            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                        OCTOBER SESSION, 1997


                                                             FILED
STATE OF TENNESSEE,         )                           December 30, 1997
                            )    No. 02C01-9702-CR-00082
      Appellee              )                           Cecil Crowson, Jr.
                            )    SHELBY COUNTY           Appellate C ourt Clerk
vs.                         )
                            )    Hon. JOSEPH B. DAILEY, Judge
JAMES E. HATHAWAY,          )
                            )    (Felony Murder and
      Appellant             )    Especially Aggravated Robbery)



For the Appellant:               For the Appellee:

Brad S. Tisdale                  John Knox Walkup
642 Washington, Suite 1          Attorney General and Reporter
Memphis, TN 38105
                                 Kenneth W. Rucker
Charles Waldman                  Assistant Attorney General
147 Jefferson Ave.               Criminal Justice Division
Suite 1101                       450 James Robertson Parkway
Memphis, TN 38103                Nashville, TN 37243-0493


                                 William Gibbons
                                 District Attorney General

                                 Terrell L. Harris and
                                 David C. Henry
                                 Asst. District Attorneys General
                                 Criminal Justice Complex, Suite 301
                                 201 Poplar Street
                                 Memphis, TN 38103



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                          OPINION



       The appellant, James E. Hathaway, appeals his jury convictions for the

crimes of especially aggravated robbery and felony murder. At the conclusion of the

penalty phase of the trial, the jury imposed a sentence of life imprisonment without

the possibility of parole for the felony murder conviction. The Criminal Court of

Shelby County sentenced the appellant to twenty-five years for the especially

aggravated robbery conviction, ordering that this twenty-five year sentence run

consecutively to the appellant’s life sentence. On appeal, the appellant raises the

following issues:



       I. Whether the trial court properly reseated Juror Ward after
       concluding that the defense’s exercise of a peremptory challenge was
       racially motivated;

       II. Whether the State established the appellant’s sanity beyond a
       reasonable doubt; and

       III. Whether the trial court properly prohibited the defense’s expert
       witness from testifying regarding the diagnoses of non-testifying
       physicians and the effects of cocaine on an individual exhibiting a
       history of seizure disorder.



       After a thorough review of the record and the law applicable thereto, we

affirm the judgment of the trial court.




                                      Background



       The proof at trial revealed that, in December of 1993, the victims in this case,

Elbert Dan Swartz and his wife, Maxine Swartz, owned and operated Keyport Self-

Storage, a mini-storage facility in Memphis. The couple’s residence was attached to

the office of the business. Mr. Swartz was a sixty-one year old retired Memphis

police officer.


                                           2
       On December 14, 1993, as Mr. Swartz was locking the office door at closing

time, the appellant and a co-defendant, each carrying a handgun, entered the

business. Mrs. Swartz, who was in the residence area, heard the beeping sound

which indicated that the office door had been opened. Seconds later, the appellant

and the co-defendant, Abraham Galmore, entered the Swartzs’ apartment. The

appellant grabbed Mrs. Swartz and demanded money, while Galmore held a gun to

Mr. Swartz’s head. Mr. Swartz replied that they did not have any money. The

appellant then began kicking and shoving Mrs. Swartz toward the bedroom, where

he forced her onto her knees. Pointing his weapon at the back of her head, the

appellant informed Mr. Swartz that, if he didn’t produce some money, he would

“blow [Mrs. Swartz’s] brains out.” After hearing his wife’s pleas for compliance with

the intruder’s request, Mr. Swartz took two bank bags from the bedroom. The

appellant remarked, “Ms. Maxine, I sure hate to do this to you,” and then shot Mrs.

Swartz in the back of the head.1 Galmore retrieved a knife from the kitchen and the

two men took turns stabbing the already wounded Mrs. Swartz in the throat.



       The perpetrators then returned to Mr. Swartz and shot him in the back of the

head. As the assailants argued over who would stab Mr. Swartz, one held Mrs.

Swartz by the back of the head, forcing her to watch the execution of her husband.2

The two men then pillaged through their victims’ personal belongings, taking jewelry,

Mr. Swartz’s father’s watch, money, and various handguns. Before leaving the

apartment, the appellant grabbed Mrs. Swartz by her hair and jokingly remarked to

his companion, “Don’t waste another bullet on her. She’s already dead too.” After

the two assailants left, Mrs. Swartz crawled to the telephone in the living room and

dialed 911. Concerned that her attempt was unsuccessful, she contacted her

granddaughter who also notified 911.


       1
        At trial, Mrs. Swartz advised that, prior to this incident, she and her husband had
employed the appellant to perform odd jobs, including “detailing” their automobiles. She
continued that, on numerous occasions, her husband had loaned money to the appellant and that
the appellant was welcomed in their home.

