         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              April 6, 2004 Session
                    STATE OF TENNESSEE v. JOY KENNEDY

                  Direct Appeal from the Circuit Court for Franklin County
                          No. 14176    Thomas W. Graham, Judge



                     No. M2003-01745-CCA-R3-CD - Filed June 14, 2004


The Defendant, Joy Kennedy, was found guilty by a jury of vehicular homicide, two counts of
reckless aggravated assault, and reckless driving. However, the trial court granted the Defendant’s
motion for judgment of acquittal, concluding that she had established the defense of insanity by clear
and convincing evidence. The State appealed on the ground that the trial court erred by granting the
Defendant’s motion for judgment of acquittal. The sole issue on appeal is whether a reasonable juror
could have concluded that the defense of insanity had not been established by clear and convincing
evidence. We hold that no reasonable juror could have failed to find that the Defendant was legally
insane at the time of the crimes. Therefore, we affirm the judgment of the trial court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

DAVID H. WELLES, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT W.
WEDEMEYER, JJ., joined.

H. Thomas Parsons and Eric J. Burch, Manchester, Tennessee, for the appellee, Joy Kennedy.

Paul G. Summers, Attorney General and Reporter; Elizabeth T. Ryan, Assistant Attorney General;
J. Michael Taylor, District Attorney General; and Steven M. Blount, for the appellant, State of
Tennessee.

                                             OPINION

        On October 23, 2001, the Defendant, a forty-two year old single woman who lived in
Chattanooga, was at the home of her parents in Winchester. The purpose of her visit was to pick up
her car after having had the engine rebuilt. She got into an argument with her parents that evening
and was upset when she left their home at approximately 7:45 p.m. Her parents followed her to a
nearby gas station, where the Defendant filled up her car’s tank, but did not pay for the gas. She left
in a hurry, squealing her tires and going toward downtown Winchester.

       Several witnesses saw the Defendant’s car speeding on North High Street going toward town.
Terry Evenson, who saw the Defendant’s car from his front yard, estimated that she was going ninety
to one hundred miles per hour. Elbert and Ina Hill were sitting in their car at a four-way stop at the
intersection of High Street and Second Avenue. They saw the Defendant run the stop sign without
even slowing down, and Mr. Hill estimated the Defendant’s car was going about seventy miles per
hour through town. Rhonda Wilkinson was also stopped at that intersection, and she also witnessed
the Defendant run through the four-way stop. She estimated that the Defendant was traveling at
approximately seventy-five miles per hour. Ann Campbell saw the Defendant’s car run through the
red light at the intersection of High Street and First Avenue Northwest.

        Cynthia Nunley, Marty Sons, and Joshua Sons, Marty’s ten-year-old son, were riding in Ms.
Sons’ Geo Metro. They were stopped at the red light at the intersection of High Street and First
Avenue Southwest. When the light turned green, they pulled out into the intersection. The
Defendant ran the red light and crashed into Ms. Son’s car. Ms. Nunley, who was driving Ms. Sons’
car, had no memory of the collision. She woke up in pain at the hospital. She underwent two weeks
of physical therapy for torn cartilage in her knee. She testified that her neck and knee were still
damaged from the wreck. Marty Sons, who was riding in the passenger seat, suffered bruising from
her seatbelt and a severe hematoma on her leg where it hit the gearshift. Joshua Sons, who was
riding in the back seat behind his mother, was airlifted to Vanderbilt Hospital. Although he was
wearing his seatbelt, he died as a result of blunt-force injuries to his head, neck, chest, back, and
spinal cord.

         The Defendant presented the testimony of three mental health experts. They each testified
that the Defendant suffered from a severe mental disease, specifically bipolar disorder with psychotic
episodes. They opined that, at the time of the wreck, the Defendant was delusional and was unable
to appreciate the nature or the wrongfulness of her conduct. Defense counsel also elicited testimony
from several witnesses who heard the Defendant make strange or bizarre statements before and after
the accident, which the experts explained were consistent with their diagnoses.

        Based on this evidence, the jury convicted the Defendant of vehicular homicide, two counts
of reckless aggravated assault, and reckless driving. In so doing, the jury implicitly rejected the
defense of insanity. The trial judge, however, granted the Defendant’s motion for judgment of
acquittal, finding that the defense of insanity had been established by clear and convincing evidence.
From this order the State appeals pursuant to Tennessee Rule of Appellate Procedure 3(c). See also
Tenn. R. Crim. P. 29(c).

