         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 11, 2001

             STATE OF TENNESSEE v. CHRISTOPHER M. FLAKE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 97-09256    Bernie Weinman, Judge


                    No. W2000-01131-CCA-MR3-CD - Filed July 13, 2001


The defendant was indicted for attempted first degree murder. A Shelby County jury convicted the
defendant of the lesser-included offense of attempted voluntary manslaughter, and the trial court
sentenced him to four years imprisonment. In this appeal, the defendant alleges: (1) his insanity
defense was established by clear and convincing evidence; (2) the trial court erroneously admitted
statements made by the defendant and a weapon seized from his vehicle; (3) the trial court
erroneously restricted the testimony of a psychiatrist by disallowing his statement that the defendant
was committable if found not guilty by reason of insanity, while allowing him to testify that the
defendant stated he believed he would be free to go home within 60 to 90 days if adjudicated not
guilty by reason of insanity; (4) the trial court erroneously allowed the state to call a psychiatrist
because the defense was not notified pre-trial that he would be an expert witness; (5) the trial court
improperly found that a psychiatrist was qualified to testify as an expert; and (6) the trial court
erroneously refused the defendant's request to have the opening and rebuttal closing arguments.
After a through review of the record, we reverse the judgment of conviction, modify the judgment
to “Not Guilty by Reason of Insanity,” and remand for further proceedings pursuant to Tenn. Code
Ann. § 33-7-303.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
               Modified to “Not Guilty By Reason of Insanity;” Remanded

JOE G. RILEY, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and ROBERT
W. WEDEMEYER , JJ., joined.

Leslie I. Ballin, Memphis, Tennessee, and Steven E. Farese, Ashland, Mississippi, for the appellant,
Christopher M. Flake.

Paul G. Summers, Attorney General and Reporter; Patricia C. Kussmann, Assistant Attorney
General; William L. Gibbons, District Attorney General; Thomas D. Henderson and John W.
Campbell, Assistant District Attorneys General, for the appellee, State of Tennessee.


                                             OPINION
                                                        FACTS

        The background of this case is quite bizarre, although the facts surrounding the shooting are
undisputed. The victim was a pastoral counselor at a local church, and he met the defendant
approximately six weeks prior to the shooting. The victim scheduled counseling sessions with the
defendant three times, each of which the defendant canceled. On April 6, 1997, the victim and
Patricia Ann Hoffman were meeting in his office when the defendant, whom the victim recognized,
"stuck his head in" the office and inquired if he could meet with the victim. When the victim
responded that he would meet with the defendant in fifteen minutes, the defendant shook his head
in disapproval and exited the office. Several minutes later the defendant burst into the victim's
office, wielding a pistol, and yelled the victim's name. The startled victim inquired if the defendant
was kidding. The defendant responded that he was not kidding and shot the victim. Hoffman
screamed, and the defendant held a gun to Hoffman's head before fleeing.

       On cross-examination, the victim testified that there was no ill will between the defendant
and him. He described the incident as being "[s]omething totally off the wall, weird, and crazy.”
He further described the defendant as changing from a normal appearance when the defendant first
walked into his office, into being “horrible looking,” “crazed,” and "the devil himself.”

        Officer Robert Brandon Lampley was dispatched to the defendant's residence. Officer
Lampley testified that he saw a vehicle pull in the defendant's driveway. The defendant then exited
this vehicle and was taken into custody. The defendant's father exited the house and instructed the
defendant to cooperate with the officers.

       Detective Johnny T. Brown met with the defendant at the residence and advised him of his
Miranda rights. The defendant responded that he understood them. After informing Detective
Brown that the weapon used in the shooting was located in the vehicle's glove box, the defendant
executed a consent to search form. Detective Brown opened the glove box and seized the pistol.