       2
           Rega rding the s tabbing, the appellant s tated “I wan t my sha re of this.”

                                                      3
         Paramedics arrived at the scene at approximately 5:59 p.m, and discovered

Mr. Swartz laying face down in a pool of blood. He was pronounced dead at the

scene. Mrs. Swartz was in shock from the loss of blood. The paramedics, believing

her condition to be critical with a high risk of death, inquired as to whether Mrs.

Swartz could identify her assailants. She replied “James” and a last name

indiscernible to the paramedics. Before being transported to the hospital, she was

able to state, “James Hathaway did it.”



         After fleeing the scene, the appellant and Galmore went to the apartment of

Roy Ballard.3 Ballard observed that the appellant was carrying two handguns and

Galmore was armed with a knife. Galmore handed the knife to the appellant who

began washing off what appeared to be blood from the knife. Ballard noted that the

appellant had blood on his person and clothing. Ballard also observed that the two

men “had a lot of money.” After leaving Ballard’s apartment, the appellant

proceeded to the Sun Inn Motel, where he registered in his own name. The

appellant then purchased $250.00 worth of crack cocaine which he smoked. At

11:00 a.m. the following morning, the appellant telephoned his mother and told her

that he had done something awful. He was then taken to the police station by his

mother and her husband.



         At the police station, the appellant appeared normal and was willing to talk

with police officers. After being advised of and signing a waiver of rights, the

appellant gave a statement in which he admitted that he had shot Mr. Swartz. He

stated that “a man he only knew as Greg” accompanied him during the

“robbery/murder.”4 Narrating the events of the prior evening, the appellant stated


         3
           Ballard also related that the appellant and Galmore had visited at his apartment earlier
that aftern oon an d that he h ad over heard th e two plan ning a rob bery or in their te rms , “going to
mak e a sting.”

         4
          "Testimony revealed that “Greg” was Abraham Galmore’s nickname. Prior to the
app ellant ’s trial, G alm ore w as c onvic ted o f crim inally ne gligen t hom icide a nd es pec ially
aggravated robbery. He was sentenced, as a career offender, to sixty-six years in the Department
of Correction.

                                                     4
that “Greg put a pillow to Dan’s head and told [the appellant] to shoot. And [the

appellant] shot once. Greg then shot Dan two more times. . . . Greg came out of the

bedroom and went in the kitchen and got a knife.” He stated that “Greg” had

stabbed Dan. The appellant recalled that “[he] took Maxine back into the bedroom

where Dan was. [The appellant] advised that he did not shoot or stab Maxine.” At

the conclusion of this statement, the appellant telephoned his parents and live-in

girlfriend, Stella Martin.



       After completing his telephone calls, the appellant, again, voluntarily waived

his rights, and stated that he wished to make a second statement. The appellant

related that

       [he] went to Dan’s to go borrow some money. [He] got out and went
       inside and Dan opened the door for me. Greg was still in the truck
       when I got out. When I got inside he came in like before that door
       closed. He was inside in the back of me. He, Greg, had the gun in his
       hand; and he said this is a robbery. At that point, Greg took Dan to the
       bedroom and told him to sit down. Greg told Maxine to get in here,
       and she was talking real drowsy like. . . . Greg asked him, where is the
       money. Dan told me it was under the bed, and I got it out. Dan kept
       asking me, why am I doing this. I’ll give you the money if you ask me
       for it. From there Greg grabbed a pillow, put it to the back of Dan’s
       head, handed me the pistol and said shoot. And I shot him once. Him
       and Dan got to fighting, and after I shot him, I gave Greg the gun back.
       I went in the living room and got the money out of the drawer., After I
       got the money, I heard the shots. . . . Greg was going in the kitchen.
       He came out the kitchen with a knife. . . . Then Greg went back in the
       room and Dan and Greg started scuffling again. Greg started stabbing
       Dan with a knife. Then he was just stabbing and Dan was kicking.

The appellant again denied stabbing or shooting Maxine Swartz. However, he

stated “There ain’t no excuse for doing what I did. I’m sorry, but it won’t change

anything.”



       Testifying in his own defense, the appellant related that, on the date of these

crimes, he had been smoking crack cocaine earlier in the day. He was later joined

by Galmore at Ballard’s apartment where the two continued to use cocaine. The

appellant testified that he had no recollection of the events transpiring after he left

Ballard’s apartment until the next morning when he awoke in the hotel.         The


                                          5
appellant revealed that, in 1984, he suffered a gunshot wound to the head. As a

result of this incident, the appellant’s equilibrium was affected and, subsequently, he

underwent surgery, a labyrinthectomy, to correct this problem. The appellant related

that the bullet is still lodged in the back of his skull. After this injury, the appellant

began suffering seizures, for which he takes 100 milligrams of Dilantin per day.

