         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                           Assigned on Briefs December 12, 2006

                 STATE OF TENNESSEE v. BRADLEY FERRELL

                     Appeal from the Circuit Court for Van Buren County
                         No. 1688-M Larry B. Stanley, Jr., Judge


                    No. M2005-02552-CCA-R3-CD - Filed August 24, 2007



D. KELLY THOMAS, JR., J., dissenting.


         The majority in this case concludes that defendant is not entitled to relief based on the trial
court’s rulings regarding the defendant’s proposed expert, Dr. Stephen Adams. As the majority
states, the trial court ruled that Dr. Adams was qualified to give expert testimony regarding the
defendant’s brain injuries; however, in ruling that Dr. Adams was not qualified as a psychiatric
expert, the trial court stated that “[t]he court does not prefer to hear testimony regarding capacity on
a non-specific intent crime.” In my view, this ruling prevented the Dr. Adams from presenting any
testimony that the defendant lacked the capacity to form the requisite mental state for the offense
with which he was charged. As a result, the defendant was prevented from presenting the key
element of his defense, and the ruling clearly prejudiced the defendant. Therefore, I must
respectfully dissent.

                                                   I

         The trial record shows that the testimony presented to the jury proved beyond question that
the defendant, while being held in the Van Buren County Jail on a misdemeanor assault sentence,
left the confines of the jail in the company of a cellmate, James E. McCormick, without authority
to do so. The only element of the offense that was open to question was that requiring proof that the
defendant acted intentionally, knowingly, or recklessly. It is against that backdrop that the issue of
disallowing expert medical testimony must be analyzed.

         Our appellate courts have “concluded that a defendant’s capacity to form the requisite mental
state to commit an offense is an issue in criminal prosecutions because the general criminal law in
Tennessee provides that ‘[n]o person may be convicted of an offense unless . . . [t]he culpable mental
state required is proven beyond a reasonable doubt.’” State v. Hall, 958 S.W.2d 679, 689 (Tenn.
1997) (internal citation omitted). Furthermore, “the negation of an element of a criminal offense is
recognized as a defense in Tennessee.” Id. (citation omitted). In Hall, our supreme court held that
psychiatric evidence that the defendant lacked the capacity to form the requisite mental state for an
offense

          must satisfy the general relevancy standards as well as the evidentiary rules which
          specifically govern expert testimony. Assuming that those standards are satisfied,
          psychiatric evidence that the defendant lacks the capacity, because of mental disease
          or defect, to form the requisite mental state to commit the offense charged is
          admissible under Tennessee law.”

Id. The supreme court then cited to an opinion by this court that forms a substantial basis for my
conclusion here:

          To find otherwise would deprive a criminal defendant of the right to defend against
          one of the essential elements of every criminal case. In effect, then, such a finding
          would deprive the defendant of the means to challenge an aspect of the prosecution’s
          case and remove the burden of proof on that element in contravention of
          constitutional and statutory law. While the law presumes sanity it does not presume
          mens rea. Due process requires that the government prove every element of an
          offense beyond a reasonable doubt.

State v. Phipps, 883 S.W.2d 138, 149 (Tenn. Crim. App. 1994).

        As the state argued at trial, the supreme court’s holding in Hall refers to psychiatric evidence.
However, the Hall court also recognized that “expert testimony relevant to negating intent is
admissible in Tennessee even though diminished capacity is not a defense.” Hall, 958 S.W.2d at
691. Therefore, I find no good reason why the rule that addresses psychiatric evidence regarding a
defendant’s lack of capacity to form a requisite mental state cannot be extended to medical experts.
If the testimony satisfies both the general relevancy requirements and those provisions of the
Tennessee Rules of Evidence addressing expert testimony, expert testimony establishing that a
defendant’s lack of capacity to form the required mental state results from an organic condition such
as a brain injury should be admissible in criminal cases.

                                                   II

       In this case, the relevancy and expert testimony standards required by Hall were clearly met.
Dr. Adams was accepted as a medical expert by the trial court in that, at the time of his testimony,
he had practiced internal medicine for eight years and had served as an associate professor in the
Department of Family Medicine at the University of Tennessee Chattanooga, where he had taught
for seven years. Dr. Adams testified that he had first treated the defendant when he entered the
Erlanger Hospital emergency room in December 1997 in “status epileptic,” that is, in a constant state
of uncontrollable seizure. Dr. Adams and residents under his direction had treated the defendant
continuously in the seven and a half years between the defendant’s admission to the hospital and the
date the trial began. Dr. Adams testified that the defendant does not suffer from a psychiatric
condition but rather from an organic brain syndrome known as toxic encephalopathy. The physician


                                                  -2-
gave extensive testimony regarding the specific nature of the defendant’s brain injuries and the
results of these injuries: “deficits in cognition, deficits in short-term memory, deficits in long-term
memory, deficits in awareness of his surroundings. Those deficits are fixed. They do not change
with time . . . and they remain the same now as what I saw when I discharged him from the hospital
[in] January of 1998.” Dr. Adams further testified that he believed that the defendant was not
“competent to intentionally commit a crime that requires planning ahead of time simply because he
has deficits in memory.” When asked if the defendant could follow someone out the door and not
realize that he would be intentionally or knowingly breaking out of jail, the doctor replied that
defendant “would not . . . know the full consequences of that action. I don’t think there is any way
he could.” Given this evidence, Dr. Adams was qualified to give testimony regarding the
defendant’s inability to form the requisite mental state and should have been afforded that
opportunity.

                                           CONCLUSION

        In my view, the trial court’s ruling that Dr. Adams could not testify regarding the defendant’s
capacity (or lack thereof) to form the requisite mental state for the charged offense denied the
defendant the ability to present a defense. The trial court should have permitted the defendant to
present medical evidence regarding an organic brain injury and the relation of that brain injury to the
defendant’s capacity to form the requisite mental state. The jury could have then decided if the state
proved beyond a reasonable doubt that the defendant acted intentionally, knowingly, or recklessly.
I would reverse the jury verdict and remand this case for a new trial.




                                                               _______________________________
                                                               D. KELLY THOMAS, JR., JUDGE




                                                 -3-
