiatrists and, as a result of the proof, the
trial court found him to be incompetent to stand trial for a period of over two years after the offense.
The trial court declared him competent to stand trial only after the State had furnished extensive
treatment and anti-psychotic medication over the more than two years following the offense.

       The first mental health professional to evaluate the defendant was Dr. Lynne Zager, a clinical
psychologist and Director of the Forensic Services Program at Midtown Mental Health Center. She
examined him over a four-month period from October 1997 to January 1998 to determine his
competency to stand trial and his mental state at the time of the offense. Dr. Zager testified that the
defendant suffered from the severe mental illness of paranoid schizophrenia and that due to the
mental illness, he could not appreciate the wrongfulness of his conduct during the shooting on April
6, 1997. Dr. Zager relied in part on the notes of the defendant’s treating psychiatrist, Dr. Janet
Johnson, regarding the defendant’s bizarre behavior.2

         Next to testify was Dr. Hilary Linder, a practicing psychiatrist for 33 years employed by the
State at Western Mental Health Institute. He evaluated the defendant in November of 1998. Dr.
Linder, like Dr. Zager, determined that the defendant had suffered from paranoid schizophrenia since
his early teen years and could not appreciate the wrongfulness of his acts due to his severe mental
illness.


         1
                 After the offense, the defendant showed no emotion when he was arrested and looked “distraught” or
“tired” when questioned about the whereabouts of the gun. T he de fendant told o fficers that the gun wa s in a vehicle
glove box and he executed a consent to search form.

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

                                                          -2-
       Also testifying for the defense was Dr. Rokeya Farooque, a psychiatrist at Middle Tennessee
Mental Health Institute, who evaluated the defendant from November 17, 1997, to December 16,
1997. Dr. Farooque reviewed the defendant’s medical records which indicated the defendant had
experienced prior hallucinations associated with drug abuse, blackouts, major depression, an anxiety
disorder, and an obsessive-compulsive disorder. Dr. Farooque noted that the defendant had received
psychiatric treatment, including hospitalization, for his prior conditions. Dr. Farooque testified that
the defendant suffered from paranoid schizophrenia and was incapable of appreciating the
wrongfulness of his conduct in committing the offense.

        The last State-employed mental health professional testifying for the defense was Dr. Sam
Craddock, a clinical psychologist at Middle Tennessee Mental Health Institute, who stated that he
evaluated the defendant from November 17, 1997 to December 16, 1997. He agreed that the
defendant had paranoid schizophrenia, which is a serious mental illness, and that the defendant could
not appreciate the wrongfulness of his actions in committing the offense. Dr. Craddock added that
the defendant “morally felt justified” to shoot the victim because he apparently believed the victim
was a terrorist.

        The final mental health professional to testify for the defense was Dr. John Hutson, a clinical
psychologist employed by the defense, who stated that he had evaluated the defendant, reviewed his
lengthy history of mental illness and treatment, and administered several tests, including the MMPI-
II, which revealed he was psychotic. According to Dr. Hutson, the defendant believed he was
working for the government as an agent or enforcer when he shot the victim. Dr. Hutson determined
that the defendant suffered from schizophrenia, undifferentiated-disorganized type, which he called
a serious, incapacitating mental illness. He testified that the defendant was one of the three “most
disturbed individuals” he had ever seen among the over 10,000 persons he had evaluated in his
career, and one of only 25 patients whom Dr. Hutson concluded could not appreciate the
wrongfulness of his or her conduct.

         Finally, Rebecca Smith, a psychiatric social worker at Western Mental Health Institute,
testified that she interviewed and obtained a history from the defendant. According to Smith, the
defendant believed that Carpenter, the pastoral counselor, was a terrorist with access to chemical
weapons, and that voices told the defendant to shoot the victim as a signal to the F.B.I. to come to
the church to take care of the terrorists and mafia associated with the church.