Moreover, in order to obtain relief from the pain suffered from this injury, he began

using illegal drugs, including heroin, cocaine, crack, and PCP.5



         Dr. Marsha Little, a clinical psychologist with a speciality in neuropsychology,

performed an evaluation of the appellant.6 Testifying on his behalf, she opined that

the appellant has “difficulty in abstract reasoning, social judgment, [and suffers from]

impulsivity.”7 Dr. Little diagnosed the appellant as mentally ill and suffering from an

organic mental disorder resulting from damage to the brain caused by structural

insult. Specifically, she stated that, as a result of the gunshot wound, the appellant

endured impairment of the functioning of the front temporal lobes of the brain. In

sum, Dr. Little concluded that on the evening of December 14, 1993, the appellant

was unable to control his impulses.



         In rebuttal of Dr. Little’s diagnoses, the State called Drs. John Whirley and

Wyatt Lee Nichols, both clinical psychologists. Dr. Whirley conducted an interview

of the appellant during which the appellant indicated a lack of memory of the

criminal episode. Acknowledging that the appellant was admittedly “high” on

cocaine at the time of the offense and that “a drug dependant state can affect

memory functioning,” he determined that, at the time of the offense, the appellant



         5
          On cross-examination, however, the State revealed medical reports from 1991 which
indicated that the appellant began his abuse of illegal substances at the age of thirteen.

         6
         At tria l, “neu rops ycho logy” w as de fined by Dr. Little a s a st udy of the re lation ship
betw een the b rain a nd be havio r. It inclu des the s tudy o f indiv iduals who have suff ered brain
traum a “and h ow they fun ction in their da ily world.”

         7
        Dr. Little defined “impulsivity” as the inability to think before one acts or makes
statements.

                                                      6
“was able to appreciate the wrongfulness of the behavior; and he was able to control

his behavior or conform his behavior to the requirements of the law.” Although Dr.

Whirley admitted that the appellant has a substance abuse history of twenty-five

years and that the appellant may be suffering from depression, he concluded that

these observations are not “remarkable or a mark of insanity. It’s actually a mark of

some reality to be depressed when you’re facing these kinds of charges. But I saw

no evidence of psychosis which is the most common thing that we would expect if

one had access to insanity.” With regard to Dr. Little’s conclusion that the appellant

suffered from impulsivity, Dr. Whirley countered that “[h]e may be impulsive, but I

think he’s been impulsive since he was small.” He explained that impulsivity is

“more of a symptom or a personality trait” and not a diagnosis or a mental disorder.

Moreover, impulsivity “doesn’t take away one’s ability to appreciate the wrongfulness

of behavior or to conform to the behavior to the law.” Based upon the

circumstances of the criminal episode, Dr. Whirley found evidence of planning which

negated the suggestion of an impulsive act. Furthermore, he could not confirm Dr.

Little’s diagnosis of organic brain damage.



       Dr. Nichols also testified as to the appellant’s mental state. Dr. Nichols

conducted two mental examinations of the appellant. Dr. Nichols determined that

the appellant was competent to stand trial and that the appellant did not suffer from

a mental illness. Regarding Dr. Little’s diagnosis of impulsivity, Dr. Nichols

responded that, although

       he might have impulse control problems. . . that really doesn’t mean
       much. Most people with an antisocial personality . . . that’s one of the
       cardinal symptoms of that - - impulse control problems. Most people
       with chronic chemical dependency histories, . . . it’s not unusual at all
       for him to have impulse control problems. And when he’s intoxicated
       or high, then he’s going to more likely have trouble with his impulses. I
       mean, that’s true for anybody as a general rule.

 Regarding the present offenses, Dr. Nichols determined that they were goal

directed, and not an impulsive act. In summary, he concluded that “[the appellant]




                                         7
was not out of touch with reality or distorting reality past anything that would be

accounted for by being intoxicated. . . . His behavior was still goal oriented.”



         Based upon this evidence, the jury convicted the appellant of felony murder

and especially aggravated robbery.




                      I. Batson Challenge & Reseating of Juror Ward



         During voir dire, the defense exercised the seventh of their eight peremptory

challenges against prospective juror Carol Ward.8 Ms. Ward was discharged as a

juror and excused from the courtroom. The State then objected to Ms. Ward’s

removal as being a possible violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.

