         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  February 10, 2009 Session

         STATE OF TENNESSEE v. RICHARD ANTHONY ARRIOLA

                     Appeal from the Criminal Court for Davidson County
                          No. 95-D-2835    Monte Watkins, Judge



                    No. M2007-00428-CCA-R3-CD - Filed August 26, 2009


After conducting a bench trial, the trial court found the Defendant, Richard Anthony Arriola, guilty
of one count of first degree murder, one count of attempted first degree murder, and two counts of
attempted second degree murder. The trial court sentenced the Defendant to an effective sentence
of life imprisonment plus fifteen years. This Court remanded the case to the trial court for an order
clarifying its findings on the insanity defense. On appeal, the Defendant claims: (1) the trial court
erred when it used an improper legal standard for the insanity defense; and (2) the evidence presented
at trial proved by clear and convincing evidence that the Defendant was not guilty by reason of
insanity. After a thorough review of the record and the applicable law, we conclude that the trial
court applied an improper legal standard for the insanity defense. Therefore, we reverse the
convictions and remand for a new trial.

    Tenn. R. App. 3 Appeal; Judgment of the Criminal Court Reversed and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS T. WOODALL, JJ., joined.

Jeffrey DeVasher and Aimee Solway, Nashville, Tennessee (on appeal); Ross Alderman and J.
Michael Engle, Nashville, Tennessee (at trial), for the Appellant, Richard Anthony Arriola.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; James
E. Gaylord, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; Roger
Moore, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                              I. Facts



                                                  1
                                              A. Trial

     In our remand to the trial court for clarification of its findings on the insanity defense, we
summarized the relevant facts:

                This case arises from a standoff between the Defendant and the Davidson
       County Sheriff’s Department on September 22, 1995, which resulted in the death of
       Officer Jerry Newsome. The Defendant was indicted on charges of one count of first
       degree murder, one count of attempted first degree murder, and two counts of
       attempted second degree murder. The Defendant waived his right to a jury trial. At
       his trial, the relevant evidence included: the Defendant was a well-adjusted and active
       young man as he completed high school. After enrolling in college at the University
       of Tennessee-Martin, he began exhibiting symptoms of mental illness. According
       to his mother, Viola Couser, and his brother, John Arriola, the Defendant became
       reclusive and paranoid. After completing only one trimester, the Defendant left
       college and moved back home to Nashville. He then traveled around the world, later
       claiming to have visited Jerusalem and to have joined a religious group in Florida.
       When the Defendant would “travel,” he would leave home for months at a time,
       taking only a “pack on his back” and not tell his family his plans. The Defendant
       also enlisted in the Navy (and was discharged after three to four months for an
       unknown reason) and got married for less than a month. When he was in Nashville,
       he worked at his step-father’s restaurant peeling potatoes. While he was at home, he
       engaged in peculiar activities like preaching on street corners and on his front porch
       when no one was near him to listen. He always carried a Bible with him, and he
       repeatedly tried to baptize his family. The Defendant was even arrested once for
       preaching outside in the rain.

               According to Couser, the Defendant was first hospitalized for mental health
       treatment in 1987. He remained at Middle Tennessee Mental Health Institute
       (MTMHI) for thirty days, where the doctors diagnosed him with paranoid
       schizophrenia. The Defendant was released with orders to stay on his medicine and
       continue treatment, but he did neither. The Defendant was hospitalized at MTMHI
       for another thirty days in 1988, where he was treated again for paranoid
       schizophrenia. Similar to before, upon release, he refused to take his medication.
       Around 1989 or 1990, the Defendant moved from the upstairs of his parents’ house
       into their basement, which he kept “cluttered up,” according to his mother. The
       Defendant was hospitalized a third time in 1991 at Baptist Hospital as a result of
       judicial order. The Defendant had gotten into a fist fight with his older brother, John,
       over the issue of the Defendant not bathing regularly. John agreed to drop the
       charges if the Defendant entered an inpatient treatment facility. He was kept for
       thirty days, treated for paranoid schizophrenia, and released. According to Couser,
       after the Defendant was released, he stopped his treatment; when describing one
       manifestation of her son’s illness when he stopped his medication, she said, he


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“wasn’t keeping himself clean. He grew the beard and he wasn’t getting his hair
cut.”