        At trial, the defendant relied upon the insanity defense and offered the testimony of Dr. Lynne
Zager, Dr. Hilary Linder, Dr. Rokeya Farooque, Dr. Sam Craddock, Dr. John Hutson and Rebecca
Smith. The state offered rebuttal testimony of Dr. John McIntosh, Dr. Mark Luttrell, and John Perry.
All of these witnesses testified about their mental evaluations performed on, or observations of, the
defendant after the commission of the offense.1

         Dr. Lynne Zager, a clinical psychologist and Director of the Forensic Services Program at
Midtown Mental Health Center, testified that she evaluated the defendant from October 17, 1997,
to January 28, 1998, under a court order for the purpose of determining the defendant’s competency
for trial and mental state at the time of the shooting. Dr. Zager determined that the defendant


         1
          The defendant was found inco mpetent to sta nd trial on sev eral occasio ns. After receiving treatment, including
anti-psychotic medication, the defendant was finally determined to be competent to stand trial in February 1999.
Defenda nt’s trial began N ovemb er 15, 19 99.

                                                           -2-
suffered from paranoid schizophrenia on April 6, 1997, and due his severe mental illness, he could
not appreciate the wrongfulness of his conduct. She stated the defendant’s mental state was
evidenced in Dr. Janet Johnson’s medical records, upon which Dr. Zager relied.2 Dr. Johnson’s
records indicated that she saw the defendant on April 3, 1997, three days prior to the shooting, at the
request of the defendant’s father “because of his [the defendant’s] bizarre behavior.” The records
indicated the manifestation of the defendant’s bizarre behavior occurred when he, after seeing a man
on a farm, placed his Prozac medication in the man’s mailbox because he “felt that the man was in
need of help.”

         Dr. Hilary Linder, a psychiatrist employed by the state at Western Mental Health Institute,
testified that he evaluated the defendant pursuant to a court order in November 1998. He determined
the defendant was a paranoid schizophrenic; was severely mentally ill at the time of the shooting;
and could not appreciate the wrongfulness of his actions.

        Dr. Rokeya Farooque, a psychiatrist employed by the state at Middle Tennessee Mental
Health Institute, testified she evaluated the defendant from November 17, 1997, to December 16,
1997. Dr. Farooque stated that the defendant’s medical records indicated he experienced
hallucinations, blackouts, major depression, an anxiety disorder, and an obsessive-compulsive
disorder starting at the age of 12 or 13, and he received psychiatric treatment and hospitalization as
a result of his conditions. Dr. Farooque testified that the defendant was a paranoid schizophrenic,
and he could not appreciate the wrongfulness of his conduct.

       Dr. Sam Craddock, a clinical psychologist employed by the state at Middle Tennessee Mental
Health Institute, testified that he examined the defendant in November and December of 1997,
pursuant to a court order. He tested the defendant and found that the defendant was not malingering,
although he conceded certain test results might suggest malingering. Dr. Craddock opined that the
defendant suffered from a serious mental condition at the time of the shooting, and he could not
appreciate the wrongfulness of his actions “with a condition.” He stated that the defendant believed
he “morally felt justified to do it.”

        Dr. John Hutson, a clinical psychologist, testified that he was hired by the defendant’s family
and initially met with the defendant on April 8, 1997, two days after the shooting, in the Shelby
County Jail. Initially, the defendant refused to talk with him because he was instructed by his
attorney to be silent. Accordingly, Dr. Hutson requested defense counsel instruct the defendant that
it was permissible to talk with him, and defense counsel complied. Dr. Hutson testified that the
MMPI-II test indicated the defendant was psychotic. Dr. Hutson further testified that he had done
competency/insanity evaluations on over 10,000 patients since 1974, and he concluded in only
approximately 25 cases that the patient could not appreciate the wrongfulness of his or her conduct.
He stated that the defendant suffered from “a very serious incapacitating psychiatric illness” from
which the defendant could not appreciate the wrongfulness of his actions. Dr. Hutson further stated
that “ Mr. Flake is one of [the] three most disturbed individuals I’ve ever seen in my career.” Dr.