1712 (1986) (holding that peremptory challenges may not be exercised in a

discriminatory manner. A jury out hearing was then held during which the defense

provided the court with several race-neutral explanations for the exercise of the

peremptory challenge against Ms. Ward. Specifically, defense counsel noted, as to

Ms. Ward, that she “appeared. . .to be. . . strongly in favor of the death penalty,” she

appeared to have agreed with another juror’s doubts about an insanity defense, her

home had been burglarized, and her ex-husband had been addicted to cocaine.

Additionally, prior to exercising the challenge, defense counsel consulted with the

appellant who indicated that, during the voir dire process, he felt that Ms. Ward was

staring at him intently, and that he felt animosity emanating from her. Finally,


        8
          The appellant is an African American male. Ms. Ward is a Caucasian female. The
reference from the record is that all of the seven peremptory challenges exercised by the defense
were directed toward Caucasian members of the venire. Moreover, six of these seven
prospe ctive jurors were fem ale. J.E.B. v. Alabama, 511 U.S. at 127, 114 S.Ct. at 1419 (1994),
extended the Batson rationale to gender discrimination.

         Although not raised by either party, the fact that the basis of juror exclusion in the present
case is that the juror is Caucasian is of no consequence. The Batson principle is not limited to the
exclus ion from juries of his torically oppre ssed m inorities. See J.E.B. v. Alabama, 511 U.S. at 127,
114 S.C t. at 1419. Batson held that equal protection guaranties forbid the State in a criminal
pros ecu tion to use p erem ptory c hallen ges to ex clud e pot entia l juror s so lely on a cco unt o f their
race or on the a ssu mp tion th at be cau se of their r ace they w ill be un able t o be im partia l. This
protection applies equally to Caucasians and African-Americans.

                                                      8
defense counsel advised the court that it was the combination of these reasons that

supported their exercise of the peremptory challenge.



      The trial court, before ruling on the State’s objection, interviewed defense

counsel as to its prior peremptory challenges of prospective jurors. In making

extensive findings on the record, the trial court concluded that, even though the

reasons articulated by defense counsel are

      sound, in and of themselves, when you start looking at the . . . African-
      American jurors that weren’t challenged and start realizing that there is
      an abundance of African-American jurors who have perhaps
      responded in similar or identical manner that weren’t challenged, then
      the soundness of those reasons starts to evaporate.

Moreover, the court acknowledged that

      in listening to [Ms. Ward’s] responses . . . [she] seemed very candid,
      forthright, ready to respond to anything asked of her, willing to listen to
      the case; a bright, articulate, intelligent woman who said she could be
      fair and impartial. . . . [W]hen she was challenged, it did raise a red
      flag in my mind because I can’t think of anything valid --- anything that
      I would consider to be a valid race-neutral reason in the context of all
      the jurors that are on the panel right now. . . . [A]ll these women are
      the women who apparently nodded at the wrong time or apparently
      were too quick to agree that they could follow the law.

Specifically, the court concluded that, as to the burglary, Ms. Ward indicated that the

incident would have no bearing whatsoever on her ability to sit on this case. “There

are other jurors who have had equal or greater crimes committed against them who

are still on the panel.” With regard to the death penalty, Ms. Ward is no different

than many of the other African-American jurors who have not been challenged. Ms.

Ward indicated that the fact that her ex-husband of nine years ago was addicted to

cocaine or alcohol would have absolutely no bearing on her ability to sit on this case

and the court noted that “other jurors have had at least as close or have had similar

types of relatives or friends involved with drugs or alcohol who were not challenged.”



      And the temporary insanity situation. . . . I’m not sure that nod, in and
      of itself, is a sufficient race-neutral reason particularly in light of the
      fact that there were no follow-up questions, no attempt to clarify what
      that nod meant, what she was agreeing with, whether she was nodding
      in agreement with Mr. Tisdale or nodding in agreement with the juror or


                                         9
       nodding because she was getting sleepy . . . [t]here is no attempt to
       clarify what that nodding was all about.

The court concluded that the basis for the challenge exercised by the defense is not

sufficient “when viewed in the context of all the jurors that are presently on the panel

and those who have thus far been dismissed.” The court then reseated Ms. Ward.



       The appellant now disputes the trial court’s ruling that defense counsel failed

to assert sufficient race-neutral explanations for the exercise of the peremptory

challenge against Juror Ward. Alternatively, he argues that, in any event, the

reseating of Juror Ward resulted in the possibility of bias against the appellant by

that juror.



       The United States Supreme Court has consistently recognized that racially-

based juror exclusions affect and injure the integrity of the justice system. See

Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896, 902 (Tenn. 1996) (citing

Strauder v. West Virginia, 100 U.S. 303, -- S.Ct. -- (1879); Norris v. Alabama, 294

U.S. 587, 55 S.Ct. 579 (1935); Hollins v. Oklahoma, 295 U.S. 394, 55 S.Ct. 784

(1935) (per curium); Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261 (1946);

Carter v. Jury Comm’n of Greene County, 396 U.S. 320, 90 S.Ct. 518 (1970)).

