         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs February 24, 2004

     STATE OF TENNESSEE v. RICHARD LAFAYETTE SUMNER
                       Appeal from the Circuit Court for Cocke County
                           No. 8285    Ben W. Hooper, II, Judge

                                   _______________________

                                No. E2003-00570-CCA-R3-CD
                            ___________April 30, 2004____________

The defendant, Richard Lafayette Sumner, appeals as of right from his convictions by a jury in the
Cocke County Circuit Court for two counts of first degree premeditated murder, one count of first
degree felony murder, and one count of aggravated arson. The defendant was sentenced to life
imprisonment with the possibility of parole for each murder and twenty-five years for the aggravated
arson, to be served concurrently in the Department of Correction. He contends that the evidence is
insufficient to support the jury’s rejection of his insanity defense. We hold that the evidence is
sufficient to convict the defendant of first degree murder. We also hold, though, that the convictions
for the premeditated and felony murders in counts one and three should be merged pursuant to the
Double Jeopardy Clause. We affirm the convictions, but vacate the judgments as to counts one and
three and remand the case for the trial court to enter a judgment reflecting a merger of those two
counts.

 Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed in Part;
                            Vacated in Part; Case Remanded

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ALAN
E. GLENN , JJ., joined.

Edward C. Miller, District Public Defender, for the appellant, Richard Lafayette Sumner.

Paul G. Summers, Attorney General and Reporter; Thomas E. Williams, III, Assistant Attorney
General; Al C. Schmutzer, Jr., District Attorney General; James Bruce Dunn and Joanne Ellis,
Assistant District Attorneys General, for the appellee, State of Tennessee.

                                             OPINION

        This case relates to the defendant’s killing his mother and father, Richard and June Sumner,
on September 7, 2000. Sue Massey, the victims’ and the defendant’s neighbor, testified that in the
early hours of September 7, 2000, she smelled smoke but did not see a fire when she looked out of
her window toward the victims’ trailer. She said that around 6:00 a.m., her son returned home,
blowing his car’s horn. She said he told her the victims’ trailer was on fire and to call 9-1-1. On
cross-examination, Ms. Massey testified that she was aware the defendant had mental problems. She
said the defendant’s mother was worried about him but never mentioned the defendant becoming
violent.

         Willard Taylor, Chief of the Cocke County Fire Department, testified that when he arrived
at the victims’ trailer on September 7, 2000, it was engulfed in flames. He said that after the fire
department extinguished the fire, they went through the remains of the trailer and found two bodies.
He said that he later found the defendant about one-half mile from the trailer and that he was
standing next to a car with a shotgun on top of the car. He said he left without talking to the
defendant and told the police where they could find him. On cross-examination, Chief Taylor
testified that the defendant did not hide or run from him.

        April Mullins, the defendant’s sister, testified that her mother was sixty-one years old and
that her father was fifty-eight years old when they were killed. She said that her mother owned a
Chevrolet Celebrity and that she let the defendant drive the car whenever he wanted. She said the
defendant lived with their parents, was never married, but had two kids. She said the defendant had
never had a regular job but cooked and mowed the yard for their parents sometimes. She said she
knew the defendant was mentally ill but allowed him to babysit her three children on a regular basis.
She said the defendant gave her a letter in which he admitted killing their parents and apologized for
it. She said that in the letter, the defendant said that he was out of his mind when he killed their
parents, that aliens told him to do it, and that their mother had begged for her life before he killed
her. She said the letter stated that he set the fire to kill their father and that he held the door shut to
keep their father from escaping.