        In September 1995, the Defendant began posting signs for his “businesses”
in his neighborhood. The Defendant thought he ran a scuba diving business, an
electrician business, and an advertising business. When the police served his parents
with a warrant, ordering that the signs be removed or they pay a fine, the Defendant
threatened the police with his neighbor’s dogs. The Defendant’s parents took down
his signs to avoid paying a fine, but the Defendant replaced the signs and refused to
remove them. The Defendant’s parents both thought if they served the Defendant
with an eviction warrant, the judge could commit the Defendant for treatment or, at
least, have the Defendant agree to treatment, similar to what happened in 1991.

        On September 22, 1995, Officer Johnnie Spears and Officer Jerry Newsome
arrived at the Defendant’s house to serve him with the eviction warrant. Officer
Spears wore his badge in a visible location, and Officer Newsome wore a green and
tan Sheriff’s Department uniform. They knocked on the door with their night sticks,
to avoid another threat involving the neighbor’s dogs. The Defendant “came out
sideways with his hand behind his back. . . . He was cussing.” Officer Spears said
he dropped the warrant on the ground, and as he started to turn, “that’s when [the
Defendant] shot me in the mid-section, and it knocked me down.” Officer Spears
also saw Officer Newsome “grab his chest and fall.” Officer Spears said the
Defendant was originally firing a handgun, but as he made his way back to his police
cruiser to call for help, the Defendant began using a camouflaged shotgun. Officer
Spears thought Officer Newsome was dead because he never saw him move after
falling. Officer Spears made a radio call signaling that a “police officer [was] in
serious danger.”

        Officer Mike Hagar arrived at the scene after hearing the radio call. He saw
Officer Newsome lying in the grass and not moving. After additional police arrived,
they realized the Defendant was still in the basement, and they called for the SWAT
team. Officer Hagar stated that the Defendant’s brother, John Arriola, came to the
scene and warned them that the Defendant was schizophrenic. Officer Hagar said
that, while he was at the scene, no shots were fired before the SWAT team went into
the house.

         When the SWAT team arrived, they divided up into two teams: one for the
upstairs portion of the house and one for the basement portion of the house. They
initially tried negotiating with the Defendant, but there was no response. After the
negotiation failed, the SWAT team began to move into the house. Before the
basement team made it into the house, they began “drawing fire” from the Defendant
after throwing two “distraction devices” into the house. Distraction devices are stun
grenades that “cause[] a concussion. . . . And if [a person is] looking at it the flash


                                          3
will temporarily blind them.” After throwing in the second device, the SWAT team
heard gun shots. According to Officer Randy Hickman, one of the SWAT team
members on the “upstairs” team, “once we dropped the devices, [the Defendant]
fire[d] two, approximately two shots, at us, up the staircase there. Then we g[a]ve
commands to come out, and at which time he fired about, approximately, two more
shots at us, up the steps. I could see the rounds ricochet.”

       As the SWAT team was “thinking of what [it was] going to do next, that’s
when the suspect came out” of the house. Officer Hyde said the basement was “filled
with smoke,” and, as the Defendant came out cursing, one SWAT team member
kicked the Defendant’s lower body to knock him on the ground. At that point, the
Defendant tried grabbing the officer’s weapon, but only managed to grab the strap.
Eventually, the Defendant was arrested and put into a van for transport to the hospital
to check on his injuries.

        Officer Pat Postiglione, an officer on the murder squad, helped transport the
Defendant to the hospital. He described the Defendant as “very subdued” and said
the Defendant refused to give a statement because “he didn’t trust the government.”
Officer Larry Flair, another officer of the murder squad, characterized the Defendant
as “coherent, conscious.” In fact, the Defendant chose not to waive his Miranda
rights when they were given to him, and he refused to give consent to search his
property. Once the Defendant was out of the basement, various officers of the
murder squad searched the basement for weapons. Officer Bill Pridemore described
the basement as “very disarrayed. Things [were] scattered throughout the floor.”
The officers found a handgun in a hole in the drywall.

        Doctor Bruce Levy, the current medical examiner for Nashville and a
specialist in forensic pathology, testified that Officer Jerry Newsome was shot five
times: three times with a handgun and two times with a shotgun. Three of the shots
were quickly fatal.