       Tennessee’s insanity statute provides as follows:

              (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.



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               (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. Under the statute, the insanity defense applies only when the
defendant has a severe mental disease or defect that results in the defendant being “unable to
appreciate the nature or wrongfulness” of his or her actions. Id. § 39-11-501(a). Furthermore,
insanity is an affirmative defense, and as such, the defendant bears the burden of proving the defense
by clear and convincing evidence. See id. “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.” Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992).

        Much evidence was introduced at trial that called into question the Defendant’s ability to
appreciate the nature or wrongfulness of her conduct. Her father, Mike Kennedy, testified about the
Defendant’s background and mental health history, as well as her state of mind on the night of the
accident. At the time of the wreck, the Defendant was a revenue agent for the United States Internal
Revenue Service. Mr. Kennedy said that his daughter had lived on her own in Chattanooga for
fourteen or fifteen years. She graduated with highest honors from Tennessee Tech University and
received a Master’s Degree from the University of Tennessee at Chattanooga. The Defendant
dropped out of law school after one term because she suffered from depression. Her father explained
that she began to have manic depressive episodes at this time. She developed delusions that the
water supply in Cowan, where the family lived at that time, was poisoned and their house was
“bugged” with electronic eavesdropping devices. Therefore, she spent a few nights with neighbors,
and, when she returned home, she barricaded herself in a back bedroom. At that point, which was
sometime in 1986, their family doctor, a Dr. Stensby, had the Defendant committed to Middle
Tennessee Mental Health Institute, where she stayed for two months.

        When the Defendant was released from the hospital, she remained in a depressed state.
However, she went to work for the I.R.S. It was not until 1997 that she experienced what Mr.
Kennedy described as “a break in the illness.” As a result, she was committed by her doctor, a Dr.
McGee, to Moccasin Bend Mental Health Institute for a month. She was recommitted for another
month after a crisis team determined that her status had not improved. Mr. Kennedy testified that,
about this time, the Defendant made statements about “wanting to go to Washington to straighten
the president out.” She was subsequently released from the hospital and continued living on her
own. After the terrorist attack on September 11, 2001, the Defendant came home every weekend.
She was depressed and did not want to see or hear anything about the 9/11 tragedy. She also began
smoking small cigars, which her father said was “out of character for her.”

       Mr. Kennedy also testified that, before the Defendant left his house on the night of the
accident, she was very upset. She said that she was “no longer [their] little daughter.” She accused
her parents of not understanding her or knowing her fully. She also claimed that John F. Kennedy


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was still alive, and he was the antichrist. She stated that she was going to bear a child who would
be a great world leader. She also said that people “just needed to go by faith and love and not
necessarily by the precepts of any church.” At the gas station, when Mr. Kennedy saw the Defendant
pumping gas into her car, he asked whether she had already inserted her credit card into the machine.
She replied, “No, God’s going to take care of my gas.” Mr. Kennedy also explained that the reason
the Defendant’s car had been in the shop was that she had failed to put any oil in the engine, and the
engine had to be rebuilt.

        The Defendant also presented evidence that, shortly after the accident, she said irrational
things and behaved strangely. Joshua Hammer, who witnessed the crash on the night of October 23,
2001, went to the Defendant’s car to see if she was injured. He smelled gasoline, so he advised the
Defendant that they should get away from the car because it could catch fire. The Defendant
responded, “Just let it.” Mr. Hammer told the Defendant that she could be killed, and she replied,
“I don’t care.” When Mr. Hammer saw that the Defendant had a dog in the car with her, he tried to
get the dog out of the vehicle. The Defendant became very angry and said, “Keep your hands off my
fucking dog.” When the Defendant got out of her car, she stumbled around, looking “confused” and
“lost.” Mr. Hammer tried to help her into the back seat of a police car, but the door was locked. The
Defendant then began frantically jerking on the door, saying, “Just let me in here. I just want to get
in. I just want to get in.” She then began to curse the car and its door.

       Ty Brazier, one of the police officers who responded to the crash scene, testified that he had
to mace the Defendant because she was trying to kick out the back windows of the patrol car in
which she was sitting. When he asked her where she was from, she replied, “Out of this universe.”