       To summarize, all of the mental health professionals who completed numerous and
comprehensive evaluations of the defendant consistently determined that he suffered from a severe
mental illness, paranoid schizophrenia, and that he was unable to appreciate the wrongfulness of his
conduct in shooting the victim. All of these professionals had years of experience in conducting
competency and mental state evaluations. Three of these experts were employed by the State of
Tennessee and had no motive to provide testimony favorable to the defense; indeed, three of these
same expert witnesses had testified on behalf of the State with regard to whether the defendant was
competent to stand trial in this proceeding. In contrast, the State presented no expert testimony



                                                 -3-
showing that the defendant did not have a mental illness or that he could appreciate the wrongfulness
of his conduct.

        Although the majority has accurately summarized the evidence from the record, it
nonetheless upholds the jury verdict on the basis that the jury is to weigh all of the facts and
circumstances and that the jury is not required to accept expert testimony. I agree that the jury has
those responsibilities, yet I disagree with the majority’s conclusions in this case for several reasons.


        First, the majority argues that the defendant fabricated an answer on a gun application made
before the offense and acted “normally” on the day of the offense prior to the shooting. These
normal actions, however, are as characteristic of schizophrenia as abnormal actions. Second, the
majority speculates that the jury may have believed that the defendant’s motive for shooting the
victim was not because he thought the victim was a terrorist but was in someway related to the
defendant’s fantasy that the victim was a homosexual. The evidence noted by the majority did not
directly relate to the defendant’s mental state at the time of the offense, in contrast to the testimony
of the two eye-witnesses to the offense and the testimony of five mental health experts regarding the
defendant’s mental state at the time of the offense. Moreover, the inferences relied upon by the
majority did not refute the evidence of the defendant’s serious mental illness and his incapacity to
appreciate the wrongfulness of his actions at the time of the offense. In fact, the expert witnesses
testified without contradiction that persons suffering from schizophrenia do not act bizarre or appear
“crazy” all the time and often behave normally for periods of time.

        Finally, the majority argues that the State’s cross-examination of the defense experts
attempted to establish that the defendant was malingering and had never complained of auditory
hallucinations until after this offense was committed. All of the mental health experts uniformly and
without contradiction responded, however, that the defendant was not malingering or feigning the
symptoms of his mental illness. Moreover, two of the State’s own rebuttal witnesses – Dr. John
McIntosh and Dr. Mark Luttrell – refuted the malingering theory by agreeing that the defendant
suffered from a serious mental disease. Significantly, the State’s rebuttal witnesses were not asked
by the State the core question relevant to the defense of insanity, i.e., whether the defendant could
appreciate the nature or wrongfulness of his conduct in shooting the victim.

         This is not a case in which experts offered different opinions regarding the defendant’s
mental state. All were unanimous and testified without contradiction that the defendant suffered
from a severe mental illness, schizophrenia, and that he could not appreciate the wrongfulness of his
conduct. Nor is this a case in which there was lay testimony regarding the facts and circumstances
of the offense that differed from the expert testimony. In short, I can find no basis in this record for
the jury to have reasonably rejected the expert or lay evidence regarding the defendant’s mental state
at the time of the offense. Although I am fully aware that reversal of a jury’s verdict under the
standard we have adopted will be rare, I am concerned that by upholding the jury’s verdict under the
facts and circumstances of this case, the majority has made appellate review of a jury’s verdict
meaningless and useless.


                                                  -4-
         Accordingly, I concur in the majority’s holding that a jury verdict rejecting the insanity
defense should be reversed only if the appellate court, viewing the evidence in a light most favorable
to the prosecution, concludes that 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.
I disagree, however, with the majority’s application of the standard to the facts and circumstances
of this case. In my view, the Court of Criminal Appeals correctly determined that 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. I therefore dissent.

       I am authorized to state that Justice Birch joins in this concurring and dissenting opinion.


                                                       _______________________________________
                                                       E. RILEY ANDERSON, JUSTICE




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