       2
           Dr. John son was de ceased at the time of trial.

                                                              -3-
Hutson diagnosed the defendant as suffering from schizophrenia, undifferentiated-disorganized type.
Dr. Hutson insisted that he did not believe the defendant was malingering, although he conceded
some mental health experts might use a different numbering system on the MMPI-II test which might
suggest otherwise.

        Rebecca Smith, a psychiatric social worker employed by the state at Western Mental Health
Institute, examined the defendant and stated that the defendant believed the victim was a terrorist.
She further testified that the defendant claimed that voices told him to shoot the victim, but not kill
him, and it would be a signal for the FBI.

       The state’s rebuttal proof consisted of testimony from Dr. John McIntosh, Dr. Mark Luttrell,
and John Perry.

        Dr. John McIntosh, a psychiatrist employed by the Shelby County Jail to render psychiatric
care to inmates, testified that he conferred with the defendant for approximately one hour on May
9, 1997, at the Shelby County Jail. Dr. McIntosh testified he found no evidence that the defendant
suffered from psychosis. Dr. McIntosh believed the defendant had a depressive disorder and did not
suffer from schizophrenia. On cross-examination, Dr. McIntosh conceded that the other mental
health professionals had an opportunity to observe the defendant for a thirty-day period and were in
a better position to perform a comprehensive evaluation. Dr. McIntosh acknowledged that he did
not have the defendant’s prior medical records, and the defendant seemed to be doing well on the
psychotropic medicine he had been taking. Dr. McIntosh prescribed both anti-depressant and anti-
psychotic medications. Dr. McIntosh further conceded that he agreed with the other evaluations that
the defendant had a “serious mental disease,” but disagreed that it was schizophrenia. He further
acknowledged that he did not examine the defendant for the purpose of determining competency or
insanity. Dr. McIntosh was never asked if he believed the defendant could appreciate the
wrongfulness of his conduct in view of his severe mental disease.

         Dr. Mark Luttrell, a physician who provided medical services at the Shelby County Jail,
testified that he was the defendant’s primary care physician. Additionally, he stated that he had
completed a residency in psychiatry but was not board certified in psychiatry. He stated that he
treated the defendant in July 1997, for a urinary tract infection and noticed no apparent mental
distress. Dr. Luttrell further stated that the defendant “was unremarkable, . . . just like everybody
else.” Dr. Luttrell further stated that he observed no signs of schizophrenia. He testified that he did
not conduct a mental evaluation of the defendant, but agreed with Dr. McIntosh’s diagnosis that the
defendant suffered from a severe mental disorder.

         John Perry, the director of mental health for the Shelby County Jail, testified that he saw the
defendant four or five days per week. He further stated that the defendant did not “sit and stare” in
jail, as he stated the defendant was doing in court. Additionally, Perry testified that he joked with
the defendant one week prior to court concerning the defendant’s weight gain experienced while in
jail. On cross-examination, Perry acknowledged that he put the defendant in “protective custody”
since he had experienced problems with other inmates.


                                                  -4-
        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 returned a guilty verdict on attempted voluntary manslaughter.


                                     I. INSANITY DEFENSE

        The defendant contends that he met his burden of proof in establishing the defense of insanity
by clear and convincing evidence. Upon our review of the record, we must agree with the defendant.

A. Standard of Review

       Effective July 1, 1995, the defense of insanity became an affirmative defense. The statute
provides:

       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.

Tenn. Code Ann. § 39-11-501(a) (emphasis added). This statute places the burden on the defendant
to establish insanity by clear and convincing evidence; the state is not required to prove sanity. See
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999).