        Marty Sons, one of the victims, testified that she was able to observe the Defendant when
they were both at the hospital. She testified that she heard the Defendant say “she didn’t care what
happened” and “she wished she could have killed herself.” Ms. Sons described the Defendant as
“hostile,” “very angry,” and “hollering” for her parents.

        In the statement the Defendant gave to the police on the day after the accident, she
maintained that she was “not crazy.” She told them that she was “not taking any drugs” because she
did not need them anymore. She trusted in God and the Holy Spirit to take care of her. One of the
officers asked her how long she had been off her medication, and she replied that she quit taking it
“about two days ago.” She also claimed to have “supernatural strength” “based on [her] belief in
Jesus Christ.” She told the officers that she “probably can kill somebody with [her] fingers,” but she
did not want to.

        Dr. Terry Holmes, a psychiatrist at Moccasin Bend Mental Health Institute, testified that he
began treating the Defendant on October 25, 2001, two days after the accident. She was committed
to Moccasin Bend for almost two months, after which the doctor treated her on an outpatient basis.
Dr. Holmes diagnosed the Defendant as suffering from “bipolar one disorder manic with psychosis,”
and he determined that there was a history of bipolar disorder in the Defendant’s family. A person
suffering from this disease would have long periods where she is in an “abnormal mood.” Her


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thoughts would race, she would be disorganized and extremely talkative, and she would have a
decreased need for sleep. Such a person would have a loss of judgment, an increase of energy, and
an inability to focus. Because the Defendant was also plagued by psychosis, she was out of touch
with reality. Dr. Holmes explained that this condition often is characterized by “a distortion in one’s
perception of how the world is made up,” and “falsely held belief[s].”

         Dr. Holmes characterized the Defendant as a typical psychotic; she had poor hygiene, she was
irritable, she was situationally unaware, she was disorganized, and she was not well-oriented to her
circumstances. He cited her delusions as clear evidence of her psychosis. For example, the doctor
cited her false beliefs that the water in Cowan was poisoned, that she was pregnant and would birth
“the savior of the race,” that President Kennedy was alive and the mastermind behind the 9/11
attacks, and that bipolar disorder was not real, as delusions that are typical with psychosis.
According to the doctor, the Defendant began her “decompensation” at least two weeks before the
accident. At that time, she began drinking several gallons of water a day. One night she came home
and “trashed” her parents’ house and was running around naked, “experiencing the freedom of a
child.” Dr. Holmes testified that, on the night of the accident, the Defendant had a falsely-held belief
that her car could fly. In his words, “she thought God would make her fly right over the other car.”
She told the mental health team that evaluated her, “I felt a tinge of sadness for the boy’s family, but
the boy is with God. All children go to God. If the parents are believers they will be with him
soon.” In the opinion of Dr. Holmes, the Defendant “has a severe mental illness,” and, on the night
of the accident, she lacked the ability to distinguish right from wrong because she was in a psychotic
state. He stated that at the time of the accident, she could not appreciate the nature or wrongfulness
of her actions.

        Dr. Joe Mount, a psychologist at Middle Tennessee Mental Health Institute, testified that the
Defendant was in his care from April 24 through May 9, 2002. He also determined that the
Defendant suffered from bipolar disorder and psychosis. He explained that her particular mental
problems would manifest themselves in an elevated, irritable mood that would last over one week,
a decreased need for sleep, loquaciousness, difficulty concentrating, racing thought patterns, plus
hallucinations or delusions. Dr. Mount testified that he thought he remembered evidence in the
Defendant’s record that, for several days prior to the accident, she had not taken her medication. Dr.
Mount opined that the Defendant’s manic behavior at the accident scene, as well as her beliefs that
God would pay for her gasoline and God would pull her car up over the other car, were consistent
with her bipolar disorder and psychosis.

        Dr. Mount administered several psychological tests to the Defendant. The results of one of
the tests revealed that the Defendant was stable and able to understand things and follow directions.
Another of the tests indicated that the Defendant was not “malingering,” or fabricating the symptoms
of her mental illness. Dr. Mount’s general impression of the Defendant was that she was “fairly
stable,” “well oriented,” “very bright,” “very cooperative,” “extremely courteous,” “very kind,”
“passive,” and “reserved.” He also testified that all of his findings were consistent with his diagnosis
of the Defendant’s mental disorder. He stated that she was not in touch with reality at the time of
the accident, and she “did not have an appreciation of the nature and wrongfulness of the offense.”