        Since the arrest, the Defendant has been housed at MTMHI and undergoing
therapy and treatment for paranoid schizophrenia. Some of the Defendant’s
delusions included that his mother did not give birth to him; rather, he believed she
found him at an airport. The Defendant also had a fascination with religion, and he
believed he needed to baptize his family members in his bathtub. Dr. Rokeya
Farooque, one of the Defendant’s doctors at MTMHI, testified that the Defendant
“[believed] that he would be the next Pope. He owned the government world bank.
He owned the government of the United States.” Additionally, he believed he
invented the bar code. Dr. Farooque discussed the Defendant’s “gradual
deteriorating function” at great length. She said he was diagnosed again with
paranoid schizophrenia in 1996, which took into account his bizarre behaviors,
religious ideas, loose speech, hallucinations, delusional thinking, grandiose


                                          4
delusional thinking, and persecutorial delusional thinking. Dr. Farooque testified that
on September 22, 1995, the Defendant was psychotic and was not able to appreciate
the wrongfulness of his actions. In fact, she said he felt justified to defend himself
because he thought he owned everything.

         The Defendant was also treated by Dr. Samuel Craddock, who echoed Dr.
Farooque’s opinion that the Defendant could not appreciate the wrongfulness of his
actions. Dr. Craddock described the Defendant as “suspicious of just about
everybody that he encountered.” He also stated that the Defendant believed he
owned Palm Beach, Florida. Speaking of the September 1995 shooting incident, Dr.
Craddock said, “I think even if [the Defendant] were a spectator, though, across the
street watching what was occurring, I am not so sure that he could comprehend even
what was going on he was so mentally ill, much less being able to participate and
having the emotional involvement.” Whenever the Defendant was asked about the
shooting incident, he complained of “burning sensations.” He also suffered from
those sensations when the doctors suggested that he take some psychological tests.
Moreover, Dr. Craddock conveyed that the Defendant told him that he would not
have done anything illegal, implying that he did not know his shooting the police was
illegal.

        Dr. Patricia Corry explained that the Defendant had two “plans” as part of his
mental illness. “Plan A” included all of his purely delusional thoughts, such as, he
was going to become King Richard. “Plan B” included his thoughts and memories
concerning the September 22, 1995, shooting. When talking about the shooting, the
Defendant only recalls “intruding thoughts that - really voices, or feelings, or things
that - he thought he could float around outside his body, things that he could feel
inside his body as well.” The Defendant told Dr. Corry that he heard “voices that
told him to shoot and kill anybody that messed with him.” Dr. Corry said the
Defendant thought the ship the Queen Mary II was on its way to Florida to take him
and Vanessa Corona, one of the characters the Defendant created in his mind, to the
Vatican. He believed that Corona was the District Attorney in Miami, Florida and
that she would leave the United States with him when he became King Richard, the
President of the United States, or the first American Jewish Pope. While in
treatment, the Defendant planned which eighty-five countries he was going to
conquer and rule when he became king. The Defendant consistently believed himself
to be either a saint or a preacher. Dr. Corry also elaborated that the Defendant
believed one of the deputies had a virus that “was just kind of free-flow” and it could
move from computers to humans in the Defendant’s thoughts. The Defendant was
afraid of contracting this virus when the police came to his door. Additionally, the
Defendant believed the CIA met in a church on West End Avenue in Nashville,
Tennessee two months prior to the shooting.

       The Defendant was in custody from 1995 until 2006 before he was deemed


                                          5
       competent to stand trial. Dr. Ronnie Stout, another of the Defendant’s doctors at
       MTMHI, said that the Defendant’s treatment progress was very slow, partially due
       to the difficulty of ascertaining the proper medication for him.

              After hearing this testimony, the trial court found the Defendant guilty of first
       degree murder, attempted first degree murder, and two counts of attempted second
       degree murder. It sentenced the Defendant to an effective sentence of life
       imprisonment plus fifteen years.

State v. Richard Anthony Arriola, No. M2007-00428-CCA-R3-CD, 2008 WL 1991098, at *1-4
(Tenn. Crim. App., at Nashville, May 8, 2008) (herein Arriola I) (footnotes omitted), no Tenn. R.
App. P. 11 application filed.

         The Defendant appealed his convictions to this Court claiming that: (1) the trial court used
an improper legal standard for the insanity defense because the court required the Defendant to prove
that he was unable to appreciate both the wrongfulness of his actions and the nature of his actions;
and (2) the trial court wrongly sentenced him to consecutive sentences. On appeal, this Court
remanded the case to the trial court with instructions to issue an order clarifying its previous
findings. Id. at *8. This Court also affirmed the Defendant’s sentences. Id. The trial court has since
issued a supplemental order setting out its findings with respect to the Defendant’s insanity defense.
It is from this order that the Defendant now appeals.