         In determining the issue of insanity, the trier of fact may consider both lay and expert
testimony and may discount expert testimony which it finds to be in conflict with the facts of the
case. State v. Sparks, 891 S.W.2d 607, 616 (Tenn. 1995); State v. Jackson, 890 S.W.2d 436, 440
(Tenn. 1994). Where there is a conflict between expert testimony and testimony as to the facts, the
trier of fact is not required to accept expert testimony over other testimony and must determine the
weight and credibility of each in light of all the facts and circumstances of the case. Edwards v.
State, 540 S.W.2d 641, 647 (Tenn. 1976). In determining the defendant's mental status at the time
of the alleged crime, the trier of fact may look to the evidence of his actions and words at or near
the time of the offense. Sparks, 891 S.W.2d at 616; Humphreys v. State, 531 S.W.2d 127, 132
(Tenn. Crim. App. 1975).

B. Analysis

       It is undisputed that the defendant had a prior history of mental illness with hospitalizations.
He was comprehensively evaluated on numerous occasions, pursuant to court orders, after his arrest
on these charges. All such evaluations were performed by mental health experts with extensive
experience in conducting mental health evaluations for the criminal justice system. Some were
employed by the State of Tennessee; others were not. All agreed the defendant was incompetent to


                                                 -5-
stand trial for many months. In fact, the defendant remained incompetent to stand trial for almost
two years after the shooting. After many months of treatment and medication, he was finally
declared competent to stand trial in February 1999. Both evaluating psychiatrists and all evaluating
clinical psychologists testified that the defendant, at the time of the offense, suffered from a severe
mental disease and was unable to appreciate the wrongfulness of his act.3 The medical testimony
consistently supported the statutory elements of the insanity defense. See Tenn. Code Ann. § 39-11-
501. Even the two non-evaluating physicians called by the state in rebuttal agreed that the defendant
suffered from a severe mental disease.

         The testimony of state witnesses Dr. John McIntosh, Dr. Mark Luttrell, and John Perry did
not create an issue for the jury. Dr. McIntosh did not perform an evaluation to determine the basis
for an insanity defense; he examined the defendant for only one hour; he acknowledged that the other
professionals who performed comprehensive evaluations were in a better position to render an
analysis; he did not have the defendant’s prior medical records; he agreed that the defendant had a
“severe mental disease;” and he did not testify as to appreciation of the wrongfulness of conduct
based upon this severe mental disease. Dr. Luttrell treated the defendant for a physical illness in July
1997; he did not conduct a mental evaluation; yet, he agreed that the defendant had a severe mental
disorder. John Perry offered no insight into the defendant’s mental condition at or near the time of
the shooting.

         A defendant is required to establish the defense of insanity by “clear and convincing
evidence.” Tenn. Code Ann. § 39-11-501(a). “Clear and convincing evidence” is “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 (citations omitted). Although this is a higher standard than
“preponderance of the evidence,” it is a lesser standard than “beyond a reasonable doubt.” O’Daniel
v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).

         After a through review of the evidence, we reach the following inescapable conclusion: 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. Thus, the defense of insanity was established by clear and convincing
evidence. See. Tenn. Code Ann. § 39-11-501(a).

        Although this court affirmed the rejection of the insanity defense in Holder, 15 S.W.3d at
914, a case in which expert testimony supported the insanity defense, we view Holder as
distinguishable. We emphasize that each case is fact specific. In Holder, the trial judge, as the trier
of fact, specifically recited numerous instances of the defendants’s conduct at or near the time of
commission of the offense, including the defendant’s admission that he knew the killing was
“wrong.” Id. at 909-10. We believe the facts of the instant case are distinguishable. In short, our
review of the record does not reveal sufficient lay testimony, nor expert testimony, concerning the


        3
          W e do not view Dr. Craddock’s testimony that the defendant believed the shooting wa s morally justified to
be inconsistent with the testimony of the other four evaluating m ental health experts.

                                                        -6-
defendant’s mental state at or near the time of the shooting that would justify rejection of the insanity
defense.