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He theorized that the Defendant’s breakdown may have been caused by an overreaction to the
September 11th tragedy.

         Dr. Bill Regan, a psychiatrist, evaluated the Defendant from April 24 through May 9, 2002
pursuant to a court order. The Defendant was referred to him by the district attorney general’s office.
He determined that the Defendant had a history of bipolar disorder with episodes of mania. He
believed that the Defendant’s delusions around the time of the wreck -- that J.F.K. was alive and
behind 9/11, and that she was pregnant with a “world leader” -- were triggered by the September
11th attacks. Dr. Regan testified that, at the time of the accident, the Defendant was “out of touch
with reality.” She believed that her car would fly if she pulled back on the steering wheel. She
thought it was a “test from God.” Furthermore, Dr. Regan testified that she later told the police that
she had “supernatural strength,” and she laughed about the accident and how fast she was driving.
In Dr. Regan’s opinion, the Defendant was “unable to appreciate the wrongfulness of her conduct
at the time [of the offense].” However, at the time he performed his psychiatric evaluation of the
Defendant, he found her not to be committable because she no longer posed a danger to herself or
others.

         The Tennessee Supreme Court has stated that
         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.1

State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002). In determining whether the jury properly rejected
the insanity defense, an appellate court must consider all the evidence in the record in the light most
favorable to the State, including evidence of the defendant’s actions or words at or near the time of
the offense, as well as lay and expert testimony. See id.

         The weight and value to be given expert testimony is a question for the jury. 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. 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.

Id. (citations omitted). “While a jury may not arbitrarily ignore evidence, a jury is not bound to
accept the testimony of experts where the evidence is contested.” Id. at 556.




         1
         This case differs procedurally from Flake in that the trial court in this case granted the Defendant’s motion for
judgment of acquittal. However, our standard of review remains the same.

                                                           -6-
         Having considered the evidence in this record in accordance with the principles set forth by
our legislature and our supreme court, we agree with the trial court that no reasonable juror could
have failed to find that the Defendant’s insanity was established by clear and convincing evidence.
In its order granting the Defendant’s motion for judgment of acquittal, the trial court summarized
the evidence in this case as follows:

       1)      Three imminently qualified experts, two psychiatrists and one psychologist,
               testified unwaveringly that in their opinion the Defendant was at the time of
               the wreck delusional and suffered from a severe mental disease, bi-polar
               mixed, and as a result did not appreciate the nature or wrongfulness of her
               acts.
       2)      This Court observed the demeanor of the experts, has reviewed the
               impeccable credentials of said experts and finds their testimony to have been
               unchallenged and unimpeached.
       3)      This Court has carefully reviewed the evidence of the Defendant’s conduct
               over the days and hours leading up to the wreck and finds nothing in that
               conduct which logically could be construed to defeat the Defendant’s proof
               of severe mental disease or defect or support a finding that the Defendant
               could appreciate the nature or wrongfulness of her acts.
       4)      This Court has carefully reviewed the Defendant’s statement taken at the
               hospital some nineteen (19) hours after the wreck and concludes that this
               statement is not sufficient to defeat the Defendant’s otherwise clear and
               convincing proof of insanity. This Court comes to this conclusion for two
               reasons: (1) this statement clearly evidences continuing delusion, and (2) the
               statement was taken many hours after the wreck and at a time when the
               Defendant had been heavily medicated with two doses of Haldol and one
               dose of Ativan which had resulted in her being “somewhat over sedated and
               lethargic” and caused her to be kept at the hospital “until her mental status
               had improved.”
       5)      There is no proof of malingering.