        On cross-examination, Ms. Mullins testified that when the defendant was taking his
medication, he was kind but that he could become violent when he did not take it. She said she did
not take her children to her parents’ trailer for the defendant to babysit after he quit taking his
medication in the fall of 2000. She said, however, that she did not believe the defendant was
dangerous; she just did not want to add to the stress at the trailer. She acknowledged that their
mother told her that on one occasion, the defendant had returned to the trailer naked, stating that
aliens were after him. She acknowledged that on another occasion, the defendant drove to the
Knoxville airport to meet these aliens. She said he had also called the police twice to report UFO
sightings. She said that the defendant had been involuntarily committed twice but that their mother
could not bring herself to commit him again. She acknowledged the defendant believed in astrology
and had asked for her to bring him one of his astrology books in jail. She said the defendant believed
his penis was deformed and wanted to find the doctor who had circumcised him. She acknowledged
that in the letter from the defendant, he said that aliens told him that if he killed his mother and
father, he would get his own place to live and a girlfriend. She acknowledged that the defendant’s
behavior became progressively worse throughout the summer before he killed their parents. She said
the defendant told her that Dr. Alan Megibow had advised him that he could stop taking his
medication. She said that the defendant was sick and that she wanted him to be in a hospital rather
than jail.


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        Gary Claybough, an arson investigator from the Tennessee Fire Marshal’s Office, testified
that he arrived at the victims’ trailer at 9:00 a.m. and saw the two victims’ bodies. He said that one
body was in the kitchen and that the other was in a bedroom. He said that he determined that an
accelerant had been used to start the fire and that he found a five-gallon can he believed contained
gasoline. He said the fire was intentional and deliberate.

       Dr. Cleland Blake, a pathologist, testified that he received the victims’ bodies and performed
an autopsy on each body. He said the defendant’s mother did not die from the fire because she did
not have carbon monoxide in her lungs. He said his findings with regard to the defendant’s mother
were consistent with strangulation. He said that the defendant’s father died from the fire.

        Detective Derrick Woods of the Cocke County Sheriff’s Department testified that he
investigated the area where the defendant was found by Chief Taylor and collected a T-shirt, a pair
of pants, a fire safety book, camping gear, two lighters, a five-gallon gas can, and a shotgun. He said
he sent the fire chief to look for the defendant because he had not been found after the fire. On
cross-examination, Detective Woods testified that when he apprehended the defendant, the defendant
did not attempt to escape.

        Robert Caldwell, chief detective for the Cocke County Sheriff’s Department, testified that
he met with the defendant at the scene of the fire and that the defendant agreed to talk at the police
station. He said the defendant told him where he poured gasoline into the trailer and identified the
gas can he used. He said the defendant told him that he changed clothes after the fire and that blood
on his right sock was his mother’s. He said the defendant stated that his father was asleep when he
killed his mother.

        Earl Campbell, the defendant’s and his mother’s preacher, testified that he was aware of the
defendant’s mental problems. He said the defendant was quiet when he was on his medication but
vocal when he was off. He said that the defendant told him that his penis was deformed because of
a circumcision and that the defendant showed him his penis. He said that the defendant had bizarre
religious beliefs involving astrology and that he told the defendant to throw away the material he had
regarding it. He said the defendant’s mother called him several days before the defendant killed her
and told him that she was concerned because the defendant was off his medication. On cross-
examination, Mr. Campbell testified that in a conversation with the defendant three weeks before
he killed his parents, the defendant told him that his mother owned property in Dandridge, Tennessee
and that it would be advantageous if “she was not in the way of progress.” He said he believed that
a possibility of a serious occurrence existed because of this conversation and encouraged the
defendant to drop the matter. On recross-examination, Mr. Campbell testified that the defendant told
him that he wanted his mother’s name off the deed of trust for the Dandridge property.

        Dr. Alan Megibow testified that he was a psychiatrist at the Cherokee Mental Health Center
and that he began treating the defendant in 1995. He said the defendant was diagnosed as a chronic
paranoid schizophrenic and was prescribed potent medication to control his delusions. He said that
the defendant believed aliens were trying to take over the world and that they were trying to control


                                                  3
him. He said the defendant did not take his medication on several occasions while he was treating
him. He said that in a 1995 report, he wrote that the defendant was potentially violent and that in
a 1998 report, he wrote that he returned the defendant to medication because he had become violent.
He said that on June 22, 2000, he determined that the defendant had stopped taking his medication.
He said the defendant had told a nurse that aliens created humans on this planet. Dr. Megibow said
the defendant told him not to talk about his case with his mother. He said that unless he
involuntarily committed the defendant because he was a danger to himself or others, he could not
force the defendant to take medication. He said the defendant had made no direct threats toward
anyone at that time. He said that in his visits with the defendant at jail, the defendant seemed okay
at times while at others, he obsessed about aliens.