                                             II. Analysis

        On appeal, the Defendant contends that: (1) the trial court erred when it used an improper
legal standard for the insanity defense; and (2) the evidence presented at trial clearly and
convincingly supported an insanity defense.

                               A. Insanity Defense Legal Standard

        The Defendant claims that the trial court applied the wrong legal standard for the insanity
defense because the trial court understood the Defendant’s ability to appreciate the nature of his
actions to encompass his ability to appreciate the wrongfulness of his actions, and, accordingly,
required the Defendant to prove he appreciated neither the nature nor the wrongfulness of his actions.
The State argues that the trial court did not err because, although it stated that “wrongfulness is part
and parcel of the word nature,” the trial court later “look[ed] further at the specific facts to discern
whether the [D]efendant could appreciate the wrongfulness of his actions.”

       We discussed the statutorily-based insanity standard in Arriola I, and we concluded that for
a defendant to successfully prove an insanity defense, he need only prove that, as a result of a severe
mental disease or defect, either he did not appreciate the nature of his actions or he did not
appreciate that his actions were wrongful:



                                                   6
              The statutory requirements for an insanity defense are described in Tennessee
        Code Annotated section 39-11-501:

                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 the 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.

        (emphasis added) (1995). When interpreting a statute, courts should use the “natural
        and ordinary meaning[s of the statutory language], unless the legislature used [the
        words] in a specialized, technical sense.” BellSouth Telecomm., Inc. v. Green, 972
        S.W.2d 663, 673 (Tenn. App. 1997). The word at issue here is “or.” There is no
        indication that the legislature used it in a specialized, technical way, therefore, we
        will assign it its natural and ordinary meaning. According to Black’s Law
        Dictionary, “or” is “a disjunctive particle used to express an alternative or to give a
        choice of one among two or more things.” Black’s Law Dictionary 1095 (6th ed.
        1990). We contrast that with the definition of “and,” which is “a conjunction
        connecting words or phrases expressing the idea that the latter is to be added to or
        taken along with the first.” Black’s Law Dictionary 86 (6th ed. 1990). Applying the
        correct definition of “or” to this statute, the plain meaning shows two distinct ways
        that the defendant may present a successful insanity defense: proving either that he
        could not appreciate the nature of his acts or, in the alternative, that he could not
        appreciate the wrongfulness of his acts. Moreover, to prevail, the Defendant need not
        prove both that he could not appreciate the nature of his act and that he could not
        appreciate the wrongfulness of his acts.

Arriola I, 2008 WL 1991098, at *5. In Arriola I, we remanded the case to the trial court and
instructed it to clarify its factual findings with respect to the Defendant’s insanity defense. Id. at *8.

        Complying with our request, the trial court issued a written order clarifying its findings on
the issue of insanity. It concluded that the concept of “wrongfulness” is a narrower part of the
concept of “nature:”

                As the [c]ourt stated in its original ruling, the experts testified that the
        defendant could not appreciate the wrongfulness of his actions. However, they could
        not say that the defendant could not appreciate the nature of his actions.

               The [c]ourt believes that because the defendant could not prove that he was
        unable to appreciate the nature of his actions he therefore could not prove that he
        was unable to appreciate the wrongfulness of his actions. Although the words


                                                    7
         “nature” and “wrongfulness” are distinctly different words, “wrongfulness” is
         encompassed in the word “nature.” The plain meaning of the word “nature” is that
         “it is the essential character of something.” Since terms such as “rightfulness” and
         “wrongfulness” speak to the essence of character, it follows that wrongfulness is part
         and parcel of the word nature, and is simply more narrowly defined than the word
         nature. The [c]ourt thus had to look further at the specific facts to discern whether
         the defendant could appreciate the wrongfulness of his actions.

(emphasis added). The trial court then listed facts from the case that, in its view, demonstrated the
Defendant knew his actions were wrong:

                 Initially, when the defendant was contacted by the deputies, he hid his
         weapon behind his back, thus indicating not only his intent but his knowledge of the
         wrongfulness of his action. After the defendant shot and wounded one deputy and
         killed another deputy, he demonstrated that he knew that it was wrong by barricading
         himself in his apartment and refusing to come out even after being surrounded by the
         police. He had to be forced out through the use of distraction devices. The defendant
         further demonstrated the wrongfulness of his actions by hiding his pistol. If he truly
         believed that he owned the world and could do no wrong, he would not have
         attempted to hide himself or one of his weapons. Moreover, the defendant refused
         to discuss with the police or his treatment providers the acts that he committed that
         day, again implying that he knew that his actions were wrong. It was not until
         sometime later that he began to discuss the events of that day with his treatment
         providers.