        The State argues that there was evidence presented at trial from which the jury could have
determined that the Defendant had failed to establish her insanity. First, Kelly Gass of the
Winchester Public Safety Department testified that, after investigating the accident scene, it appeared
to him that, just before the impact, the Defendant turned the steering wheel to the left and applied
her brakes. The State maintains that this physical evidence contradicts the statements made by the
Defendant to the police that “in my mind I’m thinking [God] was going to just raise the car or move
the car out of the way,” “I don’t even think I tapped on the brakes,” “It’s like and I just thought we
were going to go over. I . . . maybe I thought we were going to fly,” and “I was thinking I would
fly.” However, the State fails to explain how the fact that, just before impact, the Defendant applied
her brakes and turned the steering wheel, which are quite instinctive reactions, evidences her ability
to appreciate the nature or wrongfulness of her conduct. Indeed, Dr. Mount specifically testified that


                                                 -7-
someone experiencing such a delusion would still be able to drive and would understand that he or
she was driving a car. Therefore, the fact that the Defendant was able to apply her brakes and steer
her car does not indicate that she was not experiencing a delusion. In short, the physical evidence
at the accident scene does not contest or contradict the expert testimony that the Defendant was
delusional at the time of the wreck.

        The State also asserts that the jury could have found the Defendant to be sane based upon
statements she made to police officers in which she took responsibility for the death of Joshua Sons.
For example, she told police, “That was strictly my fault. One hundred percent.” “Well I take full
responsibility for the . . . or the blame for the death of the little boy.” “It’s my fault. . . . my child and
I just haven’t . . . there’s no need for lawyers or anything . . . I’ll do whatever. Whatever it takes
monitoring. . . . monetarily or whatever. Jail time I mean whatever.”

       However, Dr. Mount specifically testified that someone with the Defendant’s mental illness
would still be capable of feeling guilt and remorse upon learning that she had hurt someone.
Furthermore, Dr. Mount testified that the Defendant was still delusional at the time she gave the
statement to the police. In his words, “In reviewing the statement, and as a whole, I think this
statement is replete with grandiose religiosity and possible delusional material taken in its total
context.” He also testified that the statement from the Defendant to the police did not change his
diagnosis that her mental disease prevented her from understanding the nature and wrongfulness of
her conduct. Also, as the trial court noted in its order, the Defendant was heavily medicated at the
time she gave her statement to the police. Therefore, the Defendant’s statement to police, in which
she makes several outrageous and often incoherent claims, does not contradict the conclusion that
she was “out of touch with reality” at the time of the accident.

        Finally, the State argues that the jury could have found that the Defendant was trying to kill
herself. The State points to statements she made at the accident scene that she did not care if her car
caught fire and she died and her statement at the hospital that “she wished she could have killed
herself.” Dr. Mount testified that it was possible that the Defendant did want to kill herself, but she
was still in a delusional state that kept her from being able to understand the nature or wrongfulness
of her conduct. Therefore, these statements do not conflict with the evidence that the Defendant was
legally insane at the time of the wreck.

        We are quite aware that, by making insanity an affirmative defense that must be proven with
clear and convincing evidence, and by not allowing experts to testify to the ultimate issue of sanity,
our legislature has demonstrated its strong preference that the defense of insanity be difficult to
successfully maintain. See Tenn. Code Ann. § 39-11-501. Moreover, we recognize that the standard
of review that our supreme court set forth in Flake greatly limits the authority of an appellate court
to reverse a jury verdict rejecting the insanity defense. See 88 S.W.3d at 554. Indeed, the Court in
Flake explicitly stated, “Where the proof is contested, appellate courts should rarely reverse a jury’s
rejection of the insanity defense under this deferential standard of review.” Id. at 556. However, we
are also mindful that our supreme court has instructed that “a jury may not arbitrarily ignore
evidence.” Id. In this case, because the proof of the Defendant’s inability to appreciate the nature


                                                     -8-
or wrongfulness of her conduct was uncontested and there was no conflict in the evidence, we agree
with the trial court and conclude that the jury did arbitrarily ignore and disregard the evidence of the
Defendant’s insanity.

         In Flake, the trial court specifically declined to exercise its role as thirteenth juror and enter
a judgment of not guilty by reason of insanity, stating, “the defense of insanity was appropriately
litigated and I think that the jury appropriately made the proper determination.” Id. at 556. Here,
in its order granting the judgment of acquittal, the trial court stated: “At trial the insanity defense
was established by clear and convincing evidence, and neither the court nor the jury can ignore the
law.” Based on our review of the record in this case, we are unable to conclude that the trial judge
erred by granting the motion for judgment of acquittal.

        Therefore, the judgment of the trial court granting the Defendant’s motion for judgment of
acquittal is affirmed.



                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE




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