        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                   FILED
                             AT KNOXVILLE                         June 2, 1999

                                                                Cecil Crowson, Jr.
                        FEBRUARY SESS ION, 1999               Appellate C ourt
                                                                  Clerk



STATE OF TENNESSEE,          )    C.C.A. NO. 03C01-9712-CC-00530
                             )
      Appellee,              )
                             )
                             )    SEVIER COUNTY
VS.                          )
                             )    HON. REX HENRY OGLE
TERRY PROFFITT,              )    JUDGE
                             )
      Appe llant.            )    (Direct Appeal - First Degree M urder)




FOR THE APPELLANT:                FOR THE APPELLEE:

JAMES W. GREENLEE                 JOHN KNOX WALKUP
118 Bruce Street                  Attorney General and Reporter
Sevierville, TN 37862
                                  MICH AEL J . FAHE Y, II
                                  Assistant Attorney General
                                  425 Fifth Avenu e North
                                  Nashville, TN 37243

                                  AL SCHMUTZER
                                  District Attorney General

                                  CHARLES ATCHLEY
                                  Assistant District Attorney
                                  Sevier County Courthouse
                                  Sevierville, TN 37862



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                      OPINION


       On October 7, 1 996, the Se vier County G rand Jury indicted Appellant Terry

Proffitt for one coun t of first degree murd er. After a jury trial held on September

24–26, 1997, Appellant was convicted of first degree murder and was sentenced

to life imprisonment. Appellant challenges his conviction, raising the following

issues:

       1) whether the trial cou rt erred when it excluded an expert opinion that
       Appellant lacked the ability to “knowingly” kill the victim; and
       2) whether the trial court erred when it w hen it refus ed to instruct the jury
       that the doctrine of diminished capacity applies to the requisite mental
       states for both first degre e and sec ond degre e murde r.

After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                        I. FACTS




       On June 6, 1996, Appellant killed his ex-w ife, Kimb erly Proffitt, by shooting

her two times with a M arlin 45/70 lever action rifle. When questioned by police

later that night, A ppellant s tated that h e and M s. Proffitt had gotten into an

argument after Ms. Proffitt had mentioned her boyfriend. Appellant stated that

he then grabbed his rifle, which he believed was unloaded, in an attempt to scare

Ms. Proffitt. Appe llant sta ted tha t the rifle had fired a ccidenta lly when M s. Proffitt

pulled it. Appellant also testified that the rifle fired a second time while Ms.

Proffitt was still pulling it.



       Agent Dan Royce of the Tennessee Bureau of Investigation testified that

in order to fire Appella nt’s rifle, the leve r would h ave to be worked and then the



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trigger would have to be pulled. Agent Royce also testified that in order to fire a

second shot, either the lever wo uld have to be worked again or the hammer

would have to be manually cocked and in either case, the trigger w ould ha ve to

be pulled again. Agent Royce testified that the rifle could not fire merely from

being g rabbed unless th e trigger w as pulled at the sam e time.



      Doctor Cleland Blake testified that when he examined the body of Ms.

Proffitt, he discovered that she had bruises and cuts on her right hand. Dr. Blake

testified that the se wo unds were d efens ive wou nds th at were likely ca used while

Ms. Proffitt was holding the rifle and someone pulled it away from her. Dr. Blake

also testified that it would have been impossible for Ms. Proffitt to have still been

holding th e rifle when the seco nd sho t was fired.



      J.R. Cant rell testifie d that a pprox imate ly three weeks before the shooting,

Appellant told Ca ntrell tha t he ha d bec ome upse t with Ms. Proffitt and he had

considered shooting her. Cantrell also testified that approximately one to two

weeks before the shooting, Appellant told Cantrell that it would be better if Ms.

Proffitt was dead a nd som eone e lse was ra ising their ch ildren.



      Don ald Ogle testified that in September of 1995, he saw Appellant grab

Ms. Proffitt by the hair, pin her against a cabinet door, and put a knife to her

throat. Dona ld Og le also testified that in October of 199 5, he s aw Ap pellan t hold

a gun in Ms. P roffitt’s m outh. D onald Ogle further testified that when he called

Appe llant’s residence one week before the shooting and asked Ap pellant where

Ms. Proffitt was residing, Appellant told him where Ms. Proffitt was living and then

stated, “but she’s n ot going to live anywh ere long.”

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       Johnny Ogle testified that three days before the shooting, Appellant stated

that “he ought to bu st a cap” on Ms. Proffitt, which Johnn y Ogle u ndersto od to

mean that App ellant oug ht to shoo t Ms. Pro ffitt.



       Johnny Costner testified that four da ys befo re the s hootin g, App ellant to ld

Costner that he was g oing to kill Ms. Proffitt. Costner also testified that two days

before the sh ooting , Appe llant told Costner that he had thought about killing Ms.

Proffitt “all day long.”