        On cross-examination, Dr. Megibow testified that in a progress note dated March 13, 2002,
he wrote that the defendant told him that aliens would give him a girlfriend and a place of his own
if he killed his parents and that this is why he decided to kill his parents. He said the defendant
wrote in a separate note that aliens told him to slap his father but that he hugged his father instead.
He said the note also stated that the aliens had wanted him to lie in the yard during a storm but that
the defendant did not because he was too scared. Dr. Megibow acknowledged that many people with
schizophrenia do not kill other people. He said he believed that the defendant knew the difference
between right and wrong when he killed his parents. On redirect examination, Dr. Megibow said
that it was possible that the defendant killed his parents in order to get a girlfriend and did not
consider the wrongfulness of his actions.

         Christie Hansel testified that she was one of the defendant’s case managers at Cherokee
Mental Health Systems. She said Cherokee’s reports indicated the defendant had attacked his
brother-in-law with a hammer and had also attacked his father in the past. She said the defendant
had also been violent toward his mother at times. She said the defendant believed that a foreign
material was inserted into his penis during his circumcision and that he wanted to confront the doctor
who performed the circumcision on him. She said the defendant told her in jail that voices told him
that his parents were cold and cruel before he killed them. She said that in the weeks before the fire,
the defendant refused to help his parents with work around the house. She said even though the
defendant was forced to take medication in jail, he still had delusions. On cross-examination, Ms.
Hansel testified that her notes indicated that the defendant was concerned about not having a
girlfriend.

         Dr. Rokeya Farooque, a psychiatrist at Middle Tennessee Mental Health Institute (MTMHI),
testified that the defendant was a paranoid schizophrenic and that she did not believe he understood
the difference between right and wrong when he killed his parents. She said that in a test she
performed on the defendant, his score indicated he was mentally ill, having hallucinations and
delusions upon which he acted. She said that the defendant’s not hiding or attempting to escape after
the killing indicated that the defendant did not know killing his parents was wrong. On cross-
examination, she acknowledged that the defendant had cried over killing his parents.




                                                  4
        Dr. Samuel Craddock, a psychologist at MTMHI, testified that not all schizophrenics lack
the capacity to understand the difference between right and wrong. He said he believed that the
defendant had known that killing his parents was both criminally and morally wrong. On cross-
examination, Dr. Craddock testified that he believed the defendant had delusions about aliens. He
said, however, that just because the defendant heard voices promising him a girlfriend if he killed
his parents did not mean that the defendant did not understand that killing his parents was wrong.
He said he did not know for a certainty that the defendant understood the difference between right
and wrong. He said, however, that setting fire to his parents’ trailer to cover up his killing indicated
that he knew right from wrong. He acknowledged that he had previously determined that the
defendant was not competent to stand trial and that he was committable. He said, however, that after
the defendant resumed taking his medication, he determined that the defendant was competent to
stand trial.

        Officer Duane Johnson of the Cocke County Sheriff’s Department testified that on September
7, 2000, the defendant gave the following statement: On the night he killed his parents, his mother
was aggravated at his father over the television and told his father to go to bed. His father went to
bed “disgusted and hurt.” His mother then went into the bathroom and when she came out, he
shoved her into his bedroom and wrestled her to the floor. He held a blanket over her mouth,
suffocating her. He put newspaper in a trash can and started a fire because he had panicked and
wanted to cover up what he had done. His father never heard what happened and never woke up.
He went to the barn, retrieved a gasoline can, and poured gasoline through the window of the trailer
because the trailer was not burning well enough. The fire then blazed, and he returned the gasoline
can to the barn. After he left the trailer, he changed his pants and shirt.

        The jury convicted the defendant of two counts of first degree premeditated murder, one
count of felony murder against the defendant’s father, and one count of aggravated arson. The
defendant contends that he should have been found not guilty by reason of insanity because he could
not appreciate the wrongfulness of his actions when he killed his parents. The state contends that
the evidence is sufficient. We agree with the state.

                                     I. INSANITY DEFENSE

         The defendant contends that he proved by clear and convincing evidence that he was insane
at the time of the killing. With regard to the defense of insanity, T.C.A. § 39-11-501 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.