        In reaching this conclusion we are mindful that issues of credibility, the weight and value to
be given the evidence, as well as all factual issues raised by the evidence, are for the trier of fact, not
this court. State v. Tuttle, 914 S.W.2d 926, 932 (Tenn. Crim. App. 1995). Nor may this court
reweigh or re-evaluate the evidence. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Nevertheless, if we determine, after viewing the evidence in a light most favorable to the state, that
a rational trier of fact could only find that insanity has been established by clear and convincing
evidence, then a guilty verdict may not be sustained. See generally Tenn. R. App. P. 13(e); Jackson
v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). We so find in this
case.

       Accordingly, the judgment must be modified to “Not Guilty By Reason of Insanity” and the
case remanded for further proceedings pursuant to Tenn. Code Ann. § 33-7-303.


                                         II. SUPPRESSION

         The defendant contends the trial court erred by denying his motion to suppress. Although
this issue is procedurally moot due to our reversal of the conviction, we will briefly address this issue
in the event of review by the Supreme Court of Tennessee.

        At the suppression hearing, only Officer Robert Brandon Lampley, Detective Johnny T.
Brown, and Dr. John Hutson testified. Officer Lampley and Detective Brown testified as to their
encounter with the defendant at his residence at the time of his apprehension. In essence, both
indicated that defendant seemed to understand what was transpiring, knowingly indicated his
involvement in the shooting, told them where the weapon was, and knowingly signed the consent
to search his car which led to the seizure of the weapon. Dr. Hutson testified that the defendant
suffered from schizophrenia, was one of the three most mentally disturbed people he had seen, and
could not understandingly waive his Miranda rights nor understanding consent to a search. The trial
court found that the Miranda waiver and consent to search were knowingly executed and denied the
motion to suppress.

        This issue presents a close question; however, we find it unnecessary to determine whether
the evidence preponderates against the findings of the trial court. If the trial court did err in failing
to grant the motion to suppress, we conclude the admission into evidence of the defendant’s
statement and the weapon was clearly harmless. It was undisputed that the defendant shot the victim.
The admission of the defendant’s statement and weapon did not affect the judgment. See Tenn. R.
App. P. 36(b).


                          III. TESTIMONY OF DR. HILARY LINDER


                                                   -7-
       The defendant contends that the trial court erroneously allowed the state to elicit Dr. Linder’s
testimony that the defendant said he would be released within 60 to 90 days if found not guilty by
reason of insanity, while refusing to allow Dr. Linder’s testimony that the defendant was
“committable” and would not likely be released within such period. We find the trial court acted
properly.

A. Denial of Testimony Concerning Commitment

        Relevant evidence is defined as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. For the defendant to be successful in an
insanity defense, he must prove by clear and convincing evidence 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.” Tenn. Code Ann. §
39-11-501(a)(emphasis added). The issue of whether the defendant was “committable” at the
conclusion of his trial is irrelevant to his defense of insanity, nor is such evidence necessary to
correct any incorrect impression left with the jury.

B. Defendant’s Belief Concerning His Release Date

        The defendant alleges that the trial court improperly allowed Dr. Linder’s testimony
concerning the defendant’s perceived belief that he would be released within 60 to 90 days if he were
found not guilty by reason of insanity. The defendant objected to this testimony with a general
objection that appeared to be based on hearsay. During a jury-out hearing, the trial court overruled
the defendant’s objection and allowed this testimony holding that it showed the defendant’s state of
mind.

        On appeal, the defendant alleges this testimony was unfairly prejudicial and did not give the
jury an accurate view of the potential outcome. The defendant has changed theories on appeal.
Since an appellant cannot change theories from the trial court to the appellate court, this issue is
waived. State v. Dooley, 29 S.W.3d 542, 549 (Tenn. Crim. App. 2000). Regardless of waiver, it
is clear to this court that the testimony was properly admitted because it showed a motive for the
defendant to exaggerate his mental condition. The trial court properly instructed the jury that “this
has nothing to do with what the law is and you’re to make no assumptions from what he’s said.”
This issue is without merit.