       Doctor Michael Smith testified that in h is opinion, Appellant suffered from

“a major depres sion of se vere to psychotic proportions” that rendered Appellant

incap able of either pre medita ting the sh ooting or forming an intent to kill. Dr.

Smith adm itted, ho weve r, that if a p erson stated that he or she was g oing to kill

another, that could be evide nce of an intent to kill. Dr. Sm ith also admitted that

if a person stated that he or she had been thinking about killing another for a long

period of time, that could also be eviden ce of an intent to kill. In addition, Dr.

Smith admitted that if a person had mad e up a story in o rder to avoid

respon sibility for a killing, that could be evidence that the person was capable of

forming an intent to kill.



       In a jury out hearing, Dr. Smith testified that in h is opin ion, Ap pellan t’s

mental condition rendered him incapable of “know ingly” killing Ms . Proffitt.

Howeve r, the trial c ourt ru led tha t this testimony wa s inadmissib le. The trial court

based this ruling on its determination that the doctrine of dimin ished capa city only

applied to first degree murder charges and was inapplicable to second degree

murder charge s. Thus , the trial court ru led that D r. Smith could testify that

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Appellant did not have the ability to premeditate or form the intent to kill, but Dr.

Smith could not testify that Ap pellan t did no t have th e ability to “know ingly” kill.



       At the close of trial, Appellant submitted a special jury request for an

instruction on diminishe d capacity. This proposed instruction stated, in relevant

part, that if the jury con cluded that App ellant’s dim inished c apacity rende red him

incap able of having the requisite mens rea for either first degree murder or for

second degree murder, the jury must find him not guilty of those offenses. The

trial court rejected this instruction and instead, the court instructed the jury that

if it conclu ded th at App ellant’s dimin ished capa city rend ered h im incapable of

acting intentionally or with premeditation, then it must find him not guilty of first

degree murde r.



                              II. EXPERT TESTIMONY




       Appellant contends that the trial court erred whe n it refused to perm it Dr.

Smith to testify that Appellant did not have the ability to “knowingly” kill. The

State concedes that the trial court erred, but maintains that it was harmless error

under th e circum stance s.



       Appr oxima tely three months after Appe llant’s trial, the Tennessee Supreme

Court addressed the issue of dim inished capacity in State v. Hall, 958 S.W.2d

679 (Tenn. 1997). The supreme court stated:

       [T]o gain admissibility, expert testim ony rega rding a d efenda nt’s incap acity
       to form the required mental state must satisfy the general relevancy
       standards as well as the evidentiary rules which spec ifically govern expert
       testimony. Assuming that tho se sta ndard s are s atisfied , psych iatric
       evidence that the defendant lacks the capacity, because of mental disease

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         or defect, to form the requisite culpable mental state to commit the offense
         charge d is adm issible und er Ten nesse e law.

Id. at 689. The supreme court made no distinction between the application of the

doctrine of diminished capacity to first degree or second degree murder charges.

Indeed, this Court has previously stated that

         Although not explicitly addressed, the Hall opinion appa rently did no t limit
         application of the d octrine to spe cific inten t crime s, as th is Cou rt implie d in
         [State v. ]Phipps, 883 S.W.2d [138,] 149 n. 19 (declining to decide whether
         diminished capa city neg ates m ental s tates o ther tha n spe cific intent). W e
         believe this is implicit in the court’s repeated statements that diminished
         capac ity is relevant to negate the requisite culpable mental state, not just
         premeditation and de liberation. Hall, 958 S .W .2d at 6 90 (em phas is
         added). Moreover, the distinction between general and specific intent
         crimes has be en aba ndone d in our crim inal code . Tenn. Code Ann. §
         39-11-3 01 (Se ntencing Com mission Com ments ).

State v. Calvin Lee Sneed, No. 03C01-9611-CR-00444, 1998 WL 309137, at *13

n.9 (Tenn. Crim. App., Knoxville, June 12, 1998).                                 Because the doctrine of

diminished capac ity applies to all offenses in which the State is required to prove

a specified mens rea, we conclude that the trial court should have allowed Dr.

Smith to give his o pinion tha t Appella nt’s men tal condition rend ered h im

incapable of “know ingly” killing Ms . Proffitt. 1 Howe ver, we ag ree with the State

that the trial court’s error was harmless under the circumstances of this case.



         In this case, the jury heard Dr. Smith’s opinion that Appellant suffered from

“a major depression of severe to psychotic proportions” that rendered Appellant

incap able of either premeditating the shooting or forming an intent to kill. The

jury obviously rejected Dr. Smith’s opinion and concluded that Appellant had

committed a premeditated and intentional k illing.                               Ind eed, th ere wa s am ple

evidence upon w hich a ratio nal jury cou ld base th is conclu sion.                                              It is



         1
           The re is n o disp ute th at Dr . Sm ith’s o pinion satis fies th e gen eral s tand ards of rele vanc y as w ell
as th e rule s of e viden ce th at go vern expe rt test imo ny.