Discrimination in the jury selection process not only constitutes a federal offense,

but also taints the judicial process and “extends beyond that inflicted on the [litigant]

and the excluded juror to touch the entire community.” Woodson, 916 S.W.2d at

902 (citing 18 U.S.C. § 243 (1969); Batson v. Kentucky, 476 U.S. at 79, 106 S.Ct. at

1712). See also Powers v. Ohio, 499 U.S. 400, 409, 111 S.Ct. 1364, 1370 (1991)

(emphasizing that the individual juror has a right not to be excluded from a petit jury

on account of race). “The exclusion ‘undermine[s] public confidence in the fairness

of our system of justice.’” Woodson, 916 S.W.2d at 902 (citing Batson, 476 U.S. at

87, 106 S.Ct. at 1718).




                                         10
        The Supreme Court’s decision in Georgia v. McCollum, 505 U.S. 42, 112

S.Ct. 2348 (1992), ensures that Batson will apply to all parties by prohibiting criminal

defendants from using peremptory challenges to strike a venireperson solely on the

basis of the venireperson’s minority status. 9 Thus, the State may make a “reverse”

Batson objection.



        Under McCollum, a defendant is subject to the three-part test outlined in

Batson. To invoke the protections of Batson and its progeny, the State must

establish a prima facie case that a juror is being challenged on the basis of race or

gender. See Batson, 476 U.S. at 94, 106 S.Ct. at 1721; see also Purkett v. Elem,

514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71 (1995); Woodson, 916 S.W.2d at 902.

Once the State has presented a prima facie case, the trial court shall require the

defendant to give a race-neutral reason for the challenge. McCollum, 505 U.S. at

59, 112 S.Ct. at 2359; see also Purkett, 514 U.S. at 767, 115 S.Ct. at 1770-71.

“The race or gender neutral explanation need not be persuasive, or even plausible .

. . . Unless a discriminatory intent is inherent in the [proponent’s] explanation, the

reason offered will be deemed race neutral.” Purkett, 514 U.S. at 767, 115 S.Ct. at

1770-71. If a race or gender neutral explanation is given, the court must then

determine, given all the circumstances, whether the State has established

purposeful discrimination. McCollum, 505 U.S. at 59, 112 S.Ct. at 2359; Batson,

476 U.S. at 96-98, 106 S.Ct. at 1723-24; see also Purkett, 514 U.S. at 767, 115

S.Ct. at 1770-71. Although a trial court must accept a facially race-neutral

explanation for purposes of determining whether the proponent has satisfied his

burden of production, this does not mean that the court is bound to believe the

explanation in making its determination. In other words, while the court may find

that a proffered explanation is race-neutral, the court is not required, in the final

analysis, to find that the proffered explanation was the actual reason for striking the


        9
         McCollum held that a criminal defendant, although otherwise in an adversarial
relationship, is an agent of the State for the particular purpose of exercising a peremptory
challeng e when picking a jury. McCollum, 505 U.S. at 55-56, 112 S.Ct. at 2357.

                                                 11
juror. If the court determines that a race or gender based motive was behind the

challenge, the juror may not be excluded. Woodson, 916 S.W.2d at 903.



       In making its determination, the trial court must look to the totality of the

circumstances for rarely will a party admit that its purpose in striking a juror was

discriminatory. Accordingly, the trial court may infer discriminatory intent from

circumstantial evidence. “The factfinder’s disbelief of the reasons put forth by the

defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may,

together with the elements of the prima facie case, suffice to show intentional

discrimination, and . . . no additional proof of discrimination is required.” St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749 (1993).

Additionally, the court may consider whether similarly situated members of another

race were seated on the jury or whether the race-neutral explanation proffered by

the strikes’ proponent is so implausible or fantastic that it renders the explanation

pretextual. The trial court may also consider the demeanor of the attorney who

exercises the challenge which is often the best evidence of the credibility of his

proffered explanations. See Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct.

1859, 1868-1869 (1991).



       Because a trial record alone cannot provide a legitimate basis from which to

substitute an appellate court opinion for a trial court’s findings, the trial court must

carefully articulate its findings on the record. The trial court has the opportunity to

both visually and auditorially observe the demeanor of both prospective jurors and

counsel and, accordingly, evaluate their credibility. See State v. Smith, 893 S.W.2d

908, 914 (Tenn. 1994), cert. denied, -- U.S. --, 116 S.Ct. 996 (1995) (citing State v.