      With respect to appellate review of a jury’s rejection of a defendant’s insanity defense, our
supreme court has stated:

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

               The weight and value to be given expert testimony is a question for
               the jury. [State v. Sparks, 891 S.W.2d 607, 616 (Tenn. 1995)]. Where


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                there is a conflict in the evidence, the trier of fact is not required to
                accept expert testimony over other evidence and must determine the
                weight and credibility of each in light of all the facts and
                circumstances of the case. Id. Questions concerning the credibility of
                witnesses, the weight and value of the evidence, as well as all factual
                disputes raised by the evidence, are for the trier of fact; appellate
                courts do not reweigh the evidence or reevaluate credibility
                determinations. [State v. Holder, 15 S.W.3d 905, 912 (Tenn. Crim.
                App. 1999)].

State v. Flake, 88 S.W.3d 540, 554 (Tenn. 2002).

        Evidence existed to show that the defendant appreciated the wrongfulness of his actions when
he killed the victims. Before the killings, the defendant had stated that he wanted a girlfriend and
a place of his own and that he believed these things would happen if he killed his parents. Mr.
Campbell testified that the defendant believed his mother owned property away from their trailer and
that the defendant wanted this property. After killing his parents, the defendant acknowledged in
his statement to the police that he panicked and set fire to the trailer to cover up killing his mother.
The defendant also changed clothes and left the trailer after setting fire to it, showing a possible
attempt to hide his involvement in the killings. Dr. Craddock and Dr. Megibow each testified that
they believed the defendant knew the difference between right and wrong when he killed his parents.

         The evidence shows that the defendant suffered from paranoid schizophrenia. However, this
does not preclude the possibility that he could be found legally sane by a jury. T.C.A. § 39-11-
501(a) (1997). The jury had the responsibility to give the proper weight and value to the expert and
lay witnesses in determining whether the defendant was insane by clear and convincing evidence.
Flake, 88 S.W.3d at 554. Although the defendant argues that the jury erred in not finding him insane
at the time of the killing, the jury chose to accredit the witnesses who supported the state’s theory
of the case. The jury accredited testimony that the defendant, knowing it was wrong, killed his
mother anyway because he thought he would get a girlfriend and place of his own. The defendant
then panicked and tried to cover up the killing by setting fire to the trailer, changing clothes, and
leaving the scene. Dr. Craddock testified that this indicated the defendant knew it was wrong to kill
his parents. Further, Dr. Megibow also stated that he believed the defendant knew right from wrong
when he killed his parents. In the light most favorable to the state, a rational trier of fact could have
failed to find that the defendant’s criminal insanity at the time of the offense was established by clear
and convincing evidence. The evidence is sufficient to justify the defendant’s convictions.

                                            II. MERGER

      Although not raised by either party, we have concluded that the trial court should have
merged the defendant’s convictions for premeditated murder and felony murder of his father. Our
supreme court has directed that when a defendant is charged with both premeditated and felony
murder, the trial court should instruct the jury to render a verdict on both theories of first degree


                                                   7
murder. State v. Howard, 30 S.W.3d 271, 275 (Tenn. 2000). Yet, “when only one person has been
murdered, a jury verdict of guilt on more than one count of an indictment charging different means
of committing first degree murder will support only one judgment of conviction for first degree
murder.” State v. Cribbs, 967 S.W.2d 773, 788 (Tenn. 1998). Merger avoids a double jeopardy
problem while protecting the jury’s findings. Howard, 30 S.W.3d at 275. Thus, in this case, the trial
court should have merged the jury’s verdicts of guilt on the one count of premeditated murder and
one count of felony murder into only one judgment of conviction for first degree premeditated
murder. See Howard, 30 S.W.3d at 275; State v. Addison, 973 S.W.2d 260, 267 (Tenn. Crim. App.
1997).

        Based upon the foregoing and the record as a whole, we affirm the defendant’s convictions
but vacate the judgments of conviction for counts one and three and remand the case for the trial
court to enter a judgment reflecting the merger of the two counts.



                                                      ___________________________________
                                                      JOSEPH M. TIPTON, JUDGE




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