                         IV. NOTIFICATION OF EXPERT WITNESS




                                                   -8-
      The defendant contends that the trial court erroneously allowed the rebuttal testimony of Dr.
John McIntosh since he was not timely notified that Dr. McIntosh would testify. We disagree.

        Tenn. Code Ann. § 40-17-106 provides that:

        It is the duty of the district attorney general to endorse on each indictment or
        presentment, at the term at which the same is found, the names of such witnesses as
        the district attorney general intends shall be summoned in the cause, and sign such
        indictment or presentment name thereto.

       The defendant concedes this statute is directory in nature, and the state’s failure to provide
notice of a witness does not necessarily disqualify that witness from testifying. See State v.
Hutchison, 898 S.W.2d 161, 170 (Tenn. 1994). It is clear from the record that the state did not have
knowledge of this witness’ identity until Dr. Zager’s testimony, when the state was first allowed the
opportunity to review certain records. Additionally, the defendant was given ample opportunity to
cross-examine Dr. McIntosh. The trial court properly admitted this rebuttal testimony.


                       V. EXPERT STATUS OF DR. JOHN McINTOSH

        The defendant next contends that the trial court erroneously allowed Dr. McIntosh to testify
as an expert. We disagree.

A. Standard of Review

        Tenn. R. Evid. 702 provides “[i]f scientific, technical, or other specialized knowledge will
substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or education may testify in
the form of an opinion or otherwise.” The determination of the qualifications of an expert witness
and the relevancy and competency of expert testimony are matters entrusted to the sound discretion
of the trial court. State v. Pulliam, 950 S.W.2d 360, 364 (Tenn. Crim. App. 1996) (citations
omitted). This court will not overturn the trial court's decision absent a clear abuse of discretion.
Id.

B. Analysis

        Dr. McIntosh testified that he had been board certified in adult psychiatry since 1981; he
worked in approximately ten prison systems; he had served as head of a psychiatric ward; and he had
served as a forensic evaluator. The defendant objected to expert status because Dr. McIntosh had
never been “officially declared” by any court as an expert. We find no authority, nor does the
defendant cite any, that requires a witness to have previously testified as an expert in order to be
granted expert status by the trial court. The trial court did not err in allowing Dr. McIntosh to testify
as an expert.


                                                  -9-
                                  VI. CLOSING ARGUMENTS

        The defendant alleges the trial court erroneously denied his request to give the opening and
rebuttal closing argument at the conclusion of the proof. We disagree.

       Tenn. R. Crim. P. 29.1(d) provides in pertinent part that:

       . . . while the [s]tate, having the burden of proof, shall have the right to open and
       close the argument, this right shall not be exercised in such way as to deprive the
       defendant of the opportunity to fully answer all [s]tate argument. The trial judge
       upon motion shall enforce this purpose by appropriate rulings.

         The defendant argues that because he is required to prove the affirmative defense of insanity
by clear and convincing evidence, he is entitled to the opening and rebuttal closing argument.
Firstly, the state still had the burden of proof of establishing guilt beyond a reasonable doubt. The
insanity defense did not erase that burden. Secondly, the order of final argument is not inherently
prejudicial to the defendant. See State v. Smith, 857 S.W.2d 1, 24 (Tenn. 1993) (holding the order
of final argument allowing state to begin and close final argument in a capital sentencing hearing is
not prejudicial to defendant). The trial court did not err in allowing the state to open and close final
argument.


                                          CONCLUSION

       Based upon our review of the record, we reverse the judgment of the trial court, modify the
judgment to “Not Guilty by Reason of Insanity,” and remand for further proceedings pursuant to
Tenn. Code Ann. § 33-7-303.




                                                        ___________________________________
                                                        JOE G. RILEY, JUDGE




                                                 -10-