After that discussion, the trial court concluded that “the defendant did not carry his burden of
proving by clear and convincing evidence that he was unable to appreciate the nature or
wrongfulness of his acts.”

        Whether the trial court used the proper legal standard for the insanity defense is a question
of law, which we review de novo with no presumption of correctness. We conclude that the trial
court applied the wrong legal standard. First, the trial court clearly stated that the concept of
“wrongfulness” is encompassed in the concept of “nature.” We respectfully disagree.
“Wrongfulness” goes to whether a defendant understands whether the actions were wrong, or, in
other words, it addresses a moral capacity, whereas “nature” goes to whether a defendant understands
what the actions were, or, in other words, it addresses a cognitive capacity. See Clark v. Arizona,
548 U.S. 735, 747-48, 753-54 (2006) (interpreting Arizona’s insanity defense statute,1 which has
similar language to Tennessee’s statute)); see also State v. Holder, 15 S.W.3d 905 (Tenn. Crim. App.
1999) (holding that the defendant knew the nature of his actions because he knew he stabbed a man


        1
          The relevant portion of the Arizona insanity defense statute reads that a “person was suffering from such a
mental disease or defect as not to know the nature and quality of the act or, if such person did know, that such person
did not know that what he was doing was wrong.” Ariz. Rev. Stat. Ann. § 13-502 (W est 1978).

                                                           8
and that he knew the wrongfulness of those actions because he knew stabbing a person was wrong).
Additionally, as we stated in Arriola I, the Legislature listed “wrongfulness” and “nature” as
independent grounds of supporting a defense of insanity. See T.C.A. § 39-11-501 (1995). Thus, the
two words must be mutually exclusive and not “part and parcel,” as the trial court found.

        Second, a defendant need only successfully prove that he, “as a result of a severe mental
disease or defect, was unable to appreciate the nature or wrongfulness of [his] acts.” T.C.A. § 39-11-
501. The trial court wrote that “because the defendant could not prove that he was unable to
appreciate the nature of his actions he therefore could not prove that he was unable to appreciate the
wrongfulness of his actions.” (emphasis added.) Again, we respectfully disagree. A defendant need
only prove that, as a result of a severe mental disease or defect, either he could not appreciate the
nature of his actions or he could not appreciate the wrongfulness of those actions. T.C.A. § 39-11-
501. In addition to the discussion we have already presented from Arriola I, we add that the nature
or wrongfulness language of the Tennessee insanity defense statute corresponds to a portion of the
M’Naghten standard, a well-known insanity defense rule.2 Arriola I, 2008 WL 1991098, at * 5; 8
Eng. Rep. 718. M’Naughten reads, in relevant part, that the defendant “was labouring under such
a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was
doing; or, if he did know it, that he did not know he was doing what was wrong.” 8 Eng. Rep. 718.
In Graham v. State, the Tennessee Supreme Court analyzed that particular language of the
M’Naghten insanity standard, and it parsed out the requirements of the two-prong test:

        There are two M'Naghten tests: (1) knowledge of the nature and quality of the act and
        (2) knowledge of its wrongfulness. These criteria are expressed in the conjunctive in
        that it must be shown that the defendant knew right from wrong and knew the nature
        and quality of the act, in order to convict of a crime while laboring under a defect of
        reason or disease of the mind. If a defendant does not know the nature and quality of
        the act he is insane; if he knows this but does not know right from wrong, he is
        insane.

        The failure to recognize and apply both prongs of this two-prong test operates to
        narrow the rules.