Ellison, 841 S.W.2d 824, 827 (Tenn. 1992)). On appeal, the trial court’s findings are

to be accorded great deference and are not to be set aside by this court unless

clearly erroneous. See Woodson, 916 S.W.2d at 906 (citing In re A.D.E., 880

S.W.2d 241, 2432 (Tex. App. 1994)); Smith, 893 S.W.2d at 914.


                                          12
       In the present case, the evidence supports the trial court’s finding that the

proffered reasons for the appellant’s strikes were pretextual and that the strike was

actually exercised for a racially discriminatory purpose. At this point, the appellant

had used six of his seven peremptory strikes to eliminate white female jurors, and

an additional strike to eliminate a white male juror. This patent use of peremptory

strikes to exclude jurors of one race establishes a prima facie showing of

discrimination. Additionally, the trial court was in a far better position than this court

to evaluate the appellant’s laundry list of race-neutral explanations. The trial court

made extensive findings on the record to support his conclusions. Moreover, the

trial court was able to observe the demeanor of defense counsel and the challenged

jurors. Accordingly, we hold that the record supports the trial court’s conclusion that

the peremptory challenge lodged by the appellant against Juror Ward was

racially/gender motivated.



       We next address the appellant’s contention that the trial court erred in

reseating Juror Ward after finding that defense counsel had violated Batson.

Specifically, he argues that, “having Juror Ward reinstated to the panel [after a jury

out hearing,] impermissibly suggests to the prospective jurors that the appellant is

the one who has exercised his peremptory challenge against her, thereby raising the

possibility of bias against the appellant by that juror.” We disagree.



       Although leaving the task of prescribing the appropriate remedy for the

unconstitutional exercise of a peremptory strike to the states, the Supreme Court

identified two possible remedies: reseating persons improperly struck and

discharging the entire venire. Batson, 476 U.S. at 100 n. 24, 106 S.Ct. at 1725 n.

24. In Woodson v. Porter Brown Limestone Co., 916 S.W.2d at 906-907, our

supreme court determined that the selection of an appropriate remedy is best left to

the discretion of the trial court. For guidance the court proposed two alternative

remedies, i.e., the court may exclude the entire venire and begin selection with a


                                          13
new panel, or, “the juror should remain, his or her name should not be announced,

and the excluding party should be restored to the peremptory challenge.” Accord.

Jefferson v. State, 595 So. 2d 38, 41 (Fla. 1992); Jones v. State, 683 A.2d 520, 529

(1996); Commonwealth v. Fruchtman, 633 N.E. 2d 369, 373 (Mass.), cert. denied,

513 U.S. 951, 115 S.Ct. 366 (1994); Ezell v. State, 909 P.2d 68, 72 (Okla. Crim.

App. 1995); State ex rel. Curry v. Bowman, 885 S.W.2d 421, 425 (Tex. Crim. App.),

cert. denied, 513 U.S. 866, 115 S.Ct. 184 (1994); Coleman v. Hogan, 486 S.E.2d

548, 550 (Va. 1997). In the present case, the trial court chose the latter method of

recourse. We find this method of reparation quite appropriate. If the trial court, after

finding purposeful discrimination by the appellant, were to remove the challenged

juror from the panel, the appellant would be profiting from his own misconduct

because, as a result, he would get the jury that he wanted. Moreover, removing the

juror does not correct the Batson violation because the excluded juror has still been

subjected to discrimination. Accordingly, we find no error by the court’s reseating of

Juror Ward. This issue is without merit.




                                 II. Insanity Defense



       Originally captioned under “sufficiency of the evidence,” the appellant next

argues that the State has failed to prove that he was not insane at the time of the

commission of the offenses beyond a reasonable doubt. When there is a challenge

to the sufficiency of the evidence, the standard for review by an appellate court is

whether, after considering the evidence in the light most favorable to the State, any

rational trier of fact could have found all the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S.Ct.

2781, 2789 (1979); State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994); Tenn. R.

App. P. 13(e). Clearly, the evidence is overwhelming to find the appellant guilty,

beyond a reasonable doubt, of felony murder and especially aggravated robbery.


                                         14
Thus, the only question is whether the appellant was legally sane at the time the

offense was committed. The jury concluded that the appellant was sane and we

agree.



         In a criminal prosecution, the sanity of the accused is presumed. State v.

Overbay, 874 S.W.2d 645, 650 (Tenn. Crim. App. 1993); Brooks v. State, 489

S.W.2d 70, 72 (Tenn. Crim. App. 1972). Thus, the accused bears the initial burden

of proof. However, if the evidence raises a reasonable doubt as to the sanity of the

defendant, the State assumes the burden of proving the defendant’s sanity beyond

a reasonable doubt. State v. Sparks, 891 S.W.2d 607, 615 (Tenn. 1995). Once the

burden has shifted to the State, sanity becomes an essential element of the crime.