                                                          -6-
incon ceivab le that a rational jury, having concluded that Appellant had committed

an intentional and premeditated murder, could also conclude that Appellant had

not acted “know ingly.” Such a conclus ion wo uld de fy all logic . Ther efore, it is

obvious that even if Dr. Smith had been allowed to testify that Appellant’s mental

condition rendered h im incapab le of a “knowing” k illing, the jury would have

rejected that opinion just as it rejected the opinio n that A ppella nt cou ld not k ill

intentio nally or with premeditation. Thus, we conclude that the trial court’s error

in limiting the e xpert testim ony was harmle ss. See Tenn. R. Ap p. P. 36 (b). Th is

issue ha s no m erit.



                              III. JURY INSTRUCTIONS




         Appellant contends that the trial court erred when it refused to instruct the

jury that the doctrine of diminished capacity applies to the requisite mental states

for both first degree and second degree murder. The State concedes that the

trial court erred, but contends that the error was harmless.



         Initially, we note that the trial court “has the duty to give a complete charge

of the law applicab le to the facts of the cas e.” State v. Daven port, 973 S.W.2d

283, 287 (Tenn . Crim. App. 1998).           As previously stated, the doctrine of

diminished capacity as it applies to both first degree and second degree murder

was applicab le to the fac ts of this cas e. Thus, the trial court erred when it failed

to instruc t the jury that it sh ould c onsid er whether Appella nt’s men tal state

rendered him incapable of having the requisite mental state (“knowing”) for

second degree murder. However, we agree with the State that this was harmless

error.

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       This issue is somewhat analogous to the issue presented in the case of

State v. Williams, 977 S.W .2d 101 (Tenn . 1998). In Williams, the Tennessee

Supreme Cour t held th at the tria l court’s failure to instruct the jury on the lesser

offense of voluntary manslaughter was harmless when the jury convicted the

defendant of first degree murder after it had been instructed on both first degree

and se cond d egree m urder. Id. at 106. The supreme court stated:

       By convicting the defendant of first degree murder the jury determined that
       the proof was sufficient to establish all the elements of that offense beyond
       a reason able do ubt, includ ing that the killing was “in tentional, d eliberate
       and premed itated.” In other words, by finding the defendant guilty of the
       highest offense to the exclusion of the immediately lesser offense, second
       degree murde r, the jury nec essarily reje cted all oth er lesser o ffenses,
       including voluntary manslaughter. Accordingly, the trial court’s erroneous
       failure to charge volun tary manslaughter is harmless beyon d a rea sona ble
       doubt because the jury’s verdict of guilt on the greater offense of first
       degree murder and its disinclination to consider the lesser included offense
       of second degree murd er clea rly dem onstra tes tha t it certain ly would not
       have retu rned a ve rdict on volu ntary ma nslaug hter.

Id. Similarly, the jury’s rejection of Dr. Smith’s opinion that Appellant could not

kill intentionally or with premeditation ind icates that it certainly would h ave

rejected Dr. Sm ith’s opinion that App ellant cou ld not “kno wingly” kill. The re is no

question that “inte ntiona l” and “p reme ditation” are “greater” mental states than

“knowin g.” For instan ce, “‘[i]ntention al’ refers to a pers on wh o acts intentio nally

with respect to the nature of the conduct or to a result of the cond uct wh en it is

the perso n’s conscious o bjective or desire to engage in the conduct or cause the

result.” Tenn . Code Ann. § 39-11-302(a) (1997 ). In add ition, “‘pre med itation’ is

an act done after the exercise of reflection and judgm ent.” Ten n. Cod e Ann. §

39-13-202(d) (Supp. 1998). Further, “‘[k]nowing’ refers to a person who ac ts

know ingly with respe ct to the co nduct o r to circumstances surrounding the

conduct when th e perso n is awar e of the na ture of the c onduc t or that the

circumstances exist. A person acts knowingly with respect to a result of the



                                           -8-
perso n’s conduct when the pe rson is aware that the cond uct is re ason ably ce rtain

to cause the result.” Tenn. Code Ann. § 39-11-302(b) (1997). By convicting

Appellant of first degree murder, the jury found beyond a reasonable doubt that

Appellant had killed in tentionally a nd with preme ditation. In finding that Appellant

acted with the se hig her m ental s tates, th e jury ne cess arily reje cted a ll other

lesser mental states. Thus, the jury clearly would not have found that Appellant

had been incapable of “knowingly” killing. Therefore, we conclude that the trial

court’s erroneous failure to instruct the jury that the doctrine of diminished

capacity could nega te the re quisite men tal state for sec ond d egree murd er is

harmle ss beyo nd a rea sonab le doub t. See Tenn. R. App. P. 36(b). This issue

has no merit.



      Accordingly, the judgment of the trial court is AFFIRMED.



                                  ____________________________________
                                  JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
L. T. LAFFERTY, SENIOR JUDGE




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