Graham v. State, 547 S.W.2d 531, 539 (Tenn. 1977). In other words, if a defendant proves by clear
and convincing evidence either prong (that he cannot appreciate the nature of his acts or that he
cannot appreciate the wrongfulness of his acts), he has met the burden of the insanity defense. Given
the marked similarities between the M’Naughten standard and the current Tennessee insanity defense
statute, we see no reason not to impute the Tennessee Supreme Court’s previous conclusion to the

        2
           The Tennessee insanity defense statute was formally adopted from the Federal Insanity Defense Act of
1984, and the same nature and wrongfulness language is in both the Federal insanity statute and the Tennessee
insanity statute. See State v. Flake, 88 S.W .3d 540, 550-51 (Tenn. 2002); see also 18 U.S.C. § 17. That same nature
and wrongfulness language is also found in M’Naughten, and while there are obvious differences between the
Tennessee statute and the M’Naughten standard, such as who bears the burden of proof, we look only to the similar
clauses between them which discuss the nature and wrongfulness of a defendant’s actions. See 8 Eng. Rep. 718.

                                                         9
current statute. As such, there are two separate prongs of the Tennessee insanity defense: whether
the defendant understood the nature of his actions or whether he understood the wrongfulness of his
actions. And, a defendant need only prove one prong to be successful in his defense. Thus, the trial
court erred in the legal standard it applied, and we must turn to address whether, applying the correct
legal standard, the evidence was sufficient to prove the insanity defense.

                                               B. Remedy

       The Defendant argues that he has proven by clear and convincing evidence that, as a result
of a severe mental disease, he was unable to appreciate the wrongfulness of his conduct. The
Defendant asks this Court to rely on the trial court’s factual findings but to apply the correct legal
standard to those findings. The State argues that this Court must rely on the trial court’s factual
findings and that these findings, taken in the light most favorable to the State, do not sufficiently
support the Defendant’s insanity defense.

        After a careful consideration, we conclude that we cannot grant the relief sought by either
side, rather, we must remand this case for a new trial. Although this case was a bench trial, we
conclude that the appropriate remedy to be the same as for a jury trial. Generally, a jury would
resolve all factual issues and apply the appropriate legal principles, as instructed by the trial court.
Similarly, if in a bench trial, the trial court merely issued a finding of guilt, all factual findings would
be based on that determination. This case is not that simple. In this case, the trial court, acting as the
finder of fact, twice explained his factual findings and conclusions of law with respect to the
Defendant’s insanity defense. Because he enunciated these findings, this Court may not ignore them.
See generally State v. Hood, 868 S.W.2d 744 (Tenn. Crim. App. 1993).

        In our view, the trial court’s application, in this bench trial, of an erroneous legal standard
for insanity should be analyzed just as we would analyze a jury trial in which the jury was given this
erroneous legal standard for determining the applicability of the insanity defense. We conclude that
this error affected the verdict, was not harmless, and prevented the Defendant from receiving a fair
trial. See State v. Hodges, 944 S.W.2d 346, 352 (Tenn. 1997). Generally, “a defendant has a
constitutional right to a correct and complete charge of the law.” State v. Teel, 793 S.W.2d 236, 249
(Tenn. 1990), superceded by statute on other grounds as stated in State v. Reid, 91 S.W.3d 247
(Tenn. 2002). Because the Defendant’s conviction is based on the trial court’s application of an
erroneous legal standard, the Defendant did not receive a fair trial. See Hodges, 944 S.W.2d at 352
(“A jury instruction is considered “prejudicially erroneous,” only “if it fails to fairly submit the legal
issues or if it misleads the jury as to the applicable law.”). Considering the Defendant’s
constitutional right to a fair trial, we remand this case for a new trial.

       The Defendant argues that he proved by clear and convincing evidence that he is entitled to
a verdict of “not guilty by reason of insanity” and that this Court should modify the trial court’s
judgment to that effect. We respectfully decline to do so. To a large extent, whether the Defendant
met his burden of proof as to the insanity defense depends upon the credibility of the Defendant’s
expert witnesses. Because we are a reviewing court, without, in most situations, the means of


                                                    10
assessing the credibility of witnesses, we have concluded that a new trial is the appropriate remedy
in this case. Because a new trial dictates the utilization of a new finder of facts, we also conclude
that the interests of justice require that a different trial judge be assigned this case upon remand.

        In sum, we conclude the Defendant did not receive a fair trial, and the proper remedy is to
order a new trial.

                                            III. Conclusion

         This Court is of the opinion that the trial court applied an incorrect legal standard of insanity
to this case. After a careful review of the record and the applicable law, we reverse the judgments
of the trial court and remand this case for a new trial. We further order that this case be transferred
from Division V of the Davidson County Criminal Court to another Division of the Davidson County
Criminal Court for further proceedings.



                                                         ____________________________________
                                                          ROBERT W. WEDEMEYER, JUDGE




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