Sparks, 891 S.W.2d at 616 (citations omitted). The State does not contend on

appeal that the appellant made an inadequate prima facie showing of insanity.

Therefore, we proceed directly to the sufficiency of the State’s rebuttal evidence.



         “Insanity is a defense to prosecution if, at the time of such conduct, as a

result of mental disease or defect, the person lacked substantial capacity either to

appreciate the wrongfulness of the person’s conduct or to conform that conduct to

the requirements of the law.” Tenn. Code Ann. § 39-11-501(a)(1991) (amended

1995); Graham v. State, 547 S.W.2d 531, 543-44 (Tenn. 1977). Thus, in order to

prove sanity, the State must prove either: “(a) the defendant was not suffering from

a mental illness at the time of the offense; (b) the illness did not prevent the

defendant from knowing the wrongfulness of his act and did not render the

defendant substantially incapable of conforming his conduct to the requirements of

the law.” State v. Peevyhouse, No. 01C01-9409-CC-00307 (Tenn. Crim. App. at

Nashville, Mar. 22, 1996), perm. to appeal dismissed, (Tenn. Sept. 9, 1996) (citing

State v. Jackson, 890 S.W.2d 436, 440 (Tenn. 1994); Graham, 547 S.W.2d at

544).) The State may show the sanity of the accused “through the use of expert

testimony, lay testimony, or by showing that the defendant’s behavior prior to,


                                          15
during, or after the commission of the crime was consistent with sanity and

inconsistent with insanity.” Peevyhouse, No. 01C01-9409-CC-00307 (citing

Edwards v. State, 540 S.W.2d 641, 646 (Tenn. 1976), cert. denied, 492 U.S. 1061,

97 S.Ct. 784 (1977)). The appellant (citing Jackson, 890 S.W.2d at 441) asserts

that, although the State’s proof is consistent with sanity, it is not inconsistent with

insanity, and, therefore, the proof is insufficient to establish the appellant’s sanity

beyond a reasonable doubt.



       Dr. Little, the neuropsychologist testifying on behalf of the appellant, opined

that the appellant suffered from organic mental disorder, a mental illness or mental

disorder caused by damage to the brain by structural insult. She concluded that this

brain impairment resulted in impulsivity which impaired the appellant’s ability to

conform his behavior to the law at that time. In rebuttal, the State presented two

clinical psychologists. Both concluded that the appellant was not suffering from a

mental illness and that an insanity defense could not be supported. Both found that

the appellant could appreciate the wrongfulness of his behavior and that he could

conform his behavior to the requirements of the law. Like Dr. Whirley, Dr. Nichols

concluded that, although the appellant exhibited impulsive behavior, the conduct in

question was not impulsive but rather clearly goal oriented.



       In addition to this expert testimony presented by the State, lay testimony

supports the conclusion that the appellant could appreciate the wrongfulness of his

conduct. Edroy Ballard testified that the appellant and his co-defendant discussed

the robbery prior to committing the crime. The surviving victim, Maxine Swartz,

testified that, before shooting her, the appellant stated, “Ms. Maxine, I sure hate to

do this to you.” Moreover, the appellant’s mother and stepfather both testified that

the appellant admitted that he had done something awful.




                                          16
       The issue of insanity at the time of a crime is a question for the jury to decide.

Spurlock v. State, 368 S.W.2d 299 (1963). In making its determination, the jury is

allowed to consider both lay and expert testimony as evidence, and it may discount

expert testimony which it finds to be in conflict with the facts of the case. Sparks,

891 S.W.2d at 616. By its verdict, the jury obviously accredited the State’s proof

over the contrary testimony of Dr. Little. We cannot dispute the jury’s conclusion.

The evidence supports a finding by a rational trier of fact of the appellant’s sanity

beyond a reasonable doubt. This issue is without merit.




                              III. Testimony of Dr. Little



       In his final issues, the appellant asserts that the trial court erred by prohibiting

Dr. Little to enumerate the diagnoses or opinions of non-testifying physicians and by

prohibiting Dr. Little from testifying regarding the alleged effects and reactions of

cocaine on a person with a history of seizure disorder. We address these

contentions accordingly.



                    A. Diagnoses of Non-Testifying Physicians

       First, the appellant contends that the trial court erred by prohibiting Dr. Little

from relating to the jury the diagnoses and opinions of other non-testifying

physicians. This issue is best summarized by the trial court’s findings:

       The question is whether she should in addition to relating her opinion
       be allowed to go further and tell the jury about the opinions that were
       reached by these other doctors on these other occasions. . .
       . . .[S]he may testify and give her opinion. But it doesn’t say anything
       about her then being allowed to go further and tell the jury about all
       these other opinions and diagnoses from these other doctors from who
       knows where under who knows what types of criteria and
       circumstances with who knows what type of motivation and standard
       that was being applied at any other given time.
.      ...
       She can state in general terms that her opinion is based at least in part
       on these records and hospitalizations of your client over the past eight
       or ten years . . . . But she cannot state in specific terms that your client
       has been diagnoses by Dr. John Doe in 1987 as having such and such

                                          17
        a problem, and therefore that led her to conclude that today he’s - - or
        on the date of this offense he was suffering from this other problem.




        Rule 703 of the Tennessee Rules of Evidence permits an expert witness to

base an opinion on facts not in evidence , even if the underlying facts themselves

are not admissible. See Advisory Commission Comment, Tenn. R. Evid. 703.

“When an expert bases his opinion on facts that are not independently admissible

into evidence, the trial judge should either prohibit the jury from hearing the

foundation for the testimony or deliver a cautionary instruction.” Benson v.

Tennessee Valley Elec. Co-op., 868 S.W.2d 630, 641 (Tenn. App. 1993) (citing

Tenn. R. Evid. 703, Advisory Commission Comments). In the present case, the

reports of the non-testifying physicians constitute hearsay and, as they do not fall

within one of the enumerated exceptions, are not admissible. See Tenn. R. Evid.

801(c). The decision to admit or exclude expert testimony is within the sound

discretion of the trial court. State v. Hawk, 688 S.W.2d 467, 472 (Tenn. Crim.

App.1985). Unless there is a clear showing of an abuse of discretion, an appellate

court will not disturb that decision. The trial court did not limit Dr. Little’s ability to

give her own personal opinion regarding her conclusions based upon the reports of

the non-testifying physicians. We cannot conclude that the trial court abused its

discretion by preventing Dr. Little from testifying to inadmissible hearsay. This issue

is without merit.



                         B. Effects of Cocaine to Seizure Disorders

        During the appellant’s trial, defense counsel attempted on numerous

occasions to have Dr. Little, a neuropsychologist, testify regarding the effects that

cocaine would have on an individual with a history of seizure disorders.10 The trial

        10
            W e are constrained to note that the appellant frames his issue a s “W hether the court
erred in denying testimony of Defendant’s expert witness as to the effects of cocaine on the
mental functioning and c apa city of a pers on af flicted with s eizure disor der . . . .” (em pha sis
add ed). T he tria l cour t exp ress ly permitted inquiry into this subject area. Thus, this issue, as
curr ently fr am ed, is broa der in sco pe th an th e issu e rais ed at the a ppe llant’s trial.

                                                   18
court prohibited such testimony concluding that Dr. Little was neither a medical

doctor nor an expert in the field of pharmacology or toxicology.



       At trial, both parties extensively voir dired Dr. Little as to her qualifications,

knowledge and experience relative to both the behavioral and physical effects of the

combination of Dilantin and cocaine on an individual. The appellant argued that Dr.

Little was qualified to give her opinion as to the physical effects of these drugs

because she had read literature and observed patients on cocaine. The trial court,

making extensive findings on the record, concluded that Dr. Little’s “general

classroom discussions and her occasional clinical involvement [with A & D patients]

does not equate with expertise in this field.” The court expressly prohibited Dr. Little

from “offering an opinion with regard to the effects that cocaine has on the body or

the increased likelihood of seizures and things of that sort.” Nonetheless, based

upon her experience as a psychologist, the court permitted Dr. Little to testify

regarding the “behavioral consequences of individuals that she’s treated who have

come in and reported a history of drug - - of cocaine addiction or on Dilantin or

suffering from seizures.”



       The determination of the qualifications of an expert witness and the relevancy

and competency of expert testimony are matters generally entrusted to the sound

discretion of the trial court. State v. Anderson, 880 S.W.2d 720, 728 (Tenn. Crim.

App.), perm. to appeal denied, (Tenn. 1994). This court will not overturn the trial

court’s decision absent a clear abuse of discretion. Id. (citing State v. Williams, 657

S.W.2d 405, 411 (Tenn. 1983), cert. denied, 465 U.S. 1073, 104 S.Ct. 1429 (1984)).

The record does not establish that the trial court abused its discretion. We find no

merit to this issue.




                                           19
                                 IV. Conclusion



      For the foregoing reasons, we affirm the judgment of convictions and the

sentences imposed for the offenses of felony murder and especially aggravated

robbery.




                                ____________________________________
                                DAVID G. HAYES, Judge




CONCUR:




__________________________________
JOHN H. PEAY, Judge



__________________________________
PAUL G. SUMMERS, Judge




                                      20
